Local 43, Printing Pressmen

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 43, International Printing Pressmen and Assist- ants Union of North America (San Antonio Ex- press and News) and Wallace H. Wieters. Case 23-CB-1281 March 8, 1973 DECISION AND ORDER Administrative Law Judge's conclusion that both Wieters and Rivers were in fact members of Respondent at all relevant times. Furthermore, the burden of proving nonmembership in the context of this case rested with the General Counsel who has clearly failed to meet that burden here. 5 The Administrative Law Judge 's Conclusions of Law and recommend- ed Order imply that the overtime list maintained by Respondent at the Express was composed of Respondent 's members only. Since maintenance of a discriminatory overtime list was neither alleged nor established on the record, we must assume that the list itself was not discriminatory. Accordingly, we shall modify the recommended Order in this regard BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 17, 1972, Administrative Law Judge' John F. Funke issued the attached Decision in this proceeding. Thereafter, the General Counsel and the San Antonio Express and News2 filed limited exceptions and supporting briefs. 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,3 findings,4 and conclusions5 of the Administrative Law Judge and to adopt his recommended Order, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Local 43, International Printing Pressmen and Assistants Union of North America, its officers, agents and representatives , shall take the action set forth in the said recommended Order as herein modified. 1. In paragraph 1 of the recommended Order insert the words "who refuse to pay fines" after the words "of its members." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Hereinafter called the Express 3 The Express has excepted to the Administrative Law Judge' s refusal to permit it to litigate the validity of the consolidation between Local 52 and the Respondent pursuant to which the former dissolved and the latter took over the representation of the employees We agree with the Administrative Law Judge's ruling on the grounds that the merger of the two locals, which was approved by the parent International union, is not an issue in this case. At no point has the Charging Party, the General Counsel, or the Respondent urged that the validity of the merger is relevant to the membership status of Wieters and Rivers 4 The General Counsel and the Express have excepted to the Adminis- trative Law Judge's finding that Wieters and Rivers were members of Respondent at all times material. The record contains a stipulation that both employees tendered dues to Respondent and, additionally, Respon- dent's counsel stated on the record without challenge that both were indeed members. Thus, the record evidence, although scant, tends to support the 202 NLRB No. 37 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT remove the names of Wallace H. Wieters and Rudolph L. Rivers or of any other members who refuse to pay fines from the overtime list maintained by us at the San Antonio Express and News or at any other employer with whom we have a collective-bargaining contract thereby causing the San Antonio Express and News or any other employer to violate Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL restore and keep the names of Wallace H. Wieters and Rudolph L. Rivers on the overtime list maintained by us at the San Antonio Express and News on a rotating basis and in accordance with past practice. WE WILL pay Wallace H. Wieters and Rudolph Rivers for any earnings they may have lost because we took their names off the overtime list. LOCAL 43, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA (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 compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. LOCAL 43, PRINTING PRESSMEN TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This proceeding was brought before the National Labor Relations Board upon: 1. A charge and amended charge filed by Wallace H. Weiters, an individual, against Local 43, International Printing Pressmen and Assistants Union of North Ameri- ca, herein Local 43, alleging Local 43 violated Section 8(b)(1)(A) and (2) of the Act, said charges being dated May 15 and 30, 1972, respectively. 2. A complaint of the General Counsel alleging Local 43 violated Section 8(b)(1)(A) and (2) of the Act, issued June 20, 1972. 3. An answer filed by Respondent denying the commis- sion of any unfair labor practices, dated June 23, 1972. 4. A hearing held before me at San Antonio, Texas on July 27, 1972. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS 1. BUSINESS OF THE EMPLOYER San Antonio Express and News, herein the Employer, is a Texas corporation having its principal place of business at San Antonio, Texas, where it is engaged in printing and publishing a daily newspaper. It purchases goods and materials valued in excess of $50,000 annually from places outside the State of Texas and its gross revenues exceed $500,000 annually. The Employer is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Local 43 is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Prior to February, 1972, Local 52, International Printing Pressmen and Assistants Union of North America had a collective-bargairing contract covering the employees in the unit described therein. (General Counsel's Exhibit No. 2.) On or about January 7, 1972, Local 43 notified the Employer that Local 52 had effected a merger with Local 43 and that after February Local 43 would assume and administer the aforesaid contract.' It was stipulated between the General Counsel and Local 43 that on or about February 1, 1972, Local 43 imposed its constitution, bylaws, and working rules upon Wallace H. Weiters and Rudolph L. Rivers who were employees of the Employer and had been members of Local 52. It is not i The Employer objected to this evidence but the Trial Examiner ruled that the merger and the relationship between the Employer and Local 43 was not an issue in this proceeding. 287 disputed that they became members of Local 43 or that they were members of Local 43 at all times material herein. Local 43's constitution and bylaws (G.C. Exh. 3) contains the following provisions: ARTICLE XVII SECTION 30. The chairman of a shop (in which the Union has a signed contract) who finds one or more positions on a press crew is going dark, shall proceed as follows: In case of a member refusing to work, he shall be subject to a fine of one day's pay, unless he is already working or hired to work; unless he would be forced in a triple-shift, or more. A chairman shall consider physical handicaps. When it becomes neces- sary to force a man to work, the chairman shall compile a list of all members (with the above exceptions) and begin to hire from the men with the least amount of time, and go completely through the list if necessary, before taking a definite stand; then, in the same rotation he shall begin again, and fine each man who refuses to work. Subs shall be governed the same way. Wallace Weiters testified that he had been employed by the Employer as a newspaper pressman since 1956 and that during that period an out-of-shop list was kept by the chapel chairman for those who wanted to work outside the Employer's shop. Until the merger of Local 52 with Local 43 the out-of-shop list was maintained on a voluntary basis; i.e., a member had to volunteer to have his name placed on the list for assignment to another shop when his tour of duty expired at the Employer. Section 30 of article XVII had not been a part of the bylaws of Local 52. On Saturday, February 26, Weiters was called at his home by Harry Davis, chapel chairman, and told to report to the San Antonio Light for work. He refused the assignment and was told by Davis that "they" would have to write up charges against him. Rudolph Rivers testified that he had been employed as a journeyman pressman with the Employer since 1948. While he had accepted out-of-shop assignments at the Light in the past there had come a time (not specified) when he refused and he had refused consistently ever since. On February 26 he was again asked to report to the Light by Davis and refused. Following this refusal, charges were preferred against both Weiters and Rivers by Local 43 and, after a hearing, 2 each was fined I day's pay. For failure to pay this fine each was taken off the overtime list at the Express. The overtime list was a rotating list posted in the Employer's pressroom and the members or employees at the top of the list had first choice of overtime work. Elimination from the list meant the loss of opportunity for overtime. This list was maintained by the chapel chairman of Local 43. James Zoeller, foreman of the pressroom, testified that the overtime list was maintained by the chapel chairman and that the lowest man in point of overtime was up first. Three or four weeks before the hearing he had complained to chapel chairman Davis that Weiters and Rivers had been taken off the list at the request of the chairman 2 Both Weiters and Rivers had asked for a jury trial and were still seeking ajury trial at the time of the hearing. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they had been fined by Local 43. About a week later they were restored to the list and have been receiving their allotment of overtime ever-since. Zoeller estimated that they had been off the list for 2 months or 10 weeks. Harry Davis, called by the General Counsel, testified that he was relying on section 30 of article XVII of the bylaws when he filed charges against Weiters and Rivers. B. Conclusions From facts which are not disputed it is established that Local 43 took two forms of action against Weiters and Rivers when they refused to accept out-of-shop assign- ments to work at the San Antonio Light: (1) it brought charges against them and, after a hearing, fined each of them 1 day's pay; (2) it removed them from the overtime list of the San Antonio Express, thereby depriving them of overtime pay accorded other employees and members on a rotating basis. I find that Local 43 did not violate Section 8(b)(1)(A) of the Act by fining Weiters and Rivers for violation of section 30 of article XVII for failing to accept assignments of out-of-shop work at the Light. This was not a discriminatory rule, it was not discriminatively applied and it violated no provision of the statute nor was it repugnant to Board policy. I find it was within the proper scope of the authority to prescribe reasonable working rules covering the relationship between the members of Local 43 and the employers with whom it had contractual relationships.3 In so finding I express no opinion on the merits of the hearing before Local 43 or whether the language of section 30 required the members to accept out-of-shop assignments as well as overtime work. This determination should be properly left to the hearing procedures of a union, absent evidence that a fair hearing was not held. The removal of the two members from the overtime list, on the other hand, violated Section 8(b)(1)(A) and (2) of the Act since the penalty involved "enforcement of a union's internal regulations to affect a member's employ- ment status."4 Upon the foregoing findings and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By removing the names of Wallace H. Weiters and Rudolph L. Rivers from the overtime list maintained by it at the San Antonio Express and News, thereby depriving them of overtime regularly alloted to its members, Local 43 caused the San Antonio Express and News to discriminate against them in violation of Section 8(a)(3) of the Act and so violated Section 8(b)(1)(A) and (2) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 3 Scofield [Wisconsin Motor Corp] v. N L R B, 394 U.S. 523, N L.R B v Allis-Chalmers Mfg Co , 388 U S 175 4 N L R B v Allis-Chalmers, supra 5 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 THE REMEDY Having found that Local 43 engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. It is recommended that Local 43 offer Wallace H. Weiters and Rudolph L. Rivers overtime at the San Antonio Express and News by maintaining their names on the overtime list in regular rotation with all other members and employees in accordance with past practice. It is also recommended that Local 43 make Wallace H. Weiters and Rudolph L. Rivers whole for any loss of pay they may have suffered since February 26, 1972, by reason of the removal of their names from the overtime list. Loss of pay shall be computed on a quarterly basis with interest at 6 percent per annum. Upon the foregoing findings and conclusions and pursuant to Section 10(c) of the Act, I recommend issuance of the following: 5 ORDER Respondent Local 43, International Punting Pressmen and Assistants Union of North America, its officers, agents, and representatives, shall: 1. Cease and desist from removing the names of any of its members from the overtime list maintained by it at the San Antonio Express and News or any other employer with whom it has a collective-bargaining contract, thereby causing the San Antonio Express and News or any other employer to violate Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Restore and keep the names of Wallace H. Weiters and Rudolph L. Rivers on the overtime list maintained by it at the San Antonio Express and News on a rotating basis and in accordance with past practice. (b) Make Wallace H. Weiters and Rudolph L. Rivers whole for any loss of pay they may have suffered by removal of their names from the overtime list in the manner set forth in "The Remedy." (c) Post at its business office or offices at San Antonio, Texas copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecu- tive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward copies of said notice, after having been duly signed, to the Regional Director for Region 23 for posting by the San Antonio Express and News at its place of business at San Antonio, Texas, if it is so willing. (e) Notify the Regional Director for Region 23, in its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 6 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LOCAL 43, PRINTING PRESSMEN 289 writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith.? 7 In the event that this recommended Order is adopted by the Board from the date of this Order, what steps the Respondent has taken to comply after exceptions have been filed, this provision shall be modified to read: herewith." "Notify the Regional Director for Region 23, in writing , within 20 days