Mailers Union Local No. 7 affiliated with International Typographical Union (The Kansas City Star Company)

MAILERS UNION LOCAL NO. 7 Mailers Union Local No. 7 affiliated with Interna- tional Typographical Union (The Kansas City Star Company) and Charles Paynter. Case 17- CB-2371 July 13, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On November 25, 1981, Administrative Law Judge Russell L. Stevens issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and 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 Respondent, Mailers Union Local No. 7 affiliated with International Typo- graphical Union, Kansas City, Missouri, its officers, agents, and representatives, shall take the action set forth in the said recommended order. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This case was heard in Kansas City, Kansas, on August 25, 1981.' The charge herein was filed January 13, by Charles Paynter, an individual. The complaint, issued February 10, alleges that Mailers Union Local No. 7 af- filiated with International Typographical Union (Re- spondent or Union) violated Section 8(bXI))(A) and (2) of the National Labor Relations Act, as amended. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record, and from my observation of the witnessess and their demeanor, I make the following: l All dates hereinafter are within 1981, unless stated to be otherwise. 262 NLRB No. 107 FINDINGS OF FACT I. JURISDICTION The Kansas City Star Company, herein the Employer, is a State of Missouri corporation engaged in production, publication, circulation, and distribution of two daily newspapers, The Kansas City Times and The Kansas City Star; its main office is located at 1729 Grand, Kansas City, Missouri. During the calendar year ending December 31, 1980, the Employer, in the course and conduct of its business operations, derived gross revenues in excess of S200,000, held membership in or subscribed to various interstate news services, including Associated Press International and New York Times Service, published various syndi- cated features, including Ann Landers and Erma Bom- beck, and advertised nationally sold products, including General Electric and Goodyear products. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Mailers Union Local No. 7 affiliated with International Typographical Union is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Backgroundn Respondent is, and has been for many years, the exclu- sive bargaining representative of certain employees of the Employer, who work as "mailers." ° Included among the represented employees is Charles Paynter,' the Charging Party herein. The last contract between Re- spondent and the Employer expired by its terms August 15, 1980. That contract contained the following provi- sion, among others: All terms and conditions of this Agreement to Extend and Amend the "Master Agreement" shall continue in full force and effect through August 13, 1980, at which time all terms and conditions of this Extension and of the "Master Agreement" shall ter- minate and cease to be of any force and effect pro- vided that it is agreed that the terms and conditions of employment established by the expiring Agree- ments shall continue in full force and effect until a new agreement is reached or until an impasse has been reached in negotiations on subject matter of the change or changes in wages, hours and working conditions. Respondent and the Employer have been negotiating since approximately July 1980 on a successor contract, 2 This background summary is based upon stipulations of counsel, and upon credited testimony and evidence that is not in dispute. I Mailers are employees involved in production of the Employer's newspapers. I Individuals are referred to herein by their last names. 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but thus far they have not come to an agreement. An im- passe has not been reached. Since August 15, 1980, Re- spondent and the Employer have continued to adhere to the employment terms and conditions of the expired con- tract, with the exception of the union-security clause, which has not been enforced since August 15, 1980. At- tached to the expired contract was a copy of the general laws of the International Typographical Union and, among other letters of agreement between the parties, an agreement reading as follows: LETTER OF AGREEMENT The Union agrees that the following Local Over- time Laws will remain in effect during the life of the contract: ARTICLE XVII-Law Change: Section 1. Overtime shall be worked according to priority with the top priority men having a choice of not working or working, on a particular shift. Provided the top men do not refuse all overtime and bears his share of the burden of overtime. Section 2. The Chairman shall see that all over- time is conspicuously posted. For a period of 30 days after which time it shall be cancelled. Section 3. For claiming overtime the chairman shall see the following is done in order for the sub- stitute to be eligible to claim overtime. (a) All of the substitute's overtime is cancelled. (b) The substitute has made himself available for all "Open" shifts. (c) The substitute may only claim overtime in his chapel. (d) The substitute is a member in good stand- ing with the Union. (e) Journeyman with the most overtime shall be required to give out a day, at the request of the chairman. (1) No journeyman shall be required to give out more than one day in any one financial week. THE KANSAS CITY STAR COMPANY KANSAS CITY MAILERS' UNION NO. 7. An appreciable amount of overtime work is required of unit mailers, but assignment of overtime to employees is done by the Union. 5 Respondent's foreman decides how many employees he needs for overtime work, and for how long, and he conveys that information to the chapel chairman. 6 The chapel chairman notifies employ- ees of the availability of overtime work, and assigns the I This allocation of responsibilities was negotiated by Respondent and the Employer. " There are two union chapels-one for the day crew and one for the night crew (Kansas City Star and Kansas City Times). The chapel chair- man is the same as a union steward. overtime in accordance with a priority list7 prepared and maintained by the Union. The chapel chairman solicits volunteers for overtime by starting at the top of the pri- ority list and working down. If the priority list is ex- hausted before the required number of overtime employ- ees is obtained, the chapel chairman then starts at the bottom of the list and works up, assigning employees on an involuntary basis to work overtime. Paynter has been one of the Employer's mailers ap- proximately 27 years. At times relevant herein he worked a 7-hour shift, from 8:15 a.m. to 3:45 p.m. Since approximately October 1980, and continuing to date, Paynter has failed to pay his union dues and in January received a letter from the Union stating that he no longer was a member of the International or of Local No. 7 (Respondent). On January 10, Mac Hathaway, as- sistant chapel chairman, informed Paynter, who had asked about overtime work that was being solicited for that day, that Paynter could not work because he was delinquent in payment of his dues. Paynter was denied overtime work on January 10, and on that day he ob- served an employee, with less seniority than he had, staying after workhours to work overtime. On January 17, Paynter asked Tom Taylor, 8 who had solicited em- ployees for overtime work that day, why he was not se- lected and Taylor replied, "It's a known fact that any- body delinquent in dues is not asked for overtime." On February 20, Bob Andrews, Respondent's chapel chair- man,"° forced Paynter to work overtime and Paynter in- quired about it. Andrews said ". . . this was the way it was going to be until it was settled, and I was going to be the last asked and first forced, with no choice at all."1' Since January 1981, Paynter has been passed over for overtime work on 17 occasions, and has been re- quired involuntarily to work overtime on 13 occasions.1 2 B. Respondent's Defense Andrews testified that any member who is delinquent in payment of dues is passed over when voluntary over- time is offered to mailers, and that any such delinquent member is the first to be forced involuntarily to work overtime. Andrews testified that Paynter has been treat- ed as a delinquent member because of failure to pay dues since January 1981. Andrews testified: Q. How many persons have you enforced this overtime procedure on in the last two years? A. I haven't enforced it in the last two years be- cause we haven't had anybody delinquent. Now, the Times, of course, the night chapel, they en- forced it because they have quite a few, but for the This priority list (G.C. Exh. 2 is the list relevant herein) applies only to mailers' and is different from the seniority list, which is a plantwide list. s Counsel stipulated that Hathaway and Taylor are agents of Respond- ent. a This quotation is by Paynter. The statement was not contradicted or challenged by Respondent, and is credited. 'O Andrew's status as an agent of Respondent is not in dispute. " This quotation is from Paynter's testimony, which is credited. z2 This conclusion is based on Paynter's credited testimony, which was supported by notes he recorded as the incidents occurred. 852 MAILERS UNION LOCAL NO. 7 most part it's the Times chapel and the outside subs that run delinquent. Q. But on the day shift at the Star, you haven't enforced this overtime procedure with regard to anyone except with Mr. Paynter in the last two years? A. No ma'am, because I haven't had anybody, to my knowledge, delinquent. The financial secretary presents me with the list telling me who is delin- quent and I go by that. Paynter testified that, when Taylor told him during their conversation of January 17 that it was a "known fact" that delinquent members are not offered overtime work, he protested and replied "that was a fallacy, be- cause I've been asked for the last many months and I've been delinquent two and three months and I've never been failed to be asked." Paynter later testified that he heard prior to January 1981 that the Union passed over dues delinquent members who wanted to work overtime, but that he did not know of any such instance, and it never had happened to him. Richard Miller, the Employer's labor relations man- ager for the past 4-1/2 years and an employee of the Employer for 31 years. testified that he never has been aware of a union policy of passing over dues delinquent members who desired overtime work. Miller stated that the Union is responsible for assigning overtime work to employees pursuant to the priority list, but that the Em- ployer has taken the position in present negotiations with Respondent that it (the Employer) wants to assign over- time and has made a proposal to that effect. Miller testi- fied that he knows of no instance (other than the one in issue) wherein Respondent has refused overtime to Paynter, or has forced him to work overtime. Discussion Some testimony of this issue is ambiguous and incon- clusive. Clearly, Paynter has not been denied overtime, or forced to work overtime, prior to January 1981 be- cause of dues delinquency. Andrews stated that other employees have been denied, or forced to work, over- time in the past but he gave no specific testimony and, further, stated that most such instances occur on the night shift (Kansas City Times). Miller is a longtime em- ployee of the Kansas City Star. Although the Union as- signs overtime, it seems highly unlikely that, if an inci- dent of overtime denial or forcing had occurred in the past, Miller would not have heard of it. If the Union had such policy as contended by Andrews, that policy was not shown by Respondent. Possibly, Andrews was refer- ring to substitutes (discussed infra), as opposed to regular full-time employees such as Paynter, when he refered to dues delinquent members and a policy of the Union relat- ing to them, but if so, no such distinction was made. It is found that neither Paynter nor any other regular, full-time employee of the Employer has been denied, or forced to work, overtime prior to January 1981 because of the employees being delinquent in payment of dues to Respondent. 1. Collective-bargaining agreement Respondent argues that the collective-bargaining agreement still is in force and effect, as shown by (a) the wording of the contract clause quoted supra; (b) contin- ued utilization by the parties of the arbitration provisions of the contract. Neither of Respondent's arguments has merit. So far as the wording of the contract is concerned, it is quite plain that the contract has expired by its own terms. Respond- ent relies upon the extension provision to support its ar- gument, but that provision relates to "the terms and con- ditions of employment established by the expiring agree- ment," not to "All terms and conditions of this agree- ment." The agreement is not extended; terms and condi- tions of employment established by the expired agree- ments are extended. Those two references are explicit and clear, and leave no room for the contention of Re- spondent. If the parties had intended automatically to extend the agreements (including the International agree- ment and the various letters of agreement attached to and made a part of the bargaining contract), they would have said so, without any distinction having been made between the agreements and the terms and conditions of employment. So far as the arbitration matters are concerned, utiliza- tion by the parties of the terms and conditions of the ar- bitration provisions of the contract does not breathe life into an otherwise dead agreement. The extension provi- sion of the expired contract includes extension of the right to insure continuation of terms and conditions of employment, as envisioned by the old contract, pending new meeting of minds and negotiation of a new agree- ment. Finally, the fact that the union-security provisions of the expired contract no longer are enforced is recogni- tion by the parties of the fact that they have no agree- ment; rather, they have only terms and conditions of em- ployment that continue both because the parties said so, and because of the law, which says the same thing. It is found that, because the contract between the par- ties expired by its terms on August 15, 1980, and because that contract has not been superseded by a new agree- ment, there is no collective-bargaining agreement be- tween Respondent and the Employer at the present time. 2. The letter of agreement This letter, discussed supra, was made apart of the ex- pired agreement, and has not been incorporated in a new agreement. Hence, the letter presently does not bind the Union and the Employer. Moreover, Miller credibly tes- tified that the Employer opposes the Union's exclusive assignment of overtime to employees, and that the Em- ployer now has a proposal "on the table" relative to overtime assignments, of which the letter of agreement is a part. In any event, the letter of agreement does not affect any issue herein, since it covers only substitute employ- ees. Paynter is not a substitute; he is a regular full-time employee. 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Paynter's loss of, and being forced to work, overtime As discussed above, Paynter was denied overtime work, and forced to work overtime, solely because he was delinquent in payment of dues to Respondent. It is well settled that- a union lawfully cannot cause or attempt to cause an employee to be denied employment or to be discharged because of the employee's failure to pay a union assessment other than periodic dues of initi- ation fees uniformally required as a condition of acquir- ing or retaining union membership. 13 The question here, is whether or not the Union could do something less than destroy the employment relation- ship between the Employer and Paynter; i.e., whether or not the Union could deprive Paynter of overtime work and force him to work overtime, while not demanding of the Employer that it discharge Paynter as it had a right to do under the Act. This question, too, long since has been settled by the Board. In Pittsburgh Press Companyt 4 the Board stated: In Krambo Food Stores, Incorporated, 106 NLRB 870, 879 (1953), the Board declared: A reading of the second proviso [to Sec. 8(aX3)] clearly shows that it was designed further to limit, and not to expand, the narrow discrimina- tion allowed. Accordingly, we believe that by the use of the words "any discrimination" the Congress in 1947 did not intend to enlarge the area of permissible discrimination under the exist- ing law but, on the contrary, sought to further circumscribe the allowable area of discrimination. Thus, the Board held that the Act did not "give employers and unions a license to use various dis- criminatory devices, short of discharge, to coerce an employee to join the union while still holding over his head the alternate threat of discharge which the statute sanctions." (Emphasis supplied.) In Kisco Company, Inc, our dissenting colleague joined in adopting the following statement of an Administra- tive Law Judge: "It is axiomatic at this point that an employer may not use something less than dis- charge in enforcing the requirements of a valid union-security clause. We see no reason for depart- ing from carefully reasoned precedent concerning this issue. Accordingly, we adopted the Administrative Law Judge's findings of the violations herein. Assuming arguendo that the bargaining agreement be- tween the parties still was in effect, possibly Respondent could have requested that the Employer discharge Paynter, but the contract was not in effect. Whether or not it was in effect is immaterial, since in neither event " N.LR.B v. The Radio Officers' Union of the Commercial Telegra- phers Union. AFL [A. H. Bull Steamship Company], 347 U.S. 17 (1954). 14 241 NLRB 666, at 667 (1979). See also The Radio Officers' Union. supra, Association of Western Pulp a Paper Workers Local 78 (Fibreboard Paper Products Corp.), 170 NLRB 49 (1968); Kisco Company, Inc., 192 NLRB 899 (1971). could Respondent punish Paynter by causing, or attempt- ing to cause, action designed to result in something less than discharge. Respondent did not argue this issue in its brief. It is found that Respondent's action against Paynter violated the Act as alleged. 4. The 8(b)(2) issue Respondent moved at hearing to dismiss this allega- tion, and Respondent's brief is limited almost entirely to arguing that the allegation should be dismissed on the ground that, as Justice Black stated in his dissent in The Radio Officers' Union,' 1 "A union does not [discriminate] · . . unless that employer discrimination is 'in violation of [Section] 8(a)3)."' Respondent contends that "a viola- tion of Section 8(bX2) can only be found after a violation by the Employer of Section 8(a)(3)," and that the Gener- al Counsel neither alleged nor proved an 8(a)(3) viola- tion, nor did the General Counsel establish a prima facie violation of Section 8(bX2). It is noted, initially, that The Radio Officers' Union ma- jority opinion still is the law. That opinion is explicit and clear, stating in part: I Petitioner in Radio Officers contends that it was fatal error for the Board to proceed against .it, a union, without joining the employer, and that absent a finding of violation of [Section] 8(a)(3) by and a reinstatement order against such employer, the Board could not order the union to pay backpay under [Section] 8(bX2). We find no support for these arguments in the Act. No such limitation is contained in the language of [Section] 8(b)(2). That section makes it clear that there are circumstances under which charges against a union for violating the section must be brought without joining a charge against the em- ployer under [Section] 8(a)(3) for attempts to cause employers to discriminate are proscribed. Thus, a literal reading of the section requires only a show- ing that the union caused or attempted to cause the employer to engage in conduct which, if commit- ted, would violate [Section] 8(a)(3). No charge was filed against the company by Fowler when he filed his charge against the union. The General Counsel is entrusted with "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints," but without a charge he has no authority to issue a complaint. Even when a charge is filed many factors must influence exercise by the General Counsel of this discretion relative to prosecution of unfair labor practices. Abuse of dis- cretion has not been shown, and, when a complaint is prosecuted, the Board is empowered by [Section] 10(a) "to prevent any person from engaging in any unfair labor practice...." It, therefore, had the power to find that the union had violated [Section] 8(bX2). " Supra at 61. " Supra at 53-54. 854 MAILERS UNION LOCAL NO. 7 Nor does the absence of joinder of the employer preclude entry of a back-pay order against the union. So far as the 8(b)(2) allegation is concerned, Respond- ent relies, as support for its contention, upon Miller's tes- timony that he was not aware of any attempt by the Union to cause the Employer to affect Paynter's over- time. There is no dispute about the fact that the Employ- er was not immediately and directly involved in discrimi- nation against Paynter. However, that fact is immaterial to resolution of this issue. Pursuant to agreement be- tween Respondent and the Employer, Respondent had exclusive control over allocation of overtime work. Re- spondent exercised that control in a discriminatory manner. Respondent's discriminatory actions resulted in the Employer paying Paynter less than Paynter should have received, and in assigning Paynter overtime work that Paynter was entitled to refuse. Clearly, the Employ- er was prevailed upon by Respondent to discriminate against Paynter, whether or not Miller personally knew of that discrimination. It may well be, as argued by Re- spondent, that the Employer has not been alleged to have violated Section 8(a)(3) of the Act, but as shown supra, that fact also is immaterial. Respondent violated Section 8(b)(2) of the Act, as alleged. 17 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section II1, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in activities violative of Section 8(b)(IXA) and (2) of the Act, I shall recommend that they be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Since Respondent's method of assigning overtime work to Paynter was discriminatory, and resulted in Paynter losing overtime pay to which he was entitled, I shall recommend that Respondent Union be ordered to make Paynter whole for the loss of earnings he suffered as a result of the discrimination against him, in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing d Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the foregoing findings of fact and upon the entire record, I hereby make the following: 17 Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (2d Cir. 1963). See also Olympic Steamship Co., Inc. d/b/a Salmon Terminal Division, 233 NLRB 1178 (1977). CONCLUSIONS OF LAW I. The Kansas City Star Company is, and at all times material herein has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Mailers Union Local No. 7 affiliated with Interna- tional Typographical Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to assign overtime work to, and forc- ing overtime work by, Charles Paynter. in a discrimina- tory manner. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. ORDER 1' The Respondent. Mailers Union Loc;il ?No. 7 affiliated with International Typographical Union, Kansas (City, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Violating Section 8(b)(l)(A) and (2) of the Act by refusing to assign overtime work to, and forcing over- time work by, Charles Paynter in a discriminatory manner. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, which is nec- essary to effectuate the policies of the Act: (a) Make whole Charles Paynter for any and all loss of earnings suffered by him as a result of the discrimination against him, in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports and all other records necessary to compute the amount of backpay due under the terms of this Order. (c) Post at its meeting hall copies of the attached notice marked "Appendix."'t9 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by its 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 's 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. 102.4h 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. 19 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 855 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of said notices to the Regional Director for Region 17, for posting by The Kansas City Star Company at all locations where notices to employees are customarily posted, if said Employer is willing to do so. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT violate Section 8(b)(l)(A) and (2) of the Act by refusing to assign overtime work to, and forcing overtime work by, Charles Paynter in a discriminatory manner. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL make whole Charles Paynter for any and all loss of earnings suffered by him as a result of the discrimination against him, with interest. MAILERS UNION LOCAL NO. 7 AFFILIATED WITH INTERNATIONAL TYPOGRAPHICAL UNION