Lithographers, Local 261

National Labor Relations Board - Board Decisions

Feb 15, 1972

195 N.L.R.B. 408 (N.L.R.B. 1972)

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 261, Lithographers and Photoengravers Interna-
tional Union, AFL-CIO and Manhardt-Alexander,
Inc. and Lester R. Gotthelf. Case 3-CB-1651
February 15, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On September 13, 1971, Trial Examiner John G.
Gregg issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing 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 Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended Order as modified.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that Local 261, Lithographers and Photoengravers
International Union, AFL-CIO, its officers, agents,
and representatives, shall take the action set forth in the
Trial Examiner's recommended Order, as so modified:
1. Delete from paragraph 2(c) the words "both
Lester Gotthelf and Manhardt-Alexander" and substi-
tute the words "Lester Gotthelf."
2. Substitute the attached notice for the Trial Ex-
aminer's notice.
to go to the plant in the morning to shut down the
equipment. Gotthelf did so, spending approximately 2
hours at this task. Assuming that employees could lay
claim to this work, I see no reason why an employer
faced with such a situation cannot ask his supervisory
staff to shut down the equipment if he chooses to do so
rather than asking the employees to return to work for
that purpose. Gotthelf's performance of this work in no
way undercut or diminished the striking employees
legitimate strike pressures.
Accordingly, I find that the Union's expulsion of
Gotthelf because of his performance of work reasona-
bly constituting part of his supervisory responsibilities
restrained and coerced the Employer in the selection of
a representative chosen by him to settle grievances in
violation of Section 8(b)(1)(B).
I join in the modification of the recommended Order
made by my colleagues. I also agree that Respondent
should be required to read the notice to its membership,
but not "to dissipate the coercive effect of the unfair
labor practices on Respondent's membership," the rea-
son advanced for the reading requirement by the Trial
Examiner. I fail to see how the unfair labor practices
coerced or restrained the membership in any particu-
lar. The membership did, however, approve and ratify
the discipline meted out to Gotthelf as required under
the Respondent's by-laws. I believe the reading require-
ment serves the educational function of informing the
members that the discipline approved and ratified by
them constituted an unfair labor practice. Presumably,
the membership will be guided by such information
when asked to ratify disciplinary action in future cases.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
MEMBER FANNING, concurring:
I concur in the result herein. In my view, the work
which Gotthelf, a supervisor, performed cannot prop-
erly be construed as struck work within the meaning of
my Wisconsin Electric2 and Illinois Bell' decisions. The
Trial Examiner found without exception being taken
that Alexander, Gotthelf's superior, was concerned
that expensive equipment had not been taken care of to
withstand a long strike. He therefore directed Gotthelf
We do not adopt the Trial Examiner's remedy insofar as it requires the
Respondent to make whole Manhardt-Alexander for costs incurred by Man-
hardt-Alexander in providing substitute coverage for Gotthelf Such costs
are too remote to be a proper subject for a make whole remedy
Local Union No 2150, International Brotherhood of Electrical Work-
ers, ALF-CIO (Wisconsin Electric Power Co), 192 NLRB No 16
International Brotherhood of Electrical Workers, AFL-CIO, and Local
134 (Illinois Bell Telephone Company), 192 NLRB No 17 -
The National Labor Relations Board having found
after a trial that we violated Federal Law by expelling
Lester Gotthelf from membership in the Union because
he crossed a picket line and continued to work during
a strike, we hereby notify the employees of Manhardt-
Alexander that:
WE WILL NOT in any manner restrain or coerce
Manhardt-Alexander, Inc., in the selection of rep-
resentatives chosen by it for the purposes of collec-
tive bargaining or the adjustment of grievances.
WE WILL expunge all records or other evidence
in our files of the proceedings in which Lester
Gotthelf was expelled.
WE WILL revoke and rescind the expulsion im-
posed on Lester Gotthelf and restore him to mem-
bership with all rights and benefits as though he
195 NLRB No. 80
LITHOGRAPHERS , LOCAL 261 409
had not been expelled and give written notice of
such action to Gotthelf.
WE WILL make whole Lester Gotthelf for finan-
cial disbursement incurred in providing substitute
benefits occasioned by the unlawful expulsion
together with interest thereon at the rate of 6 per-
cent per annum.
WE WILL read this notice to our assembled
membership at two consecutive regular member-
ship meetings.
LOCAL 261,
LITHOGRAPHER AND
PHOTOENGRAVERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Ninth Floor, Federal Building , 111 West Huron
Street, Buffalo , New York 14202, Telephone 716-842-
3100.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner: This case was tried
before me at Buffalo, New York, on July 26, 1971, based upon
an unfair labor practice charge filed by Lester R. Gotthelf on
March 30, 1971, as amended on April 26 and April 29, 1971,
and a complaint issued by the General Counsel on May 3,
1971. The complaint alleges in substance that Gotthelf was
expelled by the Respondent Union in violation of Section
8(b)(1)(B) of the National Labor Relations Act, because he
continued to work for Manhardt-Alexander during a strike
or work stoppage. The Respondent Union duly filed an an-
swer on May 10, 1971, denying the commission of unfair
labor practices.
Upon the entire record, including my observation of the
witnesses as they testified, I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Manhardt-Alexander, Inc., herein called Manhardt-Alex-
ander, is, and has been at all times material herein , a corpora-
tion duly organized under, and existing by virtue of, the laws
of the State of New York
At all times material herein, Manhardt-Alexander main-
itamed its principal office and place of business at 693 Seneca
Street, in the city of Buffalo, and State of New York, herein
called Seneca Street plant, and is, and has been at all times
material herein, engaged at said plant and location in the
business of commercial color lithographic printing. The Re-
spondent's Seneca Street plant is the only plant involved in
this proceeding.
During the past year, Manhardt-Alexander in the course
and conduct of its business operations, purchased, trans-
ferred, and delivered to its Seneca Street plant, ink, paper,
printing plates, and other goods and materials, valued in
excess of $50,000 of which goods and materials valued in
excess of $50,000 were transported to said plant directly from
States of the United States other than the State of New York
and in foreign commerce directly from foreign countries.
Manhardt-Alexander, is, and has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
The Respondent Union, Local 261, Lithographers and
Photoengravers International Union, AFL-CIO is, and has
been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that the Respondent Un-
ion brought Gotthelf up on charges before its executive
board, and then expelled Gotthelf from membership because
he had continued to work for Manhardt-Alexander during a
strike or work stoppage.
A. The Facts
There is little dispute as to the significant facts herein. The
record establishes the fact that all times material herein the
Respondent Union had been party to a collective-bargaining
agreement with Manhardt-Alexander, the most recent of
which became effective October 4, 1970, and would expire by
its term on October 6, 1973, and that at all times material
herein the parties had been working under this agreement,
although it was not formally executed. It is also established
that Gotthelf is a supervisor within the meaning of Section
2(11) of the Act and that he possessed and exercised griev-
ance adjustment authority on behalf of Manhardt-Alexander.
The record also establishes that on or about December 2,
1970, members of the Respondent Union employed by Man-
hardt-Alexander engaged in a strike or work stoppage and
engaged in picketing at the Respondent's Seneca Street plant.
During the strike and picketing referred to above on Decem-
ber 2, 1970, Gotthelf crossed the picket line and continued to
work for Manhardt-Alexander at the Seneca Street plant. The
strike lasted one day and the men returned thereafter.
On or about January 22, 1971, the Respondent brought
Gotthelf up on charges before its executive board and on or
about February 5, 1971, the Respondent expelled Gotthelf
from membership because he had crossed the picket line.
Credited and uncontroverted testimony of record by Mel-
vin Alexander, president of Manhardt-Alexander, and cor-
roborated by credited and uncontroverted testimony of
record by Lester Gotthelf establishes the fact that on the
evening before the strike Alexander realized that the Com-
pany had a strike on its hands because of a notice sent to all
employees by the Union indicating they were to leave the
premises when the shift ended. Since Alexander anticipated
that the expensive equipment was going to be out of operation
for a considerable length of time, certain precautions had to
be taken to obviate damage
Alexander called Gotthelf and told him he was not satisfied
with the way the equipment had been left in the plant at the
close of the day on December 1, 1970, and he advised
Gotthelf that in his opinion proper precautions for an ex-
tended shutdown had not been taken. Alexander instructed
Gotthelf to come in the following morning and check out the
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment as a precautionary measure and that that was all
he was to do.
Alexander testified that on the next day, December 2, 1971,
the morning of the strike he went to the office where he was
told by Gotthelf that Gotthelf had cleaned up some rollers on
the press that required cleaning and had cleaned out the
alcohol system which was required if the presses were to be
out of operation for a while and had performed an additional
task consisting of an ink inventory. Gotthelf left at 11:30 a.m.
that morning.
When Alexander learned subsequently that Gotthelf was
brought up on charges by the Union he wrote a letter dated
February 2, 1971, in which he advised the Union that Got-
thelf had entered the plant the morning of the strike at Alex-
ander's request. "Normally we do not request any of our
supervisory people to cross the picket line, it they deem it
inappropriate.... The situation that prompted the request on
my part was because I was not satisfied with one of the pieces
of the press equipment left by our employees at the end of the
day. Anticipating that it may be a strike of many days or even
weeks, I asked Mr. Gotthelf to come in and check it out, in
order to protect our investment. He was here only for a
couple of hours and in that time he rectified the condition.
" In this letter Alexander requested the Union to recon-
sider its actions against Gotthelf.
The record also establishes the fact that prior to his expul-
sion from the Union, Gotthelf participated in union benefits
and was in both the union pension fund and the company
pension plan, but that subsequent to the expulsion and after
the shop steward refused to accept contributions by the Com-
pany on Gotthelf's behalf Gotthelf was excluded from the
union pension fund and included only in the company pen-
sion plan. The record also establishes the fact that subsequent
to his expulsion Gotthelf was provided with certain substitute
health and welfare benefits by Manhardt-Alexander.
B. Analysis, Discussion, Findings, and Conclusions
There is ample evidence on this record to establish the fact
and I find that Gotthelf was a supervisor within the meaning
of Section 2(11) of the Act and that he had authority and
exercised the authority to represent Manhardt-Alexander in
the adjustment of grievances. Whether or not these were
rumor complaints or formal grievances is not significant in
light of the Board's decision in Toledo Locals Nos. 15-P and
272 of the Lithographers and Photoengravers International
Union, AFL-CIO (The Toledo Blade Company, Inc.), 175
NLRB No. 173.
It is clear and I find that Gotthelf was expelled from mem-
bership in the Union because he crossed the picket line and
continued to work for Manhardt-Alexander during the
strike.
As the Board stated recently in Local Union No. 2150,
International Brotherhood of Electrical Workers, AFL-CIO
(Wisconsin Electric Power Co.), 192 NLRB No. 16, "When
the underlying dispute is between the employer and the union
rather than between the union and the supervisor then the
union is precluded in taking disciplinary action by Section
8(b)(1)(B). The intent is to prevent the supervisor from being
placed in a position where he must decide either to support
his employer and thereby risk internal union discipline or
support the union and thereby jeopardize his position with
the employer. To place the supervisor in such a position casts
doubt both upon his loyalty to his employer and upon his
effectiveness as the employer's collective bargaining and
grievance adjustment representative. . . "
Accordingly, since the underlying dispute herein is clearly
between employer and union, the Union's expulsion of
Gotthelf restrained and coerced Manhardt-Alexander in its
right to continue to rely on Gotthelf to exercise his super-
visory functions as well as to adjust grievances and clearly
coerced Manhardt-Alexander in its choice of representatives
in the handling of grievances. Dallas Mailers Union Local No.
143, et al. v. N.L.R.B., 455 F.2d 730 (C.A.D.C. June 25,
1971), and accordingly is an unfair labor practice in violation
of Section 8(b)(1)(B) of the Act. Toledo Locals Nos. 15-P, et
al. supra.
The Respondent urges that should it be concluded herein
that the expulsion of Gotthelf by the Union for crossing the
picket line is unlawful as a violation of Section 8(b)(1)(B) of
the Act, nevertheless this case should be distinguished on the
basis that Gotthelf is a nonworking supervisor, is outside the
bargaining unit, and that Section 8(b)(1)(B) is therefore not
applicable.
I am not persuaded by this distinction, if distinction it be.
The fact that Gotthelf is a nonworking supervisor in my
opinion in no way dilutes the rationale of the Board as applied
in Wisconsin Electric Power Co., supra. It is the Respondent's
act of driving a wedge between a supervisor clothed with
grievance-adjusting authority and his employer that is inter-
dicted. As for the Respondent's additional contention that
because Gotthelf was allegedly not covered by the agreement
it was not required to include Gotthelf in its health and
welfare programs the answer is obviously that the Union
nevertheless did so. It is the unlawful act of expulsion that is
the direct cause of the loss of benefits to Gotthelf and the
imposition of additional costs on the Employer herein in
providing substitute coverage.
Accordingly I find, and conclude, that by expelling Got-
thelf from membership in the Union because he crossed the
picket line and continued to work for Manhardt-Alexander,
the Union violated Section 8(b)(1)(B) of the Act.
I find it unnecessary, if not inappropriate, to explore the
respective rights of the parties herein in the event the Union
had or were to expel Gotthelf for lawful reasons and not as
found herein in violation of Section 8(b)(1)(B) of the Act.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Union set forth in section II, above,
occurring in connection with the operations of the Company
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Manhardt-Alexander is an employer within the meaning
of Section 2(2), engaged in commerce within the meaning of
Section 2(6) and business activities affecting commerce within
the meaning of Section 2(7) of the Act.
3. At the times material herein Lester Gotthelf has been a
supervisor of the Company within the meaning of Section
2(11) of the Act and is a representative of the Company for
the purposes of adjustment of grievances within the meaning
of Section 8(b)(1)(B) of the Act.
4. By expelling Lester Gotthelf on February 5, 1971, from
membership in good standing in its organization because he
crossed a picket line and continued to work during a strike
or work stoppage and by continuing such expulsion in effect,
the Union has committed and is committing unfair labor
practices within the meaning of Section 8(b)(1)(B) of the Act.
LITHOGRAPHERS , LOCAL 261 411
THE REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I shall recommend an order that it cease
and desist therefrom and that it take certain affirmative action
as specified below, which is necessary to remedy and to
remove the effects of the unfair labor practices and to effectu-
ate the policies of the Act.
I shall recommend an order that Respondent revoke and
rescind the action of expulsion imposed on Lester Gotthelf
and that it restore Gotthelf to membership with all rights and
benefits as though he had not been expelled and that Gotthelf
be made whole for any financial loss occasioned by the unlaw-
ful expulsion, that it give written notice of such action to
Lester Gotthelf. I shall also recommend an order that Re-
spondent not only post the notice to members attached as an
appendix hereto but that it provide additional signed copies
for posting by Manhardt-Alexander (it being willing) and
that an officer of the Respondent read said notice at two
consecutive meetings of the assembled membership. The lat-
ter action is considered necessary to dissipate the coercive
effect of the unfair labor practices on the Respondent's mem-
bership which approved the expulsion in a regular meeting.
Finally, I shall recommend an order that the Respondent
make whole Manhardt-Alexander for the cost of substitute
benefits incurred by reason of the unlawful expulsion.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
Local 261 , Lithographers and Photoengravers Interna-
tional Union , AFL-CIO , its officers , agents, and representa-
tives , shall:
1. Cease and desist from in any manner restraining and
coercing Manhardt -Alexander in the selection of representa-
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and Recommended Order herein shall, as provided in
Section 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
tives chosen by it for the purposes of collective bargaining or
the adjustment of grievances.
2. Take the following affirmative action:
(a) Expunge all records or other evidence in their files of
the Respondent Union's proceedings in which Lester Got-
thelf was expelled by Respondent Union.
(b) Revoke and rescind the expulsion imposed on Lester
Gotthelf and restore Gotthelf to membership with all rights
and benefits as though he had not been expelled, and give
written notice of such action to Gotthelf.
(c) Make whole both Lester Gotthelf and Manhardt-Alex-
ander for the cost of substitute health and welfare benefits
occasioned by the unlawful expulsion together with interest
thereon at 6 percent per annum.
(d) Post at its office and meeting places in Buffalo copies
of the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 3 , after being duly signed by Respondent 's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Forward signed copies of said notice to the Regional
Director for posting by Manhardt-Alexander, it being will-
ing, at all locations where notices to employees are cus-
tomarily posted.
(f) Read said notice to its assembled membership at two
consecutive regular membership meetings.
(g) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of receipt of this decision what
steps the Respondent has taken to comply herewith.'
' In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 3, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."