Meredith Corp.

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 588 (N.L.R.B. 1971)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meredith Corporation and Local 71, International
Brotherhood of Bookbinders , AFL-CIO. Case
18-CA-3148
December 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 23, 1971, Trial Examiner Josephine H.
Klein issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and the Respondent filed cross-
exceptions and answer to General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt her
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner : This case was tried
in Des Moines, Iowa, on June 10, 1971, 1 on a complaint
issued against Meredith Corporation , Respondent, pur-
suant to a charge filed by Local 71, International
Brotherhood of Bookbinders , AFL-CIO (the Union or
Bookbinders), on February 1, alleging that Respondent
violated Section 8(a)(1) and (3) of the Act2 by refusing to
pay employees represented by the Union while paying
nonrepresented employees for time not worked on January
4, when Respondent announced that its office building
would be closed because of a snowstorm.
At the hearing all parties were afforded opportunity to be
heard , to present oral and written evidence, and to examine
and cross -examine witnesses. The parties waived oral
argument and the General Counsel and Respondent
thereafter filed briefs.
Upon the entire record , observation of the witnesses, and
r Unless otherwise stated, all dates herein are in 1971.
2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519,
29 U S.C Sec. 151 et seq )
consideration of the briefs, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, an Iowa corporation, is engaged in the
business, inter alia, of publishing magazines and books.
During the 12-month period ended December 1970, a
representative period, Respondent, in the course and
conduct of its business, purchasedmore than $50,000 worth
of paper which originated outside Iowa and shipped more
than $50,000 worth of magazines and books from Iowa to
customers located outside the State. Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
It. THE UNFAIR LABOR PRACTICE
A. The Facts
Respondent, engaged in various aspects of commumca-
tions in many locations throughout the country, maintains
its corporate office and a publishing plant in Des Moines,
Iowa. At the office building, located downtown on Locust
Street, it has about 700 employees, of which around 650 are
secretarial or clerical workers,3 the remaining 50 including
material movers, maintenance employees, painters, guards,
and 3 returned-book inspectors. It is the returned-book
inspectors who are specifically involved in this case. There
are about 1,500 employees, including some clerical workers,
at the production facility located at Park, Avenue, about 4
miles away.
The nonclerical workers are represented by approximate-
ly 10 unions. The Bookbinders (Charging Party) represents
around 250 to 275 employees, all of whom, with the
exception of the 3 returned-book inspectors, work at the
Park Avenue facility. The returned-book inspectors are
among some 30 employees at the central service and supply
department, which is located at Locust Street. The
nonclerical workers at Locust Street are represented by six
unions. The clerical employees are not represented by any
union.
On January 4, because of a severe snowstorm, Respon-
dent announced over local radio and television that the
Locust Street plant would be closed. The three returned-
book inspectors did not report for work. Some employees
did report and were dismissed early. A small number
reported and worked all day.
Upon return to work on January 5, the returned-book
inspectors asked their supervisor, Carroll L. Rogers,
manager of the central service and supply department, how
they were to prepare their timecards for January 4 and if
3 Receptionists, switchboard operators, file clerks, order processors,
mail distributors, secretaries, executive secretaries, and keypunch operators
194 NLRB No. 103
MEREDITH CORP
they were going to be paid for the day. Rogers said he did
not know but would find out and let them know later.
Donald L. Arnold, Respondent's vice president for
employee and public relations, testified that he asked
Phillip O'Brien, director of benefits and services, whether
Respondent "had any practice regarding the payment of
the clerical people under circumstances such as the
snowstorm" and O'Brien said that Respondent had always
done S0.4 Arnold did not make inquiry concerning the other
employees because, in his words, "there was no policy
question involving those people, it was a matter of
interpretation of the labor agreements." After speaking
with O'Brien, Arnold obtained the approval of Darwin
Tucker, then Respondent's chief executive, and then
advised Personnel Director Glenn Witt to see that the
clerical employees were paid for the day. Glenn thereupon
informed Rogers "that those people working under or
covered by a union contract would not be paid" and that
the employees should be so advised. On January 11, Rogers
so notified the employees .5
All employees who showed up for work on January 4 and
were dismissed early were paid for the full day. All clerical
workers were paid for that day. Those employees who
worked the entire day were later granted compensatory
time off. No nonclerical workers who failed to show up at
either building were paid for January 4.6
B. Discussion and Conclusion
Before considering the basic legal issue whether an
employer may legally differentiate between represented
and nonrepresented employees in circumstances such as
those here presented, the Examiner will dispose of
subsidiary questions raised by the parties.
First to be considered is Respondent's contention that if
Respondent paid the employees here in question for
January 4 it "technically would have been in violation of
the governing collective-bargaining agreement." To sup-
port this position, Respondent refers to the contract's
conclusory integration clause when read in conjunction
9 Respondent presented no specific evidence supporting a past practice
of paying clerical workers under similar circumstances As discussed below,
the General Counsel established that on some occasions in the past both
clerical and other employees had been paid when employees were excused
from work as a group
5 According to the employee witnesses, Rogers said that "union
members," "union workers ," or "union people" would not be paid Rogers,
however, testified that, pursuant to Witt's instructions , he defined the class
of employees who would not be paid as those "covered by union contracts
or working under a union contract." There is no suggestion in the evidence
that Respondent differentiated among employees on the basis of union
membership. The Examiner credits Rogers
6 So far as appears, the same pay pattern was followed for the Park
Avenue building , although no announcement of its closing was made
T The provision reads:
No one shall be employed for less than a full day, except when
discharged for cause or when excused by the Company at his own
request
The corresponding provision in Respondent's collective-bargaining
agreement with the Pressmen's Union for May 1, 1971, through April 30,
1973,reads-
if an employee is scheduled for work and reports for work he is
to receive a minimum of seven and one-half (7 1/2) hours pay except
when discharged for just cause or excused at his own request.
The record does not disclose whether similar provisions are contained in
589
with a provision that, in effect, assures employees a full
day's pay for any day they report for work.? So far as
appears, Respondent has never announced any similar
policy for its unrepresented clerical employees. The
integration clause reads, in pertinent part:
This agreement contains all the binding conditions in
regard to hours, wages, and other conditions of
employment that exist between the Union and the
Company. .
According to Respondent, since the Union contract pro-
vides payment for time not worked under some circum-
stances, the integration clause serves to prohibit payment
for nonwork time in any other situations.
In the Examiner's opinion , so far as here relevant, this
clause means at most that the employees covered by the
contract would have no contractual right to payment for
January 4. But it certainly cannot be said that Respondent
would "breach" its contract by giving more than it had
committed itself to gives Contractual obligations and
statutory responsibilities are not necessarily coextensive.
Many acts required by contract may be prohibited by
statute and, conversely, conduct prohibited by contract
may be required by statute. The terms of Respondent's
collective-bargaining agreement with the Union are not
decisive of the present case.9
Attention is now turned to the General Counsel's
apparent contention that in the past Respondent has
consistently treated organized and unorganized employees
the same with respect to pay for time not worked and is
therefore obligated to do so in the present situation.10
The General Counsel's evidence establishes the following
events in the past: In January 1961 Respondent dismissed
employees of the machine bindery department at Park
Avenue for an afternoon to attend the funeral of the wife of
Respondent's founder. On the day of President Kennedy's
assassination in November 1963, employees of the first shift
at Park Avenue were dismissed and the second shift was
told not to report for work. In June 1966 the Locust Street
employees were dismissed for a half day when Respon-
dent's founder's son died.ii Because of a power shortage,
the Park Avenue plant was closed and the employees
all of Respondent's collective bargaining agreements
8 "The word `breach ,' as applied to contracts , is defined as a failure
without legal excuse to perform any promise which forms a whole or a part
of a contract . ' " 17 Am. Jur 2d 997 (Contracts, Sec 441.)
9 Cf. A 0 Smith Corp, Case 13-CA-7741, TXD-293-67, adopted by
the Board in the absence of exceptions on June 27 , 1967. That case, which
is discussed in some detail below, presented a situation closely similar to
the present. Trial Examiner Frederick U Reel there said: "Manifestly, I
am not concerned with whether the contract should be construed to require
payment for the time in question. . . . I am likewise not concerned with
what an arbitrator might have decided had the Union resorted to the
arbitration provisions of the contract"
io The General Counsel's position is not entirely clear . After stating that
Respondent has always treated represented and unrepresented employees
the same with respect to payment when the plant has been closed, the
General Counsel's brief says.
This is the condition of employment which has always been applicable
and which continued to be applicable on January 4, 1971. Therefore,
the failure to pay snow pay to the unit employees violated the
contract, and the contract cannot serve as a defense to the charge of
discrimination on the basis of union representation
ii Although the General Counsel's evidence concerning the events in
1961, 1963 and 1966 was restricted as summarized , there is no reason to
believe that the dismissals were not company-wide, applying to all
departments in both buildings.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissed early one day in March 1964. And the same thing
happened sometime in 1967 because of a water shortage at
the Park Avenue plant. In each instance all employees, both
represented and unrepresented, were paid for the time lost.
As heretofore noted, at least two of Respondent's current
collective-bargaining agreements would require payment
for a full day's work for covered employees who were
dismissed early on the occasions described. While there is
no evidence that similar provisions were contained in
Respondent's collective-bargaining agreements at the times
in question, it is at least possible that payment to unionized
employees was then required by contract. It should be
noted that those production employees who did report to
work on January 4 were dismissed early yet paid for the
entire day. Whether or not payment to organized
employees on the past occasions referred to were contractu-
ally required, the General Counsel's evidence falls far short
of establishing a course of conduct which would make it a
term or condition of employment that employees would be
paid for days when they were not required to report.
Nor does the General Counsel's evidence establish any
pattern of conduct which would assure uniformity of pay
and other personnel practices for represented and nonre-
presented employees. To the contrary, although Respon-
dent provides the same major fringe benefits (such as
vacations, holidays, sick leave, life insurance, hospitaliza-
tion and medical insurance) 12 to all employees, in several
respects clerical and nonclerical employees have been
afforded different treatment, both as to matters specifically
governed by collective-bargaining agreements and with
respect to items not so governed. Apart from and beyond
the difference in levels of pay attaching to different jobs,
there are significant differences in the wages and hours
provisions governing the clerical employees and those
provided in the Bookbinders' collective-bargaining
agreement.13 For example, the Bookbinders has a basic 37
1/2-hour week as opposed, to the 40-hour week of the
clerical employees. The Bookbinders' contract -calls for
automatic, periodic wage increases, whereas clerical
employees' compensation is prescribed in ranges with merit
increases based on periodic performance reviews. Although
the Union's collective-bargaining agreement does not
provide for timeclocks, all nonclerical workers, including
those represented by Bookbinders, punch timeclocks,
whereas the clerical employees do not. There was
uncontradicted evidence that attendance and leave policies
are more flexibly or liberally applied to clerical than to
other employees. For a time in 1966 clerical employees at
the Park Avenue building were given a 2-hour lunch period
and round trip transportation to Center City once a week,
whereas production workers were afforded no such
benefits. In short, the General Counsel has not shown, as he
in effect contends, that the organized employees have
acquired, through past conduct, what would amount to a
type of "most-favored-nation" clause. In any event, while
abandonment of an established practice such as that
claimed by the General Counsel might possibly violate
12 According to Arnold, the only major fringe benefit in which there is
lack of uniformity is the companywide pension plan, which the
Bookbinders Union has rejected and the Mailers Union has taken to
arbitration
13 The record contains no evidence of the wage and hour terms of
Section 8(a)(5) of the Act, Gravenslund Operating Co., 168
NLRB 513, it would not automatically contravene Section
8(a)(3). New Orleans Board of Trade, Ltd., 152 NLRB 1258.
In their able and helpful briefs, the General Counsel and
Respondent have. reviewed many of the Board and court
decisions involving employers' disparate treatment of
"union" and "non-union" employees and of strikers and
nonstrikers. Relying primarily on Radio Officers Union v.
N.L.R.B. (Gaynor News Co.), 347 U.S. 1714; N.L.R.B. v. Erie
Resistor Corp., 373 U.S. 221; N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26; and N.L.R.B. v. Fleetwood
Trailer Co., 389 U.S. 375, the General Counsel argues that it
is inherently discriminatory to withhold or to grant
payment for time not worked because of the snowstorm on
the basis of whether the employees are represented by a
union and working under a union contract. Respondent, on
the other hand, maintains that Gaynor News is inapplicable
to the present case since its holding is limited to situations
in which the union is the exclusive representative of all the
employees; the favored and unfavored employees perform
the same jobs; and the differentiation in treatment is based
solely on union membership or nonmembership or on the
exercise or nonexercise of the right to strike. In this basic
conflict, the decisions clearly support Respondent's conten-
tion.
In Gaynor News the employer, pursuant to a collective-
bargaining agreement, had granted retroactive pay increas-
es and vacation pay to union members, while denying such
payments to other employees who had not joined the union.
In sustaining the Board's finding of a Section 8(a)(3)
violation, the Court held that:,
... the union being exclusive bargaining agent for
both its members and nonmember employees, the
employer could not, without violating § 8(a)(3),
discriminate in wages solely on the basis of such
membership... .
The Court expressly left open "the legality of disparate
payments where the union is not exclusive bargaining
agent."
Erie Resistor, involved discrimination against strikers in
favor of their replacements, the two groups being within the
same unit and performing the same work. Great Dane
concerned discrimination with respect to vacation pay
between strikers and nonstrikers within the same unit. To
the same effect is Flambeau Plastics Corp., 167 NLRB 735,
744-745, enfd, 401 F.2d 128 (C.A. 7), cert. denied, 393 U.S.
1019, also cited by the General Counsel. Hanley Davison
Chevrolet, Inc., 168 NLRB 944, also held violative
differentiation concerning payment of commissions to
strikers and nonstrikers within the same unit. Fleetwood
Trailer held the employer had discriminated among
employees within the same bargaining unit when it refused
to reinstate strikers. Similarly, General Motors Corp., 59
NLRB 1143, modified, 150 F.2d 201 (C,A. 3), cited by the
General Counsel, involved discrimination among employ-
ees similarly situated, with union membership as the sole
criterion.
Respondent 's other collective -bargaining agreements.
14 Gaynor News Co, 93 NLRB 299, modified , 197 F 2d 719 (C.A. 2), is
one of three cases decided in Radio Officers. Of the three cases , Gaynor
News is most relevant to the present case.
MEREDITH CORP.
Addressing itself to the question left open by the Supreme
Court in Gaynor News, the Board has "specifically held that
where the Union is not the exclusive bargaining agent of all
the employees, the Board may not, without reference to the
employer's actual motivation, properly infer discriminatory
intent from the disparate conduct itself." While differentia-
tion among employees "based on `membership' in a union"
is a per se violation of Section 8(a)(3), "differentiation .. .
based on membership in a unit" may be entirely legal.
Central States Petroleum Union, Local 115, 127 NLRB 223,
228-229, referring to Speidel Corp., 120 NLRB 733, in
which the Board held that an employer did not violate
Section 8(a)(3) by granting a bonus to unorganized
employees while withholding it from a unit which had
recently chosen to be represented by a union. To similar
effect, see, e.g., Anheuser-Busch, Inc., 112 NLRB 686; New
Orleans Board of Trade, supra, 152 NLRB at 1264-1265. Cf.
Wagner Electric Corp., 105 NLRB 1, finding no violation of
the Act in an employer's paying unorganized employees
who did not work during a strike'while not paying either the
employees in the striking unit or those in another unit
represented by a second union.15
Even in those cases in which the Board has found
unlawful discrimination, it has recognized that "any
employer has the right to restrict the compensation of
represented employees to that agreed to by their bargaining
representative, while setting the compensation of unrepre-
sented employees at whatever level it deems proper, so long
as the employer does not intend thereby to discourage
union membership or activity." Pittsburgh-Des Moines Steel
Company, 124 NLRB 855, 859 fn. 8, in which the Board
held that an employer violated Section 8(a)(3) by not
granting to strikers a customary Christmas bonus which it
gave to nonstrikers.16 In the somewhat different context of
pending contract negotiations, the Board has recently
reaffirmed its longstanding interpretation of the Gaynor
News principle. In Chevron Oil Company, 182 NLRB No.
64, in reversing a Trial Examiner's dismissal of Section
8(a)(3) allegation, the Board said: "Were it not for the
unfair labor practice setting in which the withholding
action occurred, we would have no hesitancy in adopting
the Trial Examiner's finding. It has long been an
established Board principle that, in a context of good-faith
bargaining, and absent other proof of unlawful motive, an
employer is privileged to withhold from organized employ-
ees wage increases granted to unorganized employees or to
condition their grant upon final contract settlement." 17
In Intermountain Equipment Co., 114 NLRB 1371, an
employer discontinued paying a bonus and providing sick
leave to a unit of employees represented by a union while
continuing such benefits for other employees. In finding a
violation of Section 8(a)(3), the Board did say (p. 1373) that
"this disparate treatment concerning bonuses and sick
15 A similar result was reached in Cities Service Refining Corp, 105
NLRB 797, but the Board there based its decision on the breach of a no-
strike provision in the second, union 's contract
16 Set aside 284 F.2d 174 (C.A. 9). In that case , the Board found that
the employer, by withholding a customary Christmas bonus, has reduced
the compensation of certain employees in retaliation for their having
engaged in a strike In reversing, the court held that the bonus had been
withheld from the unit involved simply because those employees had not
met the employer's productivity standards According to the court, the fact
591
leave had the inherent effect of discouraging union
membership and therefore constituted a violation of
Section 8(a)(3) and (1) of the Act, even absent independent
evidence of the Respondent's antiunion motivation."
However, it appeared as a fact that the employer had
assured the union that it would "treat all employees in [its]
employment the same as far as bonuses and sick leave were
concerned," and the union had relied on this promise in the
negotiations. Since such bad-faith bargaining by the
employer would constitute affirmative evidence of discrimi-
natory motivation, the Board's `per se" language can be
viewed as dictum and not as an affirmative holding
inconsistent with those heretofore discussed. In reversing
the Board in Intermountain, the Ninth Circuit specifically
distinguished Gaynor News and General Motors on the
ground that they "involved discrimination among employ-
ees doing exactly the same work for exactly the same pay on
the basis of union membership," whereas Intermountain
involved differentiation between organized employees, who
had received benefits by contract, and nonunion members
who "were outside the scope of the bargaining unit." 239
F.2d 480, 482. In Speidel Corp., supra, 120 NLRB at 736, fn.
7, the Board appears to have accepted the court's view (and
that of the dissenter at the Board level) in Intermountain.
Both the General Counsel and Respondent have referred
to decisions in which employers have been found to have
committed unfair labor practices by the terms or adminis-
tration of profit-sharing, pension, or similar funds or
benefit plans. The cases in that group are distinguishable
from the instant case.
International Harvester Co., 169 NLRB 787; Bendix-
Westinghouse Automatic Air Brake Co., 185 NLRB No. 29,
enfd. 443 F.2d 106 (C.A. 6); Goodyear Tire & Rubber Co.,
170 NLRB 539, set aside, 413 F.2d 158 (C.A. 6); Dura
Corp., 156 NLRB 285, enfd. 380 F.2d 970 (C.A. 6); and Jim
O'Donnell, Inc., 123 NLRB 1639, all concerned funds or
plans covering only salaried and/or office employees. In
Quality Castings Co., 139 NLRB 928, set aside, 325 F.2d 36
(C.A. 6), the Board held that the provisions for distribution
of a profit-sharing plan improperly and discriminatorily
penalized strikers. In Toffenetti Restaurant Co., 136 NLRB
1156, 1173 enfd, 311 F.2d 219 (C.A. 2), cert. denied, 372
U.S. 977, the provisions of the company's plan discriminat-
ed against union members as compared with nonunion
members within the same bargaining unit. These cases thus
involved disparate treatment among people performing
"the same or comparable work." Crosby Chemicals, Inc.,
121 NLRB 412, 417, fn. 9.
In several of the pension and similar fund cases, the
exclusion of the employees from the benefits of employer-
maintained plans was made during the union's organizing
campaign and thus clearly interfered with the employees'
free exercise of their Section 7 rights, in violation of Section
that the unit's low productivity was caused by the extended strike did not
mean that the bonus was withheld in retaliation for the stoke or to
discourage such concerted activity The Board and the court had no
disagreement as to the basis principle that differentiation of treatment
between organized and unorganized units is not necessarily unlawful
17 In setting aside the Chevron order in pertinent part, the Fifth Circuit
quoted this portion of the Board's decision with approval The court
disagreed with "the Board's finding that the Company's withholding action
occurred within a bad-faith bargaining context ," 442 F 2d 1067 (C A 5).
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1). Melville Confection, Inc., 142 NLRB 1334, enfd. 327
F.2d 689 (C.A. 7), cert. denied, 377 U.S. 933; Bendix-
Westinghouse, supra.
In other cases the essential vice of the exclusion of
represented employees from company plans was its effect
in limiting the scope of collective bargaining. Dura Corp.,
supra; The Kreger Co., 164 NLRB 362, enfd., 401 F.2d 682
(C.A. 6). In Motor Wheel Corp., 180 NLRB No. 71, set aside
per curiam, 74 LRRM 2832 (C.A. 6), the Board assumed
arguendo that a plan which specifically provided for
continuance of participation during the course of contract
negotiations would not violate the Act. The nub of the
Board's rationale in finding the Motor Wheel plan unlawful
was: "Employees considering selecting a bargaining agent
would ... be impeded in their free exercise of their right of
selection by clear and unequivocal language in Respon-
dent's plan indicating that they would suffer a loss of
benefit if they selected a Union and the Respondent
recognized it." Compare N.L.R.B. v. Hudson Transit Lines,
429 F.2d 1223 (C.A. 3), cited by the General Counsel. That
case affirms a Board holding that an employer violated
Section 8(a)(1) by reducing employee benefits after an
election had been held but before the union was certified.18
Whatever the specific variations, all the "fund" cases
arise from restrictions written into continuing plans the
very existence of which would inevitably interfere with
employees' exercise of their Section 7 organizational right
and/or limit the scope of bargaining assured by Section 7.
The present case, on the other hand, involves a specific,
isolated instance of differentiation, not inherently discrimi-
natory on its face. Toffenetti, supra, illustrates the basic
difference between the "fund" cases and those, like the
present, involving ad hoc differentiation. The published
plan in Toffenetti was held to be discriminatory on its face
and thus violative of the Act irrespective of the employer's
motivation. However, in holding that the employer also
violated Section 8(a)(3) by withholding Christmas bonuses
from its organized employees, the Examiner, affirmed by
the Board, expressly found that "the record herein clearly
discloses Respondent's antiunion motivation for the
disparate bonus payments by substantial evidence inde-
pendent of the bonus payment alone." 136 NLRB at 1168.
Since the differentiation here involved may very well be
based solely on reasonable economic or other nondiscrimi-
natory considerations, it is entitled to a presumption of
validity, the General Counsel shouldering his usual initial
burden of proof.
In the present case, there is no suggestion of union
animus on the part of Respondent. Indeed, Respondent
and the Union here involved have been bargaining for
around 40 years. And Respondent has collective agree-
ments covering 13 bargaining units in Des Moines and 11 in
is The Board had expressly declined "to determine whether the conduct
in question also violated Section 8(a)(3) " 173 NLRB 133, In. 2.
19 Arnold summed the distinction up as follows ". a secretary who
is gone for a week's vacation does not leave a week's work undone Work
will be done in advance of going, and work will be caught up on return
This is possible in virtually all of the clerical functions It is not, of course,
true in production, where if a machine is not running you can later use
time when it is running to catch up for time that it didn't run It is a
general distinction and difference, and you will find in costing benefits,
such as vacations and holidays, that there is a significant difference in the
cost of such items for clerical people as opposed to production people
other locations. There is no evidence that Respondent
opposed the unsuccessful attempt to organize its clerical
employees in Des Moines which led to an election in 1965.
In January 1971, the time here involved, there were no
organizational or bargaining activities in progress or in
immediate prospect.
Nor has the General Counsel presented any affirmative
evidence from which it could be found that Respondent's
decision was motivated by a desire to discourage union
membership. On the other hand, Respondent articulated a
sound basis for distinguishing generally between prod-
uction and clerical workers. Production lost when machines
are down is forever gone unless made up on other time;
much office work, such as that of switchboard operators
and receptionists need not and cannot be made up, and
other functions, such as typing and filing, can usually be
fitted in without extending other regularly scheduled work
time.19 The Examiner might well take official notice of
what Vice President Arnold referred to as the "inherent
difference" between clerical and production work which
would warrant a difference in the treatment of pay for time
not worked.20
Thus, since the General Counsel has failed to establish
that Respondent's refusal to pay the three returned-book
inspectors here involved for January 4, when they did not
report to work because of a snowstorm, was motivated by
union animus or a desire to discourage union membership,
the complaint is dismissible under the authorities hereto-
fore discussed.
A postscript is here in order. At the hearing, the
Examiner called to the parties' attention Trial Examiner
Frederick U. Reel's Decision in A. 0. Smith Corp., TXD
293-67, adopted by the Board on June 27, 1967, in the
absence of exceptions (Case 13-CA-7741). Like the
present, that case involved allegedly discriminatory non-
payment for time lost when a plant was closed because of a
snowstorm. There, as here, the employer's representative
stated that payment to the organized employees "would be
in direct violation of the contract." But, unlike the present
case, the employer's representative also stated that salaried
personnel would be paid while hourly rated employees
would not be. The company strictly followed the salary
versus hourly wage distinction in making payments, to the
extent of not paying hourly rated temporary clerical
workers even though they were not within union represent-
ed units. Additionally, the Examiner found that the
employer representative who made the decision concerning
snow pay "followed a consistent policy of distinguishing
between salaried and hourly paid employees, even where
the Union here involved represented salaried workers." The
Examiner dismissed the A.O. Smith complaint on the basis
of his ultimate finding that "the factor leading to the
involved in machine operations "
20 The record is unclear as to whether Respondent's employees are
"salaried," as distinguished from the hourly rated production workers
Without contradiction, Union President James Geyer quoted Rogers as
having said that the clerical workers in his department were hourly paid.
However, there is in evidence a "Salary Administration Manual for Non-
Exempt Positions." When questioned as to the "wage rates" for clericals,
Arnold stated "per-week" figures, but testified that the clericals receive a
shift differential on an hourly basis . In any event, Respondent does not
seek to justify the differentiation here involved on the ground that the
clerical employees are salaried rather than hourly rated.
MEREDITH CORP. 593
disparate treatment was not union representation, but
whether the employees were employed an a salary or at an
hourly rate. " 2i The issue to which Examiner Reel
addressed himself was: "whether the Company's disparate
treatment of the salaried and hourly paid employees was
motivated by the fact that the hourly paid employees were
represented by a union, and, even if not so motivated, was
the natural consequence of the conduct to discourage union
membership, so that proof of motivation is not necessary."
In the present case, on the other hand, Respondent stood
squarely on its asserted right to limit represented employees
to their contractual rights, regardless of any additional
benefits afforded unorganized employees. Respondent's
evidence establishes that in deciding to pay the "non-
exempt clerical" employees it gave no consideration to the
organized employees. It did not base its decision on the
"inherent difference" between clerical and production
workers concerning which Arnold testified. On the
contrary, while Respondent could readily have justified the
disparity of treatment on this functional distinction, it
chose to make "union representation the factor leading to
the disparate treatment ." In this basic respect the present
case differs from A . O. Smith. Despite this difference, the
Examiner believes that such precedents as Anheuser-Busch,
Speidel, and New Orleans Board of Trade, discussed above,
require that the present case also be dismissed.
CONCLUSION OF LAW
Respondent, Meredith Corporation, has not engaged in
the unfair labor practice alleged in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, it is recommended that the complaint be dismissed in
its entirety.
21 It was also found that a lower echelon supervisor had said to the concerning payment and then noted "that the complaint does not allege
union representative, "I told them years ago not to join a union, so they that the statement violated Section 8(a)(1), but only that the nonpayment
will not be paid and the others will be paid " The Examiner found that the violated Section 8(a)(1) and (3) of the Act "
author of that statement had not participated in the actual decision