Williams Press, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1972

195 N.L.R.B. 905 (N.L.R.B. 1972)

WILLIAMS PRESS , INC. 905
Williams Press, Inc. and Theodore Compagnone
Albany Printing Pressmen Assistants' and Offset
Workers Union Local 23, AFL-CIO (Williams
Press, Inc.) and Theodore Compagnone
Williams Press, Inc. and Martin Claydon
Albany Printing Pressmen Assistants' and Offset
Workers Union Local 23 , AFL-CIO (Williams
Press, Inc.) and Martin Claydon . Cases 3-CA-
4401-1, 3-CB.-1635-1, 3-CA-4401-2, and 3-CB-
1635-2
March 15, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 16, 1971, Trial Examiner Lloyd Bu-
chanan issued the attached Decision in this proceeding.
Thereafter, -Respondent Union filed exceptions and a
motion to reopen the hearing, and the General Counsel
filed a motion to strike Respondent Union's exceptions
and brief and motion in opposition to request to reopen
the hearing. Thereafter, the Respondent Union filed an
opposition to the General Counsel's motions.
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 Trial
Examiner's Decision in light of the exceptions, opposi-
tion, and briefs and has decided to affirm the Trial
Examiner's findings, conclusions, and recommenda-
tions as modified herein.'
We agree with the findings and conclusions of the
Trial Examiner that the Respondent Union and Re-
spondent Company, through its control and applica-
tion of the seniority list in placing Compagnone and
Claydon in lesser status than they were entitled and
thereby adversely affecting them with respect to shifts,
In view of the fact that the Trial Examiner's Decision was essentially
a summary judgment based upon the pleading and that the record contained
no testimony or presentation of evidence relating to the alleged violations
of the Act as set forth in the complaint, we find that Respondent Union's
exceptions in the special circumstances of this case fulfilled the requirements
of Section 102 46(b) of the Rules and Regulations, Series 8, as amended.
Accordingly, we deny the General Counsel's motion to strike the Respond-
ent Union's exceptions.
As for Respondent Union's motion to reopen the hearing to present
certain evidence which it alleges as a defense to the findings of violations
of the Act set forth in the Trial Examiner's Decision, we note that the
evidence sought to be adduced is vaguely defined and no showing has been
made that it is newly discovered, or evidence which had become available
only since the close of the hearing, or why it was not previously presented
at the hearing We, therefore, find that the motion fails to meet the require-
ments of Section 102.48(d) of the Rules and Regulations, and we deny the
motion
vacations, overtime work, and layoffs, violated respec-
tively Section 8(b)(1)(A) and (2) and Section 8(a)(1)
and (3) of the Act.' We also agree with that part of the
remedy recommended by the Trial Examiner that re-
quires that Compagnone and Claydon be restored to
their proper place on the priority list and that they be
made whole for any loss 'sustained by reasons of the
discrimination against them, with interest to be com-
puted in the customary manner. However, we find
merit in the exceptions of the Respondent Union to that
portion of the Trial Examiner's recommended Order
that provides that the Union should be "primarily lia-
ble" for any loss sustained by the .employees in ques-
tion. The issue of sole or primary culpability was not
litigated and we find no basis in the pleading or the
record to support such remedy. Accordingly, we shall
revise the recommended Order and notices, as in-
dicated below, to provide tYIe usual remedy for viola-
tions of this nature by making the Union and the Com-
pany "jointly and severally" liable to make the
employees involved whole for any ; loss suffered by
them.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that:
A. Respondent Williams Press, Inc., Menands, New
York, its officers, agents, successors, and assigns , shall:
' The complaint alleges, inter alia, that Respondent Union engaged in
this conduct "arbitrarily and capriciously, and for unfair, irrelevant and
invidious reasons, thereby breaching its duty to fairly represent the em-
ployees...... Respondent Union failed to deny either by answer before the
hearing or at the trial the allegations in the complaint. Respondent Em-
ployer admitted in its answer and at the trial that it acquiesced in the acts
and conduct of the Respondent Union and thereby violated the Act
Member Kennedy dissents from his colleagues' failure to affirm the
Trial Examiner's conclusion that in the circumstances of this case an order
making the Union primarily liable for making the discnminatees whole
would be appropriate.
TheTrial Examiner found that in exercising control over the priority list
the Union placed the two employees, Compagnone and Claydon, who had
occupied number three and number one positions, respectively, on the pri-
ority list, in a lesser status than they, were entitled to, and caused the
Company to place them in such a lesser status. These two employees were
thereby adversely affected with respect to shifts, vacations, overtime work,
and layoffs. The Trial Examiner concluded that the Union breached its duty
to represent these two employees fairly and caused and attempted to cause
the Company to discriminate against them. In concluding that the Union
should be made primarily liable for making whole these two employees, the
Trial Examiner expressly found that the Company resisted the Union's
action, telling the Union that the lowering of the two employee's positions
on the priority list was improper The Company believed this, and told the
employees that they could have recourse to the Board
In the foregoing circumstances, I am of the view that the Trial Examiner
was clearly correct in recommending that the Union be made primarily
liable for making the employees whole Zoe Chemical Co., Inc., 160 NLRB
1001, 1002-03, J J. Hagerty, Inc., 139 IQLRB 633, 639; NL.R.B. v. Local
138, Operating Engineers [Nassau & Suffolk Contractors'Assn.J, 293 F.2d
187, 199 (C.A 2)
195 NLRB No. 159
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from , (b) In any other manner restraining or coercing em-
(a) Encouraging or discouraging membership in Al- ployees in the exercise of the rights guaranteed in Sec-
bany Printing Pressmen Assistants ' and Offset Workers tion 7 of the Act.
Union Local 23, AFL-CIO, or in any other labor orga - 2. Take the following affirmative action which is
nization , by acquiescing in the placement of employees necessary to effectuate the policies of the Act:
in a lesser priority status than they are entitled to or by (a) Restore Martin Claydon and Theodore Compag-
placing them in such lesser status, or discriminating in none to the top and third positions respectively on the
any other manner in respect to their hire or tenure of priority list for Prep . Room pressmen.
employment or any term or condition of employment . (b) Jointly and severally with , Respondent Company
(b) In any other manner interfering with, restraining , make whole the above -named employees for any loss
or coercing its employees in the exercise of the rights sustained by reason of the discrimination against them,
guaranteed in Section 7 of the Act. with interest to be computed in the customary manner.'
2. Take the following affirmative action which is (c) Notify Williams Press, Inc., Menands, New
necessary to effectuate the policies of the Act: York, and mail copies of such notice to Claydon and
(a) Restore Martin Claydon and Theodore Compag - Compagnone , that it has restored those two employees
none to the top and third positions respectively on the to the top and third positions respectively on the pri-
priority list for Prep . Room pressmen . ority list for Prep . Room pressmen.
(b) Jointly and severally with Respondent Union (d) Post at its offices and meeting halls copies of the
make whole the above-named employees for any loss attached notices marked "Appendix A" and "Appen-
sustained by reason of the discrimination against them , dix B ."7 Copies of said notices , on forms provided by
with interest to be computed in the customary manner .4 the Regional Director for Region 3, shall be posted by
(c) Post at its place of business in Menands , New the Union , after being duly signed by the Company's
York , copies of the attached notices marked "Appen- and the Union 's representatives respectively , immedi-
dix A" and "Appendix B."5 Copies of said notices , on ately upon receipt thereof, and be maintained by it for
forms provided by the Regional Director for Region 3, 60 consecutive days thereafter, in conspicuous places,
shall be posted by the Company, after being duly signed including all places where notices to its members are
by the Company's and the Union 's representatives re- customarily posted . Reasonable steps shall be taken by
spectively , immediately upon receipt thereof, and be the Union to insure that said notices are not altered,
maintained by it for 60 consecutive days thereafter , in defaced , or covered by any other material.
conspicuous places, including all places where notices (e) Promptly furnish to the Regional Director for
to its employees are customarily posted . Reasonable Region 3 copies of Appendix B for posting by the Com-
steps shall be taken by the Company to insure that said pany at its place of business in Albany , New York.
notices are not altered , defaced, or covered by any (f) Notify the Regional Director for Region 3, in
other material . writing , within 20 days from the date of the receipt of
(d) Notify the Regional Director for Region 3, in this Decision , what steps the Respondent Union has
writing, within 20 days from the date of the receipt of taken to comply herewith.
this Decision , what steps the Respondent Company has
taken to comply herewith.
B. Respondent Albany Printing Pressmen Assistants
and Offset Workers Union Local 23, AFL-CIO , Renss-
elaer , New York , its officers , agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Placing employees , or causing or attempting to
cause Williams Press, Inc., or any other employer to
place employees in a lesser priority status than they are
entitled to or otherwise to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act.
F.W Woolworth Company, 90 NLRB 289 , Isis Plumbing & Heating
Co, 138 NLRB 716.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
See fn 4
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage or discourage mem-
bership in Albany Printing Pressmen Assistants'
and Offset Workers Union Local 23, AFL-CIO,
or in any other labor organization , by acquiescing
in the placement of employees in a lesser priority
status than they are entitled to or in placing them
WILLIAMS PRESS, INC.
in such lesser status or discriminating in any other
manner in respect to their hire or tenure of em-
ployment or any term or condition of employ-
ment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form labor
organizations, to join or assist Albany Printing
Pressmen Assistants' and Offset Workers Union
Local 23, AFL-CIO, or any other labor organiza-
tion, and to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of
the Act.
WE WILL jointly and severally with Albany
Printing Pressmen Assistants' and Offset Workers
Union Local 23, AFL-CIO, make Martin Clay-
don and Theodore Compagnone whole for any
loss sustained by reason of the discrimination
against them.
WE WILL notify Claydon and Compagnone that
they have been restored to the top and third posi-
tions respectively on the priority list for Prep.
Room pressmen.
All employees are free to become or remain, or re-
frain from becoming or remaining, members of Albany
Printing Pressmen Assistants' and Offset Workers
Union Local 23, AFL-CIO, or any other Labor organi-
zation, except to the extent that such right may be
affected by an agreement requiring membership as a
condition of employment as authorized in Section
8(a)(3) of the Act.
WILLIAMS PRESS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Ninth Floor, 111 West Huron
Street, Buffalo, New York 14202, Telephone 716-842-
3100.
907
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT place employees, or cause or at-
tempt to cause Williams Press, Inc., or any other
employer to place employees, in a lesser priority
status than they are entitled to, or otherwise dis-
criminate against employees in violation of Section
8(b)(1)(A) and (2) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the right to
self-organization, to form labor organizations, to
join or assist our Union or any other labor organi-
zation, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition
of employment, as authorized in Section 8(a)(3) of
the Act.
WE WILL jointly and severally with Williams
Press, Inc., make Martin Claydon and Theodore
Compagnone whole for any loss sustained by rea-
son of the discrimination against them.
WE WILL notify Williams Press, Inc., Menands,
New York, and mail copies of such notification to
Claydon and Compagnone, that we have restored
those two employees to the top and third positions
respectively on the priority list for Prep. Room
pressmen.
All employees are free to become or remain, or re-
frain from becoming or remaining, members of this
Union or any other labor organization, except to the
extent that such right may be affected by an agreement
requiring membership as a condition of employment as
authorized in Section 8(a)(3) of the Act.
ALBANY PRINTING
PRESSMEN ASSISTANTS'
AND OFFSET WORKERS
UNION LOCAL 23,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Ninth Floor, 111 West Huron
Street, Buffalo, New York 14202, Telephone 716-842-
3100.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The consolidated
complaint herein (all charges filed March 11, 1971) alleges
that the Company has violated Section 8(a)(1) and (3) and the
Union Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act, as amended, 73 Stat. 519, as amended, by the
Company's delegation to the Union of control over the pri-
ority list which governs company Prep. Room pressmen's
preference for shifts, vacations, overtime work, and the order
and duration of layoff, and by the Union's exercise of such
control by placing, and causing the Company to place, Prep.
Room pressmen Compagnone and Claydon on said list in a
lesser status than they were entitled to, thereby adversely
affecting them with respect to, shifts, vacations, overtime
work, and layoffs. The Company's answer admits the allega-
tions of violation: Although appearing at the trial and re-
questing "a full hearing ... to get the proper answer" with
respect to the priority list, the Union filed no answer.
The case was tried before me in Albany, New York, on
September 20, 1971. Pursuant to leave granted to all parties,
a letter has been filed by the Union, with a request that it
"should be considered the Union's brief," the time to do so
having been extended.
With the allegations of the complaint admitted by the
Union by its failure to deny either by answer or at the trial
and by the Company in its answer as amended at the trial
with respect to purely formal denials, I reserved decision on
the General Counsel's motions for summary judgment, to
await the Union's more detailed statement of its position. The
motions are hereby granted in accordance with the following
findings, conclusions, and recommendations.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
(WITH REASONS THEREFOR)
AND CONCLUSIONS OF LAW
I THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a New York
corporation, the nature and extent of its printing business,
and its engagement in commerce within the meaning of the
and conclude that the Union is a labor organization within
the meaning of the Act.
II. THE ALLEGED VIOLATION
OF SECTION 8(a)(1) AND (3)
The unit has been recognized by the Company as exclusive
bargaining agent for a unit of employees at its plant including,
among others, Prep. Room pressmen. Exclusive control over
a priority list as alleged and described above has been dele-
gated by the Company to the Union, and the latter has exer-
cised such control.
In exercising control, over the priority, list, the Union on or
about February 18, 1971, placed Compagnone and Claydon,
who we were informed without contradiction had occupied
number three and number one, positions respectively on the
priority list, in a lesser status than they were entitled to and
caused the Company to place them in such lesser status; and
the two employees were thereby adversely affected with re-
spect to shifts, vacations; overtime work, and layoffs.
The Union breached its duty to represent these two em-
ployees fairly and caused and attempted to cause the Com-
pany to discriminate against them , in violation of Section
8(b)(1)(A) and (2); I so find and conclude. I also find and
conclude that the Company, interfered and discriminated
against , them in violation of Section 8(a)(1) and (3).
Whatever the Union' s internal problems, they remain in-
ternal. They are not in issue here and are not before us. Even
in its brief the Union has not: urged facts which, were there
denial of complaint allegations , could be weighed to indicate
whether its representation of these employees was fair and
lawful. Denials being absent, proof of culpability was not
sought; and-exculpatory proof or explanation not reached or
at any time offered.
It appears without contradiction that the Company re-
sisted, telling the Union that the latter's action in lowering
the two employees' positions on the priority list was im-
proper; the Company believed this and told the employees
that they could have recourse to the Board.
Under the circumstances, as the General Counsel re-
quested, Compagnone and Claydon should be restored to
their proper places, number three and number one respec-
tively, on the priority list and,should be made whole for any
loss suffered as a result of the interference and discrimination
found, the Union to be primarily liable for making them
whole.'
[Recommended Order omitted from publication.]
Act are admitted; I find and conclude accordingly. I also find ' Zoe Chemical Co., Inc, 160 NLRB 1001