Houston Typographical Union No. 87, ITU

National Labor Relations Board - Board Decisions

Feb 10, 1964

145 N.L.R.B. 1657 (N.L.R.B. 1964)

HOUSTON TYPOGRAPHICAL UNION NO. 87, ITU
APPENDIX 4-Continued
B. Expenses alleged:
Gasoline------------------------------------------ $212.79
Accommodations---------------------------------- 20.40
1657
-232. 19
C. Net interim earnings---------------------------------------- 1,667.81
1963-2d Quarter
A. Interim earnings: Equitable Construction & Mortgage---------- $2,500.00
B. Expenses:
Gasoline------------------------------------------ $199.03
Accommodations---------------------------------- 29. 12
-228. 15
'C. Net interim earnirkgs---------------------------------------- 2 ,271.85
Houston Typographical Union No. 87, International Typographi-
cal Union , AFL-CIO and Rodney James Missman and Houston
Chronicle Publishing Company, Houston Press Company, The
Houston Post Company, Parties to the Contract . Case No.
23-CB-472. Feb'r'uary 10, 1964
DECISION AND ORDER
On October 9, 1963, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above case, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommend-
ing that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and both the General Counsel and the
Respondent filed briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 Decision
and the entire record in this case, including the exceptions and briefs,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
145 NLRB No. 153.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the complaint herein be, and it
hereby is, dismissed.'
' See Armored Car Chauffeur8 and Guards Local Union No. 820, et al . (United States
Trucking Corporation), 145 NLRB 225, New York Typographical Union Number Six,
ct at (The New York Times Company), 144 NLRB 1555, cf. Miranda Fuel Company,
Inc, 140 NLRB 181, enforcement denied 326 F. 2d 172 (C.A. 2). In accord with his dissent
In Miranda, Chairman McCulloch does not rely for the finding of no violation here on any
criteria which judge the Respondent's action in terms other than those of encouragement
of union membership or loyalty, the acknowledgment of union authority, or the perform-
ance of union obligations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Paul Bisgyer on July 1 and 2,
1963, in Houston, Texas, on the amended complaint of the General Counsel I
and the amended answer of Houston Typographical Union No. 87, International
Typographical Union, AFL-CIO, herein called the Respondent or Union. In sub-
stance, the amended complaint alleges that on or about February 5, 1963, the
Respondent, in violation of Section 8(b)(2) and (1)(A) of the National Labor
Relations Act, as amended, caused Houston Chronicle Publishing Company, herein
called Houston Chronicle, to discharge or suspend Rodney James Missman, the
Charging Party, by enforcing or unfairly and invidiously enforcing a union rule or
by exercising final and exclusive control over the employment rights of employees
in the bargaining unit pursuant to its collective-bargaining agreement with Houston
Chronicle and other publishers .2 In its amended answer, the Respondent denies
the commission of any unfair labor practices. It asserts, among other things, that
Missman's discharge or suspension was due solely to his failure to comply with
a valid, nondiscriminatory rule of employment, evidenced by its bylaw 18 which
was incorporated by reference in the above-mentioned bargaining agreement, and not
because of any invidious, discriminatory, or unfair enforcement of this work rule.
At the close of the hearing the parties waived oral argument but thereafter the Re-
spondent and the General Counsel filed briefs which have been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF HOUSTON CHRONICLE
Houston Chronicle, a Texas corporation with its principal place of business in
Houston, Texas, is engaged in publishing a daily newspaper. At all material times
it has held membership in, or subscribed to, various interstate news services, such
as Associated Press, United Press, United Press International, New York Times,
and Chicago Tribune. During the past calendar year, it derived from its publishing
operations gross revenue in excess of $1,000,000, of which more than $50,000 was
derived from direct interstate circulation.
No question of jurisdiction is raised and I find that Houston Chronicle is, and
has been at all times material , engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
1 The charge herein was filed on March 27, 1963, and a copy was served on the Respond-
ent the following day.
' Houston Chronicle, Houston Press Company, and The Houston Post Company were
joined in this proceeding as parties to this multiemployer collective-bargaining agreement.
Houston Chronicle did not appear at the hearing, although its pretrial motion to dismiss
was previously denied. Similar motions to dismiss were made before and at the hearing
by Houston Press and The Houston Post which were also denied. Only Houston Press
filed an answer.
HOUSTON TYPOGRAPHICAL UNION NO. 87, ITU 1659
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. The hiring arrangements at Houston Chronicle
The relevant facts are substantially undisputed and are as follows: For a number
of years the Respondent has been the exclusive bargaining representative of the com-
posing room employees of Houston Chronicle, Houston Press, and The Houston
Post pursuant to successive multiemployer collective-bargaining contracts. We are
solely concerned here with the events at the Houston Chronicle plant and the dis-
cussion will therefore be limited to that employer. Under the contract 3 which was in
force at the time of the alleged unfair labor practices, the Respondent agreed to use
its best efforts to fill Houston Chronicle's personnel needs in the composing room 4
The agreement expressly recognized that the "operation, authority and control" of
the composing room was vested in the foreman as the Company's representative .5
In order to meet plant requirements and promote efficiency, the agreement em-
powered the foreman to hire employees, discharge any of them for cause, determine
the number of employees, including regular situations,6 and transfer employees from
one shift to another or rearrange the force, with due regard for the employees' priority
rights. More particularly, it accorded preference in filling a new or vacant situation
to a situation holder competent to perform the work in order of priority standing 7
and if such job was not claimed by a situation holder, then "to the extra oldest in
priority." The agreement further provided that in the event the new or vacant situa-
tion was claimed, the situation vacated by the claimant should be given to the extra
with the greatest priority, if other situation holders competent to do the work did not
claim the vacated situation. For the employment of extras the contract provided for
the maintenance of a slipboard in the composing room on which all extras desiring
to work in the composing room would list their names.
As will later be discussed more fully, the Respondent asserts that the contract,
which incorporated its bylaw 18 by reference,8 thereby imposed a correlative obliga-
tion on extras to accept a situation to which their priority standing entitled them.
Bylaw 18 provided that:
Any member of the Union showing for work in an office who refuses to accept
a situation tendered to him in the department in which he is seeking employ-
ment shall forfeit his priority standing and shall be barred from placing his
name on the slipboard for six months. The foreman shall be notified of said
bar and the reason therefor.
In implementing the contractual hiring provisions, an "extra slipboard" was
maintained at the Houston Chronicle plant which the chapel chairman 9 adminis-
3 This contract was effective from March 1, 1961, until May 1, 1963
*The composing room is described in the contract as consisting of the ad, machine,
makeup, proof, and machinist departments
5 Because a foreman may be a member of the Union, special provision was written into
the contract to Insure his independence of Union control and discipline in the performance
of his management functions It is no longer open to question that contract provisions
for control over hiring and job requirements by it foreman who is also a member of the
employees' union are lawful N L It B v News Syndicate Company, Inc., 365 U S 695.
° A situation holder is one who works a regular 5-day week and has designated offdays
Ile is unlike an extra or substitute who is employed on a day-to-day basis A clause in
the contract provided that "[s]uch number of situations shall be given out as are necessary
to meet office requirements thereby reducing to a minimum the employment of extras "
'The contract also provided that "[i]n selecting an employee, whether as a regular or
extra, preference shall be shown to that employee having the highest priority in the depart-
ment in which the work is to be performed " It also stated that the "priority of any
journeyman in any department in which he declares competency and the desire to work
therein shall be established by the date on which he first seeks work in said department,
whether as a regular or extra employee "
8 The contract provision relied upon stated
Sec 7. Nothing contained herein shall be construed to interfere in any way with
the creation or operation of any rules not in conflict with law or this contract by any
chapel or by the Union for the conduct of Its own affairs.
9A publisher's composing room is called a chapel for union purposes A chapel chair-
man is like a shop steward. An "office," In trade parlance, denotes a publisher's plant.
=1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered . On this slipboard were posted the names of persons seeking employment
in the composing room in jobs they were competent to fill in order of their priority
standing . In time, extras acquired higher priority positions on the slipboard as
the names of extras ahead of them were removed from the board when they accepted
situations or for some other reason . It is from this slipboard that the foreman
secured his day-to-day help in accordance with the extras ' priority to supplement
his regular situations . If an extra was not interested in working on a particular
day he would turn his slip containing his name facing inward . Apparently, this
would happen quite frequently when preferred day-shift work was not available.
The extra slipboard was also utilized to fill regular situations. As indicated pre-
viously, the contract expressly accorded "the extra oldest in priority" preference in
a situation not claimed by other situation holders. However, this right, in practice,
carried with it the obligation to accept a tendered situation or be barred from using
the slipboard for 6 months,1° as required by bylaw 18, which Houston Chronicle
and the Respondent recognized as a binding work rule at the plant. Although this
bylaw was literally addressed to members of the Respondent, the General Counsel
concedes that its provisions were applicable to members and nonmembers alike.
Bylaw 18 is not without a significant history. Before its adoption over 5 years
ago, publishers throughout the country including the contracting publishers herein,
were encountering difficulties in filling night-shift situations. Extras with top priority
on the slipboard, preferring day jobs, would frequently refuse situations offered them
because after situation holders exercised their contractual "bumping" priority rights,
the extras would usually be left with night-shift situations. Confronted with this
problem which made it difficult for them to conduct their operations efficiently with
a balanced work force, the publishers requested the various typographical unions to
insert appropriate provisions in their contracts to remedy this situation. From the
unions' point of view, corrective action was necessary because the extras' rejection
of tendered situations prevented night-shift situation holders from exercising their
contractual priority rights to "bump" into day situations and compromised the
unions' own contractual commitment to supply the publishers with needed personnel.
At the suggestion of the unions , the publishers agreed to leave the solution of the
problem to the unions ' internal procedures and not to insist on writing a special clause
into their contract. Accordingly, the International Typographical Union enacted a
bylaw which provided:
SEC. 16. In offices where preferred situations are added or reduced in priority
order, local unions shall have authority to make regulations to accomplish the
following purposes in the following order:
1. To meet contract requirements by making substitutes available to
fill situations in the office in which they show for work, and to bar from
the office, by order of the local union, any substitute who refuses to accept
a situation he is competent to fill, for such period of refusal.
3. To cancel the priority standing of any substitute when he refuses a
situation he is competent to fill and to provide that such substitute shall not
be allowed to establish new priority in the office for a stated and continuous
period not to exceed six months.
Since the state of affairs which prompted the enactment of the International bylaw
existed at the Houston newspaper plant , the Respondent availed itself of the authority
thus vested in it to promulgate bylaw 18 heretofore quoted for the mutual benefit
of the publishers, their employees, and itself. As indicated above, the obligation
imposed on extras to accept a regular situation when tendered soon became an estab-
lished work rule at the Houston Chronicle plant.
2. Missman's discharge
In June 1962, Rodney J. Missman, a member of the Respondent who had formerly
worked in Houston Chronicle's composing room, resumed employment there as an
extra employee. Pursuant to practice, he placed his name at the bottom of the extra
slipboard and secured day-to-day employment. In due course he acquired priority
and his name headed the slipboard. Because of his standing on the board, Missman
10 However , this disqualification did not affect his right to place his name on the slip-
board of other publishers or to work in another shop. It was also the accepted practice
that after working a regular situation for a week the employee could quit his job and re-
turn to the bottom of the slipboard as an extra.
HOUSTON TYPOGRAPHICAL UNION NO. 87, ITU 1661
was aware that he was in line for a regular situation which, under the prevailing
work rule involved herein, he would be required to accept if he were assigned to
one or suffer a 6-month suspension from the Houston Chronicle slipboard. There-
fore, in order to avoid being faced with a tendered situation, which in all likelihood
would be on the night shift, Missman sometime before December 20 ii requested
Foreman William H. Jenkins to move his name to the bottom of the clipboard if he
(Jenkins) decided to put on a situation. Jenkins agreed, as did Chapel Chairman
Horace Ayraud, to whom Missman also spoke about the matter. It appears that at
that time Missman and the other extras on the slipboard were enjoying 5 days' work
a week on the day shift. This was equal to a situation holder's normal workweek.
On December 20, which was the regular day when assignments for the following
week were made, Missman was off. Apparently forgetting his conversation with
Missman, Jenkins posted Missman to a day-shift situation.12 When Missman learned
of his assignment upon his return to work the next day, he indicated a reluctant
willingness to accept the day job. However, after a night-shift situation holder with
prior rights to the day job "bumped" Missman who was thereby left with the vacated
night situation, Missman protested to Jenkins and Ayraud and reminded them of his
earlier request not to be posted to any regular situation. Acknowledging their
mistake, Jenkins and Ayraud permitted Missman to reject the situation and to place
his name at the bottom of the slipboard. Thereafter, Missman continued to receive
extra work through February 4 when, as related below, he was discharged and barred
from receiving composing room work at Houston Chronicle for 6 months from the
date of his declination of the situation.
On January 6, 1963, an employee-member of the Respondent filed a complaint
with the Respondent against Chapel Chairman Ayraud to the effect that, although
Missman had refused a situation, he was improperly permitted by the chairman to
go to the bottom of the board As a result, Ayraud was summoned to appear be-
fore the Respondent's executive committee to account for his action Ayraud ap-
peared and explained his and Jenkins' inadvertence in failing to remove Missman's
name from the top of the slipboard before the assignment and that for that reason
they thought it proper to permit Missman to refuse the position and go to the bottom
of the slipboard. Although Ayraud informed the executive committee that there
were instances when extras were allowed to reject situations at Houston Chronicle
before their names were actually posted to these jobs,13 the executive committee dis-
avowed any knowledge of it and strenuously insisted upon the rigid enforcement of
the intent of the rule. Moreover, H. L. McCormick, vice president of the Respondent
and chairman of the executive committee, credibly testified that, although Ayraud
might have told the truth about the Missman episode, "it looked like there was a
little collusion there between the different parties to keep Mr. Missman from taking a
night job which was tendered to him, leaving someone else with priority there that
couldn't bump for the day job." Accordingly, the executive committee voted that
Missman be removed from the job and be barred from using the slipboard at Houston
Chronicle for 6 months from the date he had refused the situation. At a union
membership meeting held immediately after the executive committee's meeting, the
committee reported its recommendation which was approved by the membership
The committee thereupon instructed Ayraud to carry out the Union's mandate. It is
conceded that the Respondent's action against Missman. was not motivated by con-
siderations relating to union or nonunion membership. Nor is there any evidence
of personal hostility or animosity toward Missman.
The next day (February 4), Ayraud, pursuant to Respondent's instructions, ap-
proached Missman in the composing room and informed him that his employment
would terminate at the close of the day, and that the Respondent had voted for his
discharge and to bar him from working in the Houston Chronicle composing room
for 6 months from the date of his refusal to accept the situation. Quite naturally,
"According to Missman, these conversations occurred the day before December 20
Foreman William H Jenkins testified, however, that it was about 2 weeks before that date
12 It appears that this situation was to last about 3 weeks
11 Foreman Jenkins, who I find was a reliable witness, testified that on several occasions,
with Chapel Chairman Ayraud's acquiescence, he allowed senior extras, at their request,
to go to the bottom of the slipboard before they were put on situation. He further testified
that he knew of no case where an extra with top priority was permitted to go to the
bottom of the slipboard after that extra had refused a tendered situation. On the con-
trary, he testified, the only case with which he was familiar where a senior extra had re-
jected a situation, that individual, like Missman, was barred from employment in Houston
Chronicle's composing room for 0 months as required by the prevailing rule.
1662 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
Missman expressed his resentment over this treatment, questioned Ayraud's right
to discharge him, and asked Ayraud whether he had his final check. Thereupon,
Ayraud left Missman and obtained Missman's final check containing his accrued
vacation pay from Foreman Jenkins after informing Jenkins that Missman would
not leave without it. Ayraud then returned to Missman and handed him his check
and a union clearance to enable Missman to secure employment elsewhere. Miss-
man thereafter complained to Jenkins who stated he could do nothing about it and
thought Missman got a "raw deal." Subsequent efforts of Missman's wife to persuade
the Respondent to reconsider its decision proved to be futile. The Respondent took
the position that no charges had been filed against Missman and that it was only
Ayraud's failure to perform his duty that was involved in the proceedings before
the executive committee.
Several weeks after his suspension, Missman returned to the Houston Chronicle
plant and placed his name on the extra clipboard for the makeup department in the
composing room. Under orders from the Respondent, Missman's name was removed
for the reason that, although he was working in the composing room floor department
at the time of his suspension, his disqualification under bylaw 18 applied to all depart-
ments in the composing room. The General Counsel impliedly concedes in his
brief the correctness of this interpretation.
B. Concluding findings
The General Counsel contends that the evidence establishes that the Respondent
caused Missman's discharge in violation of Section 8(b) (1) (A) and (2) of the Act
In support of his contention, the General Counsel, in substance, advances three
theories-the first, that the Respondent's treatment of Missman was "manifestly
invidious," not for a legitimate purpose, and in disregard of its fiduciary and statutory
duty of fair representation, within the intendment of the principle enunciated in the
Board's supplemental decision in Miranda; 14 the second, that the discharge was the
result of the enforcement of a union bylaw which was not incorporated as a condi-
tion of employment in the Respondent's collective-bargaining agreement with Houston
Chronicle and other publishers and hence fell within the Act's prohibition; and the
third, even if the contract did incorporate bylaw 18 by reference, this provision was
unlawful because it was "basically a union rule" whereby Houston Chronicle
"not only delegated the right to hire and fire, and otherwise control tenure of em-
ployment, but . . . also abdicated its responsibility for the manner in which the .. .
[Respondent] exercise[d] the delegation."
The Respondent, on the other hand, urges that the General Counsel has failed
to prove any violation under the Act. Specifically, it argues that bylaw 18 was
adopted and enforced against Missman for legitimate business considerations and
for the benefit of all the employees in the bargaining unit; that, if material to its
defense, the bylaw in question was incorporated by reference in the parties' collective-
bargaining agreement as a valid, nondiscriminatory, and enforceable work rule; and
finally that the action taken against Missman did not relate to any union obligation
but rather to his obligation as an employee and therefore did not constitute unlawful
discriminatory treatment designed to encourage union membership or which had
such foreseeable result.15
To put this case in proper focus and to narrow the issues here presented, it may
be appropriate to consider initially whether the Respondent's bylaw 18, which im-
posed the obligation on the extra with top seniority on the slipboard to accept a
tendered situation or suffer suspension from employment in Houston Chronicle's
composing room for 6 months, was expressly or impliedly agreed to by Houston
Chronicle as a term or condition of employment at its plant. The Respondent
bases its affirmative argument principally on section 7 of its collective-bargaining
agreement which provides that "Nothing contained herein shall be construed to in-
terfere in any way with the creation or operation of any rules not in conflict with law
or this contract by any chapel or by the Union for the conduct of its own affairs."
Unlike the Respondent, I am not persuaded that this language states more than the
publishers' agreement not to interfere with the Respondent's internal affairs. While
"Miranda Fuel Company, Inc., 140 NLRB 181, in which Chairman McCulloch and
Member Fanning dissented
is The Respondent also advances an argument identical to that rejected by the majority
of the Board in Miranda, supra, that since Houston Chronicle would not have been in
violation of Section 8(a) (3) if it had terminated Missman's employment on its own initia-
tive, the Respondent could not be found to be in violation of Section 81,',) (2) or any other
statutory provision because the discharge was effected at its instance
HOUSTON TYPOGRAPHICAL UNION NO. 87, ITU 1663
this provision might conceivably be ambiguous, no evidence was adduced that it was
the intention of the parties to incorporate the Respondent's bylaws in this agreement.
Indeed, the testimony of H. L. McCormick, the Respondent's vice president and
chairman of the executive committee, and Leroy Williams, its secretary-treasurer,
indicates a contrary intention with respect to bylaw 18. According to them, when
the problem of rejected situations was considered in various contract negotiations,
the Respondent convinced the publishers that their proposed inclusion of a specific
contract provision to alleviate this condition was unnecessary. Moreover, had the
parties intended to incorporate the Respondent's bylaws, there is no explanation why
the wording of section 6(b) of the contract, which expressly incorporates the "Gen-
eral Laws of the International Typographical Union," 16 was not used.
However, while I am unable to find bylaw 18 embodied in the parties' written con-
tract, I do find that, in implementing the various terms and conditions of employment
therein provided, both the Respondent and Houston Chronicle have recognized and
adopted in practice the requirements of bylaw 18 as a rule governing employment at
the latter's plant. As previously discussed, the promulgation of this bylaw was the
Union's response to the publishers' demand to remedy the rejected situation prob-
lem-a nationwide problem which was similarly solved by other typographical unions
and publishers. In addition, the bylaw was undeniably designed to effectuate the
intent of the job priority rights clauses which had long been included in the parties'
contracts by enhancing the opportunities for situation holders to exercise their prior-
ity to "bump" into preferred jobs. Furthermore, the bylaw had the additional pur-
pose of enabling the Respondent to fulfill more effectively its contractual responsibil-
ity of furnishing needed composing room personnel. According to Foreman Jenkins,
who testified to the existence of bylaw 18 as a work rule at the Houston Chronicle
shop since its promulgation more than 5 years ago, this rule served well manage-
ment's interest in maintaining a balanced and relatively stable work force and the
employees' interest in asserting their job priority rights.
The legitimacy of the Respondent's and the Company's objectives in adopting the
requirements of bylaw 18 as a condition of employment cannot be seriously ques-
tioned. Nor is there anything inherently unfair or discriminatory in this rule or in
conflict with the purposes or policies of the Act. Clearly, then, the rule was "justified
by nondiscriminatory business purposes-[and] by nondiscriminatory attempts to
benefit all the represented employees," 17 whether union or nonunion. In these cir-
cumstances, and contrary to the implication in the General Counsel's contention, the
fact that a work rule adopted by an employer and his employees' bargaining repre-
sentative has its origin in a union bylaw does not for that reason alone make it an
impermissible condition of employment. Indeed, many well-established terms and
conditions of employment too numerous to mention, whose validity is beyond chal-
lenge, have had their genesis in union rules, bylaws, and policies .18 Certainly, the
Supreme Court's decision in News Syndicate 19 should dispel any doubt as to the
lawfulness of work rules evidenced by union bylaws. It inescapably follows that
bylaw 18, as a valid rule of employment, was enforceable at the instance of the Re-
spondent and the Company's acquiescence in the application of the sanctions therein
prescribed cannot be viewed as an unlawful abdication of its management respon-
16 Section 6(b) provides that "The General Laws of the International Typographical
Union, in effect January 1, 1961, not in conflict with State or Federal law, shall govern
relations between the parties on conditions not specifically enumerated herein."
In the course of discussions during the hearing, I questioned counsel for the parties
whether the Respondent's bylaw 118 was actually incorporated in the contract by operation
of section G(b) since the International's bylaw 16 empowered local unions, such as the
Respondent, to enact a bylaw of the type of bylaw 18 However, after careful examination
of General Counsel's Exhibit No. 2, "Book of Laws of the International Typographical
Union," I have come to the conclusion that the International's bylaws are not part of the
"General Laws" mentioned in the contract. Honolulu Star-Bulletin, Ltd, 123 NLRB 395,
397, footnote 3. In these circumstances, there is no basis in section 6(b) of the contract
for finding Respondent's bylaw 18 incorporated in the agreement
17 Local $57 , International Brotherhood of Teamste,s , etc v. N . L.R.B. (Los Angeles-
Seattle Motor Express), 365 U.S 667, 682 (Justice Harlan's concurring opinion in which
Justice Stewart joined).
1sNLR.B v. Furrier8 Joust Council of New York (Abe Meltzer, Inc.), 224 F. 2d 78, 80
(CA. 2).
19 N.L R.B v. News Syndicate Company, Inc., 365 U S. 695.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibilities, as the General Counsel asserts 20 To be sure, this does not mean that the
work rule may be enforced in a manner which disregards employees' statutory rights.
This brings us to the General Counsel's principal contention that the circum-
stances surrounding Missman's discharge or suspension establish that the Respond-
ent violated Section 8(b)(1) (A) and (2) of the Act under the Miranda21 prin-
ciple. In that case the employees' statutory bargaining representative caused an
employer to reduce an employee's seniority to the latter's economic detriment in
breach of an outstanding collective-bargaining agreement. For this reason and
finding that the union's conduct was "otherwise arbitrary and without legitimate
purpose," a majority of the Board concluded that the union thereby deprived the
employee of his statutory right to fair representation in violation of Section 8(b)
(1) (A) of the Act and discriminated against him in violation of Section 8(b)(2).
In so doing, the majority defined a statutory bargaining representative's obligation
toward the employees in the bargaining unit to refrain "from taking action against
any employee [in matters affecting his employment] upon considerations or classi-
fications which are irrelevant, invidious or unfair." Of necessity, these are not
precise terms and can only have meaning in a specific fact situation in determining
whether the bargaining agent breached its statutory duty.
Evaluating the Respondent's conduct in light of all the facts and circumstances
herein, I am not persuaded that the record establishes that the Respondent was
guility of unfair representation or invidious discrimination in its treatment of
Missman within the meaning of the Miranda principle when it refused to uphold
the action of Foreman Jenkins and Chapel Chairman Ayraud 22 in allowing Miss-
man to go to the bottom of the extra slipboard in contravention of the work rule
after Missman declined the night-shift situation. In sharp contrast with the facts
in the cited case, the Respondent's conduct was not unauthorized by the collective-
bargaining agreement, but actually was in conformity with a valid, well-established
and known work rule which implemented this agreement. Significantly, there is
not the slightest suggestion in the record that such enforcement of the work rule
was motivated by malice or personal animosity towards Missman or by hostility
grounded on considerations of union membership or other union-connected ac-
tivities from which an inference of unfair representation or invidious discrimination
to encourage union membership could possibly be drawn. Nor can it be said that
the Respondent's action was arbitrary and not in the interest of all the employees it
represented. This is so, for not only would condoned departures from the rules
open the door to collusive arrangements and favoritism, but they plainly would
defeat the very purpose of the rule to require extras, who benefit from their senior
position on the slipboard to secure daily work, to perform their obligation to accept
a tendered situation, though not to their liking, when their turn arrives. Indeed,
to permit extras to avoid this responsibility may well be discriminatory and unfair
to situation holders who would thereby be deprived of the opportunity to exercise
their contractual priority rights to "bump" into a desirable day-shift situation or to
other extras who might be required to accept unwanted situations before their
regular turn. It is thus quite clear that Missman's unhappy experience resulting
from the Respondent's strict enforcement of the work rule cannot reasonably be
attributed to reprehensible or unlawful motives 23 As the Supreme Court so aptly
20 Of. Local 357, International Brotherhood of Teamsters, supra. In view of my determi-
nation that the requirements of bylaw 18 were adopted by the Respondent and Houston
Chronicle as a condition of employment, I need not reach the Respondent's contention, of
doubtful validity in my opinion under Radio Officers' Union v N.L R.B , 347 U.S. 17, that
it was privileged to enforce the bylaw even if Houston Chronicle had not adopted or other-
wise agreed to it as a condition of employment.
11 Miranda Fuel Company, Inc, 140 NLRB 181 (Chairman McCulloch and Member
Fanning dissenting).
2s The Respondent contends that Chapel Chairman Ayraud, who was In charge of ad-
ministering the extra slipboard at the Houston Chronicle plant, was not authorized to
permit violations of the work rule but was dutybound under the International Typo-
graphical Union's bylaws to see that all contract obligations were met and that Missman,
as a member, presumably was aware of it. However, whether or not Ayraud exceeded his
authority is of no moment here in view of my conclusion that the Respondent did not
breach its statutory duty of fair representation or engage in invidious discrimination
against ALssman
21 While neither Alissman nor Foreman Jenkins was invited to appear before the Respond-
ent's executive committee when it summoned Ayraud, on complaint of an employee-member,
to explain his failure to apply the work rule In question , the evidence shows that Ayraud
presented all the facts before the executive committee voted to direct him to enforce the
MID-WEST ABRASIVE COMPANY, ETC. 1665
observed,24 "complete satisfaction of all who are represented is hardly to be ex-
pected [from their bargaining agent's action]. A wide range of reasonableness
must be allowed a statutory bargaining representative in serving the unit is repre-
sents, subject always to good faith and honesty of purpose in the exercise of its
discretion." Moreover, the Respondent's motivation does not become suspect simply
because Foreman Jenkins, apparently with Chapel Chairman Ayraud's acquiescence,
but without the knowledge of the Respondent's local officials, permitted on a few
occasions senior extras to go to the bottom of the slipboard before actually being
tendered a situation, in contravention of the intent and purpose of the rule, espe-
cially since in the only case coming to the Respondent's attention, other than
Missman's, where a senior extra had rejected a tendered situation the senior extra
was barred from employment at the particular plant for 6 months, as prescribed by
the work rule. Perhaps in Missman's case it might have been wiser for the Re-
spondent to exercise more leniency. But it is not for the Board to pass judgment
on the Union's wisdom provided, of course, its conduct falls within the area of
allowable action.
In sum, I find that the evidence does not convincingly establish that the Re-
spondent failed in its duty of fair representation or otherwise indulged in invidious
discrimination against Missman which had the natural and foreseeable consequence
of encouraging membership in its organization within the intendment of the
Miranda principle. The Respondent's conduct, prompted as it was by lawful con-
siderations unrelated to union membership, loyalty, or obligations, at most tended
to encourage adherence to a rule of employment designed to promote the legitimate
needs of the Company and to implement the contract rights and obligations of all
the employees and the Union. In my opinion, to hold otherwise on the facts here
presented would greatly impair the Union's effectiveness in serving the interests of
the employees as a group.
Accordingly, as the General Counsel has failed to sustain his burden that the
Respondent has engaged in unfair labor practices in violation of Section 8 (b) (1) (A)
and (2) of the Act, I shall recommend dismissal of the complaint.
RECOMMENDATION
Upon the basis of the foregoing findings and conclusions and upon the entire
record in the case, I recommend that the amended complaint issued herein against
Houston Typographical Union No. 87, International Typographical Union, AFL-
CIO, be dismissed.
rule. In these circumstances, the absence of an invitation to Missman and Jenkins does
not necessarily indicate, as the General Counsel urges, betrayal by the Respondent of its
statutory obligation of fair representation. Nor, on the other hand, do I find merit in
the Respondent's assertion that Missman should have pursued his remedy under the con-
tract's grievance procedure rather than file charges with the Board. Whether or not such
a contract remedy was available to him, it is sufficient for present purposes to point out
that its existence does not preclude the Board from exercising jurisdiction herein. Section
10(a) of the Act.
24Ford Motor Company v. Huffman, 345 U.S. 330, 338.
Mid-West Abrasive Company and its subsidiary , Allied Abrasive
Company 1 and United Papermakers and Paperworkers, AFL-
CIO, Petitioner. Case No. 7-RC-6783. February 10, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer James R.
Watson, Jr. The Hearing Officer's rulings made at the hearing are
1 The Emnloyer's name appears as amended at the hearing.
145 NLRB No. 159.
734-070-64-vol. 145-106