Local 43, Printing Pressmen

National Labor Relations Board - Board Decisions

Feb 4, 1974

208 N.L.R.B. 925 (N.L.R.B. 1974)

LOCAL 43, PRINTING PRESSMEN 925
Local 43, International Printing Pressmen and Assist-
ants Union of North America (San Antonio Ex-
press and News) and Wallace H. Wieters. Case
23-CB-1281
February 4, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 12, 1973, Administrative Law Judge
Max Rosenberg issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
and Employer filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Local 43, International Printing Pressmen and
Assistants Union of North America, San Antonio,
Texas, its officers, agents, and representatives, shall
pay employee Wallace H. Wieters the amount set
forth by the Administrative Law Judge in the
attached Supplemental Decision, plus interest, less
deductions required by state and Federal laws.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MAX ROSENBEF:G, Administrative Law Judge : This is a
backpay proceeding which came on to be heard before me
in San Antonio , Texas, on August 21, 1973 , pursuant to an
amended backpay specification filed by the General
Counsel of the National Labor Relations Board and an
amended answer filed thereto by Local 43, International
Printing Pressmen and Assistants Union of North Ameri-
ca, herein called the Respondent .) This backpay litigation
finds its origin in a Board decision and order , rendered on
March 8 , 1973,2 which directed Respondent to compensate
Wallace H . Wieters and Rudolph L. Rivers for any loss of
pay which they may have suffered as a result of
I At the hearing, I granted the General Counsel's unopposed motion to
amend the backpay specification by substituting , to paragraph 4 thereof, the
word "(day)" opposite the date of May 4, 1972, in lieu of the word "(night)."
Paragraph 6 was also amended to reflect that, on the same May 4 day shift.
Respondent's discrimination practiced against them in
violation of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended.
Following issuance of the Board 's decision and order, a
controversy arose over the amount of backpay owed to the
discriminatees . In consequence of the dispute , the Regional
Director for Region 23 issued a backpay specification,
subsequently amended at the hearing, and a notice of
hearing on June 19 , 1973. On July 20, 1973, Respondent
interposed its second amended answer to the foregoing
affirmative pleadings. At the hearing conducted on August
21, 1973, all parties were afforded full opportunity to
present evidence and to examine and cross-examine
witnesses . Briefs have been received from the General
Counsel, Respondent, the Employer, and Charging Party
Wallace H . Wieters, which have been duly considered.
Upon the basis of the entire record made in these
proceedings , including my observation of the demeanor of
the witnesses who testified , I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
In its original decision and order, the Board found that
Respondent had violated Section 8(b)(1)(A) and (2) of the
Act by removing the names of Wallace H. Wieters and
Rudolph L. Rivers from overtime lists maintained by
Respondent , thereby depriving them of overtime shift work
with their Employer, San Antonio Express and News,
because they failed to pay fines imposed upon them by
Respondent as a consequence of their refusal to accept
out-of-shop assignments with another employer. To reme-
dy these unfair labor practices , the Board ordered that
Respondent "Restore and keep the names of Wallace H.
Wieters and Rudolph L . Rivers on the overtime list
maintained by it at the San Antonio Express and News on
a rotating basis and in accordance with past practice," and
directed that Respondent "make Wallace H. Wieters and
Rudolph L. Rivers whole for any loss of pay they may have
suffered by removal of their names from the overtime list."
In his backpay specification, the Regional Director
alleged that the backpay period as to each individual
claimant commenced on April 23, 1972, and ended on May
27, 1972. He thereafter set forth the backpay formula and
computations , and concluded that Respondent was obli-
gated under the terms of the Board's order to make whole
Wallace H. Wieters and Rudolph L. Rivers by payment to
them the sums of $453.90 and $408.60, respectively, with
appropriate interest thereon, less tax withholdings. In its
second amended answer , Respondent admitted the back-
pay period, the formula, and the computations as outlined
in the backpay specification. However , it defended against
its backpay liability on dual grounds . First, Respondent
maintains that, based upon calculations since January 1972
until the commencement of the backpay period on April
23, 1972, Wieters had "established a distinctive pattern of
accepting no more than 50 percent of the overtime shifts
which had been offered to him ," and Rivers had "estab-
lished a distinctive pattern of accepting no overtime shifts
discrimmatee Wallace H. Wieter's backpay entitlement would have
amounted to $50 .25 rather than $51.90. The net backpay claimed for this
discnmmatee was thus reduced from $455 55 to $453.90.
2 202 NLRB 286
208 NLRB No. 142
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which have been offered to him ." Accordingly, Respon-
dent contends that , in view of these calculations, its
backpay obligation to Wieters should be reduced to the
sum of $201 .00, and that it owed nothing to Rivers.
Second, Respondent alternatively asserts that , after the
backpay period ended on May 27, 1973, it afforded
Wieters and Rivers priority standing for overtime work
which, if accepted by the claimants , would have equalized
the losses they sustained by the earlier removal of, their
names from the overtime list.
In the newspaper industry, in which the San Antonio
Express and News is engaged, a considerable amount of
overtime must be worked by the pressman in order that the
publication deadlines are uniformally met. The record in
this proceeding establishes , and I find, that, in this
industry, the normal work week for a pressman consists of
five regularly ' scheduled shifts. Any work performed
beyond these regular shifts is designated as overtime. In
order to insure that all pressmen at the San Antonio
Express and News have an equal opportunity to share in
overtime work, Respondent , through its chapel chairman
(union steward), maintains what is known as an "overtime
board." The board lists the names of the pressmen in
accordance with their seniority and contains the number of
overtime shifts with which they are charged . By evaluating
the number of accumulated overtime hours which each
employee has logged , the chapel chairman is then able to
ascertain which pressman is in line, as a matter of equity,
to bid on available overtime shift opportunities.
By virtue of his seniority on the overtime board, and
according to the uncontradicted testimony of Chapel
Chairman Harry Davis, Rudolph L. Rivers was normally
assigned to. toil on five regular shifts which occurred on
Monday night, Tuesday night , Wednesday night, Thursday
night, and Saturday day. Because Rivers managed a farm
and operated a horse ranch , he desired to be excused from
work on the weekend in order to oversee his private
ventures . He therefore gave Chapel Chairman Davis a
"standing order" that, in lieu of his regular fifth shift on
Saturday day, he wished to be assigned to a regular fifth
shift during the week .3. Consequently , Rivers never worked
an overtime shift from January 1, 1972 to April 23, 1972,
the commencement date of the backpay period . Moreover,
the record establishes , and I find , that from May 27, 1972,
the end of the baokpay period, until he left his employment
with San Antonio Express and News at the end of that
year, Rivers, in accordance with his practice , consistently
failed to accept overtime work even though it was available
to him.
Respondent contends that, based upon Rivers' persistent
policy during his pertinent employment history of shun-
ning overtime work, Rivers would have continued to
eschew such work during the backpay period even if his
name had remained on the overtime list and overtime was
available. Relying upon Newport News Printing Pressmen's
and Assistants ' Union, Local No. 288, International Printing
Pressmen and Assistants ' Union of North America, AFL-CIO
(The Daily Press, Inc.),4 the proponents of this litigation
assert that the gauge of Rivers' backpay entitlement should
be predicated upon "the number of -overtime opportunities
lost" during the backpay period, without regard to whether
he would have turned down overtime . work in that time
span. I perceive nothing in the Daily Press case which is
even remotely supportive of this assertion . In that case, the
employer decided to institute a split-shift situation and
asked the incumbent union to supply a pressman to fill the
position . The union refused, whereupon the employer hired
a pressman from one of its subsidiaries . Thereafter, the
union embarked upon a course of harrassment of the
employee which included the deprivation of overtime
work. The Board concluded that, by the foregoing conduct,
the Union violated Section 8(bXlXA), and (2), and ordered
the union to reimburse employee for loss of earnings
sustained by reason of the "loss of overtime opportunities"
during the backpay period. The facts in that case are
devoid of any suggestion that the discriminatee would have
nevertheless been entitled to overtime backpay despite his
persistent and historical refusal to accept overtime work.
Accordingly, I am convinced and conclude that, in light of
Rivers' consistent refusal to accept overtime shift work,
Rivers would not have accepted such work during the
backpay period even if his name had been retained on
Respondent 's overtime list. I shall therefore recommend
that no overtime backpay be awarded to him.
The case of Wallace H. Wieters presents a different
portrait of financial entitlement. Wieters testified that, on
the basis of records he observed at the plant, during the
period between January 1, 1972, and April 23, 1972, he had
been offered overtime work on 15 occasions and accepted
12 overtime shifts . Moreover, on the basis of Respondent's
own records, during a 5-week period following the
conclusion of the backpay period on May 27, 1972, Wieters
was afforded 13 opportunities to labor on overtime shifts
and accepted 8 of them. Furthermore, Chapel Chairman
Davis testified without contradiction that he had received
no "standing order" from Wieters' to the effect that the
latter would be unavailable for overtime work in order to
harvest the benefits of a free weekend. Accordingly, I
conclude that Wieters' record of accepting overtime is
compatible with the Regional Director's calculations that
Wieters, but for the removal of his name from Respon-
dent's overtime list, would have worked nine overtime
shifts during the backpay period. I deem Respondent's
contrary assertions to be too speculative to warrant serious
consideration.
In its second or alternative argument , Respondent claims
that Wieters should receive no backpay award because he
was offered but rejected sufficient amounts of overtime
work after the backpay period which would have equalized
the amounts which he would have received if his name had
remained on the overtime list between April 23 and May
27, 1972. This argument, too, must fall. The record reveals
that, with one exception, Wieters accepted at least one
overtime stint per week following May 27, 1972, and, on
one occasion, worked as many as three per week. Even
Chapel Chairman Davis conceded testimonially that, if
Wieters had accepted the added overtime work, he would
have had to toil "A whole bunch" to recoup the overtime
3 Davis' testimony is undeaied and I find that overtime is not awarded to 4 188 NLRB 475.
pressmen during a week until five regular shifts have been worked.
LOCAL 43, PRINTING PRESSMEN 927
pay which he lost during the backpay period. In the Daily
Press case, the Board made it abundantly clear that a
backpay claimant need not bear the hardship of working
additional periods of overtime in order to restore the status
quo which would have prevailed absent the discrimination
practiced against him.5
Upon the basis of the foregoing findings and conclu-
sions, I recommend that Respondent's obligation to make
whole Wallace H. Wieters shall be satisfied by payment, to
him of the sum set forth below opposite his -name, together
with interest thereon at the rate of 6 percent per annum,
calculated in the manner set forth in Local 138 Internation-
al Union of Operating Engineers, AFL-CIO, et. al., 151
NLRB 972, less any lawfully required tax withholding.
Wallace H. Wieters-$453.90
I
S Id at 476.
Inasmuch as I have concluded that Rivers is disentitled to backpay
because be would have rejected overtime work during the backpay period, it
becomes unnecessary to consider the applicability of Respondent's
alternative argument to his case . Needless to say, even if Rivers was deemed
to be entitled to backpay, Respondent's alternative defense would also fall
as to him.