Boston Mailers' Union No. 1

BOSTON MAILERS' UNION NO. 1 989 Boston Mailers' Union No. 1 a/w International Typographical Union, AFL-CIO and Union Lead- er Corporation. Case 1-CB-2295 May 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY,ANDPENELLO On February 25, 1974, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel and Charging Party filed briefs in support of the Administrative Law Judge's Decision. 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 1 of the Administrative Law Judge and to adopt his recommended Order. ORDER the Board issued an "Order Granting Request To Amend Complaint, Denying Motion For Summary Judgment, And Remanding Proceeding To Regional Director." The case was then tried before me at Boston, Massachusetts, on October 25, 1973, with all parties represented by counsel. The issue in the case is whether or not the Respondent Union restrained and coerced Union Leader Corporation, an employer, herein the Company, by fining Supervisor Lane $800 for activities by Lane regarding employee Spencer. FINDINGS AND CONCLUSIONS 1. JURISDICTION The Company is a New Hampshire corporation and maintains its principal office and place of business in Manchester, New Hampshire, where it is engaged in the publication of daily and Sunday newspapers. In the course of its business , the Company holds membership in, and subscribes to, interstate news services, publishes nationally syndicated features , and advertises nationally sold products . Its gross volume of business is in excess of $200,000 annually. The Company is an employer engaged in commerce within the meaning of the Act. Boston Mailers' Union No. 1, a/w International Typo- graphical Union, AFL-CIO, herein the Union or Boston Mailers' Union, is a labor organization within the meaning of the Act. 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 Respondent, Boston Mailers' Union No. I a/w International Typographical Union , AFL-CIO, Boston, Massachusetts, its offi- cers, agents, and representatives , shall take the action set forth in the said recommended Order. i We hereby correct an inadvertent error in the Administrative Law Judge's conclusions that Respondent violated Section "8(a)(I)(B)," to read that Respondent has violated Section 8(b)(1)(B) of the Act. DECISION RAMEY DONOVAN, Administrative Law Judge: The charge was filed on April 23, 1973, and the complaint issued on June 15, 1973. Respondent filed its answer, dated June 25, 1973, denying the complaint allegations of unfair labor practices. Thereafter, Respondent filed a Motion for Summary Judgment, dated July 6, 1973. On July 25, 1973, the Board, through its Associate Executive Secretary, issued an "Order Transferring Proceeding To The Board and Notice To Show Cause." The General Counsel on August 2, 1973, issued an Opposition To Respondent's Motion for Summary Judgment, including a motion to amend the complaint as set forth in the motion. The Charging Party also filed an Opposition to Respondent's Motion for Summary Judgment. On September 27, 1973, i A chapel chairman is in substance a union representative equivalent to a shop steward in other unions II. THE ALLEGED UNFAIR LABOR PRACTICES In June 1972 Spencer was hired as a journeyman in the company mailroom. According to General Foreman Woodlock, Spencer had first gone to Peterson, a journey- man who was the chapel chairman.' Peterson then brought Spencer to Woodlock and within a few days Spencer was hired.2 As a journeyman card holder in the Union, Spencer was hired without further test of his competence. For the first week of his employment, Spencer worked two or three shifts on the day shift, 9 a.m.-4:30 p:m., which at the time was putting out a special edition. Thereafter, Spencer worked regularly on the night shift, 10:30 p.m.-6 a.m. Eight or nine men worked on the night shift and four on the day shift. Battistelli was foreman of the day shift and he also worked as a rank-and-file journeyman on the night shift. Lane was foreman and supervisor of the night shift. Kirks was the assistant foreman on the night shift. The mailroom, including the foremen and the employees, were under the supervision of the general foreman, Woodlock, who usually was present in the plant from 9 a.m. to 4:30 p.m. Woodlock has been a member of the Union for 25 years and Lane for approximately 16 years and they were members at the time of the instant hearing. Neither Woodlock nor Lane had previously known or worked with Spencer before he came with the Union Leader Corpora- tion in June 1972. As far as appears, this is also true of Battistelli and Kirks. 2 Spencer at some point had evidently deposited his union card with the secretary-treasurer of the Union, according to Woodlock 210 NLRB No. 159 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodlock testified that about 2 weeks after Spencer started working in the plant, Battistelli came to him and complained about Spencer's inability to perform the work. Apparently Battistelli was basing his complaint on his own observation of Spencer, including the latter's brief period on the day shift and his regular work thereafter on the night shift. After the foregoing complaint from Battistelli, Woodlock spoke to Lane about Spencer. Lane confirmed Battistelli's report and said that Spencer was not a competent workman and could not perform the tasks of a journeyman. In the ensuing weeks in July and August 1972, Woodlock had a series of complaints from Battistelli and Lane about Spencer's incompetency. Battistelli was the one who had taken the initiative in these complaints and his views were evidently the result of his work on the night shift where he worked as a journeyman with Spencer and the other night shift men.3 Battistelli indicated to Woodlock that he felt that Woodlock was placing too great a burden on Lane by compelling Lane to carry an incompetent like Spencer on the night shift and that Woodlock should take a stand on the matter and discharge Spencer for incompetency. It was generally only when Woodlock spoke to Lane regarding Battistelli's reports about Spencer that Lane would voice his own view that Spencer was indeed incompetent. Also, on occasion, when Woodlock would hold Lane accounta- ble for certain derelictions in work performance on the night shift, Lane would explain how he had to carry Spencer and that the latter was a burden and a hinderance by reason of his incompetency. Far from displaying any personal animosity toward Spencer or eagerness to report Spencer's deficiencies, it appears that Lane reported Spencer's incompetency only when he virtually had no alternative. Although, in the foregoing series of reports, Lane did not hesitate to tell Woodlock that Spencer was incompetent and should be discharged, he made it clear that he had nothing of a personal nature against Spencer. Thus, Woodlock testified that although Lane told him that Spencer was incompetent, Lane also told him that Spencer tried to do the work but he "just didn't have it" i.e., lacked the ability and competence to perform the work. In July or early August 1972, as a result of the reports from Battistelli and Lane about Spencer's work, Woodlock called Spencer into a room at the plant where they could talk privately. Woodlock then told Spencer that he, Woodlock, had checked into the matter with Lane, Battistelli, and Kirks, the two foremen and the assistant foremen, respectively, and that Woodlock had decided to come to the plant Friday night and personally test Spencer's ability to perform the work. Woodlock said that 3 Since Battistelli, unlike Lane, also worked on the day shift, he had more opportunity to speak to Woodlock who was not present at night. 4 This is Woodlock's testimony He no doubt referred to and recited how he had earlier foregone testing Spencer's competency as a journeyman and had allowed him to continue in his job, despite the complaints of the foremen , and Woodlock had done this when Spencer pleaded a personal problem and has asserted that he planned to remain only a short time It is fairly clear that even without the test, Woodlock had no reason to doubt the many reports of all his foremen that Spencer was incompetent The test was probably meant to be a step of "due process" rather than a reflection of any question in Woodlock's own mind as to the accuracy of the foremen's reports about Spencer's incompetency Moreover, any question of Spencer's incompetency would have been removed by Spencer's reaction to if he found that Spencer was incompetent to perform the work, Woodlock would not allow Spencer to continue in his job. Spencer appealed to Woodlock to allow him to continue to work, explaining that he was in Manchester only for a short time so that he could be with his mother who was ill. Woodlock said that he would allow Spencer to continue in his job and shelved the prospective Friday night test on the assumption that Spencer, as he had indicated, intended to remain only for a short time. Thereafter, Spencer continued in his job and Woodlock continued to receive reports from his foremen about Spencer's incompetency and that Spencer was a burden. This situation remained unchanged until a day in the latter part of August 1972. At that time Woodlock was awakened at night at his home by a call from assistant night foreman, Kirks, from the plant. Kirks, who was upset, told Woodlock that Spencer and the chapel chairman, Peterson, had just heavily harassed him about some work changes he was making. Woodlock got dressed and came to the plant. He spoke to Spencer and recited aloud the condition under which he had agreed to allow Spencer to continue as an employee.4 Woodlock then said that he could not tolerate Spencer any longer and he discharged him for incompeten- cy. Within a day or two of Spencer's discharge, union officials met with the general manager and other manage- ment people of the Company about the matter.5 Woodlock was present at the meeting only for about 10 minutes and then was asked to leave.6 One of the statements or contentions that had been made at the meeting in Woodlock's presence was that Spencer held a journey- man's union card and therefore could not or should not be discharged for incompetency. It was decided by higher management and the Union that Spencer would be reinstated pending arbitration of his discharge. Spencer was therefore back in his job immedi- ately. Woodlock testified credibly that he was "not happy" about Spencer's reinstatement pending arbitration, and, about a week after the reinstatement, Woodlock called a meeting with his foremen, Lane and Battistelli. This meeting was evidently some time in the first part of September 1972. At the meeting, Woodlock told his foremen that the Spencer case would be going before an arbitrator and "we had to prepare for a case of arbitration." Woodlock mentioned the contention or statement that he had heard at a management-union meeting to the effect that since Spencer had a union journeyman's card he could not be discharged for incompetency. Lane and Battistelli ex- the prospective testing of his competency Instead of agreeing to taking the test and thus vindicate or demonstrate his competency, Spencer avoided it by pleading his mother's illness and by stating that he only intended to remain on the job for a short time It was this plea rather than any question in Woodlock's mind that Spencer was incompetent that had allowed the latter to continue in his job 5 There may have been more than one such session since Woodlock refers to what was said "at one of thejoint [company and union ] standing meetings. . . " 8 The issue of Spencer's discharge was before higher management and the Union officials . Woodlock of course, was not in a position to review his own action in discharging Spencer BOSTON MAILERS' UNION NO. 1 991 pressed the view that such a contention was ridiculous and that competency was still a relevant consideration. Wood- lock, in substance, said that there was no way of knowing how an arbitrator would regard the matter and an arbitrator might consider a union journeyman's card as establishing the competency of the card holder. It was thus apparent that Woodlock was enlisting the aid and support of Lane and Battistellf, his foremen, to prepare for an arbitration proceeding regarding Spencer's dis- charge. Woodlock also indicated that there was a definite possibility that the matter of Spencer's union card would be an important factor in the arbitration and that the arbitrator might accept the argument that the Union journeyman's card equated with, or established, the card holder's ability and competency and therefore the card holder's discharge for alleged incompetency could not stand. Accordingly, in view of the foregoing, it was normal and to be expected that Lane or Battistelli would come forward with any information or suggestions that either might have that would support Woodlock's August discharge of Spencer for incompetency. As foremen, they would have been derelict in their function if they withheld information or ideas that would be supportive of the discharge made by their general foreman, Woodlock. Moreover, although the foregoing would have been true even if Lane and Battistelli had had no personal work contact with Spencer, it is doubly true in the instant case where both Lane and Battistelli as foremen had personally found Spencer to be incompetent and had independently recommended his discharge previously. It is therefore apparent, in my opinion, that what followed at the meeting between Woodlock, Lane, and Battistelli was part and parcel of Lane's and Woodlock's functions as supervisors. As we have seen, Woodlock told Lane and Battistelli that "we" have to prepare for arbitration. Woodlock also mentioned to the foremen his concern with the potential contention before the arbitrator that Spencer as the holder of a union journeyman's card was deemed competent to perform his duties and therefore his discharge for incompe- tency could not be sustained. Woodlock stated to Lane and Battistelli that "anything we could find out about Spencer would be helpful before an arbiter." Lane then said to Woodlock that in the weeks that Spencer had worked under Lane on the night shift, Lane had had several conversations with Spencer. Spencer had come from California and had worked there in the Mailers' Union trade. Lane had also worked in the trade for four or five newspapers in the same general California area as Spencer had assertedly worked. Lane told Wood- lock at this meeting of the foremen regarding arbitration that Lane had mentioned to Spencer the names of several people in the trade but Spencer did not know them "and yet he [Spencer] claimed he had worked at certain places where these people were." Lane then said to Woodlock that Lane knew several people in the trade in California and that by contacting them he might find out something about "how this guy [Spencer] got his [union] card." Lane asked Woodlock if Woodlock would like Lane to contact these California people aforementioned. Woodlock said, "yes" and told Lane, ". . . all right, to make those phone calls [to Lane's California contacts]." Woodlock testified that he considered the matter of Spencer's union journey- man card to be an "important" matter and, in effect, that he had reason to believe that it would be an issue or the basis of contentions in Spencer's behalf before the arbitrator. In addition to sanctioning and approving Lane's pro- posed telephone calls to California regarding Spencer's work background and how Spencer had obtained his union card as journeyman, Woodlock requested La Pointe, the Company's circulation manager, to contact the manage- ment people of newspapers where Spencer had claimed to have worked to find out if Spencer had worked where he had claimed, what type of work he had performed, and how he acquired a union card.? At some date in the latter part of September 1972, after the above meeting between Woodlock, Lane, and Battistel- li, Spencer had been elected chapel chairman; i.e., shop steward in the mailroom. The sole source of information about this election is Lane. Lane, as a member of the union for many years was familiar with union matters, including elections, and he had been chapel chairman in 1961. He had only been a foreman since April 1972. Lane testified that in 1972 he saw no notice of an election posted. He also stated that it was his information that a meeting of five local union members had been told, out of a membership of 14-15, and that the chapel chairman resigned at the meeting and Spencer was elected in his place. Lane admitted that he felt Spencer had not been properly elected. Since Lane did not make any telephone calls to California regarding Spencer until the first few days of October 1972, Respondent argues that the calls were caused by reason of Spencer's election as chapel chairman, a matter of internal union politics, and that the calls were not made by Lane pursuant to his position as a supervisor carrying out the mandate of general foreman Woodlock to secure background material on Spencer for the arbitration hearing. I do not agree. Although, by the end of August or the first of September, it had been agreed that Spencer would be and was reinstated pending arbitration, and Woodlock and Lane were agreed on what should be done to prepare for the arbitration hearing, there is no indication that the hearing was imminent. As far as appears, no date had been set for the hearing and as late as November 9, 1972, no hearing had been held nor is there evidence that it had been 7 La Pointe, unlike Woodlock and the other foremen, was not a member of the Union Moreover, as circulation manager, he was part of management in a slightly different way then were the foremen and he probably would have more rapport with higher management of newspapers where Spencer was supposed to have worked It is fairly clear therefore that in preparation for the arbitration of Spencer's discharge, the Company, through Woodlock, who was most directly involved in the discharge and its ultimate outcome, had launched a two-pronged probe or inquiry, through La Pointe and Lane, into Spencer's background and acquisition of a union card it was not unreasonable to believe that La Pointe and Lane would have different types of contacts with people associated with the California newspapers where Spencer was supposed to have worked and that therefore there would be fruitful inquiries without duplication Moreover, information from different sources might be more helpful than information from one type of source 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scheduled by that time. As members of the union for 25 and 16 years, including a term as chapel chairman, Woodlock and Lane, respectively, must have had some knowledge, in my opinion, that between a decision by a Company and a Union to arbitrate a dispute and the actual arbitration hearing, there could be a substantial lapse of time. Generally, the mechanics for setting up the hearing involve the securing of a panel of potential arbitrators from some source, such as the Federal Conciliation Service, the Arbitration Association, and so forth. This involves an approach by one or both of the parties to the source of the arbitrators and a response by the body that will submit a list of prospective arbitrators. Depending on the alacrity of those involved and the status of their own respective other duties and work loads, these initial steps may consume days, a week, or longer. When the list of arbitrators is secured, the selection of an arbitrator may be done promptly or it may take some time, depending on circumstances. Once the arbitrator is selected, his work load, availibility, and calendar become important factors. The hearing may eventually be scheduled for weeks or more hence and there may be problems of reaching a date mutually convenient for the Company, the Union, and the arbitrator, and possibly a situs. Further, after all the foregoing the parties will have the assurance that they will have adequate advance notice of the date of the arbitration hearing. In view of such factors, neither Woodlock nor Lane had any reason to believe that there was any urgency in securing the data for a yet unscheduled hearing. Also Spencer was already back as work pending an unscheduled arbitration hearing and whether information on his background was secured in a week or more would be immaterial. The important factor was to have the informa- tion before any future hearing, present it, and then await the decision. A more simple explanation for the fact that Lane did not call the California people until several weeks after Woodlock had met with him and Battistelli is human inertia. At least the delay would tend to indicate that Lane was not, with great alacrity, eagerly pursuing a personal vendetta against Spencer in tracking down his background and that Lane as foreman was acting simply in a supportive role to Woodlock in trying to secure informa- tion to buttress the discharge of Spencer for incompetency. I have not and do not wish to ignore the fact that Lane, in my opinion, was annoyed by the fact that Spencer had been elected chapel chairman. This annoyance was due, I believe, to Lane's belief, as a foreman who was also a union member, that Spencer was an incompetent worker who had been properly discharged in August and that Spencer had thereafter been improperly or illegally elected shop chairman by a minority of members at an unpubli- cized meeting. In my opinion, Lane's objection to Spencer was basically that, as a foreman, Lane was convinced that Spencer was an incompetent employee; Lane was also aware that general foreman Woodlock and foreman Battistelli were convinced that Spencer was incompetent; and, most importantly, that Woodlock had discharged Spencer and had enlisted Lane's willing support in making Spencer's discharge "stick," through securing background information on Spencer in preparation for an arbitration hearing. The reason for Lane's telephone calls to union people in California was not Spencer's election as chapel chairman and I am confident that these investigatory calls, which were proposed, discussed and authorized before there was any indication that the current chapel chairman would resign and would be replaced by Spencer, were attributable to the basic issue of Spencer's discharge for incompetency and the attendant effort to meet the contention that Spencer's union card attested to his competency. As previously mentioned, Lane had formerly worked for four or five newspapers in various parts of California. In October 1972, Lane called a friend of his, Campbell, in Sacramento, to inquire if he knew anyone in the trade in Fresno. Evidently Campbell was not there at the time of the call but Campbell's wife gave Lane the name of Rust, a friend of Campbell's in the Fresno Mailers' Union .8 Lane called Rust on Wednesday, October 4, 1972, at about 11: 15 p.m. California time. Rust states that he and his wife were preparing for bed at the time the call came. Lane mentioned to Rust that Campbell had given him Rust's name and the latter acknowledged knowing or being a friend of Campbell. Lane, according to Rust, said that he was a foreinan in New Hampshire but that he was making the call "on his own."9 Rust, a witness called by Respondent, testified that Lane asked him about Spencer and whether Spencer had worked in Fresno. Rust states that he told Lane that Spencer had worked in Fresno, on the Fresno newspaper, "in the circulation department as a truckdriver; he's not worked in the mailroom." Lane told Rust, according to the latter, that he was inquiring as to where Spencer got his union journeyman card. Rust said he was not sure "but I think he got his card in San Francisco." Rust also states that Lane told him that Spencer was the chapel chairman in the New Hampshire local union but that he obtained the position in a manner contrary to union rules. During the conversation, Rust states that Lane made long pauses and "was slow talking" and "some of his words were slurred" and "he sounded to me like he was drunk." Rust states that the long distance call, coming, as it did, at night, upset his wife and awakened his children. The next day or so, Lane called the office of the San Francisco Mailers Union. He spoke to the secretary who answered. She said that Banks, the president of the Union, was out of town and, after recognizing Lane's voice,10 she asked what he wanted to know. He told her he was 9 The Fresno Mailers' Union and the San Francisco Mailers Union are sister local unions of the Boston Mailers Union and are affiliated with the same international union. 9 Assuming that Lane said this, the fact is that after Woodlock had informed him that they had to prepare for the arbitration and that anything regarding Spencer's background would be important, Lane had suggested that he, Lane, could call some people in California about Spencer's background . Woodlock approved this proposal and Lane thereafter made the calls from his home at night As far as calling specific people, e.g. Campbell and Rust and so forth , Lane was acting "on his own ." In a sense and in context, therefore, Lane may have said that he was calling on his own, although the record is clear that he reported the results of such calls to Woodlock, and the calls had been initially approved and authorized by Woodlock. 19 He had been a member of the union in San Francisco. BOSTON MAILERS' UNION NO. 1 993 inquiring about Spencer so she read to him what Spencer's file showed ; and that Spencer was "obligated" at San Francisco 11 but that the record did not show where he had worked previously . The secretary took Lane's telephone number and said that she would have Banks call Lane when Banks returned. Banks admitted receiving the above message but did not call Lane because "I was never able to get back to him, you know, to return his call." After waiting to hear from Banks for a week or more , Lane called Banks at the latter's home at about midnight, California time . Banks testified that the call awakened him and his family. He states that Lane did not tell him he was a foreman but Lane claims he did. Since Lane had admittedly told Rust that he was a foreman there would appear to be no reason for him not telling Banks. In any event Banks does not claim that their conversation would have been any different regardless of whether Lane had said he was a foreman or not I am convinced that this aspect is not determinative . Banks also states that Lane said that it was a personal matter. As previously indicated , "personal" in total context means that Lane was personally making calls and personally selecting the people he called. This record convinces me that Lane had no personal vendetta against Spencer and his inquiries were those of a foreman who was personally convinced from his observation as a foreman that Spencer was incompetent and as foreman he was personally and willingly carrying out an authorized mandate from general foreman Woodlock regarding Spencer's background of work and how Spencer had acquired a union journeyman card. Banks testified that in the telephone conversation, Lane asked him several times how Spencer had received his union card and the details . Banks replied that he believed that Spencer had come in from the Fresno local but Lane said that Spencer had secured his card from the San Francisco Mailers Union of which Banks was president.12 Banks told Lane to call him at the office if he wanted details and, after angrily telling Lane that the latter had awakened Banks and his family from sleep, Banks hung up. Lane did not call him again . 13 Banks testified that he believed that Lane "was about half in the bag," i.e., had been drinking, when he called. Several days after the above call from Lane , Banks was talking with Downes, president of the Fresno Mailer's Union . Downes was aware that Lane had been calling various people , such as Rust, a member of the Fresno Mailer's Union. When Downes was speaking with Banks, Downes said that Lane was "trying to call around . . . on where and how Dick Spencer got his card." Banks said that Lane had called him and had asked "the same question." Downes said he was going to Set in touch with White, president of the Respondent Mailer's Union of which Lane was a member, Banks said that Downes should also tell White that Banks had received the same telephone inquiry from Lane as had the people in Downes' Fresno union. Thereafter there was communication between White and the aforementioned California officials of the Union. Under date of October 6, 1972, a letter from Respondent Union directed Lane to appear before the executive committee of the Union. By telegram to the Union, Lane then asked for a copy of the constitution and bylaws. Thereafter, the Union sent a series of letters to Lane. The gist of these letters was that Lane should appear before the executive committee or at a hearing regarding violations of the constitution any bylaws charged to Lane by the executive committee. Finally by letter of February 15, 1973, the Union advised Lane that a Trial Committee would hold a "sitting" on March 12, 1973, on "charges preferred" against Lane by the executive committee for violations of article XII, section I, of the constitution, and article 5, section 1, of the bylaws: Specifically That you did in fact, on or about the month of October 1972, telephone one Brother David Banks, President, San Francisco Mailer's Union No. M18, inquiring about a former member of that local, namely, one Brother Richard Spencer. Also asking as to where he had worked, why and how he had gotten his Journey- man Mailer's card, and any other information he could provide about Brother Richard Spencer. That you did in fact, on or about October 4, 1972, at about 11: 15 p.m., telephone one Brother Jerry Rust, inquiring as to where one Brother Richard Spencer had acquired his Journeyman Mailer's Card. Thereafter, Lane was found guilty as charged and was fined $400 on each of the two counts. He paid his fine to the Respondent Union in the amount of $800 on April 6, 1973. Before completing this portion of the Decision it is appropriate to mention that in making the telephone calls to California, Lane called from his own home and the calls were on his telephone bill. He neither asked his employer to pay for the calls nor had the employer refused to pay for the calls although it is clear that the calls were made under General Foreman Woodlock's auspices and with his approval and Lane did report to Woodlock on the results of the various calls. Although it is not a commonplace explanation, I find Lane's explanation, in the light of my appraisal of his personality and his appearance as a witness, to be plausible and credible, and not inconsistent with the evidence that Lane made the calls pursuant to his duties as a foreman and supervisor. Lane testified that he had always made telephone calls regarding his work or duty from his home. His testimony is not controverted that when he was chapel chairman in 1961, he carried out his duties, as the occasion necessitated, by calling the union officers in Boston from his home in New Hampshire and he had never asked the union for reimbursement. Apparently the Union in these matters, like the Company on the California calls, never was asked for reimbursement and had not refused reimbursement, although in both instances Lane was transacting union and I I Obligated apparently means that he received his union card . 1e In his conversation with Banks, Lane made no mention of Spencer's Is This is what the secretary had told Lana that the union records election as chapel chairman, showed, 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company business, respectively. Lane further explained that when he was on Company premises it was at night since he worked on the night shift. There was only one telephone available to him at the plant and no office that he could use and the available phone was apparently in the open and was on the same line with 8 or 10 other phones 14 and there was no privacy. Quite evidently the nature of the calls to California about Spencer, an employee working in the plant, were such that Lane, as a foreman, would wish to make them in private. Conclusion The evidence, in my opinion, demonstrates that Lane was fined by the Union for action he had taken as a foreman and as a representative of management in carrying out a mandate on a matter of legitimate management interest and concern with the approval of his immediate superior, Woodlock. Woodlock, in fact, repre- sented Lane before the Union's executive board in November 1972, in the course of the proceedings against Lane. It is clear from the specifications or particulars of the charges, set forth in my Decision, that it was the fact that Lane was inquiring about the work background of Spencer and when and how Spencer, a totally incompetent workman in the eyes of General Foreman Woodlock, and in the eyes of Foremen Lane and Battistelli, had acquired a union journeyman's card. There was ample basis for management's belief that the fact that Spencer had a union journeyman's card would be or certainly could be used in the arbitration proceeding as proof that he was a competent worker and therefore should not have been discharged for incompetency. I do not believe that Lane was fined because of the manner or procedure of his telephone calls. The specifica- tion of the charges regarding the Banks and Rust calls contains no mention or any allegation that Lane was under the influence of liquor when he called ; the Banks specification does not mention the time of the day or night when the call was made and the Rust specification simply refers to the time as 11: 15 p .m. on October 4. Moreover, there is no claim in the specifications or evidence in the record that Lane cursed and swore or was profane in any of his calls.15 It is my opinion and I find that Respondent has violated Section 8(a)(1)(B) of the Act by fining Lane $800 for 14 1 would assume that the telephones in a daily and Sunday :_Hspaper would be fairly active. 15 Banks and Rust testified to their belief that Lane had been drinking when he called. Lane testified that this was not so Obviously Banks and Rust did not see Lane when he telephoned and the capability of telephone lines in olfactory transmission is nil. The two witnesses aforementiored stated that their belief about the drinking was based on long pauses in conversation by Lane and by slurring of words To my observation, Lane, as a witnesses , was a rather deliberate speaker and certainly not a fluid or rapid talker I am unable to say whether Lane had been dunking or not when he telephoned in October 1972 but I am convinced that he neither cursed nor swore nor spoke offensively when he did speak to Banks and Rust. I am even more convinced that, whether Lane had been drinking or not or whether Banks and Rust believed that he had been drinking, Lane was not charged or fined by the Union because he may have been drinking when he called Banks and Rust Also, while the calls at night no doubt annoyed the recipients I am equally confident that the time of the calls was activity undertaken and engaged in by Lane pursuant to his duties as a supervisor in the employ of his employer, the Union Leader Corporation.16 THE REMEDY Having found that Respondent has engaged in an unfair labor practice, it will be recommended that Respondent cease and desist from such conduct and take prescribed affirmative action to effectuate the policies of the Act. ORDER 17 Respondent, Boston Mailers' Union No. 1, a/w Interna- tional Typographical Union, AFL-CIO, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Restraining or coercing Union Leader Corporation in the selection of its representatives for the purpose of collective bargaining and the adjustment of grievances by fining or otherwise coercing supervisor Matthew Lane or any other supervisor because Matthew Lane or any other supervisors are discharging their duties as supervisory employees and thereby representing the employer. (b) In any like or related manner restraining or coercing Union Leader Corporation or any other employer in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Rescind the fines imposed on supervisor Matthew Lane. (b) Reimburse Matthew Lane for any fine paid by Matthew Smith to Boston Mailer's Union No. 1. (c) Expunge from its records the charges , trial, convic- tion, and fines of Matthew Lane and advise Lane, in writing, of such action. (d) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 1, after being signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted . Reason- able steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by other material. not a factor in the fine imposed on Lane 16 Dallas Mailer's Union, Local No 143, 181 NLRB 286, enfd. 445 F.2d 730 (C.A.D.C., 1971), San Francisco Typographical Union No 21 192 NLRB 523, Meat Cutters Union Local 81 [Safeway Stores], 185 NLRB 884, 887-888, enfd 458 F.2d 794 (C.A D.C., 1972) 17 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 Is In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " BOSTON MAILERS' UNION NO. 1 995 (e) Sign and mail to said Regional Director, on forms to be supplied by him, copies of the aforesaid notice for posting by Union Leader Corporation in its mailroom area, if Union Leader is willing. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Ordei, what steps Respondent has taken to comply herewith APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS $OARD An Agency of the United States Government WE WILL NOT restrain or coerce Union Leader Corporation in the selection of its representatives for the purpose of collective bargaining and the adjustment of grievances by fining or otherwise coercing its supervisor Matthew Lane or any other supervisor because Matthew Lane or other supervisors have or are discharging their duties as supervisory employees and thereby representing Union Leader Corporation. WE WILL NOT in any like or related manner restrain or coerce Union Leader Corporation or any other employer. WE WILL rescind the fines imposed on Matthew Lane. WE WILL reimburse Matthew Lane the $800 fine paid by Matthew Lane to the Union. WE WILL expunge from our records the charges, trial, conviction, and fines of Matthew Lane and will advise him in writing of such action. BOSTON MAILERS' UNION No. 1, A/W INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7th Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.