Grand Rapids Press

National Labor Relations Board - Board Decisions

Jun 15, 1998

325 N.L.R.B. 915 (N.L.R.B. 1998)

915
325 NLRB No. 169
GRAND RAPIDS PRESS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We further correct the following factual errors by the judge, which
do not affect his decision. Union President Howe testified without
contradiction that pressman Taylor, rather than Brennan, had been
referred to the Bay City Times in December 1994. Contrary to the
judge, the Saginaw News’ most recent collective-bargaining agree-
ment with the Union, similar to the collective-bargaining agreements
covering the other three Respondents, does make reference to a Pri-
ority Substitution List. This language is contained in art. 2 of the
agreement.
2 We shall also amend the Order against The Flint Journal to re-
flect that its unilateral action occurred on July 14, 1995.
The Grand Rapids Press, a Division of Booth News-
papers, Inc., a Division of The Herald Com-
pany and Detroit Newspaper Local 13N,
Graphic Communications International Union,
AFL–CIO
The Bay City Times, a Division of Booth News-
papers, Inc., a Division of The Herald Com-
pany and Detroit Newspaper Local 13N,
Graphic Communications International Union,
AFL–CIO
The Saginaw News, a Division of Booth News-
papers, Inc., a Division of The Herald Com-
pany and Detroit Newspaper Local 13N,
Graphic Communications International Union,
AFL–CIO
The Flint Journal, a Division of Booth Newspapers,
Inc., a Division of The Herald Company and
Detroit Newspaper Local 13N, Graphic Com-
munications International Union, AFL–CIO.
Cases 7–CA–37463, 7–CA–37465, 7–CA–37466,
and 7–CA–37467
June 15, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND BRAME
On January 22, 1997, Administrative Law Judge
Robert M. Schwartzbart issued the attached decision.
The Respondents jointly filed exceptions, a supporting
brief, and an answering brief. The General Counsel
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Orders as
modified and set forth in full below.
The General Counsel excepted to the judge’s failure
to include a make-whole remedy for individuals to be
named at the compliance stage whom the Respondents
discriminated against or who lost earnings based on the
Respondents’ unilateral changes in their referral sys-
tems for hiring substitute pressmen. The Respondents
oppose the extension of the judge’s remedy to include
unnamed individuals. We agree with the General
Counsel and will modify the remedy to include relief
for individuals who have been affected by the Re-
spondents’ unlawful conduct. Thus, to remedy the Re-
spondents’ discriminatory refusal to employ striking
Detroit News Agency pressmen, we will include, in
addition to the remedy provided by the judge for the
five named individuals in the Respondent Bay City
Times’ Order, a make-whole remedy in that Order, as
well as in the Orders of each of the other Respondents,
for any striking pressmen it is ascertained at the com-
pliance stage of this proceeding would have been re-
ferred as substitutes absent discrimination by the re-
spective Respondents. Furthermore, to remedy the Re-
spondents’ unilateral changes in their established refer-
ral procedures for hiring of substitute pressmen, we
shall provide in each Order relief for any individuals
found to have been affected by the Respondents’ fail-
ure to abide by the established referral practices.2
We find the granting of this relief to be consistent
with the Board’s customary practice in light of the lan-
guage of the complaint and the violations found. In
this regard, the complaint does not allege unlawful
conduct by the Respondents against specifically named
individuals. Rather, it alleges discrimination generally
against employees refused employment as substitute
pressmen by the Respondents because of their pro-
tected, concerted union activities in engaging in a
strike. The judge found that the Respondents refused
to employ substitute pressmen from the Local because
these pressmen were engaged in a strike against their
primary employer, the Detroit News Agency, and the
record clearly establishes wholesale refusals by the Re-
spondents to employ any striking pressmen. In a vari-
ety of contexts, where discrimination has been alleged
and found against a defined and easily identifiable
class, the Board, with court approval, has found it ap-
propriate to extend remedial relief to all members of
that class. See Morton Metal Works, 310 NLRB 195
(1993), enfd. 9 F.3d 108 (6th Cir. 1993), citing Iron-
workers Local 433 (Reynolds Electrical), 298 NLRB
35, 36 (1990), enfd. 931 F.3d 897 (9th Cir. 1991). See
also Teamsters Local 328 (Blount Bros.), 283 NLRB
779 (1987), denying reconsideration of 274 NLRB
1053 (1985).
Similarly, the complaint allegations concerning the
unilateral change in the Respondents’ referral proce-
dures were not limited and the complaint did not allege
a unilateral change affecting specific, named individ-
uals. Further, the General Counsel, in his request for
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916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The identity of these individuals shall be ascertained at the com-
pliance stage. Morton, supra, and Reynolds, supra. See also NLRB
v. Iron Workers Local 433 (Associated General Contractors), 600
F.2d 770, 778–779 (9th Cir. 1979), enfg. 228 NLRB 1420 (1977),
cert. denied 445 U.S. 915 (1980).
4 If 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.’’
affirmative relief in the complaint, requested a make-
whole remedy for substitutes, without any limitation,
for any losses they may have suffered by reason of the
Respondents’ unlawful, unilateral conduct. In any
event, the Board’s standard remedy in Section 8(a)(5)
cases involving unilateral changes resulting in losses to
employees is to make whole any employee affected by
the change. See North Star Steel v. NLRB, 974 F.2d
68, 70–71 (8th Cir. 1992), enfg. 305 NLRB 45 (1991).
Thus, there is no issue here of extending a remedy
beyond the scope of the complaint since the allegations
themselves, as well as the request for relief, are drafted
in terms sufficiently broad to encompass the relief we
grant. Likewise, there is no notice issue because the al-
legations themselves are sufficiently broad to put the
Respondents on notice that they have been charged
with committing unfair labor practices against an iden-
tified group of unnamed individuals. Morton Metal
Works, supra, and Woodline Motor Freight, 278 NLRB
1141, 1143 fn. 6 (1986), enfd. in pertinent part 843
F.2d 285, 289 (8th Cir. 1988).
Accordingly, in view of the foregoing, we find it ap-
propriate to include in our new Orders relief for all
employees who would have been referred and em-
ployed as substitute pressmen absent the Respondents’
unlawful conduct.3
ORDER
The National Labor Relations Board orders that
A. The Respondent, The Grand Rapids Press, a Di-
vision of Booth Newspapers, Inc., a Division of the
Herald Company Inc., Grand Rapids, Michigan, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ substitute pressmen or other
substitute employees, or from otherwise discriminating
against employees referred to it for employment by
Detroit Newspapers Local 13N, Graphic Communica-
tions International Union, AFL–CIO, because such em-
ployees have engaged in a strike or other concerted ac-
tivities in support, or on behalf of Local 13N, or any
other labor organization.
(b) Refusing to bargain collectively with Local 13N
as the exclusive collective-bargaining representative of
its employees in the following appropriate unit by
making unilateral changes in the referral system for the
hire of substitute employees, established under the cur-
rent collective-bargaining agreement between The
Grand Rapids Press and Local 13N, without first
reaching agreement with Local 13N concerning such
changes:
All pressmen and pressmen apprentices employed
by The Grand Rapids Press at its Grand Rapids,
Michigan facility, excluding the foremen, profes-
sional employees, office clerical employees,
guards and supervisors, as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral restrictions which The
Grand Rapids Press imposed on, and has maintained
since July 14, 1995, limiting Local 13N’s right to refer
substitute employees for employment at the Respond-
ent’s facility.
(b) Make whole any individuals for any losses they
may have suffered because of the Respondent’s unilat-
eral changes in the substitute pressmen referral proce-
dure.
(c) Make whole any individuals adversely affected
by the Respondent’s discriminatory refusal to employ
them as substitute pressmen because they engaged in
protected union activity against their principal em-
ployer for any losses of earnings or other benefits,
with interest, suffered as a result of the unlawful action
in the manner set forth in the remedy section of the
decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Grand Rapids, Michigan, copies of the
attached notice marked ‘‘Appendix A.’’4 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by The Grand Rapids
Press’ authorized representative, shall be posted by
The Grand Rapids Press immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including places where notices to employees are
customarily posted. Reasonable steps shall be taken by
The Grand Rapids Press to ensure that the notices are
not altered, defaced, or covered by any other material.
In the event that, during the pendency of these pro-
ceedings, The Grand Rapids Press has gone out of
business or closed the facility involved in these pro-
ceedings, The Grand Rapids Press shall duplicate and
mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
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917GRAND RAPIDS PRESS
5 See fn. 4, supra.
The Grand Rapids Press at any time since July 14,
1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that The Grand Rapids Press has
taken to comply.
B. The Respondent, The Bay City Times, a Division
of Booth Newspapers, Inc., a Division of The Herald
Company, Inc., Bay City, Michigan, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Refusing to employ substitute pressmen or other
substitute employees, or from otherwise discriminating
against employees referred to it for employment by
Detroit Newspapers Local 13N, Graphic Communica-
tions International Union, AFL–CIO, because such em-
ployees have engaged in a strike or other concerted ac-
tivities in support, or on behalf of Local 13N, or any
other labor organization.
(b) Refusing to bargain collectively with Local 13N
as the exclusive collective-bargaining representative of
its employees in the following appropriate unit by
making unilateral changes in the referral system for the
hire of substitute employees, established under the cur-
rent collective-bargaining agreement between The Bay
City Times and Local 13N, without first reaching
agreement with Local 13N concerning such changes:
All pressroom employees employed by The Bay
City Times at its Bay City, Michigan facility, ex-
cluding the foremen, professional employees of-
fice clerical employees, guards and supervisors, as
defined in the Act.
(c) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral restrictions which The Bay
City Times imposed on, and has maintained since July
17, 1995, limiting Local 13N’s right to refer substitute
employees for employment at the Respondent’s facil-
ity.
(b) Make whole any individuals for any losses they
may have suffered because of the Respondent’s unilat-
eral changes in the substitute pressmen referral proce-
dure.
(c) Make whole pressmen Morris (Bud) Chaney, Jim
Centers, Pat Soper, Dan Lemae, and Willie Nelson,
and any other individuals similarly situated, for any
losses of pay or benefits, with interest, suffered as a
result of the Respondent’s discriminatory refusal to
employ them as substitute pressmen because of their
protected Union activity against their principal em-
ployer in the manner set forth in the remedy section
of the decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Bay City, Michigan, copies of the at-
tached notice marked ‘‘Appendix B.’’5 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by The Bay City Times’
authorized representative, shall be posted by The Bay
City Times immediately upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
The Bay City Times to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, The Bay City Times has gone out of business or
closed the facility involved in these proceedings, The
Bay City Times shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by The Bay City
Times at any time since July 17, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Re-
gional Director attesting to the steps that The Bay City
Times has taken to comply.
C. The Respondent, The Saginaw News, a Division
of Booth Newspapers, Inc., a Division of The Herald
Company, Inc., Saginaw, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ substitute pressmen or other
substitute employees, or from otherwise discriminating
against employees referred to it for employment by
Detroit Newspapers Local 13N, Graphic Communica-
tions International Union, AFL–CIO, because such em-
ployees have engaged in a strike or other concerted ac-
tivities in support, or on behalf of Local 13N, or any
other labor organization.
(b) Refusing to bargain collectively with Local 13N
as the exclusive collective-bargaining representative of
its employees in the following appropriate unit by
making unilateral changes in the referral system for the
hire of substitute employees, established under the cur-
rent collective-bargaining agreement between The
Saginaw News and Local 13N, without first reaching
agreement with Local 13N concerning such changes:
All press department employees employed by the
Publisher of The Saginaw News at that Compa-
ny’s Saginaw, Michigan facility, excluding the
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918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See fn. 4, supra.
foremen, professional employees, office clerical
employees, guards and supervisors, as defined in
the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral restrictions which The
Saginaw News imposed on, and has maintained since
July 17, 1995, limiting Local 13N’s right to refer sub-
stitute employees for employment at the Respondent’s
facility.
(b) Make whole any individuals for any losses they
may have suffered because of the Respondent’s unilat-
eral changes in the substitute pressmen referral proce-
dure.
(c) Make whole any individuals adversely affected
by the Respondent’s discriminatory refusal to employ
them as substitute pressmen because they engaged in
protected Union activity against their principal em-
ployer for any losses of earnings or other benefits,
with interest, suffered as a result of the unlawful action
in the manner set forth in the remedy section of the
decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Saginaw, Michigan, copies of the at-
tached notice marked ‘‘Appendix C.’’6 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by The Saginaw News’
authorized representative, shall be posted by Saginaw
News immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by The Sagi-
naw News to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, The
Saginaw News has gone out of business or closed the
facility involved in these proceedings, The Saginaw
News shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by The Saginaw News at any
time since July 17, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that The Saginaw News has taken
to comply.
D. The Respondent, The Flint Journal, a Division of
Booth Newspapers, Inc., a Division of The Herald
Company, Inc., Flint, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ substitute pressmen or other
substitute employees, or from otherwise discriminating
against employees referred to it for employment by
Detroit Newspapers Local 13N, Graphic Communica-
tions International Union, AFL–CIO, because such em-
ployees have engaged in a strike or other concerted ac-
tivities in support, or an behalf of Local 13N, or any
other labor organization.
(b) Refusing to bargain collectively with Local 13N
as the exclusive collective-bargaining representative of
its employees in the following appropriate unit by
making unilateral changes in the referral system for the
hire of substitute employees, established under the cur-
rent collective-bargaining agreement between The Flint
Journal and Local 13N, without first reaching agree-
ment with Local 13N concerning such changes:
All press department employees employed by The
Flint Journal at its Flint, Michigan facility, ex-
cluding the foremen, assistant foremen, profes-
sional employees, office clerical employees,
guards and supervisors, as defined in the Act.
(c) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral restrictions which The
Flint Journal imposed on, and has maintained since
July 14, 1995, limiting Local 13N’s right to refer sub-
stitute employees for employment at the Respondent’s
facility.
(b) Make whole any individuals for any losses they
may have suffered because of the Respondent’s unilat-
eral changes in the substitute pressmen referral proce-
dure.
(c) Make whole any individuals adversely affected
by the Respondent’s discriminatory refusal to employ
them as substitute pressmen because they engaged in
protected Union activity against their principal em-
ployer for any losses of earnings or other benefits,
with interest, suffered as a result of the unlawful action
in the manner set forth in the remedy section of the
decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
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919GRAND RAPIDS PRESS
7 See fn. 4, supra.
(e) Within 14 days after service by the Region, post
at its facility in Flint, Michigan, copies of the attached
notice marked ‘‘Appendix D.’’7 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by The Flint Journal’s authorized
representative, shall be posted by The Flint Journal im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by The Flint Journal
to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, The Flint Journal
has gone out of business or closed the facility involved
in these proceedings, The Flint Journal shall duplicate
and mail, at its own expense, a copy of the notice to
all current and former employees employed by The
Flint Journal at any time since July 14, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that The Flint Journal has taken
to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to employ substitute pressmen
or other substitute employees and WE WILL NOT other-
wise discriminate against employees referred to us for
employment by Detroit Newspapers Local 13N, Graph-
ic Communications International Union, AFL–CIO be-
cause such employees have engaged in a strike or
other concerted activities in support, or on behalf of,
Local 13N, or any other labor organization.
WE WILL NOT refuse to bargain collectively with
Local 13N as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit, by making unilateral changes in the referral
system for the hire of substitute employees, established
under the current collective-bargaining agreement be-
tween The Grand Rapids Press and Local 13N, without
first reaching agreement with Local 13N concerning
such changes:
All pressmen and pressmen apprentices employed
by us at our Grand Rapids, Michigan facility, ex-
cluding the foremen, professional employees, of-
fice clerical employees, guards and supervisors, as
defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral restrictions which we
imposed on, and have maintained since July 14, 1995,
limiting Local 13N’s right to refer substitute employ-
ees for employment at our facility.
WE WILL make whole any individuals for any losses
they may have suffered because of our unilateral
changes in the substitute pressmen referral procedure.
WE WILL make whole any individuals adversely af-
fected by our discriminatory refusal to employ them as
substitute pressmen because they engaged in protected
union activity against their principal employer for any
losses of earnings or other benefits, with interest, suf-
fered as a result of our unlawful action.
THE GRAND RAPIDS PRESS, A DIVISION
OF BOOTH NEWSPAPERS, INC., A DIVI-
SION OF THE HERALD COMPANY, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to employ substitute pressmen
or other substitute employees and WE WILL NOT other-
wise discriminate against employees referred to us for
employment by Detroit Newspapers Local 13N, Graph-
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920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ic Communications International Union, AFL–CIO be-
cause such employees have engaged in a strike or
other concerted activities in support, or on behalf of,
Local 13N, or any other labor organization.
WE WILL NOT refuse to bargain collectively with
Local 13N as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit, by making unilateral changes in the referral
system for the hire of substitute employees, established
under the current collective-bargaining agreement be-
tween The Bay City Times and Local 13N, without
first reaching agreement with Local 13N concerning
such changes:
All pressmen and pressmen apprentices employed
by us at our Bay City, Michigan facility, exclud-
ing the foremen, professional employees, office
clerical employees, guards and supervisors, as de-
fined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral restrictions which we
imposed on, and have maintained since July 17, 1995,
limiting Local 13N’s right to refer substitute employ-
ees for employment at our facility.
WE WILL make whole any individuals for any losses
they may have suffered because of our unilateral
changes in the substitute pressmen referral procedure.
WE WILL make whole pressmen Morris (Bud)
Chaney, Jim Centers, Pat Soper, Dan Lemae, and
Willie Nelson, and any other individuals similarly situ-
ated, with interest, for any loss of earnings and other
benefits as a result of our unlawful refusals to hire
them as substitutes.
WE WILL make whole any individuals adversely af-
fected by our discriminatory refusal to employ them as
substitute pressmen because they engaged in protected
union activity against their principal employer for any
losses of earnings or other benefits, with interest, suf-
fered as a result of our unlawful action.
THE BAY CITY TIMES, A DIVISION OF
BOOTH NEWSPAPERS, INC., A DIVISION
OF THE HERALD COMPANY, INC.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to employ substitute pressmen
or other substitute employees and WE WILL NOT other-
wise discriminate against employees referred to us for
employment by Detroit Newspapers Local 13N, Graph-
ic Communications International Union, AFL–CIO be-
cause such employees have engaged in a strike or
other concerted activities in support, or on behalf of,
Local 13N, or any other labor organization.
WE WILL NOT refuse to bargain collectively with
Local 13N as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit, by making unilateral changes in the referral
system for the hire of substitute employees, established
under the current collective-bargaining agreement be-
tween The Saginaw News and Local 13N, without first
reaching agreement with Local 13N concerning such
changes:
All pressmen and pressmen apprentices employed
by our publisher at our Saginaw, Michigan facil-
ity, excluding the foremen, professional employ-
ees, office clerical employees, guards and super-
visors, as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral restrictions which we
imposed on, and have maintained since July 17, 1995,
limiting Local 13N’s right to refer substitute employ-
ees for employment at our facility.
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921GRAND RAPIDS PRESS
1 The relevant docket entries are as follows: The charges in Cases
7–CA–37463, 7–CA–37465, 7–CA–37466, and 7–CA–37467 all
were filed on July 21, 1995, and the amended charges in each of
those cases were filed on August 16, 1995. The order consolidating
cases and the consolidated complaint issued September 1, 1995, and
the hearing was conducted on January 30 and 31, 1996.
2 All dates are in 1995 unless otherwise indicated.
WE WILL make whole any individuals for any losses
they may have suffered because of our unilateral
changes in the substitute pressmen referral procedure.
WE WILL make whole any individuals adversely af-
fected by our discriminatory refusal to employ them as
substitute pressmen because they engaged in protected
union activity against their principal employer for any
losses of earnings or other benefits, with interest, suf-
fered as a result of our unlawful action.
THE SAGINAW NEWS, A DIVISION OF
BOOTH NEWSPAPERS, INC., A DIVISION
OF THE HERALD COMPANY, INC.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to employ substitute pressmen
or other substitute employees and WE WILL NOT other-
wise discriminate against employees referred to us for
employment by Detroit Newspapers Local 13N, Graph-
ic Communications International Union, AFL–CIO be-
cause such employees have engaged in a strike or
other concerted activities in support, or on behalf of,
Local 13N, or any other labor organization.
WE WILL NOT refuse to bargain collectively with
Local 13N as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit, by making unilateral changes in the referral
system for the hire of substitute employees, established
under the current collective-bargaining agreement be-
tween The Flint Journal and Local 13N, without first
reaching agreement with Local 13N concerning such
changes:
All pressmen and pressmen apprentices employed
by us at our Flint, Michigan facility, excluding
the foremen, professional employees, office cleri-
cal employees, guards and supervisors, as defined
in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unilateral restrictions which we
imposed on, and have maintained since July 14, 1995,
limiting Local 13N’s right to refer substitute employ-
ees for employment at our facility.
WE WILL make whole any individuals for any losses
they may have suffered because of our unilateral
changes in the substitute pressmen referral procedure.
WE WILL make whole any individuals adversely af-
fected by our discriminatory refusal to employ them as
substitute pressmen because they engaged in protected
union activity against their principal employer for any
losses of earnings or other benefits, with interest, suf-
fered as a result of our unlawful action.
THE FLINT JOURNAL, A DIVISION OF
BOOTH NEWSPAPERS, INC., A DIVISION
OF THE HERALD COMPANY, INC.
Thomas M. Doerr, Esq., for the General Counsel.
Bruce H. Berry, Esq. (Sabin, Bermant & Gould, LLP), of
New York, New York, for the Respondents.
Jack Howe, of Detroit, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was tried in Lansing, Michigan, upon a consoli-
dated complaint issued pursuant to charges filed by Detroit
Newspapers Local 13N, Graphic Communications Inter-
national Union, AFL–CIO (the Union).1 The consolidated
complaint alleges that the Respondents, The Grand Rapids
Press (Press), The Bay City Times (Times), The Saginaw
News (News), and The Flint Journal (Journal), each of which
is a division of Booth Newspapers which, in turn, is a divi-
sion of The Herald Company, violated Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act) by
discriminatorily refusing to employ substitute pressmen re-
ferred to them for employment by the Union because such
employees were engaged in a strike against their principal
employer, the Detroit Newspaper Agency (DNA). The con-
solidated complaint further alleges that the Respondents vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
changing the established referral hiring procedures between
the respective Respondents and the Union regarding the em-
ployment of substitute pressmen. The Respondents, in their
individual timely filed answers, have denied the commission
of unfair labor practices.2
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
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922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The respective separate appropriate collective-bargaining units at
each Respondent’s facility are as follows:
Grand Rapids: All pressmen and pressmen apprentices em-
ployed by The Grand Rapids Press at its Grand Rapids, Michi-
gan, facility, excluding the foremen, professional employees, of-
fice clerical employees, guards and supervisors, as defined in the
Act.
Bay City: All pressroom employees employed by the Bay
City Times at its Bay City, Michigan, facility, excluding the
foremen, professional employees, office clerical employees,
guards and supervisors, as defined in the Act.
Saginaw: All press department employees employed by the
Publisher of the Saginaw News at that Company’s Saginaw
Michigan, facility, excluding the foremen, professional employ-
ees, office clerical employees, guards and supervisors, as defined
in the Act.
Flint: All press department employees employed by the Flint
Journal at its Flint, Michigan, facility, excluding the foremen,
assistant foremen, professional employees, office clerical em-
ployees, guards and supervisors, as defined in the Act.
4 I find, in accordance with the stipulation of the parties at the
hearing, that the Union’s chapel chairmen are the equivalent of chief
shop stewards appointed by labor organizations in other industries.
I also note that the duties of union stewards include implementation
and enforcement of collective-bargaining agreement provisions. E.g.,
Howard Electric Co., 285 NLRB 911, 913 (1987).
nesses, and to file briefs. Briefs, filed by the General Coun-
sel and the Respondent, have been carefully considered.
Upon the entire record of the case, including my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Press has an office and place of business in
Grand Rapids; Respondent Times has an office and place of
business in Bay City; Respondent News has an office and
place of business in Saginaw; and Respondent Journal has an
office and place of business in Flint; all within the State of
Michigan. Press, Times, News, and Journal each are unincor-
porated divisions of Booth Newspapers, Inc., a subsidiary of
The Herald Company, Inc., a New York corporation. During
the calendar year ending December 31, 1994, Press, Times,
News, and Journal, in conducting their respective business
operations, the publication of daily newspapers, each derived
gross revenues exceeding $200,000, subscribed to various
interstate news services, published various nationally syn-
dicated features, and advertised various nationally sold prod-
ucts. As Press, Times, News, and Journal each have admitted
the foregoing commerce data and that each of them, at all
times material to this proceeding, has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, I so find. Press, Times, News, and Jour-
nal each have admitted, and I further find, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondents Press, Times, News, and Journal, all em-
ployed pressmen in the production of daily newspapers in the
Michigan cities referenced in their respective names. Since at
least 1967, the Union has represented separate units of press-
men at each Respondent’s plant3 for purposes of collective
bargaining with respect to wages, hours, and other terms and
conditions of employment and, in that time, the respective
Respondents, having recognized the Union as the exclusive
collective-bargaining representative of their pressmen, en-
tered into separate successive collective-bargaining agree-
ments with the Union. Press, Times, News, and Journal are
parties to separate collective-bargaining agreements with the
Union covering their pressmen, each effective from April 1,
1994, until March 31, 1998. At present, the Union, in respec-
tive approximations, represents 27 bargaining unit employees
at Press, 8 such employees at Times, 9 unit employees at
News, and 17 employees at Journal.
At all times material to this case, the Union also has been
the collective-bargaining representative of about 310 employ-
ees of the Detroit Newspaper Agency (DNA). DNA pub-
lishes the Detroit News and the Detroit Free Press. On July
13, DNA’s bargaining unit employees began a strike against
it, which continued into 1996.
The current collective-bargaining agreement between the
Union and Journal included the following provision in article
4.2:
Should the Company desire to replace an employee
who is absent, the foreman will request the chapel
chairman4 to either call in an employee from his or her
off day or call in a substitute. An employee called in
from an off day or a substitute shall not be hired for
less than a full shift. If a substitute is called in, pref-
erences will be given to those persons whose names are
listed on a Priority Substitute List supplied by the
Union.
Similar language was included in article 16.2 of the collec-
tive-bargaining agreement between the Union and Times.
The Union’s collective-bargaining agreements with Press
and News also provided that, upon a foreman’s request, the
Union’s chapel chairman shall replace an absent employee
by calling in an employee who was off for the day or by
calling in a substitute. Press’ collective-bargaining agreement
with the Union, at article 19.2 further stated that: ‘‘If a sub-
stitute is called in, preference will be given to those persons
whose names are listed on a Priority Substitute List supplied
by the Union . . . .’’ The News labor contract, which, in ar-
ticle 17.2, provided for the hire of substitute press depart-
ment employees, neither included such a provision nor other-
wise limited the Union’s discretion in providing substitutes.
Before the start of the July 13 strike, the Union routinely
had provided substitute pressmen when asked to do so by the
pressroom foremen, without need to consult with any of the
Respondents. The only restriction imposed by any of the Re-
spondents was that the substitute be a journeyman. In fact,
the parties have stipulated that, historically, whenever any of
the four Respondent newspapers required a substitute press-
man, they would proceed by so informing the chapel chair-
man and then a substitute would appear. The chapel chair-
men even determined where the substitute pressmen would
be assigned to work. I find from Howe’s testimony that, in
1995, Journal rejected pressmen who belonged to the Port
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923GRAND RAPIDS PRESS
5 The reason reflected in the record for Journal’s rejection of the
Port Huron Times pressmen, concern over possible sabotage, was
unrelated to any of the expressed motives for actions alleged as vio-
lative of the Act in the present matter.
6 My findings regarding Press’ policy regarding the hiring of sub-
stitute pressmen prior to July 13 are based upon the uncontradicted
testimony of Chapel Chairman Anthony Cecola and of his Assistant
Chapel Chairman John C. Dietrick. Both Cecola and Dietrick were
Press employees at all times material to these cases, including when
they testified at the hearing in this proceeding.
7 The transcript record herein is corrected, sua sponte, to reflect the
correct spellings of the names of Pressroom Foremen Daniel
Silverdale and Kenneth Rosendall, as established in the pleadings.
8 Bellechasses explained that his references to weekends actually
meant Saturday nights. Much of the need for pressroom substitutes
relevant to this proceeding related to Saturday night scheduling,
when larger work crews were needed to publish the larger Sunday
editions.
9 Several DNA pressmen previously had worked at Press.
10 The record reveals that the chapel chairmen determined where
the substitutes would work in the pressroom.
11 Bellechasses testified that Morton said that he did not know
what the other chapels would be doing about hiring substitute press-
men. However, Cecola and Dietrick testified that Morton had stated
that the entire Booth chain would not hire new substitute pressmen.
Unlike Cecola and Dietrick, who seemed certain of their recollec-
tions of Morton’s remarks at the second meeting, Bellechasses
sounded less sure of what he had heard from Morton on that occa-
sion. Accordingly, I have credited Cecola’s and Dietrick’s recollec-
tions of Morton’s remarks about the Booth chain’s policy toward
hiring new subs.
12 In accordance with the parties’ stipulation concerning the dis-
tances the DNA pressmen would have to travel from their home base
in order to work as substitutes at the respective Respondents’ news-
papers, Detroit is located 150 miles from Grand Rapids, between
125 to 130 miles from Bay City, between 105 to 110 miles from
Saginaw, and 65 miles from Flint.
13 My findings regarding Journal’s policy regarding the hiring of
substitute pressmen prior to July 13 are based upon Mercado’s
uncontradicted testimony.
Huron Times chapel,5 and that this was the only such refusal
to employ by the Respondents herein.
2. The events at Press
Before July 13, Press’ management played no role in the
selection of substitute pressmen to work on its production
line.6 The Union, 8 or 9 months prior to the hearing in these
cases, without consultation with, or comment from, Press,
added two names to the Union’s list of pressmen available
to substitute at that facility.
Soon after the DNA strike began, the respective Respond-
ents, for the first time, began to express interest in the make-
up of the Union’s substitute lists. On Friday, July 14, Press’
foreman, Daniel Silverdale,7 directed Assistant Chapel Chair-
man Ernest Bellechasses not to hire any new substitute press-
men. Bellechasses declared that he did not understand what
Silverdale was talking about and asked if he was ‘‘referring
or insinuating regarding the guys in Detroit.’’ Silverdale re-
plied, ‘‘Something to that effect, it’s got something to do
about that.’’ Bellechasses told Silverdale that there would be
a problem with this. The schedule of workers for that week-
end8 already had been established and the workers contacted.
Such schedules, once set up, were not subject to change.
However, Bellechasses informed Silverdale, for the next
week, the Detroit pressmen, ‘‘Definitely . . . have priority
over our local subs.’’ Bellechasses suggested a meeting be-
tween Press’ management and the Union’s chapel leadership
to resolve the matter.
Accordingly, a meeting took place in the office of Press’
general manager, Dick Morton, on the following Monday.
Morton and Silverdale represented Press. Bellechasses, Chap-
el Chairman Anthony Cecola, and Assistant Chapel Chair-
man John C. Dietrick attended for the Union. Cecola asked
Morton to explain why the Detroit pressmen could not be
hired as substitutes. Morton answered that he was having a
problem with quality and production control and for that rea-
son he did not want new substitutes. Morton complained that
the price of paper had increased to $800 a role and that the
Press had been getting more complaints about the set of the
colors and that the register was off. According to Dietrick,
Morton declared that ‘‘[p]aper cost too much money and we
don’t want any new people working on our press.’’ Dietrick
asked what Morton was talking about; how could these be
new people? ‘‘These guys been journeymen pressmen all
their life . . . they worked all their lives here.’’9
At that meeting, Cecola persisted, asking why Press would
not hire substitutes from Detroit. Morton reiterated that he
would not allow in any new subs because of his concerns
about the quality of the paper. He pointed out that new subs
were not familiar with Press’ equipment. Cecola and Dietrick
sought to assure Morton that the Union would see to it that
the qualified journeymen it recruited to be subs for Press
would not be in a position to affect the quality of Press’
newspaper. The Union would assign the Detroit subs to work
in the basement, where they would have no contact with the
paper or the ink.10 Press’ regular employees would perform
the actual production. Morton stuck to his position, telling
the union representatives that after he had to make a phone
call, he would give them ‘‘a straight answer.’’ The meeting
adjourned until the following morning.
The meeting resumed on July 18, in Morton’s office, with
the same participants in attendance. Cecola asked if the
Union could recruit new substitute pressmen for Press. Mor-
ton replied that Press would not ‘‘have or hire any subs from
Detroit.’’ He also related that he had made a phone call and
learned that the entire Booth chain was not going to hire any
new substitutes.11 Morton limited recruiting of substitute
pressmen to those who had substituted at the Press during the
previous 3 months.12
Dietrick testified that, before the strike against DNA, he
had resorted to three resource lists to obtain substitutes for
Press, in the following order: the Detroit pressmen’s local,
Press’ retirees and, lastly, casual substitutes. The casual subs
were drawn from Locals 13C and 550, two Grand Rapids
sister locals to the Union herein.
3. The events at Journal
From January to July 1995, before the DNA strike, Chapel
Chairman James Mercado, a pressman employed by Journal,
obtained three substitute pressmen for his employer—
PaulGareau, Willie Nelson, and Duane Phillips all without
first clearing them with, or subject to any restriction imposed
by, Journal.13
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924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The pressroom occupied two floors. The reel room was on the
lower floor, while the presses were above on the main level.
15 My above findings concerning Mercado’s encounters with Fore-
man Kuehling on July 14 and 19 are based upon Mercado’s
uncontradicted testimony.
16 My above findings concerning Taylor’s conversations with Fore-
man King on July 15 and 17 are based upon Taylor’s uncontradicted
testimony.
17 Huntley’s above conversations with Foreman Rosendall appear
in accordance with Huntley’s uncontradicted testimony.
On July 14, Journal’s pressroom foreman, Max Kuehling,
invited Chapel Chairman Mercado into Kuehling’s office to
discuss a new policy for recruiting substitute pressmen for
Journal. Kuehling directed that after Saturday night, July 15,
Mercado could recruit subs only from a list of those sub-
stitute pressmen who had worked at Journal during the pre-
vious 3 months. Kuehling would furnish that list. When
Mercado asked for an explanation, Kuehling replied that he
wanted to maintain the quality of the paper coming off the
press. Mercado took issue with Kuehling, pointing out that
the subs usually worked in the basement reel room, where
paper was fed into the presses.14 Accordingly, the subs had
nothing to do with setting color, and had little, if any, effect
upon quality. Kuehling answered, ‘‘This is my decision.’’
On July 19, Foreman Kuehling gave Mercado a list, direct-
ing that he thereafter use it when hiring substitutes. This was
the first time anyone from Journal’s management had given
Mercado such a list. Mercado repeated his unsuccessful argu-
ment against the list, but Kuehling made no further com-
ment.15
Mercado testified that earlier, in obtaining substitute press-
men for Journal, he traditionally first had called the Detroit
local to obtain subs from among DNA employees; then he
would call retirees; and, finally, he would call pressmen from
other local unions.
4. The events at Times
I find from the uncontradicted background testimony of
Union President Howe that, in June, the Union had referred
pressman Willie Nelson to work as a substitute at Times.
Howe’s testimony shows that, earlier, in December 1994, the
Union had sent pressman Michael Brennan to Times. Neither
referral had been subject to any Times’-imposed restriction
or had required that Employer’s prior approval.
After the start of the July 13 strike against DNA, Times’
pressroom foreman, Robert King, telephoned employee Der-
rick Taylor, the Times assistant chapel chairman, at the
latter’s home on Saturday evening, July 15, and asked why
Jim Centers was working that night. Taylor replied that he
had selected Centers, a DNA pressman, as a substitute for an
employee who had called in sick. King said he wanted to be
informed about all future substitutes. In the same conversa-
tion, Taylor obtained clearance from King to hire Morris
(Bud) Chaney, a pressman from DNA, to work as a sub-
stitute on July 17. However, there was no showing that King
had asked about Chaney’s prior employment history or about
whether he was from Detroit.16
On July 17, 2 days’ later, at about 8 a.m., King called
Taylor to his office and gave him a list of five pressmen, all
from DNA, including Bud Chaney, Jim Centers, Pat Soper,
Dan Lemae, and Willie Nelson, who, King announced, could
work as substitutes at Times. Times, on the night of July 15,
already had employed Centers as a substitute. Chaney also
had worked at Times on July 17.
After leaving King’s office on July 17, Taylor returned to
work where he observed King conversing with Times’ pub-
lisher, C. Kevin Dykema. Soon after that conversation, King
called Taylor to his office and issued new instructions re-
garding the five pressmen from DNA. King declared that the
five individuals on the earlier list would not be allowed to
work at Times. When Taylor asked why, King did not an-
swer. King said he would give Taylor a new list later.
On the following day, Tuesday, King gave Taylor a new
list of acceptable substitutes. No DNA pressmen, including
none of the five who had been in King’s earlier list, were
named therein. Since receiving King’s list, Taylor has used
it as the exclusive source of substitute pressmen for Times.
Taylor related that his own practice in obtaining sub-
stitutes had been first to call Bay City employees and then
to seek substitutes from Saginaw. If unable to raise enough
substitutes in those areas, he then would call the Detroit local
and, lastly, retirees.
5. The events at News
One day after the DNA strike had begun, pressman Rich-
ard A. Huntley, the chapel chairman for News and Times,
spoke to News’ production manager, Robert White, about
hiring a DNA pressman as a substitute at News for Saturday
night, July 15. Shortly before this, Union President Howe
had called Huntley to tell him that it would be appreciated
if Huntley could get DNA employees work shifts in his area.
White told Huntley that he was not sure about News’ policy
on hiring DNA employees, that he would make some phone
calls on the matter and that he would get back to Huntley
with the answer. Huntley, who already had selected a retiree
to take a substitute job on Saturday night, told White to
‘‘just scratch it for now,’’ and ‘‘talk about it Monday.’’
On Monday, July 17, in midafternoon, instead of further
pursuing the matter with White, Huntley phoned News’
pressroom foreman, Kenneth Rosendall, and asked about
News’ policy with respect to hiring DNA employees as sub-
stitutes. Rosendall replied that he did not ‘‘want those people
up here damaging my presses.’’ Huntley asked, ‘‘Why would
these people come up here and damage the Saginaw News
presses after there was no damage done in Detroit?’’
Rosendall said he was happy with the substitutes that News
was employing, retirees, and ended the exchange.
On the following day, Huntley told Rosendall that the
Union believed that News was not allowing DNA employees
to work there because of the strike at DNA. Huntley asked
Rosendall for a written statement of News’ reason for refus-
ing to hire DNA employees. Foreman Rosendall neither re-
plied to Huntley’s assertion nor provided a written statement
of News’ reasons for refusing to hire DNA employees.17
Huntley, employed at News, as noted, was chapel chair-
man at both News and Times-aided by assistant chapel chair-
man at each location. Huntley testified that, during the pre-
vious two years, he had not called the Detroit local to obtain
substitutes to work at News because the shifts essentially had
been covered and there was no need. He had used but four
substitutes at News from January 1, 1995, to the time of the
hearing. These had been two retirees and two Bay City
pressmen. When he spoke to White on July 14 about News
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925GRAND RAPIDS PRESS
18 Sec. 8(a)(3) of the Act (29 U.S.C. § 158(a)(3)) makes it an un-
fair labor practice for an employer to discriminate ‘‘in regard to hire
or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization
. . . .’’
19 Sec. 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)) makes it an un-
fair labor practice for an employer to ‘‘interfere with, restrain, or co-
erce employees in the exercise of the rights guaranteed in Section
7.’’
Sec. 7 of the Act (29 U.S.C. § 157)) provides, in pertinent part:
‘‘Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection . . . .’’
20 Handy Andy, Inc., 313 NLRB 616, 621 (1993).
21 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
22 Id.
23 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
employing DNA substitutes, Huntley had been prepared to
replace the retiree he then had scheduled with a DNA press-
man. In view of White’s response, the retiree went on to
work the substitute shift for which he had been scheduled.
B. Analysis and Conclusions
1. The alleged discrimination
The Board has found that an employer’s refusal to hire job
applicants because they engaged in an economic strike vio-
lates Section 8(a)(3)18 and (1)19 of the Act.20 Where, as here,
an employer is charged with violating Section 8(a)(3) of the
Act, the critical question is one of motive.21
Under the Board’s test for determining whether an em-
ployer’s refusal to hire a job applicant was motivated by hos-
tility toward union activity or prounion sentiment, the Gen-
eral Counsel has the burden of persuading ‘‘that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then
shifts to the employer to prove its affirmative defense, that
it would have taken the same action even if the employees
had not engaged in protected activity (citation omitted).’’22
If the reasons advanced by the employer for its action are
a pretext, that is, if the reasons either did not exist or were
not in fact relied upon, it follows that the employer has not
met its burden, and the inquiry logically is at an end.23
In the instant case, from the timing of the Respondents’
conduct, statements made by their various representatives and
other factors indicated below, the General Counsel has pre-
sented convincing evidence that the Respondents’ later refus-
als to employ substitutes from DNA, when duly referred by
the chapel chairman, were prompted by hostility to the
Union’s strike against DNA.
As to timing, the record shows that, before July 13, the
Respondents, except for one above-noted situation, uniformly
had left the selection of substitute pressmen to the exclusive
discretion of their respective chapel chairmen or assistant
chapel chairmen and that the Respondents’ respective rel-
evant policy changes were introduced from 1 to 3 days after
the start of the strike. Accordingly, on the day after the start
of the strike, Journal Pressroom Foreman Kuehling, Press
Foreman Silverdale, and News Production Manager White
suddenly intervened in the process for selecting substitute
pressmen. On July 17, Times Pressroom Foreman King, act-
ing within 3 days after the start of the strike, gave the
Union’s chapel chairman a list of five potential substitutes,
all union-represented pressmen from DNA who, King an-
nounced, were acceptable to Times. That same day, shortly
after talking to Times’ publisher, King, withdrew approval of
the DNA pressmen as substitutes and, on the next day, pre-
sented the chapel chairman with a new list of just-proclaimed
acceptable substitutes which list, as noted, did not include
DNA pressmen and did not refer to those who had been on
the earlier list.
Statements by Respondents’ management representatives
and supervisors in the wake of the DNA strike also evi-
denced intent to discriminatorily exclude striking DNA press-
men from employment as substitutes. When, in response to
Press’ Foreman Silverdale’s direction not to hire any new
substitute pressmen, Assistant Chapel Chairman Bellechasses
had asked if Silverdale was ‘‘referring or insinuating regard-
ing the guys in Detroit,’’ Silverdale admitted: ‘‘Something to
that effect, its got something to do about that.’’ At a meeting
with union representatives 4 days’ later, Press’ general man-
ager, Morton, rejected the chapel chairman’s request for au-
thority to recruit new substitute pressmen for Press, declaring
that Press would not ‘‘have or hire any subs from Detroit.’’
Morton also revealed that the entire Booth chain would not
hire any new substitutes. He limited Press’ recruitment of
substitute pressmen to those who had substituted at Press
during the previous 3 months.
Three days after the start of the DNA strike, in replying
to News Chapel Chairman Huntley’s inquiry as to News’
policy on recruiting DNA employees as substitutes, News
Pressroom Foreman Rosendall stated that he did not ‘‘want
those people up here damaging my presses.’’ When Huntley
sought to assure Rosendall that his fears of damage were un-
warranted, Rosendall responded that he was happy with the
substitutes News was using, the retirees.
The record does not support the Respondents contention
that they were lawfullymotived when they respectively re-
stricted the selection of substitutes after the start of the strike
against DNA because concerned about the quality of their
newspapers. When, at Journal, Foreman Kuehling, who had
explained the imposed restriction on the hiring of substitutes
to Chapel Chairman Mercado as a way to safeguard quality,
was assured by Mercado that the substitutes usually worked
in Journal’s basement reel room and would have little effect
on the quality of its end product, Kuehling, like Rosendall
at News, did not dispute this assertion. His only response
was: ‘‘This is my decision.’’
Press General Manager Morton replied similarly on July
17, when Chapel Chairman Cecola asked him why subs from
Detroit could not be used at Press if Cecola kept them from
touching color control. Morton had replied that Press would
not have or hire any substitutes from Detroit and that he had
learned from a phone call that the entire Booth newspaper
chain was not going to hire any new substitutes. Since the
uncontroverted evidence was that the DNA substitutes, if
brought in to work for the Respondents, would not have been
situated to adversely affect quality, I find that Respondent’s
arguments in this regard to be without substance.
The silence of certain Respondents’ representatives also
was meaningfully eloquent. Times Foreman King had no an-
swer when Assistant Chapel Chairman Taylor asked why
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926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Atrium Plaza Health Care Center, 317 NLRB 606 (1995).
25 McClatchy Newspapers, 307 NLRB 773, 775 (1992).
26 The Union’s collective-bargaining agreements with Journal,
Press, and Times contain no provision for employer involvement in
the preparation, or for prior employer approval of the content, of the
priority substitute lists referenced therein. As noted, News’ contract
with the Union did not even provide for use of a priority substitute
list.
five DNA pressmen, whom King had just designated accept-
able as substitutes, could not work at the Times. On July 18,
News’ foreman, Rosendall, did not respond when Chapel
Chairman Huntley accused News of discriminating against
the DNA pressmen because they were strikers. Finally, the
Respondents did not present any testimony from members of
their management to support their contentions.
From the timing of the respective Respondents’ changes in
their traditional, uniformly applied policy with respect to the
hire of substitutes, all of which were effectuated shortly after
the start of the strike against DNA; from the above revela-
tory statements by certain Respondents’ representatives con-
cerning the reasons for these changes in policy; from the lack
of substance to the Respondents’ representatives’ assertions
of concern for the quality of their newspapers, given as jus-
tification for the new policies; and from the inability of some
Employers’ representatives to explain their abrupt changes in
direction in this regard, I find that the record supports the
General Counsel’s contention that the Respondents refused to
hire DNA pressmen when referred as substitutes by the chap-
el chairmen because such employees had supported the
Union by engaging in the strike against DNA. I, therefore,
find that the Respondents respectively violated Section
8(a)(3) and (1) of the Act by this discrimination in hiring.
Pursuant to this conclusion, I further find that Times, on July
17, violated Section 8(a)(3) and (1) of the Act when it re-
fused to employ DNA pressmen Morris (Bud) Chaney, Jim
Centers, Pat Soper, Dan Lemae, and Willie Nelson.
2. The alleged refusals to bargain
An employer violates Section 8(a)(5) and (1) of the Act
by unilaterally changing a term or condition of employment
contained in a collective-bargaining agreement without the
consent of the union.24 The current collective-bargaining
agreements between the Union and the Respondents, respec-
tively, gave the divers chapel chairmen discretion to select
substitute journeymen pressmen without management re-
straint except that, when calling in a substitute under the
Journal, Times, and Press contracts, ‘‘preferences will be
given to those persons whose names are listed on a Priority
Substitute List supplied by the Union.’’ News’ collective-bar-
gaining agreement with the Union did not refer to a priority
substitute list in defining the chapel chairman’s discretion to
provide substitutes.
The Board has recognized that the referral of employees
to an employer for hire is a mandatory subject of bargain-
ing.25 Here, the parties have stipulated that the traditional
practice had been that the pressroom foreman would request
the chapel chairman to furnish a substitute and that a sub-
stitute thereafter would appear, and the uncontroverted evi-
dence reveals that the contractual priority substitute lists to
be used in the preferential hiring of substitutes, where rel-
evant, be furnished unilaterally by the Union.26 Accordingly,
I find, that before July 13, when the strike against DNA
began, the Union functionally had had broad independent
discretion to furnish the respective Respondents’ substitutes
when so requested, from whatever sources it considered ap-
propriate, limited only by a requirement that such substitutes
be journeymen.
Although the Respondent correctly argues that the chapel
chairmen at the various Respondent’s newspapers did not
follow a uniform method of hiring substitutes; that not all
chapel chairmen had sought their substitutes in the first in-
stance from the Detroit local representing DNA employees;
and that, often, the substitutes retained were not from DNA,
what is relevant here is that, until the strike against DNA
began, the Union had been afforded recognized discretion to
call in pressmen to work as substitutes for the Respondents
from such sources as it had seen fit, including from DNA.
In seeking to preclude the Union from obtaining substitutes
from DNA, or from any other source, by decree, without first
seeking to obtain the Union’s consent, the Respondent acted
to unilaterally change terms and conditions of hire and there-
by failed to meet its bargaining obligation. That the Re-
spondents’ actions taken since the start of the strike against
DNA to prevent the Union from using DNA pressmen as
substitutes at its facilities also had been for the unlawful dis-
criminatory reasons found above, serves to bring into clearer
relief the bargaining violations of the Act found herein.
As indicated, the Respondents were not content to comply
with their bargaining obligations under Section 8(d) of the
Act by negotiating with the Union to obtain its consent to
a limitation of the chapel chairmen’s discretion. Instead, the
respective Respondents unilaterally restricted the chapel
chairmen’s ability to select substitutes by,variously, giving
the chapel chairman new lists of acceptable substitutes to be
used thereafter in the selection of same, as at Journal and
Times; by specifically prohibiting the future hire of sub-
stitutes from Detroit and limiting selection to pressmen who
had worked as substitutes for the Respondent during the pre-
vious 3 months, as at Press; and by narrowing the selection
of substitutes to those currently employed, as at News. I find
that by unilaterally imposing these limitations upon the chap-
el chairmen without acquiring the Union’s prior consent, the
Respondents violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The respective Respondents each are employers 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 col-
lective-bargaining representative of the respective Respond-
ents’ employees in the following appropriate separate units:
All pressmen and pressmen apprentices employed by
The Grand Rapids Press at its Grand Rapids, Michigan,
facility, excluding the foremen, professional employees,
office clerical employees, guards and supervisors, as
defined in the Act.
All pressroom employees employed by the Bay City
Times at its Bay City, Michigan, facility, excluding the
foremen, professional employees, office clerical em-
ployees, guards and supervisors, as defined in the Act.
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927GRAND RAPIDS PRESS
27 90 NLRB 289 (1950).
28 283 NLRB 1173 (1987).
All press department employees employed by the
Publisher of the Saginaw News at that Company’s
Saginaw Michigan, facility, excluding the foremen, pro-
fessional employees, office clerical employees, guards
and supervisors, as defined in the Act.
All press department employees employed by the
Flint Journal at its Flint, Michigan, facility, excluding
the foremen, assistant foremen, professional employees,
office clerical employees, guards and supervisors, as
defined in the Act.
4. By unilaterally changing the respective contractually es-
tablished substitute employee referral systems between and
the Union and themselves without obtaining the Union’s con-
sent, each of the Respondents has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) of the Act and Section 2(6) and (7) of the
Act.
5. By each refusing to employ substitute employees be-
cause such employees were engaged in an economic strike
on behalf, and in support, of the Union, and to discourage
employees from engaging in this and other concerted activi-
ties, the respective Respondents have engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) of the Act.
6. By refusing to hire Morris (Bud) Chaney, Jim Centers,
Pat Soper, Dan Lemae, and Willie Nelson because they were
engaged in an economic strike on behalf, and in support, of
the Union, and to discourage employees from engaging in
this and other concerted activities, Respondent Timeshas vio-
lated Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they should be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. The rec-
ommended Order also will require that Respondent Times
make whole employees Morris (Bud) Chaney, Jim Centers,
Pat Soper, Dan Lemae, and Willie Nelson for all earnings
and benefits lost by reason of Times’ refusal to employ them
as substitutes on and after July 17, 1995. Such reimburse-
ment shall be computed on a quarterly basis from the dates
of Times’ refusals to employ them until the dates of proper
notice to the Union that Times is willing to hire them as sub-
stitutes, less any interim earnings as prescribed in F. W.
Woolworth Co.,27 with interest as computed in New Horizons
for the Retarded.28 Further, the recommended order will re-
quire that each of the Respondents rescind all the restrictions
they unilaterally have imposed upon the Union’s right under
its current collective-bargaining agreements with these Re-
spondents to call in substitutes and, where applicable, to es-
tablish, compile and maintain priority substitute lists.
[Recommended Order omitted from publication.]
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