Printing Pressmen's Union No.60

National Labor Relations Board - Board Decisions

May 5, 1971

190 N.L.R.B. 268 (N.L.R.B. 1971)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Passaic, Morris, Sussex & Bergen Counties Newspa-
per Printing Pressmen 's Union No. 60 , affiliated
with International Printing Pressmen and Assist-
ants' Union of North America , AFL-CIO, and
James Schofield and The Passaic Daily News, trad-
ing as the Herald-News. Case 22-CB-1517
meted out. Accordingly, we find, contrary to the Trial
Examiner, that the Respondent did not violate Section
8(b)(1)(A) of the Act by imposing a fine on John Big-
gers and shall dismiss this allegation of the complaint.
ORDER
May 5, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 31, 1969, Trial Examiner John F.
Funke issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearings and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner with the following modification.
The Trial Examiner found that the Respondent vi-
olated Section 8(b)(1)(A) of the Act by imposing an
unreasonably excessive fine on its member, John Big-
gers, for working during a strike at the Passaic Daily
News, trading as The Herald-News, Biggers' place of
employement. For the reasons more fully explicated in
Arrow Development Co.,' which issued after the Trial
Examiner's Decision herein, we disagree with the Trial
Examiner's finding of a violation of the Act based on
the fine. In that case the Board held that where, as here,
a fine is imposed to implement a legitimate union rule
which is not in conflict with any policies of the Act, the
Board is without authority to set the amount of the fine
or otherwise to evaluate the fairness of the discipline
' In the absence of exceptions thereto, we adopt pro forma the Trial
Examiner's findings that the Respondent violated Section 8(b)(1)(B) by
fining supervisors Niland and Wiedemann for working during a work stop-
page.
I International Association of Machinists and Aerospace Workers, AFL-
CIO, Local Lodge No. 504 (Arrow Development Co.), 185 NLRB No. 22.
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent, Passaic, Morris, Sussex &
Bergen Counties Newspaper Printing Pressmen's Un-
ion No. 60 affiliated with International Printing Press-
men and Assistants' Union of North America, AFL-
CIO, and James Schofield, their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as so modified:
1. Delete paragraph 1(c).
2. In paragraph 2(b) delete the words "Michael Ni-
land, Jr., and John Biggers" and substitute therefor the
words "and Michael Niland, Jr."
3. In footnote 10 of the Trial Examiner's Decision,
substitute "20" for "10" days.
4. Substitute the attached Appendix for the Trial
Examiner's Appendix.
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to refer Michael Niland,
Jr., and John Biggers for employment to employ-
ers within the territorial jurisdiction of Local 60,
in accordance with our customary practice of ref-
erral.
WE WILL NOT fine or otherwise discipline War-
ren Wiedemann or Michael Niland, Jr., or any
other supervisor of the Passaic Daily News, trad-
ing as the Herald-News, if said supervisor is or
may become a representative of the Herald-News
for the purpose of collective bargaining or the ad-
justment of grievances.
WE WILL make Michael Niland, Jr., and John
Biggers whole for any loss of pay they may have
suffered because we refused to refer them for em-
ployment with an employer other than the
Hearald-News.
WE WILL rescind any and all fines imposed on
Warren Wiedemann and Michael Niland, Jr., be-
cause they worked during a work stoppage or
strike called at the Herald-News on May 16. WE
WILL remit to the above-named members any
sums paid toward such fines.
190 NLRB No. 38
PRINTING PRESSMEN'S UNION NO. 60 269
WE WILL correct all union minutes and other
records to show that said fines have been rescinded
and WE WILL notify said members that such ac-
tion has been taken.
PASSAIC, MORRIS,
SUSSEX AND BERGEN
COUNTIES NEWSPAPER
PRINTING PRESS-
MEN'S UNION No. 60,
AFFILIATED WITH
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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE , Trial Examiner : Upon a charge filed June
19, 1969, by The Passaic Daily News, trading as The Herald-
News, herein the Employer , against Passaic , Morris, Suffex,
and Bergen Counties Newspaper Printing Pressmen 's Union
No. 60 and James Schofield , herein Local 60 or Schofield or
collectively as the Respondents , the General Counsel issued
complaint alleging Respondents , by refusing to refer certain
employees to work as substitute employees and by fining
certain union members, including supervisory employees of
the Employer, violated Section 8(b)(1) (A) and (B).
The answer of Respondents denied the commission of any
unfair labor practices.
This proceeding, with all parties represented, was heard by
me at Newark, New Jersey, on November 5, 1969.
At the conclusion of the hearing the parties were given
leave to file briefs and a brief was received from the General
Counsel in December 1969.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
The Employer is a New Jersey corporation having its plant
and principal place of business at Passaic , New Jersey, where
it publishes The Herald-News. The Herald-News is a daily
newspaper subscribing to various interstate news services in-
cluding The Associated Press and United Press International.
It publishes syndicated features , including columns from The
Chicago Daily News and King Features , and advertises na-
tionally sold products.
In the course of a representative year the Employer re-
ceives and purchases materials valued in excess of $50,000
transported in interstate commerce to Passaic from places
outside the State of New Jersey.
The Employer is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
Local 60 is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Findings of Fact
1. Background
On or about April 30, 1969, the Employer and Local 60
executed a collective -bargaining agreement (General Coun-
sel's Exhibit No. 2) covering the Employer 's pressroom em-
ployees. The contract expiration date was April 13, 1970.
The complaint alleges and Respondents admit that at all
times material herein Warren Wiedemann and Michael Ni-
land, Jr., were employed by the Employer as pressroom fore-
man and assistant pressroom foreman and were supervisors
within the meaning of the Act, that John Biggers was an
employee of the Respondent , and that Wiedemann , Niland,
and Biggers were members of Local 60.
At or about the times set forth the following named persons
occupied the position of chapel chairman for the unit covered
by the collective-bargaining agreement:
Walter Walsh-April 30, 1969, to May 17, 1969.
Robert Forbes-May 17, 1969, to May 27, 1969.
Robert Langen-May 27 , 1969, to the date of hearing.
At all times material herein James Schofield was president
of Local 60. Respondents admit that Walsh, Forbes, Langen,
and Schofield acted as agents for Local 60.
2. The work stoppage
On May 16, the Employer, through Wiedemann, requested
a substitute apprentice pressmen from Local 60. Local 60 sent
an apprentice named Travis who was unacceptable to Weide-
mann .' Weidemann told Travis to stop working and asked
Walsh, then chapel chairman, for another apprentice or for
a journeyman . Walsh told Wiedemann he had instructions to
use Travis and then made a telephone call. When he returned
he told Wiedemann Travis would work or no one would
work. Wiedemann then polled the pressroom employees and
only Niland and Biggers agreed to work . The dispute was
settled that morning and the men returned to work about 11
a.m.
Wiedemann 's only explanation was that he wanted a regular apprentice
and did not want Travis. He therefore objected to Travis working at any
time.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to refer
The complaint alleges and I find that it was the practice to
refer pressroom employees to substitute work on other shifts
at other printing establishments when such work was availa-
ble. Referrals would be made by the chapel chairman. Com-
plaint further alleges that following the work stoppage on
May 16, Local 60, through its chapel chairman, refused to
refer Wiedemann, Niland, and Biggers to substitute em-
ployees and that said refusal resulted from their failure to
participate in the work stoppage of May 16.
Wiedemann testified that on a day about two weeks after
the work stoppage he was in the pressroom when Chapel
Chairman Langen asked an employee named Reuther if he
wanted to work out and Reuther declined. Biggers offered to
accept the work but was told he was not allowed to work out.
Wiedemann then offered to take the work and was told he
could not go because he, too, had been a bad boy. Wiedemann
also testified that the only reason he had offered to accept was
to find out the reason why he could not work and that he
would not have gone had the work been offered.' Wiede-
mann's name never appeared on the referral list.
John Biggers testified that he had been employed by the
Employer from some 19 years as a journeyman pressman and
that during the period from January 1, 1969, until May 16 he
had worked at the Newark News, Matzners, and the Patter-
son News upon referral from the chapel chairman. He was
referred when his name came up on the chairman's list of
pressroom employees. If he refused "R" was placed opposite
his name and he went to the bottom of the list and if he
accepted he was marked "A" and presumably went to the
bottom of the list. Under ordinary circumstances an em-
ployee's name would be reached about once a week.
On May 16 he reported for and went to work when Wiede-
mann told him the pressroom would be working. Prior to
working, however, he was told by Walsh, then chapel chair-
man, that if the boy (Travis) did not go to work no one went
to work. The other men went to work about 11 a.m. During
the period Biggers was working he was told by Jim Sherlock,
vice-president of Local 60, to tear up his "book," he was
finished. The following week he was told by Walsh that he
could not work out any more because he had worked on May
16. Biggers was not asked to work out again until September.
Biggers testified that on or about May 1 he received a
contract for hauling newsprint for the Employer and that
Reuther helped him with hauling, which was done after his
shift in the pressroom was finished.
On cross-examination Biggers was asked how many times
he had worked out during the period January to May. His
testimony on this point, which I consider ambiguous, reads:
Q. Mr. Biggers, how many times did you work out
prior to May 16th?
TRIAL EXAMINER: Let's start with January 1st.
THE WITNESS: January 1st, quite often.
Q. In January, how many times did you work out?
TRIAL EXAMINER: Isn't this subject to factual proof?
Does any one have the days?
MR. KOBELL: I believe it can be produced.
TRIAL EXAMINER: That would solve it. Otherwise it
is purely speculative. He did testify to once a week. That
was just approximate.
MR. PARSONNET: Well , I would like to find out his
estimate.
' Wiedemann had not accepted referral since he had become pressroom
foreman and did work outside.
TRIAL EXAMINER: That was his estimate. Go ahead.
You try to get, too.
Q. In January how many times did you work out?
MR. KOBELL: Your Honor, I think it is impossible to
ask the witness how many times he worked out in Janu-
ary.
TRIAL EXAMINER: You asked.
MR. KOBELL: I asked him how many times in the en-
tire period of time. I think to guesstimate is impossible.
MR. PARSONNET: Let's leave it up to him.
MR. KOBELL: He can answer if he knows, he should
be told.
TRIAL EXAMINER: There's nothing tough about say-
ing I don't remember or I do.
THE WITNESS: I worked quite often.
Q. In January, do you know how many times?
A. In January-I can't pick the months out. I know
I worked in Newark one night during that period.
Q. Did you work often in February?
A. Yes, as my turn came up.
Q. Now, what about March, did you work often then?
A. I believe I did.
Q. What would you consider often, how many times?
A. Once a week.
Q. In April, did you work often then?
A. It's hard to remember.
Q. And you don't remember, is that it?
A. That's right.
Q. What about in May. Did you work at all in May?
A. May I didn't work.
TRIAL EXAMINER: Really, this is a question that
arises, if it does, comes up in compliance where you need
some basis for making a factual determination. It
couldn't possibly be based on this testimony.
MR. PARSONNET: Well, no. The witness admitted that
he did not work at all in May.
TRIAL EXAMINER: That's something, yes.
Q. Did you work at all in June?
A. No, because I wasn't asked.
Q. Did you work at all in July?
A. No.
Q. In August?
A. No. Because I wasn't asked.
Q. In September did you work at all?
A. No.
Q. In October did you work at all?
A. No.
He further testified on cross-examination that his hauling
work occupied 3 to 4 hours a day plus weekends but denied
telling any union representative that he did not want substi-
tute work because he was making enough money with his
contract. Biggers admitted that he was asked to do substitute
work in September and that he refused and that he had
refused substitute work since that date.
Michael Niland testified that he had been employed by the
Employer for 7 years, that he was assistant pressroom fore-
man, and that he worked out at the Patterson News and
Matzners. His estimate of the time he worked out during the
period January to May was once a week. On May 16 he
reported to work and went to work, although Walsh told
them that if Travis did not work no one would work. During
the period he was working he testified that James Schofield,
president of Local 60, asked him why he was working and
that when he told Schofield he was a company man Schofield
walked upstairs and said nothing. No union representative
told him he would be fined or disciplined for working during
this time. He was, however, told the next week by Walsh that
because of his action taken on Friday (the day of the stop-
PRINTING PRESSMEN'S UNION NO. 60 271
page) he would not be "booked out." Later Niland asked
Dave West, chapel chairman at Matzners, if he could work
out in his shop and was told that he (West) had orders not
to book him. After the May 16 stoppage Niland was asked
by the chapel chairman in June if he wanted to work out and
that he replied that there was a labor case against the Uion
(Local 60) and that he was told not to work out-not to upset
the apple cart until the case was finished. Niland testified that
he was told to give this answer by "someone upstairs" in the
hierarchy of the Employer.
On cross-examination Niland testified that he worked out
during January and perhaps two or three times in March and
once or twice in April. In May he did not work out at all. He
also testified that during that summer he had disability (one
lung) which made it difficult to make him work indoors. He
testified that he had acquired a landscaping business and that
he very seldom worked out during the summer and that he
had told the union representative this. Having been told that
he was a "bad boy" immediately after May 16 he did not ask
to be booked out but was told by Langen in July or August
that he could not be booked out. This testimony I find in
contradiction with his testimony that he was asked to work
out in June and refused.
James Schofield, president of Local 60, testified that on
May 16 he received word from Walsh that Wiedemann had
refused to permit Travis to go to work. He told Walsh to have
everyone sit down until Travis was allowed to work and later
was informed by Walsh that "three guys were working."
Schoefield then went to the plant and, accompanied by
Walsh, told the men what was going on and told Wiedemann,
Biggers and Niland not to work. Nevertheless they continued
to work. Later agreement was reached between the Interna-
tional and the Employer and the men returned to work.
Schofield stated that he issued no orders that Wiedemann,
Niland, and Biggers be given no referrals to outside work and
that none of them complained to him concerning any refusal
to refer.
Robert Forbes, chapel chairman at the Employer's plant,
testified that it was understood that Wiedemann did not work
out and that near the end of March Niland "advised us" that
he was going to do landscaping business in the nice weather
and could not take indoor (pressroom) work.
As to Biggers, Forbes testified that he overheard a conver-
sation between Walsh and Biggers during the first week in
May in which Biggers told Walsh, when asked to work out,
not to bother him with chicken feed-that he had too much
time tied up in "the big money." This was during the period
when Biggers was working under his hauling contract.' Be-
sides Biggers there were two other employees who did not
work out and were not referred, Supples and Stavish. (Stavish
would work only at the Newark News.) As to these em-
ployees who never work out, an automatic "R" is placed after
their name on the referral list.
Robert Langen, chapel chairman from about May 27 to the
time of hearing, testified that Niland told him he did not want
to work out because of his landscaping business and that
Biggers told him dunng early May he did not want to be
bothered with chicken feed. As to the list, Landen said that
three employees, Travis, Forbes, and Brennan always wanted
to work out and were always asked first. If they were unavail-
able he would call in the pressroom for volunteers. Biggers,
he testified, was given a referral to the Patterson News on
September 30 but did not report. Landen never told either
Niland or Biggers that they could not work out, or told
Biggers he was a bad boy.
' Forbes testified that he asked Biggers once or twice during the summer
if he wanted to work out and "got a very terse no "
Biggers, on recall, testified that he never told a chapel
chairman that he did not want to work out because he had
a better job but that since September he had been asked
regularly if he wanted referral. He did not, however, accept
referral at any time after September. In May he did not work
out because he did not want the work.
4. The fines
The issue of the fines is not in dispute. By letters of Novem-
ber 5 (G. C. Exh. 3, 5, and 7) Wiedemann, Biggers, and
Niland were notified that they would be placed in trial on
charges filed by James Schofield. The trial was set for June
23 and none of the charged members appeared. By letter
dated July 9 Wiedemann was notified that he had been fined
a total of $1,200. (General Counsel's Exhibit 4.) By letters of
the same date Biggers was notified that he was fined a total
of $2,000 and Niland that he had been fined $1,600. (General
Counsel's Exhibits 6 and 8.)
In the letters assessing the fines all the members were found
guilty of violating the Local's Constitution and By-Laws' by
violating their Oath under Article IV of the Local's constitu-
tion ; Article III, Section 10 of the By-Laws; Article VII,
Section 2 of the By-Laws and Article VIII, Section II of the
By-Laws. The issue of the justification for such fines is not
before me. The issue is whether such fines violated Section
8(b)(1)(A) and 8(b)(1)(B).
B. Conclusions
1. The refusal to refer
I find no violation of the Act in the one refusal to refer,
testified to be Wiedemann, which occurred shortly after the
stoppage. As Wiedemann himself admitted, he had not
worked out for some time , had no intention of working out
and other testimony reveals that this was well known to the
chapel chairman. Under such circumstances it is difficult to
embrace the action of the chapel chairman within the ordi-
nary meaning of the words "restraint and coercion."
Biggers testified that at a time best fixed as the week after
the work stoppage he was told by then Chairman Walsh that
he could not work out and that he was not asked to work out
again until September when he refused. Since Walsh was
present at the hearing and did not testify I must accept Big-
gers' testimony that he was refused referral on one occasion.,
There is direct conflict between the testimony of Biggers and
Chairmen Forbes and Langen as to whether Biggers had
notified them that he did not want referral work and was not
offered it for that reason or was refused referral because of his
failure to obey union orders on May 16. This conflict I resolve
in favor of Forbes and Langen, both of whom impressed me
as credible witnesses. Referring to the testimony of Biggers
as quoted, supra, I could not find that he worked during
either April or May prior to the work stoppage. It is only
reasonable to conclude, since there is no allegation that he
was not offered work during this period, that he preferred to
use his extra time for his haulage business. This conclusion
I find buttressed by the fact that he did not work in either
September or October, although asked, because he did not
want to.6
G.C. Exh 9
Biggers' testimony as to this refusal was corroborated by that of Wiede-
mann, supra, except for the fact that Wiedemann testified that it was Lan-
gen, not Walsh, who made the refusal
I find it difficult to believe that an employee working a full shift dunng
the day at the Employer's place of business and engaged in hauling for 3 to
4 hours thereafter and on Saturday and Sundays would have any time
available for working a second full-time shift.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would therefore find that Biggers was denied referral by
Chairman Welsh on one occasion but that he was not there-
after denied referral by any chairman by reason of his refusal
to join in the work stoppage on May 16. The refusal by Walsh
I find due to Biggers' refusal to join the work stoppage. I find
this single refusal sufficient to hold that Local 60 thereby
violated Section 8(b)(1)(A) of the Act.
As in the case of Biggers I find the only evidence of re-
straint and coercion against Niland occurred when Walsh
told him that because of his action on May 16 he could not
longer be booked out. I credit the testimony of Forbes and
Langen that he informed them that he preferred to work his
landscaping business when the weather permitted and did not
want outside work. This, again , is buttressed by Niland's own
testimony that he refused outside work in June, although he
gave a different reason.'
In finding a violation of Section 8(b)(1)(A) against Re-
spondents the admission must be made that it is based on
evidence as scant and meager as could be found. The Trial
Examiner would recommend dismissal on the ground that
the evidence is de minimis except for the fact that the Board
has sustained violations of the Act on grounds no more sub-
stantial.
2. The fines
The fines imposed upon Wiedemann and Niland, super-
visor-members of Local 60, fall within the ambit of the
Board's decisions in San Francisco-Oakland Mailers' Union
No. 18 (Northwest Publications, Inc.), 172 NLRB No. 252,
and 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, and constitute
violations of Section 8(b)(1)(B) of the Act.' I so find.
As to the fine imposed on Biggers, a more difficult question
is posed. The Board has pending before it decisions in at least
six cases involving the union fine issue which have been de-
cided by Trial Examiners since the decision of the U.S. Su-
preme Court in N.L.R.B. v. Allis-Chalmers Manufacturing
Company, 388 U.S. 175 (June 12, 1967.) These decisions
follow:
Booster Lodge No. 405, International Association of
Machinists and Aerospace Workers, AFL-Cio, (The
Boeing Company), Trial Examiner Ramey Donovan,
December 30, 1968.
Local 205, Lithographers and Photengravers Interna-
tional Union, AFL-CIO (The General Gravure Service
Co., Inc.), Trial Examiner Herbert Silberman, July 22,
1968.
Local 488, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, (UAW), Trial Examiner William Seagle, Au-
gust 20, 1968.
Communications Workers of America, Local 6135,
Trial Examiner James T. Barker, May 12, 1968.
Communications Workers of America, and its Local
5550 (American Telephone and Telegraph Company),
Trial Examiner Eugene Dixon, November 13, 1969.
' Niland's testimony that he was told to refuse by someone in manage-
ment because a labor case was pending can lead only to the inference that
the Employer was anxious to support a finding of violation against Respond-
ents.
' Counsel for Respondents does not, apparently, contend that the fines
did not violate the Act and stated that the fines had been rescinded prior
to the hearing. Notification of such rescission had not been received by
either Wiedemann or Niland at the time of the hearing.
United Steelworkers of America, AFL-CIO and its Affi-
liated Local 1114 (Harnischfeger Corporation), Trial
Examiner Thomas A. Ricci, November 30, 1969.
In addition to the foregoing, International Association of
Machinists and Aerospace Workers, AFL-CIO (Union Car-
bide Corporation), was referred to the Board after a hearing
by Trial Examiner Stone, December 1968.
As to these cases, none of which provide clear guidance in
the absence of Board decision, Trial Examiner Donovan
found a violation in Boeing on the ground that the fine was
unreasonable; Trial Examiners Silberman and Seagle found
no violation on the authority of Allis-Chalmers,- Trial Exam-
iner Barker found a violation in Communication Workers on
the ground the fine was unreasonable; Trial Examiner Dixon
found a violation in Communication Workers, Local 550 on
the ground no prior warning of a fine penalty had been given
the member; Trial Examiner Ricci in Harnischfeger dis-
missed on the ground, stated broadly, that the General Coun-
sel failed to prove a prima facie case.
With no Board decision relating to the divergent situations
which have arisen since Allis-Chalmers each Examiner must
take his own path. The Supreme Court has, of course, pointed
out the many facets of fine penalties and the factors which
may influence decision. Summarizing those which apply in
the instant case I find:
(a) No claim has been made that the stoppage which oc-
curred on May 16 was unlawful. It was, however, a spontane-
ous action taken in protest against the Employer's refusal to
hire an apprentice and not a planned strike.
(b) The employee-member did work during the stoppage.
(c) The stoppage lasted 3 hours, when it was settled by
agreement between the Union and the Employer.
(d) Biggers was not warned that he might be fined if he
worked during the stoppage although he was directed not to
work, together with the other employees, by Chariman
Walsh.
(e) Biggers knew he was violating a union rule by working.
(f) Local 60 is, in the parlance of the Court, a strong union.
(g) Biggers received notification of his trial and did not
appear.
(h) The contract between Local 60 and the employer con-
tained no union-security clause; membership was voluntary
on the part of the employees.
(i) For his refusal to join in the work stoppage of May 16
Biggers was fined $2000. No court action for enforcement of
the fine had been taken at the time of the hearing and there
is no evidence that the union procedures were irregular.
The Court in Allis-Chalmers without passing specifically
upon the issue, referred at several times to "reasonable fines."
Thus at page 183 the Court stated:
Where the Union is strong and membership therefore
valuable, to require expulsion of the members visits a far
more severe penalty upon the member than a reasonable
fine.
At page 192:
There may be some concern that court enforcement may
permit collection of unreasonably large fines. However,
even where there is evidence that Congress shared this
concern, this would not justify reading the Act to bar
enforcement of reasonable fines.
At footnote 30 the Court added:
It is not argued that the fines for which court enforce-
ment was actually sought were unreasonably large.
I can only conclude that the Court by its use of the quoted
language left to the National Labor Relations Board the reso-
lution of this problem. The decision of Trial Examiner Dono-
van in Boeing was issued December 30, 1968, so it does not
appear the Board has met the issue with alacrity. In the
PRINTING PRESSMEN'S UNION NO. 60 273
absence of any indication of the Board's thinking on this
specific issue and because I think it the issue on which this
case must be resolved my finding will be based upon a purely
subjective reaction. I would hold that the imposition of a fine
of $2000 -upon a union member for a refusal to take part in
a work stoppage which lasted approximately 3 hours was
unreasonable. I would further hold that the imposition of an
unreasonable fine in the circumstances of this case and the
findings made above constituted a violation of Section
8(b)(1)(A) of the Act. No further explication seems required
in view of the failure on the part of the Board to reach any
decision on the questions left unanswered by Allis-Chalmers.
IV. THE REMEDY
Having found the Respondents engaged in certain unfair
labor practices it shall be recommended that they cease and
desist therefrom and take certain -affirmative action necessary
to effectuate the policies of the Act.
It having been found that Respondents have unlawfully
refused to refer Michael Niland Jr. and John Biggers for
outside employment in accordance with the common practice
of Local 60 it shall be recommended that Respondents refer
said Niland and Biggers for employement as pressroom em-
ployees in accordance with said practice.
It is also recommended that Respondent Local 60 make
Niland and Biggers whole for any loss of earnings they may
have suffered by reason of the refusal of Respondents to refer
them for outside employement as specifically found herein.
Such loss of earnings shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB and Isis
Plumbing & Heating Co., 138 NLRB 716.
It shall also be recommended that Respondents rescind the
fines imposed upon Wiedemann, Niland, and Biggers and
give notice to such rescission, in writing, to said Wiedemann,
Niland, and Biggers.
CONCLUSIONS OF LAW
1. By fining Warren Wiedemann and Michael Niland, Jr.,
for working during a work stoppage called by Local 60 on
May 16 , 1969, Respondents violated Section 8(b)(1)(B) of the
Act.
2. By fining John Biggers $2000 for working during the
work stoppage called by Local 60 on May 16 , 1969, Respond-
ents violated Section 8(b)(1)(A) of the Act.
3. By refusing to refer Niland and Biggers for outside
employement as found herein , Respondents violated Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is hereby recommended that Respondents Passaic, Mor-
ris, Sussex & Bergen Counties Newspaper Printing Press-
men's Union No. 60 and James Schofield, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to refer Michael Niland, Jr., and John Biggers
for employement to employers within the territorial jurisdic-
tion of Local 60 other than the Passaic Daily News, trading
as the Herald-News.
(b) Fining or otherwise disciplining Warren Wiedemann or
Michael Niland, Jr., or any other supervisor of the Employer,
as a member of Local 60, for the conduct of such ember as
a supervisor of the Employer while said supervisor is or may
become the selected representative of the Employer as its
representative for the purpose of collective bargaining or the
adjustment of grievances.
(c) Fining John Biggers or any other member of Local 60
an amount of money that constitutes an unreasonably large
fine because said John Biggers or any other member of Local
60 worked during a period when a work stoppage or strike
had been called by Local 60.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Respondent Local 60 shall make Michael Niland, Jr.,
and John Biggers whole for any loss of earnings they may
have suffered by reason of said Local 60's refusal to refer
them for employement as found herein.
(b) Rescind fines imposed upon Warrent Wiedemann, Mi-
chael Niland, Jr., and John Biggers and notify said members
in writing of the rescission of said fines and remit to said
members any sums which may have been paid toward said
fines.
(c) Correct all minutes of union meetings and other records
to show that said fines have been rescinded and inform said
members, in writing, that such action has been taken.
(d) Post at its office and all meeting halls and at the office
of the Employer, the Employer willing, copies of the notice
attached hereto and marked "Appendix."9 Copies of said
notice, on forms to be furnished by the Regional Director for
Region 22, after being signed by an authorized representative
of Respondent Local 60 and by Respondent James Schofield,
shall be posted by Respondents immediately upon the receipt
thereof, and maintained for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
members are customarily posted and at the Employer's place
of business at all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to see that
said notices are not altered, defaced, or covered by other
material.
(e) Notify the Regional Director for Region 22, in writing,
within 20 days from the receipt of this Decision and Recom-
mended Order what steps have been taken to comply there-
with.10
IT IS FURTHER RECOMMENDED that all allegations of the
complaint not specifically found to have been in violation of
the Act shall be dismissed.
' 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, recommendations, and Recommended Order herein shall, as
provided by Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes. In the event that the
Board's Order is enforced by a Judgment of a United States Court of Ap-
peals, 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."
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps Respondent
has taken to comply herewith."