Graphic Communications Local 22 (Rocky Mountain News)

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 130 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
Denver Newspaper and Graphic Communications
Local No. 22 (The Denver Publishing Company
d/b/a The Rocky Mountain News) and Wayne
Jerome Scott. Cases 27–CB–4053–1, 27–CB–
4119–1, and 27–CB–4152–1
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On January 22, 2002, Administrative Law Judge James
L. Rose issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings, conclusions as modified1 and to adopt the recom-
mended Order as modified.2
1. The administrative law judge found that the Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act
by causing the denial of overtime opportunities to the
Charging Party, Wayne Jerome Scott, because he was
delinquent in paying union imposed fines. We adopt the
judge’s finding. The judge specifically found that Scott
was unlawfully denied overtime opportunities for the
weeks of May 13 and June 10 and 24, 2000. The Gen-
eral Counsel has excepted to the judge’s failure to find
that Scott was also denied an overtime opportunity for
the week of April 29, 2000. Upon careful examination of
the judge’s decision and the record, we find merit in the
General Counsel’s exception.3 We therefore modify the
judge’s finding to include the week of April 29, 2000,
along with the other dates in the judge’s decision.
2. The judge found that the Respondent did not violate
Section 8(b)(1)(A) of the Act by filing an internal union
charge against member Scott in retaliation for Scott’s
filing of a Board charge against the Respondent. The
judge concluded that the quick withdrawal of the internal
union charge, the limited knowledge by the membership
of the filing of the internal charge, and the absence of
any trial or fine, sufficiently demonstrated no actual co-
ercive effect on the Charging Party, and therefore there

1 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
2 We shall substitute a new notice in accordance with our decision
in Ishikawa Gasket America, 337 NLRB 175 (2001).
3 The record evidence establishes that the Respondent offered over-
time shifts to employees who worked the full 5-day weekly schedule,
starting with the employee who had worked the least number of over-
time shifts. (Tr. 145.) As argued by the General Counsel on exception,
and not disputed by the Respondent, the Respondent’s records establish
that Scott met these criteria for the week of April 29, as well as for the
weeks of May 13 and June 10 and 24. (R. Exh. 5.)
was no violation of the Act. The General Counsel has
excepted to the judge’s failure to find a violation, arguing
that the mere filing of the internal charge against Scott
violates Section (8)(b)(1)(A), and that the mere with-
drawal of the charge, and other factors relied on by the
judge, are insufficient to remedy the coercive effect of
the Respondent’s unlawful conduct. For the following
reasons, we find merit to this exception.
Facts
On October 17, 1999,4 the Respondent’s president,
John George, filed an internal union charge against Scott
because Scott had filed an unfair labor practice charge
against the Union on October 13. George’s charge al-
leged that Scott violated the Union’s International consti-
tution by filing charges with the National Labor Rela-
tions Board (the Board) before taking his claim to the
Union’s executive board. On October 17, the Respon-
dent’s secretary/treasurer, Cordelia Brimage, personally
served Scott with the internal union charge along with a
separate summons to appear before a trial committee on
November 8.5
The record further establishes that the internal union
charge at issue was “thrown out” on October 19. On that
day, George informed Brimage that the Union’s attorney
had advised that the internal charge was invalid and di-
rected Brimage to disregard it. Brimage made a hand-
written notation at the top of the charge stating, “Invalid
Charges. Thrown-out 10/19/99.”6 Brimage also orally
informed Scott that the internal charge was invalid and
that the Union was not going to proceed against him.
The charge, with Brimage’s handwritten notation, was
placed in the Union’s files. There is no evidence indicat-
ing whether, and if so how, the members of the trial
committee were informed that the charge was thrown
out.
Analysis
Fundamental to the effectuation of the policies of the
Act is promoting unrestricted access to the Board and the
Board’s processes. In keeping with this objective, the
Board and courts have consistently held that a union vio-
lates Section 8(b)(1)(A) of the Act when it takes coercive
actions designed either to prevent a member from filing a
charge with the Board or to retaliate against a member
for filing such a charge.7 Filing an internal union charge
4 All dates hereafter are 1999 unless otherwise indicated.
5 The trial committee is a five-member board comprised of elected
peers.
6 The summons to appear before trial committee, a separate docu-
ment than the charge, had no notation regarding the charge being
thrown out.
7 NLRB v. Shipbuilders, 391 U.S. 418 (1968); Painters Local 1115
(C&O Painting), 312 NLRB 1036, 1042 (1993); Auto Workers Local
338 NLRB No. 21
GRAPHIC COMMUNICATIONS LOCAL 22 (ROCKY MOUNTAIN NEWS) 131
against a member in retaliation for the member’s filing of
a charge against it with the Board is such a coercive act
and therefore violates Section 8(b)(1)(A) of the Act.8
This is because “the overriding public interest makes
unimpeded access to the Board the only healthy alterna-
tive.”9
Under this analysis, we agree with the General Coun-
sel that the Respondent violated Section 8(b)(1)(A) by
filing an internal union charge against Scott on October
17. The clear language of the charge establishes the
8(b)(1)(A) violation. In addition, the charge was filed by
the Union’s president, a hearing was scheduled, and a
summons was issued and served on Scott.10 An actual
trial, fine, or other discipline is unnecessary to establish
the violation.11
We also find that the evidence fails to demonstrate that
the Respondent effectively repudiated that violation. The
mere withdrawal of the internal union charge against
Scott, in the absence of an action specifically repudiating
the coercive effect of the conduct, is insufficient to rem-
edy the 8(b)(1)(A) violation.12 Although the Respondent
notified Scott that the charge against him was withdrawn,
it did not assure him, or other union members, of their
rights and guarantee that it would not engage in such
conduct in the future. The Respondent also failed to ap-
propriately remove from all union files any reference to
the charge filed against Scott. Accordingly, contrary to
the judge, we find that the Respondent violated Section
8(b)(1)(A) of the Act by filing an internal union charge
against Scott in reprisal for his filing a charge with the
Board against the Union.13
AMENDED REMEDY
In addition to the remedy provided for in the judge’s
decision, we shall order the Respondent to remove from

1989 (Caterpillar Tractor Co.), 249 NLRB 922, 923 (1980); Independ-
ent Shoe Workers (U.S. Shoe Corp.), 208 NLRB 411, 417 (1974).
8 Id. It appears from the record that the provision in the Union’s
Constitution and Bylaws on which the charge was based is no longer in
effect.
9 NLRB v. Shipbuilders, supra, 391 U.S. at 424.
10 Presumably, the summons was also provided to the members of
the trial committee.
11 See, e.g., Auto Workers Local 1989 (Caterpillar Tractor Co.), su-
pra.
12 Painters Local 1115 (C&O Painting), supra, 312 NLRB at 1042;
Auto Workers Local 1989 (Caterpillar Tractor Co.), supra, 249 NLRB
at 923–924.
13 Member Cowen agrees with his colleagues that the Respondent
did not effectively repudiate this violation of Sec. 8(b)(1)(A). Member
Cowen specifically notes in this regard that the Respondent’s claim of
repudiation rings hollow given that the Respondent’s unlawful act of
filing internal charges against Scott was inextricably intertwined with
its discriminatory denial of overtime opportunities to Scott, which
conduct post-dated its purported repudiation and was itself never repu-
diated or remedied by the Respondent.
its records any reference to the internal union charge,
filed on October 17, 1999, against Wayne Jerome Scott,
for filing unfair labor practice charges with the Board
against the Union and to notify Scott in writing that it has
done so and that the Respondent will not use the charge
against him in any way.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Denver
Newspaper and Graphic Communications Local No. 22,
Denver, Colorado, its officers, agents, and representa-
tives, shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs:
“(a) Filing internal union charges against its members
for filing unfair labor practice charges with the National
Labor Relations Board.”
2. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs:
“(a) Within 14 days from the date of the Board’s Order
remove from its files any reference to the October 17,
1999 internal union charge against Wayne Jerome Scott
for filing NLRB charges against the Union, and within 3
days thereafter notify Scott in writing that it has done so
and that it will not use his filing of the charge against
him in any way.”
3. Substitute the following for existing paragraph 2(b)
(now relettered as par. 2(c)):
“(c) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT file internal union charges against our
members for filing unfair labor practice charges against
us with the National Labor Relations Board.
WE WILL NOT deny any member the opportunity for ex-
tra shifts because this member is delinquent in paying
fines levied as a result of internal union charges.
WE WILL NOT in any like or related manner restrain or
coerce our members in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL within 14 days form the date of the Board’s
Order remove from our files any reference to the October
17, 1999 internal union charge filed against Wayne
Jerome Scott and WE WILL within 3 days thereafter notify
Scott, in writing, that we have done so and that we will
not use his filing of the charge against him in any way.
WE WILL make whole Wayne Jerome Scott for any loss
of wages or other benefits he may have suffered as a re-
sult of our discrimination against him, with interest.
DENVER NEWSPAPER AND GRAPHIC COM-
MUNICATIONS LOCAL NO. 22
Barbara E. Blanton Greene, Esq., for the General Counsel.
Dennis E. Valentine, Esq., of Denver, Colorado, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Denver, Colorado, upon the General Coun-
sel’s complaint alleging that the Respondent Union engaged in
various acts violative of Section 8(b)(1)(A) of the National
Labor Relations Act.. The Respondent generally denied that it
committed any violations of the Act.
On the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
At all times material, The Denver Publishing Company d/b/a
The Rocky Mountain News (the News) has engaged in the
business of publishing a daily general circulation newspaper
from its facility in Denver, Colorado, in connection with which
it has held membership in, or subscribed to various interstate
news services, including the Associated Press, published vari-
ous nationally syndicated features, and advertised various na-
tionally sold products. The News annually derives gross reve-
nues in excess of $200,000. I therefore find that the News is an
employer engaged in interstate commerce within the meaning
of Sections 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Denver Newspaper and Graphic Communi-
cations Local No. 22 (the Union) is admitted to be, and I find
is, a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As with most labor disputes, the events alleged here to be
unlawful did not occur in a vacuum. Therefore some back-
ground facts are necessary. The Charging Party, Wayne Scott,
has been a member of the Union for 45 years, having worked
for the Denver Post until 1998 at which time he reached a set-
tlement with that newspaper’s management that in lieu of being
discharged for a second charge of sexual harassment of a fellow
employee, he would accept $32,000 and agree not to seek fu-
ture employment with the Post.
The Post and News were separate entities; apparently how-
ever, some time after the initial charge in this matter they
merged into The Denver Newspaper Agency. Material here, as
has been the practice, under certain circumstances (discussed
below) employees of one paper will work shifts for the other.
In early 1999, Scott sought employment with the News and
apparently filed an application. By letter dated March 9, his
application was denied. Scott then, through the Union, sought
work with the News as a substitute employee. As is apparently
traditional in the industry, the Union provides employees when
the need arises. Though complicated, I find that the first employ-
ees to be offered extra shifts are full-time employees who have
worked their designated five shifts in a week. Then if not all avail-
able shifts can be filled, the union chapel chairman (steward) or the
assistant, will contact full-time employees of the Post. Last will be
retirees. There are also “substitutes” but the record suggests that
substitutes were not used during the time material here. A substi-
tute is a full-time employee who, because of lack of work, has not
been assigned five shifts or is a full time employee suspended from
the other employer.
According to John George, the Union’s president during the
material times here, Paul Gledhill, the vice president of opera-
tions for the News was reluctant to hire Scott, knowing of
Scott’s problems with the Post. Nevertheless, George was able
to persuade Gledhill to hire Scott as a part-time employee, and
subsequently Scott got “a couple” shifts a week as a retired
member.
However, Scott was not satisfied, contending that under the
Union’s constitution and bylaws he should be considered a
substitute and he disputed that George designated him as a
retired member for purposes of being offered work. While
Scott claims he was not retired, he did admit that he testified in
a State court action that he was. According to George, Scott
said he should be given “round-robin status on the overtime
board” (employees on the overtime board are called based on
GRAPHIC COMMUNICATIONS LOCAL 22 (ROCKY MOUNTAIN NEWS) 133
the number of times they have been offered work, with the
lowest number being given the first call). George told Scott
that such was not his decision to make, that Scott would have to
take it up with the executive board of the Union. Since there
was a great deal of overtime available during this period, the
executive board decided it would not hurt full-time employees
to treat Scott as a full-time Post employee. However, there is
some question as to whether the change in status in fact helped
Scott. Indeed, there is testimony that being designated a full-
time Post employee rather than a retired member meant that he
might get fewer shifts since the News Chapel Chairman could
contact retired members first if unable to reach the Post chapel
chairman.
In any event, Scott continued to complain about not getting
enough shifts and on September 19, 1999, wrote identical let-
ters to the News and the Union stating his “desire and (my)
availability to work thirty five hours each and every week.”
This, according to Scott was a request for full-time employ-
ment, notwithstanding that under the collective-bargaining
agreement, full time is 37-1/2 hours per week (unless one were
to work five night shifts, which are 7 hours each). Scott was
subsequently hired as a full-time employee by the News in
January 2000.
Notwithstanding that George had in fact persuaded the News
to hire Scott, on October 11, 1999, Scott filed an intraunion
charge against George claiming that George had failed to repre-
sent him is obtaining work with the News. And on October 13,
Scott filed his first charge with the NLRB alleging that George
had failed to represent him in his quest to secure five shifts per
week at the News. On October 17, George retaliated with an
intraunion charge of his own against Scott for filing the NLRB
charge. George’s charge was “thrown-out” on October 19
when the Union’s attorney learned of it.
George also filed an intraunion charge against Scott for
bringing a frivolous charge against him. On this Scott was
found guilty by the Special Trial Committee on December 5,
1999, and fined $50. On March 15, 2000, Scott was found
guilty of abusing a fellow member and fined 1-day’s pay
($154). Scott has not paid either of these fines.
Thus as of the week of April 15, 2000, Scott was noted as
“delinquent” on the News overtime board and from then
through the week of July 1, there is no indication on the over-
time board sheets that Scott was ever called for extra work.
There are notations, undisputed by Scott, that in most weeks
between April and July, he did not work five shifts and there-
fore would not have been eligible for extra work.
During the course of these events, Scott contends, and the
General Counsel alleges, that various officers and agents of the
Union threatened, fined, and otherwise discriminated against
him because he had filed charges with the NLRB. These alle-
gations will be treated seriatim as they appear in the complaint.
B. Analysis and Concluding Findings
Most of Scott’s assertions, and the complaint allegations, de-
pend on crediting Scott and discrediting the Respondent’s wit-
nesses. This I decline to do. I found Scott to be a most in-
credible and self-serving witness. I believe that throughout the
time in question, Scott sought favorable treatment for himself
and his recitation of the events tailored to that end. His dispute
with the Union is based on his assertion that George failed to
represent him, an assertion which seems incredible on its face
given the facts. Scott was about to be fired by the Post and the
Union was able to negotiate a settlement which included pay-
ment of $32,000 to Scott in order to bridge the time to his re-
tirement. Then when Scott decided he wanted to work, George
was able to convince the News management to hire him, first as
a part time employee then full time. George’s efforts on behalf
of Scott occurred during the time Scott maintains union officers
were threatening and discriminating against him. Therefore,
Scott's’ testimony about derogatory comments and threats sim-
ply are not consistent with the favorable treatment he was re-
ceiving.
In addition to Scott’s generally negative demeanor, I note
that: (1) He testified that Chapel Chairman George Shaffer told
him he would be getting “shitty shifts” because he filed an
NLRB charge. This was alleged to have occurred in the July to
September 1999 timeframe. However, Scott did not in fact file
his first charge until October 13. (2) In the two letters he wrote
in September he stated his availability to work 35 hours a week,
which he testified was a request for full-time employment.
When it was pointed out to him on cross-examination that full
time would be 37-1/2 hours a week, he testified that he made a
“typographical” error. Such is totally incredible. I believe that
when he wrote these letters, some time before there was any
indication of litigation, he had something else in mind. I be-
lieve that his testimony about a “typographical” error was an
intentional attempt to mislead me on what he considered to be a
material fact. (3) His testimony about the sexual harassment
charges at the Post was evasive. (4) His testimony about re-
ceiving a financial report from the Union’s attorney was eva-
sive.
On balance, where there is a dispute between the testimony
of Scott and witnesses for the Respondent, I discredit Scott.
1. Threat by Shaffer on October 14
This allegation apparently refers to Scott’s contention that
some time during the July to September timeframe, Shaffer told
Scott he would be getting “shitty” shifts because he had gone to
the Board. Shaffer denied making such a statement, a denial I
credit. Shaffer did tell Scott that his demand that he not be
treated as a retired member could result in fewer shifts because
of the way the system works. But this was not a threat. I con-
clude that Shaffer did not in fact threaten Scott as alleged in
paragraph 6 (a) and I shall recommend it be dismissed.
2. Filing an intraunion charge against Scott on October 17
There is no question that on October 17, George filed a
charge against Scott because Scott had filed a Board charge
against the Union and could certainly be violative of Section
8(b)(1)(A). However, two days later, upon learning about it,
the Union’s attorney advised that the charge be “thrown out.”
And it was. There is no evidence that George’s charge was
published to the membership or even known by anyone other
than George, the chapel chairman and the secretary/treasurer.
There was no trial or fine. As soon as the Union was presented
with George’s charge, and such was checked by counsel, it was
dismissed. I conclude that the mere filing an intra union charge
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
by a member (even the president), without more, is not suffi-
cient to make out a violation of Section 8(b)(1)(A) and I shall
recommend that paragraph 6(b) be dismissed. C.f. Painters
Local 1115 (C & O Painting), 312 NLRB 1036, 1043 (1993).
3. Telling Scott that he would be hired if “union problems”
were resolved
It is alleged that on October 23, George “informed the
Charging Party that the Employer (the News) would hire the
Charging Party if ‘union problems’ were resolved.” In fact, by
this time Scott was working for the News, notwithstanding that
News management had been reluctant to hire Scott because of
his problems at the Post. In addition, there is no evidence to
support the factual assertion of this allegation and I shall rec-
ommend that paragraph 6(c) be dismissed.
4. Fining Scott because he filed charges with the NLRB
It is alleged that on December 15, the “Respondent fined the
Charging Party because the Charging Party filed charges with
the National Labor Relations Board and/or engaged in other
protected concerted activities.”
Scott filed intraunion charges against George because, in his
opinion, George should have instructed the chapel chairmen to
treat him as a substitute rather than a retired member. Since
Scott had not gotten his way, he claimed that George therefore
did not appropriately represent him. George retaliated by filing
an intraunion charge against Scott for having filed a frivolous
charge. On December 5, the Special Trial Committee found
George not guilty and Scott guilty and fined him $50. This is
apparently the basis of the allegation in paragraph 6(d).
I conclude that the charge and countercharge here were
“wholly intraunion conduct and discipline” relating a demand
by Scott that he be treated differently than the union leadership
though he ought to be. In these circumstances, I conclude that
the charge by George and the fine were not violative of the Act.
Office Employees Local 251 (Sandia National Laboratories),
331 NLRB 1417 (2000), Therefore, I shall recommend that
paragraph 6(d) be dismissed.
5. Filing intraunion charges against Scott on
February 19, 2000
The General Counsel’s evidence on this allegation is
sketchy. Apparently it relates to a fine levied by the trial com-
mittee on March 13, 2000. This followed a charge against
Scott because he complained to his shift foreman the lead em-
ployee (who apparently assigns tasks) had not given him the
help he thought he should have. The work dispute Scott had
was personal to himself and arose from the fact that when he
went to work full time for the News in January 2000 he was the
junior pressman and assigned to duties accordingly, even
though he 40 years experience as a pressman.
On the day in question, Scott was assigned to install plates
and thought he should have help. But there was no apprentice
on the shift to help him and Scott thought the “floor man” (the
senior operator on the shift) should assign another journeyman,
which he did not. Scott therefore complained to the foreman.
As far as I can tell the work dispute and resulting intraunion
charge was personal to Scott and in no way related to concerted
activity. Nor is there any evidence that this charge in any way
related to the fact that Scott filed a charge with the Board. I
find it to have been a wholly intraunion dispute. Therefore, the
charge, trial and fine were not violative of Section 8(b)(1)(A). I
shall recommend paragraph 5(e) be dismissed.
6. Threat on March 5 by Tracey Belcher
Tracey Belcher was an assistant chapel chairman and the
floor man whom Scott felt should have assigned him help with
the plates. However, the basis of this allegation is unclear.
There is no evidence that Belcher threatened Scott on March 5.
I shall recommend that this paragraph of the complaint be dis-
missed.
7. Fine of March 13
This allegation relates to the intraunion charge filed against
Scott on February 19. A preponderance of the credible evi-
dence does not support the General Counsel’s allegation that
the fine of Scott under this charge was motivated by his having
filed charges with the Board. I conclude that this dispute was
wholly intraunion, and arose out of Scott’s personal feelings
rather than having anything to do with his Board charges. Ac-
cordingly, I shall recommend that paragraph 6(g) be dismissed.
8. Refusing to provide a financial report on May 4
It is undisputed that on May 4, while at work, Scott asked
Cordelia Brimage, the Union’s secretary-treasurer, for a copy
of the Union’s financial report. Also undisputed is that
Brimage told him she did not have a copy with her and that he
should come to the union meeting to get one.
While a member no doubt has a right to see, even have, the
union’s financial reports, the General Counsel has offered no
authority to support the proposition that a member is entitled to
such reports at a time and place of his choosing.
Further, it is clear that Scott was less interested in actually
receiving such a report than trying to set up facts to support an
unfair labor practice. Thus Shaffer credibly testified that he
overheard this conversation between Scott and Brimage and
told Scott he had a copy of the report which Scott could have.
Scott declined, saying that he wanted the report from Brimage.
Finally, Scott did receive a copy of the report from Counsel for
the Union, although he was evasive about this when questioned
on cross-examination.
I conclude that the General Counsel failed to establish a legal
or factual basis for the allegation in paragraph 6(h) and I shall
recommend that it be dismissed.
9. Telling Scott he would have to file a Board charge
to get the report
Scott testified: “I just asked her, I said have they put out a fi-
nancial report? And she said yes. And I said can I get a copy
of it? And she said come to the Union meeting. And I said that
isn’t what the bylaws say. And she said, ‘Then take it to the
Labor Board.’ I said okay.”
Brimage testified: “Wayne (Scott) had asked, requested to
have a copy of that (the financial report), and I said I don’t have
one on me right now, and then he says, ‘Well, I want a copy,’
and I said, ‘Well, since–you may want to go down to the Labor
Board and get a copy from them because it might be a lot faster
than me–waiting for me to get it for you,’ was my response.”
GRAPHIC COMMUNICATIONS LOCAL 22 (ROCKY MOUNTAIN NEWS) 135
Brimage went on to testify: “I said Labor Board actually
meaning the Department of Labor, and I think Mr. Scott
thought I meant NLRB. I had the departments mixed up.” She
in fact files the Union’s financial reports with the Department
of Labor.
I credit Brimage’s testimony that she said Labor Board
meaning Department of Labor. Further, even accepting Scott’s
version of their discussion, I find no threat that the only way for
him to get a copy of the financial report would be to file a
Board charge. Further, Shaffer’s contemporaneous statement
belies such a conclusion. I conclude that the General Counsel
failed to establish the allegation in paragraph 6(i) and I shall
recommend it be dismissed.
10. Since May 2000 telling Scott he could not work
overtime as long as his fines were unpaid
The only evidence to support this allegation is Scott’s testi-
mony, which I found generally incredible, that sometime in
1999 Shaffer “informed me that I could not work any extra shift
also when—because I was delinquent by not paying these
fines.” He further testified: “I just asked him why I wasn’t
getting any more shifts, and he said that they weren’t available
and he was doing what John George said as far a working me as
a retired individual.” According to Scott, these conversations
with Shaffer happened before he had been fined, which means
that Shaffer could not have said Scott was delinquent. Scott’s
testimony is not consistent with known facts and it is rejected.
I cannot conclude that Scott was ever told that he would not
receive overtime because he had not paid the fines, even though
I infer such was the case, infra. Accordingly, I conclude that
the allegation in paragraph 6(j) be dismissed.
10. Refusing to call Scott for overtime because of
his delinquency
After Scott became a full-time employee of the News, he was
eligible for overtime shifts in any week in which he actually
worked five shifts. This did not occur often. According to
Scott, in most weeks he laid off one or more shifts, suggesting
that throughout he was really not interested in working full
time—that he wanted a few shifts of his own choosing. Never-
theless, there were occasions when Scott in fact worked five
shifts and had the lowest number of calls for overtime. The
Union’s records do not reflect that he received calls for over-
time after “delinquent” was placed by his name, even in those
weeks when he would have been entitled, which from the over-
time board sheets in evidence were the weeks of May 13, June
10 and June 24.
The Respondent argues that Scott did not receive calls be-
cause he had changed his telephone number. Though Scott’s
testimony about his telephone number is far from convincing, I
conclude that in fact the Union had a number where he could
reasonably be reached. On the other hand, I am not convinced
by George’s testimony to the effect that Scott was always
called but no mark was put by his name when he was not actu-
ally contacted. Early in 2000, and before he was designated as
delinquent, there were indications that Scott received calls at
about the same rate as others.
Even if Scott was hard to reach, of all the calls that George
testified must have been made to fill shifts, if Scott had not
been discriminated against there would have been some indica-
tion that he was called. There is none. I am therefore con-
vinced that he was not called for overtime shifts because he had
not paid the fines. Though levying the fines was not unlawful,
to discriminate against Scott in matters of employment oppor-
tunity because he did not pay them was a violation of Section
8(b)(1)(A) and (2).1 E.g., Fisher Theatre, 240 NLRB 678
(1979).
IV. REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including making
whole Wayne Scott for overtime shifts he should have been
called for in those weeks were he worked five shifts and there
is no indication on the Union’s records that he was offered and
refused an extra shift, plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I make the following recommended2
ORDER
The Respondent, Denver Newspaper and Graphic Communi-
cations Local No. 22, Denver, Colorado, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Denying to any member the opportunity for extra shifts
because that member is delinquent in paying fines levied on
intraunion charges.
(b) In any like or related manner, restraining, or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole Wayne Scott for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of this deci-
sion.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all re-
cords necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Within 14 days after service by the Region, post at its
business office and meeting places copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided

1 Though the complaint does not allege this paragraph to be viola-
tive of Section 8(b)(2), such was a technical omission and to find this
does not affect the Respondent’s rights.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136
by the Regional Director for Region 27, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The allegations of unfair labor practices not specifically
found are hereby dismissed.