Detroit Newspaper Printing Pressmen's Union 13

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Newspaper Printing Pressmen's Union No.13, International Printing Pressmen , and Assistants' Union of North America, AFL-CIO and The Detroit Free Press. Case 7-CB-2191 July 16, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 15, 1970, Trial Examiner Myron S. Waks issued his Decision in the above-entitled proceeding,-finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take; certain affirmative action, asset forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exaeptions_'to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The. Board has reviewed -the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby, affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in,the case, and hereby adopts the findings, conclusions, and recommendations of the Trial' Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Detroit Newspaper Printing Pressmen's Union No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order.2 1 Respondent's motion for oral argument is denied since, in our opinion, the record, exceptions, and brief adequately set forth the positions of the parties. 2 In'fn.25 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MYRON S. WAKE, Trial Examiner : The complaint in this 1 Unless otherwise indicated all dates set forth herein occurred in 1970. 2 Respondent's motion to dismiss the complaint, made at the close of case alleges that Respondent violated Section 8(bX1XB) of the Act by its imposition of a fine on Harry Ward, an assistant foreman of the Company. The charge herein was filed by the Company on June 25, 1970,1 complaint issued on July 27, and, following the filing of Respondent's answer on August 26, a hearing was held pursuant to notice on September 10. All parties present were afforded the opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Upon the entire record in this case including my observation of the witnesses , and after due consideration of the briefs filed by the General Counsel and the - Respon- dent, I make the following: 2 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings establish and I find that the Company, whichis engaged in the publishing of a daily newspaper and related operations at its principal 'office and place of business in ' Detroit, Michigan, received gross revenues during the calendar year 1969 in excess of $1 million; further, that the, Company held membership _ in, or subscribed to, interstate news services, published nationally syndicated features, advertised nationally sold products, the revenue from which exceeded $500,OOQ,-and purchased and caused newsprint -ink and other goods and materials valued in excess of $500,00() to be transported to its Detroit, Michigan, place of business in interstate commerce directly from States ` of the United States other than the State of Michigan. `Upon these admitted facts, I find ' that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of theAct. II. THE LABOR ORGANIZATION INVOLVED The pleadings further establish and I find that Detroit Newspaper Printing Pressmen's Union No. 13, Internation- al Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. In. THE UNFAIR LABOR PRACTICES A. Introduction The Company and the Union involved herein have maintained bargaining relations for a number of years; the most recent contract between the parties was entered into on August 16, 1968, and is to expire on June 17, 1971. Under the terms of the agreement foremen and assistant foremen are not included as members of the bargaining unit, and there is no requirement either by contract or company policy that foremen or assistant foremen maintain union membership. the hearing and upon which I reserved ruling, is disposed of in accordance with the decision herein. 192 NLRB No. 21 DETROIT NEWSPAPER PRINTING PRESSMEN'S UNION 13 107 B. Status of Assistant Foreman Harry Ward The overall supervision of the pressmen is the responsibil- ity of the Pressroom Superintendent Kenneth Cinder.3 Functioning under Cinder in overseeing the work of the pressroom is Assistant Superintendent Richard Hale and six assistant foremen. The paper works two shifts; there is 1 assistant foreman and 16 regular employees working on the day shift and 5 assistant foremen and 80 employees working on the night shift. Cinder or Hale is scheduled to work each of the 7 nights the paper is published; however, frequently both Cinder and Hale are absent from the pressroom. When Cinder and Hale are not present in the pressroom the overall supervision of the pressroom devolves on the senior assistant foreman, Harry Ward .4 In functioning as an assistant foreman, Ward and the other assistant foremen have the same authority. Assistant Foreman Harry Ward has been employed by the Company for about 42 years. He has been a member of the Union since 1933. Upon being promoted to the position of assistant foreman some 13 or 14 years ago, Ward maintained his union membership but ceased attending union meetings. - The pressroom of the Compan34s multilevel and includes the reel room and the, main press level. Ward generally serves as the assistant foreman of the reel room but is occasionally assigned to the main pressroom level-e.g., when one of the other assistant foremen is absent. As the assistant foreman of the reel room, Ward's prime responsibility is to insure the continuous production of paper-i.e., that the paper is fed to the presses on the upper level. To accomplish this, Ward has full supervisory authority over the employees in his area. He is responsible for the employees' attendance, compliance with company rules, and the timeliness and proper performance of work by the- employees. Ward exercises on-the-spot disciplinary control over the men, including the issuance of disciplinary warnings ,for minor- infractions of the company rules and the suspension, of an employee from his work shift for a major infraction of company rules. The authority to exercise these supervisory functions including the discipline of employees resides in Ward whether or not Superintend- ent Cinder is present at the plant. Where disciplinary warnings are issued by Ward he reports the matter to Cinder, who records it. When Ward has suspended (or "knocked-off") an employee from a shift, he will report the action to, Cinder (after first obtaining a replacement for the suspended employee) for payroll adjustment. The discipli- nary report of a supervisor is made to Cinder either the same night or the next night depending on when Cinder is present at the plant. Cinder may or may not review the action of the assistant foreman and admittedly has on occasion reversed the assistant foreman's action without a' grievance being filed. In addition, an assistant foreman has the authority to hire employees for a shift as the need arises. Under the Company's agreement with the Union there is an exclusive referral agreement. The Company apparently maintains a, roster. of regular substitutes; ordinarily the use of substitutes is planned 5 days ahead in the "mark up" or schedule. However, situations may arise when an assistant foreman requires employees over and above the regular substitutes- and in these cases he contacts the Union for referrals. The referred employees are hired by the assistant foreman requesting additional employees for a shift and are assigned by him to their jobs .5 The assistant foremen who are called on to perform this function for the most part have been those assigned to the main level of the pressroom because, according to Cinder, they have more time available. For this reason Ward would not "normally" be required to do this. However, the fact is that Ward has hired a considerable number of people from time to time, and has, done so recently when he worked on the upper level of the pressroom in the absence of one of the assistant foremen generally assigned to that area. In addition to the foregoing, the assistant foremen, including Ward, are authorized to handle the problems which may arise in the assistant foreman's area during the shift; this includes complaints or grievances of the employees as well as problems which concern the equipment. Superintendent Cinder in testifying was able to recall with certainty only three kinds of complaints which in the past have been brought directly to Ward by the chapel chairman6 or employees.? Thus, as an almost daily occurrence employees or the chapel chairman'have come to Ward complaining about the adjustment or repair of machinery or defective light- bulbs. These complaints are generally resolved by Ward by calling the appropriate mechanic to remedy the situation. Another. constant source of employee complaint has concerned oil on the reel room floor; this may present a safety hazard to the employees involved and has resulted in employee refusal to work until the matter was corrected. Generally, Ward has corrected this situation when it is brought to-his ,attention; on some occasions, however, Ward has not done so to the satisfaction of the employees and it-has required the chapel chairman to take the matter up with Cinders In the handling of grievances on the floor, assistant 3 Cinder is referred to in the contract between the parties as foreman of the pressroom. The contract between the parties provides: Section 21(a) The foreman shall be the recognized authority in the pressroom, supervising and directing all work therein , and shall issue all orders in conformity with the terms of this agreement. He shall be the judge of an employee's competency as a workman and his general fitness to work in the office. He shall hire and discharge all help and may call his force to work at different hours.... (b) Assistant foremen may be selected by the Publisher in each chapel with the proviso that anyone so selected shall have at least one (1) year of seniority as a journeyman in said chapel. Consideration should,be given to men in each chapel who-have seniority for these positions. Section 23 No foremen or assistant foreman shall be subject to fine, discipline or expulsion by the Union because of an action or decision made by him in carrying out the orders of the Publisher, if in accordance with this contract and scale. 4 The facts relating to the authority and responsibility of the assistant foreman is based on the credited testimony of Cinder. 3 The hiring of men through the referral system is more than a ministerial task since under the referral agreement the Employer has the right to reject a union-referred employee. In addition the referral agreement also contemplates that instances may arise when the Union may not be able to refer the required personnel and provides that the Company may obtain employees from other sources. 8 The term "chapel chairman" as used by the Union is synonymous with the position of steward. Delbert Fife, the chapel chairman involved herein, was elected to that office the month preceding the incident involved herein. Union witnesses could recall no other complaints handled by Ward. 3 Under the grievance procedure set forth in the contract (sec., 6(a)), the (Continued) 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen are expected to dispose of the, complaint or grievance if they are able to do so. However, they have been instructed by, Cinder not to engage in arguments with, the chapel chairman which may create a scene before the employees and disrupt production; in these circumstances the foreman's orders are to be carried out and if the chapel chairman feels he has a legitimate complaint he is, free to di'scuss' the matter with Cinder. then' or when Cinder is next present at the plant. Cinder testified "Explicit orders to, the foremen were that they do not take orders from the chapel chairman. He can neither tell them what to do or what not to do. In the event that the chairman comes overand starts issuing orders they are just to ignore him and tell him to go back to work and not to sit there and argue with him and have a big show for everybody to observe." Ward was acting pursuant to these instructions the night of the incident which led to the union fine involved herein. As Cinder put it, under the circumstances Ward was not to "stand around' and argue with Mr. Fife over whether the things that he was doing on the reel were proper or not, not to engage in, a big argument over the thing, to go about his assigned ' duties and if Mr.' Fife felt that Ward was in violation of the contract the matter could be taken care of either that even [sic] later or the following night." Further, regarding the adjustment of grievances, Ward . and the other assistant foremen have and do sit in with Cinder when grievances are brought to him by the chapel chairman. Generally, Ward is working in the reel room and Cinder will "normally" call in one of'the foremen from the main pressroom level when there is a grievance meeting. However, if no headway is made ` at the initial meeting Cinder will' not only consult the assistant foreman who sat in on the meeting with him but also the other assistant foremen will be consulted individually for their views before working out the grievance, .-While testifying, Cinder recalled only one, specific incident -(which, had occurred recently) where Ward-was involved in a grievance meeting; this occurred in February and followed the discharge of two employees the preceding night. An initial meeting between Cinder and Fife had been held the night of the discharge at which Assistant Foreman Kosik was'present However, the grievance was not resolved and the following evening, when there was a work stoppage over the matter, another meeting had been held , between -the union representatives and-Cinder at which the assistant foremen, including Ward, were present.9 Cinder could not recall the extent of active participation by Ward during the course of this meeting. C. The Union Fines Ward The incident which led to the Union's fine of Ward occurred on February 16.10 Shortly after 11:30 p.m. the first step involves the meeting of Cinder and one additional management representative with the chapel chairman and his assistant . If the matter is not resolved during the discussion in the first meeting it is'to be reduced to writing and the parties at this grievance step then have 7 days to resolve the grievance. If the grievance is' not settled it goes up to the next step in the grievance procedure, which provides ultimately for arbitration. 9 The apparently conflicting testimony of Fife, whom Cinder testified was present at this meeting, is not credited. I credit the testimony of Cinder who impressed ' me' as the more reliable witness. Fife while testifying appeared to me to be confused as to this matter; in any event Cinder's number 7 press had a "home run"-i.e., there was a break in each of three rolls of paper which were running from three reels into a folder; this resulted in a complete stoppage of production on that press. At the time. this occurred the three employees operating, the three reels involved were assisting in work at the other end of the shop. It was Ward's responsibility when a paper breakage, occurred to attempt, if possible, to determine the cause of the paper breakage." To this end, as was his custom, Ward obtained a, sample of the paper when the ; breakage occurred; in accomplishing-his task Ward,, who saw, some paper sticking in reel 8, found it necessary to rotate the number -8 reel and pull the paper down. It took Ward about 1-1/2 minutes to rotate the reel. Just as Ward was completing his task, Chapel Chairman Fife, who had observed Ward from his press, approached Ward and remonstrated with him for rotating the reel. According to Fife he had observed Ward on other, occasions tear the paper from the rollers to obtain,a sample when a break occurred-to this he had no objection; it was Ward's rotating the reel to, which he objected since- this was ordinarily unit work and it was his view that this should have been performed by a rank-and-file employee. Fife told Ward he had no business doing what he had done. Ward in turn told Fife that he had a paid-up card in his pocket and as long as he wasn't displacing anybody he would do the work that was: necessary. Ward also told Fife to get back to his press and do- his work,and in the future to "stay off his back" Ward admitted- that rotating the reel was not his "normal" duty and that he does not do it even when a breakage occurs if there is an employee present. However, according to Ward, on other occasions when there has been a paper break, he has rotated a reel if it is, necessary and there is no employee there to do it for him.,- On the following night, February 17, Fife accompanied by the assistant chapel chairmanmet with Superintendent Cinder; Ward was not present at the time but had discussed the incident with Cinder prior thereto. Fife discussed at length Ward's- working on the press the previous evening and his (Fife's) conversation about the matter- with Ward; Fife also stated he did not like the way Ward had talked to him. Fife further stated that 'he was going to file charges against Ward. Cinder advised Fife, that if Ward had engaged in conduct in violation of the contract he ought to file a grievance; that bringing union charges against Ward would not solve anything. Fife indicated there would be no grievance filed about this matter but there would be union charges filed against Ward. Thereafter, Fife, acting in his capacity as chapel chairman, charged Ward with violating article X, section 4, of the Union's bylaws;12 the charges stated: Press 7 lost three sheets. The 3 men on the press were putting a taper in unit # 6 or page one. Foreman Ward testimony seems to reflect the more likely action in -view of the work stoppage then in progress. io The facts set forth relating to what occurred that night are based on the credited testimony of Ward who impressed-me as a forthright witness., 11 A breakage may occur because of a default in, the ' paper, malfunctioning of machinery, or a human error"."where the breakage is due to a -default in the paper, the supplier is notified; if due 'to machinery, presumably that is attended to; if it is due to human error , it is Ward's duty to reprimand the employee involved. 12 Art. X, sec. 4, of the Union's bylaws'reads as follows: DETROIT NEWSPAPER PRINTING :PRESMEN'S UNION 13 109 was working on Reel7 8. I told Foreman Ward that he was not suppose [sic] to work on the press. He told me that he would do what he wanted to [sic] and it was none of my business, to get back to my press. He had been harassing Bro. H. Maynor all-night and this was Bro. Maynor's reel. At the same time Respondent` caused to be served on Ward a request to appear before the Union's executive board on Thursday, 'March 12, 1970. Ward discussed the matter with Cinder and told'Cinder he would not appear before the Union's executive board. According to Ward he did not appear before the executive board because he did not think it was his-place to go up there" since he was part of management, and that under the contract foremen- or assistant foremen are not to be fined "for carrying out the dictates of the o€fice."`During the course of their discussion Ward was told by Cinderthat, if there was a fine imposed on him by the Union, the-Company would take care of the matter. Ward gave Cinder the charges he had received. ` Later, after discussing the matter with Cinder and Ward, the Company's labor relations manager, Lawrence Wallace, addressed a^letter to Union President, Thomas Brennan, dated March 11'.Iri leis letter Wallace advised Brennan that Ward would not -appear before the executive boards that Ward was a supervisor within the meaning of Section 2(11) of the Act; 'that it was the discharge of the duties and responsibilities of his supervisory position by Ward that caused the chapel chairman to file the charges against him; and that the Company considered the filing and processing of the charges against Ward to constitute an interference with the Company's choice of representatives for the purpose of collective bargaining and the adjustment of grievances, as well as an- interference with the Company's control over such representatives. However, pursuant to the action of the executive board and the vote of the union-membership Ward'received a union notice of a $50 fine dated March 19; the notice stated only that Ward had violated article X, section 4, and ordered that the fine be paid by the end of March if Ward was to maintain good standing in the Union. On March 31, the Company- sent a'check for the amount of the fine; in an accompanying letter from Wallace to Brennan, Wallace stated that the fine was being paid under protest since it considered the conviction and fine unlawful. As indicated the fine notice did not indicate the specific conduct on which the fine was based and nothing was said to Ward (who had not appeared at the union hearing) when he was handed the fine notice. Furthermore, there was no direct testimony adduced by the Respondent atthe hearing Members of this Union who may willfully create disturbances in any pressroom-under this jurisdiction or conduct themselves in any way unbecoming a union member, shall be subject to reprimand or fine as the union sees fit. 13 The exchange between counsel is as follows: Mr. Schaub. Could I ask Mr. McLellan as a clarification of position you have just stated that it is your position that Mr. Ward was fined because he did bargaining unit work? Mr. McLellan: It is -our position that he was fined because he violated the Constitution of the Local Union. I believe the Article is X and the Section is 4. Mr. Schaub: You mentioned because he was doing bargaining unit, work. Mr. McLellan: He was doing work which was not the work of a from either Chapel Chairman Fife or President Brennan who appeared as witnesses as to the precise grounds upon which Ward was fined, nor was any union, record pertaining thereto introduced at the hearing. As noted, the charges given to Ward, as set, forth supra, recite that he rotated the reel, refer to his conversation thereafter with Fife, and allege'that Ward had harrassed employee Maynor during the shift (as to this last, there is no evidence whatsoever). I find, based on the testimony of Cinder; that Fife's complaint on February` 17 concerned principally Ward's rotation of the reel. Furthermore, no indication was ever given to Ward or the Company that this was not a basis for the fine. Moreover the statement of -position by Respondent's counsel , at - the opening of -the hearing evidenced that the gravamen of the Union's discipline was Ward's performance of unit work and his disposition of Fife's protest. Finally, when questioned specifically by General Counsel as to the basis for the fine, Respondent's counsel indicated it was because he was` doing unit work outside his classification.13'' In view of'the foregoing, I find that the reason for the -union charges and resulting fine levied against Ward -was, at least in substantial part, based on Ward's performance of work alleged to be unit work, notwithstanding the attendant circumstances„ and not as Respondent contends for the first time, on brief, that the sole reason the Union disciplined Ward was "for berating two fellow Union members, one of whom was Fife." 14 D. Contention of the Parties It is the position-of the General Counsel that Ward is a supervisor within'the meaning of Section 2(11) of the Act and that his- authority included, inter alia, serving as a management representative for the adjustment of griev- ances. Noting the Board has recognized in Local Union No. 453, Brotherhood of Painters, etc. (Syd Gough & Sons, Inc.), 183 NLRB No. 24, that Section 8(b)(IXB)4oes not reach legitimate internal union disciplinary measures including the fine of a supervisor-member (in that case the fine was for working at a particular jobsite without notice to the Union, a=notice requirement whose' only purpose was to facilitate- the Union's administration of its hiring hall and the collection of assessments), the General Counsel urges that-it is settled Board law-that a union's fine of a supervisor for performing work, the permissibility of which is disputed between the parties, has the, natural effect of depriving the, employer of the supervisor's undivided loyalty and is violative of Section 8(bxl)(B). The General Counsel - relies on San Francisco-Oakland Mailers' Union No. 18 . International Typographical Union (Northwest -person in his classification. Mr. Schaub: Fine, I am ready to proceed. 34 As noted earlier, the only record evidence pertaining to employee Maynor was that it was the reel to which Maynor was assigned that Ward rotated. Furthermore, the disposition of Fife's protest by Ward was pursuant to his standing instructions from Cinder that the chapel chairman was not to give orders to the assistant foremen and in these circumstances the chapel chairman was to be ordered back to work. Ward who had performed the disputed work took the view that in doing so he was performing his supervisory duties, and further argument with Fife could only,have caused a scene. Accordingly, to the extent,, if any, this provoked the charge and/or fine of Ward, this basis for union discipline would stand on the same footing as Ward's rotation of , the_reel; both occurred in the performance of Ward's supervisory duties. 110 DECISIONS OF NATIONAL LABOR., RELATIONS BOARD Publications, Inc.), 172 NLRB No. 252; Sheet, Metal 1. , Ward is a management representative within Workers' International Association, Local Union 49, AFL-CIO (General Metal Products, Inc.), 178 NLRB No, 24; enforced 75 LRRM 2062 (C.A. 10); Dallas Mailers Union, Local No. 143,et aL (Dow Jones Co.), 181 NLRB No. 49 Toledo Locals Nos. 151-P and-272 of the Lithographers and Photoengravers , International Union, AFL-CIO (the Toledo Blade.Company,, Inc.), 175 NLRB No. 173.1 It is Respondent's ,position on brief, that the complaint fails in its material allegation, that the Union's fine of Ward restrained or' coerced, the Employer, in the selection of a representative for the purposes of collective bargaining or the adjustment of grievances. In support thereof the Respondent urges that Ward has not served as a representative of management for the adjustment of grievances. Respondent also contends that the fine was lawful in that Ward was disciplined only "for berating two fellow union members, one of whom was Fife," a fact which I have resolved adversely to Respondent1for, the reasons set forth above. Finally, it is the Respondent's position that, as Ward was not a compelled union member, prior decisions in which the Board has found union conduct violative 'of Section 8(bXl)(B) are inapplicable to this case. E. Additional Findings, Conclusions, and Analysis Section 8(b)(1XB) Based on the facts found, I conclude that' Ward is a supervisor within Section 2(11) of the Act-15-In the first place, I note that assistant foremen are not included within the bargaining unit, under the parties' collective-bargaining agreement and, as it appears, are-not permitted generally to perform unit work, evidencing that the parties themselves considered the, assistant foremen as supervisory personnel. I also note that, while the record was not developed as to the additional responsibilities that,-stemmed therefrom, Ward, as senior assistant foreman, is in charge of the entire pressroom operation in the absence, of Superintendent Cinder and Assistant, Superintendent Hale, a situation which Cinder, testified without contradiction frequently occurred. Apart from this, however, in his capacity- as assistant foreman, Ward has - direct general supervisory authority there is undisputed testimony that Ward is responsible, for employee attendance in the pressroom (including the authority to permit employees to absent themselves from the pressroom ,during the shift), and that he also has the authority to discipline employees by issuing disciplinary warnings and "knocking,off":or suspending employees from work during the shift.16 These aspects of Ward's authority are alone, sufficient to constitute Ward a supervisor under the Act. In addition, assistant foremen, including Ward, have the authority to ,hire additional em lo ees when needed for a shift a d t i th p y n o ass gn ese The operable elements of Section 8(b)(1)(B) concern the employees to Work, both functions in, themselves are, also status occupied by the fined union member"as' well as the sufficient to constitute the assistant foremen statutory reason for the fine, to the end that union discipline will not supervisors. interfere with the statutorily reserved right of management Accordingly, before reaching the question whether Ward to -be free of any restraint or coercion in the selection of its has the additional authority and has served as a manage- representatives for collective bargaining or the adjustment ment representative for the purpose of collective bargaining of grievances. Prior Board decisions, discussed infra, have or the adjustment of grievances, I would conclude that viewed., this management right to the selection of its Ward as a substantial supervisor who is , responsible, for the representatives for this purpose to include not only those supervisors who have been so designated, but also those supervisors„ who form a class from which management might ,naturally seek its representatives for collective bargaining or the adjustment of grievances. Furthermore, in +evaluating the effects of a union-imposed fine on a supervisor-member, the Board has found unlawful union- imposed discipline which, though not directly connected with collective-bargaining or grievance adjustment repre- sentation, reasonably tends to derogate from the supervi- sor-member's complete, loyalty to-management when called on to serve as a management representative in that area. Considering the foregoing facts within this framework, I conclude, for the reasons discussed below, (1) Ward is a management representative within Section 8(b)(1)(B), and (2) that the fine imposed by the Respondent in this case comes within the prohibition of that section. 15 As defined in Sec. °2(11) of the Act, a supervisor is "any individual having authority, `in' the interest of the employer, to hire; transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them; or to adjust their grievances; or effectively to recommend such action , if in connection with the foregoing the exercise of such' authority is not of a merely routine or clerical nature, but requires the use of independent judgment." It is settled law that Sec. 2(11) is to be read in the disjunctive and the existence of any authority day-to-day performance of employees in his area is a management -representative within Section 8(bxl)(B) of the Act under decided Board-cases. As was noted by the Trial Examiner (whose decision was affirmed ,without comment by the Board) in Lithographers Local 15-P et, al. (Toledo Blade), supra: But even had Jones and Ulrich not been actually designated and serving the Blade as such grievance representative; I would find that,, in view of their status and roles as foremen with substantial supervisory authority to direct the work,of the;men on their shifts, they were such, natural and potential representatives of the Blade for the handling and settlement of grievances because of their day-to-day supervision and contacts with the employees in matters that spawn' grievances, that the Blade should be entitled to rely upon them, and therefore to select them, as its representatives in enumerated therein is sufficient to constitute the person a supervisor within the meaning of the Act; further, Sec. 2(11) does not require the exercise of the power described for all or any part of the employee's time, for it is the existence of the power which determines the classification. Ohio,Power Co. v. N.L R.B., 176 F.2d 385 (C.A. 6). - 16 It is undisputed that Ward has exercised this authority recently when employee Ramsey Younger overstayed his absence from the pressroom, an absence which Ward had authorized during the shift. DETROIT NEWSPAPER PRINTING PRESSMEN'S UNION 13- handling and settling grievances whenever the occasion might arise. For- Section 8(b)(l)(B) forbids a Union's restraining and coercing "an employer in the selection of his representatives for the purpose of collective bargaining or,the adjustment of grievances" and this protection of the, employer's right to-"selection" must be construed as protecting not only the employer's continuing reliance ,upon supervisors already selected, but his right at -any time to make and rely upon a selection of representatives from an uncoerced group of such supervisors whose loyalty to him has not been prejudiced and who he believes would be peculiarly qualified to represent him in the handling of grievances.17 In this case the reasoning of the Boardi islparticularly applicable in view of Ward's day-to-day supervision of employees in his area; in addition assistant foremen from the main pressroom level are' "normally" selected to sit In with Cinder- in grievance meetings, Ward is one of only five assistant foremen on- the night shift, and is frequently assigned- to the main pressroom level, and Ward has the same general authority as do the other assistant foremen. In these circumstances the preservation of the Company's right of "selection" among this small group of supervisors is particularly meaningful. Apart from the foregoing, which would preclude the Union's defense that it did not violate Section 8(b)(1)(B) because Ward allegedly has not served and does not have the present authority to act as an Employer representative for grievance adjustments, I find that Respondent's defense fails as a-matter of fact. Thus Cinder testified credibly that Ward "is responsible to handle any complaints or- grievances that arise from the men over the course of the night concerning his general area, the reel room;- in particular," 18 and that Ward in fact handles a "myriad" of employees' complaints that arise during the shift. The specific complaints that Cinder was certain were brought to Ward as an almost daily occurrence concerned the adjustment or repair of machinery; defective lighting, and oil on the reel room floor. These complaints for the most part were resolved by Ward by correcting the complained - of working conditions. However, as to complaints pertaining to oil on the reel room floor, these admittedly were not always resolved by Ward to the satisfaction of the employees (there have been employee threats to cease work until the complained of condition was adjusted) and required the chapel chaiman to bring the dispute to Superintendent Cinder, the first step of the 17 See also Dallas Mailers, Union, Local No. 143, at al. (Dow Jones), supra, wherein the Board specifically relied on the rationale of the Trial Examiner set forth above, stating that the expulsion of another management representative in that case was violative of Section 8(bXI)(B) in'that, "An additional effect of the expulsion, therefore is to restrain and' coerce the Company within the meaning of Section 8(bxlXB) by limiting `its right at any time to make and rely -upon a selection of representatives from an uncoerced group of such supervisors whose loyalty to [it] has not been prejudiced.' " is Cinder's instructions to the assistant foremen, that they are not to argue with the chapel chairman so as to create a scene and disrupt production, but to send the chapel chairman to him, I find did not,detract from the authority of the assistant foremen to settle grievances on the spot if they are able to do so. 19 Respondent's witnesses, in testifying that Ward handled no grievance procedure under the collective-bargaining agree- ment. Respondent -did not dispute that complaints of this nature were brought directly to Ward but argued that no grievances were ever filed concerning,, these matters (apparently referring to written,formaLgrievances) and that complaints such as these are- not grievances and, are not matters covered by the contract.18 However, I find that the matters generally brought to Ward- were the, kind of "personal grievances" or "complaints" which are ,involved in the, informal disposition of grievances that precedes resort- to more formal procedures contemplated, by the contract; "personal grievances" or "complaints" as distin- guished from more formal or "contract , grievances" nonetheless are "grievances" within the broad,meaning of that term as used in Section 9(a), 2(11), and 8(b)(1)(B) of the Act, - and their -satisfactory adjustment before they become "disputes" does not detract , from,-their classifica- tion as "grievances."20 While the specific kinds of complaints enumerated by Cinder were admittedly minor and involved the adjustment or repair of defective equipment or lighting as well as possible safety hazards, it is clear that they concerned expressions of employee dissatis- faction with working conditions and presented in some instances potential disputes regarding the continued operation of the presses by the employees until the matter was corrected. In any event, even if the foregoing types of complaints were not considered "grievances," since the authority of the assistant foremen is not limited to adjusting this type of complaint merely, but extends to any employee grievance which might arise during :the shift and can be resolved on the spot, the assistant foremen, 'who have direct contact with the employees in the exercise of their general supervisory authority, potentially,at least, may be called on to adjust other more serious grievances in areas-within their responsibility-such as attendance, work performance, and- discipline.21 See Lithographers Locals No. 15-P et al. (Toledo Blade Co., Inc.), supra. And, as noted, infra, , in determining supervisory authority it is not the exercise, of the power described for all or any part of the employee's time that is determinative, it is -the existence of that power, Ohio Power Co. v. N.L.R.B., supra. - In addition, apart from the employee complaints- Ward was authorized to handle directly on his own as an assistant foreman, Cinder also - testified credibly that assistant foremen, including _ Ward, participated with him in meetings regarding the adjustment of -grievances 'brought to him by the chapel chairman and his assistant. There is no dispute that assistant foremen - have , participated with grievances, apparently did not consider a matter a grievance even though it might concern a "dispute" between the Employer and the Company and involve "discussions" with Cinder unless an impasse was reached and a formal written grievance filed. m See Lithographers Locals No. 15-P et at. (Toledo Blade Co., Inc.), sNprq and cases cited therein; West Texas Utilities Co. v. N.L R.B., 206 F.2d 442, 446-447 (C.A.D.C.); Bethlehem Steel Co., 89i NLRB 341, 361-362, and authorities there cited.- 21 Indeed, it is some evidenceof this that in this case Chapel Chairman Fife first took the matter up with Ward rather than going directly to Cinder although it concerned an alleged impermissible ' performance of unit work. A favorable response by Ward-to--Fife's protest would have ended the matter. it was Ward's disposition of Fife's complaint or grievance which gave rise to the further discussions with Cinder and ultimately the litigation in this case. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Cinder in the, initial grievance meetings with the Union under the contract. The fact that Cinder could recall with certainty only one recent grievance meeting atwhich Ward was' present and could 'not recollect the degree.` of participation =by Ward,on that occasion does not -detract from the fact that Ward attended the meeting, along with the `,other ' assistant =foremen, as ,,a erepresentative- of management and-has the authority and responsibility t6do so at any time when {called on by Cinder. Moreover; it is undisputed°ithat-Cinder sometimes conferred with the-other assistant foreman;not present ata grievance meeting, when the problem had, not been , settled to solicit their views in order to resolve' .the problem-a situation in which I find the assistant foremen were functioning in the role of grievance adjustment representatives for management. In view of the foregoing--I am persuaded and find that AssistantForeman Ward is amanagement .representative within Section 8(b)(1)(B)of the Act. ,2-, The union fine imposed on - Ward was within the prohibition of Section 8(b)(1)(B) It having been found that the Union's fine of Ward was based at least in substantial, part psi, his,, performance of work, which in the , circumstances, both he and-the employer believed was required of him in the performance of his supervisory duties, the union fine, fell within the, prohibition of Section 8(b)(1)(B). For whether Ward's rotation, of the reel was permissible, under the contract as contended by Ward and the Company, or was impermissible as contended by Fife and, the Union,, is not material to the disposition of this- case: 'The Union had available to it the means to resolve-the dispute under the grievance, procedure of the contract, as indeed Superintendent Cinder had suggested. Instead the Union chose to impose its view by invoking internal union disciplinary procedures against Ward as a union member and thereby undermine Ward's effective representation.-of the Company's view. This the Union was not permitted to do under ,the prohibitions of Section 8(b)(1)(B). For what this involved' basically was a dispute between the -Employer and the Union concerning the work performed by Ward, rather than a dispute between the Union. and Ward, as, a union member. As noted, the Board has uniformally held unlawful union discipline directed at supervisor-members because of action directly related to matters of contract construction or the discharge,,of supervisory functions. Thus the Board in San Francisco-Oakland Mailers' Union No. 18, supra (which involved, alleged violations of the contract between the Employer and Union as well as disagreements involving contract interpretation or grievance adjustment by- the union-disciplined` supervisors), stated: Respondent's actions, including the citations, fines, and threats of citation, were designed to change the [Employer's] representatives from persons representing the view point of managementto persons responsive or subservient to- Respondent's will. In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil 22 Regarding the applicability of N L.R.B. v. Allis Chalmers Mfg Co, 388 U.S. 175, urged as a defense by the Respondent m this case, note is taken that this defense was bottomed on Respondents belated contention that ward was fined not for the performance of his supervisory duties but involved herein-union interference with an employer's control over its own representatives. [Citation omitted] 'That, Respondent may-have sought-the substitution of attitudes rather than persons, and may. have exerted its pressure upon the _ [Employer ] by indirect, rather than direct means cannot after the ultimate fact that pressure was exerted here for - the : purpose of interfering with ,,Employer's control over its representatives. Realistical- ly,,the Employer would have to, replace its foremen or face de facto nonrepresentation by them. The Board reached a similar result in Lithographers Locals 15-P et al. (Toledo Blade ^ Company, Inc.), supra, where the Union fined supervisors who worked, during a strike and assertedly performed work in violation of the contract between the parties. Again,- in Sheet Metal Workers International Association, Local 49 (General Metal Products, Inc.), -supra, the union fine was held unlawful which was imposed on the, supervisor-member for conduct not-unlike that involved here-i.e., the exercise of his.,supervisory function in performing, what the Union viewed as impermissible work albeit, in unusual circumstances. See also, Dallas Mailers' Union Local No. 143, et al. (Dow Jones Company, Inc.), supra, where the union discipline was found unlawfully imposed on a supervisor-member who as supervisor gave an , order to an employee allegedly discriminatorily and improperly motivated. Since under the Board's decisions Section 8(bXl)(B) proscribes union discipline of supervisor-members for duties ,performed on behalf of the Employer, it is clear, that Ward's rotation of the reel comes within this prohibition. Indeed, as noted, supra, the, manner in which Ward disposed of Fife's protest since it was pursuant to the standing instructions of, Superintendent Cinder would similarly be barred as a basis for union discipline. . Finally Respondent's ,contention that, because Ward was not a compelled union member under -, the collective- bargaining agreement, prior decisions of, the Board are not applicable is in error. For the Board, has. considered this contention and decided it adversely to, the Respondent. Thus in the Lithographers Local 15-P case it was,noted: it is apparent from the language of Section 8(b)(1)(B) and from the general reasoning of the Board in San Francisco Mailers„ that it is not an essential element of the-unfair labor practices, that the disciplined supervisor be a compelled union,member under a union security clause obtained by the Union. It is enough that his actual membership. has colorably-subjected him to the offensive discipline and its effect upon his employer's right to rely upon him as'a supervisor. And decisions of the Board, thereafter, have followed this view. See Dallas Mailers Union,, Local No. 143 etc. (Dow Jones Company, Inc.), supra; New Mexico District Council of Carpenters and Joiners of America United Brotherhood of Carpenters and Joiners of America, 176 NLRB No. 105; New Mexico District Council of Carpenters and Joiners,, of America, 177 NLRB No. 76.22 for "berating, two fellow union members"-a contention which Lhave resolved against the Respondent and therefore one which need not be dealt with in this case . As for the applicability of the Allis ' Chalmers case generally, when a union .member has been fined for the performance, of DETROIT NEWSPAPER PRINTING PRESSMEN'S UNION 13 113 Accordingly, I conclude that Respondent's fine of Ward was violative of Section 8(b)(1)(B)of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring in connection with the operations of the Company, described in section 1, above , have , a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. In recommending the repayment of the fine imposed on Ward, the payment of interest at 6 percent per annum will also be recommended. Isis Plumbing & Heating Co., 138 NLRB 716; Sheet Metal Workers Association, Local 49 (General Metal Products, Inc.), supra. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Detroit Free Press is an employer within the meaning of Sections 2(2) and 8(b)(1)(B) of the Act. 2. The Detroit Free Press is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union is a labor organization within the meaning of Section 2(5) and 8(b) of the Act. 4. By imposing a fine against Ward, a representative of the Company, because of conduct engaged in as a supervisor, Respondent restrained and coerced the Compa- ny in the selection and retention of its representatives for collective bargaining and the adjustment of grievances, and engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 23 ORDER Respondent, Detroit Newspaper Printing Pressmen's Union No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, its officers, agents, and representatives, shall: supervisory duties, the Board has held that the Court's reasoning therein is inapplicable, noting that the proviso to Sec. 8(b)(IXA) which was relied on in part by the Court in that case is not a part of Sec. 8(b)(1)(B), and further that the underlying relationship affected in that case was between the union and its members, rather than between the union and the employer. See, e.g., San Francisco-Oakland Mailers' Union No. 18, etc., supra. 1. Cease and desist from: (a), Restraining and coercing the Employer in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances. (b) Fining or otherwise disciplining Assistant Foreman Harry Ward, or any other assistant foreman of the Detroit Free Press, because of the performance of his employment. 2. Take the following affirmative' action which will effectuate the policies of the Act:. (a) Rescind and repay the fine levied'against Assistant Foreman Harry Ward with interest at 6 percent per annum and excise all records thereof from its files. (b) Notify Harry Ward, in writing, that it has taken the aforesaid action and that it will cease and desist from taking like action in the future. (c) Post in conspicuous places at its offices and meeting halls, and other places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 24 Copies of said notice on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of Detroit Newspaper Printing Pressmen's Union No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director signed copies of such notice for posting by the Detroit Free Press, if willing, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Decision , what steps it has taken to comply herewith.25 23 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 24 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 25 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and abide by its terms. WE WILL NOT restrain or coerce Detroit Free Press in its selection of representatives for the purpose of collective bargaining or the adjustment of grievances. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT fine or otherwise discipline Assistant Foreman Harry Ward, or any other assistant foreman of the Detroit Free Press who is a member of this labor organization, ` because of the performance of his employment. WE, 'WILL rescind and repay -the fine levied against Assistant Foreman HarryWard with interest and excise all record thereof from our files. WE WILL notify AssistantForeman Harry Ward that we have excised all record of the aforesaid fine from our files and that WE WILL NOT take such action against-him in the future. Dated , By- (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning 'this notice or compliance with its provisions, may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard,, Detroit, Michigan 48226, Telephone 313226--3200. DETROIT NEWSPAPER PRINTING PRESSMEN'S UNION No. 13, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA (Labor Organization)