Columbia Typographical Union No. 101

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia Typographical Union No. 101, International Typographical Union of North America, AFL-CIO (Byron S. Adams Printing, Inc.) and William H. Culpepper. Case 5-CB-1210 July 11, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND KENNEDY ther consideration, that the case should be decided on the merits. Accordingly, we hereby reinstate the complaint herein. The Board has considered the record, the Admin- istrative Law Judge's Decision, the exceptions and briefs, the Charging Party's motions for reconsidera- tion and Respondent's replies thereto, and the vari- ous communications submitted to the Board by the parties, and has decided to affirm the rulings, find- ings,4 and conclusions of the Administrative Law Judge and to adopt his recommended Order. On December 12, 1973, the National Labor Rela- tions Board issued its Decision in the above-cap- tioned proceeding' wherein it dismissed the com- plaint and deferred to the parties' contractual grievance-arbitration machinery in accordance with the principle of Collyer 2 and related cases, subject to reservation of appropriate jurisdiction. On January 11, 1974, the Charging Party moved the Board to vacate its Decision and Order and to render a deci- sion on the merits favorable to it, contending, inter alia, that Respondent violated the substantive provi- sions of our Decision and Order because it failed to initiate the grievance-arbitration action required by that Decision and Order. By Order dated March 10, 1974,3 the Board denied the aforesaid motion, find- ing that the responsibility for initiating grievance ac- tion rests on the aggrieved party; i.e., the Charging Party. Eight days later, the Charging Party and his employer, Byron S. Adams, Printing, Inc., filed griev- ances against Respondent covering the dispute which had been in controversy before the Board. On January 16, 1975, 2 months later, the Charging Party again moved the Board to consider the case on the merits and to adopt the Decision and Order of the Administrative Law Judge because Respondent "has consistently resisted efforts of the charging par- ty to process the grievance-and has failed to agree to submit the matter to arbitration." By letter dated January 17, 1975, Respondent notified the Board that "it is agreeable to arbitrate the dispute." Despite this and other assurances from Respondent, howev- er, the dispute has yet to reach the arbitral forum because of Respondent's repeated cancellations of agreed-to, and scheduled, times for arbitration. These numerous postponements are not commensu- rate with Respondent's obligation to arbitrate the dispute with reasonable promptness. We find, there- fore, that Respondent has not complied with either the meaning or the intent of the "reasonable prompt- ness" provision of our Order. We further find, in agreement with the Charging Party's motion for fur- ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Columbia Typographi- cal Union No. 101, International Typographical Union of North America, AFL-CIO, Washington, D.C., its officers, agents , and representatives, shall take the action set forth in the said recommended Order. CHAIRMAN MURPHY, concurring: Like all of my colleagues I would reach the merits at this time and join in finding the violations alleged. '207 NLRB 850. 2 Collyer Insulated Wire, a Gulf and Western Systems Co, 192 NLRB 837 (1971). 3214 NLRB No. 13. 4 Members Fanning and Jenkins would not have deferred to arbitration but would have decided the case on the merits on the Board's initial consid- eration of the case, for the reasons set forth in their dissenting opinions in Collyer, supra, and related cases, as well as for the reasons set forth by Member Jenkins in the decisions and orders previously issued in this pro- ceeding. DECISION THOMAs A. Ricci, Administrative Law Judge: A hearing in the above-entitled proceeding was held on September 11, 12, and 13, 1972, at Washington, D.C., on complaint of the General Counsel against Columbia Typographical Union No. 101, International Typographical Union of North America, AFL-CIO, herein called the Respondent or the Union. The charge was filed on January 19, 1972, and amended on March 1, 1972, by William Culpepper, and the complaint issued on March 21, 1972. The issue of the case is whether the Respondent restrained and coerced Byron S. Adams Printing Inc., of Washington, D.C., in violation of Section 8(b)(l)(B) of the Act. Briefs were filed by all parties. Upon the entire record and from my observation of the witnesses I make the following: 219 NLRB No. 18 COLUMBIA TYPOGRAPHICAL UNION NO. 101 89 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Byron S. Adams Printing, Inc., is a wholly owned subsid- iary of Publishers Company, Inc., a District of Columbia Corporation engaged in the business of commercial print- ing. During the 12 months preceding issuance of the com- plaint, a representative period, Adams purchased and re- ceived materials and supplies in its District of Columbia place of business valued in excess of $50,000, and per- formed services for and shipped printed materials to per- sons and corporations valued in excess of $50,000. I find that Adams is an employer within the meaning of the Act and is engaged in commerce within the meaning of Section 2 of the statute. II. THE LABOR ORGANIZATION INVOLVED I find that Columbia Typographical Union No. 101, In- ternational Typographical Union of North America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On February 22, 1972, the Respondent Union called a strike by all the employees in the composing room of Ad- ams Printing Company to force it to remove William Cul- pepper, the general foreman, from his position as manage- ment representative, and to replace him with another union member. It's reason for doing this was because Culpepper had placed a limitation on the length of time the Union's steward could discuss union matters with the employees inside the composing room, while they were at work, and while they were being paid to work. I find that by imposing a fine on Culpepper, himself a union member, by expelling him from union membership, and by so striking the Com- pany, the Respondent coerced the employer in the selec- tion of its representative in violation of Section 8(b)(1)(B) of the Act, as alleged in the complaint. The pertinent facts are plain and not really disputed. For some years the Union has been the bargaining agent, under successive written contracts, for the 15 or 20 employees in the composing room. Its steward, here called chapel chair- man, at the time of the event was Jesse Mambeck. He was discharged in an economic reduction in force on December 17, 1971.1 He continued thereafter with great frequency to come to the plant, stayed both before and during the work shift, and talked to the employees while they were at work. Again and again Culpepper , the general foreman, told him to leave, but Mambeck refused; Hurbert Jacobs, the man- 1 Among the distracting colorations placed into the record by the Respon- dent was the question whether the steward retained employee status after December 17. The question is irrelevant to the issues raised by the com- plaint; it would therefore be pointless to discuss here the evidence indicating that he worked occasionally, as a substitute proofreader, beginning at the earliest during March 1972. In insisting on a reasonable limit to the steward's time for carrying on union activities in the shop during working hours the employer never predicated its position on any assertion that Mambeck was not an employee. ager of the entire company, told him the same thing, but was similarly rebuffed. Finally, by letter dated January 7, 1972, the Company limited the steward's time in the shop to 15 minutes before each of the two shifts then in opera- tion, plus 20 minutes after the start of each shift, with an- other 30 minutes during the lunch of each shift. The latter read as follows: As Vice President and Chapel Chairman you are enti- tled to enter our plant, but your presence here for an unreasonable period of time is an unwarranted inter- ference with production. We feel it would be reason- able for you to be here 15 minutes before the start of the work shift and to remain a reasonable time past the start of the shift. We believe 20 minutes would be a reasonable time. You are not to interfere with the work flow or produc- tion in any way, if there are any complaints or griev- ances, these should not be discussed on company time. The next day Mambeck answered the Company, in writ- ing, saying he would refuse to abide by the direction. Among other grounds he based his refusal on the assertion that the collective-bargaining agreement in effect con- tained no "restrictive language" in this respect, that he would "be the judge of my own duties as a union official," and that he would be governed by "union laws" in the matter and not by "unilateral edict of management offi- cials." On January 11 Mambeck was back in the composing room, talking to the employees, and stayed beyond the now alloted 20 minutes after the shift had started working. Culpepper told him to leave and he refused. The Company called the police, the police asked him to leave, he refused again, and he was arrested? The next thing that happened is that Mambeck, and the president of Local 101-Raymond Hall, filed internal union charges against the foreman. The charge was pro- cessed in regular fashion, Culpepper was found guilty, and the membership voted, on February 20, to fine him $5,000 and to expell him from the Union. As stated in the Union's report to its members, Culpepper was fined and expelled "for causing the arrest of the chapel chairman for alleged `trespassing.' " The Company and Culpepper were advised and on the next workday, February 22, Mambeck came to the plant to give effect to the expulsion. He gathered all the employees of the composing room and instructed them to refuse to accept any work orders from Culpepper because he was no longer a union member. The foreman then or- dered the men to work, they refused and he discharged 2 The general foreman and the steward disagreed at the hearing as to the words they exchanged that morning Culpepper said he simply ordered the man to leave; Mambeck testified he was on his way out and the foreman dared him to remain . Here again a question totally irrelevant to the case was raised, for it is clear on Mambeck's own story that by the time the police arrived he had deliberately sat down again and in fact refused their request to depart. He conceded his indifference to the foreman by testifying he then told him ; "I'm not working for you today. I'll come back when I please and take care of union business." As he would have it by that time it had become a test of wills between him and the foreman . I credit Culpepper 's version , but all that matters is that the 20 minutes after starting time had elapsed and Mambeck did refuse to leave Indeed it was with reluctance that the police had to handcuff him, for he is 76 years old and a gentleman. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every one of them then and there. At the hearing Mambeck testified he told Culpepper that day, in the presence of all the employees; ". . . if you will leave the room we will go to work. If you don't, then we are not going to work." With this statement by the steward, the Respondent's conten- tion, that the work stoppage resulted from the Company's discharge of the men, merits no comment . It was a strike to force the employer to replace Culpepper with a union member more amenable to the Union's view of how the Company should conduct its labor relations. Later in the day the employer contracted out the work in progress, apparently to other shops run by other companies owned by the same parent organization , Publisher's Com- pany, Inc. The Union's officers then advised the parent Company that the subcontracting would not be permitted, that it would picket the other plants if necessary,3 and the strike was settled that night. The basis of settlement was that the Company capitulated completely to the Union's demands. The men returned the next morning; in Culpepper's place the Company designated one of the low- er foremen, Lawrenson, as acting general foreman . The ar- rangement was that Culpepper would articulate work or- ders to Lawrenson, who then, because he was a member of the Union in good standing, passed on the orders to the men. With this, work was resumed, and it has continued in this fashion to this day. Some time in April Lawrenson returned to another job and another union member- Charles Shaugruie-took his place as acting general fore- man and has since been passing Culpepper's orders on to the men. Culpepper never paid the union fine and was nev- er reinstated into the union. Analysis The law is clear. Section 8(bXl)(B) of the Act reads as follows: "It shall be an unfair labor practice for a labor organization or its agent-to restrain or coerce . . . an em- ployer in the selection of his representatives for the purpos- es of collective bargaining or the adjustment of griev- ances." Culpepper is concededly a supervisor; it is no less clear that he speaks for management in the "adjustment of grievances." Apart from other evidence that he represents, and has represented the Company in specific disputes with union agents, the very act by him which the Union found anathema and for which it punished him went to the heart of labor relations. Mambeck said all he did in the shop was check to see if the employees had things to complain about, whether they were being paid properly, whether work as- signments conformed with the contract provisions, etc. This was purely a concern with the grievance procedure. 3 The Respondent's threat to picket other companies , albeit seemingly primary employers, appears in the testimony of two witnesses Robert Orth, president of Type, Incorporated, a subsidiary of Publisher's Company, said Mambeck called to tell him "that Type, Incorporated, and Merkle Press would be involved in a picket line operation " According to Mambeck he told Orth ". we are doing Merkle work down here , and we are having trouble. It may eventuate in having pickets around this place." I find, as alleged in the complaint, that by threatening to picket the premises of Type, Incorporated, and of Merkle Press, in furtherance of its object of forcing the removal of Culpepper from the employ of the Adams Printing Co., the Respondent violated Section 8(b)(1)(B) of the Act Further, no question here of direct as distinguished from indirect coercion of the employer. See San Francisco-Oak- land Mailers' Union No. 18, International Typographical Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968). There can be no more direct force exerted by a union on an employer than pure strike action to win a demand-legal or illegal. A number of arguments are advanced in defense and all ultimately rest upon the fact that the collective-bargaining agreement between the Union and this company requires union membership by the general foreman; the Respon- dent calls this one phrase "the heart of the whole case." None of the contentions suffices to defeat the complaint. There is no legal precedent for the proposition that a con- tract clause requiring union membership by supervisors as a condition of employment is not in itself an unfair labor practice. International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 [Bell Supervisors Protective Asso- ciation] v. N.L.R.B., 487 F.2d 1113 (C.A.D.C., 1972), fn. 69. And in Toledo Locals Nos. 15-P and 272 of the Lithogra- phers and Photoengravers International Union, AFL-CIO (Toledo Blade Co.), 175 NLRB 1072 (1969), involving an- other local of the parent organization of the Respondent Union here, the Board adopted the following language of the Trial Examiner: ". . . such discipline by a union, even though the employer may have consented to the compulso- ry union membership of the supervisor under a union-se- curity clause, is an unwarranted `interference with the employer's control over its own representatives,' and de- prives the employer of the undivided loyalty of the supervi- sor to which it is entitled." Accord: Bell Supervisors Protec- tive Association, supra. The Union reads its contract as limiting the Company so that any and every member of management may engage in only those mangerial acts specified in haec verba in the agreement. An extension of this argument is that because the contract does not specify how much time the steward or the employees may devote, during working hours, to discussion of union affairs, they all may do so without lim- it. From this it follows, according to the Respondent, that it may force the removal of any foreman doing anything not conceded to him by the Union, or from imposing any limitation upon union activities during working hours, and never mind Section 8(b)(1)(B) of the statute. Thus, accord- ing to Vitto, a witness for the Respondent, when asked by Culpepper to leave the composing room, Mambeck an- swered "I'll leave when I get through . . . he would leave when he got through with his Union business." Earisman also called by the Respondent, testified Mambeck told Culpepper on the composing room floor "he [Culpepper] is not supposed to be out on the floor formanizing [sic]." There is nothing in the contract that limits the right of the employer to run its business, to expect people to work during the time for which they are being paid, or to take any action in the interest of the Company. Indeed this is the very area, external to union affairs, of which the rele- vant cases speak. "The supervisor-employer relationship is impermissably affected in an adverse manner , through the union's subversion of the undivided loyalty owed by the supervisor to his employer when he is properly acting to further the interests of his employer." Bell Supervisors, COLUMBIA TYPOGRAPHICAL UNION NO. 101 91 supra. This statutory protection from union coercion af- forded the employer by the statute cannot be denied by any innuendo or strained reading of its collective-bargain- ing agreement. For the argument that the Adams Company waived its legal rights under Section 8(b)(1)(B) the Respon- dent relies entirely on a contract clause which reads the foreman "shall not be subject to fine, discipline, or expul- sion by the Union for any act in the performance of his duties as foreman, when such act is authorized by this Agreement." This is hardly that "clear and unmistakable language" requisite under the law for depriving unions of their statutory prerogatives. Timken Roller Bearing Compa- ny, 138 NLRB 15 (1962). The employer's rights merit no less protection. To the contrary, what is written into the contract, albeit not in so many words, is that the employees will work for their pay, and that the employer may see to it at any time that they do so. Such reading of the contract is dictated of necessity from the fact it provides the employ- ees will be paid so much or so much. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, fn. 10. In Timken Roller Bearing the Board considered statutory rights en- joyed by unions, and said that every such right "exists by virtue of the statute apart from any contract concession by the employer." No less do the rights of employers under this statute have validity apart from union concessions. But even assuming there was any disagreement between Main- beck and Culpepper over the import of the existing con- tract, the Company was still entitled to the supervisor's "undivided loyalty." Meat Cutters Union Local 81 [Safeway Stores] v. N.L.R.B. 458 F.2d 794 (C.A.D.C., 1972). Both parties to the underlying dispute-the Union and the Company-offered evidence to prove an ancient per- sonal animosity between the steward and the general fore- man. It is all beside the point; neither is obligated to like the other, so long as each keeps his activities within the ambit alloted him by the scheme of the statute. Compare: Signal Manufacturing Company, 150 NLRB 1162 (1965), enfd. 351 F.2d 471 (C.A. 1, 1965), cert. denied 382 U.S. 985 (1966). A final argument is that because this Company, and others in the immediate geographical area, permitted the Respondent's agents to engage in union activities during working hours with the employees without limitation, the Respondent has forever surrendered the right to impose any limitation on the conduct. The short answer to this is that no party-union or employer-surrenders any statuto- ry right "simply because it was unsuccessful in obtaining a provision in the contract requiring" the other party to abide by rules of law. One day, while Mambeck was in the plant as usual, the foreman invited him to his office to discuss a number of issues in dispute between them. The two sat and conferred for about 30 minutes. Culpepper's recollection was that they talked about the justification or absence of justifica- tion for the December layoff, the proper method for the steward to obtain payroll information for union purposes, the kind of work orders the employees were required to accept from the foreman, etc. ". . . I told him that as far as I was concerned, he could make a grievance on any issue he would like to. I would like the disruption of the compos- ing room to stop, and we would argue the grievance down at the Printing Industry of Washington." Mambeck testi- fied Culpepper wanted to talk to him "about union mat- ters, as a chairman, not as an individual employee .... . He added they discussed "the layoff, which I considered illegal, and how we could settle this thing? . . . it was a conference of the Union representative and the foreman." At the end of the meeting Mambeck first became aware that there was a recording machine on the desk and that it had been functioning during the conference. He accused Culpepper of infringing on his constitutional rights. Some words were exchanged, and the upshot of this incident was that when charges were filed against Culpepper later, after Mambeck had been arrested, an added charge was based on this hidden use of the recording device. The union trial committee found Culpepper guilty as charged and he was fined an additional $1,000 for the offense. I find that by imposing this additional fine on the gener- al foreman as punishment for the manner in which he chose to carry on his negotiations with the union represen- tative the Respondent committed a further unfair labor practice in violation of Section 8(b)(1)(B) of the Act. The conference with which the Union found fault was strictly part of the collective-bargaining procedure, a discussion of the merits of grievance matters. The general foreman chose to do it his way, to look after the interests of management by recording the steward's words with precision and with the steward off guard. He did not thereby inhibit Main- beck; he did nothing to interfere with the union representative's freedom in his functioning as the spokes- man of the majority agent. It would not be conducive to the entire precess of collective bargaining if one party could dictate the exact manner in which the other must conduct itself in negotiations, or in grievance handling. Free collective bargaining means that neither party coerces the other. The apparent difficulty here arises from the same anomaly that underlay the basic disagreement between these two men and which lead to Culpepper's expulsion and the strike. The foreman wears two hats; under the scheme of the statute, and particularly Section (8)(b)(lXB), the management figure-like his counterpart, the union- man-must be free to act independently of any improper force exerted by the other.4 THE REMEDY Having found that the Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(B) of the Act, it will be recommended that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action which I find necessary to effectuate the policies of the Act. The Respondent must rescind its action fining William Culpepper and expunge all records of those fines from its files, as well as any record of the expulsion of Culpepper from union membership. Part of the Union's On November 9, 1972, the Respondent filed a motion to dismiss the complaint, citing Houston Mailers Union No 36 (Houston Chronicle Pub- lishing Co.), 199 NLRB 804 (1972), as authority. The motion is denied as in my opinion the cited case is distinguishable. In any event in a field of developing law it is best for the Board to enunciate principles in the first instance. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawful coercion upon the Company was to compel it to hire two union members through whom the general fore- man must convey his work orders or directions to the rank- and-file employees. The evidence shows that throughout the time these two men, first Lawrenson and then Shau- gruie, functioned in this manner, one half of their time was devoted to regular production work and one half merely to passing the general foreman's orders on to the employees. That situation is still prevailing. The Respondent must be ordered to reimburse the Company therefore for one half the amount these two men have been paid since the time of the strike in February 1972, and until such time as the use of these men or anyone like them is no longer compelled upon the Company. CONCLUSIONS OF LAW By fining William Culpepper $1,000 for the use of a tape recording machine in a grievance meeting and $5,000 for imposing a time limitation on the Union steward's privilege to conduct union activities during working hours in the shop, by expelling William Culpepper from the Union, by striking the Adams Printing Company to force the removal of its general foreman , and by threatening to picket the premises of Type Incorporated, and Merkle Press, in fur- therance of this unlawful pressure upon the Adams Com- pany, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(I)(B) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, I issue the following recommended: ORDERS Columbia Typographical Union No. 101, International Typographical Union of North America, AFL-CIO, the Respondent herein , its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Fining, expelling, or otherwise disciplining supervi- sors of Byron S. Adams Printing, Inc., for the purpose of restraining and coercing that Company in the selection of representatives for the purpose of collective bargaining or adjustment of grievances. (b) Engaging in a strike against that Company or threat- ening to picket related companies for the same purpose. (c) In any like or related manner restraining or coercing Byron S. Adams Printing, Inc., in the selection of represen- tatives for the purpose of collective bargaining or the ad- justment of grievances. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Rescind and expunge from its files all records of the fines levied against William Culpepper and advise him in writing that the said fines have been rescinded and that the records of such fine have been expunged. (b) Reimburse Byron S. Adams Printing, Inc., in the manner set forth under the section entitled "The Remedy," for moneys paid to members of the Respondent Union for functioning as substitute general foremen forced on that Company by the Respondent. (c) Post at its office and meeting hall and at any bulletin boards maintained by it at the Byron S. Adams Printing, Inc., Company Plant, copies of the attached notice, marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 5, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director signed copies of said notice for posting by Byron S. Adams Printing, Inc., if willing, in places where notices to its composing room em- ployees are customarily posted. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5In 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. 6In the event that the Board's Order is enforced by a Judgement 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fine, expell or otherwise discipline Wil- liam Culpepper or any other supervisor of Byron S. Adams Printing, Inc. who is a member of this labor organization, for mechanically recording a grievance procedure conversation with representatives of our Union or for imposing a time limitation on any of our representatives for purposes of carrying on union busi- ness in that Company's composing room during work- ing hours. WE WILL NOT engage in a strike against the Byron S. Adams Printing, Inc. or threaten to picket the prem- ises of Type, Incorporated, or Merkle Press, for pur- poses of forcing the Adams Company to remove its general foreman. WE WILL rescind and expunge from our files all re- cords of the fines levied against William Culpepper and of his expulsion from our organization. WE WILL reimburse the Byron S. Adams Printing, Inc., for monies paid to any of our members for func- tioning as substitute general foremen in the Company's composing room. BYRON S . ADAMS PRINTING, INC.