Western Puhlishing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 936 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GAIU Local 13-B, Graphic Arts International
Union (Western Publishing Co., Inc.) and
Robert Greene. Case 3-CB-3304
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 19, 1980, Administrative Law
Judge George Norman issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed an answering brief in opposi-
tion to the exceptions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not restrain and coerce employees
in violation of Section 8(b)(1)(A) of the Act by in-
stituting a ban prohibiting its members from per-
forming mandatory overtime work and by attempt-
ing to enforce this ban through internal union
charges, fines, and lawsuits. The Administrative
Law Judge found that, although the refusal of Re-
spondent's members to work any mandatory over-
time would normally be considered unprotected as
a recurring or intermittent partial strike, such activ-
ity was protected in the circumstances of this case
because it was in response to the Employer's al-
leged unfair labor practices. The Administrative
Law Judge concluded that the members who com-
plied with Respondent's overtime ban could not
lawfully be disciplined by their Employer for en-
gaging in such protected activity and that therefore
Respondent had not restrained or coerced employ-
ees by disciplining its members who had worked
overtime in violation of the ban. Contrary to the
Administrative Law Judge and for the reasons set
forth below, we find that the refusal of Respond-
ent's members to work mandatory overtime was, in
the circumstances of this case, an unprotected par-
tial strike despite the alleged unfair labor practices
of the Employer, and thus Respondent violated
Section 8(b)(1)(A) of the Act by enforcing its over-
time ban.
Background and Facts
Western Publishing Co., Inc.,' is engaged in the
publishing of books and related items at its various
facilities in Missouri, New York, and Wisconsin.
The only facility involved in this case is Western's
Poughkeepsie, New York, plant, where Respond-
ent has represented the janitors, the inplant materi-
al handling equipment drivers, and the production
and service employees in the baling operation and
in the Binderies, Receiving, Shipping, Sheeting,
and Paper Handling Departments since about 1952.
The following facts were stipulated by the par-
ties at the hearing. The most recent collective-bar-
gaining agreement between Western and Respond-
ent expired on May 16, 1978.2 Negotiations for a
new contract began on April 7. About 40 bargain-
ing sessions had been held by the time of the hear-
ing on September 28, 1979, but no new agreement
had been reached.
On July 14, Western gave -day suspensions to
13 employees because of their repeated refusals to
perform mandatory overtime work.3 On August
28, Respondent announced new "Work Rules"
which stated:
1. No overtime shall be worked by any
member of Local 13-B Poughkeepsie
G.A.I.U.
2. Established shift and starting times in effect
August 28, 1978 shall not be changed.
3. Failure to comply with these rules and any
disciplinary action and/or discharge of any
member of Local 13-B for the observance
of these work rules shall be considered an
action taken against all of the members and
will be treated by the Local as a lock out.
By a letter dated August 30, Western notified its
employees that, "Effective immediately, all over-
time is discontinued. This action was taken in your
best interests since it was reported to us that em-
ployees were being threatened with fines should
they work any overtime."4
By a letter dated October 17, Western notified its
employees that it intended to begin scheduling
overtime again that weekend because of the needs
Herein called Western.
2 All dates herein are in 1978, unless otherwise indicated
' The suspensions are being held in abeyance by Western pending the
resolution of this case.
4 The complaint in this case originally alleged that before August 28
the practice at the Poughkeepsie plant was that individual employees de-
cided voluntarily whether or not to work overtime; however, it appears
that his allegation has been dropped, since the factual stipulation entered
into by the parties at the hearing refers consistently to Western's over-
time policy as "compulsory assigned paid overtime" and as "mandatory
overtime" and since no evidence was presented to indicate that accept-
ance of overtime assignments was ever voluntary.
252 NLRB No. 130
936
GAIU IO()CAL 13-H, GRAPHIC ARTS
of one of its largest customers; that although it had
a legal right to discipline employees who refused to
work overtime, it did not intend to do so; but that
it did intend to accomplish the overtime work with
nonunit employees if necessary. On October 21
Western reinstated its mandatory overtime policy,
and after that time at least 17 unit employees who
were members of Respondent performed manda-
tory paid overtime work as assigned.
On October 25, Respondent began taking steps
to discipline these 17 members through internal
union charges, fines, and lawsuits in state court, be-
cause they had violated the overtime ban.5 On Oc-
tober 25, Respondent also filed an unfair labor
practice charge against Western alleging that since
April 1978 Western had failed to bargain in good
faith with Respondent by dealing directly with its
employees, by attempting to bypass Respondent as
the bargaining representative of its employees, and
by entering negotiations with a fixed position
which it would not change during the course of
bargaining.
By a letter dated December 7, Western notified
Respondent that, because negotiations had reached
an impasse, effective December 11 Western would
implement its final contract offer, but that "Due to
your continued threat of fines and discipline against
employees who work in excess of 36-1/4 hours, the
Company is not implementing the change to 37-1/2
hours per week at this time." On December 18, Re-
spondent filed another unfair labor practice charge
against Western alleging that Western had refused
to meet and bargain with Respondent since early
October 1978 and had unilaterally implemented its
last offer on December 11 without a valid impasse
in bargaining.6
On January 3, 1979, Respondent issued a notice
to its members stating:
As of January 3, 1979, the work rules and
overtime ban implemented August 28, 1978,
will be lifted.
However, should the Company make any
change in the 36-1/4 hours work week these
rules will be re-implemented immediately.
The Negotiating Committee
/s/ Tony Sosta.
* The documents included in the parties' stipulation indicate that the
members involved were assessed a penalty of I day's pay plus a $50 fine
for each day of overtime worked, plus attorneys' fees for the state court
action o collect the fines
6 The record reveals that a complaint was issued against Western on
all of the above (a)(5) allegations and that the complaint against Western
was consolidated for hearing with the complaint in this case However.
on September 26, 1979. the complaint against Western vsas severed from
this case based upon a settlement agreement between Western and the
General Counsel The settlement agreement was approved unilaterally by
the Regional Director for Region 3 despite Respondent's failure tI enter
into the settlement as the Charging Party
By a letter dated January 5, 1979, Western notified
its employees and Respondent that the Union's
notice of January 3, 1979, reflected no real change
in the Union's position, that Western still intended
to implement the 37-1/2-hour workweek as soon as
the Union ended its threats of fines and discipline,
and that the net result was that the Union's over-
time ban remained in effect. After some discussion
of this issue at a negotiation meeting on January
16, 1979, Western stated that it intended to imple-
ment the 37-1/2-hour workweek on January 22,
1979, and Respondent replied that the overtime ban
was back on.7 The record does not indicate wheth-
er Western ever actually implemented the 37-1/2-
hour workweek or whether Respondent ever actu-
ally rescinded its January 3, 1979, notice and in-
formed its members that the overtime ban was
back in effect.
The Administrative Law Judge credited the un-
contradicated testimony of Phyllis Goodall, a unit
employee and Respondent's recording secretary,
who was the only witness at the hearing in this
case. Goodall testified that about 320 of Respond-
ent's 490 members attended a special union meeting
held on August 28 to discuss the proposed over-
time ban.8 She testified that during this meeting the
members spoke about the same problems they had
been complaining about at work and at previous
meetings during July and August, when they had
also discussed whether or not they should work
overtime. She stated that the members were upset
about the way negotiations were being dragged out
and about the letters that Western was sending to
employees concerning the negotiations. 9 She also
stated that employees asked "why we were work-
ing the company's overtime when they . . . were
doing different things to the members."° She testi-
fied that there was some mention of imposing fines
on anyone who broke the proposed overtime ban,
but that there was no discussion of the amount of
the fines until a later meeting. At this meeting, the
members voted 220 for and 100 against imposing
an overtime ban, effective immediately.
I The stipulated documents include the minutes of this meeting and of
a negotiation meeting on February 16, 1979. The minutes indicate that
many other issues were also discussed at these meetings, such as job clas-
sification, wage rates, union security, holidays, and several specific fringe
benefits
' The parties stipulated that there were about 50) employees in the
unit
I Respondent's first unfair labor practice charge against Western spe-
cifically alleged that Western "has mounted a massive communication,
campaign directly with its employees designed to circumvent the collec-
five-bargaining representalie of its employees
"' Goodall did not explain what "different things" Western Was doing
to employees
937
DIECISIONS OF NATIONAL L.ABO(R RELATIONS BO()ARI)
Analysis
Section 8(b)(l)(A) of the Act makes it an unfair
labor practice for a union to "restrain or coerce
. . . employees in the exercise of the rights guaran-
teed in section 7: Provided, That this paragraph
shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisi-
tion or retention of membership therein .... " In
determining the legality of particular union rules
under the proviso to this section, the Supreme
Court has historically held that the internal en-
forcement of a properly adopted union rule against
voluntary union members by expulsion or a reason-
able fine is permissible, where the rule reflects a le-
gitimate union interest and frustrates no statutory
labor policy. " In this case, the union rule was
properly adopted by a majority vote of the mem-
bers, there is no showing that membership in the
Union was involuntary, and the rule was enforced
solely through the internal method of union
charges and fines collected by threat of judicial
action. Therefore, the questions to be answered are
whether the rule was invoked to promote a legiti-
mate union interest and whether the rule invades
any overriding policy of the labor laws.
It might be argued that the rule involved here
was adopted in furtherance of the Union's legiti-
mate interest in functioning as an effective bargain-
ing agent, regardless of whether it was imposed
merely as a bargaining tactic designed to put eco-
nomic pressure on Western during collective bar-
gaining as contended by the General Counsel or
whether it was imposed in response to Western's
alleged unfair labor practices as contended by Re-
spondent. However, the Supreme Court has indi-
cated that any union rule which frustrates a statu-
tory labor policy goes beyond the legitimate inter-
ests of a labor organization.'2 The crucial inquiry
is thus whether the Union's overtime ban violated
any policy of the Act.
It is well established that a union violates Section
8(b)(1)(A) of the Act if it disciplines members who
refuse to engage in unprotected activity which
would subject them to lawful discipline by their
employer. ' It is also clear that the repeated refus-
al of employees to perform mandatory assigned
overtime work is unprotected by the Act because it
constitutes a recurring or intermittent partial
strike. 4 There is no dispute in this case that Re-
Scofield, etr a v. N.LR.B.. 394 U.S. 423, 428 430 (1969).
2 Id. at 410 N. L.R.B. v Industrial Union Marine & Shiphbulding
Worker, of America [United States Lines Co,], 391 U.S 418, 424 (1968)
':' Insurance Workerv International Union AFL-CIO Local 60 (John
HIancock Mutual LiJi' Insurance Company) 236 NLRB 440 (1978).
't John S. SiitJ ComparL. Inc . 124 NLRB 394 (1959), enfd. 277 IF2d
641 (7th Cir 196l).: Honolulu Rapid rlansit Company. Limited 110
NLRBH 1806 (1954). S also irr \lational Bunk of Omaha. 171 NiLRH
spondent, by its promulgation of new 'Work
Rules" on August 28, announced the intention of
its members to engage in such unprotected repeat-
ed refusals to work mandatory overtime if assigned
to do so. However, the Administrative Law Judge
concluded that the employees' planned refusal to
work overtime was protected because it was in re-
sponse to the unfair labor practices Western had al-
legedly committed during collective bargaining.
We disagree. 1'
We find that the employees voted to impose the
overtime ban solely as a bargaining tactic, designed
to put economic pressure on Western and to force
Western to make bargaining concessions, rather
than in response to any perceived unfair labor
practices. 6 Accordingly, we regard the cases cited
in footnote 14 as controlling and find it unneces-
sary to pass on the question of whether a different
result would obtain had the employees been pro-
testing unfair labor practices committed by their
employer. In coming to this conclusion as to the
employees' motivation, we note that no charges
were filed against Western until almost 2 months
after the overtime ban was implemented, that there
is no evidence of any discussion at the August 28
union meeting characterizing Western's actions as
unfair labor practices, that Respondent's notice an-
nouncing the overtime ban makes no reference to
Western's alleged unfair labor practices, and that
the meager evidence as to the discussion at the
August 28 union meeting indicates the employees
were mainly concerned with Western's failure to
reach an agreement with the Union quickly.
Therefore, we conclude that, notwithstanding
the alleged unfair labor practices of Western, Re-
spondent's overtime ban constituted an unprotected
partial strike and Respondent violated Section
8(b)(l)(A) by disciplining its members who refused
to engage in such unprotected activity.
1145, 114) 51 (1968), enfd 413 F2d 921 (8th Cir. 1969) J P Ilamer
I.umber (Company Division of Gamble Brothers. Inc. 241 NLRB 613
(1979)
I While it is unnecessary to our decision in his case, we note that
even under the Administrative Law Judge's own rationale it must be
shown that the Employer actually committed unfair labor practices
which the employees were protesting However, there has been no find-
ing either in this case or in any prior Board cases that Western has com-
mitted any unfair labor practices. Rather, the Administrative Law Judge
relied uponl the mere fact that Respondent had filed charges alleging that
Western has committed unfair labor practices, which Western later
agreed to settle over Respondent's objections. The Administrative Law
Judge then precluded Respondent from litigating the merits of its unfair
labor practice charges against Western as part of its affirmative defense.
This was clearly incorrect.
6 In reaching this cotclusion, we particularly rely on the fact that the
overtlnle here in question was mandatory and lawfully imposed Cf. x-
uciation-Consirlrtion Inc.. 248 NLRB 649 (1980): Graska liape Inc., 241
NILRIB 686 (1979): and Member Jenkins' dissent in Prnce Lilhogruph Co..
lin.. 205 NRB I 110 (1973) We do not rely otl Valley Crv Furniture, I 10
NLRB 1589 (1954), 230 F.2d 947 (6th Cir 1956), which we consider in-
correctIl decided. See Irtravauion-Contructionr siprra
9138
GAIL' LOCAL. 13-l. GRAPHIC ARTS
CONCI USIONS F0 LAW
1. Western Publishing Co., Inc., is and has been
at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent GAIU Local 13-B, Graphic Arts
International Union, is and has been at all times
material herein a labor organization within the
meaning of Section 2(5) of the Act.
3. By enforcing an overtime ban prohibiting its
members from performing mandatory assigned
overtime work through the imposition of internal
union discipline upon Robert Greene, Helen
Tabone, Barbara Jones, Helen Lenehan, John Hil-
debrand, Patricia Porter, Geraldine Aiello, Ardine
Hall, Bernard Lewis, Patricia Long, Richard
Bennet, Marianne LaForge, JoAnn Balastire, Wil-
liam Rowe, Pearl Ryan, Samuel Cherry, and Bruce
Bauer for their refusals to engage in an unprotected
recurring and intermittent partial strike, Respond-
ent has violated Section 8(b)(l)(A) of the Act.
4. Respondent's violations of Section 8(b)(l)(A)
of the Act are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(b)(1)(A) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the
Act. Specifically, as we have found that Respond-
ent has unlawfully disciplined and fined its mem-
bers Robert Greene, Helen Tabone, Barbara Jones,
Helen Lenehan, John Hildebrand, Patricia Porter,
Geraldine Aiello, Ardine Hall, Bernard Lewis, Pa-
tricia Long, Richard Bennet, Marianne La Forge,
JoAnn Balastire, William Rowe, Pearl Ryan,
Samuel Cherry, and Bruce Bauer, we shall order
that Respondent rescind the disciplinary action
taken against them and that it make them whole for
any losses they have suffered as a result of Re-
spondent's unlawful conduct. In particular, we
shall order Respondent to refund to them any
moneys held or collected on account of the fines
assessed against them, with interest thereon to be
computed in accordance with Florida Steel Corpo-
ration, 231 NLRB 651 (1977).'7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
a See, generally. Isis Plumbin g & Heating Co., 138 NIRB 716 (9162)
GAIU Local 13-B, Graphic Arts International
Union, Hyde Park, New York, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Charging, trying, fining, prosecuting any law-
suits to collect fines, or otherwise disciplining
Robert Greene, Helen Tabone, Barbara Jones,
Helen Lenehan, John Hildebrand, Patricia Porter,
Geraldine Aiello, Ardine Hall, Bernard Lewis, Pa-
tricia Long, Richard Bennet, Marianne LaForge,
JoAnne Balastire, William Rowe, Pearl Ryan,
Samuel Cherry, and Bruce Bauer, or any of its
members, for refusing to engage in an unprotected
recurring and intermittent partial strike.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Rescind the disciplinary action taken against
Robert Greene, Helen Tabone, Barbara Jones,
Helen Lenehan, John Hildebrand, Patricia Porter,
Geraldine Aiello, Ardine Hale, Bernard Lewis, Pa-
tricia Long, Richard Bennet, Marianne LaForge,
JoAnn Balastire, William Rowe, Pearl Ryan,
Samuel Cherry, and Bruce Bauer for refusing to
engage in an unprotected recurring and intermit-
tent partial strike, and expunge from their records
any reference to that discipline.
(b) Make Robert Greene, Helen Tabone, Barbara
Jones, Helen Lenehan, John Hildebrand, Patricia
Porter, Geraldine Aiello, Ardine Hale, Bernard
Lewis, Patricia Long, Richard Bennet, Marianne
LaForge, JoAnn Balastire, William Rowe, Pearl
Ryan, Samuel Cherry, and Bruce Bauer whole for
any losses they have suffered as a result of the un-
lawful conduct, in the manner set forth in The
Remedy section of this Decision.
(c) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."' 8 Copies
of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
' In the cent that this Order is enforced by a Judgment of a tiniled
States Court of Appeals. the ords in the notice reading "Posted by
Order of t he National Labor Relatitons Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of appeals Enforcing an
Order of the National Labor Relations Board
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Sign and return to the Regional Director for
Region 3 sufficient copies of the attached notice
marked "Appendix" for posting by Western Pub-
lishing Co., Inc., if willing, in conspicuous places,
including all places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER PENELLO, concurring:
I agree with my colleagues that Respondent vio-
lated Section 8(b)(1)(A) by disciplining its members
who refused to engage in an unprotected partial
strike; however, in reaching this result, I find it un-
necessary to disturb the Administrative Law
Judge's conclusion that the employees were pro-
testing Western's allegedly illegal conduct. For,
even assuming that the overtime ban was instituted
in response to actual unfair labor practices commit-
ted by Western, I would conclude that such con-
duct by Western would not privilege the employ-
ees to engage in what would otherwise be a clearly
unprotected partial strike.
In this regard, I rely on Valley City Furniture
Company. 9 There, the respondent employer re-
fused to provide the union with wage information,
unilaterally increased employee working hours
from 8 to 9 hours per day, and gave its negotiators
only limited authority. The union held a meeting at
which the employees decided:
to cut out overtime until and unless the Com-
pany would meet with [the Union] and bargain
in good faith . . . [and] . . . to cut out over-
time beginning on the following day; that is
. . . to cease work at 3:30 instead of 4:30
[p.m.], the 3:30 period being the end of the
eight hour day.
The next day, the respondent was informed of the
union's decision, and at 3:30 p.m. a number of em-
ployees walked off the job.
Although the Board held that the respondent
violated Section 8(a)(5) by the acts described
above, it found that inasmuch as the employees had
refused to work the overtime hours set by the re-
spondent and had intended to continue such tactics,
their conduct constituted an unprotected partial
strike. The Board further held that the unprotected
nature of this activity was not changed by the fact
that the respondent had committed unfair labor
practices, stating: 20
We find that the partial strike called by the
Union from its very inception was the sort of
'19 10 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir. 1956).
20 Id. at 1594-95.
activity which, although concerted, is not, as
against the action taken by the Respondent,
entitled to the protection of the Act. The vice
in such a strike derives from two sources.
First, the Union sought to bring about a condi-
tion that would be neither strike nor work.
And, second, in doing so, the Union in effect
was attempting to dictate the terms and condi-
tions of employment. Were we to countenance
such a strike, we would be allowing a union to
do what we would not allow any employer to
do, that is to unilaterally determine conditions
of employment. Such a result would be foreign
to the policy objectives of the Act. It is true,
as our dissenting colleagues state, that the Re-
spondent unilaterally changed the hours of
work. But that unlawful act did not privilege
the Union's resort to the partial strike as a self-
help device, any more than the Union would
have been privileged to engage in a sitdown
strike or slowdown to protest the Respond-
ent's action.' 4
1' We find no merit in the General Counsel's argument that a
partial strike, otherwise unprotected, would gain the protection of
the Act by reason of its having stemmed from the Respondent's
unfair labor practices We regard the case cited by the General
Counsel (Mastro Plastics Corp., 103 NLRB 511) as inapposite.
In the instant case, the Administrative Law
Judge found that Respondent instituted a ban on
overtime as a reaction to and in protest of West-
ern's allegedly unlawful refusal to bargain in good
faith and its allegedly unlawful written communica-
tions to employees. However, even assuming that
such conduct was in fact violative of Section
8(a)(5), I conclude that under the teachings of
Valley City those "unlawful act[s] did not privilege
the Union's resort to the partial strike." 2 '
I recognize that the Board has found that where
an employer has, in violation of Section 8(a)(5),
unilaterally instituted changes in the hours of work,
employee refusals to comply therewith are protect-
ed and do not constitute a partial strike. 2 2 But in
those cases the employees' conduct consisted of
nothing more than noncompliance with an unlaw-
fully instituted rule and there was no indication
that the employees intended to engage in a partial
work stoppage to compel their employer to take
some action. In contrast, in Valley City, as indicated
above, the employees were not solely protesting
the respondent's unilateral increase in working
hours, but were also protesting its refusal to meet
with the union and bargain in good faith. Signifi-
cantly, the refusal to work overtime was the
21 Id. at 1595.
22 Gaska Tape. Inc., 241 NLRB 686 (1979); Anderson Plumbing and
HIeating Company, 203 NLRB 18 (1973).
940
GAIU LOCAL 13-B, GRAPHIC ARTS
method chosen by the employees to compel the re-
spondent to change its bargaining tactics. Thus,
unlike the situation in the cases described above,
the employees in Valley City were not merely refus-
ing to comply with an unlawfully instituted rule.
Similarly, in the instant case, even accepting the
Administrative Law Judge's characterization of the
employees' motivation, i.e., that they were reacting
to alleged unfair labor practices committed by
Western, it is clear to me that they, like the em-
ployees in Valley City, were attempting to compel
their employer to change its bargaining tactics. In
my view, it is obvious that this is not a case where
employees were merely refusing to comply with
unilaterally instituted changes made by their em-
ployer with regard to working hours, because no
such changes had in fact occurred at the time the
overtime ban was instituted.
Finally, I disagree with the Administrative Law
Judge's reliance on the cases cited in support of his
conclusion that the employees' partial strike was
protected. 2 3 I specifically take exception to the
Administrative Law Judge's statement that Mastro
Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956),
stands for the general proposition that "when em-
ployees engage in a strike action in response to em-
ployer unfair labor practices, they are treated dif-
ferently from employees who act solely in further-
ance of economic demands." In Arlan's Department
Store of Michigan Inc., 133 NLRB 802 (1961),24 the
Board eschewed a broad interpretation of Mastro
Plastics. The Board reasoned that the language used
by the Court and its rationale could not be di-
vorced from the facts of the case and the argument
2 I did not participate in Blades Manufacturing Corporation, 144
NLRB 561. 564-567 (1973), enforcement denied 433 F2d 998 (8th Cir.
1965), or in Schneider Mills, Inc., 164 NLRB 879, 884, fn. 17 (1967), and I
regard those cases as of doubtful precedential value inasmuch as they did
not discuss the application of Valley City. supra. Furthermore, I find
Blades to be distinguishable since the concerted activities there were
treated as a series of single concerted refusals to work, each in protest of
a separate unlawful act by the employer, rather than as recurring and in-
termittent partial strikes. In Schneider Mills, the Administrative Law
Judge found certain partial strike activity to be protected as a response to
employer unfair labor practices, but the Board added its own rationale
for finding the violations in issue and did not adopt the Administrative
Law Judge's reasoning on that point. To the extent that Blades and
Schneider Mills can be read as being inconsistent with Valley City, I
would not follow them.
The Administrative Law Judge also cited NL.R.B. v. Thayer Compa-
ny, 213 F.2d 748 (Ist Cir. 1954). cert. denied 348 U.S. 883 (1955), which
holds that where collective action is precipitated by an employer's unfair
labor practice, a finding that the employees' conduct is not protected
under Sec. 7 does not, ipso facto, preclude the Board from ordering the
employer to reinstate the employees if such an order would effectuate the
purposes of the Act However, I conclude that while it may effectuate
the purposes of the Act to require the employer to correct its own unfair
labor practice by reinstating employees who were discharged for engag-
ing in some less egregious form of unprotected activity, this balancing of
interests does not mean that the union can then lawfully discipline its
members for refusing to engage in such unprotected activity.
24 Arlan's was recently reaffirmed by the Board in The Dow Chemical
Company, 244 NLRB 1060 (1979)
presented by the parties. The Board held in Arlan's
that employees are privileged to engage in a strike
in violation of a no-strike clause in their collective-
bargaining agreement, which would otherwise be
unprotected, only where they are protesting "fla-
grant" or "serious" unfair labor practices by their
employer. The Board indicated that where the em-
ployer is engaging in conduct attacking the very
existence of the collective-bargaining representative
it is materially breaching its obligations under the
contract and therefore the union should be excused
from performance of the no-strike clause. In the ab-
sence of such a clause, a total strike is, of course, a
protected concerted activity. However, the same
cannot be said of the conduct in issue here, for re-
peated refusals to work mandatory overtime consti-
tute unprotected activity even in the absence of a
no-strike provision. Therefore, this is not a situa-
tion where the unfair labor practices of an employ-
er can be viewed as eliminating the only circum-
stance which renders the employees' this activity
unprotected. Accordingly, in my view, the Mastro
Plastics line of case law does not support the result
reached by the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT charge, try, fine, prosecute
any lawsuits to collect fines, or otherwise dis-
cipline Robert Greene, Helen Tabone, Barbara
Jones, Helen Lenehan, John Hildebrand, Patri-
cia Porter, Geraldine Aiello, Ardine Hall, Ber-
nard Lewis, Patricia Long, Richard Bennet,
Marianne LaForge, JoAnn Balastire, William
Rowe, Pearl Ryan, Samuel Cherry, and Bruce
Bauer, or any of our members, for refusing to
engage in an unprotected recurring and inter-
mittent partial strike.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WILL rescind the disciplinary action
taken against Robert Greene, Helen Tabone,
Barbara Jones, Helen Lenehan, John Hilde-
brand, Patricia Porter, Geraldine Aiello,
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ardine Hall, Bernard Lewis, Patricia Long,
Richard Bennet, Marianne LaForge, JoAnn
Balastire, William Rowe, Pearl Ryan, Samuel
Cherry, and Bruce Bauer for refusing to
engage in an unprotected recurring and inter-
mittent partial strike, and WE WILL expunge
from their records any reference to that disci-
pline.
WE WII. make Robert Greene, Helen
Tabone, Barbara Jones, Helen Lenehan, John
Hildebrand, Patricia Porter, Geraldine Aiello,
Ardine Hall, Bernard Lewis, Patricia Long,
Richard Bennet, Marianne LaForge, JoAnn
Balastire, William Rowe, Pearl Ryan, Samuel
Cherry, and Bruce Bauer whole for any losses
they have suffered as a result of our unlawful
conduct. In particular, WE WILL refund to
them any moneys held or collected on account
of the fines assessed against them in connec-
tion with the aforesaid disciplinary action,
with interest.
GAIU LOCAI. 13-B, GRAPHIC ARTS
INTERNATIONAl. UNION
DECISION
STATEMENT OF TIHE CASE
GIORGE NORMAN, Administrative Law Judge: This
case was heard in Poughkeepsie, New York, on Septem-
ber 28, 1979. It is based on a charge filed December 6,
1978, by Robert Greene, an employee of Western Pub-
lishing Co., Inc., herein Western, against GAIU, Local
13-B, Graphic Arts International Union, herein Re-
spondent Union. A complaint based on that charge was
issued on December 22, 1978, by the Regional Director
for Region 3 of the National Labor Relations Board. The
complaint alleges that Respondent committed a violation
of Section 8(b)(1)(A) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended, herein the Act,
by attempting to enforce by means of internal union
charges, fines, and/or lawsuits against its members a
union ban prohibiting unit employees from accepting
overtime.
Respondent's answer admitted that on or about August
28, 1978, it instituted an overtime ban and that it at-
tempted to enforce this ban by means of internal union
charges, fines, and/or lawsuits against its members. How-
ever, the Respondent denies that these acts constitute a
violation of the Act, and states that Respondent's actions
in instituting and maintaining an overtime ban were in
response to Western's continuing unfair labor practices.
The answer noted that a complaint had been issued in
Case 3-CA-8765, charging Western with violations of
the Act. Pursuant to an order of the National Labor Re-
lations Board dated September 26, 1979, Cases 3-CA-
8765 and 3-CA-8850 were severed from this case based
upon the unilateral settlement agreement between West-
ern Publishing Co. and the General Counsel.
All parties were given full opportunity to participate,
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. t The General Counsel and
the Respondent filed briefs.
Upon the entire record, including my consideration of
the briefs and my careful observation of the sole witness
and her demeanor, I make the following:
FININGS OI FACT
1. 'THE BUSINESS OF I'THE MPLOYER
Western Publishing Company is a Wisconsin corpora-
tion with its principal office in Racine, Wisconsin, and
places of business located in Poughkeepsie, New York,
and various other places in Wisconsin and Missouri. It is
engaged in the publishing of books and related items.
During the past year, which is representative of all times
material herein, in the course and conduct of its business
operations, Western purchased, transferred, and deliv-
ered to its Poughkeepsie plant goods and materials
valued in excess of $50,000 which were transported there
directly from States outside the State of New York.
During the past year, which is representative of all times
material herein, in the course of its business operations,
Western manufactured, sold, and directly shipped prod-
ucts valued in excess of $50,000 from its Poughkeepsie,
New York, place of business to its customers located
outside the State of New York.
Western is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION
Graphic Arts International Union, Local 13-B, is a
labor organization within the meaning of Section 2(5) of
the Act. It is, and has been, the exclusive collective-bar-
gaining representative, within the meaning of Section
9(a) of the Act, of an appropriate unit consisting of all
production and service employees of Western in the
binderies, receiving, shipping, sheeting and paper han-
dling departments, bailing operation, in-plant material
handling equipment drivers, and janitors of the Employ-
er's Poughkeepsie, New York, facility, but excluding all
other employees and supervisory employees as defined in
the Act.
l Respondent asserted that it did not present John Gavitt, an Interna-
tional vice president of Graphic Arts International Union, as a witness at
this hearing because he was unavailable.
I sustained the objection of the General Counsel to Respondent's offer
of two sets of exhibits. They were placed in the rejected exhibit filed as
Resp. Exhs. 2 and 3. Respondent's rejected Exh. 2 contained 43 commu-
nications from Western to employees concerning the ongoing negotia-
tions between Western and the Respondent, dated from May 1978
through January 1979. Respondent's rejected Exh. 3 contained the min-
utes of 37 negotiating sessions between Respondent and Western between
April 1978 and February 1979. Both exhibits were rejected as irrelevant
Notwithstanding the rejection, I note that several of these communica-
lions from Western to its employees and the minutes from two of the col-
lective-bargaining sessions are in evidence as part of the stipulation which
the parties entered into
942
GAIU LOCAL 13-B, GRAPHIC ARTS
Iit. HE AI.I.EGEI) UNFAIR ABOR PRACTICES
A. The Stipulution of Facts
On the date of the hearing, September 28, 1979, the
parties entered into a stipulation of facts that was intro-
duced and received into evidence. They agreed that this
stipulation "shall be a part of the record in the unfair
labor practice hearing" and that "findings may be made
on the basis of this stipulation." They also agreed that
the stipulation shall not be deemed to foreclose or limit
any party from presenting or adducing any additional
relevant testimony of evidence. In substance the stipula-
tion of facts follows:
The most recent collective-bargaining contract
between the parties expired on May 16, 1978.2 Ne-
gotiations for a new contract began April 7, and are
continuing to date after approximately 40 sessions. 3
Respondent, prior to its imposition of the overtime
embargo, was notified on or about July 14, by
Western that 13 employees, including Carl Pappo-
lardo, Ray Micucci, Melvin Ashe, Peter Borelli,
Wilson Burt, Alfred Calabresi, William Clark,
Walter Hatch, Joseph Martz, David Phitscher,
Thomas Phaff, Donald Scott, and Donald Wilson
had been formally reprimanded in writing and ren-
dered one day suspensions as a result of their re-
peated, recurrent refusals to work mandatory over-
time when it was scheduled during other than regu-
lar work hours. 4 The suspensions referred to are
being held in abeyance by the employer pending the
outcome of this case. The unit employees have not
withheld their services while working at the plant
during regular work hours and have accepted pay.
Thereafter, on or about August 28, ' Respondent,
allegedly in response to Western's alleged unfair
labor practices during bargaining negotiations, uni-
laterally imposed a continuous, indefinite overtime
ban, in effect to date, prohibiting approximately 500
employees of Western in the unit represented by
Respondent since 1952 from working compulsory
assigned paid overtime scheduled after regular work
hours on week days and on weekends. 6 As a result
of Respondent's overtime ban, Western notified the
2 All dates refer to 1978 unless stated otherwise
3 The attachment to the stipulation includes minutes of the January 16,
1979, and February 16, 1979. collective-bargaining negotiations between
Western and Respondent.
4 The attachment to the stipulation includes copies of these written
reprimands.
b Although the stipulation did not include the following, Goodall's un-
contradicted testimony reveals that, at the August 28 union meeting, ap-
proximately 220 union members voted in favor of an overtime ban and
100 voted against it. Approximately 320 of the Local's 490 members at-
tended this previously publicized meeting. Because two thirds of the
members who were present at the meeting oted in favor of an overtime
ban, the General Counsel's contention that less than half of the local's
membership voted to implement the overtime ban is irrelevant
6 The attachment to he stipulation includes (1) a copy of the Re-
spondent's August 28 notice imposing an overtime ban on all Local 13-B
members. (2) a copy of he Respondent's January 3, 1979, notice rescind-
ing the oertime ban provided that the oertime ban will be reinstituted
immediately if the Company makes any change in the 36-1/2 hour ork
week, and (3) several of Western's letters to unit employees and employ-
ee news bulletins for the period of Augut 30. 178, to January 9. 1979
unit employees by letter on August 30 that it was
discontinuing mandatory overtime assignments im-
mediately. Thereafter, on October 17, and again on
October 19, Western informed its employees of its
need to assign overtime work and that it had a legal
right to either impose discipline upon them for their
refusal to work paid overtime assignments or else
utilize employees not in the unit described above to
accomplish the work. At no time did Western ac-
quiesce or agree to the overtime ban nor waive its
right to discipline employees for refusing overtime.
On or about October 21, Western reinstated its
mandatory overtime policy. Certain employees in
the unit described above represented by Respondent
worked the mandatory paid overtime as assigned,
on and/or after October 21, without resigning from
the Respondent Union, including Robert Greene,
Helen Tabone, Barbara Jones, Helen Lenehan, John
Hildebrand, Patricia Porter, Geraldine Aiello,
Ardine Hall, Bernard Lewis, Patricia Long, Rich-
ard Bennet, Marianne LaForge, JoAnn Balastire,
William Rowe, Pearl Ryan, Samual Cherry. and
Bruce Bauer. Commencing October 25, and con-
tinuing to date, these unit employees have been
either charged with internal union rule violations.
fined, and/or sued in state court because they
worked mandatory paid overtime.7 On October 25,
and again on December 18, Respondent filed unfair
labor practice charges against Western with the Na-
tional Labor Relations Board.
B. The Overtime Ban
In light of the above stipulation, the first issue that this
case presents concerns the true nature of Respondent's
overtime ban. The General Counsel contends that the
purpose of the Respondent's overtime ban was to put
economic pressure in the form of a part-time strike on
Western during the course of the collective-bargaining
negotiations. The Respondent takes the position that its
overtime ban was a response of the membership of Local
13-B to Western's unfair labor practices.
In support of its position, Respondent notes that it
filed charges against Western, as previously indicated,
that resulted in a complaint being issued against Western
by the National Labor Relations Board on December
11.8 The amended complaint alleged that Western violat-
ed Section 8(a)(l) and Section 8(a)(5) of the Act. As pre-
viously noted, Western entered into a settlement agree-
ment in Cases 3-CA-8765 and 3-CA-8850 that was ap-
proved unilaterally by the Regional Director for Region
3 of the National Labor Relations Board.
In determining whether Respondent's overtime ban
was a tactic to put economic pressure on Western or a
7 The attachment to the stipulation documents that Respondent did at-
tempt to enforce this overtime ban through internal union charges. fines,
and/or lawsuits
" This complaint and notice of hearing was issued oin December II,
1978. by the Regional Director of Region 3 for the National Labor Rela-
tions Board in Case 3-CA-8765. The complaint was amended on Decem-
her 28 and an Order further consolidating cases and amendment to com-
plaint was issued on December 28. 1978. in Cases 3-CA-8765. 3-CA
8850, and 3 CH-3304
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response to Western's alleged unfair labor practices, it is
necessary to examine the parties' stipulation of facts and
the testimony of record. Negotiations for a new contract
began April 7, and continued for at least 40 sessions. The
complaint issued in Case 3-CA-8765 alleged that the Re-
spondent Western committed unfair labor practices by
entering these negotiations with a predetermined fixed
position and by maintaining that position throughout the
negotiations. Another basis for which the complaint was
issued was Western's continual written communications
with its employees. Because of these very frequent com-
munications, Western was alleged to have bypassed and
undermined the Union by bargaining individually with
its employees. These letters to unit employees and em-
ployee news bulletins were alleged to have begun May 3
and to have continued at least until January 9, 1979.
Thus, Western's written communications to its employ-
ees and the negotiations of Western and Respondent
began well before the Respondent began its overtime ban
on August 28 and continued throughout the time the
overtime ban was in effect.
The only witness to give testimony in this proceeding
was Phyllis Goodall. She gave credible uncontradicted
testimony that in July and August the employees were
upset about both the written communications they re-
ceived from Western and the way the negotiations were
proceeding.9 Goodall thought that the written communi-
cations from Western to the employees were an attempt
to undermine the Union.'° Goodall's uncontradicted tes-
timony also indicated that at the August 28 meeting at
which the overtime ban was instituted the members had
been upset with the "different things" that the Company
was doing. " The minutes of the collective-bargaining
sessions between Respondent and Western on January
16, 1979, and February 16, 1978, also reveal that Re-
spondent was upset about Western's written communica-
tions with its employees. They also show that Respond-
ent's representatives thought Western was not bargaining
in good faith and was trying to undermine the Union and
the bargaining committee.
Furthermore, Respondent's notice of January 3 calls
off the overtime ban which is an indication that the over-
time ban was imposed to protest Western's alleged unfair
labor practices. That notice reads, in effect, that the
overtime ban will be reimplemented only if Western
makes any change in the 36-1/2 hour work week. By
that notice, Respondent Union was apparently respond-
ing to what became the basis of allegations in the amend-
ed complaint issued against Western: that Western unilat-
D Goodall testified as follows:
Well, I started to say that some-well they would get more or less
hot and heavy over the negotiations and the way they were going
that they were more or less being dragged out-letters were being
sent out to employees, and every time they got a letter they got
more uptight.
o1 Question: "What do these letters and bulletins concern themselves
with in the main part. Do you recall?" Goodall: "Contract and what the
negotiations was all about and more or less I think it was undermining
the Union."
II Goodall testified: "All I do remember is that they gave the same
argument all the time in speaking about why we were working the com-
pany's overtime when they're, you know, were doing different things to
the members. This was brought up continuously on the floor and at
work."
erally changed the wages, hours, and working conditions
of the unit employees by putting into effect its last offer
to the Union prior to a valid impasse having been
reached. In addition, the fact that Respondent Union at-
tempted to rescind the overtime ban offsets the General
Counsel's contention that the overtime ban was to be in
effect until the negotiations were over.
In addition, there is no evidence that expressly indi-
cates that Respondent Union was engaging in the over-
time ban as a bargaining tactic. In other situations, em-
ployers were acutely aware that the employees had insti-
tuted bans on overtime as a means of forcing concessions
in bargaining. First National Bank of Omaha, 171 NLRB
1145, 1150 (1968), enfd. 413 F.2d 921 (8th Cir. 1969).
John S. Swift Company, Inc., 124 NLRB 394, 396 (1959),
enfd. 277 F.2d 641 (7th Cir. 1960). Inasmuch as many
different issues were discussed e.g., downgrading, senior-
ity, job classification), there was no indication that the
collective-bargaining negotiations were stalled on any
one particular issue upon which Respondent Union was
trying to force a concession.
All of the above factors outweigh the General Coun-
sel's contention that the overtime ban was not a response
to alleged unfair labor practices because Respondent
Union did not file its charges against Western until Octo-
ber 25 (though the Union executed its overtime ban on
August 28) and because the August 28 notice does not
refer to any unfair labor practice of Western. This con-
tention is particularly lacking in merit in view of the un-
controverted testimony that the members were upset
about the alleged unfair labor practices of Western when
they instituted the overtime ban on August 28.
Accordingly, I find that the overtime ban was institut-
ed by Respondent Union as a reaction to and a protest of
the alleged unfair labor practices committed by West-
ern. 12
IV. DISCUSSION AND CONCLUSIONS
This case presents the issue of whether Respondent
Union's overtime ban is protected activity under the Act
in view of the above finding that the ban was undertaken
in protest of Western's alleged unfair labor practices. As
the General Counsel contends, if Respondent Union's
overtime ban is unprotected activity, its discipline of its
members for refusing to engage in the ban, which sub-
jects them to lawful employer discipline, violates Section
8(b)(l)(A) of the Act. Local 138, International Union of
Operating Engineers AFL-CIO (Charles S. Skura), 148
NLRB 679 (1964); N.L.R.B. v. Industrial Union of
Marine & Shipbuilding Workers (United States Lines Co.),
391 U.S. 418 (1968). Conversely, if the Respondent's
overtime ban is protected activity under the Act, the em-
ployees are insulated from employer discipline for engag-
ing in this activity. In that case, the Respondent (like any
labor organization) can "prescribe its own rules with re-
spect to the acquisition or retention of membership there-
in...." (Proviso, Sec. 8(b)(1)(A) of the Act), if the
union members' employment status is not affected; the
2 This finding is not to be construed as a decision on the merits of the
complaint against Western in Cases 3-CA--8765 and 3-CA-8850 which
settled.
944
GAIU IOCAL 13-1,. GRAPHIC ARTS
union's rule does not violate public policy: and union
members are free to leave the Union. Scofield. et al. v.
N.L.R.B., 394 U.S. 423 (1969). Thus, if the overtime ban
is protected activity, the Respondent Union's discipline
of its members for violating the overtime ban is not a
violation of Section 8(b)(I)(A).
A one-time concerted refusal to work overtime is pre-
sumed protected activity, whether or not it is in response
to an employer's unfair labor practices. First Nationual
Bank of Omaha, supra, Polytech, Incorporated, 195 NLRB
695 (1972); Florida Steel Corporation, 221 NLRB 554
(1975). "This analysis of the Washington Aluminum and
Omaha cases demonstrated the existence of a presump-
tion that a single concerted refusal to work overtime is a
protected strike activity; and that such presumption
should be deemed rebutted when, and only when, the
evidence demonstrates that the stoppage is part of a plan
or pattern of intermittent action which is inconsistent
with genuine strike or genuine performance by employ-
ees of the work normally expected of them by the em-
ployer." Polytech, supra, 195 NLRB at 696. Thus, absent
other factors, which are found in this case the General
Counsel's contention is correct that a recurrent or con-
tinuous refusal to work overtime, such as the ban that
Respondent Union instituted on August 28, is usually
considered an unprotected "partial" strike which subjects
employees to lawful employer discipline. John S. Swift
Company, supra,' First National Bank of Omaha, supra, J.
P. Hamer Lumber Company, Division of Gamble Brothers,
Inc., 241 NLRB 613, 619-620 (1979). However, this line
of cases concerning recurrent refusals to work overtime
is not controlling in the instant matter because it is based
on a situation in which the employees' refusal to work
overtime is solely a bargaining tactic to bring economic
pressure on the employer.
Although the case law in this area is not entirely
clear,' recent case law indicates that a recurrent or con-
tinual refusal to work overtime, considered a "partial
strike," is protected or lawful activity under the Act
when it is in response to the employer's alleged unfair
labor practices, e.g., Blades Manufacturing Corporation,
144 NLRB 561, 566, 567 (1963). Blades held that the em-
13 The cases that the General Counsel cites in support of his conten-
tion that Respondent Union's overtime ban is not justified even if it is in
response to Western's alleged unfair labor practices are not on point in
the instant matter. Communications Workers of America, AFL-CIO (Ohio
Consolidated Telephone Company), 120 NLRB 684, 686. 687 (1958), enfd
266 F.2d 823 (6th Cir. 1959), affd. as modified 362 US 479 (1960), and
Longshoremen s and Warehousemen ' Union. C.I .O: et al. (Sunset Line and
Twine Company). 79 NLRB 1487, 1492, fn 6 (1948), are distinguishable
because they concerned intimidating and coercive activity by the re-
spondent unions therein that occurred on the picket lines during a total
strike, and because they involved unions that did not file with the Board
unfair labor practice charges against the employer. Similarly, in Sheet
Metal Workers International Association. Local Union No. 170. AFL-CIO
(Able Sheet Metal Products. Inc). 225 NLRB 1178, 1181 (1976), the union
did not file with the Board unfair labor practice charges against the em-
ployer. Sheet Metal Workers (id.) is also distinguishable from the present
matter because it concerns the right of the union's members to withdraw
from their union during a strike
On the other hand. Valley City Furniture Company, 110 NLRB 1589,
1595 (1954) (not cited by the General Counsel), holds that an employer's
alleged unfair labor practices do not justify the union's imposition of an
overtime ban. However, Vallev should be read in light of the Board's
more recent decisions in this area
ployer violated the Act by discharging 31 employees for
participating in temporary work stoppages that were
called each time the employer refused to recognize the
right of a certified union to represent an employee in the
processing of a grievance. The Board, assuming that the
employees were engaged in partial or intermittent strike
activity that was unprotected, held that such activity,
when provoked by the employer's unfair labor practices,
was not unlawful. The Board based its holding on
NV.L.R.B. v. Thayer Company, 213 F.2d 748, 754 (Ist Cir.
1954), cert. denied 348 U.S. 883 (1954). Although the
Eighth Circuit reversed Blades supra, 344 F.2d 998
(1965), this reversal was based upon its finding that there
was no unfair labor practice committed by the employer.
The court thus found the employees' walkouts were for
the purpose of exerting economic pressure upon the em-
ployer and not a genuine, protected protest against the
company's refusal to adjust grievances.
In Schneider Mills, Inc. and Jimmy Josh, Inc., 164
NLRB 879 (1967), a situation similar to the instant one,
Schneider's employees voted an overtime ban in response
to their perception of employer unfair labor practices.
The administrative law judge, affirmed by the Board,
found the overtime ban to be protected activity:
Respondents argue that the work stoppages of
April 2 and 9 were unprotected because they were
of the same type which the Supreme Court found
to be unprotected in International Union, U.. W.
Local 232 v. Wisconsin Employment Relations Board
(Briggs & Stratton Corp.), 336 U.S. 245. It is open to
question whether these work stoppages were out-
side the protective scope of Section 7. See N.L.R.B.
v. Insurance Agents' International Union, AFL-CIO
(Prudential, Ins. Co.), 361 U.S. 477, 493, fn. 23; The
Dow Chemical Company, 152 NLRB 1150. Further-
more, in this case, as the work stoppages were rea-
sonably responsive to the Company's persistent and
unlawful refusal to recognize and to bargain with
the Union, the recurrent character of the otherwise
protected strike activity does not place such activity
outside the pale of statutory protection. As the Su-
preme Court observed in Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 287, "There also is inherent
inequity in any interpretation that penalizes one
party . . . for conduct induced solely by the unlaw-
ful conduct of the other, thus giving advantage to
the wrongdoer." [164 NLRB at 884, fn. 17.1
Similar to Schneider Mills, Inc., supra, it is particularly
appropriate in the instant matter that the overtime ban
should be protected activity because the alleged unfair
labor practices to which Respondent Union responded
(the numerous and frequent communications from West-
ern to its employees and Western's conduct during the
many negotiation sessions) were continuing and persist-
ent events that occurred over a period of several months.
Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956),
shows clearly that when employees engage in a strike
action in response to employer unfair labor practices,
they are treated differently from employees who act
solely in furtherance of economic demands. In holding
945
DECISIONS OF NATIONAL LAB)OR REL.ATIONS BO()ARD
that the employees had a right to strike against the em-
ployer's unfair labor practices in spite of Section 8(d) of
the Act and their contractual no-strike clause, the Su-
preme Court stated that employees were entitled to a
self-help remedy that was greater than just filing charges
with the Board against the employer. The Court thought
that to limit self-help in this situation, "would relegate
the employees to filing charges under a procedure too
slow to be effective. The result would unduly favor the
employers and handicap the employees during negotia-
tion periods contrary to the purpose of the Act." 350
U.S. at 256, 257.
In conclusion, I find that the overtime ban imposed by
Respondent was a legitimate self-help remedy and was
thus protected activity because it was undertaken in re-
sponse to Western's alleged unfair labor practices. Mastro
Plastics, supra, Blades Manufacturing Company, supra,
Schneider Mills, supra. Inasmuch as honoring the over-
time ban has been found to be protected activity for
which the employees could not be subject to employer
discipline, Respondent Union has not restrained or co-
erced them. Accordingly, I find that the General Coun-
sel has failed to establish by a preponderance of the evi-
dence that Respondent Union by maintaining and enforc-
ing the above-described overtime ban has engaged in a
violation of Section 8(b)(1)(A) of the Act. Accordingly,
I shall recommend dismissal of the complaint in its en-
tirety.
CONCIUSIONS OF LAW
1. Western Publishing Company, Inc., is, and at all
times material herein has been, an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. GAIU Local 13-B, Graphic Arts International
Union, is, and at all material times has been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. General Counsel has failed to establish by a prepon-
derance of the evidence that the Respondent has en-
gaged in or is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
[Recommended Order omitted from publication.]
946