Independent Printing Co. Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1973

206 N.L.R.B. 170 (N.L.R.B. 1973)

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent Printing Company, Inc., A Wholly Owned
- Subsidiary of Automatic Data Processing, Inc. and
Sydney B. Brown . Case 29-CA-2875
September 25, 1973
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On April 30,1973, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER FANNING, concurring:
I concur in the result since, apart from any other
consideration, I find that the General Counsel has not
proved by a preponderance of the evidence that the
Respondent was discriminatorily motivated.
t The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
the basis of a charge and an amended charge filed re-
spectively on May 12 and 18, 1972,' by Sydney B. Brown,
All dates hereinafter refer to 1972 unless otherwise indicated.
an individual, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 29
(Brooklyn, New York), issued a complaint dated October
16. The complaint alleges in substance that Independent
Printing Company, Inc., a Wholly Owned Subsidiary of
Automatic Data Processing, Inc.,2 referred to herein as the
Respondent or the Company, transferred Brown to another
location, causing loss of his position as shop steward and
loss of overtime work, and discharged and failed and re-
fused to reinstate him, because of his activities on behalf of
Local 966, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, herein called the Union,
and other protected concerted activities, in violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act. In
its answer, duly filed, the Respondent admits some of the
factual allegations of the complaint, but denies the commis-
sion of the alleged unfair labor practices.
•,Pursuant to notice, a hearing was held before an Admin-
istrative Law Judge at Brooklyn, New York, on December
5, 6, and 7, 1972, and January 8, 9, 10, 18, and 19, 1973. All
the parties appeared at the hearing and were afforded full
opportunity to be heard, to present evidence, and to exam-
ine and cross-examine witnesses.3 Subsequent to the hear-
ing, and pursuant to extensions of time granted at the
request of the parties, the General Counsel and the Respon-
dent filed briefs on or about March 19, 1973, which have
been fully considered.4
Upon the entire record in this proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, which is a corporation duly organized
under, and existing by virtue of, the laws of the State of New
York, maintains its principal office and place of business at
215 East 42nd Street in New York City . It also maintains
various other places of business in the State of New York,
including a plant in Long Island City, Queens , New York,
referred to herein as the Long Island City plant, and a
branch at 215 Madison Avenue in New York City, referred
to herein as the Madison Avenue branch, where it is, and
has been at all times material herein , engaged in providing
printing and duplication work service and related services.
The Respondent , in the course and conduct of its business
operations , annually derives gross revenues therefrom in
excess of $500,000, and it purchases papers, inks, and other
Z The name appears as corrected at the hearing.
3 Counsel for the Union entered his appearance as counsel for certain
individuals connected with the Union who had been subpenaed as witnesses
by the Respondent. As testimony presented by the General Counsel and the
Respondent related to the Union's role in the events here in issue, counsel
for the Union was permitted, over the objections of the General Counsel, to
examine witnesses and to introduce into evidence relevant documentary
material.
4 The Respondent also filed, on March 7, 1973, a motion to correct tran-
script, which points out that the record fails to show that the Union's Exh.
5 was admitted into evidence, and lists a number of transcript corrections.
The motion, which is unopposed, is hereby granted; the record is accordingly
corrected to show that Union Exh. 5, which is in the exhibit folder, was
admitted into evidence.
206 NLRB No. 34
INDEPENDENT PRINTING COMPANY, INC.
goods and materials valued in excess of $50,000 which it
causes to be transported and delivered to its places of busi-
ness in New York State directly from States other than the
State of New York_ The complaint alleges, the Respondent
in its answer admits, and I find that the Respondent is, and
at all times material herein has been, an employer engaged
in commerce and in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
I find, as the complaint alleges and the Respondent in its
answer admits, that Local 966, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers, is,
and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that the Union is the collective-
bargaining representative of the Respondent's employees at
its various locations; that the current collective-bargaining
contract, effective from January 16, 1972, to January 15,
1975, provides for grievance and arbitration procedures;
that Brown, prior to about April 19, was employed at the
Long Island City plant, was the shop steward at that plant,
and served on the Union's negotiating committee between
about November 1, 1971, and March 31, 1972; that Brown
protested the Respondent's failure and refusal, between
about April 15 and 18, to grant him overtime work to which
he was entitled under the terms of the contract and by virtue
of his seniority; that on or about April 19 the Respondent
transferred Brown to its Madison Avenue branch, as a re-
sult of which he lost his shop steward position and was
assigned less overtime work than he would have performed
at Long Island City; that on or about May 12 the Respon-
dent discharged Brown and has since then failed and re-
fused to reinstate him; that the Respondent transferred and
discharged Brown because of his protest about overtime
work and his Union and other protected concerted activi-
ties; and that the Respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and discriminated
in regard to the hire and tenure and terms and conditions
of employment of its employees, in violation of Section
8(a)(l) and (3) of the Act .5
The Respondent in its answer admits many of the factual
allegations of the complaint, including the allegation that
Mel Heiner,6 Michael Heller, Albert Adinolfi, John Phelan,7
s The charge alleges that Brown was transferred from one location to
another because of his membership in and activities on behalf of the Union.
The amended charge alleges that Brown was transferred to a different loca-
tion and less desirable working conditions, and later discharged , because of
his activities as shop steward for the Union, other protected activities, and
attempting to enforce the collective-bargaining contract . There are no allega-
tions in the charges or complaint of discrimination against Brown by the
Union.
6 Designated in the record also as Hiner.
i Designated in the record also as Phalen.
171
and Paul Amadeo were, at all times material herein, agents
of the Respondent, acting on, its behalf, and supervisors
within the meaning of Section 2(11) of the Act. The
Respondent's answer denies the unfair labor practice allega-
tions of the complaint, and avers that specified provisions
of its collective-bargaining contract with the Union cover
the issues raised by the alleged discriminatory conduct; that
Brown, through the Umon, filed an official grievance on or
about April21 regarding his transfer, and on or about May
15 regarding his discharge; that during the period from May
15 to May 31, the Respondent discussed these grievances at
meetings with the Union and Brown but failed to reach an
amicable solution ; that on or about May 31 the Union, on
behalf of Brown, invoked the arbitration clause of the col-
lective-bargaining contract, and an arbitrator, acting under
the rules and regulations of the Federal Mediation and
Conciliation Service, held a hearing on the issues raised by
Brown's grievances and, on or about September 8, issued a
final and binding opinion and award. The Respondent in its
answer also protests the issuance of the complaint on Octo-
ber 16, after it had sent notice to the Regional Office of the
arbitrator's opinion and award.
In response to the Respondent's defenses based on the
arbitration proceeding, the General Counsel contended
herein that Brown was not present at the arbitration hear-
ing; that he had not advised the Union he wanted to go to
arbitration on his grievances because he was convinced that
the Union would not fairly represent him and that he would
not get a fair hearing; and that the hearing and award did
not resolve the issues whether the Respondent transferred
and later discharged Brown for reasons violative of the Act s
S The complaint issued several months after the charges were filed , and the
hearing herein , originally scheduled for November 13, was postponed until
December 5. Nevertheless it was not until the Friday afternoon before the
hearing opened on Tuesday, December 5, that the Respondent received a
subpena from the General Counsel calling for voluminous records and docu-
ments The Respondent on Monday filed at the Regional Office a Petition
to Revoke Subpoena . The General Counsel stated at the hearing that she
discussed with Respondent's counsel the petition and the material called for
in the subpena "late yesterday evening," but that no action had been taken
on the petition, which was referred to the Administrative Law Judge. The
petition was denied on the ground that the material called for in the subpena
appeared to be relevant . Counsel for the Respondent had brought in none
of this material. Counsel for the Union, however, had brought in and made
available to the General Counsel its complete file of Respondent-Union
communications . In addition , Brown, as a shop steward and member of the
Union's negotiating committee , had an extensive file of documents relating
to Respondent-Union relations which he turned over to the General Counsel.
Counsel for the Respondent maintained throughout the hearing that the
subpena served 1-1/2 working days before the hearing was unreasonably late,
that compliance would have been unduly burdensome because the records
involved were not maintained in a central file but were scattered among the
Respondent's several operations in the area , that its records would be made
available for inspection any time a Board agent came to the Respondent's
office to examine them , and that it would produce during the hearing, or
stipulate as to, specific relevant material requested by the General Counsel.
The General Counsel agreed to proceed to the extent possible on the basis
of the material that was available . In the course of the hearing the General
Counsel made a number of motions for preclusion as to certain documents
and evidence presented by the Respondent, which were denied. Such preclu-
sion motions were renewed in the General Counsel's brief. They are, in the
light of all the relevant circumstances , hereby denied. See Little Rock Down-
towner, 145 NLRB 1286, fn. 69.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Transfer of Brown
1. Brown's employment and union history
Brown was first employed by the Respondent in Decem-
ber 1968 at an operation at East 44th Street, New York City,
that was later moved to Long Island City. At the Long
Island City plant, which was the Respondent's principal
production facility, Brown, who was a graduate of the New
York School of Printing, did press and camera work in the
small press department, operating certain of the many types
of press and camera equipment in use at the Respondent's
various locations. Brown supplemented his earnings by
doing considerable overtime work. He testified that supervi-
sors had complimented his performance and work habits,
and the Respondent's managerial personnel stated repeat-
edly at the hearing that Brown was a' good and conscien-
tious worker.
The Union, which was organized shortly after Brown
went to work for the Respondent, notified the Respondent
in writing on January 14, 1971, that Brown was one of two
shop stewards at the Long Island City plant, and, on April
28, 1971, that he was the only shop steward there. Other
shop stewards functioned at other locations of the Respon-
dent, a few at more than one location as some of the
Respondent's retail operations had very small employee
complements.
Brown testified that in about April 1971, when he was one
of two shop stewards at Long Island City, he received a
warning ticket for leaving his work station without permis-
sion to discuss grievances; that the workers were upset
about this so he posted a notice calling a meeting about it;
that the Respondent took down the notice and complained
to the Union as there was a rule that union notices were to
be posted only after being shown to a supervisor; that the
Union in turn complained to Brown that he was acting
contrary to both the Union bylaws and the collective-bar-
gaining contract, and suggested he should step down as
shop steward; and that the upshot of the entire matter was
that the other shop steward resigned leaving Brown as the
only one at Long Island City.9 At another point Brown
testified that the Union took the position he was no longer
shop steward, then arranged a meeting with the Respondent
at which Kapilow, president of the Union, "told the compa-
ny that I was the best shop steward in the entire union."
Agathos, secretary-treasurer of the Union, and Kapilow
both denied ever asking Brown to step down as shop stew-
ard. They also testified that at the meeting with the Respon-
dent about Brown's activities as shop steward, they
maintained, and the Respondent's representatives consent-
ed that Brown should be given reasonable time for leaving
his work station in connection with his shop steward duties
without getting warning slips, that the warning slip that had
been issued to Brown should be destroyed, and that warning
slips issued to any employees for minor offenses were to be
retained in the files for only 6 months. While Browndenied
that there was any discussion about removal or destruction
9 A letter from the Respondent to the Union dated March 18, 1971 , placed
in evidence by the General Counsel, requests that the number of shop stew-
ards at Long Island City be reduced to one.
of his warning slip, the evidence, including his own testimo-
ny, shows that he was permitted after this meeting to handle
union matters on working time.10
In December 1971 the Respondent's imposition of a 1-
day suspension on 23 employees for what it claimed was a
concerted refusal to work overtime was submitted to arbi-
tration. The arbitrator in that proceeding, Sugarman, in an
award issued in April 1972, revoked the suspension as to 19,
whom the Respondent thereupon reimbursed for the day,
but upheld the suspension as to the remaining 4, one of
whom was Brown. Nevertheless, both the Respondent and
the Union conceded at the hearing herein that Brown was
an effective shop steward.
2. Brown's participation in 1972
contract negotiations
The Union notified the Respondent in writing on about
December 17,197 1, that Brown was on the Union's employ-
ee negotiating committee, which had about 10 members. At
the opening of negotiations on the parties' current contract,
Kapilow persuaded the Respondent to negotiate on the ba-
sis of a form contract submitted by the Union rather than
on the basis of the prior contract as the Respondent urged.
Kapilow and other union representatives testified that, as
was union practice, they discussed in caucus the proposals
on the bargaining table, and then Kapilow, as chief spokes-
man, presented the Union's position and carried on bar-
gaining table discussions with the Respondent. They also
testified that a member of the employee committee might be
designated to speak or to answer a question put to Kapilow
by the Respondent regarding a matter with which the mem-
ber was more familiar than Kapilow, and that Brown to the
extent he was so designated participated competently in the
negotiations. Kapilow also maintained that, while Brown
was a valuable committee member, Brown's role in the neg-
otiations was less militant than that of other committee
members. Heller, assistant manager of the Long Island City
plant and one of the company negotiators, named Shanz
and Gallini in his testimony as more outspoken committee
members than Brown.
Brown maintained, however, that he was the spokesman
in regard to many of the contract provisions, that "I spoke
about transfer. I spoke about seniority. I spoke about shop
steward, about the length of the contract, and many other
things." When asked what he said about transfer, however,
he described the positions he took, then testified that "I said
10 The current collective-bargaining contract provides, man article entitled
"SHOP STEWARD," as follows:
Section 1. The Company recognizes the right of the Union to desig-
nate Shop Stewards who shall be recognized as the representative of the
Union for all matters arising under this Agreement to the extent permit-
ted herein. The Union shall advise the Company as to the identity of the
Stewards and the Company agrees that the Stewards shall be free to
conduct their duty as such, with the understanding that such duty-will
not interfere with normal production or the conduct of the business, and
the Steward shall be expected to do his usual work and prior to his
leaving his assigned duties shall notify his supervisor. However, reason-
able time spent in carrying out the grievance procedure, agreed upon
here, will be considered as being on Company's time.
Section 2. The Shop Steward shall be accorded superseniority in that
he shall be the last person laid off and the first one rehired upon resump-
tion of work.
INDEPENDENT PRINTING COMPANY, INC. 173'
that in the caucus, yes, I would think I said that at negotia-
tions.... I would not -I don't think I said all of that across
the table, no. In caucus." At a later point he explained that
he was the most outspoken member of the committee be-
cause "the other people weren't saying anything. So, if I said
six words, I was the most outspoken because I said six and
other people said nill." Brown testified when recalled in
rebuttal that he was more outspoken in negotiations than
any othericommittee member, that he got into arguments at
the bargaining table on a number of subjects, that Kapilow
criticized him at the bargaining table for the extent to which
he argued about various provisions, that he sometimes pre-
sented arguments when the union representatives were in-
clined to accept whatever the Respondent said, that at times
he argued in favor of the Respondent's position, and that
the Respondent's representatives at the negotiations ad-
dressed questions to him directly.
There were three contract ratification votes. The first was
for rejection as recommended by Kapilow and the commit-
tee. Thereafter an arbitrator, Hacker, was called into the
negotiations. The testimony of both Heller for the Respon-
dent and Kapilow for the Union indicates that Hacker at
one point told the Respondent the Union might strike if the
Respondent did not sweeten its offer; that the Respondent
did improve its offer conditioned upon Hacker obtaining a
union guarantee that its negotiators would unanimously
recommend ratification; that Kapilow polled the committee
and all agreed; that when Hacker left to inform the Respon-
dent of this, committee member Gallini changed his mind
but said he would abstain from voting on the matter; that
Kapilow called Hacker back and told him the committee
recommendation would be with one abstention; and that
the membership thereafter rejected the second proposal.
According to Brown, Kapilow recommended acceptance at
the vote on the second proposal, while Brown, because he
objected to provisions giving the Union the right to desig-
nate stewards, the no-strike clause, and the arbitration pro-
vision, was the only one of the union negotiators to
advocate rejection, and it was rejected. He also testified that
Kapilow told the Respondent and Hacker that the Union
recommended acceptance as promised Hacker, but Brown
made the difference because of what he told the workers.
Following the second rejection vote, a company official
delivered to the Union a communication signed by the com-
pany president. This communication, placed in evidence by
the General Counsel, stated in part that the Respondent had
proof "THAT CERTAIN MEMBERS OF BARGAIN-
ING COMMITTEE URGED SUCH REJECTION... .
THAT FINAL OFFER IN EXCESS OF FEDERAL
GUIDELINES WAS MADE ONLY AFTER BINDING
COMMITMENT THAT COMMITTEE WOULD REC-
OMMEND. THIS COMMITMENT WAS MADE AND
SIGNED IN PRESENCE OF FEDERAL MEDIATOR
HACKER"; and threatened Board and other procedures
the Respondent might take against the Union and its offi-
cers "ALONG WITH THOSE COMMITTEE MEMBERS
ACTUALLY INVOLVED." A copy was sent to Hacker.
Brown testified that Kapilow read this communication at
a meeting, that someone from the floor then polled the
committee members on how they voted, and that "quite a
lot of them said they voted no." Brown also testified that in
the third ratification vote, which he thought was held on
about February 11, he had no role other than to participate
in the vote, which was overwhelmingly for ratification. The
record shows that the third vote, on the same proposal that
was rejected in the second vote, was by written ballot as
many employees had not participated in the earlier voice
votes. The written ballot, placed in evidence by the General
Counsel, contains a summary of the contract changes, and
states that Kapilow and seven-named committee members
recommended acceptance, that Brown abstained, and that
Gallini was absent. Kapilow sent Brown a copy of a union
notice dated February 11, placed in evidence by the General
Counsel, which announced that the new contract had been
ratified effective to January 16, including the wage increase
provisions.
3. The Respondent's transfer policies
The current collective-bargaining contract provides, as
did the preceding contract, for the Respondent's right to
make transfers.ll The record shows that the Respondent
frequently transferred employees from operation to opera-
tion as production needs required, at times on little or no
advance notice; that it has at times transferred employees
who were shop stewards; and that on occasion it transferred
or promoted employees, including shop stewards, to nonun-
it or supervisory positions.
Adinolfi, who at the time of the events herein was in
charge of the Respondent's retail branches, some of which
were combined with production facilities, testified that he
had hired Rugiero "Sonny" McLean 12 from a management
position with a competitor on the promise of a job as a
counter salesman. As no such job was then available, Mc-
Lean agreed to work at the Madison Avenue branch, divid-
ing his time between counter sales work and operating an
A. B. Dick press located in a separate room in back of the
salesroom. Printing work brought by customers to that loca-
tion which McLean was unable to perform was sent to other
locations of the Respondent. McLean, however, protested,
at times the Respondent's failure to carry out its commit-
ment to him of a counter salesmanjob, and Adinolfi at such
times called Heller and others in an effort to find a man at
another location who could replace McLean on the press
work. In requesting such a replacement, Adinolfi specified
that he had to have a high school education, be articulate
as he would be called on occasionally to speak to customers,
be responsible in the performance of his duties as he would
work in a separate room with a minimum of supervision
because the manager and assistant manager were retail sales
people and not pressmen, and be reliable in attendance as
there would be no back-up employee at this location.13
l'The "Management Prerogatives" article of the current contract lists
transfer as one of the exclusive rights and powers of the Company, and
provides further: "The Company's right is also recognized to transfer em-
ployees from operation to operation or department to department or compa-
ny to company as may be required by the necessities of the Company's
business." The Respondent at the time of the hearing had three manufactur-
ing and about seven retail facilities.
2 Brown had identified this individual only as "Sonny," and he was thus
generally referred to at the hearing.
13 There were approximately 4 employees at this location, about 45 at the
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, April 17, McLean again protested the lack
of a replacement . Adinolfi testified that he had no employee
in a retail branch qualified for transfer to a job with little
or no supervision ; that as Heller did most of the hiring of
pressmen at the Long Island City plant, he called there on
Monday and insisted that Heller select a man to be transfer-
red; and that he called again on Tuesday and told Heller the
situation was critical . Heller reviewed the available men
with Heiner , foreman of the small press department at Long
Island City. They eliminated from consideration the most
highly skilled men who could do work Brown was not able
to do and were too valuable to the plant to transfer, and
others who did not 'meet the qualifications prescribed by
Adinolfi, and finally narrowed the choice to Brown who, as
Heiner testified, had all the qualities sought.
4. Brown's transfer on April 18
Employees of the Respondent did overtime work before
and after regular working hours or at noon . Brown had
worked overtime frequently from 4 :30 to 7: 30 p.m. Over-
time work at Long Island City was reduced , however, when
the Respondent set up a night shift at that plant early in
April. On April 18 Brown was told by Heiner to go home
at 4:30 as he was not to work overtime that evening. Brown
protested that a foreman sent him home without overtime
work the evening before whereas a new man was given
overtime work . According to Brown's testimony, Heiner
said the foreman was not supposed to send Brown home the
previous evening, he agreed with Brown that this was
wrong, he told Brown to work that evening , and Brown did.
Later that evening Heiner told Brown he was transferred
to 519 Madison Avenue and should report there in the
morning . Brown protested to Heiner that the Respondent
could not transfer a shop steward , but Heiner maintained,
as Brown testified, that it was a^ management decision.
Brown requested , and Heiner granted , permission to tele-
phone the Union , but the individuals Brown was trying to
reach were not there so he left a message for them. Brown
also testified that a supervisor-trainee , whom he identified
only as Jack, told him that operating the A. B. Dick press
in use at the new job would be a "ball." Brown complained
to Jack and Heiner , however, that he could not run the
A. B. Dick press . He had been running a more complicated
Multilith 1250 press at the Long Island City plant, which
also had an A. B. Dick press , but he had had very little
experience on the A. B. Dick.
Brown reported to work at Madison Avenue the next
morning . He met Phelan , the manager, and Adinolfi, who
was there that morning and greeted Brown . Brown told
Adinolfi he was unfamiliar with the equipment at that loca-
tion and asked how the Respondent could transfer him.
Adinolfi replied that he had asked Heller for a replacement
for McLean, that he did not know until the previous evening
who would be selected for the transfer , that Brown was
intelligent and would learn the job and McLean had been
instructed to train him , and that working at a small branch
had advantages as the work was varied and the job present-
Long Island City plant.
ed opportunities to learn other phases of the Respondent's
operations . When Brown objected to the lack of overtime
work at this operation, Adinolfi pointed out that there
would be some overtime and whatever there was would be
assigned to Brown . Adinolfi finally told Brown, who insist-
ed this was a demotion , that he could call the Union, which
Brown said he would do.
Brown testified that Agathos, secretary-treasurer of the
Union, called him , in response to a message Brown left at
the union office ; that in their discussion of the transfer, he
told Brown to read the management rights clause of the
contract ; and that Brown replied he knew it permitted
transfers but thought it did not cover transfer of a shop
steward . Brown also testified that he reminded Agathos that
he had asked about the transfer of stewards during the
contract negotiations , and that Agathos told him then that
transfer of a shop steward would never happen . At another
point Brown testified that Agathos also said that he would
not permit it. At the conclusion of their telephone conversa-
tion about the transfer , Agathos promised to take the matter
up with Kapilow and the Respondent . Agathos called
Brown again in a day or two . Brown testified that Agathos
said he had spoken to the Respondent , which maintained it
would stick with the transfer as it had a contract right to do;
that "I again agreed with him , yes, about the contractual
right, but I again pointed out to him about the fact that I
was the shop steward there . I said the shop doesn't have a
shop steward . . . if I was transferred.... Then I inquired
of him-I said that should I file a grievance-he didn't even
know if that was a wise thing to do ." When the General
Counsel, who did not hear his answer , asked him to repeat
it, he replied, "I inquired of him what was my status as far
as being the shop steward . . . he said I was no longer shop
steward." Brown also testified that he asked Agathos why
he could not be a shop steward for another location as
others were, that Agathos said he would take it up with
Kapilow, and that he was never told he could do so.
Asked by the General Counsel at one point if the Union
ever attempted to cause him to lose his shop steward posi-
tion, Brown replied that it did at least once in April 1971 in
the incident that culminated in his becoming the sole shop
steward at Long Island City. At another point Brown testi-
fied that the Union took the position he was no longer shop
steward, then arranged a meeting with the Respondent at
which Kapilow "told the company that I was the best shop
steward in the entire union ." Brown also maintained that
the Respondent was always trying to remove him as shop
steward, then admitted no company representative ever told
him the transfer removed him as steward , or asked him to
turn over his grievance forms and other steward materials
as occurred when he took over from his former shop steward
colleague. Asked whether, when Agathos became the union
business agent , he ever indicated that Brown should step
down as shop steward, Brown answered "No." At another
point, however, Brown testified that while Agathos told him
and Heller the arbitrator , Sugarman, was "nuts," Agathos
thereafter criticized Brown for having caused the Union to
spend over $800 on this matter, and indicated he would file
a report about it with the executive board , at which "I
laughed and said , do you know what double jeopardy is,
Mister . Here the Arbitrator indicted me already.....
INDEPENDENT PRINTING COMPANY, INC. 175
Brown testified further that Agathos at this point said he
thought Brown should step down as shop steward , and that
Brown replied that, if the workers wanted him to step down,
"then Mister, I have a decision to make and that will be
mine and only my decision."
Agathos maintained in his testimony that there is no pro-
vision in the Union 's bylaws for termination of shop stew-
ard status in the event of a transfer ; that there are shop
stewards in the Respondent 's operations who represent as
many as three or four locations ; and that Brown was not
terminated as a shop steward when he was transferred.
Agathos testified further that as Brown, shortly after his
transfer, was out sick for about a week, when a number of
employees at Long Island City were calling the Madison
Avenue branch about their grievances, an election was held
in order to have someone handle these grievances; that
Newton, an employee at Long Island City, was elected as
shop steward in Brown's place on the basis, to which New-
ton agreed , that he would step down when Brown returned;
and that Brown was so advised by telephone and voiced no
protest.,
Agathos also denied that he ever had any conversation
with Brown, during the contract negotiations or at any other
time, about the unlikelihood that a shop steward would ever
be transferred. Agathos generally did not attend the con-
tract negotiations . Brown admitted that he never asked Ka-
pilow, who was in charge of the negotiations , about transfer
of a shop steward. Kapilow testified that he did not remove
Brown as a shop steward, nor do or say anything to Brown
to indicate he hid done so. Kapilow also pointed out that
the Union apprised the Respondent in writing as to which
employees were shop stewards. There are letters in evidence
from Kapilow notiiyii L, the Respondent that Brown and
one other employee were shop stewards at Long Island City,
and later that Brown was the only shop steward there.
Brown admitted receiving copies of these letters but none
of a letter stating that he was no longer a shop steward, there
is no such letter in evidence, and witnesses for the Respon-
dent testified that they were never so notified. In addition,
Anne Sobel testified as a witness for the Respondent that
she had been transferred while a shop steward without loss
of shop steward status, and the record shows that this was
true of other shop stewards as well.
5. Brown's transfer grievance
Agathos did suggest to Brown that, as a grievance was
usually signed by a shop steward as well as the grievant,
Brown should have the shop steward who functioned at the
42nd Street and some other branches sign and file Brown's
grievance. Brown testified that he was out sick for about a
week shortly after his transfer; that during this period he
made out his own grievance and mailed a copy to the Re-
spondent; and that, as he did not trust the mail, he sent his
wife to deliver another copy the next morning, which she
gave to Heiner. Brown also testified that he telephoned
Heller from home on a Monday to check on whether Heller
received the grievance brought in by Brown's wife; that he
asked when he would get an answer; and that, when Heller
said on Wednesday, he told Heller, who had been informed
Brown was out sick, that, if it was warm on Wednesday and
he felt up to it, he would come in to get the answer. Brown
did go to the Long Island City plant on Wednesday about
noon. He was chatting with some employees lunching in a
park when Heller and one Maus passed on the way to lunch.
They and Brown waved to one another. Brown later went
to the plant locker room and chatted with employees there
while waiting for Heller . Brown testified that when he saw
Heller, Heller asked why Brown was there if he was sick,
and he reminded Heller of their earlier conversation about
picking up the answer to his grievance. Heller testified that
he assumed Brown was back at work but Brown said he was
still sick, and that he accused Brown of disrupting work at
the plant by visiting with the employees, and at Madison
Avenue by making "fake sick calls ." Brown said he had a
doctor's certificate but Heller refused to look at it.14
The grievance form made out by Brown, placed in evi-
dence by the General Counsel, is dated April 25; asserts, as
Nature of Grievance, "Discrimination by the Company be-
cause of my activities as the shop steward at L.I.C. branch
of the Co. Also being victimized because of the fact that I
was the most outspoken member on the negotiations com-
mittee which just concluded the contract on March 24th,
1972. Company unjustifiable transferred me from L.I.C. to
519 Madison Ave. for the sole purpose of removing me as
the Shop. Steward at L.I.C. branch of the Co. The company
continuously discriminate against me both as a person, and
the most senior pressman in my department etc. etc."; and
states, as Settlement Desired, "(1) To resind the transfer
order at once, and restore me to my former position at
L.I.C. (2) To stop all discrimination and the like against me
both as a worker, and the Shop Steward" [sic].
6. Discussions of Brown's
transfer grievance
Brown testified that Agathos called and asked him to
attend a meeting with the Respondent and the Union re-
garding his transfer grievance , and that such a meeting was
held about Thursday, May 4. According to Brown, the
Respondent's counsel , Glassman , at this meeting asserted
that Brown had previously been offered a promotion to an
office job but refused it, pointed out the contract provisions
permitting transfers , and named others who had been trans-
ferred. Heller testified that Glassman also stated that this
was a promotional opportunity to get into retail sales work.
Brown maintained, as he testified, that the Respondent
could transfer workers but not a shop steward. Brown also
testified that during the discussion Glassman asked what
was meant by the statement on the grievance that the Re-
spondent continuously discriminated against Brown "both
as a person, and the most senior pressman in my department
etc. etc."; that he did not give "any long drawn out explana-
tion" but Kapilow did, and then that Kapilow in fact asked
him to explain what he meant; that "My response was that
I didn't have to tell you nothing"; and that he refused again
when Kapilow asked Brown to explain it to him. Brown also
14 The certificate, placed in evidence by the General Counsel, is undated
and states that Brown had acute bronchitis , that he would be unable to work
from April 24 to 29, but that he could resume work on May 1, which was
a Monday
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Kapilow "thought" there was some question
about the right to transfer a shop steward but did not say
anything about it, and that, when they caucused, Kapilow
referred to the Respondent's right to transfer under the
contract, and said going to arbitration would therefore not
change it. While Brown denied Kapilow said anything at
this meeting about discrimination against Brown because he
was one of the best shop stewards, he admitted Kapilow
indicated this grievance would be taken to arbitration and
that such discrimination would be one of the grounds raised
by the Union at an arbitration proceeding.)
Brown also pointed to his loss in overtime pay. He testi-
fied that the Respondent replied that Brown was in a good
position to get whatever overtime work came up at Madison
Avenue as work would be performed there that had previ-
ously been sent to other locations for lack of a full-time
pressman, and that the establishment of a night shift at
Long Island City would eliminate or curtail overtime work
there.16 Glassman also argued, as Heller testified, that em-
ployees had no contract right to overtime, and that other
employee transfers had affected availability of overtime.
Brown admitted that Kapilow backed Brown strongly, in
caucus and in discussions with the Respondent, on Brown's
loss of overtime pay, which Brown claimed had been about
$70 a week.17 The meeting, which was a lengthy one, con-
cluded with the Respondent promising to consider
Kapilow's request that it give Brown 5 hours a week of
guaranteed overtime, and the Respondent requesting that
Brown withdraw his grievance. The guaranteed overtime
request was granted a day or two later, the overtime of an
hour a day to be worked a half-hour of the 1-hour lunch
period and a half-hour after work. Kapilow testified that
Brown did not, however, then or at any later time, withdraw
his transfer grievance or request that it not go to arbitration.
Kapilow said at the May 4 meeting he would call Brown
in for a discussion of what further action they might take
regarding his transfer grievance. He called Brown in for
such a meeting with the union representatives about May
11. At this meeting Kapilow said that he and Brown knew
what the Respondent was doing but the question was how
to prove it, and that it was up to Brown to decide if he
wanted to go to arbitration, but he had to decide soon so
the Respondent could not rely on late filing to defeat the
15 The "Grievance Procedure" article of the collective -bargaining contract
provides for a two-step presentation of grievances orally and in writing, for
either party to seek arbitration within certain time limitations , and, if arbitra-
tion is requested, that-
(A) The arbitrator shall be selected under the rules and regulations of
the Federal Mediation and Conciliation Service. The parties shalljointly
pay the cost of the Arbitrator's services.
(B) The decision of the Arbitrator shall be final and binding on the
parties.
16 Brown testified that when the night shift was set up at Long Island City,
he thought about a week or two before his transfer , Heiner asked if he wanted
to go on that shift, but he declined . Heller testified that in late March, dust
before setting up the night shift, he explained to the Union representatives,
including Brown , that a night shift was necessary because there was too much
overtime work, which was costly for the Respondent and a hardship on the
employees.
t7 The variations in Brown's weekly earnings for the weeks ending March
29 and April 5, 12, and 19, placed in evidence by the General Counsel, which
show net pay of $210.45, 169.94, 192.25, and 149.96. The night shift was
established at that plant in early April.
arbitration. Brown admitted he did not give Kapilow a defi-
nite answer. He testified that "I also pointed out to them
that I was definitely not enthusiastic about arbitration and
I told him why," that his reasons referred to the Sugarman
arbitration, and that he told Kapilow his objections to that
proceeding were: "that certain questions was not' asked of
me and certain questions that was raised by the company
nobody from the workers who were involved in that arbitra-
tion had a chance to clarify. Certainly-I wasn't asked cer-
tain things that came up. Then I pointed out the fact that
one witness with the company submitted an affidavit which
I didn't even see, and that at least one person who also
testified, another worker, I was sent out of the room while
this guy was testifying."
The union representatives testified, as to the Sugarman
proceeding, that union representatives presented the case
for the employees, that Brown and one other employee also
testified, that Brown was sequestered while the other em-
ployee testified, and the company witnesses were also se-
questered, and that counsel for the Union objected to the
Respondent's introduction into evidence of an affidavit of
an individual who was not present to testify but the arbitra-
tor overruled the Union's objections. Brown testified that
one ground for his objection to that arbitration was the lack
of preparation. In addition to the testimony of union wit-
nesses about such preparations, however, Brown admitted
that he assisted union counsel in many of the preparatory
steps, and that the Respondent gave him time to obtain
responses from the employees to detailed written question-
naires about the arbitration issues . He also admitted there
were two meetings with the arbitrator, the first to frame the
issues and the second to hear the witnesses, that he was
present at both, that the hearing ran from about 10:30 a.m.
to about 4:30 p.m., that he was present for most of that
hearing and union representatives were present throughout
the hearing, and that both counsel for the Respondent and
for the Union presented oral summaries after the hearing
and, at the arbitrator's request, written summaries after the
hearing.
Brown testified further that in the meeting on May 11,
when he argued that the Sugarman arbitration was not fair
to the workers, Kapilow replied that the arbitration "from
the workers' standpoint was a success because he was able
to get 19 people their day's pay." Brown also testified that,
while he indicated a lack of enthusiasm about going to
arbitration on his transfer grievance, he asked both Agathos
and Kapilow at times to help him make up his mind about
arbitration; that each of them discussed the various consid-
erations and urged Brown to make a decision and put it in
writing; that during the May 11 discussion with Kapilow, "I
was telling him I wasn't interested in arbitration and the
reasons. Just to sweeten things up for me to agree to go to
arbitration, he said if I wanted another lawyer, he would
agree to it"; and, finally, that: "It concluded left up in the
air, you know, and I had to make a decision the next day,
and I wasn't sure what exactly I was going to do because
he said I must decide, you know. I said . . . you have the
experience in these things. You decide. You help me make
the decision. If you think that I haven't got a chance, plus
the fact I was asking about it in the first place, what's the
point of doing it and he said I should be-he wants a written
INDEPENDENT PRINTING COMPANY , INC. 177
letter from me, a written letter , signing something saying
whether I want to go to arbitration the next day or I don't
want to go to arbitration , whichever way I was going I
should write." In later testimony about Kapilow's repeated
request that Brown's position be set forth in writing, Brown
stated that Kapilow did not "indicate my writing."
C. The Discharge of Brown
1. Brown's conduct on Friday, May 12
Brown testified that when he went to work on Friday,
May 12, he told Amadayo , assistant manager , he wanted to
leave at 1 :30 that day ; that Amadayo "asked me if they
knew that I wanted to leave-they meant the company... .
I said I don't know . I didn't tell them . I am telling you, and
he said okay." Phelan, the manager, who came in late that
morning, spoke to Brown several times about the request to
leave early. According to Brown ,_ in the course of these
conversations:
Jack, the manager ... asked me what time I wanted
to leave and I told him at 1:30 . Then he went away and
sometime later he came back and he said-asked me if
I have an appointment with the union and I told him
that I had to go about my grievance , that we had a
limited time to file , and that I am going to an indepen-
dent source to make a judgment on what I have to do.
Brown also testified that in about their third conversation:
... he kept pressing me, do you have an appointment
with the union. I said I told you that I have to go to look
about my grievance, that I have a limited time, that I
am going to look about my grievance , I am going to go
to the labor board . I am going to file charges against
this company and-and-he said that-he said that I
should take my lunch between 12 and 1.
Brown continued that , after he protested that he was sup-
posed to get a half-hour overtime between 12 and 1:
Well, he didn't say anything else except that you go
for your lunch between 12 and 1. I said , Jack, get it
straight. I have to go to get something done about my
grievance and I says , I just have to go because of the
time and he says, well, suppose the company wants to
discipline you.... I never said anything... .
Before I left I called before, I called Jack from the
front around the back.... I said , Jack, you say to go
for lunch between 12 and 1 but I want you to under-
stand that I have this thing to be done which I have to
do because of the deadline and so I am not promising
you to come back, that if you force me to leave now,
I am not going to make any such promises of coming
back for the simple reason I don 't know how long it's
going to take me.
After Brown left work, he went to consult a lawyer. He
then went to the Regional Office and filed the charge assert-
ing his transfer was discriminatory . Late that afternoon he
went to the union office and saw Agathos . He testified that
he told Agathos he had filed a charge with the Board; that
Agathos said Kapilow had prepared a letter to the Respon-
dent demanding arbitration on Brown 's transfer grievance,
with a copy to Brown, which had probably already been
mailed ; that Agathos "also said you left your job and you
went to the Board and suppose the company takes the posi-
tion that they needed you, that they had a lot of work and
they could want to discharge you. It could cause a lot of
problems"; that he replied there was someone who could do
the work on the press in his absence ; and that Agathos
asked why Brown came to the Union at this time, and "I
pointed out to him that I told the company that I would
eventually go to the union office so that was the purpose for
me going there." Brown also testified that, in response to
Agathos' questions , he told about his conversations with
Phelan, but he made no reference at this time to telling
Phelan he was going to the Board.
Agathos testified that in this conversation Brown claimed
that the transfer was unfair because he was a shop steward,
that he agreed with Brown , and that he told Brown that
would be the issue raised in the arbitration proceeding.
Brown admitted that the question came up at this time
whether he wanted to go to arbitration on his transfer griev-
ance ; that the "deadline" he had mentioned to Phelan re-
ferred to letting the Union know if he was going to
arbitration ; but that "I left there that day without telling
him whether I was going or wasn 't going to, except I also
told him some of the reasons why I was not enthusiastic,"
and that he never told Agathos to retract the Union 's letter
to the Respondent demanding arbitration. Finally, Brown
testified , Agathos commented that Brown had caused "a lot
of problems with the company ," that he did not "know
where to go or what to do ," and that he would discuss it with
Kapilow on Monday.
After Brown left work on Friday afternoon , Phelan tele-
phoned Adinolfi and told him what occurred . Both Phelan
and Adinolfi testified to the effect that Phelan reported that
Brown had asked for time off that afternoon to take care of
personal business ; that Friday was, as always , a busy "hec-
tic" day; that Phelan told Brown that, because of the heavy
workload, Brown should take care of his personal business
at lunchtime or on Saturday ; that Phelan asked Brown sev-
eral times what the business was as he would have given
Brown the time off if it was an emergency, but Brown just
laughed each time and said it was personal ; that he refused
to give Brown permission to leave and threatened severe
discipline if Brown left anyhow, but Brown did leave and
was away all afternoon ; and that he intended to discharge
Brown on Monday morning. Phelan called Adinolfi again
to report that he would be delayed in getting in on Monday.
Adinolfi, who generally covered for absent branch manag-
ers, said he would be there Monday morning and would
discharge Brown.
2. Brown's discharge on Monday, May 15
When Brown went to work on Monday he found his
timecard had been removed. He inquired about it and was
told by Adinolfi that he was terminated. Brown testified
that he asked why; that Adinolfi said "we don't want any-
body with any problems and you seem to have a lot of
problems"; that Brown then referred to a problem with the
lighting at Madison Avenue as "the problem that is brought
on by the company," and asked what exactly was the
charge ; that Adinolfi replied , "you left your job and we
thought you weren't coming back"; and that, when Brown
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he did not understand , Adinolfi asked what he did, and
Brown then said he "went to the labor board to file the
charges against the company ." Brown testified that he be-
gan to describe his conversation with Phelan about leaving
but Adinolfi cut him short , that Adinolfi refused his request
to use a company telephone "to talk to the shop steward,"
and that Brown left and went to the union office.
Adinolfi testified that Brown seemed surprised when told
he was terminated , and asked for the reason ; that he replied
that Brown blatantly disregarded Phelan 's instructions, and
that what Brown did on Friday was intolerable ; that Brown
then said he went to the Board on Friday and the Respon-
dent could not discharge him as it would be an unfair labor
practice ; and that he replied that the Respondent had no
knowledge that Brown went to the Board . He admitted that
he was angry and refused to permit Brown to call the Union
on the company telephone.
Heller learned of Brown 's discharge when Adinolfi tele-
phoned and asked him to help find another pressman to
replace Brown . The Respondent 's management witnesses
testified that Brown , a skilled worker , was hard to replace,
that at the time of the hearing a replacement had not yet
been found , that McLean was again doing both counter and
press work ,, and that the press work McLean could not do
was again being sent to other locations.
3. Brown 's discharge grievance
Union representatives called the Respondent and vigor-
ously protested Brown 's discharge . Agathos had a clerk in
the union office prepare a typewritten grievance which stat-
ed that the grievance was for Brown 's "UNJUSTIFIABLE
DISCHARGE" and sought "RE-INSTATEMENT WITH
LOSS OF BACK-PAY." The reference to loss of backpay
was, union representatives testified , a typographical error.
Brown noticed it after he left the union office to give the
grievance to a shop steward , changed it to read "without"
loss of backpay , then signed the grievance and asked the
shop steward to let the Union know of the change before
transmitting it to the Respondent. The grievance is dated
May 15 . On May 18 Brown filed an amended charge with
the Board alleging that he was disciminatorily discharged.
Brown went to the union office about a week later and
asked Agathos for help in finding a job. He testified that
Agathos told him there were no jobs available , whereas
Agathos testified that he made several calls to employers
while Brown was in the office , that he promised to and did
make further efforts , and that Brown thanked him for what
he did although Agathos did not succeed in finding a job for
him. Brown testified that, on this occasion , "We spoke again
about arbitration and he couldn 't see why I was resisting it."
Asked what he said , Brown replied : "I just told him that as
far as my judgment was with what had happened before, I
said the fact is that there is a clause in the contract which
precludes anyone else from enforcing this contract but the
union and the company and it's the same lawyer that argued
the case for the union who is going to argue the case again
and under those circumstances what have I got ." On cross-
examination, Brown testified that he told Agathos at this
time "I was not interested definitely to go to arbitration."
In response to a series of questions whether he told Agathos
at this or any other time, orally or in writing , to withdraw
his grievances, Brown repeatedly answered along the line
that "I don't remember-that I wasn 't interested, I wasn't
enthused about the whole thing, and I told him I wasn't
interested . . . . If I said-you know , if I said that I wasn't
interested in going , I meant that I wasn't interested in going,
and for the reasons that I have been giving all along and
more." Asked then if he ever told Agathos he did not want
to go to arbitration , Brown said he did . Asked exactly what
he said , Brown replied , "I don't remember the exact words,
but I am telling you to the effect that I said this. . . . He
tried to sweeten it up by telling me that if I didn't go to
arbitration over a termination , even if I was right on the
transfer, where would I be." Brown testified he replied that
the Board had his case and he had faith in the Board.
Asked if he ever told Kapilow to withdraw his grievance,
Brown replied that Kapilow "knew that I wasn't enthusias-
tic about it..... He testified further that he told Kapilow
"sometime by telephone , that-that I wasn't interested in
arbitration.. . . He told me the day of-before-the Thurs-
day when-the day before I filed my charges that I was to
so indicate in writing that I wanted to go or whether I didn't
want to go. . . . I never indicated in writing." Asked if he
ever told the Union , after he filed charges with the Board,
that he wanted his case withdrawn from arbitration, he
repeatedly answered along the lines that "I said that I wasn't
interested , that I wasn't going . I would think that means the
same thing."
Brown testified further that on Friday, May 12, when he
went to both the Board and the Union , "I was up in the air.
I didn 't know which way I am going" as to arbitration or
Board procedures ; that on Monday , May 15 , when he was
discharged , "In my mind I had no firm hard decision, no";
and that, when he was discussing his transfer grievance, "I
had a decision , and I don 't know if it was the firmest one
possible , I had a recent firm decision when I spoke with"
Agathos regarding a job. That was about a week after his
discharge . Brown also testified that this conversation was
the last one he had with Agathos, and that he never thereaf-
ter asked Agathos or Kapilow or anyone else from the
Union to take his transfer or discharge grievance to arbitra-
tion . He admitted , however , that he knew arbitration was
scheduled on these grievances , which he had filed.
Agathos denied that Brown, when he came to the office
to ask about a job , or at any other time, indicated that he
did not want the Union to take his transfer and discharge
grievances to arbitration.
Kapilow testified that he and Brown had several discus-
sions about arbitration ; that Brown asked his advice, and
he told Brown there might be a problem on the transfer
because of the contract language but he was confident they
would win on the discharge ; that they discussed what the
Respondent might present at an arbitration hearing; that,
when Brown expressed some reluctance about going to arbi-
tration, he asked Brown to state his position in writing
because he did not want it said that the Union had refused
to go to arbitration , and because of the problem of time
limitations on seeking arbitration ; that he told Brown unless
there was a statement in writing declining arbitration the
Union would proceed ; and that he never received a state-
INDEPENDENT PRINTING COMPANY, INC. 179
meat from Brown, in person or in writing, declining arbitra-
tion.
D. The Arbitration Proceeding
As Agathos told Brown on May 12, Kapilow had on that
date written to the Respondent requesting arbitration on
Brown's transfer grievance. The Respondent's reply dated
May 17 states:
... the Company is willing to take said matter to
arbitration. However, as you must be presently aware,
Mr. Brown was discharged for cause during the period
subsequent to the writing of your letter. I assume that
if Mr. Brown desires to arbitrate his transfer which, in
our opinion is a clear cut right of management, he will
most certainly desire arbitration over his discharge. If
that be the case, I suggest that both matters be arbitrat-
ed by one impartial hearing officer. Pursuant thereto,
your attorney has my authorization to request a first
panel from the Federal Mediation and Conciliation
Service.
On May 22 Kapilow wrote Brown a letter, enclosing a copy
of the Respondent's letter, and stating:
As you can see the Company is willing to waive all
steps of the Grievance Procedure concerning your dis-
charge and proceed immediately to arbitration at the
same time and under the same arbitrator to be selected
from a panel of the Federal Mediation and Concilia-
tion Service to hear your "transfer" grievance case.
Please let me know immediately as to your wishes
concerning this matter.
Upon our failure to hear from you, I will submit both
cases simultaneously.
Brown, who testified on examination by the Respondent
and the Union that he did not respond to any of the Union's
written communications about arbitration, testified on redi-
rect examination by the General Counsel that he called
Kapilow about the May 22 letter; that he said he had indi-
cated all along he did not think he would get a fair trial at
arbitration and that one of the reasons he was discharged
was to force him to go to arbitration, and "so that made me
even more skeptical of going, that I wasn't going, that I
wasn't interested in going"; that Kapilow in reply said that
there were two issues , and "even if I won on transfer, and
didn't win my job back, where would it leave me? So like,
you know, the arbitration would have been the best thing.
I could do what I wanted to do, but . . . the company
is wrong"; and that he called Kapilow to make clear his
position "that I wasn't going to . . . I didn't want to go to
arbitration, I wasn't interested, wasn't enthusiastic about
going, firstly."
Brown evidently did not make this position on arbitration
clear to Kapilow, who wrote to the Federal Mediation and
Conciliation Service on May 31, with a copy to Brown,
requesting appointment of a panel of arbitrators to resolve
the issues pertaining to-
t. Transfer of Sidney Brown
2. Discharge of Sidney Brown
On July 6 Kapilow wrote Brown that Wildebush, of the
Federal Mediation and Conciliation Service, had been de-
signated "to act as arbitrator in the dispute involving your
transfer and your discharge.... Arrangements have been
confirmed among the Company, Local 966, I.B. of T., and
Mr. Wildebush to commence testimony in your case on
August 15, 1972 at the offices of this Local Union. Please
be present at the Union office, 321 West 44th Street, New
York, N. Y., at 9:00 A.M., on that date and bring with you
any documents you feel may be pertinent to your case." On
August 14 Kapilow sent Brown a telegram reminding him
of the date, hour, and place of the hearing, and stating that
"FAILURE TO APPEAR WILL SERIOUSLY JEOPAR-
DIZE YOUR CASE." Brown admitted that he did not com-
ply with the request Kapilow made of him for a written
statement as to his position on proceeding to arbitration;
that he did not respond to any of the communications from
the Union about the scheduled arbitration hearing; that,
while he knew arbitration was scheduled on his transfer and
discharge grievances, he made no attempt to withdraw his
grievances; and that he did not appear at the scheduled
hearing.
When the union and respondent representatives met with
Wildebush on the morning of August 15, they waited an
hour or more for Brown to appear, and finally proceeded
with the hearing. Heiner, Heller, Adinolfi, and Phelan testi-
fied for the Respondent to the effect that the transfer was
necessary. for business reasons and was permitted by the
collective-bargaining contract; that Brown was chosen as
the best qualified man for it; that, to meet his complaint
about loss of overtime earnings , he was told overtime was
being eliminated at Long Island City by installation of a
night shift, and he was guaranteed 5 hours of overtime a
week at Madison Avenue; that he had been offered and
declined certain promotional opportunities; that although
Brown knew there was a heavy work load on Friday, May
12, he refused to disclose the nature of the personal business
for which he wanted to leave, or to explain why he could not
take care of it during lunchtime or on Saturday; that per-
mission to leave was therefore refused and, when Brown
indicated he would leave nonetheless, he was warned he
would be subject to severe disciplinary action if he did so;
that he was discharged for disobeying orders not to leave
that afternoon for personal business; that Adinolfi did not
know when he discharged Brown that Brown had gone to
the Board; and that when Agathos called the Respondent
to ask why Brown was discharged, he was given the same
reasons. In conclusion, counsel for the Respondent argued
that the transfer of Brown was in accord with the collective-
bargaining contract, and the discharge was for cause.
Counsel for the Union, as company and union represen-
tatives testified, cross-examined the Respondent's witness-
es; presented testimony by Agathos about Brown's shop
steward activity, his transfer, and his discharge; and argued
that the Respondent was seeking to get rid of Brown be-
cause he was a good shop steward, that there was not suffi-
cient cause for Brown's discharge, and that the transfer and
discharge were discriminatory.
Counsel for the Union wrote a letter to Brown dated
August 16 stating that the arbitration hearing had been
held; that "The Union presented your grievances concern-
ing your claims of discrimination and wrongful discharge as
best it could under the circumstances of your non- atten-
dance at the hearing"; and that, at the Union's request and
over the Respondent's objection, the arbitrator agreed that
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union could send Brown a written summary of the
testimony against him, and Brown could make a written
reply which the arbitrator had agreed to consider.18 The
letter also summarized the testimony by the Respondent's
witnesses.
Brown made no reply.
Arbitrator Wildebush issued a decision on September 8
which states under "FACTS," inter alia, that:
The Union presented the grievances of Sidney
Brown at the hearing. These grievances concerned the
grievant's claims of discrimination, improper transfer
and improper discharge. The Union was handicapped
by the failure of the grievant to attend his own arbitra-
tion hearing.
The two grievances filed by the grievant were as
follows: Grievance dated April 21, 1972 alleging un-
justifiable transfer based on discrimination, and Griev-
ance dated May 15, 1972 alleging an unjustifiable
discharge.
The decision also summarizes the testimony of the
Respondent's witnesses including the following testimony
by Adinolfi:
Adinolfi discharged Brown on May 15, 1972 for walk-
ing off his job on May 12, 1972 in spite of an order by
Jack Phelan not to leave his job. The grievant wanted
to leave for personal business and did leave. When told
by Adinolfi the reason for his discharge, the grievant
said he could not be discharged because it would be an
unfair labor practice. Brown told Adinolfi that he was
being illegally discharged for going to the N.L.R.B.
Adinolfi replied that he did not know that Brown was
going to the N.L.R.B., and his discharge had nothing
to do with going to the N.L.R.B.
Later that morning, May 12, 1972, John Agathos, Secre-
tary-Treasurer of the Union local telephoned Adinolfi and
wanted to know the reasons why Brown was discharged.
The answer Agathos received from Adinolfi was that Brown
was discharged for walking off his job on May 12, 1972.
Under "OPINION" the arbitrator's decision states:
The Company made a strong prima facie case war-
ranting the discharge of the grievant. The transfer of
the grievant was legitimate and beneficial to the griev-
ant, and therefore his grievance concerning his transfer
is disallowed. He learned how to operate a new ma-
chine, he received guaranteed overtime, and he had a
new position of greater stature than the one he previ-
ously held.
There was absolutely nothing in the record to indi-
cate that the grievant was discriminated against, either
by his transfer or his discharge. The proof is clear that
the grievant's going to the N.L.R.B. had nothing to do
with his discharge because no management official
knew at the time that Brown went to the N.L.R.B. The
discharge was based on patent insubordination in that
the grievant willfully left his job without being excused
or without tendering a valid reason, even when warned
to stay on the job because of the need for his services.
18 Heller testified that the arbitrator granted the Union's request over
Glassman's objection that he would have no opportunity to cross-examine
Brown on his written reply.
The grievant was himself responsible for his discharge.
The arbitrator's "AWARD" was as follows:
(1) The transfer of Sidney Brown was not in violation
of the Collective Bargaining Agreement.
(2) The discharge of Sidney Brown was for proper
cause.
Concluding Findings
It is well established that the Board is not precluded from
adjudicating unfair labor practice charges even though they
might have been the subject of an arbitration proceeding
and award.19 It is also well settled that the Board has consid-
erable discretion to respect an arbitration award and, on the
basis thereof, to decline to exercise authority over the relat-
ed alleged unfair labor practices, thereby encouraging par-
ties to resort to collective bargaining and to the settlement
of their disputes under contract procedures which they have
specifically designed to that end. Thus, the Board, with
judicial approval, voluntarily withholds its authority to ad-
judicate alleged unfair labor practices involving the same
subject matter unless the arbitration proceedings are shown
to have been tainted by fraud, collusion, unfairness, or seri-
ous procedural irregularities, or unless the award is clearly
repugnant to the purposes and policies of the Act 20
An arbitrator, selected by the contracting parties in this
case from a panel submitted by the Federal Mediation and
Conciliation Service, found that Brown's transfer was in
accord with the terms of the collective-bargaining contract
and that his discharge was for cause. The Respondent main-
tains that the Board should defer to the arbitrator's determi-
nations and dismiss the instant complaint, while the
General Counsel contends that the Board should adjudicate
the alleged unfair labor practices. The General Counsel
called only one witness, Brown, who testified at great
length. I found Brown a less candid and forthright witness
than the Respondent and union representatives who testi-
fied. His testimony contains many evasions and inconsis-
tencies. He hesitated for long intervals in answering some
questions, and impressed me as a witness trying, not to
recall past events, but to couch his answers in a way best
designed to support his charges. On the basis of his demea-
nor and the nature of his testimony, I do not credit his
assertions as to the dominant role he played in union negoti-
ations and other union activities, in view of the evidence as
to the participation of Kapilow, Agathos, and others in
union matters relating to the Respondent's employees; his
claim that in one of the conversations with Phelan on Friday
he stated that he was going to the Board to file charges
against the Respondent, and Phelan responded that he
should take his lunch period from 12 to 1; and his attempts
to establish hostility against him by the very union represen-
tatives who processed his grievances through the contract
procedures to and including arbitration. I therefore discre-
dit Brown's testimony where it is contrary to other more
credible testimony or to the weight of the evidence in the
19 N.L.R.B. v. Walt Disney Productions, 146 F.2d 44 (C.A. 9), cert. denied
324 U.S. 877; Superior Motor Transportation Co., Inc., 200 NLRB No. 139.
20 Spielberg Manufacturing Company, 112 NLRB 1080; Superior Motor
Transportation Co., supra; see also, e.g., Carey v. Westinghouse, 375 U.S. 261,
271; N.L.R.B. v. Auburn Rubber Co., 384 F.2d I (C.A. 10).
INDEPENDENT PRINTING COMPANY, INC. 181
record as a whole.
The General Counsel contends that the Board in this case
should not defer to the arbitrator's award on the grounds
considered below.
(1) Brown was not present at the arbitration hearing.
There is no question, however, that he had ample notice of
the arrangements being made for an arbitration hearing on
his transfer and discharge grievances, and of the time and
place of the hearing. He was afforded the opportunity to be
present, to be represented by an attorney of his own choice,
and to file a written statement of his position after the
arbitration hearing, and the union counsel and representa-
tives were present at the hearing on his behalf.21
(2) Brown was not convinced the arbitration would be in
his best interest, and had, therefore, not requested that the
Union take his grievances to arbitration. Brown had filed
the grievances, however, on both his transfer and his dis-
charge; he was well aware that the contract grievance proce-
dures culminated in binding arbitration; he admittedly
knew that the Union was taking his grievances to arbitra-
tion; and he knew the expense of arbitration was a matter
of concern to the Union. Nevertheless, while he indicated
to the union representatives that he was not "enthusiastic"
about going to arbitration, he at no time explicitly directed
the Union to withdraw his grievances or to process them to
some point short of arbitration.
(3) Brown was convinced that the Union was antagonis-
tic and would not fairly represent him in the arbitration
proceeding. The record in its entirety shows, however, that
the representatives of the Union-against whom no charges
were filed-treated Brown as an active and valued union
member, believed he had been discriminated against by the
Respondent, and acted accordingly. I find completely un-
persuasive Brown's testimony that the Union at various
times had tried to remove him as shop steward, and finally
did so when he was transferred. There is no evidence that
the Union notified the Respondent or Brown that Brown
was no longer shop steward. The Union in fact arranged to
have an employee designated as shop steward, when Brown
was unavailable, who agreed to resign the position when
Brown became available again.
The General Counsel placed in evidence a number of
written grievances and company-union communications
showing that employees, including Brown, had been warned
or suspended for work and attendance derelictions, and
contends in her brief that the summary discharge of Brown
showed disparate treatment, that "much of the evidence we
have furnished . . . e.g., disparate treatment, came right
from the files of the Union," but that "it is clear that the
Union was not interested in bringing the discrimination-or
any other-issue to arbitration, except as it might be used
to defeat the Board's consideration of the issues." I find that
the evidence does not support these contentions. In the first
place, the Union had prepared to take Brown's grievances
to arbitration before he notified it that he had gone to the
Board. Further, as to the disparate treatment allegation, it
does not appear that any of the other incidents involved the
same circumstances as Brown absenting himself from work
on the busiest afternoon of the week when he was the only
pressman at the location, without explaining the need to be
absent at that particular time, and in deliberate disregard of
a supervisor's denial of permission to leave and warning of
severe discipline if Brown left without permission.
I find that the record as a whole does not show a conflict-
ing interest of the Union vis-a-vis Brown but, rather, shows
that the union representatives vigorously processed Brown's
grievances and represented him in the arbitration hearing as
fairly and fully as possible in view of his failure to appear
or to notify the Union that he would not appear.22 More-
over, if Brown was in fact concerned about fair representa-
tion by the Union at the arbitration hearing, he had the
opportunity, as noted above, to present his position in per-
son, to be represented by an attorney of his own choice, or
to rebut in writing the testimony of the Respondent's wit-
nesses which was summarized for him in the letter from
Union counsel. That Brown did not actually consider the
Union hostile to him is shown by the facts, admitted by
Brown, that he sought advice from both Kapilow and Agat-
hos about going to arbitration, and asked Agathos, while
arbitration on his grievances was pending, to help him find
a job. I credit Agathos' testimony, and not Brown's denials,
that Agathos did attempt in Brown's presence to find a job
for Brown.
(4) Brown was convinced that the Respondent would not
afford him a fair arbitration hearing because of its resent-
ment of his union and protected concerted activities. As set
forth above, however, I found unconvincing Brown's testi-
mony about his dominant role in such activities, as well as
his testimony that he told Phelan on Friday that he was
going to the Board to file charges against the Respondent.
I likewise find no probative evidence to support the asser-
tions that the Respondent embarked upon the course of
conduct here involved, including the arbitration proceed-
ing, in order to remove Brown as shop steward or to accom-
plish some other discrimination against Brown. As the
Respondent showed at the hearing, it had no voice in the
designation of shop stewards, and it had no knowledge of
Brown filing charges at the Board until after it discharged
him 23 Moreover, that the Respondent was willing to have
Brown's grievances fairly resolved is shown by the lengthy
discussion by Company counsel and officials with Brown
and the Union representatives about Brown's transfer griev-
ance, by its explanation of the decrease in overtime that had
been available to Brown at the Long Island City plant and
its grant to Brown of guaranteed overtime at the Madison
Avenue location, by the written offer to the Union to waive
the pre-arbitration steps on Brown's discharge grievance so
it could be heard at the same time as his transfer grievance,
and, finally, by the Respondent's prompt agreement with
the Union to the designation of an arbitrator from a panel
submitted by the Federal Mediation and Conciliation Ser-
21 See McLean Trucking Company, 202 NLRB No. 102, in which the Board 22 See Otero v. Electrical Workers (IUE), 474 F.2d 3 (C.A. 9, 1973); Fleet
states: "That employees, as well as the Employer and Union, are bound by Carrier Corporation, 201 NLRB No 29; Jacobs Transfer, Inc., 201 NLRB No.
the bargaining agreement is fundamental to collective bargaining." See also 34.
Spielberg Manufacturing Company, supra. 23 See United States Postal Service, 202 NLRB No. 24.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice and its presentation of evidence to the arbitrator al-
though Brown had failed to appear.24
(5) The arbitrator did not consider or decide the issues
involved herein, namely, whether Brown's transfer and dis-
charge were motivated by his Union and protected concert-
ed activities which both the Respondent and the Union
resented. I am satisfied, however, from the evidence show-
ing that the arbitrator had before him the two grievances
signed by Brown, the testimony by witnesses herein who
were present at the arbitration hearing, and the arbitrator's
opinion and award, that the Respondent has adequately
shown that the issues of discriminatory motivation were
presented to and considered by the arbitrator,' who found
that the record before him did not show that Brown was
transferred or discharged discriminatorily because of his
shop steward and other Union and protected concerted
activities. 26
On the entire record, therefore, it is concluded that all
parties to the contract had agreed to be bound and partici-
pated fully in the arbitration proceeding, with the Union
presenting the case for Brown, who chose, after due notice,
not to avail himself of the opportunity to present his views
in person or in writing; that the procedures followed by the
arbitrator appear to have been fair and regular; that the
arbitrator considered the issues of the alleged discriminato-
ry nature of Brown's transfer and discharge, and found that
Brown's transfer was in accordance with the collective-bar-
gaining contract and that his discharge was for cause; and
that the decision of the arbitrator is not clearly repugnant
to the purposes and policies of the Act.
Accordingly I find, in all the circumstances of this case,
that none of the factors urged by the General Counsel fur-
nish sufficient basis for departing from the Board's estab-
lished policy of giving binding effect to arbitral
determinations made in proceedings to which the contract-
24 Cf. Anaconda Wire & Cable Co, 201 NLRB 839.
25 Yourga Trucking, Inc., 197 NLRB 928; Gulf States Asphalt Company, 200
NLRB No. 100.
26 Superior Motor Transportation, Inc., 200 NLRB No. 139; McLean Truck-
ing Company, supra; cf. Fleet Distributing Service, Inc., 200 NLRB No. 35.
ing parties have acquiesced, where the proceedings are fair
and regular on their face, where the evidence shows that the
issues of discriminatory motivation were presented to the
arbitrator, and where the results are not clearly repugnant
to the purposes and policies of the Act. I find further that
it is appropriate, in the absence of evidence of procedural
unfairness or an award clearly repugnant to the Act, to deny
access by Brown to the Board's machinery for relitigation
of the dispute. To permit Brown to await the outcome of the
arbitration proceeding and, in the event of an unfavorable
determination, to ignore the award in anticipation that a
more favorable determination may be reached in the Board
proceeding-as I am convinced Brown was doing in this
case-would encourage forum shopping and multiple litiga-
tion, as well as disregard of the Board's policy of encourag-
ing full use by the contracting parties of arbitration for the
resolution of labor disputes. On the basis of the foregoing
and the entire record, therefore, I conclude and find that it
will effectuate the policies of the Act to decline to decide the
issues raised by the allegations of the complaint as to
Brown's transfer and discharge, and to give conclusive ef-
fect to the arbitrator's award with regard to these issues. I
shall, therefore, grant the Respondent's motions to dismiss,
and shall, accordingly, recommend dismissal of the com-
plaint in its entirety27
I accordingly issue the following recommended:
ORDER 21
The complaint herein shall be, and hereby is, dismissed
in its entirety.
27 Spielberg Manufacturing Company, supra, The Associated Press, 199
NLRB No. 168; Gulf States Asphalt Company, supra; Superior Motor Trans-
portation Co., Inc., supra; McLean Trucking Company, supra.
28 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