Buffalo Newspaper Guild

National Labor Relations Board - Board Decisions

Sep 3, 1975

220 N.L.R.B. 79 (N.L.R.B. 1975)

BUFFALO NEWSPAPER GUILD 79
The Buffalo Newspaper Guild , Local 26, American
Newspaper Guild, AFL-CIO-CLC (Buffalo Couri-
er-Express, Inc.) and William L. Ball. Case 3-
CB-2260
September 3, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND PENELLO
On February 25, 1975, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.' Respondent subsequently filed a brief in op-
position to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, to the
extent consistent herewith and to adopt his recom-
mended Order, as modified herein.
1. We agree with the Administrative Law Judge
'The General Counsel filed an exception to the Administrative Law
Judge's "failure to specify with particularity in the Order that the Notice be
posted at all three newspapers at which Respondent's members are em-
ployed." Since all of the conduct found unlawful herein occurred at the
Buffalo Courier-Express, and since there is no showing that anyone em-
ployed at the other newspapers were affected by such conduct, we find no
merit in the General Counsel 's exception . Cf. Dover Corporation, Norris Divi-
sion, 211 NLRB 955 (1974); United Mercantile Incorporated,- et al, d/b/a
Globe Shopping City, 204 NLRB 663 (1973).
2 Respondent and the General Counsel have excepted to certain credibili-
ty findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect . Standard Dry Wall
Products, Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951) We
have carefully examined the record and find no basis for reversing his find-
ings.
We hereby correct certain inadvertent errors made by the Administrative
Law Judge : ( I) The Administrative Law Judge at sec . III,B,2, par 1, placed
the date of the Sec . 10(b) cutoff as August 28, 1974, whereas the record
shows that the correct date is August 28, 1973, (2) the Administrative Law
Judge at sec. III,C,1, par. 2, stated that Charging Party Ball went on vaca-
tion during December 1973, whereas the record shows that Ball went on
vacation during September 1973; (3) the Administrative Law Judge at sec.
111,C,1, par. 4, stated that the bartender 's name was Thomas Ryan whereas
the record shows that the bartender's name is Thomas Flynn; (4) in the
section of his Decision entitled "The Murphy-Whitefield layoff grievance,"
par. 1, the Administrative Law Judge stated that the probationary period
under the collective -bargaining agreement is 120 days whereas art XII, sec
6, of the contract provides for a 3-month probationary period; (5) in the
section of his Decision entitled "The slot man (Burt Nelson) grievance,"
par. 2 , the Administrative Law Judge misquoted art. II, sec 6, of the Guild
constitution which, according to the Guild constitution , should read, "No
persons actively serving the interest of employers as against the interests of
the Guild shall be eligible to membership."
that Respondent did not violate Section 8(b)(1)(A) of
the Act by: (a) alleged coercion by Unit Chairman
Ryan in threatening Charging Party Ball with a gun,
(b) alleged coercion by Executive Committee Mem-
ber Higgins in stating to Ball that he would obtain a
Norden bombsight and fly over Ball's home , and (c)
Respondent's alleged warning of employees not to
associate or speak with Ball.
2. We also agree with the Administrative Law
Judge that Respondent violated Section 8(b)(I)(A) of
the Act by: (a) Executive Committee Member Ritz'
threat to bring Ball up on charges and have him ex-
pelled from union membership if he continued his
protests against Respondent with the FBI and the
Department of Labor, and (2) Respondent's threat to
bring intraunion charges against Ball because he
filed the unfair labor practice charge in this proceed-
ing.
3. We also are in agreement with the Administra-
tive Law Judge that Respondent's failure to process
the three grievances designated as (a) the assistant
slot man (Arthur Potts) grievance, (b) the days-off
grievance, and (c) the part-time copy editor (Harold
Murphy) grievance violated Section 8(b)(I)(A) of the
Act .3
We agree with the Administrative Law Judge's
conclusion that, although it is not a function of the
Board to decide the merits of a grievance in de-
termining whether a labor organization has unlawful-
ly failed or refused to process it, "some evaluation of
the grievance or grievances at issue must be made."
While the General Counsel is not required to show
that the grievance is prima facie meritorious, it must
at least appear from the record that the grievance is
not clearly frivolous.4 Utilizing this standard in con-
junction with the record evidence indicating
Respondent's hostility towards Ball, we conclude
that the Administrative Law Judge correctly found
Respondent to have violated Section 8(b)(1)(A) with
respect to its failure to properly process the three
grievances mentioned above.
4. The General Counsel alleged that Respondent's
refusal to process six additional grievances was also
violative of Section 8(b)(1)(A). Without deciding the
statutory question presented, the Administrative Law
Judge concluded that it would not effectuate the pol-
3 The Administrative Law Judge inadvertently failed to discuss a griev-
ance filed on behalf of Mary Myers Since this grievance raises precisely the
same issues as those involved in the Harold Murphy grievance, we shall
direct that Respondent also process the Mary Myers grievance.
4 Cf. Truck Drivers, Oil Drivers and Filling Station and Platform Workers
Local No. 705, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Associated Transport, Inc), 209 NLRB 292
(1974), Local 575, Packinghouse Division, Amalgamated Meat Cutters and
Butcher Workmen (UPWA), AFL-CIO (Omaha Packing Company), 206
NLRB 576 (1973); MevA Corporation, Subsidiary of Hughes Aircraft Compa-
ny, 189 NLRB 31 (1971)
220 NLRB No. 17
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
icies of the Act to require Respondent to process
them further. For reasons set forth below, we dis-
agree with respect to five of the six grievances and
shall require Respondent to process them in accord-
ance with the procedures established by the Adminis-
trative Law Judge.
In October 1973, Ball filed a grievance alleging
that employees Murphy and Whitefield had been im-
properly laid off or discharged. He filed the griev-
ance pursuant to what he viewed as his duty under
the Guild constitution.' Ball alleged that Murphy
and Whitefield had been employed for the contractu-
al 90-day period and their termination was therefore
in violation of the collective-bargaining agreement .6
Respondent subsequently failed and refused to pro-
cess the grievance.
The Administrative Law Judge found that it would
not effectuate the policies of the Act to require Re-
spondent to now process this grievance. Relying on
testimony by Ball that Murphy and Whitefield were
reemployed by the Employer in January 1974, the
Administrative Law Judge concluded that the matter
was moot. In addition, the Administrative Law Judge
pointed out that neither Murphy nor Whitefield testi-
fied at the hearing and neither employee expressed
any interest in the processing of the grievance.
We find, contrary to the Administrative Law
Judge, that the grievance is not moot. It involves a
contract interpretation issue affecting all employees'
employment status-namely, the proper relationship
between the union-security clause and the probation-
ary period. This issue exists regardless of the employ-
ment status of either Murphy or Whitefield, and re-
gardless of their personal desire to pursue it. Since
Ball had a right (if not a duty) under Respondent's
constitution to raise the issue, he had a concomitant
right to have the issue pursued. This Respondent re-
fused to do. Accordingly, we find that Respondent's
failure to process the Murphy-Whitefield layoff
grievance was a violation of Section 8(b)(1)(A).
Ball also filed a series of grievances relating to the
performance of editorial department work by indi-
viduals who were not members of the Guild. Such
work was alleged to constitute a violation of article I
3 The pertinent provision of the Guild constitution , art XVII1 , sec 4(b),
reads-
It shall be the duty of each member to report any complaint to his Unit
officers and the duty of the Unit officers after investigation to report to
officers of the Local any dispute regarding any terms or conditions of
employment.
6 Ball cited art X11, sec 6, of the contract which reads in pertinent part-
There shall be a trial period of three months for all employees.
Beginners or new employees, after completing their trial periods shall
have the same security and length of service benefits under this con-
tract enjoyed by all other employees.
of the collective-bargaining agreement.' In Novem-
ber 1973, Ball submitted the "Christmas Cash griev-
ance" which alleged that writers who were not mem-
bers of Respondent were submitting copy promoting
a contest run by the Courier-Express. The following
month Ball alleged that freelance writers Mort and
Jones who were not members of Respondent were
contributing copy to the Courier-Express. Finally, on
December 8, 1973, Ball filed a grievance alleging that
contributions for a new feature-the Suburban-
Courier-were being submitted by nonmembers.'
The Suburban-Courier was discussed at
Respondent's December 13, 1973, executive board
meeting and the minutes of the meeting reflect that
Ball was asked to submit whatever evidence he had
in support thereof.
The Administrative Law Judge concluded that Re-
spondent should not be required to process any of
these grievances. In his view the "Christmas Cash
grievance" was moot because the contest giving rise
to the dispute was over, while the Mort-Jones griev-
ance was moot because both writers had ceased con-
tributing copy at the time of the hearing. The Admin-
istrative Law Judge's refusal to require further
processing of the Suburban-Courier grievance was
based primarily upon his finding that Ball failed to
submit the additional evidence requested at the De-
cember 13 executive committee meeting.
As with the Murphy-Whitefield grievance, we do
not think Respondent should be able to escape its
statutory obligations on grounds of mootness since
these grievances raise issues as to the proper interpre-
tation of the jurisdictional clause of the collective-
bargaining agreement and therefore affect the rights
of all employees. Under these circumstances, we do
not think these grievances are moot.
In addition, we do not think Respondent can justi-
fy its refusal to process the Suburban-Courier griev-
ance through reliance on Ball's failure to produce
additional evidence to support it. The burden of in-
vestigating the grievance belonged not to Ball, but to
Respondent' Accordingly, we will direct Respon-
7 Art I reads in pertinent part
3. (a) The kind of work either normally or presently performed
within the unit covered by this agreement and new or additional work
assigned to be performed within the said unit is recognized as the.juris-
diction of the Guild and the performance of such work shall be as-
signed to employees within the Guild 's jurisdiction.
8 The grievance stated.
Suburban Courier copy in violation of job jurisdiction provisions of
Guild contract . Previous grievances have not been submitted by Couri-
er-Express grievance committee.
Although it was not specifically cited in the grievance , it is clear that the
grievance referred to art. 1, sec . 3(a), of the collective -bargaining agreement
See In. 7, supra.
9 See fn. 5, supra.
BUFFALO NEWSPAPER GUILD 81
dent to process the Mort-Jones and Suburban-Couri-
er grievances in accordance with the procedures es-
tablished by the Administrative Law Judge.1°
In January 1974, Ball filed the "dues deduction
grievance ." The record reveals that Ball went on va-
cation in September 1973. The Employer gave him
some vacation pay in advance but neglected to with-
hold his September union dues prior to making the
vacation payment. Respondent was notified of this
oversight on October 1, 1973. Unit Secretary-Trea-
surer Fleming testified that he had advised Ball to
pay the September dues directly to the Union but
that when Ball failed to comply with his request he
asked the Employer to withhold the dues. In January
1974 the Employer deducted Ball's dues for Septem-
ber 1973 as well as for January 1974. On January 30,
1974, Ball wrote to the Employer's business manager
for an explanation. On the same day he filed a griev-
ance with Respondent protesting the "double deduc-
tion" of dues. The record shows that the Employer
did not respond to Ball's January 30 letter, nor did
Ball write again to the Employer about the "double
deduction" after filing his grievance with Respon-
dent.
The Administrative Law Judge found that Ball's
dues for September 1973 were not erroneously de-
ducted. Moreover, he found that it had been Ball's
responsibility to contact the Employer's payroll de-
partment to ascertain the facts of the matter. On this
basis, he concluded that the matter is now moot. We
disagree.
In our view , this grievance also involves an issue
regarding the proper interpretation of the collective-
bargaining agreement. In this instance the checkoff
provisions of the contract are involved." Since the
grievance involves a possible infringement of Ball's
rights under the collective-bargaining agreement, we
find that the grievance is not moot. When Ball was
unsuccessful in finding out the reason for the "dou-
ble deduction," Respondent was obligated to pursue
the matter . We find, contrary to the Administrative
Law Judge, that Respondent's failure to process the
"dues deduction grievance" was a violation of Sec-
tion 8(b)(1)(A) of the Act. Accordingly, we will direct
Respondent to process the "dues deduction griev-
ance."
10 We will not direct Respondent to process the "Christmas Cash griev-
ance" because in our judgment Respondent has already fulfilled its statuto-
ry obligations . According to the testimony of Grievance Committee Chair-
man Watson , the grievance was taken up with management at a regularly
scheduled grievance meeting and Respondent came away from the meeting
satisfied "that the company was right on this one." Respondent subsequent-
ly posted the results of that meeting on the Guild bulletin board at the
Couner-Express. Accordingly, we are satisfied that Respondent processed
the "Christmas Cash grievance" in accordance with its statutory obligations
and therefore did not violate Sec . 8(b)(1)(A).
11 Art. 11 of the collective -bargaining agreement.
On November 26, 1973, Ball filed a grievance re-
lating to slotman Burt Nelson. The record reveals
that on October 26, 1973, Executive Committee
Member Nelson was promoted by the Employer to
the supervisory position of "chief slot man" (i.e.,
chief copy editor). Nelson continued to be active on
the executive committee after his promotion. Ball
subsequently filed a grievance with Respondent al-
leging that the Guild contract was violated by
Nelson's continued participation in the bargaining
unit after his promotion to supervisor.12 Ball request-
ed Nelson's removal from the contract's coverage.
The Administrative Law Judge recommended that
the grievance be dismissed on the theory that it in-
volves a matter relating solely to internal union af-
fairs. In his exceptions, the General Counsel asserts
that the grievance reflects a concern that a conflict of
interest would arise in Respondent's enforcement of
the collective-bargaining agreement because of the
fact that Supervisor Nelson was still actively serving
on the executive committee."
We agree with the General Counsel. In our view,
the rights of all members of the unit are at stake
when it appears that a conflict of interest may arise
in the vigorous enforcement of the collective-bar-
gaining agreement by their collective-bargaining rep-
resentative. Inherent in Ball 's grievance were ques-
tions as to Respondent's ability to properly represent
the members of the unit. Accordingly, we find that
Respondent's failure to process the "slot man (Burt
Nelson) grievance" was a violation of Section
8(b)(1)(A) of the Act and shall order Respondent to
process it.
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 as modified
below and hereby orders that Respondent, The Buf-
falo Newspaper Guild, Local 26, American Newspa-
per Guild, AFL-CIO-CLC, Buffalo, New York, its
officers, agents, and representatives, shall take the
12 Ball referred to the preamble of the collective-bargaining agreement
which excludes from Guild coverage "supervisors as defined in the National
Labor Relations Act .. " He requested that Respondent invoke art. 11,
sec. 6, of the Guild constitution which provides, "No persons actively serv-
ing the interest of employers as against the interests of the Guild shall be
eliWible to membership "
The General Counsel further argues , "Clearly Ball's letter though
it quotes a section of the constitution does not constitute an internal union
matter inasmuch as the constitution itself places the duty of contract en-
forcement and complaints regarding terms and conditions of employment
upon the Local Ball was therefore expressing his complaint as to Nelson's
status both as the beneficiary under the agreement and as a member under
the constitution."
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a) of
the recommended Order:
"(a) Request Buffalo Courier-Express, Inc., to
consider: (1) the Murphy-Whitefield grievance; (2)
the Mort-Jones grievance; (3) the dues deduction
grievance; (4) the Suburban-Courier grievance; (5)
the slot man (Burt Nelson) grievance; and (6) the
Mary Myers grievance in addition to the grievances
specified in that section of the Decision entitled `The
Remedy,' and take such further action as designated
in said section."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to place intraunion
charges against William L. Ball, or to expel him
from our Union, because he filed unfair labor
practice charges with the Board, or because he
participated in lawful intraunion activities, or
because he engaged in other protected concerted
activities.
WE WILL NOT fail or refuse to process any
employee's grievances because of his intraunion
or protected concerted activities or because of
his disagreement with the views, opinions, or
conduct of the officers or agents of the Guild.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their right to engage in or refrain from engaging
in concerted activities guaranteed by Section 7
of the Act, except to the extent such right may
be affected by an agreement authorized by Sec-
tion 8(a)(3) of the Act.
WE WILL request Buffalo Courier-Express,
Inc., to consider the grievances designated be-
low, and will thereafter, if appropriate and nec-
essary, take such grievances to arbitration in ac-
cordance with the grievance procedure set forth
in our collective-bargaining agreement. The
grievances are: the assistant slot man (Arthur
Potts) grievance; the days-off grievance; the
part-time copy editor (Harold Murphy) griev-
ance; the Murphy-Whitefield grievance; the
Mort-Jones grievance; the dues deduction griev-
ance; the Suburban-Courier grievance; the slot
man (Burt Nelson) grievance; and the Mary
Myers grievance.
THE BUFFALO NEWSPAPER GUILD, LOCAL 26,
AMERICAN NEWSPAPER GUILD, AFL-CIO-
CLC
DECISION
STATEMENT OF THE CASE
JOHN P . VON ROHR , Administrative Law Judge: Upon a
charge filed on February 28, 1974, the General Counsel of
the National Labor Relations Board , by the Regional Di-
rector for Region 3 (Buffalo, New York), issued a com-
plaint on July 25, 1974, against the Buffalo Newspaper
Guild , Local 26 , American Newspaper Guild , AFL-CIO-
CLC, herein called the Respondent or the Union, alleging
that it had engaged in certain unfair labor practices within
the meaning of Section 8(b)(1)(A) of the National Labor
Relations Act, as amended , herein called the Act. The Re-
spondent filed an answer denying the allegations of unlaw-
ful conduct alleged in the complaint.
Pursuant to notice , a hearing was held before me in Buf-
falo, New York , on October 21, 22, 23, and 24 and on
November 5, 6, and 7 , 1974. Briefs were received from the
General Counsel and the Respondent on January 6, 1975,
and they have been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Buffalo Courier-Express, Inc., herein called the Employ-
er or the Company, is a New York corporation maintain-
ing its principal office and place of business in Buffalo,
New York, where it is engaged in the publication and dis-
tribution of a daily newspaper. During the year preceding
the hearing herein, the Company received gross revenues in
excess of $200,000. During the same period, it purchased
and received goods valued in excess of $50,000 from points
and places located outside the State of New York.
The parties concede, and I find, that Buffalo Courier-
Express , Inc., is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Buffalo Newspaper Guild, Local 26, American
Newspaper Guild, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that (1) Respondent Union violat-
ed Section 8(b)(1)(A) of the Act by threatening the Charg-
ing Party with bodily harm and by taking various other
retaliation against him, all because he had engaged in pro-
tected concerted activities and (2) that Respondent Union
BUFFALO NEWSPAPER GUILD 83
further violated Section 8(b)(1)(A) of the Act by failing to
properly process grievances filed on behalf of the Charging
Party and on behalf of other employees, all in reprisal for
the Charging Party's participation in protected and/or con-
certed activities.
B. Background
1. Structure and composition of Respondent Local
Respondent Local 26 of the Guild represents approxi-
mately 600 employees, primarily editorial department em-
ployees, of three newspapers operating in the area of Buf-
falo, New York, viz the Courier-Express (the employer
herein involved), the Buffalo Evening News and the Tona-
wanda Evening News. It is , however, relevant to note that
the employees of each newspaper comprise a separate ap-
propriate bargaining unit. William Ball, the Charging Party
herein, has been employed as a copy editor with the Couri-
er-Express since May 1970 and has at all times been a
member in this unit (the so-called CE unit) which has ap-
proximately 300 member-employees.
The officers of the Local are as follows: Joseph Ritz,
president; Richard Batzer, vice president; Patricia Swift,
secretary. In addition, it is noted that the governing body
of the Local is the executive committee, which meets
monthly. It is comprised of unit officers and elected dele-
gates from each of the three units. Finally, it is noteworthy
that each unit has its own grievance committee. Insofar as
material here, the following were the officers, elected dele-
gates, and grievance committee members of the Courier-
Express unit: Joseph Ritz, member of executive commit-
tee; Pat Ryan, unit chairman, member of executive com-
mittee; James Watson, chairman of grievance committee;
Joseph Higgins, unit vice-chairman, member of executive
committee; John Fleming, unit secretary-treasurer; Burt
Nelson, member of executive committee; Paul MacClen-
nan, member of executive committee; James Higby, mem-
ber of grievance committee; Peter Wetmore, member of
grievance committee; Edward Toronto, alternate delegate
to executive committee.
2. Respondent hostility against Charging Party Ball
A substantial part of the lengthy record in this proceed-
ing is devoted to background evidence (i.e., predating Au-
gust 28, 1974, the 10(b) cutoff date in this case) for the
purpose of establishing animus against Ball and the various
conduct in which he engaged which precipitated such Re-
spondent animus . I do not deem it necessary to set forth
each and every incident, activity, or conversation tending
to establish such animus, for not only is the record abun-
dantly clear that Respondent became extremely resentful
of Ball for his entire course of conduct against the Union,
including various challenges and charges made by him
against Respondent officers and agents, but indeed Re-
spondent officials readily admitted at the hearing that they
came to regard Ball much more than a nuisance because of
his numberous activities in this regard.' However, certain
highlights of Ball 's activities are a relevant and necessary
part of this Decision and I set them forth below as follows.
In April 1973, Ball ran against Pat Ryan for chairman of
the Courier-Express bargaining unit, but was defeated in
an election which was held on April 5.2 Ball, in a lengthy
letter to Local President Joseph Ritz dated April 18, 1973,
promptly challenged the election. In that letter he not only
fully explicated his reasons for challenging the election, but
specifically accused James Rigby, a member of the griev-
ance committee, of having engaged in certain irregularities
in connection therewith. A committee was appointed to
investigate Ball's complaints, but at a meeting held on
April 26 the Union voted to affirm the results of the elec-
tion. On June 17, 1973, Ball took his protest to the conduct
of the election to the Union's national headquarters in
Washington, D.C., by writing a letter to Charles Perlik, the
president of the Newspaper Guild, enclosing a copy of the
above-noted April 18 letter to Ritz. By letter of July 2,
1973, Perlik advised Ball that the International lacked ju-
risdiction over the matter and suggested that he "continue
pursuit of your protest before the Local Union and be
guided by the Local's determination in the matter."
Remaining adamant in his challenge to the April 5 elec-
tion, Ball, in a 12-page letter to the Secretary of Labor
dated August 1, 1973, filed a further protest of the election
and, for the numerous reasons set forth therein, requested
that the Department of Labor conduct an investigation
with respect thereto. In the same letter he requested that
"the election be overturned on the basis of my rights under
the LMRDA and the governing regulations of the Newspa-
per Guild, Local 26." It is undisputed that in mid-August
1973, the Department of Labor, after having conducted an
investigation of Ball's charges, advised President Ritz that,
unless the Respondent consented to a new election, the
Department would be prepared to institute court action
towards this end. Ritz advised the Department that he
would take it up with the Local. This he did, with the Local
deciding to agree with the Department's request. Ritz so
notified the Department in late September or early Octo-
ber 1973 and an agreement was reached that a new election
be conducted no later than April 15, 1974.
In the meantime, Ball was on vacation during the entire
month of September. On September 12, Ball called John
Fleming, the Unit secretary-treasurer, to inquire about the
Department's investigation of his election protest 3 During
the conversation Fleming stated that he had suggested to
Ryan that he (Ball) be placed on the grievance committee
because he thought this might resolve some of the prob-
lems involving Ball. According to the credited testimony of
Ball, Fleming at this point went on to say that Ryan replied
that he would not place Ball on the grievance committee
because James Watson, the chairman of the grievance
committee, was opposed to him, and, further, that Ryan
1 One admission to this effect will be related in the alleged gun incident in
the early morning of October 3, 1974, as hereinafter set forth
2 He was, however, at this time elected a delegate to the executive com-
mittee.
J 1 will note at this point that Ball demonstrated a remarkable memory for
details and dates as to the various incidents and matters concerning which
he testified Many of these he documented at the time of the occurrences.
On the whole, and after having observed him give voluminous testimony,
Ball appeared to me to be a credible witness
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that if he (Ryan) had anything to do with it, Ball
"would never hold any official position in the Union." 4
Department of Labor representatives held a preelection
meeting with Ritz , Fleming, Higby , and Ball in latter Janu-
ary 1974. During the meeting Higby, a member of the
grievance committee , protested Ball's presence , stating that
his participation in the meeting was not welcomed . He was,
however, permitted to remain.
A new election was conducted in latter February 1974.
Ball was again defeated by Ryan for position of chairman
of the Executive Committee. He did, however, retain his
position as delegate to the committee. On April 8, 1974, the
Department of Labor issued a determination of Ball's com-
plaint, the essence of which held that any violations that
had occurred in the initial election had been remedied by
the second election.
I turn now, briefly, but as part of the background evi-
dence, to a previous unfair labor practice charge filed by
Ball against the Respondent . This stemmed from a griev-
ance filed by Ball in December 1972, concerning his al-
leged deprivation of certain vacation pay to which he felt
he was entitled. On July 16, 1973, there having been no
resolution of his grievance , Ball filed a charge against the
Respondent in Case 3-CB-2107 alleging a violation of Sec-
tion 8(b)(1)(A) of the Acts This case was ultimately settled,
with the charge being withdrawn on August 2, 1973. It is
noteworthy that Grievance Committee Chairman Watson,
who was interviewed in connection with this charge and
who during the instant hearing described his relationship
with Ball as "strained ," placed the beginning of this rela-
tionship at about the time of the filing of this charge. Fur-
ther describing his relationship with Ball, Watson testified,
"it is just that through the course of the-I felt he was
trying to give me a fast shuffle. I didn't trust the guy. I was
getting too many stories from him ...."
In addition to all the foregoing, the General Counsel
adduced testimony predating the 10(b) cutoff date regard-
ing Ball 's zealous involvement in other union affairs, such
as those pertaining to charges made by him that
Respondent's officials did not strictly enforce or correctly
interpret various provisions of the collective-bargaining
agreement between the Company and the Union, as well as
charges that Respondent 's officials engaged in various
other improprieties in the handling of internal union af-
fairs . For example , in early 1973 Ball alleged that guild
work was being performed by nonguild members, in viola-
tion of the contract, on a new company project called the
Suburban Courier, this involving special editions of the
company newspaper containing editorial items of interest
to particular Buffalo suburbs. Without detailing
Respondent 's handling of Ball's charges (which subse-
quently was made the subject of a grievance), suffice it to
note that Ball was not satisfied with Respondent 's handling
of the matter. At a union meeting held in February or
4 Ryan did not deny making the quoted remark to Fleming . He did, how-
ever , testify "I told Fleming that Mr . Watson had declined to appoint Ball
to the committee , and that is where the matter stood " Watson conceded
that he did not want Ball on the grievance committee.
5 Although this charge was couched in statutory language , it is undisputed
that the basis for the charge pertained to Respondent 's alleged failure to
properly process this grievance
March 1973, with Ryan, Watson, Higby, and Wetmore
present, he openly accused union officials of selling out the
membership because of their discussions with management
concerning the issue .6 A further example of Ball's activities
involved his challenging the procedure of Respondent's of-
ficials in the appointment of a negotiating committee to
participate in upcoming contract negotiations.? Again
without relating his various protests and discussions with
Respondent's officials concerning this matter, suffice it to
note that Ball finally appealed to International President
Perlik. By letter dated November 20, 1973, with a copy to
Ritz, Perlik advised Ball as follows:
Dear Mr. Ball:
I am responding to your two letters of November 5,
1973.
It would appear that the allegations of "threats, coer-
cion and intimidation" advanced in your letter of Oc-
tober 22, 1973, to the Secretary of Labor are not cog-
nizable under TNG's Constitution and would be more
susceptible to effective investigation through the pub-
lic agencies you have already contacted.
Regarding the appointment of a negotiating commit-
tee for negotiations with the Courier-Express, I am not
in a position to pre-judge whether a violation of the
TNG Constitution or the Local's By-Laws has in fact
occurred. I note, however, that Article XVIII, Section
2, and Articles XII and XIII of the Constitution would
seem to be applicable, and if you feel that a violation
has occurred you may proceed by filing charges pur-
suant to those provisions.
Sincerely and fraternally,
/s/ Charles A. Perlik, Jr.
President
Having thus related the pertinent background evidence
concerning Ball's activities and Respondent 's reaction
thereto, further such activities by Ball, together with
Respondent 's response , is related in the ensuing discussion
concerning the events covered by the allegations in the in-
stant complaint.
C. Alleged Restraint and Coercion
1. The alleged gun incident
The complaint alleges that Patrick Ryan, the chairman
of the bargaining unit and a member of the executive com-
mittee, threatened to inflict bodily injury and other harm
to Ball because he engaged in protected concerted activi-
ties.
Having been on vacation during the entire month of De-
cember 1973, Ball returned to work on the evening shift of
6It should be made clear that I make no finding that Respondent en-
gaged in fact in any such impropriety, as charged by Ball . I relate this
incident solely as further demonstrative of Ball's zealous involvement in
union affairs as well as his open opposition to various acts and conducts of
union officials.
7 The current contract at this time had an expiration date of December
31, 1973. Ball's protests concerning the appointment of the negotiating com-
mittee began in October 1973
BUFFALO NEWSPAPER GUILD 85
October 1. Ball testified that, upon completion of the shift
about 1:30 a.m. on October 2, he left the premises and
walked down the street toward his car. This took him past
a bar known as Ray Flynn's Golden Dollar. As he was
passing by the bar, he said, he heard someone shout an
obscenity at him. He thereupon turned to the direction of
the bar and observed Pat Ryan, the chairman of the bar-
gaining unit and a member of the executive committee,
standing between the inner and outer doors of the entrance
to the establishment. Ball testified that at this point Ryan
was holding the outer door open with his left hand, while at
the same time holding a pistol in his right hand, waist high,
the pistol being pointed directly at him. Ball further testi-
fied that at this point Ryan made "a noise or popping noise
... like when children are playing cops or robbers." He
added that at the same time he heard "laughter and cheers
coming out of the tavern." According to Ball, Ryan there-
upon went back into the bar and he (Ball) proceeded down
the street to his car.
Pat Ryan is employed by the Courier-Express as a re-
porter and works on the night police beat. Because of the
nature of his work, Ryan, who holds a permit registering
two pistols, concededly wears a pistol inside his belt while
on duty. He testified that he "assumed" that he did wear a
pistol on the evening in question. In any event, Ryan was
in the Golden Dollar bar on the night of October 1-2
drinking beer with other members of the Union, including
Union Officials James Watson, John Fleming, and Joseph
Higgins. Concerning the incident with Ball which conced-
edly occurred late that evening, Ryan testified that the fol-
lowing took place:
I had been in the tavern with some other people from
the Courier, including a number of people involved in
Guild activities, and we had, in the course of the con-
versation, mentioned Mr. Ball and someone said, I
don't remember who, something to the effect of how
much trouble he was causing us, and you know, the
continual accusations and continual fear to say any-
thing for fear that it would be taken a different way
than it was meant and that kind of thing, and just
about that time somebody looked out the window or
saw Mr. Ball passing in front of the tavern, and in a
moment of stupidity I rushed to the door, pushed open
the screen door, the aluminum glass door with one
hand, and my other hand on the door dam, leaned
outside and made a noise at Mr. Ball . . . I made a,
"Brrrt" . . . ultimately referred to as Bronx Cheer or
raspberries.8 [Emphasis supplied.]
Aside from the foregoing, Ryan emphatically denied
drawing a gun on Ball. Thomas Ryan, the bartender, testi-
fied that he heard comments being made about Ball as Ball
was passing the front window and that hence he made it a
point to observe Ryan go to the door at Ball's approach.
Flynn testified that he watched Ryan during the entire in-
cident and that at no time did Ryan take out a gun or have
a gun in hand.
8 1 think it pertinent to note that the italicized portion of Ryan's quoted
testimony is further demonstrative of the resentment held by various Re-
spondent officials against Ball.
Turning to my conclusions concerning this incident, I
have previously stated my impression, from observing Ball
testify, that Ball was a generally credible witness. This does
not, however, impel me to accept his testimony in its en-
tirety. With respect to the testimony of Respondent's wit-
nesses concerning this incident, particularly that of Ryan,
there was nothing in Ryan's demeanor to indicate that he
was not telling the truth concerning his encounter with
Ball. Moreover, this testimony was at least in part corrobo-
rated by Flynn. The question concerning Ryan's drawing a
gun on Ball is a particularly serious matter. In this case, as
in any other, the burden of proof is upon the General
Counsel to establish the violations alleged in the complaint.
Where there is a conflict in the testimony, this burden nec-
essarily must include his establishing that his witnesses are
to be believed over witnesses called by the Respondent. I
cannot say that he has met this burden here. Accordingly,
and while the matter is not free from doubt, I find that the
General Counsel has not established by a preponderance
of the credible evidence that Ryan threatened Ball by
drawing a gun as alleged in the complaint and as contend-
ed by him. Accordingly, it is recommended that this alle-
gation be dismissed.
2. Alleged coercion by Higgins
The complaint alleges that Joseph Higgins, a member of
Respondent's executive committee, threatened Ball with
bodily harm. Concerning this incident, Ball testified that he
had a conversation with Higgins and several other staff
employees at the copy desk during the evening of October
21, 1973. He said that, while the conversation concerned
various of his problems and protests, the conversation
eventually turned to the fact that Higgins had been taking
flying lessons. At this point, according to Ball, Higgins
turned to him and stated that "he could see himself obtain-
ing a Norden bomb sight and flying over my home." 10
This was the sole testimony concerning this allegation in
the complaint, but the General Counsel nevertheless con-
tends that Respondent thereby coerced Ball within the
meaning of Section 8(b)(1)(A) of the Act. Without dwelling
upon the matter further, and assuming that Higgins bore
no love towards Ball because of Ball's various protected
activities described herein, I fail to see where Higgins' re-
mark, however uncomplimentary, can seriously be con-
strued as a threat of bodily harm. I recommend that the
allegation be dismissed.
9 In making this finding, I do not find that Ball deliberately fabricated his
testimony concerning this incident It is entirely possible, particularly since
it occurred late at night, that he indeed may have envisioned the incident
much as he related In any event, applicable here is the frequently quoted
observation of Judge Learned Hand in N L R B v Universal Camera Corp.,
179 F 2d 749 (C.A 2, 1951), "It is no reason for refusing to accept ev-
erything that a witness says, because you do not believe all of it; nothing is
more common in all kinds of judicial decisions than to believe some and not
all ."
10 Higgins recalled discussing the subject of flying lessons with Ball and
others, but testified that he could not recall making any statements to Ball
to the effect of the above-quoted testimony. I credit Ball that Higgins did
make the statement in question
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's alleged warning of employees not to
associate or speak with Ball
The complaint alleges that Respondent's officers and
agents "warned employees of the Courier not to associate
with or speak to Ball because Ball engaged in protected
concerted activities."
The sole evidence adduced concerning this allegation
was Ball's testimony concerning a conversation he had
with Edward Toronto, a copy editor and then an alternate
delegate to the executive committee, on or about October
9, 1973. Ball testified that at this time, "Mr. Toronto told
me that members of the editorial copy boy staff had said
that they had been approached by Mr. Ryan and Mr. Wat-
son and told them not to associate or talk with me, or I
would get them in trouble with the Department of Labor."
Although Toronto did not deny the foregoing conversation
with Ball," I am persuaded that the foregoing testimony
does not sustain the allegation in the complaint. In this
connection, it is noteworthy that the complaint does not
allege that Toronto's statement in itself was coercive. Rath-
er, the complaint alleges that Respondent in fact warned
employees not to associate with Ball because Ball engaged
in protected activities. I find the testimony of Ball , related
above, is insufficient to support this allegation. Simply stat-
ed, it is hearsay. There being no other evidence whatsoever
to support the allegation, I recommend that it be dis-
missed.12
4. Ritz ' threat of December 14, 1973
The complaint alleges that, during a telephone conversa-
tion on December 14, Ritz threatened Ball that charges
would be instituted against him if he continued his protests
against Respondent with the FBI and the Department of
Labor.
As background to this allegation, it is relevant to note
that on October 22, 1973, Ball wrote and transmitted a
lengthy seven-page letter to the Secretary of Labor in
which he detailed numerous accusations, charges, and
complaints against officers of Respondent Local 26. These
included the heretofore related alleged gun threat at the
Golden Dollar, as well as the heretofore related Norden
bombsight remark by Higgins. Further, in charging that
Respondent officials were "intimidating, restraining, and
coercing me," Ball stated in the letter that this resulted
"because of me filing a complaint with the National Labor
Relations Board [Case 3-CB-2107] and my protests and
complaints filed with the U.S. Department of Labor, dated
August 1, 1973, involving the conduct of an election within
the Courier-Express unit."
It is undisputed that a copy of the above letter was re-
ceived by the Respondent and that Ritz read the letter in
its entirety at a membership meeting of the Local on De-
cember 13, 1973. (Although denied by Ritz, Ball credibly
11 Toronto merely testified concerning other conversations with Ball con-
cerning Ball 's various activities
12 Assuming arguendo that Respondent did direct other employees not to
talk with Ball , there would remain the legal issue as to whether this conduct
would constitute "restraint and coercion" within the meaning of the Act.
The finding above, however, makes it unnecessary for me to decide this
question.
testified that at least portions of this letter were read by
Ritz in a falsetto voice-Ritz conceded that there was some
laughter during the reading of the document.) It is also
undisputed that this letter was posted on the Union bulle-
tin board at the Courier-Express after the meeting. Ball
testified that he observed the posted letter on the following
day, December 14, and that he thereupon protested the
posting of it to Secretary-Treasurer John Fleming. Ball tes-
tified that after some discussion Fleming called Ritz at
home and in his presence. After Fleming spoke to Ritz,
Ball got on the phone. Ball testified that at this point he
told Ritz that the posting of his letter was unfair, that his
charge should not be resolved in a public forum. Accord-
ing to the testimony of Ball, which I credit, Ritz responded,
"If you continue this-these protests and complaints, you
are going to be brought up on charges and booted out of
the union." Ritz finally agreed to Fleming's removing the
letter until he could speak to his attorney. Although Flem-
ing removed the letter from the bulleting board, it was
posted again by Ritz on the following Monday.13 Before
deciding the allegation at hand, it is relevant to note that in
the subject letter to the Secretary of Labor, Ball initially
stated as follows:
On Friday, Oct. 19, 1973, I was advised by Kenneth
Cohen of the U.S. Attorney's Office, Buffalo, to sub-
mit the following information to your office for trans-
mission to the U.S. Department of Justice for possible
investigation under provisions of the Labor-Manage-
ment Reporting and Disclosure Act of 1959 as amend-
ed, Title VI Deprivation of Rights under Act of Vio-
lence (29 U.S.C. 530) Sec. 610 to wit:
"It shall be unlawful for a person through the use of
force or violence or threat of the use of force or vio-
lence to restrain, coerce or intimidate, or attempt to
restrain, coerce or intimidate any member of a labor
organization for the purpose of interfering with or pre-
venting the exercise of any right to which he is entitled
under the provisions of this act."
Accordingly, I state to you that since December
1972, I have been the target of acts which I consider to
be threats of violence aimed at intimidating, restrain-
ing, and coercing me for exercising my rights under
the union regulations and under the Labor-Manage-
ment Reporting and Disclosure Act and the federal
Civil Rights statutes.
Several paragraphs later in the same letter he stated as fol-
lows:
These individuals have engaged in these acts against
me because of me filing of a complaint with the Na-
tional Labor Relations Board [Case 3-CB-2107] and
my protests and complaints filed with the U.S. De-
partment of Labor, dated Aug. 1, 1973, involving the
contract of an election within the Courier-Express
unit.
13 Ritz conceded talking to Ball over the telephone concerning the posting
of the letter, conceded that he agreed that it be removed at this time, and
testified that subsequently "I believe I reposted it." Ritz did not deny the
above-quoted testimony of Ball with respect to the threat that Ball would be
brought up on charges and booted out of the Union if he continued his
protests As indicated, I credit Ball's entire version of this conversation
BUFFALO NEWSPAPER GUILD
Applicable to a determination as to whether Ritz's afore-
noted threat to Ball was violative of the Act is Carpenters
Local Union No. 22, et at (William Graziano d/b/a Grazi-
ano Construction Company), 195 NLRB 1, 2 (1972), wherein
the Board stated as follows:
It is by now well settled that although Section
8(b)(1)(A) "leaves a union free to enforce a properly
adopted rule which reflects a legitimate union inter-
est" and "impairs no policy Congress has imbedded in
the labor laws," it does not permit enforcement, by
fine or expulsion, of a rule which "invades or frus-
trates an overriding policy of the labor laws... .
Cases decided to date, holding that union enforcement
of a rule by fining a member violates Section
8(b)(1)(A) of the Act, have involved the protection of
important policies embodied in the Act itself, such as
the right of employees to gain access to the processes
of the Board to seek to remedy union conduct viola-
tive of the Act, or the right of employees who sought
to observe contractual responsibilities to protection
against union efforts to punish them for refusing to
breach such responsibilities. The policies which the
Union's conduct here seeks to frustrate are embodied
in the Labor-Management Reporting and Disclosure
Act of 1959, rather than specifically in the National
Labor Relations Act. This difference does not, howev-
er, impel a different conclusion.
As the above-quoted language from the Supreme
Court's decision in Scofield implies, the Board is
charged with considering the full panoply of congres-
sional labor policies in determining the legality of a
union fine. Here the Union, in the guise of enforcing
internal discipline, has sought to deprive its members
of the right, as guaranteed by the Labor-Management
Reporting and Disclosure Act, to participate fully and
freely in the internal affairs of his own union. A fine
for that purpose not only in our opinion fails to reflect
a legitimate union interest but rather in fact impairs a
policy that Congress has imbedded in the labor laws.
For these reasons, we conclude that the Respondent
Union's conduct in fining Shanley because of his in-
traunion activity violated Section 8(b)(1)(A) of the
Act.
Clearly Ball, in his letter to the Department of Labor
dated October 22, 1973, sought to invoke his rights under
the Labor-Management Reporting and Disclosure Act of
1959. Significantly, in that letter he specifically called at-
tention to his previous charges with the Department con-
cerning the intraunion election, the final determination of
which at this time was still pending. Moreover, I am per-
suaded that Ritz's reference in his December 14 conversa-
tion with Ball to "protests and complaints" were meant not
only to include Ball's October 22 letter to the Secretary of
Labor, but also to his previous activities in intraunion af-
fairs, including his earlier protest to the Secretary concern-
ing the conduct of the April 5, 1973, intraunion election.
I find that Respondent, by Ritz' conduct in threatening
to bring Ball up on charges and to have him expelled from
union membership if he continued his intraunion activity,
87
violated Section 8(b)(1)(A) of the Act. Cf. G. V. R. Inc., 201
NLRB 147 (1973).
5. Threats concerning the unfair labor practice charge
The complaint in substance alleges that Respondent un-
lawfully threatened to bring intraunion charges against
Ball because he filed the unfair labor practice charge in this
proceeding. The charge was filed by Ball on February 28,
1974. His action in so doing was taken up at an executive
board meeting held on March 10, 1974. At this meeting
Paul MacClennan, an employee of the Buffalo Evening
News and a member of the executive committee, asked "if
Ball had sought redress through the local as required in the
TNG constitution." When Ritz responded that he had not,
MacClennan moved that "Ball be summoned to a special
meeting of the Executive Board to explain his actions and
the charges." 14 The motion carried. The special meeting
was held on March 19. Ball did not attend. The minutes of
this meeting reflect that at this meeting the following took
place:
MacClennan moved that subject of a written explana-
tion of his charges from Ball, that the next local meet-
ing consider a resolution of censure and that legal ad-
vice be sought on the possibility of bringing charges
against him before the trial Board for violation of ap-
propriate provisions of the TNG constitution. Ryan
seconds. Approved.
On March 21, 1974, Ball went to the Buffalo News
Building to discuss a matter with Patricia Swift. While
there he also spoke to MacClennan concerning the reason
for his not appearing at the March 19 meeting. Ball credi-
bly testified that at this time MacClennan told him "that
because of my going to the NLRB and not answering these
requests or directives to come to this meeting, that they
were going to bring me up on charges and boot me out of
the Union." 15
Respondent publishes and circulates to its members a
monthly newsletter called the Frontier Reporter. Under the
heading "Agenda" one item in the April 1974 issue of this
included the following: "Consideration of placing charges
against William Ball for violation of Guild Constitution."
By letter dated March 28, 1974, Respondent advised Ball
as follows:
Dear Bill:
On March 19 the Local Executive Board held a spe-
cial meeting, partly to hear an explanation of charges
you have brought against the Local before the Nation-
al Labor Relations Board.
You were contacted personally the week before the
meeting and asked what day would be convenient for
you to meet with the committee. It was pointed out
14 The quotations are taken from the minutes of this meeting ( Resp Exh.
33)
is Although MacClennan gave a somewhat different version of this con-
versation , he did not deny the substance of the testimony by Ball quoted
above Insofar as the versions differ, I credit the testimony of Ball over that
of MacClennan
M DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, if it were required, the Local would pay any lost
time you would be required to take from work to meet
with the committee.
You agreed to a Tuesday evening meeting, on
March 19. Nevertheless, you did not appear at the
meeting , nor did you notify any Local or unit officer
you would not be able to appear.
You were contacted by myself at the Courier-Ex-
press an hour before the meeting and asked if you
intended to attend the session. Your answer, pleading
the press of work, is not judged sufficient, since the
Local contract allows you to take off work time for
Guild activities.
At the special Executive Committee meeting it was
unanimously voted to ask you to explain, in writing,
the charges you have made to the NLRB. Failing a
written reply by you, it was voted to place on the
agenda of the next Local meeting consideration of
charging you with violation of the International Guild
Constitution.
/s/ Joseph P. Ritz, President
Concerning the next meeting, which was held on April
25, 1974, the minutes thereof reflect only that the matter of
placing charges against Ball was tabled and referred to
Respondent's attorney.
Turning to my conclusions, it is well established that a
union may not resort to restraint and coercion in order to
restrict the right of an employee-member to file charges
with the Board. N.L.R.B. v. Industrial Union of Marine &
Shipbuilding Workers of America, and its Local 22, 391 U.S.
418 (1968). Clearly, MacClennan's threat to Ball on March
21, 1974, that he would be brought up on charges and
booted out of the Union for failing to explain to the mem-
bership his filing of the charges was a form of restraint and
coercion.16 I find that by such conduct Respondent violat-
ed Section 8(b)(1)(A) of the Act. I further find that
Respondent's letter of March 28, 1974, particularly the last
paragraph thereof, and when considered in the context of
MacClennan 's previous threat as well as in the context of
the notice appearing in the April 1974 issue of the Frontier
Reporter, contained an implied threat that Ball would be
faced with intraunion charges under the International
Guild constitution if he failed to submit a written explana-
tion of his filing unfair labor practice charges with the
Board. By such conduct, Respondent further violated Sec-
tion 8(b)(1)(A) of the Act.17
D. The Grievances
This section will deal with the allegation in the com-
plaint that "Respondent failed to process grievances and/
16 Amalgamated Meat Cutters and Butcher Workmen, et at, Local 590 (Na-
tional Tea Company), 181 NLRB 773 (1970); Amalgamated Clothing Work-
ers, etc, Local 424 AFL-CIO, (Mt Union Manufacturing Company), 193
NLRB 390 (1971); Local 138, International Union of Operating Engineers
(Charles S. Skura), 148 NLRB 679 (1964), W. J. Graham, John Graham, 11,
and Martin Gracey, a Partnership d/b/a Graham Engineering, 164 NLRB
679 696 (1967)
It is immaterial, in finding the above violation , that Respondent did not
subsequently implement the action it threatened to take.
or delayed processing grievances and/or failed to inform
Ball of the results of grievances he filed on behalf of him-
self and others and/or handled the said grievances, in re-
prisal for and because of Ball's participation in protected
and/or concerted activities," all in violation of Section
8(b)(1)(A) of the Act. The specific grievances litigated at
the hearing are as follows.
1. The assistant slot man (Arthur Potts) grievance
On October 29, 1973, Ball learned from Arthur Potts, a
Courier-Express employee, that Burt Nelson, who had re-
cently been designated chief copy editor, had named Potts
to the position of assistant slot man. Ball told Potts, inter
alia, that no such position existed under the contract, that
no new job title was to be created by management without
consultation with the Union, and that therefore he intend-
ed to file a grievance on the matter.18
On November 3, 1973, Ball prepared a grievance on a
grievance form alleging that article XVII, section 10, 11,
and 12, of the collective-bargaining agreement had not
been complied with by the establishment of the new job
title, assistant slot man. Ball credibly testified that he
placed the original grievance in an envelope with Watson's
name on it in Watson's mailbox. Photocopies of the same
grievance, in envelopes appropriately addressed, were also
placed by him in the mailboxes designated for Ryan and
Wetmore.19
On November 30, 1973, Ball spoke to Swift about this
and other grievances which he had filed but concerning
which he had received no word. According to the credited
testimony of Ball, he at this time presented Swift with a
copy of the assistant slot man grievance, and after some
discussion was told by her "this is a clear violation of that
working agreement. We ought to move on that."
Concerning all the foregoing, Wetmore testified that he
was not familiar with or did not recall the grievance in
question. Watson testified that he did not receive the griev-
ance which Ball said he placed in his mailbox, indeed that
the first time he "heard" of this grievance occurred when
he discussed the instant charges with the Board agent in-
vestigating this case .20 Swift testified that she "thought" she
had seen the grievance in question, but that she did not
"believe" that she read it at a meeting. However, any doubt
raised by the foregoing witnesses concerning the receipt of
this grievance is dispelled by the testimony of Ryan con-
cerning the December 13, 1973 , meeting of the executive
committee. Testifying that this grievance in fact was
brought up at this meeting, Ryan continued as follows:
And it concerned Arthur Potts, who was the copy
reader, and another applicant for the Class A job
which had been awarded to Mr. Nelson. That job was
18 Unrefuted and credited testimony of Ball.
19 A bank of mailboxes for employees is located in the editorial depart-
ment of the Company where employees receive U . S. and interoffice mail
Watson has a mailbox exclusively for himself Ryan 's box is shared with two
other employees . Wetmore receives his mail in a large box marked "editorial
copy desk." shared by other department employees Respondent officials
concededly received various letters and grievances from Ball which had
been placed in these mailboxes.
20 Watson , who demonstrated a poor memory, impressed me as being a
particularly unreliable witness
BUFFALO NEWSPAPER GUILD 89
called the slot man or copy editor, and apparently Mr.
Nelson had taken Mr. Potts aside and said to him that
he was now his assistant and would be filling in when-
ever Mr. Nelson was not in the slot himself. And I
believe Mr. Ball maintained that this was a position
that had been created with no definition in the con-
tract . . . I told him it had been a long standing prac-
tice at the Courier-Express for one person generally to
fill in for someone else without creating a new position
of assistant.
Ryan further testified that he considered his above "ex-
planation" disposed of this grievance and that the mem-
bers then voted it be "received and filed."
In view of Ryan's testimony that no further action was
taken by Respondent concerning this grievance, I need not
relate Ball's testimony concerning his further inquiries con-
cerning it . Suffice it to note that Ball did not regard the
grievance as having been disposed of and that, notwith-
standing his subsequent inquiries, he received no notifica-
tion of any further action being taken on it. It is undisput-
ed that Respondent did not meet with management over
the matter.
At this point it is relevant to note that article XVII of the
collective-bargaining agreement to which Ball specifically
referred in the filing of this grievance provides as follows:
10. No new job title for work within the Guild's
jurisdiction will be created by the publisher without
first furnishing the Guild with a description of the new
job.
11. No work will be performed under the new job
title until agreement has been reached.
12. If the Guild and Publisher are unable to reach
agreement, the Publisher will withdraw the proposed
new job title.
Furthermore, although article V of the contract specifically
sets forth a comprehensive list of the various job titles in
the editorial department, an examination thereof reveals
that the title of assistant slot man is not included.21 Ac-
cordingly, it is clear that Ball appears to have been entirely
correct in grieving that the unilateral establishment of the
new job title assistant slot man and Nelson's appointment
of Potts to that position was not done in accordance with
the specific terms of the collective-bargaining agreement.
Not only in perceiving his obligations as a member of the
executive committee, but as any employee who is subject to
the terms and conditions of employment set forth in the
contract, Ball was entirely within his rights in filing this as
well as the other grievances at issue herein. The question
now is, did Respondent fulfill its obligation of fairly repre-
senting Ball in the handling of this grievance. Turning to
the legal principles applicable to the processing of this and
the other grievances at issue in this case, the law is well
settled that a bargaining agent must serve the interests of
all bargaining unit employees fairly and in good faith and
without hostility or discrimination against any of them on
2i The fob titles do include the position of slot man However , it is note-
the basis of arbitrary, irrelevant, or invidious distinctions.
Manuel Vaca, et al, v. Niles Sipes, 386 U.S. 171; Local
Union No. 12 United Rubber Workers 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). How-
ever, a breach of the statutory duty of fair representation
occurs "only when a union's conduct towards a member of
the collective-bargaining unit is arbitrary, discriminatory,
or in bad faith." Vaca, et al. v. Sipes, supra. And, further, a
labor organization is not required automatically to process
a grievance of a unit employer. Retail Clerks Union, Local
No. 1357 (Lit Brothers), 192 NLRB 1171 (1971). "If, in
good faith, it believes that the grievance is without merit, it
may refuse to entertain it without running afoul of its duty
of fair representation." Carpenters, Local Union #1104
(The Law Company, Inc.), 215 NLRB No. 98 (1974).
Before turning to my conclusions, a reference to the
grievance procedure as provided in the collective-bargain-
ing agreement is here in order. Thus, article XI, section 1,
of the contract provides:
1. The Guild shall designate a committee of its own
choosing to take up with the Publisher or his author-
ized agent any matter arising from the application of
this agreement or affecting the relations of the em-
ployee and the Publisher. The Publisher agrees to
meet with the committee within five (5) days after re-
quest for such meeting. Efforts to adjust grievances
shall be made at a mutually convenient time.
Section 2, 3, and 4 of article XI set forth further steps to
be taken by the parties themselves toward affecting a set-
tlement of the dispute. Absent a settlement at any of these
preliminary stages, section 5 and succeeding sections pro-
vide for invocation of arbitration and the procedure to be
followed at the arbitration stage.
Upon the entire record, I conclude and find that
Respondent's failure and refusal to process the grievance
under discussion was attributable, at least to a large extent,
to Respondent's heretofore described hostility towards Ball
for having engaged in the various intraunion and other
protected concerted activity hereinbefore described. More-
over, while I recognize that a labor organization must be
allowed some discretion in the processing of grievances, I
am satisfied that in this instance the grievance was not of a
frivolous nature.' Indeed, from the evidence heretofore dis-
cussed, I am persuaded that the grievance in question has
been shown to be of prima facie merit. In this connection, I
do not hold that Respondent was necessarily bound to take
the grievances to arbitration. The important fact here is
that Respondent did not even go so far as to meet with the
Employer in accordance with the first step in the contrac-
tual grievance procedure. If Respondent had taken this rel-
atively simple step it is entirely possible that the grievance
would have been resolved at this stage-or, if it was then
determined that the grievance lacked merit, by consulting
with management, Respondent in effect thereby would
have conducted an appropriate investigation and Ball
could have been notified accordingly.22
worthy that other "assistant" positions are specifically set forth therein For 22 Indeed, I should note that it was Respondent's failure to follow even
example , while it includes the job title of telegraph editor, it also includes a the first step of the grievance procedure which is the principal basis for my
job title of "assistant telegraph editor finding the additional violations hereinafter set forth
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, I find that Respondent retaliated against Ball by
not processing his grievance, thereby failing its duty of fair
representation, and that it thereby violated Section
8(b)(1)(A) of the Act. Local 485, International Union of
Electrical, Radio and Machine Workers AFL-CIO (Automo-
tive Plating Corp.), 170 NLRB 1234 (1968); Supplemental
Decision, 183 NLRB 1286, enfd. in relevant part 454 F.2d
17 (C.A. 2, 1972). Port Drum Company, 170 NLRB 555
(1968); Supplemental Decision, 180 NLRB 590 (1970). See
also a recent court decision, N.L.R.B. v. Local 396, Team-
sters [United Parcel Service], 509 F.2d 1075 (C.A. 9, 1975),
enfg. 203 NLRB 799 (1973).
2. The days-off grievance
Following his appointment as chief slot man (or chief
copy editor) Burt Nelson held and exercised authority to
designate the days off for the employees in his department.
In mid-November 1973, Nelson asked Ball to submit his
preference in regard to days off. Responding thereto, Ball
advised that he did not wish to have Sundays and Mon-
days off, even if this meant having split days off, since this
would enable him to attend certain sporting events, as has
been his practice, which were held on weekdays. In late
December, Nelson changed Ball's days-off schedule to
Sunday and Monday. On December 29 Ball went to Nel-
son and protested the change. It is undisputed that Nelson
thereupon told Ball, "You're going to take those days off
and you're going to like it. I don't want anymore complain-
ing about it. I don't want a grievance filed. I don't want
you to go to the Union. I want you to keep your mouth
shut."
On January 3, 1974, Ball filed a grievance which stated
as follows:
Days off changed arbitrarily by slot man without
observance of the long-standing practice of seniority
preference. Grievant feels that despite the slot man's
claim that the action was for the good of the company,
the change is in the nature of a reprisal for actions
taken by the grievant involving the slot man in meet-
ings of the executive committee for Local 26, Buffalo
Courier.
On January 9, 1974, Ball wrote a letter to Swift, enclos-
ing a copy of the above grievance, with the further request
"that the executive committee approve arbitration if neces-
sary on this question." It is undisputed that both the formal
grievance and the letter were received by Respondent.
This grievance was taken up at the January 20 meeting
of the executive board. As reflected in the minutes, the
grievance, together with the request that it be taken to arbi-
tration if necessary, was read at this meeting. As also re-
flected in the minutes, a decision was reached that the mat-
ter "be referred to the CE [Courier-Express] grievance
committee with instructions to report back to the next
meeting ." However, Ball testified that during this meeting
MacClennan stated that this was no place for Ball to air his
dirty laundry.
23 On cross-examination Watson could not recall when this occurred nor
could he give any further details
The record reflects that the grievance in question was
not considered at either the February 14 or March 10
meetings and that during this period Ball heard nothing
further concerning the processing of this grievance.
As heretofore noted, Ball filed the charge in this pro-
ceeding on March 4, 1974. Ball testified that in the latter
part of March he observed a notice on the bulletin board
which, as he recalled, stated "the question involving the
days off of a copy editor had been raised, that the compa-
ny claimed that the days off had been changed for the
good of the company, but they would check into the cir-
cumstances surrounding the change of days off and inform
the Courier-Express Unit." Ball thereupon took the matter
up with grievance committee member Peter Wetmore to
ascertain what was transpiring. Wetmore stated that he
and the grievance committee had spoken to management
about the matter but that they did not have in their posses-
sion the grievance form or the grievance letter when they
did so. Ball thereupon stated that he was not satisfied with
the committee's presentation of the grievance, as they did
not have the documents which set forth the reasons for his
grievance.
Wetmore testified that the committee had two sessions
with management concerning the matter, one in which the
committee presented the grievance and the other where
management gave an answer. Watson, however, testified
that the committee held only one meeting with the Compa-
ny and that "at that time we did not agree with manage-
ment . . . we were going to try another tactic and try and
use a seniority issue on them." When asked if this was
done, Watson vaguely testified, "We tried, yes. Didn't
work." 23
In any event, Wetmore testified that the grievance in
question was taken up at an executive board meeting held
on May 2, 1974. Concerning this matter, the minutes re-
flect only as follows: "The Company apologized for not
having an answer to the question of whether a copy editor's
days off could be switched to one he prefers. A note with
an answer is to be delivered soon." Respondent put on no
further testimony concerning this meeting or whether any
"answer" from the Company was ever received.
Wetmore testified that on or about August 20, 1974, he
and Watson finally went to see Respondent's attorney con-
cerning this grievance "because we wanted to see whether
it was a potential case for arbitration." According to Wet-
more, he thereupon sent the following letter dated August
22, 1974, to Ball:
Bill-
Jim Watson and I met with Richard Lipsitz recently to
review your grievance concerning the assignment of
days off. The Guild attorney said he could find no
violation of the contract, as days were assigned con-
secutively. He said the "or" in the clause also would
release the company from rotating the days off of the
entire copy desk in order to distribute the days off
equally. The clause reads [sec. 7(b)]. "Where possible
days off will be rotated or given consecutively.
BUFFALO NEWSPAPER GUILD 91
We would consider it probably fruitless to carry the
grievance further, but of course you are entitled to
carry it to the local if you wish.
/s/ Pete Wetmore
Although Wetmore testified that he placed the above
letter in the box designated for Ball in the company mail-
bank , Ball testified that he did not receive it. Ball further
testified that his Sunday-Monday schedule of days off had
not been changed . However, whether or not Ball in fact
received the letter , I find the evidence in its entirety to
amply reflect that Respondent failed in its statutory duty
of fair representation in its handling of Ball's "days off"
grievance . The inconsistent and vague testimony of
Respondent's witnesses hardly establish that any serious
investigation of the matter was ever made . Indeed, it would
appear that Respondent did not follow up on the failure of
the Company to furnish an answer to any purported inqui-
ry by it; nor does it appear that Respondent in fact at-
tempted any other "tactic" in its adjustment of this griev-
ance , as Watson asserted that it would . Moreover , not only
does the record establish that Respondent failed to keep
Ball informed as to what steps , if any , were being taken in
the processing of his grievance , but it is also clear that
Respondent did not pursue this matter with due diligence
and in a timely manner . As Respondent concedes in its
brief, "Both [Watson and Wetmore ] admitted that an inor-
dinate amount of time had elapsed from the filing of a
grievance until a response was made to Mr. Ball."
I find that Respondent 's conduct in failing to properly
process the grievance in question, for the proscribed rea-
sons previously noted , was in violation of Section
8(b)(1)(A) of the Act 24
3. The part-time copy editor (Harold Murphy) grievance
In late October 1973 Harold Murphy, a retired copy edi-
tor at the Courier-Express, was rehired by the paper to
work at the editorial copy desk on a part-time basis. On
November 3, 1973, Ball filed a grievance with respect to
this action, alleging that the collective-bargaining agree-
ment 25 had been violated in that this permitted Murphy to
be employed without the employer granting him all the
contractual benefits to which regular employees were enti-
tled, that Murphy was not an active member of the Guild,
and also that by this action the Company sought "to estab-
lish the practice of using part time help on the copy
desk." 26
It is undisputed that this grievance was brought up at the
December 13, 1973, meeting of the executive board. How-
ever, as an example of the frequently contradictory and
confusing testimony of Respondent witnesses concerning
the various Ball grievances which were litigated in this pro-
24 Respondent introduced letters from two other employees protesting
that their grievances were not being timely processed . However, the delays
here appear to have been only a matter of a few weeks and are not at all
comparable to the Ball situation
25 Ball specifically referred to arts. IX, X, and XVI of the contract
26 The quoted statement is taken from a letter dated December 2, 1973,
which Ball submitted to Swift in further amplification of this grievance.
(G.C. Exh. 50).
ceeding, I relate the testimony of Ryan concerning the ac-
tion taken with respect to this grievance at that meeting.
Ryan first correctly related that Ball's December 2 letter to
Swift concerning this grievance (see fn. 26, supra) was read
at the meeting. He testified that at this point, "I was direct-
ed to investigate." But continuing, Ryan testified that at
this point he read a letter dated December 8, 1973, from
Fleming, noting that Ball was not able to be present at this
meeting.27 This letter, it may be noted, although related to
the grievance, did not purport to resolve the grievance or to
even suggest any resolution therefor. Instead, it merely
dealt with the amount of union dues owed by Murphy in
view of his part-time employment status. Indeed, it is note-
worthy that in this letter Fleming stated: "The case of a
Buffalo Guild member retiring and then six months later
returning to work at the same newspaper on a part time
basis is something new to me in 10 years of holding various
Guild offices here." In any event, Ryan testified that after
reading Fleming's letter he told the other members of the
executive board, "There is the investigation"; and this, he
testified, disposed of the matter as far as he was concerned.
Ryan's latter testimony, however, is not in accord with the
minutes of this meeting, offered by Respondent, which
state as follows: "Ball's letter dated December 2 re: status
of Harold Murphy, part time copy editor at CE who is on
CE pension. Letter attached. Covert moved that the matter
be referred to the unit chairman for investigation. Ap-
proved. 28
Ball credibly testified that a question was raised at the
January 20, 1974, union meeting concerning this grievance,
but that Ryan reported that no further action had been
taken. 9 He testified that the grievance was again referred
to the grievance committee. That no further action on this
grievance was taken by Respondent during the ensuing
months is clearly reflected in the minutes of a Local meet-
ing held on April 24, 1974, which states: "Ryan reported
that a grievance initiated by Ball re part time help on the
copy desk is pending. Management contends that the situa-
tion is temporary and that it is trying to hire full help." 30
With regard to the statement concerning the position of
management on the matter, there is no testimony whatso-
ever that the committee in fact took up this grievance pur-
suant to the contract's grievance procedure. Indeed, Wat-
son, the chairman of the grievance committee, testified that
he had no recollection of any union management meeting
over the Harold-Murphy grievance 31 Moreover, it is note-
worthy that the aforenoted April 24 meeting did not take
27 Resp. Exh 14
28 That this action was taken was also confirmed by the testimony of
Swift and Ball.
29 This is substantially confirmed by the minutes of this meeting. Resp.
Exh 31.
30 Resp . Exh. 35
31 Watson testified that at one point , in December or January , he "re-
called going to the company raising the issue of part time help on the copy
desk " He vaguely testified that the Company inferred "that under the con-
tract the company had the right to hire part time people," but that it assured
that every effort was being made to hire a full-time copy editor . He testified
that he believed the matter was "dropped" at that time It hardly need be
pointed out that this testimony is inconsistent with the testimony of other
Respondent witnesses and as well as its own documentary evidence In any
event, I have previously found Watson to be an unreliable witness and I do
not credit his testimony as aforesaid.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place until 2 months after the charge herein was filed.
Upon the entire record , it is clear and I find that, not
only did Respondent engage in flagrant procrastination in
the handling of this grievance , but it is also apparent that
Respondent in fact did not pursue any proper investigation
or consideration thereof . Furthermore , there is no question
but that Respondent never met with management over this
grievance pursuant to the terms of the contract.
In view of the foregoing , and for the same reasons here-
tofore expressed , I find that Respondent violated Section
8(b)(1)(A) of the Act by failing to afford Ball fair represen-
tation in the processing of this grievance.
E. The Additional Grievances
1. Preliminary discussion as to the additional grievances
In seeking a remedy for the alleged violations in this case
the General Counsel urges , inter alia, that Respondent be
ordered to appoint a standing committee to meet with the
employer and undertake a consideration of all the griev-
ances litigated herein , and that it also be required to take
such further action as approval of arbitration , if necessary.
With respect to the grievances heretofore discussed, I find
substantial merit to the General Counsel 's position and
shall, accordingly, direct such affirmative action as is
deemed appropriate . However, in reaching a determination
in this regard , it must be borne in mind that it is not a
function of the Board to decide whether a grievance in fact
is meritorious or not . Clearly, the resolution of grievances
is an integral part of the collective -bargaining process and
a determination and disposition of them must be made by
the parties themselves under the provisions of the collec-
tive-bargaining agreement . Nevertheless, in cases involving
alleged unlawful conduct with respect to the processing of
grievances , it appears clear that in deciding whether there
was a violation of the Act some evaluation of the grievance
or grievances at issue must be made . Thus, in Port Drum
Company, supra, a case involving a grievance relative to the
discharge of the Charging Party, the Board , as a relevant
basis for finding an 8(b)(1)(A) violation and also for or-
dering the Union to proceed to arbitration, adopted the
finding of the Administrative Law Judge that the discharge
grievance was shown to be "prima facie meritorious." Al-
though the Port Drum case does not go so far as to hold
that a prima facie case must be established by the General
Counsel, clearly it reflects that some consideration of the
merits of the grievances must be made . However, apart
from indicating that a "prima facie" showing of merit is one
criteria to be considered , I have found no case where the
Board has had the occasion to indicate whatever other
criteria or standards are to be utilized in evaluating griev-
ances which come before it in cases such as this . Signifi-
cantly, the only grievances in Port Drum, supra, Automotive
Plating supra, and United Parcel, supra, involved the very
serious question of the discharges of the respective employ-
ee grievants . I have found no case , such as the one at bar,
where the Board has been presented with a multiplicity of
grievances , most of which pertain to alleged violations of
the collective-bargaining agreement and none of which in-
volve the more serious question of employment tenure.
(This is not to say, however, that certain of the grievances
involved herein do not relate to other terms and conditions
of employment.)
Returning to the instant case , I think it apparent , for the
reasons previously, stated that each of the grievances here-
inabove discussed have been established by the General
Counsel to be substantially of prima facie merit. Accord-
ingly , and having found that Respondent violated Section
8(b)(I)(A) of the Act by its handling of these grievances, I
shall recommend that it take the necessary affirmative ac-
tion with respect to each in the manner designated in "The
Remedy" section of this Decision. However, for the rea-
sons hereinafter indicated, I shall not require Respondent
to take similar action with respect to the remaining griev-
ances set forth below . Moreover, since these grievances are
otherwise of a cumulative nature , and since the other
remedial provisions recommended herein would not be af-
fected regardless of whether or not Respondent engaged in
any unlawful conduct in its handling of them, I do not
deem it necessary to make any determination with respect
to any of them other than such as will be indicated.
2. The Murphy-Whitefield layoff grievance
Sue Murphy and Maureen Whitefield were among a
group of five Courier-Express employees who were laid off
or discharged in the latter part of October 1973. Ball con-
ceded that he did not know the employer' s reasons for their
being terminated . In any event, after speaking to White-
field and Murphy on the day of their termination, and after
presumably ascertaining that they had been employed for
the contractual 120-day probationary period, Ball filed a
grievance on October 28, 1973, alleging that their termina-
tion was in violation of article XII of the collective-bar-
gaining agreement . As a remedy therefor, Ball proposed
that Murphy and Whitefield be rehired and be made whole
for any loss of pay they may have suffered. The relevant
portion of the contract provision cited by Ball provides
that the employer may discharge probationary employees
"within the sole discretion of the publisher, and without
recourse to the Board of Arbitration."
Under all the circumstances pertaining to this grievance,
and regardless of whether or not the Respondent processed
this grievance in accordance with the principles of fair rep-
resentation, I do not believe that it would effectuate the
policies of the Act to direct the Respondent to proceed
with it any further. Thus, neither Murphy nor Whitefield
testified at the hearing nor is there any evidence that either
or both of them evinced any interest whatsoever in the
further processing of the grievance pertaining to their Oc-
tober 1973 termination. Indeed, Ball testified that both
"came back to the Courier-Express" in early January 1974.
Accordingly, not only does the issue now appear to be
moot, but it is apparent that the employees involved do not
wish to pursue the matter any further. I shall, therefore, not
recommend that Respondent be required to take any fur-
ther affirmative action with respect to this grievance.
3. The Christmas cash grievance
Approximately 2 months prior to Christmas 1973, the
BUFFALO NEWSPAPER GUILD
Courier-Express, in a promotional effort to increase circu-
lation, sponsored a contest whereby its readers holding los-
ing state lottery tickets would be eligible for cash prizes.
Advertisements of the contest appeared in the paper from
time to time. In November 1973, Ball submitted a griev-
ance alleging that certain copy relative to the contest was
being prepared by promotional department employees,
who were not members of the Guild, and that this was
infringing upon the jurisdiction of the editorial department
employees in violation of article I of the contract.
There being no evidence that the paper is continuing its
sponsorship of the contest in question, I conclude and find
that the grievance in question is now moot. Accordingly,
and whether or not the grievance was properly processed at
the time, I find that no further remedial action concerning
it is warranted.
i
4. The Mort and Jones grievance
On December 14, 1973, Ball filed a grievance alleging
that two freelance contributors from Niagara Falls, New
York, Ronald Mort and Suzanne Jones, were contributing
copy to the Courier-Express concerning the Niagara Coun-
ty legislature and the Niagara Falls council. Mort and
Jones were not members of the Union, hence Ball alleged
that their coverage of these matters violated article I of the
contract.
Ryan testified that upon inquiring into the subject mat-
ter of this grievance he learned that Mort and Jones had
"fallen out of grace with management" and that their copy
was no longer being accepted by the paper. The General
Counsel offered no evidence to refute this testimony. In-
deed, Ball testified that he had no way of knowing whether
these individuals "are still associated with the Courier-Ex-
press or not." Accordingly, it appearing that the matter is
now moot, I shall not recommend that any further action
be taken. Furthermore, and without holding this to be a
decisive factor in determining the question of fair represen-
tation, I do think it noteworthy that the grievance in ques-
tion (as well as most of the others discussed in this section)
does not relate to any term or condition of Ball's own em-
ployment. Whether or not the grievance was otherwise
properly processed, there is no showing that Ball was in
any way prejudiced insofar as his own employment status
was concerned.
5. The dues-deduction grievance
Due to a technical payroll error because of Ball's being
on vacation during the month of September 1973, and also
because Ball was paid some vacation pay in advance, the
employer neglected to notify the data processing depart-
ment to withhold dues prior to making the vacation pay-
ment. This was subsequently called to Respondent's atten-
tion by a notice from the payroll department dated
October 1, 1973. Thereafter Fleming, who testified that he
had advised Ball to make the payment directly to the
Union but that Ball did not, requested that the employer
withhold the September dues. This action was taken in
January 1974, at which time the employer deducted Ball's
dues for September 1973 as well as for January 1974.
93
On January 30, 1974, Ball filed a grievance alleging that
a "double deduction" of dues had been withheld in Janu-
ary 1974. As adjustment of the grievance he requested
"reimbursement of one month's union dues." The General
Counsel contends in his brief that "Ball's grievance consti-
tuted solely an attempt to ascertain from Fleming the proof
upon which he relied in authorizing the deduction." While
there is some question as to whether Fleming showed Ball
the October I letter from the payroll department, this is
not, in my opinion, the type of grievance which should be
the subject of the General Counsel's complaint. In the first
place, it seems reasonable to assume that it would have
taken very little effort on Ball's part, if he had any question
concerning the deduction, to make a personal inquiry with
the Company's payroll department to ascertain the facts of
the matter. Moreover, the record reflects that Ball's dues
for September were not erroneously deducted and that he
did not make the payment therefor to the Union. I find
that the matter is now moot.
6. The Suburban-Courier grievance
In January or February 1973 the Courier-Express com-
menced a new operation known as the Suburban-Courier.
This involved the preparation of special sections of the
newspaper containing items of interest to the various sub-
urbs of the Buffalo area in which these sections were dis-
tributed. As early as March 1973 Ball raised a question
with Respondent's officials concerning possible news con-
tributions being made to the Suburban-Courier by individ-
uals who were not members of the Guild. This also ap-
peared to have been the concern of other Respondent
officials and the record reflects that at least one union
meeting and other discussions between Ball and the
Union's officials took place during this period. Ball testi-
fied that in approximately May 1973 he and Higgins filed a
grievance over the issue and that in July 1973 he (Ball)
filed two additional grievances over the same subject mat-
ter. Ryan testified that during this period Ball presented to
him several clippings from the Suburban-Courier carrying
stories which he contended were contributed by nonguild
members. Ryan asserted, however, that upon looking into
these matters he found that the items had been submitted
by members of the Guild.
All the foregoing occurred prior to the 6-month 10(b)
statutory period and has been summarized for background
purposes only. On December 8, 1973, Ball filed a further
formal grievance on the same subject. Specifically, this
grievance stated: "Suburban Courier Copy in violation of
job jurisdiction provisions of Guild contract. Previous
grievances have not been submitted by Courier-Express
grievance committee." This grievance was taken up at a
meeting of the executive board held on December 13, 1973.
Ball testified that at this meeting, as he recalled it, a motion
was passed to the effect that the matter be referred back to
the grievance committee for further investigation and that
it report at the next meeting. In this instance Ball was mis-
taken, for the minutes of the meeting 32 reflect that, al-
32 Resp. Exh. 27
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though the motion referred to by Ball in fact was made, it
did not carry . Rather , the minutes show that a substitute
motion was made , this to the effect that Ball should first
submit whatever evidence he had in support of his griev-
ance . This motion was carried.
There is no evidence that Ball at any time after the De-
cember 13 meeting presented any evidence in conformity
with the directive of the executive board as aforesaid. Ac-
cordingly , absent Ball's presentation of evidence in support
of his grievance , I am persuaded that Respondent should
not be directed by the Board , as part of the remedy sought
by the General Counsel, to meet with management over
the matter and that it give approval of arbitration , if neces-
sary. Furthermore , in conjunction with this grievance, Ball
at the same time sent a letter to Swift in which he urged
that "a campaign be formulated" by the Union to bring
any Suburban-Courier contributors "within the jurisdiction
of Local 26.1133 If this was a purpose Ball sought to accom-
plish by filing the grievance in question , obviously this is
not a matter that Respondent could take up with manage-
ment.
7. The slot man (Burt Nelson ) grievance
On October 26, 1973, the Employer promoted Burt Nel-
son, an editorial department employee , to the position of
chief slot man (also known as chief copy editor ). Nelson
was a member of the Guild and apparently continued to
retain his active membership after being appointed to the
new position.
Nelson worked in the same department with Ball and the
record reflects that he apparently held and exercised super-
visory authority over Ball upon being appointed chief slot
man. On November 26, 1973 , Ball filed a "grievance" on a
standard grievance form in which he requested that Re-
spondent invoke article II, section 6, of the Guild constitu-
tion which provides "No persons actively serving the inter-
ests of the Guild shall be eligible for membership." In
conjunction with this complaint, Ball at the same time sub-
mitted a letter to Swift in which he stated, inter alia, that he
had asked Nelson to resign from the Union, and further,
that the matter should be "placed on the agenda at the
earliest possible time so the question can be quickly re-
solved."
Without detailing all the further testimony on the sub-
ject, suffice it to note that , as the record clearly reflects, the
filing of this so-called grievance involved an attempt by
Ball to invoke the Union 's constitution with a view to hav-
ing Nelson excluded from union membership because of
his promotion to an alleged supervisory position .34 It is
obvious , therefore , that this "grievance" involved a matter
relating to internal union affairs and did not involve a dis-
pute arising under the collective-bargaining agreement. It
is, accordingly , recommended that the grievance in the
complaint encompassing the allegation in question be dis-
missed.
33 G.C . Exh. 21.
34 It is necessary , in view of my disposition of this allegation , to decide
whether Nelson in fact was promoted to a supervisory position within the
meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of the
Employer described in section I, above, have a close, inti-
mate , and substantial relationship to trade , traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. 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 de-
signed to effectuate the policies of the Act.
As an effective remedy to cure its failure to fairly repre-
sent William L. Ball in the processing of his grievances, I
find it necessary and appropriate that Respondent be or-
dered to take the following action:
1. In accordance with the grievance procedure set forth
in the collective-bargaining agreement, Respondent shall
appoint a committee to meet with the Buffalo Courier-Ex-
press , Inc., for a consideration of the grievances named
below . Following any such meeting or meetings , the com-
mittee shall forthwith provide Ball with a full and complete
account thereof.
2. Following such consideration, and absent a resolution
of any grievance or grievances at this stage , the committee
shall, if it deems any grievance to be meritorious , recom-
mend that Respondent invoke the contractual grievance
procedure relative to taking the grievance or grievances to
arbitration if necessary.
3. The grievances to be processed as aforesaid are as
follows : the assistant slot man (Arthur Potts) grievance;
the days-off grievance; and the part-time copy editor (Ha-
rold Murphy) grievance.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening to place intraunion charges against
William L. Ball and by threatening him with expulsion
from the Union because he filed unfair labor practice
charges with the Board and because he participated in law-
ful intraunion activities, the Respondent has restrained and
coerced William L. Ball in the exercise of rights guaranteed
in Section 7 of the Act, in violation of Section 8(b)(1)(A) of
the Act.
4. By failing to process William L. Ball's grievances as
set forth in section V of this Decision , Respondent has
restrained and coerced Ball in the exercise of his rights
under Section 7 of the Act, thereby violating Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
BUFFALO NEWSPAPER GUILD 95
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record , and pursuant to
Section 10(c) of the Act, I hereby make the following rec-
ommended:
ORDER35
Respondent , The Buffalo Newspaper Guild, Local 26,
American Newspaper Guild, AFL-CIO-CLC, Buffalo,
New York, its officers , agents , and representatives , shall:
1. Cease and desist from:
(a) Threatening Ball with intraunion charges , or expul-
sion from union membership , for filing unfair labor prac-
tice charges with the Board , or for participating in protect-
ed intraunion activities.
(b) Restraining or coercing any employee in the exercise
of his rights under Section 7 of the Act by refusing to pro-
cess grievances because of his participation in intraunion
activities or because of his participation in other protected
concerted activities.
(c) Restraining or coercing employees in any like or re-
lated manner in the exercise of their right to engage in or to
refrain from engaging in the concerted activities guaran-
75 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.
teed them by Section 7 of the Act, except to the extent that
such right may be affected by an agreement authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Request Buffalo Courier-Express, Inc., to consider
the grievances specified in that section of this Decision en-
titled "The Remedy," and take such further action as des-
ignated in said section.
(b) Post at its Buffalo, New York, office, meeting halls,
and bulletin boards, copies of the attached notice marked
"Appendix." 36 Copies of said notices, on forms provided
by the Regional Director for Region 3, after being duly
signed by Respondent's authorized representative, shall be
posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
36 In the event the Board's 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
Judgement of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."