Batavia Newspapers Corp.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 477 (N.L.R.B. 1993)

477
311 NLRB No. 52
BATAVIA NEWSPAPERS CORP.
1 The parties stipulated that the successor status of the Respondent
and the Union and their assumption of the terms and conditions of
the expired contract are not at issue here.
2 The ‘‘JURISDICTION’’ clause provides:
2-01 Jurisdiction of the Union and the appropriate unit for col-
lective bargaining is defined as all composing room work and
includes classifications such as: Typesetting machine operators;
makeup men; markup men; machinists for typesetting machines;
operators and machinists on all devices which compose type or
film; operators of tape perforating machines and recutter units
for use in composing or producing type; operators of all photo-
typesetting machines; operators of Optical Character Recognition
machines (scanner); employes [sic] engaged in proofing, waxing
and paste-makeup with reproduction proofs, processing the prod-
uct of phototypesetting machines, including development and
waxing; paste-makeup of all type, hand-lettered, illustrative, bor-
der and decorative material constituting a part of the copy; rul-
ing; photo-proofing; correction, alternative and imposition of the
paste-makeup serving as the completed copy for the camera used
in the platemaking process. Paste-makeup for the camera used
in this paragraph includes all photostats and prints used in offset
work and includes all photostats and positive proofs of illustra-
tions (such as Velox) where positive proofs can be supplied
without sacrifice of qualify or duplication of effort.
Continued
Batavia Newspapers Corporation and Batavia Ty-
pographical Union No. 511, Printing, Publish-
ing & Media Workers Sector of the Commu-
nications Workers of America, AFL–CIO,
CLC. Case 3–CA–14635
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge and amended charge filed by Batavia
Typographical Union No. 511, Printing, Publishing &
Media Workers Sector of the Communications Work-
ers of America, AFL–CIO, CLC, the Union, on Octo-
ber 13 and November 14, 1988, respectively, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint on February 27, 1989, against Bata-
via Newspapers Corporation, the Respondent, alleging
that the Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Copies of the
charge, amended charge, complaint, and notice of hear-
ing were served on the parties. Thereafter, the Re-
spondent filed an answer denying the commission of
any unfair labor practice.
On December 20, 1990, the parties filed a stipula-
tion of facts and a motion to transfer the case to the
Board. The parties agreed that the stipulation of facts
and attached exhibits shall constitute the entire record
in this case, and that no oral testimony is necessary or
desired by any of the parties. The parties further stipu-
lated that they waived a hearing before an administra-
tive law judge and the issuance of an administrative
law judge’s decision, and indicated their desire to sub-
mit the case directly to the Board for findings of fact,
conclusions of law, and an order.
On March 28, 1991, the Board issued its order ap-
proving the stipulation and transferring the proceeding
to the Board. Thereafter, all parties filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in the case, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Batavia, New York, is engaged in
the publication and distribution of a daily newspaper in
the Batavia, New York area. During the year preceding
the execution of the stipulation of facts, a representa-
tive period, the Respondent, in the course and conduct
of its business operations, subscribed to interstate news
services, published various nationally syndicated fea-
tures, advertised various nationally sold products, and
derived gross revenues in excess of $200,000. During
the same period, the Respondent also purchased and
received at its Batavia, New York facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of New York. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. We further find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issue presented is whether the Respondent vio-
lated Section 8(a)(5) and (1) by demanding, as a con-
dition of reaching a contract, that the Union agree to
its bargaining proposal entitled ‘‘SUPPLEMENTAL
AGREEMENT (Jurisdiction and Job Security)’’ which
is appendix A attached to this decision and which the
complaint alleges is a nonmandatory subject of bar-
gaining.
A. Facts
The Respondent publishes and distributes a daily
newspaper in the Batavia, New York area. The Re-
spondent and the Union agreed to honor a collective-
bargaining agreement, effective by its terms through
June 30, 1982, between Griswold & McWain, the Re-
spondent’s predecessor, and Batavia Typographical
Union No. 511, which subsequently merged with the
Union.1 At all material times, the Union has been the
exclusive representative of the Respondent’s employ-
ees at the Batavia facility in an appropriate bargaining
unit as described in the expired agreement’s jurisdic-
tion clause.2 On December 20, 1990, when the stipula-
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The employer shall make no other contract covering work as
described above, especially no contract using the word ‘‘strip-
ping’’ to cover any of the work above mentioned.
3 The Respondent and the Union have met for collective-bargain-
ing negotiations on December 17, 1982; February 1, July 28, and
November 14, 1983; July 2, 1985; July 31 and November 24, 1986;
March 2, June 10, and September 17, 1987; and March 3, April 20,
and August 17, 1988. Neither party has refused to meet at reason-
able times.
4 In that case, the Board found that the employer’s impasse pro-
posal altering the established unit description was a permissive sub-
ject of bargaining.
tion of facts was executed, there were seven unit em-
ployees.
In December 1982, the Respondent and the Union
commenced negotiations for a successor contract.
Since then, they have exchanged written and oral bar-
gaining proposals and have met on 13 occasions,3 but
they have not been able to reach a successor agree-
ment.
During negotiations, the Respondent introduced sev-
eral proposals relating to the ‘‘Jurisdiction’’ clause of
the expired agreement. In its earlier proposals, the Re-
spondent sought a waiver of the jurisdiction clause
‘‘insofar as the introduction of new technology is con-
cerned.’’ These proposals were eventually replaced by
the Respondent’s ‘‘SUPPLEMENTAL AGREEMENT
(Jurisdiction and Job Security),’’ appendix A attached
to this decision. Through appendix A and the above
earlier proposals, the Respondent expressly sought to
secure complete flexibility in the assignment of unit
work to nonunit employees, subject to section 5 of ap-
pendix A described below, so that it could better take
advantage of technological advances. From June 2
through August 17, 1988, appendix A remained the
Respondent’s position on the topics discussed therein.
Appendix A begins with an unnumbered introduc-
tory paragraph followed by six numbered sections. The
opening paragraph of this document indicates that ap-
pendix A shall be in force through the term of the par-
ties’ successor contract and for the duration of their
collective-bargaining relationship, unless changed by
mutual agreement. This paragraph also states that ap-
pendix A ‘‘shall supersede any inconsistent provi-
sions’’ of the successor contract. Section 1 of appendix
A gives the Respondent the ‘‘right to install and utilize
an electronic system’’ and permits that system to be
utilized by ‘‘all employees.’’ Section 2 reserves speci-
fied work exclusively to the unit employees until such
time as the new technology contemplated by section 1
is installed. Section 3 states the Respondent’s right of
concurrent or simultaneous utilization of nonunit em-
ployees on an electronic system for purposes other
than the production of composing room work for the
daily newspaper. This section also indicates that
nonunit employees will not be assigned to perform unit
work in the composing room. Section 4 confirms the
Respondent’s right to have nonunit employees perform
any of the functions ‘‘they currently perform,’’ while
section 6 provides a job guarantee to current unit em-
ployees until the year 2000 or the normal retirement
age of 65, whichever occurs first, but subject to certain
exceptions. Section 5 states that the Respondent
in its sole discretion may assign any work re-
served to the bargaining unit (composing room
employees) under this Supplemental Agreement or
the basic labor agreement to persons not in the
composing room provided that:
(a) No current bargaining unit employee is laid
off as a result of such assignment (current bar-
gaining unit employees are: lll, lll,
lll, lll, lll, lll, lll); and
(b) No current bargaining unit employee, as
identified in (a) above, is involuntarily assigned
work that is substantially outside the composing
room department.
The Union made counterproposals to appendix A
and the Respondent’s other prior related proposals.
Some of these counterproposals afforded the Respond-
ent flexibility in the utilization of new technology in
exchange for lifetime job security for the current unit
employees. The Union sought this job security because
of statements made by the Respondent during negotia-
tions to the effect that it did not want any restriction
on the placement of new technology and who would
operate the new equipment, including equipment used
in the performance of unit work, and that it could, sub-
ject to section 5 of appendix A, assign nonunit work
to unit employees.
In negotiations, the Respondent stated that it would
not agree to a collective-bargaining agreement without
a resolution of the ‘‘Jurisdiction’’ issue that afforded
it complete flexibility in the placement and operation
of the new equipment to be used to perform unit work.
At the last bargaining session held on August 17,
1988, the Union stated and proposed that it would not
agree to any change in the existing jurisdiction clause
of the expired agreement. An impasse in negotiations
existed on August 17, 1988, based on the Respond-
ent’s insistence on appendix A as a total package.
B. Contentions of the Parties
The General Counsel and the Union contend that the
Respondent violated Section 8(a)(5) and (1) of the Act
by insisting to impasse on appendix A. Applying the
principles reaffirmed in Standard Register Co., 288
NLRB 1409 (1988),4 they maintain that appendix A is
a permissive subject of bargaining because it allows
the Respondent unfettered discretion to change unit
scope at any time. They contend that any transfer or
reassignment of composing room work to nonunit em-
ployees would change the scope of the unit. In their
479BATAVIA NEWSPAPERS CORP.
5 In that case, the court agreed with the Board’s determination that
a contract proposal submitted by the employer during contract nego-
tiations concerned a change in work jurisdiction.
6 In Standard Register, the employer proposed eliminating the unit
description from the contract and sought ‘‘unfettered discretion to re-
define the unit at any time by changing the assignment of work.’’
288 NLRB at 1410. As the Board found, this proposal involved a
permissive subject of bargaining because it permitted the employer
to remove employees from their bargaining unit by assigning them
work other than that set forth in the employer’s proposal. Likewise,
in Boise Cascade, a proposal concerning an employer’s moderniza-
tion change (i.e., consolidating five existing maintenance units)
served to remove certain current maintenance employees from their
bargaining unit and alter what union represented those employees.
The Board, affirmed by the court, found a permissive subject was
also at issue in that situation.
view, the job protection for current unit employees
contained in sections 5 and 6 of appendix A does not
prevent the Respondent from unilaterally diminishing
or eliminating the unit, a possibility under section 5 of
appendix A. The Union further argues that its counter-
proposals offering to change the existing jurisdiction
clause of the contract do not give the Respondent li-
cense to insist on appendix A, a permissive subject of
bargaining.
The Respondent contends that its insistence to im-
passe on appendix A was not unlawful and urges the
Board to dismiss the complaint in its entirety. The Re-
spondent defends its action on the basis, inter alia, that
appendix A represents a proposed change in work as-
signments and not unit scope. Relying on Storer Com-
munications, 295 NLRB 72 (1989), enfd. sub nom.
Theatrical Stage Employees IATSE Local 666, 904
F.2d 47 (D.C. Cir. 1990),5 the Respondent urges the
Board to find that appendix A is a mandatory subject
of bargaining over which it could lawfully insist to im-
passe.
C. Discussion
This case highlights a common dilemma faced by
employers and unions in the newspaper industry. Dur-
ing successor contract negotiations, the Respondent
tried to negotiate changes that affected a longstanding
contract clause combining unit description and work
jurisdiction. To take advantage of certain technological
advances, the Respondent admittedly advanced appen-
dix A, a contract proposal providing for sole discretion
in assigning certain unit work. The Union rejected this
proposal. The Union objected not to the introduction of
the new technology but to what it viewed as an at-
tempt to change unit scope. It also feared that if ap-
pendix A was accepted, then a likely consequence
would be a loss of unit jobs. Consequently, the parties
reached impasse over appendix A.
This dispute centers on whether the Respondent’s
impasse proposal would change only work assignments
and not the scope of the unit. The former constitutes
a mandatory subject of bargaining and may be insisted
upon to impasse; the scope of the unit is a permissive
subject. Standard Register Co., supra; Boise Cascade
Corp., 283 NLRB 462 (1987), enfd. 860 F.2d 471
(D.C. Cir. 1988).6 As more fully discussed below, we
conclude that the Respondent’s proposal was a manda-
tory subject of bargaining.
As evidenced by its title and opening paragraph, ap-
pendix A, on its face, is intended to address ‘‘jurisdic-
tion’’ and ‘‘job security’’ concerns as a ‘‘supplemental
agreement’’ to any main successor contract reached by
the parties. Appendix A explains that in this role it has
the ability to ‘‘supersede any inconsistent provisions in
the basic labor agreement.’’ Since no restrictions on
coverage are specified anywhere in the proposal itself,
appendix A thus has the capacity to replace any incon-
sistent provisions of the parties’ main contract, includ-
ing the existing jurisdiction clause, 2-01. We, however,
find no inconsistency between the unit scope aspect of
that clause and appendix A.
The jurisdiction clause defines both the Union’s
work jurisdiction and the existing unit as ‘‘all compos-
ing room work.’’ This clause then gives several illus-
trations by listing certain work classifications for unit
employees and further describing other unit employees
in terms of the specific work functions that they per-
form. Nowhere in appendix A does the Respondent
specifically propose to eliminate or reword the main
contract’s unit description of ‘‘all composing room
work.’’ See Bremerton Sun Publishing Co., 311 NLRB
No. 51, issued this same day. In addition, the parties
themselves have not construed appendix A as an at-
tempt to delete the phrase ‘‘all composing room work’’
from the jurisdiction clause.
With the arguable possible exception of section 5,
appendix A essentially speaks in terms of work assign-
ments. Section 2 assures that, until the new technology
contemplated by section 1 is installed by the Respond-
ent, particular work (e.g., keyboarding of certain legal
notices, keyboarding of certain display advertising
copy, all coding for display ads, and related equipment
maintenance) shall be exclusively performed by unit
employees. Section 3 allows nonunit employees to use,
simultaneously or concurrently, the same new elec-
tronic system for work other than composing room
work. Section 4 confirms the Respondent’s right to
have nonunit employees perform any of their current
work functions.
The opening language of section 5 gives the Re-
spondent the sole discretion to assign the work re-
served by section 2, described above, or under the
main contract to ‘‘persons not in the composing room’’
except in two limited situations referred to in provisos
(a) and (b) of that section. According to those provi-
sos, the Respondent may not reassign unit work to per-
sons not in the composing room if such reassignment
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Compare Antelope Valley, supra (the phrase ‘‘persons outside the
bargaining unit’’ was not considered by the Board to exclude em-
ployees from the unit).
8 For example, in Fibreboard Corp. v. NLRB, 379 U.S. 203
(1964), the Supreme Court held that under certain circumstances an
employer can unilaterally subcontract away a unit’s entire work as-
signment. See Theatrical Stage Employees, supra.
9 See also Newspaper Printing Corp. v. NLRB, 692 F.2d 615 (6th
Cir. 1982), denying enf. 250 NLRB 1144 (1980), where the court
held that an employer’s proposal to change the work jurisdiction of
its composing room employees involved a mandatory subject of bar-
gaining. The court noted, inter alia, that there was no evidence that
current bargaining unit employees would not continue to be rep-
resented by the union under the employer’s proposal. Here, similarly,
there is no evidence that bargaining unit employees will not continue
to be represented by the Union under the Respondent’s proposal.
either causes one of the seven current unit employees
to be laid off or involuntarily assigned ‘‘work that is
substantially outside the composing room department.’’
In Antelope Valley Press, 311 NLRB No. 50, issued
this same day, the Board recently adopted a new ap-
proach to resolving the kind of issue presented in the
instant case. This new test is as follows. If the em-
ployer has insisted on a change in unit description,
then such insistence is unlawful even if the unit is de-
scribed in terms of work performed. On the other
hand, if the employer has not insisted on changing the
unit description, then it may seek an addition to the
existing jurisdiction clause that would allow unit work
to be transferred out of the unit, as long as the em-
ployer does not attempt to deprive the union of the
right to assert that the individuals performing the work
after the transfer are to be included in the unit.
Applying Antelope Valley, we reject the General
Counsel’s and Union’s contention that in section 5 of
appendix A the Respondent has attempted to alter the
scope of the unit. As we stated before, we find that ap-
pendix A retained the main contract’s unit description
of ‘‘all composing room work.’’ We next observe that
appendix A gave the Respondent the right to assign
unit work to ‘‘persons not in the composing room.’’
The stipulated record fails, however, to establish that
the quoted phrase was meant to preclude the Union
from contending in unit clarification or other Board
proceedings that the individuals who perform the trans-
ferred unit work assignments are to be included in the
unit.7
We are also not persuaded by the General Counsel’s
and Union’s argument that the Respondent’s proposal
seeks to change unit scope because section 5 would
permit actions that in theory could reduce the size of
the bargaining unit or alter its membership. In this re-
gard, as we again recognized in Antelope Valley, any
transfer of work from a bargaining unit has the poten-
tial to reduce the size of the unit.8 Moreover, the same
argument was specifically rejected in Storer Commu-
nications, supra. In that case, the existing jurisdiction
clause defined the bargaining unit as ‘‘comprised of all
employees . . . who are engaged in the operation of
portable electronic cameras and associated video tape
equipment . . . .’’ That clause also provided that the
union had exclusive jurisdiction to perform certain
work. During successor contract negotiations, the em-
ployer made proposals that removed some work from
the Union’s exclusive jurisdiction and permitted em-
ployees represented by another union to perform some
of that camera work. The Board adopted the adminis-
trative law judge’s conclusion that the employer’s pro-
posals represented a mandatory subject of bargaining
because the proposed changes to the existing jurisdic-
tion clause ‘‘did not involve who [the union] represents
but rather what these employees do.’’ 295 NLRB 72,
78. In affirming the Board’s decision, the reviewing
court specifically observed that ‘‘[t]he Board found
that the Company proposals did not reduce the size of
the bargaining unit, alter its membership, or permit the
assignment of later-hired newscamera operators to a
different union.’’ 904 F.2d at 52.
In Storer, the clauses in issue—found by the Board
and the court to involve work transfer—would have
permitted the employer to assign bargaining unit work
to other (nonunit) employees or to a subcontractor. In
addition, the employer’s proposal contained no provi-
sion that offered guarantees to the current unit employ-
ees similar to section 5 of appendix A. With optimal
use of the authority it sought, the employer in Storer
might well significantly diminish or eliminate the bar-
gaining unit. Nonetheless, as the clause did not change
who the union represented but rather what work the
employees performed, the clause was deemed to affect
work transfer rather than unit scope.9
Following the principles of Antelope Valley, we find
that appendix A was directed at permitting the Re-
spondent to transfer work and did not alter who the
Union represented but rather what work the employees
performed. The Respondent wanted more flexibility
over the operation of its composing room and sought
the sole discretion to assign composing room work as
needed, subject to certain limitations. It did not seek
to move job classifications or employees, and the
Union would continue to represent the same group of
employees. Therefore, we find that appendix A was a
mandatory bargaining subject and the Respondent’s in-
sistence to impasse on appendix A did not violate Sec-
tion 8(a)(5) and (1) of the Act as alleged. Accordingly,
we shall dismiss the complaint.
ORDER
The complaint is dismissed.
481BATAVIA NEWSPAPERS CORP.
APPENDIX A
NEGOTIATIONS BETWEEN
BATAVIA DAILY NEWS
—and—
ITU, LOCAL 511
SUPPLEMENTAL AGREEMENT
(Jurisdiction and Job Security)
This Supplemental Agreement on Job Security and Juris-
diction shall become effective on the date of its signing and
its terms shall continue in force through the terms of the
basic labor agreement dated lll, 19ll and for so long
as there is a collective bargaining relationship between the
Batavia Newspapers Corporation (i.e., the current owner, re-
ferred to herein as the ‘‘Company’’), and the union, unless
changed by the mutual agreement of the parties hereto. This
Supplemental Agreement shall supersede any inconsistent
provisions in the basic labor agreement.
Section 1. The Publisher shall have the full right to install
and utilize an electronic system, including but not limited to
pagination technology, with OCR’s, VDT’s, line printers,
processors and related equipment and devices in its business,
and to that end and in view of the security provided herein,
the basic labor agreement shall be applied and interpreted as
permitting utilization of the electronic system by all employ-
ees of the Publishers, and as provided in the following sec-
tions.
Section 2. Except as otherwise provided herein, until tech-
nology as referred to in Section 1 is installed, employees
covered by this Agreement, who are named in Section 5(a),
shall continue to perform the following work:
(1) Keyboarding of two column legal notices, except for
camera-ready notices;
(2) Display Advertising Copy—Keyboarding of all display
advertising copy (including classified display) which must be
keyboarded at the Company for typesetting and processing
through the electronic composing system;
(3) Coding—All coding (typesetting instructions) fir dis-
play ads (including classified display);
(4) Maintenance—The maintenance of the equipment and
devices within the system, except that maintenance which is
provided by the manufacturer or lessor as a part of the stand-
ard services for the lease or purchases of the system;
Section 3. Work Other Than Composing Room Work—The
Publisher’s right of concurrent or simultaneous utilization of
all devices in the electronic system by persons outside the
bargaining unit for purposes other than the production of
composing room work for the daily newspapers is not
abridged by the provisions of this agreement (e.g., type-
setting outside commercial work by non-bargaining unit staff
in the composing room would not be prohibited by this
Agreement since it does not involve the production of com-
posing room work for the daily newspaper), and they shall
not be so applied as to restrict production or hinder the busi-
ness operations in any way. Although the jurisdiction of this
contract is not exclusive, employees from other departments
will not be assigned to perform the work of the bargaining
unit in the room known as the composing room.
Section 4. Neither this Supplemental Agreement nor the
basic labor agreement shall prevent non-bargaining unit per-
sonnel from performing any functions that they currently per-
form.
Section 5. Additionally, the Company in its sole discretion
may assign any work reserved to the bargaining unit (com-
posing room employees) under this Supplemental Agreement
or the basic labor agreement to persons not in the composing
room provided that:
(a) No current bargaining unit employees is laid off as a
result of such assignment (current bargaining unit employees
are: lll, lll, lll, lll, lll, lll,
lll, lll); and
(b) No current bargaining unit employee, as identified in
(a) above, is involuntarily assigned work is substantially out-
side the composing room department.
Section 6. Further, the Company agrees that the employees
identified in Section 5(a) above, who continue to have the
ability and competence to perform the required work, will be
assured a position, by this Agreement, until the year 2000,
or normal retirement age of 65, whichever shall occur first,
unless the position is vacated by retirement, resignation,
death or discharge for cause. However, in event that the
Company cease publications of the Batavia Daily News, this
employment guarantee will cease. Further, in the event that
a strike, lockout or ‘‘Act or God’’ results in a period of tem-
porary suspension of the composing room operation, the
guarantee will be suspended for such period of temporary
suspension of the operation; and, in the event of an economic
strike, the guarantee may be permanently lost should the
Company hire permanent replacements for strikers.