Newspaper Web Pressmen's Union No. 6

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 856 (N.L.R.B. 1973)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper Web Pressmen 's Union No. 6, Internation-
al Printing Pressmen and Assistants Unionof North
America, AFL-CIO and The Washington Post
Company. Case 5-CB-1215
December 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 14, 1972, Administrative Law Judge'
Sidney J. Barban issued his attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering 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
attached Decision in light of the exceptions and
briefs and has decided to affirm only those rulings,
findings, and conclusions of the Administrative Law
Judge as are consistent herewith.
The complaint alleges, the General Counsel con-
tends, and the Administrative Law Judge found, that
Respondent violated Section 8(b)(1)(B) of the Act by
fining the Charging Part's foreman, Pendergast, who
was a member of Respondent, the sum of $10 for
failing to appear and testify before Respondent's
executive committee pursuant to charges brought
under Respondent's constitution by one Kelso,
another member of Respondent whom Pendergast
discharged, allegedly for sleeping on the job. At the
time the Administrative Law Judge issued his
Decision, however, he did not have the benefit of the
Board's subsequently issued decisions in Houston
Chronicle2 and A.S. Abell Company,3 wherein we
withheld the exercise of our remedial authority in
deference to contractual grievance-arbitration ma-
chinery which the parties had committed themselves
to utilize for the purpose of settling disputes such as
the instant one.
Here, as in the above-cited cases, the dispute
concerns the propriety of fining a supervisor. The
parties collective-bargaining agreement "fleshes out"
the statutory scheme by expressly providing that the
foreman is the Company's representative in the
pressroom and that "The Union shall not discipline
the foreman for carrying out the [Company] orders
so long as such orders are in accordance with the
1 The title of "Trial Examiner" was changed to Administrative Law
Judge" effective August 19, 1972.
2 Houston Mailers Union No. 36 a/w International Mailers Union
(Houston Chronicle Publishing Company), 199 NLRB 804.
terms of this agreement." It also provides that "All
disputes that may arise regarding this Agreement, the
construction to be placed on any clause or clauses of
the Agreement, any alleged violation thereof" shall
be subject first to conciliation and then arbitration
"should conciliation fail." Respondent has submitted
the dispute over Kelso's discharge to conciliation,
which failed to resolve the matter, but has not yet
submitted it to arbitration, primarily because Res-
pondent was of the opinion that its "case was not
strong enough."
While Respondent has not resorted to the arbitra-
tion phase of the grievance procedure with respect to
any complaint about Kelso's discharge, that is not
the issue before us. The issue here is whether the
disciplinary action taken by the Union against
Foreman Pendergast, about which the Charging
Party is here complaining, can effectively be resolved
in the contractual grievance and arbitration proce-
dure. It seems clear to us that it can. There would
appear to be no reason the Charging Party could not
utilize the grievance and arbitration procedure with
respect to Respondent Union's fine of its foreman, a
matter expressly dealt with in the above-quoted
provisions of the collective-bargaining agreement.
Therefore, for the reasons set forth in Columbia
Typographical Union No. 101, International Typo-
graphical Union of North America, AFL-CIO (The
Washington Post Company), 207 NLRB No. 123, we
shall dismiss the complaint herein and defer to the
contractual forum pursuant to the principles estab-
lished in Collyer,4 Houston Chronicle, supra, and
related cases, subject to reservation of appropriate
jurisdiction.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed, provided,
however, that jurisdiction of this proceeding is
hereby retained for the limited purpose of entertain-
ing appropriate and timely motions for further
consideration upon a proper showing either that (a)
the dispute has, with reasonable promptness after the
issuance of this Decision and Order, been resolved
by amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is
repugnant to the Act.
3 Baltimore Typographical Union No. 12, International Typographical
Union, AFL-CIO (The A.S. Abell Company), 201 NLRB 120.
4 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB
837.
207 NLRB No. 126
NEWSPAPER WEB PRESSMEN'S UNION NO. 6 857
MEMBER JENKINS, dissenting:
For the reasons set forth in the dissent in The
Washington Post case,5 the proceedings companion
to that case,6 Collyer, Houston Chronicle, and their
progeny, I would determine this proceeding in
accordance with the statutory mandate requiring the
Board to resolve unfair labor practices submitted to
it. Once again the majority has permitted the
elimination of the protection of the Act by the
writing of a contract clause incorporating the
pertinent section of the Act or conditioning applica-
tion of the Act on contract limitations.
contract provisions referred to by the parties to this
proceeding are the following (in pertinent part):
Foremen
Section 11 -a. The foreman, the [Company's] represent-
ative in the pressroom, shall be the recognized
authority in the pressroom, . . . and shall issue all
orders in conformity with the terms of this agree-
ment. . . . The foreman shall hire and discharge all
help and shall give instructions not inconsistent with
the provisions of this agreement as to the hours of
beginning and ending the day's or night's work and
time for lunch. Employees may be discharged for
5 207 NLRB No. 123.
6 Columbia Typographical Union No. 101, International Typographical
Union of North America, AFL-CIO [The Washington Post Company]
(Washington Publisher's Association), 207 NLRB No. 124 ; Columbia
Typographical Union No 101, International Typographical Union of North
America, AFL-CIO (Byron S. Adams Printing Inc.), 207 NLRB No. 125.
1. Incompetency
2. Neglect of duty
3. * * *
4.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Washington, D. C., on May 31, June 1, and June
14, 1972. The complaint, issued on April 14, 1972, based
upon a charge filed on February 2, 1972, alleges that the
Respondent (herein "the Union") violated Section
8(b)(l)(B) of the Act by levying a fine of $10 upon Beverly
Pendergast, a supervisor employed by the Charging Party
(herein "the Company") because Pendergast failed to
attend a union executive committee meeting, to which he
had been summoned to appear on charges filed by one
Mark Kelso whom Pendergast had previously discharged
from employment with the Company. The Union's answer
as amended at the hearing denies the commission of any
unfair labor practices, but admits allegations of the
complaint sufficient to support the assertion of jurisdiction
under current standards of the Board, and to support a
finding that the Union is a labor organization within the
meaning of the Act.
Upon the entire record in this case,' from observation of
the witnesses, and after due consideration of the briefs of
the General Counsel, the Company, and the Union, the
Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
I. THE FACTS
A. Applicable Collective-Bargaining Contract
Provisions
The Company and the Union are parties to a collective-
bargaining agreement effective, as extended, from October
1, 1969, until September 30, 1972, covering the operations
of the Company's newspaper pressroom. Among the
i General Counsel's motion to correct transcript , dated July 10, 1972, to
which no opposition has been filed, is hereby granted.
2 Although there is no provision in the agreement requiring supervisors
to be members of the Union, Pendergast and Pressroom General Foreman
*
Section 11-b. The Union shall not discipline the
foreman for carrying out the [Company's] orders so
long as such orders are in accordance with the terms of
this agreement.
Section 11-c. If the Union has a complaint against the
foreman the matter shall be processed as provided in
Section 14.
Section 11-d. * * * 2
Conciliation and Arbitration
Section 14-a. All disputes that may arise regarding this
agreement, the construction to be placed on any clause
or clauses of the Agreement, any alleged violations
thereof, or any discharge cases shall be subject to
conciliation... .
Section 14-b. It is agreed that . . . every effort [must
be] made to maintain harmonious relations. To
accomplish this, both parties will in every instance give
prompt attention to disputes and will, in good faith,
endeavor to settle all differences under this agreement
by conciliation.
Section 14-c. [provides for a four step grievance
procedure: (1) complaint by Union member to Chapel
Chairman, the recognized Union representative in the
pressroom; (2) complaint by Chapel Chairman to
foreman, or vice versa; (3) then by Chapel Chairman to
Union officers or foreman to management, as the case
may be; then by Union officers to management, or by
management to Union officers, as the case may be. If
no agreement within 10 days, the aggrieved party may
Henry were longtime members , as apparently is the situation with other
pressroom foremen of the Company and other newspaper publishers in and
about Washington, D. C.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
write up its position in 5 days, whereupon, "the parties
shall resort promptely to arbitration." ]
Section 14-d. * * *
B. The Grievance over Kelso's Discharge
On December 6, 1971, Foreman Pendergast discharged
Mark Kelso, an employee in the pressroom, for allegedly
sleeping on the job. The chapel chairman, when informed
of this, requested that Pendergast reinstate Kelso. Pender-
gast refused. The matter was taken up between the Union
and management of the Company in December, in
accordance with the provisions of the bargaining agree-
ment. Management refused to upset Pendergast's action.
Kelso appeared at the regular meeting of the union
executive committee in December to request that the
complaint over his discharge be taken to arbitration. On
the basis of the information presented to it, the executive
committee decided to recommend to the union member-
ship that the matter not be taken to arbitration. This
recommendation was accepted at the regular union
membership meeting in December, a few days after the
executive committee meeting.
C. Kelso's Charge Against Pendergast
After the Union refused to take his discharge to
arbitration, Kelso then approached Union Recording
Secretary Thomas Langren (a member of the executive
committee) to file charges under the union constitution
and bylaws against Pendergast for discriminating against
him in respect to his discharge. Langren testified that he
tried to talk Kelso out of filing the charges because
Langren did not think the case was strong enough, but that
Kelso insisted on filing the charge.
Langren and other union officials testified that, although
there are no written requirements to this effect, the Union
has no option to refuse to accept charges if a member
insists upon filing them, and that, once filed, the charges
must be taken to trial before the union executive
committee.
Langren prepared Kelso's charge against Pendergast in
the form of a summons to the latter to appear at the next
union executive committee meeting on January 14, 1972.
Printed at the bottom of the form are several provisions
from the union constitution and bylaws, one of which, art.
VII, sec. 8(j), provides that any union member summoned
"who fails to file or send a satisfactory excuse," shall be
subject to a penalty not to exceed $10 and may be tried
and have a decision rendered against him in absentia;
another, art. XIV, sec. 18, provides that any member with
charges against him failing to appear and bring his
summons "shall be fined $10.00."
Notwithstanding that the union bylaws provide (p. 35)
that in the preparation of charges "Details of the conduct
or activity charged should be described, giving dates and
places where possible," the summons-charge here merely
instructed Pendergast that he was accused of "violation of
Art. II, Sec. 3 of the Constitution on Sunday night,
3 Some years previous Pendergast had been similarly summoned to
appear before the union executive committee on the charge of an employee
whom Pendergast had discharged. On that occasion Pendergast did attend
December 5, 1971." That article and section of the union
constitution sets forth the obligation of membership taken
by new members of the Union, among which is the
following:
I furthermore promise that I will at all times . . . use all
honorable means in my power to secure employment
for pressmen and assistants of this Union ... in
preference to others . . . I further promise that I will
not wrong a brother member, or see him wronged if in
my power to prevent ...
D. The Union Proceedings on the Charge against
Pendergast
Pendergast informed the Company's assistant General
Manager for personnel and labor relations, Lawrence
Kennelly, of the summons he had received to appear
before the union executive committee on the charge filed
by Kelso, and advised Kennelly that he did not want to
appear, that he considered that he was being subjected to
harassment by the Union.3 Kennelly advised Pendergast
not to appear at the hearing, stating that he would be in
touch with the Union concerning this matter.
In the latter part of December 1971, Kennelly spoke with
Union President James Dugan about this matter, and on
January 6, 1972, confirmed the Company's position in a
letter to Dugan, as follows:
I have been informed that the Executive Committee of
the Union has summoned Foreman Pendergast to
appear before it on Friday, January 14, 1972, at 8:30
p.m.
It is my understanding that he is being charged with a
violation of Union rules for action he took in the
performance of his duties as a foreman. We consider
this a violation of the contract. If the Union has a
grievance against Mr. Pendergast for any action he has
taken as a foreman, we have procedures under the
contract to settle disputes and the grievance should be
against the Publisher, not the foreman.
We are instructing Mr. Pendergast not to appear at the
meeting of the Executive Committee and if disciplinary
action is taken against him for his failure to appear we
will have no recourse but to file an unfair labor practice
charge. If you wish to discuss a grievance the Union
may have against the Post for Mr. Pendergast's actions,
we are ready and willing to meet with you.
The union executive committee met on January 14, 1972,
as it was regularly scheduled to do, 2 days before the
regularly scheduled monthly meeting of the union mem-
bership. Kelso appeared and apparently gave his evidence.
After hearing the several other matters scheduled for that
evening, the executive committee, on the facts before it
including the information developed during the grievance
proceedings on Kelso's discharge, voted to recommend to
the membership that the Kelso charge against Pendergast
the hearing, but since his accuser did not appear the charge against him was
dropped.
NEWSPAPER WEB PRESSMEN'S UNION NO. 6 859
be dismissed. Noting that Pendergast did not appear,
however, the executive committee voted that Pendergast
should be fined $10 under art. XIV, sec. 18 of the union
bylaws.4 This was confirmed by the union membership.
Pendergast was informed in writing that the charge filed
against him by Kelso had been dismissed, but that he had
been fined $10 for failing to attend the executive
committee meeting. The fine was paid by Pendergast with
a check supplied by the Company. It was accepted by the
Union.
II. POSITIONS OF THE PARTIES
General Counsel and the Company assert that the Union
violated Section 8(b)(1)(B) of the Act by taking disciplinar-
y action against Pendergast, a management representative
with responsibilities in the handling and adjustment of
grievances, because Pendergast failed to appear at a
meeting of the union executive committee to answer a
charge against him rising out of his performance of duties
as a supervisor, thus tending to "restrain or coerce ... an
employer in the selection of his representatives for the
purposes of collective-bargaining or the adjustment of
grievances" within the meaning of that Section of the Act.
The Union contends in the first instance that this matter
should be deferred to arbitration under the collective-
bargaining agreement within the doctrine of Collyer
Insulated Wire, 192 NLRB 837. The Union asserts that its
discipline of Foreman Pendergast involves a contract
dispute inasmuch as sec. 11-b of the agreement provides
that the Union shall not discipline foremen for acting "in
accordance with the terms of [the bargaining] agreement,"
and sec. 11-c of that agreement provides that where the
Union has a complaint against a foreman, the complaint
should be processed under the conciliation and arbitration
provisions of the agreement (sec. 14).5 The Union points to
the fact that the Company itself asserted that the Union
charge against Pendergast violated the bargaining agree-
ment. However, the Union denies that the Union had or
processed a complaint against Pendergast within the
meaning of sec. 11-c of the agreement and asserts, for
reasons considered on the merits of the case, that it was
justified in its actions (and thus not in violation of the
agreement).
On the merits of the case, the Union argues, at the outset,
that the "record is devoid of any proof that the employer
has been restrained or coerced," though it is conceded that
"in adjudging whether a violation of law has been
committed, ' the answer does not hinge upon whether the
coercion succeeded or failed. The applicable standard is
may it be reasonably said that the conduct tends to
interfere with the unimpaired exercise of rights protected
by the Act."
4 In response to questions of the General Counsel as to why the penalty
was imposed under art. XIV, sec. 18 of the bylaws (which appears
mandatory) rather than under art. VII, sec. 80) of the constitution (which
provides for excusing members from attendance and appears to make such
penalty discretionary), it was testified that it was customary to fine -for
nonattendance under the former provision. Nevertheless, the union
witnesses agreed that the Union had a practice of excusing summoned
members from attending upon satisfactory excuse.
5 On the other hand, the Union also argues that under sec 11-b of the
bargaining agreement, it reserves the right to discipline foremen if their
In support of its contention that no coercion or restraint
occurred as a result of its actions, the Union asserts that
the only harassment indicated by Pendergast was the fact
that he had on two occasions been summoned before the
union executive committee by employees he had dis-
charged, on the first of which the charge against him was
dismissed because the employee did not show up, and on
the second (the present instance) he did not himself show
up on instructions from the Company. It is further asserted
that though Pendergast, since his first involvement with the
union executive committee , had imposed discipline upon
and discharged employees, he was unable to point to any
instance in which his supervisory conduct was affected by
that incident. Pendergast, however, qualified that testimo-
ny, asserting while he did not recall any specific instance,
"I would be more inclined to be a little more lenient if I
had to appear before the Executive Board every time I took
any disciplinary action against anybody." 6
Secondly, the Union argues that it acted in this matter in
accordance with its normal form, in a nondiscriminatory
manner, and in pursuance of legitimate intraunion interests
not related to Pendergast's performance of supervisory
duties. In this regard, the Union asserts:
(1) that when its recording secretary was unable to talk
Kelso out of filing the charge against Pendergast, the
Union was required to take the charge and process it,
thus it is asserted "this affair was not the Union's own
doing." (Brief p. 3);
(2) that the summons to Pendergast conformed to the
normal Union practice under which supervisory and
non supervisory members had been required to appear
before the Union Executive Committee in the past;
(3) that the procedure involved here was an investiga-
tive function in aid of the Union's responsibility to
"police the contract on behalf of its members" (Brief p.
10), which it is argued was necessary in the instant case
because the Executive Committee assertedly "knew
nothing about the case" when "the charge was filed,"
and therefore was justified in "inquir[mg] deep enough
into the case to determine whether it could legally
proceed further." (Brief p. 16); that the use of summons
and assessment of fines for non-appearance assists the
Executive Committee in carrying out its business by
ensuring that its meetings do not become an exercise in
futility by reason of non-appearance of those sum-
moned; and further that such fines aid in paying the
expenses of the Executive Committee.
(4) that the fine assessed against Pendergast for failing
to attend the Executive Committee meeting was
actions are not in accordance with the agreement, and therefore "the Union
may challenge a discrim natory discharge action itself [without reference to
arbitration] and may take whatever disciplinary [action] is deemed
appropriate against the individual foreman who perpetrated the injustice."
6 The Union also relies upon the testimony of General Foreman Henry
that although he had been summoned before the union executive committee
some years before (for reasons he does not recall and with results he cannot
remember), the "incident never came to my mind one way or another
toward either side . . . I never felt any different."
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
imposed in a normal, non-discriminatory fashion,
under a section of the By-Laws uniformly cited in the
circumstances, for the infraction of an internal Union
rule without relation to the performance of his duties as
a foreman; and further that Pendergast did not take
proper action to be excused from attendance.
III. ANALYSIS AND CONCLUSIONS
It is not disputed and I find that Pendergast is a
representative of management within the meaning of
Section 8(b)(1)(B) of the Act. It is well settled under that
Section of the Act that union interference with an
employer's control over its own representatives is prohibit-
ed, whether by seeking to compel or compelling attendance
before union tribunals, by fines on the charges against such
management representatives, or because the representative
of the employer failed or refused to attend hearings before
such union tribunal, or by other means of pressure, where
"the underlying dispute is between the employer and the
union rather than between the union and the supervisor."
See Local Union 2150, I.B.E. W. (Wisconsin Electric), 192
NLRB 77; see also, e.g., San Francisco-Oakland Mailers'
Union No. 18, ITU (Northwest Publications, Inc.), 172
NLRB No. 252, I.B.E. W., AFL-CIO, and International
Brotherhood of Electrical Workers and Local 134, AFL-CIO
(Illinois Bell Telephone Company); 192 NLRB 85; Sheet
Metal Workers' International Assn. Local No. 71, AFL-CIO
(H.J. Otten Company, Inc.), 193 NLRB 23 Cf. Local Union
No. 453, Brotherhood of Painters (Syd Gough & Sons, Inc.),
183 NLRB 187.
Under Section 8(b)(1)(B) of the Act, the employer is
entitled to have its representatives represent the employer's
interests free from union pressures arising out of the
representative's actions in the interest of his employer. As
Trial Examiner Singer well expressed the matter in Sheet
Metal Workers (H.J. Otten), supra:
Summoning a supervisor-member to a union hall for
attendance before the highest body of the union, to
respond to members' complaints against his role in the
administration of the collective agreement, necessarily
operates to inhibit and restrain the supervisor-member
in representing and advancing the viewpoint of
management, and is thereby coercive upon the manage-
ment on whose behalf he acts. The natural effect, if not
the ostensible object of such action is to induce and
compel the employer through its supervisor member to
be more amenable to the union's interpretation of how
the contract should be administered. The fact that the
union . . . did not actually discipline [the supervisor-
member] in connection with the [administration of the
contract] is not determinative . . . . [the supervisor-
member] could reasonably have concluded that further
Union action would ensue if he failed to conform to the
Union's position . . . And the fact that the [supervisor-
member] may not have been actually coerced or
intimidated "is of no relevance" since the "test is
whether the [union] misconduct is such that, under the
7 In making this finding and conclusion , I am fully aware that the
General Counsel has alleged only the fine as a violation of the Act.
circumstances, existing, it may tend to coerce or
intimidate ..." (citation omitted)
The basic issue presented here is whether the Union
disciplined Foreman Pendergast because of "an underlying
dispute" between the Union and the Company, or merely
because of an intraunion issue between the Union and
Pendergast. It is clear that the charge against Pendergast
upon which the Union acted was based upon Kelso's
discharge by Pendergast, an action which he performed on
behalf of the Company. Insofar as there was a dispute over
this action, the dispute was with the Company. Contrary to
the contention of the Union, it is chargeable with
knowledge that this was the case. The union Recording
Secretary, a member of the executive committee, who
accepted and prepared the charge, knew the circumstances.
Indeed, the entire executive committee had previously
considered the facts and determined that they did not
justify arbitration of the discharge, a decision affirmed by
the union membership.
In these circumstances , the Union's contention that it
was required to investigate the complaint against Pender-
gast in aid of its obligation to police the agreement is
manifestly frivolous. Equally without merit is the argument
that by unwritten rule it was obligated to accept and
process complaints without regard to who or what is
charged, and, once the complaint was accepted, to fine any
member who failed to comply with the summons issued.
The fact that the Union has "always done it this way,"
does not excuse failure to comply with the requirements of
the law. Thus, while prior to 1947, supervisors might be
treated as any other members of the Union, and, indeed,
act in capacities for the union in conflict with the
employer, as on bargaining committees, since that time the
relationship of the union and the supervisor has been much
restricted, in accordance with the intent of the law that
supervision should be under the control of management,
not of the union . Cf. E. E. E. Co., Inc., 171 NLRB 982;
Nassau & Suffolk Contractors Assn., 115 NLRB 174.
Even if it were to be assumed, for the sake of argument,
that the administration of union affairs makes it infeasible
to restrict the filing of such charges, in this case the
assessment of a fine against Pendergast for non appearance
on such an improper complaint, after the executive
committee clearly knew the basis of the charge against him,
served only to confirm the illegal action from its inception.
Such action does not, as the Union argues, serve any
legitimate union interest or purpose. Indeed, the Board, in
San Francisco-Oakland Mailers, supra, held in similar
circumstances that a fine imposed upon a supervisor for
failure to appear before a union hearing tribunal was in
violation of Section 8(b)(1)(B) of the Act.
On the basis of the above analysis, and the entire record
in this case , it is found that the Union, by its summons and
fine of Pendergast, engaged in conduct "designed to
change the Company's representatives from persons
representing the viewpoint of management to persons
responsive or subservient to Respondent's will," and
thereby violated Section 8(b)(IXB) of the Act. See San
Francisco-Oakland Mailers, supra.?
However, the validity of the summons to Pendergast was fully litigated and
briefed, and is properly before me for decision . See Sheet Metal Workers,
supra, fn. 14.
NEWSPAPER WEB PRESSMEN'S UNION NO. 6 861
The Request that the Issues be Deferred to the
Grievance Procedure
The Union contends that inasmuch as the bargaining
agreement between the Company and the Union provides
that the "Union shall not discipline the foreman" for
performing his duties "in accordance with the terms of this
agreement," (sec. 11-b), and further requires (in sec. I1-c)
that if "the Union has a complaint against the foreman the
matter shall be processed as provided in Section 14
(providing for conciliation and arbitration)," this matter is
cognizable under that latter section, and the Examiner
should defer resolution of the issues herein to the
procedures provided in the agreement. In support of this
position the Union cites Collyer, supra, in which the Board
held that the unilateral actions of an employer in changing
working conditions assertedly sanctioned by the bargain-
ing contract there in effect was "essentially a dispute over
the terms and meaning of the contract," which was best left
to the expertise of arbitrators skilled in that subject. The
Board held that in the circumstances the Act and its
policies were only secondarily involved, and in that
situation a proper accomodation between the policies of
the Act and the public policies encouraging "fullest use of
collective bargaining and the arbitral process" favored
deferral to the latter process.
The underlying dispute here involved, as heretofore
found, concerns whether the discharge of Kelso was
justified under the bargaining agreement. It is admitted
that the Union took that issue through the grievance
procedure, and determined that arbitration of Pendergast's
action was not justified. In ,place thereof it sought to bring
Pendergast to trial on that issue before the Union, itself,
thereby flouting the contractual method of resolving such
disputes upon which it now insists .8 At no time prior to the
hearing did the Union suggest to the Company that this
matter be decided by neutral parties under the agreement.
Indeed, it ignored the Company's request that the dispute
be resolved in that manner by resorting to its own,
extracontractual, processes. Now unwilling to have the
Board decide the issue, it seeks to have the matter returned
to the grievance process.
In the circumstances of this case the primary issue
involved is whether rights and protections guaranteed by
the Act have been violated, not the meaning and
interpretation of the bargaining agreement. The parties
cannot make these statutory rights merely contractual
issues by a process of incorporating the Act and its policies
into their bargaining agreements piecemeal. The Act must
be administered as an integrated whole, as Congress
intended. To act otherwise would be destructive of that
uniformity of interpretation'and effectuation of the policies
of the Act vital to the proper administration of the law.
The Board has the statutory responsibility to effectuate
8 The Union seems to argue that this was justified on the basis that if
Kelso's discharge was not in accordance with the agreement , then the
Union arguably had the right to discipline Pendergast for violating the
agreement, without necessity of resorting to the dispute adjustment
procedures of the agreement I find this circuitous contention to be without
meet, as is the argument that the Union, by exercising its disciplinary
powers and procedures on behalf of union members, is not engaging in
those purposes. Nor can it be said that arbitrators have a
special skill or expertise which justifies turning over to
them the administration of the Act, or parts thereof.
Nor in this case would deferral to the grievance
procedures at this point tend to encourage resort to the
bargaining agreement for resolution of these disputes. In
fact, to accede to the Union in this case, would leave the
effects of the union actions in this case, which I have found
violative of the Act, unremedied, and furnish no assurance
that the conduct involved will not be repeated. It seems
manifest that incentive to resort to the grievance and
arbitration processes of the contract in the future will best
be given, and effectuation of policies of the Act in this case
will be best be accomplished by the issuance of a remedial
order in this matter.
For the reasons stated, I am declining to defer the issues
herein to the grievance procedures of the bargaining
agreement.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By restraining and coercing the Company in the
selection of its representatives for the purposes of collective
bargaining or the adjustment of grievances, as found
herein, the Union has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union engaged in unfair labor
practices in violation of Section 8(b)(1)(B) of the Act, it
will be recommended that the Union cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. It is further found that
the restraining and coercive effect of the Union's actions
requires that the Union be required affirmatively to rescind
the action of the union executive committee fining
Pendergast, to expunge all records thereof from its files,
and to repay Pendergast the fine levied against him, with
interest at 6 percent per annum.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I issue the following recommended:
ORDERS
Newspaper Web Pressmen's Union No. 6, International
Printing Pressmen and Assistants Union of North Ameri-
action for the Union may be held responsible.
9 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.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ca, AFL-CIO, the Respondent herein, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing The Washington Post
Company in the selection of representatives for the
purpose of collective bargaining or the adjustment of
grievances:
(1) by citing, charging, or summoning any such repre-
sentative to appear before any committee, board, or
tribunal of the Respondent to be tried for, defend, or
explain any actions performed for the Company or in its
interests; or
(2) by fining, or otherwise disciplining such representa-
tive in connection with any such citation, charge, or
summons, or for failing to appear before such Union
committee, board or tribunal, or respond to such citation,
charge or summons, or meaning of Section 8(b)(l)(B) of
the Act; or
(3) by refusing and refraining from the use of the
grievance procedure of the collective-bargaining agreement
in effect between Respondent and the Company as the
means to settle disputes or grievances with respect to
actions of such company representatives on behalf of the
Company and in its interests.
(b) In any like or related manner restraining or coercing
The Washington Post Company in the selection of
representatives for the purpose of collective bargaining or
the adjustment of grievances.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Rescind, and expunge all records of, the fine levied
against Beverly L. Pendergast for failure to appear before
the union executive committee on January 14, 1972.
(b) Reimburse Beverly L. Pendergast for the said fine
levied against him, with interest thereon at 6 percent per
annum.
(c) Advise Pendergast in writing that the said fine has
been rescinded, and that the records of such fine have been
expunged.
(d) Post at its office and meeting halls copies of the
attached notice marked "Appendix." to Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of the Trial Examiner's
decision, what steps Respondent has taken to comply
herewith.tt
10 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
11 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 5, in writing, within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce The Washington
Post Company in the selection of representatives for
the purposes of collective bargaining or the adjustment
of grievances:
(a) by citing, charging or summoning any such
representative to explain, defend or to be tried for
any actions taken in the interests of and on behalf
of the Company, before any committee, board, or
tribunal of the Union.
(b) by fining or otherwise disciplining any such
representative because he failed to appear or
respond to any such citation charge or summons,
or for any other reason in connection with such
summons , citation, or charge.
(c) by refusing or refraining from the use of the
grievance procedure in the bargaining agreement
as the proper way to settle disputes or grievances
over the actions of company representatives on
the Company's behalf.
WE WILL NOT in any like or related manner restrain
or coerce The Washington Post Company in the
selection of representatives for the purposes of collec-
tive bargaining or the adjustment of grievances.
WE WILL rescind the fine assessed against Beverly L.
Pendergast and will expunge all record of it from our
files.
WE WILL advise Pendergast in writing of the action
taken by us in rescinding the fine against him and that
we have expunged all records of it from our files.
WE WILL repay to Pendergast the fine assessed
against him, with interest thereon at 6 percent per
annum.
NEWSPAPER WEB
PRESSMEN 'S UNION No. 6,
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Federal Building, Room
1019, Charles Center, Baltimore , Maryland 21201, Tele-
phone 301-962-2822.