The Tribune Co.

National Labor Relations Board - Board Decisions

Sep 28, 1978

238 N.L.R.B. 24 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tampa Printing and Graphic Communications Union
No. 180, a subordinate union of the International
Printing and Graphic Communications Union (The
Tribune Company) and Charles E. Doyle. Case 12-
CB- 1820
September 8, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On May 10, 1978, Administrative Law Judge Julius
Cohn issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, the General Counsel filed limited cross-
exceptions and a supporting brief, and Respondent
filed an answering brief to the cross-exceptions.
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, cross-ex-
ceptions, and briefs and has decided to affirm the rul-
ings, findings, and conclusions of the Administrative
Law Judge to the extent consistent herewith and to
adopt his recommended Order, as modified herein.
I. The General Counsel has cross-excepted to the
alleged failure of the Administrative Law Judge to
consider whether two separate statements made by
Respondent's officials to employee Charles Doyle
constituted independent violations of Section
8(b)(1)(A) of the Act. We find merit in this cross-
exception.
On April 22, 1977, The Tribune Company (hereaf-
ter called the Company) demoted Doyle from his po-
sition as night-shift foreman in the newspaper press-
room where its employees are represented for
collective-bargaining purposes by Respondent. Doyle
was not a union member at the time of his demotion,
but prior to the Supreme Court's decision in Florida
Power & Light,' he and all other supervisors for the
Company had been supervisor-members of Respon-
dent. In fact, the 1974-77 collective-bargaining agree-
ment for the pressroom unit contained terms relating
to two of three supervisory classifications in the press-
room. In 1974, however, the Company reacted to
Florida Power & Light by ordering all of its supervi-
sors to resign their union memberships or return to
the line as pressmen. One assistant foreman chose to
Florida Power & Light Co. v. International Brotherhood of Electrical
Workers, Local 641, 417 U.S. 790 (1974), wherein the Court held that a
union had not violated Sec. 8(bXlXB) of the Act by disciplining its supervi-
sor-members for crossing a picket line and performing struck work during a
lawful economic strike.
be demoted, but Doyle and the other supervisors
chose to resign and retain their jobs.
After his 1977 demotion, Doyle sought assurances
from Respondent's officials that he would be ac-
corded job priority in the bargaining unit based on
his lengthy continuous service in both supervisory
and nonsupervisory pressroom classifications. Priority
in the pressroom established an employee's right to
preference with respect to shifts, off days, vacation
schedules, and layoffs. In accord with the contempo-
rary practice, two pressroom supervisors demoted to
unit journeyman positions in 1969 and 1970, respec-
tively, received full priority credit for their supervi-
sory service, as did the assistant foreman who relin-
quished his supervisory job in 1974 rather than resign
from Respondent.
Notwithstanding the precedent of three former su-
pervisors who had been credited for time spent in su-
pervisory classifications, it is undisputed that Respon-
dent's president, Bruce Chaiser, told Doyle on April
24, 1977,2 that his claim to job priority might be de-
nied by the union membership. Chaiser further stated
that Doyle's situation was distinguishable from that
of the other former supervisors "because they were
under a different contract and they had not given up
their cards, and because of these two conditions they
had not removed themselves from the bargaining
unit." It is likewise undisputed that on April 26 Re-
spondent's chapel chairman, Dale Handy, reacted to
Doyle's inquiries about the absence of his name from
the weekly markup of priority employees by stating,
"Well, remember now you are not a Union member."
Another union official immediately silenced Handy
and thereafter engaged him in private conversation.
Handy subsequently posted a revised markup with
Doyle's name at the top of the list.
We find that each of the statements cited above
conveyed the clear threat that Doyle's priority claim
might be denied because of his lack of union member-
ship and that Respondent's officials thereby re-
strained and coerced Doyle in the exercise of his pro-
tected right to refrain from union activities.
Accordingly, we conclude that Respondent violated
Section 8(b)(1)(A) of the Act on the occasion of each
statement.
2. The Administrative Law Judge did find that Re-
spondent violated Section 8(b)(2) of the Act by caus-
ing the Company to deny Doyle an opportunity to
bid for a day-shift position in the pressroom because
of his nonunion status. He also found that Respon-
dent violated Section 8(b)(1)(A) of the Act by deny-
ing Doyle's job priority claim in the same discrimina-
tory manner. In its defense, Respondent asserts that
its conduct was nondiscriminatory and lawfully
2 All subsequent dates are in 1977, unless otherwise indicated.
238 NLRB No. 1
24
TAMPA PRINTING AND GRAPHIC COMMUNICATIONS UNION NO. 180
predicated on provisions in the current collective-bar-
gaining contract applicable to Doyle. For reasons set
forth below, we agree with the findings of the Admin-
istrative Law Judge.
Respondent's president, Chaiser, met with Doyle
on April 27, the day after Chapel Chairman Handy
had made the second of the coercive statements
which have heretofore been discussed. At this meet-
ing Chaiser proposed and Doyle rejected a compro-
mise plan by which Doyle would receive priority
credit for time served as a journeyman, but not as a
supervisor. In the same conversation, Chaiser asked
Doyle what he intended to do about his union mem-
bership. Doyle answered that his decision on mem-
bership would not be made until after Respondent's
disposition of his priority claim.
Although Doyle had spurned the compromise pro-
posal, Chaiser and the rest of Respondent's executive
committee voted on May 2 to recommend it for ap-
proval by the union membership. On or about that
same date, however, Chaiser effectively denied
Doyle's priority claim and so informed the Compa-
ny's personnel director. Doyle was therefore refused
an opportunity to assert his priority in bidding for an
available day-shift position and another employee re-
ferred by Respondent took the position which he had
sought. Respondent's members thereafter rejected the
compromise proposal on May 9 in a vote taken dur-
ing their regular meeting. They then voted instead to
limit Doyle's priority basis to time spent in a unit
classification since his April 22 demotion.
There can be no question that the denial to Doyle
of the same priority which had previously been ac-
corded to other demoted supervisors represented dis-
parate treatment. Respondent contends that the dis-
parity is attributable to the changed definition of
priority under the current pressroom collective-bar-
gaining agreement, wherein supervisory classifica-
tions are expressly excluded from the unit. The Ad-
ministrative Law Judge rejected this attempt to
justify deviation from past practice, observing that
"priority is not determined by the contract" and that
Respondent's administration of its exclusive right to
determine priority has not reflected a limitation to
service in job classifications covered by the pressroom
contract. In support of the latter observation, he em-
phasized the stipulated fact that a superintendent
who had received full credit for prior supervisory ser-
vice upon his demotion in 1970 had not been em-
ployed in a supervisory classification covered by the
contract then in effect.
The Administrative Law Judge apparently miscon-
strued the contractual distinctions upon which Re-
spondent relies in its defense when he referred to the
significance of the priority given to the former super-
intendent in 1970. It was a consistent unwritten prac-
tice under predecessors to the current pressroom unit
agreement to determine unit job priority on the basis
of continuous service in any pressroom classification,
supervisory or nonsupervisory, even if it was not ex-
pressly covered by terms of the written agreement. In
contrast, the current 1977-80 contract specifically ex-
cludes all supervisors and contains an express written
definition of unit job priority as continuous employ-
ment in a nonsupervisory classification covered by
the agreement. It therefore appears from the face of
the current contract that, as Respondent contends,
Doyle had no contractual right to priority when he
returned to the unit on April 22.
The Administrative Law Judge's error in contract
construction is harmless, however, in view of the ac-
curacy of his related finding that priority is in actual-
ity determined by Respondent, not by the contract.
By engaging in an ad hoc determination of Doyle's
priority claim, Respondent's officials and membership
conclusively demonstrated a willingness to modify or
void unilaterally the very same contract provision by
which Respondent now maintains it is bound in all
cases involving former supervisors returning to the
pressroom unit. We find, in accord with the Adminis-
trative Law Judge, that Respondent cannot defend its
conduct by reference to a contractual provision which
has little or no practical effect on Respondent's ad-
ministration of unit priority.
We likewise concur with the Administrative Law
Judge that Doyle's lack of union membership was "a
salient consideration" in the disposition of his priority
claim. Respondent has failed to persuade us in this
regard with the argument that its officials evidenced a
favorable nondiscriminatory attitude towards Doyle
by advocating full or at least partial priority credit for
his past pressroom service when they had no contrac-
tual obligation to do so. There is pervasive counter-
vailing evidence in the record that Respondent's offi-
cials actually shared a common animus against Doyle
and his priority claim because of his nonmembership
status. We note in particular the threats of disparate
treatment made by Chaiser and Handy on April 24
and 26, Chaiser's inquiry about Doyle's membership
plans in the context of an April 27 conversation with
Doyle about his priority, and the virtually simulta-
neous acts by which Respondent's executive commit-
tee professed to vote in favor of recommending the
compromise plan yet informed the Company that
Doyle's priority was being denied. In light of the fore-
going, we affirm the Administrative Law Judge's find-
ing that Respondent violated Section 8(b)(2) of the
Act by causing the Company to reject Doyle's bid for
a day-shift position because of his lack of union mem-
bership.
Finally, we find no merit in Respondent's attempts
to disassociate the May 9 membership vote denying
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doyle's priority claim from the various acts by Re-
spondent's officers which preceded the vote. Notwith-
standing the "official" recommendation of the com-
promise plan, the ultimate denial of Doyle's priority
could hardly have been made by a union membership
oblivious to his nonmembership status or to the ani-
mus of a leadership which first threatened to deny,
then actually did deny, Doyle's priority on the basis
of that status. The membership vote, restricted to the
specific question of Doyle's priority and taken in the
immediate aftermath of other unlawful discrimina-
tory acts against him, was unmistakably coercive. We
therefore affirm the Administrative Law Judge's find-
ing that Respondent discriminatorily refused to grant
Doyle priority in violation of Section 8(b)(l)(A) of the
Act.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Tampa
Printing and Graphic Communications Union No.
180, a subordinate union of the International Printing
and Graphic Communications Union, Tampa, Flor-
ida, its officers, agents, and representatives, shall take
the action set forth in the said recommended Order,
as so modified:
1. Insert the following as paragraph l(c) and relet-
ter the subsequent paragraph accordingly:
"(c) Restraining and coercing employees in the ex-
ercise of rights guaranteed by Section 7 of the Act by
telling them that their claim to priority in the Compa-
ny's pressroom can be denied because of their non-
membership in the Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
3The General Counsel alleges in his cross-exceptions that Respondent
breached its duty of fair representation by determining Doyle's pnority in a
procedurally unfair manner and thereby committed an additional violation
of Sec. 8(b)(1)(A). Since the remedy for the 8(bI1XA) violation found would
be the same for violation of the duty of fair representation, we find it unnec-
essary to decide whether the alleged violation occurred, and we disavow any
reliance upon the Administrative Law Judge's discussion and analysis of the
fair representation issue in his Decision.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the National
Labor Relations Act, and we have been ordered to
post this notice and abide by the following.
WE WILl. NOT refuse to grant Charles Doyle
his priority on the pressroom priority list because
of his nonmembership in our Union.
WE WILL NOT cause The Tribune Company to
refuse to permit Charles Doyle to bid for a posi-
tion on the day shift in violation of Section
8(a)(3) of the Act.
WE WILL NOT coerce employees by telling
them that their priority in the pressroom can be
denied because of nonmembership in our Union.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL place Charles Doyle on the press-
room priority list in his proper position after
crediting him with time spent in the pressroom as
journeyman and supervisor, and WE WILL make
him whole for any loss he may have suffered as a
result of our failure to do so, with interest.
TAMPA PRINTING AND GRAPHIC COMMUNI-
CA[FIONS UNION No. 180, A SUBORDINATE
UNION OF' THE INTERNATIONAL PRINTING
AND GRAPHIC COMMUNICATIONS UNION
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case
heard at Tampa. Florida, on August 31 and September 1,
1977. Upon a charge filed by Charles E. Doyle, an individ-
ual, on May 5, 1977, and served the same date, the Re-
gional Director for Region 12 issued a complaint alleging
that Tampa Printing and Graphic Communications Union
No. 180, a subordinate union of the International Printing
and Graphic Communications Union,' herein called Re-
spondent or the Union, violated Section 8(b)(1)(A) and
8(b)(2) of the Act by discriminating against Doyle in con-
nection with his priority in the pressroom because of his
nonmembership in the Union. The Respondent filed an an-
swer denying the commission of unfair labor practices.
Issues
Whether Respondent refused to grant priority in the
pressroom to Doyle because he was no longer a member of
the Union, thereby violating Section 8(b)(1)(A) of the Act.
Whether Respondent violated Section 8(b)(2) of the Act
by causing the Company to discriminate against Doyle in
order to encourage union membership.
Whether Respondent also violated Section 8(b)(1)(A) of
the Act by failing fairly to represent Doyle in the determi-
nation of his priority.
The name of the Respondent appears as amended at the hearing.
26
TAMPA PRINTING AND GRAPHIC COMMUNICATIONS UNION NO. 180
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and Respondent submitted briefs, which have been
carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACI
1. THE BUSINESS OF THE COMPANY
The Tribune Company, herein called the Company, is a
Florida corporation with a principal office and place of
business in Tampa, Florida, where it is engaged in the
printing and distribution of newspapers. The Company has
gross revenues in excess of $200,000 annually, subscribes to
interstate news services, and prints advertisements of prod-
ucts which are sold nationwide. The complaint alleges, the
Respondent admits, and I find that the Company is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR L ABOR PRACTICES ALLEGED
A. Background
The Company and Respondent have had collective-bar-
gaining relationships for many years. The contract effective
from January 1, 1974, through December 31, 1976 (ex-
tended until March 16, 1977), provided for recognition by
the Company of journeymen pressmen, apprentices, and
plateboys employed in the pressroom. Of the supervisors,
who in the pressroom were designated as superintendent,
foremen, and assistant foremen, only the latter two are re-
ferred to in this agreement, and those preceding it, in con-
nection with provisions relating to the manning of presses
and wages. Superintendents have not ever been mentioned
in the contracts with regard to wages or other working con-
ditions. As to the foremen and assistant foremen, the con-
tract provided for their wages, at least as to putting a floor
on their wage scale. There is evidence that individual fore-
men could bargain with the Company for higher rates of
pay.
In the 1974-77 agreement, the terms "seniority" and
"priority" are used with regard to vacation schedules and
markups for shifts. The terms themselves are not specifical-
ly defined or spelled out, but it is undisputed that seniority
referred to the length of service with the Company while
priority is the length of employment with a pressroom clas-
sification. It is also clear that at all times the Union con-
trolled priority.
As a result of certain events during the term of the 1974-
77 agreement, the Company sought some vital changes in
the collective-bargaining agreement negotiated in 1977. The
Company had moved to a modern plant with new equip-
ment and sought more control over the manning and use of
the machines. In return for concessions by the Union to be
incorporated into the 1977-80 agreement, the Company
agreed to guarantee the jobs of named individuals in the
pressroom for the life of the contract. This list is contained
in Appendix A of the current agreement. In addition, the
Union desired and obtained a definition in the new agree-
ment of seniority and priority, which is set forth in Article
19. This in effect codified the existing understanding that
seniority means the length of continuous employment with
the Company, which would determine eligibility for vaca-
tion and other benefits. Priority means the length of con-
tinuous employment in a particular classification covered
by the agreement. Preference in shifts, off days, vacation
schedules, and layoffs shall be by priority.
During the term of the 1974-77 agreement, another event
occurred concerning the status of supervisors. All supervi-
sors had been members of the Union and, as noted, the
Union had even bargained for the wages of foremen and
assistant foremen, though they were not specifically in-
cluded in the unit description. As a result of the decision of
the Supreme Court in Florida Power & Light Co.,2 the Com-
pany decided that it no longer wanted supervisors who were
members of the Union. Accordingly, it directed the supervi-
sors to either give up their membership or return to the line
as pressmen. As a consequence all the supervisors resigned
from the Union at that time except one assistant foreman
who returned to the line. The Union grieved this matter,
and an arbitrator ultimately found that the Company vio-
lated the contract when it demanded that the supervisors
give up their membership in order to retain their posts. The
arbitrator found that despite the fact that the foremen and
assistant foremen were admitted supervisors, the Company
had indeed bargained for them in the contract, at least with
respect to their wages and other provisions concerning the
manning of equipment. In the negotiations for the current
agreement, the Company, in order to surmount this obsta-
cle of the arbitrator's award, insisted upon the deletion of
all references to the foremen and assistant foremen in the
new agreement regarding wages, hours, or other working
conditions. The Union acceded to this demand.
After these agreements were reached but before the new
contract was executed, there was some discussion concern-
ing its terms among the Union officials and the supervisors.
The supervisors were apprehensive that they were not re-
ceiving under the proposed agreement the protection they
had under prior agreements. According to Larry Hensel,
then secretary-treasurer of Respondent, it was the opinion
of the Scale (negotiating) Committee of the Union that su-
pervisors were excluded from the unit and would lose their
priority once the contract was signed. The supervisors also
exhibited their concern as to their own job protection to the
Company. There ensued a meeting between Personnel Di-
rector Jerry Wright, on behalf of the Company, and the
Scale Committee. The Company and Respondent agreed
that the situation would be resolved by adding the supervi-
sor's names to Appendix A, thereby providing them a job
guarantee in the event they stepped down in some manner
from supervision. Wright raised the question as to what
would happen if someone went from supervision back to
2417 U.S. 790 (1974).
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
journeyman. Chaiser, the Union President, said he saw no
reason why there would be any change from the past, in
which continuous priority had been given to all supervisors
who had stepped down. However, Chaiser also said, ac-
cording to Wright, that each case would be handled on an
individual basis and that they could not be guaranteed con-
tinuous priority. Hensel stated that the Scale Committee
had only been authorized to agree to the addition of the
supervisors to Appendix A, which meant merely that they
would not lose employment. Actual priority would have to
be determined by the body at a Union meeting. There is no
real disagreement on this point, as Chaiser himself testified
that the Union position at the meeting was that it did not
want to bargain for the supervisors but felt they were owed
something as past members and would like to include them
in Appendix A. He stated that he told Wright they would
not be able to guarantee priority. When Wright asked what
would happen to their priority, Chaiser replied that in his
own opinion they should not be treated differently from
previous supervisors, but he could not speak for the Union;
he could merely recommend such action.
One other background situation is relevant to this matter.
The record reveals that three former supervisors had been
promoted to their supervisory positions from journeymen
and later either resigned or were demoted and returned to
the line. They were Nelson Haller, who had been promoted
to superintendent in 1966 and demoted in 1970; Dave
Dean, promoted to assistant foreman in 1966 and demoted
in 1969; and Franklin Crouch, promoted to assistant fore-
man in 1973 and resigned in August 1974. Crouch was the
individual who refused to leave the Union at the request of
the Company in 1974. All these individuals returned to the
line as pressmen with full priority, including their previous
time as pressmen, as well as their tenure as supervisors. All
were members of the Union at the time of their return to
the bargaining unit.
B. Facts
Charles Doyle, the Charging Party, has been employed in
the Company's pressroom for about 11 years. In 1970, he
became assistant foreman, a position he had held for about
7 or 8 months when he was again promoted to foreman.
Doyle remained as a foreman until April 22, 1977, when he
was demoted by the Company. Doyle was a member of
Respondent from the beginning of his employment until
August 1974, when he was one of the supervisors who re-
signed from the Union at the request of the Company. As
noted above, the Union grieved the matter, and the Arbi-
trator, finding the Company's action illegal under the con-
tract, provided that it pay the back dues of the foremen and
assistant foremen until May 28, 1975. Shortly thereafter,
Doyle asked the treasurer of the Union whether he could be
reinstated in good standing. The treasurer presented him
with a bill for June dues and some other fees for a total of
about $70, which Doyle refused to pay. In July 1976, Doyle
again attempted to regain his union card and was told by
Hensel that he had to pay a certain figure which Doyle did
not recall, and once more he refused.
Doyle was demoted from his position as night foreman to
journeymen on April 22. Two days later he inquired of
Chaiser as to the Union's intention as far as recognizing his
priority. When Chaiser responded that he personally saw
no trouble but that the Union body could override him,
Doyle remarked that he could not see the reason for that,
since Haller, Dean, and Crouch all had returned from su-
pervisory positions with full priority. According to Chaiser,
he then told Doyle that their cases arose under other cir-
cumstances, because there was a different contract and they
had not given up their cards and removed themselves from
the bargaining unit. Although Chaiser testified that Doyle
made no response to this, Doyle stated that he asked
whether the Union is not recognizing his priority because
he does not belong to the organization and Chaiser re-
sponded, "by no means."
On April 26, there was a discussion in the office of the
night foreman, Marshall, who was present with Hensel,
Doyle, and later Dale Handy, chairman of the Tribune
Chapel. Although there are some slight differences among
these people, all of whom testified, as to the exact words
that were said, there is complete agreement as to the sub-
stance. Doyle had come into the office and found Hensel
and Marshall there and then noticed that his name was not
on the weekly markup.' Doyle asked Hensel why his name
was not on it, and Hensel did not know. Handy, the chair-
man who made the markup, was then called into Marshall's
office and was asked why Doyle's name was not on the
weekly markup. Hensel said that Doyle was supposed to be
on it until the Union had a meeting and reached a decision
as to his priority. When asked, Handy's reply was that
Doyle did not belong to the Union. Hensel told Handy to
keep his mouth shut, that when he opened his mouth, he
put his foot in it. Hensel then took Handy out of the room.
Later Handy revised the 10-man markup and put Doyle on
the top of the list for the coming week.
Pursuant to a request from Chaiser, Doyle met with him
on April 27. Chaiser informed Doyle that he was having
some problems with the Union members concerning his pri-
ority. He said that he was going to propose a compromise
by which Doyle would be credited for the time he spent as
a journeyman but not as a supervisor. Chaiser inquired
whether he would be amenable to this suggestion, and
Doyle said he would not. Chaiser stated that he also asked
Doyle what he was going to do about membership, and
Doyle replied that he did not know, he was going to wait
and see what the Union did with him first.
Again on April 29, Doyle spoke with Chaiser and in-
quired as to the Union's intention with regard to his prior-
ity. Doyle told Chaiser he was going to bid on a day job
which was becoming open. Chaiser informed him that he
was having trouble and did not believe the membership was
going to award Doyle priority. According to Chaiser, Doyle
asked him whether that meant he was being denied priority
because he does not have a union card, and Chaiser said by
no means. Doyle repeated that he had been told he would
3 The markup, a list of employees according to shift and days, is made
according to priority. On the night shift there is a 16-man markup which
provides situations for those employees on it for 6 months and is not changed
for that period. There is next . 10-man markup which provides situations for
I week, After those 26, the re-naining pressmen are given 24 hours' notice of
the nights on which they will be working.
28
TAMPA PRINTING AND GRAPHIC COMMUNICATIONS UNION NO. 180
get his priority back and Chaiser said he would recommend
it but did not think it was going to carry. In the course of
this conversation Chaiser also told Doyle that the Union
had a letter from its attorney indicating that Doyle was not
entitled to top priority and should go to the bottom of the
priority list.
A few days later, Personnel Director Wright received a
phone call from Chaiser informing him that the Union was
not granting priority to Doyle. Chaiser said the Union was
sending a man to take the position opening on the day shift
and wanted to know what the Company was going to do
when Doyle showed up claiming it. Wright answered that
the Union had always handled priority and the Company
would put to work whatever person the Union sent.
A meeting of the Union's executive board was held on
May 2 to determine what its recommendation should be to
the union body. After discussion it was decided to recom-
mend the compromise, previously offered Doyle by
Chaiser, in which Doyle would receive priority based on the
length of time he served as a journeyman in the pressroom
and excluding the time he spent in supervision.
At the regular union meeting held on May 9, the mem-
bership voted to reject the recommendation of the executive
board. A motion was then made and carried that Doyle's
priority should be at the bottom of the list. At the next
regular meeting of the Union on June 13. the subject was
again discussed. This time the motion with respect to
Doyle's priority was rescinded, and a new one passed not
mentioning Doyle's name specifically but providing that su-
pervisors returning to the line go to the bottom of the prior-
ity' list. Hensel agreed that prior to the Doyle situation, to
his knowledge no vote had ever been taken with regard to
the priority of a supervisor who returned to the journeymen
classification.
C. Discussion and Analysis
The General Counsel contends that the Union violated
Section 8(b)(1)(A) of the Act because, very simply, its offi-
cers told Doyle that he would not get his claimed priority
since he was not a member of the Union. Respondent de-
nies this and argues that the current contract changed the
situation to the extent that the Union no longer represents
foremen and assistant foremen in the sense that it did in
prior agreements. Respondent states that formerly priority
was determined by service in the pressroom and now it is
service in the classification, and therefore service as fore-
man cannot be counted.
The argument that the current contract no longer pro-
vides for some Union representation for foremen and assist-
ant foremen cannot be relied upon by Respondent as a
distinguishing feature, because even under prior contracts,
the superintendent was never included or represented in
an)' way. Yet Superintendent Haller returned to the line
and was accorded his full pnority, including time spent as a
supervisor, when he did so. So even in the past, Respondent
treated returning supervisors alike, those it "represented"
and those it did not. Respondent urges that the decision to
place Doyle at the bottom of the priority list was "most
logical." since currently only service in classification is
counted. If so, why not count his service as journeyman, a
classification covered by the contract, and eliminate his ser-
vice as a supervisor. Such credit would earn Doyle a posi-
tion higher than many on the list. The Executive Board of
Respondent apparently thought that was a "logical" solu-
tion and recommended such action to the membership,
which rejected it.
The fact is that Appendix A of the contract guaranteed
Doyle a job in the pressroom unit. Priority is not deter-
mined by the contract. As noted, this was a function con-
trolled by the Union, and it undertook the task of determin-
ing it in the case of Doyle. This it did in a discriminatory
manner, as the explicit evidence is that Doyle was denied
priority because he was no longer a member of the Union.
Even assuming that due to contract changes or other condi-
tions he was not entitled to anything beyond a job in the
unit and therefore at the bottom of the prionty list, the
Respondent would still have violated the Act, because in
making that determination it is apparent that Doyle's lack
of union membership was a salient consideration. In addi-
tion to Handy having "put his foot in his mouth." there is
the background to consider. The examples provided by
stipulation are to the effect that all returning supervisors,
including superintendents who were not covered by any
collective bargaining agreement, were accorded full prior-
ity, including time spent in supervision. The only fact that
separates Doyle from the other supervisors is that they re-
mained members of the Union and he no longer is a mem-
ber of the Union. I find in all the circumstances that by the
denial of higher priority to Doyle when he returned to the
bargaining unit the Respondent discriminated against him
in violation of Section 8(b)(l 1 )(A) of the Act.4
By its conduct in placing Doyle at the end of the priority
list, the Union caused the Company to turn down Doyle's
bid for a situation on the day shift and to accept another
employee designated by the Union. Since the Respondent's
action has been found to be discriminatory. it also violated
Section 8(b)(2) of the Act by causing the employer to un-
lawfully discriminate against Doyle in violation of Section
8(a)(3) of the Act.
There remains for consideration the allegation in the
complaint, urged in the General Counsel's brief, that Re-
spondent additionally violated Section 8(b)( I) A) of the Act
by failing in its duty to accord full representation to Doyle
as a bargaining unit employee. Recognizing that this case
does not comport squarely with Miranda Fuel Co., Inc., 140
NLRB 181 (1962), because the situation does not involve
one of seniority under a contract provision, the General
Counsel instead relies on General Truck Drivers, Ware-
housemen, Helpers and Automotive Employees, Local 315,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Rhodes & Jamieson,
Ltd.), 217 NLRB 616 (1975), arguing that the procedures
employed by the Union were unfair. In that case the union
decided that its position on the rights of an employee to
reassignment following a layoff should be determined by a
referendum among member employees. But Rhodes & Jam-
ieson is distinguishable because the union therein delegated
4 International Union, United Automobile. Aerospace and Agricuirural Im-
plement Workers of America (Pit Processing Co.), 217 NL.RB 320 (1975);
N.L.R.B. v. Local 282. International Brotherhood of Teamvters, Chauffeurs,
Warehousemen and Helpers o 'Ameria [Lizza and Sons, Inl 1. 412 F.2d 334
(C.A. 2, 1969). cert. denied 396 U.S. 1038 11970)
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the authority to make this decision to a group of its mem-
bers. The charging party in that case was seeking to be
reassigned to a position of dump driver, and the only mem-
bers who were permitted to vote on the issue were the dump
drivers, those who would be adversely affected by a vote
which would permit the charging party to bump into one of
their jobs. To limit the voting only to the dump drivers, one
of several classifications represented by the Union, was ob-
viously unfair, as recognized even by its executive board.
Perhaps the circumstances of this case may be more
analogous to those in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 671 (Airborne Freight Corporation of Delaware),
199 NLRB 994, 999 (1972). In that case the union repre-
sented a unit of full-time and part-time employees. The
part-timers were not members of the union. A meeting was
conducted pursuant to a notice to members to vote on a
proposal which included a provision that would require
part-time employees to become full-time or be discharged.
The part-timers were unaware of the subject matter to be
discussed at the meeting and were not notified specifically
about it and therefore could not be expected to know that
this would affect their employment. The Board affirmed the
finding of the Administrative Law Judge that the ultimate
discharge of the part-time workers resulted from the union's
failure to fulfill its statutory obligation to accord the part-
timers fair and impartial representation.
In the instant case, the Union represents employees in
classifications of journeymen, substitute journeymen, ap-
prentices, and platemen. There is no evidence that the
meeting of May 9, which determined Doyle's priority, was
limited to the one classification, as in Rhodes & Jamieson,
who would be affected by granting Doyle higher priority.
Moreover, it has not been shown that, other than Doyle,
there were nonunion employees in the unit represented by
Respondent. Nor is there evidence that nonunion members,
if any, were not permitted to vote at the meeting. The only
statement regarding that subject on the record is Doyle's
testimony that he was not aware of it.
With respect to Doyle himself, he was clearly aware of
the impending union meeting at which his priority was
going to be discussed. He was actually informed of such a
meeting by Chaiser, who told Doyle of the recommendation
to be made concerning his priority. Doyle also testified that
he knew of the meeting from the notice that was posted on
the union bulletin board. He made no attempt to attend.
The General Counsel perhaps places too literal an inter-
pretation on Chaiser's words to Wright on May 4 regarding
the day-shift job upon which Doyle was bidding. From this
the General Counsel would infer that the meeting on May 9
was a sham because it had already been decided not to give
Doyle the priority he claimed. At that point there was no
question in anyone's mind, including Doyle's, that the
Union was going to determine Doyle's priority and perhaps
accord him a lesser place than he wanted. However, as
Doyle had no contract right to high priority, the Union,
absent discrimination, could have lawfully placed him any-
where on the list.
In short, I am not convinced that Respondent violated
Section 8(b)( )(A) additionally by its failure to fairly repre-
sent Doyle as an employee in the unit, in the procedural
manner urged by General Counsel. In any case, I have
found that Respondent denied him the priority he claimed
for an unlawful discriminatory reason, his lack of union
membership, which is perhaps as invidious a reason as
could be found under the Act. In that sense, then, one
might find a Miranda-type violation. In any event, the rem-
edy is the same.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Company described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes, burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily placed
Charles Doyle at the bottom of the priority list in the Com-
pany's pressroom, I shall recommend that Respondent be
ordered to place Doyle in the position he would have had
on that list if credit were given him for all of the time he
spent in the pressroom of the Company as a journeyman,
including time in supervision. While I recognize that Re-
spondent may not have been under any duty to grant him
such priority when he returned to the unit in April 1977,
nevertheless, because of the discrimination it practiced
against Doyle, the proper remedy, I believe, would be to
accord him the same priority which Respondent had given
other supervisors who returned to the unit. To do otherwise
would be to leave Doyle without an effective remedy for the
unlawful conduct of Respondent. Although it is clear that
Doyle was not deprived of employment because his job as
journeyman pressman was guaranteed, I shall recommend
that he be made whole for any other type of monetary loss
he may have suffered as a result of the discrimination
against him.5
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing to grant Charles Doyle priority as a jour-
neyman pressman because of his lack of membership in the
Union, Respondent has discriminated against him and
thereby engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(b)(l)(A) of the Act.
4. By causing the Company to deny Doyle the opportu-
nity to bid on a day-shift position because of his nonmem-
With interest as applicable, to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
30
TAMPA PRINTING AND GRAPHIC COMMUNICATIONS UNION NO. 180
bership in the Union, in violation of Section 8(a)(3) of the
Act, Respondent violated Section 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 6
Respondent, Tampa Printing and Graphic Communica-
tions Union No. 180, a subordinate union of the Interna-
tional Printing and Graphic Communications Union. Tam-
pa, Florida, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to grant Charles Doyle his proper position
on the priority list of the Company's pressroom.
(b) Causing the Company to refuse Doyle the opportuni-
ty of bidding for a position on the day shift in violation of
Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
6 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.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Place the name of Charles Doyle in the proper posi-
tion on the pressroom priority list and make him whole tor
any losses he may have sustained as a result of Respon-
dent's failure to do so, in the manner set firth in the section
of this Decision entitled "The Remedy."
(b) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 12, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees and members are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced.
or covered by any other material.
(c) Sign and mail to the Regional Director for Region 12
sufficient copies of said notice, on forms provided by him,
for posting at the premises of the Tribune Company, if the
latter is willing.
(d) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I In the event that this Order is enforced by a judgment of a United States
Court of Appeals. the words in the notice reading "Posted bs Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
labor Relations Board"
31