Los Angeles Paper Handlers' Union

National Labor Relations Board - Board Decisions

Mar 3, 1970

181 N.L.R.B. 417 (N.L.R.B. 1970)

LOS ANGELES PAPER HANDLERS' UNION 417
Los Angeles Paper Handlers ' Union No. 3,
Subordinate to the International Printing Pressmen
and Assistants ' Union of North America,
AFL-CIO (Gravure West ) and Oliver A.
Wilkerson . Case 21-CB-3351
March 3, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 14, 1969, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practice conduct alleged
in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions and a
supporting brief and the Respondent filed an
answering brief.
Pursu< nt 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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
lindings, conclusions, and recommendations of the
Trial Examiner'
that the Respondent Union, through its agents and
officers, caused or attempted to cause, and continues to
cause or attempt to cause, Gravure West to fail and refuse
to employ Wilkerson on a permanent basis because
Wilkerson engaged in union or concerted activities, and by
these acts the Union restrained and coerced, and is
restraining and coercing, employees in the exercise of
rights guaranteed under Section 7 of the Act. Respondent
Union denies it engaged in or is engaging in conduct
violative of the Act The parties appeared at the hearing
held in Los Angeles, California, on August 12, 1969, and
were afforded the opportunity to adduce evidence and to
examine and cross-examine witnesses, to present oral
argument, and to file briefs Respondent and the General
Counsel have filed briefs.
Upon the entire record, my observation of the witnesses
and their demeanor, and upon careful consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER INVOLVED
Gravure West has been at all times material herein a
corporation engaged in the printing of supplements for
various newspaper publishing firms in the Western United
States at its plant in Los Angeles, California In the
course and conduct of its business operations, Gravure
West annually sells and ships products valued in'excess of
$50,000 directly to customers located outside the State of
California The complaint alleges, the parties stipulated,
and I find, that Gravure West is an employer within the
meaning of Section 2(6) and (7) of the Act
11 THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find,
that Respondent is a labor organization within the
meaning of Section 2(5) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
,in accordance with his dissent in Miranda Fuel Co, Inc. 140 NLRB
181, Member Fanning does not rely for his finding of no violation in this
case on any criteria which judge the Respondent ' s action in terms other
than those of encouragement of union membership or loyalty, the
acknowledgement of union authority, or the performance of union
obligations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: Upon a charge
filed March 25, 1969, by Oliver Wilkerson, an Individual,
the complaint herein issued on June 27, 1969, alleging that
the Los Angeles Paper Handlers' Union No. 3, herein
referred to as the Respondent Union, violated Sections
8(b)(1)(A) and (2) of the National Labor Relations Act,
as amended, herein called the Act. The complaint alleges
iIi. ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
The instant complaint arises out of Respondent Union's
enforcement of a "freeze" imposed by the Respondent
Union on the Los Angeles Herald Examiner Chapel of
Paper Handlers Union No. 3 in December of 1967. This
"freeze" was instituted after the Herald Examiner
allegedly locked out its paper handlers, including Charging
Party Wilkerson. The lockout, herein called the "strike-
lockout," occurred almost immediately following the
commencement of a strike against the Herald Examiner
by certain labor organizations on December 15, 1967
The "freeze" imposed by Respondent Union barred any
member who was a regular situation holder' at the Herald
Examiner Chapel from taking a regular situation at any
other shop Wilkerson as a regular situation holder at the
Herald Examiner Chapel, prior to the strike-lockout, was
thus a member of Respondent Union coming under the
injunction of the "freeze " The reason for the "freeze"
advanced at the hearing by Kenneth Murray, president of
'A regular situation holder is a paper handler who, by virtue of his
having indicated that he will take the bulk of his work at a particular shop,
is given priority by the Union, to which hiring has been delegated, for
work at that shop A regular situation holder works regularly at the shop
at which he holds a regular situation and is considered by the management
of that shop to be a permanent employee
181 NLRB No. 70
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union, was to insure that the available work
at other shops was spread evenly among the locked out
paper handlers, and to protect the seniority rights of all
the members of the Herald Examiner Chapel. This
position was disputed by General Counsel as will be seen
infra Shortly after the strike-lockout began, Respondent
Union formed a lockout committee to dispatch the locked
out members of the Herald Examiner, as well as other
out-of-work paper handlers, to temporary employment as
paper handlers at other shops or chapels within the
Respondent Union's jurisdiction. Wilkerson was a
member of the lockout committee until approximately
January 1969, and was regularly dispatched by it over the
period December 1967 to July 1969 to temporary jobs at
Los Angeles shops Among the shops to which Wilkerson
was dispatched was Gravure West. By August or
September of 1968, Wilkerson was working regularly on a
temporary basis at Gravure West, as well as being
dispatched by the lockout committee to shops other than
Gravure West Wilkerson was usually getting five shifts=
of work, a regular workweek, when shifts at other shops
were added to the shifts he worked at Gravure West
In late August or early September of 1968, Wilkerson
approached the management of Gravure West and
Respondent Union about a permanent job at the Gravure
West Chapel. Wilkerson's inquiries were prompted by a
notice, published by Respondent Union on August 16,
1968, which put up for bid, "on a town seniority basis,"
regular situations at several plants One plant was
Gravure West' where, according to the notice, one
opening was available The "bidding" was open to Herald
Examiner situation holders even though the Union
"officially" considered that chapel frozen Among the
bidders for the opening at Gravure West were Leonard
Wilkerson, a cousin of the Charging Party and also a
member of the Herald Examiner Chapel, and Charging
Party Wilkerson Leonard Wilkerson had longer service as
a paper handler and consequently more "town seniority"
than Charging Party Wilkerson. He was given the regular
job at the Gravure West Chapel in January 1969
However, according to the testimony of Kenneth Murray,
president of Respondent Union, in the eyes of the Union,
Leonard Wilkerson was still a regular situation holder at
the Herald Examiner, although on a "temporary" basis he
was permitted to fill a regular job "vacancy" at Gravure
West as an accommodation to Thomas Burke, Gravure
West's plant manager
In December 1968, the NLRB conducted a
representation election at the Herald Examiner in which
Charging Party Wilkerson voted. Wilkerson also signed a
statement at that time to the effect that he wished to
return to the Herald Examiner if the labor dispute there
was terminated.
In February 1969, another paper handler, Thomas
Binko, a member of the unfrozen Hollywood-Citizen
Chapel, renounced his regular situation at the
Hollywood-Citizen and became a regular situation holder
at Gravure West. Binko's becoming a regular situation
holder before Wilkerson prompted Wilkerson to call
William Irwin, vice president of Respondent Union, and
to demand to know why Binko had been allowed to obtain
a regular situation at Gravure West and he, Wilkerson,
'Wilkerson's testimony indicates that he was no longer receiving lockout
benefits at this tune, which would indicate he was getting five shifts of
work each week
'The reference to Cuneo in the notice is to the name of Gravure West
prior to its acquisition by Denver Newspaper interests
had not Wilkerson indicated to Irwin that he, too, wanted
to be "permanent" at Gravure West Irwin told Wilkerson
that whether or not he could get permanent work at
Gravure would be up to Union President Murray Irwin
indicated that he would call Murray to arrange a meeting
with Plant Manager Burke and "see what becomes of it,"
and then call Wilkerson back In the subsequent phone
conversation, Irwin related to Wilkerson that he had
talked with Murray and that Murray did not want to talk
to Burke, that "he wanted nothing to do with it "
Thereupon Wilkerson decided to go to Burke himself and
ask for permanent work, which he did in late February
1969. Burke responded to Wilkerson's inquiry by stating
that as far as he was concerned Wilkerson could become
permanent. Despite Burke's willingness to take Wilkerson
as a permanent employee in February 1969, he was
prevailed upon at that time by union officers Murray and
Irwin not to do so At a meeting with Burke in February
1969, Murray pointed out to Burke that Wilkerson, as a
member of the Herald Examiner Chapel, was frozen into
that chapel by direction of the International Union and
was prohibited by the "freeze" from transferring to
another chapel as a permanent employee Burke concluded
that because of his contract, he was required to comply
with the Union's "freeze" and accordinglX he did not take
Wilkerson on as a permanent employee.'
The evidence indicates that Wilkerson was a diligent
member of the Union who, among other things, picketed
the Herald Examiner regularly and served on the Board of
the Strike-Lockout Committee
The agreement between the Paper Handlers and
Gravure West calls for a union shop It provides that the
Union "when called upon by the employer" will furnish
employees for the employer. It also states that "the
employer will be the judge of employee qualifications,"
and "the employer, through the Pressroom Foreman, shall
be the judge of who is to be hired."
The Management of Gravure West considers that it
hires some paper handlers as permanent employees.
Permanent employees complete an application for
employment; they accrue vacation benefits, and they are
given I.D. cards for admittance to the plant. Other paper
handlers working at Gravure West are considered by the
management to be temporary employees Temporary
employees are dispatched to Gravure West by the Union
for extra shifts of work, they complete no application,
although paid the same hourly wage, they receive 4
percent increment in lieu of accruing vacation benefits,
and they must sign in and sign out of the plant. Until July
of 1969, Charging Party Wilkerson was considered by the
management to be a temporary employee
While under the contract between the Respondent
Union and Gravure West, it appears that management has
the power to hire permanent employees, in reality the
hiring of paper handlers has been delegated to the
Respondent Union. The Union, through its chapel
chairman, runs an informal hiring hall Each Friday, the
plant manager, Burke, estimates the number of press runs
,for the coming week and indicates the number of shifts of
paper handlers that will be required for those runs He
sends his estimates on to Ray Mankins, the paper handler
foreman, who is designated in the contract as the
individual who hires paper handlers Mankins testified
that once he receives the estimates from Burke, he usually
adds a few shifts of paper handlers for other duties.
'Pursuant to a settlement agreement in Case 21-CA-8497 entered into on
July 2, 1969, Gravure West took Wilkerson as a permanent employee
LOS ANGELES PAPER HANDLERS' UNION 419
Mankins testified that he then tells the chapel chairman
how many shifts of paper handlers he will need and the
chapel chairman assigns and posts the shifts for the
coming week.
There are two lists from which the employer's need for
workers is filled by the chapel chairman. The first list is
the list of regular situation holders at Gravure West. The
second list is the extra or temporary list. A regular
situation holder is essentially a permanent employee. A
Gravure West regular situation holder is dispatched to
that shop on a priority basis for up to five shifts per week,
a regular workweek, and he is assigned shifts in
accordance with his "shop seniority." One who is not a
regular situation holder is not dispatched in any particular
order nor is he entitled to be dispatched for five shifts of
work before any other temporary employee is dispatched
for a shift of work.
Regardless of how one views the employment
relationship, there are very real and significant advantages
to being a regular situation holder or permanent
employee,' as opposed to being a temporary employee at
Gravure West. Regular situation holders have priority as
to shifts in accordance with "shop seniority " The man
who has been a regular situation holder the longest will
almost invariably get five shifts of work a week, and he
will get his choice of working hours - dayshift, swing
shift, or graveyard shift. Every regular situation holder is
entitled to five shifts of work before any temporary can
receive one shift. Temporary employees accrue no "shop
seniority" and therefore are not preferred over any other
temporary. The bottom man on the regular situation list
may not always get five shifts of work every week, but he
will get what shifts are available before any temporary can
get one shift, and, unlike the temporary, he will know on
what days he will have work and on what days he must
look for a temporary situation at another shop.
As a regular situation holder's "shop seniority"
increases, his vacation benefits increase as well During
the first year each regular situation holder gets I day of
vacation for each 25 shifts worked. In the second year, it
is I day for every 16 shifts, and after 10 years each
regular situation holder is entitled to 4 weeks paid
vacation Temporaries get a 4 percent increment in their
hourly wage regardless of the length of temporary service
Finally, a regular situation holder is entitled to vote for
the chapel chairman; temporaries are not
B. Analysis and Conclusions
On the basis of the foregoing recital of facts, I find
that, but for the intervention of Respondent Union, the
Charging Party would have been hired as a "permanent"
employee by Gravure West in February 1969. As has been
shown, this "permanent" status or regular situation
carries with it the considerable advantages of steady,
predictable employment as well as enhanced vacation
benefits. In preventing and attempting to prevent
Wilkerson from enjoying these advantages, the Union
clearly derogated Wilkerson's employment status
However, it is well settled that not every derogation of.a
union member's employment status is violative of the Act.
To bring the Respondent Union's conduct within the
proscription of 8(b)(2), the General Counsel must show by
relevant evidence that the Respondent Union's motive for
the derogation was to encourage or discourage union
membership .' In this respect the case for the General
Counsel fails.
Respondent Union contends that its actions with
respect to Charging Party Wilkerson were
nondiscriminatory in that it was merely enforcing its
freeze imposed on the Herald Examiner Chapel. The
Union asserts that the freeze was instituted to spread
available work among employees of the Herald Examiner
Chapel and to protect the seniority rights of its members
by foreclosing the possibility that shifts at other shops
would be eliminated by a few Herald Examiner employees
taking regular situations and leaving other Herald
Examiner employees without any work whatever.
The evidence indicates that in December 1967, the
month the freeze was instituted , is a slow month There is
testimony to the effect that Wilkerson , who had as many
shifts as others from the Herald Examiner Chapel,
received lockout benefits from the International Union
during at least the early months of the "freeze ," thus,
indicating that there was, in fact , a shortage of available
work Respondent Union ' s president , Murray, testified
that on other occasions the "freeze " technique has been
used to conserve seniority rights of paper handlers in
situations such as the Herald Examiner strike-lockout. He
explained that older members of a chapel with
accumulated shop seniority will hang on in a troubled
shop in hopes the shop "will come back " and their
seniority will be conserved while men further down the
priority listing will be quick to jump to other' shops
Regular situations at other shops will be eliminated by
those who jumped first - those who had least to lose by
"pulling their cards" at the troubled shop. If regular
situations are awarded by bid on a town seniority basis, as
was the case at Gravure West, the absence of a "freeze"
places a premium on being the first to bid for a regular
situation elsewhere , particularly if the bidder has little
relative town seniority - Against this , the General Counsel
contends that while the "freeze " may have been instituted
to spread available work it was also a method by which
the Union could tie its members to the Herald Examiner
Chapel , thereby mitigating the possibility of the Herald
Examiner's withdrawing its recognition of the Union. That
is to say, if all the locked out employees took jobs
elsewhere , the Union ' s majority would be dissipated and
the Herald Examiner would have a basis for withdrawing
recognition The General Counsel further contends that if
Respondent Union were solely concerned with spreading
available work and not with keeping the locked out
employees in the Herald Examiner Chapel so it would not
lose its majority status, it would be expected that the
"freeze" would have applied to all chapels within
Respondent Union's jurisdict ion General Counsel declares
that the evidence establishes such a motive.
It is clear from the Radio Officers case, supra, that
derogation of employment status for the purposes of
encouraging union regularity , loyalty or performance of
union obligations is proscribed by the Act It i s equally
clear that derogation of employment status based on a
union rule calculated to allow the statutory bargaining
representative better to serve the unit it represents is not
violative of the Act, even though some encouragement of
union membership occurs,' provided the rule, and its
enforcement , is free of arbitrary or irrelevant
'For convenience hereinafter I will use regular situation holder and
permanent employee interchangeably as I find, for the purposes of this
case, the terms are virtually synonomous
'Radio Officers Union v N L R B , 347 U S 17, 43, Local 357
Teamsters v N L R B, 365 U S 667
'Local 357. Teamsters v N L R B . 365 U S 667
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations inconsistent with the Union's duty to fairly
represent its members $
The case turns, then, on whether or not, based on all
the evidence, the Respondent Union's rule and its
enforcement were (a) for the purposes of encouraging
union regularity or (b) based on arbitrary or irrelevant
considerations
The Board has held in a number of cases that a union
may make and enforce by derogation of the employment
status of an employee a rule which has as its objective the
spreading of work and the protection of seniority rights.'
The Board will not substitute itself for the Union in
weighing the wisdom of the rule or of the stated objective.
The most it can do in this direction is to measure whether
the asserted wisdom is, in light of all the circumstances,
pretextual.10
The General Counsel contends that the evidence
establishes that the motive for the freeze was to encourage
union activity - namely to tie Wilkerson to the Herald
Examiner Chapel for the purposes of maintaining a
majority there in derogation of Wilkerson's Section 7
right to refrain from union activity. The evidence does not
establish such a motive, nor does it establish that
Respondent Union's stated motive was pretextual.
There is no evidence in the record tending to prove the
General Counsel's contention that the rule was instituted
to maintain a majority at the Herald Examiner Chapel.
The General Counsel's speculation that the objective of
spreading the work would have been more efficaciously
met by freezing all chapels is debatable, and, as earlier
indicated, the Board will not attempt to substitute its
judgment for Respondent Union's judgment. It would
seem under Local 357, Teamsters, supra, that it is
irrelevant if, pursuant to its legitimate objective, the
"freeze" periferrally encouraged the very regularity
'Columbus Typographical Union No 5, 177 NLRB No 58, New York
Typographical Union No 6, 144 NLRB 1555, affd 336 F 2d 115 (C A. 2);
Local 10, Chicago Federation of Musicians (Shedd Radio and T V ). 153
NLRB 68; Ford Motor Co v Huffman, 345 U.S. 330.
'e g. Local 10, Chicago Federation of Musicians (Shedd Radio and
TV), 153 NLRB 68
"Local 10, supra
complained of by the General Counsel
Further, even the suspicion that the objective of the
freeze is to maintain Respondent Union's majority status
at the Herald Examiner is undercut by the evidence. As
alluded earlier, it does appear that, at the time the freeze
was instituted, there was in fact a shortage of available
work. The freeze continued at the time of the hearing
although a representation election had been held at the
Herald Examiner less than I year prior to the hearing,
and the record reflects uncontradicted testimony of
Murray that the freeze technique has been commonly
employed at failing enterprises - where, presumably,
there has been no question of majority status.
Absent evidence that the Union's objective as it applied
to Wilkerson was so arbitrary, invidious or irrelevant as
to indicate that it was a mask for encouraging
membership or membership regularity, the action should
not be deemed unlawful. The General Counsel has made
no showing that there was no need to take action
calculated to spread available work nor has it shown that
the freeze applied to Wilkerson was so unwise a method
of spreading the work and protecting seniority rights that
the stated objective and its method of implementation
were pretextual.
Upon the foregoing findings of fact and conclusions,
I come to the following:
CONCLUSIONS OF LAW
1 Gravure West is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Los Angeles Paper Handlers' Union No 3,
subordinate to the International Printing Pressmen and
Assistants' Union of America, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
3 Paper Handlers Union No. 3 has not engaged in any
unfair labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that the complaint be
dismissed in its entirety