Missourian Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1975

216 N.L.R.B. 175 (N.L.R.B. 1975)

MISSOURIAN PUBLISHING COMPANY, INC.
Missourian Publishing Company , Inc. and Local 505,
Graphic Arts International Union, AFL-CIO-
CLC. Cases 14-CA-7611 and 14-CA-7713
January 16, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On August 30, 1974, Administrative Law Judge
Eugene E. Dixon issued the attached Decision in this
proceeding. Thereafter, the Charging Party and the
General Counsel filed exceptions to the Administra-
tive Law Judge's Decision and briefs in support
thereof ; Respondent filed cross-exceptions and a
brief in support thereof and in opposition to
exceptions of the Charging Party and the General
Counsel.'
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
Administrative Law Judge's Decision in light of the
exceptions and briefs and has decided to affirm the
Administrative Law Judge's rulings, findings,2 and
conclusions 3 to the extent consistent herewith.
AMENDED CONCLUSION OF LAW
Add the following to the Administrative Law
Judge's Conclusion of Law 6:"; and by unilaterally
eliminating the free coffee , changing the work
schedules of press employees and designating specif-
ic lunch periods , and granting wage increases in
excess of those being offered in negotiations, all
without notifying or bargaining with the Union,
Respondent has violated Section 8 (a)(5) and 8(a)(1)
of the Act."
i The Respondent has requested oral argument. This request is hereby
denied because the record , the exceptions, and the briefs adequately present
the issues and the positions of the parties.
2 In finding that Respondent did not bargain in good faith , we do not
rely on the Administrative Law Judge 's conclusion that Respondent's
failure to grant some form of union security is an indication of bad faith.
3 The Administrative Law Judge found that Respondent discnminatonly
assigned duties to Elmer Holtgreve, thereby violating Sec. 8 (aX3) of the Act.
Since Holtgreve was not reduced in pay as a result of the discrimination
against him , and was restored to his normal duties as of the hearing, the
Administrative Law Judge did not recommend a make -whole order. The
Administrative Law Judge found, inter alla, that Respondent 's unilateral
action in eliminating the free coffee, establishing a new system of hours for
press employees and designating specific lunch hours , and granting wage
increases in excess of those being offered in negotiations with the Union, all
violated Sec . 8(aX5) and ( 1) of the Act.
The General Counsel and the Charging Party have, excepted to the failure
of the Administrative Law Judge to provide a remedial order and notice
with respect to the findings that Elmer Holtgreve was discriminatorily
ORDER
175
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Missourian Publishing Company, Inc., Washington,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organiza-
tion by discriminating in regard to the hire and
tenure of employment of any employee or applicant
for employment.
(b) Discriminatorily assigning employees to more
onerous or menial work.
(c) Refusing and failing to bargain in good faith
with the above-named Union.
(d) Unilaterally eliminating free coffee.
(e) Unilaterally establishing new work schedules
and designated lunch periods.
(f) Unilaterally granting wage increases in excess of
those being offered in negotiations.
(g) Illegally interrogating its employees regarding
their union support and activities.
(h) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist Local 505, Graphic Arts
International Union AFL-CIO-CLC, or any other
labor organization, to bargain collectively with
representatives of their own choosing, and to engage
in any other concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer immediate reemployment to Stephen
assigned work, and that Respondent unilaterally , and without notice to and
bargaining with the Union , eliminated free coffee , changed the hours of
press employees and designated specific lunch periods , and granted wage
increases . The General Counsel and the Charging Party also excepted to the
failure of the Administrative Law Judge to provide a remedial order
requiring reinstatement of free coffee and to provide a make -whole remedy
for wages lost as a result of the change in hours. We agree that such
additional remedial relief would effectuate the purposes of the Act. We
therefore shall amend the recommended Order and notice to provide that
Respondent , upon request , be ordered to reinstate the free coffee, as it
existed prior to Respondent's unilateral action on or about April 10, 1973,
reinstate the work schedules and lunch periods of the press employees as
they existed prior to May 7, 1973, and make the affected employees whole,
as provided for in that portion of the Administrative Law Judge 's Decision
entitled "The Remedy" for any loss suffered as result of this change.
However , nothing in this Decision shall be construed to require Respondent
to withdraw the wage increases found herein to have been granted
unlawfully.
216 NLRB No. 34
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frederick and make him whole in the manner set
forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
(b) Upon request, bargain collectively with Local
505, Graphic Arts International Union,
AFL-CIO-CLC, as the exclusive representative of
all employees in the appropriate unit and, if an
understanding is reached, embody it in a signed
agreement.
(c) Upon request, reinstate the free coffee for
employees as it existed prior to April 10, 1973.
(d) Upon request, reinstate the work schedules and
lunch periods of press employees as they existed
prior to May 7, 1973, and make the press employees
whole for any loss they may have suffered as a result
of this change, as provided for in that section of the
Administrative Law Judge's Decision entitled "The
Remedy."
(e) Post at its place of business in Washington,
Missouri, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 14,
after being duly signed by its representative, shall be
posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in any
labor organization by discriminating in regard to
the hire and tenure of employment of any
employee or applicant for employment because of
their union activities , or by discriminatorily
assigning them duties because of their union
activities.
WE WILL NOT refuse to bargain collectively in
good faith with Local 505, Graphic Arts Interna-
tional Union, AFL-CIO-CLC, as the exclusive
representative of the employees in the unit
described as follows:
All full-time and regular part-time mechani-
cal employees including offset pressmen,
platemakers, strippers and opaquers, camera-
men, compositors, pasteup artists, and
perforator operators, employed at the Em-
ployer's Washington, Missouri, facility, ex-
cluding all nonmechanical employees, circu-
lation room employees, advertising employ-
ees, editorial and business department em-
ployees, news department employees, mail-
room employees, office clerical employees,
professional employees, guards and supervi-
sors as defined in the National Labor
Relations Act.
WE WILL NOT cease providing free coffee,
change the work schedules and lunch periods of
press employees, or grant wage increases without
notifying the above Union and giving it an
opportunity to bargain collectively about such
matters.
WE WILL NOT illegally interrogate employees
about their union activities.
WE WILL NOT assign employees more onerous
or menial work because of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid, or to refrain from any or all
such activities.
WE WILL offer immediate reemployment to
Stephen Frederick and make him whole for any
loss of pay suffered as a result of our discrimina-
tion against him.
WE WILL, upon request, recognize and bargain
with Local 505, Graphic Arts International
Union, AFL-CIO-CLC, as the exclusive repre-
sentative of the employees in the above-described
unit with respect to rates of pay, wages, hours of
employment, and other conditions of employ-
ment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL, upon request, reinstate the free coffee
for employees as it existed prior to April 10, 1973.
WE WILL, upon request, reinstate the work
schedules and lunch periods of press employees as
they existed prior to May 7, 1973, and make the
press employees whole for any loss they may have
MISSOURIAN PUBLISHING COMPANY, INC. 177
suffered as a result of this change as provided in
the Board's Decision and Order.
AFL-CIO-CLC, at all times material has been a labor
organization within the meaning of Section 2(5) of the Act.
MISSOURIAN PUBLISHING
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This
proceeding , brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat . 136), herein
called the Act , was heard at St . Louis, Missouri, May 6
through 8, 1974. The complaint, dated April 2, 1974, based
on charges filed October 3, 1973, in Case 14-CA-7611 and
December 12, 1973, in Case 14-CA-7713, was issued by
the Regional Director for Region 14 (St. Louis , Missouri)
on behalf of the General Counsel of the National Labor
Relations Board , herein called the General Counsel and
the Board.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices by various
specified course of conduct, including its failure to bargain
with Local 505, Graphic Arts International Union,
AFL-CIO-CLC, herein called the Union, as the bargain-
ing agent of the majority of its employees in an appropriate
unit , by discriminatorily assigning duties to its employee
Elmer Holtgreve and by constructively discharging its
employee Stephen Frderick , all in violation of Section
8(axl),(3), and (5) of the Act . In its duly filed answer
Respondent denied the commission of any unfair labor
practices.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State of Missouri. At all
times material Respondent has maintained its principal
office and place of business in Washington , Missouri,
where it has been engaged in the publication, printing, sale,
and distribution of a daily newspaper . During the calendar
year 1973, which is a representative period, Respondent
held membership in, and subscribed to, interstate news
services, published nationally syndicated features, adver-
tised national brand products , and in the course and
conduct of its business operations , derived gross revenues
in excess of $200,000. During the same period Respondent
purchased goods and services from suppliers located
outside the State of Missouri valued in excess of $5,000,
which goods and services were delivered to it in the State
of Missouri.
At all times material Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 505, Graphic Arts International Union,
III. THE UNFAIR LABOR PRACTICES
The Missourian Publishing Company is a newspaper
printing and publishing company located in Washington,
Missouri , which publishes two weekly newspapers, The
Missourian and The Citizen, and prints approximately 20
other weekly newspapers for other publishers. The supervi-
sors of the Company are Jim Miller, Sr. (publisher), Bill
Miller (editor), Tom Miller (advertising manager), John
Miller (production manager) and Ken Strubberg (fore-
man). Another Miller, Jim, Junior, also works for Respon-
dent. John and Tom Miller were the only witnesses to
testify on behalf of Respondent.
The Union's organizing effort began in January 1973 ,
and resulted in a certification on April 6, 1973. Admittedly
the Company was opposed to the organization of its
employees . Negotiations began on May 10 and totaled 18
meetings as of the time of the hearing (a year later) without
a contract having been reached. The complaint alleges that
during this period certain 8(axl) incidents occurred; also
alleged was the constructive discharge of union leader
Stephen Frederick, the discriminatory assignment of work
to union supporter Elmer Holtgreve, and a refusal to
bargain by unilateral action regarding the employees
wages, hours, and working conditions, and by bargaining
in bad faith with no intention of entering into a contract.
A. Interference, Restraint, and Coercion
Michael Halley first worked for Respondent in August
1973. On Friday, April 27, 1974, he gave Respondent 2
weeks' notice that he was leaving. According to his
testimony, in his hiring interview Tom Miller told him
there was a union but that there was no contract yet and
that he doubted they would go on strike. In any event,
Miller asked him if he "would be willing to cross the picket
line." Halley said he would. Toward the end of the
interview Bill Miller came in and said "Hi." As he left Bill
asked Tom whether he had told Halley about the union
situation . Tom said "Yes" and that Halley would be "loyal
and ... on their side ." Bill said, "That's good , we need
loyal employees."
When he started work Halley was given a tour of the
plant by Tom Miller. During this tour Miller said
something about there being several union supporters
among the employees that he should not associate with.
Knowing that Stephen Frederick was involved with the
Union, Halley mentioned his name. Tom Miller said, "Yes,
Steve."
Halley also testified about a conversation with Tom
Miller in late afternoon in Tom 's office on September 27,
1973. He was called in on the intercom . Miller asked him
how he liked his job-whether he had any questions or
complaints. He also asked Halley if the Union had been
"pressuring" him or asking him any questions . He also
asked Halley if he knew what the Union was doing. Halley
told Miller that he had heard that the Union was planning
on a strike around Christmas time as being "the roughest
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of the year for ads and typesetters." Miller also
wanted to know what the employee complaints were.
In their discussion of the Union several names came up.
Halley told Miller that Elmer Holtgreve was very active in
the Union . Miller seemed "sort of amazed" at this
information but did not say anything. Either at this time or
on another occasion Halley asked Miller if he would hold
it against him if he joined the Union. Miller said "No" it
was Halley's privilege to join, but he added "That the
Union wasn't right and there was no way they were going
to get established in the Missourian." i
About these matters Tom Miller testified as follows on
direct: In his hiring interview with Halley he told Halley
that Respondent was negotiating with the Union and that
no contract had been signed, but added , "But we're still
working." He denied asking Halley if he would cross a
picket line in the event of a strike. Asked if there was any
talk about a picket line he answered, "No, not of a picket
line, not that I can remember."
Miller also denied telling Halley during his initial tour of
the plant not to associate with certain employees. He
admitted asking Halley in the September 27 interview
whether the Union was putting any pressure on him. He
also admitted that in this conversation regarding the
Union, Halley talked about some of the other employees,
and "what was going on and things like that." But he
denied telling Halley that the Union would not get a
contract or get established. According to him he did tell
Halley that the Union "wouldn't get what they were asking
for.,,
On cross, Miller testified that nothing was said in
Halley's hiring interview about a union contract being
signed or about the difficulty in reaching a contract. Asked
if he cared "one way or the other" if Halley joined the
Union he answered, "Not really." I credit Halley's version
of the foregoing.
Gary Tobben, another former employee, testified that in
mid-August Tom Miller came up to his desk and said,
"Gary, I don't know if you know it or not but Steve
Frederick and them are saying something about there
might be a strike . . . would you be on our side if the strike
occurred?" Tobben said he did not know and Miller said,
"You are a good worker and we'd like to have you on our
side." According to Tobben, Miller also said something
about a picket line and there always being work coupled
with another comment about appreciation for being on
Respondent's side.
In his direct testimony Miller admitted the essentials of
the foregoing but denied asking Tobben not to cross the
picket line. I credit Tobben.
David Jasper testified that in early May, on a Monday
morning, Foreman Ken Strubberg asked him if he was
paying dues to the Union. Caught by surprise Jasper did
not answer immediately and Strubberg repeated his
question. Finally Jasper told Strubberg he could not
answer and that he would have to ask Frederick if he
wanted to know. Strubberg did not testify. I credit Jasper.
The following day, according to Jasper, he was called
upstairs to the conference room where he was confronted
by John Miller and Jim Miller, Sr. There he was accused of
engaging in a slowdown the night before and told that if he
"didn't like the way things were run around there" he
could leave. John Miller said, "Oh, the hell with it, bust
your ass off going out getting job work, and this is what
you get for it." Jim said, "Yeah, the hell with it, I'm not
going out and getting anymore." At this point apparently
one of the Millers pointed toward St. Louis (location of the
union headquarters) and said, "That place down there
doesn't pay your wages, we do." Jasper said, yes, he
understood that. Miller then said that if Jasper did not
"like the way things were run" and if he thought he could
"find that bed [of ] roses" he should leave.
Elmer Holtgreve testified credibly that in late April, Jim
Miller, Sr., told Holtgreve that he was doing his union
talking on company time and if he ever caught him at it he
would let him go. He further stated that it was against the
law to talk about union business on company time.
The foregoing interrogation by Tom Miller of Halley
and Tobben and of Jasper by Strubberg I find violated
Section 8(a)(1) of the Act.
B. Discrimination
Stephen Frederick was employed by Respondent as a
cameraman from April 1963 to August 29, 1973. There is
no question that he was the Union's chief instigator and
generally accepted not only among the employees but by
Respondent as the leader of the Union among the
employees? Frederick was the only employee to partici-
pate at any time in the contract negotiations. However,
because it was felt his presence in the negotiations was
creating some animosity on the part of company represent-
atives his function as an employee bargaining representa-
tive was discontinued after a few meetings.3
At one of the negotiations when the company lawyer,
Robert Vining, stepped out of the room for a minute or
two, John Miller directed a question to Frederick about
what the employees' complaints were and why the Union
was there. Frederick declined to answer. Union Represent-
ative Creel asked if Frederick minded if he answered Miller
and told the latter "That he had to be a rotten bastard to
work for." Creel also told Miller that the Union had been
certified as bargaining agent and that was why they were
there. Miller replied that Respondent needed nobody from
St. Louis to tell them how to operate the business.
At a company-called meeting of employees to discuss the
union campaign , Bill Miller stated that the Company's
insurance program was a good one and that to his
knowledge (looking directly at Frederick who had made
complaints about the insurance program to his foreman)
only one employee complaint had been made about it.
According to Frederick, right after the election Respon-
dent embarked on a campaign of surveillance, harassment,
and reprimands of him and other union supporters. He
cited an occasion that occurred on May 7 when he and
Darrell Potthast were working late. The job they were
doing took longer than usual (due to its volume) and they
I Nowhere in Halley's affidavit was there any allusion to this last 3 All during Frederick 's tenure as an employee negotiating representa-
comment by Miller . live, according to his testimony , at the meetings "one of the Millers would
2 Tom Miller so testified usually sit there and stare at [him 1 as best they could."
MISSOURIAN PUBLISHING COMPANY, INC.
were accused of stalling by John Miller who had remained
in the plant most of the evening. The following day
Frederick and Potthast were called to the office of Jim
Miller, Sr., where they were again accused of deliberately
making mistakes and stalling and where Frederick was told
by Miller that if he was not happy he should leave.
On another occasion after the election Frederick was
again called in by Miller Senior, and reprimanded
regarding a mistake on a General Grocer job. On this
occasion Miller told Frederick that he "could be gotten rid
of" and that Respondent was "keeping a file" on him and
two other unnamed employees ' mistakes . Frederick
claimed to have been reprimanded four or five times more
after the election , most occurring right after negotiation
meetings and all somewhat of a pattern. He was told that
no one liked him, he had no friends and asked "why didn't
[heI leave." In contrast to all this in the 10 years before the
election Frederick had received less than an average of one
reprimand a year . And on those occasions Frederick was
merely informed of his mistake and told to "watch it a little
closer" or something like that.
Frederick also testified credibly and without denial
about an incident that occurred between him and Jim
Miller, Jr. Frederick had put some pictures in an envelope
to file in the darkroom . Bill Miller wanted them and told
Frederick to go get them, explaining that they did not
belong in that envelope. When Frederick, outside the
darkroom , asked Jim Junior , for the envelope the latter
threw it at Frederick hitting him in the face exclaiming,
"Stupid son-of-a-bitch can't do a simple job like this." The
impact of the envelope caused a blood blister on
Frederick's nose and the incident so upset him that he told
his foreman he was going home and that he might not be
back that afternoon. The foreman said, "O.K." The
following day John and Jim Miller , Sr., called Frederick
into the office where he was asked why he took off. He told
them he did not feel well and they wanted to know if he
had seen a doctor . He said no . Some other remarks were
made and Frederick said that he was the one that got hit.
John Miller replied that "nobody got hit." At this time, as
usual, the comment was made to Frederick that if he was
not satisfied why did he not leave.
As the immediate result of this incident Frederick called
Union Representative Creel and asked Creel to get him
another job, "any job," because he felt he could no longer
take the "pressure" he was under. On August 28 he told
Bill and Jim Miller , Jr., he was leaving and would give any
kind of notice Respondent wanted. Bill (who "seemed to
be a little unsure" as to what Frederick had said and asked
him to repeat it) said no notice was necessary . Jim Junior
said nothing and simply "covered a smile."
There was no denial of the foregoing . I find that
Frederick's position was made untenable for him by
Respondent with the purpose in mind that he leave
Respondent's employment and that Respondent's actions
in this regard was in retaliation for Frederick' s union
activity . This constitutes constructive discharge in violation
of Section 8(a)(3) of the Act. Mason Industries, Inc., 212
4 This claim of being a supervisor is at odds with Respondent's
contention that the reason he was given a variety of menial tasks for a
period of months after the election was in part because younger and newer
179
NLRB 505 (1974); W. T. Grant Company, 195 NLRB 1000
(1972).
Elmer Holtgreve had 18 years' tenure with Respondent,
the last 7 of which he was engaged primarily in pasteup
and markup work. He was an active union supporter
participating with Frederick in getting the Union started
and having convinced a number of female employees in
the pasteup department to join. When he voted in the
election March 29, the Company challenged him as being a
supervisor.4 This fact along with the small size of the plant
and the community support the inference, which I draw,
that Holtgreve's union advocacy was known to Respon-
dent before the election. In any event, it is clear that after
the election such was the case in view of the warning
Holtgreve got about talking union on the job as noted
supra.
As with Frederick, Respondent's attitude and treatment
toward Holtgreve changed after the election. Prior to the
election when Holtgreve made a mistake it was merely
mentioned to him in the work area by one of the Millers in
an informal way. In sharp contrast, about a month after
the election Holtgreve was called into Jim Senior's office
where he was presented with a formal written reprimand.
In this connection it should be noted that the practice of
giving out written reprimands did not begin until after the
election.
In late July after Holtgreve returned from his vacation he
was informed that Gary Tobben would assume his markup
duties. Nonetheless, because Tobben made it clear to
Respondent that he did not feel adequate to markup on the
Fenton paper, Holtgreve was retained on that task.
According to Tobben's testimony Holtgreve was much
better than he on markup due to Holtgreve's long
experience. Tobben also testified that Holtgreve did better
pasteup work.
Employee Kleekamp, called by the General Counsel,
testified that from her proofreading duties she concluded
that Holtgreve did a better job and made less mistakes
than she or Tobben. Kleekamp also testified that Holtgreve
had trained her to do pasteup work and that whenever she
had a problem or needed advice she would go to
Holtgreve.
On one occasion during this period after Holtgreve's
vacation, according to Kleekamp's testimony, Kleekamp
was assigned the classified page to do which Holtgreve
normally did. In his place Holtgreve was assigned to do
some painting on the first floor. It turned out that
Kleekamp did not know how to do the job and Tobben
eventually did it. Tobben testified that on other occasions
as soon as Holtgreve was sent downstairs to do painting
jobs or other menial tasks, work would be brought up in
the pasteup department resulting in an "overload" in that
department. Besides painting Holtgreve was assigned to
cut and fold and collate materials . He also was utilized
during this period to do bagging and mailing. Besides
labeling and addressing this required lifting heavy mail
sacks-a duty more suited to a younger man than
Holtgreve.
employees (who looked to him for guidance , incidentally) were more
competent than he.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent explained the foregoing as follows: On April
26 Holtgreve was reprimanded in writing about a mistake
he had made on the Ashley account costing Respondent
$400. The reprimand stated that this was the second costly
mistake by Holtgreve since March 5 and threatened him
with disciplinary action including discharge for "one more
mistake of this character."
When Holtgreve went on vacation some of his markup
work was given to Tobben. Tom Miller decided that he
liked Tobben's work better than Holtgreve's and deter-
mined to give some of it to Tobben who welcomed the
added responsibility. Nonetheless, Holtgreve kept the
Fenton paper and did some pasteup devoting full time to
such activities "when . . . needed." But due to an ensuing
slack period caused by a paper shortages Holtgreve was
assigned other duties, on jobs like painting, working "on
the cutter and . . . the folder and things like these." The
reason pasteup and markup work was given to others
during this period rather than to Holtgreve was because the
latter "couldn't do hand lettering" and was experienced in
the various other duties being assigned to him. In addition
to the foregoing, Respondent had received complaints
from the post office about improper mailing procedures
and here too Holtgreve's experience was needed to correct
the problem. In summary Respondent denied that Holt-
greve's union activities played any part in its 5-month
change in duties .6
Considering that for several years prior to the advent of
the Union no question was ever raised as to Holtgreve's
lack of lettering ability or artistic training in the perform-
ance of his work; that he was the second highest paid
(along with Frederick) of some 21 employees in the unit
and was used to train new employees; and that some 5
months after his duties had been changed he was returned
to his original routines, I am convinced and find, as alleged
in the complaint, that Respondent's treatment of him was
discriminatory within the meaning of Section 8(aX3) of the
Act.
C. Refusal to Bargain
On April 6, 1973, the Union was certified as the
collective-bargaining agent of a unit of Respondent's
employees comprised of all full-time and regular part-time
mechanical employees , including offset pressmen , plate-
makers, strippers and opaquers, cameramen, compositors,
pasteup artists, and perforator operators, employed at
employer's Washington , Missouri, facility, excluding all
nonmechanical employees , circulation room employees,
advertising employees , editorial and business department
employees, news department employees , mailroom em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined in the Act.
D. Unilateral Action
For years prior to the election Respondent had provided
6 In August , according to Respondent 's oral testimony (no business
records were offered), Respondent cut the size of its paper four to eight
pages by cutting out some features, using smaller type and asking
advertisers "to hold back ... the size of their ads . . . as much as possible."
Respondent even turned down circular jobs and job printing fell off.
its employees with free coffee. Within days after the
certification Respondent discontinued this practice without
word to the Union, installing a coffee vending machine
requiring the employees to pay for their own coffee.
A few weeks later without notice to the Union,
Respondent unilaterally announced a change in the work
schedule of the press employees. Prior to May 1973 the
pressroom employees had worked alternate long and short
weeks . There was some variance in the hours each
employee worked but basically in a long week a pressroom
employee would come to work in the morning at
approximately 7:30 on Monday and Tuesday and remain
at work into the evening until the newspapers were
completed. On an employee's short week the employee
would come in at the regular starting time and leave at 4:30
or 5 p.m. On Wednesday, Thursday and Friday, the press
employees worked a regular 8-hour day in both their long
and short week . But in early May the press employees'
schedules were changed so that they worked the same
number of hours in each week. There was no longer a long
and short week.
As a result of the change in the working schedule the
employees lost several hours per week as compared to their
previous schedule. In addition to the hours lost by David
Jasper as a result of this change, his previous arrangement
with Respondent for a 1-1 /2-hour lunch period permitting
him to attend a class now left him with a large gap in the
middle of the day.
In addition to the foregoing the employees were required
to eat their lunches at a specified time while previously
they had always had relative discretion as to the time they
ate.
According to his testimony, which I credit, these things
were brought to Respondent's attention in the first
negotiating session by Union Representative Creel, who
pointed out to Respondent that their unilateral actions
were putting the start of the bargaining "under a little bit
of strain." Regardless what discussions took place about
these matters at that time or in subsequent meetings,7 it is
clear and I find that by taking the actions it did without
notice to the Union or affording the opportunity of
discussion about them Respondent violated its collective-
bargaining obligation in violation of Section 8(a)(5) of the
Act. N.L.RB. v. Benne Katz, etc. d/b/a Williamsburg Steel
Products Co., 369 U.S. 736 (1962); Abingdon Nursing
Center, 197 NLRB 781 (1972).
In his complaint the General Counsel alleged another
illegal unilateral action by Respondent-namely, the
granting of wage increases to employees after the certifica-
tion without word to the Union. It was established that 11
employees were granted wage increases , 6 of them merit
increases . The evidence shows that Respondent's practice
was to give all new employees a probationary increase and
to give others periodic merit increases . The evidence shows
that 5 of the 11 increases were probationary and the rest
merit increases . The evidence also shows that most if not
all of the merit increases were 15 cents an hour. Since this
s By November apparently all of the above alleged discriminatory
conduct was discontinued by Respondent and Holtgreve returned to his
routine of some years previous.
r There is some dispute about this . But I find that at no time did the
Union waive any of its legal rights regarding these unilateral actions.
MISSOURIAN PUBLISHING COMPANY, INC. 181
amount exceeds any wage offer made by Respondent in
negotiations by 5 cents and the increases were granted at
times not customary for merit increases , I find them to
have been made in derogation of the Union's bargaining
rights and in violation of Section 8(aX5).
E. Surface Bargaining
As noted, negotiations began with a meeting on May 10,
1973, and carried on for an additional 17 meetings
spreading over a year's time without a contract being
agreed upon . In the first five meetings Respondent was
represented by Attorney Robert Vining. During this period
language was agreed upon on various noneconomic terms
which was reflected in a typed memo given to Union
Representative Creel by Vining. After the fifth meeting,
Vining suggested a Federal mediator explaining that he did
not think negotiations were "going to go any further .. .
because the Millers are not about to move off the position
they are on and maybe a federal mediator would have
more of an impression on them than I'm having." Shortly
after this Creel got a call from Vining informing Creel that
Vining's services had been terminated and that Michael
Tannler had been retained to represent Respondent. Creel
asked "what in the world happened?" Vining answered, "I
guess we were getting too close to a contract."
Thereafter on August 16 meetings began with Tannler
and a Federal mediator in the pictures In the August 16
meeting Creel asked Tannler where they would begin.
Tannler said he did not know . Creel said, "Well, you know,
we've got a package that is pretty well on the road." At
which point he produced the memo given him by Vining.
This took the Millers by surprise,9 and Bill Miller said,
"We didn 't agree to anything," to which Creel asked,
"Well, are you denying that we have an agreement to this
point?" Tannler then asked to see the paper. A discussion
then ensued of economic matters . Tannler offered a wage
increase of 10 cents an hour on ratification and 10 cents 6
months later for each year of a 3-year contract. Immediate-
ly the Millers protested , "We didn't agree to that, hold it."
The Company then caucused and on their return Tannler
apologized for not having the information correct and the
meeting broke up on that note.
There is no question that Respondent entered into
negotiations .with an unalterable opposition to any form of
union security. The editorial policy of Respondent was
such and Jim Miller , Sr., was active in a national "Right to
Work" organization . According to the undenied and
credited testimony of Creel, in the August 16 meeting Bill
Miller emphatically said that the Union would "never get a
union shop clause or dues checkoff ." As a result Respon-
dent adamantly rejected any form of union security or
checkoff throughout the negotiations.
Respondent also was opposed to a strict seniority clause.
In the October 11 meeting the Union again proposed a
strict seniority clause in place of maintenance of member-
ship or a union shop. Respondent would not agree to strict
s It was at Creel's request that the mediator was there.
a They maintained that this was the first they had seen of Vming's
memo.
to In January 1973 the average wage increase granted was 23 cents, in
1972 two increases were granted of 15 cents each . No Respondent offer was
seniority. However, according to Creel's undenied and
credited testimony, agreement was reached upon a seniori-
ty clause as follows:
Seniority is defined as length of continuous services
with the employer. Where competency, skill, and
ability of the employees are relatively equal, seniority
shall be the controlling consideration in reduction of
force or reemployment.
Nonetheless in a subsequent meeting Respondent repudiat-
ed this understanding saying that they could not agree to it.
From October on the negotiations centered on economic
matters with no progress being made. The Company
offered essentially nothing more than it was currently
providing for. Indeed, with respect to wages the Compa-
ny's offers were less than it had given the employees in
each of the 2 preceding years.
Respondent's refusal to consider any form of union
security, its repudiation of matters previously agreed upon,
its insistence on an economic progression in wages less
than it had previously been following,10 all viewed in, the
background of its unilateral actions, its discrimination
against • Holtgreve and Frederick and its other acts of
interference , restraint, and coercion against its employees
convince me that (regardless of any good faith on the part
of its attorneys) the Millers had no intention of entering
into a contract with the Union and that from May 10,
1973, on they were not bargaining in good faith as required
by the Act . I so find.
IV. THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action to
restore as nearly as possible the situation that would have
existed absent the unfair labor practices.
Having found that Respondent discriminatorily assigned
work to Elmer Holtgreve and constructively discharged
Stephen Frederick in violation of Section 8(a)(3) of the
Act, I shall recommend that it offer reemployment
immediately to Frederick and make him whole for any loss
he may have suffered as a result of the discrimination
against him11 by paying him an amount equal to that
which he would have earned in Respondent's employ less
his net earnings elsewhere during the interim period to be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and N.LRB. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with
interest as provided for in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Having found that since April 11, 1973, Respondent has
refused and is refusing to bargain collectively in good faith
with the Union as the representative of the employees in an
appropriate unit, I shall also recommend that upon request
as high.
1 1 Since Holtgreve was not reduced in pay as a result of the
discrimination against him and was restored to his normal duties as of the
hearing, no make-whole order is recommended as to him.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent so bargain and if an understanding is reached
embody such understanding in a signed agreement.
In view of the character of the unfair labor practices
committed, I shall also recommend that Respondent be
ordered to cease and desist from infringing "in any
manner" upon the rights guaranteed its employees by
Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation of
Respondent described in section I, above , have a close,
intimate, and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent, Missourian Publishing Company, Inc.,
at all times material has been and is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 505, Graphic Arts International Union,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily assigning duties to Elmer Holt-
greve and constructively discharging Stephen Frederick
because of their union activities Respondent has discrimi-
nated and is discriminating against them in regard to their
hire or tenure of employment, thereby discouraging
membership in a labor organization within the meaning of
Section 8(a)(3) of the Act.
4. All full-time and regular part-time mechanical
employees of Respondent including offset pressmen,
platemakers , strippers and opaquers, cameramen, compos-
itors, pasteup artists , and perforator operators , employed
at Respondent's Washington , Missouri, facility, excluding
all nonmechanical employees , circulation room employees,
advertising employees , editorial and business department
employees, news department employees, mailroom em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined in the Act constitute an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. Local 505, Graphic Arts International Union,
AFL-CIO-CLC, at all times material herein has represent-
ed a majority of employees in the above appropriate unit
within the meaning of Section 9(a) of the Act.
6. Since April 10, 1973, Respondent has failed and
refused to bargain collectively in good faith with the Union
in violation of Section 8(aX5) of the Act.
7. By the foregoing conduct and by illegally interrogat-
ing employees regarding their union activity and support,
Respondent has interfered with, restrained, and coerced
and is interfering with, restraining , and coercing employees
in the exercise of rights guaranteed in Section 7 of the Act
in violation of Section 8(axl) of the Act.
[Recommended Order omitted from publication.]