Washington Post Co.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1079 (N.L.R.B. 1979)

THE WASHINGTON POST COMPANY
Columbia Typographical Union No. 101, International
Typographical Union of North America, AFL-CIO
and The Washington Post Company. Case 5 CB
2024
June 13, 1979
DECISION AND ORDER
On June 29, 1977, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel and the
Charging Party filed cross-exceptions, supporting
briefs, and answering briefs to Respondent.
The Board has considered the attached Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consis-
tent herewith.
The issue in this case is whether a union violates
Section 8(b)(I)(B) when it disciplines a member who
is a supervisory employee for crossing the union's
picket line during a strike to perform both supervi-
sory duties and, as more fully discussed below, rank-
and-file struck work.
The Administrative Law Judge concluded that Re-
spondent's discipline of the supervisor-members. in-
cluding the imposition of fines, violated Section
8(b)(1)(B) of the Act. For reasons set forth below, we
disagree and shall dismiss the complaint in its en-
tirety.
Section 8(b)(l)(B) of the National Labor Relations
Act provides, in pertinent part, as follows:
(b) It shall be an unfair labor practice for a labor
organization or its agents---(l) to restrain or co-
erce . . . (B) an employer in the selection of his
representatives for the purposes of collective bar-
gaining or the adjustment of grievances ...
Prior to 1968 the Board interpreted Section
8(b)(1)(B) to apply primarily to pressures exerted by a
union upon an employer to force it into a multiem-
ployer bargaining unit or otherwise to dictate the
choice of its representative for the purpose of collec-
tive bargaining or adjusting grievances in the course
of administering a collective-bargaining agreement.
In Oakland Mailers' the Board held that a union
may not fine a supervisor-member because, in carry-
ing out his supervisory functions, he construed and
applied a contract provision adverse to the union.
Thus, the Board interpreted Section 8(b)(l)(B) to be
applicable to situations in which the union pressure
or coercion was applied directly to supervisory per-
' San Francisco-Oakland Mailers' Union No i8, Internalional Typographi-
cal Union (Northwesl Puhlications, Inc , 172 NL.RB 2173 (1968
sonnel, thereby indirectly pressuring or coercing the
employer. Although the union in Oakland Mailers
was not directly attempting to secure the replacement
of the foremen, the Board found an 8(b)(l)(B) viola-
tion in the union's seeking to influence the manner in
which the foremen interpreted the contract. The
Board stated:
That Respondent may have sought the substitu-
tion of attitudes rather than persons, and may
have exerted its pressures upon the Charging
Party by indirect rather than direct means, can-
not alter the ultimate fact that pressure was ex-
erted here for the purpose of interfering with the
Charging Party's control over its representatives.
Realistically, the employer would have to replace
its foremen or face de fLacto nonrepresentation by
them. [Ibid. at 2173.]
Inasmuch as the Supreme Court. in both Florida
Power & ight Co.2 v. International Brotherhood of
Electrical lMorkers, Local 641. et al., and American
Broadcasting Company v. Writers Guild o Ainerica,
West, Inc., et al. 3 specifically refrained from question-
ing the Oakland Mailers doctrine and the proposition
that an employer may be coerced or restrained within
the meaning of Section 8(b)(1)(B), not only by picket-
ing or other direct actions aimed at it but also by
debilitating discipline imposed upon its collective-
bargaining representatives or grievance adjustment
representatives, it is clear that the Oak-lnd Mailers
doctrine remains intact.
In Florida Power & Light, the Court held that a
union did not violate Section 8(b)(1)(B) by disciplin-
ing its supervisors-members for performing rank-and-
file bargaining unit work during a lawful strike. The
Court held that Section 8(b)(1)(B) could not be read
to forbid union discipline of supervisors for the per-
formance of rank-and-file work on the theory that the
performance of such work during the strike is an ac-
tivity furthering management's interests. The Court
found the conclusion "inescapable that a union's dis-
cipline of one of its members who is a supervisory
employee can constitute a violation of [Section]
8(b)(l)(B) only when that discipline may adversely
affect the supervisor's conduct in performing the du-
ties of, and acting in his capacity as, grievance ad-
juster or collective bargainer on behalf of the em-
ployer" (417 U.S. at 804 805). The Court noted that
the "divided loyalty" problem was addressed by Con-
gress not through Section 8(b)(1)(B) but through
other provisions in the Act which permit an employer
to refuse to hire union members as supervisors, to
discharge supervisors because of union activities or
2417 LI.S 790 (1974)
1437 IS 411 (1978)
242 NLRB No. 135
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership, and to refuse to engage in collective bar-
gaining with supervisors.
In American Broadcasting Company (hereinafter
ABC), the Supreme Court held that a union violated
Section 8(b)(1)(B) of the Act by disciplining supervi-
sors-members who crossed a picket line during a
strike in order to perform only their regular supervi-
sory duties, including the adjustment of grievances.
The Court stated that the Board must inquire as to
whether a union's discipline of a supervisor-member
may adversely affect the supervisor's performance of
his collective-bargaining tasks and grievance-adjust-
ment tasks and thereby coerces and restrains the em-
ployer contrary to Section 8(b)(1)(B). The Court, in
ABC, found that the Board had properly addressed
the relevant issues, and that its construction of Sec-
tion 8(b)(1)(B) thoroughly recognized and respected
the outer boundaries established by Florida Power
and represented an "acceptable reading of the statu-
tory language and a reasonable implementation of
the purposes of the relevant statutory sections.
N.L.R.B. v. Iron Workers, 434 U.S. 335, 341 (1978)"
(437 U.S. at 430). Further, the Court affirmed the
Board's inference that union discipline of a supervi-
sor-member performing only his regular supervisory
functions could reasonably be foreseen to affect ad-
versely the performance of that supervisor's griev-
ance-adjustment duties. The Court noted that the jus-
tifiable inferences to be drawn in such situations were
"peculiarly the kind of determination that Congress
has assigned to the Board":
"An administrative agency with power after
hearings to determine on the evidence in adver-
sary proceedings whether violations of statutory
commands have occurred may infer within the
limits of the inquiry from the proven facts such
conclusions as reasonably may be based upon
the facts proven. One of the purposes which lead
to the creation of such boards is to have deci-
sions based upon evidential facts under the par-
ticular statute made by experienced officials with
an adequate appreciation of the complexities of
the subject which is entrusted to their adminis-
tration." Republic Aviation Corp. v. N.L.R.B.,
324 U.S. 793, 800 (1945); Radio Officers v.
N.L.R.B., 347 U.S. 17, 48-49 (1954). [437 U.S. at
432-433.]
In ABC the Board drew the inference that the union
discipline would adversely affect the supervisors' per-
formance of their grievance-adjustment duties be-
cause the penalties were imposed upon supervisors
who had complied only with the orders of their em-
ployer to report to work and to perform solely their
normal supervisory functions, including the adjust-
ment of grievances, during the strike. The Court
noted in ABC that the supervisors had "felt the
union's wrath, not for doing rank-and-file work con-
trary to union rules, but for preforming only their
primary supervisory duties during the strike .... "
(437 U.S. at 434).
In this case, we are confronted with a factual situ-
ation which falls between those situations set out in
Florida Power and ABC. We are presented herein
with the issue of whether Respondent violated Sec-
tion 8(b)(l)(B) of the Act by disciplining certain su-
pervisors-members who crossed a picket line to work
during a lawful strike and to perform both regular
supervisory duties as well as a more than minimal
amount of rank-and-file work. In ABC the Court
noted, in footnote 23, that it was not presented in that
case with a situation where a supervisor-member, in
addition to performing his regular supervisory duties,
also performed rank-and-file work during the strike.
Thus, consistent with the teachings of Florida Power
and ABC, we set forth the standard which we deem
applicable, in our construction of Section 8(b)(l)(B),
for those situations where union discipline results af-
ter a supervisor-member's performance during an em-
ployer-union dispute of both regular supervisory du-
ties and rank-and-file struck work.
In these situations, to determine whether Section
8(b)(1)(B) has been violated, the only relevant inquiry
is what did the supervisor-member do during the em-
ployer-union dispute. When a supervisor-member has
performed a more than minimal amount of rank-and-
file work during the period of the employer-union dis-
pute, subsequent union discipline for performing such
work cannot give rise to a violation of Section
8(b)(l)(B). A supervisor-member will not be immune
from union discipline because the amount of rank-
and-file work he performs during the dispute does not
increase. Thus, it is irrelevant whether the disciplined
supervisor-member has performed rank-and-file
work, in either the same or different proportion, than
before the employer-union dispute.'
This standard fully comports with the admonition
of the Court in ABC to inquire as to whether union
discipline may adversely affect a supervisor-member's
performance of his collective-bargaining tasks or
grievance-adjustment tasks and thereby coerces or re-
strains the employer in violation of Section 8(b)(1)(B).
An employer has a substantial interest in having its
representatives free from coercion in performing their
collective-bargaining functions and grievance-adjust-
Member Penello notes that this rationale was adopted by the Board in
Bakery and Confectionary Workers International Union of Amerinca Local
Unions 24 and 119 (Food Employers Council, Inc.), 216 NLRB 917 (1975),
and represents a view to which he has consistently adhered. See, e.g., his
dissent in Wisconsin River Valley District Council of the United Brotherhood
of Carpenters and Joiners of America AFL-CIO (Skippy Enterprises, Inc.),
218 NLRB 1063 (1975).
1080
THE WASHINGTON POST COMPANY
ment functions. In those cases, such as ABC, where a
supervisor-member crosses a picket line in order to
perform only his regular supervisory functions, in-
cluding the adjustment of grievances, we have drawn
the justifiable inference that union discipline in such
circumstances will have the reasonably foreseeable ef-
fect of adversely affecting the performance by the su-
pervisors of their 8(b)(1)(B) duties.
However, where the known facts indicate that the
supervisor-member has performed a more than mini-
mal amount of rank-and-file work during the em-
ployer-union dispute, we must decline to draw an in-
ference that the supervisor will be coerced in the
performance of his collective-bargaining tasks or
grievance-adjustment tasks. A union has a legitimate
interest in enforcing the obligations of its members to
adhere to the union rules. Where the union has disci-
plined a supervisor-member after that member has
crossed a picket line to perform rank-and-file work
contrary to union rules, it does not follow that the
reasonably foreseeable effect of the union's discipline
of the supervisor-member is to diminish his ability to
perform his 8(b)(1)(B) duties. Rather, it must be in-
ferred, and the probabilities indicate, that the union
discipline will serve to affect adversely and to deter
the supervisor-member's willingness to perform rank-
and-file struck work during an employer-union dis-
pute.
The standard set forth above fully protects em-
ployer rights under Section 8(b)(1)(B), as interpreted
by the Board and the Court in ABC, but refrains from
extending Section 8(b)(1)(B) to the extent found
overly broad by the Court in Florida Power. Turning
now to the case before us, we shall proceed to apply
the applicable standard by inquiring as to whether
the disciplined supervisor-members in this case per-
formed a more than minimal amount of rank-and-file
work during the strike.5
The background facts in this case may be briefly
summarized as follows. The Washington Post Com-
pany, hereinafter the Post, is engaged in the publica-
tion of a daily newspaper, The Washington Post. Re-
spondent, herein also called the Union, has for some
time represented two classifications of composing
room employees, the printers and the machinists. On
October 1, 1975, the Newspaper and Graphic Com-
munications Union, Local No. 6, commenced an eco-
nomic strike at the Post and established picket lines at
the newspaper. On October 6, 1975, Washington
Mailers' Union No. 29 engaged in an economic strike
In light of our conclusion regarding the necessary inquiry for deciding
the lawfulness of union-imposed discipline in cases such as this, it is unnec-
essary to pass on the Administrative Law Judge's finding that "the record
contains no evidence that General Foreman Smith or Assistant General
Foreman Heitmuller performed any Section 8(bXIXB) functions during the
strike or that other supervisors had the authority to perform that function."
at the Post, as did the Graphic Arts Union on Octo-
ber 7, 1975. Thereafter, Respondent directed its mem-
bers not to cross the picket line established by the
Mailers' Union. Among the members of the Respon-
dent who did not initially cross the picket line were
about 45 supervisors, 21 of whom are involved in the
instant proceeding. The Post continued to publish
during the strike, and its mode of operation during
the period of the employer-union dispute is discussed
in more detail below.
On or about December 26, 1975, the Post directed
the composing room supervisors to return to work. Of
the 45 ordered to return-under threat of losing their
supervisory positions for not returning-about 20
agreed to report for work.6
At issue in this case is the lawfulness of the disci-
pline, including fines ranging from $3,987 to $9,036,
imposed by the Union upon those supervisor-mem-
bers who agreed to the Post's demand that they cross
the picket line and return to work. Also at issue is the
"letter of censure" issued by Respondent to supervi-
sor-member Ernest Smith, general foreman of the
composing room, who worked throughout the strike.
Based on our careful examination of the record, it
is clear that the supervisor-members in question per-
formed more than a minimal amount of rank-and-file
work during the strike, and that therefore the com-
plaint must be dismissed in its entirety. An examina-
tion of the Post's operation of its composing room
during the strike leads to this conclusion.
Initially when the strike commenced, only Supervi-
sor-Member Ernest Smith, the general foreman, con-
tinued to work. Accordingly, the Post recruited some
200 employees from other departments to fill in for
the strikers who were absent from the composing
room, and anywhere from 4 to 60 of these employees
were working at one time under the supervision of
Smith. Lawrence Wallace, the Post's vice president
for labor relations, testified that he referred to the
employees filling in as "greenhorns" because the peo-
ple borrowed from the other departments were inex-
perienced in composing room work. According to
Wallace, those filling in included secretaries, supervi-
sors, management people, clerks, and artists.
Also, in order to facilitate operating during the
strike, the Post changed various practices and proce-
dures, such as requiring that all advertising be camera
ready for immediate placement in the newspaper.
The Post also increased the use of a "cold type" sys-
tem rather than the more complicated "hot metal"
system.
According to Wallace, the Post decided to call back
composing room supervisors in order to relieve Smith
who had been working 18 to 20 hours a day and in
6 Apparently, Supervisor-Member Neil Copp had already returned to
work in October. a few days after the strike began.
1081
I) DECISIONS OF NATIONAl. LABOR REI.ATIONS BOARD
addition to allow the supervisors to become familiar
with new machinery that had been added to the com-
posing room. Shortly before as well as during the
strike, the Post purchased new and/or additional
equipment for the composing room, including four
5300 ECRM scanners, an additional APS 400 pho-
totypesetting machine, and a 7200 headsetting ma-
chine. Further, the Post began installing the Harris
system which permitted a newsperson to type mate-
rial directly into the terminal after which it is dis-
played on a screen, edited, and thereafter routed to
the computer. From the computer, the news story is
sent directly to the APS- 400 phototypesetting ma-
chine, thereby eliminating the hot metal process of
setting type for the story. The Post also purchased an
autowire, which captures all news stories from major
wire services, and dataphones, which capture and
transmit all stock exchange information. When the
composing room supervisors returned, with four ex-
ceptions,7 they began "training" on the various new
equipment and also received "training" on existing
equipment and procedures with which they were not
familiar, such as pasteup. Thereafter, the composing
room supervisors in turn trained various "green-
horns." While engaged in "training," the supervisor-
members actually operated the various equipment
and performed the various procedures, the work
product of those operations at times going into the
daily newspaper.
In response to a question as to what work was per-
formed by the returning supervisors, General Fore-
man Smith testified that "they spent between 90 and
95 percent of their time either in training or in a su-
pervisory role." Thus, Smith acknowledged that the
returning supervisor-members spent 5 to 10 percent
of their time performing nonsupervisory rank-and-file
work. However, our inquiry cannot end at this point.
Rather, based on our careful reading of the record, an
analysis of what was referred to as "training" by
Smith is relevant to the determination of the issues in
this case.'
Prior to the strike, according to the Post, there ex-
isted two types of "training" in the composing room.
There was a "formalized" training program which
had been established by contract between the Post
and Respondent. Under this program, the composing
room employees with the most seniority (i.e., referred
to as "priority"), whether journeymen or supervisors,
7The situation regarding Supervisor-Members Tennant, Copp. West, and
Morrison upon their return to work is discussed separately below.
8The returning supervisors here admittedly devoted between 5 and 10
percent of their working time during the strike to the performance of rank-
and-file work. Member Truesdale believes that this constitutes more than a
mere "minimal" amount of such work even without considering the addi-
tional unit work performed by them during the strike under the guise of
"training." Cf. Chicago Typographical Union 'r. 16 (Hamnond Publishers,
Inc.), 216 NLRB 903 (1975).
were first trained on the equipment and thereafter
would in turn train other composing room employees
in order of seniority.9
The Post also had what it characterized as "on-the-
job training," which was conducted by the various
composing room supervisors. However, based on the
testimonies of the witnesses called by the General
Counsel, General Foreman Smith and Assistant Gen-
eral Foreman Heitmuller,' ° it is clear that the so-
called "on-the-job training" consisted basically of the
day-to-day answering of questions, giving materials,
and correcting things in general.''
We find that prior to the strike "training" in the
sense of an employee being taught to use a piece of
new equipment or to conduct a procedure with which
he or she was not familiar was accomplished through
the use of the formalized training procedure. It is not
disputed that under the formalized procedure senior
journeymen would have had the responsibility and
the right to be trained first and thereafter to train
other composing room employees, including supervi-
sors. Thus, based on the practice established between
the Post and Respondent, this type of "training"
clearly constituted rank-and-file work.
The Administrative aw Judge found, and the
General Counsel conceded in his brief to the Admin-
istrative Law Judge, that during the strike, in light of
the addition of new machinery and the inexperience
of the "greenhorns," it became necessary for the re-
turning supervisors to increase their normal "train-
ing" duties. The amount of time spent in "training"
depended on the equipment and/or procedures with
which the supervisor was being made familiar. For
example, the "training" on the 5300 ERCM scanner
lasted about 2 days, the "training" on the APS-400
took 3 days, whereas the "training" of a supervisor-
' Obviously, the employee with the most seniority would first have to be
trained by someone According to Smith. the Post. when new equipment was
introduced, would "start the initial ball rolling" by using a factory represent-
ative or a management official to introduce the equipment. If a management
official was utilized, it was an official rom the production department; i.e.,
someone above the level of the composing room. Smith acknowledged that
factory representatives were present in the composing room during the pe-
nod of the strike. Assistant General Foreman Heitmuller testified that a
factory representative usually did this initial training, but that Owen
McBride, an official in the production department, had also performed this
function.
Based on the foregoing. it is clear that prior to the strike this initial train-
ing on new equipment was not performed by a composing room official.
Rather, composing room employees were introduced to the equipment in
order of seniority.
10 Assistant General Foreman fleitmuller tetified that he would consider
"training" by a composing room supervisor to include that supervisor's
bringing copy to a linotype operator who had 30 or 40 years' experience
running a linotype.
I Over the strenous objections of counsel for Respondent, the Administra-
tive Law Judge permitted Smith to he recalled as a witness on the second day
of the hearing (occurring about I month alter the first day), in order to
clarify his testimony regarding "training" in the composing room at the Post.
However, even this clarification does not alter our conclusion that the "on-
the-job training" served a significantly different purpose than the "formal
training"; i.e. dealing with daily problems rather than teaching employees
about new equipment and procedures.
1082
TIlE WASHING;TON POST COMPANY
member in pasteup procedure lasted about 3 weeks.
Whatever the equipment and procedures as to which
a returning supervisor-member was "trained," Smith
acknowledged that some of the work product of that
"training" ended up in the daily newspaper.
Based on the foregoing, it is clear that what was
characterized at the hearing as the "training" of re-
turning supervisor-members involved the perform-
ance of a substantial amount of rank-and-file work.'2
First, but for the absence-because of the strike of
the senior composing room employees, those senior
employees would have been performing the "train-
ing" that was performed by the returning supervisors.
The Post's changing the format or manner (i.e., from
"formal" to "on-the-job") for conducting what in the
past had been rank-and-file work does not change the
nature of the work nor does it serve to insulate the
supervisors-members of Respondent from union-im-
posed discipline. The crucial factor here is that work
that but for the strike would have been performed by
the senior journeymen was performed by the supervi-
sors. Absent the strike, the type of "training" necessi-
tated by the introduction of new equipment and new
people would have been conducted by journeymen
pursuant to the "formal" training procedure. Inas-
much as Wallace admitted that almost all "green-
horns" were inexperienced in composing room work,
and a substantial amount of new equipment was in-
troduced during the strike (although some of it was
removed after the strike), it follows that the supervi-
sors-members, while "training," were performing
rank-and-file struck work. Second, as heretofore
noted, Smith acknowledged that the supervisors,
while being "trained" in areas in which they had not
previously worked,' produced work products, some
of which appeared in the daily newspaper. Clearly,
the actual producing of a work product for the daily
newspaper was not a supervisory function but rather
was the work normally accomplished by rank-and-file
operating of equipment and performing of proce-
dures.'4 Therefore, as the so-called "training" of re-
12 Most of the supervisors involved herein. except for Smith and Copp,
returned to work between December 26. 1975. and January S. 1976, and they
engaged in various "training" until the strike ended about 6 weeks later on
February 16, 1976.
13 The supervisor-members "trained" not only on the new composing
room equipment but also on existing equipment and procx-edures with which.
because of their place of seniority, they were not familiar. Smith testified that
various supervisors were not experienced with existing equipment and proce-
dures because "their priority was way down low."
In this regard we note that, contrary to our colleague, Member Murphy.
the "cold type" system utilized by the Charging Party dunng the strike ,was
not an "entirely new system." Although its use was increased during the
strike, it had been utilized by the Charging Party since about 1972. Accord-
ing to Smith. the Charging Party had, prior to the stnke, made use or the
"cold type" system for some advertising and special sections, but many su-
pervisors were unfamiliar with it because of their low pnriority.
" In his testimony Smith declined an invitation, offered in a leading ques-
tion, to characterize the work product produced through "training" as only
"incidental" to the "training."
turning supervisor-members constituted work that
absent the strike would have been performed by sen-
ior journeymen: and as the "training" also included
the performance of rank-and-file production work,
the conclusion is inescapable that the returning super-
visor-members were perfotrming a significant amount
of rank-and-file struck work while engaged in "train-
ing."' 5
Although, on the record before us, we cannot
quantify the exact amount of rank-and-file work per-
formed by returning supervisor-members. it cannot
be said that it was a more than minimal amount.
Thus, adding together the 5 to 10 percent of work
characterized by Smith as both nontraining and non-
supervisory with the substantial amount of rank-and-
file work performed while in "training." we find that
the returning supervisor-members engaged in the per-
formance of more than a minimal amount of rank-
and-file work during the period of the employer-
union dispute. Accordingly, Respondent did not vio-
late Section 8(b)(l)(B) by disciplining these supervi-
sor-members, and we shall dismiss that portion of the
complaint which deals with those supervisor-mem-
bers who returned to the composing room to work
during the strike.'6
In regard to the two machinist supervisors. West
and Morrison, we find that the union-imposed disci-
pline directed against them did not violate Section
8(b)(I)(B) of the Act. According to Smith., 7 these two
5 In her partial dissent. Member Murphy states that training is a supervi-
sory function and does not have an "immediate object" of producing a work
product However, she thereby overstates the significance of a training func-
tion and fails to take account of the nature of the "training" In this case.
Although the exercise of a training function may support, to some extent.
a finding of supervisory status, it is not listed as an element of supervision in
Sec. 2( 1 ) of the Act. The Board has frequently found that employees with
training or instructional duties are not supervisors within the meaning of the
Act. See, e.g. Ball Plas.ri- Disulin, 228 NLRB 633 (1977): House of Mosa-
ics, Inc., Subsidiars o/ Thonuls Industries, Inc., 215 NLRB 704 (1974) High-
land Telephone ('xperatve, Inc, 192 NLRB 1057 (1971). As the Board noted
in Ball Plasrics, "the training ,of nevw employees" is "not necessarily disposi-
tive of the issue of supersisor) status, inasmuch as [this duty is] often asscci-
ated with either 'leadmen' or supervisory personnel" (228 NlRB 633). Also,
in House of Mosaics, the Board adopted the Administrative aw Judge's
finding that "having the responsibility of training new employees does not
invest Iemployees] with supervisory authority within the meaning of the Act"
(215 NLRB 712). Thus, contrary to Member Murphy, training has not been
recognized by the Board as necessarily has ing the "essential character" of a
supervisor function. In this case. where senior journeymen had long per-
formed a training function and that function was part of their normal duties.
the superisors-members' perfirmance of this function during the strike con-
stituted the performance of rank-and-file work.
Further, regardless of what may normally be the "immediate object" of
training, it is significant that the work labeled as "training" herein had at
least during the strike an Ihj,t i of producing rnk-and-file work and was
clearly not limited to instructing employees as to production procedures.
Therefore, while "training," the supervisors-members were directing their
efforts, at least in part, towards producing a work product that absent the
strike would have resulted from rank-and-file production work.
51 The following sutpervisrs-members are covered by the foregoing discus-
sion: Alvaro, Black, Bolen., (ollett, Frank, Hall, Heitmuller, astinger, Mar-
ciniak. Phillips. Rinaldi. Roediger. Silva. Sweeney. Wienbaum., Westberg,
and Williams
'" West and Morrison lid not testlif at the hearing in this case.
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors would normally, before the strike, spend
90 percent of their time following maintenance sched-
ules and keeping machinery running; i.e., rank-and-
file work. Smith estimated that West and Morrison
spent only 10 percent of their time in a supervisory
capacity. Upon returning to work during the strike,
the machinist supervisors, according to Smith, spent
substantially all of their time "training" with the fac-
tory representatives on the new equipment and pre-
paring a training program to be utilized for other ma-
chinists after the strike was over. As with the other
supervisor-members involved herein, we find that the
"training" engaged by West and Morrison included
the performance of more than a minimal amount of
rank-and-file work. Further, Smith's testimony sug-
gests that the two machinist supervisors did not per-
form any regular supervisory functions during the
strike. Based on the foregoing, we shall dismiss the
complaint as to West and Morrison.
During the strike Supervisor-Member John Ten-
nant returned to his position as night supervisor in
the data processing organization. Tennant testified
that upon returning to work he reassumed his regular
responsibilities. Those responsibilities included over-
seeing the keypunch and computer operations and
the performance of "some of the work." Tennant's
description of his regular duties indicates that they
involved the performance of more than a minimal
amount of rank-and-file work. Similarly, Supervisor-
Member Neil Copp returned to his position as man-
ager of publishing systems and programming, a part
of the data processing organization. Copp testified
that his duties during the strike remained the same as
they had been prior to the strike.' 8 From Copp's de-
scription of his duties, it is clear that they involved
the performance of more than a minimal amount of
rank-and-file work. Accordingly, as both Tennant
and Copp performed more than a minimal amount of
rank-and-file work during the strike, Respondent's
subsequent discipline of these two supervisors-mem-
bers did not violate Section 8(b)(l)(B) of the Act.
Therefore, we shall dismiss the complaint as to them.
Finally, in regard to General Foreman Smith, he
acknowledged that during the strike "training was
much heavier on my schedule than it had been before
the strike." As our examination of such "training"
indicates that it included more than a minimal
amount of rank-and-file work, we find that Respon-
dent's "letter of Censure" directed against Smith did
is Copp testified that he would do "analysis, system design, equipment
selection and development programs and supervise the people who write the
programs and supervise the system to make sure those programs are func-
tioning properly within the system...."
On cross-examination Copp characterized his duties to be essentially de-
signing programs.
not violate Section 8(b)(1)(B) of the Act, and we shall
dismiss the complaint as to Smith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
CHAIRMAN FANNING, concurring:
Although I agree with my colleagues in the major-
ity that the complaint must be dismissed in its en-
tirety, I differ with their rationale in the following
respect. 19
In this case, the Board is called upon to determine
the lawfulness of union-imposed discipline directed
against supervisor-members who worked during a
lawful strike and engaged in both supervisory and
rank-and-file functions. When the focus of our in-
quiry-in cases such as this one-is on what work
was performed by the supervisor-member during the
strike, I would find that the performance of any rank-
and-file work by the supervisor-member places subse-
quent union discipline of the supervisor-member out-
side the ambit of Section 8(b)(1)(B) of the Act. The
performance of any rank-and-file function by a super-
visor-member during a strike is a legitimate concern
of a union and subsequent discipline for the supervi-
sor-member's having thereby worked in violation of
union rules cannot violate Section 8(b)(1)(B) of the
Act.
I have no quarrel whatever with the analysis of my
colleagues in the majority regarding what was re-
ferred to as "training" in this case. Clearly, such
"training" included the performance of work that but
for the strike would have been performed by senior
journeymen. Further, the "training" produced a work
product that absent the strike would have resulted
from rank-and-file production work. Thus, the "train-
ing" engaged in by supervisor-members constituted,
in reality, the performance of a significant amount of
rank-and-file composing room work.
However, my colleagues' need to examine the so-
called "training" in this case suggests to me that their
"more than minimal" standard requires a greater
than justified showing of rank-and-file work by super-
visor-members during a strike before subsequent
union-imposed discipline is beyond the reach of Sec-
tion 8(b)(l)(B). General Foreman Smith, testifying on
behalf of the General Counsel, stated that during the
1 I cannot agree with my colleagues that the only relevant inquiry in cases
such as this-involving union-imposed discipline of supervisor-members-is
what work was performed during the strike by the supervisor-members.
However, for the purpose of deciding this case. I agree that it is unnecessary
to pass upon the Administrative Law Judge's finding that the supervisor-
members herein either did not perform or had no authority to engage in
8(bX 1)(B) functions on behalf of the Charging Party.
1084
THE WASHINGTON POST COMPANY
strike the composing room supervisor-members
"spent between 90 and 95 percent of their time either
in training or in a supervisory role." Thus, apart from
what was called "training" in this case, the compos-
ing room supervisors, according to Smith, spent 5-10
percent of their time engaged in nontraining, nonsu-
pervisory, rank-and-file production work. Therefore,
as to these supervisor-members, our inquiry need not
go beyond this acknowledgment by Smith. I would
find-even relying solely on the supervisor-members
having spent 5-10 percent of their time engaged in
rank-and-file functions-that Respondent's subse-
quent discipline, including fines, of these supervisor-
members for having violated union rules did not vio-
late Section 8(b)(l)(B) of the Act.20
Based on the foregoing, I agree with my colleagues
in the majority that the complaint must be dismissed
in its entirety.
MEMBER JENKINS, concurring in part, dissenting in
part:
I disagree with my colleagues' dismissal of the
8(b)(1)(B) allegations as to Supervisor-Members John
Tennant and Neil Copp. In their cases I would find
that Respondent violated Section 8(b)(l)(B) of the
Act because it fined them for crossing its picket line
during a strike to perform the same duties which they
had performed before the strike, albeit these duties
included the performance of more than a minimal
amount of rank-and-file work.
Essentially, my disagreement with my colleagues in
the majority involves the appropriate legal standard
to be applied in this case and not their interpretation
of the record evidence. In accordance with earlier de-
cisions of the Board, I find irrelevant the mere fact
that supervisor-members perform more than a mini-
mal amount of rank-and-file work, unless the return
to work during a strike involves an increase in their
normal share of such work.2 ' If a supervisor performs
the same rank-and-file duties both before and during
the strike, I fail to see how such work can be consid-
ered struck work. The work never did belong to the
unit employees. Compliance with a union's demand
that supervisor-members not return to work during a
strike, where a part of that individual's function in-
volves the performance of rank-and-file work in addi-
0 I agree with my colleagues' discussion of the functions performed during
the strike by the two machinist supervisors, he two data processing supervi-
sors, and General Foreman Smith. Therefore, as each of the aforementioned
supervisors-members without doubt performed rank-and-file work during
the strike and and were thereafter disciplined for having engaged in such
work, I concur in dismissing the complaint as to them.
21 Warehouse Union Local 6, International Longshoremen's Warehousemen's
Union (Associated Food Stores, Inc.). 220 NLRB 809 (1975); Wisconsin River
Valley District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL CIO (Skippy Enterprises, Inc.), 218 NLRB 1063 (1975); Nes
Mexico District Council of Carpenters and Joiners of Anerica (A S. Horner,
Inc.), 177 NLRB 500 (1969).
tion to the performance of supervisory duties, never-
theless deprives the employer "of the services of its
selected representative for the purposes of collective
bargaining or the adjustment of grievances," 2 2 and
thus restrains and coerces the employer in the exer-
cise of its statutorily protected rights.
Accordingly, since Tennant and Copp resumed
their normal duties during the strike and did not aug-
ment the amount of rank-and-file work during the
strike, I would find that to avoid the disciplinary mea-
sures taken against them they would have had to re-
frain from performing their jobs as usual, and thus
would have deprived the Employer of its selected bar-
gaining and grievance-handling representatives on
the job. Respondent's coercion of them to compel
such conduct violated Section 8(b)(1)(B) of the Act.
However, when a supervisor-member increases the
amount of rank-and-file work during a strike, he is no
longer assuring only the availability of his bargaining
and grievance adjustment services on the job to the
employer, but he has further begun performing struck
work which would under normal circumstances be
performed by rank-and-file employees. The record
amply demonstrates that supervisors other than Ten-
nant and Copp performed a greater amount of rank-
and-file work during the strike than before the strike.
To this extent such conduct undermines legitimate in-
ternal union interests. Union discipline of such con-
duct by a member is beyond the reach of Section
8(b)(1)(B) of the Act. Accordingly, I join in dismiss-
ing the allegations as to the supervisors other than
Tennant and Copp.
I do not believe that the Supreme Court's latest
decision in this area requires any different result. See
American Broadcasting Company v. Writers Guild of
America, West, Inc., et al., 437 U.S. 411.
MEMBER MURPHY, concurring in part, dissenting in
part:
During the strike, approximately 20 supervisors
who were members of the Union returned to work
and spent 90 to 95 percent of their time either train-
ing employees who had been brought in from non-
struck departments or who had been performing
other supervisory tasks. The Union fined these super-
visors for crossing the picket line and returning to
work. Despite the obvious fact that training is a su-
pervisory function,2 3 my colleagues in the majority
conclude that the training here was rank-and-file
work, and they therefore refuse to find that Respon-
dent Union violated Section 8(b)(l)(B) by disciplining
2 A. S. Horner. Inc., supra at 502.
23Cf W B Johnson Properties. dbla Olympic Villas, 241 NLRB 358
(1979). ALD, sec. III. D (re Olden Hall): Dependable Lists, Inc., 239 NLRB
1304 (1979). ALJD. sec. Ill, B.
1085
I)t<'lSI()NS OF' NATIONA. LABOR RELATIONS BOARD
the supervisors for perfiorming such work. I cannot
agree with this conclusion.
Training clearly does not have the immediate ob-
ject of producing a work product but rather of pre-
paring employees to engage in effective production.
In this sense, it is a supervisory function. That man-
agement may at certain times delegate this function
to rank-and-file employees does not change its essen-
tial character or require a finding that once so dele-
gated training must remain classified as rank-and-file
work even when done by supervisors. This is particu-
larly true here, where an entirely new system of "cold
type" was introduced during the strike.2 4 None of the
striking rank-and-file employees had ever performed
or trained other employees on this system. In these
circumstances, I simply cannot see how my col-
leagues can seriously argue that the training on the
"cold type" system was rank-and-file struck work.
For these reasons I would find unlawful Respon-
dent Union's fining and otherwise disciplining super-
visor-members for performing training functions.
Further, in agreement with Member Jenkins, I would
find that Supervisors Tennant and Copp were unlaw-
fully fined inasmuch as the amount of rank-and-file
work done by them did not increase during the strike.
Finally, I agree with my colleagues in the majority
that the fining of Supervisors West and Morrison,
who did 90 percent rank-and-file work before the
strike and 100 percent during, was not unlawful be-
cause of the increase in the amount of rank-and-file
work done by them.
24 Although some sections o!i the paper had been produced with the "cold
type" system prior to the strike, the daily news content had been produced
on the "hot metal" system. and the 600() striking composing room employees
were trained only on the "hot metal" system rhus, the "cold type" system
was entirely new to the composing room employees.
DECISION
SIAIEMENTr o1 Illt CASE
IVAR H. PII!RSON, Administrative Law Judge: The hear-
ing in this case was held on November 30, 1976, and Janu-
ary 5, 1977, in Washington, D.C., upon the complaint is-
sued by the Regional Director for Region 5 on September
2, which in turn was based upon a charge filed by the
Washington Post Company, herein called the Post, against
Columbia Typographical Union No. 101, International Ty-
pographical Union of North America, AFI. CIO. herein
referred to as Respondent or the Union. Briefly stated, the
collective-bargaining agreement between the Post and the
Union, effective from October 1, 1973, through September
30, 1976, provided that Respondent reserved the right to
direct its members not to cross a picket line authorized and
established by Washington Mailers Union No. 29, herein
called the Mailers, and that since on or about October 6,
1975, through February 16, 1976, the Mailers were engaged
in picketing the premises of' the Post. During the course of
the picketing, 22 individuals employed by the Post as super-
visors, crossed the picket lines and performed services for
the Post. On or about January 8, 1976, intraunion charges
were filed, and proceedings were subsequently instituted
against those individuals for having crossed the picket lines.
On or about May 17 the Union imposed fines in amounts
varying from $3,987 to $9,036 against 21 of the individuals,
for a grand total of' $118,353.50. On or about May 16 Re-
spondent issued a "Letter of Censure" to be posted by Re-
spondent for a period of 6 months to Ernest T. Smith be-
cause he crossed the Mailers' picket line. By the foregoing
acts and conduct, the complaint alleged that Respondent
had engaged in unfair labor practices as defined in Section
8(b)(1)(B) of the Act.
Upon the entire record in the case and after consider-
ation of' the briefs filed with me on or about March 10 by
counsel for the Post, Respondent and the General Counsel,
I make the following:
FitNtI)IN(iS (). FA('I
1. JRIS)l('DI(0N
The Post, a District of Columbia corporation, maintains
its principal place of business in the District of Columbia,
where it is engaged in the publication of a daily newspaper,
The Washington Post. During the 12 months preceding is-
suance of the complaint, the Post received gross revenues
exceeding $200,000 and regularly printed advertisements of
products which are nationally advertised and sold in inter-
state commerce: it also published nationally syndicated ar-
ticles and news stories and shipped newspapers to points
outside the District of('Columbia. At all times material, the
Post has been an employer as defined in Section 2(2) of the
Act and engaged in operations affecting commerce as de-
fined in Section 2(6) and (7) of the Act. At all times mate-
rial, Respondent and the Mailers have been labor organiza-
tions within the meaning of Section 2(5) of the Act. The
complaint alleged that the 22 named individuals were su-
pervisors within the meaning of Section 2(11) of the Act
over various composing room employees and, as such, had
the authority to adjust grievances as representatives of the
Post. Respondent denies this allegation and also denies that
it had executed a series of collective-bargaining agreements
covering the composing room employees of the Post.
It I l l A.L.GED UNFAIR ABOR PRAC'It'ES
A. The bl.s
Respondent for some time has been the collective-bar-
gaining representative of two classifications of composing
room employees, the printers and machinists. Printers as-
semble and prepare type and operate the typesetting equip-
ment, while machinists maintain and repair the various
pieces of equipment in the composing room. Commencing
on October 1, 1975, Newspaper and Graphic Communica-
tions Union, Local No. 6, herein called the Pressmen, en-
gaged in an economic strike at the Post and thereafter es-
tablished picket lines at the newspaper. At first these picket
lines were honored by substantially all members of each of
1086
THE WASHINGTON POST (COMPANY'
the labor organizations representing employees of the Post,
including Respondent.' On October 6 the Mailers Union
engaged in an economic strike at the Post, as did Respon-
dent on October 7. Thereafter, in accordance with a provi-
sion in the collective-bargaining agreement with the Post.
Respondent directed its members not to cross the Mailers'
picket line. Among those members of Respondent who did
not at first cross the picket line were the 21 alleged supervi-
sors named in the complaint. The general freman of the
composing room, Ernest Smith, also named in the com-
plaint, continued to work throughout the strike.
It is clear that the foregoing labor disputes had a substan-
tial impact on the Post's publication schedule. However, on
October 3 production resumed with the publication of a 24-
page newspaper. Primarily, the composing room work, for-
merly performed by some 600 employees represented by
Respondent, was now being performed by inexperienced
employees not familiar with the composing room operation.
consisting of supervisors and managers from other depart-
ments, as well as secretaries, clerks, and artists. This pool
consisted of approximately 200 employees, but the maxi-
mum that was ever used on a shift was between 50 and 65.
The newspaper was confronted with a variety of prob-
lems by having to utilize inexperienced "greenhorns" in the
composing room. These problems were augmented by the
unavailability of the "greenhorns" for the duration of a par-
ticular shift. This unavailability came about because they
first had to discharge all or at least part of their normal
duties in their respective departments before reporting to
the composing room. In practice, therefore, it would not be
unusual for three different "greenhorns" to work on the
same job at different intervals during a particular shift.
While the use of the "greenhorns" played a significant
part in the newspaper's successful efforts to continue daily
publication, the post also made changes in previously estab-
lished practices and procedures. Thus, it required that all
advertising be camera ready; advertisements had to be pre-
pared and submitted by advertisers as a finished product.
ready for immediate placement in the paper. By this means.
the Post was able to make a significant reduction in its
workload inasmuch as advertising accounted for 65 percent
of the total newspaper. In addition, the Post reduced its
workload by having all early run supplements produced by
concerns outside the Post. These supplements included the
Food, Travel, Show, Living, Book World, Potomac. and
T.V. sections. In consequence, the composing room was re-
lieved of the responsibility of producing all but the daily
news content.
A further factor which allowed the Post to continue pub-
lishing was the conversion from a more complicated "hot
metal" system to a less complex "cold type" system. The
"hot metal" system requires the utilization of metal slugs
which are assembled into a form which then makes an im-
pression on paper. thus creating the product The "cold
type" system simply requires the transmission of typewrit-
ten copy through a scanner which then codes the material
so that it can be fed into a phototype setting machine. This
machine then generates character images upon a piece of
I There are approximate[ 12 labor organizations representing emplosees
of the newspaper
paper after which the paper is waxed and pasted into posi-
tion. thereby creating the final product. Although prior to
the strike certain sections of the paper had been produced
hb use of the "cold type" sstem, the daily news content
had been produced on the "hot metal" system. However,
when the strike began it become clear that the inexperi-
enced "greenhorns" would not he able to work with the
"hot metal" s stem. Therefore.. use of a "cold tpe" system
was imminent, especially in view of the fact that man of
the early run sections previously produced in the "cold
type" system had been contracted out.
During this period the Post also increased the size of its
"cold tpe" sstem. About 3 weeks before the strike, the
newspaper purchased certain new equipment. As a result of
the decreased workload and the increase in "cold type" ca-
pacitN, the Post was publishing a full sized newspaper by
the end of November or the beginning of December.
ShortlN after reaching full production, it appeared that the
labor dispute with Respondent was near an end, inasmuch
as the Post had reached agreement with the Printing Spe-
cialties Union, I.ocal 449. It was anticipated that this settle-
ment would encourage other unions to also settle their dis-
putes. However, the possibility of the return of
approximately 600 composing room employees presented a
further problem. inasmuch as these employees were trained
and expert on the "hot metal" system. Although gradual
conversion to a "cold type" system was imminent, the strike
situation necessitated immediate conversion. Thus, the Post
was confronted with the fact that all of the composing room
employees would be returning to a system with which they
were not familiar.
In addition, there existed a crisis concerning supervision.
When Respondent honored the picket line, the newspaper
was deprived of its composing room supervisors with the
exception of General Foreman Smith. He was the only ex-
perienced composing room supervisor, and as a result it was
necessary for him to work 18 or 20 hours a day. He was not
onlN responsible for the overall operations of the composing
room, including supervising the 55 to 60 "greenhorns," but
he also attended numerous management meetings. In an
effort to solve these problems, the Post decided on Decem-
ber 26 to call the composing room supervisors back to
work. his would permit the supervisors to resume their
normal supervisory functions, thereby relieving Smith, and
it would also allow the supervisors to become familiar with
the new machinery so that when the printers returned the
operation of the newspaper would not be drasticall 3 im-
paired.
Following this decision, Smith called each of the 45 full-
time composing room supervisors but only 19 agreed to
return. In addition to Smith. Assistant (;eneral Foreman
Thomas Heitmuller returned as did nine das supervisors.
Four night-shift supervisors returned and so did three from
the 8:45 shift. Finally, two machinists supervisors returned.
As we have previously noted, when the composing room
supervisors returned, the Post was producing a full sized
paper. Hlowever. becaluse of the new "cold type" system. it
was necessary lfor the supervisors (other than the two ma-
chinist supervisors) to become familiar with the equipment
so that the, could properly supervise the "greenhorns" as
well as the printers wihen the, returned.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The scheduled training consisted of familiarizing the in-
dividuals with various pieces of equipment over a period of
some 2 weeks. After receiving this training, they utilized
these skills in discharging their normal duties of on-the-job
supervision of the "greenhorns." Although the training took
the form of on-the-job training and, to some extent, in-
volved the actual operation of various pieces of equipment,
this function was a normal part of the supervisor's duties
before, during, and after the strike.
Prior to the strike, however, there existed, in addition to
this on-the-job training, a "formalized" training program
which had been established by contract. The determination
as to the type of training to be conducted in this program
had been made by a committee consisting of two represen-
tatives of the Union and two representatives of manage-
ment. When such a decision was made, the program pri-
marily consisted of the training of journeymen instructors
by either management or factory representatives. After re-
ceiving this training, the journeymen instructors would then
train other composing room employees in order of senior-
ity. However, during the strike the formalized training pro-
gram was canceled due to the fact that the collective-bar-
gaining agreement was suspended. It therefore became
necessary, in view of the new machinery and the inexperi-
ence of the "greenhorns," for the supervisors to increase
their normal training duties.
Since Smith was the only supervisor present during the
entire strike period, his duties remained the same as they
were before the strike. Smith is the Post's primary repre-
sentative in the composing room, with complete authority
and control over its operation which includes scheduling,
purchasing, and acting as the representative of the newspa-
per in the initial stage of the formal grievance procedure.
Because of the introduction of the "cold type" system and
the use of inexperienced personnel, Smith's training func-
tion increased.
When Assistant General Foreman Heitmuller returned
he was initially brought up to date on the new machines
and learned how they operated. This period lasted about 10
days to 2 weeks and consisted of his observing the operation
about 30 to 40 percent of the time. After learning the opera-
tion of the new equipment, Heitmuller resumed his normal
duties, including supervising others in the proper use of the
machines. His normal duties were essentially the same as
those of Smith, inasmuch as he was in charge of the com-
posing room when Smith was absent. Part of his duties were
to handle employee complaints which may have resulted in
the filing of a formal grievance.
B. Contentions and Conclusions
Counsel for the General Counsel points out that inas-
much as Respondent did not call Lny witnesses, credibility
is not an issue, and he argues that the facts establish that by
imposing discipline upon the 22 supervisors Respondent
violated Section 8(b)(l)(B) of the Act.2 He further contends
that the Board, in interpreting this section, has established
Sec. 8(bXIXB) provides that it shall be an unfair labor practice for a
labor organization or its agents "(I) to restrain or coerce ... (B)an employer
in the selection of his representatives for the put pose of collective bargaining
or the adjustment of grievances."
that the term "representatives for the purposes of collective
bargaining or the adjustment of grievances" must be
broadly construed, and that the Board has consistently held
that all persons who are supervisors within the meaning of
Section 2(11) of the Act fall within the protection of this
section "irrespective of whether the supervisor adjusts
grievances." It is his position that inasmuch as Respondent
"has stipulated that the individuals specified in the com-
plaint are supervisors within the meaning of Section 2(11)
of the Act, it follows axiomatically that these supervisors
are within the protection of 8(b)(l)(B)." He further con-
tends that the rationale "underlying the conclusion that a
supervisor within the meaning of Section 2(1 1) of the Act is
a grievance adjuster within the meaning of Section
8(b)(1)(B) is particularly applicable to the present fact situ-
ation." In support of this view, he points out that the super-
visors here involved were engaged in day-to-day supervi-
sion of a "heterogeneous group of inexperienced
employees," and that the likelihood of "interpersonal con-
flict and breakdown in communication in such a situation
was enormous." Accordingly, he submits that the protec-
tion afforded grievance adjusters by Section 8(b)(1)(B) must
encompass the supervisors involved in this case. Moreover,
he argues that while the present supervisors are entitled to
the protection of Section 8(b)(l)(B) because of their status
as supervisors, it is not necessary to rely solely on this prin-
ciple, inasmuch as it is clear that the supervisors here in-
volved do, in fact, have authority to adjust grievances. He
points out that Smith was the representative of manage-
ment in the composing room at the initial step of the con-
tractual grievance procedure. With respect to other supervi-
sors, there is no dispute that they deal with individual
complaints which might turn into formal grievances.
Counsel for the General Counsel points out that the Su-
preme Court has held that a union does not violate the Act
by disciplining supervisors-members for performing solely
rank-and-file work. He states, however, that such a situ-
ation does not exist in this case since the supervisors in-
volved returned to work and assumed their normal supervi-
sory duties which involved only a minimal amount of rank-
and-file work. He points out that in such cases the Board
has consistently held that by disciplining supervisors who
perform only a minimal amount of rank-and-file work, the
union violates Section 8(b)(l)(B) of the Act.3 Citing Chicago
Typographical Union No. 16 (Hammond Publishers, Inc.),
216 NLRB 903 (1975), counsel for the General Counsel
states that the Board, in explaining this standard of "a
minimal amount of work," has established that the analysis
must be made in terms of the duties the supervisors perform
during the strike as compared with their prestrike duties.
He notes that Smith was the only composing room supervi-
sor who remained on duty during the strike, and that the
evidence is undisputed that he performed his normal duties
as general foreman during this period, in view of the fact
that Respondent produced no evidence that he performed
In support, among other decisions. he cites Glaziers and Glass Workers
Local Union No. 1i21 International Brotherhood of Painters and Allied
Trades, AFL-CIO (Glass Management Association), 221 NLRB 509 (1975),
and Warehouse lUnion Local 6 International Longshoremen's and Warehouse-
men's Union (A Tsoated Fosod Stores. In,1, 220 NLRB 809 11975).
1088
THE WASHINGTON POST COMPANY
rank-and-file work. Counsel for the General Counsel also
notes that there is no dispute that Heitmuller and the 16
composing room supervisors who returned performed their
normal duties which involved a small amount of unit work
which was incidental to their normal supervisory training
function. But, he points out, this occurred before, during,
and after the strike. He further notes that this unit work
amounted to only approximately 5 to 10 percent of the du-
ties of the supervisors. In addition, he calls attention to the
fact that the normal training duties of the supervisors in-
creased during the strike but notes that Respondent pre-
sented no evidence to refute the testimony that such train-
ing was part of the normal duties of a supervisor. In
addition to the foregoing, counsel for the General Counsel
states that the record "clearly demonstrates that there was
no need for the supervisors to perform rank-and-file work,"
inasmuch as through a combination of using "greenhorns"
to operate the "cold type" system and subcontracting more
than 65 percent of the work, the Post was able to publish a
full sized newspaper by the end of November. Pointing to
the fact that the supervisors did not begin to return to work
until late December and early January, counsel for the
General Counsel states that "the incongruousness of the
mere suggestions that they performed rank-and-file work is
patent."
Counsel for the General Counsel notes that in Hammond
Publishers, supra, which is factually similar to the present
proceeding, the Board found that the supervisor involved
had done only a "minimal amount of unit work." Pointing
to the fact that in the present case there were at most only
nine supervisors for as many as 65 "greenhorns," counsel
argues that it is "therefore evident that the circumstances
surrounding the instant case dictate that the individuals in-
volved spent the overwhelming portion of their time super-
vising." With respect to the two machinists who returned to
their normal duties, he points out that as working supervi-
sors their duties involved a higher percentage of unit work
than in the case of other supervisors. Referring to Ware-
house Union Local 6, 220 NLRB 809 (1975), he argues that
as long as their normal duties were not augmented during
the strike, the Union was not free to discipline them. More-
over, he calls attention to the fact that Respondent did not
present any evidence that the duties of these two individ-
uals were in any way augmented during the strike, which
leads "inescapably to the conclusion that they continued to
perform their normal duties during the strike." Counsel
concludes that inasmuch as it is "clear that the individuals
involved herein are supervisors within the meaning of Sec-
tion 2(1 1) of the Act and are grievance adjusters within the
meaning of Section 8(b)(l)(B) of the Act," it necessarily
follows that by imposing discipline upon these supervisors
who returned to resume their normal duties, Respondent
violated the Act.
Counsel for the Post, in their brief, include a helpful dis-
cussion of the development of Board decisions regarding
fines imposed upon supervisors by their union following the
decision of the United States Supreme Court in the Florida
Power & Light Company v. International Brotherhood of
Electrical Workers, Local 641, et al., case, 417 U.S. 790
(1974). They point out that prior to the decision in that
case, the position of the Board "can be safely characterized
as forbidding union discipline of supervisors for perform-
ance of rank-and-file work during strikes." They add that
the "use of supervisors to perform unit work not previously
done by them was viewed as a reasonable management ex-
pectation of loyalty from its representatives which was
within the protection of Section 8(bXI)(B)." They contend
that in Florida Power the Court "had the purpose of limit-
ing the view that virtually any work done by supervisors
during a work stoppage was in management's interest and,
consequently, protected by Section 8(bXIXB)." In support,
they point to the statement in the Court's decision that dur-
ing the strike "many of the supervisors who were union
members crossed the picket lines maintained at nearly all
the company's operation facilities, and performed rank-
and-file work normally performed by the striking nonsuper-
visory employees." From this, they argue that "it seems
clear the Court was disapproving the Board's blanket posi-
tion that during a work stoppage supervisors could cross
picket lines, do unit work not previously performed by
them, and yet maintain the protections of Section
8(b)( I)(B)."
Counsel for the Post point out that these supervisors were
fined by the union after internal union hearings were held;
and they state that "presumably" witnesses "competent to
inform union officials regarding what increased rank-and-
file work the supervisors were supposedly doing," were
heard. However, in the present case the Union "provides no
witnesses to support its claim that the supervisors were
doing more rank-and-file work during the strike." The ab-
sence of such union evidence, it is stated, "seems highly
unusual given the number of supervisors involved." They
suggest that the instant case seems "strikingly similar" to
the Hammond Publishers case, supra, where my colleague
Judge Stone stated that he was "persuaded that the totality
of the evidence reveals that it made no difference to Re-
spondent whether [the supervisors there involved were] en-
gaged in bargaining unit work or supervisory work. The
totality of facts persuaded that the Respondent did not
want any union member (supervisor or not) working for the
Employer." It should be noted, however, that the Board
reversed Judge Stone and, in so doing, stated that it did not
read the Court's decision in Florida Power "as turning on a
determination of the motivation behind a union's act of
discipline, but rather on a determination of the reasonable
effect of that discipline on the supervisor's activities as an
8(b)(1)(B) representative." The Board majority went on to
state that it did not believe that the acts of discipline im-
posed by the union violated Section 8(bX)(IXB) despite the
fact that the supervisors there involved "may have per-
formed a minimal amount of rank-and-file work," and that
in its view of Florida Power, "it makes no difference
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 he is disciplined after having per-
formed substantially only supervisory functions and only a
minimal amount of what might arguably be called rank-
and-file struck work during a work stoppage."
In their brief, counsel for the Post analyze the various
cases decided by the Board involving Section 8(b)(l)(B)
and, based upon that analysis, come to the conclusion that
"the elements of a Section 8(b)(I)(B) violation in this case
are: () union discipline during a strike (2) of an employee
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing more than a minimal amount of supervisory work
which includes contact with employees engendering com-
plaint resolution (3) where the Act. They contend that un-
der the "visual application of the supervisor has not suh-
stantially increased his prestrike proportion of unit work."
Counsel argue that in the present case there is no dispute
about the first element and, moreover, Respondent stipu-
lated that the individuals involved in the complaint were
supervisors within the meaning of the Act. They contend
that under the "usual application of the reservoir doctrine,
supervisory status itself confers representative status, and
thus satisfies the second element." They also point out that
the record contains independent evidence of supervisory
status through each supervisor's position of hearing initial
complaints from employees they direct. Although in most
cases these complaints are not part of the formal grievance
procedure, they assert that they are "independently suffi-
cient to establish these supervisors' representative status,"
and that the Post "has every right to rely on these supervi-
sors as its front line representatives with the regular em-
ployees."
Counsel then state that "the sole remaining issue is
whether the supervisor's minimal prestrike performance of
rank-and-file work was substantially the same during the
strike." The position is that on this record there can be little
doubt that there was no substantial increase in the amount
of rank-and-file work performed by any of these supervi-
sors, pointing out that this is not the case where the super-
visors took over production responsibilities as usually prac-
ticed in the department. Instead, approximately 200
employees from other departments, referred to as the
"greenhorns," performed the considerably lessened produc-
tion necessary in a composing room which had been
"stripped down" to handling only news copy, which com-
prised approximately 35 percent of the work usually done
in the composing room. Moreover, other production alter-
natives, such as "cold type" processes and other new equip-
ment, reduced the work necessary to produce an edition of'
the newspaper. By these means, counsel state that the su-
pervisors were able to direct work as usual rather than pro-
duce it directly, but that their hours of work did increase in
many instances in order to accommodate the increased
training needs and managerial problems inherent in operat-
ing with "greenhorns." Counsel state that the record reflects
that any minimal rank-and-file work done by the supervi-
sors before the strike was not increased during the strike.
There is no dispute that General Foreman Smith continued
to perform his customary duties during and after the strike,
although it was necessary for him to work longer hours by
reason of the absence of other supervisors. Heitmuller and
other supervisors in the composing room returned to their
same jobs after honoring the picket lines for a time. They
underwent a period of retraining by reason of the new
equipment and procedures established by the Post in the
composing room during their absence. After completing
training, these supervisors continued with their usual prac-
tice of directing work, training other individuals, and re-
ceiving employee complaints. Accordingly, counsel assert
that the record does not indicate that these employees were
doing any more rank-and-file work during the strike than
the minimal amount they performed before the strike. Like-
wise, counsel point out that Tennant and Copp returned to
their same positions outside the composing room, and no
evidence indicates that either of them performed more
rank-and-file work during the strike than the minimal
amount that they had performed prior to the strike. With
respect to the two supervising machinists, they did more
supervisory work during the strike than theretofore by rea-
son of the fact that it was necessary for them to develop and
apply training programs for equipment repair machinists.
Counsel for the Union, in their able brief, argue that the
complaint must be dismissed because the supervisors were
disciplined for and were, in fact, performing rank-and-file
struck work. In addition, they argue that dismissal of the
complaint is required because counsel for the General
Counsel failed to produce substantial evidence that any su-
pervisor, other than Smith, represented the Post in griev-
ance adjustment or collective bargaining. With respect to
the reprimand given General Foreman Smith, the Union
argues that this did not threaten, coerce, or restrain the
newspaper. Finally, counsel for the Union argue that the
complaint must be dismissed because none of the spervi-
sors responded to the Union's repeated requests that they
appear and answer the charges filed against them.
In my view, the determinative factor is whether counsel
for the General Counsel produced substantial evidence that
the supervisors here involved, other than General Foreman
Smith, represented the Post in grievance adjustment or col-
lective bargaining. Counsel for the General Counsel argue
that the supervisors here involved are entitled to the protec-
tion afforded by Section 8(b)(I)(B) not only because of their
status as supervisors within the meaning of Section 2( 1)
but also because they do, in fact, have authority to adjust
grievances. It is their contention that the evidence demon-
strates that the supervisors, other than General Foreman
Smith, "deal with individual complaints which might
evolve into formal grievances." On the other hand, counsel
for the union assert that evidence that the fined employee
"had authority to adjust grievances as a representative of
the Employer or bargain collectively on his behalf is a sine
qua non of the violation alleged." It is their contention that
under the Court's decision in Florida Power, "mere posses-
sion of grievance adjustment authority is not enough to
make union discipline of its possessor an unfair labor prac-
tice," and that the General Counsel "must show some con-
nection between the discipline and exercise of that author-
ity," and that, in the present case, "he has made no such
showing...." In support, they point out that there is no
evidence that General Foreman Smith exercised grievance
adjustment authority during the strike, and they state that it
is unlikely that he did so since the representatives of the
Union were all absent from work. Moreover, they state that
it is unlikely that Heitmuller did so inasmuch as he could
exercise that authority only in the absence of the general
foreman, and he was unable to remember any instance
when that occurred. In addition, they point out that there is
no evidence that Smith was absent during the strike when
Heitmuller was present, aside from the fact that there is no
showing that Heitmuller adjusted any grievance during that
period. Thus they contend that "the record is barren of any
evidence linking the supervisors' performance of grievance
1090
TIlE WASHINGTON POST (COMPANY
representation functions and the Union's discipline" It is
counsels' position that in the absence of proof that supervi-
sors performed grievance representation functions during
the strike, the holding in Florida Power requires dismissal
inasmuch as the Court there stated that the conclusion is
"inescapable that a union's discipline of one of its members
who is a supervisory employee can constitute a violation"
of Section 8(h)( 1)(B) "only when that discipline may ad-
versely affect the supervisor's conduct in performing the
duties of, and acting in its capacity as, grievance adjustor or
collective bargainer on behalf of the employer." They argue
that inasmuch as counsel for the General Counsel "has
failed to adduce substantial evidence that any of the super-
visors performed these functions during the strike, and/or
that the Union's discipline was aimed at those functions.
the complaint must be dismissed" on the authority of Flor-
ida Power.'
While it may be possible to infer from the positions they
occupied that the supervisors did engage in adjusting griev-
ances, it would appear to me that if that were, in fact, the
case, counsel for the General Counsel could readily have
presented evidence so demonstrating. Indeed, the absence
of such evidence suggests that the supervisors were not
grievance adjustors or collective bargainers. However.
Board decisions would appear to indicate that where super-
visor-members return to work to assume their normal su-
pervisory duties which involve only a minimal amount of
rank-and-file work, by disciplining them the union violates
Section 8(b)( 1 )(B).'
Responsive to the request of counsel for Respondent, re-
ferred to in footnote 4, 1 find, in the light of decisions of the
Board in this area, that simple finding of supervisory status
alone satisfies the provisions of Section 8(b)(l)(B). More-
over. I find that the record contains no evidence that Gen-
eral Foreman Smith or Assistant General Foreman Ileit-
muller performed any Section 8(b)(1)(B) functions during
the strike or that other supervisors had the authority to
perform that function.
There is no dispute with respect to the facts in this case.
which show that the Union levied fines against the supervi-
sors listed in Appendix A in the amounts set opposite their
names and, in addition, issued a letter of censure to General
Foreman Smith, which was te be posted on Respondent's
bulletin board for 6 months. In numerous cases, the Board
4 Counsel recognize that I am ho)und to follow the Board's decisions de-
spite the fact that they may differ from decisions of the courts of appeals.
They suggest that in the event that I conclude that a simple findinding of super-
visory status alone satisfies the provisions of Sec 8hb)( IB). I so specifs and.
in addition, they request that I find that the record contains no evidence of
the performance of Sec. 8hX I XB) functions by Smith and tleitmuller during
the strike or that other supervisors possessed the authority to perform that
function.
Glazier and Glasworlers lisal 1?21 (lass Management A vsociatioin).
221 NLRB 509 (1975): Warehouse Union, Loal 6 (As(ocialed Fo.d Sitore.i,
Inc ), 220 NLRB 809 (1975): Wisconsin Riser allev Dstrict Council of the
United Brotherhood of (arpenters and Joiners of America, .4 F (0 (SAppv
Enterprises, Inc.), 218 N.RB 1063. enfd. 532 F.2d 47 (7th Cir 1976); Raker
and Conf'crtionen Wlorktrrs Iniernational I nion of ,4merica. IA Lwal 'nion 24
and 119 (Fod Emnploers (;Council, Inc . 216 NL.RB 917 (19751: Nee YoerA
Typographical nion No 6. Internatinl Tpographical I 'n,on AF (IC0
(Dadi Racing Form, a subtsdian of Triangle Publications. In t, 216 NRB
896 (1975)