Newark Newspaper Pressmen's Union

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 566 (N.L.R.B. 1971)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newark Newspaper Pressmen's Union No. 8 a/w
International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, and Newark
Morning Ledger Co. d/b /a Newark Star Ledger.
Case 22-CB-1823
December 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 27, 1971, Trial Examiner James M.
Fitzpatrick issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations' Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner , as herein amended,
and hereby orders that the Respondent , Newark
Newspaper Pressmen 's Union No. 8 a/w Internation-
al Printing Pressmen and Assistants ' Union of North
America, AFL-CIO, its officers, agents, and repre-
sentatives , shall take the action set forth in the Trial
Examiner 's recommended Order , as modified below:
1. Insert the following as paragraphs 2(b) and 2(c)
of the Trial Examiner's recommended Order and
renumber the subsequent paragraphs accordingly:
"(b) Rescind any action taken in expelling William
Fitzgerald from membership in Respondent Union
and restore him to full membership.
"(c) Make William Fitzgerald whole for any losses
he may have suffered by reason of Respondent's
action in expelling him from its membership."
2. Substitute the attached notice for the Trial
Examiner 's notice.
1 The General Counsel excepts to the Trial Examiner's failure to
provide in his recommended Order that Respondent be specifically ordered
to (1) rescind its action taken in expelling Fitzgerald from union
membership, (2) restore him to full membership, and (3) make him whole
for any losses suffered by reason of such expulsion. We find ment in the
exception and shall appropriately modify the recommended Order and
notice
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by expelling
William Fitzgerald from the Union because he
recommended the discharge of James Trudel, we
hereby notify all, our members and the employees of
the Newark Star Ledger that:
WE WILL NOT expel William Fitzgerald, or any
other supervisor of the Newark Star Ledger, from
membership in our Union for conduct in the
performance of work in the employ of the Newark
Star Ledger while he is the selected representative
of that Company for the adjustment of grievances
or is a likely future selection to adjust grievances
on behalf of that Company.
WE WILL expunge all records or other evidence
in our files of the proceedings in which William
Fitzgerald was expelled from our Union.
WE WILL rescind any action taken in expelling
William Fitzgerald from our Union and restore
him to full membership.
WE WILL make William Fitzgerald whole for
any losses he may have suffered by reason of our
action in expelling him from our membership.
NEWARK NEWSPAPER
PRESSMEN'S UNION No.
8 A/W INTERNATIONAL
PRINTING PRESSMEN AND
ASSISTANTS' UNION OF
NORTH AMERICA,
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, Federal Building, 16th Floor, 970 Broad
Street, Newark, New Jersey 07102, Telephone
201-645-2100.
194 NLRB No. 89
NEWARK NEWSPAPER PRESSMEN'S UNION 567
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner: This case turns
on whether an employee was a supervisor and an agent of
the Company for adjusting grievances. It is a proceeding
under Section 10(b) of the National Labor Relations Act, as
amended (the Act) arising out of charges filed January 19,
1971, by Newark Morning Ledger Co., doing business as
Newark Star Ledger (herein called the Company). A
complaint issued on February 25, 1971, against Newark
Newspaper Pressmen's Union No. 8 affiliated with
International Printing Pressmen and Assistants' Union of
North America, AFL-CIO (herein called Respondent or
the Union), alleging that Respondent, contrary to the
requirements of Section 8(b)(1)(B) of the Act, restrained
and coerced the Company by expelling a supervisor named
William J. Fitzgerald from the Union, thereby attempting
to cause the Company to select someone other than him to
represent it in adjusting grievances. The Union filed an
answer admitting some factual allegations, denying others,
and denying that it had committed unfair labor practices.
The matter was tried before me at Newark, New Jersey, on
April 12 and 13, 1971.
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed by the parties, I make
the following:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
The Company is a New Jersey corporation engaged at
Newark, New Jersey, in the publishing, sale, and distribu-
tion of newspapers. In the conduct of this business during
the 12 months preceding the issuance of the complaint
herein it subscribed to various interstate news services,
published various nationally syndicated features, adver-
tised nationally sold products, and received from its
publishing operations gross revenue in excess of $200,000.
It also purchased newsprint, ink, and other goods and
materials valued in excess of $50,000 which were delivered
to its Newark plant from points outside New Jersey.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to
membership employees in the Company's pressroom. It has
been party to a serves of collective-bargaining agreements
with the Company governing the terms and conditions of
employment of those employees. The most recent such
agreement expired on July 15, 1970, but throughout the
time of the events covered in this case the terms and
conditions of employment continued in accordance with
that agreement by mutual consent of the parties.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Supervisory Structure of the Company
Company operations are carried on in various divisions
including circulation, advertising, editorial, and prod-
uction. The production division includes printing opera-
tions in the pressroom which are under the immediate
supervision of pressroom foreman Allen J. Powers and
three assistant foremen, Charles Hampton, Irving Schwe-
bel, and William J. Fitzgerald. The dispute here is over
Fitzgerald's status on January 14, 1971, when he was
expelled by the Union.
In the absence of the foreman, which occurs about 2
nights per week and part of the time on many other nights,
one of the assistant foremen has been in charge, assisted by
one or possibly both of the other assistant foremen. During
the week the assistant foremen rotated so that ordinarily
two have been on duty during at least part of any shift.
The foreman and assistant foremen do not all report at
the same time on every night's shift. By mutual arrange-
ment they have staggered their individual reporting times so
that one or another has been present not only during the
regular shift but also in advance thereof. As a result several
times a week one of the assistants arrived in advance of the
foreman to survey conditions for the night's operations and
to give whatever directions were necessary to assure an
efficient run of the presses.
B. The Pressroom Staff
In the pressroom the Company regularly employs
between 40 and 50 employees, each guaranteed 5 nights of
work per week . Because the pressroom is in operation 7
nights per week, the makeup of the staff rotates in order to
man the pressroom on every shift. The Company assigns to
each employee the 2 nights per week he has off work and in
this manner partially controls which nights individual
employees work. At the beginning of each week the
foreman prepares what is known as a markup assumption
which is a statement of the number of employees the
pressroom will need on each night of the coming week. This
markup assumption is both posted in the pressroom and
handed to the Union's chapel chairman in the pressroom.
The Union' assumes responsibility for supplying the
indicated number of pressmen for each night. If events such
as a larger than expected edition of the newspaper develop
in such a way as to require a larger than anticipated number
of employees in the pressroom, the foreman or an assistant
foreman conveys that information to the chapel chairman
as soon as possible so that the Union may supply a larger
number of people. Although the Company does not
officially recognize seniority in its plant, in the main it
honors the seniority of pressroom employees regarding
days off and work assignments in the pressroom. Thus an
employee assigned to be a pressman in charge of a press is
ordinarily one of the most senior employees.
C. Supervisory Status of Fitzgerald
There is no question but that pressroom foreman Powers
is and has been a supervisor. The parties have made- no
contentions regarding the supervisory status of assistant
foremen Hampton and Schwebel. Nevertheless, it is
implicit in the General Counsel's contention regarding
Fitzgerald's supervisory status that the other two assistant
foremen have throughout also been supervisors. It is
noteworthy that the Union makes no contention that
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hampton and Schwebel were not supervisors. Considering
all of the facts presented in this record I find that Hampton
and Schwebel at all times material herein were supervisors
within the meaning of the Act.
Fitzgerald began his employment with the Company in
1961 as a pressmen. Prior to July 7, 1970, he was normally
assigned as a pressman in charge of a press. On that day
according to the Company, he was promoted to assistant
foreman. This so-called promotion took the form of a bare
announcement placed by Powers on the weekly typewritten
markup assumption addressed to the chapel chairman that
"William Fitzgerald will come off the markup." His wages,
however, did not change. He continued to receive an hourly
wage through March 1971 as he had prior to his promotion
in contrast to Hampton and Schwebel who received an
annual salary. At the time he was told by Powers that the
Company did not wish just then to change his method of
compensation because the Company and Union were in
negotiations for a new contract. He promised Fitzgerald
that when the contract matter was settled he would be put
on a salary and that in any case the Company would pay
him a yearend bonus sufficient to equalize any disparity
between his compensation and that of the other assistant
foremen. In fact all three received approximately the same
compensation for the calendar year 1970, Hampton
receiving $16,300, Schwebel $16,266, and Fitzgerald
$16,248. Hampton, Schwebel and Powers were all members
in good standing of the Union, as was Fitzgerald, until his
expulsion.
It is beyond question that as of July 7, 1970, some change
did occur in Fitzgerald's employment status whereby he
thereafter assumed a status sinuliar to Hampton and
Schwebel. Thus none of the three were included in the
markup assumption, they all worked in the pressroom
office with Powers, they wore different clothing than the
rank-and-file employees whose uniforms were supplied by
the Company, 'and they had unlimited sick leave as
compared with 10 days' sick leave for rank-and-file
employees.
Under the collective-bargaining agreement the Union
had the right and obligation to- supply employees.
Consequently the Company did not enjoy unfettered
discretion in hiring pressroom personnel. Such discretion as
did exist resided in the foreman and the assistant foremen.
Thus the foreman could reject a pressman supplied by the
Union as incompetent or as in excess of the markup
guarantee. With his concurrence the assistant foremen
could do likewise and in his absence could do so on their
own.
The Company has published pressroom office rules
which were negotiated with the Union and which provide,
inter alia, "The orders and instructions of foremen and
assistant foremen shall be obeyed at all times. Foreman and
assistant foremen shall enforce the office rules and
violations of office rules shall be cause for discriplinary
action." Fitzgerald credibly testified that on occasion he
had disciplined certain named employees including a
pressman named Frank DeSimone in that he warned him
for being tardy. DeSimone (the only one of the named
employees to testify) denied that Fitzgerald had ever
warned him for being late or disciplined him. I do not credit
DeSimone. But in any case the giving of such warnings and
discipline was normal procedure for Hampton and
Schwebel, and also Fitzgerald after July 7, 1970.
Fitzgerald also testified credibly that on occasion he had
given pressroom employees permission to leave work on
grounds of illness, and also that on infrequent occasions he
had authorized overtime for employees.
With respect to the pressmen who on any given night
reported for work the assistant foreman exercised a limited
discretion in making work assignments . In theory their
discretion was unlimited. As a practical matter, however,
exercise of their sound judgment resulted in assigning the
more senior and, therefore, the more experienced pressmen
to the more responsible jobs (including the job of pressmen
in charge of a press). The assistant foreman on duty made
these assignments based on his experience with the
particular employee and the equipment, honoring where
possible the individual preferences of the employees. In
supplying a staff of pressmen sufficient to satisfy the
number required for any given night by the Company's
markup assumption (which contained no individual
names), the Union selected individual pressmen based
upon their seniority in employment with the Company. The
result was that although the Company does not admit to a
procedure honoring seniority, seniority in fact has had
considerable impact on the assignments made by the
assistant foremen. In the eyes of the Union seniority has
usually been honored by the Company.
Fitzgerald summarized his July 1970 change from a rank-
and-file employee to his new status in the following words,
"I was a journeymen pressmen on the Newark Star Ledger
markup, a regular situation holder. And I would work at
whatever assignment the foreman or assistant foreman
placed me in. More often that not I was running a press, a
pressman in charge. When I received the foreman's job, I
came off the markup, went into the office as assistant
foreman, and instead of being in charge of one press or
instead of just being a button man or an oil man or
whatever I was, specifically told to do on a given night, I
assumed the job of assistant foreman and did the direction
of the pressmen and of the pressroom under the foreman,
the general foreman , Mr. Powers." At another point in his
testimony he described his new mission as being sure the
paper was produced the way the publications department
had determined. More particularly, he would learn from the
publications department or from the foreman the number
of pages of the edition to be printed, would determine what
presses were to be run, would determine what paper to use
on the presses, would assign journeymen to the presses,
would have the presses set so the pages would come out
correctly, would go through certain prescribed quality
control procedures, would tear off old "pasters," would
check the work of the apprentice boys, would check the
product for errors after the press run started, if substantial
errors occurred would make a determination whether to
stop the presses and correct the error or not and stop the
presses if he so decided, and, when breakdowns in the press
run occurred, would determine the cause thereof and, if
mechanical in nature, direct an electrician or a machinist to
correct the difficulty.
NEWARK NEWSPAPER PRESSMEN'S UNION 569
D. Handling of Grievances F. Discharge of Trudel
The parties are in disagreement as to whether assistant
foremen , and Fitzgerald in particular , represented the
Company in the handling of grievances, the General
Counsel and the Company contending that Hampton,
Schwebel , and Fitzgerald as well as Powers represented the
Company in this regard, and the union position being that
only Powers represented the Company in what may
properly be called grievances.
The collective-bargaining agreement provides a three-
step grievance and arbitration procedure for the handling
of disputes arising under the contract. As the first step in
this procedure such disputes "shall in the first instance be
discussed between the chapel chairman and the foreman in
the shop." The Union considers that such a grievance must
be one of sufficient gravity to justify writing it up for
presentation to the foreman , Powers, as the first step of this
procedure. It is clear that such formal grievances were
presented to Powers and not to the assistant foremen.
Fitzgerald testified that in the absence of the foreman the
assistant foremen sometimes discussed grievances with the
chapel chairman under the first step of the collective-
bargaining agreement's grievance and arbitration proce-
dures. However, no instance of such handling of formal
grievance procedures by an assistant foreman was brought
forth in the evidence and the Union's chapel chairman for
1970, Norman Steward, credibly testified that no such
grievances were processed with Fitzgerald, Hampton, or
Schwebel pursuant to the contract.
On the other hand many minor complaints not of
sufficient gravity to warrant formal presentation in writing
were presented orally by the employee involved, or on his
behalf by the chapel chairman, to the foreman or any of the
assistant foremen including Fitzgerald . These complaints,
which arose with considerable frequency involved such
things as too much or too little heat in the pressroom, too
much humidity, ink drippings, oil on the floor, excessive
paper on the floor, and various other working conditions.
In addition, on occasion they similarly complained
regarding urine on the paper rolls, operation of the Blue
Cross insurance program, and the laundry service. When
such minor grievances were presented to Fitzgerald, or one
of the other assistant foremen, he undertook to resolve the
difficulty by arranging a remedy.
E. Fitzgerald's Payroll Duties
Commencing in July 1970 Fitzgerald was put in charge of
the pressroom payroll which he prepared in accordance
with the wage scales provided in the collective-bargaining
agreement. Employees with complaints regarding their pay
brought them to him, either in person or through the chapel
chairman, and he acted thereon by making appropriate
adjustments. As contended by the Union, many of his
payroll duties were routine and clerical in nature.
Nevertheless, because payroll complaints involved wages
provided for in the contract, they were clearly disputes
arising under the contract which were his responsibility to
resolve on behalf of the Company.
In September and October 1970 the Company experi-
enced poor production in the pressroom , the result of
numerous unexplained web breaks (that is, breaks in the
paper running through the presses ) causing considerable
downtime . In an effort to correct the situation Powers
instructed Fitzgerald to observe operations as closely as
possible and endeavor to learn the cause of the web breaks.
On October 17 Fitzgerald , according to his testimony,
observed a journeyman pressman named James Trudel
break a web of paper with his hand thereby causing the
press to stop and resulting in downtime . Fitzgerald reported
his observations to Powers who asked for his recommenda-
tion . Fitzgerald recommended the discharge of Trudel for
what he considered an act of sabotage. At the end of the
shift that day Powers discharged Trudel.
This was the first time Fitzgerald had ever recommended
the dismissal of an employee , although when he was
allegedly made an assistant foreman in July 1970 Powers
advised him that he as well as Hampton and Schwebel had
authority to fire. According to Fitzgerald, however, they
would not have exercised such authority if Powers were
present but would defer to him, just making their
recommendation to him . Shortly before the hearing herein
Fitzgerald did in fact discharge a number of pressmen. But
the Union contends that by then his authority had been
enlarged beyond that which he possessed at the time of
Trudel 's discharge or his own expulsion from the Union.
G. Trudel's Charges Against Fitzgerald
On November 13, 1970, Trudel filed charges with the
Union that in causing his discharge Fitzgerald had violated
the Union 's constitution and bylaws . The Union notified
Fitzgerald that a hearing would be held on the charges on
January 4, 1971. On advice of counsel for the Company he
did not respond to the charges or appear at the hearing. On
January 14, 1971, the Union advised him that he had been
found guilty of violating article IV, section 3, and article V,
section 1, of its constitution and article VII , section 7, of its
bylaws and that he was expelled from the Union. By article
IV, section 3, of the constitution a member promises not to
wrong a brother member or see him wronged if it is in his
power to prevent . By article V, section 1, of the constitution
each member is obligated to support, abide by, and
maintain the union constitution and bylaws. Article VII,
section 7, of the bylaws provides inter alia that any attempt
by a member to deprive another member of employment
from personal motives or with malicious intent or to
supersede him in any manner shall , on trial and conviction,
be punished by fine, suspension, or expulsion. Fitzgerald
-did not appeal his expulsion.
On January 22, 1971, Fitzgerald was advised by the
insurance carrier for the Union that his insurance coverage
under the disability income insurance program provided to
members was being terminated because he was no longer a
member and that, he could if he chose convert his coverage
to an individual billing. In addition I note certain other
patent disadvantages flowing from his loss of membership.
For example , article III, section 1 and 3, of the Union's
bylaws require that a pressroom foreman be a member of
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, and section 8 of that article provides that no
expelled member shall be permitted to work in any
pressroom. The constitution of the International to which
the local Union involved herein belongs provides that no
person other than a member in good standing shall be
recognized as a foreman of a pressroom. It also prohibits an
expelled member from becoming a charter member of
another local or from holding office in the International.
The International constitution and also article IX, section
3, of the local bylaws disqualify his survivors from receiving
death benefits paid by the International "upon the death of
a full beneficiary member in good standing ...." In sum,
his expulsion was accompanied by, "the loss of many
valuable benefits." Dallas Mailers Union, Local 143 et al. v.
N.L.R.B., 445 F.2d 730 (C.A.D.C. dec. June 25, 1971).
H. The February Notice to the Pressroom
On February 22, 1971, the Company posted a notice in
the pressroom that effective that date Powers would-be
foreman, Fitzgerald assistant and acting foreman, and
Schwebel and Hampton assistant foremen. According to
Fitzgerald this did not affect any change in his supervisory
duties insofar as the rank-and-file employees were con-
cerned but was publication of the fact that as between
himself and the other two assistant foremen he was to act in
place of Powers when Powers was not present.
I. Discussion
There is no dispute that Fitzgerald was expelled from the
Union on January '14, 1971, because, pursuant to his
recommendation, Powers discharged Trudel.
Further, although the Union contests the assertion that
Fitzgerald was a supervisor, there is no real dispute that at
all times material assistant foremen Hampton and Schwe-
bel were supervisors. The weight of the evidence establishes
that after July 7, 1970, Fitzgerald exercised the same
authority as they. Accordingly, I find that from that time on
he too was an assistant foreman and a supervisor within the
meaning of Section 2(11) of the Act.
In addition, I find that he was a supervisor after July 7,
1970, and on October 17, 1970, and January 14, 1971,
because the weight of the evidence establishes that he
exercised specific supervisory `authority. Thus all three
assistant foremen, including Fitzgerald, regularly assigned
pressroom employees to their work stations when they
reported for work at the beginning of each shift and in
doing so relied in part upon their judgment regarding the
ability of particular employees to perform the tasks
assigned . They responsibly directed the employees in the
performance of their duties. On occasion Fitzgerald warned
employees for such things as tardiness. During frequent
absences of the foreman all three exercised limited
authority to order employment of additional pressroom
employees when a larger than expected press run or a need
for maintenance work required a larger number than called
for by the predetermined markup assumption. Fitzgerald
had authority to discharge employees in the absence of the
foreman and to effectively recommend discharge when the
foreman was present. On October 17, 1970, he effectively
recommended the discharge of Trudel. In light of all of
these attributes of supervisory status, I do not think the fact
that he continued to be paid wages instead of a salary is of
persuasive importance given the explanation of that
arrangement and the fact that all three assistant foreman
received approximately equivalent compensation during
1970. The duties he performed clearly establish him as a
supervisor. 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. He was not, as contended by Respondent, merely
a working foreman or a leadman.
The Union further contends that even if Fitzgerald was a
supervisor, he was not a company representative for the
purposes of adjusting grievances within the meaning of
Section 8(b)(1)(B) of the Act. A preponderance of the
evidence establishes that he did not represent the Company
in formal grievance proceedings brought under the
grievance and arbitration provisions of the collective-
bargaining agreement but that he did represent the
Company in handling numerous minor complaints brought
to his attention either by individual employees or the chapel
chairman. The Union contends ' these latter are not
grievances within the meaning of the Act. Its position seems
to be that to be a grievance within the meaning of Section
8(b)(1)(B) an employee complaint must have sufficient
gravity to cause it to be brought as a formal grievance
under the collective-bargaining agreement and that it must
qualify as a grievance as defined in that agreement.
However, I find nothing in the collective-bargaining
agreement to warrant a conclusion that the Company by
signing, that instrument waived its right to deal with
employee complaints other than by the formal grievances
and arbitration procedure. Nor do I think the conclusion is
warranted that the collective-bargaining agreement has
somehow modified the phrase "adjustment of grievances"
as used in Section 8(b)(I)(B) of the Act. The handling of
minor complaints other than as formal grievances pursuant
to procedures set up in a collective-bargaining agreement
does constitute-the adjustment of grievances within the
meaning of that section of the Act. Toledo Locals Nos. 15-P
and 272 of the Lithographers and Photoengravers Internation-
al Union, AFL-CIO (The Toledo Blade Company, Inc.),
supra. Fitzgerald handled such grievances on behalf of the
Company and he was, therefore, its representative for the
adjustment of grievances within the meaning of Section
8(b)(1)(B) of the Act.
Finally, the Union's expulsion of Fitzgerald because he
recommended Trudel's discharge clearly restrained and
coerced the Company in its rights to continue to rely upon
Fitzgerald to exercise his supervisory functions as well as
handle grievances. As the District of Columbia Circuit
noted in Dallas Mailers Union Local No. 143, et al v.
N.L.R. B., supra, "Such expulsion then could very well have
a definite coercive influence on the man chosen by the
Company as its representative." Section 8(b)(1)(B) under-
writes freedom from such coercion as well as the
Company's right at any time to select its representative
from an uncoerced group of supervisors whose loyalty to it
has not been prejudiced. Accordingly, the Union's
expulsion of Fitzgerald was, and continues to be, an unfair
labor practice within the meaning of Section 8(b)(1)(B) of
NEWARK NEWSPAPER PRESSMEN'S UNION 571
the Act. Toledo Locals Nos. 15-P and 272 of the
Lithographers and Photoengravers International Union,
AFL-CIO (The Toledo Blade Company, Inc.), supra;
International Association of Heat and Frost Insulators and
Asbestos Workers, Local 127,7, 189 NLRB No. 124.
The Union argument that its conduct was vis-a-vis
Fitzgerald as one of its members and that, having failed to
pursue the internal appellate procedures available to him in
the Union, he "cannot now be heard to complain in this
forum," misses the mark. Fitzgerald is not complaining
here. The complaint was issued by the Board's General
Counsel pursuant to his public duty. The charge was filed
by the Company. paid under Section 8(b)(1)(B) of the Act it
is restraint and coercion of the employer which is
forbidden.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Union set forth in section III, 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. The Company 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. Since July 7, 1970, William Fitzgerald has been one
of a group of supervisors of the Company within the
meaning of Section 2(11) of the Act who are representatives
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 William Fitzgerald on January 14, 1971,
from membership in good standing in its organization
because he recommended the discharge of James Trudel,
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.
5. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act, including expunging from its records
any record of the proceedings of the Union resulting in the
expulsion of William Fitzgerald from membership, advising
Fitzgerald and the Company in writing of such actions, and
executing and posting the notice attached hereto as an
"Appendix."
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: i
ORDER
Respondent, Newark Newspaper Pressmen's Union No.
8, affiliated with International Printing and Assistants'
Union of North America, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from expelling or otherwise
disciplining William Fitzgerald, or any other supervisor of
Newark Morning Ledger Co. doing business as Newark
Star Ledger, as a member of said union, for conduct in the
performance of his work in the employ of said Company
while he is the selected representative of that Company for
purposes of adjustment of grievances, or future selection by
the Company as a grievance representative.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Expunge all records or other evidence in its files of
proceedings in which William Fitzgerald was expelled from
said Union.
(b) Advise William Fitzgerald and the aforesaid Compa-
ny in writing that it has taken the aforesaid action in
compliance with this Order and that it will cease and desist
from action forbidden in paragraph 1 of this Order.
(c) Post at its business offices, meeting halls, and other
places where notices to members are customarily posted
copies of the attached notice marked "Appendix." 2 Copies
of said notice, to be provided by the Regional Director for
Region 22, shall, after being duly signed by representatives
of Respondent, be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places including
all places where notices to members and employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for Region 22 signed
copies of the notice for posting by the aforesaid Company
at its place of business in places where notices to employees
are customarily posted, if that Company is willing to do so.
Copies of said notice, on forms provided by the Regional
Director for Region 22, shall, after being duly signed by a
representative of Respondent, be forthwith returned to the
Regional Director for such posting.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith.3
I 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
2 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."
3 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 22, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."