Bay Area Typographical Union Loc. No. 21

National Labor Relations Board - Board Decisions

Jun 25, 1975

218 N.L.R.B. 812 (N.L.R.B. 1975)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bay Area Typographical Union Local No. 21, Interna-
tional Typographical Union , AFL-CIO (Northwest
Publications Inc.) and Keith Halterman. Case 20-
CB-3228
June 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On April 18, 1975, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Bay Area
Typographical Union Local No. 21, International
Typographical Union, AFL-CIO, San Francisco,
California, its officers, agents , and representatives,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
JAMES S. JENsoN, Administrative Law Judge: This matter
was heard before me in San Francisco, California, on
November 5, 1974. The complaint, which issued on
September 30, 1974, pursuant to a charge filed on July 3,
1974, alleges a violation of Section 8(bXl)(A) and (2) of the
Act. Specifically, the complaint alleges that on or about
June 11, 1974, Respondent caused Northwest Publications,
Inc., to discharge Halterman, in violation of Section 8(aX3)
of the Act, and/or for reasons other than Halterman's
failure to tender periodic dues required as a condition of
his retaining membership in Respondent, and/or because
of Halterman's failure to pay such dues where Respondent
had failed to meet its fiduciary obligation to Halterman.
Respondent denies Halterman was terminated for the
r My rejection of Resp. Exh. 14, 15, 16, and 17, which I hereby reaffirm,
disposes of Respondent 's affirmative defense.
2 Appendix F, insofar as is relevant to this case, states: "All present
218 NLRB No. 72
reasons alleged and contends his discharge was the
consequence of a demand made by the Respondent
pursuant to a lawful union security agreement.
All parties were given full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, to argue orally, and to file briefs. Briefs were filed by
both the Respondent and the General Counsel and have
been carefully considered.
Upon the entire record in the case,' and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Northwest Publications, Inc., herein called the Mercury-
News and the Employer, is a Delaware corporation
engaged in the publication of two newspapers in San Jose,
California. During the past year, the Employer, in the
course and conduct of its business operations, held
membership in or subscribed to interstate news services,
published nationally syndicated features, advertised na-
tionally sold products, and derived gross revenues from its
publishing operations in excess of $200,000. The Respon-
dent concedes, and I find, that the Employer is, an
employer within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Bay Area Typographical Union Local 21, International
Typographical Union, AFL-CIO, herein called Respon-
dent, is and at all times material has been, a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years, San Jose Typographical Union
No. 231 and the Employer were parties to a series of
collective-bargaining agreements covering the Mercury-
News composing room employees, the most recent of
which carried an expiration date of December 31, 1973.
Prior to that date, Local No. 231 merged with San
Francisco Typographical Union No. 21, the surviving
labor organization being the Respondent herein. Sometime
in May 1973, following the merger, the Respondent and
the Mercury-News entered into a supplemental agreement
covering problems which had arisen with respect to the
introduction of certain automated equipment in the
Employer's composing room. That agreement, "in full
force and effect until December 31, 1976," contains, inter
alia, a union-security clause.2 Inasmuch as the Internation-
al Typographical Union had for many years had a policy
against including such clauses in collective agreements,
none of the prior contracts had contained a union-security
clause. On or about Friday, July 13, 1973, shortly after
employees who are members of the local union on the effective date of the
agreement shall remain members of the local union in good standing as a
condition of continued employment." (Emphasis supplied.)
BAY AREA TYPOGRAPHICAL UNION LOC. NO. 21 813
implementation of the union-security clause, John Ho-
wells, Respondent's chapel chairman at the Mercury-
News, told Keith Halterman "that I [Halterman] wasn't
going to be allowed to work that night or until I paid my
back dues, that a substitute had been put on for me for the
duration...: . On the following Sunday night, Halterman
received a phone call from Acting Assistant Foreman
Green regarding his absence from work. Halterman replied
that he was not allowed to work because he was behind in
his dues and that a substitute had replaced him. Green
responded that, although Halterman's job, had been
"covered" on Friday night, it hadn't been on either
Saturday or Sunday night. The following morning Stephen
Pintek, the Employer's general foreman, called Halterman
and asked why he hadn't covered his "situation" on
Saturday and Sunday.3 Halterman advised him that the
Respondent had prevented him from working because he
hadn't paid his dues. Pintek informed Halterman that it
was the latter's responsibility to see that his job was
"covered," and that he was going to be terminated for
failure to do so. Subsequently, a joint standing committee
composed of union and management personnel was called
to resolve the problem. Pintek stated that he didn't want to
terminate people, and that since he was responsible for
maintaining a work force in the composing room, he
wanted it understood that in the future the Union should
come to him with problems instead of the Union
preventing workers from coming to work. It was decided
that HHalterman should be reinstated since an apparent
misunderstanding had occurred regarding who was respon-
sible for covering his "situation." Halterman was given a
written warning that he would be terminated if he failed to
cover his "situation" again. Shortly thereafter, Howells
referred Halterman to a copy of appendix F which had
been posted on the "chapel board," and told him that
"he'd better be very careful because we have a new
contract clause." According to Howells' testimony, nothing
was mentioned at that time regarding how many months
delinquency in dues would constitute loss of "good
standing" under the union-security clause.
B. Halterman Falls Behind in His Dues4
In September 1973, Halterman again began to fall
behind in his dues payments. Respondent's records show
Halterman paid:
September 1973 dues on November 23
October 1973 dues on December 14
November 1973 dues on January 8, 1974
December 1973 dues on February 28, 19745
January dues on April 9
February dues on April 9
His March, April, May, and June dues were paid on July 9.
Thus, it is seen that Halterman was delinquent in the
payment of dues for the months of March, April, and May
s Regularly employed employees are called "situation" holders. Part-
time workers are called "extras." Since his termination on June 30, 1974,
and payment of back dues shortly thereafter, Halterman has been employed
at the Mercury-News as an "extra."
4 Art. III, sec . 4, of the Respondent's General Laws provides that dues
shall be paid not later than the first day after the payday following the last
at the time the Union requested his termination by letter
dated June 11.
Halterman testified that, in the fall of 1973, when he was
behind 2 months in dues and was under the impression
that he could lose his job if he was behind 3 months, he
discussed the matter with Mike Legos, the chapel secre-
tary-treasurer, and that Legos told him "the law says at 4
months is the date they can get you, if you're behind, so
whatever you do, don't get 4 months back." Legos testified
that, while he had discussed Halterman's dues delinquen-
cies with him, he didn't "believe" they had ever discussed
"how much time would go by before he would possibly
lose his job under the union security agreement, ... I've
warned him ... that he should pay his dues because he's
getting behind, but I don't think anything was brought up
of how long." For reasons stated hereafter, I am convinced
that Legos thought that Halterman's job was secure as long
as he didn't become 4 months delinquent in dues, and that
he conveyed that thought to Halterman.
Gregor M. Bachich, Respondent's secretary-treasurer,
testified that he first became aware of the union-security
clause in the contract between the Respondent and the
Mercury-News around the end of May 1974.6 Leon Olson,
Respondent's president, had called the union-security
clause to Bachich's attention when Bachich informed
Olson that the employees of the Mercury-News were
"falling behind more in dues."
Sometime in early June, Chapel Chairman Howells was
informed by union officials in San Francisco that employ-
ees Halterman and Robert J. Hughes 7 were delinquent in
their dues. Howells testified that he contacted Pintek,
informed him of their delinquency, and said that "they're
not in good standing under the contract, and they really
should be dismissed." He testified that Pintek's response
was that "this is something new" and asked that the Union
write him a letter. Howells advised the Respondent's San
Francisco office of the request. On June 11, Olson wrote a
letter requesting that the Mercury-News terminate Halter-
man pursuant to appendix F of the agreement since he had
failed to pay his dues for the months of March, April, and
May, and was no longer a member in good standing.
Similarly worded requests were made with respect to
Robert N. Burford and Robert J. Hughes. The Burford
request for discharge, which was predicated on his dues
delinquency for the months of April and May, was
subsequently withdrawn since it was learned that he had
been injured in a motorcycle accident and was covered by
a union provision whereby dues were advanced until the
sick or injured member returned to work. The Hughes
request for discharge was based on his dues delinquency
for the months ofFebruary, March, April, and May. Thus, it
is seen that Respondent sought to invoke the union-
security clause, for the first time that it had ever been used,
against three employees who were delinquent in dues
payments of 2, 3, and 4 months, respectively.
Saturday of the month.
5 All dates hereafter are in 1974 unless otherwise stated.
6 Bachich is responsible "for all financial matters of the Union,"
including the collection of dues.
7 Hughes was 4 months delinquent in dues, I month more than
Halterman
814 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
Pintek testified that, on the day Howells informed him
that Halterman and Hughes were not in good standing and
should be terminated, he asked Howells "How do you
figure when is a man not in good standing," and that
Howells responded, "Well, there's something in our bylaws
about a man being in arrears 4 months in his dues that he's
not in good standing." Howells' testimony regarding this
conversation was as follows: "Well, I'm just sure that I
never would have said 4 months would be not in good
standing, because my definition - and I think that we, if
we discussed the 4 months, then I'm sure it would have to
do with suspension of membership. I might have been
under the impression that Mr. Halterman was 4 months
behind. I think that I knew that Mr. Hughes was 4 months
behind, which means suspension of membership. If it was
brought up - if 4 months was brought up - I don't recall
it, but that would be the context, that these people should
be suspended from membership and not only discharged."
I fmd Pintek to have been a neutral and unbiased witness
and credit his testimony that Howells told him that under
the bylaws a man lost his "good standing" by being
delinquent in dues payments for a period of 4 months.
Moreover, as noted heretofore, Halterman testified that
Legos had also told him that "they can get you, if you're
behind ... 4 months." In crediting-the testimony of Pintek
over Howells, and Halterman over Legos, I have given
consideration to the following:
1. Neither Howells nor Legos testified that he had
informed Halterman, prior to his discharge, of the standard
for determining "good standing."
2. Article IX, section 7, of the bylaws of the Interna-
tional Typographical Union (Resp. Exh. 13), provides that
"members of subordinate unions or members holding
traveling cards shall stand suspended when 4 months in
arrears for local or international dues or assessments.
Members suspended for non-payment of dues shall have
no standing in the organization and shall not be entitled to
benefits."
3. The message found on the inside of the cover to the
Book of Laws of the International Typographical Union
(Resp. Exh. 13) reads in pertinent part: "A member becomes
suspended for non-payment of dues when he is 4 months in
arrears. Suspension does not await or depend upon action
by the local union. Suspension is automatic, and results
simply from the' members failure to pay dues and
assessments as required by law. It occurs on the tenth day of
the month in which 'the member becomes 4 months in arrears."
4. The Journeyman Working (Dues) Card (Resp. Exh.
2) used by Respondent contains the following message,
"... any member of the Union neglecting to pay said dues
and finesfor 4 months shall be dropped from the role. "
5. Article III, section 15, of Respondent's General
Laws (Rasp. Exh. 11) provides as follows: "Any member
... neglecting to pay said dues, assessments and finesfor 4
months shall stand suspended.... A member failing to pay
dues, assessments and fines for a period of 4 months shall be
dropped from the membership role ...." In light of the
s Halterman testified, without contradiction, that it was not until after
Respondent requested his discharge that Howells told him the 4 months
standard did not apply to "good standing," but applied instead to
suspension from membership . He testified further, without contradiction,
that after his discharge he asked Legos to explain the "cut-off date, that you
foregoing, I fmd it quite logical that both Howells and
Lagos thought that a member remained in "good standing"
until he was delinquent in dues, fines, and assessments for
a period of 4 months, and that they so informed both
Halterman and Pintek.8
C. Halterman's Attempt To Pay His Dues
There was considerable testimony with respect to
whether Halterman attempted to pay his March dues on
June 10 or 13. Halterman testified that on June 10 he had
deposited an envelope containing March dues in a box
maintained in the chapel for that purpose by Legos. Lagos
testified that the attempt to pay March dues was not made
until June 13, and that the payment was rejected since he
had been instructed by union officials in San Francisco not
to accept a partial payment. Whether the tender of March
dues was made on June 10 or 13 is unimportant since it
was not unlawful for the Union to reject a partial payment.
Moreover, I am unable to conclude from the record upon
which date the tender was actually made. A fording that it
was made on either date would not affect my credibility
findings heretofore made since it is not uncommon "to
believe some and not all of a witnesses testimony."
N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749,
754 (C.A. 2, 1950).
D. Analysis
The principal issue in this case is whether Respondent
had a duty to inform Halterman as to the manner in which
the union-security clause was to be interpreted against him
and, if so, whether it breached that duty. In Rocket and
Guided Missile Lodge 946, International Association of
Machinists and Aerospace Workers, AFL-CIO, (Aerojet-
General Corporation), 186 NLRB 561 (1970), the Board,
citing N.L R. B. v. Hotel, Motel and Club Employees Union,
Local 568, 320 F.2d 254, 258 (C.A. 3, 1963), stated: "Both
the Board and the courts have held that a union seeking to
enforce a union security provision against an employee has
a `fiduciary' duty to `deal fairly' with the employee
affected. `At a minimum this duty requires that the union
inform the employee of his obligations in order that the
employee may take whatever action is necessary to protect
his job tenure.' " While it is true that Halterman
understood at all times that he had an obligation to pay
dues, Respondent failed to inform him when such
payments were to be made in order that he might protect
his job tenure. As aptly stated by Administrative Law
Judge Funk in Local 1908, United Transport Union (Cottrell
Bus Service, Inc.), 199 NLRB 872, 874 (1972), "Union
security clauses and checkoff provisions are powerful
instruments for control over the right of employment and
should not be exercised ruthlessly."
The evidence clearly discloses that Respondent not only
failed to advise Halterman what "good standing" meant,
but that Chapel Chairman Howells, (who was responsible
get fired for being late with your dues for 4 months," and that Legos replied,
"I don't know what 's going on either. I always thought that it was 4 months
_ .. its a surprise to me ... I haven't been advised by anybody the
particulars of the case:'
BAY AREA TYPOGRAPHICAL UNION LOC. NO. 21
for enforcing the collective-bargaining agreement and the
laws of the Respondent and the chapel) and Chapel
Secretary-Treasurer Legos (who was responsible for the
collection of dues), were under the impression, and so
informed both Halterman and General Foreman Pintek,
that the union-security clause would not come into force
until a member was delinquent for a period of 4 months.
Moreover, the bylaws of the International Typographical
Union, the message printed on the inside of the cover to
the Book of Laws of the International, the wording on the
dues card, and Respondent's -General Laws, all make
reference to suspension or dropping from the "roles" after
failure to pay dues for a period of 4 months. Respondent
has pointed to no place in the constitution, general laws, or
bylaws of either Respondent or the International Typo-
graphical Union which would put a member on notice that
his "good standing," insofar as job tenure is concerned,
was in jeopardy for nonpayment of dues, fines, and
assessments for a period less than 4 months. That
Respondent sought the simultaneous terminations of
Burford, Halterman, and Hughes for dues delinquencies of
2, 3, and 4 months, respectively, convinces me that
Respondent's officials had not yet formulated in their own
minds, let alone advise the membership, how the term
"good standing" was to be interpreted and applied when
invoking the union-security clause. I find it further
significant that Respondent's secretary-treasurer, the indi-
vidual responsible for the collection of dues and all other
financial matters, was not even aware that a union-security
clause was in effect until the end of May 1974, when he
learned that employees at the Mercury-News "were getting
bad about dues." I am convinced, and so find, that on June
11, 1974, when the Respondent requested Halterman's
discharge for loss of "good standing," Respondent had not
accurately advised Halterman regarding his "obligations"
so that he could "protect his job tenure." I further find that
Chapel Secretary-Treasurer Legos, charged with the
responsibility of collecting dues for Respondent, was an
agent of Respondent when he advised Halterman that he
need not fear loss of his job as long as he was not 4 months
delinquent in his dues.
On the basis of the foregoing, I find that Respondent
failed to fulfill its fiduciary duty to notify Halterman of his
obligations under the union-security clause, and that it
therefore unlawfully caused his discharge in violation of
Section 8(bX2) and (1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Mercury-News described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
V. THE REMEDY
815
Having found that by the aforementioned conduct
Respondent has violated Section 8(b)(2) and (1)(A) of the
Act, I shall recommend that it cease and desist from
engaging in such conduct in the future and affirmatively
take such action as will dissipate the effects of its unfair
labor practices. Accordingly, I shall recommend that
Respondent notify the Mercury-News, in writing, with a
copy to Keith Halterman, that it withdraws its objection to
the Mercury-News employment of Halterman and request
it to offer him reinstatement and restoration to his
"situation" as it existed on June 30, .1974, the date of his
discharge. It is further recommended that Respondent
make Halterman whole for any loss of pay suffered by
reason of the discrimination against him, by payment to
him of a sum of money equal to the amount he would
normally have earned as wages from . the date of his
discharge and loss of his "situation," less his net earnings
during that period. The loss of earnings shall be computed
in the manner prescribed in F W. Woolworth Company, 90
NLRB 289 (1950), and with interest on the backpay due in
accordance with Board policy set out in Isis Plumbing &
Heating Co., 138 NLRB 716(1962). Respondent's backpay
liability shall terminate 5 days after it notifies the Mercury-
News that it has no objection to Halterman's reinstate-
ment, as provided above. Aero. et-General Corporation,
supra.
On the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Northwest Publications , Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act. ,
2. Bay Area Typographical Union Local 21, Interna-
tional Typographical Union , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By causing Northwest Publications, Inc., to dis-
charge Keith Halterman for reasons other than his failure
to tender periodic dues and initiation fees, Respondent
Union violated Section 8(bX2) and (1XA) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDERS
Respondent Bay Area Typographical Union Local 21,
International Typographical Union, AFL-CIO, San Jose,
California, its officers, agents, and representatives, shall:
1. Cease and desist from:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Causing or attempting to cause Northwest Publica-
tions, Inc., to discriminate against any of its employees, in
violation of Section 8(aX3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as"a condition of employment, as authorized
by Section 8(aX3) of the Act.
2. Take thelollowing affirmative action:
(a) Make whole Keith Halterman for any loss of pay he
may have suffered as a result of the discrimination against
him in the manner,set forth in the section above entitled
`"The Remedy."
(b) Notify Keith Halterman and Northwest Publications,
Inc., in writing, that it withdraws its objections to
Halterman's employment and request the Employer to
offer Halterman reinstatement and restoration to his
"situation"' and to his full seniority and other rights and
privileges as they existed on June 30, 1974, the, date of
Halterman's discharge.
(c) Post at its business office and on the chapel board at
the Mercury-News copies of the attached notice marked
"Appendix. " 10 Copies of said notice on forms provided by
the. Regional Director for Region 20, after being duly
signed"by-the Union's representative, shall be posted by the
Union immediately upon receipt thereof, and be main-
tained 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 Respondent Union to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Forward„ signed copies of the Appendix to the
Regional Director for Region 20, for posting by Northwest
Publications, Inc., at its place of business in San Jose,
10 In the event that the Board's 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 read "Posted' Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
California, in places where notices to employees are
customarily posted, if the Employer is willing to do so.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Ncrthwest
Publications, Inc., to discriminate against Keith Halter-
man or any other employee in violation of Section
8(a)(3) of the Act.
WE Will, notify Keith Halterman and Northwest
Publications, Inc., in writing, that we withdraw our
objections to Halterman's employment and request
Halterman's reinstatement to his "situation" and the
restoration of his full seniority and other rights and
privileges as they existed on June 30, 1974, the date of
his discharge.
WE wnL make Keith Halterman whole for any loss
of .pay suffered because of the discrimination against
him.
WE wua. NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment.
BAY AREA TYPOGRAPHICAL
UNION LOCAL 21,
INTERNATIONAL
TYPOGRAPHICAL UNION,
AFL-CIO