Cincinnati Local 271, Lithographers

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 418 (N.L.R.B. 1973)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cincinnati Local 271, Lithographers and Photoengrav-
ers International Union , AFL-CIO and The United
States Playing Card Company. Case 9-CB-2210
June 22, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
solved interpretation issue.
Since, therefore, no arbitration proceeding can
reach the subject matter of the threatened fine, and
since the underlying interpretation issue has already
been resolved, we perceive no dispute which can fruit-
fully be made the subject of any grievance or arbitra-
tion proceeding at this time.
Member Kennedy concurs in the above rationale,
but is also of the view that the rationale offered by the
Administrative Law Judge constituted a proper basis
for nondeferral.
On January 2, 1973, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
Charging Party filed exceptions, supporting briefs,
and answering briefs.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The panel is in agreement that the Administrative
Law Judge properly refused to defer this case to the
parties' grievance and arbitration machinery. Chair-
man Miller and Member Penello, however, would
reach this conclusion upon a somewhat different ra-
tionale than that relied on by the Judge. They note
that there is no contractual provision whatever which
deals with, defines, or delineates the circumstances
under which the Union may or may not fine, or
threaten to fine, its members.' Thus the threat of fine,
which is alleged as the gravamen of the action here,
could not possibly be dealt with by an arbitrator, since
nothing in the agreement would give the arbitrator
any jurisdiction to decide the propriety of the Union's
actions vis-a-vis its own members. It is true, of course,
that the propriety or impropriety of the threatened
fine turns upon the underlying question of contract
interpretation. In Brotherhood of Teamsters (National
Biscuit Co.), 198 NLRB No. 4, we did defer an 8(b)(3)
and 8(b)(1)(A) case under somewhat similar circum-
stances , when we found that "the resolution of this
dispute necessarily depends upon a determination of
the correct interpretation of a contract . . . ." And,
indeed, had the instant case reached us without any
arbitrator's determination of the underlying contract
interpretation issue here, we might similarly have de-
ferred. But an arbitration award has here issued which
lays to rest the contractual interpretation issue. Thus,
there is no interpretation issue open, and the resolu-
tion of this dispute does not depend upon an unre-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Cincinnati Local 271, Lithographers and
Photoengravers International Union, AFL-CIO, its
Cincinnati, Ohio, officers, representatives, and
agents, shall take the action set forth in the said rec-
ommended Order.
1 The case is thus distinguishable from Houston Mailers Union (Houston
Chronicle Publishing Company), 199 NLRB No. 69, wherein we deferred to
arbitration an issue with respect to a union's fine of a supervisor because the
contract there did contain provisions delineating the union 's actions with
respect to fining supervisors
DECISION
STATEMENT OF THE CASE
MORTON D . FRIEDMAN , Administrative Law Judge: Upon
a charge filed on May 19, 1972, by the United States Playing
Card Company, herein called the Company or the Charging
Party, the Regional Director for Region 9 of the National
Labor Relations Board, herein called the Board , issued a
complaint on July 18, 1972, on behalf of the General Coun-
sel of the Board against Cincinnati Local 271, Lithogra-
phers and Photoengravers International Union, AFL-CIO,
herein called the Union or the Respondent, alleging viola-
tions of Section 8(b)(1)(A) of the National Labor Relations
Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called
the Act. In its duly filed answer, the Respondent, while
admitting certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Cincinnati, Ohio, on October 11, 1972. All parties
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argu-
ment , and to file briefs. Oral argument was waived.' Briefs
i At the close of the General Counsel's case the Respondent made a motion
to dismiss That motion was neither denied nor granted but was taken under
advisement Counsel for the Respondent then stated on the record that in any
event he intended to present no witnesses and would rest on the General
204 NLRB No. 65
CINCINNATI LOCAL 271, LITHOGRAPHERS
were filed by counsel for the General Counsel, for the
Charging Party, and for the Union. Upon consideration of
the entire record herein, and upon my observation of each
of the witnesses as they appeared before me, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation, is engaged at
Norwood, Ohio, in the manufacture of playing cards. Dur-
ing the 12 months immediately preceding the issuance of the
complaint herein, a representative period, the Company
sold and shipped directly to points located outside of the
State of Ohio products valued in excess of $50,000 from its
Norwood plant.
It is admitted, and I find, that the Company is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the subject matter of this case can and should
be deferred to arbitration under the Board's doctrine enun-
ciated in Collyer Insulated Wire, 192 NLRB 837, and subse-
quent cases.
2. Assuming that the subject matter would not be defer-
red, whether the Union has restrained and coerced employ-
ees of the Company by causing them to strike in violation
of the collective-bargaining agreement's "no-strike" clause
and in violation of Section 8(b)(1)(A) of the Act.
B. The Facts
The facts are not in serious issue. As noted above, the
Respondent is in the business of manufacturing playing
cards and the events which took place and constitute the
basis for this proceeding involved the operation of one of
the printing machines in the Respondent's plant.
The Company and the Union are parties to a collective-
bargaining agreement whereby the Company recognizes the
Union as the bargaining representative of all of the
Company's lithographic production employees. Donald
Tipton, W. C. Adkins, and Rolla Bailey, members of the
Union and employees of the Company, are assigned to the
offset department of the Respondent's plant. The normal
shift hours of the second shift upon which Tipton, Adkins,
and Bailey normally work is generally scheduled from 3
p.m. to II p.m. During the week of April 16, 1972, these
Counsel's case. Accordingly, the hearing was closed after the motion to
dismiss was made by counsel for the Respondent.
419
three employees were scheduled to be the press crew on the
second shift in the offset department on a press which was
designated "number 6" and was to be used during that week
as a one color and slotter press 42 inches or less in size.
Because of production necessities on April 19, 1972, this
press was to be operated as a bronzer press.
On the day before, April 18, 1972, the Company decided
that it would be necessary to work both the first and second
shifts of the offset department for an additional hour of
overtime on the following day. Accordingly, they gave the
employees on those shifts notice that the hours of the first
shift employees on April 19 were to run from 7 a.m. to 4 p.m.
Therefore, it became necessary to change the starting time
of the second shift from 3 to 4 p.m. and to run the shift until
1 a.m. in the morning of April 20. As stated, all employees
who were affected by this shift change, among them Tipton,
Adkins, and Bailey, were notified of the necessity for the
change on April 18, the day before the change was to be
made.
The collective-bargaining agreement article which gov-
erns notification of change of shift is article 13, section E,
which states as follows:
E. If it is necessary to change the established starting
time of any regular shift reasonable notice shall be
given to the employee. If reasonable notice is not given,
the employee shall have the right to refuse such change
of starting time. In the event a first shift employee is
requested to start before his regular established starting
time or a second or third shift employee is requested to
start after his regular established starting time, the em-
ployee shall be guaranteed overtime equal to the
amount of time his established starting time was
changed unless otherwise mutually agreed to. In no
event shall a day shift start later than the regular estab-
lished starting time unless it has been mutually agreed
to by the Shop Delegate the affected employees and the
Concern.
On the night of April 18, after Tipton, Adkins, and Bailey
were told of the shift change and that it would be necessary
to change their hours for April 19 from 3 p.m. to 11 p.m. to
4 p.m. to I a.m., Tipton telephoned Anthony Arnold, the
union shop steward, and informed Arnold of the change in
reporting time. Tipton informed Arnold that Tipton did not
want to report to work the next day at 4 p.m. Arnold told
Tipton that Arnold would inform the Company.
The following morning, April 19, Arnold was called into
a conference with Andrew C. Luther, the Company's direc-
tor of industrial relations, and John Bonfield, the plant
manager. Luther and Bonfield told Arnold that if Tipton
did not report to work at 4 p.m. he could be disciplined and
possibly dismissed. As a result of this meeting, Arnold tele-
phoned Jim Nicholson, the vice president of the Union, and
informed Nicholson of the situation at the shop.
Despite instructions to the contrary, Tipton reported for
work on April 19 at 3 p.m. and asked to be put to work.
When Tipton so reported, a meeting was held between Tip-
ton and Arnold and Luther at which point Luther told
Tipton that the latter was scheduled to report at 4 p.m.
2 In testifying , Arnold did not relate the content of his conversation with
Nicholson
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tipton answered that he "had not been given reasonable
notice by the Company for the hour change." 3 Luther then
asked Tipton why Tipton could not report to work at 4 p.m.
instead of 3 p.m. Tipton merely replied that it was "personal
business" without any further or additional explanation.
Both Tipton and Arnold asked that Tipton be assigned
other work until 4 p.m. and then be allowed to leave at the
usual ending time for the shift of I1 p.m. As noted, Tipton
failed and refused to give any reason other than the com-
ment that he had "other plans" for his needing to leave at
II p.m. Thereupon Tipton was told that there was no work
for him to perform at 3 p.m.; that he was scheduled to report
at 4 p.m.; that the proper procedure for him to follow was
to report at 4 p.m. and request time to leave at I l p.m.
Tipton was also informed that if he did not agree with this
he should follow the contractual procedure if he felt that he
had a grievance. Thereafter Tipton left the Company's
premises and did not return to work that day. At that time
Arnold also left.
At 4 p.m. Adkins and Bailey reported to work. However,
Tipton's failure to report at 4 p.m. left the crew for the press
one man short. The collective-bargaining agreement be-
tween the Company and the Union requires that the press
be manned by three employees, one pressman and two feed-
er operators. The relevant provision of the agreement is as
follows:
ARTICLE II PRESS MANNING TABLE
No equipment shall be manned with less than the re-
quired personnel excepting cases of emergency (i.e.
sickness, inexcusable absence, leave of absence, etc.).
In the case of emergency, the Concern shall man equip-
ment substituting available personnel from the bar-
gaining unit. In the event none are available and it
becomes necessary to man the press with one (1) man
short, the Shop Delegate shall be notified and the re-
maining crew members shall be compensated at their
regular rate of pay plus an additional $1.00 per hour for
the emergency period. This period shall not exceed two
(2) weeks in each contract year unless otherwise mutu-
ally agreed to by the Union and the Concern.
Luther then informed Bailey and Adkins that according
to the foregoing provision of the collective-bargaining
agreement they would have to run the press one man short
and would be paid the premium rate of an extra dollar per
hour. Luther explained that Tipton's failure to report had
necessitated this situation and that Adkins and Bailey
would have to operate the number 6 press one man short
until 9 p.m. when a third employee would become available.
Luther also informed the two employees that the Company
was attempting to notify Shop Steward Arnold of the situ-
ation in accordance with the term of the contract.
Bailey then told Luther that Bailey had instructions from
union headquarters not to start up the press one man short.
Adkins and Bailey both expressed their willingness to work
3 From the direct credited and uncontroverted testimony of Luther On
cross-examination, however, Luther stated that Tipton stated that he did not
have "sufficient" notice
as the Company had requested them if the Union would let
them do so. With this, Bailey received permission from Lu-
ther to call Shop Steward Arnold.
Some 10 minutes later Arnold arrived and a meeting was
held with Adkins, Bailey, Luther, and Superintendent Simp-
son. The situation was fully explained to Arnold.
On all of the foregoing, the testimony of the parties was
in almost full agreement. At this point, there was a slight
departure in the testimony of Luther for the General Coun-
sel and Arnold for the Respondent. Luther testified, and
this testimony was supported by the testimony of Simpson,
that Arnold told them "if you run this piece of equipment
tonight with a man short, you could be fined and subject to
dismissal from the Union." This was, of course, directed to
Adkins and Bailey. Arnold testified that Adkins and Bailey
told him that they did not want to violate the contract and
that he then told them, "Fellas, you guys could be up to a
fine or even suspended from the Union-you know-for
violating our contract." Arnold further testified that he ex-
plained to Adkins and Bailey that they would be violating
the contract "if a member of our Union was available and
turned away by the Company."
Thereupon Luther pointed out that there was a "no-
strike" clause in the bargaining agreement and that if a man
did not work as instructed there might be a violation of the
Act. Arnold, according to Luther, replied that Bailey should
sue the Union if he wanted to, that Arnold knew a good
lawyer. Bailey then replied that "we are all supposed to be
brothers in the Union, and I would not sue the Union, even
if I do want to work." °
Thereafter, Arnold, Adkins, and Bailey asked if there was
other work available for Adkins and Bailey. Luther and
Simpson then informed the men that the work on press
number 6 was the work that was needed and that no other
work was available. Adkins and Bailey then stated that they
could not work. They were then informed that their refusal
to operate the press was in violation of a direct order by the
management of the Company which could subject them to
discipline and up to and including discharge. Adkins and
Bailey still refused and they cleaned up the press and left
the premises.
The relevant provision of the collective-bargaining agree-
ment which was referred to by Luther as the "no-strike"
clause is as follows:
ARTICLE 23 NO STRIKES OR LOCKOUTS
A. There shall be no strikes, stoppages, slowdowns,
economic pressure through concerted actions by em-
ployees in prohibiting or refusing overtime work, or
interferences with production, directly or indirectly,
except as permitted elsewhere in this Agreement, dur-
ing the term of this contract. There shall be no lockouts
by the Concern.
B. In the event of the occurrence of any of the prohib-
ited acts referred to in the first paragraph of this sec-
From the credited testimony of Luther which was, in the main part,
uncontroverted in this respect
CINCINNATI LOCAL 271, LITHOGRAPHERS
tion , the Union agrees promptly and publicly, to repu-
diate such actions , to order the employees to abandon
such acts and to continue production , and if requested,
to deliver immediately to the Concern a notice ad-
dressed to all employees in the plant repudiating such
acts of the employees and ordering them to cease such
acts and to continue production, and the Union further
agrees to take such other action which it deems reason-
able and appropriate to bring about compliance with
the terms of this Agreement.
C. There shall be no liability for damages on the part
of the Union , its officers or agents, for any violation of
the terms of this Agreement unless such action is au-
thorized or ratified by the Executive Board of the
Union or the membership of the Union. The Union
represents that no officer , agent or member shall have
any right to authorize , ratify or participate in any of the
acts prohibited in this section , unless approved by the
Executive Board of the Union or the membership of
the Union.
D. The sole recourse and exclusive remedy against the
Union, its officers and agents , in th' event of a viola-
tion of this section (that is , action authorized or ratified
by the Executive Board or membership ), shall be arbi-
tration pursuant to the terms of this contract , the Arbi-
trator to have the right to make such award as in his
discretion seems proper.
In connection with the last paragraph of the foregoing
article , namely , section D, the recourse for a violation of the
no-strike clause of the contract by the Union , article 24,
"Grievance-Arbitration ," of the said agreement sets forth at
length the manner in which grievance and arbitration shall
be processed . It would unduly lengthen this Decision to set
forth in full the grievance and arbitration procedure. How-
ever, it should suffice to note that the grievance and arbitra-
tion procedure, article 24, as noted, provides no machinery
for arbitration to be instituted by the Company and the
entire article concerns itself solely with the grievance and
arbitration procedure to be instituted either by individual
employees or by the Union only. The significance of this
clause will therefore be discussed herein below.
A further relavent clause of the contract should be here
noted . This is article 42, "Management Responsibility":
ARTICLE 42 MANAGEMENT RESPONSIBILITY
The right to hire , promote and to maintain discipline
and efficiency of employees, is the sole responsibility of
the Concern except as modified by the terms of this
agreement. The right to demote, discharge, layoff or
discipline for just cause are subject to grievance and
arbitration provisions set forth in the Grievance and
Arbitration clause.
In addition , the products to be manufactured , the loca-
tion of plants , the schedules of production , the meth-
421
ods, processes and means of manufacturing are solely
and exclusively the responsibility of the Concern.
These responsibilities shall not be subject to the griev-
ance and arbitration provisions set forth in Article 24
hereof, except as modified by the express provisions of
this Agreement.
The foregoing, then, constitutes the entire disagreement
between the parties as it arose on April 18 and 19, 1972.
However, the Company's director of industrial relations,
Andrew C. Luther, testified that in January 1972 an incident
exactly similar to the one heretofore recited arose concern-
ing the same press and the same three employees. In that
earlier instance, again Tipton, Adkins, and Bailey were giv-
en I day's notice of change of starting time, Tipton again
appeared early, was told to report at the later changed time,
he refused to do so and went home. Again his excuse was
"personal reasons ." When Adkins and Bailey reported for
work at the later time as notified they refused to work one
man short. The Company then sent them home. At that time
both Tipton, and Adkins and Bailey, filed grievances be-
cause of their loss of earnings for the period involved. The
grievance procedure of the bargaining agreement, article 24,
was followed through all of its stages and finally ended up
as a full-blown arbitration proceeding before an arbitrator.
That arbitration proceeding, which involves the interpreta-
tion of the meaning of "reasonable notice" as set forth in
article 13, "Work Week," subparagraph E, had been heard
at the time of the hearing in the instant proceeding. More-
over, that arbitration proceeding also involved the interpre-
tation of the right to refuse to work under article 11, press
manning table, as set forth above, interpreting what consti-
tutes an emergency under the agreement in order to de-
termine whether Adkins and Bailey were rightfully
disciplined and were rightfully deprived of a day's work and
pay.
Since the hearing in the instant case, the decision of the
arbitrator has issued.'
The arbitrator held that under article 13-E of the agree-
ment, set forth above in full, the question of reasonable
notice was satisfied when the Company gave Tipton in the
earlier proceeding a 24-hour notice of change in shift start-
ing time . The award further held, in substance, Tipton's
refusal to work at the changed time created an emergen-
cy and that it was incumbent upon Adkins and Bailey,
5 The Charging Party submitted the arbitration award of Arbitrator Theo-
dore High dated November 3, 1972, with its brief to the Administrative Law
Judge in the instant proceeding At the same time the Company , or Charging
Party, moved that the arbitrator's award be introduccd into evidence and
made part of the record in this proceeding Accordingly, the Administrative
Law Judge issued an order to show cause why the arbitrator 's award should
not be received in evidence and made part of the record in the proceeding
Respondent 's counsel replied to the effect that Respondent did not object to
admission of the award on the limited issue of the proper interpretation of
the collective-bargaining agreement However, Respondent 's counsel argued
that the award is not relevant to the issue of deferral to arbitration and that
Respondent objected to its admission for any purpose with respect to that
issue It is hereby decided that the arbitrator 's award is received in evidence
as Charging Party's Exh 1 solely for the purpose of deciding the proper
interpretation of the collec tive-bargaining agreement of the parties as set
forth herein
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under article II of the agreement , to operate the machine
with only two persons and that when they refused to do so
they were violating their obligation. The arbitrator conclud-
ed that in each case , namely, the cases of Tipton, Bailey, and
Adkins, the Company properly sent them home and proper-
ly deducted a day's pay from their earnings.
As noted, the arbitrator found that the absence of Tipton
was unexcused and that therefore an emergency arose under
article 11 of the agreement . To quote,
... it follows that the Union was incorrect in advising
grievants Adkins and Bailey to leave work, and, in-
deed, Union's action in so advising them was in viola-
tion of Article 23 by which the Union has agreed to
order employees wrongfully refusing to work to contin-
ue production , where there is a grievance , and to adjust
the grievance through the provisions of Article 24, the
Grievance and Arbitration provision. Unfortunately,
the Union has not lost the pay and there is no remedy
for its unlawful instruction in the case before me.
Therefore, Tipton, Adkins and Bailey shall have to
suffer the loss of pay occasioned by the bad advice
given them by the Union.
Accordingly, I find that all three grievants are not
entitled to be paid for the time lost on January 28 and
29; Tipton, because of his unexcused absence; and
Adkins and Bailey , because of their leaving the plant
rather than working under the emergency provision of
the Manning article of the contract. It follows that the
grievances are not well taken and should be denied .6
C. Discussion and Concluding Findings
The Respondent contends that the question presented
becomes one of whether or not the statement by Arnold that
Adkins and Bailey could be fined , suspended , or dismissed
from the Union constituted a threat since it involved the
imposition of a union rule requiring adherence by union
members to its contractual position that no emergency ex-
isted and that the press could therefore not be operated
undermanned , and that the case involves the further ques-
tion of whether such rule required members to involve
themselves in a breach of the collective-bargaining agree-
ment . The Respondent argues that this case is in reality
governed by the decision in Scofield v. N.L.R. B., 394 U.S.
423 (1969), where the Supreme Court held that where a
contractual incentive plan permitted , but did not require,
employees to earn incentive bonuses by working at a rate
faster than the set standard , a union rule requiring members
to work no faster than the standard was permissible and
could be enforced by fines and expulsion. The Respondent
then goes on to state that under Scofield therefore , unless the
Union's rule requiring adherence by members to the man-
ning provisions of the collective -bargaining agreement in-
volved a violation of that agreement, neither the rule nor the
alleged threat to enforce it by fine or expulsion could be the
basis of any unfair labor practice . The Respondent goes on
to argue that under the Scofield case the issue herein is,
fundamentally, a question of contract : Did the employees
6 P 10 of the arbitrator's award
have the contractual right to refuse to operate the presses?
The Respondent further argues that in any event the issue
is not only subject to arbitration, but has already been sub-
mitted to an arbitrator , and that the Board's decision in
Collyer Insulated Wire, supra, makes it incumbent upon the
decider of facts in the instant case to defer the entire pro-
ceeding to the arbitrator because the issue of the case is
really one of contract interpretation and the application of
the Scofield case, supra. Under the peculiar circumstances of
this particular proceeding , however , I cannot agree with the
Respondent and find its contention to be without merit for
the following reasons.
In the first instance , the collective -bargaining agreement
between the Company and the Union does not provide for
arbitration machinery by which the Company can bring a
grievance that it may have before an arbitrator. While it is
true that under article 23 of the said agreement , the "No-
Strike" clause , there is reference to the fact that "the sole
recourse and exclusive remedy against the Union , its offi-
cers agents, etc., under this provision . . . shall be arbitra-
tion pursuant to the terms of this contract, the arbitrator to
have the right to make such award as in his discretion seems
proper," as noted above, no machinery is provided by the
contract for the Company to institute arbitration proceed-
ings . Accordingly, the only way it could do so would be
upon special agreement and consent of the Union . There is
no evidence in this record that the Union consented to do
so.
Accordingly, I would find that on this basis alone the
issue presented herein would not be arbitrable under the
agreement. However, assuming that the Company could
institute arbitration proceedings, I nevertheless find and
conclude that the issue herein is not , at least at this point,
arbitrable.
As noted above, the collective -bargaining agreement re-
quires that the press in question , when used as a bronzer,
shall be operated by three men except in an emergency
situation , among these situations being unexcusable ab-
sence . In such an emergency the Company would be re-
quired to substitute for the absent crewman available
personnel from the bargaining unit.
But if , as in the instant case, no other personnel are then
available and it becomes necessary to man the press with
one man short , the remaining crew members would be re-
quired to operate the press one man short but would be
compensated at the rate of $1 extra per hour during the
emergency period (article 11, press manning table).
Thus it becomes necessary to determine in the situation
presented by the facts in the instant case whether an emer-
gency existed at the time that Arnold told Adkins and Bai-
ley, in substance, that if they manned the press one man
short they would be violating the contract and that, there-
fore, they could be fined by the Union, suspended by the
Union, or dismissed from the Union. This is so because, if
no emergency existed , then Arnold 's statement was merely
an assertion of what the Union could lawfully do internally
in order to prevent the violation of the contract it was obli-
gated to honor. In this event, the forceful reminder to Ad-
kins and Bailey could not constitute restraint and coercion
to force them to withhold their services or, in the terms of
the "No-Strike" provision of the contract (article 23) "to
CINCINNATI LOCAL 271, LITHOGRAPHERS
interfere with production," because the contract required
them to withhold their services in such a case. Accordingly,
if there was no emergency, there was no breach of contract
and no interference with the employees' Section 7 rights
and, accordingly, no violation of Section 8(b)(1)(A) of the
Act because the "No-Strike" article of the contract excepted
from its prohibition the right to refuse to work if a machine
is not fully manned in a situation not an emergency.
On the other hand, if an emergency existed, caused by
Tipton's refusal to work, then an opposite resolution of the
issue herein is reached. Tipton's refusal to work the hours
assigned was based on his asserted assumption that the
I-day notice of change in shift starting time was not suffi-
cient (reasonable) notice under article 13-E of the collective-
bargaining agreement. If Tipton was wrong in refusing to
work the new hours, then an emergency existed under arti-
cle 11 of the contract. If, on the other hand, Tipton was
correct in his assertion that reasonable time was not given
under article 13-E, then no emergency existed.
This then is the crux of the dispute. Whether the notice
to Tipton was reasonable, whether Tipton's actions were
therefore permissible under the contract and, whether, de-
pending on the resolution of the foregoing, an emergency
existed whereby Adkins and Bailey were obligated to oper-
ate the bronzer one man short under the agreement, were
all issues requiring interpretation of contract terms, and
therefore arbitrable under the grievance-arbitration clause
of the contract.
Assuming that the collective-bargaining contract provid-
ed machinery to enable the Company to bring these issues
to arbitration, it would be incumbent upon me under Board
precedent I to defer to arbitration and retain jurisdiction
only for the purpose of the Board's reviewing, upon motion
of either party, whether the arbitration was fair and the
result not repugnant to the Act.
However, I cannot now ignore the arbitration award
herein above referred to. This award, handed down since
the trial of the instant case, decided that in an absolutely
similar situation, involving the same employees, Tipton had
been given reasonable notice of shift starting time change,
that therefore Adkins and Bailey violated the contract when
they refused to man the bronzer one man short, and that the
Company was acting properly when it issued warning no-
tices to these employees and docked them each a day's pay
for the time they refused to work. This arbitrator's award
then became the law of the shop and I conclude, that under
the circumstances, I am obliged to find it binding upon me
in resolving the unfair labor practice issue in the instant
case. As heretofore noted, the Respondent's response to the
Charging Party's motion to make the arbitrators award an
exhibit in this proceeding as part of the record did not
contend in any manner that the arbitrators award was not
fair or regular.
Accordingly, I find that by informing Adkins and Bailey
that if they worked the bronzer one man short, under the
circumstances presented, they could be fined, suspended, or
dismissed from the Union, Union Steward Arnold thereby
threatened and coerced them into refusing to work, thereby
r Collyer Insulated Wire, supra
423
causing them to strike and "interfere with production" in
the face of the terms of the contracts no-strike clause, and
therefore in violation of Section 8(b)(1)(A) of the Act. The
Board has held in a like situation that "To hold that a union,
despite the prohibition in Section 8(b)(1)(A) against re-
straining or coercing employees in their right under Section
7, could nevertheless with impunity penalize members for
failing or refusing to participate in a violation of a no-strike
clause is to provide an incentive to unions and members to
violate contracts. This too runs counter to a basic policy of
the statute." 8
Although Local 12419, Mine Workers, supra, involved the
actual imposition of fines rather than a threat to fine, the
Board, in a more recent case, has held that where the impo-
sition of fines violates Section 8(b)(1)(A) of the Act, the
threat of such imposition is equally violative .9
Finally, the Respondent could argue that the arbitrator's
award, above mentioned, was not handed down at the time
of the events leading to the instant proceeding and, there-
fore, the Respondent was acting in good faith and that its
objective was to secure a legitimate union interest in the
light of its knowledge and belief at that time. Therefore, the
Respondent could argue, to utilize the arbitrator's award in
disposing of the instant proceeding would be an application
of the award retroactively. But even if this argument could
possibly have some merit, the arbitrator's award cannot
now be ignored. As a practical matter, as of the date of this
Decision the rights of the parties and the interpretation of
the contract have been determined, and to defer the matter
at this point to arbitration to determine again the same
terms of the contract under identical circumstances would
be an empty, time consuming, and fruitless gesture.
In the light of all of the foregoing, and on the basis of
Board precedent as cited above, I find and conclude that
Arnold's statement to Adkins and Bailey that they could be
fined or suspended or dismissed from the Union if they
manned the bronzer under the conditions hereinabove set
forth constituted a threat which restrained and coerced
these employees in the exercise of their Section 7 rights and
therefore constituted a violation of Section 8(b)(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 operation of the
Company described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
8 Local 12419, International Union of District 50, United Mine Workers
(National Grinding Wheel Company, Inc), 176 NLRB 628, 632 It should be
noted that the cited decision was decided after the Board's decision in Local
283, UA W(Wisconsin Motor Corporation), 145 NLRB 1097, which was later
affirmed by the Supreme Court as the Scofield case , supra Local 12419, Mine
Workers discusses the impact of Wisconsin Motors in a situation such as is
presented in the case at bar
9 Local 767, IUE (General Electric Company), 186 NLRB 682
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
It having been found that the Respondent has violated
Section 8(b)(I)(A) by threatening to fine , suspend , or dis-
miss from union membership certain of its members for
refusing to participate in a violation of the no-strike clause
of the Respondent's contract with the Company , it will be
recommended that Respondent cease and desist therefrom.
Upon the basis of the foregoing findings of fact and on
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The United States Playing Card Company is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to fine , suspend , or dismiss from mem-
bership members Adkins and Bailey if they did not cease
work in violation of the no -strike provisions of the collec-
tive-bargaining agreement between the Respondent and the
Company, the Respondent restrained and coerced said
members and other members as employees in their rights
under Section 7 of the Act, thereby violating Section
8(b)(1)(A) of the Act.
4. The said violations constitute unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDER10
Respondent, Cincinnati Local 271, Lithographers and
Photoengravers International Union, AFL-CIO, its offi-
cers, representatives, and agents, shall:
1. Cease and desist from:
(a) Threatening to assess fines against or suspending or
dismissing from membership members of the Respondent
for not engaging in or participating in a work stoppage
during the existence of a no-strike clause between Respon-
dent and the Company.
(b) In any like or related manner restraining or coercing
member employees in the exercise of their rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Post at its offices and hiring halls, in conspicuous
places, and at all other places where notices to members are
customarily posted, copies of the notice attached marked
"Appendix." I I Copies of said notice, on forms to be provid-
ed by the Regional Director of Region 9, shall, after being
duly signed by Respondent's authorized representatives, be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days. Reasonable
steps shall be taken by Respondent to ensure that such
notices are not altered, defaced, or covered by any other
material.
(b) Mail or deliver to the Regional Director of Region 9,
copies of said Appendix for posting by The United States
Playing Card Company, if said Employer is willing, at all
places where notices to its employees are customarily post-
ed.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps Respon-
dent has taken to comply herewith.
10 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
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
Ii In the event 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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to assess fines, suspend or dis-
miss from membership or otherwise discipline mem-
bers for not engaging or participating in a work
stoppage or strike in violation of the no-strike clause or
the collective-bargaining agreement between the un-
dersigned Union, Cincinnati Local 271, Lithographers
and Photoengravers International Union, AFL-CIO,
and United States Playing Card Company.
WE WILL NOT in any like or related manner restrain or
coerce our members in the exercise of their rights under
Section 7 of the National Labor Relations Act.
Dated By
CINCINNATI LOCAL 271, LI-
THOGRAPHERS AND PHOTOEN-
GRAVERS INTERNATIONAL
UNION, AFL-CIO
(Labor Organization)
(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 direct-
ed to the Board's Office, Federal Office Building, Room
2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
4