San Francisco-Oakland Mailers' Union 18

National Labor Relations Board - Board Decisions

Sep 23, 1968

172 N.L.R.B. 2173 (N.L.R.B. 1968)

SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2173
San Francisco -Oakland Mailers' Union No. 18, In-
ternational Typographical Union and Northwest
Publications , Inc. Case 20-CB-1678
September 23, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On April 12, 1968, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tled proceeding, finding that Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed a brief in support of the
Trial Examiner's Decision.
The Board' has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the en-
tire record in this case , including the Trial Ex-
aminer 's Decision, the exceptions, and the briefs,
and, with the limited modifications indicated
herein , adopts the findings, conclusions, and
recommendations of the Trial Examiner.
The complaint alleged that Respondent
restrained and coerced the Charging Party in the
selection and retention of its representatives for the
purposes of collective bargaining and the adjust-
ment of grievances in violation of Section
8(b)(l )(B) of the Act. As set out more fully by the
Trial Examiner, the acts which are alleged to con-
stitute violations of the Act were certain threats
and disciplinary action taken by Respondent
against the Charging Party's foreman and assistant
foremen, who were also members of Respondent
Union.' Specifically, Foreman Cox and Assistant
Foremen Thompson and Fraser were cited to ap-
pear before Respondent's executive committee
which had the power to discipline union members.
The citations involved certain alleged violations by
the individuals of the collective-bargaining agree-
ment between Respondent and the Charging Party.'
Upon instructions from the Charging Party, the
foreman and assistant foremen did not appear be-
fore Respondent's executive committee and were
eventually found to be in contempt of the commit-
tee and fined. There was, in addition, evidence of a
number of threats made by Respondent's agents to
Foreman Cox and Assistant Foremen Thompson
and Bowlin. These threats also arose over disagree-
ments involving contract interpret tions or
grievance adjustment and in essence ,threats to
take these individuals before Respondent's execu-
tive committee.
We are in agreement with the Trial Examiner
that the citation of Cox, Fraser, and Thompson was
not, as contended by Respondent, solely for in-
vestigative purposes. We find, rather, that Respon-
dent's actions, including the citations, fines, and
threats of citation, were designed to change the
Charging Party's representatives from persons
representing the viewpoint of management to per-
sons responsive or subservient to Respondent's will.
In enacting Section 8(b)(1)(B) Congress sought to
prevent the very evil involved herein-union inter-
ference with an employer's control over its own
representatives.' That Respondent may have sought
the substitution of attitudes rather than persons,
and may have exerted its pressures upon the Charg-
ing Party by indirect rather than direct means, can-
not alter the ultimate fact that pressure was exerted
here for the purpose of interfering with the Charg-
ing Party's control over its representatives. Realisti-
cally, the Employer would have to replace its
foremen or face de facto nonrepresentation by
them. In all the circumstances, therefore, we find
that Respondent's acts constitute restraint and
coercion of the Charging Party in the selection of
its representatives within the meaning of Section
8(b)(1)(B) of the Acts
Respondent contends that Section 8(b)(1)(B) of
the Act does not reach internal disciplinary mea-
sures against union members and cites Allis-Chal-
mers Mfg. Co. v. N.L.R.B., 388 U.S. 175, in support
of its position. In our opinion, the Supreme Court's
' Pursuant to the provisions of Section 3(b) of the National Labor Rela-
tions Act, as amended , the National Labor Relations Board has delegated
its powers in connection with this case to a three -member panel
2 By the terms of the collective-bargaining agreement between Respon-
dent and the Charging Party, foremen are required to be members of the
Union
' These violations included the use of an assistant foreman to repair a
machine, the passing of a newspaper wrapper to a teamster to replace a
wrapper that fell off a bundle of newspapers, and the permitting of a non-
member of Respondent to remove some newspapers from a bin in order to
complete a bundle needed for delivery
'In the course of the Senate's consideration of Section 8(b)(I)(B),
Senator Ellender stated
[Q]uite a few unions forced employers to change foremen They have
been taking it upon themselves to say that management should not ap-
point any representative who is too strict with the membership of the
union This amendment seeks to prescribe a remedy in order to
prevent such interferences [93 Cong. Rec 4266, Leg Hist , p. 1077]
We do not find it necessary to rely on the Trial Examiner's theory that
the citation of the Charging Party's representatives restrained and coerced
the Charging Party to substitute Respondent 's executive committee for the
special standing committee as the Charging Party's representative to make
ultimate decisions on contract interpretation
172 NLRB No. 252
2174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allis-Chalmers decision is not applicable to the
present situation. The Supreme Court, in finding
lawful the union action involved in Allis-Chalmers,
relied in part on the proviso to Section 8(b)(1)(A),
providing that the right of a labor organization to
prescribe its own rules with respect to the acquisi-
tion or retention of membership shall not be im-
paired. However, that proviso is limited to Section
8(b)( I )(A) of the Act only and is not a part of Sec-
tion 8(b)(1)(B). In addition, only legitimate inter-
nal union affairs are protected under Allis-Chal-
mers.s The Allis-Chalmers case involved a union's
fining of its members for crossing picket lines The
primary relationship there affected was the one
between the union and its members, and the
union's particular objective-solidarity in strike ac-
tion-was deemed by the Supreme Court a legiti-
mate area for union concern in the circumstances
involved. In contrast, in the present case, the rela-
tionship primarily affected is the one between the
Union and the Employer, since the underlying
question was the interpretation of the collective-
bargaining agreement between the parties. The
relationship between the Union and its members
appears to have been of only secondary im-
portance, used as a convenient and, it would seem,
powerful tool to affect the employer-union relation-
ship; i.e., to compel the Employer's foremen to take
prounion positions in interpreting the collective-
bargaining agreement. The purpose and effect of
Respondent's conduct literally and directly con-
travened the statutory policy of allowing the Em-
ployer an unimpeded choice of representatives for
collective bargaining and settlement of grievances.
In our view it fell outside the legitimate internal in-
terests of the Union, and, as found by the Trial Ex-
aminer, constituted a violation of Section
8(b)(1)(B) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Respondent San Francisco-Oakland
Mailers' Union No. 18, International Typographical
Union, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
Recommended Order.
See N L R B v Industrial Union of Marine & Shipbuilding WorAers of
America and its Local 22, 391 U S 418 (1968), where the Supreme Court
held that a union could not expel a member for failing to exhaust mtrau-
mon grievance procedures prior to filing a complaint with the Board on a
matter which involved the Taft-Hartley Act Coercion used to discourage,
retard, or defeat access to the Board was held to go beyond the legitimate
interests of the union
' We therefore do not adopt the Trial Examiner's dictum that Respon-
dent could have disciplined its foremen members if it had not bargained
away such rights in its collective-bargaining agreements
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a
charge filed on May 9, 1967, by Northwest Publica-
tions , Inc., herein called the Charging Party, against
San Francisco-Oakland Mailers' Union No. 18, In-
ternational Typographical Union, herein called the
Respondent, alleging violations of Section
8(b)(1)(B) of the National Labor Relations Act, as
amended, 29 U.S.C. 151, et seq., herein called the
Act, a complaint issued on September 26, 1967.
Respondent's answer, filed on October 6, 1967, de-
nied the allegations of unfair labor practices.
Pursuant to notice, a hearing was held before me
in San Francisco, California, on January 4 and 19
and February 5.1 At the opening of the hearing, the
General Counsel made a motion to amend the com-
plaint by making certain corrections and additions.
The motion was granted.
At the conclusion of the hearing the parties
requested time in which to file briefs with the Trial
Examiner. Time was granted and was, upon request
of Respondent's counsel, extended to April 1,
1968. Briefs were received from the General Coun-
sel and the Respondent at the close of that day and
have been considered.
From my observation of the witnesses and upon
the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and the answer admits,
that the Charging Party, a Delaware corporation, is,
and has been at all times material herein , engaged
in the publication of the San Jose Mercury, the San
Jose News, and the San Jose Mercury-News at its
newspaper publishing plant located in San Jose,
California; that during the past calendar year, in the
course and conduct of its business operations, the
Charging Party received from the sales of
newspapers and advertising therein gross revenues
in excess of $200,000; that during the past calendar
year, in the course and conduct of its business
operations, the Charging Party has subscribed to
Associated Press, United Press International, and
interstate news services, has published nationally
syndicated features, and has advertised nationally
sold products.
On the foregoing facts, I find that the Charging
Party is engaged in commerce within the meaning
' The transcript of the proceedings is hereby corrected in accordance
with the list of corrections in Appendix B [Omitted from publication ]
SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2175
of the Act and that it will effectuate the policies of
the Act to assert jurisdiction in this case.2
II. THE ISSUE
Whether or not Respondent restrained or
coerced the Charging Party in the selection of his
representative for the purposes of collective bar-
gaining or the adjustment of grievances by citing or
threatening to cite foremen and assistant foremen
to appear before Respondent's executive commit-
tee as the first step in a procedure of Respondent
which could result in a fine or other punitive action
when the decision of the foreman or assistant
foreman as to settlement of grievances is at vari-
ance with the contentions of Respondent's chapel
chairman or other agents rather than taking
grievances through the channels provided for in the
contract, among which is arbitration.
III. THE FACTS
A. Contract Provisions
Respondent (admittedly a labor organization
within the meaning of the Act) and Charging Party
entered into a collective-bargaining agreement
(herein called the contract) in June 1965, with a
term extending to March 4, 1967. The customary
automatic renewal language was not included, but
the complaint alleges and the answer admits that
since March 4, 1967, the contract had been ex-
tended on a day-to-day basis.
Pertinent provisions of the contract, including
portions of Respondent's general laws which are in-
corporated into the contract by reference, insofar
as they relate to foremen, provide as follows:
1. The foreman must be a journeyman.
2. "The foreman is the only recognized
authority. Assistants may be designated to
direct the work but only the foreman may em-
ploy and discharge. In filling vacancies the
foreman shall be governed by the provisions of
article vi, general laws."'
3. Section 17 of the contract provides: "(a)
The operation, authority and control of each
mailing room shall be vested exclusively in ...
[the Charging Party] through its representa-
tive, the foreman, who shall be a member of
the Union. In the absence of the foreman, the
foreman-in-charge shall so function."
"(b) The authority of the foreman shall be
exercised in a nondiscriminatory manner under
law and this agreement and no foreman or
assistant foreman shall be subject to fine,
discipline or expulsion by the Union for any
Act within the scope of such authority."
4. "A foreman shall not be permitted to
select his force from day to day, but must have
such number of regular situations as are neces-
sary to meet requirements and to reduce em-
ployment of extras to a minimum. ..."
General Laws, Art. II, Section 11.
5. "Foremen shall be permitted to perform
work of the type ordinarily performed by jour-
neymen for not more than five days and/or
nights ... in any week; provided, that the
foreman shall post a starting time and regular
off-days and/or nights and shall comply with
the same overtime provisions as journeymen;
however, the foreman may advise with and
give instructions through assistants on shifts in
excess of five. Supervisory foremen and/or ex-
ecutive foremen shall be exempt from overtime
provisions." Section 12(c), contract.
6. The contract provides for a standing
committee of four, two each of which are
named by the Respondent and Charging Party.
All disputes arising under the contract, the
construction to be placed on any clause, and
disputes between the parties (except as other-
wise provided) are required to be referred by
the executive officers of each party to the
standing committee. "It is understood ... that
the Special Standing Committee is established
by the terms of this agreement for the settle-
ment of ... disputes ... and that the Special
Standing Committee is the proper body to take
up such disputes in the first instance and to set-
tle them finally. . . . It shall require a vote of at
least three (3) of the four (4) members of the
Special Standing Committee to decide the is-
sues. . . . If the Special Standing Committee
cannot reach an agreement on any dispute
within five (5) days (this time may be extended
by unanimous agreement) from the date on
which the dispute is first considered ... the
members of the committee shall become a
Board of Arbitration and shall select the chair-
man of the Board by lot from among ...
[named persons]. Decision of this Board by a
majority vote is final and binding on the
parties.
B. Personnel Involved
About 60 employees are currently employed in
the mailroom on the day and night shifts. In
February 1967, there were 80 in two plants. The
Charging Party had built a new plant and its per-
sonnel and equipment were moved to the new plant
in stages. During the two-plant operations, up to
May 1967, a larger than normal staff was required.
All mailroom employees are under the head
2 Berea Publishing Company, 140 NLRB 516, Chicago North Side
Newspapers, 124 NLRB 254
1 This relates to priority rights in hiring
2176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman , Edward Cox. Cox has several assistants.
The ones here involved are Lyle Fraser, Eugene
Bowlin , and Douglas Thompson. These assistants
direct the work and, when the head foreman is not
present , they may ( within the limits of the contract)
call for additional men, lay off men, make initial
decisions on grievances , and send a man home for
cause and recommend his discharge . The assistant
foreman on the night shift is usually in complete
charge because the head foreman would not nor-
mally be there.
Actually under union rules incorporated in the
contract , neither the foreman nor the assistant
foreman actually selects men for employment or
layoff. They determine the number of men needed.
When additional men are needed , the foreman, or
in his absence the assistant foreman , notifies the
chapel chairman , the Respondent 's representative
in the shop , and the chapel chairman notifies the
men next in line for work to report . If men are to
be laid off, the foreman , or in his absence the
assistant foreman , tells the chapel chairman the
number to be laid off and the chapel chairman noti-
fies the men with the least retention rights.
Of course, the very fact that the assistant
foreman can send a man home , even though the
head foreman might not thereafter discharge him,
establishes the fact that the assistant foreman has
some authority as a supervisor , and, if the head
foreman is not, even temporarily , available at the
time a grievance arises , the chapel chairman will
take up grievances or disputes initially with the
assistant foreman . In such instance , the assistant
foreman is acting as a representative of manage-
ment.
Although conceding that Cox is a supervisor
within the meaning of the Act, Respondent disputes
the supervisory status of assistant foremen , arguing
that Cox always makes an independent investiga-
tion in cases of recommended discharge and does
not rely on the recommendation of his assistant
foremen .4 But for the purposes of this case, it is
really unimportant whether or not Thompson,
Fraser , and Bowlin are supervisors as long as they
are representatives selected by Charging Party for
the purposes of collective bargaining or the adjust-
ment of grievances. And the fact is that the Charg-
ing Party has designated the foreman and, in his
absence , the assistant foreman , as its representative
to make initial decisions in the adjustment of
grievances or the settlement of disputes arising
under the contract , and I find , therefore , that Cox,
Thompson , Fraser , and Bowlin are representatives
of the Charging Party within the meaning of Sec-
tion 8 ( b)(1)(B) of the Act.
The Respondent 's representative in the mailroom
is the chapel chairman ( the equivalent of the
steward in most unions ). Before November 1, 1967,
the chapel chairman was Keith Bentley . After that
date it was Don Streu , who had been assistant
chapel chairman under Bentley.
C. The Chapel Chairman 's Role and the Procedure
for Disciplining Members
The chapel chairman has a variety of duties. He
collects dues , maintains the "slip board " ( employ-
ment roster ) on which persons with regular " situa-
tions " (jobs) enter their names and keep a record
of overtime work , calls additional employees to
work when requested to do so by the foreman,
represents employees in the adjustment of
grievances , represents the Respondent in the initial
step in cases of alleged contract violations , enforces
union rules , and makes a monthly report to the
Respondent concerning the current number of
situations , changes in personnel , and violations of
contract and union rules . For this work , he receives
from Respondent compensation at the rate of 50
cents per month per member working in the mail-
room plus a telephone allowance.
The chapel chairman , in his monthly report, can
cite members for refusal to obey his instructions. If
the chapel chairman mentions in his report a con-
tract violation or violation of union rules , it is the
practice of the executive committee to cite the
member named in the report to appear before it in
San Francisco to explain his actions . A violation of
the contract can also be a violation of union rules.'
The Respondent has made no distinction between
foremen , as members , and rank -and-file employee
members.
San Jose is approximately 50 miles from San
Francisco . If the executive committee , having heard
the member cited , concludes that he has violated
the contract or union laws , they , or one of them,
will file charges against the accused member, which
charges will then be considered by the Respon-
dent 's investigating committee ( appointed by the
Respondent 's president as chairman of the execu-
tive committee ) at its next meeting . If the in-
vestigating committee finds the charges worthy of
trial , the matter is put to a vote of the membership.
If the membership votes the matter worthy of trial,
the charges go before a trial committee , also ap-
pointed by the Respondent 's president as chairman
of the executive committee , unless there is an ob-
jection to such manner of appointment , in which
case names are drawn from a hat . If the trial com-
mittee finds the charged member guilty , it recom-
' Cox has been chary of acting upon recommendations for discharge
because, under union working rules incorporated into the contract, a
discharged employee is eligible for rehire in 6 months Since the selection
of men for hire is controlled by the Respondent 's chapel chairman, there
would be a strong probability that such discharged employee would be
rehired and the original problem with him would be renewed Hence, Cox
prefers to solve problems by means other than by discharge
' The bylaws of the Respondent's International Union provide, in art. V,
sec I "Charges may be preferred against any member for any disreputable
act, conduct unbecoming a union member, violation of laws of the local or
International Union, or failure to observe provisions of the contract and
scale of prices
SAN FRANCISCO-OAKLAND MAILERS' UNION 18
mends a penalty, usually a fine,' although it could
recommend expulsion. The membership then votes
on the recommendation and determines whether or
not to assess the fine, if that is the penalty. If it de-
cides to do so, it assesses not only the fine but "ex-
penses " incurred by the investigating and trial com-
mittees as well. It is not revealed how these expen-
ses are ascertained.
D. Relations Between Cox and Bently
The head foreman, Cox, had been Respondent's
president before being employed by the Charging
Party in 1965 as a superintendent. At that time,
Keith Bentley was the mailroom foreman. Cox ap-
pears to have found Bentley difficult to work with
and he recommended his demotion. His recommen-
dation was acted on by the Charging Party and
Bentley returned to work as a hand in the mail-
room. Thereafter, Bentley was chosen by the men
working there as the chapel chairman. The Charg-
ing Party was building a new plant at the time and,
during the transition period when work was being
carried on partly in the old plant and partly in the
new plant, there was an unusually large number of
contract interpreting problems, especially regarding
manning of operations. Bentley and Cox had many
heated arguments concerning these matters, and
Bentley on five or six occasions in a 6- or 7-month
period threatened to take Cox before the Respon-
dent's executive committee because of a disagree-
ment with Cox over contract interpretation or ad-
justment of a grievance. On one occasion, Bentley
told Cox that he was a "phony son-of-a-bitch," that
Cox had "sold the union down the stream," and
that Cox had no business holding a card in the I.T.
(Respondent's International Union).
E. Restraint and Coercion of Charging Party in
Selection of its Representatives for the Purposes of
Collective Bargaining or the Adjustment of
Grievances
Bentley , in his February 1967 chapel report to
the Respondent, cited Assistant Foremen Lyle
Fraser and Douglas Thompson "for conduct un-
becoming a union member and operating outside
the scope of their authority." In the same report,
Bentley stated, "This chairman charges [Foreman]
E. Cox with violation of low overtime hiring
procedures as agreed to in supplemental hiring
agreement of San Jose Contract." He further
charged management with violation of Respon-
dent's jurisdiction and suggested that a meeting
with management might serve to resolve some of
the problems mentioned.
' There is an appeal procedure which could carry the matter to the Inter-
national Union or even to a national convention , but this is of no im-
portance here
r Before Thompson had started work on his overtime period, Chapel
Chairman Bentley had called in another man (one James Campbell), or
perhaps two men , without consulting with Cox , to work that evening, and
2177
As a result of this report, the Respondent called
for a meeting of the special standing committee (as
provided for in the contract), and on March 14,
1967, such a meeting was held. The Respondent
was represented by its president, Douglas Smith,
and by its secretary-treasurer, Duane Jones. The
Charging Party was represented by Fred Mannon,
industrial relations director, and by Hans Rosberg,
production manager . However, Bentley, chapel
chairman, Don Streu, then assistant chapel chair-
man, Paul Welton, vice president of Respondent,
and Duncan Ross, a representative of the Interna-
tional , were also present for the Respondent, while
Antone Peterson, the Charging Party's general
manager , and Edward Cox, the head foreman, were
also present for the Charging Party.
At this meeting, Smith claimed that Cox had vio-
lated the "low overtime hiring procedure" under a
provision of the contract which required overtime
work to be given to the man on the slipboard (em-
ployees' list) who had received the least amount of
overtime in a 90-day period. The alleged violation
was identified as an instance when Cox had held
Assistant Foreman Thompson over onto another
shift for a few hours. Thompson had worked the
overtime period as a foreman in charge. Although
conceding that a supervisory foreman is exempt
from the overtime provisions of the contract, the
Respondent claimed that Thompson worked as a
journeyman during the overtime period in that he
had made repairs to a machine that had malfunc-
tioned and stopped and that, although this was
recognized as an emergency and although no
question would have been raised if Thompson had
made repairs under such circumstances during his
regular shift, he should not have done so while
working overtime.' The Charging Party took the
position that, in an emergency, the foreman can
make repairs regardless of whether or not he is
working overtime. This dispute could have been
resolved by an interpretation of the contract by the
special standing committee or, if that committee
was unable to reach agreement , by the next step-
arbitration as provided for in the contract.
Another complaint raised by the Respondent at
this meeting was that Thompson had handed a
wrapper or some wrappers (whether on the same
occasion or at different times does not appear) out
a window to a teamster on the platform. The
Respondent wished to know if Thompson was act-
ing under Cox's orders in doing so. If so, according
to Bentley's line of reasoning, Thompson would
have been exempt from fine but Cox, would not,
unless he, also, had been acting on orders from the
Charging Party. The basis of the Respondent's ob-
jection apparently was that wrappers were to be put
the Respondent claimed pay for the man or men so called Although the
chapel chairman normally would have been the one to summon a man to
work, he should, under the contract , have done so only when the foreman
had asked him to This violation of the contract by Bentley does not appear
to have resulted in any union action against him.
2178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on by mailers only, and not by teamsters, and that
this act of Thompson's violated Respondent's ju-
risdiction as defined in the contract. When a bundle
of newspapers goes down the line and through the
tying machine, a wrapper sometimes falls off and, if
the bundle goes out the chute to the platform, the
teamster there would find no designation on the
bundle and would have to set the bundle aside until
he could get a wrapper to put on it In such a case,
the teamster had been accustomed to call in for a
wrapper or even to come into the mailroom to get
one himself and put it on the bundle as a quicker
and easier method of rectifying a mistake, over-
sight, or accident According to the Respondent,
the bundle, apparently, should always be returned
to the mailroom to have a mailer put a wrapper on
the bundle. At the March 14 meeting, Mannon said
that this complaint of the Respondent was blowing
up an insignificant incident. Apparently, the
Respondent contended that there were other such
incidents, so it was agreed that, thereafter, an in-
vestigation would be made and then a further meet-
ing would be held. Mannon did not testify that he
had raised any question as to the meaning of the ju-
risdiction clause of the contract, although a basis
might have been found for disputing Respondent's
interpretation.
Another complaint taken up at this meeting was
that Assistant Foreman Lyle Fraser had violated the
jurisdictional clause of the contract when he had
"permitted a nonmember" of Respondent (Night
Production Manager Ken Wells) to reach into a bin
(where papers would fall after a breakdown of the
machine) to remove some newspapers in order to
complete a bundle which was needed for someone
who had failed to get delivery. This incident had
occurred after a press run was finished and the shift
was over. Cox, who had been with Fraser, thought
that the crew had gone home. Apparently one
member had not yet left and had reported the in-
cident to Bentley. Marmon said, with regard to this
complaint against Fraser, that this was an excep-
tionally small matter and that it had occurred only
because Wells had done something in the interest
of getting out production under a severe time
schedule. I find some difficulty in understanding
Respondent's logic in holding a subordinate
management representative (Fraser) responsible
for failure to stop a superior management represen-
tative (Wells), but this point, apparently, was not
argued, nor, so far as the evidence shows, was the
meaning of the contract which provides, with
respect to the jurisdiction claimed by the Respon-
dent: "The party of the first part [the Charging Par-
ty] shall make no other contract covering the work
set forth above," or the meaning of the incor-
porated general laws of the International which
provide: "None but journeymen or apprentices may
be employed to perform all work within the ju-
risdiction of the Union." It is not clear to me why
Respondent felt that Fraser, rather than someone
else, should have been the one who, according to
the Respondent, should have stopped Wells. I
deduce, however, that Respondent was taking the
position that the supervisory authority in the mail-
room at that time was in Fraser and that he should
have enforced the jurisdictional clause of the con-
tract according to Respondent's interpretation.
Otherwise, the member who witnessed Wells' ac-
tions and reported them should have, himself,
stopped Wells or been subject to discipline.
At the March 14 meeting, the Charging Party
raised a complaint of its own that the chapel chair-
man had given orders to his crew not to put their
hands in the counter stacker (apparently a part of
the job). The Respondent claimed that one of the
foremen had ordered the men to put their hands in
that machine and that this was dangerous, so the
chapel chairman had told them not to do it. The
Charging Party argued at the meeting that, re-
gardless of the danger, the chapel chairman had no
right to give orders concerning the work but should
have taken the matter up with management as pro-
vided in the contract. I find no evidence of a settle-
ment of this dispute.
As soon as the meeting had adjourned (pending
investigation by the Charging Party of the practices
of drivers' coming into the mailroom for wrappers),
Cox returned to his office. There Chapel Chairman
Bentley came to him and handed him a letter, say-
ing, "Here 's your love letter." The letter, dated the
same day, March 14, 1967, reads.
Dear Brother Cox.
You are herewith cited to appear before the
Executive Committee Sunday, March 19, 1967
in California Hall, 625 Polk Street, San Fran-
cisco, California, the regular meeting place of
the Union, at 11:45 a.m. for the purpose of al-
lowing the Committee an opportunity to in-
vestigate certain allegations contained in the
February Mercury-News Chapel Report with
regard to your actions in the Chapel.
To clarify the nature of your citation, your
attention is directed to Section 32 of the Local
Constitution which directs the Executive Com-
mittee to see that the laws of the Union are
carried out and empowers the Committee to
issue citations such as this.'
Please be assured that this matter is of im-
portance both to you and to the Union; your
attendance is expected at the time and place
noted above.
BY ORDER OF THE
EXECUTIVE
COMMITTEE
K. D. JONES
Secretary-Treasurer
8 It will be observed that this was no "clarification" whatsoever , since it
failed to inform Cox of the contents of the chapel report (which Cox had
not seen) nor of the matter to be investigated The "laws" are , I deduce,
those that are incorporated by reference into the contract
SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2179
On the same day, Bentley handed identical letters
(except for the name of the person addressed) to
Assistant Foremen Thompson and Fraser.
Assuming that the Respondent's executive com-
mittee intended to use its so-called investigation to
pass on the same matters as had been taken up at
the standing committee meeting as alleged viola-
tions of the contract, Marmon instructed Cox,
Thompson, and Fraser not to appear before that
committee. He then wrote the following letter to
the Respondent on March 16, 1967:
Gentlemen:
This refers to letters dated March 14, 1967,
addressed to W. Edward Cox, Lyle Fraser and
Doug Thompson, regarding ". . . certain allega-
tions contained in the February Mercury and
News chapel report with regard to your actions
in the chapel."
The three gentlemen who have been recipients
of this letter act in the capacity of foremen and
assistant foremen at the Mercury and News,
and as such, are protected by the contract
from ". . . fine, discipline and expulsion by the
Union for any act within the scope of such
authority."
We suggest that any complaint of the Union
with regard to the actions of these men as su-
pervisors in our Mailroom be addressed to the
Special Standing Committee provided for in
Section 30 of contract between your Union
and Northwest Publications, Inc. This section
states in part that ". . . all disputes arising
under this agreement, the construction to be
placed on any clause of the agreement, and
any and all disputes between the parties ..."
shall be referred to the Special Standing Com-
mittee.
Because we believe the citations above
referred to violate the spirit and intent of our
contract, we have issued instructions to the in-
dividuals who have been cited to appear before
your Executive Board not to appear. We
further request that if your Union has any
quarrel with the activities of these foremen as
it applies to their methods of directing the
work in the Mailroom of the Mercury and
News that you follow the specific provisions of
the contract in the future.
Sincerely yours,
Fred W. Mannon
Industrial Relations
Director
As instructed by Mannon, the three men cited by
the executive committee refrained from appearing
at the designated time and place.
On March 22, 1967, the Respondent served on
Cox, Thompson, and Fraser formal notice of
charges filed against them for failing to appear be-
fore the executive committee. On or about the
same date, Bentley went to Cox's office and told
Cox that he had been especially careful in the way
he had written his chapel report so as not to involve
the contract.9 Bentley did not show the language to
Cox, and Cox did not actually see it until he was in
the Respondent's office on March 30, 1967.
On March 29, 1967, the Respondent wrote the
following reply to Mannon's letter of March 16:
This letter is being sent so that there will no
misunderstanding regarding the subject matter
contained in your letter of March 16, 1967, ad-
dressed to this union.
As you stated, we acknowledge that three
members of the Mercury-News Chapel were
cited to appear before our Executive Commit-
tee for the purpose of investigating certain al-
legations contained in the monthly chapel re-
port and that these members act as foreman
and/or assistant foremen. We do not argue that
the foreman and assistant foremen are afforded
the protection of Section 17(b) of the contract
when proceeding under the contract or carry-
ing out your instructions under the contract.
It should be pointed out that none of these
men were charged by the Executive Commit-
tee with any violations of any sort, but were
cited for the purpose before noted which is a
lawful and proper procedure.
Your interjection into this matter, which at
this point is a wholly internal subject, has only
served to complicate the situation. The three
members involved did not appear as directed
and have now been charged with contempt of
the Executive Committee, an offense of some
magnitude which is completely separate from
any other question which may or may not have
been raised in the investigation.
Regarding your suggestion that "any com-
plaint ... be referred to the Special Standing
Committee ..." we must state that we do not
know whether or not the Union will have a
complaint against Northwest Publications.
When the investigation of matters contained in
the chapel report is allowed to proceed in an
orderly fashion and a conclusion is reached,
you will be notified if the Union has a com-
plaint under the contract. We are sure you will
agree that the Union has not been hesitant in
calling for a meeting when a matter of mutual
interest has arisen. Furthermore, and finally, if
you believe that an investigation by the Union
executive committee into union members ac-
tions in the chapel of their employment con-
e The language in the chapel report is: "This chairman charges E. Cox
with violation of low overtime hiring procedure as agreed to in supplemen-
tal hiring agreement of San Jose contract."
2180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stitutes a violation of our contract , we suggest
that you pursue the matter according to the
contract rather than involving yourself on a
unilateral basis.
This letter was signed by K. D. Jones , the Respon-
dent 's secretary -treasurer , and it noted copies had
been sent to Production Manager Rosberg and
General Manager Peterson also.
About April 25, 1967, when Bentley had taken a
grievance or dispute up with Assistant Foreman
Thompson and the latter had made a decision
based on his interpretation of the contract which
was not to Bentley 's liking , Bentley told Thompson,
as quoted by the latter: "I will take you before the
executive board every chance I get. I will get your
-[posterior ]. You wait and see."
On May 2 , 1967, Respondent sent to Cox,
Thompson , and Fraser letters notifying each of
them that the charges filed against them had been
found by the membership to be "cognizable " ( i.e.,
approved for processing ) and that a committee had
been appointed to investigate the charges on May
7, 1967. On May 5, 1967, Mannon again wrote to
the Respondent with reference to its intent to
proceed with investigation of charges against Cox,
Thompson , and Fraser , saying that the charges
arose from the failure of the supervisors to appear
before the Respondent 's executive committee to
adjust various grievances arising under the collec-
tive -bargaining agreement , that the special standing
committee and not the supervisors10 was the agreed
representative for the settlement of disputes arising
under the agreement , and that , therefore , they had
been instructed not to attend the investigation men-
tioned in the Respondent's letter of May 2 to those
supervisors.
Before any further steps were taken against the
supervisors by Respondent , the next meeting of the
special standing committee was held on May 9,
1967. Production Manager Hans Rosberg, Industri-
al Relations Director Mannon, and Foreman Cox
represented management . The Respondent was
represented by two representatives of the Interna-
tional , by its secretary , and by its chapel chairman
and assistant chapel chairman . The results of this
meeting were summarized on May 15, 1967, by
Respondent's secretary , by the chapel chairman,
and by the latter 's assistant on two sheets of paper.
On six disputes , agreement had been reached, ac-
cording to this summary , which was posted on the
bulletin board . Two of these concerned matters
which had been discussed at the meeting of March
14, 1967, and which had been heretofore men-
tioned. The aforesaid summary stated these two as
follows:
It was agreed that drivers have no business
going through wrappers, etc. in the Mailroom;
if a driver has a question regarding his load
order, schedule, etc. he should go to the Mail-
room Foreman.
It was agreed that supervisory help kept on
overtime by virtue of their supervisory capacity
should confine themselves exclusively to super-
visory duties except in case of emergency.
Emergency was debated, but generally agreed
that this was the same emergency referred to in
section 26 of the contract.
Section 26 of the contract defined emergency as "a
'breakdown' of the machinery and every condition
arising over which the Publisher has no control."
From this, I conclude that the special standing com-
mittee had reached a settlement which proved that
Assistant Foreman Thompson had acted within the
contract terms, even on overtime, when he had
repaired a machine that had broken down. The
summary also contained a paragraph enumerating a
number of matters which remained unsettled." In
this paragraph it was recited that a second meeting
had been scheduled for May 10 but stated that an
unfair labor practice charge filed with the Board
had been delivered to the Respondent's office on
May 9, that Mannon had been responsible therefor,
that Mannon had said that the charge "was a result
of the Union's exercising of its procedures" relative
to Cox, Thompson, and Fraser, and concluded by
saying, "The rug having been pulled out from under
our discussions, the meeting was adjourned."12
On June 19, 1967, the Respondent wrote letters
to each of the three supervisors, Cox, Thompson,
and Fraser, notifying them that the membership
had voted, on the basis of the report of the trial
committee, to assess fines against them. In the case
of Cox, the fine was $100 plus $17.17 costs. Each
of the assistant foremen was assessed a fine of $50
plus $17.17 costs. The amount so assessed was paid
by each. The money for the fines was furnished by
the Charging Party, although the arrangement for
repayment between the Charging Party and the
three supervisors was not revealed.
In support of an allegation added to the com-
plaint by amendment made at the hearing, the
General Counsel adduced evidence to show that, in
January 1968, Don Streu, then chapel chairman,
threatened to take Assistant Foreman Eugene
Bowlin before the Respondent's executive commit-
tee when Bowlin made a decision which Streu
10 1 assume Maranon meant that , since the matter had been taken to the
special standing committee already, the matter was no longer in the hands
of the supervisors
" One of those listed was "assistant foreman being hired on overtime
ahead of low-overtime man " This would appear to have been settled No
claim had been made that Thompson had been held over by Cox to work as
a journeyman as distinguished from a supervisor , except insofar as Thomp-
son had performed work in an emergency as he had a right to do
No amended charge of refusal to bargain was filed against Respondent
by the Charging Party because of this statement , although it is well-
established law that the filing of a charge is no justification for a refusal by
the one against whom the charge is filed to bargain collectively Meyer
Frabes, d/b/a Gatesiay Luggage Manufacturing Co, 122 NLRB 1584,
Southland Cork Company, 146 NLRB 906, 923, N L R B v Taormina Com-
pany, 207 F 2d 251 (C A 5)
SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2181
disputed. The issue arose over an incident that had
occurred on the night shift when Bowlin alone was
in charge . Although the shift ends at 4:30 a.m., the
practice was to let the crew leave at 4:15 a.m. if
they had, by that time, been on the insert machine
for an hour. After each hour's run on the machine,
a 15-minute relief period had to be given, but after
4:15 a.m., if a relief of 15 minutes were given, it
would mean that the men were to be kept on over-
time, and, at 4:30 a.m., if the men were so retained,
they would be entitled to half an hour's lunch
period before returning to work.
The facts occurred as follows: About 3:03 a.m.,
Bowlin , the assistant foreman in charge of the night
shift, gave the crew a relief period and told the men
to be back at 3:20 a.m. They were back at that time
and started the machine. At a few minutes before 4
a.m., the machine operator, Murphy, came to the
office and asked Bowlin how long he was going to
run. Bowlin told him to run until 4:20 a.m., which
would make a full 1-hour's run. Murphy told
Bowlin that the chapel chairman had told the men
that they would have to have a break at 4:15 and
that he should shut the machine down then. Bowlin
told him, "No, run the hour until 20 after." As
Murphy left the office, three skids of paper toppled
over and spilled around on the floor. Bowlin came
out of the office and told the men to push the
papers aside and then continue to run the machine.
Bowlin intended to have two extra men and the
oiler pick up the papers. Murphy did start the
machine , but Streu, the chapel chairman, according
to his own testimony, "stopped the machine and
the crew came over and started picking the paper
up, and started restacking it, and they were doing
that a good five minutes," after which they started
the machine again . 13 At 4 : 15 a.m. Streu called to
Bowlin , "How about it, are you going to shut them
down?" Bowlin replied, "No, twenty after." Streu's
testimony following this exchange of words-suggests
that Streu was attempting to cause the work on the
machine to exceed 1 hour, thereby requiring
Bowlin to give a relief period which would have
ended after 4:30 a.m., when the men would also
have been entitled to a lunch period, in which case
the 12-man crew would have been entitled to 3/4-
hour overtime pay without working. Streu's
testimony was that at 4:20 a.m. he, himself, told the
men who wanted to quit at that time , "No, stay
right on there until- ." He checked his testimony
before he completed his quotation, but that his pur-
pose was to run past the hour of run in order to
claim overtime is evident from his subsequent ac-
tions. He testified that the operator did not shut the
machine down until 4:22 a.m. Then Streu got a
journeyman as a witness and waited for Bowlin to
finish his report and leave his office. When Bowlin
came out, Streu asked Bowlin why he had broken
the contract and kept them all on the machine for
more than an hour. Bowlin denied that he had
broken the contract. Streu said in unprintably vul-
gar language (as testified by himself) that he did
not like the way Bowlin had taken it out on the men
when a skid had fallen on the floor, that Bowlin had
broken the contract, and that " I am going to take
you to the City," meaning before the executive
committee in San Francisco. Bowlin called on a
witness to note Streu's threat. Streu testified that he
had replied to Bowlin, "I didn't threaten you. You
are going to the City."
Streu thereafter telephoned the R pondent's
president and told him "about going pat the one
hour." President Smith told Streu to take it through
normal channels. Thereafter, Streu (according to
his own testimony) wrote the incident up in his
chapel report, but he did not testify that he had
filed his chapel report yet. The executive commit-
tee had not cited Bowlin to appear before it up to
the time of Streu's testimony on February 5, 1968.
However, Streu's January chapel report would not
have been due to be filed until February 15, after
the close of the hearing, so the final outcome of this
incident is unknown.
Arguments and Conclusions
Section 8(b)( I )(B) of the Act makes it an unfair
labor practice for a labor organization or its agents
to restrain or coerce an employer in the selection of
his representatives for the purpose of collective
bargaining or the adjustment of grievances. The
General Counsel argues that Respondent's "con-
tinuing threats of disciplinary action and its citing
of the foremen, requiring attendance at a meeting
some 45 miles away from their homes, purportedly
to `investigate' matters about which there was no
factual dispute, are actions which coercively af-
fected the Employer in the selection and retention
of representatives having the authority to adjust
grievances and to apply, interpret and enforce the
contract." The Respondent's defense is that there is
no coercion or restraint in merely citing a foreman
to appear before the executive committee because
that committee does not, itself, impose any fine or
other discipline and that the fines actually imposed
for failure to appear before the executive board (a
violation of internal union rules) and not because
of any decision made by the supervisors under the
contract.
With respect to the argument that the executive
committee does not, itself, fine, punish, or expel
members, reference may be made to the Respon-
dent's own constitution which provides that the ex-
ecutive committee:
Sec. 32
(e) ... shall have power to discipline mem-
bers and to carry out the spirit and letter of the
" Bowlin testified that the men had apparently not heard his instructions,
but Murphy must have heard him because he had started the machine
Streu testified that he , himself, had stopped the machine again because the
men were not on the head- they were still picking up papers
2182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Constitution. They shall serve as a Discipline
Committee have power to cite members before
said Discipline Committee, the Executive
Committee, or the Union. They shall be em-
powered to prefer charges either as a commit-
tee or by order of the Union, as a situation may
warrant . . .
Although discipline for more serious offenses is
generally handled initially by the filing of charges,
which are then processed through an investigating
committee, a trial committee, and finally to the
membership, the executive committee appears to
have authority (as a disciplinary committee) to
discipline members. Potentially, therefore, citation
of a foreman to appear before the executive com-
mittee carries implicit in it the possibility of
disciplinary action if the executive committee
should disagree with the foreman's interpretation of
the contract. Even if the executive committee
should not, as Respondent maintains , have authori-
ty to discipline except in minor cases members of
that committee can file charges against the foreman
(and have done so) and cause him to be tried and
very likely fined for what Respondent interprets
(contrary to the foreman) to be a violation of the
contract or of its rules.14 The chance that the ex-
ecutive committee might decide not to charge the
foreman after he appears before it presents a gam-
ble that would not remove a foreman's feeling of
constraint or compulsion to defer to the chapel
chairman's decision in matters of interpretation of
the contract.
The Respondent takes the position that, in citing
the Charging Party's foreman and assistant foremen
to appear before the executive committee, it was
concerned only with an investigation which might
disclose no violation or, presumably, only a viola-
tion of a union rule which would be an internal
union matter, and that, under the proviso to Sec-
tion 8 (b)(I)(A) of the Act, the imposition of a
penalty on a foreman member would not be an un-
fair labor practice. This argument ignores the fact
that the Respondent is not charged here with
restraining and coercing employees under Section
8(b)(1)(A) of the Act. It is charged with restrain-
ing and coercing the Charging Party in its selection
of representatives for the purposes of collective bar-
gaining15 or the adjustment of grievances. But the
Respondent's argument goes further and disregards
the express provisions of the contract that (I )"no
foreman or assistant foreman shall be subject to
fine, discipline or expulsion by the Union for any
act within the scope of such authority" and (2)"to
the Special Standing Committee ... shall be
" In addition to being subject to penalty for violation of internal rules of
the Union, members are subject to discipline for violation of contract
under Respondent 's bylaws, art V, sec I But foremen and assistant
foremen are supposed to be exempt from discipline when acting within
their authonty in making their decisions
" Collective bargaining includes the adjustment of grievances and dif-
ferences arising in the course of the administration of the contract through
referred all disputes arising under this agreement,
the construction to be placed on any clause of the
agreement , and any and all disputes between the
parties except as otherwise provided for in this
agreement."
The Respondent claims that before penalizing or
even citing a foreman member for a violation, it
first ascertains whether or not the foreman's act
was within the scope of his authority. In the first in-
stance, the Respondent asserts the chapel chairman
is the one who ascertains whether or not the act is
within the scope of the foreman's authority. Bent-
ley, chapel chairman in 1967 until November,
testified that he ascertained whether or not what
the foreman did or decided was within the scope of
his authority by finding out whether or not the
foreman was acting under instructions of his superi-
or. If Bentley decided that he was not, he reported
this to the Respondent's executive committee. Then
the executive committee would cite the foreman to
appear before it, hear the foreman's explanation,
and pass on the chapel chairman's judgment,
usually supporting the chapel chairman . It is plain
that the very test of "scope of authority" applied by
the chapel chairman is, in itself, a unilateral in-
terpretation of one clause of the contract which, in
another clause, expressly requires such decisions to
be made by the special standing committee or by
that committee and an arbitrator. The Respon-
dent's procedure for following up the chapel chair-
man's decision is likewise a unilateral one.
Some of :he difficulty here arises from the fact
that the Respondent required incorporation into
the contract of provisions of the International's
general laws, and the Respondent appears to feel
that it was permitted to enforce these laws as a
matter of internal union regulation independently
of the contract. That it may do so and may fine or
otherwise penalize members who have, in the
judgment of the Respondent, violated those laws is
not disputed where the Respondent has not bar-
gained away such rights, as it has in the case of
foremen and assistant foremen.'s The very purpose
of the contract clause exempting foremen and
assistant foremen from union discipline is to make
their decisions truly the decision of management
rather than those of the Respondent. Those deci-
sions frequently involve an interpretation of the
contract. The foreman's interpretation cannot be
confined to the Respondent's mold if management
is to have undominated representatives as contem-
plated by the contract.
The clause of the contract giving rise to a con-
siderable amount of conflict between the chapel
divergent interpretations Hughes Tool Company v N L R B , 147 F.2d 69
(C A 5), Timken Roller Bearing Co v NL RB , 161 F 2d 949 (C A 6)
18 A clause in the International's bylaws recognizes the right of the local
by contract to prescribe a method of determining differences between the
employer and the local union (art VII, secs I and 36) and the right to ex-
empt foremen from union discipline (art VII, sec 33)
SAN FRANCISCO-OAKLAND MAILERS' UNION 18
chairman and the foreman is the clause describing
the Respondent's jurisdiction. The Respondent
adopts an interpretation which makes it a violation
of the contract if anyone who is not a mailer does
any act of the character described as within the
Respondent's jurisdiction. In the jurisdiction clause
of the contract, after the enumeration of types of
work claimed by the Respondent, the clause con-
cludes: "The party of the first part [the Charging
Party] shall make no other contract covering the
work set forth above." This does not, in fact, say
that the Charging Party must deter nonmailers who
perform such work without requirement by the
Charging Party gratuitously or in order to perform
their regular jobs; but when the Respondent takes
the position that it can penalize a foreman or
assistant foreman for tolerating such gratuitous per-
formance, this deprives the foreman, as the Charg-
ing Party's representative, of the right to apply the
contract as it is apparently worded and, in any
event, according to his interpretation of it. If the
Respondent does not agree with the foreman's un-
derstanding or interpretation of the contract, it is
obliged by the contract to follow the procedure for
the settlement of such disagreement by carrying the
matter to the special standing committee as pro-
vided in the contract. If the special standing com-
mittee does not reach a solution without the addi-
tion of the outside arbitrator provided for in the
contract, the Respondent has no right to disregard
the prescribed method of settlement (by arbitra-
tion) and to substitute its executive committee for
those representatives who are designated by the
contract and who necessarily include the em-
ployer's chosen representatives."
Smith, the Respondent's president, testified that
the executive committee, of which he is the chair-
man, had cited Cox, Thompson, and Fraser to ap-
pear before it solely for investigative purposes. I do
not credit this testimony, because Smith and other
representatives of the Respondent who were
present at the meeting of the special standing com-
mittee on March 14, 1967, had every opportunity
at that time to question Cox and could have asked
that Thompson and Fraser also be called in to the
meeting for questioning . Other witnesses also could
have been called. The Respondent even agreed to a
further meeting, although without date, to be held
after the Charging Party had investigated some of
the alleged practices complained of by the Respon-
dent . Furthermore, the Respondent' s witnesses
acknowledged that there was no dispute as to the
facts concerning the complaints against Cox,
Thompson, and Fraser. The only dispute, therefore,
was whether or not what each of them did was a
violation of the contract, and it was the special
standing committee, not the Respondent, to whom
this determination was entrusted by the terms of
" See, on duty of a union to follow contract procedures for settlement of
grievances, Square D Co v NLRB , 332 F 2d 360 (C A 9)
2183
the contract. Even more revealing of Respondent's
intent to decide the issue itself is the fact that
Respondent had in its possession at the time of the
March 14 meeting previously prepared citations to
deliver to Cox, Thompson, and Fraser after the
meeting . It is evident from this that Respondent had
prepared to crack down on the foreman if Respon-
dent's interpretation of the contract did not prevail
at the standing committee meeting. I conclude,
then, that the Respondent's purpose in serving the
citations against Cox, Thompson, and Fraser on
March 14, 1967, was not to investigate, which it
had no need to do but to restrain and coerce the
Charging Party in the selection of foremen and
assistant foremen and to induce the substitution for
those representatives of others who would make
contract interpretations in the same way that the
Respondent interpreted the contract.
But even if it could be argued that the Respon-
dent's purpose was not to restrain or coerce the
Charging Party in the selection of its foremen and
assistant foremen, I find that Respondent, by citing
the Charging Party's collective-bargaining represen-
tatives to appear before it upon the very matters
that were, or should have been, resolved through
the special standing committee, restrained and
coerced the Charging Party to substitute the
Respondent's executive committee for the special
standing committee or for that committee plus one
of the arbitrators named in the contract as the
Charging Party's representative to make the ulti-
mate decision on contract interpretation.
I conclude, therefore, that Respondent has
restrained and coerced the Charging Party in the
selection of its representatives for the purposes of
collective bargaining or the adjustment of
grievances in violation of Section 8(b)( I )(B) of the
Act.'8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Charging Party's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Sections 2(5) and 8(b) of the Act.
" Southern California Pipe Trades District Council No 16, et al (Paddock
Pools of California, Inc ), 120 NLRB 249
2184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Charging Party is an employer within the
meaning of Sections 2(2) and 8(b)(1)(B) of the
Act.
3. The Charging Party is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
4. W. Edward Cox, Douglas A. Thompson, Lyle
J. Fraser, and Eugene Ernest Bowlin at all times
material herein have been representatives of the
Charging Party, selected by the Charging Party for
the purposes, among others, of collective bargain-
ing and the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act.
5. By restraining and coercing the Charging Party
in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of
grievances, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(b)(1)(B) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
There is evidence the Respondent's practice of
citing foremen (or other representatives of em-
ployers for the purposes of collective bargaining or
the settlement of grievances) to appear before its
executive committee is not limited to representa-
tives of the Charging Party but extends to those of
other employers. I shall recommend, therefore, that
Respondent cease and desist from in any manner
restraining or coercing not only the Charging Party
but also any other employer with whom Respon-
dent has a collective-bargaining agreement contain-
ing provisions similar to those here involved-
which exempt the employer's foremen and assistant
foremen (or other representatives authorized to
bargain collectively or to adjust grievances) from
disciplinary action by the Respondent against its
members and which provide for specific representa-
tives and mechanics for the settlement of
grievances or disputes arising under the contract-
in the employer's selection of representatives for
such purposes. This means that Respondent shall
cease and desist from its practice of citing foremen
or assistant foremen to appear before the executive
committee for "investigative purposes" where the
purpose thereof is to inquire into the decision of a
foreman or assistant foreman regarding his in-
terpretation or application of the collective-bar-
gaining agreement regardless of whether or not
such foreman or assistant foreman has received ex-
press directions regarding such matter from his
managerial supervisors.
I shall further recommend that Respondent be
ordered to cease and desist from refraining or
10 See Southern California Pipe Trades District Council No 16, et al
(Paddock Pools of California, Inc.), 120 NLRB 249
20 Smith testified that Cox's fine might have been more than that of either
refusing to utilize the special standing committee or
other representatives selected by the employer as
the means to settle disputes or grievances arising
under the contract in order to restrain or coerce
the employer in the selection of his collective-bar-
gaining representatives.19
Foreman Cox and Assistant Foremen Thompson
and Fraser each paid to Respondent a fine and
costs levied by Respondent for their failure to ap-
pear before the Respondent's executive committee
to answer for decisions made by them involving in-
terpretation of the collective-bargaining agreement.
Because I have found that the citation of such men
to appear before Respondent's executive commit-
tee was a means used by Respondent in restraining
and coercing the Charging Party in the selection of
its representatives for the purposes of collective
bargaining or the adjustment of grievances, I find
that the coercive effect thereof can be removed
only if Respondent is required to rescind and repay
the fines and costs to the men who paid them. The
fact that the Respondent imposed the fines for
failure of Cox, Thompson, and Fraser to appear be-
fore the executive committee rather than for mak-
ing a decision not to Respondent's liking in the ad-
ministration of the contract is immaterial, because
the Respondent's acts in coercing the Charging
Party by means of citations of foreman or assistant
foremen to appear before its executive committee
constituted the causing cause leading to the ulti-
mate imposition of the fines. It is also immaterial
for the purposes of this case whether or not the
money used to pay the fines was lent or donated to
Cox, Thompson, and Fraser by the Charging Party.
The extent to which those three men may be in-
debted to the Charging Party is of concern only to
them and the Charging Party. I shall, therefore,
recommend that Respondent repay to W. Edward
Cox the sum of $11'.17, and to Douglas A.
Thompson and to Lyle J. Fraser each the sum of
$67.17. Because there is evidence that a previous
fine against a member may be considered by
Respondent as grounds for increasing subsequent
fines,20 I shall further recommend that Respondent
revoke the fines imposed against the said Cox,
Thompson, and Fraser on June 19, 1967, and ex-
scind all record thereof from its files.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in the case, I recommend that Respondent, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner restraining or coercing the
Charging Party or any other employer, as outlined
Thompson or Fraser because Cox had been fined $50 once before (for
doodling on the cover of Respondent's constitution 3 years earlier)
SAN FRANCISCO-OAKLAND MAILERS' UNION 18
in the section hereinabove entitled "The Remedy,"
in the selection of representatives chosen for the
purposes of collective bargaining or the adjustment
of grievances.
(b) Refraining or refusing to use the means pro-
vided by its collective-bargaining agreement for the
adjustment of grievances and disputes thereunder
and from substituting representatives of its own
choosing for those provided for in the collective-
bargaining agreement in order to restrain or coerce
the employer in the selection of his representatives
for the purposes of collective bargaining or the ad-
justment of grievances.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Repay to W. Edward Cox the sum of
$117.17, and to Douglas A. Thompson and to Lyle
J. Fraser each the sum of $67.17, the amounts as-
sessed against them as fines.
(b) Rescind said fines and completely exscind all
record thereof.
(c) Post at offices of the Charging Party and
those of all employers with whom Respondent has
contracts similar to that with the Charging Party as
aforestated, the employer willing, as well as at
Respondent's meeting place, copies of the attached
notice marked "Appendix."21 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 20, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, in conspicuous
places, including all places where notices to mem-
bers of Respondent and employees of the Charging
Party and other employers are customarily posted
and be maintained as posted for the duration of the
contract with the Charging Party and other such
employers, but in no event for less than 60 con-
secutive days from the date of posting. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.22
2i In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
22 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, such notification shall also be made to
said Regional Director within 20 days from receipt of the Board's Order
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
2185
tional Labor Relations Act, as amended, we hereby
notify you that:
We hereby notify our members and all employees
of Northwest Publications, Inc. (San Jose Mercury
and News and San Jose Mercury-News), and all
other employers with whom we have similar con-
tracts containing clauses exempting foremen and
assistant foremen from union discipline and dealing
with the adjustment of grievances and disputes
under the contract and with the persons or bodies
designated therein to effect such adjustments, that:
WE WILL NOT in any manner restrain or
coerce any of the aforesaid employers in the
selection of representatives chosen for the pur-
poses of collective bargaining and the adjust-
ment of grievances or disputes under the con-
tract.
WE WILL NOT refuse to follow the contract
provisions for use of the special standing com-
mittee provided for in section 30 of our collec-
tive-bargaining agreement with Northwest
Publications, Inc. (or in similar sections in
agreements with other employers), except as
otherwise provided in said agreement or agree-
ments.
WE WILL NOT cite foremen or assistant
foremen before our executive committee to
require them to answer for decisions made by
them as to the meaning or application of any
collective-bargaining agreement to which we
are a party, where such agreement contains
provisions such as section 30 (special standing
committee), section 17 (foremen), or other
similar provisions of our collective-bargaining
agreement with Northwest Publications, Inc.
WE WILL rescind the fines assessed against
W. Edward Cox, Douglas A. Thompson, and
Lyle J. Fraser on June 19, 1967, and will ex-
scind all record therenf from our files.
WE WILL pay to the following named persons
the amounts set opposite their names, which
represent the amount of the aforesaid fines
plus costs:
W. Edward Cox $117.17
Douglas A. Thompson 67.17
Lyle J. Fraser 67.17
SAN FRANCISCO-OAKLAND
MAILERS' UNION No. 18,
INTERNATIONAL
TYPOGRAPHICAL UNION
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
354-126 O-LT - 73 - pt. 2 - 66
2186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
altered , defaced , or covered by any other material . communicate directly with the Board's Regional
If members have any question concerning this Office , 450 Golden Gate Avenue, Box 36047, San
notice or compliance with its provisions , they may Francisco, California 94102, Telephone 556-0335.