Los Angeles Newspaper Guild Local 69

National Labor Relations Board - Board Decisions

Nov 13, 1970

186 N.L.R.B. 548 (N.L.R.B. 1970)

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles Newspaper Guild Local 69, AFL-CIO,
CLC (Los Angeles Herald-Examiner, Division of
the Hearst Corporation) and William W. Kennedy.
Case 21-CB-3341
November 13, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Upon a charge duly filed on, March 17, 1969, by
William W. Kennedy, an individual, the General
Counsel of the National Labor Relations Board, by
the Regional Director of Region 21, issued a com-
plaint and notice of hearing on May 23, 1969, against
Los Angeles Newspaper Guild Local 69, AFL-CIO,
CLC. The complaint alleged that the Respondent
Union had engaged in and was engaging in unfair
labor practices within the meaning of Section
8(b)(1)(A) of the National Labor Relations Act, as
amended, by imposing a fine of $7,139.60 plus costs of
$37.41 on Kennedy because he had continued to
perform work and crossed the Respondent's picket
line at the Los Angeles Herald-Examiner. On June 3,
1969, the Respondent filed an answer denying the
commission of any unfair labor practices.
On July 18 and 29, 1969, the parties executed a
stipulation of facts and a motion to transfer proceed-
ings to the Board by which they waived a hearing
before a Trial Examiner and the issuance of a Trial
Examiner's Decision and Recommended Order and
agreed to submit the case to the Board for findings of
fact, conclusions of law, and an order, based upon a
record consisting of the stipulation of facts and the
exhibits attached thereto.
On August 4, 1969, the Board approved the
stipulation of the parties and ordered the case
transferred to the Board, granting permission for the
filing of briefs. Thereafter, the General Counsel and
the Respondent filed briefs.
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 case to a three-member
panel.
Upon the basis of the stipulation, the briefs, and the
entire record in this case, the Board makes the
following:
FINDINGS OF FACT
1. JURISDICTION
The Hearst Corporation, whose principal office is in
New York, New York, is a Delaware corporation
which maintains seven newspaper divisions, one of
which is the Los Angeles Herald-Examiner located in
Los Angeles, California. At all times material herein,
the Los Angeles Herald-Examiner, hereinafter re-
ferred to as the Herald-Examiner, has published a
daily and Sunday newspaper. In the course and
conduct of the publication of the newspaper, the Los
Angeles Herald-Examiner subscribes to several inter-
state news services, has an annual gross volume of
business in excess of $1 million, and annually
purchases goods and materials valued in excess of
$100,000 which are shipped to it directly from points
and places located outside the State of California.
We find that the Herald-Examiner is, and at all
times material herein has been, an employer engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Los Angeles Newspaper Guild Local 69, AFL-CIO,
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
At all times material herein, the Respondent has
been the collective-bargaining representative of cer-
tain employees of the Herald-Examiner. From 1940 to
1951, Kennedy was a member of the Respondent and
subject to the wages, hours, and other terms and
conditions of employment of collective-bargaining
agreements between the Respondent and the Los
Angeles Herald-Express, Division of The Hearst
Publishing Company, Inc., hereinafter referred to as
the Herald-Express.
In 1951, Kennedy was employed as a columnist at
the Herald-Express and entered into a personal
service contract with The Hearst Publishing Compa-
ny, Inc. In 1962, the Herald-Express became the
Herald-Examiner and, since 1962, Kennedy has
worked as a columnist at the Herald-Examiner under
succeeding personal service contracts.
As a result of these personal service contracts,
Kennedy was no longer required as a condition of
employment to maintain membership in the Respon-
dent. Article XII of Respondent's most recent
collective-bargaining agreement with the Herald-Ex-
aminer specifically excludes "Editorial employees
under personal service contract (maximum of ten in
positions not exempt from contract)" from the
coverage of the agreement. Kennedy was so excluded.
Although he was under no contractual obligation to
maintain union membership, Kennedy voluntarily
elected to remain a member of, and he continued
paying dues to, the Respondent. Prior to October
186 NLRB No. 78
LOS ANGELES NEWSPAPER GUILD LOCAL 69
1966, the Herald-Examiner checked off union dues
for Kennedy and remitted them to the Respondent;
subsequent to that month Kennedy remitted his own
dues, continuing this practice through the month of
December 1967. Kennedy paid no,,dues for any period
after December 1967.
On December 15, 1967, the Respondent struck the
Herald-Examiner and commenced picketing its
plants and premises. At that time, union dues for all
members of the Respondent employed by the Herald-
Examiner, including Kennedy, were reduced to 10
cents a month; commencing in January, the Respon-
dent paid the aforementioned dues for all members
employed by the Herald-Examiner, including Kenne-
dy. Kennedy did not know that his dues had been
reduced and were being paid by the Respondent.
From December 15, 1967, until April 1, 1968,
Kennedy did not report to the Herald-Examiner but
he wrote his column at his home and sent it to the
Herald-Examiner by messenger. On or about April 1,
1968, Kennedy was informed by the Herald-Examin-
er's managing editor that thenceforth he would have
to write his column at the Herald-Examiner's premis-
es.
By letter dated and mailed April 1, 1968, Kennedy
informed the Respondent that "I herewith submit my
resignation from the American Newspaper Guild
effective on the above date." After he had mailed the
aforementioned letter, Kennedy commenced crossing
the Respondent's picket line and writing his column
at the Herald-Examiner's business premises.
The Respondent received Kennedy's letter of April
1 on or about April 3, 1968. On or about April 23, the
Respondent's executive board refused to honor
Kennedy's resignation because the Respondent knew
that Kennedy had been working for the Herald-
Examiner since the inception of the strike. On or
about July 11, the Respondent notified Kennedy that
charges had been brought against him for violating
article XII of the American Newspaper Guild
Constitution by working for or in a shop which is on
strike, and that a trial board was scheduled to hear
this charge on September 25, 1968. Kennedy replied
by telegram that, since he was working under a
personal service contract and had resigned from
membership in the Respondent, he did not intend to
appear.
On September 25, 1968, the Respondent's trial
board found that Kennedy was guilty of working for
or in a shop which was on strike, called or endorsed as
provided by the Respondent's constitution. The trial
board fined Kennedy $7,139.60 plus costs of $37.41,
the fine being for the period December 15, 1967, to
December 15, 1968. The fine was computed by taking
t See Booster Lodge No. 405, International Association of Machinists and
Aerospace Workers, AFL-CIO ( The Boeing Co.), supra, In. It, and cases
549
Kennedy's last known wage rate under the Respon-
dent's collective-bargaining agreement with the Her-
ald-Examiner ($182.30 per week), less the amount he
would have received in strike benefits had he
participated in the strike ($45 per week), multiplied by
the number of weeks Kennedy was working in or for
the struck shop, commencing with the first week of the
strike and concluding with a cutoff date of December
15, )968, the first anniversary of the strike. During this
period, Kennedy's actual salary under his personal
service contract was $400 per week.
The decision of the trial board was sustained by the
Respondent's general membership. Kennedy ap-
peared at this meeting and was afforded the opportu-
nity to be heard by the membership on the question of
whether the trial board's decision should be sustained.
As of the time that the stipulation of facts was
entered into, the Respondent had not attempted to
collect or enforce the fine levied against Kennedy.
B. Contentions of the Parties
The General Counsel contends that the Respon-
dent's action violated Section 8(b)(1)(A) of the Act in
two respects: First, the fine was imposed, in part, for
Kennedy's conduct after he had resigned his member-
ship; and, second, the fine levied is unlawful because
it was "unreasonable" in amount. The Respondent
denies the validity of these contentions and claims,
inter alia, that Kennedy did not effectively resign in
April 1968, but, in fact, that he is still a member.
C. Conclusion
In two recent decisions, we examined the applica-
tion of Section 8(b)(1)(A) to fines imposed by unions
upon their members. In Booster Lodge No. 405,
International Association of Machinists and Aerospace
Workers, AFL-CIO (The Boeing Co.), 185 NLRB No.
23, we held that a union violates Section 8(b)(1)(A) by
fining a former member for activities engaged in after
his resignation. In International Association of Machin-
ists and Aerospace Workers, AFL-CIO Local Lodge
No. 504 (Arrow Development Co.), 185 NLRB No. 22,
we stated that we would not decide whether a fine,
otherwise lawfully imposed, nevertheless violated the
Act because it was "unreasonable" in amount. The
principles elucidated in these two decisions clearly
govern the instant case. All that remains to be decided
is whether Kennedy effectively resigned his member-
ship in the Respondent.
Although the Board has held that in the absence of
express provision regarding the right to withdraw
membership, a member may withdraw "at will,"' it is
unnecessary for us to decide in this case whether labor
cited therein.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations may so restrict resignation by express
internal restrictions for we are satisfied in this case
that, in April 1968, Kennedy effectively resigned his
membership in conformity with the applicable inter-
nal union procedures.
The constitution of the American Newspaper Guild
provides for more than one method of resigning from
membership. At issue is whether Kennedy's attempt
to resign is to be judged by the standards set forth in
section 13(b) or those in section 15 of article 10 of that
document. Section 13(b) provides:
A member leaving a shop or department or
division thereof covered by Guild contract for one
not so covered may resign, and any application for
withdrawal by such member shall be considered a
resignation . Upon resignation such member shall
be issued an "acceptance of resignation" card, the
contents of whichshall be determined by the IEB.
Section 15 provides that:
Any offer to withdraw or to resign from member-
ship in the Guild other than for the reasons set
forth in Section 13 of this Article shall be
submitted in writing to the governing board of the
Local, together with the reasons, in detail, for such
contemplated withdrawal or resignation. The
governing board of the Local shall thereupon
inquire into the causes and vote on whether such
withdrawal or resignation shall be accepted or
rejected. Any acceptance shall always be condi-
tioned upon full payment of all financial obliga-
tions due and owing to the Guild. Upon the
rejection of any offer to withdraw or resign, the
membership obligations of the member making
such offer shall continue in full force and effect. A
member may appeal rejection of his resignation to
the Local membership. A copy of the offer to
withdraw or resign, together with the action taken
by the Local thereon, shall be forwarded to the
IEB. Such action shall not become final until
approved by the IEB.
The Respondent contends that Kennedy's attempt
to resign must be judged by the standards set forth in
section 15, supra, because "his reasons for wanting to
withdraw quite obviously are not those set forth in
Section 13." If judged by the standards of section 15,
Kennedy's attempt to resign is ineffective for failure
to state his reason and failure to follow the procedures
outlined therein. The General Counsel contends that
Kennedy's resignation must be judged by the stand-
ards of section 13(b), which provide for no such
procedural requirements.
We agree with the General Counsel's contention
that Kennedy's attempt to resign must be judged by
application of the standards set forth in section 13(b).
That section makes acceptance of resignation manda-
tory upon the Union, and is clearly applicable to an
employee in Kennedy's position, that is, one who has
left a shop covered by a Guild contract for "one not so
covered." We see no reason to adopt the construction
apparently urged by the Respondent which would
restrict usage of section 13(b) either to some unde-
fined period immediately after leaving one shop for
another or to situations where such a change is the
sole reason for resignation . The section itself contains
no such reservations and, unlike section 15, it does not
require that any reason be given for the attempt to
resign.
We therefore find that Kennedy's resignation was
effective in April 1968. Applying the standards set
forth in Booster Lodge No. 405 (The Boeing Co.), supra,
we find that the Respondent violated Section
8(b)(1)(A) of the Act insofar as it fined Kennedy for
conduct he engaged in after he effectively resigned
from membership.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of the Union set forth above,
occurring in connection with the Company's opera-
tions described above, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow thereof.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union, by imposing a fine upon Kennedy
for crossing its picket line after he ceased to be a
member, restrained and coerced him in the exercise of
his rights guaranteed in Section 7 of the Act and
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
4. The foregoing unfair labor practice affects
commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, hereinabove described,
we shall order it to cease and desist therefrom and
take certain affirmative action to effectuate the
policies and purposes of the Act, including rescission
of that portion of the fine covering the period after
Kennedy's resignation, and reimbursement of Kenne-
LOS ANGELES NEWSPAPER GUILD LOCAL 69
dy for any such amount previously paid, together with
6-percent interest.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Los Angeles Newspaper Guild Local 69, AFL-CIO,
CLC, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Imposing a fine upon William W. Kennedy or
otherwise disciplining him for conduct engaged in
after his resignation from membership.
(b) In any like or related manner restraining or
coercing William W. Kennedy in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Rescind and revoke any and all letters, notices,
or announcements in which it is stated that William
W. Kennedy has been fined for engaging in strike
breaking activities occurring after his resignation
from membership.
(b) Reimburse William W. Kennedy for any
moneys paid by him in satisfaction of that portion of
the fine which was unlawfully imposed upon him,
together with 6-percent interest per annum.
(c) Post at its business offices and meeting halls in
and about Los Angeles, California, copies of the
attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director
for Region 21, after being duly signed by its
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail signed copies of the notice to the Regional
Director for Region 21 for posting by the Los Angeles
Herald-Examiner, Division of The Hearst Corpora-
tion, it being willing, at all locations where notices to
its employees are customarily posted in its plants
located in and about Los Angeles, California.
(e) Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
551
MEMBER BROWN, dissenting:
For the reasons set forth in my dissenting opinion in
Boeing I would find no violation based on the fine in
this case and would dismiss the complaint.
2 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce William
Kennedy by fining him for exercising his right,
following his resignation from membership, to
work for the Los Angeles Herald-Examiner during
the strike that commenced on December 1967.
WE WILL rescind the fine imposed upon William
Kennedy in the amount applicable to the period in
which he reported to work as a nonmember.
WE WILL reimburse William Kennedy those
portions of that fine already paid to us.
WE WILL NOT in any like or related manner
restrain or coerce William Kennedy, or any other
employee, in the exercise of rights guaranteed
them in Section 7 of the National Labor Relations
Act.
Los ANGELES
NEWSPAPER GUILD
LocAL 69, AFL-CIO, CLC
(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, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5200.