Appendix — GAIU Local 13-B, Graphic Arts International Union v. National Labor Relations Board

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

>

No. 680—August Term, 1981

(Argued March 3’ 1982 Decided June 11, 1982)

Docket No. 81-4153

+

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

GAIU Loca. 13-B, GRAPHIC ARTS

INTERNATIONAL UNION,

Respondent.

Before:

EINBERG, Chief Judge,

MANSFIELD, Circuit Judge,

MISHLER, District Judge.*

2a

Petition for enforcement of an order of the National

Labor Relations Board, 252 N.L.R.B. 936 (1980), direct-

ing the respondent Union to rescind its disciplinary action

against 17 of its members for resisting its ban against

their performing overtime work for their employer and to

compensate them for losses suffered by reason of the ban.

The Board found that the ban was an unfair labor

practice in violation of § 8(b)(1)(A) of the National Labor

Relations Act and was not adopted in response to alleged

unfair labor practices on the part of the employer.

Enforcement granted.

i

RuAH D. LAHEY, Attorney, National Labor

Relations Board, Wash »gton, DC (Wil-

liam A. Lubbers, General Counsel, John

E. Higgins, Jr., Deputy General Counsel,

Robert E. Allen, Acting Associate

General Counsel, Elliott Moore, Deputy

Associate General Counsel, National La-

bor Relations Board, Washington, DC,

of counsel), for Petitioner.

RALPH P. Katz, Esq., New York, NY (Delson

& Gordon, New York, NY, of counsel),

for Respondent.

i

MANSFIELD, Circuit Judge:

The National Labor Relations Board (the “Board”)

petitions pursuant to § 10(e) of the National Labor Rela-

3a

tions Act (the “Act”), as amended, 29 U.S.C. §§ 151, ef

seq., for enforcement of an order issued by it on Septem-

ber 20, 1980, against GAIU Local 13-B, Graphic Arts

International Union (the “Union”), directing it to rescind

its disciplinary action against 17 of its members because

of their resistance to a Union ban against performing

overtime work for the Western Publishing Co. (the “Em-

ployer”). The order also requires the Union to nullify its

overtime ban, to compensate the disciplined members for

losses suffered as a result of the ban, and to post

appropriate notices. We enforce the Board’s order.

The Union represents employees at the Employer’s

Poughkeepsie plant, which publishes books and similar

materials, employing some 500 persons engaged in pro-

duction and related activities, driving of in-plant equip-

ment and janitorial services. Following the expiration on

May 16, 1978, of the contract between the Employer and

the Union the parties negotiated while the employees

continued working without a contract. Under the terms

of their employment the employees were obligated to

perform paid overtime work when assigned by the Em-

ployer.

On July 14, 1978, the Employer advised 13 employees

that they would be suspended for one day each because of

their refusal to perform assigned mandatory overtime

work but postponed putting the suspensions into effect.

On August 28, 1978, the Union held a membership

meeting at which 320 out of a total of 490 Union

members were present. The members voted 220 for and

100 against adopting a work rule, effective at once,

prohibiting members from performing mandatory over-

time work. On August 30, 1978, the Employer responded

by discontinuing overtime work. However, in October it

reinstituted overtime to meet customers’ needs, first ad-

4a

vising employees that it did not intend to discipline

employees who refused to work overtime but then return-

ing to a mandatory overtime policy. Thereafter at least 17

employees who were Union members worked overtime in

violation of the Union rule banning overtime.

On October 25, the Union began disciplining each of

the 17 members through internal union charges, fines and

lawsuits. A $50 fine was imposed on each of these

employees for each day worked overtime. Also on Octo-

ber 25 the Union filed with the Board a complaint

alleging that the Employer had committed unfair labor

practices by failing to bargain with it in good faith and by

improperly communicating directly with the employees.

On December 6, 1978, a unit employee who had been

fined by the Union for violating its overtime ban filed a

complaint with the Board against the Union charging that

the ban was an unfair labor practice. On December 7,

1978, the Employer informed the Union that because of

the bargaining impasse it would on December 11 put into

effect the terms of its final contract offer but would not

change the work hours to 37 1/2 hours per week, “[d]ue

to [the Union’s] continued threat of fines and dit line

against employees who work in excess of 36 1/4 hours.”

On December 18, 1978, the Union filed a second unfair

labor practice charge against the Employer, adding that it

had unlawfully made unilateral changes in work condi-

tions without a valid bargaining impasse. This was fol-

lowed by a Union notice to its members on January 3,

1979, lifting the overtime ban but advising that if the

Eni ployer changed the existing 36 1/4-hour work week

the ban would be reinstated immediately. The Employer

then notified employees that it planned to put its pro-

posed 37 1/2-hour work week into effect when the Union

ended its threats of fines and discipline. After an un-

Sa

successful bargaining session on January 16, 1979, the

Employer advised that it intended to implement the 37

1/2-hour work week on January 22, 1979, whereupon the

Union advised that the ban was “back on.”

The unfair labor practice charges filed by the Union

against the Employer were settled by an agreement, ap-

proved by the Regional Director, between the Board’s

General Counsel and the Employer, in which the Union

did not participate. The charges against the Union were

heard by an Administrative Law Judge (“ALJ”), who

found the Union’s ban against overtime to be a lawful

self-help response to the Employer’s unfair labor prac-

tices allegedly committed during collective bargaining.

Since the charges against the Employer had been settled

the ALJ declined to hear evidence as to its commission of

unfair labor practices. He did, however, admit testimony

of the Union’s recording secretary as to what was said at

the meeting at which the ban was adopted but excluded

various exhibits offered by the Union to prove that the

Employer had engaged in unfair labor practices. Aside

from the evidence of what transpired at the meeting the

Union did not offer proof to show its reasons for adopt-

ing the ban.

A three-member Board panel reversed the ALJ’s deci-

sion, holding that the ban had not been adopted in

response to any unfair labor practices but “solely as a

bargaining tactic, designed to put economic pressure on

Western [Employer] and to force Western to make bar-

gaining concessions. . . .”, 252 N.L.R.B. 936, 938. It

based its finding on a record showing that the Union had

filed

“no charges . . . against Western until almost 2

months after the overtime ban was implemented,

6a

that there is no evidence of any discussion at the

August 28 union meeting characterizing Western’s

actions as unfair labor practices, that [the Union’s]

notice announcing the overtime ban makes no refer-

ence to Western’s alleged unfair labor practices, and

that the meager evidence as to the discussion at the

August 28 union meeting indicates the employees

were mainly concerned with Western’s failure to

reach an agreement with the Union quickly.” /d.

The Board then concluded that the Union’s disciplining

of members who engaged in unprotected activity (i.e.,

refusal to perform mandatory overtime, for which they

might lawfully be subjected to suspension or discharge by

the Employer) violated “an overriding policy of the labor

laws,” Scofield v. NLRB, 394 U.S. 423, 429 (1969), and

therefore constituted an unfair labor practice under

§ 8(b)(1A) of the Act. The Board order, which is the

subject of the present petition, followed.

DISCUSSION

Section 8&(b)(1MA) of the Act, 29 U.S.C.

§ 158(b)(1)(A), makes it an unfair labor practice for a

union to “restrain or coerce” employee-members in the

exercise of their rights under § 7, 29 U.S.C. § 157, which

include the right to engage in or refrain from concerted

activities, but § 8(b)(1)(A) preserves to the union the right

“to prescribe its own rules with respect to the acquisition

or retention of membership therein.” However, the latter

proviso does not permit a union to adopt rules which are

not in furtherance of a legitimate union interest or which

are counter to an overriding policy of the labor laws,

Scofield v. NLRB, 394 U.S. 423, 429, 430 (1969); NLRB

7a

v. Industrial Union of Marine & Shipbuilding Workers of

America, 391 U.S. 418, 424 (1968), such as finding a

member for filing a charge with the Board, NLRB v.

Industrial Union of Marine & Shipbuilding Workers of

America, supra, 391 U.S. at 424, or for refusing to take

part in conduct that violates the Act or the collective

bargaining agreement, Local 1104, Communications

Workers of America ». NLRB, 520 F.2d 411, 415 (2d Cir.

1975), cert. denied, 423 U.S. 1051 (1976); NLRB vy.

Communications Workers Local 1170, 474 F.2d 778, 782

(2d Cir. 1972); Stationary Engineers, Local 39, Interna-

tional Union of Operating Engineers, 240 N.L.R.B. 1122,

1123 (1979). The “policy of the Act is to insulate employ-

ees’ jobs from their organizational rights,” Radio Offi-

cers’ Union v. NLR&, 347 U.S. 17, 40 (1954).

In resolving the vension between a union’s organiza-

tional rights and its members’ exercise of righ*s guaran-

teed by § 7, the law allows a union to take disciplinary

action against a member for refusing to engage in pro-

tected activity that will not jeopardize his job, see, e.g.,

Scofield v. NLRB, supra (adoption of piece work limits

which would not entitle employer to discriminate against

members obeying them), but does not allow it to do so

because of a member’s refusal to engage in conduct that

is unlawful under the Act or that violates the collective

bargaining agreement. Local 1104, Communication

Workers of America, supra; Stationary Engineers, Local

39, supra. The issue before us here, however, is whether

the Union may go further and punish a member for

engaging in unprotected activity that violates neither the —

Act nor the collective bargaining agreement, in this case

refusing to perform mandatory overtime work, which

would jeopardize a member’s job by entitling the Em-

ployer to terminate his employment and refuse to rein-

state him.

8a

Putting aside the prohibition of a no-strike clause, not

involved here, a union may properly adopt rules disciplin-

ing members who refuse to engage in a full economic

strike in which they do no work for the employer. NLRB

v. Allis-Chalmers Manufacturing Co., 388 U.S. 175

(1967). Such strike activity is lawful and protected from

being used as the grounds for punishment of striking

employees by the employer, who must look elsewhere for

substitutes and cannot deny the employees reinstatement

upon termination of the strike, in absence of good cause.

An employee who chooses to continue working but

refuses to obey his employer’s orders to perform activities

forming a legitimate part of his work is not so protected.

He is obligated to perform all of the work he was hired to

do. To permit an employee in such a fashion unilaterally

to dictate the terms and conditions of his employment

could lead to chaos. An employer is entitled to receive

from a person who opts for continued employment the

full and undiluted performance of the duties for which he

is hired and paid. The employee cannot have it both

ways, i.e., continue to be employed but insist on working

part-time as an economic weapon, any more than the

employer would be permitted unilaterally to pay an em-

ployee less than the agreed upon wages for his services.

See Excavation-Construction, Inc. v. NLRB, 660 F.2d

1015, 1020-22 (4th Cir. 1981); Liberty Mutual Insurance

Co. v. NLRB, 592 F.2d 595, 604-06 (ist Cir. 1979); Shelly

& Anderson Furniture Manufacturing Co., Inc. v.

NLRB, 497 F.2d 1200, 1202-03 (9th Cir. 1974).' Applying

! There is one exception to the rule:

“The sta*utory protective shield extends to a single refusal to work

overtime if it is a concerted activity directed at changing working

conditions or employer policy.” NLRB v. Gulf-Wandes Corp., 595

F.2d 1074, 1078 (Sth Cir. 1979) (emphasis added); see NLRB v. A.

9a

this rule, courts have uniformly held that a concerted

refusal to perform overtime is an unprotected partial

work stoppage. See, e.g., Excavation-Construction, Inc.

v. NLRB, supra, 660 F.2d at 1020-22; First National Bank

of Omaha v. NLRB, 413 F.2d 921, 925 (8th Cir. 1969);

C.G. Conn, Ltd. v. NLRB, 108 F.2d 390, 397-98 (7th Cir.

1939).

A union rule requiring an employee to engage in such

unprotected activity, even though adopted by a majority

of the union’s members, amounts to an unlawful restraint

or coercion on its employee-members. It forces them, it

they wish to continue working, to engage in unlawful

activity and to risk being lawfully discharged by their

employer or subjected to lawful imposition of disciplinary

measures. An employee who engages in lawful strike

activity retains his accrued rights, § 2(3) of the Act, 29

U.S.C. § 152(3), and is entitled to reinstatement upon

conclusion of the strike unless the employer shows legiti-

mate reasons to the contrary, NLRB v. Fleetwood Trailer

Co., 389 U.S. 375, 378 (1967); H. & F. Binch Co. Plant v.

NLRB, 456 F.2d 357, 364-65 (2d Cir. 1972); The Laidlaw

Corporation v. NLRB, 4\4 F.2d 99, 105 (7th Cir. 1969),

cert. denied, 397 U.S. 920 (1970). However, an employee

discharged for misconduct in violation of the terms of his

employment may be denied reinstatement, Liberty Mu-

tual Insurance Co. v. NLRB, supra, 592 F.2d at 605-06;

NLRB v. John S. Swift Co., 277 F.2d 641, 646 (7th Cir.

1960). For these reasons, this type of economic coercion

on the part of a union, forcing members to engage in

Lasaponara & Sons, Inc., 541 F.2d 992, 997-99 (2d Cir. 1976), cert.

denied, 430 U.S. 914 (1977).

Since the Union's overtime ban was not a “one day” event, this

exception does not apply.

10a

unprotected activity, is impermissible since it jeopardizes

the members’ employment relationships, imperils their

livelihood, and impairs our national labor policy. /nsur-

ance Workers International Union, 236 N.L.R.B. 440

(1978), see Scofield v. NLRB, supra, 394 U.S. at 428;

NLRB v. Boering Co., 412 U.S. 67, 73 (1973). Nor may

such a union role be saved on the ground that the

employee who wishes to avoid unprotected activity may

leave the union and escape the rule. A rule which is

inconsistent with our national labor policy must give way.

None of the Supreme Court decisions relied on by the

Union supports its contentions that it may fine or disci-

pline a member for refusal to engage in unprotected

activity. In NLRB v. Insurance Agents’ International

Union, 361 U.S. 477 (1960), the Court merely held that

unprotected union activity used as a form of economic

pressure (e.g., work stoppages, “ ‘slow-down,’ ‘sit-in,’

and arguably unprotected disloyal tactics,” for which

“the employer could have discharged or taken other

appropriate disciplinary action against the employees,”

id. at 493-94) did not constitute a refusal to bargain in

good faith in violation of § 8(b)(3) of the Act. The Court

was not called upon to rule whether the union’s disciplin-

ing of a member for not joining in such unprotected

activity would violate § 8(b)(1)(A) of the Act, which is the

issue here. In Scofield, supra, the piece-work ceiling

could not have any adverse effect on the employment

relationships of the employees with their employer, see

394 U.S. at 432-33; here the overtime ban would jeopar-

dize their jobs. In Lodge No. 76, International Associa-

tion of Machinists v. Wisconsin Employment Relations

Commission, 427 U.S. 132 (1976), the Court did not hold

that the Act permits union disciplining of members for

refusal to obey a union ban on overtime; it simply held

that regulation of the use of an overtime ban as an

economic weapon was activity preempted to the Board

under the Act and free of regulation by the states. Indeed,

the Court then took pains to point out that it was not

ruling on the question of whether the overtime ban there

was “protected” under § 7, but confirmed that the em-

ployer would in any event have countervailing economic

weapons available, including “discharg[ing] or tak[ing]

other appropriate disciplinary action against the employ-

ees participating,” id., 427 U.S. at 152-53 & n.14. In

NLRB v. Boeing Co., supra, 412 U.S. 67, the Court, in

holding that the Board had no authority under the Act to

rule on the reasonableness of union fines “not affecting

the employer-employee relationship and not otherwise

prohibited by the Act,” id. at 73, reaffirmed the holding

of Scofield that “the Board would have authority to pass

on those rules affecting an individual’s employment sta-

tus but not on his union membership status,” id. at 73-74.

Applying the foregoing principles here, it is clear that,

unless justified as a defense to unlawful activity on the

Employer’s part, the Union’s overtime ban violated

§ 8(b)(1)A) of the Act. In the present case overtime,

being mandatory and lawfully required, was an integral

part of the employees’ assigned duties and could not

lawfully be rejected by them. The Union’s rule banning

overtime therefore jeopardized their employment rela-

tionship, since it would entitle the Employer to terminate

them without reinstatement or take other disciplinary

action against them.

The Union next contends that even if the ban would

ordinarily be unlawful it was legally justified in this case

as a response to general unfair labor practices allegedly

committed by the Employer during the course of its

collective bargaining with the Union. The Union relies on

12a

Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956),

which upheld employees’ right to strike in response to

their employer’s unfair labor practice. The Board replies

that Mastro Plastics, which involved “total” (and hence

protected) strike activity on the part of employees, should

not govern the present case, which grows out of unpro-

tected “partial” strike activity not aimed at an employer’s

attempt to impose unlawful working conditions. We find

it unnecessary to resolve this issue since the Board here

made a finding, supported by substantial evidence, that

the overtime ban was not adopted in response to the

Employer’s alleged unfair labor practices but solely as an

economic weapon to improve the Union’s bargaining

position in on-going negotiations.

The Union’s August 28, 1978 notice announcing the

overtime ban made no mention of any conduct on the

Employer’s part that might amount to an unfair labor

practice. Nor was there any evidence of discussion at the

Union meeting on that date of any such unfair labor

practice on the part of the Employer. In requiring that the

employees work their agreed-upon mandatory overtime,

the Employer was not attempting thereby unilaterally to

impose a change in terms of employment over the protest

of the Union or its members. The evidence, on the

contrary, indicated that the members approved the ban

because of dissatisfaction with the Employer’s failure to

reach an agreement promptly with the Union rather than

because the Employer was doing anything unlawful.’

2 The Union points to the following answer of its recording secretary,

Phyllis Goodall, given in the course of her testimony before the ALJ,

as evidence that it acted in retaliation for unfair labor practices on the

part of the Employer:

“Q Can you tell us, at that meeting, what was said by certain

members when they spoke on it [the ban]? Either for or against,

l3a

Moreover, the Union failed for almost two months after

the August 28, 1978, meeting to file any unfair labor

practices against the Employer, which supports the

Board’s inference that the August 28 ban represented a

bargaining weapon. Otherwise the charges would have

been filed immediately.

After the Board applied for enforcement of its order

the Union filed with us in this proceeding a motion that

the case be remanded to the Board for the taking of

additional evidence which would allegedly support its

defense that it promulgated the overtime ban in response

to the Employer’s alleged unfair labor practice. This

relief, which the Board opposes, is sought on the ground

that the ALJ, by erroneously precluding subjective evi-

dence of the Union’s purpose and excluding certain min-

utes of Union meetings and Union-Employer bargaining

sessions, prevented or dissuaded it from proving the

Employer’s unfair labor practices and that Union mem-

bers were motivated thereby to adopt the ban.

At the hearing on the Board’s charges the ALJ initially

ruled that the Union’s intent in adopting the ban and

disciplining its members for violation thereof was irrele-

vant. However, after the Board’s General Counsel made

out a prima facie case through documentary proof of the

Union’s adoption and implementation of the ban, the

ALJ permitted the Union to introduce through Ms.

and if you can remember specific names of people who spoke? And

if you can’t, tell me you can’t.

“A No, all | do remember is that they gave the same argument all

the time in speaking about why we were working the company’s

overtime when they're, you know, were doing different things to

the members. This was brought up continuously on the floor and at

work.”

However, this vague answer is hardly sufficient to call for rejection of

the Board’s findings made on the basis of other evidence.

14a

Goodall, its recording secretary, testimony and exhibits

showing what occurred at the August 28th special meeting

of the Union at which the ban was adopted. The ALJ,

advised of the Union’s defense, indicated that he was

aware of the unfair labor practices against the Employer,

which had been settled, that he did not want a collateral

trial of those charges, that he would admit objective

evidence of facts with respect to the Union’s defense, and

that he would exclude a witness’ “opinion and conclu-

sions.” The ALJ, although admitting the foregoing testi-

mony and minutes of the August 28th meeting, excluded

other documents claimed by the Union to show unfair

labor practices by the Employer, including minutes of

bargaining sessions and communications by the Employer

to employees regarding bargaining proposals and the

status of negotiations.

After introducing Ms. Goodall’s testimony the Union

rested without making any offer of the proof (other than

the rejected minutes) which it wished to introduce to show

motivation or unfair labor practices. Nor did the Union,

upon the General Counsel’s appeal to the Board, file any

cross-exceptions to the ALJ’s rulings, seek to reopen the

record, or even contend that it would have offered any

additional evidence other than that rejected by the ALJ

even though the General Counsel contested the ALJ’s

finding that the ban was adopted as a response to em-

ployer unfair labor practices.

On the record before it the Board, in reversing the

ALJ’s finding that the ban was a permissible response to

unfair labor practices, stated that under that theory a

union must prove that unfair labor practices occurred,

and therefore the ALJ had erred in not permitting the

Union to litigate the alieged unfair labor practices by the

Employer. However, it found that proof of the Em-

1Sa

ployer’s unfair labor practices would not have made any

difference because the Union’s ban had not been adopted

in response thereto but “solely as a bargaining tactic.”

252 N.L.R.B. at 938. Following the Board’s decision, the

Union did not seek leave to present additional evidence

on the issues of motivation or unfair labor practices. Nor

did it at any point indicate dissatisfaction with the ALJ’s

evidentiary rulings and exclusion of the minutes and

letters offered by the Union. Indeed, the first time the

Union sought to reopen the record to take additional

evidence was on this appeal.

Section 10(e) of the Act, 29 U.S.C. § 160(e), provides

that no objection not urged before the Board shall be

considered by the court except where the failure to urge it

is excused because of extraordinary circumstances. It

further provides that the Board’s findings when sup-

ported by substantial evidence shall be conclusive and

that the court may on motion reopen the record to take

additional material evidence upon a showing that there

were reasonable grounds for the failure to adduce the

evidence in the hearing before the Board.’ See Detroit

Edison Co. v. NLRB, 440 U.S. 301, 311-12 & n.10 (1979);

NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318 (1961);

3 Section 10(e) provides in pertinent part:

“No objection that has not been urged before the Board, its

member, agent, or agency, shall be considered by the court, unless

the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances. The findings of the Board

with respect to questions of fact if supported by substantial evi-

dence on the record considered as a whole shall be conclusive. If

either party shall apply to the court for leave to adduce additional

evidence and shall show to the satisfaction of the court that such

additional evidence is material and that there were reasonable

grounds for the failure to adduce such evidence in the hearing

before the Board, its member, agent, or agency, the court may order

such additional evidence to be taken before the Board, its member,

agent, or agency, and to be made a part of the record.”

16a

NLRB v. Cheney California Lumber Co., 327 U.S. 385

(1946). The purpose of this provision is to insure against

piecemeal appeals to the court by requiring the parties

first to give the Board an opportunity to rule upon all

material issues in a case. The Board has implemented this

statutory policy by adopting regulations requiring the

parties to raise by exceptions or cross-exceptions all issues

they desire the Board to consider in reviewing an ALJ’s

decision. These regulations specifically provide that any

exception “not specifically urged shall be deemed to have

been waived,” Board Rules and Regulations, Series 8, as

amended, 29 C.F.R. § 102.46(b) and (h). In the present

case the Union not only failed, upon being apprised of

the ALJ’s adverse rulings, to make a specific offer of

proof (except as to the rejected minutes and letters), but

failed to file any cross-exceptions with the Board after

receiving the General Counsel’s exceptions.

The Union argues that since it had prevailed before the

ALJ it should be excused for not having filed timely

cross-exceptions with the Board. This contention must be

rejected, however, for the reason that the Union was put

on notice of the possible importance of its evidence of

motive and unfair labor practices by the General Coun-

sel’s exceptions taken to the ALJ’s holdings that were

favorable to the Union. Moreover, the Union could still

have raised the evidentiary issues after learning of the

Board’s adverse decision by moving for reconsideration,

rehearing or reopening of the record as it was permitted

to do under § 10(d) of the Act and regulations promul-

gated thereunder, 29 C.F.R. § 102.48(d).* Having failed to

4 Section 10(d) provides:

“(d) Until the record in a case shall have been filed in a court, as

hereinafter provided, the Board may at any time upon reasonable

notice and in such manner as it shali deem proper, modify or set

17a

bring the evidentiary errors “to the Board’s attention

through a petition for rehearing, it cannot assert [them]

here on appeal,” Glaziers’ Local No. 558 v. NLRB, 408

F.2d 197, 203 (D.C. Cir. 1969). “Simple fairness .. .

requires as a general rule that courts should not topple

over administrative decisions unless the administrative

body not only has erred but has erred against objection

made at the time appropriate under its practice.” United

States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37

(1952).

Nor are we persuaded by the Union’s argument that a

motion before the Board for reconsideration or introduc-

tion of additional evidence would have been futile be-

cause most such motions are usually denied by the Board.

It would be surprising to find that motions for recon-

sideration or reopening were not usually denied since in

most cases the proferred evidence is not newly discovered

but is immaterial or cumulative evidence that would not

change the Board’s decision. We cannot, however, accept

the Union’s contention that if it had, upon a motion to

aside, in whole or in part, any finding or order made or issued by

a.”

29 C.F.R. § 102.48(d)(1) provides:

“(d\(1) A party to a proceeding before the Board may, because of

extraordinary circumstances, move for reconsideration, rehearing,

or reopening of the record after the Board decision or order. A

motion for reconsideration shall state with particularity the material

error claimed and with respect to any finding of material fact shall

specify the page of the record relied on. A motion for rehearing

shall specify the error alleged to require a hearing de novo and the

prejudice to the movant alleged to result from such error. A motion

to reopen the record shall state briefly the additional evidence

sought to be adduced, why it was not presented previously, and

that, if and credited, it would require a different result.

Only new evidence, evidence which has become avail-

able only since the close of the hearing, or evidence which the Board

believes should have been taken at the hearing will be taken at any

further hearing.”

18a

the Board based on specific evidence showing that the

result would be changed, the Board would have denied

the motion. To accept this contention would be to assume

that the Board’s procedures for reconsideration are mean-

ingless. This we cannot do. Here the Union at no time

offered specific evidence on the issues of motivation other

than the minutes and letters excluded by the ALJ. Our

review of these documents merely reveals that the parties

were locked in hard bargaining and that the ban, rather

than constituting a reaction to unfair labor practices on

the Employer’s part, was adopted by the Union as an

affirmative bargaining weapon. Lastly, to remand this

case, which is now more than 3 1/2 years old, to the

Board for further proceedings would only promote inter-

minable delay without appreciable likelihood of any

change in the result. There comes a time when further

litigation of a case must stop and it has been reached

here.

Accordingly the petition for enforcement of the

Board’s order is granted and the motion to remand the

proceedings is denied.

19a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCU!T

No. 81-4153

—e-

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the eleventh day of June one thousand

nine hundred and eighty-two

p *: [Filed Jun 11 1982

A. Daniel Fusaro, Clerk]

HON. WILFRED FEINBERG, Ch.J.

HON. WALTER R. MANSFIELD, Circuit Judge

HON. JACOB MISHLER, District Judge

>

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

wien

GAIU LOCAL 13-B, GRAPHIC ARTS INTERNATIONAL UNION,

Respondent.

_—

A application for an enforcement of an order of the Na-

tional Labor Relations Board.

This cause came to be heard on a certified list of items

comprising the record of the National Labor Relations Board

and was argued by counsel,

UPON CONSIDERATION THEREOF, it is hereby ordered, ad-

judged and decreed that the application for enforcement of

said order be and it hereby is granted in accordance with the

opinion of this court with costs to be taxed against the

respondent.

IT Is FURTHER ORDERED that the respondents’ motion to

remand the proceedings to the National Labor Relations Board

be and it hereby is DENIED.

A. Daniel Fusaro, Clerk

EDWARD J. GUARDARO

by Edward J. Guardaro,

Deputy Clerk

2la

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 3—CB—3304

—>

GAIU LOCAL 13-B, GRAPHIC ARTS INTERNATIONAL UNION

(Western Publishing Co., Inc.)

and

ROBERT GREENE, an Individual

>

DECISION AND ORDER

On February 19, 1980, Administrative Law Judge George

Norman issued the attached Decision in this proceeding.

Thereafter, the General Counsel filed exceptions and a sup-

porting brief, and Respondent filed an answering brief in

opposition to the exceptions of the General Counsel.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Rela-

tions Board has delegated its authority in this proceeding to a

three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has decided

to affirm the rulings, findings, and conclusions of the Ad-

ministrative Law Judge only to the extent consistent herewith.

The Administrative Law Judge concluded that Respondent

did not restrain and coerce employees in violation of Section

8(b)(1MA) of the Act by instituting a ban prohibiting its

members from performing mandatory overtime work and by

attempting to enforce this ban through internal union charges,

fines, and lawsuits. The Administrative Law Judge found that,

22a

although the refusal of Respondent’s members to work any

mandatory overtime would normally be considered unpro-

tected as a recurring or intermittent partial strike, such activity

was protected in the circumstances of this case because it was

in response to the Employer’s alleged unfair labor practices.

The Administrative Law Judge concluded that the members

who complied with Respondent’s overtime ban could not

lawfully be disciplined by their Employer for engaging in such

protected activity and that therefore Respondent had not

restrained or coerced employees by disciplining its members

who had worked overtime in violation of the ban. Contrary to

the Administrative Law Judge and for the reasons set forth

below, we find that the refusal of Respondent’s members to

work mandatory overtime was, in the circumstances of this

case, an unprotected partial strike despite the alleged unfair

labor practices of the Employer, and thus Respondent violated

Section 8(b)(1)(A) of the Act by enforcing its overtime ban.

Background and Facts

Western Publishing Co., Inc.,' is engaged in the publishing

of books and related items at its various facilities in Missouri,

New York, and Wisconsin. The only facility involved in this

case is Western's Poughkeepsie, New York, plant, where Re-

spondent hias represented the janitors, the inplant material

handling equipment drivers, and the production and service

employees in the baling operation and in the Binderies, Receiv-

ing, Shipping, Sheeting, and Paper Handling Departments

since about 1952.

The following facts were stipulated by the parties at the

hearing. The most recent collective-bargaining agreement be-

tween Western and Respondent expired on May 16, 1978.’

Negotiations for a new contract began on April 7. About 40

bargaining sessions had been held by the time of the hearing on

September 28, 1979, but no new agreement had been reached.

1 Herein called Western.

2 All dates herein are in 1978, unless otherwise indicated.

23a

On July 14, Western gave |-day suspensions to 15 employees

because of their repeated refusals to perform mandatory over-

time work.’ On August 28, Respondent announced new “Work

Rules” which stated:

1. No overtime shall be »;urked by any member of Local

13-B Poughkeepsie G.A.1.U.

2. Established shift and starting times in effect August

28, 1978 shall not be changed.

3. Failure to comply with these rules and any disciplinary

action and/or discharge of any member of Local 13-B

for the observance of these work rules shall be consid-

ered an action taken against all of the members and

will be treated by the Local as a lock out.

By a letter dated August 30, Western notified its employees

that, “Effective immediately, all overtime is discontinued. This

action was taken in your best interests since it was reported to

us that employees were being threatened with fines should they

work any overtime.”*

By a letter dated October 17, Western notified its employees

that it intended to begin scheduling overtime again that

weekend because of the needs of one of its largest customers;

that although it had a legal right to discipline employees who

refused to work overtime, it did not intend to do so; but that it

did intend to accomplish the overtime work with nonunit

employees if necessary. On October 21 Western reinstated its

mandatory overtime policy, and after that time at least 17 unit

3 The suspensions are being held in abeyance by Western pending the

resolution of this case.

4 The complaint in this case originally alleged that before August 28

the practice at the Poughkeepsie plant was that individual employees decided

voluntarily whether or not to work overtime; however, it appears that this

allegation has been dropped, since the factual stipulation entered into by the

parties at the hearing refers consistently to Western's overtime policy as

“compulsory assigned paid overtime” and as “mandatory overtime” and

since no evidence was presented to indicate that acceptance of overtime

assignments was ever voluntary.

24a

employees who were: members of Respondent performed man-

datory paid overtime work as assigned.

On October 25, Respondent begun taking steps to discipline

these 17 members through internal union charges, fines, and

lawsuits in state court, because they had violated the overtime

ban.’ On October 25, Respondent also filed an unfair labor

practice charge against Western alleging that since April 1978

Western had failed to bargain in good faith with Respondent

by dealing directly with its employees, by attempting to bypass

Respondent as the bargaining representative of its employees,

and by entering negotiations with a fixed position which it

would not change during the course of bargaining.

By a letter dated December 7, Western notified Respondent

that, because negotiations had reached an impasse, effective

December 11 Western would implement its final contract offer,

but that “De to your continued threat of fines and discipline

against employees who work in excess of 36-1/4 hours, the

Company is not implementing the change to 37-1/2 hours per

week at this time.” On December 18, Respondent filed another

unfair labor practice charge against Western alleging that

Western had refused to meet and bargain with Respondent

since early October 1978 and had unilaterally implemented its

last offer on December 11 without a valid impasse in bargain-

ing.°

On January 3, 1979, Respondent issued a notice to its

members stating:

5 The documents included in the parties’ stipulation indicate that the

members involved were assessed a penalty of | day’s pay plus a $50 fine for

each day of overtime worked, plus attorneys’ fees for the state court action

to colicct the fines.

6 The record reveals that a complaint was issued against Western on

all of the above 8(a)(5) allegations and that the complaint against Western

was consolidated for hearing with the complaint in this case. However, on

September 26, 1979, the complaint against Western was severed from this

case based upon a settlement agreement between Western and the General

Counsel. The settlement agreement was approved unilaterally by the Re-

gional Director for Region 3 despite Respondent's failure to enter into the

settlement as the Charging Party.

25a

As of January 3, 1979, the work rules and overtime ban

implemented Agusut 28, 1978, will be lifted.

However, should the Company make any change in the

36-1/4 hours work week these rules will be re-imple-

mented immediately.

The Negotiating Committee

/s/ Tony Sosta.

By a letter dated January 5, 1979, Western notified its employ-

ees and Respondent that the Union’s notice of January 3,

1979, reflected no real change in the Union’s position, that

Western still intended to implement the 37-1/2-hour workweek

as soon as the Union ended its threats of fines and discipline,

and that the net result was that the Union’s overtime ban

remained in effect. After some discussion of this issue at a

negotiation meeting on January 16, 1979, Western stated that it

intended to implement the 37-1/2-hour workweek on January

22, 1979, and Respondent replied that the overtime ban was

back on.’ The record does not indicate whether Western ever

actually implemented the 37-1/2-hour workweek or whether

Respondent ever actually rescinded its January 3, 1979, notice

and informed its members that the overtime ban was back in

effect.

The Administrative Law Judge credited ihe uncontradicted

testimony of Phyllis Goodall, a unit employee and Respond-

ent’s recording secretary, who was the only witness at the

hearing in this case. Goodall testified that about 320 of

Respondent’s 490 members attended a special union meeting

held on August 28 to discuss the proposed overtime ban." She

testified that during this meeting the members spoke about the

same problems they had been complaining about at work and

7 The stipulated documents include the minutes of this meeting and of

a negotiation meeting on February 16, 1979. Th. minutes indicate that many

other issues were also discussed at these meetings, such as job classification,

wage rates, union security, holidays, and several specific fringe benefits.

8 The parties stipulated that there were about 500 employees in the

unit.

26a

at previous meetings during July and August, when they had

also discussed whether or not they should work overtime. She

stated that the members were upset about the way negotiations

were being dragged out and about the letters that Western was

sending to employees concerning the negotiations.’ She also

stated that employees asked “why we were working the com-

pany’s overtime when they. . . were doing different things to

the members.”” She testified that there was some mention of

imposing fines on anyone who broke the proposed overtime

ban, but that there was no discussion of the amount of the

fines until a later meeting. At this meeting, the members voted

220 for and 100 against imposing an overtime ban, effective

immediately.

Analysis

Section 8(b)(1)(A) of the Act makes it an unfair labor

practice for a union to “restrain or coerce . . . employees in

the exercise of the rights guaranteed in section 7: Provided,

That this paragraph shall not impair the right of a ‘!abor

organization to prescribe its own rules with respect to the

acquisition or retention of membership therein ... .” In

determining the legality of particular union rules under the

proviso to this section, the Supreme Court has historically held

that the internal enforcement of a properly adopted union rule

against voluntary union members by expulsion or a reasonable

fine is permissible, where the rule reflects a legitimate union

interest and frustrates no statutory labor policy."' In this case,

the union rule was properly adopted by a majority vote of the

members, there is no showing that membership in the Union

9 Respondent's first unfair labor practice charge against Western

specifically alleged that Western “has mounted a massive communications

campaign directly with its employees designed to circumvent the collective-

bargaining representative of its employees. . . .”

10 Goodall did not explain what “different things” Western was doing

to employees.

!1 = Scofield et al. v. N.L.R.B., 394 U.S, 423, 428-430 (1969).

27a

was involuntary, and the rule was enforced solely through the

internal method of union charges and fines collected by threat

of judicial action. Therefore, the questions to be answered are

whether the rule was invoked to promote a legitimate union

interest and whether the rule invades any overriding policy of

the labor laws.

It might be argued that the rule involved here was adopted in

furtherance of the Union’s legitimate interest in functioning as

an effective bargaining agent, regardless of whether it was

imposed merely as a bargaining tactic designed to put

economic pressure on Western during collective bargaining as

contended by the General Counsel or whether it was imposed

in response to Western’s alleged unfair labor practices as

contended by Respondent. However, the Supreme Court has

indicated that any union rule which frustrates a statutory labor

policy goes beyond the legitimate interests of a labor organiza-

tion.” The crucial inquiry is thus whether the Union’s over-

time ban violated any policy of the Act.

It is well established that a union violates Section 8(b)(1)(A)

of the Act if it disciplines members who refuse to engage in

unprotected activity which would subject them to lawful disci-

pline by their employer.” It is also clear that the repeated

refusal of employees to perform mandatory assigned overtime

work is unprotected by the Act because it constitutes a recur-

ring or intermittent partial strike.‘ There is no dispute in this

case that Respondent, by its promulgation of new “Work

Rules” on Aust 28, announced the intention of its members

to engage in such unprotected repeated refusals to work man-

12 Id. at 430; N.L.R.B. v. Industrial Union of Marine & Shipbuilding

Workers of America [United States Lines Co.], 391 U.S. 418, 424 (1968).

13. Insurance Workers International Union AFL-CIO, Local 60 (John

Hancock Mutual Life Insurance Company), 236 NLRB 440 (1978).

14 John S. Swift Company, Inc., 124 NLRB 394 (1959), enfd. 277 F.2d

641 (7th Cir. 1960); Honolulu Rapid Transit Company, Limited, 110 NLRB

1806 (1954). See also First National Bank of Omaha, 171 NLRB 1145,

1149-51 (1968), enfd. 413 F.2d 921 (8th Cir. 1969); J. RP Hamer Lumber

Company, Division of Gamble Brothers, Inc., 241 NLRB No. 100 (1979).

28a

datory overtime if assigned to do so. However, the Administra-

tive Law Judge concluded that the employees’ planned refusal

to work overtime was protected because it was in response to

the unfair labor practices Western had allegedly committed

during collective bargaining. We disagree."

We find that the employees voted to impose the overtime ban

sclely as a bargaining tactic, designed to put economic pressure

on Western and to force Western to make bargaining conces-

sions, rather than in response to any perceived unfair labor

practices." Accordingly, we regard the cases cited in footnote

14 as controlling and find it unnecessary to pass on the

question of whether a different result would obtain had the

employees been protesting unfair labor practices committed by

their employer. In coming to this conclusion as to the emloy-

ees’ motivation, we note that no charges were filed against

Western until almost 2 months after the overtime ban was

implemented, that there is no evidence of any discussion at the

August 28 union meeting characterizing Western’s actions as

unfair labor practices, that Respondent’s notice announcing

the overtime ban makes no reference to Western’s alleged

unfair labor practices, and that the meager evidence as to the

15 While it is unnecessary to our decision in this case, we note that even

under the Administrative Law Judge’s own rationale it must be shown that

the Employer actually committed unfair labor practices which the employees

were protesting. However, there has been no finding either in this case or in

any prior Board cases that Western has committed any unfair labor practices.

Rather, the Administrative Law Judge relied upon the mere fact that

Respondent had filed charges alleging that Western has committed unfair

labor practices, which Western later agreed to settle over Respondent's

objections. The Administrative Law Judge then precluded Respondent from

litigating the merits of its unfair labor practice charges against Western as

part of its affirmative defense. This was clearly incorrect.

16 _—iIn reaching this conclusion, we particularly rely on the fact that the

overtime here in question was mandatory and lawfully imposed. Cf. Excava-

tion-Construction, Inc., 248 NLRB No. 81 (1980); Gaska Tape, Inc., 241

NLRB No. 96 (1979), and Member Jenkins’ dissent in Prince Lithograph

Co., Inc.; 205 NLRB 110 (1973). We do not rely on Valley City Furniture,

110 NLRB _ 1589 (1954), 230 F.2d 947 (6th Cir. 1956), which we consider

incorrectly decided. See Excavation-Construction, supra, si. op. at p. 19.

29a

discussion at the August 28 union meeting indicates the em-

ployees were mainly concerned with Western’s failure to reach

an agreemcat with the Union quickly.

Therefore, we conclude that, notwithstanding the alleged

unfair labor practices of Western, Respondent’s overtime ban

constituted an unprotected partial strike and Respondent vio-

lated Section 8(b)(1)(A) by disciplining its members who

refused to engage in such unprotected activity.

Conclusions of Law

1. Western Publishing Co., Inc., is and has been at all times

material herein an employer engaged in commerce within the

meaning of Section 2(2), (6), and (7) of the Act.

2. Respondent GAIU Local 13-B, Graphic Arts Interna-

tional Union, is and has been at all times material herein a

labor organization within the meaning of Section 2(5) of the

Act.

3. By enforcing an overtime ban prohibiting its members

from performing mandatory assigned overtime work through

the imposition of internal union discipline upon Robert

Greene, Helen Tabone, Barbara Jones, Helen Lenehan, John

Hildebrand, Patricia Porter, Geraldine Aiello, Ardine Hall,

Bernard Lewis, Patricia Long, Richard Bennet, Marianne

LaForge, JoAnn Balastire, William Rowe, Pearl Ryan, Samuel

Cherry, and Bruce Bauer for their refusals to engage in an

unprotected recurring and intermittent partial strike, Respond-

ent has violated Section 8(b){1)(A) of the Act.

4. Respondent’s violations of Section 8(b)(1)(A) of the Act

are unfair labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in unfair labor

practices in violation of Section 8(b)(1)(A) of the Act, we shall

order that it cease and desist therefrom and take certaiz

affirmative action designed to effectuate the purposes of the

30a

Act. Specifically, as we have found that Respondent has

unlawfully disciplined and fined its members Robert Greene,

Helen Tabone, Barbara Jones, Helen Lenehan, John Hilde-

brand, Patricia Porter, Geraldine Aiello, Ardine Hall, Bernard

Lewis, Patricia Long, Richard Bennet, Marianne La Forge,

JoAnn Balastire, William Rowe, Pearl Ryan, Samuel Cherry,

and Bruce Bauer, we shall order that Respondent rescind the

disciplinary action taken against them and that it make them

whole for any losses they have suffered as a result of Respond-

ent’s unlawful conduct. In particular, we shall order Respond-

ent to refund to them any moneys held or collected on account

of the fines assessed against them, with interest thereon to be

computed in accordance with Florida Steel Corporation, 231

NLRB 651 (1977)."’

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board hereby

orders that the Respondent, GAIU Local 13-B, Graphic Arts

International Union, Hyde Park, New York, its officers,

agents, and representatives, shall:

1. Cease and desist from:

(a) Charging, trying, fining, prosecuting any lawsuits to

collect fines, or otherwise disciplining Robert Greene, Helen

Tabone, Barbara Jones, Helen Lenehan, John Hildebrand,

Patricia Porter, Geraldine Aiello, Ardine Hall, Bernard Lewis,

Patricia Long, Richard Bennet, Marianne LaForge, JoAnne

Balastire, William Rowe, Pearl Ryan, Samuel! Cherry, and

Bruce Bauer, or any of its members, for refusing to engage in

an unprotected recurring and intermittent partial strike.

(b) In any like or related manner restraining or coercing

employees in the exercise of the rights guaranteed them in

Section 7 of the Act.

_ 17 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).

3la

2. Take the following affirmative action designed to effec-

tuate the purposes of the Act:

(a) Rescind the disciplinary action taken against Robert

Greene, Helen Tabone, Barbara Jones, Helen Lenehan, John

Hildebrand, Patricia Porter, Geraldine Aiello, Ardine Hale,

Bernard Lewis, Patricia Long, Richard Bennet, Marianne

LaForge, JoAnn Balastire, William Rowe, Pearl Ryan, Samuel

Cherry, and Bruce Bauer for refusing to engage in an unpro-

tected recurring and intermittent partial strike, and expunge

from their records any reference to that discipline.

(b) Make Robert Greene, Helen Tabone, Barbara Jones,

Helen Lenehan, John Hildebrand, Patricia Porter, Geraldine

Aiello, Ardine Hale, Bernard Lewis, Patricia Long, Richard

Bennet, Marianne LaForge, JoAnn Balastire, William Rowe,

Pearl Ryan, Samuel Cherry, and Bruce Bauer whole for any

losses they have suffered as a result of the unlawful conduct, in

the manner set forth in “The Remedy” section of this Decision.

(c) Post at its offices and meeting halls copies of the at-

tached notice marked “Appendix.”" Copies of said notice, on

forms provided by the Regional Director for Region 3, after

being duly signed by Respondent’s authorized representative,

shall be posted by Respondent immediately upon receipt

thereof, and be maintained by it for 60 consecutive days

thereafter, in conspicuous places, including all places where

notices to members are customarily posted. Reasonable steps

shall be taken by Respondent to insure that said notices are not

altered, defaced, or covered by any other material.

(d) Sign and return to the Regional Director for Region 3

sufficient copies of the attached notice marked “Appendix”

for posting by Western Publishing Co., Inc., if willing, in

18 _—_ In the event that this is enforced by a Judgment of a United

States Court of Appeals, the in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read

“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

32a

conspicuous places, including all places where notices to em-

ployees are customarily posted.

(e) Notify the Regional Director for Region 3, in writing,

within 20 days from the date of this Order, what steps the

Respondent has taken to comply herewith.

Dated, Washington, D.C. September 30, 1980

/S/ JOHN H. FANNING

John H. Fanning, Chairman

/S8/ HOWARD JENKINS, JR.

Howard Jenkins, Jr., Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

+>

MEMBER PENELLO, concurring:

I agree with my colleagues that Respondent violated Section

8(b)(1)(A) by disciplining its members who refused to engage in

an unprotected partial strike; however, in reaching this result, I

find it unnecessary to disturb the Administrative Law Judge’s

conclusion that the employees were protesting Western’s al-

legedly illegal conduct. For, even assuming that the overtime

ban was instituted in response to actual unfair labor practices

committed by Western, | would conclude that such conduct by

Western would not privilege the employees to engage in what

would otherwise be a clearly unprotected partial strike.

In this regard, I rely on Valley City Furniture Company.”

There, the respondent employer refused to provide the union

with wage information, unilaterally increased employee work-

ing hours from 8 to 9 hours per day, and gave its negotiators

only limited authority. The union held a meeting at which the

employees decided:

19 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir. 1956).

33a

to cut out overtime until and unless the Company would

meet with [the Union] and bargain in good faith ...

[and] . . . to cut out overtime beginning on the following

day; that is ... to cease work at 3:30 instead of 4:30

{p.m.], the 3:30 period being the end of the eight hour

day.

The next day, the respondent was informed of the union’s

decision, and at 3:30 p.m. a number of employees walked off

the job.

Although the Board held that the respondent violated Sec-

tion 8(a)(5) by the acts described above, it found that inasmuch

as the employees had refused to work the overtime hours set by

the respondent and had intended to continue such tactics, their

conduct constituted an unprotected partial strike. The Board

further held that the unprotected nature of this activity was not

changed by the fact that the respondent had committed unfair

labor practices, stating:”

We find that the partial strike called by the Union from

its very inception was the sort of activity which, although

concerted, is not, as against the action taken by the

Respondent, entitled to the protection of the Act. The

vice in such a strike derives from two sources. First, the

Union sought to bring about a condition that would be

neither strike nor work. And, second, in doing so, the

Union in effect was attempting to dictate the terms and

conditions of employment. Were we to countenance such

a strike, we would be allowing a union to do what we

would not allow any employer to do, that is to unilaterally

determine conditions of employment. Such a result would

be foreign to the policy objectives of the Act. It is true, as

our dissenting colleagues state, that the Respondent uni-

laterally changed the hours of work. But that unlawful act

did not privilege the Union’s resort to the partial strike as

a self-help device, any more thar the Union would have

20 == Id. at 1594-95.

34a

been privileged to engage in a sitdown strike or slowdown

to protest the Respondent’s action."

14 We find no merit in the General Counsei’s argument that a

partial strike, otherwise unprotected, would gain the protection of the

Act by reason of its having stemmed from the Respondent's unfair

labor practices. We regard the case cited by the General Counsel

(Mastro Plastics Corp., 103 NLRB 511) as inapposite.

In the instant case, the Administrative Law »udge found that

Respondent instituted a ban on overtime as a reaction to and in

protest of Western’s allegedly unlawful refusal to bargain in

good faith and its allegedly unlawful written communications

to employees. However, even assuming that such conduct was

in fact violative of Section 8(a)(5), | conclude that under the

teachings of Valley City those “unlawful act{s] did not privilege

the Union’s resort to the partial strike.””

I recognize that the Board has found that where an employer

has, in violation of Section 8(a)(5), unilaterally instituted

changes in the hours of work, employee refusals to comply

therewith are protected and do not constitute a partial strike.”

But in those cases the employees’ conduct consisted of nothing

more than noncompliance with an unlawfully instituted rule

and there was no indication that the employees intended to

engage in a partial work stoppage to compel their employer to

take some action. In contrast, in Valley City, as indicated

above, the employees were not solely protesting the respond-

ent’s unilateral increase in working hours, but were also

protesting its refusal to meet with the union and bargain in

good faith. Significantly, the refusal to work overtime was the

method chosen by the employees to compel the respondent to

change its bargaining tactics. Thus, unlike the situation in the

cases described above, the employees in Valley City were not

merely refusing to comply with an unlawfully instituted rule.

21 Id. at 1595.

22 Gaska Tape, Inc., 241 NLRB No. 96 (1979); Anderson Plumbing

and Heating Company, 203 NLRB 18 (1973).

35a

Similarly, in the instant case, even accepting the Administrative

Law Judge’s characterization of the employees’ motivation,

i.e., that they were reacting to alleged unfair labor practices

committed by Western, it is clear to me that they, like the

employees in Valley City, were attempting to compel their

employer to change its bargaining tactics. In my view, it is

obvious that this is not a case where employees were merely

refusing to comply with unilaterally instituted changes made by

their employer with regard to working hours, because no such

changes had in fact occurred at the time the overtime ban was

Finally, 1 disagree with the Administrative Law Judge’s

reliance on the cases cited in support of his conclusion that the

employees’ partial strike was protected.” I specifically take

exception to the Administrative Law Judge’s statement that

23 ~—sit:s« did’:« not participate in Blades Manufacturing Corporation, \44

NLRB 561, 564-567 (1973), enforcement denied 433 F.2d 998 (8th Cir. 1965),

or in Schneider Mills, Inc., 164 NLRB 879, 884, fn. 17 (1967), and I regard

those cases as of doubtful precedential value inasr-uch as they did not discuss

the application of Valley City, supra. Furthermore, | find Bledes to be

distinguishable since the concerted activities there were treated as a series of

single concerted refusals to work, each in protest of a separate unlawful act

by the employer, rather than as recurring and intermittent partial strikes. In

Schneider Mills, the Administrative Law Judge found certain partial strike

activity to be protected as a response to employer unfair labor practices, but

the Board added its own rationale for finding the violations in issue and did

not adopt the Administrative Law Judge’s reasoning on that point. To the

extent that Blades and Schneider Mills can be read as being inconsistent with

Valley City, 1 would not follow them.

The Administrative Law Judge also cited N.L.R.B. v. Thayer Company,

213 F.2d 748 (ist Cir. 1954), cert. denied 348 U.S. 883 (1955), which holds

' that where collective action is precipitated by an employer’s unfair labor

practice, a finding that the employees’ conduct is not protected under Sec. 7

does not, ipso facto, preclude the Board from ordering the employer to

reinstate the employees if such an order would effectuate the purposes of the

Act. However, I conclude that while it may effectuate the purposes of the Act

to require the employer to correct its own unfair labor practice by reinstating

employees who were discharged for engaging in some less egregious form of

unprotected activity, this balancing of interests does not mean that the union

can then lawfully discipline its members for refusing to engage in such

unprotected activity.

36a

Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956),

stands for the general proposition that “when employees

engage in a strike action in response to employer unfair labor

practices, they are treated differently from employees who act

solely by furtherance of economic demands.” In Arlan’s De-

partment Store of Michigan Inc., 133 NLRB 802 (1961),” the

Board eschewed a broad interpretation of Mastro Plastics. The

Board reasoned that the language used by the Court and its

rationale could not be divorced frem the facts of the case and

the argument presented by the parties. The Board held in

Arlan’s that employees are privileged to engage in a strike in

violation of a no-strike clause in their collective-bargaining

agreement, \ hich would otherwise by unprotected, only where

they are protesting “flagrant” or “serious” unfair labor prac-

tices by their employer. The Board indicated that where the

employer is engaging in conduct attacking the very existence of

the collective-bargaining representative it is materially breach-

ing its obligations under the contract and therefore the union

should be excused from performance of the no-strike clause. In

the absence of such a clause, a total strike is, of course, a

protected concerted activity. However, the same cannot be said

of the conduct in ivsue here, for repeated refusals to work

mandatory overtime vonstitute unprotected activity even in the

absence of a no-strike provision. Therefore, this is not a

situation where the unfair labor practices of an «mployer can

be viewed as eliminating the only circumstance which renders

the employees’ activity unprotected. Accordingly, in my view,

the Mastro Plastics line of case law does not support the result

reached by the Administrative Law Judge.

Dated, Washington, D.C. September 30, 1980

/S/ JOHN A. PENELLO

John A. Penello, Member

NATIONAL LABOR RELATIONS BOARD

24 Arlan’s was recently reaffirmed by the Board in The Dow Chemical

Company, 244 NLRB No. 129 (1979).

37a

APPENDIX

NOTICE TO EMPLOYEES AND MEMBERS

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

After a hearing at which all sides had an opportunity to

present evidence and state their positions, the National Labor

Relations Board found that we have violated the National

Labor Relations Act, as amended, and has ordered us to post

this notice.

WE WILL NOT charge, try, fine, prosecute any law-

suits to collect fines, or otherwise discipline Robert

Greene, Helen Tabone, Barbara Jones, Helen Lenehan,

John Hildebrand, Patricia Porter, Geraldine Aiello, Ar-

dine Hall, Bernard Lewis, Patricia Long, Richard Bennet,

Marianne LaForge, JoAnn Balastire, William Rowe,

Pearl Ryan, Samuel Cherry, and Bruce Bauer, or any of

our members, for refusing to engage in an unprotected

recurring and intermittent partial strike.

WE WILL NOT in any like or related manner restrain

or coerce employees in the exercise of the rights guaran-

teed them by Section 7 of the Act.

WE WILL rescind the disciplinary action taken against

Robert Greene, Helen Tabone, Barbara Jones, Helen

Lenehan, John Hildebrand, Patricia Porter, Geraldine

Aiello, Ardine Hall, Bernard Lewis, Patricia Long, Rich-

ard Bennet, Marianne LaForge, JoAnn Balastire, William

Rowe, Pearl Ryan, Samuel Cherry, and Bruce Bauer for

refusing to engage in an unprotected recurring and inter.

mittent partial strike, and WE WILL expunge from their

records any reference to that discipline.

38a

WE WILL make Robert Greene, Helen Tabone, Bar-

bara Jones, Helen Lenehan, John Hildebrand, Patricia

Porter, Geraldine Aiello, Ardine Hall, Bernard Lewis,

Patricia Long, Richard Bennet, Marianne LaForge,

JoAnn Balastire, William Rowe, Pearl Ryan, Samuel

Cherry, and Bruce Bauer whole for any losses they have

suffered as a result of our unlawful conduct. In particu-

lar, WE WILL refund to them any moneys held or

collected on account of the fines assessed against them in

connection with the aforesaid disciplinary action, with

interest.

GAIU LOCAL 13-B, GRAPHIC ARTS

INTERNATIONAL. UNION

(Labor Organization)

Dated By

(Title) (Representative)

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, Federal Building, Room 3614, 26 Federal

. saza, New York, New York 10007, Telephone 716-846-4951.

39a

APPENDIX D

29 U.S.C. § 141

(a) This chapter may be cited as the “Labor Management

Relations Act, 1947”.

(b)* * *

It is the purpose and policy of this chapter, in order to

promote the full flow of comi. 2rce, to prescribe the legitimate

rights of both employees and employers in their relations

affecting commerce, to provide orderly and peaceful proce-

dures for preventing the interference by either with the legiti-

mate rights of the other, to protect the rights of individual

employees in their relations with labor organizations whose

activities affect commerce, to define and proscribe practices on

the part of labor and management which affect commerce and

are inimical to the general welfare, and to protect the rights of

the public in connection with labor disputes affecting com-

merce.

29 U.S.C. § 142

When used in this chapter—

(2) The term “strike” includes any strike or other concerted

stoppage of work by employees (including a stoppage by

reason of the expiration of a coilective-bargaining agreement)

and any concerted slowdown or other concerted interruption

of operations by employees.

29 U.S.C. § 151

It is declared to be the policy of the United States to

eliminate the causes of certain substantial obstructions to the

free flow of commerce and to mitigate and eliminate these

obstructions when they have occurred by encouraging the

40a

practice and procedure of collective bargaining and by protect-

ing the exercise by workers of full freedom of association,

self-organization, and designation of representatives of their

own choosing, for the purpose of negotiating the terms and

conditions of their employment or other mutual aid or protec-

tion.

29 U.S.C. § 401

(a) The Congress finds that, in the public interest, it con-

tinues to be the responsibility of the Federal Government to

protect employees’ rights to organize, choose their own repre-

sentatives, bargain collectively, and otherwise engage in con-

certed activities for their mutual aid or protection; that the

relations between employers and labor organizations and the

millions of workers they represent have a substantial impact on

the commerce of the Nation; and that in order to accomplish

the objective of a free flow of commerce it is essential that

labor organizations, employers, and their officials adhere to

the highest standards of responsibility and ethical conduct in

administering the affairs of their organizations, particularly as

they affect labor-management relations.

(c) The Congress, therefore, further finds and decleres that

the enactment of this chapter is necessary to eliminate or

prevent improper practices on the part of labor organizations,

employers, labor relations consultants, and their officers and

representatives which distort and defeat the policies of the

Labor Management Relations Act, 1947, as amended, and the

Railway Labor Act, as amended, and have the tendency or

necessary effect of burdening or obstructing commerce by (1)

impairing the efficiency, safety, or operation of the insirumen-

talities of commerce; (2) occurring in the current of commerce;

(3) materially affecting, restraining, or controlling the flow of

raw materials or manufactured or processed goods into or

from the channels of commerce, or the prices of such materials

or goods in commerce; or (4) causing diminution of employ-

4la

ment and wages in such volume as substantially to impair or

disrupt the market for goods flowing into or from the channels

of commerce.

29 U.S.C. 411

(a)(2) Freedom of speech and assembly.—Every member of

any labor organization shall have the right to meet and assem-

ble freely with other members; and to express any views,

arguments, or opinions; and to express at n.eetings of the labor

organization his views, upon candidates in an election of the

labor organization or upon any business properly before the

meeting, subject to the organization’s established and reason-

able rules pertaining to the conduct of meetings: Provided,

That noth. ug herein shall be construed to impair the right of a

labor organization to adopt and enforce reasonable rules as to

the responsibility of every member toward the organization as

an institution and to his refraining from conduct that would

interfere with its performance of its legal or contractual obliga-

tions.

29 U.S.C. § 529

It shall be unlawful for any labor organization, or any

officer, agent, shop steward, or other representative of a labor

organization, or any employee thereof to fine, suspend, expel,

or otherwise discipline any of its members for exercising any

right to which he is entitled under the provisions of this

chapier. The provisions of section 412 of this title shall be

applicable in the enforcement of this section.