Evening News Association

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 430 (N.L.R.B. 1970)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evening News Association and Local 372 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Case
7-CA-7345
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On January 7, 1970, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in unfair labor practices and recom-
mending that it cease and desist therefrom, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint . Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision
together with a supporting brief, the Charging Party
filed cross-exceptions to the Trial Examiner's Decision
and a supporting brief, and Respondent filed a brief
in answer to exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
' In the absence of exceptions thereto , we adopt, pro forma,
Trial Examiner 's finding that Respondent violated Sec 8(a)(1) and (4)
of the Act by conditioning compliance with the arbitrator 's award on
the withdrawal of the charges which were pending in this proceeding
Contrary to the Trial Examiner , we believe that a statement by Respond-
ent to its employees that it will not interfere with their right to resort
to Board processes in future labor disputes will have a salutary effect
in guaranteeing to its employees the free and full exercise of their
Sec 7 rights Accordingly, our order shall provide for the customary
notice posting
tions Board adopts as its Order the recommended
Order of the Trial Examiner, as modified herein,
and hereby orders that Respondent, Evening News
Association, Detroit, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as so
modified:
1. Add the following to the Trial Examiner's recom-
mended Order:
"Evening News Association, its officers, agents,
successors, and assigns, shall take the following affirm-
ative action which the Board finds necessary to effectu-
ate the policies of the Act:
"(a) Post at its "The Detroit News" plant in Detroit,
Michigan, copies of the attached notice marked
"Appendix."2 Copies of said notice, on forms provided
by the Regional Director for Region 7, shall, after
being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees 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.'
"(b) Notify the Regional Director for Region 7,
in writing , within 10 days from the date of this
Order, what steps have been taken to comply here-
with."
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar
as it alleges violations of the Act not found herein.
3 In the event that this Order is enforced by a Judgment of the
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 "
' Member McCulloch is of the view that the Trial Examiner 's recommen-
dation that no notice posting be required in this case is based on good
and sufficient reasons He would, therefore , go along with the Trial
Examiner in this respect
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT condition our compliance with
the arbitrator 's award on the withdrawal of unfair
labor practice charges filed against us, or in
any manner interfere with the efforts of our
employees or their representatives to resort to
the processes of the National Labor Relations
Board.
185 NLRB No. 70
EVENING NEWS ASSOCIATION 431
WE WILL NOT in any like or related matter
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form labor organizations , to join or assist
the above-named Union, or any other labor organ-
ization, to bargain collectively through represent-
atives of their own choosing , to engage in concert-
ed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any and all such activities,
except to the extent that such rights may be
affected by the proviso to Section 8(a)(3) of
the Act.
EVENING NEWS
ASSOCIATION
(Employer)
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background-the Contract and the Strikes
For many years the Teamsters has been the bargaining
representative of certain employees of the Company (those
engaged primarily in distribution ) while other unions have
represented employees engaged in mechanical production
and in other aspects of the Company's business. A Teamsters
contract expired on November 15, 1967, and the employees
represented by that union went on strike at that time,
The Teamsters and the Company reached a new agreement
on March 15, 1968, but the employees represented by
the Teamsters could not then return to work because the
Company was shut down as the result of strikes by other
crafts. On August 5, 1968, the Company resumed publica-
tion , as all the employees , including those represented by
the Teamsters , returned to work . The Teamsters contract
was made effective as of that date.
Dated By (Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner : This case, heard
at Detroit , Michigan , on October 20, 1969 , pursuant to
a charge filed the preceding May 21 and a complaint
issued August 8, presents issues arising out of Respondent's
action in deducting from vacation credits otherwise due
in 1969 a pro rata amount based on strike idleness in
1968. Upon the entire record , and after due consideration
of the briefs filed by General Counsel and by Respondent,
I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent , herein called the Company, a Michigan
corporation engaged in the printing , sale, and distribution
of a large Detroit daily and Sunday newspaper , "The Detroit
News," is manifestly and admittedly an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act. See, e.g., 154 NLRB 1494, 1506-07. The Charg-
ing Party , herein called the Teamsters , is a labor organization
within the meaning of Section 2(5) of the Act.
Both the contract which expired in November 1967 and
the contract which became effective in August 1968 provided
the varying amounts of vacations during a calendar year
depending upon the number of years of continuous service,
e.g, 2 weeks for employees of 1 year but less than 5
years' service , 3 weeks for those whose service was between
5 and 25 years, etc. On December 11, 1968, the Company
notified the employees represented by the Teamsters that
their vacation allowance for 1969 would be prorated by
deducting therefrom the strike period from January 1,
1968, through August 5 , 1968, e g, employees with over
5 years' service would receive 8 days' vacation instead
of 15.
B. The Arbitration Proceeding and its Aftermath
The Teamsters filed a grievance with respect to the
denial of full vacation pay, which culminated in a hearing
before Arbitrator Casselman in February 1969. The charge
initiating this proceeding before the Labor Board was filed
in May 1969, while Casselman had the matter under advise-
ment . On July 14, 1969 , Casselman issued his award , holding
that the Company had violated the current agreement insofar
as the Company withheld vacation credit for the period
between March 16, 1968, and August 5, 1968 (i.e., the
period in which the Company and Teamsters were in accord
but the Company was shut down by the strike of other
crafts), but that the Company had not violated the agree-
ment by prorating the vacation allowance for the period
prior to March 16, 1968.
On July 21, 1969, Company counsel wrote counsel for
the Teamsters in part as follows
. . we have no intention of not abiding by the
award of Mr . Casselman in connection with vacation
' General Counsel in his brief states that " the arbitration opinion
in fact did not interpret the contract " The entire opinion from its
opening statement of the issue to the concluding " award" shows the
contrary
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay On the other hand, we must of necessity condition
our compliance with the award on withdrawal of the
pending charge by the Teamsters with the National
Labor Relations Board. The purpose of that charge,
were it to come to complaint, are identical with the
relief sought under the contract, i.e., payment of full
vacation credits premised on the finding of an unfair
labor practice. Quite obviously, I cannot advise my
client, any more than you could yours, to risk re-
litigation of the identical issues in a different forum
with the same result and in effect double payment
The complaint in this case, which issued August 8,
1969, alleged that the Company had violated Section 8(a)(1)
and (3) by withholding the vacation credits, and further
violated Section 8(a)(1), (3), and (4) by the letter quoted
above. Thereafter, and notwithstanding the position taken
in the letter, the Company complied with the Casselman
award, and allowed the employees here involved vacation
credit for the period between March and August 1968
C Concluding Findings
Whatever vacation rights the employees have flow initially
out of their contract, not from the statute. Here the contract
has been authoritatively construed by the agency created
by the parties for that purpose as authorizing the prorating
of the vacation because of the absence for the period
between January 1 and March 15, 1968. Under settled
principles the Board should accept this construction of
the contract. See, e g , International Harvester Co, 138
NLRB 923, affd 327 F.2d 784 (C A. 7), cert. denied,
377 U S 1003. Far from being in derogation of statutory
rights, the holding of the arbitrator appears in accord
with the Board's construction of the statute See General
Electric Co., 80 NLRB 510, 511-512, Kimberly-Clark Corp.,
171 NLRB No. 82, Illinois Bell Telephone Co., 179 NLRB
No. 119 2 Indeed, as the right to vacation pay is wholly
contractual, a finding that no such pay was due under
the contract would seem to preclude a finding that a
failure to pay violated the statute. General Counsel failed
in his attempt to show that the Company here departed
from its prior practice of giving vacation credit to employees
on strike. The evidence as to past practice showed that
while the employees represented by the Teamsters had
been given such credits, the strikes in question were not
called by the Teamsters, and the employees were thereafter
in the position of being unable to work through no action
of their own
With respect to the period after March 15, 1968, the
employees represented by Teamsters were entitled to vaca-
' Tex-Tan Welhausen Company, 172 NLRB No 93, enfd 419 F 2d
1265 (C A 5), is distinguishable for the reasons stated by Trial Examiner
Singer in Illinois Bell, supra (TXD) as well as for those suggested
by the Fifth Circuit in Tex-Tan General Counsel would distinguish
General Electric and Kimberly-Clark as dealing with the earning of "vaca-
tion credits" rather than the actual prorating of vacations Whatever
might be said for this distinction as an original proposition (and it
seems inapplicable to //A• i, H, 1/ it is unavailing in the light of the
arbitrator 's construction of the instant contract
tion credits under the contract as construed by the arbitrator.
The failure of the Company to grant the credits for that
period (until compelled to by the arbitrator 's award) was
based on its erroneous view of its contractual obligation.
If, as we have seen , there was no violation of the statute
in the Company 's prorating of the vacation for the time
these men were on strike, then I find it difficult to se-
any violation of the statute in the prorating when they
were absent because others were on strike ' But I find
it unnecessary to reach this question , for even assuming,
arguendo, a violation of the statute, I believe the Board
should stay its hand here as the parties have had a full
and fair resolution of the dispute by a duly constituted
arbitrator . The principles of International Harvester, supra,
apply equally to cases in which the arbitrator upholds
the grievance See Howard Electric Co, 166 NLRB No.
62; Edward Axel Roffman Associates, Inc., 147 NLRB
717, 724.
The letter from Company counsel to Union counsel condi-
tioning compliance with the arbitrator 's award on the with-
drawal of the charge in this case plainly violated Section
8(a)(4) and ( 1) of the Act in that it threatened to withhold
benefits from employees because their representative had
filed a charge under the Act.' The Company' s withdrawal
from that untenable position does not moot the case Cf
Walling v . Helmerich, 323 U.S. 37, 42-43. The fact that
I regard the charge as ill-founded is likewise no defense,
for the protection of Section 8(a)(4) is not limited to meritori-
ous charges.
CONCLUSIONS OF LAW
1. Respondent by conditioning compliance with an arbitra-
tor's award on the withdrawal of a charge filed under
the Act engaged in an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(4) and (1) and
Section 2(6) and (7) of the Act
2. Respondent has not engaged in any other unfair labor
practices warranting remedial relief.
THE REMEDY
I shall order the Company to cease and desist from
the unfair labor practice found above. Because the violation
is isolated, was quickly cured, and was contained in a
letter addressed solely to counsel rather than to the employ-
ees, I see no need for the posting of a notice in this
case. I also note that the charge in question proved ground-
less, that the violation here was tangential to the main
' It could be argued that the prorating of vacation because of absence
in the post-March 15 period was an unlawful reprisal for the pre-March
15 strike The evidence does not establish such motivation, but instead
suggests a failure of the Company to recognize a difference in the
two periods
' The Company ostensibly took this position to avoid the possibility
of double payments , and indeed repeats that contention in its brief
It is all but unthinkable that experienced counsel would be unaware
of the Board ' s longstanding policy of not requiring repetition of affirmative
acts remedying unfair labor practices "The qualification, 'if it has not
already done so ' is implicit in every direction for remedial action under
the statute " Sears, Roebuck and Company, 123 NLRB 1236, 1271
EVENING NEWS ASSOCIATION
issue, and that as the parties have reached a new contract
a notice posting would be more apt to reopen old wounds
than to promote industrial peace.
Accordingly, upon the foregoing findings and conclusions
and upon the entire record, I recommend pursuant to
Section 10(c) of the Act, issuance of the following-
433
2 In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
-under Section 7 of the Act
3. In any manner interfering with the efforts of its
employees or their representatives to resort to the processes
of the National Labor Relations Boards
ORDER
Respondent, Evening News Association, its officers,
agents, successors , and assigns , shall cease and desist from.
1. Conditioning the performance of any act on its part
on the withdrawal of charges filed against it with the
National Labor Relations Board
' 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, recommendations, 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