Lithographers, Local 261

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 261, Lithographers and Photoengravers Interna- tional Union, AFL-CIO and Manhardt-Alexander, Inc. and Lester R. Gotthelf. Case 3-CB-1651 February 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 13, 1971, Trial Examiner John G. Gregg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order as modified.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that Local 261, Lithographers and Photoengravers International Union, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Delete from paragraph 2(c) the words "both Lester Gotthelf and Manhardt-Alexander" and substi- tute the words "Lester Gotthelf." 2. Substitute the attached notice for the Trial Ex- aminer's notice. to go to the plant in the morning to shut down the equipment. Gotthelf did so, spending approximately 2 hours at this task. Assuming that employees could lay claim to this work, I see no reason why an employer faced with such a situation cannot ask his supervisory staff to shut down the equipment if he chooses to do so rather than asking the employees to return to work for that purpose. Gotthelf's performance of this work in no way undercut or diminished the striking employees legitimate strike pressures. Accordingly, I find that the Union's expulsion of Gotthelf because of his performance of work reasona- bly constituting part of his supervisory responsibilities restrained and coerced the Employer in the selection of a representative chosen by him to settle grievances in violation of Section 8(b)(1)(B). I join in the modification of the recommended Order made by my colleagues. I also agree that Respondent should be required to read the notice to its membership, but not "to dissipate the coercive effect of the unfair labor practices on Respondent's membership," the rea- son advanced for the reading requirement by the Trial Examiner. I fail to see how the unfair labor practices coerced or restrained the membership in any particu- lar. The membership did, however, approve and ratify the discipline meted out to Gotthelf as required under the Respondent's by-laws. I believe the reading require- ment serves the educational function of informing the members that the discipline approved and ratified by them constituted an unfair labor practice. Presumably, the membership will be guided by such information when asked to ratify disciplinary action in future cases. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government MEMBER FANNING, concurring: I concur in the result herein. In my view, the work which Gotthelf, a supervisor, performed cannot prop- erly be construed as struck work within the meaning of my Wisconsin Electric2 and Illinois Bell' decisions. The Trial Examiner found without exception being taken that Alexander, Gotthelf's superior, was concerned that expensive equipment had not been taken care of to withstand a long strike. He therefore directed Gotthelf We do not adopt the Trial Examiner's remedy insofar as it requires the Respondent to make whole Manhardt-Alexander for costs incurred by Man- hardt-Alexander in providing substitute coverage for Gotthelf Such costs are too remote to be a proper subject for a make whole remedy Local Union No 2150, International Brotherhood of Electrical Work- ers, ALF-CIO (Wisconsin Electric Power Co), 192 NLRB No 16 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 (Illinois Bell Telephone Company), 192 NLRB No 17 - The National Labor Relations Board having found after a trial that we violated Federal Law by expelling Lester Gotthelf from membership in the Union because he crossed a picket line and continued to work during a strike, we hereby notify the employees of Manhardt- Alexander that: WE WILL NOT in any manner restrain or coerce Manhardt-Alexander, Inc., in the selection of rep- resentatives chosen by it for the purposes of collec- tive bargaining or the adjustment of grievances. WE WILL expunge all records or other evidence in our files of the proceedings in which Lester Gotthelf was expelled. WE WILL revoke and rescind the expulsion im- posed on Lester Gotthelf and restore him to mem- bership with all rights and benefits as though he 195 NLRB No. 80 LITHOGRAPHERS, LOCAL 261 409 had not been expelled and give written notice of such action to Gotthelf. WE WILL make whole Lester Gotthelf for finan- cial disbursement incurred in providing substitute benefits occasioned by the unlawful expulsion together with interest thereon at the rate of 6 per- cent per annum. WE WILL read this notice to our assembled membership at two consecutive regular member- ship meetings. LOCAL 261, LITHOGRAPHER AND PHOTOENGRAVERS INTERNATIONAL UNION, AFL-CIO (Labor Organization) 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, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842- 3100. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG, Trial Examiner: This case was tried before me at Buffalo, New York, on July 26, 1971, based upon an unfair labor practice charge filed by Lester R. Gotthelf on March 30, 1971, as amended on April 26 and April 29, 1971, and a complaint issued by the General Counsel on May 3, 1971. The complaint alleges in substance that Gotthelf was expelled by the Respondent Union in violation of Section 8(b)(1)(B) of the National Labor Relations Act, because he continued to work for Manhardt-Alexander during a strike or work stoppage. The Respondent Union duly filed an an- swer on May 10, 1971, denying the commission of unfair labor practices. Upon the entire record, including my observation of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Manhardt-Alexander, Inc., herein called Manhardt-Alex- ander, is, and has been at all times material herein , a corpora- tion duly organized under, and existing by virtue of, the laws of the State of New York At all times material herein, Manhardt-Alexander main- itamed its principal office and place of business at 693 Seneca Street, in the city of Buffalo, and State of New York, herein called Seneca Street plant, and is, and has been at all times material herein, engaged at said plant and location in the business of commercial color lithographic printing. The Re- spondent's Seneca Street plant is the only plant involved in this proceeding. During the past year, Manhardt-Alexander in the course and conduct of its business operations, purchased, trans- ferred, and delivered to its Seneca Street plant, ink, paper, printing plates, and other goods and materials, valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported to said plant directly from States of the United States other than the State of New York and in foreign commerce directly from foreign countries. Manhardt-Alexander, is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. The Respondent Union, Local 261, Lithographers and Photoengravers International Union, AFL-CIO is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges essentially that the Respondent Un- ion brought Gotthelf up on charges before its executive board, and then expelled Gotthelf from membership because he had continued to work for Manhardt-Alexander during a strike or work stoppage. A. The Facts There is little dispute as to the significant facts herein. The record establishes the fact that all times material herein the Respondent Union had been party to a collective-bargaining agreement with Manhardt-Alexander, the most recent of which became effective October 4, 1970, and would expire by its term on October 6, 1973, and that at all times material herein the parties had been working under this agreement, although it was not formally executed. It is also established that Gotthelf is a supervisor within the meaning of Section 2(11) of the Act and that he possessed and exercised griev- ance adjustment authority on behalf of Manhardt-Alexander. The record also establishes that on or about December 2, 1970, members of the Respondent Union employed by Man- hardt-Alexander engaged in a strike or work stoppage and engaged in picketing at the Respondent's Seneca Street plant. During the strike and picketing referred to above on Decem- ber 2, 1970, Gotthelf crossed the picket line and continued to work for Manhardt-Alexander at the Seneca Street plant. The strike lasted one day and the men returned thereafter. On or about January 22, 1971, the Respondent brought Gotthelf up on charges before its executive board and on or about February 5, 1971, the Respondent expelled Gotthelf from membership because he had crossed the picket line. Credited and uncontroverted testimony of record by Mel- vin Alexander, president of Manhardt-Alexander, and cor- roborated by credited and uncontroverted testimony of record by Lester Gotthelf establishes the fact that on the evening before the strike Alexander realized that the Com- pany had a strike on its hands because of a notice sent to all employees by the Union indicating they were to leave the premises when the shift ended. Since Alexander anticipated that the expensive equipment was going to be out of operation for a considerable length of time, certain precautions had to be taken to obviate damage Alexander called Gotthelf and told him he was not satisfied with the way the equipment had been left in the plant at the close of the day on December 1, 1970, and he advised Gotthelf that in his opinion proper precautions for an ex- tended shutdown had not been taken. Alexander instructed Gotthelf to come in the following morning and check out the 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment as a precautionary measure and that that was all he was to do. Alexander testified that on the next day, December 2, 1971, the morning of the strike he went to the office where he was told by Gotthelf that Gotthelf had cleaned up some rollers on the press that required cleaning and had cleaned out the alcohol system which was required if the presses were to be out of operation for a while and had performed an additional task consisting of an ink inventory. Gotthelf left at 11:30 a.m. that morning. When Alexander learned subsequently that Gotthelf was brought up on charges by the Union he wrote a letter dated February 2, 1971, in which he advised the Union that Got- thelf had entered the plant the morning of the strike at Alex- ander's request. "Normally we do not request any of our supervisory people to cross the picket line, it they deem it inappropriate.... The situation that prompted the request on my part was because I was not satisfied with one of the pieces of the press equipment left by our employees at the end of the day. Anticipating that it may be a strike of many days or even weeks, I asked Mr. Gotthelf to come in and check it out, in order to protect our investment. He was here only for a couple of hours and in that time he rectified the condition. " In this letter Alexander requested the Union to recon- sider its actions against Gotthelf. The record also establishes the fact that prior to his expul- sion from the Union, Gotthelf participated in union benefits and was in both the union pension fund and the company pension plan, but that subsequent to the expulsion and after the shop steward refused to accept contributions by the Com- pany on Gotthelf's behalf Gotthelf was excluded from the union pension fund and included only in the company pen- sion plan. The record also establishes the fact that subsequent to his expulsion Gotthelf was provided with certain substitute health and welfare benefits by Manhardt-Alexander. B. Analysis, Discussion, Findings, and Conclusions There is ample evidence on this record to establish the fact and I find that Gotthelf was a supervisor within the meaning of Section 2(11) of the Act and that he had authority and exercised the authority to represent Manhardt-Alexander in the adjustment of grievances. Whether or not these were rumor complaints or formal grievances is not significant in light of the Board's decision in Toledo Locals Nos. 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB No. 173. It is clear and I find that Gotthelf was expelled from mem- bership in the Union because he crossed the picket line and continued to work for Manhardt-Alexander during the strike. As the Board stated recently in Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Co.), 192 NLRB No. 16, "When the underlying dispute is between the employer and the union rather than between the union and the supervisor then the union is precluded in taking disciplinary action by Section 8(b)(1)(B). The intent is to prevent the supervisor from being placed in a position where he must decide either to support his employer and thereby risk internal union discipline or support the union and thereby jeopardize his position with the employer. To place the supervisor in such a position casts doubt both upon his loyalty to his employer and upon his effectiveness as the employer's collective bargaining and grievance adjustment representative. . . " Accordingly, since the underlying dispute herein is clearly between employer and union, the Union's expulsion of Gotthelf restrained and coerced Manhardt-Alexander in its right to continue to rely on Gotthelf to exercise his super- visory functions as well as to adjust grievances and clearly coerced Manhardt-Alexander in its choice of representatives in the handling of grievances. Dallas Mailers Union Local No. 143, et al. v. N.L.R.B., 455 F.2d 730 (C.A.D.C. June 25, 1971), and accordingly is an unfair labor practice in violation of Section 8(b)(1)(B) of the Act. Toledo Locals Nos. 15-P, et al. supra. The Respondent urges that should it be concluded herein that the expulsion of Gotthelf by the Union for crossing the picket line is unlawful as a violation of Section 8(b)(1)(B) of the Act, nevertheless this case should be distinguished on the basis that Gotthelf is a nonworking supervisor, is outside the bargaining unit, and that Section 8(b)(1)(B) is therefore not applicable. I am not persuaded by this distinction, if distinction it be. The fact that Gotthelf is a nonworking supervisor in my opinion in no way dilutes the rationale of the Board as applied in Wisconsin Electric Power Co., supra. It is the Respondent's act of driving a wedge between a supervisor clothed with grievance-adjusting authority and his employer that is inter- dicted. As for the Respondent's additional contention that because Gotthelf was allegedly not covered by the agreement it was not required to include Gotthelf in its health and welfare programs the answer is obviously that the Union nevertheless did so. It is the unlawful act of expulsion that is the direct cause of the loss of benefits to Gotthelf and the imposition of additional costs on the Employer herein in providing substitute coverage. Accordingly I find, and conclude, that by expelling Got- thelf from membership in the Union because he crossed the picket line and continued to work for Manhardt-Alexander, the Union violated Section 8(b)(1)(B) of the Act. I find it unnecessary, if not inappropriate, to explore the respective rights of the parties herein in the event the Union had or were to expel Gotthelf for lawful reasons and not as found herein in violation of Section 8(b)(1)(B) of the Act. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section II, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relationship 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. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Manhardt-Alexander is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and business activities affecting commerce within the meaning of Section 2(7) of the Act. 3. At the times material herein Lester Gotthelf has been a supervisor of the Company within the meaning of Section 2(11) of the Act and is a representative of the Company for the purposes of adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By expelling Lester Gotthelf on February 5, 1971, from membership in good standing in its organization because he crossed a picket line and continued to work during a strike or work stoppage and by continuing such expulsion in effect, the Union has committed and is committing unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. LITHOGRAPHERS , LOCAL 261 411 THE REMEDY Having found that the Respondent engaged in certain un- fair labor practices, I shall recommend an order that it cease and desist therefrom and that it take certain affirmative action as specified below, which is necessary to remedy and to remove the effects of the unfair labor practices and to effectu- ate the policies of the Act. I shall recommend an order that Respondent revoke and rescind the action of expulsion imposed on Lester Gotthelf and that it restore Gotthelf to membership with all rights and benefits as though he had not been expelled and that Gotthelf be made whole for any financial loss occasioned by the unlaw- ful expulsion, that it give written notice of such action to Lester Gotthelf. I shall also recommend an order that Re- spondent not only post the notice to members attached as an appendix hereto but that it provide additional signed copies for posting by Manhardt-Alexander (it being willing) and that an officer of the Respondent read said notice at two consecutive meetings of the assembled membership. The lat- ter action is considered necessary to dissipate the coercive effect of the unfair labor practices on the Respondent's mem- bership which approved the expulsion in a regular meeting. Finally, I shall recommend an order that the Respondent make whole Manhardt-Alexander for the cost of substitute benefits incurred by reason of the unlawful expulsion. 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:' ORDER Local 261 , Lithographers and Photoengravers Interna- tional Union, AFL-CIO, its officers , agents, and representa- tives, shall: 1. Cease and desist from in any manner restraining and coercing Manhardt-Alexander in the selection of representa- ' 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, 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 tives chosen by it for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action: (a) Expunge all records or other evidence in their files of the Respondent Union's proceedings in which Lester Got- thelf was expelled by Respondent Union. (b) Revoke and rescind the expulsion imposed on Lester Gotthelf and restore Gotthelf to membership with all rights and benefits as though he had not been expelled, and give written notice of such action to Gotthelf. (c) Make whole both Lester Gotthelf and Manhardt-Alex- ander for the cost of substitute health and welfare benefits occasioned by the unlawful expulsion together with interest thereon at 6 percent per annum. (d) Post at its office and meeting places in Buffalo copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 3, after being duly signed by Respondent 's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Forward signed copies of said notice to the Regional Director for posting by Manhardt-Alexander, it being will- ing, at all locations where notices to employees are cus- tomarily posted. (f) Read said notice to its assembled membership at two consecutive regular membership meetings. (g) Notify the Regional Director for Region 3, in writing, within 20 days from the date of receipt of this decision what steps the Respondent has taken to comply herewith.' ' 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 " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 3, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."