Columbus Typographical Union No. 5

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 855 (N.L.R.B. 1969)

COLUMBUS TYPOGRAPHICAL UNION NO. 5
International Typographical Union , Columbus
Typographical Union No. 5, AFL-CIO (The
Dispatch Printing Company ) and Marijane Grubb.
Case 9-CB-1474
June 30, 1969
DECISION AND ORDER
On October 3, 1968, Trial Examiner Sidney S.
Asher, Jr., issued his Decision in the above-entitled
proceeding, finding that the Respondent Union had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
Union filed exceptions to the Decision and a
supporting brief, and International Typographical
Union filed a brief amicus curiae in opposition to
the conclusions and recommendations of the Trial
Examiner.' The International also requested oral
argument.'
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings and conclusions of the Trial Examiner, only
to the extent consistent with this Decision and
Order.
The Trial Examiner held that the Respondent
Union failed to represent Marijane Grubb in a fair
and impartial manner, in violation of Section
8(b)(1)(A) of the Act, when it sought her discharge
from employment as a proofreader, by enforcing a
rule which only permitted the employment of
"practical printers" to do proofreading work, as
there was no other applicant seeking employment as
a proofreader when Grubb applied for and was hired
to perform such work. The Trial Examiner also held
that the Respondent Union, by its conduct, violated
Section 8(b)(2) of the Act. We disagree.
The parties are in substantial agreement regarding
the facts giving rise to the controversy. For many
years the Respondent Union has bargained
collectively for composing room employees at The
Dispatch Printing Company. Pursuant to the
collective-bargaining agreement between the
Company and the Union, the operation of the
composing room is entrusted to the foreman, who is
On December 16, 1968 , the International filed with the Board a motion,
which was duly served on all parties to this proceeding, to amend its bnef.
There being no opposition thereto, said motion is hereby granted, and we
shall accept the brief amicus , as amended
'As the record , including the exceptions and briefs , adequately sets forth
the issues and the positions of the parties , the request for oral argument is
hereby denied
855
required to be a member of the Respondent Union
in good standing. The foreman has the sole right to
employ and/or discharge composing room
employees. Section 5, article I, of the agreement
recognizes certain priorities in the hiring of
employees. This section provides, in relevant part:
In hiring new journeymen employees, the foreman
. . . must recognize priority as follows: First:
Regular situation holders. Second: Subject to
established hiring practices, other journeymen
who have worked in the composing room. Third:
Individuals concerning whose competency as
journeymen the foreman has no reason for doubt,
or persons who have registered for employment
after having passed the examination hereinbefore
mentioned.
To facilitate the hiring of composing room
employees in accordance with the priorities
established by their agreement, the Respondent
Union maintains a "slipboard" containing the
names of all regular situation holders and
substitutes, in the order of their job classification,
shift, and relative seniority. A regular situation
holder is assigned to a shift and hired for an
indefinite period. A substitute is hired temporarily,
as needed. Both acquire seniority from- date of hire.
When a regular situation becomes permanently
vacant, it is filled by the ranking substitute in that
particular classification who then becomes a regular
situation holder.
On October 3, 1965, prior to the events giving rise
to this proceeding, the Respondent Union adopted a
resolution providing: "from this day forward, no
subs will be placed on the board unless they are
practical printers." Practical printers are individuals
employed only in the following job classifications:
handman, operator, or machinist. From that time
until January 27, 1968, the Company hired as new
employees only those individuals capable of
performing in such classifications. However, one
individual, who was classified as a proofreader, was
permitted to remain on the slipboard, as her
employment antedated the aforementioned
resolution.
On January 27, 1968, Marijane Grubb, a member
of an out-of-town sister local, having tendered her
"traveling card" and paid dues to the Respondent
Union, appeared at the Company's composing room
seeking employment as a proofreader. At the time,
there were no substitutes available for duty on the
night shift other than those already working and no
employee in any other classification had actively
sought a proofreading assignment. She was hired as
a substitute proofreader for that shift by Dewey
Albright, the composing room foreman. Shortly
thereafter, Grubb was summoned to a telephone by
Huling Brown, assistant chairman of the Dispatch
chapel,' at which time she spoke with George
Ziegler, chapel chairman, who informed her that he
'A publisher's composing room is called a chapel for union purposes
177 NLRB No. 58
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was under orders from the local union that [he]
could not place her on the slipboard as a
proofreader." Grubb advised Albright of this
conversation. Brown, who was also present,
repeatedly told Albright that he, Brown, was
following instructions that Grubb "wasn't to go to
work."
Following this incident and after a brief discussion
with a company official, who was apparently willing
to permit her to remain at her work, Grubb
expressed uneasiness about remaining on the job and
requested permission "to be off sick". Albright
granted this request, whereupon Grubb left, having
been paid wages for 1 hour of work.
Thereafter, on January 30, Ziegler, Erwin
Gassman, Respondent's secretary-treasurer, and
Gail Smith, president, conferred with Albright in the
latter's office. Ziegler warned Albright that he
"could possibly be fined by the Union," having
previously admonished him that he should have
"taken people on the floor to fill the position that
he hired Mrs. Grubb for." Within the week, Abright
was formally charged by the Respondent Union with
violating its agreement with The Dispatch Printing
Company by hiring outside help and/or not
retraining sufficient present composing room
employees. On March 4, the Union filed a grievance
over the Company's failure, among other things, to
live up to the aforementioned agreement by failing
to hire only practical printers. The Company denied
that such an agreement had been reached with the
Union.
On these facts, the Trial Examiner held that the
Respondent Union violated its statutory obligation
to fairly represent Grubb by refusing to permit her
name to be placed on the slipboard, which resulted
in her loss of employment. In so holding, the Trial
Examiner found it unnecessary to determine whether
the collective-bargaining agreement between the
parties specifically incorporated the Respondent's
resolution favoring only practical printers, as he
found, in any event, that the parties recognized and
adopted in practice that resolution as a rule
governing employment in the composing room at
Dispatch Printing.' The record amply supports this
finding of the Trial Examiner. Nevertheless, the
Trial Examiner found that the Respondent Union
violated Section 8(b)(1)(A) of the Act,
notwithstanding substantial justification for the
Union's resolution, because it was enforced when no
other substitute sought the work for which Grubb
was hired. This, he reasoned, amounted to an
absolute prohibition against any employment of
proofreaders, a result he considered arbitrary,
unfair, and without reasonable basis.
The Respondent Union and the International
assert , inter alia , that there is in existence a valid
"law of shop" which reserved proofreading to
practical printers, and that the enforcement of this
'See Houston Typographical Union No. 87, ITU, 145 NLRB 1657
rule, even in the absence of another known
candidate for such work, is permissible. We agree.
It is clear that the rule here involved was adopted
for the legitimate purposes of (1) preserving
employment opportunities for aged or infirm unit
employees no longer able satisfactorily to carry out
assignments as practical printers, and (2) averting
the consequences of technological unemployment.
These considerations are encompassed within the
wide range of reasonableness allowed a statutory
bargaining representative in serving the unit it
represents, and are free of arbitrary or irrelevant
considerations inconsistent with its duty fairly to
represent all employees in the bargaining unit.'
Moreover, there is no showing that the resolution
itself, which affects both union and nonunion
employees alike, was motivated by a desire to
encourage union membership or loyalty, submission
to union authority, or the performance of union
obligations, nor does the resolution tend to have
that effect. Furthermore, we cannot conclude, as did
the Trial Examiner , that the Respondent Union
violated Section 8(b)(1)(A) by enforcing this rule of
the shop at a time when no other substitute was
seeking to perform the work sought by Grubb. The
Union contends that the enforcement of the
resolution protecting the job rights of practical
printers, even in the absence of a practical printer
desiring to perform proofreading work, necessarily
is a lawful implementation of a valid rule, the
departure from which would defeat the very
purposes for which it was promulgated. It argues
that if Grubb were permitted to substitute, practical
printers would thereby lose an opportunity to retrain
and develop new skills as proofreaders and would be
foreclosed from moving into proofreading jobs as
the need arose. In the Union's view, compliance
with the law of the shop required the assignment of
a practical printer to perform proofreading functions
and, if necessary, the hiring of a substitue practical
printer to fill a practical printer vacancy thus
created.
On the record before us, we cannot say that the
Union's interpretation and application of the rule of
the shop were without rational support.
Consequently, in the absence of any evidence that
the rule was arbitrarily applied to Grubb; that
Grubb was otherwise singled out for discriminatory
treatment; or that the action taken against her was
related to her union or other concerted activities, or
her failure to engage in such activities, or that it was
for the purpose of encouraging or discourgaging
union activities, we find no basis for holding that, by
its conduct with respect to Grubb, the Respondent
Union violated the Act. Accordingly, we shall
dismiss the complaint herein in its entirety.'
'New York Typographical Union No. 6, International Typographical
Union, AFL-CIO (Lawrence F. Cafero), 144 NLRB 1555, enfd 336 F.2d
115 (C.A.2).
'Chairman McCulloch and Member Fanning concur in the result of this
Decision dismissing the complaint , deeming it sufficient under their view of
COLUMBUS TYPOGRAPHICAL UNION NO. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
against the Respondent , International Typographical
Union, Columbus Typographical Union No. 5,
AFL-CIO, Columbus, Ohio, be, and it hereby is,
dismissed.
MEMBER JENKINS, dissenting:
Contrary to my colleagues , I agree with the
findings and the conclusions of the Trial Examiner
that Respondent Union's conduct violated Section
8(b) (1)(A) and 8(b)(2).
In my opinion the reliance placed by my
colleagues upon the existence of the "law of the
shop" as a basis for justifying the Union ' s conduct
is of doubtful validity. In the approximately 2 years
since the purported resolution was adopted, the
record contains little evidence as to the instances
and the manner in which the so-called law of the
shop has been applied . At any rate the Respondent
Union makes no contention that the situation had
ever before arisen where the Company sought to
hire a proofreader at a time when no practical
printer was available or was seeking the job.
Furthermore, I do not believe that the resolution
made in 1965 can be abstractly considered .' I find
significant that the so -called law of the shop was
applied at a time when no other union member's job
was directly jeopardized , when no other union
member sought the job, and when the Company had
had a legitimate need to fill the job. The Union's
position is clearly tantamount to an absolute
prohibition of any employment in the composing
room , no matter how brief , to all union members
classified as proofreaders , regardless of the
qualification of the union member or the job
requirements . This, I am convinced , demonstrates
the invidious quality of the rule and supports the
conclusion that the rule was arbitrary and was
designed, without any relevant basis in
circumstances of employment, to protect one group
of employees at the expense of other union members
whom it had an obligation to fairly represent.'
the law to find, as they do, that the evidence does not establish that
Respondent ' s action against Grubb was related to her union or other
concerted activitites or to her failure to engage in such activites , or that it
was for the purpose of encouraging or discouraging union membership or
activities . Cf. Lawrence F. Cafero, supra , fn. 7. Were they to apply the
broader view that Sec . 8(b)(IXA) and Sec . 8(bX2) also encompass breaches
of the duty of fair representation , they would reach the same result on the
facts of this case.
'Cf. Planet Corporation, 144 NLRB 798, 800.
'Houston Typographical Union No. 87, supra , and Lawrence F. Cafero,
supra, cited by the majority as precedent for its findings and conclusions
are, in my opinion , inapposite and distinquishable on their facts. In
Houston the work rule which was enforced against the employee in
question , was, unlike the rule here , a "valid , well-established and known
work rule" which "served well management 's interest in maintaining a
balanced and relatively stable work force and the employees ' interest in
asserting their job priority rights ," specifically "justified by
nondiscriminatory business purposes . . . by nondiscriminatory attempts to
benefit all the represented employees." In Cafero the Board panel held that
857
Accordingly, I would adopt the findings,
conclusions, and recommended remedy in the
attached Trial Examiner's Decision.
the application of the Respondent 's rule against the Charging Party was
reasonably within the "terms of the existing bargaining agreement" and
based upon a "reasonable classification of employees ," two important
elements lacking in the instant case.
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner: On February
8, 1968, Marijane Grubb, of Columbus, Ohio, filed
charges against International Typographical Union,
Columbus Typographical Union No. 5, AFL-CIO, of
Columbus, Ohio, herein called the Respondent.' On April
18, 1968, the General Counsel of the National Labor
Relations Board issued a complaint , and on May 9, 1968,
an amendment to the complaint. As amended, the
complaint alleges that on or about January 27, 1968, and
January 30, 1968, the Respondent restrained and coerced
employees of The Dispatch Printing Company, Columbus,
Ohio, herein called the Company, and attempted to cause
the Company to discriminate in regard to the hire, tenure,
and working conditions of Marijane Grubb. It is alleged
that this conduct violates Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq.), herein called the Act. Thereafter the
Respondent filed an answer denying that it had violated
the Act.
Upon due notice, a hearing was held before me on June
5 and 6, 1968, at Columbus, Ohio. All parties were
represented and participated fully in the hearing. The
Company, although notified of the hearing, did not
participate. At the opening of the hearing the parties
amended their pleadings in certain respects .' During the
hearing, accompanied by representatives of the parties, I
visited the Company's composing room. At the close of
the hearing, the Respondent moved to dismiss the
complaint because of the General Counsel's failure to
establish a prima facie case. Ruling on this motion was
reserved. For reasons set forth below, the motion is now
denied. After the close of the hearing the General Counsel
and the Respondent each filed a brief. These have been
duly considered.
Upon the entire record in this case,' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is
found , that the Company is, and at all material times has
been , an employer engaged in commerce as defined in the
Act, and its operations meet the Board's jurisdictional
standards,' and that the Respondent is, and at all material
times has been, a labor organization as defined in the Act.
'Neither the documentary evidence adduced at the hearing nor the
Board's formal file in this case (of which I take official notice) contains
adequate proof of service of the charges upon the Respondent as descnbed
in Rules and Regulations of the National Labor Relations Board , Series 8,
revised January 1, 1965, Sec. 102.111(a). However, the Respondent does
not deny that it was duly served with a copy of the charges . Indeed, in its
answer , the Respondent specifically admits service upon it . Compare
Cromwell Printery Incorporated, et at., 172 NLRB No. 212, In. 1.
'The complaint was enlarged by the addition of new matter covering
incidents alleged to have taken place on February 25 and March 8, 1968.
'The record was corrected in certain respects by Order issued September
3, 1968.
'The Company is an Ohio corporation engaged at Columbus, Ohio, in
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Setting
The Respondent is, and at all material times has been,
the recognized collective-bargaining representative of the
employees in the Company' s composing room. The
Respondent operates through approximately 20
component groups known as chapels. The chapel
concerned with the employees of the Company's
composing room is called the Dispatch Chapel.
The Respondent owns and (through the Dispatch
Chapel) maintains exclusive control over the slipboard
which occupies a conspicuous place in the Company's
composing room. It is a large board upon which appears
the names of all regular situation holders and substitutes
in the composing room, in order of their job classification,
shift, and relative seniority! The process of placing one's
name on the slipboard is referred to in the trade as
"slipping up" or "slugging up." The Dispatch Chapel also
maintains a printed seniority roster, containing the names
of all employees of the Company's composing room, listed
in order of seniority.
On October 3, 1965, at a meeting of the Respondent's
membership, a resolution was adopted providing: "from
this day forward, no subs will be placed on the board
unless they are practical printers," that is, the three
classifications of handman, operator, and machinist. As
this was prospective in nature, and not retroactive, the
name of Audrey King, a proofreader, was permitted to
remain on the slipboard, because she had "slipped up"
before the resolution was passed. On October 13, 1965,
representatives of the Respondent informed Robert Irwin,
the Company's vice president, of the Respondent's
adoption of the resolution. Irwin responded "that the
union has finally taken a step in the right direction."
From that time until January 27, 1968, the Company
hired as new employees only handmen, operators, and
machinists.
On November 18, 1966, the Company and the
Respondent entered into a collective-bargaining agreement
which is still in effect. Its provisions, so far as they are
relevant here, are set forth in Appendix A, attached
hereto.
B. The Respondent's Conduct Regarding Grubb's
Hiring
1. Events leading up to Grubb's job application
Marijane Grubb is, and at all material times has been,
a journeyman proofreader. Grubb ,joined the Respondent's
sister local in Dayton, Ohio, while she was living there in
1964. In 1965 she left the Dayton area and obtained a
traveling card from her local. In April 1967 Grubb came
to Columbus, deposited her traveling card with the
Respondent, and paid her dues. This automatically made
her a member of the Respondent in good standing. Her
status has remained the same ever since.
When Grubb paid her dues in April 1967 she asked
Gail Smith, the Respondent's president, "about the
printing and publishing newspapers . During the 12 months prior to April
18, 1968 , the Company 's gross sales exceeded $500,000 and it subscribed to
interstate news services and published nationally syndicated features
'A regular situation holder is assigned a shift and hired for an indefinite
period A substitute, also referred to in the record as an extra, is hired
temporarily , as needed Both acquire seniority from date of hire. When a
regular situation becomes permanently vacant , it is filled by the ranking
substitute in that particular classification, who then becomes a regular
situation holder.
possibility of work [in Columbus] on the newspaper."
Smith replied that, as Grubb was a proofreader, "there
would be trouble slipping up" at the Company's
composing room, because the Respondent "had taken
action wherein there would only be three [classifications]
slipped upon the board" in that composing room. He
explained that "they had used a proof room over there as
sort of an infirmary and that people . . . who might have
physical problems were used as proofreaders." Grubb then
asked: "Well, what about going into a non-Union shop?"
and Smith replied that the Respondent was "very much
against sending Union card holders into non-Union shops.
Early in May 1967 Grubb asked Erwin Gassman,
secretary-treasurer of the Respondent, "what the
possibility was of going over on the newspaper." Gassman
replied that "they didn't allow proofreader people that did
proofreading only, to go on the newspaper." When Grubb
inquired what would happen if she "went over to the
paper," Gassman answered that, if she did so, her "life
would be made miserable" and she would wish she "never
had set foot in the place." Grubb then asked Gassman
about the possibility of going into a non-union shop, to
which Gassman responded: "Absolutely not," and added
that "he would see that [Grubb] lost [her] union card if
[she] traded it," and "that it has been the policy of the
Union not to aid and abet the competitors of our union
shops by allowing our members . . to work in non-union
shops."
2. Grubb's application for work and her hiring
On January 4, 1968, Grubb paid dues to the
Respondent and a "working card," was issued to her.
That same week, Grubb telephoned Mr. Tracy, an official
of the Company, and asked whether she could "come over
if I want to into the composing room and slug up as a
proofreader only." Tracy answered that there was "no
reason why not . . . that if work was available and she
requested employment . and assuming she was
competent . she would be hired." He referred her to
Dewey E. Albright, composing room foreman. About
January 24' Grubb went to see Albright, showed him her
membership card in the Respondent, and told him she was
seeking work as a proofreader on weekends. She added
that officials of the Respondent had indicated that she
could not "slug up" on the slipboard as a pioofreader.
Albright replied that he could not control the slipboard,
but if she were looking for work, she should come in when
she was ready, and that her "chances for hiring were
good." He explained the starting hours of the various
shifts. He also advised Grubb that she would be the 37th
substitute "on the board."
The night shift at the Company's composing room
begins at 3:30 p.m. On January 27, about 3:05 p.m.,
Grubb went to the Company's composing room in search
of work on that shift. At that time there were no
substitute proofreaders available for duty on the night
shift other than those already working, and no employee
in any other classification was seeking transfer to the
proofroom. Grubb showed Huling Brown, assistant
chairman of the Dispatch Chapel, her working card for
January and proof that her dues were paid. Grubb told
'Testimony concerning these 1967 incidents was elicited by the General
Counsel as background only, and not as evidence of the commission of any
unfair labor practices
'All dates hereafter refer to the year 1968, unless otherwise noted
COLUMBUS TYPOGRAPHICAL UNION NO. 5 859
Brown that she "wanted to slug up on the board as a
proofreader." About 3:30 p.m. Grubb told Albright that
"she wanted to go to work," but "they wouldn't put her
name on the board." Albright hired her as substitute
proofreader for that shift, showed her where to hang her
coat, and introduced her to the shift foreman, who
escorted Grubb to the proofroom and explained the
procedures to her. She was given a galley proof to read. A
few minutes later Brown came to the proofroom and
summoned Grubb to the telephone, which was in the
composing room. Grubb then had a telephone
conversation with George Ziegler, chairman of the
Dispatch Chapel. Ziegler informed her that he "was under
orders from the Local Union that [he] could not place her
on the slipboard as a proofreader." Grubb requested
Ziegler to give her this decision in writing. Although
Ziegler agreed to do so, he has never complied with this
request. After this telephone conversation, Grubb told
Albright that the chapel chairman had told her that "no
proofreaders . . . were allowed to slug up on the board."
Brown, who was present, told Albright "several times"
that he (Brown) was following instructions that Grubb
"wasn't to go to work." Albright then took Grubb to
Tracy's office, where Grubb informed Tracy "that the
Union said that I couldn't be slugged to the board."
Tracy reminded her that she was obligated to cover her
job. Grubb replied that she was "awfully upset about the
whole situation," feared that she might make too many
mistakes, and requested permission "to be off sick." This
was granted by Albright. Tracy told Grubb that if she
wanted to come back she still had a job. She filled out a
form W-2 and another employment record, and returned
to the composing room to retrieve her coat. There, in
Albright's presence, Grubb asked Brown whether the
union rule was that "no proofreaders ... were allowed to
slug up on the board." Brown acknowledged that this was
correct. Grubb left and has not returned since then. She
was paid wages for l hour. Her name has never been put
on either the clipboard or the seniority roster in the
Company's composing room.
3. Events after Grubb' s hiring
On January 30 Ziegler, Gassman, and Smith visited
Albright in his office. Gassman told Albright that "he
[Albright] should have taken people on the floor to fill the
position that he hired Mrs. Grubb for." Albright replied
that his conduct in hiring Grubb was proper. Ziegler
remarked that Albright "could possibly be fined by the
Union" but did not elaborate, or specify what the charge
might be.' During the first week in February Ziegler came
to Albright's office and handed Albright a paper reading:
Mr. Dewey Albright, Foreman
Dispatch Composing Room
I herewith charge you with violating the agreement
between The Dispatch Printing Co. and Columbus
Typographical Union No. 5 by hiring outside help
and/or not retraining sufficient present composing
room employees.
George Ziegler, Chairman'
'This finding is based upon Albright's credited testimony To the extent
that Ziegler denied mentioning a fine, his testimony was not convincing
and is not credited
'This was on a paper without letterhead, was undated , and was then
unsigned Ziegler signed it sometime later.
On March 4 (after the filing of the instant charges)
Smith wrote to Irwin requesting a meeting of the Joint
Standing Committee.'° A meeting of this committee was
held on March 8, at which the Respondent's
representatives accused the Company of violating the
contract by failing to retrain enough personnel in the use
of new equipment and in hiring proofreaders, contrary to
its obligation to hire only handmen, operators, and
machinists. The Company's representatives replied that
the Company had fulfilled its commitment regarding the
retraining of personnel, and denied that the Company had
ever agreed to limit hiring to handmen, operators, and
machinists. They insisted that the Company "certainly
had the right to hire a proofreader if work was available."
No agreement was reached by the parties, and no date has
been set for any further meeting of the Joint Standing
Committee for additional consideration of this dispute.
C. The Violation of Section 8(b)'1)(A)
1. Contentions of the parties
The General Counsel contends in his brief that "it is
clear the Respondent violated its statutory obligation to
fairly represent [Grubb] by refusing to permit her name to
be placed on the slip board located in the composing room
of the [Company]. . . . The conduct of Respondent with
respect to [Grubb] is obviously a lack of good faith and
honesty. . Respondent discriminated against [Grubb]
because she was not a member of Respondent as of
October, 1965." Such conduct, urges the General Counsel,
violated Section 8(b)(1)(A). The Respondent, in its brief,
argues that "the required work in proofreading that was
assigned to Marijane Grubb should have been given to one
of the regular situation holders which, while creating a
need for the job of the situation holder that was vacated,
would have obviated the need for a proofreader." The
Respondent further maintains that the practice of refusing
to place the names of proofreaders on the slipboard "is a
reasonable rule, in the interest of the employees generally
and not intended to encourage or discourage Union
membership. . . . The [Respondent] sought to enforce a
priority as among Union members, and took reasonable
means to enforce a reasonable priority."
2. Conclusions
It is now well settled that a labor organization acting as
exclusive bargaining agent for employees in an
appropriate unit is under a statutory obligation to serve
the interests of all employees in that unit impartially,
without hostility or discrimination toward any, and to
exercise its discretion with complete good faith and
honesty." As Grubb became a member of the unit
represented by the Respondent at 3:30 p.m on January
27, the Respondent thereupon was obliged to represent her
fairly.
-This is a committee set up by the contract for the referral of "all
disputes which may anse as to the construction to be placed upon any
clause of this agreement . or alleged violations thereof."
"The Wallace Corporation v N L R B, 323 U S 248, 255, Ford Motor
Company v Huffman, 345 U S 330, 337, Vaca Y. Sipes, 386 U S 171,
177, Ferro v Railway Express Agency, 296 F 2d 847 (C A 2), Gainey v
Brotherhood of Railway and Steamship Clerks, 313 F 2d 318, 322 (C A
3), Hughes Tool Company v N L.R B, 147 F 2d 69, 74 (C A 5),
Standard Oil Company of California v N.L R B, 399 F.2d 639 (C A 9),
Truck Drivers and Helpers, Local Union 568, IBT v N L R B, 379 F 2d
137 (C A D C ), Miranda Fuel Company , 140 NLRB 181, 184,
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not to say that a bargaining representative is
barred from any action which may adversely effect some
of the employees it represents. It may make distinctions
among employees in the unit within reasonable bounds of
relevancy. All conduct which favors one class of
employees over another is not necessarily prohibited,
provided that differences in treatment relate to relevant
differences." Indeed, an employment rule designed to
insure that available positions will go to those workers
who most needed the employment was held not inherently
discriminatory, and therefore not in conflict with the
union's duty of fair representation of all employees in the
unit." On the other hand, it is improper for a bargaining
agent, in representing all employees in a unit, to draw
distinctions among them which are based upon their
political power within the union, or to act from
considerations of Folictical expediency unsupported by
rational argument.'
We come, then, to the major issue herein, namely,
whether the rule prohibiting the "slipping up" of
proofreaders, as applied to Grubb's hiring on January 27,
constitutes a valid exercise by the Respondent of its
authority as exclusive bargaining agent. In deciding this
question it may be helpful to examine the reasons why the
Respondent adopted the rule in October 1965. Smith, who
recommended to the membership at that time that such a
rule be put into effect, testified:
my recommendation to the Local Union at that
time was taken for reasons which may be selfish but it
was taken for the sole purpose of protecting the people
that are in this Local Union.
The Local Union at that time was being invaded by
what we consider people who were not practical
printers. They were proofreaders, tape punchers, that
appeared here and we felt that they were trying to gain
something through the introduction of automation at
the Dispatch Printing Company.
s s s
The practice . . . was, that they used the proof room
for the aged and infirm . . . and we felt that it was
justifiable by the fact that we could put people [in the
proofroom] who suffered a heart attack. . . . And the
coming of people into this Local Union in mass,
proofreaders would place us in a position where we
would be discriminating against the people who had
priority here for years ....
. And we don't think that somebody coming down
the road has the right to take jobs away from our
people who have worked here for years and years and
become infirm and become aged and can no longer
produce as they did....
my job as an elected official of the Union is to
protect the people that I represent.
enforcement denied 326 F 2d 172 (C.A 2), AND Independent Metal
Workers Union, Local No I (Hughes Tool Company), 147 NLRB 1573
"Ford Motor Co v. Huffman, supra 337, Ferro v. Railway Express
Agency, supra 851; Miranda Fuel Company, supra 185.
"New York Typographical Union Number Six. International
Typographical Union, AFL-CIO (The New York Times Company), 144
NLRB 1555, petition to review denied sub nom. Cafero v. N.L.R B , 336
F 2d 115 (C.A 2) The Respondent relies heavily upon Cafero However, I
find that Cafero is readily distingishable from the instant case on its facts.
"Ferro v Railway Express Agency, supra, 851, and Truck Drivers and
Helpers. Local Union 568 v. N.L R B, supra, 142
Smith also testified:
TRIAL EXAMINER: Now, . . . you referred to a
problem because, "We are being invaded by
specialists ." What do you mean by "invaded?"
THE WITNESS: People come in trom out-of-town,
travelers.
TRIAL EXAMINER: And becoming members?
THE WITNESS: Local members, yes, sir.
TRIAL EXAMINER: That is what you were referring to
as an invasion?
THE WITNESS: Yes, Sir.
TRIAL EXAMINER: You are not referring to people
joining who live in the city, only out-of-towners?
THE WITNESS: No, sir. No, Sir.
TRIAL EXAMINER: You mean I am wrong in that
interpretation?
THE WITNESS: No, you are right. These are members
that I speak of coming from out of town also.
Gassman testified as to the factors of automation and
training as follows:
... when the plant is completely automated and new
processes introduced there is going to be a lot of jobs
eliminated and there will still be jobs there. The job of
proofreading ... will still be in existence and we believe
that the employees ... of the Dispatch in their priority
order are entitled to those jobs first.
I conclude that the rule was adopted partly to inhibit
out-of-town members of the International Typographical
Union from depositing their traveling cards and thereby
becoming members of the Respondent, partly to retain the
proofroom as a haven for aged or physically infirm
members, and partly in expectation of, and to protect
against, future technological unemployment.
Of course, the Respondent could legitimately concern
itself about retention of its members' jobs should
automation displace them. And it unquestionably had a
right to anticipate such a situation by suitable action. But
the basic weakness of the Respondent's position is that,
when Grubb was hired, no other substitute was available
and no employee in any other classification was seeking
transfer to the proofroom. Thus, Grubb was not
competing directly against anyone; her hiring did not
threaten any real or present danger to the job of any other
employee. Moveover, there was need for another
proofreader and Grubb's competence to fill the then
existing vacancy is not questioned. There is no evidence
that any other employee was more in need of employment
than was Grubb. She was hired for one shift only. To
apply the rule in this situation was tantamount to an
absolute prohibition of any employment, no matter how
brief, under any conditions to all members classified as
proofreaders, even those holding work permits, although
no other member's job would be jeopardized, and there
was a job waiting to be filled." To force a qualified
proofreader seeking work to stand idly by, under these
circumstances, was in my opinion arbitrary, unfair, and
without reasonable basis. Representation in good faith
requires the balancing of equities of all employees
involved. I am convinced that the equities in favor of
permitting Grubb to "slip up" on January 27, under the
conditions then prevailing, were simply ignored, while
those in opposition were exaggerated beyond reasonable
proportion.
"Gassman testified that the Respondent desires the Company to employ
as many competent union members as it can supply This is a legitimate
union objective . It is difficult to square this objective with the stand taken
by the Respondent on January 27 regarding Grubb's hiring Moreover, I
COLUMBUS TYPOGRAPHICAL UNION NO. 5
But, argues the Respondent, the Company's hiring of
Grubb on January 27 constitued a breach of contract,
because the Company by agreement was not to hire any
proofreaders and was obliged to "have such number of
regular situations as are necessary to meet requirements
and to reduce employment of extras to a minimum." The
General Counsel, conversely, denies that the Company
agreed to limit its hiring to handmen, operators, and
machinists. It is true that there is evidence tending to
show that a practice existed against hiring proofreaders.
But it does not necessarily follow that Grubb's hiring
violated the contract. However, I do not feel called upon
to interpret the contract - especially as the Company is
not a party here. The fact that the Company may have
acquiesced in this practice does not, of itself, make
equitable that which is inherently unfair; nor are rights
guaranteed to employees by the Act so fragile that they
may be ignored by a labor organization solely because the
employer happens to agree.'"
I conclude that, by Ziegler's refusal on January 27 to
place Grubb' s name on the slipboard after she was hired,
coupled with Brown 's statements that Grubb "wasn't to
go to work," the Respondent brought pressure upon
Grubb to force her adherence to the
no-slipping-up-of-proofreaders policy, and impliedly
threatened reprisal if she resisted." As the rule itself was
arbitrarily applied to the hiring of Grubb, I conclude that
this pressure on her to observe the rule constituted a
failure by the Respondent to represent her in a fair and
impartial manner , in violation of Section 8(b)(1)(A) of the
Act. The Respondent's motion to dismiss the complaint is
accordingly denied.
D. The Violation of Section 8(b)(2)
1. Contentions of the parties
The General Counsel in his brief contends: "Clearly
Respondent was attempting to police its own internal rules
by bringing unlawful pressure to bear on [the
Company] to refuse to hire [Grubb], and, hence, has
violated Section 8(b)(2) of the Act." In this connection,
the General Counsel points to the charge and threat of
fine made to Albright, a union member, by Ziegler and
the charge served on Albright by Ziegler. The
Respondent, on the other hand, argues in its brief that
Albright's testimony regarding Ziegler's reference to a fine
was "vague." It raises two defenses: That it had a right to
protest to the Company concerning what it in good faith
considered to be the Company's breach of contract in
hiring Grubb, and that it "did not have any veto rights
over the [Company's] hiring."
note in passing that the contract required the Respondent "at all times to
use all means within its power to provide a sufficient number of
employees."
"Unquestionably, there may be instances where the contract provides a
defense - such as a union -security clause conforming to the proviso to
sec 8(a)(3) of the Act. But this is not such a case Compare New York
Typographical Union Number Six, supra, 1558.
"Painters Local Union No. 249, etc., 136 NLRB 176, 189. "Any
would-be violator was impliedly warned that the Respondent might
exercise sanctions against him ." See also American Guild of Musical
Artists, AFL-CIO, 157 NLRB 735, 742, enfd. May 8, 1967 (C.A.D.C.),
Case 20,621, unreported.
2. Conclusions
861
As to the argument that the Respondent did not violate
the Act by merely insisting that the Company follow the
contract, the short answer is that, assuming without
deciding that the contract forbade Grubb's hiring on
January 27, this does not provide a defense. Whatever the
contract rights of the signatory parties might be, the
contract itself cannot excuse the pressure exerted on the
Company by the Respondent in an attempt to deny her
employment for reasons which, it has been found above,
were illegal and arbitrary. Regarding the defense that the
Respondent had no control over the Company's hiring -
and again assuming without deciding that the facts so
show - this misconstrues the issue. In determining
whether a union has violated Section 8(b)(2) of the Act,
the question is not whether the union was in control of
hiring. Rather it is whether the union attempted to cause
the employer to discriminate in hiring, in violation of
Section 8(a)(3) of the Act. I am convinced, and find, that
the Respondent made such an attempt by Brown's
statement on January 27 in Albright's presence that
Grubb "wasn't to go to work." It is further found that
additional pressure was exerted upon Albright on January
30 by Ziegler's threat of a fine - the testimony
concerning which I do not find vague - and the service
upon Albright of a formal charge a week later. These
actions were clearly intended to inhibit Albright personally
and/or the Company from hiring Grubb as a substitute
proofreader. As the basis for this pressure was the
arbitrary application of a union rule, the conduct violated
Section 8(b)(2) of the Act.' 8
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Dispatch Printing Company is, and at all
material times has been, an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Typographical Union, Columbus
Typographical Union No. 5, AFL-CIO, is, and at all
material times has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to place the name of Marijane Grubb on
the slipboard and seniority roster of the above-named
Company' s composing room employees, and by
threatening her with reprisals should she accept
employment with the above-named Company as a
substitute proofreader, the Respondent has restrained and
coerced employees in the exercise of their rights
guaranteed in Section 7 of the Act, and has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
4. By attempting to cause the above-named Company
to discriminate against Marijane Grubb with respect to
her hire and tenure of employment in violation of Section
8(a)(3) of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
"The General Counsel contends that Sec 8(b)(2) was further violated on
March 8 by the conduct of the Respondent's representatives in a meeting
with representatives of the Company. The Respondent takes the position
that this meeting was concerned solely with the hiring by the Company of
Erma Wesson as a substitute proofreader on February 18, and not with
Grubb's hiring I find it unnecessary to decide this issue, as such a
determination would merely be cumulative , and would not in any event
affect the Order recommended herein.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b)(2) of the Act.
5. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that the Respondent cease and
desist from the unfair labor practices it has committed.
Affirmatively, it will be recommended that the
Respondent place Grubb's name on the slipboard and the
seniority roster of the Company's composing room
employees with the same relative seniority and other
rights and privileges regarding employment which she
would have enjoyed had her name been entered thereon on
January 27, 1968, and that it notify the Company and
Grubb, in writing, that it has done so, and that it has no
objections to the hiring of Grubb as a proofreader,
provided that her relative seniority entitles her to such
employment.
The General Counsel and Grubb contend that the
Respondent should reimburse Grubb for her loss of pay.
The General Counsel argues in his brief
. . . the refusal of Respondent to permit [Grubb] to
participate in the slipboard and priority roster
procedure effectively encumbered her opportunities for
hire and precluded her from obtaining any seniority
rights. It was made crystal clear to [Grubb] that if she
chose to go against the dictates of Respondent that she
would be subject to discipline by Respondent . .
[Grubb] under such threat of discipline and the
possibility of having her clean union record besmudged
by such action, chose to obey the directive of
Respondent rather than incur its wrath.
The Respondent, on the other hand, maintains that it
should not be saddled with backpay liability because
Grubb quit working "because she herself so willed it," and
that therefore any loss of pay is attributable solely to
Grubb's voluntary act and not to any conduct of the
Respondent. I agree with the position of the General
Counsel and Grubb. I conclude that her "begging off
sick" was not a voluntary quit. Rather it was a
capitulation to the Respondent's pressure, motivated in
substantial part by Grubb's desire to avoid threatened
disciplinary action against her by the Respondent, which
might adversely affect her status as a member in good
standing of the Respondent. Accordingly it is
recommended that the Respondent make Marijane Grubb
whole for any loss she may have suffered by reason of the
Respondent's failure to place her on the slipboard and/or
the seniority roster, by paying to her a sum of money
equal to the amount she would normally have earned from
January 27, 1968, the date when she was entitled to have
her name put on the slipboard, until 5 days after the
Respondent gives Grubb and the Company the written
notice described above, less her net earnings during the
said period. The backpay provided for herein is to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB
289, including the payment of 6 percent interest as set
forth by the Board in Isis Plumbing & Heating Co., 138
NLRB 716. In addition, it will be recommended that the
Respondent preserve and, upon request, make available to
the Board or its agents, for a period of 3 years," records
adequate to disclose fully the basis on which it maintains
its slipboard and/or seniority roster of employees in the
composing room of the Company. Finally, it will be
recommended that the Respondent post appropriate
signed notices, and that additional signed copies thereof be
furnished, if the Company so desires, for posting by the
Company.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
I make the following:
RECOMMENDED ORDER
It is recommended that International Typographical
Union , Columbus Typographical Union No. 5, AFL-CIO,
Columbus, Ohio , its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Failing , while acting as exclusive bargaining agent
for employees in the composing room of The Dispatch
Printing Company , to represent all such employees in a
fair and impartial manner.
(b) Causing or attempting to cause the above-named
Company to discriminate against Marijane Grubb, or any
other employee , with regard to hire, tenure of
employment, or any other term or condition of
employment, in violation of Section 8(a)(3) of the Act.
(c) 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
in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action , which it is
found will effectuate the policies of the Act:
(a) Enter the name of Marijane Grubb on the slipboard
and on the seniority roster in the composing room of the
Company, with the same relative seniority , and other
rights and privileges regarding employment , that she
would have enjoyed had her name been entered thereon on
January 27, 1968.
(b) Notify the above-named Company and Marijane
Grubb, in writing , that it has complied with the
requirements of paragraph 2(a) of this Order, above, and
that it has no objection to her being hired as a
proofreader , provided that her relative seniority entitles
her to such employment.
(c) Make whole Marijane Grubb for any loss of pay she
may have suffered by reason of the Respondent's refusal
to place her name on the slipboard and/or seniority roster
of the employees in the Company ' s composing room, with
interest thereon at the rate of 6 percent per annum.
(d) Maintain, preserve, and upon request, make
available to the Board or its agents , for examination and
copying , for a period of 3 years , records adequate to show
fully the basis upon which it maintains its slipboard and
seniority roster of employees in the Company 's composing
room.
(e) Post at its office in Columbus, Ohio, copies of the
attached notice marked "Appendix B."30 Copies of said
notice, on forms provided by the Regional Director for
Region 9 , after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or
"Compare Skouras Theatres Corporation, 155 NLRB 157, 158, at fn. 2
"In the event that this Recommended Order is adopted by the Board,
COLUMBUS TYPOGRAPHICAL UNION NO. 5
covered by any other material.
(f) Cause copies of this notice, to be furnished by the
said Regional Director, to be duly signed by the
Respondent's representative and promptly returned to the
said Regional Director for posting by The Dispatch
Printing Company if the said Company should be willing.
(g) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith."
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX A
863
ARTICLE II
Proofreading
Section 6 . All proofreading and copy holding shall be
performed by journeymen....
ARTICLE VI
Section 1. The Employer and the Union agree that they
have fully bargained with respect to wages, hours and
other terms and conditions of employment and have
settled the same for the terms of this agreement in
accordance with the terms hereof.
Excerpt from the General Laws of the Typograpical
Union in effect January 1, 1967
ARTICLE II - FOREMEN
Section 11. A foreman . . . must have such number of
regular situations as are necessary to meet requirements
and to reduce employment of extras to a minimum.
Excerpts from Agreement between Respondent and
Company dated November 18, 1966
ARTICLE I
APPENDIX B
Jurisdiction
Section 2(r) The Union agrees , upon the request of the
Employer or foreman, at all times to use all means within
its power to provide a sufficient number of employees
necessary to efficiently and adequately perform the
composing room work.
Operation of Composing Room
Section 4(a) The operation, authority, and control of
the composing room shall be vested exclusively in ... the
foreman , who shall be a member of the Union in good
standing.
(c) The foreman shall have the sole right to employ
and/or discharge... .
(d) No foreman shall be subject to fine, discipline, or
expulsion by the Union for any act in the performance of
his duties as foreman when such action is authorized by
this agreement.
Defining Journeymen and Apprentices
Section 5 ... In hiring new journeymen employees the
foreman . . . must recognize priority as follows : First,
Regular situation holders . Second : Subject to established
hiring practices, other journeymen who have worked in
the composing room . Third: Individuals concerning whose
competency as journeymen the foreman has no reason for
doubt, or persons who have registered for employment
after having passed the examination hereinbefore
mentioned.
I.T.U. Laws
Section 6. . . the General Laws of the International
Typographical Union, in effect January 1, 1967, not in
conflict with law or this agreement , shall govern relations
between the parties on conditions not specifically
enumerated herein.
NOTICE TO ALL MEMBERS OF INTERNATIONAL
TYPOGRAPHICAL UNION, COLUMBUS TYPOGRAPHICAL
UNION No. 5, AFL-CIO AND TO ALL EMPLOYEES IN
THE COMPOSING ROOM OF THE DISPATCH PRINTING
COMPANY
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL, while representing all the employees in the
composing room of The Dispatch Printing Company,
do so in a fair and impartial manner.
WE WILL NOT cause or attempt to cause the
above-named Company to discriminate against
Marijane Grubb , or any other employee , with regard to
hire , tenure of employment , or any other working
condition , in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce 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 union
membership as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL place the name of Marijane Grubb on the
slipboard and the seniority roster in the above-named
Company 's composing room , with the same relative
seniority , and other rights and privileges regarding
employment, that she would have had if her name had
been placed thereon on January 27, 1968.
WE WILL notify the above-named Company and
Marijane Grubb, in writing , that we have placed her
name on the said slipboard and the seniority roster, and
have no objection to her being hired as a proofreader,
provided that her relative seniority entitles her to such
employment.
WE WILL reimburse Marijane Grubb for any loss of
pay she suffered because her name was not placed on
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the said slipboard or seniority roster on January 27,
1968, with 6 percent interest.
INTERNATIONAL
TYPOGRAPHICAL UNION,
COLUMBUS
TYPOGRAPHICAL UNION
No 5, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
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.
If persons have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board ' s Regional Office , Room 2407,
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202 , Telephone 684-3686.