Graphic Arts International Union

GRAPHIC ARTS INTERNATIONAL UNION Graphic Arts International Union, AFL-CIO and The Tribune Company Local No. 220 of the Graphic Arts International Union, AFL-CIO and The Tribune Company Photoengravers Pension Welfare Fund, An Agent of the Graphic Arts International Union, AFL-CIO and The Tribune Company. Cases 12-CB-1604, 12-CB-1656-1, and 12-CB-1656-2 October 13, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On June 8, 1976, Administrative Law Judge Ber- nard Ries issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: Pursuant to charges filed on August 7 and December 24, 1975, and a complaint issued on January 23, 1976, this case came on for hearing at Tampa, Florida, on April 5, 1976. The com- plaint alleges, in substance, that Respondents violated Sec- tion 8(b)(1)(B) of the Act by denying withdrawal benefits from Respondent Pension Welfare Fund, hereinafter sometimes called Fund, to certain supervisors who had re- signed from Respondent Union. Respondents' answer de- nies, inter alia, that Respondent Fund is an agent of Re- spondent International Union, and further denies that any of the Respondents violated Section 8(b)(1)(B) by the con- duct alleged in the complaint. Briefs were received from 379 General Counsel and Respondents on or about May 11, 1976. Upon the entire record in this proceeding and after due consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION The Charging Party in this case, The Tribune Company, is a Florida corporation having its principal place of busi- ness in Tampa, Florida, where it is engaged in the business of printing and distributing newspapers. Tribune Company subscribes to interstate news services and advertises prod- ucts which are sold nationwide. During the 12 months pre- ceding the issuance of the complaint, a representative peri- od of time, Tribune Company had a gross volume of business in excess of $200,000. The answer admits, and I find, that the Tribune Company is now, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The answer admits, and I find, that the Respondent In- ternational and Local Unions are now, and have been at all material times, labor organizations within the meaning of Section 2(5) of the Act. I further find that Respondent Fund is, as the answer admits, a trust fund established un- der a trust agreement in accordance with the provisions of Respondent International's constitution and laws, for the purpose of paying pension and related benefits to covered members of the Union. II. THE ALLEGED UNFAIR LABOR PRACTICES 1. Relevant Facts The constitution of Respondent International provides for the establishment of a trust fund known as the Pho- toengravers Pension Welfare Fund. It further provides that the assets of the Fund shall be used in accordance with the terms of a plan to be established by the trustees for imple- menting the Fund. The constitution requires that all mem- bers be covered by, and contribute to, the Fund; the Fund is primarily financed by these mandatory contributions from covered members, which are denominated as a "spe- cial benefit per capita tax" and are considered part of the dues structure. The Pension Welfare Plan drawn up by the trustees, who are all members of Respondent's International Council, provides that a covered member who "withdraws or resigns from membership in the International in accordance with the withdrawal or resignation provisions of the Constitu- tion and Laws of the International" shall be entitled to receive a refund of up to three-quarters of his contributions since January 1, 1966.1 Section 21.9 of the international constitution provides that "[a] member may resign from membership only if he is in good standing and has ceased If such a member has made less than I full year of contributions, he receives no withdrawal benefits, members who have made contributions for more than 1 year receive refunds of various percentages of their contribu- tions, depending on the amount of their contributions 226 NLRB No. 69 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be engaged as an employee or in a supervisory capacity in an industry within the jurisdiction of the International, but continues otherwise to be associated with such indus- try.,, Not long after the Supreme Court handed down its deci- sion in Florida Power & Light Co. v. International Brother- hood of Electrical Workers, Local 641, 417 U.S. 790 (1974). The Tribune Company, the Charging Party here, ordered six of its supervisors to resign their memberships in the Union. Disobedience of the order would have resulted in their being demoted to the rank-and-file. The parties have stipulated that five of them possessed supervisory authority within the meaning of-the Act, and that, specifically, they were authorized to adjust employee grievances. On August 29, 1974, the supervisors wrote to Respon- dent Local notifying it that they were resigning from the Union effective September 1, 1974. Subsequently, on Sep- tember 20, 1974, the supervisors wrote to the Fund asking that they be paid the withdrawal benefits to which they believed they were entitled under the plan. There followed an exchange of several letters, unnecessary to detail here, between the supervisors, the Fund administrator, and the president of the Local. The only letter in evidence which gives any indication of the amount of withdrawal benefits which might be due the resigned members is one from the Fund's administrator. It states that Supervisor McMahan, having contributed $2,056.64 to the Fund, would theoreti- cally be eligible for a withdrawal benefit, under section 5.10 of the plan, of $732.32. Eventually, on June 13, 1975, the attorney for the super- visors wrote to the Fund's administrator, demanding pay- ment. On June 26, 1975, counsel for the Fund replied. He noted that the plan provided that withdrawal benefits would be paid only to members who resign from the Inter- national "m accordance with the Constitution and Laws of the International." Pointing to the provision of the interna- tional constitution that a member may resign only if he has ceased to be employed in an industry within the jurisdic- tion of the Union, and to the fact that the supervisors had continued to be employed in the industry after the date of their tendered resignations, counsel for the Fund conclud- ed that the resignations were not in conformity with the constitution and laws of the International and that the su- pervisors were therefore not entitled to withdrawal benefits under the provisions of the plan. One of the six supervisors named in the complaint was Arthur L. Rex. The complaint was amended at hearing to delete Rex's name. The record shows that although Rex, a supervisor, had originally resigned from the Union as re- quired by the Charging Party, subsequently there was a relocation of Charging Party's business, at which time Rex applied to the Union for readmission to membership. His application was accepted, and, upon payment of back dues, he was reinstated as a member in good standing, with full entitlement to all rights in the Fund and other benefits retroactive to the time of his resignation. B. Discussion and Conclusions The complaint alleges that by refusing withdrawal bene- fits to the supervisors "for the reasons set forth" in Respon- dent Fund's June 26, 1975, letter-that the supervisors, since they continued to be employed in the industry, had not validly resigned from the Union and therefore were not entitled to such benefits under the rules of the plan-Re- spondents violated Section 8(b)(1)(B) of the Act. Section 8(b)(1)(B) makes it an unfair labor practice for a union to "restrain or coerce . . . an employer in the selec- tion of his representatives' for the purposes of collective bargaining or the adjustment of grievances." In Florida Power & Light Co., supra, reviewing the Board's evolving construction of Section 8(b)(1)(B), the Supreme Court pointed out that, for more than 20 years after its en- actment, the Board hewed close to the literal language of the section, holding it applicable to-such union conduct as picketing employers to secure removal of an industrial rela- tions consultant, attempting to force employers to join or resign from multiemployer associations, and demanding that foremen be selected from the ranks of union members. The restriction of Section 8(b)(1)(B) to such instances of direct pressure against employers was terminated in 1968 when, in San Francisco-Oakland Mailers' Union No. 18, In- ternational Typographical Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968), the Board held violative of the section a more indirect kind of pressure-disciplinary action against supervisor-members of, the Union for alleg- edly assigning unit work in violation of the bargaining agreement. Thereafter, the Board "extended §8(b)(1)(B) to proscribe union discipline of management representatives both for the manner in which they performed their collec- tive-bargaining and grievance-adjusting functions, and for the manner in which they performed other supervisory functions if those representatives also in fact possessed au- thority to bargain collectively or to adjust grievances." Florida Power & Light Co,, supra, 417 U.S. at 800. In the two consolidated cases before the Court in Florida Power, the Board had expanded the "indirect pressure" doctrine to apply to union discipline of supervisor-members for perfor- mance of rank-and-file work during a strike, "on the theory that the performance of such work during a strike is an activity furthering management's interests." 417 U.S. at 802. The Court found no showing in the legislative history that "Congress sought to extend protection to the employer when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance adjustment" (417 U.S. at 804), and held, as- suming but not deciding that the Oakland Mailers' decision fell "within the outer limits of" the following test, that "a union's discipline of one of its members who is-a superviso- ry employee can constitute a violation of §8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his ca- pacity as, grievance adjuster or collective bargainer on be- half of the employer." Ibid. The complaint here is premised on an apparently unique theory which combines aspects of both the "direct pres- sure" and "indirect pressure" lines of authority. Like the "direct pressure" cases, the theory involves a claim that the union rule under consideration here may result in a possi- ble diminution of the range of supervisors available to the employer, and hence is a literal restraint on the employer's GRAPHIC ARTS INTERNATIONAL UNION ability freely- to select the supervisors he wishes to represent him for grievance adjustment and bargaining purposes. Like the "indirect pressure" cases, the present alleged re- straint is imposed not directly against the employer, but rather against the supervisor; unlike the "indirect pressure" cases, however, the asserted consequence of that restraint upon supervisors is not to effect the "substitution of atti- tudes rather than persons" (Oakland Mailers,` 172 NLRB at 2173), but, as in the "direct pressure" cases, to affect the choice of who shall be the supervisors. It is General Counsel's thesis that Respondent's uniform application of its rule refusing to grant withdrawal benefits from the Fund to members who resign from the Union but who remain employed in the industry has the effect, -inso- far as it is applied to supervisor-members, of restraining an employer "in the selection of his representatives" because, General Counsel argues, "a union member under these cir- cumstances would lose valuable accrued monetary benefits if he opted to become or remain a supervisor." It thus ap- pears to be General Counsel's contention that application of the rule to supervisors may have the effect of narrowing the pool of supervisors available to an employer because of the "imminent prospect" that the supervisors might choose to retain their fund benefits and forfeit their supervisory jobs, rather than choose to forfeit their benefits and retain theirijobs. In General Counsel's words, the employer, as a result of application of the rule, "has been and is effective- ly prevented from obtaining and retaining supervisors in- cluding supervisors who are acting,,as here, as grievance adjusters." - - - General Counsel asserts that because the right to such benefits is based on a constitutionally valid resignation, the supervisors cannot, under the international constitution, "validly" resign and receive those benefits without leaving the industry, and the rule -therefore has the potential of restraining them from remaining'ni a supervisory capacity where, as here, their employer demands that they shed their union affiliation? It should be understood that what General Counsel launches here is an attack which seeks extirpation of the withdrawal benefits rule itself, and sub- stitution of a new rule which would grant withdrawal bene- fits to all members who resign, regardless of whether they remain in the industry. For purposes of an allegation that Section 8(b)(1)(B) has been violated, however, the question must necessarily be whether the rule as presently applied tends to restrain the Charging Party in the "selection of its representatives" for grievance adjustment and collective bargaining. Pragmati- cally viewed, it seems most improbable that the existence 2 Although a literal reading of the international constitution would mean that there is no effective way for a member to resign from the Union if he remains employed in the industry, Respondents' brief makes clear that Re- spondents do not claim that a member may not dejure resign-they contend, rather, that the resignation of a member who thereafter continues to work at the trade has the effect'of precluding him from the benefits which would accrue from his leaving the trade. In Local 205, Lithographers and Photoengravers International Union, A FL- CIO (The Genera! Gravure Service Co, Inc.), 186 NLRB 454, fn 3 (1970), the Board held that this same constitutional provision did not vitiate the validity of telegraphic resignations by employee-members who chose to cross a picket line; even though they remained in the industry, their tele- grams "effectively terminated their respective memberships in the Union." 381 of ihe'Fund's rule which bars supervisors from collecting withdrawal benefits because they -remain in the industry after resigning from the Union would have any influence whatsoever on their decision whether to so resign. It is ob- vious that the rule, as it stands, visits such a remote and conditional loss on a supervisor who leaves the Union as to be realistically incapable of characterization as a restrain- ing influence in his decision whether to resign from the Union. The reason is that the rule as now constituted af- fords only a possibility of a potential right to withdrawal benefits, even for a supervisor who defies his employer's ultimatum and retains' his union membership. Withdrawal benefits can be realized by a nonsupervisory member, under the constitution, only at such time as he ceases working in the trade. In all likelihood, a supervisor who, faced with an employer ultimatum, chooses to remain in the Union rather than forfeit his potential right to with- drawal benefits would continue' to work in the industry as an employee; he therefore would have no right to withdraw benefits unless and until he left the industry prior to retire- ment. Thus the asset is not, as General Counsel calls it, a "valuable accrued monetary benefit," but is rather, under the present rule, a most speculative and contingent one, which the supervisor might never realize even if he were to become a rank-and-file employee. Surely the supervisors here, if they considered the matter at all in determining whether to resign, recognized that fact. Futhermore, as the case of Arthur Rex shows, supervisors who resign from the Union and then join again will be permitted to recapture that inchoate right by payment of back dues, a fact which might console any supervisors who, faced with the require- ment of resignation, may conceivably concern themselves about the loss of a right, if and when they should leave the industry, to collect withdrawal benefits from the Fund. Obviously then, in the, normal course of events, applica- tion of the present rule would have no direct and immedi- ate impact upon supervisors in their decision whether to resign from the Union,'and under the rule as applied, it is impossible to infer any real restraint or coercion arising from the rule within the intendment of Section 8(b)(1)(B). The General Counsel,thus asks for gravy,for supervisors who joined the Union voluntarily,3 knowing (or being held to the knowledge) that even if they eventually resigned from the Union, but remained in the trade, they, would have no right to withdrawal benefits. He challenges the rule as "an archaic and an anachronistic vestige that should be stricken." He asks, that is, that the Fund be required, in effect, to vest, and permit withdrawal of certain benefits in all instances of resignation, even though its present rules do not allow such a privilege. But the record discloses no statutory requirement, Federal or State, that Respondents adopt such a rule, and I assume that their present provisions are, in conformity with, law. That as- sumption further leads me to believe that the Fund could lawfully choose to provide no withdrawal benefits whatso- ever in the event of resignation.' Because it provides them under certain circumstances does not convert its refusal to 3 Florida is a right-to-work State 4 A perhaps equally appropriate remedy here, not suggested by General Counsel, would be to order the Fund not to pay withdrawal benefits to Continued 382 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD do so in other circumstances into a legally vulnerable "fi- nancial penalty" which, General Counsel asserts, the rule imposes. The Court in Florida Power recognized the likelihood that supervisory resignation from unions would entail cer- tain consequences. It noted that the supervisors in one of the cases before it "received substantial benefits, including participation in the International's pension and death ben- efit plans and in group life insurance and old age benefit plans," and that, in the other case, the supervisors received "substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution." In discussing the problem of "divided loyalties," which the Court held that Congress had addressed by enacting Sections 2(3) and (11) and 14(a) rather than Section 8(b)(1)(B), the Court went out of its way to state (417 U.S. at 812, fn. 22): The supervisor-member is, of course, not bound to re- tain his union membership absent a union security clause, and if, for whatever reason, he chooses to re-- sign from the union, thereby relinquishing his union benefits, he could no longer be disciplined by the union for working during a strike. [Emphasis sup- plied.] The Court thus recognized that when, as here, an employer exercises his power to require supervisors to resign from a union, certain anticipated and acceptable consequences at- tach, including the supervisor's "rehnquish[ment of] his union benefits." General Counsel recognizes the general validity of this assertion. His brief states, "This is not a case where the supervisors simply resigned and lost the benefits incidental to resignation." He contends that because the supervisors lost the benefits "not merely as an incident to resignation," but because they failed to withdraw from the industry when they resigned, a different factor is'interjected. As pre- viously discussed, however, the operation of the existing rule is such that it cannot reasonably be inferred that the loss of this contingent "benefit" conceivably exerted any restraining influence on the supervisors' deliberations about resignation. The forfeiture of other accrued benefits which automatically accompanies resignation from a union might equally be said to work a restraint on a supervisor's decision to resign, but I doubt seriously that the General Counsel would ask, in view of the Court's quoted language, that all such forfeitures be nullified as a restraint on the supervisors' decisional process. Here, as described above, the "loss" is even more conditional than most. As to the effect of the rule on employees who "could become" supervisors, referred to by General Counsel, the foregoing considerations apply. In addition, the effect of the rule on future supervisors depends on the conjecture that the Charging Party will continue to require supervisors to resign from the Union. anyone in the event of resignation, thus making it impossible for such bene- fits to be a consideration in a supervisor's decision about resigning Thus, I see no reasonable basis for concluding that Re- spondents' withdrawal benefits rule, as presently constitut- ed, tends to limit the number of supervisors available to an employer and therefore tends to restrain or, coerce employ- ers in the selection of their representatives for grievance adjustment and collective-bargaining purposes.5 Any possi- ble tendency of the rule to accomplish that result is, in the words of the Court in N.L.R.B. v. Rochester Musicians As- sociation Local 66, Affiliated with the American Federation of Musicians, 514 F.2d 988, 993 (C.A. 2, 1975), "too insignifi- cant to affect the management rights protected by §8(b)(1)(B)•" I should further point, out that the General Counsel has wisely made no argument predicated on the possible "car- ry-over" effect of Respondents' rule, a test adopted by the Board in such cases as Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216 NLRB 903 (1975), New York Typographical Union No. 6, International Typographi- cal Union, AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publications, Inc.), 216 NLRB 896 (1975), and others. In those cases, as the Board said in Hammond, "The ... question of `when that discipline may adversely, affect the supervisor's conduct' clearly depends on an analysis of the activity engaged in by the supervisor during the period for which the discipline is imposed, rather than on an eval- uation of the union's motivation . . . ." In the present case, there is no union action related to any supervisory activity; the sole union conduct involved may be described as complete inaction following the resignation of supervi- sors from the Union, the latter activity being decidedly not related to management functions. Under Florida Power & Light, supervisors may lawfully be disciplined by a,union for performing rank-and-file work at the instance of an employer; there is no question that the union policy here has even less of a tendency to influence them in performing their 8(b)(1)(B) responsibilities, in view of the severance of their relationship with the Union. In view of the above, I shall recommend dismissal of the instant complaint.6 CONCLUSIONS OF LAW 1. Respondents Graphic Arts International Union, AFL-CIO, and Local No. 220 of the Graphic Arts Interna- tional Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. The_ Tribune Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 5 Indeed, even if the rule caused an immediate loss to supervisors who remained in the industry, which, as discussed, in all but the most unusual case, it does not, I would reach the same conclusion, based on both the language of the Court in Florida Power and its obvious implications, earlier discussed, and the absence of a substantial likelihood that a supervisor, such as McMahan, faced with a choice of a hypothetical direct loss of $732 or of remaining a supervisor, would be influenced to resign his supervisory posi- tion in order to avoid the former- 6 Accordingly, I need not reach the agency questions raised by Re§pon- dents. GRAPHIC ARTS INTERNATIONAL UNION 383 3. Neither Respondents, nor their agents have violated ORDER 7 Section 8(b)(1)(B) of the Act as alleged in the complaint. Upon the foregoing findings of fact and conclusions of The complaint is hereby dismissed. law, I issue the following recommended: conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become 7 In the event no exceptions are filed as provided by Sec. 102 46 of the its findings, conclusions, and Order, and all objections thereto shall be Rules and Regulations of the National Labor Relations Board, the findings, deemed waived for all purposes