Baytown Sun, The

National Labor Relations Board - Board Decisions

Mar 20, 1981

255 N.L.R.B. 154 (N.L.R.B. 1981)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Newspapers, Inc., d/b/a The Baytown Sun
and Houston Typographical Union No. 87, af-
filiated with International Typographical Union,
AFL-CIO. Case 23-CA-7788
March 20, 1981
DECISION AND ORDER
On July 7, 1980, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, all parties filed exceptions
and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Southern Newspapers, Inc., d/b/a The Baytown
Sun, Baytown, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
' In adopting the findings and conclusions of the Administrative Law
Judge we find it unnecessary to consider the Administrative Law Judge's
discussion of the presence or absence of impasse at various times during
the period involved herein and do not adopt such findings. Furthermore,
while the record does not support the Administrative Law Judge's find-
ing that Union Representative Sherri Moore was present during the July
1979 negotiations, this error has no bearing on the outcome of this case.
Despite Respondent's exceptions, we find that the post-December 11,
1979, refusal-to-bargain violation, although not specifically alleged, was
fully litigated at the hearing. Although Respondent asserts that it had no
notice of the specific basis for the violation found, its arguments before us
are limited to the law, the sufficiency of the facts, and the interpretation
of facts now in the record. Respondent does not allege that it was pre-
cluded from adducing any exculpatory facts; nor does it argue that it
would have altered its conduct of its case at the hearing in any particular,
had it but received what it would deem notice.
The refusal-to-bargain violation found by the Administrative Law
Judge, though not the exact one alleged, is related to allegations in the
complaint which do assert that Respondent committed that category of
unfair labor practice. The issue was fully and fairly litigated and Re-
spondent has not been prejudiced. Due process requires no more. See,
e.g., Alexander Dawson, Inc.. d/b/a Alexander's Restaurant and Lounge v.
N.L.R.B., 586 F.2d 1300, 1304 (9th Cir. 1978); Crown Zellerbach Corpora-
tion, 225 NLRB 911 (1976), and cases cited therein at 912.
2 We find inappropriate the make-whole order recommended by the
Administrative Law Judge since no unlawful unilateral changes within
the 10(b) period were found. Accordingly, we will delete that portion of
the remedy.
The Charging Party's request for attorney's fees, litigation expenses,
and negotiating expenses is denied as we do not find Respondent's de-
fenses herein to be frivolous. Amsterdam Printing and Litho Corp., 223
NLRB 370 (1976); Heck's Inc., 215 NLRB 765 (1974).
Respondent filed a motion to dismiss the complaint. The General
Counsel and the Charging Party filed oppositions to the motion. The
motion is hereby denied as lacking in merit.
255 NLRB No. 22
1. Delete paragraphs 2(b) and (c) and reletter the
subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT violate Section 8(a)(1) of the
National Labor Relations Act by threatening
an employee and the Union that, if they filed
charges with the National Labor Relations
Board or any court, and received any award,
the amount thereof would be deducted from
any outstanding wage proposal from Respond-
ent.
WE WILL NOT violate Section 8(a)(5) and (1)
of the Act by failing and refusing to bargain
with the Union concerning the change of shift
hours of employees. The appropriate unit in-
volved herein is:
All employees of Respondent at its Bay-
town, Texas facility, who are engaged in the
printing process from the markup or prepa-
ration of copy, until the material is ready for
the camera room, excluding all other em-
ployees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.
WE WILL, upon request, bargain with the
Union as the exclusive representative of all
employees in the appropriate unit described
above, relative to the shift changes of employ-
ees.
SOUTHERN NEWSPAPERS, INC., D/B/A
THE BAYTOWN SUN
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Houston, Texas, on April 24, 1980.1
The complaint, issued February 8, 1980, is based on a
All dates hereinafter are within 1979, unless stated to be otherwise.
THE BAYTOWN SUN 155
charge filed January 22, 1980, by Houston Typographi-
cal Union No. 87, affiliated with International Typo-
graphical Union, AFL-CIO (the Union). The complaint
alleges that Southern Newspapers, Inc., d/b/a The Bay-
town Sun (Respondent), violated Section 8(a)(5) and (I)
of the National Labor Relations Act, as amended (the
Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent. 2
Upon the record of the case,3 and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been, a corporation duly organized under, and existing
by virtue of, the laws of the State of Texas. At all times
material herein, Respondent has maintained its principal
office and place of business at Baytown, Texas, where it
is engaged in the business of publishing a daily newspa-
per. During the past 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; published nationally syndicated
features; and had gross annual revenues from such pub-
lishing operations in excess of $200,000.
Respondent admits, and I find, that Respondent is, and
at all times material herein has been, an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Houston Typo-
graphical Union No. 87, affiliated with International Ty-
pographical Union, AFL-CIO, is, and at all times mate-
2 On June 2, 1980, Respondent filed a brief in reply to the General
Counsel's brief, and by document dated June 5, 1980, the General Coun-
sel filed an opposition to Respondent's reply brief, asking that it be strick-
en. That request is granted, and Respondent's reply brief is stricken on
the ground that the National Labor Relations Board Rules and Regula-
tions do not provide for reply briefs. It is noted that the reply brief is
unnecessary, since it raises the same issue treated, among others, in Re-
spondent's original brief.
3 By letter dated May 14, 1980, Respondent's counsel forwarded to me
a copy of the Union's proposal of May 9, 1980, presented to Respondent
after the hearing herein, and requested that the record be reopened to
admit the proposal into the record. Respondent contends that the charge
in this case was filed in order to enhance the Union's strength at the bar-
gaining table, and that the Union's proposal supports that contention. By
document dated May 30, 1980, counsel for the General Counsel opposed
Respondent's request.
Respondent's request is denied, on the ground that the proffered evi-
dence was prepared after hearing, and is irrelevant to any charge herein.
As noted in the aforesaid letter of May 14, Respondent argues in its brief
that the charge in this case was filed with the Board's encouragement, as
a coercive device. That allegation was not proved at hearing and is not
supported by the proffered evidence.
rial herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
II11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Respondent publishes a newspaper in Baytown, Texas,
where it presently employs eight persons. At times rele-
vant herein, the number of employees has remained at
approximately eight.
Respondent and the Union have been parties to succes-
sive collective-bargaining agreements for the past ap-
proximately 35 years. The most recent agreement was ef-
fective June 1, 1975, to May 31, 1978. Negotiations for a
renewal agreement commenced April 11, 1978, but
agreement has not been reached, although the parties
have met and negotiated at approximately 25 to 30 ses-
sions. The principal issue involved herein arises from the
application of section 12 of the expired 1975-78 agree-
ment. That section states:
DAY-NIGHT-LOBSTER SHIFT
Sec. 12: A day beginning and ending between the
hours of 7 a.m, and 6 p.m. shall be paid the day
rate. A day beginning or ending between 6 p.m. and
7 a.m. shall be paid the night rate. Shifts beginning
after 8:30 p.m. and before 6:00 a.m. shall be consid-
ered the lobster shifts and paid for at the lobster
rate.
Section 12 was discussed at several of the bargaining ses-
sions, as more fully explained infra, but no agreement
was reached. The parties had different views concerning
the wording of a new section 12.
On May 2, 1979, a fire virtually destroyed Respond-
ent's Baytown plant. Prior to that date employees
worked two shifts, one from 7 a.m. to 3 p.m., and one
from 8 a.m. to 4 p.m. Respondent's operation was moved
on May 3 to another newspaper's plant in Galveston,
Texas, approximately 40 miles from Baytown, and re-
mained there until June 18, when it was moved back to
Baytown in temporary quarters. The operation was
moved back into its permanent quarters in January 1980.
During the period May 3 to June 18, Respondent's em-
ployees commuted to Galveston to work. The temporary
move of the operation to Galveston was not discussed in
advance with the Union, nor was the move ever the sub-
ject of negotiations. The move itself is not in dispute.
When the move was made to Galveston, the foreman,
John Hallman, instructed the employees that they would
work from 6 a.m. to 2 p.m., rather than the shift times
they had at Baytown. The change of worktime was nec-
essary because the owner of the Galveston plant needed
the plant starting at 2 p.m., for publication of its own
newspaper. The change of worktime was not discussed
in advance with the Union. Employees were paid for the
6 a.m. to 2 p.m. shift, at the regular day rate they previ-
4 The background summary is based on credited testimony and evi-
dence that is not in dispute.
THE BAYTOWN SUN
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously had been paid for working the shifts from 7 a.m. to
3 p.m., and 8 a.m. to 4 p.m.
When the operation was moved back to Baytown on
June 18, the employees were retained on the same shift
schedule; i.e., from 6 a.m. to 2 p.m. On June 30 Carol
Smith, who had replaced Hallman as supervisor, placed
two employees on a 7 a.m. to 3 p.m. shift. The employ-
ees were notified of the change by a notice posted on the
bulletin board, in accordance with past practice relating
to shift changes. Approximately September 15 or 18, two
more employees were put on the 7 a.m. to 3 p.m. shift,
by a notice to that effect posted on the bulletin board.
The remaining four employees continued to work on the
6 a.m. to 2 p.m. shift until December 14, when they were
notified by bulletin board notice that they were changed
to the 7 a.m. to 3 p.m. shift. All employees worked from
6 a.m. to 2 p.m. each Saturday, at all times relevant
herein. During all the time employees worked from 6
a.m. to 2 p.m. they were paid at the day rate. None was
paid at the night rate. 5 None of the shift changes of em-
ployees ever was discussed with the Union, or with the
employees.
B. Issues
The principal issue is the Union's contention that Re-
spondent changed employees' working conditions by
having them work night-shift hours at day-shift rates,
unilaterally in the absence of an impasse in negotiations.
A second issue results from Respondent's denial, in its
answer, that the appropriate unit is all employees of Re-
spondent at its Baytown, Texas, facility, who are en-
gaged in the printing process from the markup or prepa-
ration of copy until the material is ready for the camera
room, excluding all other employees. Subsidiary to this
issue is Respondent's denial in its answer that the Union
is, and at all times relevant herein has been, the bargain-
ing representative of employees in the aforesaid unit.
A third issue is whether or not the charges herein are
barred by Section 10(b) of the Act.
1. Change of working conditions (shift hours)
The fact of change on May 3 of unit employees' shift
hours is not in dispute. Respondent's principal defense on
this issue is that the parties were at an impasse in their
negotiations, and that institution of its final offer was jus-
tified.
The parties have been without a contract since May
31, 1978, and held their last negotiation session on Janu-
ary 11, 1980. During that period of time they have held
25 or 30 negotiating sessions,6 and have met on more
than one occasion with a Federal mediator, the last such
meeting with the mediator having been held November
15, 1979. At that time, according to the testimony of
Norman Taylor, who is a member of the Union and one
of the principal union negotiators in this matter:
I Shift rates are set forth in sec. 10 of the expired bargaining agree-
ment.
6 Dates of only a few of the sessions, discussed infra, were established
at the hearing.
He said when we were separated, not together,
that he could see the problems of both parties. He
knew what the company wanted and he knew what
the Union wanted. He understood that the Union
had changed its position in all kinds of ways on job
security and jurisdiction. But the company insisted
on sticking to their proposal and would not change.
The Union was always very flexible on this and he
recognized that fact. He did state to us that he
could see that it was no good of him sitting in the
way that we were going. He was mediating trying
to help, but he could not help.
In November 1979 the Union organized a boycott
against Respondent, circulated boycott handbills, and
used radio broadcasts to advertise the boycott. Taylor
appeared in his testimony to agree that the parties were
at impasse:
Q. Mr. Taylor, there has been some testimony
here by Mr. Vickery, that negotiations had been at
an impasse for a long time, and there has been no
movement made. Could you tell me briefly, what
the main areas of contention have been during the
course of these negotiations?
A. The main area is jurisdiction, job security. If
we were going to give the company certain juris-
diction in return we needed job security for the
people who were working there. And, this has been
the main drawback. Also, the number of the em-
ployees that the company would guarantee a job to.
Charles Vickery, Respondent's attorney and principal ne-
gotiator, testified that section 23 of the 1975-78 bargain-
ing agreement, which he termed to as a "featherbed-
ding," or "bogus," provision, long has been objected to
by Respondent, and that its deletion is insisted upon by
Respondent, whereas the Union insists upon trading that
deletion for concessions Respondent is not willing to
make, including retroactive pay. Vickery stated that sec-
tion 23 has been a principal factor, with some others,
that created the impasse. Sherri Moore, one of Respond-
ent's employees and the Union's steward in the unit, tes-
tified relative to section 23 that the provision has not
been used in the past 5 years. However, she further testi-
fied:
Q. Ms. Moore, if bogus hasn't been used in the
five years you have been there, why has your
Union Committee refused to delete it from the con-
tract?
A. It's part of the contract. It hasn't come up that
I know of, in the time that I have been negotiating
as far as working it-using it.
Q. It is in every one of the company proposals to
delete it, is it not?
A. Uh-huh.
JUDGE STEVENS: IS your answer, yes?
THE WITNESS: Yes.
Q. (By Mr. Vickery) Why haven't you agreed to
delete it?
A. I am not really sure exactly why. I am part of
the bargaining group.
THE BAYTOWN SUN 157
Taylor acknowledged that the Union has refused to
delete section 23 except in exchange for concessions by
Respondent:
Q. Why do you refuse to delete the bogus clause?
A. We haven't refused to delete it. I have had ex-
perience where I work now. I have got job security
for life. This was traded to the publishers and every
employee got job security from it. So, I feel that the
bogus is in there, and you say you want it deleted.
And, I feel that we should trade it for something.
Over the table, at times, I think once you said, the
people could get 40 hours and a wage increase and
give up reproduction. I said give us retroactive for
it.
* $ * * *
Q. Is the reason you won't agree to delete bogus,
because you want to sell it or trade it for something
else?
A. We feel it is a bargaining position that we can
use to trade for something else. We do. Yes.
Vickery testified as follows:
There hasn't been any movement of any substance
by the Union since June 1978. In fact, the Labor
Board found-the Regional Director here found an
impasse as of June 15, 1978, and the Union has
made no significant concession since before June
15th, when we made a unilateral change in the con-
tract and the Board said it was justified. If I remem-
ber correctly, that was because an impasse had been
reached, and they refused to prosecute the charge.
That is why we want the Board to produce the
charges and the General Counsel determinations.
Vickery's testimony was not challenged by the General
Counsel, and the matter was not pursued or explained.
Although the parties have met and negotiated many
times, events that occurred at those meetings were not
explored at hearing, other than in general terms and in a
tangential manner. Results of negotiations relative to sec-
tion 12 were testified in some detail, however, as dis-
cussed infra. In any event, it is clear that the parties have
negotiated rather exhaustively, and that there have been
some concessions on both sides. Witnesses for both sides
testified that the opposing side did not exhibit complete
good faith in bargaining, but the General Counsel does
not allege, nor does the record show, that Respondent
engaged in bad-faith bargaining. The number of negotia-
tion sessions held by the parties prior to May 3 is not
controlling but, generally, the more meetings there are,
the more likely is the possibility of finding an impasse. 7
It seems likely, in view of the foregoing, that the par-
ties were at impasse as of the date of hearing, but that is
not the controlling date. For an impasse to constitute a
defense to the charges, it would have to be established as
of May 3, when the shift change was effected. It is Re-
spondent's burden to show an impasse as of that date,
7 Fetzer Television. Inc. v. ..L.R., 317 F.2d 420 (6th Cir. 1963).
and that burden was not met. The history of bargaining
relative to section 12 is as follows:
On April 11, 1978, the Union and Respondent held
their first bargaining session. Taylor distributed the
Union's original contract proposals, which included a
provision for section 12 "Day-Night-Lobster Shifts." The
Union's proposal on section 12 was that the language
remain the same as it was in the contract then in effect.
On April 26, 1978, representatives of the Union and
Respondent again met to bargain and Vickery distributed
Respondent's original contract proposals. Respondent's
proposal number 29 provided that section 12 of the pre-
vious contract be amended to read as follows:
DAY-NIGHT-SHIFT
Section 12: Hours worked beginning and ending be-
tween the hours of 7 a.m. and 6 p.m. shall be paid
the day rate. Hours worked beginning or ending be-
tween 6 p.m. and 7 a.m. shall be paid the night rate.
The rate of pay will be determined solely by the
time the hours are actually worked. Such rate will
not be determined on a daily basis.
Respondent's proposal would discontinue the "lobster"
shift, and make the shift differential payable only for
hours actually worked. There was no discussion of sec-
tion 12 at this meeting.
At the negotiating sessions held on June 7 and 14,
1978, Respondent presented the Union with "package"
contract proposals, each of which proposed that section
12 be amended to accord with Respondent's April 26,
1978, proposal.
There was no further discussion of section 12, nor
were any other proposals made relative to that section,
until the negotiating session of November 15, 1979, when
Respondent proposed that section 12 be deleted in its en-
tirety. Union Representative Frank Karl asked Vickery
why Respondent proposed to delete section 12, and
Vickery replied that there would be no night rate. Karl
then stated that the Union's proposal would be that sec-
tion 12 remain the same as it was in the previous con-
tract.
The next negotiating session was held on November
19, 1979, during which the Union made a counterpropos-
al to Respondent's November 15 proposal relative to
Section 12. The Union's counterproposal deleted the
"lobster" shift and left the night rate open to later nego-
tiation. Vickery rejected the counterproposal, stating
there would be no night rate. Respondent offered no
other proposal at this session relative to section 12, and
there was no further discussion of the section at this ses-
sion.
Taylor credibly testified that, at the next negotiating
session held on November 20, 1979, he orally altered his
November 19, 1979, proposal to read "night shift" rather
than "night rate." According to Taylor, Vickery again
rejected the proposal, stating there would be no night
rate.
The parties last met on January 11, 1980, during which
session the only business relative to section 12 was a dis-
THE BAYTOWN SUN '5
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussion concerning Respondent's unilateral institution of
a change in shift hours.
As shown above, there was no bargaining concerning
section 12 between the date of Respondent's submission
of its proposal on April 26, 1978 (as affirmed by a "pack-
age" proposal on June 7 and 14, 1978), and May 3, 1979.
Thus, Respondent did not establish an impasse on section
12, as of May 3. As discussed supra, Respondent did not
show an impasse in bargaining for a contract as of May
3, even though an impasse may have existed at some date
thereafter. By changing shift hours on May 3, without
bargaining with the representative of its employees, Re-
spondent violated Section 8(a)(5) and (1) of the Act.8
The General Counsel argues that, even though the
parties may not have been at impasse on May 3, the shift
hours placed in effect by Respondent were different
from Respondent's last offer, hence the change cannot be
justified as a response to the impasse. As shown above,
the shift change of May 3 was not the same as Respond-
ent's last offer prior to that date. The question is whether
or not the change was "consistent" with the last offer.
The General Counsel cites SAC Construction Company,9
and Allen W. Bird II,' ° as authority for the argument
that Respondent's last offer was not consistent with the
change it made. However, those cases are inapposite
since, in both of them, Respondent had made no propos-
als concerning the matters which were the subjects of
unilateral changes, and the matters never had been bar-
gained. Board law does not require that any change in
the face of an impasse must be exactly the same as a
prior proposal, nor does Board law require that the
change must have been the subject of a specific proposal.
What is required is that the change must have been rea-
sonably comprehended by proposals previously of-
fered. I"
The reason for Respondent's original proposal was not
the same as that of the change of May 3. The original
proposal was directed to elimination of the lobster shift,
and anticipated normal bargaining concerning shift work.
The change of May 3 was a response to an emergency
situation. As argued by Respondent, that emergency was
real, and was serious. The reason for changing the shift
well may have been a good one. However, the change
was instituted because of the emergency, and with the
goal of responding to that emergency without increasing
costs by paying more than day-shift rates. The fact that
an emergency existed is not necessarily a proper basis for
unilateral institution of change during negotiations. It is
found that the shift change was not reasonably compre-
hended by Respondent's proposal of April 26, 1978.
8 Respondent's argument that it was unable to get in touch with union
representatives because Frank Karl, the International representative, was
not in town, and the situation was an emergency. is found to be without
merit.
9 SAC Construction Company. Inc., 235 NLRB 1211 (1978).
'o Allen W. Bird II. Receiverfor Caravelle Boat Company, a Corporation,
and Caravelle Boat Company, 227 NLRB 1355 (1977).
' O'Malley Lumber Company, 234 NLRB 1171, 1178; Taylor-Winfield
Corporation, 225 NLRB 457, 462 (1976); Taft Broadcasting Co.. WDAF
AM-FM TV, 163 NLRB 475, 478 (1967).
2. Appropriate unit and representative status of the
Union
Respondent's denial of the unit and the Union's status
has no support in the record. Further, Respondent's
counsel does not argue this issue in his brief and, to the
contrary, argues from facts that support the General
Counsel's allegations in the complaint relative to these
matters.
Taylor has participated in all negotiations between Re-
spondent and the Union, for an agreement to succeed the
contract which expired May 31, 1978. Taylor credibly
testified concerning facts outlined in the background sec-
tion, above, that the parties have had successive agree-
ments approximately 35 years, that the most recent
agreement expired May 31, 1978, and that the parties
have been negotiating to the present, for a successor
agreement. So far as the record shows, there has been no
change in the unit over the past 35 years. Therefore, the
presumption is that the Union was, during the term of
the expired contract, and now is, the representative of
employees in the unit described above.' 2 Respondent of-
fered no testimony or evidence to rebut that presump-
tion. The allegations of the complaint concerning this
issue are supported by the record.
3. The 10(b) issue
The pertinent portion of Section 10(b) of the Act is as
follows:
Provided, That no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made, unless
the person aggrieved thereby was prevented from
filing such charge by reason of service in the armed
forces, in which event the six-month period shall be
computed from the day of his discharge.
The shift change was made on May 3, 1979, and em-
ployees were not finally restored to the day-shift hours
until December 14, 1979. The charge was filed January
22, 1980. Therefore, the 10(b) period is applicable prior
to July 22, 1979.
The first question is whether or not the 10(b) period
applies as of May 3, 1979, or whether the violation is of
a "continuing" nature.
The Board long has drawn a distinction between those
complaints based on charges that an unfair labor practice
has occurred outside the 10(b) period, and those based
on actions which, although arising outside the 10(b)
period, nevertheless give rise to independent violations
within the 10(b) period. For example, promulgation of an
overly broad, invalid no-solicitation rule outside the
10(b) period is not actionable, yet maintenance and en-
forcement of that rule within the 10(b) period is action-
able.13 The same approach has been followed in the case
12 Barrington Plaza and Tragniew. Inc., 185 NLRB 962 (1970), and
cases cited therein.
':' Varo. Inc.. 172 NLRB 2062 (1968).
THE BAYTOWN SUN 159
of a rule proscribing distribution of literature by off-duty
employees in nonworking areas during nonworking
time.1 4 Similarly, cases consistently hold that Section
10(b) does not bar legal action when an employer repeat-
edly refused to bargain, and a complaint is filed within 6
months of one such refusal, even though the initial refus-
al was outside the 10(b) period.' s In these lines of cases,
and others of similar nature, the actions complained of
under the Act constitute, as a substantive matter, unfair
labor practices. They can stand alone. Events outside the
10(b) period are admissible to shed light on those prac-
tices, but that evidence does not change the nature of the
practices themselves.
The foregoing lines of cases are distinguishable from
cases wherein conduct occurring within the 10(b) period
can be considered unfair labor practices only through re-
liance on an earlier unfair labor practice outside the 10(b)
period. The latter cases are epitomized by Bowen Prod-
ucts Corporation,'6 and Greenville Cotton Oil Company17
In Bowen, an employee was included in a layoff within
the limitation period, as a result of his seniority status
discriminatorily established outside the limitation period.
The Board dismissed the complaint on the basis that the
only support for holding the layoff to be unlawful would
be a determination that the discriminatory establishment
of seniority status was unlawful. The limitation of the
statute precluded such a holding. In Greenville, strikers
who had been permanently replaced demanded reinstate-
ment on the ground that the strike had been caused or
prolonged by unfair labor practices committed by the
employer prior to the hiring of replacements. The al-
leged unfair labor practices were outside the 10(b)
period, and the Board refused to order reinstatement.
The question here, then, is whether Respondent's ac-
tions within the 10(b) period are independent, substantive
unfair labor practices, or whether those actions could be
unfair labor practices only if they are grounded on unfair
labor practices outside the 10(b) period. The fact that
Respondent initially committed an unfair labor practice
on May 3, by changing shift hours, is found above. No
timely charge was filed on the basis of that unfair labor
practice. Thereafter, on June 30, two employees were re-
turned to the 7 a.m. to 3 p.m. shift and, on September 15
or 18, two more employees were returned to that shift.
The remaining four employees were returned to the 7
a.m. to 3 p.m. shift on December 14. Changing shift
hours of employees is not, in and of itself, an unfair labor
practice. The General Counsel does not contend, and the
record does not show, that the changes were made for
an improper reason. The record establishes that the shift
change made on May 3 was dictated solely by emergen-
cy business requirements. The reason, or reasons, for Re-
spondent later returning employees to their original shifts
was not established at hearing, but there is no indication
14 Cone Mills Corporation White Oak Plant, 174 NLRB 1015 (1969).
l' J. Ray McDermott & Co.. Inc. v. N.L.R.B.. 571 F.2d 850, 858. (5th
Cir. 1978).
's 113 NLRB 731 (1955).
17 92 NLRB 1033 (1951), affd. sub nom. American Federation of Grain
Millers. A. F of L. v. N.L.R.B., 197 F.2d 451 (5th Cir. 1952). See also
Local Lodge No. 1424, International Association of Machinists. AFL-CIO.
et al. [Bryan Manufacturing Co.] v. N.L. R.B., 362 US. 411 (1960).
that the changes were discriminatory, or constituted
unfair labor practices.
The question then becomes, whether or not the Union
revived the otherwise time-barred violation, by request-
ing of Respondent that it bargain about the change, on a
date, or dates, within the 10(b) period. Paragraph 15 of
the complaint alleges, and it is found, that Respondent
changed employees' starting times without notice to the
Union, and paragraph 17 alleges, and it is found, that Re-
spondent changed the shift rate of pay for such employ-
ees without notice to the Union.
The General Counsel contends that Respondent con-
cealed its activity by misleading Taylor and Frank Karl,
a representative of International Typographical Union
who participated in the negotiations referred to herein.
Taylor testified that, on May 17, he wrote a letter to
Vickery reading as follows:
It is our understanding that the Baytown Sun's
plant was severely damaged as a result of fire earli-
er this month. We further understand that publica-
tion has been discontinued at the Baytown location,
and that a number of the employees are being re-
quired to perform their work in Galveston at the
Galveston Daily News.
We realize such an event must necessarily result
in a substantial disruption in normal operations and
hereby offer to cooperate in any way possible.
So that we may have a better understanding of
what has taken place to date, and what the compa-
ny's future intentions are with respect to its employ-
ees, we hereby request a meeting at the earliest op-
portunity.
Mr. Karl and our committee will be available to
meet on any date that is convenient for the compa-
ny upon reasonable notice.
Taylor further testified that he never received a response
to the letter, and that he first knew employees' shift
hours had been changed when Karl was so informed by
Moore during a union caucus at a negotiating session on
December 11. Moore has been employed by Respondent
approximately 13 years, is one of the unit employees
whose hours were changed, is a member of the Union, is
a member of the Union's negotiating committee, has at-
tended all negotiation sessions between Respondent and
the Union, is the chapel chairman and has occupied that
position approximately 3 or 4 years, keeps timesheets of
employees, files grievances for employees, and receives
complaints from employees. It is clear, and found, that
Moore is a union steward, and an agent of the Union in
that capacity. Taylor testified that, when the union nego-
tiators returned to the general meeting following the
union caucus, Karl asked Fred Hornberger, one of Re-
spondent's negotiators, "Do you realize that people are
starting at 6:00 a.m... ?" to which Hornberger replied,
"No." Taylor said Karl then asked, "Do you know that
these people should be getting paid a night rate," to
which Vickery replied that no one was going to get a
night rate because they did not have a night shift. Taylor
said that, after he, Karl, and Joseph Pineda, the Union's
THE BAYTOWN SU
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president, returned to their office, they drafted a letter
reading as follows:
December 11, 1979
Mr. Leon Brown
c/o Baytown Sun
P.O. Box 90
Baytown, Texas 77520
Dear Mr. Brown:
It has come to the Union's attention of the Rep-
resentative Karl on December 11, 1979, that when
he was going to make a counter proposal on Sec-
tion 12, relating to Day and Night Scale that the
Company had not been paying the night scale when
it changed employees starting times from 7:00 a.m.
and 8:00 a.m. to 6:00 a.m.
The Union is requesting the Company to pay the
employees the differential between the night and
day scale which they should have received. This
also relates to overtime.
The Union assumes this had been an oversight on
your part and not a unilateral change and hopes this
adjustment will be made as soon as possible.
Very truly yours,
/s/Joseph Pineda
Joseph Pineda, President
HOUSTON TYPOGRAHICAL UNION #87
JP:nmg
OPEIU #129
AFL-CIO
CC: Charles R. Vickery, Jr.
P.S. Please respond to this request in writing at
your earliest convenience at the above address.
Taylor testified that the Union has received no reply to
the letter, and that, during the negotiation session of Jan-
uary 11:
We met and then Mr. Karl said that we hadn't
had a response from our letter and Mr. Vickery re-
plied that we didn't deserve a response because he
was not paying overtime. Mr. Karl said that we are
not discussing overtime, we were discussing the
night rate.
Q. And what, if anything, was said then?
A. And then Mr. Karl said that our people
should be getting 85 cents an hour more. And Mr.
Karl said that if our people did not get it, we would
have to go to the Board to get our money.
Mr. Vickery said that we did not deserve the
money, we would not get the money, and if we did
pursue it to litigation that any money that we might
receive would be deducted from the outstanding
wage proposal from the company. He said, "If you
crook us that way we are going to have to fight."
Karl generally corroborated Taylor, and further testi-
fied that, during a meeting of the negotiators with a Fed-
eral mediator in July 1979:
At that time I asked him about the fire. And, I said,
"What effect did it have on the Bargaining Unit?"
Mr. Hornberger said that it had no effect.
I said, "Well, what about any effect on working
conditions of the Bargaining Unit?"
He said there was no effect or change. He said
that they were printing their paper in Galveston
and setting up-composing it there, and I guess,
later on they went over to Baytown in some ware-
house and printed it.
Taylor corroborated Karl's testimony on this point.
Moore corroborated Taylor and Karl.
The law is well settled that the 6-month limitation
period prescribed by Section 10(b) of the Act does not
begin to run on an alleged unfair labor practice until the
person adversely affected is put on notice, actually or
constructively.' 8 One question here is Moore's status. As
described above, Moore is closely tied to the Union, in
addition to being one of Respondent's unit employees.
Moore was fully advised of Respondent's actions follow-
ing the fire, since she was a participant in those actions.
Moore worked closely with the Union, and attended all
the approximately 25 or 30 negotiation sessions. She was
more than a union steward, and her knowledge of Re-
spondent's actions relating to the shift changes was the
Union's knowledge.' 9 If she did not advise the Union of
what was happening, that fact would be surprising, but it
is irrelevant herein. What is relevant is the fact that she
was fully aware of what Respondent was doing.
So far as alleged concealment is concerned, the record
shows that it did not exist. Moore knew about all shift
changes, when they occurred, as did all unit employees.
The shift change of May 3 was not put on the bulletin
board in advance, as had been done in the past, because
the bulletin board at Baytown had been destroyed by
fire.
A further question is whether there was an oral re-
quest to bargain during a July session described by Karl
in the colloquy quoted above. Vickery, Moore, and
Taylor attended that meeting, and corroborated Karl.
The questioning by Karl did not constitute a request to
bargain about the shift changes. Karl's questions were
ambiguous, they were not directed toward bargaining,
and they were made in the presence of Moore, who was
knowledgeable about the shift changes, but who did not,
according to the record, make any comment about the
changes when Karl asked about them. In any event, the
General Counsel did not establish the date of the alleged
conversation, and a finding cannot be made that that
18 Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Painters of America AFL-CIO (Skippy Enterprises Inc.),
211 NLRB 222 (1974); Alabaster Lime Company. Inc.. 194 NLRB 1116
(1972); L. C. Cassidy &d Son, Inc., 185 NLRB 920 (1970).
19 International Association of Bridge, Structural and Ornamental Iron-
workers. Local No. 423. AFL-CIO (Robert E. McKee, Inc.). 233 NLRB
283 (1977): United Asvsociation of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada. Local Union
No. 83. AFL-CIO (Power City Plumbing & Heating, Inc), 238 NLRB 499
(1978); International Brotherhood of Teamsters. General Drivers. Chauffeurs
and Helpers Local Union No. 886 (Lee Way Motor Freight. Inc.), 229
NLRB 832 (1977).
161THE BAYTOWN SUN
date was not within the 10(b) period, which covered all
events prior to July 22.
It is clear that Pineda's letter dated December 11,
1979, addressed to Leon Brown of Respondent, de-
scribed above, constituted a request to bargain. From
and after receipt of that letter, Respondent was obligated
to bargain with the Union concerning the shift change,
and refusal to do so was a violation of Section 8(a)(5)
and (1) of the Act, as alleged in the complaint. As stated
in J. Ray McDermott & Co., Inc. v. N.L.R.B., 571 F.2d
850, 858:
This circuit has twice held that each refusal to
bargain by an employer under a duty to bargain is a
violation of the employer's duty, and that the pas-
sage of more than six months' time from one such
refusal does not bar action by the NLRB on a
timely complaint based on a subsequent refusal.
N.LR.B. v. Louisiana Bunkers, Inc., 5 Cir. 1969,
409 F.2d 1295, 1299-1300; N.L.R.B. v. White Con-
struction & Engineering Co., 5 Cir. 1953, 204 F.2d
950, 952-953. Our reasoning is not controlled by a
conclusory labeling of the employer's duty or of his
violation as a "continuing" one. Rather, we recog-
nize that the primary purpose of the six-month rule
is to assure prompt adjudications of disputes based
on fresh evidence. McDermott's refusal to bargain
was based on motives contemporaneous with its re-
fusal to bargain on April 21, 1976. The filing of a
complaint on April 29, 1976 brought those motives
into question, and was timely with regard to the
unfair labor charge alleged. Cf., Local Lodge 1424 v.
NLRB, 1960, 362 U.S. 411, 416-422, 80 S. Ct. 822,
4 L.ED . . .; N.L.R.B. v. McCready and Sons Inc.,
6 Cir. 1973, 482 F.2d 872.
The final question on this issue is the Union's letter of
May 17, 1979, to Vickery, quoted supra. The 10(b)
period is applicable any time prior to July 22, 1979,
which is 6 months prior to the filing of the charge on
January 22, 1980. Thus, the letter of May 17 did not con-
stitute a timely request to bargain, regardless of its con-
tent.
4. Alleged 8(a)(1) statement
Paragraph 18 of the complaint alleges that, on or
about January 11, 1980, Vickery told employees that, if
they filed any charges with the Board or in the courts
and recovered any backpay award, that award would be
subtracted from Respondent's outstanding wage propos-
al.
The fact, and date, of Vickery's statement, or that he
made a similar statement of the same import, credibly
was testified to by Taylor, Karl, and Moore, and was not
denied by Vickery.
Only Moore of the three who were present was an
employee, at the time the statement was made, and
Moore was not present as an employee-she was present
as a union representative. However, the General Counsel
does not ground the argument in the brief upon coercion
of an employee, even though the complaint is couched in
such language. Argument in the brief addresses the con-
cept that Vickery's remarks "inhibit free access or resort
to the Board's processes." Thus, Houston Chronicle Pub-
lishing Company,20 cited by the General Counsel, is ap-
plicable.
It may be argued that Houston Chronicle is distinguish-
able, since there the threat was to file an action against
the union in damages if National Labor Relations Board
charges were filed by the union instead of going to arbi-
tration under the bargaining agreement. Similarly, Clyde
Taylor,2 ' relied on by the administrative law judge in
Houston Chronicle, involved a threat to file a libel suit if
a union charge with the Board was not dropped. How-
ever, that is a distinction without a legal difference.
Here, the threat was to lower a contract offer if a charge
with the Board was pursued by the Union. The effect of
the threat, as in Houston Chronicle and Clyde Taylor, was
to put pressure on the union because of the union's resort
to the Board's processes. The Board's processes, as well
as employees' rights, were impinged upon. Thus, the
threat was coercive, and in violation of Section 8(a)(l) of
the Act. 22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices in violation of Section
8(a)(1 and (5) of the Act, it will be recommended that
Respondent be ordered to cease and desist therefrom,
and to take certain affirmative action designed and found
necessary to effectuate the policies of the Act.
It has been found that employees' shift hours were
changed on May 3, 1979, that the Union requested on
December 11, 1979, that Respondent bargain concerning
any changes in employees' working conditions resulting
from a fire that virtually destroyed Respondent's plant
on May 2, and that Respondent refused to bargain as the
Union requested. I shall, therefore, recommend that Re-
spondent cease and desist from refusing to bargain with
the Union concerning any change of employees' working
conditions, and that Respondent make whole all employ-
ees whose shift hours were illegally changed by Re-
spondent, effective from and after December 13, 1979,23
with interest thereon to be computed in the manner pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).24
22 227 NLRB 1829 (1977).
21 Clyde Taylor. d/hb/a Clyde Taylor Company, 127 NLRB 103 (1960).
2' See also West Point Pepperell. Inc.. 200 NLRB 1031 (1972),
23 Two days are allowed for intracity mail.
21 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
SUN
161
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Southern Newspapers, Inc., d/b/a The Baytown
Sun, is, and at all times material herein has been, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Houston Typographical Union No. 87, affiliated
with International Typographical Union, AFL-CIO, is,
and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All employees of Respondent at its Baytown, Texas
facility, who are engaged in the printing process
from the markup or preparation of copy, until the
material is ready for the camera room, excluding all
other employees.
4. The Union is, and at all times material herein has
been, the exclusive bargaining representative of all em-
ployees in the appropriate unit described above.
5. Respondent violated Section 8(a)(1) of the Act by
threatening an employee and the Union that, if they filed
charges with National Labor Relations Board or any
court, and received any award, the amount thereof
would be deducted from any outstanding wage proposal
from Respondent.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain with the Union
concerning the change of shift hours of employees.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 5
The Respondent, Southern Newspapers, Inc., d/b/a
The Baytown Sun, Baytown, Texas, its officers, agents,
successors and assigns, shall:
z5 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1. Cease and desist from:
(a) Violating Section 8(a)(1) of the Act by threatening
an employee and the Union that, if they filed charges
with National Labor Relations Board or any court, and
received any award, the amount thereof would be de-
ducted from any outstanding wage proposal from Re-
spondent.
(b) Violating Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to bargain with the Union concerning
the change of shift hours of employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive representative of all employees in the appropriate
unit described above, relative to shift changes of employ-
ees.
(b) Make whole all employees whose shift hours were
changed on and after May 3, 1979, by paying said em-
ployees in accordance with rates established by the
Union and Respondent for hours worked by those em-
ployees on and after December 13, 1979, with interest.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its Baytown, Texas, facility copies of the
attached notice marked "Appendix." 2 6 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices 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.
28 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."