The Newspaper Guild

National Labor Relations Board - Board Decisions

Feb 5, 1976

222 N.L.R.B. 760 (N.L.R.B. 1976)

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Newspaper Guild , Erie Newspaper Guild, Local
187, AFL-CIO and Times Publishing Company.
Case 6-CB-1959
February 5, 1976
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On September 15, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Supplemental
Decision in this proceeding.' Thereafter, the Charg-
ing Party filed exceptions and a supporting brief, and
the Respondent filed an answering 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith, and to adopt her rec-
ommended Order.
In Skippy Enterprises,3 the Board concluded that a
union violated Section 8(b)(1)(B) when it disciplined
a supervisor-member who continued to perform only
his normal duties, which included 30 percent rank-
and-file work and 70 percent supervisory functions,
after the union had issued a "no contract-no work"
order. Subsequently, in Associated Food Stores,4 the
Board concluded, relying on Skippy, that a union vio-
lated Section 8(b)(1)(B) by disciplining supervisor-
members whose performance of rank-and-file work
did not increase during the course of the union's
strike.
Unlike the former cases, here the record does not
reveal that the three supervisor-members continued
to perform only their normal duties during the strike.
On the contrary, it appears that these supervisors in-
creased their performance of rank-and-file work dur-
ing the strike. Accordingly, under Skippy, the Re-
spondent did not violate Section 8(b)(1)(B) by
disciplining these supervisor-members.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER FANNING , concurring:
For the reasons set forth in my dissenting opinions
in New York Typographical Union No. 6; International
Typographical Union, AFL-CIO (Daily Racing Form,
a subsidiary of Triangle Publications, Inc.), 216 NLRB
No. 147 (1975), and Chicago Typographical Union No.
16 (Hammond Publishers, Inc.), 216 NLRB No. 149
(1975), I agree with the dismissal of the complaint in
its entirety .6
i The Board's original decision in this proceeding is reported at 196
NLRB 1121 (1972). On November 30, 1973, the Court of Appeals for the
Third Circuit denied enforcement of the Board's Order and remanded the
case to the Board for further findings , 489 F 2d 416.
2 We accept as the law of the case the Circuit Court's ruling that Betty
Peebles is not an 8(b)(1)(B) representative even though she is adnuttedly a
2(11) supervisor.
3 Wisconsin River Valley District Council of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218
NLRB No. 157 (1975) (Members Fanning and Penello dissenting in sepa-
rate opinions).
4 Warehouse Union Local 6, International Longshoremen's and
Warehousemen 's Union (Associated Food Stores, Inc.), 220 NLRB No. 123
(1975) (Member Fanning concurring , Member Penello dissenting in part
and concurring in part).
5 Member Penello would dismiss the complaint herein because the three
supervisor-members performed more than a minimal amount of rank-and-
file work during the strike . Chicago Typographical Union No. 16 (Hammond
Publishers, Inc.), 216 NLRB No. 149 (1975). Under his view it is irrelevant
whether the disciplined supervisor -member performed rank-and-file work,
in either the same or a different proportion , before the strike. United Broth-
erhood of Carpenters & Joiners of America Local Union No 14, AFL-CIO
(Max M. Kaplan Properties), 217 NLRB No. 13 (1975); see also his separate
dissent in Skippy Enterprises, Inc., supra
6 See also Wisconsin River Valley District Council of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises,
Inc.), 218 NLRB No. 157 ( 1975) (dissenting opinion); United Brotherhood of
Carpenters & Joiners of America, Local Union No. 14, AFL-CIO (Max M.
Kaplan Properties), 217 NLRB No. 13 (1975) (concurring opinion).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: On Jan-
uary 3, 1974, the Court of Appeals of the Third Circuit
entered judgment ordering that the record in this proceed-
ing be reopened and the case remanded for hearing of fur-
ther evidence in accordance with the court's opinion. 489
F.2d 416. On December 20, 1974, pursuant to the court's
judgment, the Board remanded the case for further hearing
by an Administrative Law Judge.
Pursuant to due notice, a hearing was held before me in
Erie, Pennsylvania, on May 7, 1975. All parties were repre-
sented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses , to intro-
duce evidence, and to present argument. Briefs have been
filed by the General Counsel and the Respondent. Pur-
suant to the Board's remand order, and upon the entire
record,' together with careful observation of the witnesses
and consideration of the briefs, I make the following:
i The General Counsel's unopposed motion to correct the transcript is
granted
222 NLRB No. 132
THE NEWSPAPER GUILD 761
FINDINGS OF FACT
1. Background
In its prior decision the Board held that Respondent
Union violated Section 8(b)(1)(B) of the Act when it im-
posed fines on City Editor Janice Hauserman (now named
Rolland), Assistant Circulation Manager Gerald Szos-
zorek, Telegraph Editor Richard Kubeja, and Society Edi-
tor Betty Peebles for having worked during a strike by Re-
spondent Union against Times Publishing Company in
1969. 196 NLRB 1121 (1972). The basis of that decision
was that the four persons named were supervisors within
the meaning of Section 2(11) of the Act and therefore, as
employers' representatives, were immune from union disci-
pline for working during an authorized strike. On review,
the Court of Appeals for the Third Circuit rejected the
Board's legal position that any statutory supervisor was
automatically an employer representative within the pur-
view of Section 8(b)(1)(B) of the Act .2 The Board had not
made any specific findings as to whether the named super-
visors adjusted grievances on behalf of the employer or
represented the employer in collective bargaining. Howev-
er, accepting the argument of Board counsel, the court con-
cluded with a finding that Hauserman, Kubejz, and Szos-
zorek were "statutory representatives" within the meaning
of Section 8(b)(l)(B) 3 While sustaining the Board's finding
that Peebles was a "supervisor," the court held that she
"cannot be considerd a §8(b)(1)(B) representative on the
basis of the applicable law," since the record does not show
that she had any grievance-handling or collective-bargain-
ing functions. The complaint was ordered dismissed to the
extent that it alleged the fine of Peebles as violative of the
Act.
The Court's judgment, entered on January 3, 1974, pro-
vided:
The case is remanded to the Board for findings on the
type of work performed by the three during the
strike-whether supervisory or rank-and-file struck
work-and a determination in the light of National
Labor Relations Board v. San Francisco Typographical
Union No. 21, [486 F.2d 1347] (9th Cir. May 18, 1973)
("San Francisco" ); International Brotherhood of Elec-
trical Workers, AFL-CIO, and Local 134, International
Brotherhood of Electrical Workers, AFL-CIO v. Na-
tional Labor Relations Board, [487 F.2d 1143] (D.C.
Cir. June 29, 1973) ("International Brotherhood");
National Labor Relations Board and Wisconsin Electric
Power Company v. Local 2150, International Brother-
hood of Electrical Workers, AFL-CIO-, [486 F.2d 6021
2 National Labor Relations Act, as amended (29 U.S.C. Sec. 151 , et seq ).
3 The court said: "The Board did not ... find that the supervisors had
informal grievance-handling powers The Board, however, argued on this
appeal that Hauserman, Kubeja, and Szoszorek had minor grievance-han-
dlmg powers In fact the existence and usage of these powers is borne out by
evidence in the record." In summarizing its conclusions, the Court said.
"The Board is affirmed in its findings that Hauserman, Kubela, and Szos-
zorek were §8(b)(1)(B) representatives" Between these two statements, the
court said "In the case at hand, the disciplined supervisors were not statuto-
ry representatives " This lastquoted statement is apparently an inadvertent
error, since it is both preceded and followed by a contrary finding
(7th Cir. July 13, 1973) ("Wisconsin Electric"). 489
F.2d, 422, 467.
"International Brotherhood" (Florida Power & Light Co. and
Illinois Bell Telephone Co.) and "San Francisco" held that a
union did not violate Section 8(b)(1)(B) by fining supervi-
sor-members for performing "rank-and-file struck work
during a lawful economic strike against the Company."
"Wisconsin Electric" held to the contrary. On June 24,
1974, after the Third Circuit's remand in the present case,
the Supreme Court affirmed the District of Columbia's
"International Brotherhood" decision Florida Power & Light
Co. v. I.B.E.W., Local 641, et al., 417 U.S. 790 (1974).
In its subsequent remand order in this case the Board
said: "If evidence is received tending to show that any of
the above-named employer representatives performed both
supervisory and rank-and-file struck work, evidence on the
substantiality of each type of work performed during the
strike shall be taken." The Administrative Law Judge was
also directed to issue "a Supplemental Decision containing
findings of fact upon the evidence received, conclusions of
law, and recommendations."
2. The evidence
It was stipulated that the strike by Respondent began on
March 6, 1969, and ended on July 16, 1969. The Stereotyp-
ers Union struck the newspapers from March 8 or 9
through July 16, 1969. Although the Typographers',
Pressmen's, and Mailers' Unions claimed not to be strik-
ing,4 the employees represented by them honored
Respondent's picket line .5
Although the record is not entirely clear, it appears that,
with the strike having commenced on Tuesday, July 16,
publication was suspended for a few days, but was re-
sumed by Monday, July 20, and continued thereafter
throughout the strike. So far as appears no replacements
for striking employees were hired, with the result that no
nonsupervisory, rank-and-file employees worked during
the strike. All phases of the work involved in publishing the
papers were performed by managerial and/or supervisory
personnel,6 on an essentially unstructured, cooperative ba-
sis.
There is no evidence that any of the three supervisor-
members here involved, all members of the unit covered by
the collective-bargaining agreement, in any manner repre-
sented management in collective bargaining. And the rec-
ord is clear that during the strike none of them adjusted
any grievances, a negative fact inherent in the absence of
any nonsupervisory employees.
The following is a summary of the evidence concerning
the work of each of the individuals involved.
4 There is some indication that their disavowal of striking was motivated
by the existence of no-strike clauses in their contracts It is irrelevant to the
present proceeding whether the typographers, mailers, and pressmen were
engaged in protected activity. Cf Keller-Crescent Company, a Division of
Mosler, 217 NLRB No 100 (1975).
5 It was stipulated that "the only persons working in the composing room,
the press room and the mail room were supervisory employees, with one
exception " The "one exception" was not identified and appears immaterial
to this proceeding
6 As set forth below, three members of the circulation department did
return to work It is not clear whether they were supervisors.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Editor Janice Hauserman: The evidence and find-
ings in the original hearing as to Hauserman's regular,
prestrike duties and activities were in the main corroborat-
ed by her testimony in the remand hearing. Such differ-
ences as appeared are minor and do not affect the decision
herein. Her supervisory functions included assignment of
around six reporters and a photographer and direction of
one to three copyreaders. Apart from the supervision of the
reporters and copyreaders, the bulk of her work consisted
of what may be called "editorial" work. This included se-
lecting the local stories and pictures to be used, determin-
ing the layout and placement of material in the paper, di-
recting the preparation of headlines and, when in her
judgment it was necessary, having material revised or re-
written. Except for Saturdays, when an abbreviated eve-
ning paper was published, Hauserman alone performed the
functions enumerated as to all local news. She personally
did very little, if any, reporting or writing.
During the strike she served in the same capacity as city
editor and fulfilled the same editorial responsibilities.
However, none of her subordinates reported to work. Len
Kholos, managing editor of the Daily Times and the Sun-
day Times-News, and Larry Pintea, managing editor of the
Morning News, served as the outside city reporters, while
Kevin Mead, assistant to the publisher, served as inside
police reporter. These three individuals were all admittedly
managerial and/or supervisory and above Hauserman in
the hierarchy. During the strike she did not "schedule" the
"reporters" because, in her words, "actually nobody had
any set schedule. Everybody dust came to work and
worked." She asked Kholos, Pintea, and Kevin Mead to
check particular matters on occasions, and suggested possi-
ble stories to be covered, but, in view of their positions, she
"probably thought it more tactful to say, maybe you could
go do this, instead of actually commanding them to do so."
She "wouldn't just yell at them and say, well, you're not
doing your job" if they failed to produce what she felt was
sufficient material. She testified that she thought that if she
had disliked any of the work turned in she "would have
said so," but Kholos and Pintea, being "professionals in
their field . . . turned in very accurate, newsworthy copy
that really was acceptable."
During the strike, in addition to performing her usual
"editorial" work, Hauserman personally obtained, collat-
ed, and typed the weather reports, which took about 10
minutes, and the TV schedules, which consumed about 1 to
1-1/2 hours per day. It also appears that, during the strike,
with no copyreaders present, she personally did considera-
bly more proofreading than was her wont. In this function
she was assisted or joined by Edward Mead, assistant pub-
lisher of the Times.
Additionally, on Saturdays during the strike, Hauser-
man, like all other people working, spent some 3 to 4 hours
in the mailing room physically assembling supplements to
the Sunday newspaper. This work is normally done by
rank-and-file employees in the mailroom, who, represented
by the Mailers' Union, were then honoring Respondent's
picket line.
Telegraph Editor Richard Kubeja: Although it has been
found that Kubeja was a supervisor within the purview of
Section 2(11) of the Act, as set forth in the prior decision,
the extent of his actual supervision of employees was not
substantial, in part at least, because his only "subordinate"
employee was rim man John Wordelman, who had long
and extensive experience. Before the strike, Kubeja assisted
Managing Editor Pmtea in preparing the front page,7 and
the remainder of his time was spent on filling portions of
the inside pages other than advertising, sports, and local
news. The material with which he worked came from news
and wire services . The actual operations consisted of taking
the material from the tickers, sorting it out, to be printed,
editing it, preparing headlines, indicating its placement on
the page, having it printed, and then proofreading. Al-
though Kubeja claimed (and apparently generally exer-
cised) the right to make all final judgments as to the mate-
rial to be used, it is clear that both he and Wordelman
performed all the enumerated functions of the telegraph
editor's position. Whatever the precise extent of Kubeja's
supervisory function, there is no question that he ordinarily
spent considerable time at such activities as writing head-
lines, "dummying" pages, editing copy, and proofreading,
all of which functions were also performed by rim man
Wordelman.
Before the strike the regular duties of the telegraph edi-
tor and/or the rim man included discussions with the com-
positors to assure that the paper was set up and printed as
desired by the editorial department, as indicated in the
dummies. At the outset of the strike the publisher convert-
ed from "hot type" (i.e., typesetting) to "cold type" ( i.e., a
form of photoengraving).8 Instead of having dummies of
the pages given to the composing room to be set in type,
actual pages are prepared for reproduction by the engrav-
ers. During the strike Kubeja and Executive Editor Joseph
Meagher together prepared the front page and the nonlocal
(i.e., the news and wire service) portions of the inside
pages. Their work included cutting and selecting wire ma-
terial, writing headlines and having them typed, and then
pasting the material on the pages to be reproduced by the
engravers. Kubeja acknowledged that during the strike he
performed the rim man's functions. He testified: "[T]here
was no composing room in the cold-type system that we
were using.... We would make the pages up.... Then,
they would be just laid aside, the engraver would pick them
up. In other words, we operated out of an editorial room
with our own miniature composing room and the cold
type." Kubeja testified that he personally spent up to 75
percent of his working time pasting the pages, work which
normally would be (and since the strike has been) done by
employees represented by the Typographers' Union. The
remaining 25 percent of his working time Kubeja spent in
cutting wire, selecting stories and pictures and, presum-
ably, preparing headlines. When needed, he used the serv-
ices of Mrs. Cuneo, wife of the sports editor, and Mrs.
Frank Mead, wife of the assistant publisher, who were
serving as typists for the entire operation.
7 During the strike Executive Editor Joseph Meagher apparently took
over the front page while Pintea turned to reporting
8 According to Kubeja, in the cold type method most of the material was
taken directly from the news service machines and, with any necessary cor-
rections made thereon by typewriter, pasted on the page and then sent to
the engravers.
THE NEWE:APER GUILD
Kubeja denied that he and Executive Editor Meagher
gave any orders to each other. As to the overall situation
during the strike, Kubeja testified: "There was nobody re-
ally in charge. We all just worked as a team. Nobody to
answer to. I didn't answer to Joe Meagher. I didn't answer
to Jan [Hauserman]. We just worked to fill up a newspaper
on our own."
Like Hauserman and all other personnel working during
the strike, Kuheja spent several hours each Saturday in the
mailroom assembling supplements for the Sunday paper.
Assistant Circulation Manager Gerald Szoszorek: As
found in the prior decision, Szoszorek ordinarily super-
vised the day-to-day operations of the circulation depart-
ment, consisting of 30 to 35 employees who oversaw the
operations of some 1500 newsboys and 18 to 21 route driv-
ers, all independent contractors. At the present hearing
Szoszorek testified that directly under him were a motor
route supervisor, who directed about 21 to 24 route drivers;
two employees who manned a service desk; Eastside and
Westside city supervisors; 15 to 18 district managers; tube
route (out-of-city) manager; and a weekend crew, of unde-
termined size, to handle complaints. The evidence in nei-
ther hearing is sufficient to warrant a finding as to the
employee or supervisory status of the so-called city super-
visors.
The employee who normally was in charge of weekly
collections did not work during the strike. Thus, the first
weekend, Szoszorek, together with Circulation Director
Vincent J. Stawniak, Circulation Manager Don McCozzi,
and Eastside Supervisor Witkowski, made the regular col-
lection. Szoszorek himself went out and made collections
in one area, spending around 6 to 10 or 12 hours. Thereaf-
ter, McCozzi and Witkowski made the collections, while
Szoszorek, working inside, received the cash and deposited
it.
Soon after the strike began, Motor Route Supervisor
Tarkoweski, District Manager Michaelegro, and Eastside
Supervisor Witkowski returned to work. They were first
assigned to compiling a list of newsboys who would work
during the strike. Michaelegro was then assigned to receiv-
ing complaints; Tarkoweski to maintaining the financial
records; and Witkowski to making collections, along with
McCozzi. Because the situation was volatile, Szoszorek ap-
parently spent considerable time in collecting information
and therefrom determining and adjusting the number of
papers to be published each day and shifting the pattern of
distribution as needed. He personally made out delivery
lists for the mailroom and supervised the loading of trucks,
which, both before and during the strike, were operated by
an independent contractor. Szoszorek apparently spent
practically all day every Saturday in the mailroom stuffing
Sunday supplements. He testified that, within a relatively
short time after the strike began, his work had become so
well organized that he was able to spend a few hours each
afternoon working on a manual for newsboys, which he
was able to complete by the end of the strike.
A few weeks after the strike began, the mailroom super-
visor, Mr. Mitula, was hospitalized and Szoszorek took
over his functions. Then, instead of simply handing distri-
bution orders to the mailroom, Szoszorek personally "be-
gan to process materials [himself] and make up the individ-
763
ual wrappers and bundles that had to go out." He prepared
delivery lists for all trucks and made labels for all bundles
of papers. He also continued to spend part of his time
handling complaints by customers and delivery boys or
their parents. He spent all day Saturday in the mailroom.
While he apparently "directed" the mailroom operation, he
performed considerable physical work himself. He testified
(in the prior hearing): "[w]e all took turns bundling [pa-
pers]. I had to learn to prepare the wire tying machine and
a few other pieces of equipment." While the record is not
entirely clear on this point, it clearly suggests that Mitula,
the mailroom supervisor, is a statutory supervisor, and the
physical labor in the mailroom, such as making labels,
bundling papers, and overseeing the loading of trucks, is
normally performed by rank-and-file employees, repre-
sented by the Mailers' Union. None of those employees
worked during the strike.
Discussion and Conclusions
1. The parties' contentions
The Board's remand order says, in part:
If evidence is received tending to show that any of
the above-named employer representatives performed
both supervisory and rank-and-file struck work, evi-
dence of the substantiality of each type of work per-
formed during the strike shall be taken.
Respondent objects to this direction on the contention
that, under the Supreme Court decision in Florida Power 9
the performance of any "rank-and-file struck work" during
a strike subjects a member-supervisor to union discipline.
This argument however, is misdirected to me, since I am
bound by the Board's contrary interpretation of Florida
Power, as discussed below.10
Respondent next apparently contends that the three per-
sons here involved could be fined by the Union because
they were not employer representatives within the purview
of Section 8(b)(1)(B). Again the argument is misdirected,
since, as previously set forth (supra), the Third Circuit
found that they were statutory representatives and that
holding is now law of the case, binding on me.
Similarly, if Respondent is maintaining that the fines
were legal because not imposed because of the manner in
which the supervisor-members performed their duties as
supervisors and/or statutory representatives, I must reject
the contention as precluded by Board decisions, again over
Member Fanning's dissent."
The parties are in disagreement as to what constitutes
"rank-and-file struck work." The General Counsel appar-
ently contends that the phrase covers only work custom-
anly performed by nonsupervisory employees in the mem-
ber-supervisor's unit. Under the General Counsel's view,
9 Florida Power & Light Co v I B E W. Local 641, et al., 417 U.S. 790
(1974).
10 In its brief Respondent concedes that it is espousing the dissenting
views of Member Fanning. See Chicago Typographical Union No 16 (Ham-
mond Publishers, Inc), 216 NLRB No 149 (1975)
11 See Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218
NLRB No. 157 (1975).
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work ordinarily done by nonumt employees, whether or
not represented by a union, is not "rank-and-file struck
work." Additionally; the General Counsel appears to con-
tend that a supervisor-member may not be disciplined by
the Union for performing any of the work that is custom-
arily performed only by him, even though the particular
work may not be supervisory in nature. In short, the Gen-
eral Counsel apparently would define "rank-and-file struck
work" as including only such work as is ordinarily per-
formed by nonsupervisory employees in the supervisor-
member's bargaining unit. Respondent, on the other hand,
maintains that the performance of any nonsupervisory
work by the member-supervisor during a strike will war-
rant discipline by his union, whether or not the work is
normally done by his bargaining unit and regardless of
whether or not the work is normally done by his bargaining
unit and regardless of whether it is "professional" and spe-
cialized, as distinguished from more routine work also nor-
mally performed by nonsupervisory employees.
Previous Board decisions do not expressly deal with this
issue, having generally involved situations where the differ-
ence between supervisory and rank-and-file work was
clear, as, for example, a working carpenter-foreman. Writ-
ers Guild of America, West Inc. (Association of Motion Pic-
ture and Television Producers, Inc.), 217 NLRB No. 159
(1975), involved a situation somewhat like the present,
where the supervisor-members normally performed nonsu-
pervisory "professional" work in addition to their supervi-
sory duties. It was there held that the union unlawfully
fined them for working during the strike. However, the ma-
jority decision (Members Jenkins and Penello) was ground-
ed on the fact that the employers "uniformly followed a
policy during the strike not to require [the supervisor-mem-
bers] to perform any unit or struck work." More recently,
in Skippy Enterprises, supra, the Board majority (Chairman
Murphy and Members Jenkins and Kennedy) spoke of
"rank-and-file struck work, i.e., work normally performed
by the nonsupervisory employees then on strike." In dis-
senting from the Board's finding of a violation in Skippy
Enterprises, Member Penello said: "[T]he fact that the
other carpenters on the job were not union members or
that they did not participate in the strike does not detract,
in any way, from the Union's legitimate interest in prevent-
ing its members from performing rank-and-file work dur-
ing the course of a strike." While, as set forth below, Skippy
Enterprises appears possibly to establish the present Board
position as interdicting union discipline of supervisor-
members who perform their regular duties, whatever their
nature, during a strike, it does not appear to afford supervi-
sors immunity for doing unaccustomed rank-and-file work
customarily performed by nonunit employees.
The problem basically arises out of a potential conflict
between employees' protected right to strike and employ-
ers' right to free choice of their representatives.12 I do not
12 The conflicting views of the parties are pointed up in the following
quotations from their briefs. "Counsel for the General Counsel contends
that interpreting the Supreme Court's `effect test and subsequent Board
decisions, management had the right to assign Kubeja to perform work not
within Respondent 's jurisdiction and thusly to immunize the supervisor-
member from union discipline To hold otherwise would severely restrict
management's right to react to the union 's economic strike " Respondent,
read Section 8(b)(1)(B) of the Act, as construed by the Su-
preme Court in Florida Power and by the Board in subse-
quent decisions, as being intended to weaken the statutori-
ly protected right of employees to strike or to strengthen
employers' defensive weapons. The statutory provision is
directed solely toward assuring the right of employers free-
ly to select their grievance-adjusting and collective-bar-
gaining representatives. The relationship between the statu-
tory provision and strikes is only incidental to the primary
purpose of the provision. The legality and effectiveness of
sympathy strikes have long been recognized. Obviously a
union member acts to the detriment of his union when he
breaks a sympathy strike in support of his union's action.
There is no apparent basis for concludmg that the
employer's right to choose its own representatives requires
that such representatives be free to assume performance of
substantial rank-and-file work in derogation of the effec-
tiveness of their union's economic action. Accordingly, I
conclude, in agreement with Respondent, that "rank-and-
file struck work," as used in Board and court decisions and
in the remand order in the present case, embraces at least
all nonsupervisory work for the employer not performed
by the supervisor-member before the strike.
2. Board decisions construing Florida Power
The Board's direction in this case to determine the "sub-
stantiality" of "supervisory" and "rank-and-file struck"
work performed by Hauserman, Kubeja, and Szoszorek
during the strike turned out to be a harbinger of the inter-
pretation of the Supreme Court's Florida Power decision
later announced by the Board in Chicago Typographical
Union No. 16 (Hammond Publishers, Inc.), 216 NLRB No.
149 (1975), and related cases. In Hammond the Board took
as the keynote of Florida Power the principle that the legal-
ity of union discipline of a member-supervisor depends on
"the reasonable effect of that discipline on the supervisor's
activities as an 8(b)(1)(B) representative." Determination
of that effect "clearly depends on an analysis of the activity
engaged in by the supervisor during the period for which
the discipline is imposed." (Hammond) Applying this test, a
majority of the Board 13 ruled that a union violated Section
8(b)(1)(B) when it fined member-supervisors for having
crossed their union's picket line and "performed the same
duties as they had done before the strike, which were prin-
cipally or only supervisory functions (including grievance
adjusting)." The crux of the majority opinion in Hammond
appears in the following analysis of the Supreme Court's
Florida Power decision:
... under our view of Florida Power it makes no dif-
ference whether a supervisor performs a minimal
amount of struck work because it is still reasonably
likely that an adverse effect may carry over to the
supervisor's performance of his 8(b)(1)(B) duties when
on the other hand, says: "The Board's test of substantiality requires a quan-
titative comparison between rank and file work and supervisory function-
not a quantitative comparison of production work as done within and out-
side the unit. Otherwise an employer during a strike could frequently cross-
match the rank and file strike duties of members belonging to a different
union thereby weakening the power of a union to wage an effective strike "
" Members Jenkins, Kennedy, and Penello, Member Fanning dissenting.
THE NEWSPAPER GUILD
he is disciplined after having performed substantially
only supervisory functions and only a minimal
amount of what might arguably be called rank-and-
file struck work during a work stoppage-
. . . The Supreme Court stated that an employer may
not permit a supervisor to become a union member
and yet continue to be able to demand "absolute loy-
alty" from that supervisor . We interpret this to mean
that an employer who permits his supervisors to be-
come union members may no longer demand the loy-
alty of the supervisors if they cross a picket line and in
effect, substitute their services for those of the rank-
and-file employees . In this same regard, however, we
do not believe that the Supreme Court's decision is so
broad that it means that an employer surrenders his
right to require the loyalty of these same supervisors
when they cross a picket line and thereafter perform
substantial supervisory functions , even though inci-
dental thereto they also arguably perform a minimal
amount of rank-and-file struck work.
Simultaneously with Hammond, the full (four-man)
Board decided in Bakery and Confectionery Workers Inter-
national Union of-America, Local Unions 24 and 119 (Food
Employers Council, Inc.), 216 NLRB No. 150 (1975), that a
union did not violate Section 8(b)(1)(B) by fining supervi-
sor-members who normally spent from 45 to 50 percent of
their time doing rank =and-file production work and "the
proportion of rank-and-file work performed by at least
some of these bakery managers increased during the
strike ." Also at the same time that Hammond was decided,
a Board panel (Members Jenkins and Penello, with Mem-
ber Fanning dissenting), held that a union violated the Act
when it disciplined a supervisor-member who worked dur-
ing a strike but "performed only his normal supervisory
duties." New York Typographical Union No. 6, International
Typographical Union, AFL-CIO (Daily Racing Form), 216
NLRB No. 147 (1975).
In a very brief decision in Operating Engineers, Local No.
501 (Anheuser Busch, Inc.), 217 NLRB No. 21 (1975), a
Board panel broadly summarized the Supreme Court's
Florida Power decision as holding "that a union does not
violate Section 8(b)(l)(B) of the Act by fining member-
supervisors for crossing its picket line and performing
rank-and-file struck work during a lawful economic strike
against the employer." Member Kennedy, concurring, em-
phasized the fact that , so far as the record disclosed, the
supervisor involved performed only rank-and-file struck
work during the strike .14 Then in San Bernardino and River-
side Counties District Council of Carpenters and Local Union
No. 1959, Carpenters, (Aurora Modular- Industries), 217
NLRB Nos. 81 and 82, it was held that the union did not
violate section 8(b)(1)(B) by fining a member who spent 50
percent of his working time during a strike performing
rank-and-file work when he normally did no such work. A
majority of the -panel (Members Kennedy and Penello)
there (217 NLRB No. 82) summarized Hammond as hold-
ing that "a union violates 8 (b)(1)(B) of the Act where it
14 Member Fanning , dissenting in the Board 's pre-Florida Power decision,
had also noted that fact 199 NLRB 551 , 552 (1972)
765
disciplines supervisor-members who perform substantially
supervisory functions and only a minimal amount of rank-
and-file struck work during a strike ." The majority opinion
concluded by dismissing the complaint "because [the su-
pervisor-member] performed more than a minimal amount
of rank-and-file struck work during the strike."
Other decisions have held that a union may lawfully dis-
cipline a member-supervisor who during a strike performed
substantial rank -and-file work even though 'he also contin-
ued to perform his supervisory functions . Detroit Newspa-
per Printing Pressmens ' Union, Local Union No. 13, Interna-
tional Printing Pressmen and Assistants ' Union of North
America, AFL-CIO (Observer Newspapers, Inc.), 217 NLRB
No. 94 (1975); United Brotherhood of Carpenters etc. Local
Union No. 14, AFL-CIO (Max M. Kaplan Properties), 217
NLRB No. 13 (1975). In Kaplan the Board expressly said:
"It is irrelevant whether the disciplined supervisor-member
had performed rank-and-file work , in either the same or a
different proportion , before the employer-union dispute
.... [T]he only relevant inquiry is what the supervisor-
member did during the employer-union dispute."
The cases heretofore discussed thus appear to have es-
tablished that a union may lawfully discipline a supervisor-
member who performs "substantial" or "more than mini-
mal" rank-and-file struck work during a strike , regardless
of the nature or combination of his duties and functions
before the strike . Under these cases, it is irrelevant whether
he normally served as a working or as a nonworking fore-
man.
It is not clear whether , or the extent to which , Skippy
Enterprises, supra, has modified the Board 's position. In
that case the Board held that a union violated Section
8(b)(1)(B) when it disciplined a supervisor -member who
continued to perform his regular duties, consisting of 70-
percent supervisory and 30 -percent rank-and-file work, af-
ter the Union had invoked its no contract -no work rule
against the employer. The present case is factually distin-
guishable, since there was no strike in Skippy Enterprises.
The Board majority construed Florida Power as holding
only that a supervisor-member could be disciplined for
"performing rank-and-file struck work." Accordingly,
since " [t]he employees working at the project where [the
disciplined member ] was the supervisor were not members
of Respondent 's locals and did not strike," the member-
supervisor could not be disciplined for doing "rank-and-
file struck work." However, although Skippy Enterprises is
not necessarily inconsistent with prior Board decisions in
result, the emphasis in the majority 's opinion appears to
differ sharply from that in prior relevant decisions , none of
which is cited or discussed . 15 In reaching its decision, the
majority pointed out that, during the dispute between the
employer -and the union, the supervisor continued to per-
form at his established ratio of 30 percent physical carpen-
try and 70 percent supervision. Paraphrasing the conclud-
15 The only post-Florida Power case cited is Teamsters Local No. 524 (Yak-
ima County Beverage Company, Inc), 212 NLRB 908 (1974), holding that a
union violated the Act by "fining supervisor-members in an attempt to
impose the [union's] interpretation of the collective bargaining contract "
There was no issue concerning the performance of rank-and -file or produc-
tion work by the disciplined supervisor . To the same effect see International
Union of Operating Engineers, Local Union No 428, AFL-CIO ' (Mercury
Constructors, Inc), 216 NLRB No. 104 ( 1975).
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing paragraph of the majority opinion:
... Although "Schulist spent 30 percent of his time
performing rank-and-file work," this'amount did not
increase with the onset of the strike. He "did not per-
form the struck work of rank-and-file employees"; the
latter in fact did not strike. In other words, Schulist's
duties and work performance were not affected by the
strike. He continued' as theretofore, to spend 70 percent
of his time in supervisory functions. This was not a mini-
mal amount of time spent in supervisory duties. Under
these circumstances, "compliance of Schulist with
Respondent's demands would have meant quitting his
job and thus depriving the Employer of the services of
its selected representative for the purposes of collec-
tive bargaining or the adjustment of grievances... .
[Emphasis supplied.]
As noted above and in Member Penello's dissent in
Skippy, the Board had previously held unequivocally that
"it is irrelevant whether the disciplined supervisor-member
had performed rank-and-file work, in either the same or a
different proportion, before the employer-union dispute.
This follows since the only relevant inquiry is what the
supervisor-member did during the employer-union dis-
pute." Skippy, supra; Max Kaplan Properties, supra; Food
Employers Council, supra. Additionally, -earlier cases in the
Hammond line had held that a union may lawfully disci-
pline a supervisor-member who "perform[s] more than a
minimal amount of rank-and-file struck work during the
strike." Aurora Modular Industries, supra, 217 NLRB No.
82. This latter statement is strikingly different from the
Skippy Enterprises' majority's focusing on the fact that the
supervisor spent more than "a minimal amount of time
... in supervisory duties."
The difference noted is substantive rather than merely
verbal. "Substantial" or "more than minimal" manifestly
include amounts considerably less than "majority" or "ma-
jor." See, for example, Danning v. Daylin, Inc., 488 F.2d
185 (C.A. 9, (1973) ), where, in construing a bulk transfer
law, the court said (p. 189): "Courts have interpreted a
`substantial part' ... to be as little as 5 percent of the
value . . . 6.3 percent . . . 15 percent . . . and 16 percent."
Cf. Commissioner of Internal Revenue v. E. J. Zongher, 334
F.2d 44, 45 (C.A. 10, 1964). Obviously it would be possible
for a supervisor-member to perform a substantial (more
than minimal) amount of supervisory work as well as a
substantial (more than minimal) amount of rank-and-file
struck work during a strike.
Skippy's Enterprises, the most recent relevant decision,
and the first decided by a full 5-member board, apparently
tends toward making the performance of "more than mini-
mal" supervisory work decisive, since 30-percent rank-and-
file work would appear to be "substantial." It would ap-
pear difficult to limit Skippy Enterprises to its particular
facts, i.e., a nonstrike situation, since there is no reason to
believe that the result would have been different if some of
the other employees on the project had heeded the union's
invocation of the no-contract no-work rule.16
3. Application to this case
Even if, as indicated above, Skippy Enterprises estab-
lishes the current Board rule to be that the performance of
more than minimal supervisory functions during a strike
immunizes a "statutory representative" from union disci-
pline, it is not determinative of the present case.
It is clear that at least Hauserman and Kubeja per-
formed no supervision during the strike, since they had no
employees to supervise. Section 2(11) of the Act defines a
"supervisor" as an individual having certain specified au-
thority over "other employees." While Hauserman and, to
a lesser degree, Kubeja generally "directed" the activities
of the city and telegraph desks, respectively, during the
strike, the high echelon personnel with whom they worked
were certainly not "employees." It could not be seriously
contended that Hauserman and Kubeja could, for exam-
ple, fire, promote, discipline, or effectively give orders to
their superiors, with whom they were working. A fortiori,
they could not possibly adjust any grievances on behalf of
the employer. And, being expressly included within the
bargaining unit covered by the collective-bargaining agree-
ment, they certainly did not represent the employer in col-
lective bargaining. Thus, during the strike Hauserman and
Kubeja did not perform even minimal supervisory work.
Szoszorek's situation is somewhat less clear. As previous-
ly noted, three of his subordinates did report to work with-
in a short time after the strike began, and Szoszorek did
"assign" duties to them. The record is not entirely clear as
to whether any or all of these three people were themselves
supervisors. In any event, it appears that Szoszorek did not
exercise actual "supervision" over them during the strike.
His "assignment" of duties to them appears to have been
merely a suggestion for the voluntary distribution of the
work among the limited personnel available. The entire op-
eration was one of voluntary cooperation, lacking any ex-
ercise of authority.
As noted above, Szoszorek eventually took over the
functions of the mailroom supervisor and, again, appears
to have "supervised" or "directed" that operation. Again,
however, with one unspecified exception, there were no
"rank-and-file" employees present. Like the rest of the op-
eration, the mailroom was manned by supervisory and
managerial personnel. While Szoszorek probably organized
the operation, he manifestly was in no position to exercise
any personnel authority over his coworkers in the mail-
room.
It is thus found that the three statutory representatives
here involved performed no substantial supervisory work
during the strike. Under the Board's remand order,17 that
probably is the end of the matter. And, it may be that,
under Skippy Enterprises, that finding is determinative,
since there can be no statutory immunity from union disci-
pline without performance of more than minimal supervi-
sory work.
All three, to varying extents, performed truly rank-and-
file work. All worked at stuffing Sunday supplements.
17 The remand order requires findings of "substantiality" only "[i]f evi-
16 Indeed, so far as appears, it may be that nonsupervisory employees who dence is received tending to show that any of the above-named representa-
belonged to the union were disciplined. tives performed both supervisory and rank-and-file struck work."
THE NEWSPAPER GUILD
Hauserman collected, prepared, and typed weather reports
and television schedules. In addition, she appears to have
done considerably more than her customary amount of
proofreading, a function usually, performed primarily by
subordinate copyreaders. According to his own testimony,
during the strike Kubeja spent up to 75 percent or 80 per-
cent of his working time in the physical activity of pasting
the newspaper pages for reproduction, a function normally
assumed by rank-and-file typographers. Additionally, Ku-
beja spent more than his customary amount of time in
writing headlines, work normally performed mainly by rim
man-Wordelman. And Szoszorek performed-such physical,
rank-and-file chores as baling newspapers, preparing la-
bels, and overseeing the loading of trucks. It is thus clear
that the three supervisor-members here involved performed
substantial rank-and-file work during the strike. They,
along with - a relatively small complement of managerial
personnel, published all three newspapers during the strike.
In so doing, in the words of the majority opinion in Ham-
mond, they substitute[d] their services for those of the rank-
and-file employees." Accordingly, they were lawfully sub-
jected to union discipline for their work during the strike.
CONCLUSIONS OF LAW
1. During the strike conducted by Respondent against
the Charging Party in 1969, statutory representatives Jan-
767
ice Hauserman (Rolland), Richard Kubeja, and Gerald
Szoszorek performed no supervisory work and performed
substantial amounts of rank-and-file struck work.
2. Respondent did not violate Section 8(b)(1)(B) of the
Act by fining members Hauserman, Kubeja, and Szoszorek
for working during Respondent's strike against the Charg-
ing Party in 1969.
Upon the basis of the foregoing findmgs of fact and con-
clusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 18
The complaint in Case 6-CB-1959 is dismissed in its
entirety.
Is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes