Pittsburgh Press Co.

National Labor Relations Board - Board Decisions

Apr 2, 1979

241 N.L.R.B. 666 (N.L.R.B. 1979)

DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Pittsburgh Press Company and Richard G. Hoelke
International Printing and Graphic Communications
Union, Pittsburgh Newspaper Printing Pressmen's
Union No. 9, AFL-CIO-CLC and Richard G.
Hoelke. Cases 6 CA- 9404 and 6-CB-3744
April 2, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, PENEl..(), AND MURPHY
On July 27, 1977, Administrative Law Judge Rich-
ard L. Denison issued the attached Decision in this
proceeding. Thereafter, Respondent Union and Re-
spondent Company filed exceptions and supporting
briefs,' Respondent Union filed an answering brief to
Respondent Company's brief; and Respondent Com-
pany filed cross-exceptions and a brief in support
thereof. The General Counsel filed a motion to strike
certain portions of Respondent Union's exceptions,
and Respondent Company filed a motion to strike
Respondent Union's answering brief.2
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 briefs
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge, to
modify the remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977), 4 and to adopt his recommend-
ed Order.
The Administrative Law Judge found that Respon-
dent Union violated Section 8(b)(2) and (1)(A) of the
Act by causing Respondent Employer to discharge
Richard G. Hoelke and that Respondent Employer
violated Section 8(a)(3) and (1) by discharging
Hoelke.
Respondent Employer is engaged in the newspaper
publishing business and has long been party to collec-
tive-bargaining agreements with Respondent Union
covering employees in its pressroom. These contracts,
Respondent Union has requested oral argument. his request is hereby
denied, as the record, the exceptions, and the briefs adequately present the
issues and the positions of' the parties.
2 In view of our I)ecision herein, we find it unnecessary to pass upon the
parties' motions.
Respondent Company has excepted to certain credibility findings made
by the Administrative aw Judge. It s the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of' all of the relevant evidence convinces
us that the resolutions are incorrect. Standiird Drs Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d ('ir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
' See. generally, Iriv Plumhing & Heuring (Co. 138 NI.RB 716 (1962)
including that in force at the time of the occurrences
herein, contained union-security clauses requiring
employees to become and remain members of the
Union in good standing on or after the 30th day of
their employment.
To implement the manning provisions of the con-
tract, the parties had an arrangement under which the
union chapel chairman compiled a work schedule for
the upcoming week and supplied the Employer with a
copy of the schedule. There were five shifts per week,
which were manned by regular "situation holders." If
a regular situation holder missed a shift, then time-
and-a-half had to be paid in overtime to a replace-
ment.
Hoelke was first employed as a regular situation
holder in 1970. owever, starting in October 1974,
Hoelke began to miss many of his assignments,
which, naturally, resulted in overtime payments by
the Employer for replacements. Hoelke received an
oral warning in April 1975 from the Employer con-
cerning his absences and a written warning in June
1975. Hoelke was also fined by the Union, pursuant
to its bylaws concerning missing work, for excessive
absenteeism, but he refused to pay the fine. In addi-
tion, Hoelke fell 22 weeks behind in paying his union
dues, which he declined to pay although requested to
do so. In November 1975 the Employer sought to
discharge Hoelke for absenteeism, but the Union suc-
cessfully intervened on his behalf, and he received
only a final written warning.
Nonetheless, Hoelke continued to miss work, in-
cluding all five shifts he was assigned to work during
the second week of January 1976. On January 10 the
night chapel chairman told Hoelke he would be re-
moved from the work list for the following week un-
less he paid everything he owed. Hoelke still owed the
Union payments both for back dues and for the fine.
Hoelke again declined to pay, and he was taken off
the work schedule for the next week. Respondent
promptly discharged Hoelke. based in part upon the
fact that the Union had removed him from the work
schedule.
Upon these facts, the Administrative Law Judge
correctly decided that the Union violated Section
8(b)(I)(A) and 8(b)(2) of the Act by removing
Hoelke's name from the work list and thereby causing
his discharge. The Administrative Law Judge rea-
soned that ( I ) the Union was not entitled to cause the
Employer to discharge Hoelke for nonpayment of an
internal union fine as well as nonpayment of dues,
fines not being "periodic dues and intiation fees"
within the meaning of Section 8(a)(3) and 8(b)(2),
and, furthermore, (2) the Union was entitled only to
request the Employer to discharge Hoelke for non-
241 NLRB No. 99
666
PITTSBURGH PRESS COMPANY
payment of dues, and was not entitled to take action
against Hoelke other than formally demanding his
discharge, i.e., removal of his name from the work
schedule. The Administrative Law Judge also prop-
erly found that the Employer violated Section 8(a)(3)
and (I ) by discharging Hoelke partly in reliance upon
the Union's illegal removal of Hoelke's name from
the work schedule rather than in response to a legiti-
mate union request for Hoelke's dismissal for non-
payment of dues.
Our colleague's dissent is directly contrary to well-
settled precedent: indeed, until today, to our knowl-
edge, no Board Member has ever challeged the long-
established propositions relied on by the Administra-
tive Law Judge in finding the violations alleged.
The Board and the Supreme Court have both de-
cided that a union may not enforce internal union
rules by affecting a member's employment status. The
second proviso to Section 8(a)(3) of the Act justifies
discharge for "non-membership" in a Union only be-
cause of "failure to tender the periodic dues and the
initiation fees." In Association of Western Pulp & Pa-
per Workers and Local 28, etc.. (Fibrehoard Paper
Products Corp.), 170 NLRB 49, 52 (1968), relied upon
by the Administrative Law Judge, the Board found
that the respondent union had violated Section
8(b)(2) and (I)(A) of the Act by conditioning the con-
tinued employment of two employees upon their pay-
ment of fines. The Board stated:
A fine . . . has neither a direct nor an indirect
connection with anything related to employment
status. It flows solely from the union-member re-
lationship and is something that can be assessed
and collected only as an incident thereof.
Similarly, in two cases5 the Supreme Court distin-
guished between internal and external enforcement of
union rules and stated that "Congress did not purpose
any limitations with respect to the internal affairs of
unions, aside from barring enforcement of a union's
internal regulations to affect a member's employment
status."
This is precisely the situation confronting the
Board in the instant case. Hoelke was fined by the
Union for violating an internal union bylaw relating
to absenteeism on the job. Respondent Union insisted
that he pay the fine, as well as back dues, or he would
be removed from the work list. When Hoelke refused
to pay, the Union took his name off the work sched-
ule, leading to his discharge by the Employer. This
was a plainly illegal attempt to enforce an internal
union regulation by adversely affecting Hoelke's em-
N.L.R.B v .41is-Chalmers Manufacturing Ca, 388 I S 1 75 195 (1967);
Scofield. t al N I R. R. 394 S. 423. 428 (1969)
ployment status.6 Member Jenkins' opinion cites no
authority calling fbr a different conclusion, for there
is none. Instead, our dissenting colleague states, in
conclusionary fashion. that the fine was "clearly
proper and reasonable," that it was imposed to pro-
tect the Union's "ligitirnate interest" in discouraging
absenteeism, that it was a "proper disciplinary mea-
sure," and that it was a "reasonable" and "nonpro-
hibited step."
Member Jenkins, however, also questions the Ad-
ministrative Law Judge's conclusion that the Union
illegally removed Hoelke's name from the work list
rather than directly requesting his discharge for non-
payment of dues only. In Kramho Food Stores, Incor-
porated, 106 NLRB 870, 879 (1953), the Board de-
clared:
A reading of the second proviso to Sec. 8(a)(3)]
clearly shows that it was designed further to lim-
it, and not to expand, the narrow discrimination
allowed. Accordingly, we believe that by the use
of the words "any discrimination" the Congress
in 1947 did not intend to enlarge the area of per-
missible discrimination under existing law but,
on the contrary, sought to further circumscribe
the allowable area of discrimination.
Thus, the Board held that the Act did not "give em-
ployers and unions a license to use various discrimi-
natory devices, short o discharge, to coerce an em-
ployee to join the union while still holding over his
head the alternate threat of discharge which the stat-
ute sanctions."7 (Emphasis supplied.) In Kisco Com-
pan,, Inc.,8 our dissenting colleague joined in adopt-
ing the following statement of an Administrative Law
Judge: "It is axiomatic at this point that an employer
may not use something less than discharge in enforc-
ing the requirements of a valid union security clause."
We see no reason for departing from carefully rea-
soned precedent concerning this issue.
Accordingly, we adopt the Administrative Law
Judge's findings of the violations herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
6 Member Murphy is sympathetic to Respondent Employer's decision to
terminate this employee. If the Union had requested- or the Employer had
taken action to effectuate- the employee's discharge for absenteeism, there
would have been no problem as far as she is concerned. However much
Member Murphy would like to reach a result finding the discharge lawful.
she must conclude that a iolaticn exists by virtue of the Union's action in
removing the employee's name from the work list because of his nonpayment
of a fine There is no way that approximately 30 years of Board and court
law can be upset by a simple contrary statement like that in the dissenting
opinion herein
ld at 877.
1192 NIRB 899, 905 (1971).
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent Company, Pittsburgh Press
Company, Pittsburgh, Pennsylvania, its officers,
agents. successors, and assigns, and Respondent
Union. International Printing and Graphic Commu-
nications Union, Pittsburgh Newspaper Printing
Pressmen's Union No. 9, AFL-CIO CLC, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
MEMBER JNKINS, dissenting:
I am unable to agree with my colleagues that Re-
spondent Employer violated Section 8(a)(3) and (1) of
the Act when it discharged Richard G. Hoelke or that
Respondent Union caused Hoelke's discharge in vio-
lation of Section 8(b)(2) and (b)(l)(A).
Respondents have been parties to a collective-bar-
gaining agreement containing a conventional union-
security clause which admittedly covers Hoelke. In
addition, the chapel chairman, a union official, is re-
sponsible for the weekly compiling of the daily work
schedule. In practice, however, the scheduling of unit
employees for work is based upon seniority, and the
steady situation holders know when they are sched-
uled to work. If a steady situation holder misses a
scheduled shift, it automatically results in overtime
for the assigned replacement. The Employer's com-
plaints concerning this unscheduled overtime have re-
sulted in scrutiny of the amount of overtime worked,
and the Union has taken disciplinary measures to dis-
courage employee absenteeism.
Hoelke was a regular situation holder, and, since
October 1974, he compiled a poor attendance record,
which resulted in several warnings from the Em-
ployer. Pursuant to the Union's bylaws, Hoelke was
fined for his excessive absences. His absenteeism con-
tinued, and, in November 1975, the Employer in-
tended to terminate him for excessive absenteeism,
but the Union interceded on his behalf, despite the
fact that he was in arrears with respect to his dues
and assessment relating to his absenteeism. The result
was a final warning letter from the Employer.
Hoelke's absenteeism continued into January 1976,
and, during the second week in January, he failed to
work any of the five shifts for which he was sched-
uled. On January 10 he was informed by the Union
that, unless he paid everything he owed, he would not
be placed on the work schedule for the following
week. On January 14 he was removed from the sched-
ule, and, on January 16, the Employer discharged
him.
The Administrative Law Judge found, and my col-
leagues agree, that Respondent Union violated Sec-
tion 8(b)(2) and (b)(I)(A) by removing Hoelke's name
from the work list and that Respondent Employer
violated Section 8(a)(1) and (3) by discharging
Hoelke for not reporting for work at a time when the
Union had suspended him from the work schedule.
In finding the violations, the Administrative Law
Judge relied on Kramho Food Stores, Incorporated,
106 NLRB 870, 877, wherein the Board stated,
"Nothing in the Act or its legislative history per-
suades us that the union-shop provisos to Section
8(a)(3) and 8(b)(2) were designed to give employers
and unions a license to use various discriminatory de-
vices, short of discharge .... " My colleagues tacitly
admit that had the Union requested the Employer to
discharge Hoelke for nonpayment of dues and the
Employer complied with the request, no violation
would exist. It seems to me that they are ignoring the
realities of the situation and the relationship of the
parties by requiring such a mechanistic procedure. A
unique situation exists here in which the Employer
has ceded to the Union the right to control the em-
ployment of the unit employees, for the removal from
the work list is tantamount to discharge. It seems in-
congruous for the Board to require the Union to re-
quest the Employer to discharge Hoelke when the
Employer had given the Union the right to take such
action. Since the parties agreed that the Union was
responsible for compiling the work list, and this ar-
rangement is not alleged as unlawful, I see nothing
illegal in the Union's removing Hoelke's name from
the work list because of his failure to pay dues.
To the extent that Hoelke's failure to pay his fine
entered into the Union's motivation for removing him
from the work list, I find nothing violative in the
Union's actions. As previously stated, the Union had
the responsibility for providing employees to operate
the pressroom and for determining who should be
scheduled for work. Because of its responsibility, it
had a major interest in seeing that employees sched-
uled to work did so, for any absenteeism necessitated
the payment of overtime. The fine imposed because
of Hoelke's excessive absenteeism was a means of dis-
cipline and was clearly proper and reasonable in view
of the Union's right to protect its legitimate interest in
preventing absenteeism as part of its administration
of the work schedule. Hoelke's failure to pay the fine
is simply a refusal on his part to accept the proper
disciplinary measures for his excessive absenteeism.
Therefore, the Union's action in denying him work
until he paid his fine was simply another reasonable
and nonprohibited step in trying to correct Hoelke's
absenteeism. 9
The situation here is not analoguous to those cases where a union denies
work to or causes the discharge iof an employee for failure to pay fines or
takes other disciplinary measures unrelated to employment status.
Further. the Union's action herein bears no resemblance to the situation
presented in Kisco Company, Inc., 192 NLRB 899, 905 (1971), relied on by
the majority. There, the employer delayed vacation benefits due an employee
because he was behind in his union dues.
668
PITTSBURGH PRESS COMPANY
Since I would find no violation on the part of Re-
spondent Union for removing Hoelke's name from
the work, it follows that Respondent Employer did
not violate Section 8(a)(I) and (3) of the Act by dis-
charging him.
Accordingly, I would dismiss the complaint in its
entirety.
DECISION
STATEMENt OF HE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding was heard before me at Pittsburgh,
Pennsylvania, on November 8, 1976. The charges in Cases
6-CA-9404 and 6-CB 3744 were filed by Richard G.
Hoelke on July 7, 1976.' The consolidated complaint, issued
August 31, alleges that Respondent Union violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended, and that Respondent Employer violated Section
8(a)(1) and (3) of the Act, with respect to the circumstances
surrounding Hoelke's discharge.
Respondents' answers deny the commission of any unfair
labor practices alleged in the complaint. At the hearing
counsel for the General Counsel argued orally. Respon-
dents waived oral argument and filed briefs. The argument
and the briefs have been carefully considered. Upon the
entire record in the case, including my observation of the
witnesses, I make the following:
FINDINGS OF FACI
1. JURISDICTION
As admitted in the answers, Respondent Employer is a
Pennsylvania corporation, with its principal office located
in Pittsburgh, Pennsylvania, engaged in the publication,
printing, sale, and distribution of a newspaper in Pitts-
burgh, Pennsylvania. During the 12-month period preced-
ing the issuance of the consolidated complaint, Respondent
Employer's gross volume of business exceeded $500,000,
and during the same period of time it received for publica-
tion advertising valued in excess of $100,000 from custom-
ers located outside the Commonwealth of Pennsylvania.
I find that Respondent Employer is now, and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent Union is now, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALI.EGED UNFAIR LABOR PRACTICES
For the most part, the facts in this case are not in dispute.
For a long time Respondents have been parties to a collec-
tive-bargaining agreement containing a conventional
I All dates are in 1976, unless otherwise specified.
union-security clause requiring that the covered employees
in Respondent Employer's pressroom must become and re-
main members in good standing of the Union on or after
the 30th day of their employment.
In order to implement the manning provisions of the col-
lective-bargaining agreement, the parties have a longstand-
ing arrangement whereby the chapel chairman is respon-
sible for the weekly compiling, in advance, of the daily
work schedule, which is then posted and furnished to Re-
spondent Employer. However, it is rarely necessary to con-
tact those who are scheduled to work, particularly steady
situation holders who are guaranteed a minimum of five
shifts per week. Any sixth shift worked by an employee is
overtime compensated at a rate of time and a half. Thus, if
a steady situation holder missed a scheduled shift, the ab-
sence automatically resulted in overtime for the assigned
replacement. Therefore, both the Employer and the Union,
as a result of the Employer's complaints concerning such
unscheduled overtime worked and, when necessary, utilized
available disciplinary procedures to discourage employee
absenteeism.
Richard G. Hoelke worked for Respondent Employer as
a "flyboy" (otherwise known as a floorboy or pressroom
helper) from October 1970 until his discharge on January
16. Hoelke was a regular situation holder. In October 1974
Hoelke started his own motorcycle sales and service busi-
ness, which soon began to conflict with his work for Re-
spondent Employer. The results were that Hoelke rapidly
acquired a poor attendance record, and Respondent Em-
ployer's overtime costs increased. Around April of 1975
Mr. Merle Frederick, the pressroom superintendent, orally
warned Hoelke to begin covering his 5-day situation or else
the Company would have to take some action. Neverthe-
less, Hoelke's attendance remained poor, and on June 20,
1975, he was issued a written warning with copies to the
Union.
Meanwhile, at some point during this same period of
time, Hoelke's problems with the Union began. The
Union's bylaws contain disciplinary provisions concerning
missing work, and pursuant to these provisions Hoelke was
called before the executive board and fined for his excessive
absences. In addition, Hoelke had become delinquent in
paying his dues and assessments. Although at some point
Hoelke made a partial payment to the Union, he continued
to remain in arrears with respect to his dues and his fine.
When counseled by Night Chapel Chairman Lawson about
being 22 weeks behind in his dues as the end of 1975 ap-
proached, Hoelke responded that dues "turned him off."
Nevertheless, the Union interceded on Hoelke's behalf in
November 1975, when Pressroom Superintendent Frederick
announced his intention to terminate Hoelke for excessive
absenteeism. The result was a final warning letter from
Frederick to Hoelke, dated November 25, 1975.
It is undisputed that Hoelke's absenteeism problem con-
tinued without improvement into January. The Employer's
records reveal that during the second week of January
Hoelke failed to work any of the five shifts for which he was
scheduled. On January 10, pursuant to instructions from
the Union's secretary-treasurer, William Kane, Lawson
telephoned Hoelke and informed him that he would not be
placed on the work schedule for the following week unless
669
I)lECISIONS OF NATIONAL LABOR RELATIONS BOARD
he paid everything he owed. After stating that he was not
prepared to pay in full, Hoelke, who was scheduled to work
beginning 6:45 p.m. Wednesday. January 14. was removed
from the schedule.
According to the testimony of Pressroom Superintendent
Frederick, he first learned of Hoelke's absences during the
beginning of January from his payroll clerk during the early
part of the week beginning January 12. Frederick testified
that he decided to terminate Hoelke at this time. Howevr,
no action in this respect was taken until after a meeting
with union representatives in the chapel chairman's office
on January 15. A close reading of the following excerpt of
Frederick's testimony reveals what actually happened.
Q. Irrespective of where it took place, just relate to
us what actually was said by you and whoever re-
sponded from the union's side.
A. I approached the union officer, Slenskey came
and Jackson, and I said I am writing a letter of dis-
charge to Mr. Hoelke. He is again knocked off and
hasn't shown up on the job.
Q. What was the union's response to that?
A. Before that I said where is this guy and they re-
sponded, we knocked him off for non-payment of dues.
Q. What was your response to that remark, that
they knocked him off for non-payment of dues?
A. Some response such as that does it or that finishes
it, so on and so forth.
Q. Prior to your learning that Mr. Hoelke had been
suspended for non-payment of dues, had you, in fact,
already learned that he was failing to cover his job the
preceding week?
A. Yes, I already decided to send him a letter of
discharge.
Q. Prior to learning that he had been suspended?
A. Yes.
Q. What day was this?
A. On the 15th, of January.
Q. After your discussions with the union representa-
tives, what steps did you take regarding the termina-
tion of Mr. Hoelke?
A. I went up to my office and drafted a letter of
discharge and then routed the draft to Mr. Coal's office
for him to check.
Q. Who is Mr. Coal?
A. Personnel director of the Pittsburgh Press.
Q. Did he, in fact, check that?
A. Yes, he did a check and okayed it and sent it
back, I had the letter typed up the following morning,
which was the 16th.
Q. Did you send it to Mr. Hoelke?
A. Yes, I sent it to Mr. Hoelke registered. [Emphasis
supplied.]
In substance. the letter stated that Hoelke had been dis-
charged for further absenteeism without permission.
Respondents contend that Hoelke was discharged by the
Employer for excessive absenteeism and nothing more. The
Union argues that its efforts to collect dues from Hoelke,
his subsequent failure to pay both the dues and the fine,
and Hoelke's removal from the schedule are unrelated to
his termination. The Employer urges that the undisputed
evidence clearly shows that no causal relationship existed
between the Union's efforts to collect the dues and the fine
and Hoelke's termination by the Company. The General
Counsel, however, argues that the Union's removal of
Hoelke from the work schedule was (1) unlawful because it
constituted an improper means of enforcing the union-secu-
rity clause (whereas a request that the Employer discharge
Hoelke for nonpayment of dues would have been proper)
and (2) unlawful in that it is clear the Union sought to
collect not only the dues but also the fine. Finally, the Gen-
eral Counsel contends that Respondent Employer's action
was unlawful because it was based not only on Hoelke's
absences but also, in part, on the Union's unlawful action in
removing Hoelke from the schedule.
There is no question that the Union made it clear to
Hoelke that they were requiring him to pay in full not only
his back dues but also his fine. It is also clear that the
Union never requested that Hoelke be discharged, nor did
they take any action indicative of an intention to do so at
the earliest available time. To the contrary. during their
January 10 telephone conversation Lawson told Hoelke
that he was "suspended" and that he did not think Hoelke
could afford to be stubborn (about paying his dues and fine)
because he had better get back on the payroll, or the Com-
pany was going to fire him. Immediately following this con-
versation in which Lawson informed Hoelke that he was
being removed from the work schedule, Lawson removed
Hoelke's name from the schedule, on January 10 or I1.
However, no contact was made with any of the Employer's
representatives about this matter until Frederick's meeting
with union officials on January 15, although Hoelke had
been due to report for work on the 6:45 p.m. shift on
Wednesday, January 14. It is, therefore, firmly established
that the Union utilized its authority with respect to the
scheduling of work as a lever to attempt to force Hoelke to
pay his dues and fine, rather than seeking his discharge.
Section 8(b)(2) of the Act prohibits a union from causing
or attempting "to cause . . . an employer to discriminate
against an employee in violation of subsection (a)(3) or to
discriminate against an employee with respect to whom
membership in such organization has been denied or termi-
nated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership...." Sec-
tion 8(a)(3) of the Act provides that an employer may not
discriminate against an employee in regard to the hire or
tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor
organization. However, Section 8(a)(3) contains two provi-
sos. The first of these permits an employer and a union
under specified circumstances to make an agreement re-
quiring membership in the union as a condition of employ-
ment. The second proviso states "that no employer shall
justify any discrimination against an employee for non-
membership in a labor organization (A) if he has reason-
able grounds for believing that such membership was not
available to the employee on the same terms and conditions
generally applicable to other members, or (B) if he has rea-
sonable grounds for believing that membership was denied
or terminated for reasons other than the failure of the em-
ployee to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining
membership.... " The term "periodic dues and the initi-
670
PITTSBURGH PRESS COMPANY
ation fees" in these sections of the Act has been interpreted
by the Board not to include fines, which therefore cannot be
taken into account as a factor adversely affecting the em-
ployment relationship. .4s.ociation of Western Pulp & Paper
Workers and Local 28, etc. (Fibrehoard Paper Products
Corp.), 170 NLRB 49 (1968). Furthermore, the Board has
also held that where an employee fails to pay the periodic
dues and initiation fees, the only lawful recourse available
to the Union is to request that he be discharged by the
Employer. Association of Western Pulp & Paper Workers,
supra. As the Board stated in Krambo Food Stores, Incorpo-
rated, 106 NLRB 870. 877 (1953), "Congress permitted one
exception to this all-inclusive ban lin Section 8(a)(3) and
8(b)(2)], namely, employers and unions under certain cir-
cumstances were allowed to require that employees join or
maintain their membership in a union as a condition of
employment. Nothing in the Act or its legislative history
persuades us that the union-shop provisos to Section 8(a)(3)
and 8(b)(2) were designed to give employers and unions a
license to use various discriminatory devices, short of dis-
charge.... "Therefore, Respondent Union herein violated
Section 8(b)( )(A) and 8(b)(2) of the Act when it sought to
collect what Hoelke owed by removing his name from the
work schedule for the week of January 12. 1976.
Concerning whether or not Respondent Employer vio-
lated Section 8(a)(1) and (3) of the Act. the issue is not
whether Hoelke's absentee record otherwise merited dis-
charge, but whether Respondent Employer's action in the
light of the Union's conduct, as known to the Employer.
rendered the discharge unlawful. Although there is no evi-
dence that Respondent Employer knew or had reason to
believe that part of the reason for the Union's removal of
Hoelke from the work schedule was his failure to pay a fine,
it is clear that the Employer acted to discharge Hoelke only
after it learned of the Union's removal of Hoelke from the
schedule some 4 or 5 days earlier, during which period it
had received no request that Hoelke be discharged. Fur-
thermore, Pressroom Superintendent Frederick acknowl-
edged, both in his testimony, quoted earlier, and in his
Board affidavit, that at the conference on January 15 in the
chapel chairman's office the Union announced that they
had suspended Hoelke for nonpayment of dues, following
which Frederick announced that he was going to discharge
Hoelke. In Frederick's words, taken from his affidavit.
"With this information [from the Union] and based upon
Mr. Hoelke's past work record, I decided to discharge Mr.
Hoelke as of January 16. 1976. .. " Thus. since Respon-
dent Employer discharged Hoelke for not reporting for
work at a time when the Union had suspended him from
the work schedule, and at a time when no discharge request
from the Union had been received, Respondent Employer
has discriminated against Hoelke in a manner proscribed
by Section 8(a)(I) and (3) of the Act.
CON('I.tSIONS O() LAW
I. Pittsburgh Press Company, Respondent Employer. is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
I Therefore, I do not credit that portion of [:rederlck's other testimon to
the effect that he decided to discharge Hoelke before he met with the Union.
2. International Printing and Graphic Communications
Union, Pittsburgh Newspaper Printing Pressmen's Union
No. 9, AFL-CIO-CLC, Respondent Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discharging Richard G. Hoelke on January 16,
1976, Respondent Employer has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (I) of
the Act.
4. By causing Respondent Employer to discharge Rich-
ard G. Hoelke, Respondent Union has engaged in unfair
labor practices within the meaning of Section 8(b)(2) and
( I )(A) 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.
THF RMILDY
Having found that Respondents violated Sections 8(a)(3)
and (1) and 8(b)(2) and I()(A) of the Act, respectively, I
shall recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Since I have found that Respondent Union caused Re-
spondent Employer to unlawfully discharge Richard G.
Hoelke, I shall recommend that Respondent Union be or-
dered to notify Respondent Employer, in writing, with cop-
ies to Hoelke, that it has no objection to his employment or
to his reinstatment. I shall also recommend that Respon-
dent Employer be ordered to offer Hoelke immediate and
full reinstatement to his former position or, if that is not
available, to a substantially equivalent one, without preju-
dice to his seniority or other rights and privileges.
I shall further recommend that Respondent Union and
Respondent Employer be ordered jointly and severally to
make Hoelke whole for any loss of earnings he may have
suffered as a result of the discrimination against him, with
interest computed at the rate of 6 percent per annum, in
accordance with the formula set forth in F. W. Woolworth
Companv, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). In the case of Respondent
Union, its backpay liability shall terminate 5 days after it
notifies the Respondent Employer and Hoelke that it has
no objection to his reinstatement, as provided above. Re-
spondent Employer's backpay liability shall terminate on
the date that Hoelke is properly offered reinstatement. I
shall also order that Respondents post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section lO(c) of
the Act, I herebN issue the following recommended:
ORDER3
A. Respondent Employer, Pittsburgh Press Company,
Pittsburgh, Pennsylvania. its officers, agents, successors,
and assigns, shall:
' In the eent 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 h the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Encouraging membership in International Printing
and Graphic Communications Union, Pittsburgh Newspa-
per Printing Pressmen's Union No. 9, AFL-CIO-CLC, or
in any other labor organization of its employees, by dis-
criminating in regard to their hire or tenure of employment
or any term or condition of employment except to the ex-
tent permitted by the proviso to Section 8(a)(3) of the Act,
as amended.
(b) In any other manner interfering with, restraining, or
coercing employees of Pittsburgh Press Company in the ex-
ercise of the rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Richard G. Hoelke immediate and full rein-
statement to his former job or, if that no longer exists, to a
substantially equivalent job, without prejudice to his senior-
ity or other rights and privileges.
(b) Jointly and severally with Respondent Union make
Richard G. Hoelke whole for any loss of earnings he may
have suffered by reason of the discrimination against him in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at its Pittsburgh, Pennsylvania, plant copies of
the attached notice marked "Appendix A."4 Copies of Ap-
pendix A, on forms provided by the Regional Director for
Region 6, after being duly signed by an authorized repre-
sentative of Respondent Employer, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent Em-
ployer to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Upon being furnished copies of the attached notice
marked "Appendix B" by the Regional Director, post said
notice in the same manner as specified for Appendix A in
paragraph (d) above.
(f) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
B. Respondent Union, International Printing and
Graphic Communications Union, Pittsburgh Newspaper
Printing Pressmen's Union No. 9, AFL CIO-CLC, its offi-
cers, agents, and representatives, shall:
I. Cease and desist from:
(a) Causing or attempting to cause Pittsburgh Press Com-
I In the event that this 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."
pany to discriminate against Richard G. Hoelke or any
other employee in violation of Section 8(a)(3) and (1) of the
Act.
(b) In any other manner restraining or coercing employ-
ees of Pittsburgh Press Company in the exercise of rights
guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Notify Respondent Employer, with a copy to Richard
G. Hoelke, that it withdraws its objection to employing
Richard G. Hoelke and will not oppose his reinstatement.
(b) Jointly and severally with Respondent Employer
make whole Richard G. Hoelke for any loss of earnings
suffered by reason of his discharge on January 16, 1976, in
the manner set forth in the section of the Decision entitled
"The Remedy."
(c) Post in its offices and meeting halls copies of the at-
tached notice marked "Appendix B."' Copies of Appendix
B, on forms provided by the Regional Director for Region
6, after being duly signed by an official representative of
Respondent Union, shall be posted by it immediately upon
receipt thereof, and be maintained for a period of 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union and
its agents to insure that such notices are not altered, de-
faced, or covered by any other material.
(d) Forward to the Regional Director for Region 6 signed
copies of Appendix B for posting by Respondent Employer
at its Pittsburgh, Pennsylvania, facility in the manner set
forth in section A, 2(e), of this recommended Order.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent Union has taken to comply herewith.
See fn. 4, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by the
following:
WE WILL NOT encourage your membership in Inter-
national Printing and Graphic Communications
Union, Pittsburgh Newspaper Printing Pressmen's
Union No. 9, AFL-CIO-CLC, or in any other labor
organization, by discriminating in regard to your hire
or tenure of employment or any term or condition of
employment, except to the extent permitted by the pro-
viso to Section 8(a)(3} of the Act, as amended.
672
PITTSBURGH PRESS COMPANY
WE WILL NOT in any other manner interfere with.
restrain. or coerce you in the exercise of your rights
guaranteed in Section 7 of the Act.
WE wiLI. offer Richard G. Hoelke immediate and
full reinstatement to his former job or, if such joh no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges.
WE WILL jointly and severally with International
Printing and Graphic Communications Union, Pitts-
burgh Newspaper Printing Pressmen's Union No. 9.
AFL-CIO-CLC, make whole Richard G. Hoelke for
any loss of pay he suffered because of our discrimina-
tion against him.
PITTSBURGH PRESS COMPANY
APPENDIX B
NoTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by the
following:
WE WI LL Nor cause or attempt to cause Pittsburgh
Press Company to discriminate against Richard G.
Hoelke or any other employee in violation of Section
8(a)(3) of the Act.
WE VWILI NOI in ary other manner restrain or coerce
employees of the above-named Employer in the exer-
cise of the rights guaranteed in Section 7 of the Act.
WE w lltl jointly and severally with the above-named
Employer make whole Richard G. Hoelke for any loss
of earnings he may have suffered because of our dis-
crimination against him.
WE WI.. write Pittsburgh Press Company and Rich-
ard G. Hoelke that we withdraw our objection to its
employment of Hoelke or to his reinstatement.
INTERNATIONAL. PRINTIN(G AND GRAPHIC COMMU-
NICAAIIONS UNION, PIITTSBU RGH NEWSPAPER
PRINIING PRESSMEN'S UNION No. 9, AFL-CIO-
CLC
673