Antelope Valley Press

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 459 (N.L.R.B. 1993)

459
311 NLRB No. 50
ANTELOPE VALLEY PRESS
1 On November 15, 1991, Administrative Law Judge Jay R. Pol-
lack issued the attached decision. The General Counsel and the
Charging Party each filed exceptions and supporting briefs. The Re-
spondent filed cross-exceptions, and a supporting brief. The Charg-
ing Party filed a reply brief to the Respondent’s exceptions.
On August 5, 1992, the Board scheduled oral argument in this
case and in Bremerton Sun Publishing Co., 311 NLRB 467, because
of the importance of the issues presented. The American Federation
of Labor and Congress of Industrial Organizations and the News-
paper Association of America filed separate amicus briefs. On Sep-
tember 10, 1992, the General Counsel, Charging Party, and the Re-
spondent presented oral argument before the Board. 2 All dates hereafter refer to 1990 unless otherwise stated.
Antelope Valley Press and Bakersfield Typo-
graphical Union No. 439, Communications
Workers of America. Case 31–CA–18236
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
This case presents the issue of whether the Respond-
ent’s proposed contract changes over which it bar-
gained to impasse and then implemented unilaterally
involved a mandatory or permissive subject of bargain-
ing.
The Board has considered the decision in light of
the exceptions, briefs and oral argument and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions for the reasons set forth in this decision.1
I. RELEVANT FACTUAL FINDINGS
The Respondent is engaged in the publication of a
newspaper in Palmdale, California. The Union and the
Respondent have been parties to successive collective-
bargaining agreements for certain Palmdale employees
for about 30 years. The most recent contract was effec-
tive from January 1, 1987, to December 31, 1988. This
agreement stated, in relevant part:
Section 1: The Employer hereby recognizes the
Union as the exclusive bargaining representative
of all employees covered by this Agreement. The
words ‘‘employee’’ and ‘‘employees’’ when used
in this contract apply to journeymen and appren-
tices.
Section 3(a): Jurisdiction of the Union, except as
noted otherwise in this memorandum, begins with
the markup of copy and continues until the news-
paper clears the folder and the gross Urbanite
Press and the appropriate collective bargaining
unit consists of all employees performing any
such work.
The printing of the paper, including composition,
camera, plate making, and the press, is performed in
Palmdale, where about 38 employees work in the pro-
duction department. Approximately 8–10 of these em-
ployees work in display advertising. The Respondent
also employs 42 employees at another facility in Lan-
caster. These employees are responsible for the prepa-
ration of advertising and for editorial functions.
Because of an increase in circulation and advertis-
ing, the Respondent introduced new equipment, includ-
ing McIntosh computers, to enable it to meet its in-
creased production requirements. The introduction of
the new computers motivated it to make the proposals
at issue.
From December 1988 until February 1990,2 the
Union and the Respondent attempted to negotiate a
new collective-bargaining agreement. The Respondent
initially proposed a change in section 3(a). As modi-
fied, the clause would begin as follows: ‘‘Jurisdiction
of the Union, except as noted otherwise in this memo-
randum, will encompass work not prepared on VDTs
outside the composing room [and continues tracking
the prior language].’’ Although the Union did not ob-
ject to the Respondent’s decision to introduce new
computer equipment, it was concerned that the Re-
spondent’s proposal would result in the removal of
work from the unit.
As the parties were unable to reach a new agree-
ment, the later bargaining sessions were held in the
presence of a mediator. During this time, several pro-
posals were exchanged between the parties. On De-
cember 15, 1989, the Respondent proposed a contract
which included sections 1 and 3(a) of the 1987 agree-
ment. However, it also included the following lan-
guage:
Notwithstanding any other provision in this agree-
ment, the Employer reserves the right to assign
the following work to persons outside the bargain-
ing unit:
1) Electronic markup of display and classified ad-
vertising matter;
2) Inputting of text and graphics into electronic
systems for display and classified advertising mat-
ter; and
3) Electronic make-up of display and classified
matter.
The Union rejected this offer, and insisted that sec-
tions 1 and 3(a) of the expired contract be continued
without additions. On February 12, the Respondent
made its final offer, which included the above lan-
guage. The Respondent’s last offer also included lan-
guage designed to assure the Union that, from the date
of signing until December 31, 1991, no full-time em-
ployee would be laid off as a result of the introduction
of the new equipment.
The Respondent implemented its final proposal on
February 19. Since then, it has used its McIntosh com-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See, e.g., NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
4 Id.
5 See Storer Communications, above, 295 NLRB at 78, citing
Fibreboard Paper Products Co. v. NLRB, 379 U.S. 203 (1964).
6 See, e.g., Idaho Statesman, 281 NLRB 272, 276 (1986), enfd.
836 F.2d 1396 (D.C. Cir. 1988). As the court stated in Douds v.
Longshoremen ILA, 241 F.2d 278, 282 (2d Cir. 1957), ‘‘Parties can-
not bargain meaningfully about wages or hours or conditions of em-
ployment unless they know the unit of bargaining.’’
puters to prepare and electronically mark up display
advertising. As a result, some unit work is being per-
formed by employees at Lancaster, and some is per-
formed by employees in the creative services depart-
ment at Palmdale. It is undisputed that no bargaining
unit employees have lost their jobs due to the equip-
ment purchase or the Respondent’s implementation of
its final offer.
II. JUDGE’S DECISION AND CONTENTIONS OF
PARTIES BEFORE THE BOARD
The judge found, based on Storer Communications,
295 NLRB 72 (1989), enfd. sub nom. Stage Employees
IATSE Local 666 v. NLRB, 904 F.2d 47 (D.C. Cir.
1990), that the Respondent’s proposal involved only
work assignments, rather than the scope of the bargain-
ing unit. In reviewing the Respondent’s proposal, the
judge determined that it merely sought to ‘‘carve out
work assignment exceptions to the jurisdictional aspect
of the clause’’ and was not intended to change the unit
description. He also relied on the fact that the proposal
and implementation resulted in no layoffs or termi-
nations of unit employees. The judge concluded that
the Respondent’s proposal was a mandatory subject of
bargaining, that Respondent was entitled to insist to
impasse on the proposal, and that because impasse was
reached, the implementation was lawful.
In oral argument before the Board, the General
Counsel and the Charging Party contend that the Re-
spondent’s proposal redefined the scope of the unit and
was therefore not a mandatory subject. In this regard,
they note that the proposal ‘‘reserves the right to as-
sign the following work to persons outside the bargain-
ing unit.’’ The General Counsel and Charging Party
argue that it was unlawful for the Respondent to bar-
gain to impasse over this contract clause. The General
Counsel further maintains that, if an employer has pre-
viously agreed to a clause which describes the unit in
terms of work performed, that employer should be
barred from later adding provisions that permit a reas-
signment of work to nonunit employees, even if there
is an introduction of new technology.
The Respondent contends that the contract proposal
was a mandatory subject of bargaining because it did
not alter the scope of the unit. In support of this posi-
tion, the Respondent maintains that the implementation
of its contract proposal did not take any employee out
of the unit and did not result in any loss of jobs for
unit employees. In Respondent’s view, the new clause
was necessary to provide the flexibility to operate its
new equipment in an economic and efficient manner.
The Respondent maintains that it simply implemented,
after impasse, a mandatory bargaining proposal to
transfer work outside the unit.
III. ANALYSIS
We make the following general observations con-
cerning bargaining obligations to the extent relevant to
our decision here. Section 8(d) of the Act defines the
scope of the duty to bargain collectively as encompass-
ing ‘‘wages, hours, and other terms and conditions of
employment.’’ Those are the mandatory subjects of
bargaining—the ones over which a party must bargain
if requested to by the other party. But, because Section
8(d) also provides that one party need not agree to the
other’s proposal or make a concession, either party
may lawfully bargain to impasse over a mandatory bar-
gaining subject.3
‘‘Permissive’’ subjects of bargaining are those not
involving wages, hours, or other terms and conditions
of employment. Parties may bargain over those sub-
jects if they choose to do so. Because neither party is
required to bargain at all over a permissive subject, a
party may not lawfully bargain to impasse over a per-
missive subject.4
The assignment of work affects terms and conditions
of employment, and therefore is a mandatory bargain-
ing subject; accordingly, an employer normally may
lawfully insist to impasse over a change in work as-
signments, even if it entails transferring work out of
the bargaining unit.5 The scope of the unit itself, how-
ever, does not involve wages, hours, or other terms
and conditions of employment, and therefore is a per-
missive subject. Thus, neither party may bargain to im-
passe over a change in the scope of the bargaining
unit.6
Here, there is no question that the Respondent pro-
posed and insisted to impasse on the inclusion of a
contract term allowing it to assign certain specified
kinds of work—the computerized markup of advertis-
ing material—to persons outside of the bargaining unit,
and later did reassign some of that work to employees
who formerly were not considered members of the
unit. But as in many other bargaining relationships in
the printing industry, the parties previously have de-
fined the bargaining unit in terms of work assignments
and not in terms of job classifications. Section 3(a) of
the parties’ 1987 agreement provides that ‘‘the appro-
priate collective bargaining unit consists of all employ-
ees performing any such work,’’ i.e., any work in the
Union’s jurisdiction as defined in Section 3(a). The
General Counsel and the Union argue that because the
bargaining unit is defined in this fashion, any assign-
461ANTELOPE VALLEY PRESS
7 The decisions are not easily reconcilable. Compare, e.g., Storer
Communications, above, and Newspaper Printing Corp. (Nashville)
v. NLRB, 692 F.2d 615 (6th Cir. 1982) (employers lawfully bar-
gained to impasse over work assignment provision), with Newspaper
Printing Corp. (Tulsa), 232 NLRB 291 (1977), and Idaho Statesman,
above (employers unlawfully insisted to impasse over modification
of unit scope). See also Judge Easterbrook’s dissent in Hill-Rom Co.
v. NLRB, 957 F.2d 454 (7th Cir. 1992), arguing that the court should
have affirmed the Board’s decision because ‘‘when the same facts
can be put in either category with equal plausibility, the distinction
collapses. . . . Neither choice can be condemned as wrong, because
in rhetorical contests of this variety there is no right or wrong.’’
8 Depending on the circumstances, such a contention could be
raised in a unit clarification proceeding or in an 8(a)(5) context.
9 The parties’ attorneys disagreed over whether the phrase ‘‘per-
sons outside the bargaining unit’’ necessarily indicated that the pro-
posal would have excluded from the unit all such persons to whom
unit work might be assigned. (As we find below, it did not.) Their
difference in this regard, however, concerned the appropriate inter-
pretation of the record in this case, not our approach itself.
ment of work to employees outside the unit necessarily
changes the scope of the unit. They also argue that the
Respondent’s December 15, 1989 proposal gives the
Respondent unilateral discretion to change the unit at
will. Consequently, the General Counsel and the Union
contend that the Respondent insisted to impasse over,
and implemented, a change in the scope of the unit—
a permissive subject—in violation of Section 8(a)(5).
Their argument has initial appeal. Indeed, as the
judge remarked, ‘‘In the instant case, the bargaining
unit is defined in terms of work and, thus, the question
becomes difficult because any proposal relating to
work assignments affects the scope of the bargaining
unit.’’ However, their position conflicts with the other-
wise settled principle that employers may lawfully bar-
gain to impasse over, and then implement, changes in
work assignments. And that, aside from the question of
the effect on unit scope, is exactly what the Respond-
ent did in this case. Were we to hold that because of
the way the unit is described in the contract, the Re-
spondent may not lawfully assign work outside of the
unit without the Union’s permission, we would in ef-
fect lock the Respondent into a pattern of work assign-
ments that might make no sense in the light of chang-
ing technology in the workplace.
This tension between unit scope and the introduction
of new technology is a recurrent one, especially in the
printing industry. Heretofore, we have attempted to re-
solve the issue by determining whether the contract
proposal insisted on by the employer was a unit de-
scription or a work assignment provision.7 Because
such proposals, including the one at issue in this case,
have aspects of both kinds of provisions, we have de-
cided to abandon the ‘‘either/or’’ semantic debate in
favor of an approach that will better enable us to re-
solve these matters while recognizing and accommo-
dating the legitimate concerns of the parties.
The Union is understandably concerned that any
modification of Section 3(a) will change the descrip-
tion of the unit. As we have stated, a union is entitled
to take the unit description as given; it cannot be
forced to bargain about the unit description, and it
need not tolerate any effort by the Respondent to alter
the description of the unit. On the other hand, the Re-
spondent does not want Section 3(a) to be rigidly con-
strued to preclude the transfer of work to employees
not now in the unit, even if the Respondent offers to
bargain over such a transfer. As we have emphasized,
that is normally an employer’s privilege, and were the
Respondent precluded from exercising that privilege, it
might be frozen into an outmoded pattern of work as-
signments potentially impeding its ability to compete
in the marketplace.
To the extent possible, we wish to accommodate
both parties’ interests and focus on the crux of the
problem, namely, the unit placement of the employees
to whom unit work is to be assigned. Thus, in deter-
mining whether an employer’s contract proposal is
lawful, we shall first look to see whether the employer
has insisted on a change in the unit description. In ac-
cord with long-established precedent, we shall continue
to find any such insistence to be unlawful, even if the
unit is described in terms of work performed. The
union is the representative of the employees who cur-
rently perform the work. A proposal to change the ac-
tual unit description clause would raise questions re-
garding the union’s right to represent those employees.
The employer consequently may not insist on such a
proposal.
If the employer does not insist on changing the unit
description, however, but seeks an addition to that
clause that would grant it the right to transfer work out
of the unit, we will find the employer acted lawfully
provided that the addition does not attempt to deprive
the union of the right to contend that the persons per-
forming the work after the transfer are to be included
in the unit.8 Under this approach, the employer will be
able to act to take advantage of new technology, but
will not be able to decide, unilaterally, questions re-
garding the scope of the unit.
We anticipate that the approach we adopt today will
satisfy the needs of both unions and employers. In-
deed, at the oral argument, the attorneys for both the
Union and the Respondent indicated that a proposal
that dealt strictly with work assignments, while leaving
questions of unit scope to the Board, to be decided in
unit clarification or other proceedings, would be law-
ful.9 In its brief, amicus AFL–CIO also indicated that
such an approach should be deemed lawful.
Applying this new approach, we find, first, that the
Respondent’s December 15, 1989 proposal retained the
language of the old contract; it did not purport to
change the unit description. The proposal gave the Re-
spondent the right to assign work to ‘‘persons outside
the bargaining unit.’’ We do not read that phrase as
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Respondent’s negotiator’s testimony on this point is not
necessarily to the contrary. It could be construed as signifying that
the purpose of the Respondent’s proposal was simply to allow the
Respondent to assign the unit work in question to whomever it want-
ed, including curently represented employees and even newly hired
unrepresented employees. But even construing the testimony to mean
that the negotiator thought that nonunit employees to whom the
work was assigned would remain outside the unit even after the as-
signment, we still find no violation, because the record does not es-
tablish that the Respondent ever communicated such an understand-
ing to the Union during negotiations. Hence, under either construc-
tion, the General Counsel has failed to carry his burden of proof
here.
1 During the relevant time period, there were 30 full-time and be-
tween 2 and 5 part-time employees in the bargaining unit.
equivalent to unit exclusion, because the record does
not indicate that the Respondent ever insisted during
negotiations that the quoted language meant that em-
ployees to whom work might be assigned pursuant to
the proposal would never be considered members of
the unit.10 Neither the clause itself nor the Respond-
ent’s course of dealing with the Union indicates that,
under that provision, the Union would be precluded
from claiming that the individuals who were assigned
those functions should henceforth be included in the
unit. Thus, we read the Respondent’s proposal as
merely indicating that the Respondent would be able to
assign specified unit work to individuals who were not
previously members of the unit.
To summarize, because the Respondent did not in-
sist on changing the unit description, and because its
proposal did not attempt to deny the Union the right
to assert that any individuals to whom unit work might
be assigned were unit members, we find that the Re-
spondent’s impasse proposal was a mandatory subject
of bargaining. Accordingly, the Respondent did not
violate Section 8(a)(5) and (1) by bargaining to im-
passe over, and then implementing, its December 15,
1989 proposal.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Alice Joyce Garfield, for the General Counsel.
Richard Rosenblatt, of Englewood, Colorado, for the Union.
Joseph E. Herman (Seyfarth, Shaw, Fairweather &
Geraldson), of Los Angeles, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Los Angeles, California, on July 16, 1991. On
May 2, 1990, Bakersfield Typographical Union No. 439,
Communications Workers of America (the Union) filed the
charge alleging that Antelope Valley Press (Respondent)
committed certain violations of Section 8(a)(5) and (1) of the
National Labor Relations Act (29 U.S.C. § 151 et seq., the
Act). The charge was amended on July 3, 1990. Thereafter
on September 27, 1990, the Regional Director for Region 31
of the National Labor Relations Board issued a complaint
and notice of hearing against Respondent alleging that Re-
spondent violated Section 8(a)(5) and (1) of the Act. Re-
spondent filed a timely answer to the complaint, denying all
wrongdoing.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in Palmdale, California,
where it is engaged in the publication of a newspaper. Re-
spondent, in the course and conduct of its business oper-
ations, annually derives gross revenues in excess of
$200,000. Annually, Respondent purchases and receives
goods and products valued in excess of $5000 directly from
sellers or suppliers located outside the State of California.
Accordingly, Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent publishes a newspaper in Palmdale, California,
5 days per week. It has had a collective-bargaining relation-
ship with the Union for at least 30 years. The most recent
collective-bargaining agreement was effective from January
1, 1987, until December 31, 1988. The bargaining unit cov-
ered by the 1987 agreement is described as follows:
Section 1: The Employer hereby recognizes the
Union as the exclusive bargaining representative of all
employees covered by this Agreement. The words ‘‘em-
ployee’’ and ‘‘employees’’ when used in this contract
apply to journeymen and apprentices.
Section 3(a): Jurisdiction of the Union, except as
noted otherwise in this memorandum, begins with the
markup of copy and continues until the newspaper
clears the folder and the gross Urbanite Press and the
appropriate collective bargaining unit consists of all
employees performing any such work.1
Between December 1988 and February 12, 1990, the par-
ties met in 16 bargaining sessions in an unsuccessful attempt
to negotiate a new contract. The parties did not reach agree-
ment and the Respondent insisted to impasse on its last offer.
On February 19, 1990, Respondent implemented its final
offer.
463ANTELOPE VALLEY PRESS
2 The expired contract listed several exceptions to the exclusive ju-
risdiction of the Union including provisions which obligated the unit
employees to accept and process certain advertising, editorial, and
wire copy prepared for processing on VDTs outside of the compos-
ing room.
Within this factual framework, the General Counsel alleges
that Respondent unlawfully: (1) bargained to impasse on the
definition or scope of the bargaining unit; and (2) on or
about February 19, 1990, implemented its last offer to the
Union. The General Counsel argues that since Respondent
insisted to impasse unlawfully, it follows that no legally cog-
nizable impasse existed.
Respondent admits that it insisted to impasse on its final
proposal and that it implemented that proposal after the im-
passe. Respondent contends that it bargained to impasse over
the assignment of work and not the definition or scope of the
unit. Further, Respondent contends that the bargaining unit is
inappropriate and, therefore, that it cannot be found to have
bargained in bad faith.
B. Facts
As indicated above, the scope of the unit was defined by
the work performed. The work began with the markup of
copy and included the setting and building of display adver-
tising and two-column classified advertising, camera work on
setting those pages, and any camera work going on to those
pages, making of the final negative, making of the plate, and
running of the press until it came off the press. When nego-
tiations began in December 1988, Respondent proposed to
change the unit description to read ‘‘Jurisdiction of the
Union, except as noted otherwise in this memorandum, will
encompass work not prepared on VDTs outside the compos-
ing room and continues.’’
Respondent, then represented by Monty Odett, co-pub-
lisher, stated that Respondent wished to put in new equip-
ment and wanted to be able to operate the equipment at its
discretion. The Union was not opposed to new equipment but
insisted on its people doing the work. Odett stated that Re-
spondent wanted to put 90 percent of the advertisements to-
gether on computer terminals. The Union took the position
that Respondent’s proposal would cause the loss of one-third
of the work performed by the unit employees. After eight
bargaining sessions, the Union contacted the Federal Medi-
ation and Conciliation Service. The remaining eight bargain-
ing sessions were held in the presence of a Federal mediator.
On June 1, 1989, Doug Cornford, a labor consultant, re-
placed Odett as Respondent’s chief spokesman. Cornford
proposed a differently worded unit description. Under Re-
spondent’s June 1 proposal, unit-jurisdiction would ‘‘begin
with final page preparation.’’ The Union found this proposal
unacceptable on the ground that its impact would result in
the loss of the display advertising work. Between June 30
and December 15, 1989, several proposals were exchanged.
On December 15, 1989, Respondent proposed a contract
which included the unit-jurisdiction subsection of the 1987
agreement with the addition of the following subsection:
Notwithstanding any other provision in this agree-
ment, the Employer reserves the right to assign the fol-
lowing work to persons outside the bargaining unit:
1) Electronic markup of display and classified adver-
tising matter;
2) Inputting of text and graphics into electronic sys-
tems for display and classified advertising matter; and
3) Electronic make-up (building) of display and clas-
sified matter.2
The Union again rejected Respondent’s proposal and in-
sisted that the unit-jurisdiction provision from the expired
contract be continued. On January 31, Respondent gave the
Union a complete contract proposal including the unit-juris-
diction proposal of December 15, set forth above. Cornford
informed the Union that the January 31 proposal was Re-
spondent’s ‘‘best offer’’ and that the Respondent would uni-
laterally implement the proposal absent agreement on a new
contract. On February 12, 1990, the parties met again. At this
meeting Respondent proposed the following addition to its
jurisdiction proposal:
Effective with the date of signing of this agreement
and continuing until December 31, 1991, no employee
covered by the terms of this agreement, who is cur-
rently employed on a situation [full-time employment],
will be laid off directly as a result of the introduction
of new equipment that performs the work functions de-
scribed in subsection (l) of this Article I.
Respondent’s ‘‘best offer’’ was rejected. Thereafter, Re-
spondent declared impasse and, on February 19, 1990, Re-
spondent unilaterally implemented its last contract proposal.
Respondent contends that its proposal to the Union was
not an attempt to bargain over a change in the bargaining
unit but rather a proposal concerning work assignment and
the right to transfer work out of the unit. Respondent’s pro-
duction department is responsible for the physical production
of the newspaper, including composition, camera, plate-mak-
ing, and the presses. As of February 19, 38 persons worked
in the production department, 8 to 10 of whom were in-
volved in the preparation of display advertising. The produc-
tion department employees all work in a defined physical
area in the Palmdale building. All the bargaining unit em-
ployees work in this area.
Respondent also employs 42 employees at its Lancaster fa-
cility, 12 miles away. The Lancaster employees are involved
in preparation of advertising and editorial copy. However,
the composition and printing of the paper is performed in
Palmdale. There are no bargaining unit employees at the
Lancaster facility.
The circulation of the newspaper and its advertising has
increased substantially in the past 10 years. Respondent has
introduced new equipment to meet the demands of this ex-
panded business. Respondent has made considerable invest-
ments in new composing room and printing equipment. In-
cluded in its new equipment are McIntosh computers which
facilitate the preparation of display advertising. It is the in-
troduction of these McIntosh computers which motivated Re-
spondent to make the proposals at issue herein.
Respondent did not use McIntosh computers to produce
advertisements to be printed in its newspaper until after it
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Some sample advertisements were created using the McIntosh
computers prior to February 1990. However, these sample advertise-
ments were retyped and marked up by unit employees, if used prior
to February 1990.
implemented its ‘‘best offer.’’3 Since it implemented its final
proposal, Respondent has used its McIntosh computers to
prepare and electronically markup display advertisements. As
a result of this new method, some of the work previously
performed by bargaining unit employees at Palmdale is per-
formed by nonunit employees at Lancaster. Further, some
work previously performed by bargaining unit employees is
being performed by employees in the creative services de-
partment (nonunit employees) in Palmdale. Respondent of-
fered evidence that these changes reduce errors and are more
cost effective. As indicated earlier, the Union does not op-
pose these changes but rather seeks to have all such work
performed by unit employees.
The number of full-time employees working in the bar-
gaining unit was the same as of the date of the instant hear-
ing as on the date of the implementation of Respondent’s
‘‘best offer.’’ No bargaining unit employees have lost their
jobs because of the purchase of this new equipment or the
implementation of Respondent’s final offer.
Respondent further contends that the Board lacks authority
to compel bargaining because the unit includes statutory su-
pervisors and, therefore, the unit is inappropriate. As of Feb-
ruary 12, the date of Respondent’s final proposal, the bar-
gaining unit included five statutory supervisors. The parties
stipulated that the assistant day foreman, assistant night fore-
man, pressroom foreman, assistant pressroom foreman, and
maintenance foreman were statutory supervisors. These five
supervisors had been treated as employees and part of the
bargaining unit under the 1987 agreement. Respondent had
not sought to exclude these supervisors from the unit during
the negotiations.
Analysis and Conclusions
In NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958), the
Supreme Court held that insistence to impasse is available to
a party only with respect to a mandatory subject of bargain-
ing. Insistence to impasse on a permissive subject of bargain-
ing violates the statutory duty in bargain in good faith. It is
not the Board’s role to sit in judgment of the substantive
terms of bargaining, but rather to oversee the process to as-
certain that the parties are making a sincere effort to reach
agreement. Res-Care, Inc., 274 NLRB 1 (1985); Reichhold
Chemicals, 277 NLRB 639 (1985) (Reichhold I); Reichhold
Chemicals , 288 NLRB 556 (1988) (Reichhold II).
A unit description clause agreed to by a union and em-
ployer sets forth the scope of membership in the bargaining
unit and is a permissive subject of bargaining. Delhi-Taylor
Refining, 167 NLRB 115 (1967), enfd. 415 F.2d 440 (5th
Cir. 1969), cert. denied 397 U.S. 916 (1970); Newspaper
Printing Corp., 232 NLRB 291 (1977), enfd. 625 F.2d 956
(10th Cir. 1980), cert. denied 450 U.S. 911 (1981); News-
paper Printing Corp., 250 NLRB 1144 (1980), enf. denied
692 F.2d 615 (6th Cir. 1982). Consequently, an employer
violates Section 8(a)(5) by refusing to include a unit jurisdic-
tion clause in a collective-bargaining agreement or by bar-
gaining to impasse over the modification of the scope of a
prior unit jurisdiction clause. See, e.g., Columbia Tribune
Publishing Co., 201 NLRB 538 (1983), enfd. 495 F.2d 1384
(8th Cir. 1974); Delhi-Taylor Refining, supra. The rationale
for this limitation on bargaining over the scope of the unit
is twofold: First, a union has the right to have its jurisdiction
recognized in the collective-bargaining agreement. See, e.g.,
Columbia Tribune Publishing Co., supra, 201 NLRB at 551.
Second, having a defined unit is a prerequisite to bargaining
over terms and conditions of employment. Parties cannot bar-
gain meaningfully unless they know which employees a
union represents. Thus, limitations on bargaining over the
scope of a unit serve as a means of facilitating the negotia-
tion process. See, e.g., Douds v. Longshoremen ILA, 241
F.2d 278 (2d Cir. 1957); Shell Oil Co., 194 NLRB 988, 995
(1972).
However, the issue of the scope of a unit-jurisdiction
clause is distinguishable from the issue of the employer’s
right to transfer work out of a unit, which is a mandatory
subject of bargaining. See, e.g., Newspaper Printing Corp.,
supra, 232 NLRB 291; Newspaper Printing Corp., supra, 692
F.2d at 619. Thus, the Board recognizes a distinction be-
tween bargaining over the type of work which defines a unit
and bargaining over the amount of such work which the unit
will actually perform.
In the instant case, the bargaining unit is defined in terms
of work and, thus, the question becomes difficult because
any proposal relating to work assignments affects the scope
of the bargaining unit.
In Columbia Tribune Publishing Co., supra, 201 NLRB
538, the Board held that a union is entitled to have a descrip-
tion of the appropriate unit it represents incorporated into
any contract reached by the parties. In that case the respond-
ent had refused to include the traditional unit-jurisdiction
clause of its prior contracts. The Board rejected the respond-
ent-employer’s defenses that it needed flexibility due to tech-
nological changes and that jurisdiction and unit definition
were combined in one clause.
In Newspaper Printing Corp., supra, 232 NLRB 291, the
employer had insisted to impasse on modifying the existing
unit-jurisdiction clause, which defined the appropriate unit in
terms of ‘‘all composing room work’’ to provide that the unit
include ‘‘only those employees engaged in all work which
the employer may from time to time designate to be per-
formed in the composing room.’’ The Board found that this
unit-jurisdiction proposal gave the respondent-employer uni-
lateral control over the scope of the unit and was, therefore,
tantamount to a refusal to include a unit description. The
Board further found that even if the proposed unit-jurisdic-
tion clause did not contain this fatal flaw because the defini-
tion of an existing appropriate unit is not a mandatory sub-
ject of bargaining, the employer could not lawfully insist to
impasse on a modification of the existing clause.
In Standard Register Co., 288 NLRB 1409 (1988), the em-
ployer-respondent insisted to impasse on its proposed juris-
diction clause to be included in a new contract in place of
the unit-jurisdiction clause of the expired bargaining agree-
ment. The jurisdiction proposal at issue read, ‘‘the jurisdic-
tion of the union is defined as the work assigned by the em-
ployer to the composing and markup and proof reading de-
partments.’’ The previous unit-jurisdiction clause defined ju-
risdiction and the unit as ‘‘including all composing room
work.’’ The Board found that the parties reached impasse
over the unit description and not work jurisdiction alone. The
465ANTELOPE VALLEY PRESS
Board found that the jurisdiction clause proposed by the em-
ployer by its terms modified the existing bargaining unit.
Thus, the Board found that the employer’s insistence to im-
passe on its jurisdiction clause was a refusal to bargain in
good faith. The Board distinguished the Sixth Circuit’s deci-
sion in Newspaper Printing Corp. v. NLRB, 692 F.2d 615
(6th Cir. 1982), in which the Sixth Circuit found that the re-
spondent-employer’s proposal had preserved the unit descrip-
tion in its impasse proposal while changing the work juris-
diction clause about which it had the right to bargain to im-
passe. The Board found that the Standard Register’s proposal
did not contain such saving language. Rather, the Board
found that the Standard Register’s proposal gave it ‘‘the right
to change unilaterally the scope of the unit itself.’’
In Storer Communications, 295 NLRB 72 (1989), the em-
ployer proposed that the operation of certain work be re-
moved from the exclusive jurisdiction of the union, that the
exclusive jurisdiction of the union be limited to certain geo-
graphic areas, that members of another bargaining unit may
be assigned to perform unit work, and that the employer
have the right to use work produced by other bargaining
units. However, there was no change in the recognition
clause of the contract nor in the classifications of the em-
ployees covered by the agreement. The Board found that the
changes proposed by the respondent employer concerned
themselves with work jurisdiction and work assignments and
did not involve a change in the scope of the bargaining unit.
The Board found the changes did not involve who the union
represented but rather what (work assignments) these em-
ployees would do.
Applying the above principles of law to the facts of this
case, I find that Respondent sought to change work assign-
ments rather than the scope of the bargaining unit. The facts
establish that the real dispute between the parties concerned
the work of computerized markup of advertising material.
Work which was traditionally performed by bargaining unit
employees with training in the printing trades could now be
performed by nonunit employees with art, advertising, or
sales backgrounds. Respondent’s impasse proposal included
the unit-jurisdiction language of the expired contract. Its pro-
posal then sought to carve out work assignment exceptions
to the jurisdictional aspect of the clause. The merits of Re-
spondent’s work assignments or the Union’s counterpropos-
als are not relevant to this discussion. The issue is whether
Respondent could insist to impasse over its proposal.
Under Storer Communications, supra, I find that Respond-
ent could lawfully insist to impasse on such exceptions to the
union’s exclusive right to perform the work at issue and the
right to assign such work to nonunit employees. As pointed
out in the Storer Communications case, for all practical pur-
poses this is the same as subcontracting and subcontracting
is held to be a mandatory subject of bargaining and not a
change in the scope of the unit. See Fibreboard Paper Prod-
ucts Corp. v. NLRB, 379 U.S. 203 (1964).
I find no merit to General Counsel’s argument that where
the unit description and work jurisdiction clauses are merged,
the employer may not bargain to impasse over jurisdiction.
The cases show that unit description and work jurisdiction
remain separate issues—one is a mandatory subject of bar-
gaining and one is permissive. If a party insists to impasse
on work jurisdiction only, as in Storer Communications, no
violation will be found. By agreeing to a single clause defin-
ing the unit and jurisdiction, neither party waives its right to
bargain over work assignments or jurisdiction in the future.
The Union contends that Respondent’s proposal granted it
‘‘unfettered discretion’’ to assign virtually all bargaining unit
work to nonunit employees and, therefore, was tantamount to
a refusal to include a unit description in the contract. First,
I note that the Respondent proposed that no full-time em-
ployee would lose his job due to these changes. More impor-
tant, as the Storer Communications case holds, an employer
that does not propose to change the scope of the unit may
propose to assign or subcontract the unit work to nonunit
employees. Neither the union nor employer is obligated to
making any concession. Under Storer Communications, an
employer may insist to impasse on sole discretion in assign-
ment of work, as opposed to the scope of the unit. I find that
Storer Communications represents the current Board law. See
also Colorado-Ute Electric Assn., 295 NLRB 607 (1989),
and McClatchy Newspapers, 299 NLRB 1045 (1990), in
which the Board held that an employer could insist to im-
passe on sole discretion to grant merit pay increases, a man-
datory subject of bargaining.
The Bargaining Unit Defenses
Respondent contends that it was relieved of its obligation
to bargain because the unit was not appropriate for purposes
of collective bargaining. Should the Board disagree with my
conclusions regarding the impasse issue, and in order to
avoid the delay of a remand, I treat Respondent’s unit de-
fenses. For the following reasons I find no merit to these de-
fenses.
In Arizona Electric Power Cooperative, 250 NLRB 1132,
1133 (1980), the Board found that the employer had refused
to bargain in good faith when, during midterm contract nego-
tiations, it withdrew recognition and made unilateral changes
alleging that it was exempt from liability because the unit in-
cluded statutory supervisors. There, as in the instant case, the
employer had voluntarily included supervisors in the bargain-
ing unit. The Board held that where supervisors had been
voluntarily included in the unit, upon certification or vol-
untary recognition, it would not permit the employer to flout
its obligation to bargain in good faith with the union. The
Board explained that the employer’s obligation to bargain
concerning the supervisor would terminate on the expiration
of the contract, provided that the employer took appropriate
steps at that time to contest their continued inclusion in the
unit. In New York Times Co., 270 NLRB 1267 (1984), the
employer argued that a 1500-person unit was inappropriate
because it included 30 guards. The guards had been volun-
tarily included in the unit for approximately 40 years. The
Board held that an appropriate unit may include a voluntarily
agreed-on unit which could not be certified by the Board.
The Board held that to sanction the employer’s inappropriate
unit defense would give the employer license to violate Sec-
tion 8(a)(5) with impunity.
I find the Arizona Electric Power case controlling here.
Respondent never sought to exclude the supervisors from the
unit by way of a unit clarification or through the bargaining.
The inclusion of the supervisors was only raised here as a
defense to the allegation that Respondent unilaterally
changed the scope of the bargaining unit. To endorse that de-
fense would give Respondent license to violate Section
8(a)(5). Respondent could defend any refusal to bargain in
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All motions inconsistent with this recommended Order are here-
by denied.
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
good faith by simply raising the unit question. Here there is
no existing contract so Respondent may seek exclusion of the
supervisors but the prior inclusion of the supervisors is no
defense to an 8(a)(5) violation.
I further find no merit in Respondent’s defense that the
Union’s proposal on unit jurisdiction would change the scope
of the unit by adding employees from the Lancaster facility.
The Union’s position was simply to retain the unit descrip-
tion from the expired agreement and to retain the work even
after new computers were utilized. There was no attempt by
the Union to enlarge or change the bargaining unit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Section
8(a)(5) and (1) of the Act, as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The complaint is dismissed in its entirety.