Cleveland Typographical Union, Local 53

National Labor Relations Board - Board Decisions

Sep 13, 1976

225 N.L.R.B. 1281 (N.L.R.B. 1976)

CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53 1281
Cleveland Typographical Union , Local 53, affiliated
with International Typographical Union , AFL-CIO
and Kenneth L. Ramella and Plain Dealer Pub-
lishing Co., Party in Interest . Case 8-CB-2650
September 13, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On March 12, 1976, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision.
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 only to
the extent consistent herewith.
The complaint alleges two 8(b)(2) and (1)(A) viola-
tions. The first alleged violation occurred January 10,
1975, when, the General Counsel contends, the
Union refused to refer Kenneth Ramella to fill a
temporarily vacant composing room job because of
his failure to pay his monthly dues. According to the
General Counsel, the Union's refusal to refer Ramel-
la violated the Act because the existing contract did
not include a union-security clause.
The second alleged violation occurred March 31,
1975, when the Union demanded Ramella's dis-
charge pursuant to a recently negotiated union-se-
curity clause. The contract containing this clause had
been signed February 13, 1975, and made retroactive
to January 1, 1975.' As indicated, the previous con-
tract between the Union and Plain Dealer had not
included a union-security clause. The General Coun-
sel contends that the Union demanded Ramella's
discharge because of his failure to pay dues that had
accrued both before and after February 13. The vio-
lation results, according to the General Counsel, be-
cause the Union's demand was aimed at forcing Ra-
mella to pay dues that had accrued before February
13.
After retiring from the Wall Street Journal's com-
posing room during the summer of 1974, Ramella
1 The prior contract had been due to expire December 31, 1974, but was
apparently extended until a successor contract was negotiated
started a job as a real estate salesman. Shortly there-
after, the Union reclassified him as a not-at-the-trade
member.2 About November 1974, Ramella decided
to try to return to the trade. His search for work at
the trade during November and December 1974,
however, was unsuccessful, and, as a result, the
Union continued to classify him as a not-at-the-trade
member. The Union's records show that Ramella
failed to pay dues for these 2 months at the not-at-
the-trade members' rate.'
January 9, 1975, was the first date that Ramella
worked at the Plain Dealer. That night, Ramella ap-
plied to the composing room for work as a linotype
operator.
With his journeyman status,' Ramella was eligible
to work as a substitute. The other category of com-
posing room employees was that of a regular situa-
tion holder. According to the contract, regular situa-
tion holders had to be scheduled to work five shifts a
week. If a regular situation holder missed a sched-
uled shift, his situation would be described as "dark."
Substitutes would fill dark situations or perform "ex-
tra work." 5 Extra work is all work other than that
performed by regular situation holders or the substi-
tutes covering for them. Substitutes performing extra
work would be designated as "office hires." His first
night, Ramella filled a dark situation. His name was
also put on the composing room's slug board which
listed substitutes according to seniority with the Plain
Dealer.
The next night, January 10, Ramella again report-
ed to the composing room. Burns, the supervisor of
the lobster shift,' testified that enough extra work
was available so that all the substitutes who had re-
ported before his shift started, including Ramella,
were going to work. According to Burns, Wiencek,
the night side chapel chairman, refused to notify Ra-
mella of this. Burns testified that according to Wien-
cek, Ramella was dues delinquent and unavailable as
a substitute. Burns himself was forced to go to Ra-
mella, who was waiting, to tell him to start working.
Ramella did work that night as an office hire. That
night also, Wiencek removed Ramella's name from
the composing room's list of substitutes.
2 The not-at-the-trade classification refers to a member who wants to
maintain his membership but does not regularly seek work -at the printing
trades
l The not-at-the-trade rate was a percentage of the maximum earnings for
dal side employees
An applicant to the composing room had to have attained journeyman
status Ramella had already qualified as a journeyman by reason of his
previous employment
5 To be eligible for a regular situation, a journeyman apparently had to
first work as a substitute The contract provided that regular situations that
became vacant would be filled by the substitute with the most priority for
the particular job classification involved The contract also provided that
layoffs would be made according to priority
a The lobster shift is the third shift at the Plain Dealer
225 NLRB No. 194
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's initial contention is that
because the chapel chairman or his assistant, and not
the Employer, chose which substitutes to refer to fill
dark situations, the Union effectively operated an ex-
clusive hiring hall at the Plain Dealer. No contention,
however, is made that the Union referred substitutes
to perform extra work. The General Counsel con-
tends further that from January 10, 1975, until
March 31, 1975, the Union refused to refer Ramella
to fill any dark situations because of his failure to
pay his monthly dues at the rate for not-at-the-trade
members.
The Administrative Law Judge decided that the
record did not support the contention that the Union
ran an exclusive hiring hall at the Plain Dealer. She
also specifically discredited Ramella's testimony that
during January, February, and March, the Employer
refused to select him to fill available dark situations.'
She further found that Ramella did not obtain more
work because of his lack of priority; i.e., seniority.
Although not explained, this finding apparently in-
volved two steps. Glenn, the Union's secretary-trea-
surer, testified that, as a not-at-the-trade member,
Ramella could not accrue priority. The record also
showed that job classification priority determined the
order by which substitutes filled dark situations or
worked as office hires. Thus, the Administrative Law
Judge's reasoning here seems to have been that Ra-
mella would have always been the last available sub-
stitute linotype operator to be hired for any shift dur-
ing these months because of his lack of seniority. The
Administrative Law Judge also found that to change
his not-at-the-trade status, according to the Union's
rules, Ramella only had to report to the Plain Dealer
and make himself available, but did not have to actu-
ally work, a majority of the working days of any
month. This, she noted, Ramella failed to do. Final-
ly, she found that Wiencek had removed Ramella's
name from the composing room's slug board, which
listed substitutes according to priority, because of his
not-at-the-trade status.
Contrary to the Administrative Law Judge, we be-
lieve that the Union controlled the hiring of substi-
tutes to fill dark situations. We further believe that
Wiencek's conduct described above violated the Act.
Lacking a regular schedule, a substitute seeking to
work a specific shift has to report to the composing
room before that shift begins and sign an attendance
sheet. The attendance sheet indicates which substi-
tutes are available for work. The general practice is
for a regular situation holder who has failed to ar-
range for a substitute to fill his situation to call and
7 The Employer's records show that Ramella worked approximately nine
shifts during this period
ask the chapel chairman to cover his situation for
him.8 The chapel chairman refers to the attendance
sheet to see if a substitute competent to work the
regular's job classification is available. Sometimes,
the chapel chairman has to telephone substitutes at
home to ask them to report to work to fill dark situa-
tions. When two or more competent substitutes are
available to fill a single dark situation, the practice is
for the chapel chairman to select the senior substi-
tute. The practice is also for the chapel chairman to
notify the available substitutes as to which will fill
dark situations.'
As for office hires, the record showed thatjust be-
fore each shift begins, the foreman informs the chap-
el chairman if there will be any extra work. The con-
tract specifically provides that extra work, when
available, will be distributed according to priority.
The chapel chairman also notifies the substitutes as
to which will work as office hires.
As the above indicates, the chapel chairman, and
not the foreman, selects and notifies the specific sub-
stitutes who will fill dark situations on each shift. For
this reason, we find that the Union controls the refer-
ral of substitutes who fill dark situations at the Plain
Dealer.10
As to the issue of whether the Union refused to
refer Ramella to fill dark situations between January
10 and March 31, however, we agree with the Ad-
ministrative Law Judge's finding that no refusal to
refer occurred. Thus, the General Counsel did not
introduce any evidence to show that on the night of
January 10, a dark situation had been available for
Ramella to fill and the Union had chosen to select a
less senior linotype operator." The only testimony
introduced to show that the Union refused to choose
Ramella to fill dark situations after January 10 was
Ramella's. As noted earlier, however, the Adminis-
trative Law Judge specifically discredited this testi-
mony.
Despite these findings, however, we believe that
the General Counsel has shown an 8(b)(2) and (1)(A)
violation. As indicated earlier, the practice was for
8 A regular situation holder , if unavailable for a scheduled shift, was re-
quired by the contract to arrange for a competent substitute to cover his
situation This responsibility was, however , frequently delegated to the
chapel chairman
e If there is no competent substitute available to fill the dark situation, the
chapel chairman would ask the shift foreman to make a "transfer" To do
this, the foreman would reassign another regular to fill the dark situation
involved This was possible because some regulars were competent at two or
more job classifications If a transfer could not be made , the absent regular
had to be excused by the foreman or else face possible disciplinary action
for failure to abide by the contractual provision that required him to cover
his situation with a competent journeyman
10 See New York Typographical Union Number Six, ITU, AFL-CIO (The
New York Times Company), 144 NLRB 1555, 1556 ( 1963) Member Fanning
finds it unnecessary to reach the issue of whether the Union controls the
referral of substitutes to fill dark situations
" Note that Ramella had only I day's seniority anyway
CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53 1283
the chapel chairman to notify the substitutes as to
which would work as office hires. Burns' testimony,
however, indicates that Wiencek refused to adhere to
this practice where Ramella was concerned. Further,
according to Burns, when told that Ramella would
work as an office hire dust before the lobster shift of
January 10 began, Wiencek answered that Ramella
"is not supposed to work" because of his dues delin-
quency.12 Candea, the superintendent of the compos-
ing room, testified that about this date, Wiencek also
told him that Ramella was not available as a substi-
tute for the same reason. We believe that Wiencek's
remarks to Burns and Candea essentially amount to
a request to the Employer to refrain from employing
Ramella as a substitute."
We further find that Wiencek's attempt to prevent
Ramella from working as an office hire that night
was at least partially motivated by the fact that Ra-
mella had not paid his monthly dues for the previous
2 months. As indicated, both Candea and Burns tes-
tified that Wiencek told them that Ramella should
not work because of his dues delinquency. We note,
however, that the Administrative Law Judge found
that Wiencek had removed Ramella's name from the
slug board because, according to the Union's rules, a
not-at-the-trade member could not accrue priority
and that this motive might be attributed to Wiencek's
other conduct that night, despite the uncontradicted
testimony of Burns and Candea. Had Wiencek's only
objective been to enforce the Union's rules regarding
the seniority of not-at-the-trade members, however,
we do not believe Wiencek would have sought to pre-
vent Ramella from working as an office hire. The
Union's rules provided only that members with se-
niority had to work before not-at-the-trade mem-
bers.14 Before the lobster shift of January 10 began,
however, Burns told Wiencek that all the available
substitutes would work, including Ramella. As a re-
sult, Wiencek knew that no substitute with seniority
would be bumped by Ramella and that therefore the
Union's seniority rules would not be violated that
evening. Nevertheless, Wiencek still refused to tell
Ramella to go to work as an office hire. Certainly,
Wiencek was seeking to do more than merely enforce
the Union's rules regarding the seniority of not-at-
the-trade members. For these reasons, we find that
12 Glenn told Wiencek that Ramella was dues delinquent and a not-at-
the-trade member before the lobster shift began
13
The Respondent did not object to this testimony as hearsay and did not
call Wiencek or any other witness to testify to what happened before the
start of the lobster shift of January 10 Further , Respondent 's answer admit-
ted that Wiencek was an agent within the meaning of Sec 2(13)
14 According to the "Dues Circular," issued January 1975, by the Interna-
tional Union, "All members with priority in the office must be offered
employment before 'NAT' members become available " "NAT" members
are not-at-the-trade members
the Union was seeking to prevent Ramella from
working because of his failure to pay his monthly
dues at the rate for not-at-the-trade members. As the
existing contract did not include a union-security
clause, we find that Wiencek's conduct violated Sec-
tion 8(b)(2) and (1)(A).15
The second allegation arises from the Union's de-
mand of March 31 that the Plain Dealer invoke the
recently negotiated union-security clause and dis-
charge Ramella. As indicated earlier , the contract
containing this clause was signed February 13, and
made retroactive to January 1. As also indicated ear-
lier, the General Counsel contends that the Union's
demand for Ramella's discharge was aimed at forc-
ing Ramella to pay dues that had accrued before
February 13. The Administrative Law Judge essen-
tially found that the Union's demand was lawful be-
cause Ramella had failed to retain his good standing
as a member after the 31-day grace period provided
for by the union-security clause had expired.16 We
disagree.
Glenn testified that because Ramella had not paid
his dues at the rate for not-at-the-trade members for
November and December 1974, and January and
February 1975, the Union sent him "A Notice of Au-
tomatic Suspension," dated February 27. This notice
stated:
The laws of the International Typographical
Union provided for automatic suspension of a
member who is in arrears for four months.
If a satisfactory dues payment is not received
by us on or before the 10th of next month, you
will be suspended automatically. No further no-
tice of suspension will be sent.
According to Glenn, Ramella at the same time was
also sent a statement listing the amount of dues
owed.
By letter dated March 6, Haven Combs, the
Union's president, wrote Ramella the following:
16 See The Radio Officers' Union of the Commercial Telegraphers Union,
AFL to H Bull Steamship Company] v N L R B, 347 U S 17, 42 (1954)
Even if the Union had argued that seniority rules regarding not-at-the-trade
members had a legitimate purpose , see, e g , New York Typographical Union
Number 6, 144 NLRB 1555, 1558-59, Marquette Cement Manufacturing
Company, 213 NLRB 182 (1974), the result here would not change because
of our finding that Wiencek's conduct was partially motivated by the fact
that Ramella had failed to pay his monthly dues
16 Art I, sec 1, of this contract provides
All present employees who are members of the Union on the effec-
tive date of this agreement shall remain members of the Union in good
standing as a condition of continued employment All present employ-
ees who are not members of the Union , and all employees who are
hired hereafter , shall on and after the 31st day following the beginning
of their employment or on and after the 31st day following the effective
or execution date of this agreement, whichever is the later , shall become
and remain members in good standing of the Union as a condition of
employment
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have been informed by Secretary-Treasurer
Norman B. Glenn that you are delinquent in
your payment of dues and assessments, and are
not now a member in good standing with this
Union.
Under the terms of the current agreement
with Newspaper Publishers Association, you are
instructed to pay your dues and assessments im-
mediately and become a member in good stand-
ing, or, Article I, Section 1 of the current agree-
ment will be invoked and your employment will
be terminated.
This letter again indicated that Ramella was losing
his good standing because of his failure to pay dues
owed for November and December 1974, and Janu-
ary and February 1975. This is because, as the "No-
tice of Automatic Suspension" states, the laws of the
International provided for automatic suspension af-
ter 4 months of nonpayment of dues. As this letter
was dated March 6, the Union was clearly suspend-
ing Ramella for his dues delinquency for those pre-
ceding 4 months.
The Union's demand for Ramella's discharge was
made March 31. The Union's letter, addressed to
Newell Frizzel of the Plain Dealer's labor relations
department, stated:
On March 6, Kenneth L. Ramella was noti-
fied by registered letter to become a member in
good standing of this Union or his employment
would be terminated according to our current
contract. As of this date, he has failed to do so.
Under the terms of the bargaining agreement
any further employment of Kenneth L. Ramella
by the Plain Dealer will be in violation of said
agreement.
Frizzel responded by asking the Union to clarify why
Ramella was no longer a member in good standing.
The Union answered that the reason was Ramella's
"failure to pay or tender his periodic dues." After
receiving this response, Frizzel instructed Candea not
to hire Ramella as a substitute.
With this reference to the letter of March 6, the
Union again tied Ramella's loss of good standing to
his failure to pay dues for the period before February
13. For this reason, we believe that the Union was
not demanding Ramella's discharge for his failure to
pay dues for only the period since February 13.17
Any dues obligation under the union-security
clause herein could only have started to accrue from
the date of the contract's execution, February 13,
and not the date to which the contract was made
17 By March 31, the 31-day grace period provided for by the union-seeuri-
ty clause had expired
retroactive , January 1.18 For this reason , we find that
the Union violated Section 8(b)(2) and (1)(A) by
seeking Ramella's discharge pursuant to the union-
security clause for his failure to pay dues for the peri-
od between his date of hire and the date the contract
containing the union -security clause was signed.19
We further find that the Union violated Section
8(b)(2) and (1)(A) by seeking to invoke the union-
security clause's discharge provision against Ramella
because of his failure to pay dues for the 2 months,
November and December 1974, preceding his hire at
the Plain Dealer . 20 We also find that Ramella was
relieved of any duty to tender the amount that would
have been due for the period starting from February
13. The Union' s continued insistence , as shown by
the record , that Ramella also pay the amount owing
for the months of November and December 1974,
January 1975, and the first 13 days of February indi-
cates that such an offer would have been futile.21
THE REMEDY
Having found that the Respondent has engaged in
conduct violative of Section 8(b)(2) and (1)(A) of the
Act, we shall order that it cease and desist therefrom,
and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that Respondent caused and at-
tempted to cause Plain Dealer Publishing Co. to dis-
charge Kenneth L. Ramella, we shall order that Re-
spondent notify Plain Dealer Publishing Co., in
writing, with copies to Kenneth L. Ramella, that it
has no objection to the employment of Kenneth L.
Ramella with all his former rights and privileges, and
that Respondent make Kenneth L. Ramella whole
for any loss of pay he may have suffered by reason of
the discrimination against him with backpay to be
computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at 6 percent as pro-
18 Local No 25, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Tech Weld Corporation), 220 NLRB 76
(1975), Namm's inc, 102 NLRB 466 (1953)
19 Id
20 Holmes Transportation, Inc, 203 NLRB 253 (1973), International Union
of Operating Engineers, Local No 139 and its Agent Leroy Fitzsimons (T J
Butters Construction), 198 NLRB 1195 (1972), Murphy's Motor Freight, Inc,
113 NLRB 524 (1955), enfd 231 F 2d 654 (C A 3, 1956)
21 The Eclipse Lumber Company, Inc, 95 NLRB 464, 467 (1951) Cf Great
Lakes District, Seafarers' International Union of North America, AFL-CIO
(Tomlinson Fleet Corporation), 149 NLRB 1114 (1964) While the record
Indicates that Ramella did not report to the composing room after March
30, we do not believe that this necessarily shows that he had in fact quit the
Plain Dealer 's employ as of that date in view of the surrounding circum-
stances We therefore find it unnecessary to decide the Union's contention
that we should not find this second violation because Ramella had quit the
Plain Dealer by the time the Union demanded his discharge
CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53
vided by Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
ORDER
Respondent, Cleveland Typographical Union, Lo-
cal 53, affiliated with International Typographical
Union, AFL-CIO, Cleveland, Ohio, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Plain Dealer
Publishing Co. or any other employer to discriminate
against Kenneth L. Ramella or any other employee
in violation of Section 8(a)(3) of the Act.
(b) In any other manner restraining or coercing
any employee in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Notify Plain Dealer Publishing Co., in writing,
that they have no objection to the employment of
Kenneth L. Ramella with all his former rights and
privileges and furnish Kenneth L. Ramella a copy of
such notifications.
(b) Make whole Kenneth L. Ramella for all loss of
pay with interest which he may have suffered as a
result of the discrimination against him in the man-
ner set forth in the section entitled "The Remedy."
(c) Post at its offices located at Cleveland, Ohio,
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Re-
gional Director for Region 8, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to its members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Deliver to the Regional Director for Region 8
signed copies of the said notice in sufficient number
to be posted by Plain Dealer Publishing Co., the Em-
ployer being willing.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
1285
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were permitted to
introduce evidence, the National Labor Relations
Board has found that we have violated the National
Labor Relations Act by attempting to cause and
causing the Plain Dealer Publishing Co. to discrimi-
nate against Kenneth L. Ramella.
WE WILL NOT cause or attempt to cause Plain
Dealer Publishing Company or any other em-
ployer to discriminate against Kenneth L. Ra-
mella or any other employee in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL notify Plain Dealer Publishing Com-
pany, in writing, that we have no objection to
the employment of Kenneth L. Ramella with all
his former rights and privileges, and we shall
furnish him with a copy of such notification.
WE WILL make whole Kenneth L. Ramella for
any loss of pay with interest he may have suf-
fered by reason of our discrimination against
him.
CLEVELAND TYPOGRAPHICAL UNION, LOCAL
53, AFFILIATED WITH INTERNATIONAL
TYPOGRAPHICAL UNION, AFL-CIO
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
a charge filed on March 28, 1975,' by Kenneth L. Ramella,
an individual, herein referred to by name or as the Charg-
ing Party, the General Counsel, by the Regional Director
for Region 8 (Cleveland, Ohio), issued a complaint on No-
vember 21. The complaint alleges in substance that Cleve-
land Typographical Union, Local 53, affiliated with Inter-
national Typographical Union, AFL-CIO, herein called
the Respondent or the Union, which for several years has
been the exclusive collective-bargaining representative of
all the composing room employees employed at the Plain
Dealer Publishing Co., herein called the Plain Dealer or the
Employer, has attempted to and did cause the Plain Dealer
to refuse to provide employment to Ramella, for reasons
other than his failure to tender periodic dues uniformly
required as a condition of retaining membership in the Re-
All dates hereinafter refer to 1975 unless otherwise indicated
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, in violation of Section 8(a)(3) of the National
Labor Relations Act, and has thereby engaged in unfair
labor practices violative of Section 8(b)(1)(A) and (2) of the
Act.
The Respondent in its answer, duly filed, admits certain
factual allegations of the complaint, but denies the allega-
tions that it engaged in conduct violative of the Act.
Pursuant to notice, a hearing was held before me at
Cleveland, Ohio, on January 13 and 14, 1976. All parties
appeared at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce relevant evidence. Subsequent to the hearing,
the General Counsel filed a memorandum and the Respon-
dent filed a brief on or about March 1, 1976, which have
been fully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Plain Dealer Publishing Co. is, and at all times material
herein has been, an Ohio corporation with its principal of-
fice and place of business located in Cleveland, Ohio,
where it is engaged in the publication of a daily newspaper
known as The Plain Dealer. In the course and conduct of
its publishing operations, the Plain Dealer annually derives
gross revenues in excess of $200,000, holds membership in
and/or subscribes to interstate news services, publishes na-
tionally syndicated features, and advertises nationally sold
products. I find, as the complaint alleges and the Respon-
dent in its answer admits, that the Plain Dealer is, and at
all times material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer ad-
mits, and I find that Cleveland Typographical Union, Lo-
cal 53, affiliated with International Typographical Union,
AFL-CIO, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The Principal Issues
The complaint alleges, and the Respondent in its answer
admits, that Haven Combs, president, Norman Glenn, sec-
retary-treasurer, and Chester Wiencek, night chairman at
the Plain Dealer, are agents of the Respondent within the
meaning of Section 2(13) of the Act; that the Respondent,
which for several years has been the exclusive collective-
bargaining representative of all composing room employ-
ees employed at the Plain Dealer under the terms of suc-
cessive collective-bargaining agreements, executed an
agreement with the Plain Dealer on February 13, 1975,
effective from January 1, 1975, through December 31,
1977, which is the first agreement between these parties to
contain a union-security clause requiring union member-
ship as a condition of continued employment; and that on
or about March 31 the Respondent, through its officer,
agent, and representative, Combs, requested the Plain
Dealer to refuse further to employ Ramella in accordance
with the provisions of that collective-bargaining agreement.
The complaint alleges further, and the Respondent's an-
swer denies, that since on or about October 1, 1974, and at
all times material herein, these contracting parties have
maintained in effect an agreement, arrangement, and/or
practice which provides that the Respondent shall be the
sole and exclusive source of referrals of applicants for em-
ployment to fill vacant regularly assigned composing room
jobs with available daily substitutes; on or about January
10 the Respondent, through its agent and representative,
Wiencek, prevented Ramella from placing his name on a
substitute board, maintained by the Respondent as part of
the exclusive referral system, because of his alleged failure
to pay dues for a period of time in which he was not re-
quired to do so under an agreement in effect between the
contracting parties, thereby preventing Ramella from
achieving the seniority (priority) status as a substitute req-
uisite for filling vacant regularly assigned composing room
jobs; the Respondent, on or about January 10, March 31,
and continuously thereafter, because of the actions of
Wiencek and Combs, in accordance with the operation of
the exclusive referral system, caused or attempted to cause
the Plain Dealer to refuse to provide employment to Ra-
mella for reasons other than his failure to tender periodic
dues uniformly required as a condition of retaining mem-
bership in the Respondent; as a result of these actions of
the Respondent, Ramella has been unable to obtain em-
ployment as a substitute in the Plain Dealer's composing
room since on or about March 31; on or about March 6,
Combs advised Ramella that he intended not only to de-
prive Ramella of membership in the Respondent but also
to prevent him from obtaining employment at his trade at
newspapers; and the Respondent has thereby restrained
and coerced employees in the exercise of their Section 7
rights, in violation of Section 8(b)(1)(A) of the Act, and has
attempted to and did cause the Plain Dealer to discrimi-
nate against Ramella in regard to terms and conditions of
his employment, in violation of Section 8(a)(3) of the Act,
and thereby engaged in unfair labor practices within the
meaning of Section 8(b)(2) of the Act.
The Respondent maintains that it did not operate an
exclusive hiring arrangement, it directed the chairman at
the Plain Dealer to remove Ramella's name from the list of
available substitutes because of his nonpayment of dues,
and it requested the Plain Dealer to refuse further employ-
ment to Ramella, pursuant to the union-security provisions
of the agreement in effect at the time, because he failed to
tender periodic dues uniformly required of members of the
Respondent.
The principal issues, therefore, are whether or not the
Respondent operated an exclusive hiring arrangement at
the Plain Dealer, and whether or not the Respondent at-
tempted to and did cause the Plain Dealer, prior to and
after execution of the union-security agreement, to discrim-
inate against Ramella in violation of Section 8(a)(3) of the
CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53 1287
Act, in violation of Section 8(b)(1)(A) and (2) of the Act.
The General Counsel called as witnesses, in addition to
Ramella, Joseph Burke , a proofreader , Richard Burns, a
shift supervisor , and John Candea , superintendent, all in
the composing room of the Plain Dealer, the last two testi-
fying under subpena. The Respondent called as witnesses
Norman Glenn, the Respondent's secretary-treasurer, and
Joseph Baird , an international union representative.
B. The Relevant Events
1. The Union' s dues classifications
classification must work or seek work at the trade at least a
majority of the working days in the month , and this must
be shown in the chairmen 's reports to Glenn . Ramella ad-
nutted that a not -at-the-trade member who wished to
change his classification had to apply for work at the trade,
but disputed the union claims that he had to do so during
a majority of the working days of the month on the ground
that the word "majority" does not appear in the applicable
union laws.
2. The Plain Dealer composing room
The Respondent represents employees at the Plain Deal-
er, the Wall Street Journal, the Cleveland Press, and about
35 commercial printing establishments in the Cleveland
area. Glenn, the Respondent 's secretary-treasurer, de-
termines the classification of members for dues purposes
according to union laws and bulletins issued by the Inter-
national Union . A member who protests a dues determina-
tion by Glenn is required to pay the dues prescribed by
Glenn, but may appeal to the International Union, and
may request that his dues be placed in escrow pending a
ruling on the appeal . Certain percentages of the dues are
earmarked for the Local and for the International Union.
Dues are paid to the chapel chairmen, who send Glenn
weekly reports showing which members worked and which
signed up but "walked" for lack of work , what the mem-
bers earned , and what dues they paid . On the basis of these
weekly reports, Glenn prepares a monthly report to the
International Union.
According to Glenn , a regular member pays a certain
percentage of his earnings which go to particular interna-
tional funds and to local dues, an associate member pays a
smaller percentage , a proprietor member pays day scale, a
not-at- the-trade member pays the same scale , pensioners
and sick members pay reduced amounts, and all pay a
dollar a month per capita tax. The printed legend on
Ramella's "1974 Working Card," placed in evidence by the
General Counsel , provides , inter alia, that "Members fail-
ing to pay their dues weekly may be prohibited from work-
ing by chairman until such dues are paid."
All members working in organized chapels must pay
dues to their chairmen weekly, but some categories, such as
a proprietor or a not-at-the-trade member, may pay by
mail or in person at the union office , and must do so by the
tenth of the month to avoid delinquency. A not-at-the-
trade member is one who works in another field , does not
seek work at the trade on a regular basis, but wants to
maintain his membership in order to preserve pension and
other benefits or for some other reason . A not-at-the-trade
member is required to pay dues on the same scale he would
if working full time at the trade . 2 Glenn and Baird testified
that a not -at-the-trade member who wished to change this
2 Ramella testified regarding such a member " If he did not apply for
work at the trade , the printing trade , he paid not -at-the-trade dues which
was on the highest day side scale of the local union at that particular time
A not-at-the -trade member paid approximately $ 50 per month as a figure
whether he worked at the trade or whether he didn't work at the trade If he
sought work at the trade and there was no work , he paid on his earnings at
the trade "
The Plain Dealer employed a number of regular employ-
ees in various categories in its composing room. In addition
it frequently hired substitutes or extra help in these catego-
ries. An individual seeking such work signed in, or "slug-
ged up," shortly before the beginning of a shift indicating a
desire to work on that shift . The individual , if he was
proved competent in any of the categories involved, ob-
tained seniority , or "priority ," from the date he first made
himself available for such work.
There is a provision in the current union -security agree-
ment , which appeared also in prior agreements , that "The
operation, authority and control of each composing room
shall be vested exclusively in the office through its repre-
sentative , the foreman . The foreman shall be the judge
of a man 's competency and shall determine the number of
men to be employed in any capacity in the work of the
composing room. . . . The Union agrees, upon the request
of the Employer, at all times to use all means within its
power to provide a sufficient number of employees neces-
sary to perform all work which is recognized by this agree-
ment to be within thejurisdiction of the Union." The fore-
man determined competence in one or more particular
categories on the basis of a period of testing and observa-
tion.
The agreement also provides that a situation holder must
provide a competent substitute to cover an absence, and, if
unable to do so, must notify the foreman. The practice as
to substitutes , however, was that the regular employee who
was to be absent could furnish his own competent substi-
tute or could request that the chapel chairman furnish
someone to fill the "dark situation," and the chapel chair-
man or one of his assistants would then designate on the
basis of priority a substitute who was available for work on
the shift involved and was competent in the particular cate-
gory, and record this assignment in a logbook . If no com-
petent substitute was available, the chairman requested the
foreman to fill the situation by transfer of individuals com-
petent in more than one operation.
If more individuals were slugged up for a particular shift
than were required as substitutes , the chairman so in-
formed the foreman , who frequently hires these individuals
for extra work in their respective categories as "office
hires." They are also listed as such in the logbook . Another
listing in that book is of individuals who register for work
but "walk" because no work is available in their category
on that shift Registration for work is effective only on the
particular shift so a substitute must register prior to each
shift on which he wants to work.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The union-security agreement
The current collective-bargaining agreement, executed
by the Respondent and the Plain Dealer on February 13,
1975, but made effective by its terms from January 1, 1975,
through December 31, 1977, provides that:
ARTICLE I
RECOGNITION AND JURISDICTION
Recognition
Section 1. The Employer recognizes the Union as
the exclusive bargaining representative of all employes
covered by this agreement The words "employe" and
"employes" when used in this agreement apply to
journeymen and apprentices.
All present employes who are members of the
Union on the effective date of this agreement shall
remain members of the Union in good standing as a
condition of continued employment. All present em-
ployes who are not members of the Union, and all
employes who are hired hereafter, shall on and after
the 31st day following the beginning of their employ-
ment or on and after the 31st day following the effec-
tive or execution date of this agreement, whichever is
the later, shall become and remain members in good
standing of the Union as a condition of employment.
Glenn was on the committee that negotiated this union-
security agreement with the Plain Dealer. Such a union-
security clause was previously included in the union agree-
ments with commercial printing establishments at a time
when Ramella was president of the Union and on the ne-
gotiating committee.
4 Ramella's employment in 1974
Ramella, a linotype operator, testified that he was a
member of the Union from May 1960 to April 1975, and
president of the Respondent Local from June 1969 to June
1974, that impeachment proceedings were instituted
against him in his last term as president, with certain trials
and appeals resulting therefrom, and that charges were also
filed against him by the Respondent in April 1975.
Ramella was employed in a regular situation at the Wall
Street Journal at the time he became president, and was
given a leave-of-absence from that job while serving as
president. When his tenure in that office ended, Ramella
could have returned to the Wall Street Journal but chose
not to do so. While Ramella was president, the Union en-
tered into an agreement with the Wall Street Journal pro-
viding that those involved in a reduction-in-force layoff,
which would have included Ramella, would receive $8,000
in severance pay. The layoff occurred in July 1974. Ramel-
la was 1 of about 10 who received the $8,000 in severance
pay. Glenn ruled that dues had to be paid on the $8,000.
This ruling was affirmed by the International Union on an
appeal taken by a group of those affected by the ruling.
Ramella, who had been classified as a regular member
paying dues on the basis of his earnings at the trade, came
to the union office in July 1974 to pay his dues Glenn
testified that Ramella said he was working in the real estate
business and was not earning his living at the printing
trade, and that, with Ramella's concurrence, he changed
Ramella's classification to a not-at-the-trade member as of
July 1, 1974. Ramella testified that he was unemployed
from June until late August 1974, when he became a sales-
man on a full-time commission basis for a real estate firm;
on or about November 1, 1974, when there was a very slow
period in the real estate business, he worked for the firm on
a part-time basis totaling about 18-24 hours a week; and at
this time he attempted to return to work at the printing
trade. He testified that he left the real estate firm in March
1975. He also stated, however, in describing his real estate
work, "that's the way I have it right now as a full-time
salesman."
There was a strike at the Plain Dealer in November 1974
that ended in late December, after about 7 weeks. Other
printing establishments in the area were closed during this
period. Ramella testified that there was no way to seek
work at the trade at this time, but that he did so by asking
Glenn at the union office in early November if there was
any work; Glenn told him he could apply at the Plain
Dealer, which was on strike, and he immediately went to
see Candea, the superintendent, and applied for work; and
he "actively attempted to work in November and Decem-
ber," but admittedly sought such work only at the Plain
Dealer. The record does not show what occurred at the
Plain Dealer at the time of these applications. Ramella also
testified, on cross-examination, that when he went to see
Glenn, about November 9, he told Glenn that "I was now
no longer not-at-the-trade as of October 31st, 1974, and
beginning in November and December and thereafter, I
was going to seek work gainfully at the trade. My dues had
been paid up until October 31st, 1974. My per capita tax
for November and December were paid on January 9th";
and, at another point, in November and December 1974
"there was a strike, and nobody worked . ... Everyone at
the Plain Dealer paid $2.00 per capita including me " 3
Ramella also testified on cross-examination that, when
he reported that he was seeking work at the trade, Glenn
asked where; he said starting in November he was going to
seek work at the Plain Dealer; and Glenn said the Plain
Dealer was on strike Ramella denied that Glenn asked if
he sought work at the trade elsewhere, asked which chair-
men he had seen, or said his name was not on the dues
records turned in by the various chairmen
Glenn testified that the weekly reports from the chair-
men for the period of July to December 31, 1974, did not
show that Ramella was reporting for work at the Plain
Dealer or elsewhere Glenn also testified that Ramella paid
dues on October 18, 1974, for July, August, and Septem-
ber; on November 7, 1974, he paid dues for October; Ra-
mella paid no dues for November; and there was no word
from Ramella about these dues until December 10, 1974.
Glenn further testified that Ramella came to the office on
that date, said he was no longer not-at-the-trade and want-
3 Ramella's working card shows that Ramella made payments to the
Union in varying amounts during 1974 , including $41 60 plus the per capita
tax of $1 in October, and the $1 per capita tax for November and December
1974, which Ramella paid to Zavoda, acting chairman at the Plain Dealer,
on January 9, 1975
CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53 1289
ed to pay dues, and handed Glenn the dues card and a
dollar for the per capita tax; he refused to accept the dol-
lar, said Ramella was still a not-at-the-trade member and
had to pay for the full month of November; Ramella said
he had been unable to find work at the trade; that when he
asked where Ramella tried to get work, Ramella named
several places; he said he would reconsider Ramella's clas-
sification only if Ramella could get a chairman at any of
these places to verify that Ramella was showing up for
work; Ramella asked if he was telling Ramella to go to
work at the Plain Dealer; and he answered that the Plain
Dealer was on strike, the chairman was in a back hall with
those members, and the Cleveland Press was locked out,
whereupon Ramella left with no further comment. Glenn
also testified that he called the chairmen at the places men-
tioned by Ramella, and that Clark at the Cleveland Press,
Wiencek at the Plain Dealer, and other chairmen he called
denied that Ramella had shown up for work at their re-
spective locations at any time This was borne out by the
weekly reports sent to Glenn by the chairmen.
5. Ramella's employment in 1975
Ramella testified that he went to the Plain Dealer on or
about January 9 or 10 about 11:15 p.m. to seek work on
the "lobster" shift, which runs from midnight to 7:30 a in ;
he gave his dues card and $2 as the per capita tax for
November and December 1974 to Zavoda, serving at the
time as chairman, who said the money would be forwarded
to the Union; his name was put on the slug board; and he
was designated by Zavoda to work that night to fill a dark
situation.
Ramella reported the next night at or about the same
time, but found his slug had been removed from the posi-
tion in which it was placed on the board the night before
He testified that, in response to his inquiries, Wiencek, the
chairman, stated that his slug was removed, on verbal or-
ders from Combs and Glenn, on the basis that as he was no
longer a member of the Union he was not going to work at
the Plain Dealer, his slip would not be permitted to stay up
on the board as he was in arrears in his dues, and the
payment he made the preceding night would be returned,
Ramella responded that he had paid his dues in accord
with international union law, which refers to arrears of 4
months to establish delinquency, and he was not in arrears
4 months at that time, Wiencek said he was in arrears on
his not-at-the-trade dues, he explained he paid "$540 and
some odd cents in union dues in October, 1974, which had
brought me on not-at-the-trade dues for those months,
June, July, and August, September for not-at-the-trade
dues when I did not seek employment at the trade." ° On
cross-examination, Ramella stated that this paid his not-at-
the-trade dues from June 15 to October 31, that, of those
who received $8,000 in severance pay from the Wall Street
Journal, he was one of the few who paid dues thereon of
"approximately $280 to $300, roughly in that area," and
that this amount was included in his payment of about
$540
On the night Ramella had this conversation with Wien-
cek, he was hired by the foreman to work on the lobster
shift that night as an office hire. He testified that he did not
know if any dark situation was available that night. Ramel-
la also testified that he was working as an office hire on or
about January 17 when Creary, the night chairman, came
to see him, Creary said management wanted all operators
to work overtime 2 hours, the Union had said Creary was
not to hire Ramella, but the foreman said Ramella should
be hired, and asked if Ramella wanted this overtime; Ra-
mella did and worked the overtime; and this was the last
time he got any work through the Union.
Ramella testified that, after the night he worked as an
office hire about January 10, he reported for work at the
Plain Dealer a number of times during January and Febru-
ary, he worked about 10 shifts, each time as an office hire;
the last date of such hire was February 21, 5 and on a
number of occasions he was not given work although he
knew that on one night, from checking the logbook the
next night, there was work in his category, and he would
say that "happened on numerous occasions." He admitted,
however, that he checked at times with Candea, the super-
intendent, who said he was not going to fill the situations
in question. He also testified that he signed a Plain Dealer
employee card each time he went in, but no such cards
were placed in evidence.
Superintendent Candea testified, as a witness.for the
General Counsel, that he hired Ramella at times as an of-
fice hire. In response to the question whether there came a
time when he no longer did so, Candea answered- "Mr.
Ramella was a linotype operator. We had seven linotype
machines . . I have 19 some linotype operators available.
Not all would work There was a vacancy, and I would hire
him for linotype work " He also testified that Frizzell, the
labor negotiator for the Plain Dealer, "wanted to know
why I didn't hire Ramella one night, I believe it was a
Friday night, and I told him I just didn't hire any operators
at all. I had no work for operators. I couldn't Justify a hire
if I didn't have the work for the operator. . . . Frizzell did
caution me to make sure that when there was work that
Ramella should be employed, and this I did. Every time
that there was work, and any time that I could hire him, I
would hire him. As a matter of fact, I even made transfers
to hire him."
Ramella testified that, after February 21, the last day he
worked at the Plain Dealer, until about March 30, he ap-
plied for work at the Plain Dealer "on numerous occa-
sions," on some days on "four separate occasions. I came
in on the lobster shift which is the midnight shift and on
the night side. I also came in on Thursdays, Fridays and
Saturdays which works for the preceding day, and I came
in periodically a total of approximately 40 days between
January, February and March for employment at The
Cleveland Plain Dealer." At a later point in his direct testi-
mony, Ramella was again asked about the number of times
he applied for work at the Plain Dealer since February 21,
and answered "Approximately 20 times." He also testified
that he never went back to the Plain Dealer for work after
5 A Plain Dealer work schedule, placed in evidence by the General Coun-
A money order placed in evidence by the General Counsel shows pay- sel, shows that Ramella worked January 9. 10, 17, 24. 30 and February I. 13,
ment to the Union by Ramella on October 16, 1974, of $530 10 14. and 21
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 31. Ramella testified that he also sought work at the
trade, not in person but by telephone, at several named
printing operations, but that he was rejected by a chairman
or an individual he could not name, in some instances on
the ground no work was available, or Ramella had been
reported by the Respondent to be in arrears on his dues, or
no reason was stated, or the individual "didn't go into de-
tail" as to. the reason.
6. Ramella's dues classification
Ramella admitted that he knew, when he paid the per
capita tax for November and December 1974 on January
9, 1975, that he had been classified as a not-at-the-trade
member, but claimed that this status changed when he told
Glenn in early November 1974 that he was seeking work at
the printing trade. Glenn maintained that Ramella could
not change his dues classification, only Glenn could do so,
and he would do so only on the basis of reports from chair-
men showing attempts to work that warranted the change.
Glenn and Baird both testified that a not-at-the-trade
member who wished to change his classification had to
apply for work a majority of the working days in the
month. Glenn also testified that when, for example, Mur-
ray, a regular member, was shown on the chairman's re-
ports to have been absent the majority of one month,
Glenn classified him as not-at-the-trade for that month,
and Murray paid his dues accordingly.
Ramella testified that he knew of a number of cases
where members who were in arrears on not-at-the-trade
dues were nevertheless working during January to March,
some at the Plain Dealer, and he named Savoca, Church-
field, and Kerst. Glenn testified, however, on the basis of
ledger sheets that were placed in evidence, that Robert Sa-
voca is a substitute on the lobster run at the Plain Dealer
who shows up at least 5 days a week although not always
hired; James Savoca has been a regular situation holder for
years, was never classified as not-at-the-trade, and was
never in arrears on dues, Churchfield has been a regular
situation holder for years, was never classified as not-at-
the-trade, and was never in arrears on his dues; and Kerst
is a regular situation holder, was never classified as not-at-
the-trade, and was not in arrears in his dues at any time
from January to April 1975.
7. Ramella's suspension by the Union
The Union sent Ramella a notice stating that the laws
"provide for automatic suspension of a member who is in
arrears for four months . . If a satisfactory dues payment
is not received by us on or before the 10th of next month
you will be suspended automatically," and that certain
benefits are forfeited upon suspension. This notice, which
was placed in evidence by the General Counsel, is undated.
Ramella testified that he was not sure but believed he re-
ceived it in October 1974.
Ramella testified that in January he was told at the
union office "in front of witnesses that they would not
accept my dues, they would not give me a breakdown on
my dues, and they would not tell me what I owed. They
told me that I did owe approximately $2,600, but they
would not give it to me in a breakdown. Unless I gave
them a check for that amount, they weren't accepting the
$2.00. They considered my dues not paid and delinquent
although International law says four months under their
interpretation, and it was approximately six weeks, and
they said I was not going to work at the trade."
Glenn testified that Ramella had made a telephone re-
quest in November 1974 for a breakdown of what he
would owe to maintain continuous membership in the
Union; he told Ramella to make the request in writing and
he would answer in writing ; Ramella thereafter came to the
office and wrote out his request; Glenn said he would send
Ramella a written answer, but did not do so because the
charges herein were filed before he replied; and Ramella
was told that, if he paid the amount Glenn claimed to be
due, he would be given a receipt showing a breakdown of
the amount. Glenn also testified that, when he was in-
formed that Ramella had worked as a substitute on Janu-
ary 9 and had paid only $2 as the per capita tax for No-
vember and December, he notified the chairman at the
Plain Dealer that regular members are hired first at a union
shop; a not-at-the-trade member cannot establish a priori-
ty; Ramella's payment of $2 for per capita tax was not
acceptable, and his name should be taken off the substitute
list, because of the refusal to pay dues in accord with his
classification; and the chairman should report if Ramella
showed up on a regular basis so Glenn could reclassify him
as a regular member and Ramella could then come in as
any other priority substitute did. Glenn testified that the
reports he received from the chairmen from January 1 to
March 30, 1975, did not indicate Ramella was showing up
for work at the Cleveland Press or at the commercial shops,
but did indicate when he appeared at the Plain Dealer, and
showed this was at most 2 days a week.
The Union sent the Plain Dealer a notice, signed by
Combs and Glenn and dated January 28, stating that, in
compliance with certain union laws, charges were being
preferred against Ramella, a delinquent member; he had
been told at a union meeting on January 19 he had to pay
up his dues or charges would be preferred against him
whenever he violated those laws; on January 24 Ramellla
was told he could not "slip up" until he paid his dues but
went to the foreman and was hired, in violation of Union
law providing that "Only members . . in good standing
are eligible as substitutes in any composing room under the
jurisdiction of this Union .. ."; and Ramella had been
informed by Glenn, in a notice placed in evidence by the
General Counsel, that he owed "$53.00 for November (not
at trade), and $42.60 for December 1974, (not at trade),
plus any days he has worked in January 1975." Ramella
was hired by the composing room foreman several times
after this notice.
Glenn testified that Ramella could have answered the
union charges in writing or in person but did not, that a
union meeting voted that the charges were cognizable, but
that an investigating committee then voted them "not wor-
thy of trial," the membership concurred, and the charges
were dropped.
The union-security agreement was executed with the
Plain Dealer on February 13. The Union on February 21
sent a notice to each contract signatory company, indicat-
CLEVELAND TYPOGRAPHICAL UNION, LOCAL 53 1291
ing copies to be sent to all chairmen, which was placed in
evidence by the General Counsel, and which set forth the
union-security provision and directed that it be put into
effect promptly.
The Union mailed a statement to Ramella dated Febru-
ary 27, listing dues and fines owed by Ramella for Novem-
ber and December 1974 and for January and February
1975, totaling almost $500, marked due by March 10, 1975,
and a postcard notice of automatic suspension after 4
months. Ramella filed the charge herein on March 28, and
stated in his testimony that he did not seek work at the
printing trade after March 31, and that he had no commu-
nication from the Union about the charges or other matters
after April.
Glenn testified that Ramella was suspended as a mem-
ber for failure to pay dues on March 10, at which time he
was 4 months in arrears as his dues payment on November
7 covered only October, he paid no dues for November,
and he had tendered no dues for December, January, Feb-
ruary, or March; and he sent Ramella the notice of Febru-
ary 27 that Ramella owed 4 months in dues and certain
fines and the postcard notice of automatic suspension after
4 months in accord with the Union's regular monthly pro-
cedure taken in such cases after Glenn makes his monthly
report to the International Union.
8. Application of the union-security clause
As noted above, Ramella discontinued seeking work at
the trade at the end of March. The General Counsel placed
in evidence certain letters exchanged after that between the
Union and the Plain Dealer regarding Ramella. They in-
clude a letter from the Union dated March 31 which as-
serts that Ramella was not a member in good standing and
that any further employment of Ramella would be viola-
tive of the current agreement. On April 4, the Plain Dealer
in reply stated that "The only reason for which the Plain
Dealer can deny employment under our collective bargain-
ing agreement is for failure of an employee to pay or tender
his periodic dues. Please clarify your letter of March 31,
1975 as to the reason Mr. Ramella is not a member in good
standing ." On April 7, the Union replied that "Kenneth L.
Ramella is a member not in good standing because of his
failure to pay or tender his periodic dues."
Concluding Findings
The testimony of the witnesses in this proceeding was in
agreement as to many relevant matters. To the extent that
there is conflicting testimony, I credit Glenn as I found
him a straightforward believable witness whose testimony
was in large part corroborated by documentary evidence,
and not Ramella, who was an unconvincing witness, and
whose testimony contains inherent inconsistencies and self-
contradictions.
I find, on the basis of the credited and probative eo-
dence and on the record as a whole, that the Union direct-
ed the chapel chairman at the Plain Dealer, when there was
no union-security agreement in effect, to remove Ramella's
name from the Union's list of eligible substitutes The cur-
rent as well as prior agreements between the Plain Dealer
and the Union provide, however, that hiring determina-
tions are made by the foreman, the foreman determines the
competence of substitutes, a chapel chairman designated
Ramella for overtime work in January when directed by
the foreman to do so although the Union had told him not
to do so, and the foreman hired Ramella on a number of
occasions during January and February, including dates
after the Union requested the Plain Dealer in writing not to
do so. Ramella might have obtained more such work had
he made himself available more frequently. I do not credit
his vague and self-contradictory statements as to the num-
ber of occasions on which he made himself available for
work at the Plain Dealer, particularly in light of the weekly
reports of the chairman showing otherwise, nor his testimo-
ny that dark situations were available on some of these
occasions but were not offered to him. I also find uncon-
vincing his testimony about making numerous telephone
requests at other locations for work. It was the practice,
moreover, for an applicant for substitute work to present
himself in person prior to the shift on which he sought
work. This appears to be a reasonable requirement, and
this and other union procedures were well known to Ra-
mella.6 I therefore find that Ramella did not during this
period seek work at the Plain Dealer or at other estab-
lishments , as he testified , "on numerous occasions ."Ramel-
la had admittedly been classified by Glenn for dues pur-
poses as a not-at-the-trade member. He also admitted that,
to change this status, he had to make himself available for
work at the trade. On the basis of the weekly reports of the
chairmen and the evidence in its entirety, I am convinced,
and find, that Ramella failed to do so a majority of the
working days, as the Union claimed to be necessary, or
even a reasonable number of times, as Ramella urged was
sufficient for this purpose.
I find, therefore, on the evidence in its entirety, that Ra-
mella failed to obtain more work at the Plain Dealer during
this period principally because he did not show up for work
with sufficient frequency to be hired by the foreman or to
change his not-at-the-trade classification and achieve pri-
ority status, that the agreement in effect gave the foreman
authority to hire, and that Ramella was in fact hired by the
foreman on a number of occasions when he did make him-
self available. I also find, based on the contract terms and
the actual hiring practice by management personnel in the
composing room at the Plain Dealer, that the Union was
not operating an exclusive hiring arrangement as contend-
ed by the General Counsel.
The General Counsel also contends that the Union's de-
mand on the Plain Dealer to discontinue its employment of
Ramella, pursuant to the union-security agreement, was
unlawful as it was based on a requirement that Ramella
pay dues for a period when there was no union-security
agreement Ramella did not, however, during the period in
question, tender any payments other than the $1-a-month
per capita tax for November and December 1974, and no
6 See Produce, Refrigerated & Processed Foods & Industrial Workers Local
No 630, international Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America (Ralph 's Grocery Company), 209 NLRB 117 (1974),
Local Union 99, International Brotherhood of Electrical Workers , AFL-CIO
(Crawford Electric Construction Co), 214 NLRB 723 (1974)
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues after the union-security agreement was executed and
became effective in 1975. Ramella was familiar with the
union laws that provided he had to pay dues in an amount
determined by Glenn, and that he could request that the
money be held in escrow and appeal Glenn's determina-
tion to the International Union. Furthermore, Ramella at
the end of March discontinued making any attempts to
obtain work at the Plain Dealer. The Union's letter to the
Plain Dealer asserting that Ramella was not eligible for
employment because of his failure to pay or tender pen-
odic dues was sent on April 7, more than 31 days after
Ramella ceased paying any dues to the Union, and after
Ramella had stopped applying for work at the Plain Deal-
er.
A union that is party to a valid union-security agreement
with an employer may prescribe its own rules with respect
to the retention of membership therein, may also require
an employee who is a member to make timely dues tenders
in order to maintain his membership status, and, in the
event of failure to make such tenders, may demand his
discharge by the employer. Further, a union may require a
member to meet his financial obligations for the retention
of membership after the statutory 30-day period even if
there are union rules or practices providing a longer period
before suspension from membership for nonpayment of
dues.
I find, on the entire record, that the evidence presented
by the General Counsel in this proceeding does not estab-
lish that the Union's rules for the retention of membership
were vague, unreasonable, or not known to Ramella,7 that
the Union was demanding excessive or discriminatory pay-
ments by Ramella, that the Union was seeking to require,
under the union-security provisions, anything more than
payment of the periodic dues uniformly required of all
members in the same dues classification as Ramella, that
Ramella had any reason to believe he was meeting these
7 See Coast Valleys Typographical Union Local 650 (The Daily Breeze Divi-
sion of Copley Press, Inc), 221 NLRB 1048 (1975)
uniform requirements by tendering only the per capita tax,
or that the Union sought the termination of Ramella's em-
ployment under conditions not permitted by the union-
security agreement.
In conclusion, therefore, I find, on the basis of the evi-
dence in its entirety, and in all the circumstances of this
case, that the General Counsel has failed to establish, by a
preponderance of probative and credible evidence, that the
Respondent Union caused or attempted to cause the Plain
Dealer to refuse to provide employment to Ramella for
reasons other than his failure to tender periodic dues uni-
formly required as a condition of retaining membership, in
violation of Section 8(a)(3) of the Act, and that the Re-
spondent Union has violated Section 8(b)(1)(A) and (2) of
the Act.' I shall, therefore, recommend that the complaint
be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Plain Dealer Publishing Co. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2 Cleveland Typographical Union, Local 53, affiliated
with International Typographical Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that the Respondent Union
has, as alleged in the complaint, restrained and coerced
employees, or caused or attempted to cause an employer to
discriminate against employees in violation of Section
8(a)(3) of the Act, within the meaning of Section 8(b)(1)(A)
and (2) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
8 See Local No 96, Sheet Metal Workers International Association, AFL-
CIO (Roland M Cotton, Inc), 222 NLRB 756 (1976)