Detroit Newspaper Pressman's Local No. 13

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Newspaper Printing Pressmen's Union, Local Union No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO -(Observer Newspapers, Inc.) and Carol L. Wilson. Case 7-CB-2991 April 29, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 27 , 1974, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor, Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge only to the ex- tent consistent herewith. The Administrative Law Judge did not consider the United States Supreme Court's ruling in Florida Power & Light Company v. International Brotherhood ofElec- trical Workers, Local 641, 622, 759, 820 and 1263, AFL-CIO,' decided only a few days earlier, on June 24, 1974, which in our =view is dispositive of the instant case. Supervisor Carol L. Wilson was fined by the Union for continuing "to work and collaborate with the com- pany replacements thereby jeopardizing and undermin- ing the position of the Union during negotiations lead- ing to a contract." The Administrative Law Judge found that by working 5 hours beyond her normal shift she performed at least some unit production work which she normally would not have performed . Charg- ing Party now contends that she was not fined for performing "struck work" within the intendment of Florida Power & Light.2 We do not .agree. Though during the brief strike she may have performed more supervisory functions than usual, due to the availability of only an inexperienced work crew , it is uncontested that she spent the customary 50 percent of her time on unit work during her normal shift and much more than a minimal amount of her time on unit work during the additional 5 hours she -worked beyond that time. Consequently, under Florida Power & Light, the 1 417 U.S 790 z Charging Party excepts only as to this point . Members Kennedy and Penello note that no exceptions were filed concerning the Administrative Law Judge's treatment of the "Collye," issue Union's imposition of a fine against Carol L. Wilson was not a violation of Section 8(b)(1)(B) of the Act.' ' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 3 See Bakery & Confectionery Workers International Union of America, Local Unions 24 & 119 (Food Employer's Council, Inc J, 216 NLRB No. 150 (1975) Member Fanning concurs in the result for the reasons stated in his concurring opinion in that case DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charge herein was filed by Carol L. Wilson, an individual, on January 25, 1974, and a complaint thereon was issued by the General Counsel of the National Labor Relations Board on March 7, 1974, alleging that Detroit Newspaper Printing Pressmen's Union, Local Union No. 13, International Print- ing Pressmen and Assistants' Union- of North America, AFL-CIO, herein called Respondent or Union, violated Sec- tion 8(b)(1)(B) of the Act by imposing a fine on Wilson for performing struck work. An answer was timely filed by Re- spondent and, pursuant to notice, a hearing on the matter was held before me at Detroit, Michigan, on May 7 and 8, 1974. Briefs have been timely filed by General Counsel and Charg- ing Party which have been duly considered. FINDINGS OF FACT I EMPLOYER'S BUSINESS Observer Newspapers, Inc., herein called Employer, is a Michigan corporation engaged in the business of publication, sale, and distribution of newspapers in Livonia, Michigan. During the calendar year ending December 31, 1973, the Employer had gross revenues in excess of $200,000 and pur- chased and caused goods and materials valued in excess of $50,000 to be transported to its Livonia, Michigan, facility directly from States of the United States other than the State of Michigan. The complaint alleges, the answer admits, and I find that Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II LABOR ORGANIZATION The complaint alleges and Respondent in its answer ad- mits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III ALLEGED UNFAIR LABOR PRACTICES The complaint alleges in substance that Respondent fined Carol L. Wilson, a supervisory employee and a member of the Respondent, $250 because she continued to work during Re- 217 NLRB No. 94 DETROIT NEWSPAPER PRESSMEN 'S LOCAL NO. 13 spondent's work stoppage on September 11 and-12, 1973, and by so doing, Respondent violated Section 8(b)(1)(B) of the Act. A. Facts' 1. Wilson's supervisory status Wilson was first employed by Employer in July 1970. Wil- son has also been a member of Respondent since that time, as the complaint alleges and the answer admits. In April 1973, a decision was made by the Employer to institute a lobster shift. Wilson was designated to supervise that shift and has been so employed since that time. Shortly before this, in about mid-March 1973, Wilson was advised by Alex Dzie- wit, production director, that she was to be in charge of the composing room and prep room on the lobster shift and outlined her duties to her at that time, which included super- vising the work of employees , granting overtime , granting time off, and resolving minor grievances.' Wilson works ,4 days per week with Wednesday off. Her hours on the lobster shift are normally from 8 p .m. until about 4:30 a.m. For 2 days per week Gary Dishman, who is in charge of the afternoon shift, would remain until the end of the lobster shift. On the remaining 2 days he generally stayed until some time between I l p .m. and 1 a.m. While Dishman was on the floor he was in charge. Wilson also exercised certain supervisory functions but to a lesser degree. In Dishman's absence Wilson was the only supervisor present and was in complete charge of the composing and prepara- tory room operation which normally had a complement of some five employees, including Wilson. Wilson's authority included the right to assign composing room employees to various work tasks and also to reassign them as she determined would best effectuate production. In the event that she decided that overtime was required, she had the authority, without clearance from higher authority, to grant such overtime. This occurred at least once a week to the extent of I or 2 hours each time. At times when it ap- peared to Wilson that the workload would accommodate it, she had the authority, which she exercised, of permitting employees to leave the shift early. She also had the authority to deny such requests and to permit employees to leave be- cause of illness. On the other hand, it appears that Wilson performs a substantial amount of unit production work; that she is I Charging Party filed a motion with me to correct the official transcript in this case to reflect that Charging Party Exhs. 4, 5, and 6 were admitted into evidence No objection to this motion has been received from either General Counsel or Respondent In concurrence with the view expressed in the motion, it is my recollection that these documents were received into evidence and the failure of the transcript to reflect their admission is the result of inadvertence in the transcription of these proceedings. Accord- ingly, Charging Party's motion is granted as to Exhs 4 and 5. As to Exh 6, the transcript reveals that it was received into evidence on p 167. How- ever, the "contents" page of the transcript fails to reflect this and the motion to correct in this regard is hereby granted In granting this motion, it is further noted that no reliance is placed by me on any of these documents in reaching any of the conclusions made in this Decision. 2 It appears that Wilson may have been for some time previously a day- shift supervisor prior to the institution of the lobster shift, but her supervi- sory status at that time is not in issue and no finding is made thereon in this case. 577 hourly paid while other supervisors are salaried ; and that she does not hire or fire, and has not disciplined anyone . Never- theless it has been amply demonstrated in view of the facts noted above and the entire record herein , that Wilson's au- thority is not routine and that she possesses several of the requisite indicia of supervisory authority to constitute her as a supervisor within the meaning of Section 2(11) of the Act and I so find. 2. Fining of Wilson Employer and Respondent were parties to a 3-year con- tract which expired July 1, 1973 (G .C. Exh. 11). Negotiations on a new contract began in late May 1973, and continued through its expiration.' The contract unit therein' included the composing room and preparatory room employees su- pervised by Wilson on the lobster shift. Negotiations on a new contract were not productive . On September 10, 1973, the Chapel voted to reject the Employer's position on the con- tract. On September 11, another meeting of the Chapel was held in the evening at or about 10:15 or 10:30 p.m. Another vote was taken on whether to work or leave the premises. By a 3-to-1 margin they voted to leave and a work stoppage ensued. After the meeting, Dziewit advised Wilson that she would be expected to work, and Wilson told him that she would work. She did work along with a makeshift crew of other supervisors and nonunit employees . Due to their inex- perience, Wilson did more supervising that night than she normally did. In addition to supervision, ` Wilson also did production work during the stoppage , including markup, running the machines, and proofreading. Wilson worked beyond her normal 4 :30 a.m. quitting time until about 9 :30 a.m. on September 12. Wilson normally quit at 4:30 a.m., thus it is obvious that Wilson , during this addi- tional 5 hours of work, performed unit production work which would normally have been performed by employees on the day shift had those employees not been engaged in a work stoppage. Picketing had begun about 6 a.m. and it was neces- sary for Wilson to cross the picket line when leaving work. The parties met during the day on Wednesday, September 12, and agreement in principle on a contract was reached. The picketing ended later in the afternoon on September 12. The contract was later drafted and finally signed on January 17, 1974, reciting effective dates of July 3, 1973, through June 30, 1975 (Resp. Exh. 1). It is undisputed that by letter dated October 1 , 1973, charges were brought against Wilson by Donald C . Kummer, president of Respondent (G.C. Exh. 2). The substance of the charges'are contained in the last paragraph of the letter which reads, "The above-named member did continue to work and 3 The evidence does not establish that there was any agreement between the Employer and Respondent to extend the contract on a day-to-day basis as alleged in par. 11(a) of the complaint . Respondent denied such extension in its answer and at hearing; the Charging Party expressly concurred. 4 Article 2 of the expired contract is captioned "UNION RECOGNI- TION" and sets forth the unit as follows , "including all composing room employees (including copy control center), preparatory department em- ployees, pressroom employees, mailroom employees, maintenance em- ployees, electronic equipment maintenance technician , and truckdrivers; excluding all other employees , guards and supervisors as defined in the National Labor Relations Act." Par. 9 of the complaint herein was amended at the hearing to reflect this unit language. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collaborate with the company replacements thereby jeopard- izing and undermining the position of the Union during negotiations leading to a contract." This letter also contained a request for Wilson to appear on-November 1, 1973, before the five-member executive board of the Respondent for a hearing on the charges. Respondent appeared at the executive board hearing and argued that she was a supervisor and therefore was entitled under the contract to work during the work stoppage without retaliation by the Union under article 24 of the expired contract.' She was advised by the execu- tive board chairman, identified as a Mr. Laveley, that the contract had expired and that therefore article 24 did not apply, to Wilson. By letter dated November 26, 1973 (G.C. Exh. 6), Wilson was advised by Respondent that the execu- tive board had voted to fine her $250 and further advised her that she could appeal this decision to the membership. On December 16, 1973, at a regular meeting of the membership, Wilson appealed the fine on basically the same grounds, i.e., that she was a supervisor and her fine was therefore illegal under article 24, however this appeal was rejected. In January 1974, Wilson appealed her fine to the president of the Inter- national, Sol Fisko. This appeal was dismissed by letter dated February 5, 1974, from Fisko (G.C. Exh. 5) because of Wil- son's failure to deposit the amount of the fine with the Re- spondent as required by the International Constitution and Laws as a condition precedent to consideration of her appeal. Wilson had not, at the time of this hearing, paid the fine. 3. The Collyer issue At the hearing, Kummer testified that the Employer had a right, under the present contract to file a grievance against the Union. To support this contention, Kummer cited article 11, section 1, of the contract which describes a grievance as a dispute between the Union and the Company concerning the ". . . interpretation or application of the provisions of this Agreement or violations of the provisions of this Agree- ment." Kummer also cited article 11, section 1, step 3(c), which provides, "If either party fails to take an action permit- ted to it within the time limits hereinabove specified, or as extended by written agreement of the parties, the grievance shall be deemed to be settled on the basis of the position last taken by the non-defaulting party." When asked if there was anything else he relied on in concluding that the Employer could file a grievance, Kummer replied, "I suppose those are it. I. suppose those are the references that I would say entitle the Employer to file grievances." It was stipulated by all parties that the Employer has not filed any grievance since the beginning of contractual relations between Respondent and Employer in 1970. On-the other hand, article 11, section 2, the arbitration provision of the contract, provides, inter alia, "In the event 5 This article reads NONRETALIATION The Publisher shall not discipline the chapel chairman for Umon activities engaged in while administering this Agreement No foreman who is a member of the Umon shall be subject to fine, discipline or expulsion by the Union for any act in the performance of his duties as foreman when such act is not in conflict with this Agree- ment that the disposition of the grievance at step 3 of the grievance procedure is not acceptable to the Union, such grievance or dispute, which has been processed in accordance with the preceding grievance provisions of this Agreement, may, within thirty (30) calendar days after the Company's final decision on this matter, be submitted to the American Arbi- tration Association for arbitration in accordance with its rules and regulations." B. Discussion and Analysis In view of the evidence outlined hereinabove, I have con- cluded that Wilson is a supervisor within the meaning of Section 2(11) of the Act. This being the case, it is my further conclusion that by fining Wilson for performing struck work,' Respondent has violated Section 8(b)(1)(B) of the Act under applicable Board precedent. Succinctly stated, the basic issue is whether or not a union may lawfully fine a supervisor-member for performing struck work. A review of Board authority on the issue discloses a clearly negative, although not unanimous response. There are several Board cases holding that such fines are illegal in that they restrain and coerce employees in the selection of their representatives for the purposes' of collective bargaining or the adjustment of grievances proscribed by Section 8(b)(1)(B) of the Act. The rationale behind the holdings in these cases is that such fines are not matters of purely internal union discipline but are in reality an unwarranted interference with the employer's control over its own representatives. See Inter- national Brotherhood of Electrical Workers, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO (Illinois Bell Telephone Company), 192 NLRB 85 (1971); Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Company), 192 NLRB 77 (1971); Local No. 1, International Union of Elevator Constructors, AFL-CIO (Westinghouse Electric Corporation), 210 NLRB 903 (1974). As noted in these cases, the majority view is not shared by dissenting Member Fanning, nor is the majority Board view shared by all of the U.S. circuit courts which have passed on the matter. The United States Circuit Court of Appeals for the District of Columbia denied enforcement in the Illinois Bell case (sub nom. International Brotherhood of Electrical Workers, Local 134, 487 F.2d 1143 (C.A.D.C., 1973)). On the other hand, the majority Board position was upheld in Wisconsin Power Electric, wherein the Seventh U.S. Circuit Court of Appeals enforced the Board decision at 486 F.2d 602. See also San Francisco Typographical Union No. 21 International Typographical Union, AFL-CIO (California Newspapers, Inc.), 193 NLRB 319 (1971), wherein the Ninth U.S. Circuit Court of Appeals denied enforcement of the Board's order in 6 In its brief, Charging Party contends that Wilson did not perform struck work during the stoppage but only did her usual work. In my opinion the facts do not support this conclusion As noted above, Wilson, in her normal function, supervises and also spends a substantial amount of her time doing unit production work Wilson worked 5 hours beyond her normal shift during the work stoppage and thus performed at least some unit production work which normally would have been performed by employees on the a:m shift had it not been for the work stoppage Thus I conclude that Wilson performed struck work during the work stoppage DETROIT NEWSPAPER PRESSMEN 'S LOCAL NO 13 579 pertinent part (486 F.2d 1347), apparently sharing Member Fanning's dissenting view. This split in the U.S. circuit courts may well lead to a final disposition on the matter by the United States Supreme Court. However, in the meantime, I am constrained to follow Board precedent in the matter and in so doing I fmd that by imposing a $250 fine on Wilson for having performed struck work during the work stoppage, Respondent violated Section 8(b)(1)(B) of the Act. With respect to the Collyer' issue, I have already con- cluded herein that Wilson is a supervisor and any considera- tion of this issue, therefore, begins with this premise. In addi- tion, Wilson is also the Charging Party in the instant case, filing as an individual. The fact that she is the Charging Party filing as an individual would not, by itself, make deferral under the Collyer principle inappropriate. In certain circum- stances deferral would be appropriate assuming that the Em- ployer, as party to the contract, invoked the grievance ma- chinery on behalf of the individual charging party. See Tyee Construction Co., 202 NLRB 307 (1973). This is especially true where, as here, Wilson was a supervisor and her interests would normally be more closely allied-to the interests of the Employer than those of the average employee. However, it is basic to any application of the Collyertheory as to the under- lying dispute, which in this case involves an interpretation of the Nonretaliation clause of the present contract,' that binding arbitration be available. See Collyer, supra, and Tul- sa-Whisenhunt Funeral Homes, Inc., 195 NLRB 106 (1972). As applied to the instant case, this would mean that the Employer, as party to the contract, and invoking the griev- ance and arbitration provisions of the contract on Wilson's behalf, would have to have available to it binding arbitration. After carefully reviewing the grievance and arbitration provi- sions of this contract, I am satisfied that binding arbitration is not available to the Employer. Indeed the Respondent 7 Collyer Insulated Wire Co., 192 NLRB 837 (1971). s The "Nonretaliation" clause is identical in both the expired contract and the present contract. 9 It also appears that at the time that the dispute herein arose, on Septem- ber 11 and 12, there was no contract in effect between Respondent and Employer. Deferral under Collyer is also inappropriate for this reason apart from any consideration of the substance of the grievance and arbitration provisions. Borden, Inc., Dairy & Services Division, 196 NLRB 1170 (1972) makes no contention that such arbitration is available under the contract. Accordingly, deferral under the Collyer princi- ple is not deemed warranted in the circumstances of this case. Bunker Hill Company, 208 NLRB 27(1973).9 IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Detroit Newspaper Punting Pressmen's Union, Local Union No. 13, International Printing Pressmen and Assist- ants' Union of North America, AFL-CIO, is a labor orgam- zation within the meaning of Section 2(5) of the Act. 2. Observer Newspapers, Inc., has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By restraining and coercing Observer Newspapers, Inc., in the selection of representatives for the adjustment of griev- ances, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]