Tulsa Typographical Union No. 403

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1424 (N.L.R.B. 1985)

1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tulsa Typographical Union No. 403 and Pennwell
Printing Company . Case 16-CB-2275
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 May 1984 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Employer filed cross-exceptions with
a brief supporting its cross-exceptions and the
judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Tulsa Typo-
graphical Union No. 403, Tulsa, Oklahoma, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
DECISION
STATEMENT OF THE CASE
HUTTON S BRANDON , Administrative Law Judge.
This case was tried at Tulsa, Oklahoma, on March 19
and 20, 1984 . The charge was filed by PennWell Printing
Company (the Employer or the Company ) on December
13, 1983.1 The complaint issued on January 25, alleging
violations of Section 8(b)(1)(B)2 of the National Labor
Relations Act (the Act) by Tulsa Typographical Union
No 403 (Respondent or the Union ). The primary issues
herein are (a) whether the Company's shift foremen are
employer representatives for the purposes of collective
bargaining or the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act, (b) whether
the Union , by indicating to the shift foremen that they
could not withdraw from membership in the Union and
advising them that they would be subject to a $1-a-day
charge for delinquency in dues payment to the Union re-
strained or coerced the shift foremen in violation of Sec-
tion 8(b)(1)(B) of the Act, and (c) whether the Union in
violation of Section 8(b)(1)(B) told a shift foreman that
he would be in trouble if he attempted to withdraw from
the union membership , that charges would be filed
against him, and that if he were fired by the Company,
he would not be allowed to be reemployed and the
Union would not allow him to rejoin the Union
' All dates herein are from July 1983 until March 1984 unless other-
wise indicated
2 Sec 8(b)(1)(B) of the Act makes unlawful restraint or coercion of an
employer in the selection of his representatives for the purposes of collec-
tive bargaining or the adjustment of grievance
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Company, and
Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, and the parties at the hearing
stipulated, that the Company is a corporation duly orga-
nized under and existing by virtue of the laws of the
State of Oklahoma, with its principal office in Tulsa,
Oklahoma. It was further stipulated that the Company
has been continuously engaged in the business of com-
merical printing, and that during the 12 months preced-
ing issuance of the complaint, the Company, in the
course and conduct of its business operations, purchased
goods, wares, and supplies valued in excess of $50,000 di-
rectly from sources outside the State of Olkahoma. Re-
spondent neither admitted nor denied the complaint alle-
gation that the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act Howev-
er, based on the stipulated facts, I conclude that the
Company meets the Board's jurisdictional standards and
does constitute an employer engaged in commerce
within the meaning of the stated sections of the Act Sie-
mons Mailing Service, 122 NLRB 81 (1958).
The Union admits and I find that it is a labor organiza-
tion within the meaning of Section 2(5) of th;, Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Union is, and has been for several years, the col-
lective-bargaining representative of the Company's jour-
neymen and apprentices engaged in "all Offset Prep De-
partment Work including such functions as the Control
Desk, Film Filing, Contact Proofing, Stripping Camera,
Plate Making, and Paste-ups."3 The Union and the Com-
pany have been parties to successive collective-bargain-
ing agreements, the latest one effective March 1, 1982, to
March 1, 1985.4 That agreement contains the following
union-security provision pert.ent to this case at article
III, section 9:
New employees shall be required to become mem-
bers of the Union as a condition of employment
within 30 days following the beginning of employ-
ment
An identical union-security provision was agreed to
for the first time by the parties during negotiations in
1979 on the preceding collective-bargaining agreement
which was effective from September 1, 1979, to March
1, 1982. Notwithstanding the absence of a union-security
provision in any prior agreement, there was a provision
requiring the foreman to be a member of the Union in
3 G C Exh 2
4 The agreement was executed in the name of Pennwell Publishing
Company, the previous name of the Company
274 NLRB No. 201
TYPOGRAPHICAL UNION LOCAL 403 (PENNWELL PRINTING)
the agreement effective March 1, 1978, to August 31,
1979 That provision found at article I, section 5 , stated 5
The operation, authority, and control of the com-
posing room shall be vested exclusively in the Em-
ployer through its representative, the foreman, who
shall be a member of the Union. In the absence of
the foreman, the forman-in-charge shall so function
This provision was carried over into the succeeding
contracts except that the compulsive "shall" dictating
union membership for the foreman was stricken, and the
permissive "may" was inserted in its stead.
In practice, the Company supervised its offset depart-
ment work with a superintendent and three foremen, one
for each of the Company's three shifts of operation.
Prior to June 1983, the superintendent and the shift fore-
men were members of the Union. The superintendent, H
D. Hardy, in late May 1983, applied for and received a
withdrawal card from the Union.6 The subsequent at-
tempts of the three shift foremen to either withdraw
from the Union or otherwise terminate their union mem-
bership and the Union's response to these attempts pro-
vide the basis for the General Counsel's allegations of
unlawful conduct by the Union herein
B The Efforts of the Shift Foreman to Withdraw or
Resign from Union Membership
Hardy testified for the General Counsel relating that,
after receiving his withdrawal card from the Union, he
told the three shift foremen, Milton Davenport, Dannie
Prewitt, and Richard Bryant, about his withdrawal from
the Union The three expressed interest also in with-
drawing, and Hardy suggested to them that if they did
so they should do it together.
Second-Shift Foreman Davenport testified that he ar-
ranged with Third-Shift Foreman Prewitt to meet at the
home of Vester Furr, secretary-treasurer of the Union, in
early August to seek a withdrawal card, Davenport met
with Furr although Prewitt was detained and failed to
appear. Davenport testified he told Furr he wanted to
apply for withdrawal Furr, according to Davenport,
told him he could not apply for a card because he was
delinquent in his dues, that if Davenport did apply for a
card, it would probably not be granted because the
Union recognized only one foreman employed by the
Company, Hardy, who had already exercised his right to
get a withdrawal card Furr added that if Davenport
dropped his card, he would be fined $1 a day and asked
Davenport who would pay his fines and back dues
G C Exh 4
s Under the International Union's Book of Laws, applicable to the
Local Union heiem, a withdrawal card must be applied for and may be
granted only applicant is current in his dues and pays a $1 fee with the
application The bylaws further provide that a withdrawal card will not
be provided a member who is performing work over which the Union
has jursidiction The granting of a withdrawal card terminates union
membership However, membership may be renewed upon deposit of the
card, with the Union's approval, and payments of a $20 fee Moreover, if
the redeposit is accompanied by payment of dues missed during the with-
drawal period, membership will be reinstated retroactively R Exhs 2
and 3
1425
Davenport subsequently related to Hardy, Prewitt, and
First-Shift Foreman Bryant what Furr had said regard-
ing obtaining a withdrawal card Davenport and Prewitt
thereafter failed to pay additional dues to the Union and
considered themselves no longer union members Prewitt
testified he made no subsequent attempt to talk to Furr
because he believed it would have been useless
Shift Foreman Bryant testified that he made an effort
to withdraw from the Union even earlier than Daven-
port In this regard he testified that on July 8 when he
was current in his dues he asked Furr for a withdrawal
card When Bryant asked why not, Furr replied that the
Union was only going to recognize one foreman insofar
as withdrawal was concerned and cited article 1, section
5, of the collective-bargaining agreement According to
Bryant, Furr raised no issue regarding any production
work by Bryant .7 Bryant concluded his meeting with
Furr by stating he was not going to pay his union dues
anymore Bryant further testified that he had been an of-
ficer in another local and that he had previously resigned
from the Union by simply refusing to pay further dues.
Bryant discontinued paying dues after his meeting with
Furr.
On August 30, the Union sent identical letters signed
by Oscar Coleman, president of the Union, to Bryant,
Davenport, and Prewitt telling them that they were de-
linquent in their dues and stating as follows'
The contract between the Tulsa Typographical
Union and PennWell Publishing Company has a
union shop clause and requires all journeymen to
belong to the Tulsa Typographical Union. Only one
(1) foreman is allowed that is a non-member
Under the local law of the Tulsa Typographical
Union, Art III-Sec 3, you will be required to pay
one dollar ($1 00) per day that you are delinquent
I hope you understand this situation cannot con-
tinue without the Union having to take every action
available to correct this practice.
The three shift foremen turned the letters over to
Hardy, and made no attempt to communicate with the
Union They continued in their refusal to pay dues
Around the time that the letters were sent to the shift
foremen, Coleman also wrote J R Bradley, the Compa-
ny's vice president in charge of printing, noting that
there were problems in the "unit" coming under the
Union's Jurisdiction More specifically, the letter stated
there were violations of article III, section 3 (the union-
security provision) of the collective-bargaining agree-
ment and asked for a meeting of the joint standing com-
mittee to see if the dispute could be settled. Following
further correspondence, a meeting was arranged for Sep-
tember 27.
At the meeting of September 27, the Company was
represented by Attorney Robert Ballow and Hardy,
while the Union was represented by Coleman, Robert
7 Davenport, in his testimony, estimated that he spent about 40 percent
of his time on regular production work Hardy, on the other hand, esti-
mated that shift foremen spent about 75 percent of their time on produc-
tion work
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melton, chapel chairman, and perhaps others unnamed
Hardy was the only attendee who testified herein He re-
lated that Coleman complained that the three shift fore-
men were not paying their dues and the Company should
enforce the contract and make them pay dues Ballow re-
sponded that the Company did not care whether the
foremen paid dues or not since, under the contract and
the Act, they could not be required to pay dues Cole-
man went on to state the Company could have only one
foreman under the contract Ballow replied that the
Company would have as many foremen as it deemed
necessary Moreover, Ballow pointed out that the union-
security clause only required employees to become mem-
bers, and did not require them to remain members Ac-
cording to Hardy, the meeting concluded with a warning
by Ballow to Coleman that if the Union persisted in har-
assing the foremen, the Company would file charges
Ballow asked Coleman to check with his membership
and let Ballow know what their position was going to
be
There were no further communications between the
Union and the Company on this matter until December 2
when Colemen wrote Bradley noting the dispute be-
tween the parties regarding application of the union-se-
curity clause and suggesting that the September 27 meet-
ing had terminated with the understanding that the Com-
pany was to supply the Union with a position on the
matter Noting that no position had been received, the
Union requested that the matter be taken to arbitration
under the collective-bargaining agreement
The Company responded to the Union by Ballow's
letter dated December 12 in which Ballow rejected the
notion that the Company's position had not been made
clear at the September 27 meeting, A further response of
the Company was the filing of the charge herein.
To clarify any ambiguity regarding the intent of the
shift foremen to withdraw from union membership, let-
ters were prepared by the Company for the foremen on
January 6 These identical letters, signed by the three
foremen and forwarded to Coleman by certified mail, are
as follows
In July, 1983, I stopped paying dues to the
Union I wanted to get out of the Union In August,
you sent me a letter saying that I had to pay dues
and be a member of the Union and that I would be
required to pay $1.00 per day for each day that I
was delinquent in my dues payments
I now understand that some confusion has been
raised regarding my attempt and intent to get out of
the Union and stop paying dues I do not under-
stand how there can be any confusion and feel that
the facts are clear In any event, so that there can
be no misunderstanding, this is to confirm that since
July 1983, I have not wanted to be a member of
Tulsa Typographical Union No 403 1 effectively
quit or resigned from membership when I stopped
paying dues at that time
The Union did not respond to the January 6 letters
Further, it made no contention herein that it intends to
honor the resignation efforts of the shift foremen Nor
has it indicated to the Company or the shift foremen that
the shift foremen would be allowed to resign, but would
not be given withdrawal cards. Further, the Union never
explained to the shift foremen how they could perfect
their resignations so as to avoid late dues fees
C The Union's Evidence
Furr testified for the Union disputing certain portions
of the testimony of Davenport and Bryant Thus, with
respect to Davenport, Furr related that Davenport told
him he was troubled and did not want to drop his union
card. While Davenport said he had a dues check made
out, he had not decided what to do with it Furr said he
told Davenport that the decision was up to him. Furr
denied that Davenport requested a withdrawal card from
Furr.
With respect to Bryant, Furr acknowledged that
Bryant asked for an honorary withdrawal card. Howev-
er, he responded to the request with questions about
whether Bryant's dues were paid up and if he was doing
production work Bryant replied affirmatively on both
points and Furr then admittedly remarked he did not be-
lieve the Union would give Bryant a withdrawal card
I have carefully considered the testimony of Bryant
and Davenport weighed against that of Furr Both
Bryant and Davenport impressed me as straightforward
and truthful. Their testimony was detailed and their
recollection good. The fact that they sought to withdraw
from the Union is substantiated by their refusal to subse-
quently pay dues. Moreover, portions of their testimony
were not denied by Furr. Thus, Furr did not deny that
he told either that the Union recognized only one fore-
man under the contract Furthermore, Furr impressed
me as indirect and evasive. Questioned on cross-examina-
tion concerning the August 30 letter of Coleman to the
shift foreman, which Furr admittedly helped draft, and
asked why it was necessary to state that only one fore-
man was allowed to be nonmember, Furr answered eva-
sively stating that it was a contractual matter, and he did
not make decisions on contractual matters. Finally, the
remarks attributed to Furr by Bryant and Davenport are
wholly consistent with the Union's position at the hear-
ing and Furr's admission that the Union's position was
that the shift foremen were required to be union mem-
bers Accordingly, I credit Bryant and Davenport where
their testimony differs from that of Furr.
The complaint alleged that Furr threatened Davenport
that Davenport would be in trouble if he withdrew from
union membership, that the Union would file charges
against Davenport, and that if he was fired by the Com-
pany he could not be rehired and the Union would not
let him rejoin. Davenport did not attribute such remarks
to Furr and the record does not otherwise substantiate
these allegations 8 They must, therefore, be dismissed
8 Although Davenport testified he told Prewut and Bryant that Furr
told him he would be in "hot water" if he dropped out of the Union,
careful examination of the record fails to establish that Davenport specifi-
cally attributed such a remark to Furr when testifying about his conver-
sation with Furr
TYPOGRAPHICAL UNION LOCAL 403 (PENNWELL PRINTING)
D Arguments and Conclusion
The General Counsel argues initially that the shift
foremen are representatives of the Employer for the pur-
poses of collective bargaining or grievance adjustment
within the meaning of Section 8(b)(1)(B). While conced-
ing that the grievances treated by the shift foremen
could be characterized as "personal" rather than "con-
tractual" the General Counsel argues that the distinction
between contractual and personal grievance has no rel-
evance to the construction to the broad term "griev-
ances" as used in Section 2(11) and Section 8(b)(1)(B),
citing Typographical Union 529 (Hour Publishing), 241
NLRB 310, 315 (1979)
The General Counsel contends that the Union's ac-
tions against the shift foremen which coerced and re-
strained the Employer consisted of threats to impose the
$1-a-day fine for late dues. That the fines were not actu-
ally imposed or collected is of no consequence for it was
the threat that was coercive Typographical Union Local
18 (Northwest Publications), 172 NLRB 2173 (1968). Ad-
dressing a union contention at the hearing that there was
no 8(b)(1)(B) violation because no threats were directed
against the Company with respect to the supervisors, the
General Counsel urgues that pressure applied on the
Company indirectly through the supervisors suffices to
establish the violation. Ibid
Further, with respect to the merit of the 8(b)(1)(B) al-
legation, the General Counsel argues that the Union's re-
fusal to allow the shift foremen to withdraw from mem-
bership was based upon the Union's interpretation of the
bargaining agreement thus injecting the shift foremen
into a contractual dispute between the Company and the
Union Because the dispute was rooted in the interpreta-
tion of the contract, the Union's effort to enforce its in-
terpretation through actions against the supervisors, the
Union violated the Act as alleged, the General Counsel
contends
The Company's brief contains arguments similar to the
General Counsel's regarding injection of the shift fore-
men in contractual dispute matters, but it goes much fur-
ther It argues that whether or not the dispute concern-
ing the shift foremen is a contractual one the Union vio-
lated Section 8(b)(1)(B) by insisting that the shift fore-
men cannot resign and by threatening them for attempt-
ing to resign. This argument is premised upon the propo-
sition that a union lawfully interferes with empolyer se-
lection or retention of representatives when it insists that
such representatives be union members Typograhpical
Union Local 38 v. NLRB, 278 F 2d 6, 11-13 (1st Cir
1960), enfg. 123 NLRB 806 (1959), affd. by an equally
divided Court 365 U S. 705 (1961) Such insistence di-
rectly restrained the Company in its selection of repre-
sentatives, and the threat of imposition of a fine or late
dues charge on the supervisors indirectly restrained the
Company.
The Company further argues that even the Union's
contractual claim that the shift foremen are required to
be union members is unlawful because it constitutes in-
sistence upon an illegal contract term. Further, in this
regard, the Union's demand for arbitration, according to
1427
the Company, constituted further insistence upon an un-
lawful or illegal contractual provision 9
The Company also contends in its brief, as it did in a
motion at the end of the hearing to conform the plead-
ings to the proof, that based on all the facts litigated, the
Union violated Section 8(b)(2) and (3) of the Act al-
though such allegations were not contained in the com-
plaint The General Counsel took no position on this
point at the hearing or in her brief However, in response
to the Company's motion at the hearing, the Union intro-
duced in evidence a letter from the General Counsel's
Office of Appeals sustaining the Regional Director's par-
tial dismissal of the original charge concerning the Com-
pany's 8(b)(2) and (3) contentions I conclude that the
General Counsel has exercised his statutory authority to
decline to issue complaint on the 8(b)(2) and (3) allega-
tions when such allegations were clearly before him and
has not since indicated a change of position Chefs
Pantry, Inc, 247 NLRB 77 (1980) Accordingly, I adhere
to my ruling at the hearing denying the Company's
motion to conform and conclude that the 8(b)(2) and (3)
allegations are not properly before me.
The Union's defense may be rather succinctly stated
It contends no threats were made to the shift foremen
nor was any disciplinary or discharge action sought
against them Rather, it contends the only thing it did
was file a grievance on the shift foremen consistent with
its position that the Company only had one foreman
The filing of a grievance does not constitute restraint or
coercion even if the contract interpretation sought is ille-
gal, the Union urges, citing Clyde Taylor Co, 127 NLRB
103 (1960) While arguing that the shift foremen are not
supervisors within the meaning of Section 8(b)(1)(B) of
the Act, the Union urges that, in any event, all it did
with respect to the shift foremen was to enforce reasona-
ble and legitimate rules with respect to the granting of
withdrawal card requests.
In determining the existence of the alleged violation in
the instant case, the first issue which must be resolved is
whether the shift foremen are representatives of the
Company within the meaning of Section 8(b)(1)(B) As
already related, the Union argues that they were not.
However, the record is replete with uncontradicted testi-
mony and evidence clearly establishing the shift foremen
had sufficient supervisory authority so as to constitute
them supervisors within the meaning of the Act It is not
necessary to recount such evidence for the Union at the
hearing agreed that the shift foremen meet the Section
2(11) definition of supervisors 10 Nevertheless, the Union
While this case may have lent itself to deferral to the grievance and
arbitration procedure in the collective-bargaining agreement under the
principles of Collyer Insulated Wire, 192 NLRB 837 (1971) and Typo-
graphical Union No 12 (A S Abell Co), 201 NLRB 120 (1973), no party
herein argued for such deferral And while the Union initially sought ar-
bitration, neither the record herein nor the Union's brief indicates that
the Union is presently disposed to resolve the matter by arbitration Ac-
cordingly, I conclude deferral is not appropriate here :McDonald Engi-
neering Co, 202 NLRB 748 (1973)
10 The shift foremen positions were not newly created and were in ex-
istence during the time the current contract was negotiated Yet, Bradley
testified that the Union had never raised the issue about the supervisory
status of the assistant foremen
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still maintains the assistant foremen are not employer
representatives within the meaning of Section 8(b)(1)(B).
This argument must be rejected The Board has held that
persons who are supervisors within the meaning of the
Act are employer representatives within the meaning of
Section 8(b)(1)(B). Teamsters Local 296 (Northwest Publi-
cations), 263 NLRB 778 (1982); Carpenters Local 14 (Max
M. Kaplan Properties), 217 NLRB 202 (1975) Moreover,
and in any event, there is uncontradicted record evi-
dence herein that the shift foremen did handle and re-
solve employee grievances. Thus, Hardy testified that as-
sistant foremen have authority to resolve employee com-
plaints at the lowest level by reasoning with the employ-
ees He described an employee complaint on holiday pay
that came through Davenport Prewitt testified that he
took action on an employee complaint about a pressroom
foremen doing unit employees' work and Prewitt re-
solved it Bryant testified he had resolved a number of
complaints from Chapel Chairman Bob Melton concern-
ing union jurisdiction problems and heat and cooling
problems in the plant Finally, the record reflects that
the shift foremen attended managerial meetings and were
consulted regarding collective-bargaining agreement pro-
posals Accordingly, I find the shift foremen are clearly
employer representatives within the meaning of Section
8(b)(1)(B) of the Act.
With respect to the merits of the 8(b)(1)(B) violation,
the Board has stated in Carpenters Local 14 (Kaplan Prop-
erties), supra at 202
We recognize that a union's discipline of a supervi-
sor-member falls outside the proscription of Section
8(b)(1)(B) where the offense occasioning the disci-
pline involves a matter purely of internal union ad-
ministration, unrelated, either directly or indirectly,
to any dispute between the union and the employer
This rule results in the finding of no violation
where, for instance, a supervisor-member is disci-
plined for failing to pay his union dues or for dis-
turbing a union meeting
In the case sub judice, the failure of the Union to give
the shift foremen honorary withdrawal cards was clearly
a matter of internal union administration Any require-
ment of the Union that the shift foremen follow certain
formal procedural steps in effectuating a resignation
would fall into the same class, and the imposition of $1-
per-day late fees or fines on dues is clearly a matter of
internal union discretion where resignation is not made
effective due to failure to comply with union rules If
this were all that was involved here, the complaint
would have to be dismissed More is involved, however,
for it is the Union's position, as is clear from the record,
that the shift foremen could not resign their membership.
This position was made clear in Coleman's August 30
letters to the shift foremen by Coleman's reference to the
Union's contention that only one foremen was allowed
not to be a union member Further, Furr had advised
Bryant that he could not withdraw because the Union
only recognized "one foremen" thus suggesting that ter-
mination of union membership was not available to the
shift foremen This position was reemphasized in the
Joint Standing Commitee meeting of September 27 in
which Coleman requested the Company to have the
Union's interpretation of the union-security agreement
enforced against the shift foremen Implicit in this re-
quest was a request for discharge, absent dues payment
including the late fees, by the shift foremen because the
Union reviewed their union membership as a condition
of employment. Accordingly, I conclude the dispute
about the right of the shift foremen to resign their union
membership was not premised simply upon internal
union matters but rather upon the interpretation of cur-
rent contractual provisions between the parties relative
to union recognition of only one foremen (art I, sec 5)
and the union-security clause (art. III, sec 9)
The Board has consistently held that union discipli-
nary actions against supervisors is unlawful where the
disputes which provide the basis for the discipline is
rooted in the interpretation of contractual provisions in
collective-bargaining agreements In such circumstances
the discipline of the supervisors is an attempt by the
union to impose its interpretations of the agreement di-
rectly or indirectly upon an employer's representatives
which infringes "upon the employer's right to unencum-
bered control of that representative." Teamsters Local
524 (Yakima Beverage Co.), 212 NLRB 908, 910 (1974).
See also Teamsters Local 296 (Northwest Publications),
supra.
I concur with the Union's argument that the filing of a
grievance or the effort to arbitrate the dispute regarding
the shift foremen did not in itself constitute unlawful re-
straint or coercion The Board has held that a demand
for arbitration to enforce an illegal interpretation of a
contractual provision is not in itself illegal restraint and
coercion. Operating Engineers Local 12 (Robert E.
Fulton), 220 NLRB 530 (1975). Furthermore, the Board
is loathe to make findings which would constitute an un-
warranted impairment of the parties' procedural contract
rights. See Teamsters Local 46 (Gumess-Harp Corp.), 236
NLRB 1160 (1978) But while the invocation of griev-
ance machinery by the Union brought the dispute to a
head, it was the Union's action prior to such invocation
which provides the basis for the finding of the violation
here The Union threatened imposition of a late dues
penalty against the shift foremen and sought enforcement
of the union-security agreement against them while
knowing that the shift foremen, as a group, wanted to
terminate their membership. These were efforts which,
when coupled with the Union's failure to explain how
the shift foremen might resign if they could not be issued
withdrawal cards and its insistence to both the shift fore-
men and Company that it would recognize only one
foremen under the bargaining agreement, were designed
to compel the continued union membership of the shift
foremen and their adherence to union policies and con-
tractual interpretations. It directly infringed upon the
Company's right to unencumbered control of the shift
foremen as its representatives. By its actions, the Union,
I conclude, violated Section 8(b)(1)(B) of the Act as al-
leged This conclusion is unaffected by the fact that the
collective-bargaining agreement permitted union mem-
bership of foremen and supervisors, for the bargaining
TYPOGRAPHICAL UNION LOCAL 403 (PENNWELL PRINTING) 1429
agreement provision on this point does not constitute a
waiver of the Company's protected rights under Section
8(b)(1)(B) See Typographical Union Local 12 (A. S Abell
Co.), supra at 128.
THE REMEDY
Having found that the Union has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act
On the basis of the foregoing findings of fact and con-
clusions and on the entire record in this case, I make the
following
CONCLUSIONS OF LAW
1. Pennwell Printing Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act
2 Tulsa Typographical Union No 403 is a labor orga-
nization within the meaning of Section 2(5) of the Act
3 Richard Bryant, Dannie Prewitt, and Milton Daven-
port are, and have been at all times material, supervisors
within the meaning of Section 2(11) of the Act, selected
by the Employer for the purposes, among others, of col-
lective bargaining and the adjustment of grievances
within the meaning of Section 8(b)(1)(B) of the Act
4 By seeking to enforce the union-security provision
of the collective-bargaining agreement against Richard
Bryant, Dannie Prewitt, and Milton Davenport, and by
threatening to impose a $1-per-day fine or fee on them
for dues delinquency, the Union restrained and coerced
Pennwell Printing Company in the selection and reten-
tion of its representatives for the purposes of collective
bargaining or the adjustment of grievances, and thereby
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(B) of the Act
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
6 The Union did not violate Section 8(b)(1)(B) of the
Act in any manner not specifically found above.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edit
ORDER
The Respondent, Tulsa Typographical Union No 403
Tulsa, Oklahoma, its officers, agents, and representatives,
shall
1. Cease and desist
(a) Seeking to impose a contractual union-security pro-
vision upon Richard Bryant, Dannie Prewitt, and Milton
Davenport, Pennwell Printing Company's supervisors
and representatives for the purposes of collective bar-
gaining or the adjustment of grievances, or otherwise
seeking to prevent, through imposition of dues delin-
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
quency fees or other means, the termination by such su-
pervisors and representatives of their membership in the
Union
(b) In any like or related manner restraining or coerc-
ing Pennwell Printing Company in the selection and re-
tention of its representatives for the purpose of collective
bargaining or the adjustment of grievances
2. Take the following affirmative action which will ef-
fectuate the policies of the Act
(a) Honor the requests of Richard Bryant, Dannie
Prewitt, and Milton Davenport to terminate their union
memberships
(b) Post at its offices and meeting halls, and other
places where notices are customarily posted copies of the
attached notice marked "Appendix."12 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(d) Furnish the Regional Director for Region 16 with
signed copies of such notice for posting by Pennwell
Printing Company, if willing, in places where notices to
employees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violation of the Act not spe-
cifically found
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT seek to impose a contractual union-se-
curity provision upon Richard Bryant, Dannie Prewitt,
and Milton Davenport, supervisors and representatives of
Pennwell Printing Company, for the purposes of collec-
tive bargaining and the adjustment of grievances, or oth-
erwise seek to prevent, through imposition of dues delin-
quency fines or fees or by other means, the termination
by such supervisors and representatives of their union
membership.
WE WILL NOT in any like or related manner restrain or
coerce Pennwell Printing Company in the selection and
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retention of its representatives for the purposes of col-
lecting bargaining or the adjustment of grievances.
TULSA TYPOGRAPHICAL UNION No. 403