Kalamazoo Typographical Union

National Labor Relations Board - Board Decisions

Nov 1, 1971

193 N.L.R.B. 1065 (N.L.R.B. 1971)

KALAMAZOO TYPOGRAPHICAL UNION 1065
Kalamazoo Typographical Union, Local No. 122,
International Typographical Union, AFL-CIO
(Booth Newspapers , Inc., d/b/a Kalamazoo Ga-
zette) and Betsy Mary Mason and Kalamazoo
Gazette. Cases 7-CB-2111 and 7-CB-2148
November 1, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 26, 1971, Trial Examiner Harry H. Kuskin
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.
The Trial Examiner further found that the Respon-
dent Union had not engaged in certain other unfair
labor practices as alleged in the consolidated com-
plaint and recommended dismissal as to those
allegations . Thereafter, the General Counsel and the
Kalamazoo Gazette filed exceptions to the Trial
Examiner 's Decision and supporting briefs and the
Respondent Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
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 proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent
consistent herewith.
The Trial Examiner held, inter alia, that the
Respondent Union violated Section 8(b)(1)(A) of the
Act by taking steps to and in fact causing its members,
who were employed in the composing room of the
Kalamazoo Gazette, to ostracize Betsy Mason, so
long as she worked there, in retaliation for her past
nonunion status and antiunion activity while em-
ployed elsewhere. We agree.
The Trial Examiner also held that the Union did not
violate the Act by grieving over the hiring of Mason,
by demanding and ultimately obtaining her dis-
charge , or by denying her opportunities to work
overtime and refusing to represent her while she was
employed in the Gazette composing room. In this
193 NLRB No. 159
respect, he found that Mason was hired by the
Gazette in violation of its collective-bargaining
agreement with the Union, which requires journey-
man status as a condition precedent to probationary
employment in the Company's composing room, and
that, by engaging in the aforementioned conduct, the
Union was concerned only with asserting its contract
rights and was not motivated by unlawful discrimina-
tory considerations. We disagree.
The record shows that the Gazette and the Respon-
dent Union are parties to a collective-bargaining
agreement covering all employees in the publisher's
composing room. The agreement specifies that only
journeymen, as defined therein, and apprentices may
perform work within the Union's jurisdiction. By its
terms, the Union promises to use all means within its
power to furnish a sufficient number of competent
journeymen, the only classification here relevant.
Despite the aforementioned language, the agreement
contains neither exclusive hiring hall provisions nor a
union-security clause. As defined in the contract,
journeymen are grouped into four categories: (1)
persons who, prior to the effective date thereof,
worked as journeymen in the composing room; (2)
employees who have completed approved apprentice
training; (3) persons who have passed an examination
recognized by both parties to the agreement and
qualified thereunder as journeymen; and (4) appli-
cants for work in the composing room who, upon
reference to the Joint Standing Committee by the
publisher, secure a certificate of competency duly
issued under the procedure established by that body.
It is customary for a job applicant, who is a member
of an affiliate local of the International Typographical
Union and who seeks work in the Gazette composing
room, to go directly to the Union's chapel chairman
and present to him a "traveler" card denoting his
status as a paid-up journeyman member of a sister
local. At this time, the applicant usually claims
competency in certain areas of composing room work.
The card itself is accepted asprima facie evidence that
the applicant is a "journeyman" as defined in the
contract and, as such, has satisfied the condition
precedent to probationary employment by the pub-
lisher. The chapel chairman then introduces the
applicant to the composing room foreman who
decides whether or not to hire him. If hired, the
individual undergoes a "competency test" on or
before completing five shifts of work at the assigned
job. The publisher alone decides whether or not to
retain the individual based on the degree of compe-
tency demonstrated during the test. In recent years,
all "outsiders" hired by the Gazette to perform
composing room work, with the exception of Betsy
Mason the alleged discriminatee herein, were mem-
bers of ITU affiliated locals and, accordingly,
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented traveler cards as prima facie evidence of
their , Journeyman status.
Betsy Mason was not a union member nor had she
ever, so far as the record shows, qualified as a
journeyman as that term is defined in the agreement
here involved. During the week of August 18, 1969,
Mason appeared at the Gazette personnel office in
search of work. She was referred to and interviewed
by Robert DeMink, composing room foreman, who,
being advised of her prior experience as a perforator
operator, agreed to employ her as of August 25,
subject to the posthire competency test. The publisher
has experienced a chronic shortage of perforator
operators who perform composing room work within
the Union's jurisdiction.
On August 21, 1969, DeMink advised Henry
Champion, acting chapel chairman, that he had hired
"a girl" as a perforator operator. According to the
credited testimony, Champion then asked: "Does she
have a card?" DeMink replied: "Henry, you know
better than to ask me that." Champion reported this
conversation to Richard Reames, president of the
Respondent Union and an employee of the Gazette,
who complained to DeMink on the following day that
the hiring in question violated the terms of their
bargaining agreement. Failing a resolution of the
matter , the Union filed a grievance. Thereafter, on
August 25, Mason reported for work and subsequent-
ly passed her competency test.
From the outset, Mason experienced difficulties
with other composing room employees who, as found
by the Trial Examiner, were under Union direction to
ostracize her from her fellow workers. The effort-
intensified when the Union later learned that she
began working at her prior place of employment
during a strike by a sister local. The record further
shows, and the Trial Examiner also found, that the
Union refused to represent Mason or allow her to
work overtime throughout the entire period of her
employment in the Gazette composing room. She was
discharged on April 13, 1970, pursuant to the award of
an arbitrator, after a hearing on the Union's griev-
ance.
The arbitrator's award was based solely on his
finding that the Gazette hired Mason "at a time when
she was not a qualified journeyman as that classifica-
tion is defined in the contract." We find no reason for
entering the domain of the arbitrator and disturbing
his interpretation of the contract in question. Howev-
i International Longshoremen's and Warehousemen 's Union Local 17, etc,
172 NLRB No 227, Puerto Rico Drydock & Marine Terminals, Inc, 123
NLRB 1298, enfd 284 F 2d 212 (C A D C ), cert denied 364 U.S 883
2 This question alone is insufficient to establish that the Union's
subsequent conduct was unlawful , for it is not contended, nor do we find,
that the use of the ITU card as a means of demonstrating journeyman
status necessarily results in the discriminatory treatment of nonunion
employees in violation of the Act Further , we are not here called on to
er, it is incumbent upon the Board to determine
whether, in asserting its claimed contractual rights,
the Union was motivated by valid contract considera-
tions or by the fact that Betsy Mason was not a union
member, for a collective-bargaining agreement which
lawfully sanctions a discharge cannot be invoked by a
union with impunity if the real motive for the union's
action is discriminatory.'
Significantly, in this latter respect, the Union
manifested exclusive interest in Mason's lack of union
credentials from the outset. As previously mentioned,
when informed that the publisher had hired a new, yet
unidentified, employee to perform composing room
work, Champion, the acting chapel chairman, asked
only if the individual involved had "a card."2
DeMink, the composing room foreman, did not
provide the answer. The Union assumed correctly
that Mason did not hold a card but, without otherwise
attempting to ascertain her journeyman status,
immediately demanded that the publisher not hire her
and, failing in that effort, grieved to obtain her
discharge.3
That Mason's nonmembership in the ITU was the
underlying motive behind the Union's action is
further revealed by the events which followed
arbitration of the Union's grievance. At the request of
Gerald Miller, vice president of Booth Newspapers,
Inc., owner of the Gazette, a meeting was held with
representatives of the Booth Alliance, which bargains
on behalf of the Respondent Union, to consider the
effect of the arbitrator's decision insofar as he held
that, despite the language of the contract, there
existed no test, recognized by both parties, to qualify
persons as journeymen who were not union members.
Among those who represented the Union at the
meeting were Reames, its president, and Thomas
McCarthy, chairman of the Alliance. In a discussion
which ensued, Miller made reference to the Betsy
Mason incident and proposed the creation of a test to
implement the contract in question. McCarthy ref-
used, answering: "there is no need for a new test, the
ITU card is all that a man needs." (Emphasis
supplied.) This insistence on the part of the Union
that the ITU traveler card be retained as the exclusive
criterion for ascertaining journeyman status is by its
very nature discriminatory, since it is tantamount to
requiring union membership as a prerequisite for
obtaining employment. McCarthy's comment, more-
over, reveals an unwillingness to depart from an
determine , nor do we, the legality of the contract between the Gazette and
the Respondent Union insofar as it pertains to the hiring of composing
room employees
3 Reames, the Respondent 's president , testified that he knew , prior to
the filing of a grievance over Mason 's hire, that Mason did not have an
ITU card because of her failure to go through the chapel chairman to
obtain the job
KALAMAZOO TYPOGRAPHICAL UNION
admitted policy clearly applicable to Betsy Mason
and to adopt a "new" one. Thus, McCarthy under-
scored the reason behind the Union's original
objection to Mason's employment; namely, her lack
of union membership. In these circumstances, we find
that the Respondent Union violated Section 8(b)(2)
and 8(b)(1)(A) of the Act by grieving over the hiring
of Betsy Mason and by subsequently invoking its
collective-bargaining agreement with the Gazette to
effect her discharge, thereby attempting to preserve
union membership as the sole prerequisite for
obtaining employment with the Company.
The Union admits that its refusal to represent
Mason so long as she remained in the Gazette
composing room and its refusal to afford her overtime
work followed from its grievance over her hiring and
its insistence upon her discharge. We hold that, a
fortiori, such conduct also violates the Act.
THE REMEDY
Having found that the Respondent Union has
engaged in certain unfair labor practices, we shall
order it to cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Having found that the Respondent Union violated
the Act by grieving over the hiring of Betsy Mason
and by subsequently invoking its collective-bargain-
ing agreement with the Gazette to effect her dis-
charge, thereby attempting to preserve union mem-
bership as the sole prerequisite for obtaining employ-
ment with the Company, we shall require that the
Respondent Union forthwith notify in writing the
aforementioned Company that it has withdrawn all
objections to the hiring and employment of said
employee as a perforator operator.
We shall further order that the Respondent Union
make Betsy Mason whole for any loss of pay suffered
because of the discrimination practiced against her by
payment to her of a sum of money equal to that which
she normally would have earned as wages from April
13, 1970, the date of her discharge, less her net
earnings, if any. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest at a rate of 6 percent
per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716. The Respondent Union shall not
be liable for backpay accruing after 5 days from
proper service upon the Kalamazoo Gazette of a
written notice withdrawing all objections to the
unconditional hiring and reemployment of Mason.
Because the Respondent Union's conduct in the
commission of the unfair labor practices found herein
goes to the very heart of the Act, and because it may
1067
reasonably be anticipated from its past conduct that
the Respondent Union may commit other violations
in the future, we shall order the Respondent Union to
cease and desist from infringing in any other manner
upon the rights of employees as guaranteed by the
Act.4
ORDER
Upon the entire record in this proceeding and
pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Union, its officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, the Kalamazoo
Gazette to discriminate against Betsy Mason by
refusing to hire or by discharging her to preserve
union membership as the sole prerequisite for
obtaining composing room work in violation of
Section 8(a)(3) of the Act.
(b) Restraining or coercing Betsy Mason in the
exercise of the rights guaranteed her in the Act by
refusing to represent her or by failing to afford her the
opportunity to work overtime because she does not
possess a union traveler card.
(c) Restraining or coercing Betsy Mason in the
exercise of her rights under the Act by attempting to
ostracize her while at work, in retaliation for her past
nonunion status or antiunion activity while employed
by another employer.
(d) In any other manner restraining or coercing
Betsy Mason in the exercise of her rights guaranteed
in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Notify the Kalamazoo Gazette, in writing, that it
has withdrawn all objections to the hiring and
employment of Betsy Mason as a perforator operator,
and request the Kalamazoo Gazette to offer her
immediate and full reinstatement to her formerjob or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority
and other rights and privileges.
(b) Make Betsy Mason whole for any loss of pay
suffered by reason of the Respondent Union's action
in causing the Kalamazoo Gazette to discriminate
against her in the manner set forth above in the
section entitled "The Remedy."
4 N L R. B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4)
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its offices, hiring halls, and meeting halls,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by the Respondent Union's authorized repre-
sentative, shall be posted by the Respondent Union
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Mail to the said Regional Director copies of the
aforementioned notice for posting by the Kalamazoo
Gazette, if willing, at its place of business in
Kalamazoo, Michigan, in places where notices to
employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director, shall,
after being signed by a representative of the Respon-
dent Union, be forthwith returned to Regional
Director for posting.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
S In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The law requires that a union which is properly
designated as bargaining representative of an appro-
priate unit of employees has an obligation to serve the
interests of all employees in the bargaining unit
"without hostility or discrimination toward any," and
"to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct."
It is our intention to and we will represent all of the
employees in the appropriate unit covered by our
contract with the Kalamazoo Gazette as the law
requires.
WE WILL NOT cause, or attempt to cause, the
Kalamazoo Gazette to discriminate against Betsy
Mason by refusing to hire or by discharging her to
preserve union membership as the sole prerequi-
site for obtaining composing room work in
violation of Section 8(a)(3) of the Act.
WE WILL NOT restrain or coerce Betsy Mason in
the exercise of the rights guaranteed her in the Act
by refusing to represent her or by failing to afford
her the opportunity to work overtime because she
does not possess a union traveler card.
WE WILL NOT restrain or coerce Betsy Mason in
the exercise of her rights under the Act by
attempting to ostracize her while at work in
retaliation for her past nonunion status or antiun-
ion activity while employed by another employer.
WE WILL NOT, in any other manner, restrain or
coerce Betsy Mason in the exercise of her rights
guaranteed in Section 7 of the Act, except to the
extent that such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
WE WILL notify the Kalamazoo Gazette, in
writing, that we have withdrawn all objections to
the hiring and employment of Betsy Mason as a
perforator operator and request the Kalamazoo
Gazette to offer her immediate and full reinstate-
ment to her former job or, if that job no longer
exists, to a substantially equivalent position,
without prejudice to her seniority and other rights
and privileges.
WE WILL make whole Betsy Mason for any loss
of pay suffered by reason of our action in causing
the Kalamazoo Gazette to discriminate against
her.
KALAMAZOO
TYPOGRAPHICAL UNION,
LOCAL No. 122,
INTERNATIONAL
TYPOGRAPHICAL UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building , 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H . KUSKIN , Trial Examiner : This proceeding was
KALAMAZOO TYPOGRAPHICAL UNION 1069
heard at Kalamazoo, Michigan, on February II and 12,
1971. The consolidated complaint herein, as amended at
the hearing, issued on October 28, 1970, based on a charge
filed on February 18, 1970, in Case 7-CB-21 11 by
employee Betsy Mary Mason, and on another charge filed
on April 13, 1970, in Case 7-CB-2148, by Booth
Newspapers, Inc., d/b/a Kalamazoo Gazette, herein called
Kalamazoo Gazette or the Company. The consolidated
complaint, as amended, alleges that Kalamazoo Typo-
graphical Union, Local No. 122, International Typographi-
cal Union, AFL-CIO, herein called Respondent or the
Union, has violated Section 8(b)(2) and (1)(A) of the
National Labor Relations Act by the following conduct: (a)
since about August 21, 1969, and continuing to April 13,
1970, it has, through the medium of grievances filed on
August 21 and 25, 1969, attempted to cause the Kalamazoo
Gazette not to hire and, after hiring, to discharge Betsy
Mary Mason, an employee in the contract unit represented
by it; (b) since about November 23, 1969, and continuing
through April 23, 1970, it has, by virtue of its control of the
distribution of overtime to unit employees, withheld
overtime work from Mason; (c) since August 22, 1969, and
continuing to April 13, 1970, it has caused the fellow
employees of Mason to ostracize her and to refuse to
perform services for and maintain the equipment at her
work station; (d) since August 22, 1969, and continuing to
April 13, 1970, it has refused to represent her as a
constituent of the aforesaid bargaining unit; and (e) on
April 13, 1970, it successfully caused the Company to
discharge her. Respondent's answer denies that it has
violated the Act in any respect alleged herein.
Upon the entire record, including my observation of the
witnesses , including their demeanor while on the witness
stand, and after due consideration of the briefs filed herein,
I make the following:
FINDINGS OF FACT 1
I. THE BUSINESS OF BOOTH NEWSPAPERS, INC., D/B/A
KALAMAZOO GAZETTE
The complaint, as amended, alleges, and Respondent
admits, that Booth Newspapers, Inc., is engaged in the
publication, sale, and distribution of newspapers in various
locations within the State of Michigan, and has its principal
place of business in Detroit, Michigan; that, among its
newspapers , Booth Newspapers, Inc., publishes a daily
newspaper under the name of "The Kalamazoo Gazette"
and, in this connection, does business as Kalamazoo
Gazette; that the place of business of Kalamazoo Gazette,
the only facility involved herein, is in Kalamazoo,
Michigan ; that, during the year ending December 31, 1969,
which is a representative period, Booth Newspapers, Inc.,
in the course and conduct of its business under the name of
Kalamazoo Gazette, received gross revenues in excess of
$500,000, and subscribed to interstate news services such as
Associated Press and United Press International, and
advertised nationally sold products, the gross revenues
from the latter exceeding $50,000 a year; and that during
the same yearly period, Booth Newspapers, Inc., purchased
and caused to be transported and delivered to the place of
business of Kalamazoo Gazette newsprint, ink, and other
goods and materials, of which in excess of $50,000 worth
came directly from points outside Michigan.
I find, upon the foregoing, as Respondent also admits,
that Booth Newspapers, Inc., d/b/a Kalamazoo Gazette, is
engaged in commerce within the meaning of the Act
II. THE LABOR ORGANIZATION INVOLVED
Respondent further admits, and I find, that Kalamazoo
Typographical Union, Local No. 122, International
Typographical Union, AFL-CIO, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The bargaining relationship with Kalamazoo
Gazette
The Kalamazoo Gazette is one of eight newspapers
published by Booth Newspapers, Inc. The composing room
of Booth Newspapers, Inc., d/b/a Kalamazoo Gazette, is
represented for collective bargaining by Respondent. At all
times material herein there was in effect an agreement
covering the employees in this composing room. This
agreement, for the period from October 1, 1968, to March
31, 1971, was in two parts, namely, the master agreement
and the supplement. The validity of these documents is not
questioned herein. The master agreement was negotiated
for Respondent by Booth Alliance,2 which is made up of
equal representation from each of the eight Booth
newspapers. Notwithstanding the point negotiation of the
master agreement for the employees in the composing
rooms of all eight newspapers, each newspaper separately
signed with the local union representing its employees.
However, the supplements were not only signed separately
but were also negotiated separately at each newspaper.
With respect to the master agreement , which does not
contain a union-security clause or an exclusive hiring hall
provision, significance attaches to the provisions therein
requiring the employment of journeymen and apprentices,
defining requirements for journeyman status, and setting
forth Respondent's undertaking to use all means within its
power to furnish the needed competent journeymen. These
provisions are as follows:
1-01 The Company hereby recognizes the Union as the
exclusive bargaining representative of all employees
covered by this agreement. The words "employee" and
"employees" when used in this agreement apply to
journeymen and apprentices, and shall in no way be
understood to apply exclusively to members of the
Union.
1-02 All work within the jurisdiction of the Union shall
be performed only by journeymen and apprentices.
Apprentices may be employed only in accordance with
1 Unless otherwise noted, the findings of fact herein are based on
admissions or stipulations, or on uncontroverted testimony which I have
credited.
2 The negotiating team consists of a scale committee of three
representatives from each local union
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ratio of apprentices to journeymen provided
elsewhere in this agreement.
1-03 Journeymen are defined as:
(1) Persons who, prior to the effective date hereof,
worked as journeymen in the composing room of the
paper signatory to this agreement.
(2) Employees who have completed approved
apprentice training as provided in this agreement.
(3) Persons who have passed an examination
recognized by both parties to this agreement, and
qualified thereunder as journeymen.
(4) Applicants for work in the composing room who,
upon reference to the Joint Standing Committee by the
Company, secure a certificate of competency duly
issued under the procedure established by the Joint
Standing Committee.
1-07 The Union agrees at all times to use all means
within its power to furnish a sufficient number of
competent journeymen to perform all work within the
jurisdiction of the Union under conditions set forth in
this agreement.
And with respect to the supplement, significance attaches
to the following provision relating to judging competency
of new employees:
S6-021. New employees shall be judged on their
competency as journeymen on or before the completion
of five (5) shifts of work.
2. The introduction of perforator operators into
the composing room and the situation as to
staffing with perforator operators thereafter
Ever since about 1964, type in the composing room of the
Kalamazoo Gazette has been set on machines using
perforated tape. Perforator operators work at a keyboard
on a machine similar to a typewriter and type coded words
and instructions onto tape. The tape is then sent to a
computer which arranges the coded news items and
advertisements into appropriate newspaper columns, a
process called justification. From there, the tape goes to
another machine which casts the type.
Kalamazoo Gazette started its news perforation opera-
tion with 10 of its composing room employees whom it had
trained to be perforator operators. Thereafter, and up to
and including the time of Mason's hire in August 1970, it
was confronted with a shortage of perforator operators. It
complained about the shortage and sought, in vain, through
appeals to chapel chairmen in its composing room to have
them get more people to train for this kind of work. It also
sought, without success, during the negotiations for the
heretofore mentioned 1968 agreement, to include in section
1-02 that all work within Respondent's jurisdiction shall be
done by journeymen, "provided sufficient help is availa-
ble." The record shows that during these years, and up to
the time that it hired Mason, the Company was able to hire
3 Such a card is apparently issued by the local involved to journeymen,
who leave the area of that local's jurisdiction , for use in finding
employment in their craft elsewhere.
4 Virginia Boakes did not testify herein Although Foreman DeMink
testified that she had 4 or 5 years of expenence as a perforator when he
hired her, employee Everett Boakes, her husband, testified that she had
only I year of such experience at the time As I find Everett Boakes'
three perforators, who came from the outside, and had a
"traveler" card from a sister local of Respondent,3 namely,
Virginia Boakes in 1967, Tom Hartman in 1968, and Max
Hale, off and on since about 1964. As to Hale, it would
utilize him as a perforator and at other jobs, as needed.
Virginia Boakes had 1 year of experience as a perforator
when hired,4 and Hartman had less than I year of
experience in that work; both of them apparently worked
regularly as perforators for the Company.
B. Mason's Employment History With Kalamazoo
Gazette
1. The hiring of Mason
Although there have been instances when the Company
hired persons with traveler cards through its office, the
usual procedure in hiring a person with a traveler card for
work in the composing room, at all relevant times herein,
has been as follows: The applicant comes into the plant and
presents his traveler card to the chapel chairman in the
composing room. He then makes a claim of competency in
certain areas of work in the composing room and tells the
chapel chairman of the situation he held before this
application. The chapel chairman thereupon introduces the
applicant to the foreman of the composing room and
acquaints the foreman with what he knows of the applicant.
The foreman then decides whether to hire the applicant for
the vacancy. If the foreman hires the applicant, the
applicant is given a 5-day on-the-job competency test.
Depending upon the outcome of the test, the applicant is
either found competent by the foreman and is retained, or
is found incompetent and is dismissed.5
Mason did not have a traveler card when she applied for
employment at Kalamazoo Gazette and she did not go
through the foregoing procedure . Instead , she came
through the personnel office and was referred to Robert
DeMink, the composing room foreman . Mason had an
employment interview with DeMink during the week of
August 18, 1969. When DeMink learned that she was a
perforator operator and that she had been employed for a
year and a half in that capacity at the State Record
newspaper in Columbia, South Carolina,6 he advised her
that he would hire her as of August 25 on a 5-day trial basis,
with the understanding that she was to demonstrate during
that period that she can produce at least 2,800 lines per day.
During the interview, DeMink told Mason that Respondent
was the union in the plant and that she had the option of
joining or not joining, as joining Respondent was not a
condition of employment. Mason indicated that she had no
objection to joining Respondent.
testimony to be more reliable in this regard , I credit him
5 If there is disagreement as to the foreman 's conclusion to dismiss, the
matter can be taken up through the grievance and arbitration procedure of
the contract
6 Mason testified that she had worked for State Record from February
9, 1968, until around August 9 , 1969, as a perforator and had told this to
DeMink.
KALAMAZOO TYPOGRAPHICAL UNION 1071
2. The Company advises Respondent that a
perforator has been hired on a trial basis,
response of Respondent thereto during the next
few days
On or about August 21, 1969, DeMink spoke to employee
Henry Champion, an admitted agent of Respondent, who
was acting chapel chairman for the Union on that day, and
told him that he had hired a girl7 on a trial basis as a
perforator operator, that he was going to give her a 5-day
on-the-job competency test and, if she passed, he would let
Respondent know. According to DeMink's testimony,
which I credit,8 Champion then asked, "Does she have a
card?" To this, he responded, "Henry, you know better
than to ask me that," and Champion, in turn, answered,
"Yes,just forget I said it."
On the following day, the scale committee of Respondent
took up with DeMink the matter of the hiring on a trial
basis of a nonjourneyman perforator operator .9 The scale
committee claimed that this action violated section 1-02
and 1-03 of the contract between them. However, the
committee efforts at resolving the matter met with no
success. In consequence, Respondent filed a grievance with
the Joint Standing Committee consisting of two representa-
tives each from Respondent and the Company, charging a
violation of the above sections of the contract, and adding,
in its letter of submission, "Pending settlement of this
grievance, it is expected that the Union and the Gazette will
observe Section 21-01 of the contract." 10
On August 25, 1969, the day Mason began her
employment with the Company, Reames wrote to Bastien
as follows:
Due to management's disregard of Section 21-01
Harmonious Relations (in the Agreement between the
Kalamazoo Gazette and Kalamazoo Typographical
Union No. 122), putting to work a person whose hiring
procedure is already an alleged violation and referred to
the Joint Standing Committee, the Union is now
referring this alleged violation to the Joint Standing
Committee.
The Union is asking for a meeting of the Joint Standing
Committee. Please inform me or Henry Champion of
the earliest possible time you could schedule a meeting.
The Union's two representatives of the Joint Standing
Committee are: Deo Esterline and Henry Champion.
Due to the absence of Mr. Esterline I will sit in place of
him.
I DeMink did not identify her in any other way
8 Champion did not testify in this proceeding Indeed, the only witness
for Respondent was employee Richard W Reames, its president
9 DeMink was acting in the absence of Ralph R Bastian , Jr, the
manager
Present for Respondent were President Reames and the following
members of its scale committee John Gallagher, the secretary of
Respondent, and employees Vanderveen and Don Mead Reames testified
that Champion had related to him the day before the substance of his
conversation with DeMink that day concerning this hiring Reames also
testified that they knew at the time that the unidentified person who had
been so hired did not have an ITU card because of the failure of that
person to go through the chapel chairman to obtain the Job
10 Sec 21-01 provides as follows.
It is agreed that fruitless controversies must be avoided and every
effort made to maintain harmonious relations To accomplish this
3. Mason qualifies under the 5-day on-the-job
competency test
On Thursday, August 28, 1969, the fourth day of her
employment, Mason typed 2,800 lines on her perforator
machine and was told by DeMink that she had met the
qualifications for a competent operator and would be
retained. During this week, she worked on the day shift, but
thereafter she worked a split schedule; i.e., 3 days and 2
nights. DeMink was the foreman and Henry Knolle was the
assistant foreman on the day shift, and Bob Bowman was in
charge on the night shift when Mason worked.
4. The posting of the job or situation for which
Mason was hired
Apparently about the time Mason satisfied him as to
competency, DeMink arranged with the chapel chairman to
have Mason's situation posted so that employees on the job
may assert their claims to the situation on the basis of
seniority." The situation, as well as the days and hours of
work were listed by DeMink on a slip of paper and it was
posted on the plant bulletin board for a 5-day period,
during which time interested employees asserted their claim
by signing the postmg.12 Upon DeMink's suggestion,
Mason signed the posting slip. At the end of the posting
period, the chapel chairman, in accordance with established
routine, returned the posting slip to management with
notations thereon as to the claims allowed and their order
of seniority, so that a determination could be made as to
"who gets what on it." When DeMink observed that, with
respect to Mason's name, there was no notation showing
that her claim had been allowed, he asked the chapel
chairman about it. According to DeMink's uncontradicted
testimony, the chapel chairman then answered that he did
not represent Mason.
5. Mason's abortive attempt to join the Union
On Friday, August 29, the day after she learned from
DeMink that she had met the qualifications of a competent
operator, Mason advised Keith that she wanted to fill out
an application for union membership. Keith told her that
he did not have an application but would get one for her.
About 2 weeks later, Keith furnished her with an
application and told her that, if she had any questions, she
should see Gallagher, the secretary of the Union. She did
have a question and went to Gallagher for help. With his
help, she completed her application and submitted it. In the
both parties will in every instance give prompt attention to disputes
and will in good faith endeavor to settle differences by conciliation or
arbitration In the event of a difference arising, all work shall continue
without interruption pending proceedings looking to conciliation or
arbitration and the wages , hours or working conditions prevailing at
the time the difference arises shall be preserved unchanged until a
final decision of the matter at issue shall be reached
At the time in question, employee William Keith held the position of
chapel chairman Thereafter , beginning in October 1969, employee Roger
Medema was chapel chairman As chapel chairmen , it was their function to
administer the bargaining agreement in Respondent 's behalf At times
material, employees James Meisterheim and Henry Champion were
assistant chapel chairmen
12 Sec S6-07 of the supplement agreement states, in relevant part,
When a situation is open preference shall be in order of priority
standing in the office , providing the man is competent for the job
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course of helping Mason, Gallagher inquired from her as to
whether she had worked in a union or a nonunion shop
before. She replied that there had been a union at her prior
place of employment at one time, but it was not there when
she left. Gallagher thereafter informed Reames that he had
received an application for membership from Mason, that
Mason had worked in Columbia, South Carolina, and that
"he had the feeling that there may have been a strike and
that he would check with the International to see what they
had on her." Gallagher dispatched such a letter to the
International under date of September 4, and received a
reply thereto from John J. Pilch, the president of the
International, under date of September 15. Attached to the
letter was a report on Mason's employment history at State
Record, showing that Mason was employed by State
Record in its composing room on February 2, 1968, during
the course of a strike called by the union at that plant on
December 15, 1967, and that, as of August 16, 1968, she was
still a strikebreaker. Mason was never advised as to what
action was taken on her application.
6. The aftermath of Respondent's discovery that
Mason had worked during a union-authorized
strike at State Record
a. Respondent tells management of its discovery
Knolle testified as to the content of separate conversa-
tions, four in all, which he had with Gallagher, Medema,
and McKissic concerning Mason's antiunion activity at
State Record. He had two of these conversations with
Gallagher and one conversation each with Medema and
McKissic. The first one with Gallagher occurred under the
following circumstances: He approached the compo desk at
which Gallagher works. At the time, Gallagher was looking
at Mason's application for union membership, in the
presence of Keith, the then chapel chairman, and two or
three unnamed composing room employees. Gallagher
commented to him that Mason had worked before in South
Carolina and he was reasonably sure that this was a struck
shop and, if it was, she had "ratted" 13 by working there.
The second conversation occurred about a month or so
later. At that time, Gallagher told him that he had checked
with the International and had been told in an answering
letter that "she had worked in a struck shop and in effect
she had ratted." Thereafter he was told by Medema that "it
comes to a sorry pass when we have to hire rats to get work
out of the composing room." And still later, he was asked
by McKissic, who works in the pasteup area, "how [he,
Knolle ], as a union member, could go along with Bob
DeMink in hiring a rat?"
It is apparent from the foregoing, and I find, that
Respondent, upon learning of Mason's past antiunion
record, manifested to Assistant Foreman Knolle in strong
terms that, because of this information, it was further
disturbed over the fact of her hiring.
13 Art V, sec 16, and art VIII, sec 8, of the bylaws of the International
for the year 1971, make reference to ratting, but, in each instance, the
frame of reference is misconduct by a member of the union
14 According to Boakes, when a machinist repairs a perforator, it is
necessary for him to talk to the perforator operator. There is no indication
b. Respondent and its member employees act to
osctracize Mason
Mason testified that, from the start of her employment
with the Company, she "didn't receive much cooperation"
from other employees in the composing room. According to
her, during the first week, "numerous" people, whom she
did not identify in the record, whistled and made noises,
either singing or humming, which was annoying to her as
she tried to do her work as a perforator; in addition, during
that week, she recalled ( 1) asking an employee near her,
whom she identified only as "Dick," how to set certain copy
in accordance with the codes in use by the Company, and
he replied that he would rather she did not ask him any
more questions on how to set copy or on anything; (2)
asking an unidentified employee to raise a window for her
as it was too large for her to manage , and after being
refused by him, getting DeMink to help with the window.
In respect to the above, DeMink testified that employees
have occasion to talk to one another while on thejob with
respect to their work, and that the employees will help a
new employee with the style problems since each newspa-
per uses a different style, but that he never observed any
employees assisting Mason with such problems.
The record shows further that what started out as a lack
of cooperation became ostracism once Respondent learned
from the International about Mason's working at State
Record during an authorized strike by a sister local. Thus,
there is testimony by Everett Boakes , a machinist in the
composing room and a member of Respondent, that, about
1 1/2 months after Mason began her employment and
shortly after he had learned from Gallagher about the letter
from the International as to Mason 's past antiunion
activity, he was accused by Assistant Chapel Chairman
Meisterheim of talking to Mason when he was assertedly
not supposed to do so. On the next working day, he stopped
Chapel Chairman Keith of Respondent, as Keith was
coming through the locker room, and asked whether "[he]
was to ostracize [Mason] like [he] had been told to do by
the assistant chairman." Keith's answer was "that this was
true that it was his position" that if he, Boakes, did not
ostracize Mason, he would also be ostracized. He
thereupon indicated that he would not participate in this
ostracism of Mason, irrespective of the course of action
Respondent took against him.14 Also, according to Boakes,
the whistling reached such a point 15 that he threatened
DeMink that he would leave unless "this whistling and
harassment" was stopped by him; in consequence , DeMink
posted a notice to the composing room employees on the
bulletin board "to the effect that if people did not stop this
harassment that they would be dealt with." With particular
reference to types of ostracism of Mason, Boakes
mentioned "undue tapping," and talk back and forth
among members in Mason' s presence in which she was
called "a rat and a scab." Also illustrative of the kind of
treatment accorded Mason by her fellow employees was an
episode involving Assistant Foreman Knolle and compos-
in the record, however, that Mason's perforator needed repairs thereafter,
and, if so, that the repairs were not made
IS It is apparent that whistling was a continuing problem at this facility
However, I credit Boakes' testimony that there was "very much" of it at
this juncture
KALAMAZOO TYPOGRAPHICAL UNION 1073
ing room employee Richard Bachelder. According to
Knolle, within 6 weeks after Mason began working there,
Bachelder came to him and asked him to go to Mason and
"request that she not ask him any more questions because
the guys were getting on him when he answered her
questions, and he [Bachelder] didn't want to be on the book
with the rest of the fellows in the shop." In view of all the
foregoing, I am persuaded, and find, that the Union,
through its officials and its member employees in the
composing room, took steps to, and did, ostracize Mason,
while at work, in retaliation for her past nonunion
membership and antiunion activity while in the employ of
State Record.
c. Respondent objects to granting any overtime work
to Mason
Mason worked 2 hours of overtime on or about
November 22, 1969, having been requested to do so by
Knolle, under the following circumstances: Just prior
thereto, DeMink had, in accordance with the usual
practice, asked Respondent for 6 hours of overtime in the
composing room. He spoke concerning this to Champion
who was acting as chapel chairman on that day. A little
later, Champion informed DeMink that he was able to
furnish 4 hours of overtime. Whereupon, DeMink asked
Champion if he had approached Mason about overtime
work, and Champion replied that he did not represent
Mason. At this, DeMink directed Knolle to ask Mason
whether she would work overtime. As a result, Mason
worked the 2 hours of overtime that day.
The record shows that Knolle told Mason, sometime
after she had worked this overtime, that the scale
committee had objected thereto, claiming that it was a
violation of the collective-bargaining agreement to assign
overtime work to her. The parties stipulated, in this
connection, that "since on or about November 23, 1969,
continuing to April 13, 1970, the Union communicated to
management its objections to the granting of any overtime
to Betsy Mason, and no overtime was assigned to her. The
chapel chairman did not distribute overtime to Betsy
Mason." There is testimony by Mason that, around
January 22, 1970, she asked Roger Medema, who was then
chapel chairman, why she had not received overtime; that
he replied that this was due to the fact that she was not a
union member, but added that if she wanted more
information about it she should speak to Reames, the
president of the Union; and that she thereupon spoke to
Reames and he told her that there was a legal problem
going on, that she was not supposed to be there in the first
place and that was why, if she received overtime, it would
be a violation of the contract. In the latter connection, I
find that the reason given by Reames to Mason is more
reliable than that given by Medema, because Medema, in
effect, detracted from what he told Mason by referring her
to Reames who, he said, had more information concerning
the matter. Accordingly, I find that Respondent's position
asserted in its grievance, namely, that Mason was an
illegally hired employee, emerges as the dominant and clear
reason for its opposition to overtime for her.
7. Respondent's refusal to represent Mason
I have heretofore found that Mason was hired into the
composing room as a perforator and was retained by the
Company as a permanent employee after successfully
completing a 5-day on-the-job competency test. She
thereby became a member of the bargaining unit of
composing room employees represented by Respondent as
the exclusive representative . Notwithstanding the forego-
ing, Respondent openly declared that it did not represent
her as part of the bargaining unit . Thus, I have found that
Chapel Chairman Keith refused to consider the claim by
Mason to the job of perforator , for which she was hired by
DeMink, while considering the claims by other employees
in the composing room to the job on the basis of seniority,
and, when asked for the reason by DeMink , he answered
that he did not represent Mason . And I have found further
that Acting Chapel Chairman Champion admitted to
DeMink that he did not approach Mason about overtime
work on or about November 22, 1969, but did approach
other employees in the composing room in an effort to fill
DeMink's request for 6 hours of overtime ; and when asked
by DeMink for the reason , he also answered that he did not
represent Mason. I note , however , that this refusal to
represent Mason was , as in the case of its opposition to
overtime for Mason, consistent with Respondent 's position
that she was illegally hired , from which it would follow that
she was improperly in the unit . Accordingly, I am
persuaded , and I find , that, in refusing to represent Mason,
Respondent was motivated by the position asserted in its
grievance , namely, that she was an illegally hired employee.
8. The arbitration of Respondent 's grievances with
respect to Mason 's hire ; the arbitrator's decision;
and the ensuing discharge of Mason
As already found , Respondent filed a grievance on or
about August 22 in which it protested the hiring of Mason
as illegal and in violation of section 1-02 and 1-03 of its
contract with the Company. As the grievance was not
resolved by the Joint Standing Committee, it was, in
accordance with section 18-012 of the bargaining agree-
ment referred to "final and binding" arbitration. A hearing
was thereafter held in Kalamazoo , Michigan, before
Arbitrator Leon Herman . Under date of March 30, 1970,
the arbitrator issued his decision in which he noted that his
authority in the matter derived solely from the collective-
bargaining agreement , and in which he concluded, on the
basis of his interpretation of the contract, that the
Company had not violated section 21 -01, the "Harmonious
Relations" clause , in putting Mason to work once she was
hired , despite Respondent 's request that it not do so, but
that it had violated section 1-02 and 1-03 in initially
employing Mason "at a time when she was not a qualified
journeyman as that classification is defined in the
contract." He thereupon directed the Company to dis-
charge Mason, as requested by Respondent . Thereafter, on
April 13, 1970, the Company discharged Mason from her
job as perforator . Subsequently, she was put to work by the
Company in a different position at the same facility.
Noteworthy in regard to the arbitrator 's decision is the
following concluding language:
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am aware that this decision leaves unanswered
some very serious questions: Whether the Union should
have given Mrs. Mason a test to determine her
qualifications as a journeyman; whether the Union
properly rejected Mrs. Mason's application for union
membership; whether she was properly bypassed in
allocation of overtime work; in sum, whether her right
to earn a livelihood at this newspaper was violated by
the Union's acts and refusal to act. This must be left for
determination in another forum. My authority as
arbitrator derives from the contract, and my award
must of necessity be limited within the circumscription
of the authority granted me. I am empowered by the
agreement to decide whether the employer may hire one
not a journeyman into the composing room, and if
hired, the effect of a protest under the status quo clause.
I may determine the extent of the damages accruing to
any employees because of violation of the agreement.
At that point my jurisdiction terminates. I make no
decision and intend no opinion, one way or the other,
unrelated to the award specifically made herein.
9. The postarbitration meeting of the Booth
Alliance on April 16, 1970, and the discussion of
Mason's case thereat
Following the decision of the arbitrator, a meeting of the
Booth Alliance was convened at the instance of Gerald W.
Miller, vice president of Booth Newspapers, Inc. The
purpose of the meeting was to consider what was to be done
in light of the decision of the arbitrator that there existed no
test "recognized by both parties," to qualify persons as
journeymen who were not union members. Present for
Booth Newspapers, Inc., were Miller and Robert D. Swartz,
the manager of the Grand Rapids Press, one of the
newspapers of Booth Newspapers, Inc. Among those
present on the union side were President Reames and
employee Vanderveen for Respondent, and also Thomas
McCarthy, the chairman of the Booth Alliance, and Hugh
Wygman, a member of the scale committee of the Booth
Alliance. Miller testified (1) that, when he said that
Respondent and the Company must come up with a test to
implement section 1 -03 of the existing contract, McCarthy
answered, "there is no need for a new test, the ITU card is
all that a man needs," and that Wygman indicated the same
during the meeting; (2) that neither the Union nor the
Alliance ever submitted a proposed test to qualify non-
union members despite his requests therefor from the
Alliance at this meeting and subsequently; and (3) that
when he indicated that the Company could not recognize
the ITU card alone because this would give Respondent
exclusive control of all the employees and permit them to
10 The parties stipulated that Swartz , if called as a witness , would have
corroborated Miller in these foregoing respects However , I am not
persuaded that the foregoing remarks attributed to McCarthy and
Wygman should, in view of the context in which they were made and in
light of the entire record , be given retroactive effect on the issue of what
prompted Respondent to initiate the grievances relating to Mason's hire
about 8 months prior thereto
17 Respondent contends that , as Mason was a newcoming nonunion
member, without the prima facie evidence of journeymanship, which the
union card constituted , only the last two mentioned avenues were open to
her under the contract
discriminate against employees like Mason, Wygman
replied, "You know why we didn't hire her. She is a rat";
and nobody present on the union side either affirmed or
denied it.16
10. Analysis and conclusions
Respondent takes the position, in substance, in its brief,
that the Company "violated a lawful collective-bargaining
agreement on hiring Mason, a non journeyman perforator,
for work in the composing room"; and that because its
attempts to assert its rights were lawful, impersonal,
without discriminatory intent , and were, moreover, com-
menced before it had knowledge of Mason's previous
antiunion activity, they did not constitute an unfair labor
practice.
In support of the claimed violation by the Company of
the existing collective-bargaining agreement , Respondent
points (1) to section 1-02 thereof requiring that all work
within the jurisdiction of Respondent shall be performed
only by journeymen and apprentices; (2) to section 1-03
which provides that composing room workers may acquire
journeyman status by having been in the composing room
before the contract date, by completing an approved
apprenticeship, by passing an examination recognized by
both parties, or by being referred to the Joint Standing
Committee by the Company for a certificate of
competency; 17 and (3) to the Supplement to the above
contract which states as to competency that "New
employees shall be judged on their competency as
journeymen on or before the completion of five (5) shifts of
work." It argues therefrom that the contract thus clearly
requires journeymanship as a condition precedent to
eligibility for the 5-day competency trial and that the courts
have consistently permitted legitimate requirements of
competency, and application of nondiscriminatory stand-
ards of competency to stand.18 I agree with Respondent's
position as to the legality of a collective-bargaining
agreement, as here, requiring employment of apprentices
and journeymen, and with its further position that a union
card may serve, under such a contract, as prima facie
evidence of journeymanship. And I am satisfied, as
stipulated by the parties, that, notwithstanding the terms of
the agreement, Mason was hired, although she was not,
prior to the effective date thereof, working in the
composing room of the Company, nor had she, at any time,
completed an approved apprenticeship, nor passed an
examination recognized by both parties to the agreement,19
nor had she ever been referred to the Joint Standing
Committee by the Company to secure a certificate of
competency.20 However, as Respondent itself appears to
recognize, even granting that the Company did not abide
18 See N L R B v News Syndicate Co Inc, 279 F 2d 323 (C A 2), affd
365 U S 695, cited by Respondent in support of this position, in which it
was found that a contract ( I) which limited mail room employment to
"journeymen and apprentices" who were defined without reference to
union membership , and (2 ) which set forth analagous provisions for
determining competency contained "nothing which on its face could be
said to be violative of the Act "
19 While it is true that no such examination had ever been agreed upon,
it is also true that the Company took no steps to initiate such an
opportunity for Mason.
20 While no procedure had ever been established by the Joint Standing
KALAMAZOO TYPOGRAPHICAL UNION 1075
by the contract in hiring Mason, the issue remains as to
whether, after Mason was hired, it engaged in conduct
proscribed by the Act in attempting to assert its rights
under the contract. In this connection, I shall now consider
the specific allegations of the complaint, each of which
alleges that Respondent's conduct described therein was
motivated by the fact that Mason was not a member of
Respondent and the further fact that she had previously
crossed a picket line at another newspaper then being
struck by another local of the International Typographical
Union.
(a) Paragraph I I of the complaint, as amended, alleges as
unlawful conduct that on or about August 21, 1969, and
continuing to April 13, 1970, through the medium of
grievances filed on August 21 and 25, 1969, Respondent has
attempted to cause the Company not to hire Mason and,
after hiring her, to discharge her, an employee in the unit
represented by Respondent.
As already found, on or about August 22, after learning
that the Company had hired an unnamed non-journeyman
employee (who later proved to be Mason) and was planning
to give her the 5-day on-the-job competency test given to
new hires who have journeymanship status, it objected
thereto and took the matter up with the Company through
the grievance procedure of their bargaining agreement.21 It
tried to settle the matter informally with Foreman DeMink,
and, failing that, it filed a formal grievance with the Joint
Standing Committee, alleging a violation of the contract in
the hiring of Mason. In addition, on August 25, the day
Mason began to work, Respondent advised the Company
that the latter was disregarding section 21-01, the
"Harmonious Relations" clause of the contract, "in putting
to work a person whose hiring procedure is already alleged
as a violation," and that it was referring this alleged
violation to the same committee. Neither grievance was,
however, settled by the Joint Standing Committee and
these matters proceeded to final and binding arbitration.
Thereafter, Arbitrator Leon Herman rendered his decision
on March 30, 1970, finding merit only in the grievance as to
the initial hiring of Mason,22 and granting Respondent's
request that she be discharged. In accordance therewith, the
Company discharged Mason on April 13, 1970.23
I note in this connection that there is no evidentiary basis
for finding that, at the time these grievances were filed,
Respondent knew anything about Mason's antiunion
background. Indeed, so far as appears, Respondent knew
only that the new hire was one who had not, as yet, met the
definition of a journeyman as set forth in the hiring
arrangement in the contract, since the new hire neither had
a traveler card from the ITU nor had qualified as a
journeyman under the procedures provided therefor in the
contract; and further that the Company was nevertheless
according the new hire the status of ajourneyman as it was
going to give her the 5-day on-the-job competency test for
which journeymanship was a prerequisite. So viewed,
Respondent was acting lawfully in insisting that the
Company adhere to the hiring arrangement in the contract
and not hire Mason or, after hire, discharge her.24 It is true,
as found herein, that, during the interim between the filing
of these two grievances and Mason's discharge, Respon-
dent (1) refused to admit Mason into membership, although
she applied therefor; (2) upon discovering in about 6 weeks
after Mason's hire that she had worked as a strikebreaker at
the plant of another employer, branded her to the
Company as a "rat," and as one who was "ratting"; (3)
through its officials and its member employees in the
composing room, took steps to, and did, ostracize her, while
at work; (4) did, as stipulated by the parties hereto, since on
or about November 23, 1969, continuing through April 13,
1970, communicate to management its objections to the
granting of any overtime to Mason, and no overtime was
assigned to her; and (5) denied her representation as a
member of the bargaining unit, of which it was the
exclusive representative. However, as the denial of
membership, and the conduct set forth in (2) through (5)
above, which is separately alleged as violative of the Act,
postdated the two above-mentioned grievances filed by
Respondent on August 22 and 25, 1969; and as there is no
warrant, in my view, for giving any of such conduct
retroactive effect, I conclude, and find, that the record fails
to preponderate in favor of a finding that Respondent,
through the medium of grievances filed, attempted, in
contravention of the Act, to cause the Company not to hire
Mason, or after her hire, to discharge her. Indeed, insofar as
the grievances themselves were concerned, all that was
involved was a dispute between the contracting parties as to
the proper interpretation of lawful provisions of a
collective-bargaining agreement requiring the employment
of apprentices and Journeymen in the composing room.25
Accordingly, I find further that the allegations of paragraph
11 of the complaint, as amended, have not been sustained
by the record.
(b) Paragraph 15 of the complaint, as amended, alleges as
unlawful conduct the fact that on April 13, 1970,
Respondent successfully caused the Company to discharge
Mason. As heretofore found, Arbitrator Leon Herman
rendered his decision in the arbitration proceeding on
March 30, 1970. He there concluded that "under the
contract between the publisher and the Union Mrs Mason
was employed at a time when she was not qualified as a
journeyman, as that classification is defined in the contract.
The Union's demand that she be discharged must therefore
be granted." I have also found above that the arbitration
decision was, under the terms of the contract, "final and
Committee for testing competency and no job applicant had ever been
referred to it, it is also true here that the Company took no steps to
implement this avenue of approach in behalf of Mason
21 Respondent asserts, in its brief, that "the administration of the
journeyman's test lie , the 5-day on-the-job competency test] at that point
would have been an effective relinquishment of its contractual right to
insist upon a minimum uniform standard of competency as a condition of
employment "
22 Like the arbitrator, and for the reasons given by him in his decision,
which is in evidence as G C Exh 5, 1 find the other grievance to be lacking
in merit
23 As found herein , Mason was thereafter placed by the Company in
another job outside the composing room
24 Accord United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, Local 389 (Morris Plumbing Company, Inc, et al ) 176 NLRB
No 50, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, Local Union 469
(S M McCulloch d/b/a McCulloch Plumbing Company), 159 NLRB 1119
25 See Brewery and Soft Drink Workers Local Union No 163 (Stegmaier
Brewing Company), 134 NLRB 99
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
binding on all parties." In these circumstances, I conclude,
and find, that the discharge of Mason, which eventuated on
April 13, 1970, was clearly in consequence of the arbitration
award, which is entitled to full weight herem,26 and was not
the consequence of any conduct by Respondent in
contravention of the Act. I therefore find further that the
allegations of paragraph 15 of the complaint, as amended,
that Respondent violated the Act thereby have not been
sustained by the record.27
(c) Paragraph 12 of the complaint, as amended, alleges as
unlawful conduct that, since November 23, 1969, and
continuing to April 13, 1970, Respondent, through its
chapel chairman, assistant chapel chairman, and acting
chapel chairman, who maintain control over the distribu-
tion of overtime for the employees in the unit represented
by Respondent, has withheld overtime work from Mason.
The facts are not disputed, as it has heretofore been
stipulated that during the above-described penod, Respon-
dent communicated to management its objections to the
granting of overtime to her and no overtime was assigned to
her. However, as I have already found that, in opposing
overtime for her, Respondent was motivated by the fact
that she was hired in violation of the collective-bargaining
agreement in effect at the time, it follows that such pressure
exerted by Respondent did not, as found above with respect
to the similarly motivated pressure to discharge her,
contravene the Act. Accordingly, I find that the record also
fails to sustain this allegation of the complaint, as amended.
(d) Paragraph 13 of the complaint, as amended, alleges as
unlawful conduct that Respondent has, since on or about
August 22, 1969, and continuing to April 13, 1970, through
its chapel chairman, assistant chapel chairman, and acting
chapel chairman, caused Mason's fellow employees and
members of Respondent to ostracize Mason and to refuse
to perform services and maintain the equipment at Mason's
work. In view of my findings heretofore that Respondent,
through its officials and its member employees in the
composing room, took steps to, and did, ostracize Mason,
while at work, in retaliation for her past nonunion
membership and antiunion activity while in the employ of
State Record, it follows that the allegations of paragraph 13
of the complaint, as amended, have to that extent been
sustained by the record. Accordingly, I conclude, and find,
that Respondent thereby restrained and coerced Mason in
her rights guaranteed in Section 7 of the Act, in violation of
Section 8(b)(1)(A) of the Act.28
(e) Paragraph 14 of the complaint, as amended, alleges as
unlawful conduct that Respondent has, during the same
penod, refused to represent Mason, despite her presence as
26 See Spielberg Manufacturing Co Inc, 112 NLRB 1080 Although
Mason was not a party to the arbitration proceeding, it is apparent, and I
find, that her interests were fully represented by the Company, a party
thereto
21 It is clear, and I find, that, if the conduct alleged in par 11 and 15 of
the amended complaint contravened the Act, contrary to my findings
above the decision of the arbitrator would not preclude a finding of
violation herein Especially is this so where, as here, the arbitrator
addressed himself solely to the contractual issue See John K/ann Moving
and Trucking Company v N L R B 411 F 2d 261, 263 (C A 6), enfg 170
NLRB No 133, and N L R B v Hunter Outdoor Products, Inc, 76 LRRM
2969 (C A I), enfg 176 NLRB No 58
28 See Newport News Printing Pressmen's and Assistants' Union, Local
No 288 (The Daily Press, Inc), 188 NLRB No 73
a company employee and her being a member of the
bargaining unit in which Respondent was the exclusive
agent. I have heretofore found that, after Mason was hired
into the composing room as a perforator operator, Chapel
Chairman Keith refused to consider her claim to the job of
perforator in connection with the posting of thatjob, while
considering the claims by others in the bargaining unit to
that job, and gave as the reason therefor to Foreman
DeMink that he did not represent Mason And I have also
found heremabove that Acting Chapel Chairman Champi-
on admitted that he did not approach Mason about
overtime work on or about November 22, 1969, but did
approach others in the composing room in an effort to fill
Foreman DeMink's request for 6 hours of overtime,
because he did not represent Mason.
The law is clear that a statutory exclusive bargaining
representative is charged by the Act with the duty to make
an honest effort to serve the interests of all the employees in
the appropriate unit, without hostility to any. And a breach
of this statutory duty of fair representation occurs only
when a union's conduct toward a member of the bargaining
unit is arbitrary, discriminatory or in bad faith.29 However,
where, as here, the refusal to represent is based on the
ground that the employee involved has been hired into the
unit illegally, and where, as already found herein, the hiring
was illegal, there is no warrant for finding that such refusal
to represent is arbitrary, discriminatory or in bad faith.
Accordingly, I find that, here too, the record fails to sustain
the allegations of the complaint, as amended.
Upon the basis of the entire record, I make the following.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By acting through its officials and member employ-
ees to ostracize employee Betsy Mary Mason while at work,
in retaliation for her past nonunion membership and
antiunion activity while in the employ of another employer,
Respondent has restrained and coerced employees in the
exercise of their rights guaranteed in Section 7 of the Act, in
violation of Section 8(b)(1)(A) of the Act.
4. Respondent has not violated Section 8(b)(2) or
Section 8(b)(1)(A) of the Act in any respect alleged and not
specifically found herein.
I am cognizant of the fact that, while I find this cited case controlling
here, I do not find it controlling with respect to Respondent's conduct in
opposing overtime for Mason, as the Company also contends However,
the conduct of isolating Mason is found to be a violation for reasons
unrelated to the question of whether there was a breach of the hiring
arrangement provision of the existing collective-bargaining agreement in
the initial hiring of Mason The latter question, i e , the lawfulness of the
initial hiring of an employee, was not at issue in the cited case, whereas
that question is the governing consideration herein in assessing the
allegation as to Respondent's conduct with respect to overtime
29 See Sec 8(b)(1)(A) and 8(b)(2) of the Act; Vaca v Sipes, 386 U S 171,
Humphrey v Moore, 375 U S 335, 349-350, Ford Motor Co v Huffman,
345 U S 330, 337-339
KALAMAZOO TYPOGRAPHICAL UNION 1077
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]