Houston Typographical Union No. 87

National Labor Relations Board - Board Decisions

May 20, 1966

158 N.L.R.B. 1018 (N.L.R.B. 1966)

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the Act, as found above , Respond-
ent has engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act
4 By discriminating against its employees as found above , Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act
5 By failing and refusing to bargain in good faith with the Union as the repre-
sentative of all its machine operators , shipping and receiving , tool and die,
maintenance , repair and production employees , in its Racine , Wisconsin, plant
excluding office workers , guards and supervisors as defined in the Act, Respondent
has engaged in unfair labor practices within the meaning of Section 8 (a)(5) of the
Act
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
[Recommended Order omitted from publication ]
Houston Typographical Union No 87, International Typographi-
cal Union , AFL-CIO [ Houston Chionicle Publishing Company]
and Don P Bosworth
International Typographical Union, AFL-CIO and Don P Bos-
worth Cases Nos 23-CB-620 and 23-CB-645 May 20, 1966
DECISION AND ORDER
On March 1, 1966, Trial Examiner Max Rosenberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a brief in support thereof
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 [Chairman McCulloch and Members Fanning and Jenkins]
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 hereby affirmed The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner
[The Board adopted the Trial Examiner's Recommended Order
with the following modification
[1 Add the following to paragraph 2(a) of the Trial Examiner's
Recommended Order, and to the last paragraph of the notice
[ , with interest thereon at 6 percent per annum "]
158 NLRB No 104
HOUSTON TYPOGRAPHICAL UNION NO. 87 1019
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Max Rosenberg , in Houston , Texas, on January 17, 1966 , on a consolidated
complaint of the General Counsel of the National Labor Relations Board, and
an amended answer of Houston Typographical Union No . 87, International Typo-
graphical Union, AFL-CIO, herein called Local 87, and International Typo-
graphical Union, AFL-CIO, herein called the ITU. 1 The pleadings raise the issue
of whether Local 87 and the ITU violated Section 8(b)(1)(A) of the National
Labor Relations Act, as amended , by imposing a fine upon and/or assessing Don P.
Bosworth , the Charging Party, for the purpose of paying the attorney's fees
incurred by Local 87 in connection with a prior unfair labor practice proceeding
arising by virtue of Bosworth 's having filed charges against Local 87 with the
National Labor Relations Board . At the conclusion of the hearing , the parties
waived oral argument . Briefs have been received from the General Counsel and
the joint Respondents , which have been duly considered?
Upon the entire record and my observation of the witnesses , including their
demeanor while on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Houston Chronicle Publishing Company, herein called the Chronicle, a corpora-
tion duly organized and existing under the laws of the State of Texas, maintains
its principal office and place of business in Houston, Texas, where it is engaged
in the publication of daily newspapers. During the annual period material to
this proceeding, and in the course and conduct of its publishing operations, the
Chronicle held membership in, or subscribed to, various interstate news services,
including, but not limited to, the Associated Press, United Press, United Press
International, the New York Times, and the Chicago Tribune, and derived gross
revenues from said publishing operations in excess of $1 million. During this
same period, revenue derived from direct interstate circulation exceeded $50,000.
The complaint alleges and I find that the Chronicle is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act .3
H. THE LABOR ORGANIZATION INVOLVED
Local 87 and the ITU are labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The salient facts giving rise to this litigation are not essentially in dispute and
I find them to be as follows:
Don P . Bosworth , the Charging Party, is a member of Local 87 and is employed
in the composing room of the Chronicle . In addition to engaging in this work,
Bosworth also owns and publishes a community newspaper known as the Aldine
Jet News. This journal is printed within the territorial jurisdiction of Local 87
in a shop which does not employ members of that labor organization. Early in,
1965, the executive committee of Local 87 apparently became aware of Bosworth's
publishing venture and , after learning that his newspaper was printed by nonunion
employees , it concluded that Bosworth was not entitled to retain his job priority in
the Chronicle 's composing room pursuant to the general laws of the ITU. `Where-
upon , by letter dated March 10, 1965 , which Bosworth received on March 12, the
1 The complaint in Case No. 23-CB-620, which issued on October 15, 1965, is based
upon a charge and an amended charge filed on September 13 and October 8, 1965,
respectively. The complaint in Case No. 23-CB-645 issued on December 30, 1965, and
is based on a charge which was tiled on December 10, 1965. By order dated December 30,
1965 , these cases were duly consolidated.
9At the hearing, the General Counsel filed with me a motion for judgment on the
pleadings and/or for summary judgment . Ruling thereon was reserved . The motion is
disposed of in accordance with my findings and conclusions herein.
8 See Houston Typographical Union No. 87 , ITU, AFL-CIO (Houston Chronicle Pub-
lishing Company, et al.), 145 NLRB 1657.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee advised him that his name had been removed from the Local's job
priority board and that "He is fired and barred and can't work nowhere." When
Bosworth received this intelligence , he telephoned the Chronicle to inquire into his
employment status and was informed by that company that it would advise hum
by mail. On the same date, the Chronicle sent a letter to Leroy Williams, secretary-
treasurer of Local 87, in which it drew attention to certain paragraphs of the
collective-bargaining agreement between the parties and expressed the opinion that
the committee's action was in derogation of the agreement. The letter concluded
by stating that "We [the Chronicle] consider the Union's action a violation of the
contract and should we acquiesce we would be subject to possible penalties. Under
the circumstances we have no choice but to advise Mr. Bosworth that as far as
the Chronicle is concerned, he may report for work and will be hired on the basis
of his established priority if work is available." Bosworth was immediately
appraised of the Chronicle' s decision.
On March 24, the executive committee filed charges against Bosworth pursuant
to its intraunion procedures which accused him of utilizing employees who were
not members of Local 87 in the publication of the Aldine Jet News, and the
charges were discussed at a regular meeting on April 4. According to Bosworth's
undenied testimony, he believed that Local 87 had departed from the strictures of
its organic laws by ordering the removal of his name from the priority board and
he was anxious to learn whether the Local's executive committee would report to
the rank-and-file membership at the regular meeting in April that his job priority
would not be affected. When the committee failed to comment on Bosworth's
job status at this meeting, Bosworth filed an unfair labor practice charge with the
National Labor Relations Board on April 7 in Case No. 23-CB-600. This charge
alleged that Local 87 attempted to cause the Chronicle to terminate his employ-
ment in violation of Section 8(b)(2) of the Act. A complaint based upon this
charge was issued by the Regional Director of the Board on June 21. The com-
plaining papers, as amended, averred that Local 87 sought to discriminate against
Bosworth by forcing the Chronicle to place his name at the bottom of the seniority
list because he edited and published a neighborhood newspaper with nonunion
help. A trial on this cause was set for July 22 at a designated time and place.
Local 87 filed a timely response to the complaint. When the executive committee
received the complaint, it adopted a motion to appropriate the sum of $1,000 to
defend the action.
On July 20, Bosworth visited the Board's Regional Office in Houston, Texas,
and, with the concurrence of the Regional Director, withdrew these charges, as a
result of which the complaint was dropped prior to hearing. According to Bos-
worth's uncontroverted testimony, the executive committee had previously pre-
ferred charges against him for conduct unbecoming a member due to his publica-
tion of the Aldine Jet News and Bosworth had been found innocent of any
misconduct Bosworth had fully intended to prosecute the unfair labor practice
charges in Case No. 23-CB-600 but he decided to withdraw them because, in his
words, he had a "feeling in my heart that the officialdom of this Union had
learned their lesson and felt they had violated a law and feeling that they wouldn't
violate the laws again against me or any individual member."
Events abided until September 12. At a membership meeting on that date, the
secretary-treasurer of the Local reported that he had received a bill from the
Local's attorney in the sum of $100 to defray the cost of defending the charges
which Bosworth had filed in Case No. 23-CB-600. At this juncture, a member
named Ted Devers took the floor and moved that Bosworth be "fined." Devers'
motion was ruled out of order by the Local's president, McCormick, and vice
president, Ashy then moved that Bosworth "be assessed a hundred dollars for the
purpose of reimbursing" the attorney. The motion was carried. On September 13,
Bosworth filed an unfair labor practice charge with the Board against Local 87
in which he again alleged that the Local attempted to discriminate against him in
violation of Section 8(b) (2) of the Act by seeking to cause the Chronicle to
terminate his employment. The charge additionally averred that the Local had
offended the provisions of Section 8(b)(1)(A) by the assessment of $100 for
attorney fees incurred in the defense of the charges which Bosworth had previously
filed. On September 14, Bosworth satisfied the assessment and obtained a receipt
from Local 87 which indicated that the money so exacted constituted the payment
of "fines."
HOUSTON TYPOGRAPHICAL UNION NO. 87 1021
After payirig the assessment or fine, Bosworth appealed Local 87's action to the
ITU. By decision dated December 6, the- ITU rejected the appeal. This was
followed by the filing of additional charges by Bosworth against the ITU on
December 10,• alleging that this labor organization had also violated Section
8(b)(1)(A). A complaint based upon these charges was issued against the ITU
on December 30. These, then, are the controlling facts.
Relying primarily upon.the Board's decision in Local 138, International Union
of Operating Engineers, AFL-CIO (Charles S. Skura),4 and related cases .5 the
General Counsel contends that a union's assessment of its members for legal costs
incurred in defending charges filed by those members with the Board has the same
restraining and coercive effect upon them within the contemplation of Section
8(b)(1)(A) as the imposition of a union fine for filing charges under the Act.
He therefore argues that the difference in impact, if any, is in degree rather than
kind. The Respondents do not seriously quarrel with this thesis. However, they
assert that this litigation is more appropriately governed by the principles enunci-
ated by the Board in Tawas Tube Products, Inc.,6 and United Steelworkers of
America, Local No. 4028, AFL-CIO (Pittsburgh-Des Moines Steel Company) 7
because Bosworth's impelling motive in filing the charges in Case No. 23-CB-600
was to harass the Respondents and destroy their representative status at the
Chronicle.
In Skura, the Board announced:
There can be no doubt that a [union] fine is by nature coercive, (citations
omitted) and that the imposition of a fine by a labor organization upon a
member who files chaiges with the Board does restrain and coerce that mem-
ber in the exercise of his right to file charges. The union's conduct is no
less coercive where the filing of the charge is alleged to be in conflict with
an internal union rule or policy and the fine is imposed allegedly to enforce
that internal policy. Thus, we find that the fine imposed, upon' Skura herein
is clear conflict with Section 8 (b) (1) (A) of that Section . . . .8
The Board pointed out that the proviso to Section 8(b)(1)(A) which permits
a union "to prescribe its own rules with respect to the acquisition or retention of
membeYship" has no application to a situation where a union seeks to regulate
the exercise of the right to file charges by the imposition of a fine.
In Tawas and United Steelworkers the Board carved but a fundamental distinc-
tion between union disciplinary action directed at the filing of charges to right an
asserted statutory wrong, as in Skurk, and disciplinary measures aimed at defend-
ing itself from conduct which seeks to undermine its very existence. Thus, in
United Steelworkers, the Board dismissed charges alleging a violation of Section
8(b)'(1.) (A) where the labor organization involved had 'disciplined a member who.
had filed a petition seeking ail election to withdraw the authority to enter into a
union shop agreement from that union.
In theit brief, the Respondents seemingly argue that a synthesis of Skura and
Tawas supports the conclusion that, a union may lawfully fine or assess a member
for legal expenses incurred in defending unfair labor practice charges filed by him
if those charges are designed to Uhdefniine the Union's very existence. Even were
1 to assume that this represents a correct statement of the law, I am not convinced
by the evidence that Bosworth filed the charges with this intention. Bosworth's
testimony is uhcontroverted that he filed the chaiges in Case No. 23-CB=600 when
he learned that Local 87's executive committee had taken action to remove his
name from the priority board, an act which would most certainly have affected
his job interests. The chaiges alleged that Local 87 had thereby attempted to
cause the Chronicle to discriminate against Bosworth. When questioned as to
why he withdrew the charges, Bosworth testified without cont'radictibh' that he did
so ifi the belief 'that the executive committee liad recognized the illegality_ of its
ways and that "they wouldn't violate the laws again against me of any individual
4 148 NLRB 679.
5 Set! H. B. Roberts, 11uelnekii Manager of Local 925, 'et al (1-Vellncan-Lord 7dnry1hcCYen9,
Inc.), 148 NLRTi '6't4, enfd . 350 F. 2d 427 'iiiooil, Wire and Metal Lather.'
1nterndtiohal Union , Local No 038, AFL-•CI0' (Phillip A. Contreiia, Jr.), 156 NLRB 997.
s 151 NLRB '46.
7 154 NLRB 692. -
sAt p. 682.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member." Bosworth's acts and statements hardly portray a member bent upon
Local 47's destruction, and I conclude that this was not his purpose in filing the
charges.9
In sum, I conclude that Bosworth filed the charges in Case No. 23-CB-600
because Local 87 attempted to force the Chronicle to place his name at the bottom
of the seniority list for the reason that he edited and published a neighborhood
newspaper with nonunion employees. Accordingly, I conclude that Respondents'
imposition of a fine or assessment upon Bosworth to defray legal costs in defending
the charges restrained and coerced him in the exercise of his right to file charges
under the Act, and that the Respondents thereby violated Section 8(b)(1)(A).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Employer described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices in
violation of Section 8(b) (1) (A) of the Act, I will recommend that they cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act. Having found that Respondents have unlawfully extracted a
fine or assessment in the amount of $100 from Don P . Bosworth , I shall order that
the Respondents rescind said fine or assessment and reimburse Bosworth in that
amount.
Upon the basis of the foregoing findings of fact and conclusions , and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Houston Typographical Union, No. 87, International Typographical Union,
AFL-CIO,-and International Typographical Union, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By imposing a fine or assessment upon Don P. Bosworth to reimburse their
attorneys for services rendered in connection with defending unfair labor practice
charges filed against them under the Act by Bosworth, the Respondents have
restrained and coerced employees in the exercise of rights guaranteed in Section 7
of the Act and thereby violated Section 8(b)(1)(A).
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, I recommend that Respondent, Houston Typographical Union No. 87,
International Typographical Union, AFL-CIO, and Respondent, International
Typographical Union, AFL-CIO, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Fining or assessing employees for reimbursement of attorney's fees incurred
in connection with defending unfair labor practice charges filed under the. Act by
employees against Respondents. -
9In their amended answer , the Respondents assert that Bosworth filed the charges "in
connection with a preconceived plan on his part and on the part of the employees represented
by Respondent Union employed by the Chronicle Publishing Company In accordance with
an antiunion attitude engendered by such employer to encourage such employees to dis-
regard their obligations as a member of the Respondent Union ... .. This assertion is
unsupported by record proof.
HOUSTON TYPOGRAPHICAL UNION NO. 87 1023
(b) In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find is necessary to effectuate
the policies of the Act:
(a) Rescind the fine or assessment unlawfully imposed upon Don P. Bosworth,
and reimburse him for the amount of said fine or assessment.
(b) Post at their offices, in conspicuous places, and at all other places where
notices to members aie customarily posted, copies of the attached notice marked
"Appendix." 10 Copies' of this notice, to be furnished by the Regional Director
for Region 23, shall, after being duly signed by official representatives of Respond-
ents, be posted immediately upon receipt thereof, and be maintained for a period
of 60 consecutive days thereafter. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in writing, within 20 days
from the date of receipt of this Decision, what steps the Respondents have taken
to comply therewith.ii
iU In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "'the Recommended Order of a
Trial Examiner" In the notice . In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF HOUSTON TYPOGRAPHICAL UNION No. 87, INTERNA-
NATIONAL TYPOGRAPHICAL UNION, AFL-CIO, AND INTERNATIONAL TYPOGRAPHI-
CAL UNION, AFL-CIO
Pursuant to National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, as amended , we hereby notify you that:
WE WILL NOT fine or assess employees for reimbursement of attorney's fees
incurred in connection with defending unfair labor practice charges filed against
us under the National Labor Relations Act, as amended , by employees.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the Act.
WE WILL rescind the fine or assessment unlawfully imposed upon Don P.
Bosworth , and WE WILL reimburse him for the amount of said fine or assessment.
HOUSTON TYPOGRAPHICAL UNION No. 87, INTERNATIONAL
TYPOGRAPHICAL UNION, AFL-CIO,
Labor Organization.
Dated------- ------------ By-------------------------------------------
(Representative ) ( Title)
INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If members have any question concerning this notice or compliance with its
provisions , th;,y may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No.
228-0611.