Buffalo Typographical Union 9

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buffalo Typographical Union No. 9 affiliated with International Typographical Union, AFL-CIO (Buffalo Courier Express Co.) and William R. Popsie. Case 3-CB-1655 March 5, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 18, 1972, Administrative Law Judge' Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, counsel for General Counsel filed exceptions and a supporting brief and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified herein. The Administrative Law Judge recommended dismissal of the complaint in its entirety. Inter aha, he found no violation of the Act in Respondent's April 5, 1971, refusal to aid William R. Popsie, the Charging Party, in securing a job, since he found that Popsie was not an employee within the meaning of the Act at the time of this refusal and thus could not be included as an employee in the unit to which Respondent owed a statutory duty of fair representa- tion. Counsel for General Counsel has excepted to this finding of the Administrative Law Judge.2 While we agree with the Administrative Law Judge's conclusion that Respondent did not violate Section 8(b)(1)(A) of the Act in its refusal to aid Popsie, we do so on a different basis than that proposed by the Administrative Law Judge.3 Respondent has a collective-bargaining contract with the Buffalo Courier Express to represent the Courier Express' composing room employees. There is no union-security clause in that contract nor a i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 In his decision, the Administrative Law Judge also rejected certain other legal theories advanced by the General Counsel In the absence of exceptions to these findings, they are adopted pro forma 3 In light of the approach we have taken to this case we need not and do not rely on the rationale set out by the Administrative Law Judge in his finding that Respondent did not violate the Act in the manner alleged here 4 Such aid might take the form of making an inquirer aware of known job opportunities, or giving him the name of the individual to contact at a location, or sometimes calling the location to inform it of the inquiry and the inquirer The combined testimony of Respondent's president and its secretary-treasurer is that this is not the normal procedure since job provision calling for an exclusive hiring hall and the Courier Express is thus free to hire employees without regard to whether they go through Respon- dent in their search for a job. However, Respondent does aid, on an informal basis, those who come to it in search of jobs.4 Popsie, who was a member of Respondent at the time of the alleged violation, had used Respondent's services in the past to secure work at various places including the Courier Express. He last left work at the Courier Express on May 31, 1970, and by a letter dated October 15, 1970, he was notified of his suspension from the International for a failure to pay his dues.5 Thereafter, on April 5, 1971, when Popsie sought Respondent's aid in securing work at the Courier Express, he was told by one of Respondent's officials that he would have to pay the back dues he owed before he could go back to work. He did not pay these dues and did not, on his own, seek employment at the Courier Express but filed the instant charge. Counsel for General Counsel argues that by its refusal to aid Popsie in his search for employment Respondent violated Section 8(b)(1)(A) of the Act. To that end, he cites for support Board decisions in Chauffeurs Union Local 923, Teamsters (Yellow Cab Company)6 and Hoisting and Portable Engineers, Local No. 4 (The Carlson Corporation).7 However, we find a crucial distinction between those cases and the instant case, which distinction is dispositive of the situation now before us. In both Yellow Cab and Carlson, in situations where, as here, there was no exclusive hiring system, the respective unions refused to give aid in locating jobs to certain members, while giving that aid to others, because those members had opposed the reelection of incumbent union officials. The Board found that the union in each case had violated Section 8(b)(1)(A) of the Act by this refusal, notwithstanding the fact that the employees might have obtained jobs without the union's assistance. In each case, however, the Board noted that the reason for the refusal was that the employees had engaged in applicants usually contact prospective employers themselves without recourse to Respondent Respondent 's president testified that if asked, however, Respondent's officials do help applicants whether or not they are union members. 5 Popsie, who paid no dues after he left the Courier Express, was suspended pursuant to art V of Respondent's laws and art IX, sec 7 of the International's bylaws which state that a member shall stand suspended when 4 months in arrears for local or International dues and assessments This suspension meant Popsie had no standing in Respondent and no entitlement to any benefits of membership 6 172 NLRB 2137 7 189 NLRB No 52, enfd 456 F 2d 242 (C A I, 1972) 202 NLRB No. 11 BUFFALO TYPOGRAPHICAL UNION 9 the Section 7 protected activity of opposing the reelection of incumbent union officials.8 Thus, the Board found the refusal in each case to be a violation of the Act since, as stated in Carlson, "the Union is obligated to offer to all of its members the same access to and use of those services which it provides members to facilitate their acquisition of employ- ment . . . and may not treat certain members disparately because they have engaged in activities which are protected by the Act. "9 (Emphasis supplied, footnote omitted.) Here, however, the reason for Respondent's refusal to assist Popsie in obtaining employment was his suspension from membership for his failure to pay his Union's lawful dues. Such an act, i.e., the failure to pay dues, is one which is nowhere protected by Section 7 of the Act. Thus the failure to aid Popsie because of this failure to pay dues cannot be a violation of Section 8(b)(1)(A) in the circumstances of this case where there is no exclusive hiring arrangement. We so find. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 8 That such is a protected activity is noted in Falstaff Brewing Corporation, 128 NLRB 294 9 189 NLRB No 52 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner : The amended complaints in this case alleged that Buffalo Typographical Union No. 9 (Union or Local 9) a subordinate union of International Typographical Union (ITU), has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq (the Act) by (a) entering into, performing , maintaining, and giving effect to a system, since August 20, 1969, i Based on a charge filed April 5, 1971, by William R Popsie, the Charging Party 2 The Union's answer raised the issue of the agency status for the Union of Secretary-Treasurer Harry Carroll and Chapel Chairman Phillip Gardner The question was not otherwise raised nor litigated The General Counsel points out a Article 1, section 5 of Respondent's bylaws impose duties on the secretary-treasurer that make him an agent of Respondent b With regard to the chapel chairman, in addition to his powers and duties enumerated in article III of Respondent's general laws he polices the provisions of the agreement and settles possible violations of it with the foreman He also polices the provisions of the Union's local bylaws and constitution and the I T U 's general laws and constitution and settles violations of them He also negotiated collective-bargaining agreements and signed the most recent one as a representative of the Union On the record as a whole it is found that Carroll and Gardner are agents of 157 whereby the Union interviewed and recommended appli- cants for employment in the composing room of the Buffalo Courier Express Co. (Publisher or Courier Express) and gave preference to members of the Union, or required applicants to be union members; (b) since on or about April 5, 1971, failing and refusing to recommend William R. Popsie for work to the Courier Express, because Popsie was not then a member of the Union though he was not required under the Act to be a member of, or pay dues to the Union; and (c) by discriminating against Popsie and other employees of the Courier Express to whom it owed a duty of representation and fair and equal treatment. Local 9 denied it committed any unfair labor practices.2 After due notice, the hearing in this case was held before me, on February 15 and 16, 1972, in Buffalo, New York. The General Counsel and the Union were represented by counsel. Popsie was present in person. All parties were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses, and argue orally. The General Counsel and the Union submitted briefs that have been fully considered. Upon the record in the case3 and from my observation of the witnesses,4 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF COURIER EXPRESS Courier Express, a New York corporation, has its main office and place of business in Buffalo, New York. It is engaged in the business of publishing a morning and Sunday newspaper. In the course of its business operations during the past year the Courier Express (a) sold and distributed products, the gross value of which exceeded $200,000, and (b) received goods valued in excess of $50,000 transported to its place of business directly from States other than New York. It is found that Courier Express is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION It is found that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. the Union under Section 2(13) of the Act 3 G C Exh 10 stipulated to be received as a posthearing exhibit has been received in evidence and so marked No objections having been raised, the General Counsel's motion to correct the transcript is granted 4 The testimony of all witnesses has been considered Popsie is found generally not creditable He was a reluctant and not particularly straightforward witness In many instances his testimony was vague, general, contradictory, and not supported by objective evidence Some disparities will be specifically mentioned In evaluating the testimony of each witness, demeanor was relied on In addition, inconsistencies and conflicting evidence were considered The absence of a statement of resolution of a conflict in specific testimony , or of an analysis of such testimony, does not mean that such did not occur See Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161 Further , to the extent that a witness is credited only in part . it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony" N L R B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2) 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues Popsie came to Buffalo from Boston in August 1969. He reported to union headquarters with proof that he was a unionjourneyman in good standing. Several times thereaf- ter the secretary-treasurer of the Union assisted Popsie in finding temporary employment with newspapers and commercial plants (lob shops) in Buffalo. At the same time, Popsie worked in fields not "at the trade," such as, a men's clothing shop. In January 1970, Popsie became a regular situation holder at the Courier Express. In February, he became delinquent in his dues and remained delinquent for 4 weeks. He testified that because he was delinquent the Union did not permit him to work for 2 weeks. Then he paid his dues and went back to work. Later that year, Popsie became delinquent again. By letter of October 15, 1970, Popsie was informed that he was suspended from the Union because his dues were in arrears. In February or March 1971,5 Popsie spoke to the union secretary-treasur- er, told him he would like to be reinstated, and return to work at the Courier Express. The secretary-treasurer referred the matter to the ITU. On April 5, 1971, the secretary-treasurer informed Popsie that the ITU had said that he could be reinstated if he paid his dues. Popsie said he was financially unable to do so but asked for permission to work and pay his back dues in weekly installments thereafter. The secretary-treasurer told him the dues would have to be paid in full first. Popsie did not seek employment at the Courier Express but filed charges with the Board upon which the complaint herein issued. Effective August 20, 1969, the Union and the Courier Express were parties to a collective-bargaining agreement which gave rise to the system of employment and maintenance of employment that the General Counsel contends is violative of the Act as set forth in the statement of the case above. To resolve this matter it will be necessary to determine (1) the actual system that was in effect for hiring employees at the Courier Express under the agreement and (2) the events in connection with that system that lead eventually to Popsie's nonemployment by the Courier Express. The facts presented herein do not show that the Union's actions pursuant to the agreement, or in dealing with Popsie violated the Act as alleged. B. The Collective-Bargaining Agreement Between Local 9 and the Courier Express Local 9 and the Courier Express executed a collective- bargaining agreement effective August 20, 1969.6 Pertinent 5 There is some conflict about this time but its resolution is not considered essential 6 The Buffalo Evening News, another Buffalo newspaper was signatory to the agreement also 7 See Appendix A, Collective Bargaining Agreement (CBA), art IX 8 See Appendix A, CBA, art X 9 See Appendix A, CBA, arts I & 11 10 See Appendix A, CBA, art I ii See Appendix A, local laws (LL), art III i2 This gives rise to competition among the regular situation holders portions of the agreement are set forth in Appendix A and are specifically referred to from time to time hereafter. The agreement provided that the general laws of the ITU not in conflict with law or the agreement shall govern relations between the parties on conditions not specifically contained in the agreement.? The agreement also provided that the Union or a Chapel within the Union may create rules that do not conflict with the law or the agreement.8 Further, the agreement contained no union-security clause. C. The Hiring System Under the Contract and at the Courier Express At least since August 20, 1969, the employment practices including the hiring of employees at the composing room of the Courier Express have been carried out pursuant to the terms of the agreement, the ITU laws, and the local laws. Under the terms of the agreement, Local 9 was the exclusive bargaining representative of a unit of the employees performing composing room work .9 Employees were journeymen and apprentices. Membership or non- membership in a labor organization was not a factor in the hiring of employees. 10 Under the Union's local laws the composing room employees at the Courier Express are designated a "Chapel" of the Union. One of their number is chosen as chapel chairman. He presides over chapel meetings and is recognized as the representative of the Union. His duties and authorities are set out in the local laws of the Union.ii These and other factors contained in the local laws are known to and recognized by the Courier Express. The employees of the composing room are divided into two categories; regular situation holders and substitutes or extras. Regular situation holders are journeymen who work a 5-day week with 2 consecutive days off (The Courier Express operates 7 days a week). The nonworking days are known as "slide days" and vary among the regular situation holder; i.e., for one worker they may occur on Monday and Tuesday, another on Friday and Saturday, and for another on Saturday and Sunday, etc.12 A regular situation holder who is ill, or has notified the foreman or chapel chairman that he is not coming in, has the right to designate his own substitute for the time absent.13 Should he fail to designate his substitute, the spot is then called a "dark situation." It is filled by lot from the substitutes or extras who "show up" 14 for employment: the substitutes draw pills to see who gets the job. Substitutes or extras were employed when the number of regular situation holders was insufficient for the anticipat- ed night's work, or to fill in for a regular situation holder who had not shown. Substitutes had priority based on either of two factors: the date the substitute first worked at based on priority for the more desirable slide days as they become open See Appendix A, CBA, art XXII Priority among regular situation holders is established according to length of service i3 See Appendix A, ITU laws, art 11. sec 10 i4 Show up or showup time is established by art XXVI of the agreement and is not included in Appendix A It is a period not exceeding 15 minutes before starting time that a prospective employee or substitute appeared at the newspaper and advised the foreman or the chapel chairman he is available for work BUFFALO TYPOGRAPHICAL UNION 9 the Courier Express; or if the substitute appeared at the Courier Express seeking work at "showup" time and did not work, he was placed on the priority list as of that date if he so requested it. The priority list was kept posted conspicuously on the bulletin board of the composing room.15 It contained the substitute' s name and date of his priority. Under ITU law a member "shall stand suspended when four months in arrears for local or International dues and assessments." Such members have no standing in the Union and are not entitled to benefits.16 The president of Local 9 testified without contradiction that the Union has no control over where a man works, and further that when a suspended member showed for work under the same circumstances as any other person, his name would have to be placed on the priority list. However, he also stated that he had no knowledge that such an event has happened in the past. The foreman of the composing room was required to be a member of the Union. The operation, authority, and control of the composing room rested exclusively on him and he was the only individual in the composing room authorized to hire or fire employees. Application for work by those who had not yet been placed on the priority list must first be made to the foreman.17 Each day the foreman determined the number of situations required to complete the day's work. This number usually exceeded the number of regular situation holders or their designated substitutes and made the hiring of substitutes necessary. The foreman determined the number to be hired and advised the chapel chairman. At the same time he would designate the classification, i.e., linotype operator, compositor, etc.18 The chapel chairman then hired the necessary employees from those who appeared at "showup" time in accordance with their priority as shown on the priority list.19 The usual situation at the Courier Express was that only union members applied for work.20 As union members the applicants were either journeymen or apprentices and qualified for the particular job.21 Should an applicant for a situation prove incompetent the foreman had the authority to bar him from further employment for 6 months.22 Usually, the applicants sought temporary employment with 15 Each Local was authorized to established a system of recording priorities See Appendix A, ITU laws, art V, sec 2 Regular situation holders had a similar priority list 16 See Appendix A, LL, art V 11 However, the chapel chairman testified that there were occasions when he put men to work without first checking with the foreman This occurred when regular situation holders called in and asked that a substitute be hired in their places The chapel chairman stated that this was done pursuant to the terms of the agreement His testimony follows Q Could you explain why it is you do not ask the Foreman, under those circumstances2 A Because the Foreman has already agreed to the contract to maintain a minimum number of situations And when a man is not there to cover the situation, if there is a substitute , he's automatically placed on it I do not have to go to the Foreman every time and say, "You want to put this fellow on this dark situation9 " it's just automatic If there's a sub there, it's filled to maintain the minimum number of situations The term of the agreement above referred to was the section of art XXIX reading as follows The minimum number of situations needed to get out the regular work of the paper shall at all times be maintained 18 See Appendix A, CBA, art IV and ITU laws art q 159 the possibility of obtaining a regular situation if one opened up. Also applicants, in the main, were members of Local 9 or those bearing a traveler's card from a local of another area.23 In any event, the applicant came to the composing room and usually presented himself to the chapel chairman requesting work. The chairman knew if work was available either through information from the foreman, or because of his experience and knowledge of the going situation. If there was work, the applicant was introduced to the foreman and identified as a linotypist or compositor. If there was none, the applicant was told no work was available and, if he requested, his name was placed on the priority list as stated above. During the introduction the foreman did not discuss the applicant's qualifications. But if the man's work had not been identified, the foreman asked if he was a compositor or a linotypist. The foreman generally concluded that the person introduced to him was a member of the ITU. If there was a job open that day the foreman told the applicant to appear at showup time to cover the job. Once a man had been introduced to the foreman and placed on the priority list, the chapel chairman used him thereafter according to his priority without further interview by, or meeting with, the foreman.24 At showup time if more substitutes appeared than there were jobs, the chapel chairman put the men to work according to their place on the priority list. When a regular situation became open, it was filled from the substitute's priority list. The foreman started the ball rolling by filling in and signing a memorandum that authorized the hiring of an employee (or a number of employees) for a certain shift, or that stated he wished to do so, specifying the slide days, the type of work, and other conditions of the particularjob. He gave this memorandum to the chapel chairman who posted a notice on the bulletin board listing the job requirements. The substitutes claiming the jobs wrote their names on the notice.25 The man among them having the greatest seniority was selected for the job. The foreman did not need to interview the applicant because the latter had already been qualified when he was placed on the list as a journeyman. No regular situation 19 Except as to "dark situations" which were chosen by lot 20 The chapel chairman testified that no nonunion men were on the substitute priority list because for at least the last 18 months no nonunion man had shown up He stated further that had a nonunion man shown he would have been placed on the Iist 21 The journeymen had gone through the apprenticeship program All apprentices when they first started training were hired by the foremen At that time they were not required to be union members After I year of employment, all apprentices became eligible for union membership 22 This has occurred to both union and nonunion employees 23 In the last 18 months, Buffalo was closed to members with travelers' cards Also in the past 18 months, the commercial shops in Buffalo were letting employees go These released employees came to the foreman of the Courier Express seeking work He referred them to the chapel chairman Some of them were later hired 24 In the past, when a foreman needed an extra he called people who had previously worked at the Courier Express to come in This had not occurred "in the last couple of years" because the trade was in a recession 25 Regular situation holders could also apply for thejob in accord with their priorities This happened if the open situation contained slide days, hours, or other working conditions better than those then held by the contending situation holder See Appendix A, CBA, art XXII 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holder started his job without the knowledge and approval of the foreman. As already stated, the usual situation was that union men applied for work and the foreman concluded that the applicant was a member of the ITU. There is uncontrovert- ed testimony in the record that "over the years" the Union has sent up to 60 nonunion employees to the newspapers and commercial plants for jobs; that the union office notified the chapel chairman, the foreman, or the proprie- tor of the shop that the nonunion applicant was going to seek employment. Three specific cases were cited where a nonmember of the ITU was told to see the foreman.26 The Union sent the men to the Courier Express. The first occurred in 1966, and the second in the latter part of 1971, and as to the third no details other than the name were given.27 In the first two instances, the Union asked that the man be given an opportunity to prove himself as a journeyman. In both instances, he was put to work, found qualified,28 and then placed on the priority list. Eventually, these two men became union members. Union officials over the years have received inquiries from members and nonmembers as to the availability of work. Most of the inquiries were over the telephone. The usual procedure was to inform the inquiries that the Union was not an employment agency; but if the officials had knowledge they told the inquirer where jobs were available. Sometimes, they told the inquirer the name of the person to contact. If a newspaper it was the chapel chairman, or in the case of job shops it was the foreman or owner of the establishment. At times, the union officials called the latter two to advise them that the applicant was on his way. The president of the Union stated that in performing these functions the Union was carrying out its obligation under the agreement to assist employers to find employees.29 D. Popsfe and Local 9 1. Popsie comes to Buffalo in financial "difficulty" In August 1969, William R. Popsie, a member in good standing of the ITU Boston Local, arrived in Buffalo in a rented automobile. He reported to the office of Local 9, and spoke to Harold A. Carroll, secretary-treasurer. Popsie told Carroll that he and his wife had just arrived and needed money to pay for the rental of the car. Carroll told 26 This was done pursuant to art IV of the agreement See Appendix A 27 The record shows that the 1971 man was introduced to the foreman by the chapel chairman It contains no information as to the 1966 man 21 Defined to be "competent in the same term as journeyman printers " 29 See Appendix A, CBA, art IJ 30 Carroll kept the bank book Popsie paid Carroll when he had money Carroll made the payments on the loan except when Popsie did so directly The loan was paid in full in August 1970 after Popsie sustained a back injury (see sec 6) His insurance coverage took care of the unpaid balance of the loans 31 Popsie's employment in Buffalo hereinafter shown consisted of a series of short periods of employment at newspapers, at commercial printing shops, and some nonprinting shops In some instances, he worked two jobs at one time Upon the record as a whole it is found that in procuring employment in the trade, Popsie solicited aid from Carroll, that Carroll on occasions contacted chapel chairmen at the newspapers or the foreman or proprietor of the job shop to determine if work were available, if there was work Carroll told Popsie to go and apply for the job, or Popsie having overheard the conversation went without being told him the Union had no fund for that purpose. He called Phillip Gardner, chapel chairman at the Courier Express, to ask him if he could arrange a personal loan of $100 for Popsie. Gardner agreed to do so and later gave Popsie the money. About 3 weeks later, Popsie told Carroll he was in financial difficulties again. The $100 had not been repaid and he needed rent money. Carroll mentioned that matter to Robert M. Russell, president of Local 9. On August 29, 1969, Russell and Carroll arranged a bank loan for Popsie for $350 by becoming responsible for its repayment. The installment payments to the bank were made by Popsie through Carroll.30 2. Popsie gets work at the Courier Express When Popsie presented himself at Local 9, he held a traveler's card from Boston. After making the arrange- ments for the $100 loan, Carroll told Popsie there were work opportunities in both newspapers. Popsie said he would like to work for the Buffalo News. Carroll called The News chapel chairman, told him that Popsie was qualified and would present himself at showup time the following morning.31 When Popsie appeared at The News, he spoke to the chapel chairman who told him about the chapel laws applicable to The News. The chairman told Popsie he could work the next 2 days for one of the regulars who was out sick. Prior to going to work the chairman introduced Popsie to the foreman and assistant foreman of the composing room. The latter then assigned Popsie to work on a Linotype machine. Popsie worked 2 days at The News but did not like it. On the third day he showed up at the Courier Express and spoke to Gardner. The latter welcomed Popsie into the Chapel at the Courier Express, explained the hiring procedure and the showup time and told Popsie that he would go to work for somebody that was sick, or the equivalent. That night Popsie went to work as a linotype operator. Gardner introduced Popsie to the foreman before he started work.32 Also, Popsie's name was placed on the priority list of the Courier Express with priority as of that day. d2 The General Counsel asserts that Gardner introduced Popsie to the foreman on this day after Popsie started to work it is found to the contrary Popsie testified that he spoke to Gardner and then went to work When asked if he talked to the foreman "prior to starting to do your Imotype work." he hesitatingly answered "I don't think so, no." On cross- examination, Popsie testified he was introduced to the foreman "after [he ] went to work " But when asked what work he had done he admitted he had done none but had been talking to the chapel chairman "about the situation" before he was introduced to the foreman . In a similar contradictory fashion Popsie testified he had filled out no forms that evening But when specific forms were named he remembered that he had filled them out "Later on in the evening " Gardner, the chapel chairman, testified that it was his custom to introduce all new employees to the foreman before they went to work and that he recalled introducing Popsie to the foreman the day Popsie first showed up at the Courier See also Popsie's testimony (fn 34) that when rehired in January 1970 he was introduced to the foreman by Gardner before going to work This finding is further supported by Popsie's testimony about his first experience at The News BUFFALO TYPOGRAPHICAL UNION 9 161 3. Popsie works in the "job shops" Popsie worked at the Courser Express for about 2 weeks. Becoming dissatisfied there, he saw Carroll again and stated he would like to work in a commercial plant. Carroll knew of a plant called Holling Press that had an operator out sick. In Popsie's presence he called them and confirmed the information. Popsie having overheard the conversation reported to Holling Press and worked there as a substitute for about 2 weeks. Popsie desired to continue working in the commercial plants. He and Carroll went through the previous process again and Popsie worked for another commercial plant called Rauch and Stoeckl. After several weeks at this plant Popsie complained to Carroll again about the work and indicated that he would like to return to the Courier Express. Carroll told him that was a matter of his own "volition."33 4. Popsie becomes a regular situation holder at Courser Express Around the end of 1969 or early January 1970, Popsie started working again as a substitute at the Courser Express.34 Some time later in January 1970, three regular situations opened up and were posted at the Courier Express. At that time, Popsie because of his priority was hired to fill one of the positions.35 5. February 1970, Popsie did not work because he was delinquent in dues By February 27, 1970, Popsie was 4 weeks delinquent in union dues according to records kept by the chapel chairman.36 Popsie admitted that he was aware at this time of article XI I, section 8 of the Union's local laws providing in part: 37 In all offices where there is a Chapel Chairman, dues are payable to the Chapel Chairman each week, and any member refusing or neglecting to pay shall be considered in bad standing and not entitled to work. During the 4-week period Chapel Chairman Gardner had asked Popsie weekly for his dues. Popsie did not pay them. On the night of February 27, Popsie appeared for work and held a conversation with Gardner about his delinquency As a result, he did not work that night. On February 28, 1970,. he spoke to Carroll twice at the union office about his delinquency. Whatever the cause, Popsie did not work the rest of that week nor the following week.38 The record does not clearly show the conversations that occurred between Gardner and Popsie and Carroll and Popsie. Popsie testified that when he showed for work on February 27 he was told by Gardner that he would have to pay his dues. "And if I did not pay my dues I wouldn't be able to work. I didn't have the money at the time. And I went home that night and was off, I believe for about two weeks, until I paid my dues." The following day, according to Popsie, he spoke to Carroll over the telephone. Carroll told him he "would have to get up on [his] dues and [he] would have to pay them before [he] would be allowed to work, again." Then he saw Carroll at the union office and Carroll told him that the payment of dues was Popsie's problem; "that they would not let me go to work until I did, in fact pay my dues." Gardner in effect denied that he told Popsie that the latter wouldn't be able to work. He testified: Q. Have you ever instructed any person who was not a member in good standing, to your knowledge, to go home? A. No, I have not. Q. Does that include Mr. William Popsie? A. That includes Mr. William Popsie. Carroll testified that he had had conversations with Popsie about his dues delinquencies . He denied that in any of those conversations he advised Popsie "that he might now go back to work" having paid his dues, or indicated to Popsie that Popsie would be prevented from working "if he did not pay dues." Carroll did admit that he reminded Popsie of his obligation not to work stemming from the nonpayment of dues arising as a member of ITU. Carroll testified: Q. Did you, in the course of all your conversations with Mr. Popsie on any occasion, indicate in any fashion that you or any other official of the Local would attempt to prevent him from working if he did not pay his dues? A. Not in so many words, no, sir. I would not do that. 33 In the latter half of 1969, Popsie returned to Boston for about 2 weeks because of his father's death Popsie also testified that between August 1969 and January 1970 he worked for the Courser Express at least three additional times as a substitute, that the hirings were according to priority, or as a result of a "dark situation " Popsie did not specify the dates of employment, nor the circumstances giving rise to his application at the newspaper 34 Popsie testified that on his reappearance in January, before going to work, he was introduced to and spoke to the foreman It appears that this testimony of Popsie's, whether factual or not, reinforces the Union's contention that new applicants are first introduced to the foreman In January 1970, Popsfe had established his priority, the need to meet the foreman no longer existed, priority substitutes customarily did not first meet the foreman , and as shown in the preceding footnote, Popsie had been employed at the Courier Express three times after his original employment 35 According to Popsie, the notice on the bulletin board through which he got his regular situation with the Courier Express arose in the following manner The foreman told the chapel chairman that three jobs were open, specifying the hours and the slide days The chairman drafted a notice listing the information and the names of the persons on the priority list who by reason of their priority standing would fill the job Popsie 's name was one Popsie understood that the job was his unless a person with a higher priority claimed it 36 A portion of these records was used by the Courier Express for payroll purposes 37 See Appendix A 35 The chapel chairman's records show that Popsie did not work for the period from February 27 through March 10, that March II and 12 were his slide days and he returned to work on March 13 The records also show (1) that during the first week . Popsie for 4 days exercised the right of a regular situation holder to have a substitute fill in for him for one night, that on the fifth day he took a personal holiday for which he was paid under the agreement , (2) that during the second week, Popsie exercised his right as to substitutes for 3 days and for the other 2 days reported in sick However, the dues record for the second week shows him sick for the entire week with no dues charged to him The foregoing items are included to show that they do not support Popsie's contention that he stayed home the 2 weeks because the Union told him he should not work 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you do it in some covert or not clear fashion? A. No, only to understand that Mr. Popsie, knew the law Just as well as I did. Q. Are you referring to the I.T.U.'s Internal Law? A. Right. Q. Is there an obligation on the part of a member of the ITU not to work when his dues are in arrears? A. Well, the obligation begins with the individual member to take care of his own dues and see that they are paid and that he is in good standing at all time. That's his personal obligation as a member. Q. Did you remind him of that obligation as a member on an occasion? A. That's right. Q. Did you ever indicate that you would take steps to prevent him from working when you reminded him of his obligation as a member? A. No, I would not do that. It was not necessary. Popsie testified further that he knew the chapel chairman had no authority to fire him and that that authority was reserved to the foremen. He stated he did not talk to the foreman about working while delinquent in that he knew the chapel chairman was the union representative and if the latter told Popsie he couldn't work, that was a fact and he couldn't work. Popsie then clarified his position and stated that he went home because he "was a good Union member" and "took the advice 39 of [the] Chapel Chairman who was [his] representative." As stated, the foregoing testimony does not reveal with any exactitude the conversation that occurred between Popsie and Gardner or between Popsie and Carroll. The conflict in the testimony, the statements by Popsie that they were his "Union representatives" and that he was taking "advice," plus his general lack of credibility militate against a finding that he was told "he couldn't work because he was behind in his dues" as alleged by the General Counsel.40 It is thus concluded that neither Gardner nor Carroll used language equivalent to an order forbidding Popsie to work.41 The evidence shows that no threats or other form of coercion by the union representa- tives occurred during the conversations 42 Further, the evidence shows that Popsie was aware of article I of the agreement (see Appendix A) that stated that membership or nonmembership in the Union shall not be a factor in the employment of employees. The record contains no evidence that the Courier Express or its agents or 39 Emphasis supplied 40 A more reasonable conclusion, if one were to be drawn, would be that Popsie was reminded of his obligation as a union member that a delinquent member was supposed not to work 41 Testimony of other journeymen employed at Courier Express as well as the chairman's records showed otherjourneymen delinquent as much as 4 weeks in dues who had not stopped working, nor had any been told that "if they didn't make payments they would have to stop working" It is also significant that when Popsie paid his arrears 2 weeks later and started to work again he did not pay up entirely, but remained I week in arrears See sec 6 below 41 These 1970 conversations are not alleged in the complaint as violations of the Act 43 March 1 I and 12 were Popsie's slide days 44 According to Gardner's credited testimony "NOT AT TRADE" is a dues category in which ITU members are placed who are not working at the business or trade of the Union Such members have no benefits or priorities representatives were involved in this episode or were aware of its occurrence. 6. Popsie decides to leave the Courier Express After 2 weeks of absence from the job, Popsie paid 3 weeks' dues, leaving I week's dues unpaid. He returned to work on March 1343 and continued with the Courier Express until May 12, 1970, when according to Popsie he hurt his back and went on sick leave. He worked May 29 and 30. On May 30 he told Gardner he wished to be relieved of his situation with the Courier Express because he wanted vacation pay; that that was the only way he could get it, and by resigning he could get out of his financial difficulties. At the same time he told Gardner he wished to go "NOT AT TRADE."44 Gardner tried unsuccessfully to talk him out of these actions. Popsie did not discuss any of this matter with the foreman.45 Popsie paid his union dues for May 29 and 30, the 2 days he worked.46 7. Popsie is suspended from the Union for nonpayment of dues Commencing with May 31, 1970, Popsie ceased paying dues. Gardner informed Carroll of Popsie's determination to go "NOT AT TRADE" and the records of the Union show him listed as a member N.A.T. from the beginning of June 1970.47 Commencing in March 1970, Popsie had been working for Kleinhans , a men's clothing store in Buffalo. He was not working for Kleinhans when he resigned from the Courier Express because he was out "on a sick disability." Popsie admitted that when he left the Courier Express to go, "Not at Trade," he knew that a person classified "Not at Trade" could not acquire any priority in a union shop because of the operation of union law; and further that by so doing he lost his priority at the Courier Express. In August 1970 Popsie underwent a back operation. When he left the hospital he told Carroll and Russell he was leaving for Boston and would like to speak to them on his return to Buffalo. On September 27, 1970, he returned to Buffalo and informed Gardner that his back was still bothering him.48 By letter dated October 15, 1970, Popsie was informed but pay dues set by the International in order to maintain union membership See Appendix A union local laws art X11, sec 3 45 Popsie stated that at Gardner's request he signed a slip stating he "was going to resign" and gave it to Gardner Gardner creditably denied the event occurred and stated further that no such slip was ever required of any employee at the Courier Express The record shows the Popsie 's resignation was voluntary and for his own personal reasons 46 According to union law, Popsie was not required to pay local dues while sick but was required to pay a small monthly amount to the International 47 The actual date that Popsie went N A T is not essential The facts as hereinafter set forth show that Popsie was actually N A T when suspended by the Union and when he later requested reinstatement , that whatever actions he took to gain union reinstatement were based on the facts that he had been N A T and he had been suspended for nonpayment of dues 48 Shortly after this date, he resumed his job at Kleinhans , the men's clothing store BUFFALO TYPOGRAPHICAL UNION 9 163 that he was suspended from the Union for nonpayment of dues.49 When Popsie talked to Carroll about the matter, the latter told him there was nothing he could do but that Popsie should pay his dues. The letter contained the following paragraphs: If reinstatement of continuous membership is to be accomplished, within the required time allowed under ITU law, the total amount, plus $25.00 reinstatement fee, would be due and payable at time of reinstatement. Each continuing month of delinquency would be calculated at the N.A.T. Classification. In accordance with ITU law a suspended member can be reinstated within 12 months after the date of suspension, if he has not worked at the printing trade within the jurisdiction of the local union during the period of suspension and has not been guilty of conduct unbecoming a union member, upon the payment of all dues owing and a reinstatement fee of $25.00. Popsie was aware of the contents of this letter. He testified that he had read the last paragraph; knew that the source of the letter was ITU law; and felt bound by and agreed with the ITU law except under circumstances that he neither defined or stated. The record contains no further occurrence until Febru- ary II or 12,197 1, when Popsie again spoke to Carroll.50He told Carroll he would like to be reinstated and go back to work at the Courier Express.51 Carroll told him he would do his best but that the matter would have to be submitted to the International Union for their approval. First, however, Popsie would have to pay sick dues of $14 for the time he was out, and supply a doctor's certificate as well. About 2 days afterward Popsie sent a $14 money order to Carroll. 8. Popsie desires to work at Courier Express again but does not apply for work there Some time later, Popsie again checked with Carroll. The latter told him he had not yet received the doctor's certificate. On March 16, 1971, Carroll called Popsie to tell him that the matter had been submitted to the Internation- al but that he had heard nothing yet. On April 5, 1971, Carroll called Popsie and told him the International had stated that Popsie would have to pay N.A.T. dues of $208 in addition to the $14 in order to be reinstated. Also that the International would not consider Popsie sick for as long as he had claimed. Popsie became angry and hung up on Carroll. Later that same day, Popsie spoke to Carroll at the union office.52 He asked Carroll if arrangement could be made that he go back to work and pay the $208 arrears 49 The letter mentioned that Popsie owed $144 92 "Not at Trade" dues for August, September, and October 50 There is some question about this date, as testified to by Popsie Other evidence indicates the conversation took place in March Si Popsie testified that "it was understood that if I did get reinstated, I would go back to the Courier Express" The language expressing this inderstanding does not appear in the record 52 During this conversation, a letter from the international to Local 9 was mentioned At Popsie's request Carroll sent him a copy The letter was fated March 30, 1971, and stated that Popsie could be classified sick for the nonths of July through October 1970 but that "he must pay NAT assessments for the month of suspension, November 1970 through March 1971" in dues on a weekly basis. According to Popsie, Carroll told him he would have to pay it in full before he was allowed to go back to work. Carroll denied that he ever told Popsie that "he would have to pay up his back dues or else he could not go to work."53 Carroll did admit that while talking to Popsie about reinstatement, Popsie expressed the wish to return to the Courier Express. Carroll was unable to recall what was said or what he responded. As with the conversation in May 1970, the substance of the conversation between Popsie and Carroll is in doubt. There appears no question that Popsie made known his desire to work at the Courier Express if he could get reinstated. There also appears no question based on this record that if Popsie paid up his delinquencies and work were available at the Courier Express, he could work there. It may be inferred that he was told this. It also may be inferred that in substance he was told or if he was not told it was fully implied that if he didn't pay up his dues, the possibilities of his 'working at the Courier Express were zero. It is so found. At no time after April 5, 1971, did Popsie apply for work at the Courier Express. Popsie stated that he did not go to the Courier Express to look for work because he didn't think he would get any. He stated that this conclusion was based on his past experience as a union member in Buffalo and Boston, that "once the secretary-treasurer says you can't go to work . . . the chairman . . . will just tell you the same thing, and you won't go back to work." 54 There is no evidence that he thereafter applied for any job in the trade through, or not through, the Union. The record contains no evidence to show that the Union told Popsie to apply on his own to Couner Express for a job or that the Union requested Courier Express (a) not to hire or (b) to discharge Popsie. Other than contained above the record contains no evidence to show communication between the Union and Courier Express or between their respective representatives or agents with regard to Popsie. Conclusions The General Counsel contends that the Union violated Section 8(b)(2) of the Act (1) when it caused Courier Express not to employ Popsie in April 1971 based on union membership considerations by requiring him to pay the dues owed before he could return to work in circumstances where the Union could effectively bar his employment under the existing hiring practices, and (2) because Couner 53 Russell testified he was in his own room adjacent to Carroll's and overheard some of the conversation between Carroll and Popsie through an open door He stated he heard no conversation about "Popsie's return to work," or "a requirement that Mr Popsie pay his dues before he returns to work " The circumstances under which Russell overheard the conversation, and his admission that he heard only part of it, give Russell's testimony little corroborative weight 54 Popsie also stated, "that all my jobs were done through the Union office by Mr Carroll [who], more or less, allowed me to go to work or not in any particular job" This statement refers to the previous conversations with Carroll set forth herein in which Carroll assisted Popsie in getting work in Buffalo 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Express and the Union had established in practice an unpnvileged hiring system granting membership privi- lege;55 and violated Section 8(b)(1)(A) in that the Union was discriminatory as to unit employees to whom Respon- dent owes a 9(a) duty of representation and also a duty of equal treatment when it undertakes to give aid in obtaining employment. I find that none of these contentions are supported by the facts found above. Accordingly, the complaint should be dismissed in its entirety. The General Counsel contends that the Union's action in April 1971 violated the Act because it stemmed from the system of hiring and employment existent at the Courier Express prior to that time. Accordingly, the system and its effect will be discussed first. 1. The system of hiring and employment at the Courier Express was not shown to grant membership privilege The facts giving rise to the system and those showing the operation of the system have been set out in considerable detail above. There is no need to repeat them here. As detailed it is reasonably clear that the General Counsel has not shown one instance where improper preference has been given to a union member over a nonunion member or where the Union has caused or attempted to cause the Courier Express to discriminate in favor of a union member as opposed to a nonunion member. Other than the Popsie episode in March 1970, the General Counsel has made no reference to any specific instance. And as to the March 1970 episode, the General Counsel has relied on a set of facts that have not been established in the record. The General Counsel erroneously asserts that the March 1970 episode shows that union action effectively prevented Popsie from working. As found herein, the March 1970 episode shows that Popsie understood that as a union member he was obligated to pay his dues weekly and failing that payment he was not entitled to work. By his own admission, Popsie did not work56 because as a good union member he accepted the advice of the union officials57 that he should not do so. The record does not show why Popsie was chosen in February 1970 to be the member spoken to about his delinquent dues.58 The fact is that he was. But in doing so, the record is clear that the Union did not use pressure, coercion, or threats to cause Popsie to refrain from working. Nor is there any evidence to any communication between the Union and Courier 55 See In 59 for the General Counsel's explanation of "unprivileged hiring system " 56 Whether only for the night of February 27, 1970, or the remainder of the 2-week period is of no significance to this proceeding 51 Whether it was the advice of Gardner and Carroll or only one of them is also not significant here 58 As shown above, other union members were also several weeks delinquent 59 The General Counsel in setting forth the facts of the hiring system has not shown nor alleged that any acts occurred that were violative of the Act except for those involving Popsie He argues that the system might be used to cause discrimination In explaining what he called "an unprivileged hiring system" the General Counsel stated As pointed out in the Statement, members of Respondent seeking employment go to Respondent's representative, the chapel chairman, who introduces them to the foreman who is also a member of Express or between Popsie and Courier Express concerning Popsie's employment at that time. The record clearly shows that Popsie refrained from work voluntarily. Accordingly, the March 1970 episode does not demonstrate that the system of hiring at the Courier Express gave preference to union members or was in any way improper under the Act. The General Counsel contends further that the chapel chairman could carry out the system in such a fashion that it might be declared discriminatory under the Act.59 But the Act deals with actions and not speculations or potentials. Note the language of the Supreme Court in Local 357, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America [Los Angeles- Seattle Motor Express] v. N.L.R B., 365 U.S. 667, 676, where, in considering the effect of a collective -bargaining agreement, the Court said: "There is no evidence it was in fact used unlawfully. We cannot assume that a Union conducts its operations in violation of law or that the parties to this contract did not intend to adhere to its express language. Yet we would have to make those assumptions to agree with the Board that it is reasonable to infer that the Union will act discriminately." See also N.L R.B. v. News Syndicate Co., Inc., 365 U.S. 695, 699, dealing with a contract that vested control over employ- ment in union foremen and was considered a delegation of exclusive hiring to the Union, where the Court stated, "we will not assume that unions and employers will violate the federal law, favoring discrimination in favor of union members against the clear command of this Act of Congress." There is no evidence to show that the chapel chairman had barred from employment union members who were delinquent in dues. As already shown union members including Popsie continued working while delin- quent. No union rule or provision of the agreement forbade a delinquent member from working. The record shows that Popsie was unwilling to test the issue of whether as a suspended union member the Courier Express would employ him. He failed to apply for work either to the chapel chairman or the foreman 60 The failure of Popsie to apply for employment leaves open the question of whether the chairman would or would not have placed him on the priority list or put him to work61 Under these circum- stances it cannot be considered that the chairman effectively barred or attempted to bar Popsie's employment with the Courier Express. Cf. Carpenters Local No. 1440 (The Kroger Company), 186 NLRB No. 146. Respondent Thus, an individual has, at least, a greater chance to being hired if he is a member of Respondent because he has special access to the foreman through the chapel chairman and may be hired directly through the chapel chairman Indeed, the chapel chairman has never introduced a nonmember to the foreman and the only evidence of the foreman's hiring nonmembers was on two occasions pursuant to specific requests by officers of Respondent Moreover, even after an applicant is introduced to the foreman , the foreman merely states how many jobs are available The applicant must appear at the showup where it is determined by the chapel chairman who shall be hired pursuant to the priority list 60 As already stated, he knew he could apply directly to the foreman for employment 6i Popsie had already qualified as a journeyman by reason of his previous employment BUFFALO TYPOGRAPHICAL UNION 9 165 2. The Union did not cause or attempt to cause Courier Express not to employ Popsie The General Counsel does not allege that the agreement between the Union and Courier Express is illegal under the Act. Nor does the General Counsel allege that the Union operated an exclusive hiring hall. The General Counsel contends that through the Union's role in the hiring process it could and did effectively bar Popsie's return to the Courier Express and thereby caused the Courier Express not to employ Popsie. The short answer to this contention is that it is incorrect. Popsie testified that he knew in April 1971 that he could apply for employment to the Courier Express with or without the consent of the Union even though he was a suspended member of the Union. He chose not to do so because of his belief that he would not be employed by Courier Express. But a violation of the Act is a factual matter and cannot be based on an individual's speculation about a future occurrence whether the belief be erroneous or valid. As shown, there is no evidence that the Union communicated with Courier Express about Popsie; Courier Express had no knowledge of the events that were going on; and Courier Express was never given an opportunity to refuse to hire Popsie. Under these circumstances, the Union cannot be found to have initiated action that caused Courier Express not to hire him. Nor does the record show that had Popsie gone to Courier Express he would have been doing a futile thing. Popsie knew and the record shows that employment at Courier Express did not depend on union membership. The record clearly shows that had a nonunion member "showed up" for employment he was required to be placed on the priority list in accordance with the priority system. Courier Express had employed nonunion men in the past few years. It is true that no nonunion men had shaped Courier Express within the past 18 months but there is no showing that their absence was in any way due to the Union or its actions but rather to the economic conditions in Buffalo. The record also shows that a number of employees who were union members continued working while they were in arrears of dues. Popsie himself went back to work when he remained 1 week in arrears after paying 3 out of 4 weeks of arrears. Finally, Popsie and the General Counsel lay special emphasis on the precedential value of the March 1970 events. But that episode gives them no support. It has been found that in March 1970, the Union did not tell Popsie not to work and to go home. Popsie voluntarily did not work because he was a good union member and was adhering to union rules that when in arrears he was not "entitled to work." Thus, as of April 5, 1971, there is nothing in the record to' show that the Union had taken any action that would prevent Popsie from being hired, or any policy of the Courier Express in effect based on the Union's agreement or on union actions that would have effectively blocked Popsie's employment. It seems reasonable under the circumstances to conclude that had Popsie applied for a job at Courier Express he would not have done a futile act. The foregoing shows clearly that the Union did not deal with Courier Express in any manner with regard to the hiring or employment of Popsie. It also shows that Courier Express had no knowledge of Popsie's relationship with the Union as it affected his employment with the newspaper. It is now well settled that "in order for union conduct to violate Section 8(b)(2), there must be some direct approach to the employer or some conduct aimed at him for the purpose of causing the employer to discriminate .. . through his hiring practices or otherwise." Don Glasser, et al. v. N.L.R.B., 395 F.2d 401, 406 (C.A. 2, 1968), affg. 165 NLRB 798 (1967); Joe Carroll Orchestras, 176 NLRB 365 (1969); United Brotherhood of Carpenters & Joiners of America, Local Union No. 151 [G. E. Johnson Construction Co.], 188 NLRB No. 115 (1971), affd. 79 LRRM 2769 (C.A. 10, 1972); Iron Workers Local 433, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Riverside Steel Construction), 169 NLRB 667 (1968); Sea-Land Service, Inc., 189 NLRB No. 3; Rupp Equipment, 112 NLRB 1315, 1317. 3. Respondent did not breach its duty of equal treatment to unit employees The General Counsel points out that Popsie was employed at the Courier Express composing room "from August, 1969 to January, 1970, among otherjobs, and from January, 1970 to May, 1970 as a permanent employee." As shown the Union represented a unit of composing room employees at the Courier. The General Counsel contends that in April 1971 the Union failed in its duty to Popsie since it then had "available to it and [was] aware of job opportunities, [and] cannot lawfully exclude nonmember unit employees for job opportunities." When the Union did not "suggest to Popsie that he could seek employment through the Courier's foreman or other representative," the Union violated Section 8(b)(1)(A) of the Act. The short answer to the General Counsel's contention is that Popsie in April 1971 was not a member of the unit represented by the Union. Thus, at that time, the Union owed no duty to him as his bargaining representative.62 Popsie resigned from the Courier Express employ on May 31. By doing so he not only ceased being the employee of the newspaper but he also ceased being a member of the unit represented by the Union. As of that time forward the Union owed him as a nonunit member no duty as a collective-bargaining representative. The ques- tion then arises did he become an employee within the unit when he applied for reinstatement into the Union and told Carroll he would like to work for the Courier Express. The answer to that question is also in the negative. There is authority for the position that an applicant for employment to an employer is an "employee" protected by the Act. Phelps Dodge Corp. v. N.L.R B., 313 U.S. 177. But the record here does not show that Popsie was such an "employee." The record shows he did not apply for employment to an employer. True he wished to be 62 It is unnecessary to deal here with the Union's obligation to Popsie as available may arise as a result of union membership but absent other a union member, particularly since Popsie was a member suspended for information it does not arise from the fact that the Union is the collective- failure to pay dues The obligation to inform an inquirer where jobs are bargaining representative of the unit of Courier Express employees 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by the Courier Express but he never applied to the newspaper for employment. He did make his wishes known to the Union who did not possess the authority to hire him. This was known to him, and set forth in the agreement between the Union and the Courier Express. The General Counsel, as already stated, asserts that no exclusive hiring hall arrangement existed. The record does not show that Courier Express in any way delegated authority to hire to the Union. Under these circumstances, application for employment to the Union cannot give rise to an employer-employee situation vis-a-vis the Courier Express. It seems reasonable to conclude that absent the latter possibility, Popsie was not an applicant for employ- ment in the sense contemplated by the Board and the Court as set forth in the Phelps Dodge case, supra. More reasonably the relationship of Popsie when he applied to the Union is no different than that stated by the Union; i.e., a worker applying to an employment agency for a job. As an applicant for employment but not an "employee" within the meaning of the Act, Popsie cannot be included as an "employee" within the unit to whom the Union owes the statutory obligation of fair representation in its capacity of collective-bargaining representative. Note the discussion of "employee" in Pittsburgh Plate Glass, 177 NLRB 911, enforcement denied 427 F.2d 936 (C.A. 6, 1970), of f d. 404 U.S. 157. Upon the foregoing findings of fact and on the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Courier Express is, and at all times material herein has been an employer within the meaning of Section 2(2) of the Act, and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence fails to show that the Union has violated Section 8(b)(1)(A) or 8(b)(2) as alleged in the complaint. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I hereby issue the following recommended: 63 ORDER The complaint be, and hereby is, dismissed in its entirety. 63 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 APPENDIX A Articles of the Collective Bargaining Agreement (CBA) exclusive bargaining representative of all employes covered by this agreement. The words "employe" and "employes" when used in this agreement apply to journeymen and apprentices. Membership or non-membership in a labor organization shall not be a factor in the hiring of any journeymen or apprentice or in the tenure or any condition of his employment or advancement therein. Article II JURISDICTION Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including all composing room work and includes classifications such as: .. . The Union will at all times use every means within its power to provide upon request a sufficient number of employees necessary to perform all work within the jurisdiction of the Union, as specified by this agreement. * * s s s Article IV EMPLOYMENT AND PRIORITY The operation, authority and control of each composing room shall be vested exclusively in the Office through its representative, the foreman, who shall be a member of the Union. Composing room employees shall be employed, receive orders from, laid off and discharged only by the foreman. In the absence of the foreman he shall designate who will be the foreman during his absence; provided, that nothing in this section shall interfere with instructions being given by others for the proper execution of a job, when same is deemed necessary by the foreman. Application for work by others than those holding priority rights in the composing room must be made only to the foreman. Provided, that nothing in this section shall be construed to conflict with the rights of journeymen to select competent substitutes without consultation or approval of the foreman. In hiring new journeymen employes the foreman may not exclude as candidates for employment any individuals who have established competency as journeymen, but must recognize priority as follows: First: Regular situation holders. Second: Subject to established hiring practices, other journeymen who have worked in the composing room. Third: Individuals concerning whose competency as journeymen the foremen has no reason for doubt or persons who have registered for employment after having passed the examination hereinbefore mentioned. Article IX s C I. T. U. LAWS Article I The Publishers hereby recognize the Union as the Both parties agree that their respective rights and obligations under this agreement will have been accorded by the performance and fulfillment of the terms and BUFFALO TYPOGRAPHICAL UNION 9 conditions thereof and that the complete obligation to the other is expressed herein. The General Laws of the International Typographical Union in effect at the time of the signing of this agreement, not in conflict with law or this agreement, shall govern relations between the parties on conditions not specifically enumerated herein. Article X Nothing contained herein shall be construed to interfere in any way with the creation or operation of any rules not in conflict with law or this agreement by any chapel or by the Union for the conduct of its own affairs. Article XXII NEW SHIFTS AND SLIDE DAYS 167 specified periods in severe unemployment emergencies, with the consent of the Executive Council, may establish provisions for equitable distribution of subbing among eligible substitutes. Article V-Priority Section 1. Persons considered capable as substitutes by foremen shall be deemed competent to fill regular situations, and the substitute oldest in continuous service shall have prior right in the filling of the first vacancy Sec. 2. Subordinate unions shall establish a system for registering and recording priority standing of journeymen in all chapels, which shall be conspicuously posted or kept in a place within the chapel accessible to journeymen at all times. The priority standing of ajourneyman shall stand as recorded. Section 1. Employes may claim new shifts, new starting times and new slide days in accordance with their priority standing. Section 2. The foreman shall designate the particular days or nights constituting a situation. Provided, all changes of regular slide days or nights of any regular situation shall be by mutual consent between the foreman and the employe affected whenever the exigencies of the case may require. If such changes cannot be arranged by mutual consent between the foreman and employee affected, then the men competent to perform the work must be transferred according to priority standing ... . * * Article XXX * * All office work must be given out in priority order. Articles of the General Laws of the International Typographical Union (ITU Laws) Article II-Foreman Section 1. None but journeymen or apprentices may be employed to perform all work within the jurisdiction of the union. The foreman shall be a journeyman. Sec. 2. The foreman is the only recognized authority. Assistants may be designated to direct the work, but only the foreman may employ and discharge. In filling vacancies the foreman shall be governed by the provisions of article v, general laws. Sec. TO. A foreman shall not designate any particular day, nor how many days a journeyman shall work in any one week: Provided, The journeyman must engage a substitute when absent. Any journeyman covering a situation is entitled to and may employ in his stead whenever so disposed any competent journeyman without consultation or approval of the foreman: Provided, Local unions may adopt laws requiring the employment of substitutes in the order of their priority standing; or for Buffalo Typographical Union Local Laws (LL) Article III Chapel Chairmen Section 1. The Chapel Chairman shall be recognized as the representative of the Union in the Chapel over which he presides and it shall be his duty to report to the President of the local Union any violation of Union law or provisions of the contract. Failure to perform the duties of the office shall render a Chapel Chairman liable to such penalty as the local Union may apply in accordance with the laws governing charges and trials. Powers and Duties of Chairman Sec. 2. The Chairman shall: Represent the Union in his respective office, enforcing all Chapel rules and regulations and the laws of this Union, reporting to the Executive Committee any infringement by employers or journeymen; Notify the chairman of the Executive Committee by written statement , of cases requiring action; Post notice of meetings; Refuse permission to work to all members neglecting to pay dues weekly; Report to the Membership and Apprentice Committee of the Union upon the competency of all applicants for membership working by permission and furnish such information in writing relating thereto of which he may be cognizant; Furnish the Membership and Apprentice Committee of the Union with date on which apprentices begin work; Preside at all meetings of the Chapel; File with the Executive Committee a written report of all decisions rendered by him during the month which were appealed to the Chapel, and the action of the Chapel on the appeal; Report on blanks provided by the Union, an itemized account of all money collected on behalf of the Union; the names (alphabetically arranged) and amount of earnings; 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD See that all overtime is conspicuously posted; arrears for local or International dues and assessments. Notify the Secretary-Treasurer of the Union immediately Members suspended for nonpayment of dues shall have no after his election or appointment to the office of Chair- standing in the organization and shall not be entitled to man; benefits. Collect the dues and assessments of the members of the * * s s Union employed in his Chapel weekly, turning same over to the Secretary-Treasurer of the Union and taking proper receipt for same. Chairman shall post on Chapel bulletin board a monthly duplicate of dues and assessments paid by members of the Chapel; Immediately ascertain from any person obtaining em- ployment if he holds a card and if it is in proper financial standing. Article XII Section 3. Members not working at the business shall pay $1.00 monthly as local dues, plus I.T .U. per capital tax and assessments according to I.T.U. Constitution and General laws. Article V Section 8. In all offices where there is a Chapel Chairman, dues are payable to the Chapel Chairman each Section 1. Members of this Union or members holding week, and any member refusing or neglecting to pay shall traveling cards shall stand suspended when four months in be considered in bad standing and not entitled to work.