Courier-Journal Lithographing Co. of Georgia

National Labor Relations Board - Board Decisions

Sep 28, 1973

206 N.L.R.B. 222 (N.L.R.B. 1973)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Courier-Journal Lithographing Co. of Georgia and Bir-
mingham Printing Pressmen and Assistants ' Union,
Local 121 . Case 10-CA-9940
September 28, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 16, 1973, Administrative Law Judge Jo-
seph I. Nachman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a supporting brief, and a motion to remand.
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 and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Courier-Journal Lithograph-
ing Co. of Georgia, Birmingham, Alabama, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' The motion to remand , in our opinion , raises no material or substantial
issues of fact or law relevant to the proceeding herein Accordingly, we deny
such motion.
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This pro-
ceeding tried before me at Birmingham, Alabama, on April
12, 1973, with all parties present and duly represented, in-
volves a complaint I pursuant to Section 10(b) of the Na-
tional Labor Relations Act, as amended (herein the Act),
which alleges in substance that on September 27,2 and at all
times thereafter, Courier-Journal Lithographing Co. of
Georgia (herein Respondent or Company), refused to sign
a collective-bargaining contract agreed upon between the
i Issued March 1, 1973, on a charge filed and served on January 16, 1973.
2 This 'and all dates hereafter mentioned are 1972, unless otherwise indi-
cated.
Company and Birmingham Printing Pressmen and Assis-
tants' Union, Local 121 (herein the Union), the collective-
bargaining representative of Respondent's employees in an
appropriate unit, in violation of Section 8(a)(5) of the Act.
By answer, Respondent admitted certain allegations of the
complaint, but denied the commission of any unfair labor
practice. For reasons hereafter stated, I find the allegations
of the complaint sustained by the evidence, and recom-
mended an appropriate order.
At the trial full opportunity was afforded all parties to
introduce relevant evidence, to examine and cross- examine
witnesses , to argue orally on the record, and to submit
briefs. Oral argument was waived by the parties . Briefs sub-
mitted by the General Counsel and Respondent, respective-
ly, have been duly considered. Upon the pleadings,
evidence, stipulations of counsel, and the entire record in
the case, including my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT 3
On April 12, following prescribed procedures, the Board
certified the Union as the exclusive collective-bargaining
representative of Respondent's employees in an appropriate
unit .4 Shortly after the certification, the parties began bar-
gaining for a contract, and on July 19, following a strike
which lasted about 10 days, agreement was reached on all
terms of a contract, retroactive to July 17, to be effective for
2 years. A written document reflecting the terms agreed
upon was to be prepared by Respondent's counsel.
Under date of August 4, counsel for Respondent forward-
ed a complete contract to Baron Watkins, a representative
of the International Union. The latter forwarded the docu-
ment to John Mize, secretary-treasurer of the certified Lo-
cal, for checking to make certain that document correctly
reflected all agreements reached. Finding the document in-
accurate in several respects, Mize met in late August with
Hiller, the then executive vice president of Respondent, and
they agreed'that certain changes in the document were ne-
cessary to make it correctly reflect the agreements reached.
Hiller accordingly advised company counsel regarding the
necessary charges in the contract. Counsel made the re-
quired revisions, and forwarded the revised document on
September 13, to Union Agent Mize. The parties agree the
draft contract correctly reflects the entire agreement of the
parties. Among the provisions in the contract is a three-step
grievance procedure, culminating in binding arbitration.
Because he received the contract just prior to going to the
Union's convention, Mize was unable to promptly proof it,
but did so about the latter part of September. The following
'Wednesday (October 3), Mize went to Respondent's Bir-
mingham plant where he had some discussions with Ronald
Brown who had then recently become manager of that
plant. The main purpose of Mize's visit was to discuss other
3 No issue of commerce or labor organization is presented. The complaint
alleges and the answer admits facts which establish these jurisdictional ele-
ments. I find those facts to be as pleaded.
4 The unit was described as "All full-time and regular part-time employees
. at its Birmingham, Alabama plant, excluding office clerical employees,
professional employees , salesmen, guards and supervisors as defined in the
Act .. .
206 NLRB No. 44
COURIER-JOURNAL LITHOGRAPHING CO.
matters, but while there Mize asked Brown, who was in
virtually daily contact with Hiller, to tell the latter that the
Union was ready to sign the contract, and that Hiller should
arrange to meet with Mize for that purpose. The following
day Brown telephoned Mize and stated that he had deliv-
ered his message to Hiller, and that the latter "would be in
touch." 5 Mize having heard nothing from Hiller, on Octo-
ber 28, addressed a letter to'the latter, at his Louisville
office, stating in substance, that virtually a month had
passed since Brown had advised that he (Hiller) would be
in touch, and asked that Hiller give the matter his prompt
attention. A copy of this letter was sent to Company Attor-
ney Greenbaum. On November 6, Company counsel re-
plied to Mize's letter of October 28. After taking Mize to
task for what Greenebaum called the "unpleasant implica-
tion" that Respondent was to blame for the delay in the
execution of the contract, he concluded his letter thusly:
If you send us signed copies of the contract, we will be
delighted also to execute them and return one or more
fully executed copies to you.
In the meantime on October 30, the Union filed with
Plant Manager Brown, a grievance concerning the dis-
charge of one Pauline Brown, a unit employee, and a mem-
ber of the Union. Attorney Greenebaum testified without
contradiction that when he wrote his letter of November 6,
he was unaware that this grievance had been filed, and it is
the existence of this grievance which forms the basis of
Respondent's contention that it is not bound to sign the
contract Greenbaum forwarded to the Union with his let-
ter of September 13.
Returning to the chronology of events, International
Representative Smith wrote Attorney Greenebaum on No-
vember 14, enclosing two signed copies of the contract the
latter submitted on September 13, and requested that same
be signed by Respondent. Greenbaum replied to Smith
under date of December 18, as follows:6
We have received the copies of the contract form which
you sent. The problem with our executing and signing
these forms at this late date is the intervention of the
Pauline Brown situation.
We do not think it is proper for you to refrain from
finalizing a collective bargaining negotiation for a peri-
od of two months and attempt to accept it only when
it appeared to be to your advantage. Under these cir-
cumstances, you cannot expect us to treat the wording
of the proposed agreement as if it had retroactive effect
upon occurrences prior to the proposed agreement's
5 This finding is based on the testimony of Mize and Brown. Hiller admits
that Brown telephoned him and delivered Mize's message, but claims that he
told Brown to tell Mize that if the Union wanted to sign the contract to do
so and forward the document to him. Hiller was unable to fix the time of his
conversation with Brown but admits that he took no further action in the
matter. Hiller additionally admitted that he was out of the country from
October 9 to 23 or 24. Whether Mize was aware that Hiller was out of the
country for the period indicated, the record does not show To the extent that
Hiller's testimony, on the one hand, conflicts with that of Mize and Brown,
on the other, I credit the latter.
6 The record does not indicate the reason for the delay of approximately
a month in replying to Smith's letter.
223
execution by either party.
In other words, as to the Pauline Brown situation, we
cannot consider the grievance procedure applicable
even though we have attempted to fulfill our bargain-
ing duty by discussing the Pauline Brown situation with
you.
We hope that you will understand our position.
On November 29, Mize telegraphed Attorney Green-
baum complaining that the Union had received no response
to its October 30 grievance on behalf of Pauline Brown, and
urged Respondent's cooperation in arriving at a solution of
that problem. Greenbaum replied to Mize by letter dated
December 1, which reads:
This will acknowledge receipt of your telegram on No-
vember 29. The Pauline Brown situation gives us some-
thing of a problem because, as you know, it arose prior
to the time we had received an executed contract from
you and were not sure whether or not the contract
would be acceptable in its proposed form. Also, we are
not sure whether a grievance which occurred prior to
the signing of the contract can be handled in the same
way.
Please let me know your position or whether or not you
consider the Pauline Brown grievance to be subject to
the contract and, if so, where in the grievance proce-
dure we are at the present time.
Mize replied to the above by letter dated December 8, tak-
ing the position that the parties had reached agreement in
July, and that the Pauline Brown discharge should be re-
solved in accordance with the grievance and arbitration
provisions of that agreement.' Having received no further
response from Greenbaum, the Union wired Greenbaum
that unless the contract agreed upon was signed within 3
days, the Union would take other action. The contract not
having been signed as requested, the Union filed the instant
charge.
Contentions and Conclusions
Section 8(a)(5) of the Act, makes it an unfair labor prac-
tice for an employer "to refuse to bargain collectively with
the representative of his employees ...," and Section 8(d)
of the Act defines the term "bargain collectively," as the
"performance of the mutual obligation of the employer and
the representative of the employees to meet . . . and confer
in good faith [on terms and conditions of employment] .. .
and the execution of a written contract incorporating any
agreement reached if requested by either party .... " Ac-
cordingly, the Board and the courts have held that it is a
violation of Section 8(a)(5) of the Act for an employer to
refuse to sign a contract the terms of which had been agreed
upon with the collective-bargaining representatives and that
to remedy such unfair labor practice, the Board may require
the employer to sign and comply with all terms of the
i Notwithstanding his position, Mize expressed his willingness to discuss
the matter further if Greenbaum had any suggestions for disposing of it on
some other basis
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed-upon contract. H.J. Heintz Company v. N.L.R.B.,
311 U.S. 514; Huttig Sash and Door Company, 151 NLRB
470, 474, enfd. as modified in other respects 362 F.2d 217
(C.A. 4); General Asbestos & Rubber Division, Raybestos-
Manhattan, Inc., 183 NLRB 214.8
Although Respondent admits that the parties reached
agreement on all terms of a contract on July 19, retroactive
to July 17, which agreement was fully and accurately re-
flected in the document Greenebaum sent the Union on
September 13, and that had the Union signified its assent
to that agreement with reasonable promptness after it re-
ceived the same, Respondent would have been under a duty
to sign that document and comply with its terms, it rests its
defense here on the narrow ground, as I understand its
argument, that the Union was responsible for the delay in
the execution of the contract, thereby refusing to bargain
with Respondent in violation of Section 8(b)(3) of the Act.
Because of such violation by the Union and the intervening
filing of the grievance, Respondent argues, the Board
should fashion a remedy which would only require it to sign
and comply with a contract which had an effective date
subsequent to the grievance; namely, November 14, when
the Union forwarded signed copies of the contract. I find
the contentions to be lacking in merit.
In the first place, as above-indicated, the record does not
support the proposition that the Union was guilty of undue
delay in signifying its satisfaction with and intention to sign
the draft of the instrument Greenebaum submitted to the
Union. Rather, as I have found, the delay was due to the
fact that Hiller promised to communicate with Mize, and
failed to do so, being absent from the country until about
October 23 or 24. Secondly, there is no charge, and no
finding can be made here that the Union, under the circum-
stances present, violated Section 8(b)(3) of the Act. Thus,
assuming that the Board may in a proper case fashion its
remedy to relieve an employer of its statutory obligation to
sign a contract embodying its agreement with a union, a
proposition I am by no means ready to accept-on the facts
shown by this record, Respondent has simply not laid a
proper predicate for the application of such a rule.
Accordingly, I find and conclude that since on or about
October 30, Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to sign the written evidence of the agree-
ment the parties concluded on July 19, as reflected in the
document Greenebaum submitted to the Union on Septem-
ber 13.
Upon the foregoing findings of fact, and the entire record
in the case, I state the following:
8 Even in the absence of Section 8(d), which was added by the 1947
amendments of the Act, the Supreme Court reached the same conclusion. See
H.J. Heintz Company, supra.
9 Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (C.A. 9, 1964), so strongly
relied upon by Respondent, does not support its position. The only issue in
that case was whether the parties had agreed upon a contract. The court
found they had and enforced the Board's Order requiring the employer to
sign that contract . I find nothing in the court 's opinion to indicate a holding
that an employer may be relieved of his statutory obligation to sign an agreed
upon contract , all the terms of which he had long since put into effect , simply
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. At all times material herein the Union has been the
duly certified collective-bargaining representative of all full-
time and regular part-time employees employed by Respon-
dent at its Birmingham, Alabama, plant, excluding office
clerical employees, professional employees, salesmen,
guards and supervisors as defined in the Act, a unit appro-
priate for the purposes of collective bargaining.
4. By failing and refusing to execute the collective-bar-
gaining agreement negotiated with the Union retroactive to
July 17, and effective for a term of 2 years, covering the
wages, hours, and terms and conditions of employment of
the employees in the aforesaid unit, Respondent refused to
bargain collectively with the Union as the representative of
said employees, and interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in and is engaging
in unfair labor practices proscribed by Section 8(a)(5) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent failed and refused to sign
the agreed-upon contract with the Union, I shall recom-
mend that it be required to do so upon the request of the
Union, and comply with all provisions thereof according to
their tenor and effect. In the order to be recommended
herein, I have not provided for an option to the Union to
request Respondent to bargain with it in lieu of signing the
agreed-upon contract. My reason for not doing so is set
forth in Raybestos-Manhattan, Inc., 183 NLRB 214. I shall
provide, however, as was done in Raybestos-Manhattan, su-
pra, that in the unlikely event that the 2-year term of the
contract has expired before Respondent complies with the
order recommended herein, Respondent be required, upon
request to bargain with the Union as the collective-bargain-
ing representative of the employees involved.
Because of the nature of the unfair labor practices found,
and to make effective the interdependent guarantees of Sec-
tion 7 of the Act, I shall recommend that Respondent be
required to refrain from in any manner abridging any of the
rights guaranteed employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
because he does not wish to apply the grievance and arbitration provisions
of the contract to an intervening discharge which the Union has made the
subject of a grievance . If the case is read to so hold, then that holding is mere
dicta.
ORDER 10
COURIER-JOURNAL LITHOGRAPHING CO. 225
Respondent, Courier-Journal Lithographing Co. of Geor-
gia, its officers , agents, successors and assigns shall:
1. Cease and desist from:
(a) Failing or refusing, upon request , to sign and give
effect to all provisions of the contract it reached with Bir-
mingham Printing Pressmen and Assistants ' Union, Local
121, on July 19, 1972, retroactive to July 17, 1972.
(b) Failing or refusing to bargain with Birmingham
Printing Pressmen and Assistants ' Union , Local 121, con-
cerning issues which have arisen , or which may arise during
the term of the aforesaid agreement.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization , to form , join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request sign and give effect to the agreement
reached with Birmingham Printing Pressmen and Assis-
tants' Union , Local 121 , on July 19, 1972, according to its
tenor and effect.
- (b) Upon request bargain collectively with the aforesaid
labor organization concerning any question which has ari-
sen, or which may airse during the term thereof, concerning
the application or interpretation thereof.
(c) In the event that the term of the aforesaid agreement
has expired before it is signed by Respondent , then, and in
that event, bargain with the aforesaid labor organization as
the collective-bargaming representative of its employees in
a unit composed of all full -time and regular part-time em-
ployees employed by Respondent at its Birmingham, Ala-
bama, plant, excluding office clerical employees,
professional employees , salesmen, guards and supervisors
as defined in the Act, and if an agreement is reached em-
body the same into a signed contract.
(d) Post at its Birmingham , Alabama, plant, copies of the
attached notice marked "Appendix." II Copies of said no-
tice, on forms to be furnished by the Regional Director for
Region 10 (Birmingham, Alabama) shall, after being signed
by an authorized representative be posted as herein provid-
ed, immediately upon receipt thereof, and be so maintained
for a period of 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken to
is 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
n In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
insure that said notices are not altered , defaced or covered
by any other material.
(e) Notify the aforesaid Regional Director , in writing
within 20 days from the date of this Decision , what steps it
has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we, Courier -Journal Lithographing Co. of
Georgia, violated the National Labor Relations Act, and
ordered us to post this notice . We will carry out the order
of the Board , the j udgment of any court enforcing the same,
and comply with the following:
The Act gives all employees these rights:
To organize themselves.
To form, join or help unions.
To act together for collective bargaining or other
mutual aid or protection.
To refuse to do any or all these things.
WE WILL NOT do anything to interfere with you in the
exercise of the aforementioned rights, and all our em-
ployees are free to become or remain a member of
Birmingham Printing Pressmen and Assistants' Union
Local 121, or not to become or remain a member of
that or any other union.
WE WILL, upon request of Local 121, sign and give full
force and effect to the collective -bargaining contract
we reached with said Union on July 19, 1972.
WE WILL, upon request of Local 121, bargain with it
concerning any question which has arisen, or which
may arise during its 2-year term, concerning the appli-
cation or interpretation thereof.
WE WILL, in the event the 2-year term of the aforesaid
contract has expired before we sign the same , bargain
with Local 121 as the collective -bargaining representa-
tive of our employees in a unit of all full-time and
regular part-time employees employed by us at our
Birmingham plant, excludmgoffice clerical employees,
professional employees, salesmen , guards and supervi-
sors as defined in the Act, and if an agreement is
reached, reduce the same to a written signed contract.
COURIER-JOURNAL
LITHOGRAPHING CO
OF GEORGIA
(Employer)
Dated By
(Representative) (Title)
.226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by or covered by any other material. Any questions concerning
anyone. this notice or complaince with its provisions may be direct-
This notice must remain posted for 60 consecutive days ed to the Board 's Office , 2102 City Federal Building, 2026
from the date of posting and must not be altered , defaced, Second Avenue North , Birmingham, Alabama 35203 Tele-
phone 205-325-3877.