Newark Morning Ledger Co.

National Labor Relations Board - Board Decisions

Aug 9, 1993

311 N.L.R.B. 1254 (N.L.R.B. 1993)

1254
311 NLRB No. 163
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have not considered the evidence submitted with the Re-
spondent’s exceptions to the judge’s decision and supporting brief.
That evidence is outside the record.
Newark Morning Ledger Company and Newark
Typographical Union No. 103. Case 22–CA–
18259
August 9, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 14, 1992, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the Charging Party filed a brief in opposition to the ex-
ceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
1. In adopting the judge’s finding that the charge is
not time-barred, we conclude that the Union was not
on unequivocal notice that the Respondent had decided
to implement the mandatory physical examination pro-
gram for composing room personnel until sometime
between October 1991 and January 1992. In this re-
gard, we particularly note that the Respondent’s May
9, 1991 letter referred to a ‘‘present’’ intention to im-
plement the program in the summer, that it indicated
that the Union should contact the Respondent if it had
problems with the program, and that, after the Union
wrote the Respondent less than 3 weeks later that it
would resist such a program, the Respondent did not
reply to the Union’s letter and did not thereafter imple-
ment the program in the summer. In these cir-
cumstances, we conclude that the Respondent has
failed to show based on the May 9 letter that a final
decision to implement the program had been made.
See Postal Service Marina Center, 271 NLRB 397
(1984).
2. Respondent relies on the Seventh Circuit’s denial
of enforcement of the Board’s order in Chicago Trib-
une Co., 304 NLRB 495 (1991), enf. denied 974 F.2d
933 (1992). However, the court’s opinion was based
on grounds not present in this case. More particularly,
in that case, the union’s general laws applied only to
‘‘subjects concerning which no provision is made’’ in
the collective-bargaining agreement. That is, the gen-
eral laws filled the gaps left by the collective-bar-
gaining agreement. The court held that the company
rule under attack in that case was addressed by a
clause in the collective-bargaining agreement, viz, the
management-rights clause. Thus, the general laws did
not apply to that rule. By contrast, in the instant case,
the general laws applied unless they were in conflict
with specific provisions of the collective-bargaining
agreement. The collective-bargaining agreement con-
tains no specific provisions that conflict with the gen-
eral laws at issue herein. Thus, the general laws do
apply.
Respondent also argues that the general laws provi-
sion at issue herein applies only to physical examina-
tions for applicants for employment. We disagree. The
Seventh Circuit, in Chicago Tribune, supra, did not re-
solve the issue. The court simply stated, in dicta, that
the parties failed to raise the issue.
The Respondent also argues that its interpretation of
the general laws provision is supported by a 1976 arbi-
tration award interpreting the same provision in the
Mailers’ contract. In adopting the judge’s rejection of
the Respondent’s argument, we note that the Board
itself inteprets the phrase ‘‘conditions of employ-
ment,’’ in connection with Section 8(a)(5) and (d) and
Section 9(a), to encompass terms of employment of an
employer’s current employees. See Star Tribune, 295
NLRB 543, 546 (1989). Therefore, the contractual pro-
vision, both by its plain language, as found by the
judge, and consistent with our interpretation of our
statutory language, bars physical examinations of cur-
rent journeymen employees as a ‘‘condition of employ-
ment’’ and is not limited to preemployment physicals.
Moreover, the contrary 1976 arbitration award in-
volving another union is insufficient to ‘‘establish a
pattern of decisions clear enough’’ to mandate a dif-
ferent interpretation of the general laws provision. See
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709
(1983). We note that the Respondent made no showing
that the parties intended to incorporate the extra-unit
award into their own subsequent agreement or that the
award was intended to be binding in another unit be-
yond the terms of the agreement under which it arose.
Finally, we think it anomalous to conclude that the
Union, in its general laws, would seek to protect jour-
neymen applicants but not journeymen who are in the
unit and represented by the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Newark Morning Ledger
Company, Newark, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
1255NEWARK MORNING LEDGER CO.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
2 In about 1987, the International merged with the Communica-
tions Workers of America (CWA) and became the Printing, Pub-
lishing and Media Workers Sector (PPMWS) of the CWA. The gen-
eral laws of the PPMWS contains the same prohibition against phys-
ical examinations as is contained in the general laws of the Inter-
national.
Stephen Holroyd, Esq., for the General Counsel.
Bruce Berry, Esq. (Sabin, Bermant & Gould), for the Re-
spondent.
Richard Rosenblatt, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Newark, New Jersey, on August 13,
1992.1 The complaint, which issued on March 13, was based
on an unfair labor practice charge and first and second
amended charges filed on January 31, February 25, and
March 10 by Newark Typographical Union No. 103 (the
Union). The complaint alleges that Newark Morning Ledger
Co. (Respondent) violated Section 8(a)(1) and (5) of the Act,
on about January 21, by failing to continue in effect all terms
and conditions of employment contained in its agreement
with the Union without first obtaining the Union’s consent.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation with its principal
office in Newark, New Jersey (the facility), is engaged in the
publication, circulation and distribution of the Star-Ledger, a
daily newspaper in the Newark, New Jersey area. During the
12-month period preceding March, Respondent derived gross
revenues in excess of $200,000, and held membership in or
subscribed to various interstate news services, including the
Associated Press. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
The Union has represented Respondent’s typographical
employees for many years and they are parties to a collec-
tive-bargaining agreement entered into in 1970, extended in
1982 and still in effect. Section 6-02 of the agreement states:
It is understood and agreed that the General Laws of
the International Typographical Union in effect at the
time of signing, not in conflict with this contract or
with Federal or State law shall govern relations be-
tween the parties on conditions not specifically enumer-
ated herein.
The general laws of the International Typographical Union
(the International),2 at article II, section 14, provides: ‘‘No
journeyman shall be required to submit to a physical exam-
ination as a condition of employment.’’ The parties are in
agreement that this provision has remained unchanged in the
general laws since at least 1970. Section 28-08 of the agree-
ment states:
It is agreed that Local Union laws not affecting
wages, hours or working conditions and the general
laws of the International Typographical Union, shall not
be subject to arbitration.
By letter dated May 9, 1991, Mark Newhouse, vice presi-
dent and general manager of Respondent, wrote to Fred
Kraut, president of the Union:
Recently several former composing room employees
have filed Worker’s Compensation claims with respect
to pulmonary conditions which they allegedly acquired
while working at the Star-Ledger.
There has been no finding to date that any such pul-
monary conditions are work related. However, in order
to provide our current employees with whatever med-
ical treatment is appropriate in the event any of them
are suffering from any pulmonary or other potential
health conditions, the Star-Ledger intends to institute
annual physical examinations.
Of course, the results of these physical examinations
will not result in the termination of any employee in the
Composing Room. In addition, we are willing to make
the results of these exams available to each employee’s
personal physician.
I would appreciate your calling if you have any
problems concerning this program. It is our present in-
tention to implement this program this summer.
By letter dated May 24, 1991, Kraut wrote to Newhouse:
I am in receipt of your letter of May 5, 1991, Re:
Annual Physical Examinations and I must apologize for
the lateness of my response, do to the up coming move
to our office [sic].
The Union will resist this action, as we never nego-
tiated annual physical examinations; to my knowledge
no one has ever asked for annual physical examina-
tions, or for treatment of any kind.
Respondent never responded to this letter and Kraut testified
that he therefore thought that the issue was moot.
The next that Kraut heard of the issue was in about No-
vember 1991 when he learned that employees in the compos-
ing room had taken physicals; he did not object at that time
because he understood that these physicals were taken volun-
tarily. In addition, in about December 1991 or January, he
was informed by his chairman at the facility that Respondent
had posted a notice on the bulletin board in the composing
room saying that physical examinations were mandatory for
all composing room employees. The notice is dated January
21, is addressed to the composing room employees, and
states that the ‘‘Company has instituted a policy requiring
annual physical exams for all composing room personnel.’’
Kraut testified that between his May 24, 1991 letter, and this
posting in the composing room, Respondent had not spoken
to him about this subject. After being informed of the post-
ing in the composing room, Kraut wrote to Newhouse, by
letter dated January 22:
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It was brought to my attention that the company
posted a notice on the board requiring employees to
submit to physical exams.
Again, I must reiterate the union’s position on this
matter as stated to you in my letter of May 24, 1991.
‘‘The Union will resist that company demand that com-
posing room employees be required to take physical ex-
aminations.’’
Respondent did not respond to this letter, and by letter dated
January 27, Kraut requested that a grievance meeting be held
at the earliest convenient time to discuss the physical exam-
ination issue as well as two other specific issues.
The grievance meeting took place on January 31. Kraut
testified that at this meeting he told Newhouse and Bruce
Berry, attorney for Respondent, that they were bound by the
prohibition against physicals contained in the International’s
general laws, which were incorporated into the contract.
Newhouse said that the laws were archaic and that they had
instituted the physical examinations because they were get-
ting a large number of Workmen’s Comp claims, mainly in-
volving pulmonary or hearing problems and if there was a
health problem they wanted to know about it. Kraut asked
for a guarantee that nobody would be discharged for refusing
to take a physical; this request was refused. Either Newhouse
or Berry then said that the Union had done nothing in re-
sponse to the notices about the physicals and Kraut answered
that he had sent Respondent two letters objecting; what more
could he do? He also reminded them that the general laws
are not arbitrable.
Newhouse testified that during 1990 Respondent received
a large number of Workmen’s Compensation claims from
former employees complaining of ailments allegedly due to
noise, dust or fumes at the facility during the period of their
employ with Respondent. It was these claims that prompted
his May 9, 1991 letter to Kraut. He did not act on the
physicals immediately after receiving Kraut’s May 24, 1991
letter because: ‘‘I was waiting to see what form of resistance
the union would take. The letter stated that they were going
to resist.’’ In about October, he instructed the composing
room foreman to begin arranging for physicals for the com-
posing room employees and some of these employees did
take physicals at that time, although he does not know
whether the employees took these physicals voluntarily. He
also posted a number of notices in the composing room
about physicals between that time and January 21; he testi-
fied that the January 21 notice was posted only because some
of the composing room employees were concerned about
whether the results of the physical would be confidential, and
the notice states that results of the physicals would be kept
confidential.
Newhouse also testified that prior to the mid-1980s, Re-
spondent had two locals of the International at the facility:
the local involved herein which represents the composing
room employees, and the Mailers Union local. They had sep-
arate contacts. At the same time that the composing room
employees affiliated with the CWA, the Mailers local affili-
ated with the Teamsters Union.
It is Respondent’s position that the prohibition contained
in the International’s general laws only applies to preemploy-
ment physicals. In this regard, Respondent placed into evi-
dence an arbitrator’s decision in 1976 relating to physicals
instituted by Respondent with its employees who were mem-
bers of the Mailers’ Union, at the time, still a part of the
International. Its contract with Respondent contained the
same provision as the Union’s, concerning the International’s
general laws, and specifically the prohibition against
physicals. Citing the serious health purposes that were in-
volved, the arbitrator refused to disallow the physicals.
Newhouse also identified a 1979 letter written by an indi-
vidual then employed by the International in its Bureau of
Contracts. This letter contains suggested language that is in-
tended to make the requirement of physical examinations
more palatable to the International, although it is not clear
what language eventually became part of the contract.
The sole allegation herein is that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally instituting
physical examinations for its composing room employees
without approval of the Union, in contravention of its con-
tract with the Union. The facts are clear and undenied: in
May 1991 Respondent proposed the idea of physical exami-
nations to the Union and 2 weeks later Kraut answered that
the Union would ‘‘resist this action,’’ clearly a rejection of
Respondent’s request. In about October 1991, but certainly
no later than January, Respondent instituted a program mak-
ing mandatory physical examinations (admittedly a manda-
tory subject of bargaining) for the composing room employ-
ees. The Union never changed its position on the subject
since Kraut’s May 1991 letter; in fact, in January, when he
learned of the physicals, he again wrote to Respondent ob-
jecting to the physicals. The contract between the parties
states that in certain situations, the International’s general
laws shall govern relations between the parties. Article II,
section 14 of the general laws states: ‘‘No journeyman shall
be required to submit to a physical examination as a condi-
tion of employment.’’ Respondent’s position is that this pro-
vision was meant to prohibit only preemployment physicals;
I reject this argument. If this is what the provision meant it
could easily have said so, but didn’t. In addition, in Chicago
Tribune Co., 304 NLRB 495 (1991), the Board interpreted
this same article II, section 14 of the general laws to apply
to drug and alcohol testing of existing employees. I therefore
reject Respondent’s interpretation of article II, section 14 of
the International laws and find, as alleged by General Coun-
sel and Charging Party, that, as it states, it prohibits all phys-
ical examinations.
Respondent has a number of additional defenses. One is
that the charge is barred by Section 10(b) of the Act. I reject
this defense. The physicals for the composing room employ-
ees were instituted between October 1991 and January. Al-
though it is not clear whether the earlier physicals were vol-
untary or mandatory, what is clear is that the unfair labor
practice charge was filed on January 31, clearly within 6
months of the institution of the physical exams. Respondent
alleges, however, that the 6-month period should begin to run
in May 1991, when Newhouse wrote to Kraut about his in-
tention to institute the physicals, and therefore the Union
would have had to file its charge by November 1991. How-
ever, Newhouse’s letter of May 9, 1991, stated that Respond-
ent ‘‘intends’’ to institute the physicals. At that point, Re-
spondent had done nothing in violation of the law or its con-
tract with the Union. It was not until October 1991 (or some-
time between that date and January) when Respondent actu-
1257NEWARK MORNING LEDGER CO.
3 Counsel for Respondent, in his brief, repeats the argument that
it is not enough for a union to object to an employer’s announce-
ment of a change, but that the Union must affirmatively request bar-
gaining as well, citing numerous cases to support this proposition.
Although this is true, this rule applies to unilateral changes of non-
contractual terms and conditions of employment that are mandatory
subjects of bargaining. The instant matter is distinguishable as it in-
volves the unilateral change of a contractual provision. The same af-
firmative request for bargaining is not required in this situation.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 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.’’
ally began requiring the physical exams that the statute began
to run. This defense is therefore dismissed.
Respondent next defends that after receiving Newhouse’s
May 9, 1991 letter the Union, by not requesting bargaining
on the subject of physical exams, waived its right to bargain
about the subject and the Respondent had the right to unilat-
erally implement physical exams. This defense must also be
rejected.3 Kraut’s letter of May 24, 1991, answering
Newhouse’s letter, said that the Union would ‘‘resist’’ Re-
spondent’s attempt to institute mandatory physical exams.
The Union was under no affirmative obligation to also pro-
pose negotiations on the subject. If Respondent were acting
in good faith on the subject, it would have proposed negotia-
tions and negotiated to an agreement on the subject or to im-
passe. Instead, Respondent never responded to Kraut’s May
24, 1991, except to unilaterally institute the physical exams
months later.
Respondent also defends that the general laws of the Inter-
national are no longer binding on Respondent because of the
change in the Union’s status, from a local in the International
to a local of the PPMWS of the CWA. The evidence estab-
lishes that in about 1987 the Union merged with the CWA
and the International’s general laws remained unchanged and
are still in effect. The only difference is that they are referred
to as the bylaws, general laws and conference laws of the
PPMWS of the CWA, instead of the International. I fail to
see how this change from a local of the International to a
local of the PPMWS of the CWA nullifies this general law
or any of the general laws. I therefore reject this defense as
well.
At the hearing herein a 1976 arbitrator’s ruling allowing
Respondent to institute mandatory physical exams was re-
ceived in evidence. An arbitrator’s ruling (and one involving
a different union) is clearly not determinative herein.
Finally, Respondent alleges that this matter should be de-
ferred to the parties’ contractual grievance and arbitration
procedure. Although this would normally be a valid defense
under Collyer Insulated Wire, 192 NLRB 837 (1971), the
contract between the parties states that the general laws shall
not be subject to arbitration. I therefore find that this matter
is inappropriate for deferral. Inland Container Corp., 298
NLRB 715 (1990).
CONCLUSIONS OF LAW
1. Respondent Newark Morning Ledger Co. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Newark Typographical Union, No. 103 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By implementing mandatory physical examinations in
about October 1991 to January 1992, without the consent of
the Union, Respondent unilaterally modified its collective-
bargaining agreement with the Union. This conduct con-
stitutes a refusal to bargain within the meaning of Section
8(d) of the Act, and is therefore an unfair labor practice af-
fecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) and
(5) of the Act I shall recommend that it be required to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act. In this regard,
I shall recommend that Respondent be ordered to rescind its
implementation of mandatory physical examinations for its
composing room employees. If any composing room em-
ployee has been disciplined for refusing to take a physical
examination pursuant to this rule, I shall recommend that this
discipline be rescinded and anything contained in employee
files regarding such discipline be removed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Newark Morning Ledger Co., Newark,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing or carrying out mandatory physical ex-
aminations for its composing room employees, which is con-
trary to its existing collective-bargaining agreement with
Newark Typographical Union No. 103, without the consent
of the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the requirement that all composing room em-
ployees must have physical examinations and rescind any
punishment to employees who refused such examinations.
(b) Post on a bulletin board in the composing room at its
facility in Newark, New Jersey, and at other locations at its
facility, copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Regional Di-
rector for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1258 DECISIONS 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT require our composing room employees to
take physical examinations, which is contrary to our collec-
tive-bargaining agreement with Newark Typographical Union
No. 103 (the Union), without the consent of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the exercise of the rights guaranteed
you in Section 7 of the Act.
WE WILL rescind our rule requiring all composing room
employees to take physical examinations and WE WILL re-
scind any discipline, or proof of discipline, if any, of any
composing room employee who was disciplined for refusing
to take a physical examination.
NEWARK MORNING LEDGER CO.