Baytown Sun

National Labor Relations Board - Board Decisions

Nov 12, 1979

246 N.L.R.B. 39 (N.L.R.B. 1979)

THE BAYT()WN SUN
Southern Newspapers, Inc., d/b/a The Baytown Sun
and Houston Typographical Union No. 87, affiliated
with International Typographical Union, AFL-CIO.
Case 23-CA-7222
October 12, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(G ANI) Mt MBIRS J ENKINS
AND MU.RPHY
On May 2, 1979, Administrative Law Judge Ber-
nard J. Seff issued the attached decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief'
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The General Counsel excepts to the Administrative
Law Judge's finding that Respondent justifiably
changed its rules unilaterally regarding "offday" com-
pensation because the parties had reached impasse.
We find merit in the General Counsel's exceptions.
and conclude, contrary to the Administrative I.aw
Judge, that Respondent violated Section 8(a)(5) and
(1) of the Act.
The basic facts are not in dispute and are more
fully set forth in the Administrative Law Judge's De-
cision. The parties have established bargaining his-
tory. In order to negotiate a new contract to succeed
the contract expiring on May I, 1978, the parties ini-
tially met on April II of that year. At the second
meeting, on April 26, Respondent offered a proposal
regarding offdays which changed only one word in
the old language, providing for the assignment of off-
days by the "publisher," not the "foreman," as previ-
ously provided. On June 7, the Union stated that:
"Except for the Union's outstanding issues, every
other issue would be tentatively okay." Respondent's
representative agreed.
The existing provision, as "tentatively okayed,"
provided for a full day's pay at the overtime rate for
any work performed on an offday. Without any dis-
cussion on this point, on June 7, 1978, Respondent
unilaterally began paying overtime only after 37-1/2
hours, offday or not.
The Board has long held that "after good-faith ne-
gotiations have exhausted the prospects of concluding
an agreement, an employer does not violate the Act
by making unilateral changes that are reasonably
comprehended within his pre-impasse proposals."'
The determination of whether such an impasse has
been reached is strictly a factual judgment. We do not
agree with the Administrative Law Judge's conclu-
sion that the Union refused to bargain in good faith
because the agreed-upon proposals marked "tenta-
tivel) okay" by the Union were in fact still open for
bargaining, and that, by refusing to bargain further,
the Union acted in bad faith. Theretofore. no mean-
ingful issue had been raised with respect to the clause.
In our view, the circumstances amply support the
Union's contention that the parties had agreed to the
offday clause subject to agreement on the contract.
However, even if we did agree that an impasse had
occurred, Respondent's unilateral changes were to-
tally inconsonant with its original offer, which was
almost identical to the Union's offer.
Thus Respondent bargained in bad faith by unilat-
erally instituting a policy which was wholly different
from any comprehended in its proposals to the Union
and, indeed, without a breakdown in negotiations.
Therefore, we conclude that Respondent has violated
Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of ftct, and upon the
entire record in this proceeding, the Board makes the
following:
CON(CI!SIONS O(F LAW
1. 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
meaning of Section 2(5) of the Act.
3. By unilaterally instituting a change in its
method of compensation for offdays, Respondent has
failed to bargain in good faith in violation of Section
8(a)(5) and () of the Act.
4. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
TIHE REMEI)Y
Having found that Respondent has engaged in and
is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) and ( 1) of the Act, we shall
order that it cease and desist therefrom. and, upon
request. bargain in good faith with the Union as the
exclusive representative of its employees with respect
to wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
Ilai Brrotdcailng (.. 163 NLRB 475 (1967): In accord S4( ('onsrruc-
Iwn (onian, I , 235 NI.RB 1211, 1219(1978).
246 NLRB No. 5
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the Board's customary policy to direct a re-
spondent to restore the status quo ante insofar as prac-
tical where that respondent has taken unlawful uni-
lateral action to the detriment of its employees.
Accordingly, we shall order Respondent to make
whole all employees affected by its unlawful change
of compensation for offday work, in accordance with
the formula set out in Ogle Protection Service, Inc.,
183 NLRB 682 (1970), with interest to be computed
in the manner set forth in Florida Steel Corporation.
231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Southern Newspapers, Inc., d/b/a The Baytown Sun,
Baytown, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in its methods
of compensating employees for their offdays and from
refusing to bargain with the Union on such matters.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Bargain in good faith with the Union with re-
spect to wages, hours, and other terms and conditions
of employment, including offday compensation, and
if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make whole the affected employees for any
loss sustained by Respondent's unilateral change in
its compensation for offdays as set forth in the Sec-
tion of this Decision and Order entitled "The Rem-
edy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Baytown, Texas, facility, copies of
the attached notice marked "Appendix."2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
2 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
No lIc To EMPI.OYEES
POSTED BY ORDER OF 'I E
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
W: WILL. NOT refuse to bargain in good faith
concerning rates of pay, wages, hours, or other
terms and conditions of employment, including
offday compensation, with Houston Typographi-
cal Union No. 87, affiliated with International
Typographical Union, AFL-CIO.
WE WII.. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed to them
in Section 7 of the Act.
WE WIlt., upon request, bargain with the
above-named labor organization with respect to
rates of pay, wages, hours, and other terms and
conditions of employment, including offday
compensation, and, if an understanding is
reached, embody such understanding in a signed
agreement.
WE WIL.L. make whole employees affected by
our unlawful change in our method of compen-
sation for work, with interest.
SOUtIIERN NEWSPAPERS, IN(., I)/B/A THEI
BAYI OWN SUN
DECISION
STAI1MEN1 OF THli CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me in Houston, Texas, on Feb-
ruary 13, 1979. Complaint was issued on October 2, 1978,
based on the charge filed by the Houston Typographical
Union No. 87, affiliated with International Typographical
Union, AFL CIO, herein called the Union, alleging that
Southern Newspapers, Inc., d/b/a The Baytown Sun,
herein called Respondent, engaged in acts and conduct vio-
lative of Section 8(a)(5) and (1) of the Act by unilaterally
alterating its methods of compensating employees who are
called into work on their "off-days."
The parties were permitted during the trial to examine
and cross-examine witnesses, to introduce relevant docu-
40
THE BAYTOWN SUN
mentary evidence and to argue orally. Post-trial briefs were
filed for the General Counsel and for Respondent which
have been carefully considered.
FINDINGS OF FACT
1. JURIS)I('ION
Respondent is a corporation duly organized under and
existing under the laws of the State of Texas. At all times
material herein Respondent has maintained its principal of-
fice and place of business at Baytown, Texas, where it is
engaged in the business of publishing a daily newspaper.
During the preceding 12 months, a representative period,
Respondent, in the course and conduct of its business op-
erations, at its Baytown, Texas, place of business, held
membership in or subscription to various interstate news
services including, but not limited to, Associated Press and
the United Press; it also published national syndicated fea-
tures and had gross annual revenues from such publishing
operations in excess of $200,000.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6). and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent has had contractual relations with the Union
for approximately 35 years. The most recent agreement was
in effect from June , 1975, until May 1, 1978.
An "off-day" in the typographical trade is comparable to
a weekend in other industries. Because newspapers are fre-
quently printed 7 days a week, employees are assigned days
other than the usual weekend, to be off from work.
It is the contention of the General Counsel that Respon-
dent ordered its method of compensation for "off-day"
from paying a full day's work at the overtime rate of pay to
paying the overtime rate only for hours worked in excess of
37-1/2 hours, regardless of whether an employee worked on
his off-day.
B. The Bargaining Sessions
The Company and the Union held their first bargaining
session on April 11, 1978, in an effort to succeed the one
then in effect. This meeting was held in the conference
room of the Baytown Sun, in Baytown, Texas. Present at
this meeting on behalf of Respondent were Charles Vickery,
attorney: Jim Finley, manager: and Fred Hornberg. man-
ager. On behalf of the Union, those present were Norman
Taylor, scale committee chairman. Lucille Martin. em-
ployee committeewoman, and Ray Williams, employee
committeeman. Taylor was spokesman for the Union and
Vickery for the Respondent.
At the initial meeting, Taylor gave the Company's repre-
sentatives the Union's original contract proposal. No agree-
ment was reached as to any of the terms of a new contract
because Respondent did not have its proposals ready. but it
agreed to provide them at the next negotiating session.
There was no discussion at this meeting with respect to the
"off-days" topic.
A second negotiating session took place on April 26 with
the same representatives for the parties present who again
met in the conference room of the Baytown Sun. At this
meeting, Vickery passed out Respondent's original propos-
als and included in the suggested language under a proposal
number 28. It was provided that section II of the "off-
days" provision be amended to read as follows:
Section 11: Each regular situation holder shall have
assigned to him by the publisher regular offdays to
limit his working week to five shifts, which shall not be
changed except for rearrangement of the force, in
which case notice shall be given at least 24 hours be-
fore the beginning of the financial week; insofar as
practical, the five shifts constituting a situation shall be
consecutive. If called upon to work on his offdays by
the office, the employee shall be paid for a full-day's
work at the overtime rate of pay.
The General Counsel points out in her brief that the only
change Respondent proposed to make in section I I was the
substitution of the word "publisher" for the word "fore-
man" which is found in the previous contract and in the
Union's current proposal. At this stage of the negotiations,
Respondent proposed no change in the manner of compen-
sation for offday work, i.e.. a full day's work at the overtime
rate of pay. Also, at this meeting, there was no specific
discussion of the off-days problem.
After the April 26 meeting. Respondent made no further
written proposals in regard to offdays, section 11. It offered
a new proposal entitled Publisher's Proposal, June 7. 1978.
That proposal withdrew all Respondent's prior suggestions
except those especially enumerated. Taylor testified that af-
ter receiving his copy of Respondent's June 7. 1978. pro-
posal, he stated to Vickery, "Except for the Union's out-
standing issues, every other issue would be tentatively
okay." Further, according to Taylor and not contradicted
by any other testimony in the record, Vickery replied.
"Yes."
Taylor further testified that offdays. section I1, was only
specifically discussed at one of the ten subsequent negotiat-
ing sessions between the parties. The discussion concerning
offdays that did take place occurred on February 2, 1979.
At this session, which was held at the Federal Mediation
and Conciliation Service, Taylor testified that as the meet-
ing came to a close Vickery suggested that the parties dis-
cuss section I 1. According to Taylor. Frank Karl. an inter-
national union representative, said that he thought there
was nothing to discuss because it was tentatively okayed.
That ended the discussion of the offdays question.
The most recent collective-bargaining agreement set
forth that the overtime rate of pay could be earned by an
employee by either working hours in excess of the normal
shift or by working on their offdays. That contract con-
tained a provision, section 10.3, which states: 7-1/2 hours.
exclusive of lunchtime, shall constitute a day's or night's
work. All work done in excess of 7-1/2 hours per da or
night shall be paid for at the rate of I-1/2 times based upon
the hourly wage rate paid to the employee. After the expira-
41
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
tion of the contract, Respondent. by its attorney Vickery,
stated that it was changing from daily overtime (overtime
for hours worked in excess of 7-1/2 hour shifts) to weekly
overtime (overtime pay only for working in excess of 37-1/2
hours in a week). The fact of this change was embodied in a
notice posted on Respondent's bulletin board on or about
June 15, 1978, as follows:
NOTICE TO COMPOSING ROOM EFFECTIVE
AT 7'CLOCK ON JUNE 15, 1978, OVERTIME
WILL BE PAID ONLY ON HOURS IN EXCESS
OF 37-1/2 HOURS IN ANY WORKWEEK. DAILY
OVERTIME IS DISCONTINUED EFFECTIVE
JUNE 1, 1978.
Chapel Chairman Sherri Moore testified that based on
her own experience under the new management, Respon-
dent changed from a policy of paying employees a full day's
work at the overtime rate of pay, when called into work on
their offday, to a policy of paying the overtime rate fbr
offday work only if an employee's total number of straight-
time hours exceeded 37-1/2 hours. It cannot be said that
there is any question but that the Board found that an em-
ployer's change in its basis for computing overtime pay
constituted a change in conditions of employment about
which Respondent was required to bargain. Thus, it is ar-
gued that an analogous change is evidenced in the instant
case by Respondent's alteration in its computation of off-
day work. From this rationale, the General Counsel urges
that the change made in the instant case should likewise be
found violative of Section 8(a)(5) of the Act because it was
not a subject upon which Respondent and the Union did
any bargaining.
C. The Question of Impasse
The Developing Labor Law, page 330, defines impasse as
follows:
The existence or nonexistence of an impasse is nor-
mally put in issue when, after negotiations have been
carried on for a period of time, the positions of the
parties become fairly well fixed and talks reach a stale-
mate. When this occurs, the employer is free to make
unilateral changes in working conditions ....
The crucial issue in this case revolves around the ques-
tion as to whether or not an impasse had been reached.
Respondent relies on his conclusion that an impasse had
occurred. If this view is accepted, then Respondent could
make a unilateral change without violating the Act. The
General Counsel argues that no impasse had been reached
and, therefore, when Respondent made a unilateral change
in the method of payment for offdays it violated the Act.
The union representative, Taylor. testified that as the
bargaining proceeded, he would mark his copy of the con-
tract proposals "tent. okayed." These words were translated
to me to mean tentatively okay after which, according to
Taylor, the subject covered by these words was removed
from the bargaining table. In other words, the position of
the Union was that once the words tentative okay appeared
alongside a contract proposal, that issue was closed and not
open for further bargaining. Upon hearing these state-
ments, I requested the General Counsel to bring her copy of
the dictionary to the hearing room. The dictionary states
that the word tentative means, not fully worked out or de-
veloped. Despite careful questioning by me, Taylor insisted
that the word tentative meant the issue alongside which this
word appeared, was closed. The record shows that the word
tentative did come up quite frequently during the course of
the bargaining. but that he wanted to explore further what
the provision meant and that it was his desire to further
analyze the clause covering the use of the word tentative
okay. Despite the fact that I questioned Taylor carefully
and suggested that the word tentative in this context meant
that the matter was open to further discussion, Taylor did
not answer directly the interrogation that I directed at him,
but spoke obliquely and never did come to grips with this
subject. The Company, through Vickery, was blocked in his
attempt to explore in depth the subject of payment on off-
days and the Union refused to discuss the subject. It ap-
pears from the record that the contention of the Employer
was not satisfactorily disposed of because the Union re-
fused to discuss the subject. On the basis of the record, I
hold and find that the Union did, in fact, refuse to negotiate
further on this subject. Consequently, I find that an impasse
was reached and that thereafter the Company was within
its right to make a unilateral change without violating the
Act.
CONC('LUSIONS OF L.AWM
I find that Respondent did not violate Section 8(a)(5) of
the Act. It was precluded from meaningful bargaining by
the Union's refusal to discuss the issue of overtime pay on
offdays thus causing the parties to reach an impasse on this
subject.
[Recommended Order for dismissal omitted from publi-
cation.]
42