Boston Mailers' Union No. 1

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 989 (N.L.R.B. 1974)

BOSTON MAILERS' UNION NO. 1 989
Boston Mailers' Union No. 1 a/w International
Typographical Union, AFL-CIO and Union Lead-
er Corporation . Case 1-CB-2295
May 28, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY,ANDPENELLO
On February 25, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel and
Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, findings,
and conclusions 1 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
the Board issued an "Order Granting Request To Amend
Complaint, Denying Motion For Summary Judgment, And
Remanding Proceeding To Regional Director." The case
was then tried before me at Boston , Massachusetts, on
October 25, 1973, with all parties represented by counsel.
The issue in the case is whether or not the Respondent
Union restrained and coerced Union Leader Corporation,
an employer, herein the Company, by fining Supervisor
Lane $800 for activities by Lane regarding employee
Spencer.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Company is a New Hampshire corporation and
maintains its principal office and place of business in
Manchester , New Hampshire , where it is engaged in the
publication of daily and Sunday newspapers.
In the course of its business , the Company holds
membership in, and subscribes to, interstate news services,
publishes nationally syndicated features , and advertises
nationally sold products . Its gross volume of business is in
excess of $200,000 annually.
The Company is an employer engaged in commerce
within the meaning of the Act.
Boston Mailers ' Union No. 1, a/w International Typo-
graphical Union , AFL-CIO, herein the Union or Boston
Mailers' Union, is a labor organization within the meaning
of the Act.
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 Respondent, Boston Mailers'
Union No. I a/w International Typographical
Union , AFL-CIO, Boston , Massachusetts , its offi-
cers , agents, and representatives , shall take the action
set forth in the said recommended Order.
i We hereby correct an inadvertent error in the Administrative Law
Judge's conclusions that Respondent violated Section "8(a)(I)(B)," to read
that Respondent has violated Section 8(b)(1)(B) of the Act.
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge was filed on April 23, 1973, and the complaint
issued on June 15, 1973. Respondent filed its answer, dated
June 25, 1973, denying the complaint allegations of unfair
labor practices. Thereafter, Respondent filed a Motion for
Summary Judgment, dated July 6, 1973. On July 25, 1973,
the Board, through its Associate Executive Secretary,
issued an "Order Transferring Proceeding To The Board
and Notice To Show Cause." The General Counsel on
August 2, 1973, issued an Opposition To Respondent's
Motion for Summary Judgment, including a motion to
amend the complaint as set forth in the motion. The
Charging Party also filed an Opposition to Respondent's
Motion for Summary Judgment. On September 27, 1973,
i A chapel chairman is in substance a union representative equivalent to
a shop steward in other unions
II. THE ALLEGED UNFAIR LABOR PRACTICES
In June 1972 Spencer was hired as a journeyman in the
company mailroom. According to General Foreman
Woodlock, Spencer had first gone to Peterson, a journey-
man who was the chapel chairman.' Peterson then brought
Spencer to Woodlock and within a few days Spencer was
hired.2 As a journeyman card holder in the Union, Spencer
was hired without further test of his competence.
For the first week of his employment, Spencer worked
two or three shifts on the day shift, 9 a.m.-4:30 p:m.,
which at the time was putting out a special edition.
Thereafter, Spencer worked regularly on the night shift,
10:30 p.m.-6 a.m. Eight or nine men worked on the night
shift and four on the day shift. Battistelli was foreman of
the day shift and he also worked as a rank-and-file
journeyman on the night shift. Lane was foreman and
supervisor of the night shift. Kirks was the assistant
foreman on the night shift. The mailroom, including the
foremen and the employees, were under the supervision of
the general foreman, Woodlock, who usually was present
in the plant from 9 a.m. to 4:30 p.m.
Woodlock has been a member of the Union for 25 years
and Lane for approximately 16 years and they were
members at the time of the instant hearing. Neither
Woodlock nor Lane had previously known or worked with
Spencer before he came with the Union Leader Corpora-
tion in June 1972. As far as appears, this is also true of
Battistelli and Kirks.
2 Spencer at some point had evidently deposited his union card with the
secretary - treasurer of the Union, according to Woodlock
210 NLRB No. 159
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodlock testified that about 2 weeks after Spencer
started working in the plant, Battistelli came to him and
complained about Spencer's inability to perform the work.
Apparently Battistelli was basing his complaint on his own
observation of Spencer, including the latter's brief period
on the day shift and his regular work thereafter on the
night shift. After the foregoing complaint from Battistelli,
Woodlock spoke to Lane about Spencer. Lane confirmed
Battistelli 's report and said that Spencer was not a
competent workman and could not perform the tasks of a
journeyman.
In the ensuing weeks in July and August 1972, Woodlock
had a series of complaints from Battistelli and Lane about
Spencer's incompetency. Battistelli was the one who had
taken the initiative in these complaints and his views were
evidently the result of his work on the night shift where he
worked as a journeyman with Spencer and the other night
shift men.3 Battistelli indicated to Woodlock that he felt
that Woodlock was placing too great a burden on Lane by
compelling Lane to carry an incompetent like Spencer on
the night shift and that Woodlock should take a stand on
the matter and discharge Spencer for incompetency. It was
generally only when Woodlock spoke to Lane regarding
Battistelli 's reports about Spencer that Lane would voice
his own view that Spencer was indeed incompetent. Also,
on occasion, when Woodlock would hold Lane accounta-
ble for certain derelictions in work performance on the
night shift, Lane would explain how he had to carry
Spencer and that the latter was a burden and a hinderance
by reason of his incompetency. Far from displaying any
personal animosity toward Spencer or eagerness to report
Spencer's deficiencies, it appears that Lane reported
Spencer's incompetency only when he virtually had no
alternative. Although, in the foregoing series of reports,
Lane did not hesitate to tell Woodlock that Spencer was
incompetent and should be discharged, he made it clear
that he had nothing of a personal nature against Spencer.
Thus, Woodlock testified that although Lane told him that
Spencer was incompetent, Lane also told him that Spencer
tried to do the work but he "just didn't have it" i.e., lacked
the ability and competence to perform the work.
In July or early August 1972, as a result of the reports
from Battistelli and Lane about Spencer's work, Woodlock
called Spencer into a room at the plant where they could
talk privately. Woodlock then told Spencer that he,
Woodlock, had checked into the matter with Lane,
Battistelli , and Kirks, the two foremen and the assistant
foremen, respectively, and that Woodlock had decided to
come to the plant Friday night and personally test
Spencer's ability to perform the work. Woodlock said that
3 Since Battistelli, unlike Lane, also worked on the day shift, he had
more opportunity to speak to Woodlock who was not present at night.
4 This is Woodlock's testimony He no doubt referred to and recited how
he had earlier foregone testing Spencer's competency as a journeyman and
had allowed him to continue in his job, despite the complaints of the
foremen , and Woodlock had done this when Spencer pleaded a personal
problem and has asserted that he planned to remain only a short time
It is fairly clear that even without the test , Woodlock had no reason to
doubt the many reports of all his foremen that Spencer was incompetent
The test was probably meant to be a step of "due process" rather than a
reflection of any question in Woodlock's own mind as to the accuracy of the
foremen's reports about Spencer's incompetency Moreover, any question of
Spencer's incompetency would have been removed by Spencer 's reaction to
if he found that Spencer was incompetent to perform the
work, Woodlock would not allow Spencer to continue in
his job. Spencer appealed to Woodlock to allow him to
continue to work, explaining that he was in Manchester
only for a short time so that he could be with his mother
who was ill. Woodlock said that he would allow Spencer to
continue in his job and shelved the prospective Friday
night test on the assumption that Spencer, as he had
indicated, intended to remain only for a short time.
Thereafter, Spencer continued in his job and Woodlock
continued to receive reports from his foremen about
Spencer's incompetency and that Spencer was a burden.
This situation remained unchanged until a day in the latter
part of August 1972. At that time Woodlock was awakened
at night at his home by a call from assistant night foreman,
Kirks, from the plant. Kirks, who was upset, told
Woodlock that Spencer and the chapel chairman, Peterson,
had just heavily harassed him about some work changes he
was making. Woodlock got dressed and came to the plant.
He spoke to Spencer and recited aloud the condition under
which he had agreed to allow Spencer to continue as an
employee.4 Woodlock then said that he could not tolerate
Spencer any longer and he discharged him for incompeten-
cy.
Within a day or two of Spencer's discharge, union
officials met with the general manager and other manage-
ment people of the Company about the matter.5 Woodlock
was present at the meeting only for about 10 minutes and
then was asked to leave.6 One of the statements or
contentions that had been made at the meeting in
Woodlock's presence was that Spencer held a journey-
man's union card and therefore could not or should not be
discharged for incompetency.
It was decided by higher management and the Union
that Spencer would be reinstated pending arbitration of his
discharge. Spencer was therefore back in his job immedi-
ately.
Woodlock testified credibly that he was "not happy"
about Spencer's reinstatement pending arbitration, and,
about a week after the reinstatement, Woodlock called a
meeting with his foremen, Lane and Battistelli. This
meeting was evidently some time in the first part of
September 1972.
At the meeting, Woodlock told his foremen that the
Spencer case would be going before an arbitrator and "we
had to prepare for a case of arbitration." Woodlock
mentioned the contention or statement that he had heard
at a management-union meeting to the effect that since
Spencer had a union journeyman's card he could not be
discharged for incompetency. Lane and Battistelli ex-
the prospective testing of his competency Instead of agreeing to taking the
test and thus vindicate or demonstrate his competency , Spencer avoided it
by pleading his mother's illness and by stating that he only intended to
remain on the job for a short time It was this plea rather than any question
in Woodlock' s mind that Spencer was incompetent that had allowed the
latter to continue in his job
5 There may have been more than one such session since Woodlock
refers to what was said "at one of thejoint [company and union ] standing
meetings. . . "
8 The issue of Spencer's discharge was before higher management and
the Union officials . Woodlock of course, was not in a position to review his
own action in discharging Spencer
BOSTON MAILERS' UNION NO. 1 991
pressed the view that such a contention was ridiculous and
that competency was still a relevant consideration. Wood-
lock, in substance, said that there was no way of knowing
how an arbitrator would regard the matter and an
arbitrator might consider a union journeyman's card as
establishing the competency of the card holder.
It was thus apparent that Woodlock was enlisting the aid
and support of Lane and Battistellf, his foremen, to prepare
for an arbitration proceeding regarding Spencer's dis-
charge. Woodlock also indicated that there was a definite
possibility that the matter of Spencer's union card would
be an important factor in the arbitration and that the
arbitrator might accept the argument that the Union
journeyman's card equated with, or established, the card
holder's ability and competency and therefore the card
holder's discharge for alleged incompetency could not
stand.
Accordingly, in view of the foregoing, it was normal and
to be expected that Lane or Battistelli would come forward
with any information or suggestions that either might have
that would support Woodlock's August discharge of
Spencer for incompetency. As foremen, they would have
been derelict in their function if they withheld information
or ideas that would be supportive of the discharge made by
their general foreman, Woodlock. Moreover, although the
foregoing would have been true even if Lane and Battistelli
had had no personal work contact with Spencer, it is
doubly true in the instant case where both Lane and
Battistelli as foremen had personally found Spencer to be
incompetent and had independently recommended his
discharge previously. It is therefore apparent, in my
opinion, that what followed at the meeting between
Woodlock, Lane, and Battistelli was part and parcel of
Lane's and Woodlock's functions as supervisors.
As we have seen, Woodlock told Lane and Battistelli that
"we" have to prepare for arbitration. Woodlock also
mentioned to the foremen his concern with the potential
contention before the arbitrator that Spencer as the holder
of a union journeyman's card was deemed competent to
perform his duties and therefore his discharge for incompe-
tency could not be sustained.
Woodlock stated to Lane and Battistelli that "anything
we could find out about Spencer would be helpful before an
arbiter." Lane then said to Woodlock that in the weeks
that Spencer had worked under Lane on the night shift,
Lane had had several conversations with Spencer. Spencer
had come from California and had worked there in the
Mailers' Union trade. Lane had also worked in the trade
for four or five newspapers in the same general California
area as Spencer had assertedly worked. Lane told Wood-
lock at this meeting of the foremen regarding arbitration
that Lane had mentioned to Spencer the names of several
people in the trade but Spencer did not know them "and
yet he [Spencer] claimed he had worked at certain places
where these people were." Lane then said to Woodlock
that Lane knew several people in the trade in California
and that by contacting them he might find out something
about "how this guy [Spencer] got his [union] card." Lane
asked Woodlock if Woodlock would like Lane to contact
these California people aforementioned. Woodlock said,
"yes" and told Lane, ". . . all right, to make those phone
calls [to Lane's California contacts]." Woodlock testified
that he considered the matter of Spencer's union journey-
man card to be an "important" matter and, in effect, that
he had reason to believe that it would be an issue or the
basis of contentions in Spencer's behalf before the
arbitrator.
In addition to sanctioning and approving Lane's pro-
posed telephone calls to California regarding Spencer's
work background and how Spencer had obtained his union
card as journeyman, Woodlock requested La Pointe, the
Company's circulation manager, to contact the manage-
ment people of newspapers where Spencer had claimed to
have worked to find out if Spencer had worked where he
had claimed, what type of work he had performed, and
how he acquired a union card.?
At some date in the latter part of September 1972, after
the above meeting between Woodlock, Lane, and Battistel-
li, Spencer had been elected chapel chairman; i.e., shop
steward in the mailroom. The sole source of information
about this election is Lane. Lane, as a member of the union
for many years was familiar with union matters, including
elections, and he had been chapel chairman in 1961. He
had only been a foreman since April 1972. Lane testified
that in 1972 he saw no notice of an election posted. He also
stated that it was his information that a meeting of five
local union members had been told, out of a membership
of 14-15, and that the chapel chairman resigned at the
meeting and Spencer was elected in his place. Lane
admitted that he felt Spencer had not been properly
elected.
Since Lane did not make any telephone calls to
California regarding Spencer until the first few days of
October 1972, Respondent argues that the calls were
caused by reason of Spencer's election as chapel chairman,
a matter of internal union politics, and that the calls were
not made by Lane pursuant to his position as a supervisor
carrying out the mandate of general foreman Woodlock to
secure background material on Spencer for the arbitration
hearing. I do not agree.
Although, by the end of August or the first of September,
it had been agreed that Spencer would be and was
reinstated pending arbitration, and Woodlock and Lane
were agreed on what should be done to prepare for the
arbitration hearing, there is no indication that the hearing
was imminent. As far as appears, no date had been set for
the hearing and as late as November 9, 1972, no hearing
had been held nor is there evidence that it had been
7 La Pointe, unlike Woodlock and the other foremen, was not a member
of the Union Moreover, as circulation manager, he was part of
management in a slightly different way then were the foremen and he
probably would have more rapport with higher management of newspapers
where Spencer was supposed to have worked It is fairly clear therefore that
in preparation for the arbitration of Spencer's discharge, the Company,
through Woodlock, who was most directly involved in the discharge and its
ultimate outcome, had launched a two-pronged probe or inquiry, through
La Pointe and Lane, into Spencer's background and acquisition of a union
card it was not unreasonable to believe that La Pointe and Lane would
have different types of contacts with people associated with the California
newspapers where Spencer was supposed to have worked and that therefore
there would be fruitful inquiries without duplication Moreover, information
from different sources might be more helpful than information from one
type of source
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scheduled by that time. As members of the union for 25
and 16 years, including a term as chapel chairman,
Woodlock and Lane, respectively, must have had some
knowledge, in my opinion, that between a decision by a
Company and a Union to arbitrate a dispute and the actual
arbitration hearing, there could be a substantial lapse of
time . Generally, the mechanics for setting up the hearing
involve the securing of a panel of potential arbitrators from
some source, such as the Federal Conciliation Service, the
Arbitration Association, and so forth. This involves an
approach by one or both of the parties to the source of the
arbitrators and a response by the body that will submit a
list of prospective arbitrators. Depending on the alacrity of
those involved and the status of their own respective other
duties and work loads, these initial steps may consume
days, a week, or longer. When the list of arbitrators is
secured, the selection of an arbitrator may be done
promptly or it may take some time, depending on
circumstances. Once the arbitrator is selected, his work
load, availibility, and calendar become important factors.
The hearing may eventually be scheduled for weeks or
more hence and there may be problems of reaching a date
mutually convenient for the Company, the Union, and the
arbitrator, and possibly a situs . Further, after all the
foregoing the parties will have the assurance that they will
have adequate advance notice of the date of the arbitration
hearing.
In view of such factors, neither Woodlock nor Lane had
any reason to believe that there was any urgency in
securing the data for a yet unscheduled hearing. Also
Spencer was already back as work pending an unscheduled
arbitration hearing and whether information on his
background was secured in a week or more would be
immaterial . The important factor was to have the informa-
tion before any future hearing , present it, and then await
the decision. A more simple explanation for the fact that
Lane did not call the California people until several weeks
after Woodlock had met with him and Battistelli is human
inertia . At least the delay would tend to indicate that Lane
was not, with great alacrity, eagerly pursuing a personal
vendetta against Spencer in tracking down his background
and that Lane as foreman was acting simply in a
supportive role to Woodlock in trying to secure informa-
tion to buttress the discharge of Spencer for incompetency.
I have not and do not wish to ignore the fact that Lane,
in my opinion, was annoyed by the fact that Spencer had
been elected chapel chairman. This annoyance was due, I
believe, to Lane's belief, as a foreman who was also a
union member, that Spencer was an incompetent worker
who had been properly discharged in August and that
Spencer had thereafter been improperly or illegally elected
shop chairman by a minority of members at an unpubli-
cized meeting. In my opinion, Lane's objection to Spencer
was basically that, as a foreman, Lane was convinced that
Spencer was an incompetent employee; Lane was also
aware that general foreman Woodlock and foreman
Battistelli were convinced that Spencer was incompetent;
and, most importantly, that Woodlock had discharged
Spencer and had enlisted Lane's willing support in making
Spencer's discharge "stick," through securing background
information on Spencer in preparation for an arbitration
hearing. The reason for Lane's telephone calls to union
people in California was not Spencer's election as chapel
chairman and I am confident that these investigatory calls,
which were proposed, discussed and authorized before
there was any indication that the current chapel chairman
would resign and would be replaced by Spencer, were
attributable to the basic issue of Spencer's discharge for
incompetency and the attendant effort to meet the
contention that Spencer's union card attested to his
competency.
As previously mentioned, Lane had formerly worked for
four or five newspapers in various parts of California. In
October 1972, Lane called a friend of his, Campbell, in
Sacramento, to inquire if he knew anyone in the trade in
Fresno. Evidently Campbell was not there at the time of
the call but Campbell's wife gave Lane the name of Rust, a
friend of Campbell's in the Fresno Mailers ' Union .8
Lane called Rust on Wednesday, October 4, 1972, at
about 11: 15 p.m. California time. Rust states that he and
his wife were preparing for bed at the time the call came.
Lane mentioned to Rust that Campbell had given him
Rust's name and the latter acknowledged knowing or being
a friend of Campbell. Lane, according to Rust, said that he
was a foreinan in New Hampshire but that he was making
the call "on his own."9 Rust, a witness called by
Respondent, testified that Lane asked him about Spencer
and whether Spencer had worked in Fresno. Rust states
that he told Lane that Spencer had worked in Fresno, on
the Fresno newspaper, "in the circulation department as a
truckdriver; he's not worked in the mailroom." Lane told
Rust, according to the latter, that he was inquiring as to
where Spencer got his union journeyman card. Rust said
he was not sure "but I think he got his card in San
Francisco." Rust also states that Lane told him that
Spencer was the chapel chairman in the New Hampshire
local union but that he obtained the position in a manner
contrary to union rules. During the conversation, Rust
states that Lane made long pauses and "was slow talking"
and "some of his words were slurred" and "he sounded to
me like he was drunk." Rust states that the long distance
call, coming, as it did, at night, upset his wife and
awakened his children.
The next day or so, Lane called the office of the San
Francisco Mailers Union. He spoke to the secretary who
answered. She said that Banks , the president of the Union,
was out of town and, after recognizing Lane's voice,10 she
asked what he wanted to know. He told her he was
9 The Fresno Mailers' Union and the San Francisco Mailers Union are
sister local unions of the Boston Mailers Union and are affiliated with the
same international union.
9 Assuming that Lane said this, the fact is that after Woodlock had
informed him that they had to prepare for the arbitration and that anything
regarding Spencer's background would be important, Lane had suggested
that he, Lane, could call some people in California about Spencer's
background . Woodlock approved this proposal and Lane thereafter made
the calls from his home at night As far as calling specific people, e.g.
Campbell and Rust and so forth , Lane was acting "on his own ." In a sense
and in context , therefore , Lane may have said that he was calling on his
own, although the record is clear that he reported the results of such calls to
Woodlock , and the calls had been initially approved and authorized by
Woodlock.
19 He had been a member of the union in San Francisco.
BOSTON MAILERS' UNION NO. 1 993
inquiring about Spencer so she read to him what Spencer's
file showed ; and that Spencer was "obligated" at San
Francisco 11 but that the record did not show where he had
worked previously . The secretary took Lane 's telephone
number and said that she would have Banks call Lane
when Banks returned.
Banks admitted receiving the above message but did not
call Lane because "I was never able to get back to him, you
know , to return his call." After waiting to hear from Banks
for a week or more , Lane called Banks at the latter's home
at about midnight , California time . Banks testified that the
call awakened him and his family . He states that Lane did
not tell him he was a foreman but Lane claims he did.
Since Lane had admittedly told Rust that he was a
foreman there would appear to be no reason for him not
telling Banks . In any event Banks does not claim that their
conversation would have been any different regardless of
whether Lane had said he was a foreman or not I am
convinced that this aspect is not determinative . Banks also
states that Lane said that it was a personal matter. As
previously indicated , "personal" in total context means
that Lane was personally making calls and personally
selecting the people he called. This record convinces me
that Lane had no personal vendetta against Spencer and
his inquiries were those of a foreman who was personally
convinced from his observation as a foreman that Spencer
was incompetent and as foreman he was personally and
willingly carrying out an authorized mandate from general
foreman Woodlock regarding Spencer 's background of
work and how Spencer had acquired a union journeyman
card.
Banks testified that in the telephone conversation, Lane
asked him several times how Spencer had received his
union card and the details . Banks replied that he believed
that Spencer had come in from the Fresno local but Lane
said that Spencer had secured his card from the San
Francisco Mailers Union of which Banks was president.12
Banks told Lane to call him at the office if he wanted
details and, after angrily telling Lane that the latter had
awakened Banks and his family from sleep, Banks hung
up. Lane did not call him again . 13 Banks testified that he
believed that Lane "was about half in the bag ," i.e., had
been drinking, when he called.
Several days after the above call from Lane , Banks was
talking with Downes , president of the Fresno Mailer's
Union . Downes was aware that Lane had been calling
various people , such as Rust , a member of the Fresno
Mailer's Union . When Downes was speaking with Banks,
Downes said that Lane was "trying to call around . . . on
where and how Dick Spencer got his card." Banks said that
Lane had called him and had asked "the same question."
Downes said he was going to Set in touch with White,
president of the Respondent Mailer's Union of which Lane
was a member , Banks said that Downes should also tell
White that Banks had received the same telephone inquiry
from Lane as had the people in Downes ' Fresno union.
Thereafter there was communication between White and
the aforementioned California officials of the Union.
Under date of October 6, 1972, a letter from Respondent
Union directed Lane to appear before the executive
committee of the Union. By telegram to the Union, Lane
then asked for a copy of the constitution and bylaws.
Thereafter, the Union sent a series of letters to Lane. The
gist of these letters was that Lane should appear before the
executive committee or at a hearing regarding violations of
the constitution any bylaws charged to Lane by the
executive committee. Finally by letter of February 15,
1973, the Union advised Lane that a Trial Committee
would hold a "sitting" on March 12, 1973, on "charges
preferred" against Lane by the executive committee for
violations of article XII, section I, of the constitution, and
article 5, section 1, of the bylaws:
Specifically
That you did in fact, on or about the month of October
1972, telephone one Brother David Banks, President,
San Francisco Mailer's Union No. M18, inquiring
about a former member of that local, namely, one
Brother Richard Spencer. Also asking as to where he
had worked, why and how he had gotten his Journey-
man Mailer's card, and any other information he could
provide about Brother Richard Spencer.
That you did in fact, on or about October 4, 1972, at
about 11: 15 p.m., telephone one Brother Jerry Rust,
inquiring as to where one Brother Richard Spencer had
acquired his Journeyman Mailer's Card.
Thereafter, Lane was found guilty as charged and was
fined $400 on each of the two counts. He paid his fine to
the Respondent Union in the amount of $800 on April 6,
1973.
Before completing this portion of the Decision it is
appropriate to mention that in making the telephone calls
to California, Lane called from his own home and the calls
were on his telephone bill. He neither asked his employer
to pay for the calls nor had the employer refused to pay for
the calls although it is clear that the calls were made under
General Foreman Woodlock's auspices and with his
approval and Lane did report to Woodlock on the results
of the various calls.
Although it is not a commonplace explanation, I find
Lane's explanation, in the light of my appraisal of his
personality and his appearance as a witness, to be plausible
and credible, and not inconsistent with the evidence that
Lane made the calls pursuant to his duties as a foreman
and supervisor.
Lane testified that he had always made telephone calls
regarding his work or duty from his home. His testimony is
not controverted that when he was chapel chairman in
1961, he carried out his duties, as the occasion necessitated,
by calling the union officers in Boston from his home in
New Hampshire and he had never asked the union for
reimbursement. Apparently the Union in these matters,
like the Company on the California calls, never was asked
for reimbursement and had not refused reimbursement,
although in both instances Lane was transacting union and
I I Obligated apparently means that he received his union card . 1e In his conversation with Banks , Lane made no mention of Spencer's
Is This is what the secretary had told Lana that the union records election as chapel chairman,
showed,
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company business, respectively. Lane further explained
that when he was on Company premises it was at night
since he worked on the night shift. There was only one
telephone available to him at the plant and no office that
he could use and the available phone was apparently in the
open and was on the same line with 8 or 10 other phones 14
and there was no privacy. Quite evidently the nature of the
calls to California about Spencer, an employee working in
the plant, were such that Lane, as a foreman, would wish to
make them in private.
Conclusion
The evidence , in my opinion , demonstrates that Lane
was fined by the Union for action he had taken as a
foreman and as a representative of management in
carrying out a mandate on a matter of legitimate
management interest and concern with the approval of his
immediate superior , Woodlock. Woodlock, in fact, repre-
sented Lane before the Union' s executive board in
November 1972, in the course of the proceedings against
Lane.
It is clear from the specifications or particulars of the
charges, set forth in my Decision , that it was the fact that
Lane was inquiring about the work background of Spencer
and when and how Spencer, a totally incompetent
workman in the eyes of General Foreman Woodlock, and
in the eyes of Foremen Lane and Battistelli , had acquired a
union journeyman 's card. There was ample basis for
management's belief that the fact that Spencer had a union
journeyman 's card would be or certainly could be used in
the arbitration proceeding as proof that he was a
competent worker and therefore should not have been
discharged for incompetency.
I do not believe that Lane was fined because of the
manner or procedure of his telephone calls. The specifica-
tion of the charges regarding the Banks and Rust calls
contains no mention or any allegation that Lane was under
the influence of liquor when he called ; the Banks
specification does not mention the time of the day or night
when the call was made and the Rust specification simply
refers to the time as 11: 15 p .m. on October 4. Moreover,
there is no claim in the specifications or evidence in the
record that Lane cursed and swore or was profane in any
of his calls.15
It is my opinion and I find that Respondent has violated
Section 8(a)(1)(B) of the Act by fining Lane $800 for
14 1 would assume that the telephones in a daily and Sunday :_Hspaper
would be fairly active.
15 Banks and Rust testified to their belief that Lane had been drinking
when he called. Lane testified that this was not so Obviously Banks and
Rust did not see Lane when he telephoned and the capability of telephone
lines in olfactory transmission is nil. The two witnesses aforementiored
stated that their belief about the drinking was based on long pauses in
conversation by Lane and by slurring of words To my observation, Lane, as
a witnesses , was a rather deliberate speaker and certainly not a fluid or
rapid talker I am unable to say whether Lane had been dunking or not
when he telephoned in October 1972 but I am convinced that he neither
cursed nor swore nor spoke offensively when he did speak to Banks and
Rust. I am even more convinced that, whether Lane had been drinking or
not or whether Banks and Rust believed that he had been drinking, Lane
was not charged or fined by the Union because he may have been drinking
when he called Banks and Rust Also, while the calls at night no doubt
annoyed the recipients I am equally confident that the time of the calls was
activity undertaken and engaged in by Lane pursuant to
his duties as a supervisor in the employ of his employer, the
Union Leader Corporation.16
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, it will be recommended that Respondent
cease and desist from such conduct and take prescribed
affirmative action to effectuate the policies of the Act.
ORDER 17
Respondent , Boston Mailers' Union No. 1, a/w Interna-
tional Typographical Union , AFL-CIO, its officers,
agents, successors , and assigns shall:
1. Cease and desist from:
(a) Restraining or coercing Union Leader Corporation in
the selection of its representatives for the purpose of
collective bargaining and the adjustment of grievances by
fining or otherwise coercing supervisor Matthew Lane or
any other supervisor because Matthew Lane or any other
supervisors are discharging their duties as supervisory
employees and thereby representing the employer.
(b) In any like or related manner restraining or coercing
Union Leader Corporation or any other employer in the
selection of representatives for the purposes of collective
bargaining or the adjustment of grievances.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Rescind the fines imposed on supervisor Matthew
Lane.
(b) Reimburse Matthew Lane for any fine paid by
Matthew Smith to Boston Mailer 's Union No. 1.
(c) Expunge from its records the charges , trial , convic-
tion , and fines of Matthew Lane and advise Lane, in
writing, of such action.
(d) Post at its business offices and meeting halls, copies
of the attached notice marked "Appendix ." 18 Copies of
said notice , on forms provided by the Regional Director
for Region 1, after being signed by Respondent's author-
ized representative , shall be posted by it 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 . Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered , defaced , or covered by other
material.
not a factor in the fine imposed on Lane
16 Dallas Mailer's Union, Local No 143, 181 NLRB 286, enfd. 445 F.2d
730 (C.A.D.C., 1971), San Francisco Typographical Union No 21 192 NLRB
523, Meat Cutters Union Local 81 [Safeway Stores], 185 NLRB 884,
887-888, enfd 458 F.2d 794 (C.A D.C., 1972)
17 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.
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
Is 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 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 "
BOSTON MAILERS' UNION NO. 1 995
(e) Sign and mail to said Regional Director, on forms to
be supplied by him, copies of the aforesaid notice for
posting by Union Leader Corporation in its mailroom
area, if Union Leader is willing.
(f) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Ordei, what steps
Respondent has taken to comply herewith
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS $OARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Union Leader
Corporation in the selection of its representatives for
the purpose of collective bargaining and the adjustment
of grievances by fining or otherwise coercing its
supervisor Matthew Lane or any other supervisor
because Matthew Lane or other supervisors have or are
discharging their duties as supervisory employees and
thereby representing Union Leader Corporation.
WE WILL NOT in any like or related manner restrain
or coerce Union Leader Corporation or any other
employer.
WE WILL rescind the fines imposed on Matthew
Lane.
WE WILL reimburse Matthew Lane the $800 fine
paid by Matthew Lane to the Union.
WE WILL expunge from our records the charges,
trial , conviction , and fines of Matthew Lane and will
advise him in writing of such action.
BOSTON MAILERS' UNION
No. 1, A/W INTERNATIONAL
TYPOGRAPHICAL UNION,
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 7th
Floor, Bulfinch Building, 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3300.