Norwalk Typographical Union 529

Norwalk and Tbe 21, MEMBERS PENELLO, TRUESDALE Erhployer herein.2 1qc) Nonvalk Norwalk, 1. I(d): In abvncc Penello forma, Judge's decision matter p n i a ' pkvance procedure. dissenting Grmrml American Tramprtafion Corp., 80% (1977). Judge alia, Respondent merced restrained the employees Scc. B(b)(Ij(A) inadvcrtantly cease enwging ncommendcd accordingly. We alw Law Decision, his section entitled 10, bottom, inadvertently spoke "eqloy- su' righl~ reIec1 qwenirors" when k obvimu& infendnl 10 w 1k word "emy~loyerr: " SCHWARZBART, 1978,' Norwalk 8@)(I)(A) 8(b)(3) commission 8(b)(3) collec- 8(b)(l)(A) composing 8@)(I)(B) All cr -examine g BUSlNESS Norwalk, Norwalk December above- I hminaner 1978 unl*rs 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Typographical Union No. 529 Hour Publishing Co. Case 2-CB-7164 March 1979 DECISION AND ORDER BY MURPHY, AND On July 24, 1978, Administrative Law Judge Rob- ert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel and the both filed briefs in support of the Ad- ministrative Law Judge's Decision, and the General Counsel also filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3@) 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 conclusions1 of the Administrative Law Judge and to adopt his recommended Order, as modified ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge as modified be- low and hereby orders that the Respondent, Typographical Union, Local No. 529, Con- necticut, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified. Insert the following as paragraph "(d) In any like or related manner restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act." the of exceptions, Member adopts, pro the Administrative Law and arbitration declining to defer this See the lo the opinion in 228 NLRB While the Administrative Law found, infer that and in violation of of the Act. he failed to order Respondent to and desist from in any l i e or related activity. We shall modify the Order note that in the Administrative Judge's under "Analysis and Concluding Findings," par. third line from the the Administrative Law Judge of lo DECISION ROBERT M. Administrative Law Judge: This case was heard in New York, New York, on July 24, pursuant to a charge filed on March 13 by The Hour Publishing Co., herein the Employer, and a complaint which issued May 4. The complaint alleges that Typographical Union No. 529, herein the Respondent, af- filiated with the International Typographical Union of North America, herein ITU, committed certain violations of Sections and (B) and of the Act. The Respondent's answer denied the of the alleged unfair labor practices. Issues 1. Whether the Respondent, by amending its bylaws to provide for the cancellation of overtime and enforcing same, violated Section of the Act by unilaterally changing terms and conditions of employment in its tive-bargaining agreement with the Employer. 2. Whether the Respondent, in violation of Section of the Act, restrained and coerced employees in the performance of their overtime and regular work sched- ules by amending and enforcing its above-referred bylaw, which, by its terms, subjected employees to fines for non- compliance. 3. Whether the Respondent, by including in and enforc- ing the above rule against the supervisory room foreman and assistant foreman, as unit members, violated Section of the Act in interfering with the right of the Employer to designate its representatives for purposes of collective bargaining or adjustment of grievances. parties were given full opportunity to participate, to introduce relevant evidence, to examine and witnesses, and to file briefs. Briefs filed by e General Counsel, the Respondent, and the Employer have been carefully considered Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the following: I. THE OF THE EMPLOYER At all times material herein, the Employer, a Connecticut corporation, has maintained its principal office and place of business in Connecticut. The Employer is, and has been at all times material herein, engaged in the publi- cation, circulation, and distribution of The Hour, a newspa- per in the area. During the calendar year, which ended 31, 1977, The Hour, in the course and conduct of its described business operations, derived gross revenues in ex- cess of $200,000 and held membership in or subscribed to various interstate news services, including United Press In- ternational, published various nationally syndicated fea- tures, and advertised various nationally sold products. All dates refer lo otherwise noted 241 NLRB No. 41 NORWALK 1 find 2(2), (6). 11. 2(5) Norwalk, enumerated ITU's "[l]ocal Whitton, Employer's Ingersoll, president.5 Whitton day.* lngersoll (posted) Zimmer- foreman.' Whitton answer@ 2Tbe composing where is comprchaivc set cumnt collcctiva barpining agreement. S e Exh. 2. sef. IV, e. provision ban carried between partied 'Ari. m. 9 lngcnoH w e d prnidcnt 1966 except brid hearing, he longer thir oRia and regular aitlutim typesetter with When moved prcscnt di- hued use proass typactting aU+lstronic miat and regular holden were bein8 new man the regularly three stituta Substiturn title implies, do reauhr each &y arc required prcmila kast minuta the arc for bow &ys parties stipulated, find Zimmerrmn Rokn Muro, rapeetivdy forcnun perviaon meanin8 ofthe Under the ternu the ITU's General Lawa, mcmben the Zimmennan's Whitton composing Zimmerman VII off' to'work cancel 31 TYPOGRAPHICAL UNION NO. 529 The complaint alleges, the answer admits, and I that the Employer is now and has been at all times material herein an employer engaged in commerce within the mean- ing of Section and (7) of the Act. THE LABOR ORGANIZATION INVOLVED The Respondent is, and has been at all times material herein, a labor organization within the meaning of Section of the Act. The Employer, which, except Sundays, publishes a daily newspaper at its Connecticut, plant, for many years has had a series of collective-bargaining agreements with the Respondent Union covering a unit of the Employ- er's composing room employees,' which, including the fore- man and assistant foreman, consists of 30 persons. The cur- rent contract, effective January l, 1977, to December 3 l, 1978, provides that "The Employer will have the right to require that Employees work such reasonable amounts of overtime as may be necessary to meet production require- ments."' The Agreement also specifies that ". . . the General Laws of The International Typographical Union in effect at the time of the signing of this agreement, shall govern rela- tions between the parties and conditions not specifically herein."' Article VI, section 5, of General Laws, thus incor- porated into the contract, provided when the most recent contract was signed in 1977 that unions shall have full authority and the responsibility to adopt regulations for the complete government of overtime." On December 30, 1977, Walter the president and publisher, met with John then the Respondent's At this time told Ingersoll that the three substitute employees the Company had been regularly scheduling for work in its composing room would no longer be hired each replied that the fore- man. Gus Zimmerman, was working too much overtime, that it did not look good for other employees to see all this overtime on the bulletin board, and that man should not be a working room is copy sent to be set into type. The unit description is fully forth in the G.C. art. I, 3. 'Art. 2. This has in the various contracts the since at least 1964. 1, 8. as union from until March 1978, for a hiatus. At the time of the no held was a the Employer. the Employer to its facility in June 1976, it of the linotype "hot metal" in and installed an operation. To during this transition training period, while its situation familiarized with the com- posing equipment Employer employed to four sub- in its composing room to help put out the paper. as their not hold situations and to obtain employment to report to the Employer's at 10 before the start of shin, which commences at 7 a.m. They paid only when they are hired. 'The and I that Gus and composing room and assistant foreman, are su- within the Act. of contract and the both arc of Union. that it was necessary to have a working foreman in a small shop to direct the work flow, as strictly su- pervisory duties, such as assigning work, would not be suf- ficient to fill his workday. In the first week of January, learned from a room employee that the Union had amended its bylaws with respect to the accumulation of overtime. At Whitton's request, obtained a copy of the fol- lowing bylaws, which became effective on January 6, hav- ing been posted in the plant 1 day earlier: ARTICLE Accumulative Overtime Section I. When any situation holder accumulates overtime equal to the unit of hours established for a regular shift he shall engage a competent substitute as soon as one becomes available for the purpose of can- celing such overtime. Provided, it shall not be manda- tory that any situation holder cancel more than one day's accumulated overtime in any one financial week nor shall it be mandatory that any situation holder cancel accumulated overtime on a holiday which falls within the five-day work week and for which premium pay is provided for by contract. Holidays or time lost through "begging shall not cancel overtime. When more than on substitute is available, the one with the most accumulated shifts of overtime must be regarded as unavailable unless there is enough work to be given out by the office or situation holders to employ all sub- stitutes. Provided, no substitute shall be restricted on either of the first two shifts for which he accepts work during a financial week, nor shall premium shifts be included in this calculation. A substitute cancels a shift of overtime on any day, up to five days, he does not work in a financial week. Any days worked in that week shall be deducted from said five days. Section 2. Overtime shall be cumulative for a period of sixty days, provided however, ALL overtime shall accumulate indefinitely until it shall have accumulated to the extent of the unit of hours established for a regu- lar shift unless canceled prior to such accumulation by the employment of a substitute. Section 3. Any member having accumulated over- time to give out who fails or refuses to employ an available competent substitute, or who attempts to evade the overtime laws, shall be punished by a fine of not less than one day's pay for each offense. Where the records show violation or evasion the fine may be arbi- trarily assessed. As applied, the new rule means that employees covered by the agreement who have accumulated overtime equal to one shift, which was established at 7-1/2 hours, must en- gage a substitute to be paid by the employer, within 30 days of having accumulated such overtime, in his stead until the overtime is canceled. The purpose of the rule is to provide work for substitutes, who, in cancelling the over- time of others, receive the opportunity to work full shifts. As noted in section 3 of the above-quoted rule, unit mem- bers who do not comply by employing substitutes to uncoop shom9 ~- ~ overtime.10 accumulates week" 7-1/2 pay.12 acquired Foreman tutified that wcrtime canalla- tion a 3-y grace period, and employen had accumulated 7-112 houn replaced ~ u b a t i t u t ~ workday. a h certain regular dtuation subtitutes appured enable canahtion wertime days redua d u s i o n and make chapel chairman also instrumental designating employees foreman has that required i d o m chapel chairman nceded. chapel chairman then approach dctcnnine availability. finally dcsig- nates lo Zimmerman explnined that wertiw time spent produc- tion-related perfonned aRer relates working at preparation and payroll, generally t m regular-working 'I newspaper Sundays. 12Although, contract ia permitted ovcrtime as required pnrties agree that not forced overtime years at thu late reluctant try. that has been cooperative obtain- employees and cornpos- cance1lation.l) Whitton overtime.14 Bedell, untiI Whitton, Froland, Whitton estab lished working.l6 i occuion about months Whitton, having informed that anyone work overtime, I n g c d s campmation aolving lJAlthough doa appear -d ch.1 mat in c o m ~ t i m has. incrrvad implementation wmime canallation M h i d to replsa d v e Iua than regubr situation holders wodd have bem thcy shifts, from rule was January a 56,815.30 poten- L 1 earnin@ bccawc replacemenb substiturn cancellation Included in the foregoing L $1,063.50 Zimwrman nnd $778.80 potential earnings Mwo. rcplaccmenb u e dtuation Mdm and thae fortmaa and the assistant foreman d v e pay rate thas whas plaa t h y 14Mur0, Respondent paat 16 yeam h u arsktant foreman yews, having desipted Zimmaman Employer's approval. Mum regularly pcrfonned work composing pay stub and opcrnting computer, arsum- foreman'# dutin Zimmamao's a h - . mid-Jan~mry, when initially bumpa& WM acting foreman, M Zimmaman vacation. l5 BedcU, WM f-n about mid-1960'8, uti- l i d ur rcplaament Zimmcrmnn and Mum pasible in cancellation Bodell bns ban health approximately w e b before this matter, Bill Selke, an wrrcqmding s u p ~ s o l y w u selamd fill '6 Bedell and Scke, replncing Zimmemun and hnd stedd and rame pay 88 have 312 DECISIONS O F NATIONAL LABOR RELATIONS BOARD their accumulated overtime are subject to penalties of fines of not less than I day's pay for each offense, and, in prac- tice, the chapel chairman, the union official who represents the unit employees, may independently obtain replace- ments for employees who have not complied with the rule within the allotted time, while still subjecting the erative unit members to the aforementioned fines.' As be- fore promulgation of the new overtime rule, employees re- port hours of overtime worked to the chapel chairman, who then posts these hours on the union bulletin board in the The new overtime cancellation rule reduced the earnings of supervisors Zimmerman and Muro and the composing room employees and adversely affected the willingness of employees to work additional hours of overtime. Before the rule was implemented, supervisors and employees could work all available overtime with no need to cancel same. Although the foreman previously reported his hours of pro- ductive overtime for posting, since the effectuation of this rule, he additionally has been required to report for cancel- lation purposes his nonproductive As a result of now having to report for cancellation purposes his nonpro- ductive overtime as well as the productive, Zimmerman, under the new procedure, overtime more rap- idly than before and is rendered even more susceptible to replacement in cancellation thereof than he would have been under the former reporting procedures. As matters de- veloped, instead of working his normal 5-day plus such overtime as might be needed to put out the paper, Zimmerman, because of accumulated overtime, is bumped on an average of 1 to 2 days a week. This, he testified, disrupts his workweek and has caused him to lose control of the workflow, although he attempts to plan work for a week in advance. This is particularly true when the paper is is- sued in larger editions or carries special sections. As a result of the new rule, employees, as noted, also became less interested in working overtime, as they are aware that if they accumulate hours overtime they will lose a day's work through the cancellation system, and, accordingly, prefer to avoid overtime in favor of a straight week's In addition, certain employees have Assistant Muro when the new ruk WM written it did not provide who of overtime were bumped by on the next However, incidenb when nei- ther holders nor their for work, the rule was modified to of within 30 in order to the rule more effective. 9 The is in the who will work overtime. Under existing procedures, when the determined overtime work is he the of the number of overtime hours The will given employees to their He which employees will work overtime. productive is in work in the plant the 3 p.m. quitting time. Non- productive overtime to periods spent home on supervisory functions, including of work schedules which, he testified he was busy to do during hours. As noted, the did not publish on under the the Employer to compel work the the Employer has in 8 and, as Muro testified. date is to It is undisputed the Respondent in ing to work overtime when requested by the Employer, on special skills in the operation of the sophisticated ing room equipment and are more adept than various sub- stitutes retained to replace them in overtime In mid-January, Assistant Foreman Muro reported to that he was going to be bumped by a replaament for the first time under the new rule in cancellation of his accumulated Muro was replaced that day by Clifford (Irish) a journeyman composing room em- ployee who, years earlier, had served the Employer as gen- eral foreman.'' Zimmerman was not actually replaced in cancellation of his overtime by anyone but Muro June 21, as, except for illness or vacation, the two supervisors attempted to be mutually available by taking different days off. It is clear that the Union implemented the new rule with- out specifically discussing the matter in advance with the Employer. During negotiations which led to the current col- lective-bargaining agreement, the corresponding relevant language in the earlier agreement was marked "same as before" by the parties. On March 10, meeting with Ingersoll and chapel chairman Richard gave these union offi- cials a copy of the unfair labor practice charge in this case and stated that the Union was depriving the Company of the services of its foreman, that he did not believe that the Respondent had the right to do this, and that the Company had to do something about the matter. Ingersoll replied that the charge was a lot of nonsense. then questioned whether the new bylaw had been validly adopted in accordance with the Union's procedures for amending its bylaws, which require that before acceptance amendments must have the voted approval of a 75-percent majority and be posted for a pe- riod of 30 days. Ingersoll denied that the new bylaw had been posted for the 30-day interval, and the parties stipu- lated that the measure had passed by a majority vote of less than 75 percent. The men discussed the amount of overtime that the foreman had been one 2 before the hearing, when been by Muro he could not find to obtained in this problem. it not from the the net to the Employer been by the of the new rule, substitutes journeymen the paid had worked their own the time the implemented in until the date of the hearing unit members lost total of in of by in of over- time. figure the lost by in reduced to Only who regular who substitute for the the of in work. employed by the for the been for 5 been by with the production in the room, working on the ing the in In Mum in fact the was on who for 4 years in the was the for whenever of their overtime. However, as in poor for 6 the hearing of employee with no experience, to in. Although while Muro, authority to act in their received the would been NORWALK testified pres- bem these prcmieea employas op eration a three, Whitton intolerable, an becaw replacement. Whit. Ingmll n d a p Whitton place performed agreement, succeeded Zimmerrnan 1 supervisor the agreement Zimmcnnan's pre never Ned Ingersoll denied position d s r elapsed sin? perfonnanw between Ingersoll Whitton ITU avrilbk regular supamkcas, neither Bedcll Selke were pndcally situated rttle disputer arising while replacing mpmSron, their aupavilay sutw hd llcver b m formally Ule Aceordia Jy, pmUgm and ability rr( drtivdy hampered t h o i r ~ ~ ~ u L b C ' ? d k k o c ~ o f b m p a v i K n Y , u o p p o w d t o ~ reptr mpmiron delrctsd lop I n l M ~ t . Althou#h Lbc lhows tht Zimmennra and Muto wsn i~nuoontd p m d n g written griwanca, which ue subjoct dml mdutim sundlng u n n m i t l c r d w h i r b t b a y ~ n o t m m b a 4 m d t h . t ~ w r i t t s n ~ ~ bad kcn submitted m Zlmmsnnrn hu bmn a l l d d w dbputa aririy 1' lnyndl explained dthae changa mlkd the duntion pnee overtime k tir~ly a n w l d cmplqmh v d a u tima~, n n Rom 60 &y& w u interested bendtiw the subrtitutm, ita avn plupaa, encow aga up &He morntng but uo &ya h i d . noncan- incorporation Union." violated 8(bX3) steking itr collective-bar- agreement, effectunting unilateral thus imposed under intorfcres mslning 8@XlXA), and that enforcement rule foreman and srristant op eration Employer 8@)(I)(B). argua enforcement againat foreman agreement agreement context asserted prtviou left overtime assert8 impla unlawflrl tennn rulemaking fbnction, coer- '1 Ingamll expLined histoy him rule fdluwa: ovatime w u b i q can- pmblcm had uim~ getting employ- ser w o k wmima, dturlioa h o l h then, u pnrcnt, wwe mluctmt toaaaptnrtn wcslrhounforfarofbaing~ffomtharnormrlwork lifk. wlve thb ditUculty, the propimod system, udsr cmployta tsRusd nquated tbmugh chrpol chavmrn were mbject baing dnd. fora him pmvisian adopted Rslpondcnt's Ssplombsr 1974 minutea that meetin& whicb wt forth Lnglrr~ of thc fora him prmifion. n d In#cnoll's mpmenlntion thc adon tht "mmapment acU acapt language m w d m e bylaw lieu wrting amtna." Thh rrfurnce thc Employw'r paition appcm conlndict Rmpudmt'a contention tht It hidoridly f d ~ d a mume unilatet1y dstennini~~ overtime poliaa without regard man- apment. I* The q u m that f o r e r ~ ~ , Zimm- h mtrJect rhc - w d m e umehtion rula other mcmben. 313 TYPOGRAPHICAL UNION NO. 529 Ingersoll that during his tenure as union ident, during moat of the past 12 years, the bylaws affecting cancellation of overtime have changed at least four times, each change having been initiated at a local union meeting and adopted by a vote of the Respondent's mem- bership. He asserted that management had nothing to do with actions." Prior to the institution of the 1978 amendment,overtime had last been cancelled at the Respondent's dur- ing a 6-month period in 1971. In July of that year, another shop had been closed down, and from that were bumping onto the instant Employer's payroll substitutes for regular situation holders in tho cancella- tion of their overtime. Accordingly, at that time, six substi- tutes, rather than the customary wore bumping the regular situation holders and foreman. that month told Ingersoll that the situation was becoming the foreman, then Stanley Wilmot, could not properly schedule work of his frequent ton asked the Union for relief. replied that if the Company designated Wilmot to be a nonworking supervi- sory foreman, the overtime cancellation rule would ply to him and he would not be bumped. Accordingly, the following written agreement was executed by the parties on June 4, 1971, signing for the Employer: It is agreed, that the Foreman, as a nonworking Foreman, may take Copy from the Editorial Room, Classified Department or Tuber. May sort it and mark it, classify it and it on the Hook to be set, and it is further agreed that he would perform no other work generally by Journeyman. [sic] As a result of this Wilmot, until as foreman by approximately year later, be- came and remained a nonworking and no longer was required to cancel his overtime. However, although June 1971 was never formally superseded, it is undisputed that during 6 years as foreman he always performed unit work in addition to his supervisory duties and that although the Respondent often orally tested this change in the foreman's status to the Employer, it a written grievance. that it was still the Union's that time the foreman had returned to of unit work there still was an effective agreement the parties that the foreman shall be nonworking. On about July 10, 1971, advised that he recently had returned from an convention where he to the nor to on the job u approved by Employer. their to wu by by record not in to for to a joint any went, on to work on the job. that mat to of the period in which might by which, at 5 to The Union in whom the Employer, for to show f a work acb who paid only f a the when had learned that under the General Laws, each local union could control its own overtime and, accordingly, he would have the Respondent's bylaws changed so that there would be no cancellation of overtime. With Whitton's consent, the Respondent's bylaws were so modified. No document was executed by the parties to indicate the new agreement con- cerning the end of overtime cancellation. From July 1971 until the January 1978 amendment, overtime was cellable, and there was no provision for its cancellation in the contracts or the Respondent's bylaws. The Union, agreeing that it did not discuss the imple- mentation of the new overtime cancellation rule with man- agement before adopting it, contends that the parties' bar- gaining history and the of the General Laws into the contract had put wntrol of overtime completely in the hands of the Analysis and Concluding Findings The General Counsel and the Employer assert that the Respondent Section of the Act by to substitute amended bylaws providing for cancellation of overtime for the relevant provision of the gaining thereby a change of that contract; that the unlawful overtime cancellation rule, threat of penalty, with and coerces employees within the of Section tho of the as to the composing room foreman, also under penalty of fines, has seriously affected the Employer's and interfered with the in the selection of its representatives in collective bargaining an adjustment of grievances in violation of Section The Respondent that of the rule the was precipitated by the Employee in having unilaterally abandoned its 1971 with the Union that the foreman be a nonworking that incorporation of the Union's bylaws into the collective-bar- gaining in the of the bargaining history, which includes overtime cancellation changes at the Union's instance, control of solely with the Union. The Respondent that mentation of the new rule therefore did not constitute an unilateral change of the of the contract and that, as the disputed rule change was a valid exercise of the Union's there was no unlawful the of the form u In 1970. while a in to u at To Union the force hire which who to perform overtime work by the Company the to The wu in the 28. The of the at in the in of in- it in the to to the had of to Union u a waking to u unit compel /2 ITU's Counsel 0vertime.m determine ~onsent.~' Union's tenns - - the Respondent be " consider dctenninc cancellation overtime 3 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cion of employees. The Respondent further asserts that the rule has caused no substantive loss to the Employer, as under the existing force hire rule, which enables the Em- ployer to employees to work overtime as required, sufficient overtime assistance has always been available. The Respondent's position is not supported by the rec- ord. From 1971 until the 1978 enforcement of the amended bylaw, it is undisputed that neither the composing room supervisors nor the employees were required to cancel over- time and were free to work their normal shifts without in- terruption, regardless of accumulated overtime. Further, continuation of this arrangement had been intended by the parties while negotiating the present agreement when they specifically agreed to retain the language of the prior con- tract, which also did not require that overtime be cancelled. Nevertheless, after the present agreement was signed, the Union unilaterally enforced the terms of its newly-amended bylaw- contrary to the provisions of the contract by requir- ing that overtime be canceled under penalty of fines. The record shows that by the implementation of this rule the composing room foreman, assistant foreman, and regular situation holders were deprived by the bumping process of hours of work and earnings for which they otherwise were eligible. The Employer also was prejudiced in that it did not have the regular accustomed services of its composing room supervisors, now recurrently displaced. The new rule re- duced the effectiveness of its foreman by increasing his dif- ficulties in controlling and scheduling the work flow and settling job disputes and by compelling him to contend with the new unwillingness of regular situation holders to work overtime when asked and with the increased utilization of substitutes, who, in cases, are less skilled than the regular situation holders. The Respondent's argument that the Em- ployer was not practically affected because, under the force hire provision, it can command performance of overtime is not substantive for the above reasons and because this pro- vision historically has not been enforced by the Employer, who, at this late time, is reluctant to intitiate such a prac- tice. Similarly, no merit is found in the Respondent's assertion that its action in forcing the foreman and assistant foreman to cancel overtime was precipitated solely by the Employ- er's unilateral abandonment of its signed 1971 agreement that the foreman would be a nonworking supervisor. Whether or not the Employer was justified in repudiating this agreement, the record shows that the Employer did so in 1972 when Zimmerman became foreman, that since that time the foreman and assistant foreman have been working supervisors, that no grievance was filed by the Union on this matter, and that overtime continued noncancellable thereafter for approximately 5-1 years. Noting Ingersoll's denial at the hearing that the 1971 agreement establishing the foreman as a nonworking supervisor was still effective, and the evidence concerning the background of the current dispute, I find that the Union, by January 1978, had effec- tively relinquished its rights under this accord and that the Respondent's efforts to reinstitute overtime cancellation was a response to the Employer's notice in December 1977 that it would no longer provide as much work for substi- tutes as before. A closer question than is conceded by the General Coun- sel and Employer is raised by the Respondent's contention that when the Employer and Union incorporated the terms of the General Laws into the collective-bargaining agreement control of overtime became vested in the Union. The relevant General Law specifies that "Local Unions shall have full authority and responsibility for the complete government of overtime." However, the contract incorpo- rated only the General Laws of the ITU "in effect at the time of signing of the agreement, not in conflict with the law or the agreement . . ." but makes no reference to also incorporating the bylaws of ITU-affiliated local unions, such as the Respondent. There is no evidence that the rel- evant ITU General Laws have changed since the contract was signed. Accordingly, the argument of the General Counsel and the Employer that the disputed rule, stemming from a bylaw amendment, conflicting with the contract, and arising after its execution, should not be binding upon the Employer might arguably be more properly addressed to a subsequently enacted ITU General Law than to a local union's bylaw. Under this approach, the Respondent, in implementing its disputed rule, might be considered to have exercised a right duly derived from a contractually incorpo- rated, constant General Law. On the other hand, more fa- vorable to the position of the General and the Em- ployer, the General Laws, as they relate to the contract terms between the parties, might conceivably be construed as also comprehending the bylaws of subordinate local unions and, therefore, not provide the Respondent with a blank check concerning To whether the Employer had so clearly waived its important right to bargain about overtime as to warrant such an inference, as contended by the Respondent, it is necessary to examine the parties' practices. However, the adduced bargaining his- tory indicates that the Union has reorganized the Employ- er's continuing exercise of its right to bargain concerning overtime. As noted, the Union's minutes of the September 28, 1970, meeting noted Ingersoll's statement that "manage- ment will accept language re overtime in the bylaws in lieu of inserting it into the contract," and in 1971, when the then-existing requirement that overtime be canceled was ended by amendment of the Union's bylaws, this was done at the Employer's request and with its It further is noted that it was mutually decided not to cancel overtime at the most recent contract negotiations and that overtime, in fact, had not been canceled for approximately 6-1/2 years by the Employer's employees. In these circumstances, the Respondent unilaterally brought about changes in the contractual overtime provi- sion which affected the work schedule, the persons to be employed, the earnings of unit members, and supervision, none of which had been accepted by the Employer, and, by its action during the term of the current agreement, the Union sought to secure without bargaining what it had not sought to do during the most recent contract negotiations. Therefore, the unilateral implementation of its overtime cancellation rule constituted a change in and conditions of employment sufficient to require the Em- Reasons for not deferring this matter to arbitration as moved by will given below. Contrary to the Employer, 1 do not it valid to in this proceeding whether the 1978 bylaw amendment reinstituting of was properly adopted in conformity with the Union's regulations governing same. NORWALK ployer's 8(b)(3) Act.= 8(b)(3), compelled 8(b)(l)(A) 8(b)(I)(A).n 8(b)(l)(B) Locals 15-P Photwnnravers 8(b)(I)(B). 8(b)(I)(B) Act.= Co.% collective- Corp~ration,~~ 8(a)(3) Then- concurring Company, Znc.),a 2(11) 8(b)(I)(B), " To- 8(a)(5) 8(b)(3) adjust- 8(a)(3). (a)(]), (b)(l)(A), (bX2) Brotherhood Pqerhangers A m e h AFL- CIO. Council City (Westgate Paikfing Corp.), (1970), F.2d (2d Workerr ofAmenc@ Local1122 (1976). F.2d (2d Cir. "S k Worken h a 1 Tele- prkm Conpany), srqm; Sco$eId N.L.R.B.. (1%9), Supreme enforcement rule neces- d y Sec. 8(bXIXA) Lbor shown," distinguished Westgate New Y a k T e l q h e C o q m y , cited above, b crse like grounds. la Wedgage that ScqieId thrc 8(b)(3) implmentation Telqhone, that intraunion imp& Scc. B(bX3) enforce " (1%9), F.2d Cir. 8(b)(I)(A) Man 8(b)(3), A h B Son 18, l n t e r ~ t i o ~ l 7)pographical (Norfhwest Acblications, Ine.), prerequisite imp& ha then the supervisor8 repremtativa purpa~m grievanws free l%e T d a h BIcdc srqra 1081; San Fmirco- Oaklad Mailers, srqm a " 315 TYPOGRAPHICAL UNION NO. 529 agreement prerequisite to its continued imposition. Accordingly, under the circumstances noted above, it is concluded that the Union's unilateral enforcement of its rule requiring cancellation of overtime on and after January 6, 1978, violated Section of the Pursuant to the finding that the Respondent's unilaterally imposed rule is in violation of Section I conclude that its enforcement with respect to unit members who are to comply lest they be fined and, in any event, involuntarily bumped from their shifts at the initiative of the chapel chairman is also violative of Section of the Act. The overtime cancellation rule thus established is an attempt to enforce unlawful conduct against employ- ees and as such also is violative of Section Finally, it is concluded that by seeking to enforce the disputed rule against Zimmerman and Muro, as supervi- sors, the Union interfered with the Employer's selection of its representatives for purposes of collective bargaining and adjusting grievances in violation of Section of the Act. Although the Respondent argues, with some effect, that Zimmerman and Muro did not actually adjust written grievances or engage in contract negotiations on behalf of the Employer, the record does show with respect to griev- ances that both were supervisors within the meaning of the Act, that Zimmerman and, in his absence, Muro had au- thority to hear and resolve employee problems and com- plaints in the pre-grievance stage, and that Zimmerman, in fact, had resolved work-related disputes. Although conceding the supervisory status of the fore- man and assistant foreman, the Respondent argues that the only grievances they adjusted were complaints or "personal grievancesv--not "contractual grievances." However, in Toledo Nos. and 272 of the Lithographers and International Union, AFL-CZO (The Toledo Blade the Board noted that thk distinction between contractual grievances and personal grievances "has no relevance to the construction of the broad term 'grievances' as used .. . in Sections and and that . . . it must be uniformly construed as including both 'personal grievances' and 'contractual grievances.' In ledo Blade the Administrative Law Judge, with Board ap- proval, concluded that if shift foremen could or, at times, did adjust either personal or contractual grievances they were employer representatives for the purposes of of Painters. Decorators and of District No. 9 of New York and Deco- rating 186 NLRB 964 enfd. 453 783 Cir. 1971); Communications (New York Telephone Com- pany), 226 NLRB 97 enfd. 562 37 1976). Communication of America 1122 (New York v. 394 U.S. 423 where the Court ruled that by a union of an internal work limitation may be handled as an internal union matter and docs not violate of the Act "unless impairment of the statutory policy can be was factually in Painting and both and distinguishable from the instant on Painting the Board noted in fn. 6 in was no charge and the Supreme Court had found that the employer had virtually acquiesced and cooperated in the application and of the rule. In New York it was found the charge fled against an employer in enforcement of a rule unilaterally in violation of of the Act did not stem from "the violation of the lawful union rule dealing with internal union affairs, but rather ... is an attempt to conduct violative of the Act." 175 NLRB 1072. 1078 enfd. 437 55 (6th 1971). ment of grievances within the meaning of Section In addition, it was there found that even where supervisors do not exercise authority to adjust grievances their substantial supervisory responsibilities and day-to-day contact with and supervision of employees made them natural possible future choices of the Employer to handle grievances on its behalf as occasion might arise. Therefore, to open such supervisory personnel to such discipline by the Union would restrict the Employer's freedom in making future selection of its grievance representatives. The same reasoning was also there found to be equally applicable to preserving employees' rights to select supervisors as future collective-bargaining representatives, although such super- visors might not yet have been involved in such responsibil- ities. According, I conclude, in agreement with the General Counsel and the Employer, that the enforcement of the new bylaw against the foreman and assistant foreman contrary to the terms of the collective-bargaining agreement re- strained and coerced the Employer in its selection of repre- sentatives for purposes of collective bargaining and the-ad- justment of grievances and therefore was in violation of Section of the I further find no merit in the Respondent's argument that this matter should be deferred to arbitration pursuant to the Board's decision in Collyer Insulated Wire, A Gulf and Western System and the provision of the bargaining agreement providing for same. In General American Transportation the Board, in decid- ing not to defer to arbitration certain alleged violations of Section and (I) of the Act, contracted its policy of prearbitral deferral, first enunciated in Collyer, supra. Chairman Murphy, in her opinion in General American Transvortation, held that: . . . the Board should stay its processes in favor of the parties' grievance arbitration machinery only in those situations where the dispute is essentially between the contracting parties and where there is no alleged inter- ference with individual employees' basic rights under Section 7 of the Act. Complaints alleging violations of Section and fall squarely into this cate- gory, while complaints alleging violations of Section and clearly do not. (228 NLRB, supra, at 8 10) In agreement with the Employer, it also does not appear that the affected employees herein would be served by de- ferral, as the interest of the Respondent in enforcing the disputed rule conflicts with that of unit members who have lost income through overtime cancellation. Accordingly, noting that the complaint herein alleges violations of Sec- tion and (B) as well as that the Francisco-Oakland Mailer's Union No. Union 172 NLRB 2173 (1968). It is not to this finding of violation that the Union must actually have or other punitive action against herein. The Employer is entitled to have as its for of collective bargaining and adjustment of supervisors entirely from threat of union discipline in connection with their activitiaon behalf of the Employer. Co., Inc., at 192 NLRB 837 (1971). 228 NLRB 808 (1977). 1 Collyer 1V. THE 111, several'States 8(b)(3), (l)(A), (IXB) ernp1oyees.u Backpay, F. Woolworth Sfeel corporation^ 2(5) Co. 2(6) Zimmennan reford doa not rcvd that Respondent hu Alcd intra- chrrga otherwile dilcipW unit employee viol.lcd overtime unccllation rule u c~olkry h d i w herein, should appear during wmpllnct stage ado11 h s been d m , Rnpondent should be required expuqe refor& dl actionr taken a w t unit mcmbm NLe cancel, rcrind, and make reimbursemat, interat the nuoncr act forrh ibrq pendtia which may h v e bkn uvrvd a (19%). See, genarlly, I a i ~ P M n g & Heating 138 (1962). "231 2(11) 8(b)(IXB) 1, 9(b) bylaws which prbvisi& 8(d) Anes 8(bX3) pmalties 8(b)(lXA) Co. 80(1)(B) 8.The 2(6) findings lqc) Norwalk I. wl- lective-bargaining employees' agreement Co. confonn essence, m e m h accumulated collective agreement abovenamed '1 went uesprim ur fled u providsd k 102.46 R t h Rquktiom ofthr NrUond hbor Rd.Uom Board, the conelurion* rad mwmmmdcd Orda hasdn u prodded S e 102.48 of the Rulea and R@acloN b rdopted Boud .nd beema ia hdinga, ooncluricmt, Orda, dl objdom thereto shall k domed waived purpola. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged violations are not entirely centered on the contract, and that a conflict exists, as noted, between the position of the Respondent and the unit regular situation holders it represents with respect to the efficacy of maintaining this rule, conclude that the deferral under is not war- ranted. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, Nonvalk Typographi- cal Union No. 529, which have been set forth in section above, occurring in connection with the operations of The Hour Publishing Co.,described in section I, above, have a close relationship to trade, traffic, and commerce among the and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section and of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act, including cessation of enforcement against members of the unit herein of the rule effectuated on or about January 6 establishing cancellation of overtime and to require the Respondent to bargain, upon request, with the Employer prior to enforcement of any such rule against unit The Respondent should also be compelled to make whole all unit members, including the foreman and assistant foreman, who have been compelled to engage substitutes in cancellation of their overtime since January 6. with interest, shall be computed in the manner described in W. Companyn and Flor- ida On the basis of the foregoing find- ings of fact and upon the entire record in this case, I make the following: I. The Respondent, Nonvalk Typographical Union No. 529, is a labor organization within the meaning of Section of the Act. 2. The Hour Publishing is an employer engaged in commerce within the meaning of Section and (7) of the Act. 3. Gus and Robert Muro at all times mate- rial herein have been supervisors and representatives of the Although the union or the any the to tbe for having it the that punitive in fact the to from its for violating the and to withdraw, with in for my 90 NLRB 289 Ca, NLRB 716 NLRB 651 (1977). Employer within the meaning of Section and of the Act. 4. At all times material herein, the unit of the Employ- er's composing room employees, as described in article I. section 3 of the collective-bargaining agreement between the Employer and Respondent, effective January 1977, through December 31, 1978, constitutes a unit appropriate for the purposes of collective bargaining within the mean- ing of Section of the Act. 5. By imposing as part of the collective-bargaining agree- ment a subsequent amendment to its reauirinn can- cellation of overtime by unit members, had not been a part of the contract, without affording the Em- ployer a timely opportunity to bargain within the meaning of Section of the Act and by threatening to unit members for noncompliance with this rule, the Respondent unilaterally changed the overtime provisions of the collec- tive-bargaining agreement and thereby refused to bargain collectively in violation of Section of the Act. 6. By instituting, maintaining, and enforcing against unit employees the above unlawfully imposed requirement that overtime be cancelled by threat of for noncompli- ance, the Respondent Union has engaged in, and is engag- ing in, unfair labor practices within the meaning of Section of the Act. 7. By restraining and coercing The Hour Publishing in the selection of representatives for the purpose of collec- tive bargaining or adjustment of grievances by engaging in the conduct set forth in 5 and 6, above, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section of the Act. aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section and (7) of the Act. Upon the foregoing of fact, conclusions of law, and the entire record, and pursuant to Section of the Act, I hereby issue the following recommended: The Respondent. Typographical Union, Local No. 529, its officers, agents, and representatives, shall: Cease and desist from: (a) Refusing to bargain collectively, as the exclusive representative of employees in the com- posing room unit referred to below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment by attempting to unilaterally change the terms of its collective-bargaining with The Hour Publishing to that contract with amended article VII, sections 1 through 3 of its by- laws, effective January 6, 1978, which required, in that unit engage work replacements for them- selves to cancel their overtime. The appropri- ate unit is set forth in article I, section 3 of the bargaining between the Union In the no by of the a d 19, in by the and and for 9 NORWALK TYPOGRAP (b) 8(d) Co. a h a t i v e Make "Appendix."J= Copies shall members Furnish Notifj n event that Order b enforced judgment Stata Appala, a& notia d q Order N a t i d Rohliona Boudw dull read Punurnt JudgmentL the Stata Appalr Enforeins the Natiod Relatlonr Boud." NOTICE TO MEMBERS By m~ &~LATIONS WIU collective- Co. matters. wru wa wu cwent wu wu ot employees 6, 'HICAL UNION NO. 529 and The Hour Publishing Co., effective January 1, 1977, through December 31, 1978. Instituting, maintaining, or enforcing any rule requir- ing that members of the above unit, including supervisors who are unit members, engage work substitutes for them- selves to cancel their accumulated overtime, without afford- ing the above-named Employer a timely opportunity to bargain within the meaning of Section of the Act. (c) Restraining or coercing The Hour Publishing in the selection of representatives for the purpose of collective bargaining or adjustment of grievances by engaging in the conduct set forth in (a) and (b), above. 2. Take the following action, which is neces- sary to effectuate the policies of the Act: (a) whole all members of the above unit, including the composing room foreman and assistant foreman, who have been forced to engage work substitutes to replace them in cancellation of overtime, under threat of imposition of penalty for noncompliance. Such supervisors and em- ployees shall be made whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its business office and the meeting hall copies of the attached notice marked of said notice, on forms provided by the Regional Director for Re- gion 2, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to 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. (c) the Regional Director for Region 2 with signed copies of said notia for posting by The Hour Pub- lishing Co., if willing, in places where notices to employees are customarily posted. (d) the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. In the this by a of a United Court of the in the "Pated by of the Labor 'Pated to a of United Court of an Order of Labor APPENDIX EMPLOYEES AND POSTED ORDER OF NATIONAL LABOR BOARD An Agency of the United States Government After a hearing in which we were represented by our attor- ney and presented evidence, it has been found that we have violated the National Labor Relations Act in certain re- spects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE NOT make or attempt to make unilateral changes in the terms and conditions of our bargaining agreement with The Hour Publishing for an appropriate unit of that Employer's composing room employees, including the foreman and assistant foreman of the composing room, in derogation of our statutory obligation to bargain about such WE NOT institute, maintain, or enforce any rule requiring members of the above unit of composing room employees, including the composing room fore- man and assistant foreman, to engage substitutes or work replacements for themselves in cancellation of accumulated overtime without first giving the Com- pany a timely opportunity to bargain on this matter. and immediately cease to enforce or give ef- fect to the rule requiring such overtime cancel- lation, which has been effective since on or about Janu- ary 6, 1978, as to members of the above unit. WE NOT restrain or coerce the above-named Employer in the selection of its representatives for pur- poses of collective bargaining or the adjustment of grievances. WB NOT in any like related manner restrain or coerce in the exercise of rights guaran- teed by Section 7 of the Act. WE WILL make whole, with interest, the composing room foreman and assistant foreman and those em- ployees in the above unit of composing room employ- ees who have been forced to engage work replacements for themselves in cancellation of their overtime for any loss of earnings they may have suffered since January 1978, as a result of our unlawful conduct.