Denver Stereotypers and Electrotypers Union, Local No. 13 v. National Labor Relations Board, Paul Simonette, Intervenor

623 F.2d 134, 104 L.R.R.M. (BNA) 2656, 1980 U.S. App. LEXIS 16860
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 9, 1980
Docket78-1019
StatusPublished
Cited by4 cases

This text of 623 F.2d 134 (Denver Stereotypers and Electrotypers Union, Local No. 13 v. National Labor Relations Board, Paul Simonette, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denver Stereotypers and Electrotypers Union, Local No. 13 v. National Labor Relations Board, Paul Simonette, Intervenor, 623 F.2d 134, 104 L.R.R.M. (BNA) 2656, 1980 U.S. App. LEXIS 16860 (10th Cir. 1980).

Opinions

LOGAN, Circuit Judge.

The Denver Stereotypers and Electrotyp-ers Union, Local No. 13 (union or Local 13) appeals from a decision and order of the National Labor Relations Board (NLRB or Board), which ruled that the union committed an unfair labor practice, in violation of section 8(b)(1)(A) of the National Labor Relations Act, by breaching its duty to fairly represent Paul Simonette, the charging party. 231 N.L.R.B. 678 (1977). The Board has filed a cross-application for enforcement of the order.

In 1973 the union negotiated a multiem-ployer collective bargaining agreement covering stereotypers of The Denver Post, Inc. (Post) and the Denver Publishing Company (News), which publishes the Rocky Mountain News. The union was concerned that [135]*135technological changes could cause its members to lose their jobs as stereotypers. The parties agreed that they would negotiate the method of attrition and the employers would have the right to assign such stereo-typers to other work. This agreement covered only regular situation holders (hereinafter referred to as full-time stereotypers) employed by the Post or the News as of February 26, 1971.

In 1975 the News acquired a printing process that did not require stereotypers and therefore discontinued its stereotyping department. On March 28, 1975, Simo-nette, having been employed by the News as a full-time stereotyper covered by the agreement, was assigned to a position in the street circulation department. Simonette then applied for membership in the Denver Newspaper Guild, which represented employees in that department, but he retained his membership in Local 13. On July 31, 1975, Simonette was discharged because pri- or physical injuries impaired his ability to do the street circulation work.

Simonette immediately contacted the Guild, but was told he had no recourse because he had not become a permanent employee in the street circulation department. On August 1, he apprised Paul Ca-volt, president of Local 13, of the situation and requested that he, Simonette, be considered a stereotyper substitute on sick leave for the Post, which was still employing substitute stereotypers as needed, in addition to regular full-time stereotypers. Cavolt said he would refer the request to the union’s hiring agent.

About August 15, Simonette informed Cavolt that he was now able to work and should be considered as a substitute stereo-typer available for employment. Cavolt told him to contact the hiring agent, but mentioned that Simonette’s priority might pose a problem that the union’s executive board would have to consider.

The union dispatches substitutes from a list consisting of stereotypers not holding regular situations. The order of seniority on this list is based upon the date the substitute first worked as a stereotyper within the union’s jurisdiction; this date is called a substitute’s town priority. Simo-nette’s town priority would have entitled him to the second highest position on the substitute list.

The executive board of the union met August 16 to discuss Simonette’s placement on the substitute list, and voted to put him at the bottom. According to Cavolt the decision was based on the following considerations: (1) the stereotyping trade was dying; (2) giving Simonette priority was not fair to other substitutes because he had taken and lost the job he was guaranteed by the attrition agreement and that job was not available to any other stereotyper; and (3) the executive board believed the local and international union constitutions did not directly speak to Simonette’s situation. When informed of the decision, Simonette was told the reason was his membership in the Guild.

The next week Simonette asked the president of the International to intercede; he refused, stating that he lacked the power to do so. Simonette then asked Dale Henry, vice-president and chairman of the board of the local union, to give him the reasons for the board’s decision in writing. Henry agreed, but never did so.

Simonette thereafter obtained a sufficient number of signatures on a petition to call a special membership meeting to consider his plight. The meeting was scheduled and announced by a written notice posted on a bulletin board at the Post, but Simonette was not personally notified of the meeting and did not attend. Because Simonette was absent, the meeting was adjourned without discussion of his problem. Henry then telephoned Simonette, requesting him to withdraw the petition for a special meeting. When Simonette refused, Henry stated that one of the persons who had signed the petition had agreed, at Henry’s request, to withdraw the signature.

On September 4 the local union executive board requested advice from the president of the International concerning this situation. The letter mentioned that the local board “felt that since he had another job [136]*136and was in another Union he had relinquished his town priority.” The president of the International, by letter dated September 9, responded that he could not make a ruling on the subject at that stage. On September 17, a regularly scheduled union membership meeting was held. After the executive board explained the reasons for its decision, including Simonette’s membership in the Guild, and after debate among the members, the membership voted to sustain the board’s decision.

Simonette thereafter filed a charge against the union with the NLRB. After an evidentiary hearing, Administrative Law Judge Earldean V. S. Robbins concluded that the union had violated section 8(b)(1)(A) because its decision to place Si-monette at the bottom of the substitute list was tainted by considerations of dual unionism. The Board, however, overturned this finding because dual unionism was not alleged in the complaint and the issue was not fully litigated; the union had therefore been deprived of due process. The Board nevertheless concluded that the union had breached its duty of fair representation in violation of section 8(b)(1)(A) because the union’s “placement of Simonette at the bottom of the substitute list rather than in accordance with his town priority was contrary to the express language of Art. XV, Sec. 4, of its local constitution and in derogation of his clear contractual right under the collective-bargaining agreement.” 231 N.L.R.B. at 681. The Board also found, as had the administrative law judge, that the union’s “failure to notify Simonette of the special membership meeting, its attempt to pressure him into withdrawing his request to schedule another meeting, and its failure subsequently to schedule such a meeting was indicative of [the union’s] bad faith” in placing Simonette at the bottom of the substitute list. Id. The union was ordered to cease and desist from the unfair labor practice, to make Paul Simonette whole for any loss of wages or other benefits resulting from the practice, and to post an appropriate notice.

The union’s petition in this Court raises several issues, including the Board’s jurisdiction over an employee’s complaint of breach of the duty of fair representation, exhaustion of internal union remedies, and a union’s duty to represent an employee who is not a member of the bargaining unit. Because we conclude that the Board’s decision is not sufficiently supported by the record, we do not address the union’s other contentions and express no opinion on their merits. For purposes of disposing of this appeal, we assume the Board had jurisdiction.

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623 F.2d 134, 104 L.R.R.M. (BNA) 2656, 1980 U.S. App. LEXIS 16860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denver-stereotypers-and-electrotypers-union-local-no-13-v-national-labor-ca10-1980.