Denver Sterotypers and Electrotypers Union, Local No. 13

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Denver Stereotypers and Electrotypers Union, Local No. 13 (Denver Post, Inc.) and Paul Simonette. Case 27-CB-971 August 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND WALTHER On November 30, 1976, Administrative Law Judge Earldean V.S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and Respondent filed an answering brief. 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 of the Administrative Law Judge only to the extent consistent herewith, and to adopt her recommended Order, as modified herein. The facts, as more fully set forth in the Administra- tive Law Judge's Decision, are as follows. In 1971, Denver Stereotypers and Electrotypers Union, Local No. 13 (herein called Respondent) had a multiem- ployer collective-bargaining agreement covering ster- eotypers of The Denver Post, Inc. (herein called the Post), and the Denver Publishing Company (herein called the News), which publishes "The Rocky Mountain News." On February 26, 1971, Respon- dent, concerned that certain technological advances in the stereotyping trade were eliminating jobs in that trade, negotiated a memorandum of agreement with the Post and News in which the Employers agreed that, in the event a stereotyper should lose his job due to technological advances, the parties would negotiate the method of attrition and the Employers would have the right to assign such employee to other work. Subsequently, during the 1973 contract negotiations, the parties entered into another memo- randum of agreement which reaffirmed the earlier memorandum, specifically listed the regular situation holders employed by the Post and News as of February 26, 1971, and provided that only those employees so listed were covered by the memoran- dum of agreement. The list of the News' regular situation holders included Paul Simonette, the Charging Party herein. In addition to regular full-time stereotypers, the News and Post also employed substitute stereotypers when needed. Respondent dispatched the substitutes from a list consisting of stereotypers who did not hold regular full-time jobs. Preference in employ- ment of substitutes was based on a substitute's town priority, i.e., the date on which the substitute first worked as a stereotyper in Respondent's geographi- cal jurisdiction. By letter dated December 30, 1974, the News notified Respondent that it would install a new printing process and that it wanted to negotiate the method of attrition as required by the memoran- dum of agreement. Thereafter, Respondent and the News negotiated an agreement whereby the News agreed to pay certain lump sums to all stereotypers who were not specifically named in the 1973 memorandum of agreement and to certain other employees. On March 28, 1975, the News discontinued its stereotyping department. Simonette, as one of the employees listed on the 1973 attrition agreement, was reassigned to another full-time job in the News' street circulation department. The employees in that department were represented by the Denver Newspa- per Guild, applied for membership in the Guild. He, however, also maintained his membership in Re- spondent. Simonette worked in the street circulation department until the end of April 1975, at which time he went on sick leave due to an aggravation of a prior back injury. Because of his continuing inability to work in the circulation department, the News, by letter dated July 31, 1975, terminated Simonette. He contacted the Guild, but was told that there was no recourse because he had not become a permanent employee. Simonette then told Respondent's president, Cavolt, of his termination, expressed his desire to be considered as a substitute stereotyper on sick leave, and asked that Respondent intercede on his behalf. Cavolt said he would inform Respondent's hiring agent about Simonette's request to be considered as a substitute on sick leave, and would check with Respondent's vice president and chairman of its executive board, Henry, to see whether anything could be done for him. On August 1, Simonette and Henry discussed the situation. Simonette explained that he could not do the work in the circulation department because of his injury. He further explained that he could not immediately return to work because he did not then have a doctor's release. Shortly after this conversa- tion, Henry and Respondent's secretary-treasurer met with officials of the News, including the News' personnel director, Martelon, to discuss Simonette's I The term "situation holder" refers to a regular full-time stereotyper. 231 NLRB No. 96 678 DENVER STEREOTYPERS situation. Respondent's officials asked Martelon if there were any other possibilities for Simonette's employment at the News. Martelon replied that there were no openings which would be suitable for Simonette. Sometime around August 15, Simonette received his doctor's approval to return to work and informed Cavolt that he should now be considered as a substitute stereotyper available for work. Cavolt told Simonette to call Respondent's hiring agent. Cavolt, however, also mentioned that there might be some problem about Simonette's position on the priority list which would have to be considered by Respon- dent's executive board. Cavolt then called an executive board meeting for August 16 to discuss Simonette's placement on the substitute list. At the meeting, the executive board voted to place Simonette at the bottom of that list rather than in the number two position which corresponded to his town priority. According to the testimony of Cavolt, the executive board based its decision on the dying state of the stereotyping trade; Simonette had been guaranteed a job under the attrition agreement, which he had accepted, but subsequently lost; he was not available for any other positions: it was not fair to deprive other substitutes of work; and the executive board felt that the International and local constitutions did not speak directly to Simonette's situation. Following the meeting, Henry called Simonette and informed him that the executive board had decided to treat him as a new stereotyper and to place him on the bottom of the substitute list. According to Simonette's credited testimony, when asked the reason for their decision, Henry replied that it was because of his membership in the Guild. The following week Simonette requested the Interna- tional president to intercede, but the latter said he had no power to do so. Simonette then requested Henry to give him in writing the basis of the executive board's decision. Henry agreed, but never did so. Subsequently, Simonette, pursuant to Respon- dent's bylaws, obtained a sufficient number of signatures on a petition to have a special membership meeting called. The meeting was scheduled and announced through a posting on the bulletin board at the Post. Simonette, however, was not personally notified about the meeting and did not attend. The meeting convened, but because Simonette was not present the meeting adjourned without a discussion of his situation. Thereafter, Simonette received a telephone call from Henry who requested that he withdraw his petition for a special meeting. When Simonette refused, Henry said that he had contacted one of the persons who had signed Simonette's petition and had asked that person to withdraw his signature. Respondent did not subsequently schedule another special meeting. By letter dated September 4, 1975, the executive board sought advice from the International's presi- dent with respect to the Simonette matter. The letter, inter alia, mentioned that Simonette had made application to and had paid dues to another union. By letter dated September 9, the International's president responded that he "was not in a position to make a ruling." Thereafter, Respondent held a regularly scheduled membership meeting on September 17. At this meeting, Simonette secured approval for suspension of the agenda and presented his position concerning his placement on the substitute list. The members of the executive board then revealed the basis for their decision, including, inter alia, his having worked in another shop and having joined another union. The membership voted to sustain the executive board's decision to place Simonette on the substitute list. 1. The Administrative Law Judge, in concluding that Respondent violated Section 8(b)(1)(A) of the Act, found, inter alia, that the executive board's decision to place Simonette at the bottom of the substitute list was tainted by considerations of dual unionism and, therefore, was based on unfair, arbitrary, irrelevant, or invidious distinctions. Re- spondent excepts to the Administrative Law Judge's finding that its placement of Simonette was based in part on his dual unionism on the grounds that such a theory was not alleged in the amended complaint and the matter was not fully litigated at the hearing and that, consequently, it has been deprived of due process. We find merit in this exception. The charge alleged that Respondent violated Simonette's Section 7 rights because of his member- ship in the Guild. The amended complaint, however, in contrast to the charge, specifically alleged that Respondent violated the Act, as follows: Since on or about August 16, 1975, and continuing to date, Respondent has restrained and coerced, and is restraining and coercing, Paul Simonette in the exercise of rights guaranteed in Section 7 of the Act by refusing to fairly represent him as a member in good standing of Respondent since 1962, and by denying him his proper priority on the substitute-stereotyper list at the Denver Post because the Respondent breached its fiduciary duty by failing to apply the relevant provision of the Constitution and By-Laws of the Respondent which are incorporated by reference in the collective bargaining agreement in effect between Respondent and the Employer and 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relegated Simonette to the bottom of the substi- tute stereotyper list. Thus, there was neither a general nor a specific allegation in the amended complaint that Respon- dent placed Simonette at the bottom of the substitute list because of his membership in both Respondent and the Guild. Furthermore, in her opening statement at the hearing, counsel for the General Counsel explicitly stated that the alleged violation lay in Respondent's failure to apply the relevant provision of its constitu- tion and bylaws in depriving Simonette of his proper priority on the substitute list. Thereafter, Respon- dent's counsel raised the issue of the divergence between the theories in the charge and the amended complaint and stated that it was his understanding that Respondent was alleged to have violated the Act solely by failing to apply to Simonette the provisions of its constitution and bylaws. At that time, counsel for the General Counsel did not disabuse Respon- dent's counsel of his understanding. Indeed, despite the introduction of certain evidence with respect to Respondent's consideration of Simonette's dual unionism in placing him on the substitute list, the matter was not fully litigated and at no time during the hearing did counsel for the General Counsel seek to amend the complaint to include an allegation of a violation based on such evidence. Rather, the first time counsel for the General Counsel urged such a theory of a violation was in her posthearing brief to the Administrative Law Judge. In these circumstanc- es, we conclude that the Administrative Law Judge's finding of a violation based on such a theory does not satisfy the requirements of due process and, therefore, was improper.2 2. We nevertheless conclude, as urged by the General Counsel, that Respondent violated Section 8(b)(1)(A) of the Act by failing to apply the relevant provision of its constitution and bylaws when it relegated Simonette to the bottom of the substitute list. In this regard, article II, section 10, of the collective-bargaining agreement between Respon- dent and the Post and the News provides in general terms: The Union will endeavor to furnish a sufficient number of competent workmen to perform efficiently all work within the jurisdiction of the Union and the Union will endeavor to supply straight-time journeymen whenever the publisher has shifts to be filled. 2 See. e.g.. Siltec Corporation. 217 NLRB 282 (1975); Stouffer Restaurant and Inn Corporation, 210 NLRB 336 (1974); Atlantic Coast Fisheries, 183 NLRB 921 (1970). Although various clauses of the contract refer specifically to substitute stereotypers, there is no provision expressly setting forth the manner of selecting substitutes. Article II, section 15, of the contract, however, provides that the general laws of the International, in effect February i, 1973, "shall govern relations between the parties to this agree- ment on those subjects concerning which no provi- sions are made in this contract." There is no dispute that the general laws of the International permit the local union to establish rules regarding the retention of priorities of journeyman situation holders and the application of priorities to substitute stereotypers. Pursuant thereto, Respondent's local constitution and bylaws contain the following provisions with respect to priority on the substitute list: Article XV, Section 4 Sub-Priority. A substitute's priority shall begin on the first day worked in the jurisdiction of Local No. 13. The sub with the oldest priority shall have first claim to the first five days available, the sub with the second oldest priority shall have claim to the second five days available, etc., through the remaining subs in the jurisdic- tion. Article XV, Section 5 A journeyman situation holder losing and/or leaving his situation shall be placed on the sub priority list corresponding with the date of his first working in jurisdiction on current traveler or initiation. The Administrative Law Judge specifically found that when Simonette sought placement on the substitute list he was not a journeyman situation holder who had lost or left his situation, but rather had lost a job in the street circulation department. She therefore concluded that article XV, section 5, did not clearly apply to Simonette. We agree with this conclusion. The Administrative Law Judge, however, made no specific finding as to whether article XV, section 4, was applicable to Simonette. We find that it does apply. In this regard, section 4 does not by its express terms refer to section 5, nor does it otherwise limit eligibility on the substitute list to journeyman situation holders "losing and/or leaving" their situations. It is therefore apparent that section 4 is independent of section 5. Furthermore, that Respon- dent, in fact, considered Simonette to be eligible for placement on the substitute list under the provisions 680 DENVER STEREOTYPERS of its constitution and bylaws is beyond dispute. Thus, at the hearing Respondent conceded that at the time Simonette requested placement on that list he qualified as a substitute. Also, Respondent's action in actually placing Simonette on that list, albeit stripped of his priority, clearly reveals that it considered him to have met the requirements for substitute status. Finally, section 4 provides that "[a] substitute's priority shall begin on the first day worked in the jurisdiction of Local No. 13." (Emphasis supplied). This language unambiguously and absolutely provides that a substitute is entitled to placement on the substitute list in accordance with his town priority. In these circumstances, we find that Respondent's placement of Simonette at the bottom of the substitute list rather than in accordance with his town priority was contrary to the express language of article XV, section 4, of its local constitution and bylaws and in derogation of his clear contractual right under the collective-bargaining agreement. Furthermore, we find, as did the Administrative Law Judge, that Respondent's failure to notify Simonette of the special membership meeting, its attempt to pressure him into withdrawing his request to sched- ule another meeting, and its failure subsequently to schedule such a meeting were indicative of Respon- dent's bad faith in its decision to deprive Simonette of his proper placement on the substitute list. Accordingly, we conclude that Respondent has breached its duty of fair representation with respect to Simonette and has thereby violated Section 8(b)(l)(A) of the Act.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Denver Stereotypers and Electrotypers Union, Local No. 13, Denver, Colorado, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph l(a): "(a) Failing to fairly represent all employees in the collective-bargaining unit by failing to place Paul Simonette on the substitute stereotypers board in accordance with his proper town priority date." 2. Substitute the following for paragraph 2(b): "(b) Make whole Paul Simonette for any loss of wages and welfare, pension, or other benefits incurred by him as of a result of its failure to fairly represent him by failing to place him on the substitute stereotypers board in accordance with his proper town priority date in the manner set forth in the section of this Decision entitled 'The Remedy,' as modified." 4 3. Substitute the attached notice for that of the Administrative Law Judge. 3 General Truck Drivers, Warehousemen, Helpers and Automotive Employ- ees, Local 315, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Rhodes & Jamieson, Lid), 217 NLRB 616 (1975), enfd. 545 F.2d 1173 (C.A. 9, 1976). 4 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that restrains or coerces employees with respect to these rights. WE WILL NOT fail to fairly represent all the employees in the collective-bargaining unit by failing to place Paul Simonette on the substitute stereotypers board in accordance with his proper town priority date. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL place Paul Simonette on the substi- tute stereotypers board in accordance with his proper town priority. WE WILL make whole Paul Simonette for any loss of wages and welfare, pension, or other benefits incurred by him as a result of our failure to fairly represent him by failing to place him on the substitute stereotypers board in accordance with his proper town priority date, with interest. DENVER STEREOTYPERS AND ELECTROTYPERS UNION, LOCAL No. 13 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge: This case was heard before me in Denver, Colorado, on October 5 and 6, 1976. The charge was filed by Paul Simonette, an individual, and served on Respondent on September 25, 1975. The amended complaint, which issued on July 27, 1976, alleges that Respondent violated Section 8(b)(l)(A) of the National Labor Relations Act, as amended. Posttrial briefs were filed by the General Counsel and Respondent on November i, 1976. The basic issue herein is whether Respondent breached its duty of fair representation by refusing to place Simonette on the substitute-stereotyper list in accordance with his town priority date-the date he first worked as a stereotyper within Respondent's geographical jurisdiction. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION The Denver Post, Inc., a Colorado corporation with its principal office and place of business in Denver, Colorado, is engaged at its Denver plant in the publishing of newspapers. In the course and conduct of its business operations, the Denver Post, Inc., annually receives gross revenues in excess of $200,000 and annually purchases and receives goods and materials valued in excess of $50,000, directly from suppliers located outside the State of Colorado, advertises nationally sold products, and sub- scribes to interstate news services. The complaint alleges, Respondent admits, and I find that, at all times material herein, the Denver Post, Inc., has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the past, Respondent has had collective-bargaining agreements covering stereotyper employees with various newspaper publishers in the Denver area. By 1971, Respondent was party to only one collective-bargaining agreement-a multiemployer one covering stereotyper employees of the Denver Post, Inc., herein referred to as t Although the record is not clear, it appears that the other publishers with whom Respondent had collective-bargaining agreements are no longer in business. 2 The memorandum is undated but is an addendum to the collective- bargaining agreement entered into on February 26, 1971. the Post, and the Denver Publishing Company, herein referred to as the News, which publishes the Rocky Mountain News.' In 1971, concerned with the dying state of the stereotyp- ing trade caused by certain technological advances, Respondent negotiated with the News and the Post the following memorandum of agreement. 2 This will confirm the understanding reached in negotiations of the labor contract dated Feb. 26, 1971, pertaining to Article II, Section 12, that the Publishers agree to the principle of attrition in the event of a change to any method of direct printing which would cause a loss of situations in the Stereotyper Department to any one holding a situation on the date of signing said contract referred to hereinabove. In such event, the parties shall negotiate the method of attrition with the understanding the employer shall have the right to assign an employe to other work, provided that the pay and other benefits shall be comparable to those specified in the aforementioned labor contract. The Publishers' obligation to any current situation holder shall cease to exist upon the 65th birthday of any employe. During the 1973 contract negotiations Respondent, the Post, and the News entered into another memorandum of agreement3 which reaffirmed its February 26, 1971, agreement to the principle of attrition in the event a change in the method of printing caused loss of jobs in the stereotyper department. The agreement also specifically named the stereotypers employed as regular situation holders by the News and the Post as of February 26, 1971, and provides that only those persons named were covered by the memorandum of agreement. The employees of the News so named were: Ashley, M. S. Busha, Clyde Cook, E. J. Collins, H. C. Helfrick, G. F. Hite, J. J. Hunter, C. S. Miller, H. A. Miller, W. G. Morris, L. E. Norton, David J. Simonette, Paul Smith, H. E. Stack, T. M. Stinehour, T. E. Jr. In addition to regular full-time employees, known as situation holders, the News and the Post employed substitute stereotypers as needed. These substitutes were dispatched by Respondent from a substitute list which consists of stereotypers who held no regular full-time job or situation. Preference in employment as a substitute was given in accordance with a person's town priority date- the date one first worked as a stereotyper within Respon- dent's geographical jurisdiction. When the substitute list was exhausted, regular situation holders could be dis- patched to either of the two publishers on a rotation basis for overtime or 6th-day employment. The 1973 agreement 3 The memorandum is undated but is an addendum to the collective- bargaining agreement entered into on June 12, 1973, and effective from May 1, 1973, to April 30, 1976. 682 DENVER STEREOTYPERS provided inter alia that eight specifically named substitutes (those with the oldest town priority dates) shall be entitled to all economic and other benefits in the contract which accrue to regular situation holders. These eight were allocated three to the News and five to the Post. These eight specifically named substitutes worked virtually full time. B. Facts By letter dated December 30, 1974, the News notified Respondent that it would be installing a direct printing plastic plate process and would negotiate the method of attrition as required by the addendum to the collective- bargaining agreement. Subsequently Respondent and the News negotiated an agreement whereby the News agreed to pay certain lump sums to all stereotyper employees who were not specifically named in the June 12, 1973, memorandum of agreement and to certain employees who had lost their rights under the 1973 agreement by virtue of having reached the age of 65. On March 28, 19754 the News discontinued its stereotyp- ing department. With several exceptions 5 the employees entitled to severance pay under the 1975 attrition agree- ment, including Respondent's president, Paul Cavolt, and vice president and chairman of executive board, Dale Henry, were placed on the substitute-stereotyper list.6 Those within the top five as to town priority dates, including Henry,7 began work on a virtually regular basis for the Post. The employees listed on the 1973 attrition agreement, including Simonette, were reassigned to other full-time jobs at the News. Simonette was assigned to the street circulation depart- ment in a unit represented by the Denver Newspaper Guild, Local 79. Shortly thereafter Simonette signed an application for membership in the Guild. Simonette worked in the street circulation department for 21 shifts, then on April 28 or 29 went on sick leave due to a back injury which he received prior to his assignment to street circulation but which was apparently aggravated by his job duties in the circulation department. Prior to commencing sick leave he attempted unsuccessfully to secure a transfer out of the street circulation department. Also, while he was on sick leave he asked Andrew Martelon, personnel director at the News, if he could be transferred out of street circulation. Martelon refused, stating that if he transferred Simonette he would have to transfer others. Then Martelon made some mention that Simonette had been doing rototilling while on sick leave.8 Whereupon Simonette suggested that he return to work in the street circulation department. Martelon refused, saying that Simonette could not return because of his injury. During this same period, in mid- to late June, Cavolt telephoned Martelon to inquire regarding Simonette's condition. According to Martelon, at first he refused to I All dates hereinafter are 1975 unless otherwise indicated. ; These included the three employees who had reached 65 years of age and one person who continued in the employ of the News under an arrangement aside from the attrition agreement. 6 This increased the size of the list by approximately 150 percent. Cavolt was sixth on the list. Simonette testified that while he was on sick leave he was self-employed discuss the matter, stating that Respondent no longer had jurisdiction, that while the News was willing to honor and discuss any facet of the 1975 attrition agreement he wanted it clearly understood that Respondent had no jurisdiction over those persons retained in the employ of the News. However, when Martelon was informed that Respondent was paying Simonette sick benefits,9 he conceded that Respondent did have some interest in the matter and because of that agreed to discuss Simonette's condition. Martelon said that he would not have any information until he heard from Simonette's doctors. Thereafter, until Simonette's termination, whenever Martelon encountered Henry or Cavolt at the Post, he would tell them the latest information regarding Simonette's condition. By letter dated July 31, the News terminated Simonette's employment. Simonette immediately contacted the Guild and was informed that he had no recourse since he had not attained permanent status. Simonette then called Cavolt on August 1, informed him of his termination, and stated that he wished to be considered as a substitute on sick leave. Cavolt said he would notify the union hiring agent.?0 Simonette also requested that Respondent intercede in the matter of his termination. Cavolt said he would consult with Henry as to whether something could be done. On August 1, Henry talked to Simonette. According to Henry he asked Simonette why he was terminated. Simonette said he could not do the work. Henry asked if he had a letter from his doctor concerning his fitness for work. Simonette said he had a letter to return to work. Henry asked if he could have the letter or if Simonette would get the letter to the News so he could return to work. Simonette replied, "No, I am holding that for an ace in the hole." Henry then asked, "Would you take a job at the News if we could get you one." Simonette said no. Simonette admits he had a conversation with Henry but denies Henry's version. According to him Henry said he would like to see the letter. Simonette thought he was referring to the termination letter and replied, "I have it here." He does not recall making any statement that the letter was his ace in the hole. He denies saying he would not accept a job at the News. According to him, Henry asked if he would return to street circulation if he was offered the job. He replied, "No way." Henry then asked if he would take a janitor's job. Simonette said he would if he received comparable wages under Respondent's contract. He further said he would consider any other job that would not kill him. I credit Simonette's version of this conversa- tion. On August 1, he did not have a release from the doctor to return to work. Shortly after August 1, upon Henry's request, he and Robert Miller, Respondent's secretary-treasurer, met with Martelon and William Fletcher of the News. They briefly discussed Simonette's physical condition. Then Henry and Miller inquired as to other possibilities for employment of Simonette by the News. They suggested a number of doing rototilling. He claims that this was less aggravating to his back than the bending and lifting required in the street circulation department. 9 Apparently Respondent pays sick benefits as long as the employer does so. i' Respondent controls the substitute list and substitutes are dispatched in accordance therewith. The union hiring agent has this responsibility. 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possibilities of jobs that Simonette might fill, particularly in the mechan;cal department. Martelon said they anticipated no opening in that department in the immediate future, that the News was not unwilling to consider Simonette for any opening, but, subsequent to his transfer to street circulation, there had been no openings that had appeal for Simonette or to which the News was amenable to transferring him. Sometime around August 15, Simonette received his doctor's approval to return to work. He telephoned Cavolt, told him he had been released to return to work and that he should be considered a substitute available for work. Cavolt told him to telephone Don Lee, Respondent's hiring agent. Simonette asked if there was anything he should be aware of. Cavolt said there might be some discrepancy regarding his priority or position on the substitute list that would have to be reviewed by the executive board. Simonette asked if the board had met. Cavolt said nothing had been done. Simonette asked to be kept informed."1 Simonette then telephoned Lee and told Lee to consider him a substitute available for work. According to Cavolt there had been no previous discussion regarding Simonette but during the conversation it occurred to him that Simonette's circumstance 12 raised a problem which proba- bly should be considered by the executive board. Immediately thereafter, Cavolt initiated an executive board meeting which was held on August 16. The only item on the agenda was Simonette's placement on the substitute list. The meeting resulted in a decision that Simonette should be placed at the bottom of the substitute list rather than in the number two position to which his town priority would entitle him.' 3 According to Cavolt and Henry, this decision was reached following a consideration of three things. One, stereotyping is a dying trade; Simonette was guaranteed a job under the attrition agreement which he had taken and lost and which was not available to any other unemployed substitute, that it was not fair under the circumstances to deprive another substitute of work. Two, they consulted the International and Local constitution and bylaws and found nothing on point. Three, upon consulting the International rules and interpretations, they found two which, though not precisely on point, might have some application to the Simonette situation: (S:55-R:22) Member holding regular position outside of the trades, no priority - (1961) The Executive Board rules in a case submitted by Local No. 161, Long Beach, California, that a member who is regularly employed as a teacher cannot hold priority at the trade, and a foreman cannot employ him for extra work in preference to members who work regularly at the trade. " This is a composite of the testimony of Cavolt and Simonette which I find most accurately reflects what occurred. 12 He described this circumstance as having been separated from Respondent's contract and from the Stereotypers for a number of months, and having been guaranteed ajob under the attntion agreement. '' The vote was three to none, with Henry and another member abstaining. Henry did concur with the decision. Henry and Cavolt were substitutes who would be affected by any retention of Simonette's town priority. The other three were regular situation holders. (S:55-R:23) Member of two printing trades unions - (1961) In two instances, the International Board ruled that a man could remain a member of our union and accept employment at another of the printing trades crafts, but could not hold priority, or solicit employment as a member of the I.S. & E.U., while also employed at the other craft. He may accept casual employment at I.S. & E.U. trades at the discretion of the local union. According to Simonette, following the executive board meeting, Henry telephoned and told him the executive board had met and decided to treat Simonette as a new man in town and put him at the bottom of the substitute priority board. Simonette asked why. Henry replied, "Well, because of your membership in the Guild, because you joined the Guild."' 4 Simonette mentioned that he had never been informed that there were any charges or complaints and asked if he could meet with the board, explain his side, and possibly get them to reverse the decision, permit him to work and to seek a decision from the International as to the disposition of his priority. Henry said one of the members was out of town so they could not have another meeting that weekend. Simonette asked about the following week and it was agreed that one of them would call the other. Simonette asked if the executive board had any idea of the implications of its action if presented to a state or Federal agency. Henry said they had thoroughly investigated or researched the matter and knew exactly where they stood. The following week, Simonette requested the Interna- tional president to intercede. He said he was powerless. Simonette then requested that Henry give him in writing the basis of the executive board decision. Henry agreed but never did so. Thereafter, in accordance with Respondent's bylaws, Simonette secured the signatures of 10 members on a petition for a special membership meeting. The meeting was scheduled and announced through a posting on the bulletin board at the Post. However, Simonette was not notified. Since he was not present, the meeting was adjourned. Thereafter, according to Simonette, Henry telephoned and requested that Simonette withdraw his petition for a special meeting. Simonette refused. Henry said he had contacted one of the persons who signed the petition and requested that he withdraw his signature. Simonette said he did not know that a signature could be withdrawn once the petition had been duly submitted to the presidents He then reminded Henry that he was supposed to mail to Simonette the reasons for the executive board's decision. Henry said he could not give Simonette anything in writing because the membership had to approve it. i4 Henry does not recall making this statement. However, in view of the September 4 letter to the International which indicates that the executive board had seriously considered this dual unionism issue, I credit Simonette. 's Henry denies stating he requested the withdrawal of a signature. I do not credit Henry's denial that he said he had requested one of the persons signing Simonette's petition for a meeting to withdraw his signature. I found Simonette to be an honest, forthright witness and, as set forth above, Henry's testimony is incredible in view ofother evidence. 684 DENVER STEREOTYPERS On September 4, the executive board sent a letter to the International president, the body of which reads: An emergency situation has arisen here in Denver, that the Exec. board feels needs your immediate attention. Our next union meeting is Sept. 17th and if at all possible we would appreciate an answer by then. As you know the stereotype dept. at the Rocky Mountain News closed down Apr. Ist and left our men without jobs. Under a letter of attriction [sic] attached to our contract, twelve of these men were placed on jobs in other depts. at the Rocky Mountain News, and were placed on probation in the Denver Newspaper Guild. Since that time these men were accepted into the Guild, 3 of them took honorary withdrawls [sic] and one took a honorary lifetime membership. One of these members Bro. Paul Simonette (115-18- 7634) was released from the News because he was unable to take care of his situation due to a back injury he received earlier. Now Bro. Simonette wants to be placed on the Denver Stereotype sub list according to his town priority, which he would be the number two sub, the Exec. board here voted by majority vote to place him on the bottom of the sub line. We felt that since he had another job and was in another Union he had relinquished his town priority. Then on second thoughts it came to mind that he might have relinquished his membership in the local and International Union, since he made application to and paid dues to another Union. In doing so he violated Art. VI Sec. 11 of the International by-laws. Is he automatically suspended or do we have to bring charges and a trial? This is another first for this local and we would appreciate all the help your office could give us. On September 17, at a regularly scheduled membership meeting, Henry explained the circumstance of the abortive special meeting and secured approval for suspension of the regular agenda so that the Simonette situation could be discussed. Simonette explained his position and Henry and another member of the executive board explained the basis of the executive board's decision. According to Simonette's credited testimony, Henry mentioned as a reason working in another shop and joining another union. He does not recall whether any mention was made of the two interpre- tations that Cavolt and Henry testified were considered by the Board. Henry also mentioned that the Board had requested an interpretation from the International. The membership voted to sustain the action of the executive board in placing Simonette at the bottom of the substitute list. Subsequently, in accordance with this position on the list, Simonette has been offered employment. He has refused all such offers.16 is Simonette said that for personal reasons and by reason of other employment he has not been available for work on these occasions. The offers w.ere in July, August. and September 1976. 17 Actually it is the International constitution and bylaws which are C. Conclusions The complaint alleges that Respondent has violated Section 8(bXIXA) of the Act by denying Simonette his proper priority on the substitute-stereotyper list in that Respondent breached its fiduciary duty by failing to place him on said list in accordance with the relevant provisions of its constitution and bylaws which are incorporated by reference in the collective-bargaining agreement.17 Re- spondent, on the other hand, contends that there is no contractual provision applicable to Simonette's circum- stance and that even if Respondent erred in its interpreta- tion of the contract its decision was reasonable and in good faith and thus does not contravene its duty of fair representation. It is well settled that a union which enjoys the status of exclusive collective-bargaining representative has an obli- gation to fairly represent employees. Vaca v. Sipes, 386 U.S. 171 (1967). This duty of fair representation requires that a union serve the interest of all bargaining unit employees fairly and in good faith, and without hostile discrimination against any of them on the basis of unfair, arbitrary, irrelevant, or invidious distinctions. Vaca v. Sipes, supra; Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers America, AFL-CIO [Goodyear Tire & Rubber Co. of East Gadsden, Ala.] v. N.L.R.B., 368 F.2d 12 (C.A. 5, 1966), cert. denied 389 U.S. 837 (1967); Miranda Fuel Company Inc., 140 NLRB 181 (1962); Barton Brands, Ltd., 213 NLRB 640 (1974). Mere negligence or poor judgment is insufficient to establish a breach of the duty of fair representation, for the Act does not guarantee the quality of representation and "a wide range of reasonableness must be allowed a statutory representative in serving the unit it represents subject always to complete good faith and honesty of purpose in the exercise of its discretion." Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (C.A. 3, 1970). However, the duty of fair representation is more than an absence of bad faith or hostile motivation, at least as to rights under an existing collective-bargaining agreement, and implicit therein is the idea that a union breaches its fiduciary duty when it deprives an employee of a clear contractual right because a majority of its members want it to do so. General Truck Drivers, Warehousemen, Helpers and Automotive Employees, Local 315, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Rhodes & Jamieson, Ltd.), 217 NLRB 616 (1975); Miranda Fuel Company, Inc., supra. Here General Counsel argues that article XV, sections 4 and 5, of Respondent's constitution and bylaws is incorpo- rated into the collective-bargaining agreement and is clearly applicable to Simonette's situation. The contract states at article II, section 18: The Union will endeavor to furnish a sufficient number of competent workmen to perform efficiently all work within the jurisdiction of the union and the Union will incorporated. There is no dispute that the Local is permitted under the International constitution to formulate rules governing the retention of pnornties and that to the extent such rules exist they govern the application of priorities on the substitute list. 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD endeavor to supply straight-time journeymen whenever the publisher has shifts to be filled. Article XV, section 4, of Respondent's constitution and bylaws provides: Sub-Priority. A substitute's priority shall begin on the first day worked in thejurisdiction of Local No. 13. The sub with the oldest priority shall have first claim to the first five days available, the sub with the second oldest priority shall have claim to the second five days available, etc., through the remaining subs in the jurisdiction. Article XV, section 5, states: A journeyman situation holder losing and/or leaving his situation shall be placed on the sub priority list corresponding with the date of his first working in jurisdiction on current traveler or initiation. Contrary to the General Counsel, I conclude that article XV, section 5, is not clearly applicable to the circumstances herein. The fact is that, when Simonette sought placement on the substitute list, he was not a journeyman situation holder who had lost or left his situation as a stereotyper. He had lost a job in the street circulation department. Unlike the General Counsel, I do not feel this fact is irrelevant. True, under the circumstances one might reasonably decide that the section should apply. On the other hand, an opposite conclusion is not necessarily unreasonable. Reasonable men could differ as to the applicability of the section to the Simonette situation.'8 Thus, the test is whether Respondent exercised its discretion in an arbitrary or discriminatory manner or in bad faith. Respondent has violated its duty of fair representation and Section 8(b)(1)(A) of the Act only if this question can be answered in the affirmative. Miranda Fuel Company, supra; Rhodes & Jamieson, Ltd., supra. I conclude that it can. I credit Simonette's testimony that Henry told him he was being placed on the bottom of the substitute list because he was a member of the Guild. Although Cavolt and Henry do not list this as a basis for the decision, I find that this dual unionism was discussed by the executive board, whether as a basis for the decision or as a device to secure support therefor. It is clear that in some manner it was an important consideration and that Respondent was none too sure that its decision was sound. Evidencing this is the peculiar failure to submit the decision, and its alleged basis, to the International for an interpretation. Instead, Respondent sought an interpretation based solely on dual unionism. Again, at the membership meeting the question of dual unionism was put to the membership. It is well established that any attempt to derogate one's employment status because of dual unionism is violative of the Act. Plumbers and Steamfitters, Local 198, 210 NLRB 974; Progressive Mineworkers, Local 167, 173 NLRB 1237. Clearly, a decision to deprive an employee of his priority '8 It is undisputed that those on the attrintion list were not specifically told they would lose their priority. '" Henry testified that the reason he asked Simonette to forgo the special meeting was because the petition had been lost. I consider this an insufficient reason to refuse the special meeting. status which is tainted by considerations of dual unionism is a decision made on the basis of unfair, arbitrary, irrelevant, or invidious distinctions. Although not alone decisive, I also find as additional indications of bad faith the failure to notify Simonette of the special meeting, the attempt to pressure him into withdrawing his request to schedule another such meeting, and the failure to schedule another special meeting.' 9 In all of the circumstances, I conclude that Respondent's decision to deprive Simonette of his town priority and place him at the bottom of the substitute-stereotyper list was based at least in part of unfair, arbitrary, irrelevant, and invidious considerations and was made in bad faith. Therefore, I find that by this action Respondent violated its duty of fair representation and Section 8(b)( )(A) of the Act. CONCLUSIONS OF LAW I. The Denver Post, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act and at all times material herein has been the exclusive representative of certain employees of the Employer for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By failing to represent Paul Simonette in a fair and impartial manner, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(bX I)(A) 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. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that Respondent has breached its duty of fair representation resulting in loss of employment by Paul Simonette, I shall recommend that he be placed on the substitute-stereotyper list in accordance with his original town priority date 20 and that Respondent make Simonette whole for any loss of pay he may have suffered by reason of its violation of the duty to fairly represent him, by payment of a sum of money equal to what he normally would have earned as wages had he been placed on the substitute-stereotyper list in accordance with his proper priority date. All backpay shall be with interest at the rate of 6 percent per annum and shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law and the entire record in this proceeding, and pursuant 20 The exact date is not in the record. Simonette testified it was in June 1962. 686 DENVER STEREOTYPERS to Section 10(c) of the Act, I hereby recommend the following: ORDER 21 The Respondent, Denver Stereotypers and Electrotypers Union, Local No. 13, Denver, Colorado, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing unit employees in the exercise of their rights guaranteed by Section 7 of the Act by failing to represent them in a fair and impartial manner as to placement on the substitute-stereotypers list. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Place Paul Simonette on the substitute-stereotypers list in accordance with his proper town priority date. (b) Make whole Paul Simonette for any loss of wages and welfare, pension, or other benefits incurred by him as a 21 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. result of its failure to accord him the fair and impartial representation to which he was entitled, in the manner set forth in the section entitled "The Remedy." (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail to the Regional Director for Region 27 sufficient copies of said notice, on forms provided by him, for posting at the premises of the Denver Post, Inc., if the latter is willing. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 22 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 687