Chicago Typographical Union No. 16

National Labor Relations Board - Board Decisions

Mar 6, 1975

216 N.L.R.B. 903 (N.L.R.B. 1975)

CHICAGO TYPOGRAPHICAL UNION NO. 16 903
Chicago Typographical Union No . 16 and Hammond
Publishers, Inc. Cases 13-CB-5060 and
13-CB-5157
March 6, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
On July 10, 1974, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, the Charging Party and the
General Counsel filed exceptions and supporting
briefs, and the Respondent filed a brief in answer to
the exceptions.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge decided the instant
case shortly after the Supreme Court's decision in
Florida Power & Light Co. v. I.B.E. W., Local 641, 417
U.S. 790 (1974).1 The Administrative Law Judge
concluded, on the basis of Florida Power, that the
Respondent had not violated Section 8(b)(1)(B) of
the Act by disciplining two of its supervisor-members
I The Supreme Court held therein that a union did not violate Sec.
8(bXIXB) by disciplining supervisor -members who crossed lawful picket
lines to perform rank-and-file struck work.
2 Andress and Palmer , who were both found by the Administrative Law
Judge to be 2(11) supervisors and 8(bXIXB) representatives , were charged
with and found guilty of "ratting" and thereafter fined by and expelled from
the Respondent . The Administrative Law Judge concluded , from the
credited testimony of one of Respondent's witnesses , that "ratting"
concerned remaining at work in a struck office.
3 These findings , while pertinent to the motivational rationale of the
dissent, are of no moment under our analysis . We observe, however, as
noted InfrA that these findings are supported by the record.
4 Andress, who was characterized by the Administrative Law Judge as "a
frank, forthright, and candid witness ," testified that his duties as production
manager remained the same during the work stoppage as before , and that he
did not perform any additional functions in the composing room during this
time. He stated that between August 23, 1973, and September 10, 1973, he
"put in 22 hours a day" and that during this time he performed at most 35
minutes per day of what might be contended to be composing room work
such as going to the file room to get ads and putting some tapes through a
reader. Andress stated that he stopped performing even these tasks on
September 10, 1973, when Palmer returned to work. Palmer testified, and
the Administrative Law Judge found, that he resumed his normal functions
as the composing room foreman when he returned to work on September
10, 1973 . Palmer testified that he performed several acts in the composing
room upon returning to work which , prior to August 23 , 1973, were
normally performed by unit employees . In respect to these tasks the
Administrative Law Judge stated : "The facts relating to his work thereafter
reveal at most a minimal amount of work performed by Palmer which might
be described as non -supervisory unit work."
5 The dissent would have us believe , under its motivational type analysis
of Florida Power, that the instant case falls "squarely within the Supreme
Court's teaching" or that the instant case "is an exact copy of Florida
Power." We believe, to the contrary, that even under the dissent's analysis
there is a crucial difference between the two cases. In the instant case, both
the evidence and the Administrative Law Judge 's conclusions establish that
who worked behind Respondent 's picket line during
a lawful strike .2 This conclusion was based on the
following findings .3 The Administrative Law Judge
found that the nature of the work performed4 by
Andress and Palmer during the work stoppage had
not been a factor in Respondent 's decision to
discipline Andress and Palmer and that , on all the
evidence, Respondent's only motivation in imposing
the discipline was to "keep those it construed subject
to its discipline from working during a work
stoppage." 5
We believe that the Administrative Law Judge has
misinterpreted the Supreme Court's decision in
erroneously finding that the Respondent had not
violated Section 8(b)(1)(B) of the Act by disciplining
Andress and Palmer . We do not read the Supreme
Court's decision as turning on a determination of the
motivation behind a union's act of discipline, but
rather on a determination of the reasonable effect of
that discipline on the supervisor's activities as an
8(b)(1)(B) representatives As stated by the Supreme
Court:
The conclusion is thus inescapable that a union's
discipline of one of its members who is a
supervisory employee can constitute a violation of
§ 8(b)(1)(B) only when that discipline may adverse-
ly affect the supervisor's conduct in performing the
duties of, and acting in his capacity as, grievance
the Respondent's acts of discipline toward the supervisor-members herein
were not the result of the alleged belief of Respondent that the supervisor-
members were performing bargaining unit work . In fact, the Administrative
Law Judge held, while discrediting any testimony to the contrary, that "I
am persuaded that the totality of the evidence reveals that it made no
difference to Respondent whether Andress or Palmer were engaged in
bargaining unit work or supervisory work ." " In contrast to this situation of
the instant case , it is apparent to us that the , supervisor-members in both
Florida Power and Illinois Bell were disciplined precisely because the unions
therein believed that they had performed struck work during the strike. That
this is so seems apparent from the decisions of the Board , International
Brotherhood of Electrical Workers, AFL-CIO, and Local 134, IBEW (Illinois
Bell Telephone Company), 192 NLRB 85 (1971); International Brotherhood of
Electrical Workers System Council U-4, et al (Florida Power & Light
Company), 193 NLRB 30 (1971) (wherein the Board treated the fines as
having been imposed as a result of the supervisors ' performance of struck
work), the decision of the Circuit Court in Illinois Bell, 487 F.2d 1143
(C.A.D.C., 1973) (wherein the court observed "Section 8(bXl)(B) cannot
reasonably be read to prohibit discipline of union members-supervisors
though they be-for performance of rank -and-file struck work"), the
decision of the Supreme Court m Florida Power & Light, 417 U.S. 790 (1974)
(wherein the Court observed "we hold that the respondent unions did not
violate Section 8(bXIXB) of the Act when they disciplined their supervisor-
membets for performing rank and file struck work "), and the very words of
our dissenting colleague , infra, that: `tit is the performance of rank-and-file
functions which gave rise to the issue in Florida Power," and also at In. 19,
infra, "It should, then , be clear that the performance of the work of the
striking member, whether it be sole or partial was the heart of the matter."
Given this crucial difference between the two cases, we do not perceive how,
even under a motivational analysis, the actions of the Respondent herein
can be sanctioned under Florida Power.
s- This- interpretation is but a recognition of the common law rule that a
man is held to have intended the foreseeable consequences of his conduct.
The Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H.
Bull Steamship Company] v. N.L.RB., 347 U.S. 17 (1954).
216 NLRB No. 149
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjuster or collective bargainer on behalf of the
employer. [Emphasis supplied.]
The further question of "when that discipline may
adversely affect the supervisor's conduct ..."
clearly depends on an analysis of the activity
engaged in by the supervisor during the period for
which the discipline is imposed, rather than on an
evaluation of the union's motivation. That this is so
seems apparent from the Supreme Court's treatment
in Florida Power of the Board's decision in San
Francisco-Oakland Mailers' Union No. 18, Interna-
tional Typographical Union (Northwest Publications,
Inc.), 172 NLRB 2173 (1968). By assuming without
deciding that Oakland-Mailers' fell within the outer
limits of its test, the Supreme Court has implicitly
recognized that an adverse carryover effect may
result where the disciplined supervisor had been
engaged in the activity of contract interpretation.?
The application of the effect test is relatively
straightforward in extreme situations where the
r We note that in discussing Oakland Mailers' the Supreme Court
recognized that: "the Board had reasoned that the natural and foreseeable
effect of such discipline was that in interpreting the agreement in the future,
the supervisor would be reluctant to take a position adverse to that of the
union."
6 While there is some question whether or not any of the disciplined
supervisors in the cases before the Supreme Court in Florida Power perform
only rank-and-file struck work, we behove that the Supreme Court
disregarded, for the purpose of its decision , the possibility that some of these
supervisors may have performed some supervisory functions during the
work stoppage . This follows, we feel , for at least two reasons . First, the
decision makes no mention whatsoever that any of the supervisors
performed any supervisory functions during any of the disputes . Rather, the
decision speaks in terms of supervisors who crossed picket lines to engage in
the performance of rank-and-file work . This suggests to us that the amount
of supervisory work performed , if any at all, must have been very small and
of minor significance in comparison to the unit work performed by the
supervisors who were disciplined . Second, the Supreme Court characterized
the disciplined supervisors in the cases before it as not being "engaged in
collective bargaining or grievance adjustment, or any activities related
thereto, when they crossed union picket lines during an economic strike to
engage in rank and file struck work " (Emphasis supplied.) This telling
factual characterization by the Court does not fit the facts of the instant
case . In the instant case , it appears clear to us that Andress and Palmer
crossed the picket line to perform supervisory functions and only incidental
thereto did they perform a minimal amount of what might arguably be
called unit work . They did not, as revealed by the very nature of their
activities, cross the picket line to engage in rank -and-file struck work.
G This conclusion appears to be anticipated by both the majority and
dissenting opinions in Florida Power. At In . 22, the majority stated, in the
course of discussing how the petitioners had exaggerated the dilemma of the
supervisor's conflict of loyalities , that : "Those [Illinois Bell supervisors]
who did work during the strike but performed only their regular duties were
not disciplined by the union . In Florida Power . . . the union did not
discipline those who did so [crossed the picket line ] only to perform their
normal supervisory functions." Mr. Justice White stated, at In . 2 of the
dissent, that : "I do not read the Court to say that ¢8(bXlXB) would allow a
union to discipline supervisor-members for performing supervisory or
management functions, as opposed to customary rank-and-file work, during
a labor dispute."
We note with interest the position of the dissent which seems to suggest
that there would be no violation of Sec . 8(bXl)(B), regardless of the activity
engaged in by the disciplined supervisor-member, unless the discipline is
"directed to the manner in which he performs" his normal functions. It is
not altogether clear from the dissent whether the phrase his "normal
functions" encompasses the performance of all supervisory duties or only
grievance adjustment or collective-bargaining duties. Despite this lack of
disciplined supervisor has engaged either only in the
performance of supervisory activities (not limited to
grievance adjustment or collective bargaining), or
only in the performance of rank-and-file struck
work.8 In the former there is clearly a violation since
it is reasonably likely that an adverse effect will carry
over to the supervisor's performance of his 8(b)(1)(B)
duties where he is disciplined after having engaged
only in the performance of supervisory duties.9 In the
latter, there is no violation since it is not reasonably
likely that an adverse effect will carry over where the
supervisor has engaged in the performance of only
rank-and-file struck work.10
The instant case, in contrast to these extreme
situations, presents a factual setting where the
disciplined supervisors performed not only supervi-
sory duties (including grievance adjusting) but also,
at least arguably, a minimal amount of rank-and-file
struck work during the work stoppage.'1 We believe
that the Respondent's acts of discipline in the instant
case violated Section 8(b)(1)(B) notwithstanding the
clarity, it would seem that under the dissent there would be no violation
even though the only activity engaged in by the disciplined supervisor-
member was that of grievance adjustment or collective bargaining, as long
as the union discipline was not directed at the "manner in which he
performs those functions ." We do not perceive the Supreme Court's opinion
as so narrowly limiting Sec . 8(bX I XB) of the Act.
to As stated in International Brotherhood of Electrical Workers, AFL-CIO
[Illinois Bell] v . N.LRB., 487 F.2d 1143, 1157 (C.A.D.C., 1973):
[W ]hen a supervisor foresakes his supervisory role to do rank-and-file
work ordinarily the domain of nonsupervisory employees, he is no
longer acting as a management representative and no longer merits any
immunity from discipline . . . . There is accordingly no reason to
believe that by being forced to take sides with the union in a dispute
unrelated to the performance of his supervisory functions , and to take
aides only to the extent of withholding his labor from rank-and-file
nonsupervisory work , a supervisor will suffer from a change in attitude
when , after the strike, he returns to the performance of his normal
supervisory duties.
lr While the Administrative Law Judge failed to conclude whether
Andress or Palmer actually performed any rank-and-file struck work, the
record itself reveals that they may have performed, at most, a minimal
amount of this work during the work stoppage. See, fn . 4, supra. Our
dissenting colleague questions the assertion that Andress and Palmer
performed at most a minimal amount of rank-and-file work. In support of
this skepticism the dissent cites the reduction of the work force from 110
before the work stoppage to 10 immediately after the work stoppage. An
examination of Andress' testimony reveals that it is indeed probable that
Andreas and Palmer performed at most a minimal amount of what might be
characterized as rank-and-file work . Andress testified that there were 10
other individuals , in addition to the publisher and himself , working in the
composing room immediately following the work stoppage. Of these 10, 3 or
4 were from other departments and were experienced in computer work but
not in composing room work. The remaining six to seven were experienced
in composing room work by virtue of their employment with other papers
owned by Hammond Publications , the parent corporation. Andress further
testified that all of these workers worked from 20-22 hours per day. Andress
also testified to the elimination of some procedures and the addition of
other new procedures and some advanced equipment (some of the computer
type) and the development of a newly designed composing room. Some
functions were also performed in other areas of Hammond 's facilities. On
and after September 3, 1973 , new employees, some with composing room
experience , were interviewed and hired by Andress. Thus , Andress testified
that he hired 3 to 4 new employees on about September 3, 1973, and that by
mid-December 1973, he had hired around 33 new employees (the original 10
went back to their other jobs).
CHICAGO TYPOGRAPHICAL UNION NO. 16 905
fact that Palmer and Andress may have performed a
minimal amount of rank-and-file struck work. This
follows, we feel , since under our view of Florida
Power it makes no difference whether a supervisor
performs a minimal amount of struck work because
it is still reasonably likely that an adverse effect may
carry over to the supervisor's performance of his
8(b)(1)(B) duties when he is disciplined after having
performed substantially only supervisory functions
and only a minimal amount of what might arguably
be called rank-and-file struck work during a work
stoppage.
We do not believe that this analysis conflicts in any
way with the Supreme Court's treatment of the issue
of a supervisor-member's conflict of loyalties. The
Supreme Court stated that an employer may not
permit a supervisor to become a union member and
yet continue to be able to demand "absolute loyalty"
from that supervisor. We interpret this to mean that
an employer who permits his supervisors to become
union members may no longer demand the loyalty of
these supervisors if they cross a picket line and in
effect, substitute their services for those of the rank-
and-file employees. In this same regard , however, we
do not believe that the Supreme Court's decision is so
broad that it means that an employer surrenders his
right to require the loyalty of these same supervisors
when they cross a picket line and thereafter perform
substantial supervisory functions , even though inci-
dental thereto they also arguably perform a minimal
amount of rank-and-file struck work.12
In sum , due to the fact that these supervisor-
members crossed Respondent 's picket line and
thereafter performed substantially the same duties as
they had done before the strike, which were princi-
pally or only supervisory functions (including griev-
ance adjusting), we find that Respondent has
violated Section 8(b)(1)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Chicago Typographical Union No. 16, Chicago,
Illinois, its officers , agents, and representatives, shall:
1. Cease and desist from restraining or coercing
Hammond Publishers , Inc., in the selection of
12 In the words of the majority of the circuit court in International
Brotherhood of Electrical Workers, AFL-CIO [Illinois Bell] v . N.LR.B., 487
F.2d 1143 , 1169-70 (C.A.D.C., 1973):
If the employer, however, chooses not to exercise his rights under
that section [ 14(a)], permits his supervisors to join unions . . . the
employer cannot still insist on the supervisors' undivided loyalty in
every union-employer dispute no matter how unrelated the subject of
that dispute is to the supervisory function....
This is not to say , of course , that by permitting his supervisors to
representatives for the purpose of collective bargain-
ing or the adjustment of grievances:
(a) By fining, expelling, otherwise disciplining, or
attempting by any means to collect or enforce any
fine or discipline imposed against any such repre-
sentative, including Norman E. Andress and Vernon
M. Palmer, who performs substantially only supervi-
sory functions for Hammond Publishers, Inc., while
Respondent is engaged in a labor dispute with that
employer.
(b) By engaging in any like or related conduct
constituting such restraint or coercion.
2. Take the following affirmative actions which,
we find, will effectuate the policies of the Act:
(a) Rescind and expunge all records of the fine and
expulsion levied against Norman E. Andress on
November 25, 1973, and against Vernon M. Palmer
on December 30, 1973, after they had performed
substantially only supervisory functions for Ham-
mond Publishers, Inc., while Respondent was en-
gaged in a labor dispute with that employer.
(b) Advise Norman E. Andress and Vernon M.
Palmer in writing that the said fines and expulsions
have been rescinded and that the records of such
fines and expulsion have been expunged.
(c) Post at its business office and meeting hall
copies of the attached notice marked "Appendix." 13
Copies of said notice, on forms provided by the
Regional Director for Region 13, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 13
with signed copies of said notice for -posting by
Hammond Publishers, Inc., if willing, in places where
notices to employees are customarily posted.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER FANNING, dissenting:
join unions the employer completely waives his right to their loyalty
Even if he permits them to join unions, Section 8 (b)(l)(B), as
interpreted by Oakland Mailers and Meat Cutters, immunizes them
from union discipline imposed for the manner in which they perform
their supervisory functions [Emphasis supplied.]
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts of the case , the law as set out in the
Supreme Court's decision in Florida Power,14 and the
force of reason have all , in turn , been denied their
due by the majority. I, therefore, am compelled to
dissent.
On August 23, 1973, the employees of the compos-
ing room at Hammond Publishers set up a picket line
in response to certain changes in working conditions
instituted by Hammond.
Immediately prior to the work stoppage, there were
approximately 110 employees, all of whom were
journeymen, employed in the composing room.
Hammond had not hired an apprentice for some 6
years. All the 110 journeyman printers participated
in the work stoppage. The following day, Ham-
mond's production manager, Andress, an admitted
supervisor with extensive top-level management
duties, crossed the picket line and, literally, moved
into the composing room. He was joined by
approximately 10 other employees, 7 of which
Hammond had secured from various other compa-
nies within its organization . Of these latter employ-
ees, none were even apprentices at the trade.
Approximately three had some composing room
experience but not in the work over which Respon-
dent has jurisdiction. The record does not detail its
exact function , but an essential process in production
is performed by the "505 photographic unit." Prior to
August 23, only three employees were trained in its
operation. Two of those employees were engaged in
the work stoppage-the third was Andress. Accord-
ing to his own testimony, it took Andress 2 or 3
weeks of training given by the manufacturer to learn
the operation of the 505 in addition to "several
months" of concurrent textbook study. The mechani-
cal operation of the machine is, according to
Andress, quite simple and can be taught in a matter
of moments ; however, when problems arise with the
machine more extensive knowledge is required.
As to the composing room itself, Andress testified
that immediately upon commencement of the picket-
ing:
All windows were completely sealed ; the doors
were kept under lock; there was no exit in or out
of the composing room unless it was okayed by
me by getting in or out. There was also, as I said,
all the windows were completely blanked over so
there was no way of anyone seeing into the
composing room what was going on at that
14 Florida Power & Light Company v. International Brotherhood of
Electrical Workers, Locals 641, 622, 759. 820 and 1263; N.L.R B. v.
International Brotherhood of Electrical Workers, AFL-CIO, 417 U S 790
(1974).
is With the exception that Hammond began , around September 3, to
hire additional replacements By the time of the hearing, the work stoppage
was still in progress and Hammond had hired a total of 33 replacements for
particular time . . . . We had a guard at two
areas.
These conditions existed at Hammond for the
extent of Andress' stay in the composing room.15
Andress returned to his usual duties on September
10, 1974, when he was replaced by Palmer, the
foreman of the composing room. Palmer had
participated in the work stoppage from August 23 to
September 9.
Both Andress and Palmer testified that while
behind the picket line they performed work which
normally would have been performed by rank-and-
file employees had there not been a strike, i.e.,
Andress and Palmer, by their own words, admitted
performing struck work, albeit they characterized the
extent of struck work performed as "minimal."
Although Hammond had sealed off the composing
room, various reports from maintenance men and
guards filtered down to the Respondent that Andress
and Palmer were performing the work of the striking
employees. Thus, on four occasions the Respondent
was advised that Andress was "running the ma-
chine," "working the 505," and "putting tapes on the
machine." On at least eight occasions the Respon-
dent was informed that Palmer was doing the work
of the striking employees.
Throughout the August 23-September 9 period
that Andress worked in the composing room, he had
voluntarily maintained his union membership in the
face of high-level management responsibilities, so
that he would not lose the insurance and mortuary
benefits he had accrued while working at the trade.
Palmer, as foreman of the composing room, was
required to be a union member under the collective-
bargaining agreement .16 Ultimately, both were in-
formed that charges were being brought against them
for "ratting." Neither Andress nor Palmer attended
his hearing on the charges. Both trial committees
were told that both had, according to reports,
performed the work of employees engaged in the
work stoppage. The record further establishes that
both trial committees had expressed concern with the
hearsay nature of the charge that Andress and
Palmer had performed struck work, but, given their
failure to appear, coupled with the secrecy with
which their actions were undertaken, little choice
remained but to recommend guilty verdicts. Both
Andress and Palmer were notified that any defenses
they might have offered to the trial committees
the 110journeyman printers.
16 Immediately prior to crossing the picket line, Palmer attempted to
resign from Respondent . The question of the legality of disciplining a
member who has attempted to resign from the Union is not in issue in this
case . It was neither charged, nor litigated , and, in the words of counsel for
the General Counsel , " I want to make it crystal clear this is not General
Counsel's theory. General Counsel 's theory is the Illinois Bell theory."
CHICAGO TYPOGRAPHICAL UNION NO. 16 997
would not be deemed waived upon their attendance
at the union meeting which would consider the trial
committees ' recommendations . Both Andress and
Palmer failed to appear . They were offered the
opportunity to appeal. Both Andress and Palmer did
not appeal . 17 Both Andress and Palmer were fined
$ 1,000 and expelled from Respondent.
On these facts , the majority finds that Hammond
was restrained or coerced in the selection of its
representatives for the purposes of collective bargain-
ing or the adjustment of grievances.
This case, in my view, is controlled by Florida
Power. Because of certain statements made by the
majority, it is necessary to clarify what that case (and
its companion case , N.L.R.B. v. International Broth-
erhood of Electrical Workers, and Local 134, IBEW
(Illinois Bell Telephone Company), 487 F.2d 1143),
involved. The complaint in Florida Power charged
the respondent unions with violation of Section
8(b)(1)(B) because the unions fined certain supervi-
sors who "continued working for Florida Power and
crossed Respondent's picket lines as required in
order to do so" (emphasis supplied). The case came
to the Board on stipulated facts. The stipulation
indicated that the fined supervisors "performed
bargaining unit work ." There was no indication that
the supervisors performed "only" bargaining unit
work . In point of fact , the Board's original decision
in Florida Power stated that "the Company's supervi-
sors routinely crossed the picket line during the
course of the strike andperformed work, including unit
work for the company. "18
In the companion Illinois Bell case , the supervisors,
according to the General Counsel's complaint,
"worked and/or supervised the performance of work
on behalf of the Employer" (emphasis supplied). A
hearing was conducted in the case during which all
parties stipulated that the fined supervisors "during
the same period performed work of a supervisory
nature." At least one fined supervisor testified that
besides performing rank-and-file work, "I acted in
the capacity of a supervisor to other people who were
performing work during the strike."
As a point of logic and given the clear, irrefutable
facts of both Florida Power and Illinois Bell, I am at a
loss to understand the majority's "doubt" as to
whether the supervisors involved performed "only"
rank-and-file work. They clearly did not.
What is true about Florida Power is that we know
neither the extent of the supervisory functions
engaged in by the supervisors involved nor the extent
of the rank-and-file work they performed, but that
lack of knowledge is merely the result of its
irrelevance because it was the performance of rank-
and-file functions which gave rise to the issue in
Florida Power. 19 It should be apparent, then, that the
Board may, in fact, be deciding a case which is an
exact copy of Florida Power as it relates to the
proportion of rank-and-file versus supervisory func-
tions engaged in by some supervisors disciplined
therein and yet, anomalously, reaching an opposite
result.20
Once it is understood that the supervisors in
Florida Power, beyond a suggestion of doubt,
performed rank-and-file struck work and continued'
in part to perform their supervisory functions behind
the picket line, this case falls squarely within the
Supreme Court's teaching because the supervisors
involved herein were similarly engaged. It is not
"arguable" that they performed rank-and-file work,
they admitted doing it,21 and like the supervisors in
Florida Power were disciplined for "working during
the strike." 22
Even were we to assume that all supervisors in
17 Palmer, in fact, had refused to sign for the certified mail delivered to
him notifying him of the trial committee meeting.
is 193 NLRB 30 (1971 ). (Emphasis supplied.)
1s In addressing the so-called dilemma faced by the supervisor-member,
the Court did point out that those supervisors who performed only their
regular duties or normal supervisory functions were not disciplined by the
union . 417 U.S . at 812, In. 22. It should , then, be clear that the performance
of the work of the striking member, whether it be sole or partial , was the
heart of the matter.
20 The majority is apparently confusing those cases in which the Court
issues decisions arguably broader than the facts before it with its novel
theory that the Court has, indeed is empowered , to issue a decision narrower
than the facts before it. If the Court could do the latter, it would be, in
effect, not deciding the case at all and , as in this can, causing rehtigation of
the precisely same issues.
s1 What is "arguable" is the credibility of the assertion that the extent of
the performance of rank -and-file work was "minimal ." Why would the
Company seal off, completely, the composing room on the first day of the
stoppage? Why is it credible to conclude that Hammond 's operations could
continue at normal output with the performance of but "minimal" rank-
and-file work by Andress or Palmer when 110 journeyman printers are
engaged in a work stoppage and are replaced with 10 employees, not even
apprentices at the trade, only three of whom have any experience? How,
during a work stoppage , is the Union supposed to determine whether struck
work is actually being performed, let alone gauge the percentage of struck
work? What constitutes "minimal" struck work? The Union in this case had
clear reason to presume that the only truly experienced workers in the
composing room, Andress and Palmer, were performing its members' work,
as numerous reports indicated . The majority opinion, in effect, condones
failure to appear at the disciplinary hearing as a means of avoiding any
legally sufficient justification for the reasonable conclusion that the
supervisors have, in fact, performed struck work.
22 Although the issue posed in Florida Power was whether the
respondents therein violated Sec. 8(bXIXB) by disciplining those supervi-
sors who performed struck rank-and-file work , it is noted that the
supervisors involved were actually notified that the reason for the union's
discipline was their "continuing to work during the strike," as the record in
that case clearly demonstrates. When those supervisors who worked during
the strike took the time to appear before the executive board considering the
discipline and testified that although they had worked during the strike they
had not performed the work of union members, the respondent therein
decided to drop charges . Of course, we do not know whether the same result
would have been reached in the instant case because Andress and Palmer
did not attend their hearings , but the actual language used to notify them of
the reason for the Respondent's attempted inqui ry should not lead my
colleagues to conclude anything more than that such a fact is further
indication of the substantial resemblance of the instant case to the cases
involved in Florida Power. Counsel for the General Counsel's statement at
fn. 16, supra, is most interesting on this point given the fact that Illinois Bell
was ultimately to be overruled.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Power performed more than "minimal"
struck work (an assumption that simply cannot be
founded on facts), I still would not accept the
majority's conclusion that the performance of "mini-
mal" struck work by supervisors is not a legitimate
concern of the union and that its discipline of the
supervisors for performance of such work is prohibit-
ed by Section 8(b)(1)(B). Again, my colleagues
emphasize the supervisory tasks engaged in by those
disciplined and not the rank-and-file functions they
performed during the strike. It is also clear that, on
the facts of this case, it was the performance by the
supervisors of the work of its members which gave
rise to the Union's attempted inquiry and consequent
discipline.23
There can be no relevance to the proportion of
rank-and-file to supervisory functions performed by
a supervisor during a strike when the question of
equity, a basic thrust of the Supreme Court's
decision, is considered. Whether supervisors perform
80 percent, 30 percent, or 10 percent rank-and-file
work, their actions are equally antithetical to the
interests of the union whose membership benefits
they simultaneously enjoy. Even apart from the
monumental burden the majority imposes upon a
union's capacity to protect its substantial interest in
strike solidarity by requiring it to overcome the
naked assertion of "minimal" rank-and-file activity
(as opposed to requiring the General Counsel to
overcome the prima facie validity of the discipline
where rank-and-file activity has been performed), I
would d 'smiss the complaint herein on the basis of
Florida Power.24
23 The Administrative Law Judge concluded that Respondent was
motivated against Andress and Palmer because "they worked during the
strike ." While that may , in fact , be the case, I see no reason why such a
conclusion compels a different result . In any event, it is clear to me that
Andress' and Palmer's performance of the work of Respondent 's members
led directly to the initiation of disciplinary proceedings . That fact is
substantiated by the numerous instances in the record demonstrating that
Respondent's members were upset with Andress' and Palmer's performance
of "union" work. Hunt's testimony, upon which the Administrative Law
Judge relied, is additional evidence of that view. The Administrative Law
Judge discredited testimony which might be "construed as being that the
motivation against Andress and Palmer was pinpointed to the fact" that they
had engaged in rank-and-file work , but it should be obvious that the
Administrative Law Judge's interpretation of Florida Power did not require
an inquiry into whether the Respondent was motivated against these
supervisors because they merely "worked" or "performed unit work" but
rather only whether the Respondent was motivated against them in an
attempt to influence their particular grievance adjustment or collective-
bargaining functions . In that sense, the Administrative Law Judge 's finding
is in the realm of arguendo. Whatever the Union 's motivation, the fact
remains that these supervisors were fined by their Union "for continuing to
work" for their Employer and they performed rank-and-file work. The same
is true of the supervisors in Florida Power.
24 Because these supervisors admittedly performed rank -and-file struck
work, I need not consider the validity of the majority 's conclusion that a
supervisor engaged solely in supervisory duties cannot be disciplined for
working during a strike. While recognizing that such a factual setting is one
left open by the Supreme Court in Florida Power, I do note that many of the
considerations which went into the Court's decision are equally pertinent in
such a fact pattern , and that the principle of law to be applied remains, in
the Court's words, "that a union's discipline of one of its members who is a
supervisory employee can constitute a violation of 8(bXIXB) only when that
discipline may adversely affect the supervisor 's conduct in performing the
duties of, and acting in his capacity as, grievance adjuster or collective
bargainer on behalf of the employer."
I further note that to the extent a fine , threat of fine or expulsion, the
union's bylaws setting forth the membership obligation to observe picket
lines, or a picket line itself , may operate to restrain a supervisor-member
from reporting to work during the strike to perform his normal functions,
such restraint cannot be said to be directed to the manner in which he
performs those functions . Although it is true that the restraint may well
deprive the employer of the services of the supervisor during the strike if the
supervisor resolves the problem of conflicting loyalties by observance of the
picket line, this would seem to be a problem "Congress addressed, not
through 8(bXIXB), but through a completely different legislative route." See
my dissent in Daily Racing Form, a Subsidiary of Triangle Publications, Inc.,
216 NLRB No. 147 (1975).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Hammond
Publishers , Inc., in the selection of representatives
for the purpose of collective bargaining or the
adjustment of grievances:
(a) By fining, expelling , otherwise disci-
plining, or attempting in any manner to
collect or enforce any fine or discipline
heretofore imposed against any such repre-
sentative, including Norman E. Andress and
Vernon M. Palmer, who performed substan-
tially only supervisory functions for Ham-
mond Publishers, Inc., while Respondent
was engaged in a labor dispute with that
employer.
(b) By engaging in any like or related
conduct constituting such restraint or coer-
cion.
WE WILL rescind and expunge all records of the
fine and expulsion levied by us against Norman
E. Andress on November 25, 1973, and against
Vernon M. Palmer on December 30, 1973, after
they had performed substantially only superviso-
ry functions for Hammond Publishers, Inc., while
Respondent was engaged in a labor dispute with
that employer, and WE WILL notify the above-
named men , in writing, that we are rescinding and
expunging such records.
CHICAGO
TYPOGRAPHICAL UNION
No. 16
CHICAGO TYPOGRAPHICAL UNION NO. 16 909
DECISION
STATEMENT OF THE CASE
JERRY B . STONE , Administrative Law Judge: This
This proceeding, under Section 10(b) of the National
Labor Relations Act, as amended, commenced as a
proceeding involving Case 13-CB-5060, and was tried
pursuant to due notice on January 8 and 9, 1974, at
Chicago, Illinois . On February 14, 1974, the General
Counsel moved that I in my discretion reopen the
proceeding in Case 13-CB-5060, consolidate such with
Case 13-CB-5157, and that further hearing be held on the
issues in Case 13-CB-5157. The Respondent opposed the
General Counsel 's motion for reopening and consolidation
of cases, averred a willingness to stipulate the record in
Case 13-CB-5060 in the case involving 13-CB-5157, and
averred a willingness that the same Administrative Law
Judge who heard and decided Case 13-CB-5060 hear and
decide Case 13-CB-5157. Briefs having already been filed
in Case 13-CB-5060, and the case therefore being ready
for reasonably prompt decision , on February 28, 1974, I, in
my discretion, denied the General Counsel 's motion for
reopening and consolidation of cases because such would
unduly delay issuance of the decision with respect to Case
13-CB-5060. The General Counsel on March 12, 1974,
filed with the Board a request for special permission to file
an interim appeal to the order of February 28, 1974. The
Board on March 18, 1974, granted the General Counsel's
request for interim appeal and reversed the denial of
General Counsel's motion for reopening of record and
consolidation of cases . Therefore, said consolidated pro-
ceeding (Cases 13-CB-5060 and 13-CB-5157) was tried
pursuant to due notice on May 7, 1974.
The charge in Case 13-CB-5060 was filed on October 24,
1973. The complaint in Case 13-CB-5060 was issued on
November 30, 1973. The issues concerned whether Res-
pondent has violated Section 8(bXl)(B ) of the Act by
expelling from membership and fining Norman E. An-
dress, a supervisor of Hammond Publishers, Inc.
11, 1974, and have been considered . Briefs and/or
posthearing statements were filed by all parties with
respect to the consolidated cases ( 13-CB-5060 and 5157)
on or about June 4, 1974, and have been considered.
Upon the entire record in the case and from my
observation of witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and
admissions therein.
Hammond Publishers, Inc., the Charging Party, is, and
has been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the
State of Indiana.
The Charging Party, at all times material herein, has
maintained its office and place of business at 417 Fayette
Street, Hammond, Indiana, and has been, at all times
material herein , engaged in the business of newspaper
publishing.
During a representative calendar year period, the
Charging Party, in the course and conduct of its publishing
operations, held membership in, or subscribed to, various
interstate news services , including, but not limited to,
United Press International and Associated Press; pub-
lished various syndicated features, including, but not
limited to, Hopkins Syndicate, United Press International,
and Copley News Service; advertised various nationally
sold products, including, but not limited to, those of
Chrysler Corporation, General Motors, and Ford Motor
Company; and derived gross revenues from said publish-
ing operations in excess of $200,000.
As conceded by Respondent and based on the foregoing,
it is concluded and found that Hammond Publishers, Inc.,
is, and has been at all times material herein, an Employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that in connection with the
conduct described in section III herein , it will effectuate
the purposes of the Act to assert jurisdiction in this
proceeding.
The charge in Case 13-CB-5157 was filed on January 14,
1974. The complaint in Case 13-CB-5157 was issued on
February 14, 1974. The issues concern whether Respon-
dent has violated Section 8(bXIXB) of the Act by expelling
from membership and fining Vernon Palmer, a supervisor
of Hammond Publishers, Inc.
All parties were afforded full opportunity to participate
in the proceeding . Briefs were filed by all of the parties
with respect to Case 13-CB-5060 on or around February
I The facts are based on the pleadings and admissions therein.
s The facts are based on the pleadings and admissions therein.
II. THE LABOR ORGANIZATION INVOLVED 1
Chicago Typographical Union No. 16 is, and has been at
all times material herein , a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Agency status2
At all times material herein , the following-name
persons occupied positions set opposite their respective
names, and have been, and are now , agents of the Chicago
Typographical Union No. 16, acting on its behalf, within
the meaning of Section 2(13) of the Act:
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fred Hunt , Jr. - President
Dave Donavan - Vice President
Joe Caspar , Jr. - Organizer
Henry Rosemont - Trial Committee Member
Charles Derby - Trial Committee Member
George F . Balfe - Trial Committee Member3
Stanley Bozenski - Trial Committee Member
Edward C . Billman-Trial Committee Member
Walter Kugarzak - Trial Committee Member
Joseph Janek- Trial Committee Member
B. The Collective-Bargaining Representative Status4
Chicago Typographical Union No . 16, the Respondent,
has been at all times material herein the recognized
collective-bargaining representative of certain employees
of Hammond Publishers, Inc.5
C. Norman E. Andress, Employer's Representative
for Collective Bargaining
The General Counsel alleges in his complaint that "at all
times material herein , Norman E. Andress, production
manager, has been and is now , an agent of the Charging
Party, acting on its behalf , a supervisor within the meaning
of Section 2(11) of the Act, and a representative of the
Charging Party for purposes of collective bargaining or the
adjustment of grievances within the meaning of Section
8(bXIXB) of the Act."
It is noted that the "Charging Party" referred to in the
complaint is Hammond Publishers, Inc. There is no
dispute that Andress was and is a supervisor of Hammond
Publishers , Inc., within the meaning of Section 2(11) of the
Act. Respondent's answer does not so dispute, and
stipulations and statements of counsel reveal that such
status is not disputed . Further, the credited testimony of
Lewis and Andress and the foregoing reveal that Andress is
production manager and may be described as a top level
supervisor of Hammond Publishers, Inc., at all times
material herein . Accordingly, it is concluded and found
that Andress is a supervisor of Hammond Publishers, Inc.,
within the meaning of Section 2(11) of the Act.
Under Board law such a finding supports the further
finding that Andress is a representative of Hammond
Publishers, Inc., for the purposes of collective bargaining
or the adjustment of grievances . The facts in this case
involve a conflict between the Respondent and the Union
concerning the work and collective-bargaining conditions
of employees in the composing room of Hammond
Publishers , Inc. The factse reveal that Andress has been
and is a representative for purposes of collective bargain-
ing and adjustment of grievances of employees in the
composing room and other departments . Thus, Andress
has participated as such representative of Hammond for
collective bargaining with respect to bargaining units other
than the composing room employees . Andress has also
participated as a representative for the purposes of
J Balfe and Bozen!lu served only as trial committee members with
respect to the Union's proceedings relating to Andress . Kubarzak and Janek
served only as trial committee members with respect to the Union's
proceedings relating to Palmer.
The facts are based on the pleadings and admissions therein.
For the purposes of this case it may be said that such employees are
collective bargaining and adjustment of grievances in a
direct manner related to the composing room employees in
participation on a joint standing committee composed of
union and management representatives , in participation
concerning grievances about action of the foreman of the
composing room employees , and in handling grievances
concerning air conditioning and related problems.
The Respondent contends that Andress is not a
representative of Hammond Publishers , Inc., for the
purposes of collective bargaining and adjustment of
grievances with respect to the composing room employees.
This contention is rejected since Board law is clear that
Andress' status as a supervisor within the meaning of
Section 2(11) of the Act constitutes him to be a representa-
tive for collective bargaining and adjustment of grievances
within the meaning of Section 8(b)(1)(B) of the Act.7
Further, were it necessary, such finding and conclusion
would be required by his actual exercise of such responsi-
bilities as set forth above . Accordingly, I conclude and find
that Norman E. Andress is production manager of
Hammond Publishers , Inc., and was and is a supervisor of
Hammond within the meaning of Section 2(11) of the Act,
and was and is a representative of Hammond within the
meaning of Section 8(b)(IXB) of . the Act.
D. Norman E. Andress' Membership in
Respondent 's Unions
Norman E. Andress, as of August 23, 1973, had been a
member of the Respondent's Union for many years. The
collective-bargaining agreement between the Union and
Hammond Publishers, Inc., did not require that Andress be
a union member . Nor is there any evidence that the Union,
by pressure upon the Employer (Hammond Publishers,
Inc.) or Andress, attempted to require that Andress
maintain his membership in the Union.
The Union has various types of membership and bases
dues upon the type of status . Andress' membership status
was that of a person not working at the trade . By virtue of
such status, Andress did not have the right to vote
concerning collective-bargaining problems between the
Union and Hammond Publishers , Inc. Essentially, An-
dress' status allowed him to enjoy certain insurance or
mortuary benefits.
Andress continued to be a union member until he was
expelled on November 25, 1973 . His expulsion and fining
at that time are the crux of the issues in this case
concerning him.
The Union by question and evidence raised questions as
to whether Andress properly belonged in the status of "not
working in the trade." Whether Andress' status was proper
or not is not a relevant issue in this case . The facts clearly
reveal that the Union's fining and expulsion of Andress
were not based on an alleged failure to notify the Union of
change of status or on an alleged failure to pay proper
dues.
employees who worked in the composing room.
6 The facts are overwhelming and are essentially revealed by a composite
of the credited aspects of the testimony of Andress and Lewis.
r Operating Engineers Local 501 (Anheuser Bwch, Inc.), 199 NLRB 551
(1972).
8 The facts are undisputed.
CHICAGO TYPOGRAPHICAL UNION NO. 16 911
E. The Events of August 23, 19739
The Respondent and Hammond Publishers , Inc., were in
negotiations for a new contract during the months
preceding August 23, 1973. Around July 26, 1973,
Hammond presented a "final offer " concerning contract
terms and told the Respondent in effect that, if such terms
were not accepted , Hammond intended to put in effect
certain changed conditions and rules . On August 20, 1973,
the Respondent informed Hammond that the Company's
terms were rejected . Thereupon , Hammond informed the
composing room employees, in effect, that certain changes
in working conditions would be made and that such
employees would have to perform work of a type not
previously performed.
As a result of this, the composing room employees
ceased to work for Hammond on August 23, 1973.
Hammond describes the situation as a work stoppage or
strike . The Respondent describes this situation as a
lockout .10 In any event, the Respondent's members ceased
working and commenced picketing on August 23, 1973.
Such activity was continuing at the time of the trial of this
matter on January 8 and 9, and May 7, 1974.
F. Norman E. Andress' Activity August 23, 1973,
and Thereafter
The General Counsel alleged in his complaint that
"during the aforementioned work stoppage, Norman E.
Andress worked and/or supervised the performance of
work on the premises of the Charging Party on behalf of
the Charging Party."
The Respondent's answer indicates lack of knowledge of
the facts alleged excepting to the extent of awareness that
Norman E . Andress on August 24, 1973 , and thereafter
crossed picket lines established by the Union in response to
the "lockout" and remained on the premises during what
prior thereto had been normal working hours.
The facts are clear, and I credit Andress' testimony to
the effect that he worked and/or supervised the perform-
ance of work of employees in Hammond 's various
departments , including the composing room on August 23,
1973, and thereafter.
The facts to the foregoing extent are not in real dispute.
There is dispute raised by the Respondent's contentions as
to whether Andress engaged in "bargaining unit" work of a
nonsupervisory type to a substantial degree.
As far as Andress ' demeanor as a witness has a bearing, I
note, he appeared to be a frank , forthright, and candid
witness . Andress testified to the effect that during the first
several weeks he was on the premises virtually around the
clock, that during a 24-hour period he spent approximately
30 minutes of his time engaged in what may be described
as manual work of handling tapes, etc. Andress' testimony
was to the further effect that he gave much instruction,
answering questions and giving on-the-spot answers or
demonstrations of how to operate equipment . Andress'
testimony was to the further effect that new equipment
Y The facts are not in dispute except as to characterization thereof.
to Hammond's counsel stated with respect to the issue that the
composing room employees refused to perform the work and were asked to
leave . For the purposes of this case, specific details as to whether the
(some of a computer type) was used, certain procedures
eliminated, and that the employees worked longer periods
of time per day. Thus, certain local ads which were already
marked were not re-marked. Certain "wire" stories were
used on a straight basis. Certain editing or proofing of
materials was eliminated.
Prior to the events of August 23, 1973, Hammond had
approximately 110 employees working in its composing
room. For the first few days or weeks thereafter, Ham-
mond had some 10 employees working in the composing
room with some functions being performed in other areas
of its facilities. This number of employees ultimately
expanded to around 30 employees.
The Respondent contends in effect that, because of the
variance between the number of employees (110) working
for Hammond prior to August 23, 1973, and the 10 to 30
employees working thereafter, Andress' testimony to the
effect that his actual engaging in nonsupervisory work was
minimal is unbelievable.
I find it unnecessary to make a determination as to
whether Andress engaged in manual bargaining unit work,
engaged in such work on a substantial or minimal basis, or
only engaged in supervisory type work. As indicated later
herein, I find it clear that the Respondent's motivation in
fining and expelling Andress from the Union was simply
because it wanted to keep anyone (employee or supervisor)
from working for the Respondent.11
G. Restraint and Coercion Re: Norman E. Andress
The following excerpts from a stipulation of the parties
essentially reveal Respondent's acts toward Andress and
the Employer.
STIPULATION
It is hereby stipulated and agreed that:
At Respondent's regular Union meeting held on
August 26, 1973, the Respondent instructed Joe Casper,
Organizer, to prefer charges against Norman E.
Andress.
On September 11, 1973, Joe Casper, Organizer,
preferred charges against Norman E. Andress for
"ratting".
At Respondent's regular Union meeting held on
September 30, 1973, the charges preferred against
Norman E. Andress were deemed cognizable by
Respondent by a vote of its members.
On or about October 2, 1973, Fred Hunt, Jr.,
Respondent's President, appointed a Trial Committee
consisting of Henry Rosemont, Charles Derby, George
F. Balfo, Stanley Bozenski and Ed C. Billman, to hear
the charges preferred against Norman E. Andress.
On or about October 11, 1973, Respondent, through
the Trial Committee, recommended that Norman E.
Andress be adjudged guilty of "ratting", and that he be
expelled from membership in Respondent Union and
be fined the sum of one thousand dollars ($1000.).
employees refused to work , were asked to leave, were locked out, or struck
are not important.
11 Thus, it is not matenal to the findings herein to determine whether or
not Andress engaged in nonsupervisory work.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Respondent's Union meeting held on November
25, 1973, which was in part the adjourned session of
Respondent's regular October 1973 meeting, Respon-
dent Union, by a vote of its members, adopted the Trial
Committee's recommendation that Norman E. Andress
be found guilty as charged, and by a vote of its
members, adopted the Trial Committee's recommenda-
tion that Norman E. Andress be expelled from
membership in Respondent Union, and be fined the
sum of one thousand dollars ($1000.).
In addition to the foregoing, I find it proper to note the
following. The facts reveal that at various times after
August 23, 1973, members and officials of the Respondent
were told by employees that Andress was actually
performing work in the composing room. It is also noted
that the charges against Andress, the trial, and procedures
involved, were all in accord with the Union's constitution
and bylaws and regular procedures.
Further, it is noted that the word "ratting" is in said
Union's constitution and bylaws but is not defined.
Rosemont, chairman of the trial committee , credibly
testified to the effect that "ratting" as involved in the
charges against Andress concerned remaining at work in a
struck office, as is revealed by the following excerpts from
his testimony:
A. You are asking me to define ratting?
Q. Yes, sir.
A. Working for less than the scale in any kind of
office, Union or non-Union; remaining at work in a
struck office and working in an unfair, non-Union
office at the scale, below the scale or above the scale.
Those, all three have been considered ratting during
my experience with Union procedures.
q
Q. Remaining at work while a strike or lockout was
on; is that right?
A. That second one?
Q. Yes.
A. That is what we consider the ratting , yes; his
offense.
Q. Remaining at work?
A. An a struck office.
Q. Remaining at work behind the picket line?
A. We use struck office and locked out office
interchangeably.
Q. Did it make any difference? Is that all that is
meant by ratting?
Let us rephrase that.
Is that all that Mr. Andress was charged with under
the rubric of ratting?
A. It is all we found him guilty of.
Rosemont further credibly testified that the trial commit-
tee worked out their written report and agreed on every
word of it before they adjourned. Such report, dated
October 11, 1973, contained the following as revealed by
excerpt therefrom.
We find that Norman Andress has ratted at the
Hammond Times, where our members have been
picketing since August 23. On questioning of the
witnesses it was developed that the defendant pleaded
no special circumstances to excuse his remaining at
work in the picketed office. In short, we have been
unable to discern any extenuating factors whatsoever.
Further, I note that the facts reveal that Andress had an
opportunity to appear and participate in the Union's trial
procedure but did not do so. At the trial on October 11,
1973, the case against Andress was presented as is revealed
by the following credited excerpt from Rosemont's
testimony:
Q. Okay. Now, just tell us what occurred during
that part of the meeting during which Mr. Hunt and
Mr. Casper were present?
A. Mr. Casper read the charges, of which we
already had the copy, of course.
He formalized that by reading them. And as
Chairman, I and my colleagues also addressed various
questions to the President and to the organizer.
Q. As best as you can recall it, what were those
questions?
A. I asked what evidence there was against Mr.
Andress which would sustain the charges.
And separately, both of them informed the Commit-
tee that they had - the word "hearsay" was used by
myself and possibly by one or two of my colleagues on
the Committee - but it was only hearsay evidence that
Mr. Andress was expediting the mechanical production
of the paper which had knocked out our members at
the Hammond Times.
Being subsequently pressed for something more
substantial than this hearsay, we were informed by
both the officers that they could not afford to
jeopardize the positions of the ultimate informants,
those with whom the information as to Mr. Andress'
activities out there originated. And we did not press for
that.
11
A. Well, after we ended the taking of testimony, if
that is the proper term, we made a general discussion,
we had a general discussion in which members of the
Committee participated with the two officers as to the
rights and duties of members in these situations, in
strike and lockout situations.
And if you are asking me to elaborate on what was
said, then I will be glad to do so.
We were all - I will not say troubled, but we all
gave due weight to the fact that there was no ocular
evidence on the part of any member on the Committee
or either of the witnesses as to direct violation of Union
principles on the part of Mr. Andress.
But we did discuss, as a general philosophy, the fact
that the conclusion must be drawn against a member
who worked behind the picket line and in the utmost
secrecy as far as the other members of the Chappel
were concerned.
Other members of the Union employed by the
CHICAGO TYPOGRAPHICAL UNION NO. 16
Hammond Times were out there at that picket line and
he was secreted in the shop for a long period. I have
heard in this hearing that it was a month or so, but I
understood at the trial that it was more than a couple of
weeks anyway, that Mr. Andress was practically a
prisoner in the Hammond Times Composing Room.
And I believe someone said, I don't know whether a
member of the Committee or one of the officers, that
men had been convicted of sedition on less than that.
That if they quack like a duck and wobble like one and
look like one, then you are a duck.
And that Mr. Andress had chosen to alienate llirself
and the other members of the Hammond Times
Chappel and i must say very reluctantly we came in
with a finding, a report of guilty, very sadly and very
reluctantly.
H. Vernon M. Palmer
Employer's representative for collective bargaining
There is no dispute, and the facts and pleadings clearly
establish, that prior to August 23, 1973, Vernon M. Palmer
was a supervisor of the Employer (Hammond Publishers,
Inc.) within the meaning of Section 2(11) of the Act.
Further, there is no dispute and the facts clearly establish
that Palmer represented the Employer for purposes of
adjustment of grievances.
The Respondent disputes that Palntpr was a representa-
tive of the Employer at any time for the purpose of
collective bargaining, disputes that Palmer was a supervi-
sor or representative of the Employer from August 23 to
September 10, 1973, and disputes that Palmer after
September 10, 1973, represented the Employer for purpos-
es of collective bargaining or adjustment of grievances.
The pleadings and a composite of the credited testimony
of Lewis and Palmer clearly establish that Palmer, prior to
August 23, 1973, was a supervisor within the Meaning of
Section 2(11) of the Act, and that Palmer was a representa-
tive of the Employer for purposes of adjustment of
grievances . Accordingly, by virtue of such supervisory
status and by virtue of the facts relating to Palmer's being
an employer representative for purposes of adjustment of
grievances , it is clear, and I conclude and find,that Palmer,
prior to August 23, 1973, was a supervisor within the
meaning of Section 2(11) of the Act, and a representative
for collective bargaining and adjustment of grievances
within the meaning of Section 8(bXl)(B) of the Act.12 It is
so concluded and found.
On August 23, 1973, Palmer joined the work stoppage of
Hammond Publishers , Inc.'s composing room employees
anA did not return to work until September 10, 1973. There
is no evidence that Hammond Publishers , Inc., discharged
or demoted Palmer during such period of time. On the
contrary, the facts reveal that Palmer returned to work on
September 10, 1973, as a supervisor, was introduced to
working employees as their supervisor , and resumed his
functions as a supervisor during the period thereafter and
was so functioning as of the time of the hearing in this
matter on May 7, 1974. During such period of time,
913
Palmer, as a supervisor, adjusted minor grievances brought
to his attention by working employees.
Considering the foregoing, I conclude and find that
Palmer was a, supervisor of Hammond Publishers, Inc.,
within the meaning of Section 2(11) of the Act and a
representative for collective bargaining and adjustment of
grievances within the meaning of Section 8(b)(1)(B) of the
Act during the period of time August 23, 1973, to
September 10, 1973, and from September 10, 1973, and
thereafter, and was so at the time of the trial in this matter
on May 7, 1974. I find no merit to any contention that
Palmer was not a supervisor within the meaning of Section
2(11) of the Act and was not a representative for collective
bargaining and adjustment of 'grievances within the
meaning of Section 8(b)(1)(B) of the Act because he did
not work between August 23, 1973, and September 10,
1973. Absent evidence of discharge or demotion (not
present in this case , but with facts otherwise establishing
that Palmer had not been discharged or demoted),
Palmer's status remained that of a supervisor within the
meaning of Section 2(11) of the Act and a representative
for collective bargaining and adjustment of grievances
within the meaning of Section 8(bXl)(B) of the Act. Such
retention of status by Palmer is similar to striking
employees retaining the status of "employees" while on
stri ke.
1. Vernon M. Palmer
Membership in Union
Vernon M. Palmer, as of August 23, 1973, had been a
member of the Typographical Union for approximately 22
years. The collective-bargaining agreement between Chica-
go Typographical Union No. 16 and Hammond Publish-
ers, Inc. (for the term February 1, 1970, through January
31, 1973), required that the foreman of the composing
room be a journeyman member of the Union in good
standing. The Union's constitution and bylaws are silent as
to how a member can withdraw from the Union excepting
when the withdrawal is for reasons of not working at the
trade. Hunt, president of the Union, credibly testified to
the effect that withdrawal from the Union was accom-
plished by "death" or by securing a "withdrawal" card
because the member is not working at the trade.
The Union's bylaws provide in effect that a "withdraw-
al" card can not be issued if the member is performing
work over which the ITU has jurisdiction.
On September 10, 1973, the Union received the following
letter from Vernon M..Palmer:
Vernon Palmer 417 Fayette St. Hammond, Indiana
Sept. 9, 1973
Fred Hunt, Jr. Pres. Chicago Typographical Union
#16 529 So. Wabash Ave. Chicago, Illinois 60605
Dear Mr. Hunt:
I hereby officially notify you that effective today I
am resigning my membership in the International
12 Operating Engineers, Local 501 (Anheuser-Busch, Inc.), 199 NLRB 551
(1972).
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Typographical Union . I am enclosing a check for
$58.50 which should account for all dues owed and
payable up to and including the present date.
In the event you find that this is not the correct
amount for my dues please so advise me.
Yours truly,
Vernon Palmer I.T.U. Reg. No. 25122
cc: John Pilch, Pres.
International Typographical Union
P. O. Box 157 Colorado Springs , Colo. 80901
At the same time Palmer sent and the Union received a
"mailgram" to the same effect.
On September 18, 1973, the Union sent the following
letter to Palmer:
supply your check stub from The Times in order that
we can determine total earnings , correct amount of
dues and ITU assessment number . We will hold your
check until you reply.
Not very sincerely,
/s/ Dave Donovan
Dave Donovan Acting President
cc:; Fred Hunt Jr . Jerry J. Musil George R. Duncan
John J . Pilch Joe Casper Jr. William Vargo
The facts clearly reveal that the Union has construed
that Palmer's letter and mailgram of September 9, 1973,
did not constitute an effective means of withdrawal of
membership.13
CHICAGO TYPOGRAPHICAL UNION NO. 16
Oldest Trade Union in Chicago - Organized 1852
529 South Wabash Avenue, Chicago , Illinois 60605
Telephone (312) 939-5738
September 18, 1973
Mr. Vernon Palmer The Times - c /o Composing
Room 417 Fayette Street Hammond, Indiana 46325
Dear Mr . Palmer:
This is to acknowledge receipt of your Mailgram and
letter both dated September 9, 1973 to President Hunt.
The Union is also in receipt of your personal check
payable to Chicago Typographical Union No. 16 in the
amount of $58.50.
In your letter you advise as follows:
"I hereby officially notify you that effective today
I am resigning my membership in the Interna-
tional Typographical Union. I am enclosing a
check for $58.50 which should account for all
dues owed and payable up to and including the
present date.
In the event you find that this is not the correct
amount for my dues please so advise me."
The undersigned has been advised that you are
performing composing room work at The Times in
Hammond . Please be advised that the ITU has
sanctioned The Times lockout. Please be further
advised, your action of crossing the picket line is
contrary to Union principles.
As to the matter of your Union dues . The undersigned
does not know what the $58.50 represents . Will you
13 Some of the testimony and litigation seems to have indicated a union
position that the "withdrawal" letter and mailgram were not effective
because of a question of the accuracy of dues tendered . The Union's bylaws
relating to working at the trade , the September 18, 1973, letter , and Hunt's
J. Vernon M. Palmer
Events after August 23, 1973
The facts concerning the Union's work stoppage on
August 23 , 1973, have been set forth in section E above. As
previously indicated, Vernon M. Palmer, the foreman of
the composing room (for Hammond Publishers , Inc.),
joined in the work stoppage with other union members on
August 23 , 1973, and remained away from work until
September 10, 1973. By September 10, 1973 , Palmer, by
letter and mailgram, had notified the Union in effect of his
"withdrawal" of membership . Thereafter, Palmer resumed
work as the composing room foreman , doing his regular
duties. The facts relating to his work thereafter reveal at
most a minimal amount of work performed by Palmer
which might be described as nonsupervisory unit work.
K. Restraint and Coercion Re: Vernon E. Palmer
The following excerpts from a stipulation of the parties
reveal Respondent 's acts toward Palmer and the Employer.
STIPULATION
It is hereby stipulated and agreed that;
At Respondent's regular union meeting held on
September 30, 1973, Respondent instructed Joe Casper,
Organizer, to prefer charges against Vernon Palmer.
On or about October 1, 1973, Joe Casper, Organizer,
preferred charges against Vernon Palmer for "ratting."
At Respondent's Union meeting held on November
25, 1973, which was in part the adjourned session of
Respondent's regular October , 1973 meeting, the
charges preferred against Vernon Palmer were deemed
cognizable by Respondent by a vote of its members.
On or about November 26, 1973, Fred Hunt, Jr.,
President of Respondent Union, appointed a Trial
Committee , consisting of Henry Rosemont , George F.
Balfe, Stanley Bozenski , Charles Derby, and Ed C.
credited testimony persuade that the question of dues was not related to the
question of "withdrawal," that in fact the Union would not allow
"withdrawal" while Palmer worked at the trade.
CHICAGO TYPOGRAPHICAL UNION NO. 16
Billman, for the purpose of hearing the charges
preferred against Vernon Palmer.
On or about December 13, 1973, Respondent,
through its Trial Committee , recommended that Ver-
non Palmer be found guilty of "ratting", and that he be
expelled from membership in Respondent Union and
be fined the sum of one thousand dollars ($1000).
At Respondent 's regular Union meeting held on
December 30, 1973, Respondent Union, by a vote of its
members , adopted the Trial Committee's recommenda-
tion that Vernon Palmer be found guilty as charged,
and by a vote of its members , adopted the Trial
Committee 's recommendation that Vernon Palmer be
expelled from membership in Respondent Union and
be fined in the sum of one thousand dollars ($1000).
In addition to the foregoing, I find it proper to note that
Hunt 's credited testimony clearly reveals that the Union
was motivated to act against Palmer because it considered
that Palmer's work as a supervisor was "union" work.
I also note , as set forth in section G, that the term
"ratting" concerns remaining at work in a struck office.
Conclusions
The Respondent contends that its motivation , in expell-
ing and fining Andress and Palmer, was because each
engaged in bargaining unit work. I reject such contention
as I am persuaded by the evidence relating to the
institution of union proceedings against each , the charges
against each , and Hunt's testimony relating thereto that the
Respondent was simply motivated against each because he
worked during the time of a union work stoppage. I am
persuaded that the totality of the evidence reveals that it
made no difference to Respondent whether Andress or
Palmer was engaged in bargaining unit work or supervisory
work . The totality of the facts persuaded that the
Respondent did not want any union member (supervisor or
not) working for the Employer.14
Considering all of the foregoing, I conclude and find that
the Respondent was not motivated in its discipline of
Andress and Palmer in restraining or coercing the
Employer in its selection of collective-bargaining repre-
sentatives or representatives for the adjustment of griev-
ances . Nor am I persuaded that the Employer, Andress,
Palmer, union members , or employees could reasonably
construe Respondent 's acts of discipline to be so directed
(toward restraint or coercion of the Employer in the
selection of representatives for the purposes of collective
bargaining or the adjustment of grievances).
Rather, the facts in this case simply reveal that
Respondent 's acts of discipline were designed to keep those
it construed subject to its discipline from working during a
work stoppage . As to the problems relating to conflict of
interests for supervisors in such situation , the United States
Supreme Court, in Florida Power & Light Co.,15 clearly sets
14 To the extent that any witness' testimony might be construed as being
that the motivation against Andress or Palmer was pinpointed to the fact
that Andress or Palmer was engaged in nonsupervisory work as contrasted
to a general motivation against Andress and Palmer simply because they
were working , I discredit the same because I am persuaded that the logical
consistency of the totality of all the evidence reveals otherwise
15 Florida Power & Light Co. v. International Brotherhood of Electrical
915
forth that Congress addressed itself to such problem, not
through Section 8(b)(1)(B), but through a different legisla-
tive route.
Thus the Supreme Court set forth:
The concern expressed in this argument is a very real
one, but the problem is one that Congress addressed,
not through § 8(b)(l)(B), but through a completely
different legislative route. Specifically, Congress in
1947 amended the definition of "employee" in § 2(3),
29 U.S.C. § 152(3), to exclude those denominated
supervisors under § 2(11), 29 U.S.C. § 152(11), thereby
excluding them from the coverage of the Act.
s
Thus , while supervisors are permitted to become union
members , Congress sought to insure the employer of
the loyalty of his supervisors by reserving him the right
to refuse to hire union members as supervisors, see
Carpenters District Council of Milwaukee County v.
N.LR.B., 107 U.S. App. D.C. 55, 274 F.2d 564 (1959);
A. H. Bull Steamship Co. v. National Marine Engineers'
Beneficial Assn., 250 F.2d 332 (C.A. 2, 1957), the right
to discharge such supervisors because of their involve-
ment in union activities or union membership, see
Beasley v. Food Fair of North Carolina, Inc., 414 U.S.
907 (1974); See also Oil City Brass Works v. N.L.R.B.,
357 F.2d 466 (C.A. 5, 1966); N.L.R.B. v. Fullerton
Publishing Co., 283 F.2d 545 (C.A. 9, 1960); N.L.R.B. v.
Griggs Equipment Inc., 307 F.2d 275 (C.A. 5, 1962);
N.LR.B. v. Edward G. Budd Mfg. Co., 169 F.2d (C.A.
6), cert. denied , 335 U.S. 908 (1949),18 and the right to
refuse to engage in collective bargaining with them, see
L A. Young Spring & Wire Co. v. N.LR.B., 82 U.S.
App. D.C. 327, 163 F.2d 905, cert. denied, 333 U.S. 837
(1948).
is It has been held that this right is limited to the extent that an
employer cannot discharge supervisory personnel for participation in
the union where the discharge is found to interfere with , restrain, or
coerce employees in the exercise of their protected rights, see N L.R B
v. Talladega Cotton Factory, Inc., 213 F.2d 209 (C.A 5, 1954), or where
it is prompted by the supervisors' refusal to engage in unlawful activity,
see N L.RB. v. Lowe, 406 F.2d 1033 (C.A. 6, 1969).
Further, I note that the question as to whether or not
Palmer had effectively resigned from the Union before the
Respondent's discipline is not material to issues under
Section 8(b)(1)(B) of the Act.16
In sum, I conclude and find that the facts do not
establish that the Respondent has engaged in conduct
violative of Section 8(b)(1)(B) of the Act by its conduct
directed toward Andress and Palmer.17
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Workers, 417 U S. 790 (1974)
16 Since the instant case does not involve a question of alleged conduct
violative of Sec. 8(b)(lXA), it is not necessary to consider whether
Respondent's conduct may be said to be violative because of its effect upon
employees who were not supervisors.
17 See Florida Power & Light Co., supra.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW at all times material has been a supervisor within the
meaning of Section 2(11) of the Act and a representative of
the Employer for the purposes of collective bargaining and
for adjusting grievances within the meaning of Section
8(b)(IXB) of the Act.
4. The facts do not establish that the Respondent has
violated Section 8(b)(I)(B) of the Act.
[Recommended Order omitted from publication.]
1. Chicago Typographical Union No. 16 is, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
2. Hammond Publishers, Inc., is engaged in commerce
within the meaning of Sections 2(2) and 8(b)(1)(B) of the
Act.
3. Norman E. Andress and Vernon Palmer each is and