New York Typographical Union No. 6

National Labor Relations Board - Board Decisions

Oct 5, 1973

206 N.L.R.B. 294 (N.L.R.B. 1973)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Typographical-Union No. 6, International
Typographical Union, AFL-CIO and Daily Racing
Form, a subsidiary of Triangle Publications, Inc.
Case 22-CB-2345
October 5, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On June 27, 1973, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his 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 Respondent, New York Typographical
Union No. 6, International Typographical Union,
AFL-CIO, Newark, New Jersey, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
1 In agreeing with the results herein, Member Fanning does so because
Respondent disciplined its member, a supervisor, for performing regular
supervisory functions during the picketing. See his dissenting opinions in
International Brotherhood of Electrical Workers, Local 134 (Illinois Bell Tele-
phone Company), 192 NLRB 85, reversed and remanded 487 F 2d 1143 (C A.
D.C., 1973), and Local Union No. 2150, International Brotherhood of Electrical
Workers, AFL-CIO (Wisconsin Electric Power Company), 192 NLRB 77,
enfd. 486 F 2d 602 (C.A. 7, 1973).
DECISION
STATEMENT OF THE CASE
JoHN M. DYER, Administrative Law Judge: On February
22, 1973,1 The Daily Racing Form, a subsidiary of Triangle
Publishing, Inc., herein called the Company or Charging-
Party, filed a charge alleging that New York Typographical
i All dates herein refer to 1973, unless specifically stated otherwise.
Union No ., 6, International' Typographical Union, AFL-
CIO, herein called the Union, Local 6 or Respondent, had
violated Section 8(b)(1)(B ) of the Act by actions which it
took against the Company's production manager, John J.
Flood.
The Acting Director of, Region 22 issued a complaint on
April 13 which in addition to the requisite jurisdictional and
commerce allegations alleged that John J . Flood is a statu-
tory supervisor and the production manager of the Charging
Party at its New Jersey plant and a member of Local 6. The
complaint alleges that Bertran A . Powers, Local 6 's presi-
dent, filed a charge , against Flood on December 20, 1972,
citing him to appear before an intraunion trial committee
because he had continued to work at the Company despite
Local 6's picketing of the Company's plant since December
7, 1972. Following a proceeding before such trial committee
Respondent expelled Flood from union membership and
levied a fine of $5,000 on him. It is alleged that such action
by Respondent is an attempt to restrain or coerce the Com-
pany in its selection of its supervisory representative and
violates Section 8 (b)(1)(B) of the Act.
There is no'contest as to the facts in this case since Re-
spondent during the trial stipulated to the supervisory status
of Flood and its answer as amended admitted all of the
complaint allegations except for the conclusionary para-
graphs stating that certain Respondent actions violated the
Act.
At the beginning of the trial Respondent moved for an
indefinite postponement so, that Flood 's appeal to the appel-
late board of the International Union might be resolved and
perhaps the action of Local 6 reversed. Respondent analo-
gized the situation to the Board 's Collyer doctrine stating
that if the appeal was upheld, Respondent's action would be
reversed and that should end the matter . The Union cited
N.L.R.B. v. Columbia Typographical Union No. 101, 470
F.2d 1274 (C.A.D.C ., 1972) where a circuit court refused to
enforce a Board order , holding the issue to be moot since
the local's actions had been reversed before issuance of the
complaint by the General Counsel.
Respondent's motion was vigorously opposed by the
Charging Party and Counsel for the General Counsel and
was denied since the Collyer doctrine' does-, not apply t--
internal union matters, and there is no binding arbitratioir
here, but only an appeals panel. Secondly,.the parties to the
present case are not the parties to that internal union pro-
ceeding . Further the matter is not, moot since the fine and
expulsion are still in existence at this time and there is no
way to forecast the union appellate board 's decision.
The gravamen of the complaint is that the Company's
rights have been violated since their supervisor would be
inhibited by the Union's actions and their right to choose
and have a loyal supervisor was jeopardized. Flood's rights
are important both to Flood and to the Company but the
issue before us, however , is the violation of the Company's
rights through the Union's action against Flood.,
Respondent 's motion was denied.'
Upon the entire record in this case I make the following:
z Erroneously the discussion and the positions of the parties and my ruling
were not included in the transcript record , but since it did not involve
evidence, this would not prejudice the case in any fashion. The synopsis of
the positions and my ruling set forth above will suffice.
206 NLRB No. 83
NEW YORK TYPOGRAPHICAL UNION NO. 6 295
FINDINGS OF FACT which a discussion was held on a charge of Local 6's presi-
dent Powers that Flood had violated his union responsibili-
I. THE BUSINESS OF THE COMPANY AND ties by working behind Local 6's picket line. By secret ballot
THE LABOR ORGANIZATION
The Charging Party is a Delaware corporation maintain-
ing an office and plant at Hightstown, New Jersey, where
it is engaged in the publication, sale and distribution of a
racing information newspaper called "The Daily Racing
Form." In publishing and distributing this newspaper the,
Charging Party subscribes to various interstate news serv-
ices, publishes syndicated features, and carries ads for na-
tionally advertised products and during the past year
received gross revenues from such publishing operation in
excess of $200,000.
The Charging Party and Union admit and I find that the
Charging Party is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The Union admits and I find that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Background and Facts
John J. Flood had worked for a number of years as a
general foreman of the composing room at the Morning
Telegraph which is another subsidiary of Triangle Pub-
lishing Company. In 1971 he went with the Charging Party
as the general foreman of the composing room, and on
August 1 of that year became the production manager. His
job entails responsibility for the pressroom and the compos-
ing room, ordering supplies and equipment, and scheduling
and assigning and hiring and discharging employees of the
complement of 100 working in these two rooms. He also
receives and handles grievances and tries to adjust them on
behalf of the Company. The employees are hourly paid and
punch a timeclock while Flood is salaried and does not use
the timeclock. Flood is a member of the Company's three-
man negotiating team which meets and negotiates with Ty-
pographical Local 71, which represents most of the employ-
ees at the Company's composing room and with
Lithographers and Platemakers Union No. 1 which repre-
sents the Company's pressroom employees.
Flood has been a member of Local 6 for some 20 years
and through such membership has certain pension rights
and mortuary rights, both of which are substantial to him
and which he testified would be lost if his union member-
ship was canceled.
On December 7, 1972, Local 6, which is normally a New
York local, appeared at the Company's Hightstown plant
and began picketing, carrying signs indicating that it
claimed jurisdiction over the composing room at the Com-
pany and claiming that the Company was performing struck
work.
Flood apparently is one of the few, if not the only, em-
ployee employed at the Hightstown plant who was a mem-
ber or continued to be a member of Local 6. Flood
continued to work throughout the strike as did all the other
company employees.
Flood attended a Local 6 meeting held January 21, at
it was decided to-have a trial committee proceed on the
charge.
Subsequently Local 6's president Powers informed Flood
by letter of the Union's decision and the trial date of Febru-
ary 9. At the trial which Flood attended, Local 6's president
Powers testified that Flood was violating his membership
duties by working behind the Union's picket line. After the
trial Flood received a letter from the secretary of the trial
committee affirming the charges and recommending his ex-
pulsion and that a fine of $5,000 be levied against him.
On March 18 at a regular union meeting the trial commit-
tee report and recommendation was received and the mem-
bership approved it. Flood appealed the Union's ruling to
the International Union's appellate board within the 5 days
specified in the union rules to forestall operation of Local
6's action. The appeal is still pending.
Local 6 has in no way repudiated its action in the interim,
and Flood has not paid the fine.
No question was raised by the Union that Flood was not
performing his supervisory duties as a production manager
during the picketing.
B. Analysis and Conclusions
Without contradiction the facts show that John J. Flood
is a member of Local 6 employed as a supervisor'with au-
thority to hire and fire and receive and act on grievances of
the employees in the pressroom and composing room. He
is also a member of the Company's three -man negotiating
team.
Charges were brought against him by Local 6 's president
for working behind the Union's picket line and on such
basis he was found guilty, fined $5,000 , and expelled from
the Union.
Respondent agrees it took such action but claims it is an
internal union matter and that the action may be reversed
by the International Union's appellate board . However,
even such a reversal would not cure the violation here.
Actions, such as those taken by Respondent , have been
held numerous times by the Board to constitute interference
with the employer's right to select his representatives for the
purpose of collective bargaining or the adjustment of griev-
ances and that such actions violate Section 8 (b)(1)(B) of the
Act. See Toledo Locals Nos. 15-P and 272 of the Lithogra-
phers and Photoengravers International Union (The Toledo
Blade Company, Inc.), 175 NLRB 1072 ; Dallas Mailers
Union, Local No. 143, et al. (Dow Jones Company, Inc.), 181
NLRB 286 ; Meat Cutters Union Local 81 (Safeway Stores,
Inc.), 185 NLRB 884; Passaic, Morris, Sussex & Bergen
Counties Newspaper Printing Pressmen 's Union No. 60 (Pas-
saic Daily News), 190 NLRB 268 , and San Francisco Typo-
graphical Union (California Newspapers, Inc.), 192 NLRB
523.
The pressure exerted by Respondent 's actions on the
Company's supervisor would tend to inhibit him and impair
his effectiveness as a loyal supervisor in maintaining the
Company's interests . In so deciding I follow the same line
of reasoning expressed in the above cases and determine
296 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent's actions violated Section 8(b)(1)(B) of the
Act. Accordingly, I shall recommend that Respondent res-
cind its actions in expelling and fining Flood and that it
withdraw and expunge from its records those charges on
which said actions were based and make him whole for any
losses he has suffered by reason of Respondent's actions.
111. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section II,
above, occurring in connection with the Employer's opera-
tions as 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.
IV. THE REMEDY
Having found that Respondent violated Section
8(b)(1)(B) of the Act, I shall recommend that Respondent
cease and desist from restraining or coercing the Employer
in the manner found herein. Additionally, I find that the
coercive effect herein found can be removed only if Respon-
dent is required to rescind its action of expelling Production
Manager John J. Flood from the Union and fining him and
restore to him his union membership, the right to his
traveler's card, and any and all benefits accruing or due him
because of his union membership, such as his mortuary
insurance and his pension rights, and make him whole for
any losses he has suffered by reasons of Respondent's ac-
tion.
On the basis of the foregoing findings and the record
herein, I make the following:
CONCLUSIONS OF LAW
Form, a subsidiary of Triangle Publications, Inc., in the
selection of representatives chosen by it for the purposes of
collective bargaining or the adjustment of grievances.
(b) Expelling and refusing membership to and fining
Production Manager John J. Flood because of his conduct
and performance of work as the Employer's selected repre-
sentative for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act.
(a) Rescind its action taken in expelling John J. Flood
from membership in Respondent and in fining him.
(b) Make John J. Flood whole for any losses he may have
suffered by reason of Respondent's action in expelling him
from membership in Respondent and fining him.
(c) Advise Flood in writing that it has taken the action
of restoring him to full membership in the Union and that
all references to his expulsion from the Union and to its
fining of him are to be expunged from Respondent's re-
cords.
(d) Post at its business office, union hall, or any places
where it customarily places notices to members, copies of
the attached notice marked "Appendix." '1 Copies of the
said notice shall also be posted at the Employer's place of
business if the Employer is willing. The notices, on forms
provided by the Regional Director for Region 22, shall be
signed by an authorized representative of the Respondent,
and shall be posted by Respondent immediately upon re-
ceipt thereof in the manner provided above. The notices are
to be posted for 60 consecutive days, in conspicuous places,
including all places where notices to members are custom-
arily posted and reasonable steps shall be taken by Respon-
dent and by the Employer to insure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
1. Respondent is a labor organization within the meaning
of Sections 2(5) and 8(b) of the Act.
2. The Employer is an employer within the meaning of
Sections 2(2) and 8(b)(1)(B) of the Act.
3. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. By restraining and coercing the Employer in the selec-
tion of its representatives for the purposes of collective bar-
gaining or the adjustment of grievances, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER3
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this case, I recom-
mend that Respondent, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) In any manner -restraining or coercing Daily Racing
3 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, recommendations, 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.
° 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 Judgement of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a trial in which the Company, Local 6, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that we
NEW YORK TYPOGRAPHICAL UNION NO. 6
violated the Act.We have been ordered to post this notice
and to abide by what we say in this notice.
WE WILL NOT in any manner restrain or coerce Daily
Racing Form, a subsidiary of Triangle Publications,
Inc., in their selection of representatives chosen for the
purposes of collective bargaining and/or the adjust-
ment of grievances or disputes under the contract. '
WE WILL NOT expel from membership or deny mem-
bership to a-production manager or other supervisory
official, or otherwise enforce discipline for the conduct
or performance of work while such persons are the
selected representatives of the Employer and its repre-
sentatives for the purposes of collective bargaining or
the adjustment of grievances.
WE WILL rescind the expulsion of John J. Flood from
union membership and restore him to membership in
the Union with all the rights and privileges due him and
rescind our action in fining him and make him whole
for any losses he suffered by reason of such actions and
remove from our records any reference to such expul-
sion and fin/
Dated By
297
NEW YORK TYPOGRAPHICAL
UNION No 6, INTERNATIONAL
TYPOGRAPHICAL UNION, AFL-
CIO
,(Labor Organization)
(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 direct-
ed to the Board's Office, Federal Building, 16th Floor, 970
Broad Street, Newark, N.J. 07102, Telephone 201-645-
2100.