Denver Sterotypers and Electrotypers Union, Local No. 13

National Labor Relations Board - Board Decisions

Aug 26, 1977

231 N.L.R.B. 678 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denver Stereotypers and Electrotypers Union, Local
No. 13 (Denver Post, Inc.) and Paul Simonette.
Case 27-CB-971
August 26, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND WALTHER
On November 30, 1976, Administrative Law Judge
Earldean V.S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting
brief, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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, and to adopt
her recommended Order, as modified herein.
The facts, as more fully set forth in the Administra-
tive Law Judge's Decision, are as follows. In 1971,
Denver Stereotypers and Electrotypers Union, Local
No. 13 (herein called Respondent) had a multiem-
ployer collective-bargaining agreement covering ster-
eotypers of The Denver Post, Inc. (herein called the
Post), and the Denver Publishing Company (herein
called the News), which publishes "The Rocky
Mountain News." On February 26, 1971, Respon-
dent, concerned that certain technological advances
in the stereotyping trade were eliminating jobs in that
trade, negotiated a memorandum of agreement with
the Post and News in which the Employers agreed
that, in the event a stereotyper should lose his job
due to technological advances, the parties would
negotiate the method of attrition and the Employers
would have the right to assign such employee to
other work. Subsequently, during the 1973 contract
negotiations, the parties entered into another memo-
randum of agreement which reaffirmed the earlier
memorandum, specifically listed the regular situation
holders employed by the Post and News as of
February 26, 1971, and provided that only those
employees so listed were covered by the memoran-
dum of agreement. The list of the News' regular
situation holders included Paul Simonette, the
Charging Party herein.
In addition to regular full-time stereotypers, the
News and Post also employed substitute stereotypers
when needed. Respondent dispatched the substitutes
from a list consisting of stereotypers who did not
hold regular full-time jobs. Preference in employ-
ment of substitutes was based on a substitute's town
priority, i.e., the date on which the substitute first
worked as a stereotyper in Respondent's geographi-
cal jurisdiction. By letter dated December 30, 1974,
the News notified Respondent that it would install a
new printing process and that it wanted to negotiate
the method of attrition as required by the memoran-
dum of agreement. Thereafter, Respondent and the
News negotiated an agreement whereby the News
agreed to pay certain lump sums to all stereotypers
who were not specifically named in the 1973
memorandum of agreement and to certain other
employees.
On March 28, 1975, the News discontinued its
stereotyping department. Simonette, as one of the
employees listed on the 1973 attrition agreement, was
reassigned to another full-time job in the News' street
circulation department. The employees in that
department were represented by the Denver Newspa-
per Guild, applied for membership in the Guild. He,
however, also maintained his membership in Re-
spondent. Simonette worked in the street circulation
department until the end of April 1975, at which time
he went on sick leave due to an aggravation of a prior
back injury.
Because of his continuing inability to work in the
circulation department, the News, by letter dated
July 31, 1975, terminated Simonette. He contacted
the Guild, but was told that there was no recourse
because he had not become a permanent employee.
Simonette then told Respondent's president, Cavolt,
of his termination, expressed his desire to be
considered as a substitute stereotyper on sick leave,
and asked that Respondent intercede on his behalf.
Cavolt said he would inform Respondent's hiring
agent about Simonette's request to be considered as a
substitute on sick leave, and would check with
Respondent's vice president and chairman of its
executive board, Henry, to see whether anything
could be done for him.
On August 1, Simonette and Henry discussed the
situation. Simonette explained that he could not do
the work in the circulation department because of his
injury. He further explained that he could not
immediately return to work because he did not then
have a doctor's release. Shortly after this conversa-
tion, Henry and Respondent's secretary-treasurer
met with officials of the News, including the News'
personnel director, Martelon, to discuss Simonette's
I The term "situation holder" refers to a regular full-time stereotyper.
231 NLRB No. 96
678
DENVER STEREOTYPERS
situation. Respondent's officials asked Martelon if
there were any other possibilities for Simonette's
employment at the News. Martelon replied that there
were no openings which would be suitable for
Simonette.
Sometime around August 15, Simonette received
his doctor's approval to return to work and informed
Cavolt that he should now be considered as a
substitute stereotyper available for work. Cavolt told
Simonette to call Respondent's hiring agent. Cavolt,
however, also mentioned that there might be some
problem about Simonette's position on the priority
list which would have to be considered by Respon-
dent's executive board.
Cavolt then called an executive board meeting for
August 16 to discuss Simonette's placement on the
substitute list. At the meeting, the executive board
voted to place Simonette at the bottom of that list
rather than in the number two position which
corresponded to his town priority. According to the
testimony of Cavolt, the executive board based its
decision on the dying state of the stereotyping trade;
Simonette had been guaranteed a job under the
attrition agreement, which he had accepted, but
subsequently lost; he was not available for any other
positions: it was not fair to deprive other substitutes
of work; and the executive board felt that the
International and local constitutions did not speak
directly to Simonette's situation.
Following the meeting, Henry called Simonette
and informed him that the executive board had
decided to treat him as a new stereotyper and to
place him on the bottom of the substitute list.
According to Simonette's credited testimony, when
asked the reason for their decision, Henry replied
that it was because of his membership in the Guild.
The following week Simonette requested the Interna-
tional president to intercede, but the latter said he
had no power to do so. Simonette then requested
Henry to give him in writing the basis of the
executive board's decision. Henry agreed, but never
did so.
Subsequently, Simonette, pursuant to Respon-
dent's bylaws, obtained a sufficient number of
signatures on a petition to have a special membership
meeting called. The meeting was scheduled and
announced through a posting on the bulletin board
at the Post. Simonette, however, was not personally
notified about the meeting and did not attend. The
meeting convened, but because Simonette was not
present the meeting adjourned without a discussion
of his situation. Thereafter, Simonette received a
telephone call from Henry who requested that he
withdraw his petition for a special meeting. When
Simonette refused, Henry said that he had contacted
one of the persons who had signed Simonette's
petition and had asked that person to withdraw his
signature. Respondent did not subsequently schedule
another special meeting.
By letter dated September 4, 1975, the executive
board sought advice from the International's presi-
dent with respect to the Simonette matter. The letter,
inter alia, mentioned that Simonette had made
application to and had paid dues to another union.
By letter dated September 9, the International's
president responded that he "was not in a position to
make a ruling."
Thereafter, Respondent held a regularly scheduled
membership meeting on September 17. At this
meeting, Simonette secured approval for suspension
of the agenda and presented his position concerning
his placement on the substitute list. The members of
the executive board then revealed the basis for their
decision, including, inter alia, his having worked in
another shop and having joined another union. The
membership voted to sustain the executive board's
decision to place Simonette on the substitute list.
1. The Administrative Law Judge, in concluding
that Respondent violated Section 8(b)(1)(A) of the
Act, found, inter alia, that the executive board's
decision to place Simonette at the bottom of the
substitute list was tainted by considerations of dual
unionism and, therefore, was based on unfair,
arbitrary, irrelevant, or invidious distinctions. Re-
spondent excepts to the Administrative Law Judge's
finding that its placement of Simonette was based in
part on his dual unionism on the grounds that such a
theory was not alleged in the amended complaint
and the matter was not fully litigated at the hearing
and that, consequently, it has been deprived of due
process. We find merit in this exception.
The charge alleged that Respondent violated
Simonette's Section 7 rights because of his member-
ship in the Guild. The amended complaint, however,
in contrast to the charge, specifically alleged that
Respondent violated the Act, as follows:
Since on or about August 16, 1975, and
continuing to date, Respondent has restrained
and coerced, and is restraining and coercing, Paul
Simonette in the exercise of rights guaranteed in
Section 7 of the Act by refusing to fairly represent
him as a member in good standing of Respondent
since 1962, and by denying him his proper
priority on the substitute-stereotyper list at the
Denver Post because the Respondent breached its
fiduciary duty by failing to apply the relevant
provision of the Constitution and By-Laws of the
Respondent which are incorporated by reference
in the collective bargaining agreement in effect
between Respondent and the Employer and
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relegated Simonette to the bottom of the substi-
tute stereotyper list.
Thus, there was neither a general nor a specific
allegation in the amended complaint that Respon-
dent placed Simonette at the bottom of the substitute
list because of his membership in both Respondent
and the Guild.
Furthermore, in her opening statement at the
hearing, counsel for the General Counsel explicitly
stated that the alleged violation lay in Respondent's
failure to apply the relevant provision of its constitu-
tion and bylaws in depriving Simonette of his proper
priority on the substitute list. Thereafter, Respon-
dent's counsel raised the issue of the divergence
between the theories in the charge and the amended
complaint and stated that it was his understanding
that Respondent was alleged to have violated the Act
solely by failing to apply to Simonette the provisions
of its constitution and bylaws. At that time, counsel
for the General Counsel did not disabuse Respon-
dent's counsel of his understanding. Indeed, despite
the introduction of certain evidence with respect to
Respondent's consideration of Simonette's dual
unionism in placing him on the substitute list, the
matter was not fully litigated and at no time during
the hearing did counsel for the General Counsel seek
to amend the complaint to include an allegation of a
violation based on such evidence. Rather, the first
time counsel for the General Counsel urged such a
theory of a violation was in her posthearing brief to
the Administrative Law Judge. In these circumstanc-
es, we conclude that the Administrative Law Judge's
finding of a violation based on such a theory does
not satisfy the requirements of due process and,
therefore, was improper.2
2. We nevertheless conclude, as urged by the
General Counsel, that Respondent violated Section
8(b)(1)(A) of the Act by failing to apply the relevant
provision of its constitution and bylaws when it
relegated Simonette to the bottom of the substitute
list. In this regard, article II, section 10, of the
collective-bargaining agreement between Respon-
dent and the Post and the News provides in general
terms:
The Union will endeavor to furnish a sufficient
number of competent workmen to perform
efficiently all work within the jurisdiction of the
Union and the Union will endeavor to supply
straight-time journeymen whenever the publisher
has shifts to be filled.
2 See. e.g.. Siltec Corporation. 217 NLRB 282 (1975); Stouffer Restaurant
and Inn Corporation, 210 NLRB 336 (1974); Atlantic Coast Fisheries, 183
NLRB 921 (1970).
Although various clauses of the contract refer
specifically to substitute stereotypers, there is no
provision expressly setting forth the manner of
selecting substitutes. Article II, section 15, of the
contract, however, provides that the general laws of
the International, in effect February i, 1973, "shall
govern relations between the parties to this agree-
ment on those subjects concerning which no provi-
sions are made in this contract." There is no dispute
that the general laws of the International permit the
local union to establish rules regarding the retention
of priorities of journeyman situation holders and the
application of priorities to substitute stereotypers.
Pursuant thereto, Respondent's local constitution
and bylaws contain the following provisions with
respect to priority on the substitute list:
Article XV, Section 4
Sub-Priority. A substitute's priority shall begin
on the first day worked in the jurisdiction of
Local No. 13. The sub with the oldest priority
shall have first claim to the first five days
available, the sub with the second oldest priority
shall have claim to the second five days available,
etc., through the remaining subs in the jurisdic-
tion.
Article XV, Section 5
A journeyman situation holder losing and/or
leaving his situation shall be placed on the sub
priority list corresponding with the date of his
first working in jurisdiction on current traveler or
initiation.
The Administrative Law Judge specifically found
that when Simonette sought placement on the
substitute list he was not a journeyman situation
holder who had lost or left his situation, but rather
had lost a job in the street circulation department.
She therefore concluded that article XV, section 5,
did not clearly apply to Simonette. We agree with
this conclusion. The Administrative Law Judge,
however, made no specific finding as to whether
article XV, section 4, was applicable to Simonette.
We find that it does apply.
In this regard, section 4 does not by its express
terms refer to section 5, nor does it otherwise limit
eligibility on the substitute list to journeyman
situation holders "losing and/or leaving" their
situations. It is therefore apparent that section 4 is
independent of section 5. Furthermore, that Respon-
dent, in fact, considered Simonette to be eligible for
placement on the substitute list under the provisions
680
DENVER STEREOTYPERS
of its constitution and bylaws is beyond dispute.
Thus, at the hearing Respondent conceded that at
the time Simonette requested placement on that list
he qualified as a substitute. Also, Respondent's
action in actually placing Simonette on that list,
albeit stripped of his priority, clearly reveals that it
considered him to have met the requirements for
substitute status. Finally, section 4 provides that "[a]
substitute's priority shall begin on the first day
worked in the jurisdiction of Local No. 13."
(Emphasis supplied). This language unambiguously
and absolutely provides that a substitute is entitled to
placement on the substitute list in accordance with
his town priority.
In these circumstances, we find that Respondent's
placement of Simonette at the bottom of the
substitute list rather than in accordance with his
town priority was contrary to the express language of
article XV, section 4, of its local constitution and
bylaws and in derogation of his clear contractual
right under the collective-bargaining agreement.
Furthermore, we find, as did the Administrative Law
Judge, that Respondent's failure to notify Simonette
of the special membership meeting, its attempt to
pressure him into withdrawing his request to sched-
ule another meeting, and its failure subsequently to
schedule such a meeting were indicative of Respon-
dent's bad faith in its decision to deprive Simonette
of his proper placement on the substitute list.
Accordingly, we conclude that Respondent has
breached its duty of fair representation with respect
to Simonette and has thereby violated Section
8(b)(l)(A) of the Act.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, Denver Stereotypers and Electrotypers Union,
Local No. 13, Denver, Colorado, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order, as modified below:
1. Substitute the following for paragraph l(a):
"(a) Failing to fairly represent all employees in the
collective-bargaining unit by failing to place Paul
Simonette on the substitute stereotypers board in
accordance with his proper town priority date."
2. Substitute the following for paragraph 2(b):
"(b) Make whole Paul Simonette for any loss of
wages and welfare, pension, or other benefits
incurred by him as of a result of its failure to fairly
represent him by failing to place him on the
substitute stereotypers board in accordance with his
proper town priority date in the manner set forth in
the section of this Decision entitled 'The Remedy,' as
modified." 4
3. Substitute the attached notice for that of the
Administrative Law Judge.
3 General Truck Drivers, Warehousemen, Helpers and Automotive Employ-
ees, Local 315, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Rhodes & Jamieson, Lid), 217 NLRB 616
(1975), enfd. 545 F.2d 1173 (C.A. 9, 1976).
4 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that restrains or
coerces employees with respect to these rights.
WE WILL NOT fail to fairly represent all the
employees in the collective-bargaining unit by
failing to place Paul Simonette on the substitute
stereotypers board in accordance with his proper
town priority date.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL place Paul Simonette on the substi-
tute stereotypers board in accordance with his
proper town priority.
WE WILL make whole Paul Simonette for any
loss of wages and welfare, pension, or other
benefits incurred by him as a result of our failure
to fairly represent him by failing to place him on
the substitute stereotypers board in accordance
with his proper town priority date, with interest.
DENVER STEREOTYPERS
AND ELECTROTYPERS
UNION, LOCAL No. 13
681
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was heard before me in Denver, Colorado, on
October 5 and 6, 1976. The charge was filed by Paul
Simonette, an individual, and served on Respondent on
September 25, 1975. The amended complaint, which issued
on July 27, 1976, alleges that Respondent violated Section
8(b)(l)(A) of the National Labor Relations Act, as
amended. Posttrial briefs were filed by the General
Counsel and Respondent on November i, 1976.
The basic issue herein is whether Respondent breached
its duty of fair representation by refusing to place
Simonette on the substitute-stereotyper list in accordance
with his town priority date-the date he first worked as a
stereotyper within Respondent's geographical jurisdiction.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Denver Post, Inc., a Colorado corporation with its
principal office and place of business in Denver, Colorado,
is engaged at its Denver plant in the publishing of
newspapers. In the course and conduct of its business
operations, the Denver Post, Inc., annually receives gross
revenues in excess of $200,000 and annually purchases and
receives goods and materials valued in excess of $50,000,
directly from suppliers located outside the State of
Colorado, advertises nationally sold products, and sub-
scribes to interstate news services.
The complaint alleges, Respondent admits, and I find
that, at all times material herein, the Denver Post, Inc., has
been an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Respondent 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. Background
In the past, Respondent has had collective-bargaining
agreements covering stereotyper employees with various
newspaper publishers in the Denver area. By 1971,
Respondent was party to only one collective-bargaining
agreement-a multiemployer one covering stereotyper
employees of the Denver Post, Inc., herein referred to as
t Although the record is not clear, it appears that the other publishers
with whom Respondent had collective-bargaining agreements are no longer
in business.
2 The memorandum is undated but is an addendum to the collective-
bargaining agreement entered into on February 26, 1971.
the Post, and the Denver Publishing Company, herein
referred to as the News, which publishes the Rocky
Mountain News.'
In 1971, concerned with the dying state of the stereotyp-
ing trade caused by certain technological advances,
Respondent negotiated with the News and the Post the
following memorandum of agreement. 2
This will confirm the understanding reached in
negotiations of the labor contract dated Feb. 26, 1971,
pertaining to Article II, Section 12, that the Publishers
agree to the principle of attrition in the event of a
change to any method of direct printing which would
cause a loss of situations in the Stereotyper Department
to any one holding a situation on the date of signing
said contract referred to hereinabove. In such event, the
parties shall negotiate the method of attrition with the
understanding the employer shall have the right to
assign an employe to other work, provided that the pay
and other benefits shall be comparable to those
specified in the aforementioned labor contract.
The Publishers' obligation to any current situation
holder shall cease to exist upon the 65th birthday of any
employe.
During the 1973 contract negotiations Respondent, the
Post, and the News entered into another memorandum of
agreement3 which reaffirmed its February 26, 1971,
agreement to the principle of attrition in the event a change
in the method of printing caused loss of jobs in the
stereotyper department. The agreement also specifically
named the stereotypers employed as regular situation
holders by the News and the Post as of February 26, 1971,
and provides that only those persons named were covered
by the memorandum of agreement. The employees of the
News so named were:
Ashley, M. S.
Busha, Clyde
Cook, E. J.
Collins, H. C.
Helfrick, G. F.
Hite, J. J.
Hunter, C. S.
Miller, H. A.
Miller, W. G.
Morris, L. E.
Norton, David J.
Simonette, Paul
Smith, H. E.
Stack, T. M.
Stinehour, T. E. Jr.
In addition to regular full-time employees, known as
situation holders, the News and the Post employed
substitute stereotypers as needed. These substitutes were
dispatched by Respondent from a substitute list which
consists of stereotypers who held no regular full-time job or
situation. Preference in employment as a substitute was
given in accordance with a person's town priority date-
the date one first worked as a stereotyper within Respon-
dent's geographical jurisdiction. When the substitute list
was exhausted, regular situation holders could be dis-
patched to either of the two publishers on a rotation basis
for overtime or 6th-day employment. The 1973 agreement
3 The memorandum is undated but is an addendum to the collective-
bargaining agreement entered into on June 12, 1973, and effective from May
1, 1973, to April 30, 1976.
682
DENVER STEREOTYPERS
provided inter alia that eight specifically named substitutes
(those with the oldest town priority dates) shall be entitled
to all economic and other benefits in the contract which
accrue to regular situation holders. These eight were
allocated three to the News and five to the Post. These
eight specifically named substitutes worked virtually full
time.
B. Facts
By letter dated December 30, 1974, the News notified
Respondent that it would be installing a direct printing
plastic plate process and would negotiate the method of
attrition as required by the addendum to the collective-
bargaining agreement. Subsequently Respondent and the
News negotiated an agreement whereby the News agreed
to pay certain lump sums to all stereotyper employees who
were not specifically named in the June 12, 1973,
memorandum of agreement and to certain employees who
had lost their rights under the 1973 agreement by virtue of
having reached the age of 65.
On March 28, 19754 the News discontinued its stereotyp-
ing department. With several exceptions 5 the employees
entitled to severance pay under the 1975 attrition agree-
ment, including Respondent's president, Paul Cavolt, and
vice president and chairman of executive board, Dale
Henry, were placed on the substitute-stereotyper list.6
Those within the top five as to town priority dates,
including Henry,7 began work on a virtually regular basis
for the Post. The employees listed on the 1973 attrition
agreement, including Simonette, were reassigned to other
full-time jobs at the News.
Simonette was assigned to the street circulation depart-
ment in a unit represented by the Denver Newspaper
Guild, Local 79. Shortly thereafter Simonette signed an
application for membership in the Guild. Simonette
worked in the street circulation department for 21 shifts,
then on April 28 or 29 went on sick leave due to a back
injury which he received prior to his assignment to street
circulation but which was apparently aggravated by his job
duties in the circulation department. Prior to commencing
sick leave he attempted unsuccessfully to secure a transfer
out of the street circulation department. Also, while he was
on sick leave he asked Andrew Martelon, personnel
director at the News, if he could be transferred out of street
circulation. Martelon refused, stating that if he transferred
Simonette he would have to transfer others. Then Martelon
made some mention that Simonette had been doing
rototilling while on sick leave.8 Whereupon Simonette
suggested that he return to work in the street circulation
department. Martelon refused, saying that Simonette could
not return because of his injury.
During this same period, in mid- to late June, Cavolt
telephoned Martelon to inquire regarding Simonette's
condition. According to Martelon, at first he refused to
I All dates hereinafter are 1975 unless otherwise indicated.
; These included the three employees who had reached 65 years of age
and one person who continued in the employ of the News under an
arrangement aside from the attrition agreement.
6 This increased the size of the list by approximately 150 percent.
Cavolt was sixth on the list.
Simonette testified that while he was on sick leave he was self-employed
discuss the matter, stating that Respondent no longer had
jurisdiction, that while the News was willing to honor and
discuss any facet of the 1975 attrition agreement he wanted
it clearly understood that Respondent had no jurisdiction
over those persons retained in the employ of the News.
However, when Martelon was informed that Respondent
was paying Simonette sick benefits, 9 he conceded that
Respondent did have some interest in the matter and
because of that agreed to discuss Simonette's condition.
Martelon said that he would not have any information
until he heard from Simonette's doctors. Thereafter, until
Simonette's termination, whenever Martelon encountered
Henry or Cavolt at the Post, he would tell them the latest
information regarding Simonette's condition.
By letter dated July 31, the News terminated Simonette's
employment. Simonette immediately contacted the Guild
and was informed that he had no recourse since he had not
attained permanent status. Simonette then called Cavolt on
August 1, informed him of his termination, and stated that
he wished to be considered as a substitute on sick leave.
Cavolt said he would notify the union hiring agent.?0
Simonette also requested that Respondent intercede in the
matter of his termination. Cavolt said he would consult
with Henry as to whether something could be done.
On August 1, Henry talked to Simonette. According to
Henry he asked Simonette why he was terminated.
Simonette said he could not do the work. Henry asked if he
had a letter from his doctor concerning his fitness for work.
Simonette said he had a letter to return to work. Henry
asked if he could have the letter or if Simonette would get
the letter to the News so he could return to work.
Simonette replied, "No, I am holding that for an ace in the
hole." Henry then asked, "Would you take a job at the
News if we could get you one." Simonette said no.
Simonette admits he had a conversation with Henry but
denies Henry's version. According to him Henry said he
would like to see the letter. Simonette thought he was
referring to the termination letter and replied, "I have it
here." He does not recall making any statement that the
letter was his ace in the hole. He denies saying he would
not accept a job at the News. According to him, Henry
asked if he would return to street circulation if he was
offered the job. He replied, "No way." Henry then asked if
he would take a janitor's job. Simonette said he would if he
received comparable wages under Respondent's contract.
He further said he would consider any other job that would
not kill him. I credit Simonette's version of this conversa-
tion. On August 1, he did not have a release from the
doctor to return to work.
Shortly after August 1, upon Henry's request, he and
Robert Miller, Respondent's secretary-treasurer, met with
Martelon and William Fletcher of the News. They briefly
discussed Simonette's physical condition. Then Henry and
Miller inquired as to other possibilities for employment of
Simonette by the News. They suggested a number of
doing rototilling. He claims that this was less aggravating to his back than
the bending and lifting required in the street circulation department.
9 Apparently Respondent pays sick benefits as long as the employer does
so.
i' Respondent controls the substitute list and substitutes are dispatched
in accordance therewith. The union hiring agent has this responsibility.
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possibilities of jobs that Simonette might fill, particularly in
the mechan;cal department. Martelon said they anticipated
no opening in that department in the immediate future,
that the News was not unwilling to consider Simonette for
any opening, but, subsequent to his transfer to street
circulation, there had been no openings that had appeal for
Simonette or to which the News was amenable to
transferring him.
Sometime around August 15, Simonette received his
doctor's approval to return to work. He telephoned Cavolt,
told him he had been released to return to work and that he
should be considered a substitute available for work.
Cavolt told him to telephone Don Lee, Respondent's hiring
agent. Simonette asked if there was anything he should be
aware of. Cavolt said there might be some discrepancy
regarding his priority or position on the substitute list that
would have to be reviewed by the executive board.
Simonette asked if the board had met. Cavolt said nothing
had been done. Simonette asked to be kept informed."1
Simonette then telephoned Lee and told Lee to consider
him a substitute available for work. According to Cavolt
there had been no previous discussion regarding Simonette
but during the conversation it occurred to him that
Simonette's circumstance 12 raised a problem which proba-
bly should be considered by the executive board.
Immediately thereafter, Cavolt initiated an executive
board meeting which was held on August 16. The only item
on the agenda was Simonette's placement on the substitute
list. The meeting resulted in a decision that Simonette
should be placed at the bottom of the substitute list rather
than in the number two position to which his town priority
would entitle him.' 3 According to Cavolt and Henry, this
decision was reached following a consideration of three
things. One, stereotyping is a dying trade; Simonette was
guaranteed a job under the attrition agreement which he
had taken and lost and which was not available to any
other unemployed substitute, that it was not fair under the
circumstances to deprive another substitute of work. Two,
they consulted the International and Local constitution
and bylaws and found nothing on point. Three, upon
consulting the International rules and interpretations, they
found two which, though not precisely on point, might
have some application to the Simonette situation:
(S:55-R:22) Member holding regular position outside
of the trades, no priority - (1961)
The Executive Board rules in a case submitted by
Local No. 161, Long Beach, California, that a member
who is regularly employed as a teacher cannot hold
priority at the trade, and a foreman cannot employ him
for extra work in preference to members who work
regularly at the trade.
" This is a composite of the testimony of Cavolt and Simonette which I
find most accurately reflects what occurred.
12 He described this circumstance as having been separated from
Respondent's contract and from the Stereotypers for a number of months,
and having been guaranteed ajob under the attntion agreement.
'' The vote was three to none, with Henry and another member
abstaining. Henry did concur with the decision. Henry and Cavolt were
substitutes who would be affected by any retention of Simonette's town
priority. The other three were regular situation holders.
(S:55-R:23) Member of two printing trades unions -
(1961)
In two instances, the International Board ruled that
a man could remain a member of our union and accept
employment at another of the printing trades crafts, but
could not hold priority, or solicit employment as a
member of the I.S. & E.U., while also employed at the
other craft. He may accept casual employment at I.S. &
E.U. trades at the discretion of the local union.
According to Simonette, following the executive board
meeting, Henry telephoned and told him the executive
board had met and decided to treat Simonette as a new
man in town and put him at the bottom of the substitute
priority board. Simonette asked why. Henry replied, "Well,
because of your membership in the Guild, because you
joined the Guild."' 4 Simonette mentioned that he had
never been informed that there were any charges or
complaints and asked if he could meet with the board,
explain his side, and possibly get them to reverse the
decision, permit him to work and to seek a decision from
the International as to the disposition of his priority. Henry
said one of the members was out of town so they could not
have another meeting that weekend. Simonette asked
about the following week and it was agreed that one of
them would call the other. Simonette asked if the executive
board had any idea of the implications of its action if
presented to a state or Federal agency. Henry said they had
thoroughly investigated or researched the matter and knew
exactly where they stood.
The following week, Simonette requested the Interna-
tional president to intercede. He said he was powerless.
Simonette then requested that Henry give him in writing
the basis of the executive board decision. Henry agreed but
never did so.
Thereafter, in accordance with Respondent's bylaws,
Simonette secured the signatures of 10 members on a
petition for a special membership meeting. The meeting
was scheduled and announced through a posting on the
bulletin board at the Post. However, Simonette was not
notified. Since he was not present, the meeting was
adjourned.
Thereafter, according to Simonette, Henry telephoned
and requested that Simonette withdraw his petition for a
special meeting. Simonette refused. Henry said he had
contacted one of the persons who signed the petition and
requested that he withdraw his signature. Simonette said he
did not know that a signature could be withdrawn once the
petition had been duly submitted to the presidents He
then reminded Henry that he was supposed to mail to
Simonette the reasons for the executive board's decision.
Henry said he could not give Simonette anything in writing
because the membership had to approve it.
i4 Henry does not recall making this statement. However, in view of the
September 4 letter to the International which indicates that the executive
board had seriously considered this dual unionism issue, I credit Simonette.
's Henry denies stating he requested the withdrawal of a signature. I do
not credit Henry's denial that he said he had requested one of the persons
signing Simonette's petition for a meeting to withdraw his signature. I found
Simonette to be an honest, forthright witness and, as set forth above,
Henry's testimony is incredible in view ofother evidence.
684
DENVER STEREOTYPERS
On September 4, the executive board sent a letter to the
International president, the body of which reads:
An emergency situation has arisen here in Denver,
that the Exec. board feels needs your immediate
attention. Our next union meeting is Sept. 17th and if at
all possible we would appreciate an answer by then.
As you know the stereotype dept. at the Rocky
Mountain News closed down Apr. Ist and left our men
without jobs. Under a letter of attriction [sic] attached
to our contract, twelve of these men were placed on
jobs in other depts. at the Rocky Mountain News, and
were placed on probation in the Denver Newspaper
Guild. Since that time these men were accepted into the
Guild, 3 of them took honorary withdrawls [sic] and
one took a honorary lifetime membership.
One of these members Bro. Paul Simonette (115-18-
7634) was released from the News because he was
unable to take care of his situation due to a back injury
he received earlier. Now Bro. Simonette wants to be
placed on the Denver Stereotype sub list according to
his town priority, which he would be the number two
sub, the Exec. board here voted by majority vote to
place him on the bottom of the sub line. We felt that
since he had another job and was in another Union he
had relinquished his town priority.
Then on second thoughts it came to mind that he
might have relinquished his membership in the local
and International Union, since he made application to
and paid dues to another Union. In doing so he
violated Art. VI Sec. 11 of the International by-laws. Is
he automatically suspended or do we have to bring
charges and a trial?
This is another first for this local and we would
appreciate all the help your office could give us.
On September 17, at a regularly scheduled membership
meeting, Henry explained the circumstance of the abortive
special meeting and secured approval for suspension of the
regular agenda so that the Simonette situation could be
discussed. Simonette explained his position and Henry and
another member of the executive board explained the basis
of the executive board's decision. According to Simonette's
credited testimony, Henry mentioned as a reason working
in another shop and joining another union. He does not
recall whether any mention was made of the two interpre-
tations that Cavolt and Henry testified were considered by
the Board. Henry also mentioned that the Board had
requested an interpretation from the International. The
membership voted to sustain the action of the executive
board in placing Simonette at the bottom of the substitute
list.
Subsequently, in accordance with this position on the
list, Simonette has been offered employment. He has
refused all such offers.16
is Simonette said that for personal reasons and by reason of other
employment he has not been available for work on these occasions. The
offers w.ere in July, August. and September 1976.
17 Actually it is the International constitution and bylaws which are
C. Conclusions
The complaint alleges that Respondent has violated
Section 8(bXIXA) of the Act by denying Simonette his
proper priority on the substitute-stereotyper list in that
Respondent breached its fiduciary duty by failing to place
him on said list in accordance with the relevant provisions
of its constitution and bylaws which are incorporated by
reference in the collective-bargaining agreement.17 Re-
spondent, on the other hand, contends that there is no
contractual provision applicable to Simonette's circum-
stance and that even if Respondent erred in its interpreta-
tion of the contract its decision was reasonable and in good
faith and thus does not contravene its duty of fair
representation.
It is well settled that a union which enjoys the status of
exclusive collective-bargaining representative has an obli-
gation to fairly represent employees. Vaca v. Sipes, 386
U.S. 171 (1967). This duty of fair representation requires
that a union serve the interest of all bargaining unit
employees fairly and in good faith, and without hostile
discrimination against any of them on the basis of unfair,
arbitrary, irrelevant, or invidious distinctions. Vaca v.
Sipes, supra; Local Union No. 12, United Rubber, Cork,
Linoleum & Plastic Workers America, AFL-CIO [Goodyear
Tire & Rubber Co. of East Gadsden, Ala.] v. N.L.R.B., 368
F.2d 12 (C.A. 5, 1966), cert. denied 389 U.S. 837 (1967);
Miranda Fuel Company Inc., 140 NLRB 181 (1962); Barton
Brands, Ltd., 213 NLRB 640 (1974). Mere negligence or
poor judgment is insufficient to establish a breach of the
duty of fair representation, for the Act does not guarantee
the quality of representation and "a wide range of
reasonableness must be allowed a statutory representative
in serving the unit it represents subject always to complete
good faith and honesty of purpose in the exercise of its
discretion." Ford Motor Co. v. Huffman, 345 U.S. 330, 338
(1953); Bazarte v. United Transportation Union, 429 F.2d
868, 872 (C.A. 3, 1970). However, the duty of fair
representation is more than an absence of bad faith or
hostile motivation, at least as to rights under an existing
collective-bargaining agreement, and implicit therein is the
idea that a union breaches its fiduciary duty when it
deprives an employee of a clear contractual right because a
majority of its members want it to do so. General Truck
Drivers, Warehousemen, Helpers and Automotive Employees,
Local 315, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Rhodes &
Jamieson, Ltd.), 217 NLRB 616 (1975); Miranda Fuel
Company, Inc., supra.
Here General Counsel argues that article XV, sections 4
and 5, of Respondent's constitution and bylaws is incorpo-
rated into the collective-bargaining agreement and is
clearly applicable to Simonette's situation. The contract
states at article II, section 18:
The Union will endeavor to furnish a sufficient number
of competent workmen to perform efficiently all work
within the jurisdiction of the union and the Union will
incorporated. There is no dispute that the Local is permitted under the
International constitution to formulate rules governing the retention of
pnornties and that to the extent such rules exist they govern the application
of priorities on the substitute list.
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
endeavor to supply straight-time journeymen whenever
the publisher has shifts to be filled.
Article XV, section 4, of Respondent's constitution and
bylaws provides:
Sub-Priority. A substitute's priority shall begin on the
first day worked in thejurisdiction of Local No. 13. The
sub with the oldest priority shall have first claim to the
first five days available, the sub with the second oldest
priority shall have claim to the second five days
available, etc., through the remaining subs in the
jurisdiction.
Article XV, section 5, states:
A journeyman situation holder losing and/or leaving
his situation shall be placed on the sub priority list
corresponding with the date of his first working in
jurisdiction on current traveler or initiation.
Contrary to the General Counsel, I conclude that article
XV, section 5, is not clearly applicable to the circumstances
herein. The fact is that, when Simonette sought placement
on the substitute list, he was not a journeyman situation
holder who had lost or left his situation as a stereotyper. He
had lost a job in the street circulation department. Unlike
the General Counsel, I do not feel this fact is irrelevant.
True, under the circumstances one might reasonably
decide that the section should apply. On the other hand, an
opposite conclusion is not necessarily unreasonable.
Reasonable men could differ as to the applicability of the
section to the Simonette situation.'8 Thus, the test is
whether Respondent exercised its discretion in an arbitrary
or discriminatory manner or in bad faith. Respondent has
violated its duty of fair representation and Section
8(b)(1)(A) of the Act only if this question can be answered
in the affirmative. Miranda Fuel Company, supra; Rhodes &
Jamieson, Ltd., supra. I conclude that it can.
I credit Simonette's testimony that Henry told him he
was being placed on the bottom of the substitute list
because he was a member of the Guild. Although Cavolt
and Henry do not list this as a basis for the decision, I find
that this dual unionism was discussed by the executive
board, whether as a basis for the decision or as a device to
secure support therefor. It is clear that in some manner it
was an important consideration and that Respondent was
none too sure that its decision was sound. Evidencing this
is the peculiar failure to submit the decision, and its alleged
basis, to the International for an interpretation. Instead,
Respondent sought an interpretation based solely on dual
unionism. Again, at the membership meeting the question
of dual unionism was put to the membership. It is well
established that any attempt to derogate one's employment
status because of dual unionism is violative of the Act.
Plumbers and Steamfitters, Local 198, 210 NLRB 974;
Progressive Mineworkers, Local 167, 173 NLRB 1237.
Clearly, a decision to deprive an employee of his priority
'8 It is undisputed that those on the attrintion list were not specifically told
they would lose their priority.
'" Henry testified that the reason he asked Simonette to forgo the special
meeting was because the petition had been lost. I consider this an
insufficient reason to refuse the special meeting.
status which is tainted by considerations of dual unionism
is a decision made on the basis of unfair, arbitrary,
irrelevant, or invidious distinctions. Although not alone
decisive, I also find as additional indications of bad faith
the failure to notify Simonette of the special meeting, the
attempt to pressure him into withdrawing his request to
schedule another such meeting, and the failure to schedule
another special meeting.' 9
In all of the circumstances, I conclude that Respondent's
decision to deprive Simonette of his town priority and
place him at the bottom of the substitute-stereotyper list
was based at least in part of unfair, arbitrary, irrelevant,
and invidious considerations and was made in bad faith.
Therefore, I find that by this action Respondent violated
its duty of fair representation and Section 8(b)( )(A) of the
Act.
CONCLUSIONS OF LAW
I. The Denver Post, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act and at all times material
herein has been the exclusive representative of certain
employees of the Employer for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
3. By failing to represent Paul Simonette in a fair and
impartial manner, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(bX I)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since I have found that Respondent has breached its
duty of fair representation resulting in loss of employment
by Paul Simonette, I shall recommend that he be placed on
the substitute-stereotyper list in accordance with his
original town priority date 20 and that Respondent make
Simonette whole for any loss of pay he may have suffered
by reason of its violation of the duty to fairly represent
him, by payment of a sum of money equal to what he
normally would have earned as wages had he been placed
on the substitute-stereotyper list in accordance with his
proper priority date. All backpay shall be with interest at
the rate of 6 percent per annum and shall be computed in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursuant
20 The exact date is not in the record. Simonette testified it was in June
1962.
686
DENVER STEREOTYPERS
to Section 10(c) of the Act, I hereby recommend the
following:
ORDER 21
The Respondent, Denver Stereotypers and Electrotypers
Union, Local No. 13, Denver, Colorado, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing unit employees in the exercise
of their rights guaranteed by Section 7 of the Act by failing
to represent them in a fair and impartial manner as to
placement on the substitute-stereotypers list.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Place Paul Simonette on the substitute-stereotypers
list in accordance with his proper town priority date.
(b) Make whole Paul Simonette for any loss of wages and
welfare, pension, or other benefits incurred by him as a
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
result of its failure to accord him the fair and impartial
representation to which he was entitled, in the manner set
forth in the section entitled "The Remedy."
(c) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix." 22 Copies of said
notice, on forms provided by the Regional Director for
Region 27, 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 employees and
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) Sign and mail to the Regional Director for Region 27
sufficient copies of said notice, on forms provided by him,
for posting at the premises of the Denver Post, Inc., if the
latter is willing.
(e) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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."
687