A. H. Belo Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1987

285 N.L.R.B. 807 (N.L.R.B. 1987)

A. H. BELO CORP.
Dallas Morning News, a Division of A. H. Belo Cor-
poration and Dallas Typographical Union, Local
No, 173. Cases 16-CA-9356 and 16-CA-9488
16 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 23 September 1981 Administrative Law
Judge David L. Evans issued the attached decision.
Thereafter, the Respondent filed exceptions and a
supporting brief, the Union filed cross-exceptions
and a brief in response to the Respondent's excep-
tions, and the General Counsel filed a brief in sup-
port of the judge's decision. Thereafter, the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The " Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.2_
1. The judge found, inter alia, that the Respond-
ent violated Section 8(a)(5) and (1) when it refused
the Union's request, made by letter on 14 April
1980, to arbitrate a class of grievances concerning
the layoffs of certain unit employees. The Re-
spondent has excepted and, for the following rea-
sons , we reverse this finding.
In Indiana & Michigan Electric Co., 284 NLRB
53 (1987), we reaffirmed the line of Board prece-
dent holding that a single refusal to arbitrate, with-
out more, may constitute a breach of contract, but
it does not rise to the level of a violation of Section
8(a)(5) of the Act. 284 NLRB 54 fn. 7. According
to the record evidence in this case, the Union's
only request to arbitrate within the cognizable
10(b) period was made in a letter dated 14 April
1980.3 Thus, regardless whether the judge was cor-
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
2 We have modified the judge 's recommended Order to include the
narrow injunctive language he inadvertently omitted
2 Two grievances had been rebuffed in February and March, prior to
the 10(b) period There was no attempt by the Union to press those
grievances further at that time The General Counsel also alleged that the
Respondent had, within the 10 (b) period , refused to process or arbitrate
certain other grievances (the Burris grievances), but the judge found no
evidence that those grievances had ever been presented to management.
No exception was taken to this conclusion
807'
rcct in concluding that a collective-bargaining
agreement was then in effect, the refusal of the 14
April demand did not in itself violate Section
8(a)(5).
Of course, we have held in Indiana & Michigan
Electric, supra, that an employer may violate Sec-
tion 8(a)(5) even during the period after the collec-
tive-bargaining agreement has expired if he makes a
statement indicating a blanket refusal to arbitrate
any grievance of any kind-whether or not the
grievance would "arise under" the expired agree-
ment within the meaning of the Supreme Court's
decision in Nolde Bros v. Bakery Workers Local
358, 430 U.S. 243 (1977). The evidence here of the
Respondent's refusal to arbitrate is ambiguous inso-
far as the issue of an undifferentiated blanket refus-
al is concerned. A letter from the Respondent,
dated 23 April 1980, which refused the Union's re-
quest, simply, refers to the Union's 14 April letter
to the Federal Mediation and Conciliation Service
and states that the 14 April letter has "no basis"
and that the Respondent therefore considers the
letter "to be of no force or effect." The Respond-
ent's letter does not identify reasons for the "no
basis" assertion and does not refer to grievance or
arbitration requests other than the Union's letter.
The Union's attorney replied to the Respondent by
characterizing the latter's message as meaning "the
Company intends not to arbitrate our claim regard-
ing Case No. 80K-16920 under any circumstances"
(emphasis added).4 Although it is certainly appar-
ent that the Respondent believed that the expira-
tion of the 1976-1978 contract privileged its refus-
al, it is not at all clear that the Respondent took
this position without reference to the content of
the grievance. In its brief to the judge, the Re-
spondent acknowledged Nolde and argued that the
subject matter of the grievance over which the
Union sought arbitration on 14 April did not "arise
under" the expired contract within the meaning of
Nolde and that, indeed, the Union had specified no
breach of any particular contractual provision at
all. The evidence concerning the Respondent's
original reply to the Union's request for arbitration
of that grievance is not inconsistent with ' this posi-
tion. We thus cannot say that a preponderance of
the record evidence weighs in favor of finding the
kind of wholesale repudiation of the arbitration
procedure that we found in Indiana & Michigan
Electric.
4 Only the documents are in evidence The attorney who handled the
grievance for the Union did not testify.
285 NLRB No. 106
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall dismiss the allegation that
the Respondent violated Section 8(a)(5) and (1) of
the Act through a refusal to arbitrate grievances. 5
2. The judge also found that by instituting a sick-
pay plan that, excluded employees covered by col-
lective-bargaining agreements, the Respondent
committed a per se violation of Section 8(a)(1) of
the Act, i.e., that the mere institution of such a
plan violates the Act whether or not an employer
has done so out of any discriminatory motive. For
the reasons explained below, we disagree that the
mere institution of such a plan, without more, vio-
lates the Act and that, given the manner in which
the sick-pay matter was alleged in the complaint
and actually litigated, the institution of the plan in
this case was not shown to be an unfair labor prac-
tice. -
Paragraph 7(c) of the complaint alleges that "Re-
spondent, by its supervisor Walter Mullins, on or
about July 1 [1980], promulgated, maintained and
circulated a notice to employees eligible for the
Respondent's Sick Pay Plan and excluded `those
covered by a collective bargaining arrangement."'
As the judge noted, "Mullins testified that he had
been under directions for several years to draft a
written sick-pay plan for those who did not have
one" (JD slip op. at 8) (emphasis added). In further
unrebutted testimony, which the judge did not,
comment on, Mullins explained that a number of
the different nonunionized departments had had
sick-pay plans, but that some were unwritten and
the details of the plans varied. He drafted the plan,
Mullins testified, in order to provide a consistent
policy in all the departments in which the employ-
ees had sick leave benefits of one kind or another.
Mullins agreed that this was the plan referred to in
a memorandum, dated 20 August 1980 and ad-
dressed to the "Paperhandling Staff," which the
General Counsel put into evidence.6
5 Because we are dismissing this allegation, we find it unnecessary to
pass on the judge's finding concerning the appropriate unit.
6 The Union's composing room steward , Anna Gach, testified that she
had "found" a copy of this memorandum at her workplace, but it was
never established who left it there for her.-
The Union, as charging party, also sought to introduce an exhibit-
part of the July 1980 issue of an in-house organ published by the Re-
spondent and distributed to current and retired employees, among
others-that referred to the plan as a new written plan that was intended
to produce a "consistent" approach "among departments which provide
sickpay" but which had followed varying practices , some written and
some unwritten . The judge rejected the exhibit on the grounds of rel-
evancy (because counsel for the General Counsel conceded it was not the
notice referred to in the complaint) and on the ground that it was mcom-
plete The Union in its brief to the judge urged reconsideration of that
ruling, but the judge found no need to reconsider it in light of his find-
ings, discussed below, that the announcement of a sick-pay plan which
excluded bargaining unit employees was a per se violation on the basis of
undisputed facts
The judge concluded that the institution of the
written sick-pay plan constituted a per se violation
of Section 8(a)(1) of the Act, simply because any
such plan that "exclude[s] those represented by
unions or covered by collective-bargaining agree-
ments" violates the Act because it inherently dis-
courages union membership. He cited C. G. Conn,
Ltd., 197 NLRB 442 (1972), and Melville Confec-
tions v. NLRB, 327 F.2d 689, 691 (7th Cir. 1964),
for this proposition. We agree with the Respondent
that those cases are distinguishable,, and that the
finding of a violation solely on the basis relied on
by the judge is not mandated by Board law.7
As we recently held in Handleman Co., 283
NLRB 451, (1987), clauses in benefit plans that
automatically exclude employees in a collective-
bargaining unit violate the Act where they suggest
that employees will necessarily lose existing bene-
fits if they join a union and that coverage under
such plans could not be gained through collective
bargaining.8 In the present case, there is no ques-
tion of sick-pay benefits being taken away from
unit employees because they are represented. Un-
disputed testimony shows that nonunit employees
had enjoyed various sick-pay plans even prior to
the Respondent's announcement about the single
plan intended to make benefits consistent among
various departments and, although sick pay had
been a subject of negotiations between, the Re-
spondent and the Union, they had never entered
into contracts that provided a sick-pay plan. The
status quo, therefore, was that at least some of the
nonunit employees had sick-pay plans, and the unit
employees (who had been represented by the
Union since 1890) did not. It is not alleged that the
Respondent ever bargained in bad faith over sick
pay or adamantly insisted that it would never agree
to a sick-pay plan for bargaining unit employees.
So far as the record shows, the Union simply
valued other benefits more highly and traded off its
sick-pay proposals for benefits in other areas.9
Were the per se violation found by the judge to
stand, an employer would effectively be required
7 For the reasons stated by him in Spring City Knitting Co., 285 NLRB
428 (1987), Chairman Dotson would find nothing unlawful in the institu-
tion of the sick-pay plan.
8 Member Stephens also relies on his concurring and dissenting opinion
in Lynn Edwards Corp, 282 NLRB 52 (1986).
In both Melville Confections, supra, and C G. Conn, supra, on which
the judge relied, the circumstances were different from those that obtain
here. In Melville, the employer's statements about coverage in its existing
profit-sharing plan suggested that employees would automatically forfeit
that benefit if they voted in the pending representation election to be rep-
resented by a, union . Under these circumstances, _a violation without inde-
pendent proof of animus was found In CG. Conn, the respondent, a suc-
cessor employer who was, unlawfully refusing to recognize the employ-
ees' union, distributed a booklet which stated that employees would auto-
matically cease, to be eligible for the plan if ever their salary and wages
were determined through collective bargaining
A. H. BELO CORP.
to grant its unionized employees any benefit that
the nonunit employees possessed, or at least would
not be able to provide accurate descriptions of the
details and scope of all its existing employee bene-
fits when nonunit employees were the beneficiaries
of any plan in which the unit employees were not
included. Yet, as the Respondent points out to us, a
unilateral grant of new benefits to unit employees
would itself be a violation of Section 8(a)(5) of the
Act. Although the Respondent could lawfully have
implemented the nonunit employees' plan for the
unit employees as well if it had offered this and se-
cured the Union's permission in advance (or bar-
gained to impasse on the matter), we are reluctant
to hold that it was required to offer precisely that
plan in its own negotiating proposal, particularly
where, as here, it is not alleged that the Respond-
ent bargained in bad faith on that subject.
Of course, if it had been alleged that the Re-
spondent had used its announcement of the sick-
pay plan as a device to defeat the Union by implic-
itly promising benefits to be accorded if the unit
employees voted to decertify the Union, we would
have a different case. But we do not find this to be
a violation that was either alleged or litigated.
Thus, although counsel for the General Counsel
put in some evidence or remarks allegedly made by
the Respondent's night-shift composing room fore-
man, Charles Wideman, concerning the allegedly
superior benefits enjoyed by nonunion employees,
he did not take issue with the judge's statement
during the hearing that the complaint merely al-
leged a "per se violation" by virtue of the distribu-
tion of a notice describing the sick-pay plan as lim-
ited to nonunit employees. Given the limited nature
of the complaint allegation and the statements by
the judge and counsel, we do not find that the Re-
spondent had fair notice that the allegation was in
any way predicated on discriminatory remarks by
the Respondent's supervisors. See, e.g., NLRB v.
Complas Industries, 714 F.2d 729 (7th Cir. 1983).10
As the judge stated in his opinion, "the Respond-
ent's intent to discriminate is not an issue" in this
case.
Accordingly, we shall dismiss the allegation that
the Respondent violated Section 8(a)(1) of the Act
by circulating a notice about a sick-pay plan ex-
cluding those covered by the collective-bargaining
agreement. 1 1
10 For the same reason, even if we believed that the judge had erred in
refusing to admit the Union's proffered exhibit consisting of a portion of
the July 1980 issue of the Respondent's in-house newsletter, we would
not find that it altered the nature of the violation alleged and litigated
I I The Respondent has filed a motion to dismiss the complaint, alleg-
ing that certain events subsequent to the issuance of the fudge's decision
render this proceeding moot. (Those events are the Respondent's execu-
tion of a collective-bargaining agreement with the Union and the filing of
certain lawsuits that might provide relief for the employees whose layoffs
809
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 3 and 5 and renum-
ber the remaining conclusions of law.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Dallas Morning News, a' Division of
A. H. Belo Corporation, Dallas, Texas, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order as modified.
1. Delete paragraphs 1(a) and (c) and reletter the
remaining paragraph.
2. Insert the following as paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
3. Delete paragraphs 2(a) and (c) and reletter the
remaining paragraphs.
4. Substitute the attached notice for that of the
administrative law judge.
were the subject of the April 14 request to arbitrate) The Union filed a
response contending that the motion should be denied. Because we have
dismissed the 8(a)(5) allegation in this case , the Respondent's motion is
itself moot msofar as it relates to that allegation With respect to the re-
maining 8(a)(3) and (1) violations which we have adopted, the Respond-
ent's mootness claim is without merit See NLRB rv. Raytheon Co, 398
U.S. 25 (1970) We therefore deny the motion.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we'violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT issue warning notices to employ-
ees ' because ,of their protected activities on behalf
of Dallas Typographical Union, Local No. 173,
International Typographical Union, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the warning notice issued to
Anna Gach on 7 August 1980 and expunge all
records thereof from our files.
DALLAS MORNING NEWS, A Divi-
SION OF A. H. BELO CORPORATION
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Richard C. Auslander, Esq.,,for the General Counsel.
Lee Smith, Esq. and Becky McCally, Esq. (Smith, Smith &
Florsheim), of Dallas, Texas, for the Respondent.
Sanford R. Denison, Esq. (Mullinax, Wells, Baab & Clout-
man, P.C.), of Dallas, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
proceeding was tried before me at Fort Worth, Texas,
on May 12, 13, and 14, 1981, pursuant to an order con-
solidating cases and complaint and notice of -hearing
issued on December 23, 1980, on charges in Cases 16-
CA-9356 and 16-CA-9433, which were filed and served
on September 8 and October 31, 1980 , respectively, by
Dallas Typographical Union , Local No. 173, Internation-
al Typographical Union , AFL-CIO (the Union). The
complaint alleges violations of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act), by
Dallas Morning News, a Division of A. H. Belo Corpo-
ration (the Respondent). The Respondent timely an-
swered these allegations denying commission of any
unfair labor practices . On consideration of the record,
my observations of the witnesses as they testified, and
the posttrial briefs' filed by all three parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material , Respondent, a Texas corporation
with an office and place of business in Dallas, Texas, has
been engaged in the publication , circulation, and distribu-
tion of the Dallas Morning News, a daily newspaper in
the Dallas, Texas area. During the 12 months preceding
issuance of the complaint , Respondent in the course and
conduct of its newspaper business derived gross income
in excess of $200,000 and held membership in or sub-
scribed to various interstate news services , including the
Associated Press, the United Press International, and the
New York Times News Service. It also published vari-
ous nationally syndicated features including those of the
Washington Star syndicate and Universal Press syndi-
cate . Further, it has advertised nationally sold products
and services including those of Delta Airlines, Inc., Sears
Roebuck & Company, and J. C. Penny & Company.
Therefore Respondent is, and has been at all times, mate-
rial, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The, Union is, and has been at all times material, _ a
labor organization within the meaning of Section 2(5) of
the Act.
1 Respondent has filed a "Motion for Leave to File Reply Brief' in
response to briefs filed by the General Counsel and Charging Party. The
General Counsel and Charging Party have filed oppositions to the
motion The Board's Rules and Regulations not provide for the filing
of reply briefs ; accordingly , Respondent's motion is denied and the reply
brief has not been considered.
III, ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Findings and Conclusions
In the operation of its newspaper , . Respondent has em-
ployed several supervisors including Walter Mullins,
manager of employee relations; Henry Abbott, superin-
tendent of the composing room ; and Charles Wideman,
night foreman in the composing area . The complaint al-
leges, Respondent admits, and I find that these individ-
uals are supervisors or agents within the meaning of Sec-
tion 2(11) or (13) of the Act.
The complaint alleges that the following unit descrip-
tion is a unit appropriate for bargaining within the mean-
ing of Section 9(b) of the Act:
All composing room employees , including hand
compositors, typesetting machine operators , makeup
men, bank men, proofpress operators , proofreaders,
machinists for typesetting machines , operators and
machinists on all devices which cast, or compose
type slugs, or film , operators of tape perforating
machines and recutter units for use in the compos-
ing or producing of type, operators of all photoset-
ting machines (such as Fotosetters, Photon, Lino-
film, Monophoto, Coxhead Liner, Filmotype, Typro
and Hadego) and employees engaged in proofing,
waxing and paste-makeup with reproduction proofs,
processing the product of phototypesetting ma-
chines, including development and waxing ; paste-
makeup of , all type, hand-lettered , illustrative,
border and decorative material constituting a part
of the copy; ruling, photoproofing; correction, alter-
ation and imposition of the past-makeup serving as
the completed copy for the camera used in the pla-
temaking process and excluding copyholders, por-
ters, metalmen and proof boys carrying proofs and
other matter to and from the composing room,
office clerical employees , guards and supervisors as
defined in the Act.
Respondent denies that this description constitutes a unit
appropriate for bargaining because many of the classifi-
cations listed there are no longer in existence or have
changed over the years . Respondent and the Union have
been bargaining since the 1890s. The unit description un-
doubtedly contains some archaic - classifications and those
classifications that are still in existence undoubtedly have
changed somewhat in duties through the years . Howev-
er, the parties have, in fact, operated under this unit de-
scription; specifically , they continued to bargain through
the date of the hearing on the premise that this unit de-
scription is one ' appropriate for the purposes of bargain-
ing. It is not necessary to describe the evolution of all
the job descriptions contained in this unit description,
even if the record contains such a history, which it does
not. Because the parties have bargained, and continue to
bargain, using this unit description, it is clear that it is a
unit appropriate for bargaining , whatever day-to -day in-
terpretation thereof has been given to the parties
throughout the years. Accordingly, I find that the unit
description is appropriate within Section 9(b) of the Act. I
A. H. BELO CORP. 811
B. Relevant Background--
The parties have had a collective-bargaining relation-
ship dating back to the 1890's. The last executed contract
was negotiated in 1977 and was effective for the period
October 3, 1976, through October 2, 1978. In August
1978 the parties began negotiating for a successor agree-
ment to the 1976-1978 contract. These negotiations con-
tinued through September 18, 1979, when the parties
reached a complete agreement, at least according to the
General Counsel and the Charging Party.2 The contract
was to be effective from September 30, 1979, through
September 30, 1980. Between the termination of the
1976-1978 contract and September 18, 1979, the parties
operated under the noneconomic terms of the 1976-1978
contract.3
The 1976-1978 contract contained the following termi-
nation language:
Section 2. WITNESSETH, That form and after
October 3, 1976, and through October 2, 1978, the
parties hereto agree to act as provided in the fol-
lowing sections of this agreement. No deviation
from the terms of this agreement shall be allowed
by any party hereto unless by joint agreement be-
tween contracting parties.
During the negotiations for a successor agreement, Re-
spondent proposed the following language to supplant
that termination provision:
Section 2 . This agreement shall be in effect through
the - day of _, -, whereon it shall ter-
minate in all respects and be of no further effect,
except to the extent, if any, an extension of this
agreement or any porition hereof is agreed to in
writing by the parties . .. .
It is undisputed that in the early afternoon of Septem-
ber 18, 1979, Respondent's chief negotiator, Walter Mul-
lins, agreed to a complete contract which action includ-
ed dropping Respondent's demand for the revised termi-
nation language and agreeing to continue the language
contained in the 1976-1978 contract. Within 2 hours
after the parties concluded making all such "tentative
agreements" the Union's chief negotiator, Kenneth Prai-
rie, notified his office in Colorado Springs, Colorado,
that an agreement had been reached and the membership
intended to vote on it on the following Sunday, Septem-
ber 23, 1979.4 About an hour after Prairie called the
2 The positions of the General Counsel and the Charging Party are the
same on all issues. For the sake of brevity, I shall refer to the proponents
of the complaint jointly as "the General Counsel."
3 This finding is based affirmatively on the testimony of Chapel Chair-
man (union steward) Anna Gach, and former standing grievance commit-
tee member George Burris about the handling of grievances during this
period , and the logical deduction from the fact that there is no evidence
that any problem or dispute between the parties arose during this period
that was met by the Respondent with a response that there was no con-
tract in effect.
4 This notification and requirement for permission to vote was neces-
sary because of the following provision of the International's Book of
Laws:
The officers , committees, and members are expressly prohibited from
submitting to a union for vote lore voting on any proposal of an em-
ployer or committee for a contract, either written, verbal, or im-
International, Mullirts called Prairie. According to Prai-
rie:
A. Mr. Mullins reached me by telephone several
hours afterwards . It was sometime within a half
hour, probably , or to an hour after I talked to our
office.
He said, "Ken, this is Walter ," and identified
himself. And he said , "I made a mistake." And I
said , "what do you mean you made a mistake,
Walt?"
He said , "Yeah, I got back and checked in my
notes and I made a mistake ." And l said , "Well,
what do you mean you made a mistake?"
Well he said , "I shouldn 't have agreed to Section
2." I said , "Walt, we have a collective bar-we
reached a tentative agreement . We reached an
agreement this afternoon at the bargaining table."
He said, "No, there's a problem in that . I made a
mistake." I said, "Walt,' it only emphasizes we did
reach an agreement on the basis that you made a
mistake. You wouldn't be using the terminology
you made a mistake if we hadn't concluded some-
thing."
I stated , [t]hat there was no point in having a
lengthy discussion on the telephone on the matter. I
would be in town and would be available the fol-
lowing day if he wanted to get together ... .
Although this testimony sounded as structured as it
reads, it was not denied by Mullins . Mullins testified that
when he left Prairie and got back to his office he discov-
ered that he had made a mistake for which he blames the
Union . Mullins testified that on September 18, as the par-
ties were going through the "final" version of what had
been agreed on, which version had been drafted by Re-
spondent, Prairie said that the draft should not have in-
cluded the Respondent 's proposal on, contract termina-
tion because the Union had never agreed on it. Accord-
ing to Mullins:
And then they said that a section that I showed
as having been tentatively agreed to had not been
tentatively agreed to.
And based on their representation to me, that it
had not been tentatively agreed to , ][ agreed to-I
agreed to include the language in the-in that sec-
tion as it had been in prior contract.
Further, according to Mullins:
A. As I was going back to the News, I ques-
tioned in my mind-I had on my proposal this
TOK on this language that's being questioned.
I went back to the News and I immediately went
through my minutes and I found very clearly that
that language had been tentatively okayed.
I immediately got on the phone; called Mr. Prai-
rie at the hotel where he was staying. It took about
plied, or any understanding whatsoever , which had not previously
been approved by the International president.
N
1
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two or two and a half hours before I could reach
him. -
And I told him that I had made a mistake. That I
should not have accepted their statements to me
that that language had not been okayed.
And that we should get back together, which we
did the next day.
The parties met on September 19. Mullins argued that
there was no agreement because he had made a mistake
in taking the Union's word for it that the Union never
agreed to Respondent's proposed revision of the contract
termination language. Prairie and the other union repre-
sentatives countered that an agreement had been reached
and they intended to submit it to a vote of the member-
ship on the following Sunday, which they did. After the
ratification vote, the agreement was submitted to Mullins
for his signature on September 23, 1979. Mullins refused
to sign the agreement.
Apparently, because this refusal was more than 6
months before the filing of the initial charge, this action
is not alleged to be an independent violation of Section
8(a)(5). However, it is the premise for other allegations
discussed here that depend on a finding that there was in
legal effect during the material times a contract binding
on the parties.
C. Alleged Supervisory Status and Activities of
Woodrow Wilson
Bargaining sessions continued after September 18,
1979, through the date of the hearing. During 1980, a de-
certification petition was circulated by one Woodrow
Wilson who was then titled "head proofreader." The
complaint alleges that Wilson is a supervisor within the
meaning of Section 2(11) of the Act and that his activity
in circulating the petition and certain remarks made by
him to employees constitute independent violations of
Section 8(a)(l) of the Act. Respondent denies Wilson
was at any time material a supervisor. The decertification
activity and the statements attributed to Wilson are not
denied. Therefore, the only real issue in these allegations
is the supervisory status of Wilson, or lack of it.
Wilson was called as a witness by the General Coun-
sel. He had retired as "head proofreader" on December
31, 1980. In December 1979 Respondent completed its
conversion from hot to cold type. This conversion elimi-
nated the need for all but two proofreaders, one on each
of Respondent's two shifts. Before the conversion,
Wilson had been classified as "foreman" and had up to
22 proofreaders reporting to him. After December 1979
Wilson was classified "head proofreader." He was sched-
uled to work as the second-shift proofreader, but there is
no evidence that the first-shift proofreader reported to
him for anything.
In his brief, the General Counsel lists the following
factors as evidence requiring a finding and conclusion
that Wilson was, in 1980, a supervisor:
1. On Respondent's "composing room schedule effec-
tive April 20, 1980," the reporting schedule for different
classifications such as "cam operator," "teletype add
room," "proofreader," etc., and "foreman" are listed. In
the group of 11 foremen are listed the various shifts in
department foremen, the last of which is "Wilson, W.,
Head Prfdr." The General Counsel relies on this listing
and the fact that the expired contract between the parties
-provides that a "foreman in charge" has the authority to
recommend discipline and discharge and direct the work
of other employees. There is no evidence that any of the
terms of this section of the expired contract were ever
applied to Wilson after December 1979.
2. Former employee Rudy Godfrey testified that at
some unspecified time he' had seen Wilson with a clip-
board checking people's names off. Wilson admitted that:
"The only time I carried a clipboard was after I would
go to work. I would check the absentees [sic] of those
three or four quality control people . . . . If they were
absent, I'd mark them absent." There is no evidence of
when this "checking" activity occurred, how frequently
it occurred, or what happened after the names were
checked off. There is no evidence that Wilson had any
authority of any kind over the quality control employees;
they did not report to him and he did not excuse any ab-
sences, at least according to this, record.
3. Employee Nicholas Schouten identified a copy of
the employer's disciplinary rules that covered the com-
posing room employees. There are 21 rules listed, but
above all the 'rest, unnumbered, in bold-face type, and
the following is underlined:
No One Is Allowed In This Room During Work-
ing Hours, Unless On Business.
THIS APPLIES TO EMPLOYEES NOT ON
DUTY AS WELL AS OUTSIDERS.
Employee Rudy Godfrey testified that employees who
appeared at work early went to the "show up room" and
remained until it was time to work. As discussed infra,
employee Anna Gach was disciplined in part for being
on the working floor outside her working hours. Howev-
er, it is undisputed that during 1980, Wilson sometimes
came to work early and went about the production floor
soliciting signatures on the decertification petition. He
also would go to the supervisor's office apparently just
to chat.
4. When Wilson was demoted from foreman to head
proofreader in December 1979, his weekly wage was not -
reduced. Thus, during the year 1980 Wilson made $17.50
per week more than "scale." Also Wilson received his
paycheck in a,sealed envelope when the rest of the com-
posing room employees received theirs without an enve-
lope.
5. Employee Schouten testified that Wilson was re-
sponsible for the work of the proofreader on the second
shift. He testified that he based this conclusion on his
belief that it was Wilson's job to inform the second-shift
proofreader, Gearhard May, if May made too many
errors. However, Schouten did not know whether
Wilson had ever so advised May. May was not called by
either party.
6. Finally, the General Counsel relies on the testimony
of employee Schouten that Wilson had superseniority
over other employees and on the occasion of a layoff
Wilson was given preference over employees Joe King
and Milton Maynard, both who had more seniority than
A. H. BELO CORP. 813
Wilson. There is no other support for this testimony.
Wilson testified that when the preference to King came
about he was still a foreman and was not subject to
layoff and this testimony was not rebuted by the General
Counsel. Wilson was not asked about Maynard.
The complaint alleges, and the General Counsel and
Charging Party argue in their respective briefs, that the
following conduct of Wilson is a violation of Section
8(a)(1) by Respondent:
(1) It is undisputed that Wilson circulated decertifica-
tion petitions during the month of July 1980,5
(2) Employee William (Hub) Hollon, a final inspector
in the composing room, testified that in mid-July he was
approached by Wilson and asked if he would sign the
decertification petition. When Hollon refused Wilson re-
plied: "I was a member of the Union . . . . They can't
do us any good. We can do better without,a union .. . .
because the company has things to offer us that evident-
ly negotiations couldn't bring about . . . ." Hollon fur-
ther testified that later in the same day he was again ap-
proached by Wilson who stated that Respondent had
made a $100-a-month pay increase offer during negotia-
tions and again asked Hollon to sign the decertification.
(3) Hollon further testified that in mid-September he
was approached by Wilson who told him that Anna
Gach had "knocked" the employees out of $100-a-month
raise. Hollon asked how Wilson knew, and Wilson re-
plied it was because Respondent had offered a raise but
that Gach had filed charges against Respondent and the
Respondent's lawyers had advised Respondent not to im-
plement any wage increase until the matter was settled.
(4) Employee Nicholas Schouten testified that once
when he was on duty about 4 p.m., Wilson, who was not
required to be in his work area at the time, approached
and asked him to sign the decertification petition.
The complaint alleges that by these actions of Wilson,
Respondent interrogated its employees, solicited them to
sign the decertification petition, warned employees that
selection of the Union would be futile, and blamed the
Union for lost wage increases, all in violation of Section
8(a)(1) _ 6
D. Institution of Discriminatory Sick Leave Plan
The complaint, paragraph 7(c), alleges that:
Respondent, by its supervisor Walter Mullins, on or
about July 1, promulgated, maintained and circulat-
ed a notice to employees eligible for the Respond-
s The General Counsel further contends in his brief that assuming that
Wilson is not a supervisor "it is safe to assume" that Supervisor Wideman
implanted the idea of circulating a decertification petition in the mind of
Wilson There is no evidence to this effect and the contention will not be
considered further
6 The complaint, par 7(b), further alleges that Mullins, about July 7
and August 15, 1980, "allowed a supervisor to circulate a petition on the
composing room floor in violation of an established and maintained work
rule " Presumably this is a reference to Wilson and his decertification pe-
tition; the General Counsel makes no mention of the allegation in his
brief, although Charging Party does claim that Wilson's activities were
done "with the knowledge and tacit approval of Mr. Mullins " There is
no evidence of such knowledge or tacit approval by Mullins, and I shall
recommend that this allegation of the complaint be dismissed.
ent's sick-pay plan and excluded those covered by a
collective bargaining agreement.
In its answer Respondent admits promulgation of a new
sick-pay plan that excluded those covered by a collec-
tive-bargaining agreement.' Mullins testified that the
plan was adopted, but not for any "discriminatory" pur-
pose. Mullins testified that he had been under directions
for several years to draft a written sick-pay plan for
those who did not have one. The purpose Mullins said
was to establish uniformity among various departments.
Mullins acknowledged that a sick-pay plan had been and
was one of the items about which Respondent had been
bargaining with the Union. There is no provision for sick
pay in the expired collective-bargaining agreement.
E. Alleged Decision to Change Wages by Wideman
As another 8(a)(1) allegation, the complaint, paragraph
7(f), alleges that, about September 11, by Respondent,
Wideman, "Unilaterally decided to change the wages of
its employees and announced such increase to the em-
ployees in the [composing room] unit ...."
In support of this allegation the General Counsel relies
on the testimony of employee Godfrey who testified that
on September 11, Wideman approached his work station
and put a 3-inch by 5-inch card on Godfrey's worktable
and said, "Well, we got you this raise we promised you,
an 8 percent raise . . . . You'll be making 324.24 dollars
.... You'll be making more money than the Times
Herald ... .8 Why don't you go over there and tell
your sidekick, Lee Daniels, Jr. that we're going to get
this raise." The General Counsel contends that this state-
ment by Wideman to Godfrey, which is not denied,9
constitutes an independent violation of Section 8(a)(1).
The General Counsel does not contend that any wage in-
crease was given at this time in violation of Section
8(a)(5) of the Act.
F. Alleged Discrimination Against Anna Gach
During 1980 Anna Gach was the chapel chairman, or
union steward, for the composing room employees. She
worked the afternoon shift under the supervision of
Night Foreman John Hendricks and composing room
Superintendent Henry Abbott. Gach testified that about
11:25 p.m., or about 5 minutes before her shift was to
terminate, on August, 6, she noticed two nonunit employ-
ees doing some work at ' a photocopying machine near
her work station. Gach immediately went to Hendricks
and asked what the men were doing. Gach credibly testi-
fied: "He told me that they were going to relieve us of
some of our chores." Gach then went to the employees
and asked them what their names were. Hendricks fol-
lowed her and, according to Gach: "Hendricks told me
7 In view of these findings it is unnecessary to pass on the motion con-
tained in Charging Party's brief that I reconsider a ruling made at trial
and receive in evidence certain incomplete copies of Respondent's an-
nouncement of the sick-pay plan in issue
8 This is a reference to Respondent's chief competitor, The Dallas
Times Herald.
9 Wideman did deny that he had the authority to make the decision to
grant wage increases
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not to bother-they were working and not to bother
them while they were working." Gach then went back
to her machine and cleared it off in preparation for leav-
ing work. Gach testified that right at quitting time
Abbott came out of his office and she engaged him in
conversation . According to Gach:
Q. Okay . . . what did you say to Abbott and
what did he say to you?
A. Well, I asked him about the men doing the
unit work, and then he told me that I was loafing
on the job and I should get back to work. And, I
told him that I was off work.
Then he told me that if I was off work that I had
no business being there . And then he-I told him, I
says, "I'm acting as Chapel Chairman."
And he said, "If you've got any grievance, file a
charge." He said, "Shut up and get out of here."
Q. Did you make any comment to him at that
time?
A. No, I just walked on off the floor.
Gach testified that in the past she had discussed griev-
ances with Abbott both before and after her shift.
The following day Gach was summoned to Abbott's
office where she was given a written notice that stated:
You are hereby warned about your actions of Aug.
6,1980 which consisted of loud boisterous shouting,
disrupting production , disturbing the peace and rou-
tine of the composing room constitute a violation of
office rules and are reasonable grounds for dis-
charge . A continuation of these actions and I will
discharge you.
According to Gach when Abbott handed her the warn-
ing notice, he stated : "Do you know what this means?
.... I mean it."
Abbott, who had been composing room superintendent
for about 15 years, was asked to relate his version of the
events of August 6 and testified:
Q. What, to your best recollection, was said at
that time?
A. I believe I was standing in front of the office
on or about that time, if this is the incident I'm
thinking about. And, we had some people from
Quality Control putting some-making copies of
some work. The had a machine that was down in
their department.
They were making some copies on a copying ma-
chine . And she came running over to me screaming,
"What are you doing; taking our work? [Yak,
yak,]"" ° you know , screaming.
About 40 people stopped working to listen 'to
her.
Q. How do you know there were 40 people?
A. Because I make the schedules out and I was
down there at the time.
Q. Did you see, every person turning that way?
10 The record , Tr. 232 , L. 12, is corrected.
A. I looked around over the room, yes, sir, and I
got a pretty good shot at it.
Q. Now, where were you standing at the time?
A. Right in front of my office where with that
view, you can look over the Composing Room and
look at the entire area.
Q. Okay.
A. And, I couldn't find a person that was work-
ing from where I stood and looked around.
Q. Okay.
So tell us about this conversation.
A. Well, it disturbed me and I found out what
she wanted-what she was disturbed about. And I
told [her] that we had a proper grievance channel
to go through-for her to go through the proper
channels if'she had complaint.
And, she kept screaming. And I asked her to
leave the floor.
Q. What was the screaming?
A. "You're taking my work. You can't do this."
You know, `yak, yak' this is not right. These
people, yak, yak. You're taking my work."
She kept repeating that part of it, "You're taking
my work." And it really didn't make sense because
I didn't have a chance to talk with her.
Q. How many-did that-what was the end
result of that-of that meeting?
A. The end result of the meeting was she left the
floor.
Abbott acknowledged that Gach had presented griev-
ances on both working and nonworking time in the past.
Neither Hendricks nor any of the employees who were
supposedly disturbed by the conduct attributed to Gach
by Abbott was called to testify.
G. Alleged Discrimination Against Burris and Elliott
and 8(a)(5) Allegations
1. Facts
Respondent has four classifications in its composing
room: page makeup, advertising pasteup, teletype opera-
tor, and Raycomp machine operator. Generally, pasteup
employees paste in advertisements the graphics that
cannot be placed by machine before the ads are sent to
page makeup. Page makeup employees arrange the ad-
vertisements on a page and fit news around the ads. The
classification of pasteup is something of an archaism;
most, but not all, advertisements components are now
prepared and placed by the operators of the Raycomp
machines in an automated process . Beginning in the fall
of 1979, when there were about 16 of them, Respondent
began laying off pasteup employees. In February 1980
this process was completed by the layoff of the four
most senior employees, including George J. Burris, who
had 25 years in that classification, and Samuel Elliott
who had 15.
Placed in evidence by the General Counsel was a copy
of an affidavit, with correspondence attached, signed by
Union Attorney Baab . Baab did not testify. In his affida-
vit Baab relates that on January 21, 1980, he complained
to Mullins about the layoff of Elliott, Burris, and others
A. H. BELO CORP. 815
in the pasteup classification and asked for a meeting. By
letter dated January 28 Mullins responded that he would
meet with Baab about the matter. On March 4, Baab
wrote Mullins that the Union was requesting a meeting
of the joint standing grievance committee "pursuant to
Section 4 of the current collective bargaining agreement
between the News and Local 173" regarding the layoff
of Burris, Elliott, and others in the pasteup classification.
On April 14, by letter of that date, i 1 Baab requested that
Federal Mediation name a panel of five arbitrators for
the parties for resolution of a grievance pursuant to "the
parties' collective bargaining agreement, a copy of which
is enclosed . . .." The affidavit does not reflect what
agreement was enclosed, but presumably it was the one
that Respondent refused to sign on September 24. On
April 23, Mullins wrote Baab:
This is in response to your letter to F.M.C.S.
dated April 14, a copy of which I received April
18.
I believe there is no basis for your letter request-
ing a panel of arbitrators, and I consider it to be no
force or effect insofar as The News is concerned.
By letter of April 28, Baab responded that the only rea-
sonable interpretation of Mullins' letter was that Re-
spondent intended not to arbitrate and asked for a letter
indicating a clarification within 5 days thereafter. Baab
closes: "If not, I will assume that you intend not to arbi-
trate the claim and will proceed according to federal
law." The record reflects no response by Mullins to this
letter from Baab.
When served notice of layoff, Burris and Elliott bid on
page makeup, jobs. They were given 1-week tryouts at
the end of which they were both declared "incompetent"
by Widesman. (Declaring them "incompetent" is not al-
leged to be a violation of the Act.) Being qualified for no
other classification, Burris and Elliott were then out of
work.
Burris and Elliott sought work by appearing each day
at Respondent's plant in hopes of being "hired off the
sub-board." The sub-board is a facility through which
employees are hired on a daily basis to substitute for em-
ployees in various classifications who do not appear for
work for one reason or another . Burris and Elliott were
largely unsuccessful in securing work from the sub-
board. Elliott never was hired unless Burris, who had se-
niority over him, was hired; and sometimes Burris got
hired and Elliott was not . Burris testified that in the op-
eration of the sub board by Wideman, all page makeup
employees were hired each night before either he or El-
liott were hired. He further testified that on many nights
in which he was denied work, he observed that page
makeup employees would be hired and immediately dis-
patched to ad pasteup. Gach testified that many nights in
which Burris and Elliott were not hired, several hours of
pasteup work were done by makeup employees. Burris
further testified, without contradiction, that all pasteup
I I This letter recites that a joint standing grievance committee meeting
had been held Although not so stated in the letter or Baab's affidavit,
this presumably was the meeting requested by Baab in his March 4 letter
to Mullins.
employees had -less seniority than he. Because Burris was
never classified as a page makeup employee, it is appar-
ent that he was referring to companywide seniority and
not seniority in a classification.
Received in evidence were 16 grievances filed with
the Union by Burris between February 28 and August 5,
1980. The grievances claimed 1 day's pay because less
senior employees were hired to and had done pasteup
work in preference to Burris. 12 Burris testified that he
presented the grievances to Union Steward Gach and
gave a copy to George Reid, the Union's secretary-treas-
urer. Gach testified that she presented Abbott with the
February 28 grievance. When asked what happened she
replied: "Well, I tried to discuss it and he tore the docu-
ment up . . . . He said he didn't recognize the ad paste-
up and we had no claim . He didn't recognize the con-
tract." Gach further testified that she handed Wideman
Burris' second grievance, dated March 11, 1980, and fur-
ther testified that: "I asked him if he wanted to discuss it
with me and he said, `no,' and he just took it."
Reid had no recollection of any of Burris' grievances
being presented to any management representative.
Bobby Fitch, who became president of the Union on
June 1, 1980, testified to attending two meetings with
Respondent after that date; one in July 1980 and another
in March 1981. Fitch admitted that at neither of these
meetings any of the representatives of the Union de-'
manded a response of any of the representatives of man-
agement to Burris ' grievances. Gach, testified that in one
meeting with the Respondent, the grievances were
brought up "not specifically, but generally" in com-
plaints by the Union about the operation of the sub-
board. When asked by whom the matter was brought up,
she replied, "I would imagine the president . .." This
groping testimony is not credible.
Mullins testified that in his capacity as personnel direc-
tor he never received any of the 14 grievances dated
May 7, 1980, through August 5, 1980. He was not asked
if he had any knowledge of the February 28 grievance,
which Abbott allegedly destroyed, and not asked if he
knew about the March 11 grievance presented to Wide-
man by Gach. Abbott denied ever seeing the May 7
through August 5 grievances, but was not asked if he
had ever seen the February 28 grievance and specifically
not asked if he had torn it up. Wideman was not asked
by Respondent if he had received the March 11 griev-
ance from Gach.
Wideman freely admitted that` in his operation of the
sub-board he gave preference in hiring to those qualified
to do makeup work. He further admitted that, when
there was less than a full shift of pasteup work to be
done, he used qualified makeup employees to do that
pasteup work rather than hiring pasteup employees. This
way, Wideman testified, he was able to utilize one em-
ployee to do two jobs rather than hire two employees,
one of which would be unused , but paid, for that part of
the shift in which there was no pasteup work.
12 If Elliott filed grievances over his failure to receive work through
the sub-board, there is no record of it.
4
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IV. CONCLUSIONS
A. Status of Wilson
The General Counsel advances several reasons for
concluding that Wilson was in 1980 a supervisor within
Section 2(11) of the Act.13 He was named on composing
room schedule as "foreman," and under the contracts
under which the parties have worked, foremen have pos-
sesssed 'several of the indicia of supervisory status; em-
ployee Godfrey testified, and Wilson admitted, that he
checked absences at some unspecified time; Wilson was
given access to the composing room floor before and
after his scheduled work hours, a privilege that only su-
pervisors had enjoyed; he was paid $17.50 per week
more than the other proofreaders and he received his
paycheck in an envelope whereas other employees got
theirs distributed openfaced; employee Schouten testified
that Wilson was "responsible" for the work of employee
May, the first-shift proofreader; and Wilson was given
superseniority at least on one layoff. Because Section
2(11) is phrased in the disjunctive, the possession of any
one of the enumerated authorities will compel the con-
clusion that an individual is a supervisor under the Act.
NLRB v. Ohio Power Co., 176 F.2d 385 (6th Cir. 1949).
Conversely, absence of all these authorities will compel a
conclusion that the individual is not a supervisor.
The testimony of employees Schouten and Godfrey
about Wilson was totally conclusionary and probative of
nothing. None of the other factors enumerated by the
General Counsel in support of his contention that Wilson
was a supervisor in 1980 is one of the authorities enumer-
ated by the statute. Although he was paid more, listed
separately, on work schedules, and given a few more
privileges than the other composing room employees,
there is no evidence that these emoluments were be-
stowed on him because of any responsibility superior to
that of other composing room employees,14 rather than
a reluctance by Respondents to strip from a long-service
employee (who had been a former supervisor) his former
pay and privileges. That is, a failure to withdraw from
Wilson all the peripheral privileges of a supervisor after
his demotion in December 1979 does not thereby perpet-
uate Wilson's former status as the supervisor under the
Act. The General Counsel cites four cases in his brief in
support of his argument that the privileges vested in
Wilson compelled a conclusion that he was a supervisor.
Although in each of these cases the Board did note the
privileges vested in the supervisors, it did so only sec-
ondarily; in each case it was found that the individuals in
issue possessed the authority responsibly to direct the
work of other employees, hire, discharge, or lay off
other employees, or possessed some other statutory indi-
'3 Sec 2(11) of the Act provides:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effective-
ly to recommend such action, if in connection with the foregoing the
exercise of such authority is, not of a merely routine or clerical
nature, but requires the use of independent judgment
14 Specifically, there is no evidence that after December 1979 Wilson
exercised any of the authorities of "foreman" under the contract legally
in effect, as I find here,. during 1980.
cia of a supervisor . None of these factors is here and I
find and conclude that the General Counsel has failed in
his burden of proving that Wilson , at any time material,
was a supervisor within Section 2(11) of'the Act. Ac-
cordingly , I shall recommend dismissal of all allegations
of Section 8(a)(1). premised on Wilson 's activities of cir-
culating a decertification petition, interrogating employ-
ees, warning employees that selection of the Union
would be futile , and blaming the Union for loss of a
wage increase.
B. Remark by Wideman to Godfrey
The complaint, paragraph 7(f) further alleges that by
Wideman's remark to Godfrey on September 11, 1980,
that "we got you this raise" Respondent "unilaterally de-
cided to change the wages of its employees and an-
nounced such increases" in violation of Section 8(a)(1).
The General Counsel does not mention this contention in
his brief. Charging Party mentions the incident, but
points to no basis for finding a violation as alleged. As I
can see none either, I shall recommend that this allega-
tion be dismissed.
C. Discriminatory Sick-Pay Plan
Respondent admits that on July 1, 1980, it instituted a
sick-pay plan that excluded employees covered by col-
lective-bargaining agreements. Although Mullins testified
it was not instituted for any discriminatory purpose, ,Re-
spondent's intent to discriminate is not an issue. The in-
stitution of benefit plans that exclude those represented
by unions or covered by collective-bargaining agree-
ments inherently interfere with the rights of employees
to organize and bargain collectively as such plans would,
by their existence alone, tend to discourage employees
who were not represented from becoming represented by
a labor organization. That is, they serve as a "wedge
against unionization" and constitute a per se violation of
the Act. C. G. Conn, Ltd., 197 NLRB 442 (1972); see
also Melville Confections v. NLRB, 327 F.2d 689, 691 (7th
Cir. 1964).
D. Discrimination Against Gach
Abbott admitted that Gach had been permitted, as
steward, to present grievances on working as well as
nonworking time. Therefore, whether, or what part of,
her activity fell before her 11:30 p.m. quitting time is ir-
relevant. The investigation and presentation of a griev-
ance is indisputedly protected concerted activity. There-
fore, the issue is whether, because of her conduct, Gach
lost the mantle of statutory protection.
Employees in the unit represented by the Union had
suffered substantial layoffs. When, on August 6, 1980,
Gach noticed nonunit employees performing work on
equipment regularly used by unit personnel, she asked
her immediate supervisor, Hendricks, what they were
doing. Hendricks told Gach "they were going to relieve
us of some of our chores." Therefore, Gach was told
that her suspicions were correct; Respondent was intend-
ing to use nonunit personnel for unit work as a practice
thereafter. It is not surprising that when_Gach was told
this in such brutally frank terms she became agitated and
A. H. BELO CORP 817
remained agitated after Abbott arrived on the scene.
There is no contention by Abbott that she cursed him or
abused him physically; all she did was scream and "yak"
at him. Although this may have distracted some workers
in the area, there is no credible evidence that it was
other than momentary. Indeed, Abbott did not testify
that he or any other supervisors had to tell the other em-
ployees to "get back to work."
Although her loud tone of voice may have been offen-
sive to Abbott, it did not remove from Gach the protec-
tion of the statute, and she could not lawfully have been
disciplined for that conduct.
Accordingly, I find and conclude that by issuance of
the warning notice to Gach on August 7, Respondent
violated Section 8(a)(1) and (3) of the Act.
E. Conclusions of Alleged Discrimination Against
Burris and Elliott and 8(a)(5) Allegations
1. Contentions
The complaint, paragraph 10, alleges that Respondent,
by Supervisor Charles Wideman: "Has consistently re-
fused to employ George Burris and Sam Elliott off the
`sub-board' until others with less seniority had been em-
ployed," in violation of Section 8(a)(3). The complaint,
paragraph 18, further alleges that in violation of Section
8(a)(5):
Since on or about May 7, and continuing to date,
Respondent by its supervisor Walter Mullins, unilat-
erally changed the working conditions of its em-
ployees by refusing to follow seniority concerning
employment of persons listed on the "sub-board."
The complaint, paragraph 20, further alleges that since
about May 7 and continuing to date, Respondent by Su-
pervisor Walter Mullins has refused and continues to
refuse to process grievances filed by employee George
Burris. 15
The theories of these allegations are as follows: the
General Counsel, contends that Section 8(a)(3) has been
violated because Respondent has refused to hire Burris
and Elliott because of their membership in and activities
on behalf of the Union. In support of this contention, the
General Counsel points out that both Burris and Elliott
were longstanding union members and Burris has served
on wage-negotiation and standing grievance committees
through the years. The General Counsel alludes to no
evidence of record that Respondent has harbored union
animus toward Burris, Elliott, or any other employee. He
also has not shown that Respondent's operation of the
sub-board has resulted in favoritism toward nonunion
employees.
The General Counsel's theory of violation of Section
8(a)(5) is more involved: First, the General Counsel con-
tends, as a premise for his primary theories, Respondent's
refusal to sign the 1978-1980 agreement was unlawful
and therefore there was legally in effect, since the week
of September 18, 1979, a contract that bound the parties.
is The February 28 and March 11 refusals are not alleged to be viola-
tive, probably because the charge referring to Burris , Case 16-CA-9488,
was filed more than 6 months after those refusals
The General Counsel then contends that because the
1979-1980 contract called for arbitration, Mullins' refusal
to go to arbitration on the grievance over the layoff of
the pasteup employees, including Burris and Elliott, as
requested pursuant to Baab's letter of April 14 to
F.M.C.S., was one violation of Section 8(a)(5), and a re-
fusal by Respondent to entertain and submit to arbitra-
tion of the grievances filed between May 7 and August 5
by Burris is another. The General Counsel alternatively
contends, even if there was no contract in effect, the
grievance procedure and arbitration provisions of the
1976-1978 contract survived its term and Respondent's
alleged refusal to entertain grievances and go to arbitra-
tion violate Section 8(a)(5). Finally, the General Counsel
contends that whether there was a contract in effect in
1980, Respondent unilaterally changed the working con-
ditions of the employees in the bargaining unit by failing
to follow a longstanding practice of following seniority
and assigning work to employees on the sub-board.
Respondent's defenses to these allegations are as fol-
lows: The General Counsel has failed to establish a
prima facie case of discrimination against Burris and El-
liott under Section 8(a)(3) because the General Counsel
has not shown any evidence of animus or evidence that
Respondent was motivated by an intent to discriminate
against Burris or Elliott because of their union member-
ship or having held union office. Alternatively, Respond-
ent contends that it has demonstrated that legitimate eco-
nomic considerations were the sole motivating factor for
its hiring makeup employees before hiring Burris and El-
liott who could only do pasteup work.
In answer to the 8(a)(5) allegations, Respondent first
contends that there was no contract in effect in 1980. Re-
spondent's theory is that Mullins made a unilateral mis-
take, but it is one in which was caused or induced by the
Union and, therefore, there was no meeting of the minds
and no contract that it could have been legally com-
pelled to sign during its effective period or can be en-
forced by it now. Respondent further contends that no
grievances regarding the refusal to hire Burns were pre-
sented to it; therefore it cannot be held to have refused
to process any such grievances, whether there was a
contract in existence. Respondent further contends that
assuming that grievances' were presented it had no duty
to proceed to arbitration on them because there was no
contract in effect in 1980. Finally, Respondent contends
that there is no evidence that it made any changes in
how employees were hired off the sub-board. That is,
Respondent contends that there was no evidence to rebut
Wideman's testimony that he had operated the sub-board
after February 1980 just as he did before.
2. Conclusions
The refusal to sign a completed agreement covering
the wages, hours, and terms and ,conditions of employ-
ment of employees is, of course, a per se violation of
Section 8(a)(5) of the Act.16 Although Respondent ac-
16 H. J Heinz Ca v. NLRB, 311 U S. 514 523-526 (1941).
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
knowledges that the refusal to process grievances filed
during the term of a contract and arbitrate them on
demand is likewise a violation, it contends that there
never was any such agreement because there was no
meeting of the minds on Section 2, the contract termina-
tion provision of the. 1978-1980 contract. Therefore, Re-
spondent contends, it was not a violation for it to have
refused to go to arbitration on the issue of layoff of the
pasteup employees,, or, to have refused to entertain the
Burris grievances. To have "hung up" negotiations for
over a year, after the parties had been negotiating for
over a year, the issue of contract termination language
must have been tremendously important to Respondent.
The effect of Mullins' testimony is that on this pivotal
issue he accepted, without question or reflection, Prai-
rie's word that the Union had never agreed to modify
the contract termination language of the 1976-1978 con-
tract; then he agreed to abandon this vital objective of
Respondent in the negotiations and simply agreed to
continue the language of the then-expired contract.
To believe Mullins' testimony is to believe that he is
not only stupid but irresponsible. It was quite obvious to
me that Mullins is neither, and I do not believe any of
his testimony that he was duped into agreeing to 'contin-
ue the- 1976-1978 language on contract termination.
What I do believe -is the testimony on behalf of the
Union that in the past the parties had operated under the
language of expired contracts until new ones were nego-
tiated. I further believe Respondent wanted to put a stop
to that practice. This is shown by Respondent's proposed
revision of the contract language itself; Respondent's
proposal would have required specific written agreement
for any practice under the expired contract to continue. I
believe Respondent, through Mullins, concocted the
"mistake" incident as a basis for the refusal to sign the
contract in a futile attempt to secure the effect of its
original proposal, termination of all obligations during
any hiatus period between contracts. But whatever its
motivation, Respondent did refuse to sign a completed
agreement on September 24, 1979. Therefore, its repudi-
ation of its obligation to submit to arbitration on the
Union's valid request of April 14, 1980, over the issue of
the layoff of the pasteup and other employees constitutes
a violation of Section 8(a)(5) of the Act.17
On the other hand, even though there was, in legal
effect, a contract, there is no evidence that the Burris
grievances filed after April 6, 1980, were ever presented
to management."" Gach's testimony that the grievances
were presented in a "general" way is incompetent to
prove that they were presented at all, and Respondent's
representatives credibly denied ever having seen them.
There having been no request to consider these griev-
ances, much less arbitrate them, there can have been no
violation of Section 8(a)(5) of the Act by Respondent's
17 Even if Mullins could be credited and there had been no meeting of
the minds, the ultimate result on this issue would be the same as there is
no indication in the 1976-1978 contract "that the parties had intended the
arbitration provisions to end with the contract's term" See American
Sink Top Co., 242 NLRB 408 (1979)
18 The rude rejection of the two Burns grievances filed before April 6
does not excuse the Union in failing to present those filed subsequently.
refusal to entertain them. Accordingly, I shall recom-
mend that this portion of the complaint be dismissed.
Respondent contends that the General Counsel has
failed to establish a prima facie case in regard to the alle-
gation that Burris and Elliott were refused employment
in violation of Section 8(a)(3) of the Act. I agree. Proof
of unlawful motivation, or animus, is sine qua non of
8(a)(3) cases. Borin Packing Co., 208 NLRB 280 (1974).
Here, there is no evidence Respondent was motivated in
any way by a desire to discriminate against Burris or El-
liott because of their membership or prior activities on
behalf of the Union.
Moreover, assuming that the General Counsel has es-
tablished a prima facie case in regard to the refusal to
employ Elliott and Burris, Respondent has established an
economic defense for its actions. Wideman testified that
it was more economical to use a page makeup employee
to do pasteup work that would take less than a shift to
complete. Wideman further testified that he had always
used page makeup employees in preference to pasteup
employees when operating the sub-board, and that his
conduct in regard to Burris and Elliott constituted no
change in its operation. There was no attempt to refute
this testimony and, I found Wideman credible.
Accordingly, I shall recommend dismissal of the alle-
gations that Burris and Elliott were refused employment
in violation of Section 8(a)(3) and that Respondent uni-
laterally changed the operation of the sub-board in viola-
tion of Section 8(a)(5).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section. III
above, occurring in connection with the Respondent's
operations described in section I above, had a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.'
3. Respondent violated Section 8(a)(1) of the Act by
establishing and maintaining a sick-pay plan which ex-
cludes coverage of employees if they are covered by a
collective-bargaining agreement.
4. By issuing a warning notice to employee Anna
Gach on August 7, 1980, because of her protected activi-
ties on behalf of the Union, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
5. By refusing, since about April 14, 1980, to arbitrate
grievances filed pursuant to a contract to which it was
contractually bound, Respondent has refused to recog-
nize and bargain with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, which
is:
1
A. H. BELO CORP. 819
All composing room employees, including hand
compositors, typesetting machine operators, makeup
men, bank men, proofpress operators, proofreaders,
machinists for typesetting machines, operators and
machinists on all devices which cast or compose
type or slugs, or film, operators, or tape perforating
machines and recutter units for use in composing or
producing type, operators of all photosetting ma-
chines (such as Fotosetters, Photon, Linofilm, Mon-
ophoto, Coxhead Liner, Filmotype, Typro and
Hadego) and employees engaged in proofing,
waxing and paste-makeup with reproduction proofs,
processing the product of phototypesetting ma-
chines, including development and waxing; paste-
makeup of all type hand-lettered, illustrative, border
and decorative material constituting a part of the
copy; ruling, photoproofing; correction, alteration
and imposition of the paste-makeup serving as the
completed copy for the camera used in the plate-
making process and excluding copyholders, porters,
metalmen and proof boys carrying proofs and other
matter to and from the composing room, office cler-
ical employees, guards and supervisors as defined in
the Act.
(6) Respondent has not otherwise violated the Act as
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I will recommend that Respondent be
ordered to cease and desist from engaging in these unfair
labor practices. I will also recommend to the Board that
Respondent be required to take certain affirmative action
in order to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed19
ORDER
The Respondent, Dallas Morning News, A Division of
A. H. Belo Corporation, Dallas, Texas, its officers,
agents, successors, and assigns, shall
19 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Limiting participation in its employee sick-pay
plans to employees who are not covered by a collective-
bargaining agreement.
(b) Issuing warning notices to employees because of
their protected activities on behalf of the Union.
(c) Refusing to submit to arbitration of grievances filed
pursuant to contracts to which Respondent is legally
bound.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Amend its sick-pay plan provision by deleting the
provision that coverage is limited to employees not cov-
ered by a collective-bargaining agreement.
(b) Rescind the warning notice issued to Anna Gach
on August 7, 1980, and remove all record of it from its
files. -
(c) On request, bargain collectively with Dallas Typo-
graphical Union, Local No. 173, International Typo-
graphical Union, AFL-CIO as the exclusive bargaining
representative of all employees in the appropriate unit
described above concerning rates of pay, hours of work,
and other terms and conditions of employment, including
arbitrating the grievance over the layoff of pasteup em-
ployees under the then effective grievance and arbitra-
tion procedure.
(d) Post at its Dallas, Texas facility copies of the at-
tached notice marked "Appendix."2° Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2° If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."