Newspaper Printing Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1977

232 N.L.R.B. 291 (N.L.R.B. 1977)

NEWSPAPER PRINTING CORP.
Newspaper Printing Corporation and Tulsa Typo-
graphical Union Local No. 403. Cases 16-CA-
6463 and 16-CA-6669
September 23, 1977
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 25, 1977, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Union filed exceptions and supporting briefs, and
Respondent filed answering briefs to both the
General Counsel and the Union.
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 attached Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consis-
tent herewith.
The complaint alleged that Respondent violated
Section 8(a)(5) and (1) by refusing to agree upon
contract language defining the appropriate unit and
by unilaterally instituting changes in the absence of a
bargaining impasse or not encompassed in its
preimpasse bargaining proposals.' The Administra-
tive Law Judge found that Respondent's proposed
unit-jurisdiction clause sufficiently identified the
unit, that Respondent lawfully could insist to
impasse on that clause, and that certain unilateral
changes were within the scope of the preimpasse
proposals. He further found two unilateral changes
to be outside the scope of preimpasse bargaining and
therefore to have violated the Act.
The General Counsel and Union except, inter alia,
to the. Administrative Law Judge's finding that
insistence on the unit-jurisdiction clause did not
violate Section 8(a)(5), to his failure to find that all of
the unilateral changes were unlawful, and to his
failure to recommend a bargaining order. We find
merit in these exceptions.
The principal cause of the January 21 impasse was
Respondent's jurisdiction-unit proposal, which in-
cluded the following language:
i The complaint further alleged that Respondent violated Sec. 8(aHX )by
threatening an employee with discharge if he failed to comply with a
unilateral change in work rules. The Administrative Law Judge dismissed
that allegation. In the absence of exceptions, we adopt the dismissal of that
allegation pro forma
2 Columbia Tribune Publishin Co., 201 NLRB 538 (1973)
232 NLRB No. 42
The jurisdiction of the Union and the appropriate
unit for collective bargaining is defined as
including only those employees engaged in all
work which the Employer mayfrom time to time
designate to be performed in the Composing
Room. It is the express intention of the Employer
to accomplish his complete production needs in
the manner which he determines to be the most
effective and economical method to fulfill the
work requirements. [Emphasis supplied.]
The Administrative Law Judge analyzed the clause
by separating it into three components-definition of
the appropriate unit, jurisdiction, and management
rights. By this method, he eliminated the manage-
ment-rights language allowing Respondent to deter-
mine who is in the unit to produce a unit definition
as follows: "The ... appropriate unit for collective
bargaining is defined as including only those employ-
ees engaged in all work . . . in the Composing
Room." Although he recognized that even this
doctored version of the clause represented a modifi-
cation of the existing unit definition, he found it to be
a "clarifying change" and therefore within Respon-
dent's rights.
We disagree with both the method of analysis and
the legal conclusions. Respondent's proposed juris-
diction-unit clause cannot properly be analyzed by
removing the management-rights language. That
language is an integral part of the unit definition in
that it allows Respondent unilaterally to determine
who is in the unit at any given time. The Board does
not certify as appropriate a unit where one party has
unilateral control over unit scope.
Contrary to the Administrative Law Judge's
analysis, the holding in Columbia Tribune2 is fully
applicable here. In Columbia Tribune, as here, the
jurisdiction-unit clause was the major obstacle to
agreement in negotiations. The respondent there was
found to have precluded good-faith bargaining by
refusing to include the traditional jurisdiction-unit
clause of prior contracts; both its asserted need for
flexibility in changing from hot to cold type and the
fact that jurisdiction and unit definition were
combined in one clause3 were rejected as defenses.
The Columbia Tribune case cannot be distin-
guished, as did the Administrative Law Judge, on the
basis that the Respondent there refused to accept any
unit clause. The jurisdiction-unit clause proposed by
Respondent here, when properly analyzed as a
whole, is tantamount to a refusal to include a unit
' As in Columbia Tribune, we find the traditional composing room unit as
set out in fn. I of the Administrative Law Judge's Decision to be appropriate
for the purposes of collective bargaining and further find that neither the
appropriateness of the unit nor the Union's representative status is affected
by the change from hot to cold type.
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definition because Respondent retains unfettered
discretion to redefine the unit at any time. By
insisting on such a clause, Respondent has, like the
respondent in Columbia Tribune, failed to fulfill its
statutory obligation to bargain in good faith.
Moreover, even if the proposed unit-jurisdiction
clause did not contain this fatal flaw, as the
definition of an existing appropriate unit is not a
mandatory subject of bargaining, Respondent can-
not lawfully insist to impasse on a modification of
the existing clause.4 Consequently, we find Respon-
dent's insistence on its proposed jurisdiction-unit
clause to be a refusal to bargain in good faith in
violation of Section 8(a)(5) of the Act.
The Administrative Law Judge found that the
parties reached impasse on other items in addition to
the jurisdiction-unit clause. Although his finding
concerning impasse on these other items is at best
tenuous, we find it unnecessary to resolve that issue.
We do note, however, that discussion of these other
issues continued in bargaining sessions after January
21. The jurisdiction-unit clause was always the focus
of discussion and was acknowledged by the parties to
be the main obstacle to agreement. Respondent's
insistence on its jurisdiction-unit proposal, which we
have found to be a refusal to bargain in good faith,
precluded a genuine impasse on the other issues. As
stated in Douds v. International Longshoremen's
Association [N. Y. Shipping Assn.], 241 F.2d 278, 282
(C.A. 2, 1957), "Parties cannot bargain meaningfully
about wages or hours or conditions of employment
unless they know the unit for bargaining."
Therefore, each of the unilateral changes instituted
on that date is a further violation of Section 8(a)(5) of
the Act. Accordingly, we shall order Respondent to
rescind the unilateral changes, make the employees
whole for any losses they have suffered because of
Respondent's unlawful acts, plus interest as pre-
scribed in Isis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation,5 and
bargain upon request with the Union.
ORDER
Pursuant to Section 10(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, News-
paper Printing Corporation, Tulsa, Oklahoma, its
officers, agents, successors, and assigns, shall:
i. Cease and desist from:
4 McQuay -Norrix Manufacturing Compan)y v. N.L.R.B., 116 F.2d 748
(C.A. 7. 1940).
5 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25. 1977. in which the "adjusted pnme interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
(a) Refusing to bargain collectively in good faith
with Tulsa Typographical Union Local No. 403.
(b) Unilaterally changing terms and conditions of
employment, including preexisting practices regard-
ing chapel meetings on company premises, priority
hiring, substitute hiring, jury duty, the I.T.U. general
laws, reproduction, jurisdiction, management rights,
the Joint Standing Committee, the Joint Apprentice-
ship Committee, and the I.T.U. negotiated pension
plan.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Restore and abide by the preexisting practices
regarding chapel meetings on company premises,
priority hiring, substitute hiring, jury duty, the I.T.U.
general laws, reproduction, jurisdiction, and manage-
ment rights; reestablish and permit the functioning
of the Joint Apprenticeship Committee and the Joint
Standing Committee; and reinstitute the I.T.U.
negotiated pension plan, as such matters were
applied, operated, and interpreted under the collec-
tive-bargaining agreement, and as modified by
collective bargaining subsequent to February 2, 1976,
and make whole all unit employees for any losses
they suffered due to the unilateral changes.
(b) Upon request bargain collectively in good faith
with Tulsa Typographical Union Local No. 403, as
the exclusive representative of its employees in the
appropriate bargaining unit as defined in the most
recent collective-bargaining agreement, with respect
to wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(c) Post at its Tulsa, Oklahoma, facility copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by an
authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places within the
composing room, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
6 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."
292
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the
opportunity to present their evidence, the National
Labor Relations Board has found that we committed
certain unfair labor practices and has ordered us to
post this notice. We intend to abide by the following:
WE WILL NOT refuse to bargain in good faith
with Tulsa Typographical Union Local No. 403.
WE WILL NOT unilaterally change terms and
conditions of employment, including preexisting
practices regarding chapel meetings on company
premises, priority hiring, substitute hiring, jury
duty, the I.T.U. general laws, reproduction,
jurisdiction, management rights, the Joint Stand-
ing Committee, the Joint Apprenticeship Com-
mittee, and the I.T.U. negotiated pension plan.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL restore and abide by the preexisting
practices regarding chapel meetings on company
premises, priority hiring, substitute hiring, jury
duty, the I.T.U. general laws, reproduction,
jurisdiction, and management rights; reestablish
and permit the functioning of the Joint Appren-
ticeship Committee and the Joint Standing
Committee; and reinstate the I.T.U. negotiated
pension plan, as such matters were applied,
operated, and interpreted under the collective-
bargaining agreement, and as modified by collec-
tive bargaining subsequent to February 2, 1976,
and make whole all unit employees for any losses
they suffered due to the unilateral changes, with
interest.
WE WILL, upon request, bargain collectively in
good faith with Tulsa Typographical Union Local
No. 403, as the exclusive representative of the
employees in the appropriate unit as defined in
the most recent collective-bargaining agreement,
with respect to wages, hours, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
NEWSPAPER PRINTING
CORPORATION
NEWSPAPER PRINTING CORP.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice a hearing with respect to this matter was
held before me in Tulsa, Oklahoma, on September 28 and
29, October 12, 13, and 14, and November 15, 16, and 17,
1976. The original charge in Case 16-CA-6463 was filed on
February 18, 1976, by Tulsa Typographical Union Local
No. 403 (herein called the Union), and a first amended
charge was filed by the Union on March 31, 1976.
Thereafter, on April 7, 1976, a complaint was issued
alleging violations by Newspaper Printing Corporation
(herein called Respondent) of Section 8(a)(5) and (I) of the
National Labor Relations Act, as amended (herein called
the Act). The charge in Case 16-CA6669 was filed on
June 28, 1976, by the Union, and alleges an additional
8(a)(5) violation. Thereafter, on August 12, 1976, an order
consolidating cases, consolidated complaint and notice of
hearing was issued by the Acting Regional Director for
Region 16 of the National Labor Relations Board (herein
called the Board), the cases being consolidated in order to
effectuate the purposes of the Act, and to avoid unneces-
sary costs or delay. Respondent's answers, duly filed, deny
the commission of any unfair labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to
introduce relevant evidence. Since the close of the hearing
briefs have been received from the General Counsel,
counsel for Respondent, and counsel for the Charging
Party.
Upon the entire record, and based upon my observation
of the witnesses and consideration of the briefs submitted, I
make the following:
FINDINGS OF FACT
1. JURIsDICTION
Respondent is an Oklahoma corporation engaged in the
printing, sale, and distribution of daily newspapers, with its
principal place of business located in Tulsa, Oklahoma. In
the course and conduct of its business operations Respon-
dent annually receives gross revenues in excess of $500,000,
and annually ships or distributes newspapers valued in
excess of $50,000 directly to points outside the State of
Oklahoma. It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are:
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Whether Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing to agree upon contractual
language describing the unit appropriate for purposes of
collective-bargaining, thus precluding the Union from
engaging in meaningful collective-bargaining negotiations.
2. Whether Respondent, in violation of Section 8(a)(5)
and (1) of the Act, unilaterally instituted changes relating
to employees' wages, hours, and working conditions prior
to having reached a bargaining impasse with the Union.
3. Whether Respondent, in violation of Section 8(a)(5)
and (I) of the Act, unilaterally instituted changes relating
to employees' wages, hours, and working conditions not
reasonably encompassed by its preimpasse bargaining
proposals.
B. The Facts
1. Background
The Respondent maintains its office, printing facilities,
and principal place of business in Tulsa, Oklahoma. It is
agent for two competing daily newspaper publishers, the
Tulsa Tribune Company and the World Publishing
Company, publishers of the Tulsa Tribune, and Tulsa
World, respectively; and is responsible for the printing,
solicitation of advertising, production, and distribution of
both newspapers. Respondent has maintained a collective-
bargaining relationship with the Union, representative of
Respondent's composing room employees, since 1905.' In
addition, Respondent maintains a collective-bargaining
relationship with six other unions.
The most recent contract between the parties extended
from February 1, 1973, to January 31, 1976. On September
16, 1975, Robert L. Melton, president of the Union, sent
I The combined unit-jurisdiction provisions contained in the most
recently expired collective-bargaining agreement are, in pertinent part, as
follows:
JURISDI(-I ION
Sec. 2. All work which this agreement recognizes to be within the
jurisdiction of the Union shall be performed only by journeymen and
apprentices. Apprentices may be employed only in accordance with the
ratio of apprentices to journeymen provided elsewhere in this
agreement.
Sec. 3. Jurisdiction of the Union and the appropriate unit for
collective bargaining is defined as including all composing room work
and includes classifications such as hand compositors, typesetting
machine operators, makeup men, bank men, proofpress operators,
proofreaders, machinists for typesetting machines, operators and
machinists on all devices which cast or compose type of slugs, or film,
operators of tape perforating machines and recutter units for use in
composing or producing type, operators of all phototypesetting
machines (such as Fotosetter, Photon, Linofilm. Monophoto, Coxhead
Liner. Filmotype, Typro and Hadego) and employees engaged in
proofing, waxing and paste makeup with reproduction proofs, process-
ing the product of phototypesetting machines, including development
and waxing: paste makeup of all type. hand lettered. illustrative, border
and decorative material constituting a part of the copy; ruling,
photoproofing, correction, alteration and imposition of the paste
makeup serving as the completed copy for the camera used in the plate
making process. Paste makeup for the camera as used in this paragraph
includes all photostats and prints used in offset or letterpress work and
includes all photostats and positive proofs of illustrations (such as
Velox) where positive proofs can be supplied without sacrifice of
quality or duplication of efforts. The employer shall make no other
the following letter to Kenneth Fleming, vice president and
general manager of Respondent:
You are hereby notified that as of January 31, 1976, our
current collective bargaining agreement will expire.
Negotiations should begin immediately so that a new
agreement may be consummated by or before this
January 31, 1976, expiration date.
We hereby offer to meet with you for the purpose of
negotiating an agreement with respect to wages, hours
and other terms and conditions of employment.
On October 17, 1975, Fleming replied as follows:
You are hereby notified that as of January 31, 1976,
any agreement - written, oral, or implied - or any
conditions of employment or other understanding,
including any claimed custom or past practice, now in
effect between Newspaper Printing Corporation and
Tulsa Typographical Union No. 403 will terminate.2
We hereby offer to meet with you for the purpose of
negotiating an Agreement with respect to wages, hours
and other terms and conditions of employment.
2. The negotiations
The first negotiating meeting between the parties were
held on November 11, 1975. The participants on behalf of
the Union were Charles Jobe, chairman of the Union's
negotiating or scale committee; Robert Melton, president
of the Union; and scale committee members Phil Jones
and John Blair. The participants for Respondent were
Kenneth Fleming, vice president and general manager of
Respondent; Robert Lorton, president of Respondent; and
contract covering work as described above, which shall be performed
only by journeymen and apprentices, especially no contract using the
word "Stripping" to cover any of the work above mentioned.
2 This language used by Fleming is substantially similar to the language
utilized by the Union in both its 1966 and 1972 contract termina-
tion/reopening notices to Respondent. In 1974, the parties being subject to
the provisions of the recently expired contract, an arbitration proceeding
arose as a direct result of the termination language utilized by the Union in
its 1972 termination/reopening notice. Respondent had discontinued the
preexisting practice of granting washup time to composing room employees.
and the Union objected to this as constituting a unilateral change in
working conditions. The arbitrator ruled that Respondent was not
precluded from making such changes, because the then current contract
(1973-76) contained no provisions for washup time, and the Union, by its
termination language. had declared that any agreements. conditions of
employment or understandings under the prior contract would terminate as
of the date of the expiration of the contract. Thus. the arbitrator ruled that
the preexisting practice could be unilaterally changed by Respondent with
impunity.
In reopening the current contract negotiations, Respondent desired the
same result. Fleming, elaborating, chose the similar language because:
In view of his [the arbitrator's I ruling we wanted the contract that was
. . . terminating on January 31, 1976 to be completely open to
negotiations, including any implied past practices or what have you.
and that's why I chose that language.
Conversely, as a result of the adverse decision of the arbitrator, the Union
chose to never again employ such termination language, and therefore
utilized the language set forth above in its September 16, 1975, reopening
letter.
294
NEWSPAPER PRINTING CORP.
supervisors Dexter Jones, Jim Hathaway, and Jack Fitzpa-
trick.
At the outset of negotiations Jobe presented Fleming
with a letter suggesting that negotiating meetings be held
each Wednesday until a contract was reached. Fleming
stated that as a result of various appointments and
commitments Respondent could not commit itself in
advance to this rigid schedule, and the Union did not
object. A few days prior to the meeting Melton had
furnished Fleming with a copy of the Union's contract
proposals, but at the meeting Jobe advised Fleming that
the aforesaid proposals should be disregarded as changes
thereto had been recently made. Thereupon, Jobe present-
ed Respondent with new contract proposals.
Melton inquired regarding the then-current court pro-
ceedings involving linotype equipment used in the compos-
ing room.3 Fleming stated that he did not know what
would be the outcome of the current litigation between
OSHA and Respondent, but related that Respondent
would undoubtedly abandon the hot metal linotype
machines, and would acquire "cold type" or phototypeset-
ting equipment to replace the linotype machines. Addition-
ally, Fleming stated that Respondent's supplier of linotype
parts was no longer going to stock such parts and necessary
related materials, and that this enforced Respondent's
present intent to abandon the linotype operation and
install additional phototypesetting (also called "photocom-
position") equipment in the composing room.
Fleming asked whether the scale committee had full
authority to negotiate a new working agreement, being
mindful of the parties' unpleasant experiences in prior
negotiations in connection with the scale committee's
apparent lack of authority to reach a binding agreement.
Melton agreed that the matter should be clarified at the
outset, and assured Fleming that he and Jobe, together
with the entire scale committee, had full authority to
negotiate an agreement without qualification.
Fleming informed the Union that Respondent's propos-
als were not yet prepared because of major technological
changes affecting the composing room that were then being
considered and would be implemented during the life of
the new agreement, and, in addition, because of an
:1 Respondent had been previously informed by the Occupational Safety
and Health Administration (OSHA) that certain linotype machinery in the
composing room was unsafe, and that the situation should be immediately
corrected. Respondent was attempting to secure an abatement period from
OSHA during which time Respondent desired to investigate the various
alternatives in this regard.
4 In this latter regard Fleming, at the hearing herein, provided the details
of the pressing operational problems with which he was, at the time,
confronted and which required immediate attention. Counsel for the
Charging Party stated his willingness to stipulate that during the material
period of time herein Fleming "was certainly a very busy man, trying to take
care of all the problems that he had in administering all of the contracts and
everything else." General Counsel implies, but the complaint does not
allege, that Respondent engaged in dilatory tactics by not immediately
responding to the Union's initial reopening letter of September 16, 1975, and
by failing to have an initial contract proposal available at the initial
bargaining session. I find this implied contention to be clearly without merit.
the alleged delays In this regard having been caused by valid business
considerations and, moreover, certainly cured by subsequent protracted
bargaining.
I The work in the "composing room," actually comprising five separate
rooms on the third floor of Respondent's building, then included both
phototypesetting and linotype or "hot metal" operations.
extremely busy schedule.4 The parties then reviewed the
Union's proposals in a general fashion, and, upon conclud-
ing this cursory examination, Fleming advised the Union
of what would be incorporated in Respondent's proposals,
emphasizing that Respondent desired to negotiate major
changes in the Union's jurisdiction over particular work as
a result of the introduction of new technology that would
affect not only the composing room but various other
operations of Respondent. Elaborating, Fleming stated
that Respondent would be making large investments in
new machinery and processes, and that the Respondent
wanted complete flexibility in making job assignments, in
placement of the new equipment, and in determining who
would operate the equipment. Elaborating further, Fleming
explained that initially, as soon as possible, Respondent
would convert the composing room to a total phototypeset-
ting process. 5 Continuing, Fleming stated that, upon
converting the composing room entirely to the phototype-
setting process, Respondent intended to install a large and
complex general-purpose computer system which would be
designed for use not only in conjunction with phototypeset-
ting work, but also for billing and other business purposes.
Finally, as a result of the aforementioned innovations, both
newsroom and classified advertising room application to
the system would become feasible and would be imple-
mented. Thus, a "front-end" system most likely consisting
of sophisticated terminals, each containing a video screen
and typewriter keyboard with additional "function" keys,
would be utilized by newsroom employees and by classified
advertising room employees whereby newspaper copy (ads
or news articles) would be electronically transmitted
directly from the newsroom and classified ad room
terminals to the general-purpose computer for storage and
recall. Such copy could then be directly transmitted to the
composing room phototypesetting machinery, thus elimi-
nating the need for various historic composing room
processes. 6
Next, Fleming announced that Respondent wanted to
negotiate from the contract the reference to the Interna-
tional Typographical Union (ITU) general laws. 7
When asked why Respondent objected to the incorpora-
tion of the ITU general laws as part of the collective-
6 The effect on the composing room employee complement is clear. Hard
copy, or typewnritten material, would no longer be customanly utilized
within the composing room. As a result, composing room employees would
no longer customarily perform the work involved in receiving hard cop)
from the newsroom or classified ad room, and in cutting. distributing.
retyping. or rekeyboarding the hard copy, preparatory to further phototype-
setting or linotype operations. And. with the advent of a total phototypeset-
ting operation in the composing room, linotype machine operators would no
longer be necessary. The implementations of such a new system, as
descnbed. would result in the extensive elimination of unit work. and a
concomitant reduction in the number of unit employees. For a comprehen-
sive explanation of the nature of the new technology and its effect on
historic composing room functions see the discussion appearing in World
Publishing Company, 220 NLRB 1065, enfd. sub nom Omaha Tipographical
Union No. 190 v. N LR.B.. 545 F.2d 1138 (C.A. 8, 1976).
Prior contracts contained the following language in this regard:
ITU LAWS
Sec. 7. It is understood and agreed that the General Laws of the
International Typographical Union in effect at the time of signing this
/Continued)
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreement, Fleming related problems of "sub-
stitute hiring," which procedure was sanctioned by the
general laws and therefore made a part of the collective-
bargaining agreement by reference. This substitute hiring
procedure, in effect, allowed the Union, rather than
Respondent, to hire substitutes, sometimes, according to
Fleming, with undesirable results. Fleming also announced
that Respondent would be proposing changes in Joint
Standing Committee procedures, explaining his reason in
this regard. 8
Fleming also brought up the subject of the contractual
ITU negotiated pension plan, whereby Respondent was
required to contribute to the pension fund 50 cents per shift
per employee, not to exceed five shifts per week, for the
purpose of providing pensions on retirement, and also
death benefits and other related benefits for covered
employees. 9 Fleming related to the Union that it appeared
that Respondent, as a result of the Pension Reform Act,
may be held liable in the event of insufficient funding or
improprieties in the administration of the plan despite the
delimiting contract language. However, Fleming stated
that Respondent was awaiting the opinion of counsel prior
to making a contract proposal in this regard. Fleming also
asked Melton for updated information concerning the
plan. Melton replied that the descriptive booklet, which
Respondent had in its possession, was the most current
publication, but that he would secure additional informa-
tion from the International regarding the plan.
Fleming also brought up the subject of union or "chapel"
meetings on Respondent's premises, which he felt inter-
fered with production. Jobe replied that chapel meetings
had been conducted for many years at a designated time in
the composing room, and Fleming responded that some
employees on the day shift cease work to attend the
meetings, while other employees on the next shift arrive
early for the meetings, and the visiting and general
conversations among employees tend to adversely affect
production.
Fleming also explained that Respondent would propose
the complete elimination and deletion of reproduction
work from the new agreement. t 0
Fleming was also asked about apprentices. He replied
that the innovations occasioned by the new technology
would result in fewer jobs, and that he would not be
agreement, not in conflict with law or this agreement, shall govern
relations between the parties on conditions not specifically enumerated
herein.
Sec. 8. Nothing contained herein shall be construed to interfere in
an) way with the creation or operation of any rules not in conflict with
law or this contract by any chapel or by the Union for the conduct of its
own affairs.
Theretofore, the Union could, for example, immediately reinstate a
discharged or disciplilied employee simply by referring the discharge to the
Joint Standing Committee, the contract providing that, upon the matter
being referred to the committee, the "conditions prevailing at the time of
dispute shall he maintained until resolved by the Joint Standing Commit-
tee." Upon the inability of the Joint Standing Committee, composed of two
members from the Union and two from Respondent, to resolve the dispute
the matter was subject to arbitration.
" The then-current contract had been the first contract between the
parties containing provisions for the ITU negotiated pension plan. Dunng
the prior contract negotiations Respondent indicated its willingness to allow
employees to participate in the plan, the "contributions" simply being
deducted from employees' wages, and paid into the plan by Respondent.
opposed to reducing the contractual ratio of apprentices to
journeymen, rather than having apprentices performing the
jobs of displaced journeymen. Apparently the Union did
not disagree with Fleming's thoughts on this matter.
Fleming stated his belief that employees had taken
advantage of the jury duty section of the contract, whereby
Respondent is to pay the employee the difference between
jury compensation and his regular wages, maintaining that
employees who were released early from jury duty should
report to work or report that they were available for work,
and implied that Respondent would propose contract
language to this effect.
Fleming was asked whether, because of the pending
OSHA suit involving the safe operation of the linotype
equipment, Respondent would be immediately installing
phototypesetting equipment. Fleming replied that he was
going to begin pursuing this operational change very
vigorously, but that he could not state the precise day on
which the equipment would be purchased or installed. Jobe
asked what kind of phototypesetting equipment would be
utilized. Fleming reiterated that the phototypesetting
machinery would be forthcoming, and stated that such
equipment is similar to automobiles in the sense that you
could buy a Volkswagen or a Cadillac, but that neither
would perform the same essential functions.
Fleming was asked whether Respondent had given
serious consideration to any newsroom front-end system
equipment. He answered affirmatively, stating that in the
newspaper printing industry, as a general rule, there had
been a customary progression from the advent and use of
phototypesetting equipment, to the use of a general
purpose computer in conjunction therewith, and finally, to
the installation of newsroom and classified ad room
terminal hookups. The balance of the meeting was
primarily concerned with a general discussion of the new
technology.
Fleming asked for, and received, a current copy of the
ITU general laws, and was told that he would receive a
revised copy of the general laws when such became
available. The meeting ended with Fleming stating that he
would check his schedule and advise the Union when he
would be available for the next meeting.
Sometime shortly thereafter, Fleming advised Melton
that certain management decisions had been made regard-
Thus Respondent incurred no additional expense in this regard. The
contract reflects Respondent's considered intent to avoid any liability as a
participant in the plan, as embodied in the following contract language:
In making this agreement [Respondentl in no way guarantees or
assumes any liability for the actuanal soundness of the Plan, the
payment of any benefits from the Plan (whether retirement death
benefits and/or other related benefits), the exemption of said Plan by
the IRS under the Internal Revenue Code, or any administration of the
Plan.
In addition, the above mentioned contribution shall constitute the
sole obligation and liability of [Respondent] to the Plan and persons
drawing benefits from the Plan.
'o Reproduction work pertains to an historic contract provision whereby
unit employees, in exchange for permitting Respondent to immediately use
"matrices, plates, cuts or type of local advertisements or other local matter"
furnished to Respondent from outside sources, have the right to reproduce
this material within the composing room at a later date, merely to be
discarded because it is no longer useful. This procedure is sometimes
referred to as "setting bogus type."
296
NEWSPAPER PRINTING CORP.
ing the new technology, which decisions were hastened by
the existing problems with OSHA, and that the new
operations would be implemented in phases, the first
phase, namely, total conversion to cold type in the
composing room, to be completed in or about September
1976. At this time the next negotiating meeting was
scheduled for December 17, 1975.
At the December 17, 1975, session Jobe asked whether
Respondent was prepared to submit its proposals, and
Fleming again stated that Respondent was not, but that its
proposals would be forthcoming. There ensued a very
detailed discussion regarding the new technology, its
application to the jurisdictional language of the contract,
and its effect on job assignments, job classifications, and
the employee complement in the composing room unit.
The scale committee members asked specific questions
about new equipment, the questions being directed toward
discerning the effect of the new technology upon the
bargaining unit, and the extent of potential job displace-
ment. Fleming again discussed the three-phased sequence
which would be followed, and stated that he did not know
whether 3 jobs or 50 would be eliminated. He attempted to
ease the apprehensions of the committee by stating that the
conversion to the new equipment and processes would be
implemented in phases, that the entire changeover would
not take place instantaneously, and that job displacement
could be handled as part of a gradual process dictated by
the progressive phases of the conversion process. Fleming
recalled to the scale committee the methods by which, in
the past, certain phototypesetting equipment had been
introduced, stating that there had been a very orderly
process in making a prior conversion from hot metal to
phototypesetting equipment in the composing room, that
everyone cooperated and worked very diligently, that
various training processes were implemented, and that the
conversion was a smooth one. Fleming suggested that,
similarly, the forthcoming conversion process could be so
implemented, and further suggested that a chaotic situation
could be avoided if the committee members would attempt
to assuage the unfounded fears of the employees who
might feel that their jobs would be suddenly eliminated.
There was discussion of the relative merits of various
brands of phototypesetting equipment, Fleming stating his
preferences, specifying the brand name and functions of
the phototypesetting equipment and general purpose
computer to be purchased. He indicated that the type or
brand of terminals should have no real bearing on the
parties' ability to reach agreement, as all terminals which
were then being considered incorporated a typewriter
keyboard with function keys and a video screen, and
operated in a similar fashion.
Fleming explained that the new phototypesetting equip-
ment would be located in the composing room and would
be operated by composing room employees, as said
employees had been operating this type of equipment and
were familiar with it, having had prior operating experience
and maintenance training on similar phototypesetting
equipment. Fleming said that if terminals were purchased
and located in the newsroom, which he indicated was
Respondent's current intention, he did not believe that the
type or brand name of terminal should be of major concern
to the Union because composing room employees would
not be operating this equipment; rather it would be
operated by newsroom employees. Further, Fleming said
that, if terminals were put in the composing room for the
purpose of recalling copy stored in the general purpose
computer, the terminals would definitely be operated by
composing room employees, who would be given training
on the operation and repair of the terminals, regardless of
the brand name of the terminal utilized.
Fleming told the committee that Respondent had been
verbally advised by its counsel that Respondent did have a
liability under the Pension Reform Act as a result of
Respondent's participation in the ITU negotiated pension
plan, and that because of this liability Respondent desired
to negotiate out of, and no longer participate in, the plan.
Jobe and Melton stated that they were not qualified to
thoroughly discuss the plan, and Fleming suggested that
they contact the ITU and obtain information regarding the
plan in order to be able to engage in more constructive
conversation regarding it.
Further, Fleming suggested that because of the serious
problems that were developing in connection with the
negotiation of new jurisdictional language in the contract,
it would be advantageous for the Union to request
assistance from the ITU. Jobe replied, in effect, that it was
too early to call for ITU assistance. Fleming again
suggested this course of action, and Melton replied that he
would be talking with the ITU about the situation. It was
agreed that further negotiating meetings would be held
after the first of the year, the approaching holiday season
being a particularly slack time and therefore amenable to
vacation scheduling.
On or about February 7, 1976, Fleming received a letter
from the scale committee, as follows:
Dear Mr. Fleming,
As Management indicated to the Union's Scale
Committee they intend to install a new computer
system for the purpose of producing the newspapers
which will involve serious changes to the working
conditions in the composing room effecting employees
presently performing such work, this is a formal request
for the following information, needed to the proper
execution of our obligation to fully and fairly represent
our members in the composing room:
1. What type of computer system is to be installed?
2. Where will the main computer or central processor
and/or OCR-VDT-CRT equipment be installed?
3. If the computer is to be installed in another
department than the composing room, will there
be a control panel in the composing room?
4. Will composing room employees be allowed access
to the main computer or central processor when
located in another department. If not, why not?
5. Does the employer intend to establish a data
processing system to include employees of other
departments to process other than composing
room work, such as accounting, bookkeeping,
etc., regardless ofjurisdiction lines?
6. Will composing room employees be trained by the
employer in programming techniques and console
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations, and/or operation of OCR-VDT-CRT
equipment, including maintenance, in courses
made available to the employer through the lease
or purchase of the equipment?
Please advise by return letter.
Scale Committee
Upon receipt of the letter, Fleming advised Melton that the
subject matter would be discussed at the next negotiating
session.
The next negotiating session was held on January 14,
1976. Fleming stated that he had received the letter from
the scale committee and would like to discuss the matters
contained therein and answer the letter verbally. Receiving
an assurance that this procedure would be satisfactory,
Fleming answered the questions seriatimr
With regard to questions I and 2, Fleming stated that he
was interested in several Digital Equipment Corporation
(DEC) general-purpose computers and that the computer
(or central processor) decided upon would not be located
in the composing room because of its size and the
environmental prerequisites attendant to its operation. He
explained that Respondent was going to build an environ-
mental computer room on the fourth floor of the World
Building where the computer would be located, and further
stated that the system would not only be utilized for
production purposes, but that it would also be used for
administrative purposes such as checking credit, and
performing billing and accounts receivable functions.
Fleming stated that, upon receiving more information from
DEC, he would further elaborate on this equipment at
future negotiating meetings. In response to question 3,
Fleming stated that the computer's bank or panel must be
located adjacent to the computer, and would therefore be
located in the environmentally controlled room along with
the computer, rather than in the composing room; if, for
production reasons, any controls for the computer needed
to be located in the composing room, they would be so
located and would be operated by composing room
employees. Fleming stated that the entire system needed to
be laid out in order to determine what parts, if any, would
be located in the composing room.
In response to question 4, Fleming said that as the main
computer will be located in the environmental room, he
believed that composing room employees would not need
direct physical access to the computer, but, if necessary,
that they could communicate with the computer with
equipment located in the composing room. For efficiency
reasons, Fleming stated, it would be inappropriate to
require composing room employees to walk up and down
flights of stairs to communicate with the computer. When
asked how composing room employees might be able to
communicate with the computer from the composing
room, Fleming replied that either a VDT (video display
terminal) type of terminal could be used for this purpose,
or that another piece of equipment which has no video
screen but prints out in hard copy the instructions being
sent to the computer could also perform this function.
With respect to question 5, Fleming answered the
question, "Most certainly," but indicated that he did not
know what was meant by "regardless of jurisdictional
lines." He went on to explain that the new system was
costing about $1-1/2 million, and an outlay of this
magnitude could not be justified merely for the handling of
composing room work, adding that the work which the
computer is capable of performing is in direct relationship
to its size and cost.
Again Fleming was asked his thinking on the impact of
the new system on the composing room unit. Fleming
stated that he could not be specific until the full mechanics
of the system had been decided upon, that he had no idea if
3 or 30 jobs would be affected, but that as soon and as
quickly as possible Respondent would try to establish the
impact it would have, which, because of the three-phased
sequence of the system's installation and operation, would
not create an overnight impact of significant magnitude.
Fleming again explained the various stages, reiterating that
the first step would be to eliminate the linotype machine or
machines and complete the total conversion to cold type in
the composing room, that the second step would involve
installation of the general-purpose computer, and that
placing terminals in the newsroom and ad room would
constitute the final step.
Regarding question 6, Fleming responded that any
equipment located in the composing room would be
operated by composing room employees, who would
certainly be trained to operate and maintain the equip-
ment, stating further that the procedure would be similar to
that followed in the composing room upon the partial
changeover in the composing room to cold type which
occurred several years earlier.
It also appears that at this meeting Fleming advised the
Union of the estimated time frame for the institution of the
new technology, explaining that the phototypesetting
equipment would be installed in the composing room
during the late summer of 1976, which would complete the
conversion to cold type in the composing room; that the
environmental equipment for the computer room, and the
computers and related hardware could be delivered in
about May 1977; and that the terminal hookups in the
newsroom and ad room, and possibly the composing room,
could be installed and the entire system could thereby
become operational by August I, 1977.
Having responded to the questions there was further
discussion of workflow, new equipment, installation of
equipment, and impact on the bargaining unit. Fleming
said that when Respondent acquired updated information
concerning the changes with which the Union was
concerned, as reflected by the questions asked in the letter,
the Union would be the first to know.
Fleming presented Respondent's written proposal to the
Union at this time. Respondent proposed extensive
jurisdictional language changes which essentially is ex-
pressed by the first paragraph of Respondent's jurisdiction
proposal, as follows: I
I Respondent's entire proposal is set out in Appendix "A."
298
NEWSPAPER PRINTING CORP.
The jurisdiction of the Union and the appropriate unit
for collective bargaining is defined as including only
those employees engaged in all work which the
Employer may from time to time designate to be
performed in the Composing Room. It is the express
intention of the Employer to accomplish his complete
production needs in the manner which he determines to
be the most effective and economical method to fulfill
the work requirements.
Fleming suggested that as Respondent's jurisdictional
language, having been necessitated by the nature of the
planned technological changes, was quite different from
the historic contract language, the Union would probably
want to thoroughly study the language before making a
response to it. Jobe indicated that such a procedure would
be most advisable.
Fleming also mentioned that Respondent's proposal
deleted reference to the ITU general laws as being
embodied in, and made a part of, the contract. Particularly,
Fleming stated that Respondent was opposed to the
substitute hiring procedure which is authorized by the
general laws. Fleming explained that although Respondent
was not philosophically opposed to having regulars hire
their own substitutes, regular employees have not always
done so in Respondent's best interests, having sometimes
hired or selected substitutes who were not capable of
adequately performing the work in question. Thus, Re-
spondent was not proposing the complete elimination of
substitute hiring, but rather wanted the foreman to act as a
monitor to assure that the substitute was a qualified
individual. One member of the scale committee, objecting
to the new proposed substitute hiring procedure, stated
that on occasion the employees want to take time off from
work to go fishing. Fleming said that this would still be
possible, but that under Respondent's proposal the fore-
man would be apprised of this fact in advance. Fleming
further said that as a result of new technology, composing
room jobs are becoming more specialized, thus providing
another reason for discontinuing the existing procedure of
selection of substitutes by regulars. One member of the
scale committee said it would be very difficult for the
Union to agree to any contract without incorporation of
the ITU general laws.
There was considerable discussion about cleaning up
gray areas in the priority or seniority board, the method by
which, according to the contract, situation holders and
extras are to be hired "in strict priority order in the class of
work in which they claim competency." Melton agreed that
clarification of the priority hiring provision of the contract
was warranted.
The ITU negotiated pension was again discussed,
Respondent's proposal calling for its deletion, and Fleming
requesting more information to determine how Respon-
dent could be assured of incurring no liability as a result of
participating in the plan. Melton said he was trying to get
additional information.
At the end of the meeting Jobe said that the Union
would study Respondent's entire proposal. Fleming asked
whether the local committee felt it was in a position to
resolve the issues without help from the ITU because of the
seriousness of some of the issues. The committee indicated
that it could resolve the issues, stating that intervention or
assistance by an ITU representative was not then wanted
because certain committee members felt that the ITU did
not always primarily consider the local union's best
interests. Fleming reiterated that because of the serious
issues relating to technology changes, jurisdiction, job
assignment, and job classifications he did not see how a
contract would be able to be finalized without assistance
from the ITU. Melton or Jobe affirmed that it might be
rather difficult to resolve many of the issues, and Melton
announced that he had been talking with the International
and would be talking with ITU representatives on a
continuing basis. Fleming stated that the contract would be
expiring very soon, and that he hoped representation by
the International would be forthcoming before the expira-
tion of the contract. Fleming asked Melton if he had
received an updated copy of the ITU general laws, and
Melton said he would check on this with the Union's
secretary. The parties agreed to meet again on January 21,
1976, Fleming suggesting that, as the expiration date of the
contract was rapidly approaching, the parties ought to
meet more frequently and be more constructive particular-
ly because of the major contract issues involved, and the
fact that in these prior bargaining session so much time had
been spent discussing new technology with no progress
having been made.
The next meeting occurred on January 21, 1976. The
scale committee questioned Respondent about its propos-
als, again discussing the matter ofjurisdiction, which led to
a further discussion of the new technology and its
application to the composing room work force. The types
of systems and equipment to be installed were again
discussed. Fleming stated, in response to a question, that
the overall impact on employees, and, in particular, the
number of composing room jobs to be eliminated by the
new technology, would be difficult to estimate with any
degree of accuracy, but that this should not be of
immediate monumental concern to the Union as reassign-
ment of jobs, some retraining, and some attrition would
minimize the problem during the various phases of the
conversion process. Fleming was asked whether Respon-
dent had considered and/or would consider proposing a
guaranteed number of composing room jobs throughout
the life of the agreement. Fleming said he would be more
than happy to negotiate along these lines.
There was further discussion of deletion of the ITU
general laws, the Union again wanting to know why this
was being proposed and Respondent again stating its
reasons. Respondent's proposed changes in the priority or
seniority hiring system were discussed. Fleming stated that
hiring by strict priority sometimes had an adverse effect on
Respondent by causing unqualified employees to be
assigned work on particular jobs. Melton agreed with
Respondent's concerns in this regard, stating that under
the existing system employees not qualified to perform a
particular job would nevertheless assert their priority in an
effort to obtain a more desirable job or shift.
Also, the matter of reproduction or setting bogus type
was again discussed, the Union basically agreeing that this
was a dead issue, and that it would not object to the
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deletion of the contract provision relating to reproduction
work.
The ITU negotiated pension plan was again discussed,
Respondent having proposed that the plan be entirely
deleted from the contract. The committee asked how much
the pension benefits would be reduced if Respondent
stopped participating, to which Fleming replied, "how
would we know?", there being no data from which to make
such calculations.
Melton then declared that the scale committee was
powerless to resolve major contract issues. At one point in
the meeting Jobe stated that the scale committee had
studied Respondent's jurisdictional proposal, and that
"there's no way in the hell the Union could ever accept it,
that to do so would be to kill the Union." Respondent's
representatives asked him to elaborate, and Melton said
the scale committee was powerless to resolve the issues of
jurisdiction, ITU general laws, ITU negotiated pension
plan, and the substitute hiring procedure as embodied in
the ITU general laws and made part of the contract by
reference. Fleming stated that he had repeatedly suggested
that the local union seek assistance or direction from the
ITU because of the serious nature of the issues involved,
and once again made the suggestion that ITU assistance be
sought because of the nearness of the expiration date of the
contract. At this point Fleming looked back in his
negotiating meeting notes and read from them previous
statements by members of the scale committee to the effect
that the scale committee had the autonomy and authority
to negotiate and resolve all contract issues. Fleming said
that if the local was now maintaining that it did not have
such authority, then someone with the full authority and
power to resolve the issues must be brought into negotia-
tions. Fleming, apparently at this meeting, stated that he
knew for a fact that local union had a vast degree of
autonomy, and that the scale committee could indeed
conclude an agreement with Respondent.
Lorton stated that there had been considerable discus-
sion on all major issues, and that no progress was being
made. Fleming stated that it appeared an impasse had been
reached or was being reached. Jobe replied, according to
Fleming, "Hell, call it what you want, impasse, deadlock or
whatever-we are, without question, locked up on this
thing. We're not making any progress." 12
Fleming asked what the scale committee proposed to do
if it was powerless to negotiate, inquiring as to how the
issues could be resolved. After continued discussion Jobe
again stated, "Hell, Ken, I guess we've got an impasse."
Again Fleming asked Melton, "If you are powerless, have
you made any arrangements to bring an ITU representa-
12 Jobe testified that during the January 21, 1976, meeting Fleming
stated that the contract expired on January 31, 1976, and that therefore
Respondent intended to make job assignments and use the new equipment
in the most feasible and economical manner. Jobe replied that it was his
understanding of the law that the parties were required to work under the
terms of the old contract until either a new agreement or a bargaining
impasse had been reached. Jobe categorically denies that either he or
Melton or any other member of the scale committee made any statement to
the effect that the parties were deadlocked or had reached a bargaining
impasse. I credit Fleming and find that such statements, at both the January
21, 1976. meeting and later meetings, were made by Jobe and/or Melton.
Fleming favorably impressed me as a highly credible witness, with a vivid
recollection of the entire course of bargaining negotiations. The record
tive in" and Melton replied that no such arrangements had
been made. Jobe, who had previously said that an impasse
had been reached, nevertheless stated that he did not
believe the point had been reached for the intervention or
services of an ITU representative. Upon being reminded by
Fleming that Jobe had previously stated an impasse had
been reached, Melton again said he would be continuing to
talk with the ITU, as he had stated on several occasions at
prior negotiating sessions.
There was discussion regarding the approaching contract
expiration date, and it was suggested that the parties
should meet more often and for longer periods. It was
agreed that the next meeting would be held on January 28,
1976. Melton said that he was going to be talking with ITU
headquarters, and that if the scale committee could meet
prior to January 28, 1976, Fleming would be advised.
The following Monday Melton told Fleming that he had
talked with ITU headquarters about the pension issue and
questions in the jurisdictional area, and that the meeting
between Respondent and the local union scale committee
would be held as scheduled. Melton did not state that an
ITU representative would be in attendance or would
participate in the negotiations.
The parties met on January 28, 1976. Again the
jurisdiction issue was discussed, Fleming explaining that he
was not attempting to limit the Union's historic jurisdiction
which would continue to be commensurate with the
physical boundaries of the composing room, but rather, by
its jurisdictional language, Respondent merely wanted to
clean up the outdated jurisdictional language in prepara-
tion for the new technology. All major contract issues were
once more discussed at great length, Melton again stating
that the local union was still attempting to get further
information concerning the ITU negotiated pension plan.
After considerable discussion Melton reiterated that the
scale committee was powerless to resolve the major issues.
Fleming queried whether any arrangements had been made
for ITU assistance and Melton once again merely replied
that he had been talking with the ITU. Fleming asked
whether any ITU representative had been scheduled to
attend or participate in negotiations and Melton said no.
Fleming reviewed the situation, stating that it had been
agreed an impasse had been reached, that the scale
committee was powerless to resolve major contract issues,
and that no help or assistance from the ITU was on the
way. Both Melton and Jobe again confirmed that impasse
had been reached, and Melton stated, "You know how this
works, Ken. You know that we can't resolve this jurisdic-
tional and some of these other key issues."
reflects that Fleming took complete minutes of each bargaining session, had
such notes in his possession during his testimony, and referred to them when
necessary to refresh his recollection of the events. The record does not show
that the minutes, available to General Counsel and counsel for the Union,
upon request, failed to support Fleming's testimony in various material
respects. Lennon v. U.S., 316 U.S. 129, 132; General Engineering Inc., and
Harvey Aluminum, 125 NLRB 674 (1959). Further, although Jobe, Melton,
Blair, and Phil Jones attended the bargaining sessions on behalf of the
Union, it is significant that none of these individuals were called as
witnesses to corroborate Jobe's testimony, even though Jones did testify
with regard to other matters. I further credit Fleming's testimony, for the
same reasons, over the testimony of Jobe, to the extent that there is a
material variation in their respective versions of the contract negotiations.
300
NEWSPAPER PRINTING CORP.
At this meeting, Fleming presented Melton with a letter
from Respondent stating as follows:
Not withstanding our several bargaining conferences
and our explanation of our proposals for a new
Agreement, we have been unable to reach agreement
on any subject.
We desire to be notified on or before January 30,
1976 with respect to your acceptance or final rejection
of our proposal for new Agreement.
In the event you have not accepted our proposal by
that date we desire to withdraw each proposal and we
will submit a new counter-proposal on February 1,
1976.
The record does not indicate any significant discussion
regarding the letter, and Fleming was not asked to
elaborate on the nature of the new counterproposal to be
submitted to the Union on February 1, 1976. Melton stated
he was going to be conversing with ITU headquarters and
it was agreed that the parties would meet the following
morning, January 29, 1976.
At the outset of the January 29, 1976, meeting Fleming
asked whether a representative from the ITU would be in
attendance. Melton said no. The scale committee, appar-
ently responding to the aforementioned letter of the
preceding day, stated that the Union had no desire to
change either its jurisdictional proposal or any other
proposals, explaining that the parties had operated under
the old contract language for many years and that there
was no need to make the changes proposed by Respondent.
The major issues were discussed again, there being no
change in the positions of the parties, and no agreement
being reached. During the life of a prior agreement, before
the implementation of phototypesetting equipment in the
composing room, contract language dealing with this new
process had been negotiated. The scale committee pro-
posed that likewise the parties could enter into a new
agreement virtually identical to the old one, and reopen the
contract and renegotiate on the applicable contract
provisions during succeeding months or years prior to the
implementation of the new technology. Fleming pointed
out that he had no desire to begin operating under a new
working agreement only to be burdened with new contract
negotiations some 60 or 90 days later, stating that both
sides had sufficient data and information to resolve the
problems at the present time. Fleming emphasized that
11 While it was not until after February 17, 1976, that Respondent
received a statement directed to "all contributing employers. covered
employees, local unions and other interested parties." and entitled
"Statement Adopted by the Board of Trustees ITU Negotiated Pension
Plan." the statement sets forth the concerns which Respondent expressed to
the Union during negotiations. as follows:
The Trustees are well aware that employers generally are troubled
that under ERISA they may be called upon legally to make
contributions to a pension plan in addition to the amounts agreed upon
in their collective bargaining agreements, if. on an annual basis, the
plan shows deficit funding, or if it should terminate for lack of adequate
funding. Fear of this so-called "open end" is not realistic in regard to
the ITU Negotiated Pension Plan. The ITU Negotiated Pension Plan is
certainly not about to terminate, nor will it operate on a deficit basis.
In December 1975, Respondent had received from its corporate counsel, not
Respondent was not attempting to "get [the Union] on a
complete jurisdictional wipe out," and explained that
Respondent was interested in negotiating a jurisdictional
clause which would give Respondent flexibility in a
changing technological area. Fleming explained that
employees would be performing jobs in the future that they
were not performing heretofore, that many jobs would
overlap, and that Respondent did not want to be burdened
with archaic contract language having no applicability or
confusing applicability, to the new technology.
At this meeting, it appears that the Union proposed that
during the year 1976 Respondent guarantee 180 situations
or jobs, apparently the number of composing room jobs
then in existence, and that the guaranteed figure be
reduced by 5 situations each year over an 8-year period
until a minimum of 145 jobs were guaranteed. Fleming
stated that attrition alone would reduce the number of jobs
at a more rapid rate, and suggested that the Union submit
another proposal. Jobe replied, apparently at this meeting,
that for internal union reasons, it would be more expedient
for Respondent, rather than for the Union, to propose a
lesser number ofjob guarantees.
Substitute hiring was again discussed, Fleming reiterat-
ing that Respondent was not basically opposed to a regular
employee (situation holder) having a substitute when
necessary, as in the past, but that Respondent desired the
foreman to monitor the process and evaluate the compe-
tency of each substitute prior to the time the substitute
commenced performing the work. The Union replied that
it was powerless to change the ITU general laws in this
regard, which laws operated as the implementing language
for the substitute hiring procedure.
Respondent reiterated its reasons for wanting to change
or negotiate out of the pension plan because of liability
over which Respondent had no control, imposed by the
Pension Reform Act.t 3 The scale committee again stated
its general unfamiliarity with the specific problems created
by the Pension Reform Act, and reiterated that it was still
attempting to secure information in this regard which it
had previously requested from ITU headquarters.
Fleming stated that the contract was due to expire in 48
hours, that he would like to meet as often as possible prior
to the contract's expiration, and that the Union should
attempt to obtain the assistance of an ITU representative
prior to the expiration of the contract. Melton stated his
intention to speak with the ITU and to ask the ITU to send
assistance prior to the expiration of the contract. Fleming
representing Respondent in the instant matter, a letter consisting of a legal
analysis with regard to the potential liability of Respondent as a participant
in the ITU negotiated pension plan. The seven-page analysis concludes that
as long as Respondent is a contributing employer to the plan, it has
potential liabilities over which it has no control, and such liabilities may
arise even though Respondent fulfills the requirements of its agreement with
the Union; and that, therefore, the liability exposures and uncertainties
indicate that Respondent should negotiate out of its obligations to
contribute to the plan. Further, the analysis states that ITU allows union
members to participate in the plan by making individual contributions, and
thus the employees could themselves purchase the same benefits without
imposing an unknown risk on Respondent.
Regarding this latter opinion by Respondent's counsel, record testimon)
was presented by the Charging Party that, in fact. no individual employee
contributions were possible under the plan. I regard the record as being
inadequate to determine herein the correctness of either interpretation,
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that Respondent would be available to meet that
afternoon, a Thursday, or anytime thereafter, including
Saturday and Sunday, with a representative of the
International, with the hope of resolving some of the major
issues prior to the contract's expiration. Further, it was
suggested by Fleming that if International assistance was
not forthcoming, the scale committee and Respondent
should meet again on Monday morning, February 2, 1976.
Jobe said he would not be available as he had a prior social
commitment which would cause him to be out of town for
several days, and it was agreed that, as the scale committee
did not want to meet without Jobe, the parties would meet
on February 4, 1976, unless there was some communica-
tion from Melton that a meeting with an ITU representa-
tive could be arranged at an earlier time.
From January 29, 1976, to February 2, 1976, Fleming
was anxiously awaiting some communication, by phone or
otherwise, that the International would have a representa-
tive in attendance for an immediate meeting. Fleming was
hopeful that, at the least, an International representative
would phone him and generally indicate that progress in
negotiations was a real possibility. However, no communi-
cation was received from either the local or the Interna-
tional, and on February 2, 1976, Fleming sent a letter to
Melton (the complete text of which is attached hereto as
Appendix B), which states, inter alia, as follows:
In light of the fact that the contract with your Union
expired by its terms and conditions on January 31,
1976, and pending execution of a new agreement or a
continuation of the existing impasse, no provision, past
practices or obligations that existed under the prior
contract will be effective.
We announce the following work relationships that
will exist not as a contractual understanding but work
practices ....
* * *
This is not to the prejudice of the use of the collective
bargaining process to reach a new agreement.
Obviously the Union was not impressed with the urgency
of the situation expressed by Fleming at the January 29,
1976, meeting as it failed to immediately contact the
International, as promised. Rather, Jobe testified that
Melton, who had received Respondent's February 2, 1976,
letter on the afternoon of that day, called a meeting of the
scale committee at 4 o'clock that afternoon to discuss the
matter and only then was it decided that the International
should be contacted. Jobe testified in this regard as
follows:
A. We called international Headquarters in Colo-
rado Springs and advised them we had received a letter
of what we considered a change in working conditions,
and that we felt like we needed assistance, an ITU
representative, and after some lengthy discussion they
said that they would get in touch with us and let us
know what they had decided.
On February 4, 1976, the next negotiating meeting was
held. Melton asked what the February 2, 1976, letter meant
and whether it constituted the new counterproposal
mentioned in Respondent's prior January 28, 1976, letter.
Fleming replied that the February 2, 1976, letter meant
precisely what it said. Fleming stated that since he was not
advised that assistance from the ITU was forthcoming it
was necessary to institute the new rules and guidelines,
which would continue to remain in effect until such time as
a new working agreement had been negotiated. Melton
asked whether Respondent was declining to bargain
further, and Fleming replied that, to the contrary, Respon-
dent wanted to negotiate and hopefully reach an agreement
on all issues. Melton said that Jack Boris, an ITU
representative, was due to arrive that day, and would be
available for a meeting that afternoon. There was a general
discussion of the February 2, 1976, letter, Fleming
explaining the intent of the letter, item by item, and the
procedures which would be followed in implementing the
new procedures therein. Fleming stated that substitutes
and regulars would be hired as in the past, except that the
foreman is to be aware and apprised of each hiring
situation, thus enabling the foreman to object to and
apparently deny a request to hire a particular sub or
regular prior to the time such employee commences work.
That afternoon Boris attended the negotiating session
along with the regular members of the scale committee,
and became the chief negotiator for the Union. Fleming
had negotiated with Boris previously regarding the institu-
tion of the current phototypesetting system, and thus the
two individuals were acquainted with each other. Boris
stated that he was somewhat vague on the issues, and a
generalized conversation ensued involving the prior negoti-
ations, Fleming reconstructing what had transpired over
the previous weeks of bargaining. Boris stated that he felt
there was no insurmountable problem and requested that
Respondent withdraw the letter of February 2, 1976, and
that the parties continue to adhere to the terms of the old
contract, further stating that he would get busy and help
the local union come up with new jurisdictional language.
Fleming refused to rescind the letter, replying that he did
not regard the provisions of the letter as constituting an
impediment to quickly finding solutions through negotia-
tions on all the major issues. Boris said the Union could
take the position, "no contract, no work," and Fleming
agreed that this could be done. Boris queried if Fleming
wanted the employees to go on strike, and Fleming said he
had no control over the matter. Boris then stated that he
felt Respondent might be committing an unfair labor
practice. Fleming disagreed, stating that an impasse had
been reached and that Respondent was exercising its
rights. Boris retorted that the Union fully intended to
exercise all of its rights, and again asked Fleming to
reconsider his initial position and withdraw the letter.
Fleming declined to do so.
Boris reviewed Respondent's proposal on jurisdiction
and reiterated the position that had been taken throughout
the course of bargaining by the scale committee; namely,
that, with Respondent retaining the unequivocal right to
remove work from the jurisdiction of the Union simply by
unilaterally determining what work should remain in the
composing room, Respondent was making it impossible for
the Union to know for whom it was bargaining. Further,
302
NEWSPAPER PRINTING CORP.
Boris stated that Respondent's proposal was in effect a
proposal to destroy the bargaining unit by retaining the
unilateral right to determine from time to time who would,
or would not, be included therein. Fleming reiterated that
the jurisdictional clause contained in Respondent's propos-
al was designed to provide Respondent with the necessary
flexibility to print its newspapers most efficiently and that,
particularly for the purpose of accommodating the changes
dictated by the new technology, Respondent wanted no
limitation upon its right to remove any work from the
jurisdiction of the Union, and desired the further unequiv-
ocal right to place new equipment and processes in the
composing room, in which event Fleming assured Boris
that the work in question would be performed by
composing room employees represented by the Union.
The next morning, February 5, 1976, a similar negotiat-
ing session took place, Boris again requesting withdrawal
of the letter, stating that the Union would have to file
unfair labor practice changes, and that the Union could
take the position "no contract, no work." Fleming stated he
did not believe Respondent had committed an unfair labor
practice, and Boris said, "Well, we'll try to find an unfair
labor practice to file." The meeting adjourned after about
30 minutes, there being very little discussion of the contract
items. The next meeting was scheduled for February 12,
1976.
Further negotiating meetings were held on February 12,
18, and 25, March 2 and 3, April 5, 20, and 21, May 13 and
14, June 3, 4, 10, and II, and August 26, 1976. While
virtually all contract items were thoroughly discussed
during the course of these negotiations, the parties
concentrated their efforts on the jurisdictional language,
which had readily been recognized as the overriding issue
throughout the protracted negotiations. Various jurisdic-
tional proposals were exchanged, Respondent consistently
believing and taking the position that the Union was
attempting to expand its jurisdiction into the newsroom, ad
room, and computer room as evidenced by somewhat
vague jurisdictional language proposed by the Union. And
while Respondent modified its initial jurisdictional propos-
al as well as other contract proposals on several occasions,
the jurisdictional modifications were designed to assuage
the Union's alleged fears that certain historical composing
room work would be removed from the composing room,
but nevertheless Respondent continued to insist upon the
widest latitude and flexibility to determine what work
would be performed within the confines of the composing
room, and thus, what would remain within, or be
transferred into, the Union's jurisdictional sphere.
The negotiations from February 12 through August 26,
1976, were not entirely unproductive, Respondent agreeing
that many sections of the prior contract would remain
unchanged, including some contract items which had been
unilaterally changed by Respondent as a result of its
February 2, 1976, letter, such as certain functions of the
Joint Standing Committee, the contract provisions regard-
ing the Joint Apprenticeship Committee, and the right of
14 Both General Counsel and counsel for the Charging Party. in their
respective briefs, acknowledge that a bargaining impasse was reached on or
about June 11, 1976, at which negotiating meeting the Federal mediator
correctly characterized the status of negotiations as hopelessly deadlocked.
the Union to conduct chapel meetings in the composing
room "with permission of the foreman." Job guarantee
proposals were made and discussed, and wage increases
were proposed by Respondent, the proposed increases for
the first year of the contract amounting to approximately
15 percent. Nevertheless, as stated above, the overriding
jurisdictional issue remained the primary obstruction to the
reaching of a new working agreement.
On June 11, 1976, a Federal mediator, who had been
assisting the parties during the course of negotiations since
about May 13, 1976, stated to the parties that jurisdiction
was the major area of disagreement, that he did not
envision that agreement could be reached in this area, and
that he felt taxpayers' money was simply being wasted by
his participation in the unproductive and protracted
negotiations. 14
No further negotiations have taken place, the parties'
respective positions having remained firm.
C. Analysis and Conclusions
I. The unit-jurisdiction issue
The complaint contains the allegation that Respondent
has violated Section 8(aX5) of the Act by insisting upon a
contractual provision "which failed to sufficiently identify
or define the collective bargaining unit or work of said
employees so as to allow the Union to engage in
meaningful collective bargaining regarding said employees
or to otherwise represent said employees."
Respondent, utilizing, the unit-jurisdiction clause format
embodied in preceding contracts, and thus maintaining
consistency with the Union's similar unit-jurisdiction
clause format as proposed by the Union in the instant
negotiations, initially proposed the following clause, inter
alia, under the heading of "Jurisdiction":
The jurisdiction of the Union and the appropnate unit
for collective bargaining is defined as including only
those employees engaged in all work which the
Employer may from time to time designate to be
performed in the Composing Room. It is the express
intention of the Employer to accomplish his complete
production needs in the manner which he determines to
be the most effective and economical method to fulfill
the work requirements.
Respondent's proposed clause serves a threefold pur-
pose. Reduced to its component parts, the clause defines
the appropriate unit for purposes of collective bargaining,
establishes the Union's jurisdictional boundaries, and
operates as a management-rights clause.
It is clear that the clause, when analyzed in this fashion,
unequivocally sets forth an appropriate unit description.'I
Indeed, the parties have been operating under a similar
unit description contained in a succession of collective-
bargaining agreements over the course of many years.
during which time apparently no contention has been
'` "The . . . appropriate unit for collective bargaining is dclined as
including only those employees engaged in all work . . in the Composing
Room."
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made that the unit description was somehow defective.
Thus, preceding contracts, including the most recently
expired contract, have also provided under the heading of
"Jurisdiction":
Jurisdiction of the Union and the appropriate unit for
collective bargaining is defined as including all com-
posing room work and includes classifications such as
Thereafter, the contract language proceeds to elaborate
upon and identify the said composing room work by
detailed specific classifications and job descriptions. Even
so, the language is not exhaustive, allowing further
assertions of jurisdictional claims by its open-end phraseol-
ogy.
Of course, there is a distinction between the two above-
quoted clauses. Thus, historically, both the unit and the
Union's jurisdiction have been defined in terms of "all
composing room work," leaving room for the contention
that certain work which may be performed outside the
composing room is nevertheless composing room work.
That the Union so recognizes and relies on this language is
evidenced by the fact that in its initial contract proposal,
apparently anticipating Respondent's conversion to the
new technology, it desired to modify the contract clause
entitled "New Processes" by adding the following lan-
guage:
In the event of the introduction of any new equipment,
machinery or processes which replaces or is a substitute
for, or evolution of present composing room equip-
ment, machinery or processes, employees covered by
this agreement will continue to perform all work
thereon and these new processes, equipment and
devices shall be within the jurisdiction of the Union as
recognized by this agreement regardless of the method,
equipment, or material used regardless of where located,
in the performance of such composing room work.
[Emphasis supplied.]
Conversely, Respondent desired to clearly confine the
Union's jurisdictional, and thereby the unit, to the physical
boundaries of the composing room, Respondent's pro-
posed language defining the Union's jurisdiction, and
thereby the unit, in terms of work to be performed "in the
Composing Room." 16
The requirement that a collective-bargaining representa-
tive is entitled to exclusive recognition in an identifiable
appropriate unit 17 serves the necessary purpose of delineat-
~ Significantly, the complaint herein defines the unit as "all composing
room employees" rather than in terms of "all employees who perform
composing room work."
'? Columbia Tribune Publishing Co.. 201 NL.RB 538, 551 (1973);
McQuaV-Norris Manufacturing Company v. N.L.R.B., 116 F.2d 748. 751
(C.A. 7. 1940).
'* The matter of the appropriate unit being clearly a nonmandatory
subject of bargaining, proposed changes in the unit may not be insisted
upon. Delhi-T7 lor Refining Division, Hess Oil and Chemical Corporation, 167
NLRB 115 (1967), enfd. on this point 415 F.2d 440. 443 445 (C.A. 5. 1969);
N L.R.B.. v. Wooster Division of Borg Warner Corporation, 356 US. 342
(1958); Shell Oil Compane el al., 194 NLRB 988, 995 (1972). affd. 486 F.2d
1266 (CA.D.('C. 1973).
I1' .g., Hevs Oil and Chemical Corporation. supra; Palm Beach Post-
ing, with particularity, a group of employees with whom
the union is both entitled and obligated to bargain.
Otherwise, meaningful bargaining could not take place.
Douds v. International Longshoremen's Association, 241 F.2d
278 (C.A. 2, 1957). And once such a unit has been
established, a party may not insist to the point of impasse
that the unit be changed 18 because, among other reasons
not pertinent herein, to do so may result in the disenfran-
chisement of employees who are entitled to union represen-
tation.19
There is no record evidence in the instant case, nor did
General Counsel or counsel for the Charging Party ever
attempt to show, that the unit has ever, in practice, actually
included employees performing work outside the compos-
ing room despite the contract language which would
arguably permit such expansion; nor is there evidence that
during the long collective-bargaining relationship under
numerous working agreements there was ever a meeting of
the minds that the unit may encompass employees outside
the composing room at some future date.
And while it may be argued that Respondent's insistence
upon a more restrictive unit clause constitutes a deviation
from the longstanding unit-jurisdiction description as
recognized by the parties, the practical effect of the
proposed language is to more carefully delimit the unit
consistent with the realities of the working relationship
between the parties through the years, and further,
consistent with Respondent's interpretation of the intent of
the traditional unit-jurisdiction clause. Most importantly,
no employees will have been disenfranchised as a result of
Respondent's proposed unit language, and the Union is
thereby able to engage in meaningful negotiations, know-
ing precisely that the unit of employees for which it is
bargaining is the same unit for which it has always
bargained.
Thus, as the clarifying change in the unit description
proposed by Respondent does not appear to contain the
inherent defects proscribed by established Board law, no
employees being prejudiced or disenfranchised thereby, I
find that Respondent's insistence upon such or similar
language is not unlawful, and that, contrary to the
allegation of the complaint, the proposed language does, in
fact, define with particularity the appropriate collective-
bargaining unit.20
With regard to the jurisdictional aspects of Respondent's
proposed clause, it is likewise clear that the clause
unequivocally establishes the parameters of the Union's
jurisdiction. 2i Again, this language is consistent with the
past practice of the parties, as it appears that no work over
Times, Division of Perry Publications, Inc., 151 NLRB 1030, 1044-46 (1%965).
enfd. 375 F.2d 118 (C.A. 5, 1967); Salt River Valley Water Users'Association,
204 NLRB 83 (1973), enfd. 498 F.2d 393 (C.A. 9, 1974); Hess Oil, supra.
20 The Columbia Tribune, supra, upon which both the General Counsel
and counsel for the Charging Party place overriding significance, is clearly
inapposite, the respondent therein not only flatly rejecting the union's
proposed unit-jurisdiction clause, but also making it "very plain that no unit
clause was acceptable." Id at 551; moreover, respondent's attitude therein
was prompted by a "desire to destroy the bargaining unit and undermine the
Union's representative status in an effort to avoid agreement," Ibid Such is
not the case herein.
21 "The jurisdiction of the Union . . . is defined as including . . . all
work ... in the Composing Room."
304
NEWSPAPER PRINTING CORP.
which the Union was arguably granted jurisdictional rights
had ever been performed outside the composing room. To
be sure, Respondent deleted from its proposal the detailed,
open-ended listing of job classifications and descriptions
contained in preceding contracts, maintaining that under
the new technology many of the described jobs, machines,
and procedures would no longer be in existence,22 and that
therefore such language would be superfluous or at least
ambiguous when applied to the new methods and proce-
dures which would come into existence under the new
working agreement. However, it is clear, and I find, that by
its proposal, including the deletion of such examples of
composing room work from its jurisdictional clause,
Respondent was not in any manner changing the intent of
the historic language, as interpreted by Respondent and
evidenced by past practice of the parties, ceding to the
Union jurisdiction over all work in the composing room.
Further, I find that, contrary to the complaint allegation,
the jurisdiction of the Union, or "work of said employees"
was sufficiently identified so as to permit meaningful
collective bargaining.23
Finally, the proposed clause operates as a management-
rights clause, which is discussed below under the heading
of "Good-faith bargaining."
2. Good-faith bargaining
It is not disputed that, largely because of the advent of
the new technology, and the problems attendant thereto,
both parties regarded their initial "jurisdiction"24 propos-
als as the very foundation, the sine qua non, of a working
agreement, upon which all other contract provisions must
rest.
World Publishing, supra, is strikingly similar in many
respects to the instant case, certain contract proposals
made and positions taken by Respondent herein during the
course of bargaining being virtually identical to the facts in
World Publishing. The reasons for the similarities are
readily understandable, both the employer in World
Publishing and Respondent herein having operated under
virtually the identical collective-bargaining agreement, and
both having made the decision to update their respective
newspaper operations with a similar technology.25
In finding that the employer in World Publishing had not
failed to bargain in good faith with the union as alleged,
the Administrative Law Judge, affirmed by the Board,
made certain observations which are also instructive
herein, as follows at 1071:
The General Counsel relies on certain language in
Board cases, quoting language originally uttered in a
circuit court decision, that bad faith can be inferred
from an offer that is so poor that no self-respecting
22 At the hearing Fleming readily admitted that all the jobs enumerated
in the prior contract were then "generally" still in existence and were being
performed by composing room employees. as none had yet been eliminated
by the new technology.
23 Even assuming that Respondent was attempting to remove from the
Union's jurisdiction work which it had previously been granted, it is clear
that Respondent would be permitted to insist upon such limitation of the
Union's jurisdiction, the matter being a mandatory subject of bargaining.
infra.
24 As noted above, Respondent's "jurisdiction" proposal constituted a
union could accept it. This is an interesting and
sometimes helpful observation but by no means has
risen to the status of a doctrine in Board law. The fact is
the law requires that the Employer shall bargain in
good faith with an intention to reach a contract and
history has shown that the ultimate terms of the
contract normally depend on the "muscle," which is to
say the economic power, of one party over the other.
During the years that newspapers could not publish
without the expertise of the composing room employees
represented by the Charging Party, the Charging Party
was able to get contracts that were extremely favorable
to it; contracts that, like the 1972 contract, removed
from the employer any right to determine who its
employees should be and contracts that provided for
the reproduction of material which came into the
employer's hand ready for publishing. But there is no
law that says that when economic power shifts from the
Union to the employer that the employer cannot
retrieve some of the economic benefits that it lost in the
prior contracts. That is the situation here. With the
introduction of the scanner, the Employer was for the
first time physically able to publish a newspaper
without the expert services of the ITU members,
particularly in running its linotype operation, and other
hot metal processes. With the growing automation in
the newspaper industry, Respondent had achieved no-
strike clauses in its contracts with other unions which
enabled it to limit the industrial battlefield to the
members of the ITU.
While Respondent would certainly likewise acquire
bargaining strength as a result of automation, it neverthe-
less was, during the course of bargaining, in a very
vulnerable position, then being involved in an extensive
building program, a lawsuit with OSHA involving allegedly
unsafe linotype machines in the composing room, and
extensive discussions with various manufacturers of com-
ponents regarding the purchase of very technical equip-
ment which Respondent desired to integrate into a
functional system. However, in order to implement the new
technology, Respondent needed to remove potential
obstructions, and pave the way to a smooth transition to
the new equipment and processes which would become
operational not forthwith, but in various stages dunng the
life of the new working agreement. Despite its vulnerable
position, and knowing full well that the Union would be
exceedingly reluctant to relinquish those favorable contrac-
tual provisions which it had acquired through the years.
nevertheless Respondent felt compelled to take a stand, not
for the purpose of undermining the Union, but, as the
record shows, for valid business reasons.
tripartite unit, jurisdiction. and management-rights clause and is hereinafter
considered as such.
25 In World Publishing, the introduction of the "scanner," another type of
front-end system, became the central issue around which the entire course of
bargaining revolved. Respondent in the instant case chose not to use a
"scanner" type of front-end system because of the higher costs involved.
however, both the "scanner" and the terminals which Respondent intend to
use perform the same ultimate function, and thereby eliminate composine
room work.
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus there is no evidence that Respondent, having
armed itself with technological innovations, was motivated
by a desire to destroy the bargaining unit and undermine
the Union's representative status.26 Rather, Respondent
went to great lengths to explain to the Union that such was
not its intention; 27 and there is no record evidence that
Respondent's conduct away from the bargaining table
belied its stated lawful motivation. Nor does it appear that
Respondent was attempting to avoid reaching a collective-
bargaining agreement. On the contrary, it is clear that
Respondent was exceedingly anxious to arrive at an
agreement which would allow a smooth transition to the
new processes. Indeed, observing that no progress was
being made, Fleming repeatedly suggested that the scale
committee obtain the services of an ITU representative in
order to accelerate the bargaining process which had
became stagnate. Finally, Respondent exhibited through-
out negotiations a sincere willingness to consider the
welfare of the unit members, many of whom were longtime
employees, and was not averse to negotiating regarding
methods, such as retraining and job guarantees, whereby
the transition would cause the least economic injury to
members of the bargaining unit.
It is in this light that Respondent's proposed manage-
ment-rights clause must be evaluated. While clearly
defining the unit and setting forth the Union's jurisdiction,
as found above, Respondent has proposed to reserve, as a
prerogative of management, the unequivocal right to
operate its business in what it deems to be the most
efficient and economical manner. A corollary of this, which
the Union finds to be most unacceptable, is Respondent's
intent to reserve to itself the very broad authority to
determine from time to time what work shall be performed
in the composing room.
In Tomco Communications, Inc., 220 NLRB 636 (1975),
the Board discusses the consideration to be afforded
proposed management-rights clauses in evaluating the
conduct of parties during the course of bargaining
negotiations, stating at 636:
It is well established that an employer's insistence
upon a management-rights clause does not, in and of
itself, constitute a violation of Section 8(a)(5) of the
Act.' However, the nature of an employer's proposals
on management-rights and other terms and conditions
of a collective-bargaining agreement are material
factors in assessing the employer's motivations in the
course of collective bargaining. Rigid adherence to
25 Cf. Columbia Tribune Publishing Co., supra; Tomco (ommunicuations,
1I(, infra.
z? See N. L. R. B. v. Lewin-Mathes Compauny, infra.
IN It is highly questionable whether the Union was in fact fearful that
Respondent would remove work historically performed in the composing
room to other areas of Respondent's facility. Thus, although Respondent
stated as specifically as possible what work would not be affected by the
new technology and would therefore continue to remain in the composing
room, the Union did not even request, prior to the impasse, infrau, that such a
verbal commitment he reduced to writing. Further, Respondent was not
reluctant to reduce this commitment to writing, and proceeded to do so
during the latter stages of negotiations. Thus, Respondent's proposal of
March 3. 1976. contains the following under the heading of "Jurisdiction":
When the Employer introduces new electronic typesetting systems such
proposals which are predictably unacceptable to the
union may indicate a predetermination not to reach
agreement, or a desire to produce a stalemate, in order
to frustrate bargaining and undermine the statutory
representative.2
IN. LR.B. v. American National Insurance Co., 343 U.S. 395 (1952).
2 Stuart Radiator Core Manufacturing Co.. Inc., 173 NLRB 125
(1968); Continental Insurance Co. v, N.L.R.B., 495 F.2d 44 (C.A. 2,
1974).
It is therefore clear that a management-rights clause
must be evaluated in conjunction with all other bargaining
proposals and, moreover, the entire course of conduct
during bargaining negotiations, in order to assess the good
faith of a party. International Woodworkers of America,
AFL-CIO, Local 3-10 [Long Lake Lumber Co.] v.
N.L.R.B., 458 F.2d 852 (C.A.D.C., 1972). Obviously, as
argued by General Counsel and counsel for the Charging,
Party, such exclusive retention of authonty could, if abused
by Respondent, theoretically result in the complete
removal of all work heretofore performed in the composing
room, for retaliatory or other reasons, to other areas of
Respondent's facility, thereby eliminating the Union as a
viable collective-bargaining representative. The Union
voiced this alleged apprehension on numerous occasions
during the course of bargaining, and Respondent consis-
tently replied that the Union's fears were unfounded, that
the composing room would always remain in existence,
that certain composing room processes would not be
affected or changed by the new technology, that new
phototypesetting equipment was being placed in the
composing room and would be operated by unit employ-
ees, and that the Union would retain jurisdiction over the
work performed in the composing room.28 However,
Respondent wanted the unfettered right to install the
expensive machinery and processes without being con-
fronted with delays or interruptions which it anticipated
could be caused by the Union's initiation of grievances,
arbitration proceedings, and perhaps lawsuits, based in
part upon ambiguous contract language. Further, Respon-
dent desired to avoid similar potential disruptions after the
new technology became operative. Finally, the work
relating to the front-end system, which work Respondent
intended to assign to employees outside the bargaining
unit, would be, Respondent believed, better performed, for
efficiency and other reasons, by newsroom or ad room
employees rather than by composing room employees. As a
result of these considerations, Respondent chose to reserve
as video display terminals and/or optical character equipment, the
fIllowing w ill be the arrangement for processing the work:
2. Classified: Classified Display Advertising, which cannot be
efficiently handled by the system, shall be processed by employees
covered by this Agreement.
3. Display Advertising: Display ads that require mark-up and/or
paste-up will be processed by employees covered by this Agreement.
4. Typesetting Equipment: The photo-comp typesetting equip-
ment will be located in the Composing Room. It shall be operated and
maintained (if competent maintenance employees are available) by
employees covered by this Agreement.
306
NEWSPAPER PRINTING CORP.
to itself one particular management prerogative; namely,
the exclusive right to determine the work to be performed
in the composing room. And Respondent desired very
broad ongoing prerogatives in this area as a result of
possible production contingencies which apparently could
not be readily anticipated or precisely defined until such
time as a period of actual experience under the new
systems could be evaluated.
Just as the Union had the right, which it exercised during
negotiations, to insist upon contractual language which
would, at least arguably, guarantee the assignment of
certain work to unit employees and which would, Respon-
dent believed, enlarge the Union's jurisdiction to areas
outside the composing room,29 so also did Respondent
have the corresponding right to insist upon contractual
language which would grant it the right to eliminate unit
jobs 30 and assign particular work to whomever it select-
ed.31 Respondent, for valid business reasons, and not for
the purpose of attempting to undermine the Union or
penalizing employees, chose to exercise its lawful rights in
this regard.
It is true that from the outset of negotiations Respondent
was determined to make basic changes in the working
agreement; but "a firm position consistently maintained is
not necessarily evidence of bad-faith bargaining." 3 2 As
stated in N.L.R.B. v. Herman Sausage Co., Inc.:33
If the insistence is genuinely and sincerely held, if it is
not mere window dressing, it may be maintained
forever though it produces a stalemate. Deep convic-
tion, firmly held and from which no withdrawal will be
made, may be more than the traditional opening
gambit of a labor controversy. It may be both the right
of the citizen and essential to our economic legal
system ... of free collective bargaining.
Based upon the foregoing, considering Respondent's
proposed management-rights clause together with the
entirety of Respondent's proposals, I find that Respondent
fulfilled its statutory duty to confer in good faith with the
Union over the effect of automation on the bargaining unit
and upon all other bargainable subjects presented during
the course of negotiations, and that the evidence herein,
viewed as a whole, does not disclose a motive or state of
mind lacking the element of good faith.34
3. The bargaining impasse
The applicable principles of law governing the right of an
employer to institute unilateral changes during the course
of collective bargaining are well established. In Taft
Broadcasting Co., 35 the Board has succinctly set forth these
legal principles and has specified the primary factors or
Z'I See National Woodwork Manufacturing Associatrion 'r. N.I.R.B.. 386
U.S. 612, 642 (1967). International Typographical Union Local 38, et al. v.
N.L.R.B.. 278 F.2d 6. 10-12 (C.A. 1, 1960), affd. in pertinent part 365 U.S.
705 (1961).
:o Town and Country Manufacturing Company, Inc., 136 NLRB 1022,
1027 (1962). enfd. 316 F.2d 846 (C.A. 5, 1963).
:' See N.L. R. B. . American National Ins. Co., supra, N.L.R.B. v. Lecwin-
Mathes Companr. Division of Cerro De Posco Corp., 285 F.2d 329, 331-333
(C.A. 7. 1960); Columbia Tribune Publishing Co.. supra at 551: Teras
Industries, Inc. 140 NLRB 527, 529 530(1963).
:12 Times Herald Printing Company, 221 NILRB 225, 229(1975).
standards to be considered and evaluated in connection
therewith:
An employer violates his duty to bargain if. when
negotiations are sought or are in progress. Ic jnilateral-
ly institutes changes in existing terms and conditions of
employment. On the other hand, after bargaining to an
impasse, that is, after good-faith negotiations have
exhausted the prospects of concluding an agreement,
an employer does not violate the Act by making
unilateral changes that are reasonably comprehended
within his preimpasse proposals. [Footnotes omitted.]
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an impasse
in bargaining existed.
[A]n impasse is no less an impasse because the parties
were closer to agreement than previously, and a
deadlock is still a deadlock whether produced by one or
a number of significant and unresolved differences in
positions.
There is "no fixed definition of an impasse or deadlock
which can be applied mechanically to all factual situations
which arise in the field of industrial bargaining. Nor is
there a rigid formula for assessing so subtle an issue as the
precise time when an impasse occurs." 36
Although matters of serious import other than "jurisdic-
tion" were certainly proposed and discussed at great length
during the course of negotiations, the parties simply have
been unable to resolve their "jurisdictional" differences.
Such was the case early on in negotiations; such was the
case on or about January 21, 1976, when, as I find, the
parties reached a bargaining impasse; such was the case
when on June 11, 1976, General Counsel and counsel for
the Charging Party acknowledge that an impasse was
reached upon the Federal mediator, noting that the
jurisdiction-unit issue constituted the major stumbling
block between the parties, expressed reluctance in continu-
ing to waste taxpayers' money by scheduling additional
meetings; and, apparently, such is the case today.
It appears unnecessary to review in detail the specifics of
the six bargaining sessions prior to February 2, 1976,
described above, which were conducted over a period of
nearly 3 months. While Respondent did not make a written
proposal until the conclusion of the third bargaining
session, it is clear that Respondent's general proposals were
verbally presented to the Union commencing with the
:i3 275 F.2d 229. 231 (C.A. 5. 1960).
34 Omaha Typographical Union. No 190 v. N.LR. B., 545 F. 2d 1138 (C.A.
8, 1976). Times Herald Printing Company, supra; cf. Tomco Communications,
Inc., supra; Columbia Tribune Publishing Co., supra. Palm Beach Post-Tiries,
Division of Perry Publications, Inc., 151 NLRB 1030 (1965).
35 163 NLRB 475, 478 (1967) affd. sub nom. American Federation of
Television and Radio Artists. AFL-CIO, Kansas City Local v. N. LR. B. 395
F.2d 622 (C.A.D.C. 1968).
3a Dallas General Drivers. Warehousemen and Helpers, Local L nion
No. 745. IBT [Empire Terminal Whse. Co. v. N.L. RB. 335 F.2d 842. 845
(C.A.D.C., 1966). affg. 151 NLRB 1359(1965).
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initial bargaining session, and were discussed at length at
the first and all subsequent meetings. The parties had
ample opportunity to discuss, and did discuss, the "juris-
diction" issue and all other issues to the point of stalemate,
and after such discussions no indication of perceptible
movement was exhibited by either party. There is no doubt
that the Union believed that deadlock or impasse had been
reached, as did Respondent. Thus, at the January 21, 1976,
meeting Jobe commented that the scale committee was
powerless to resolve major contract issues and further
stated. "hell, call it what you want, impasse, deadlock or
whatever -- we are, without question locked up on this
thing. We're not making any progress." Later during that
same meeting, after further discussion, additional state-
ments regarding the scale committee's inability to resolve
the key issues and the belief that a bargaining impasse was
reached were voiced by the Union. Such beliefs were
further reiterated by the scale committee during the
meeting of January 28, 1976. And at the meeting the next
day, January 29, 1976, the major issues were again
discussed with no change in the positions of the parties.
At many prior meetings Fleming had requested that the
scale committee seek assistance from the ITU because of
the serious contract issues confronting the parties. At one
point Fleming was told that the Union did not want
International assistance because the International did not
always represent the best interests of the Union. At other
times Fleming was told by Melton or Jobe that they would
talk with and/or had been in communication with the
International. And when Fleming was finally told at the
January 21, 1976, meeting that the local was powerless to
resolve the issues he expressed his disbelief, stating his
opinion that the local, having been in communication with
the International, was simply making unfounded excuses
for failing to exercise the authority which the local body, at
the outset of and throughout negotiations, admitted it
possessed.3 7
Nor was the impasse broken by the scale committee's
belated agreement on January 29, 1976, pursuant to
Respondent's repeated exhortations throughout the course
of bargaining, to finally request assistance from the
International.3 8 At the outset of bargaining the Union
advised Respondent of the Union's complete authority to
negotiate and enter into a new working agreement.
Further, during the course of bargaining the Union had
stated and reiterated that it indeed had been conferring
with the International, thus causing Respondent to believe
that the views propounded by the Union were also the
views of the International. Finally, upon being told that the
scale committee did not have the necessary authority,
Respondent stated its disbelief, and advised the Union that
its alleged lack of authority was merely being used as a
convenient excuse to avoid its real bargaining obligation.
:7 It should be noted that the International is not a party to the
collective-bargaining agreement, the expired contract containing the
following exp anatory language:
This agreement is approved as being in compliance with the laws of
the International Typographical Union, as limited by the Taft-Hartley
law, and the undersigned on behalf of the Executive Council of the
International Typographical Union, hereby pledges as a matter of
Union policy only, its full authority under its laws to the fulfillment
thereof without becoming a party thereto and without assuming any
liability, thereunder.
At that point, Respondent was put on notice that
continued bargaining with the Union would not result in
an agreement. Nor could Respondent have reasonably
believed that negotiating directly with the International
would lead to a different result, as the International, so far
as Respondent knew, had been advising the Union
regarding its bargaining stance during negotiations. Being
confronted with the utter futility of continued bargaining
with the Union, Respondent imposed a deadline, certainly
not unreasonable under the circumstances, requiring the
immediate intervention of the International,3 9 and impress-
ing upon the Union that time was of the essence. Not even
being contacted by the International, and having reached
an impasse with the Union, Respondent chose to put into
effect certain unilateral changes in terms and conditions of
employment as embodied in its letter of February 2, 1976.
Under the circumstances, I find that a bargaining
impasse began on January 21, 1976, and that the impasse
was not broken merely by the Union's belated statement,
shown above to be less than candid, to the effect that it
would seek assistance from the International. Therefore, I
find that Respondent was privileged to make certain
unilateral changes on February 2, 1976, subsequent to the
impasse. See United States Sugar Corporation, 169 NLRB
11 (1968); Taylor-Winfield Corporation, 225 NLRB 457
(1976); Times Herald Printing Company, supra.
4. The unilateral changes
Having bargained in good faith to the point of impasse,
Respondent is thereafter free to make "unilateral changes
that are reasonably comprehended within his pre-impasse
proposals." Taft Broadcasting Co., supra, Bi-Rite Foods,
Inc., 147 NLRB 59, 65 (1964); Taylor-Winfield Corporation,
supra. However, when unilateral changes are made which
are not in line with or reasonably encompassed by the
employer's preimpasse proposals, a violation is established
despite the existence of an impasse. Ace Galvanizing, Inc.,
217 NLRB 144 (1975); Times Herald Printing Company,
supra.
At the initial bargaining session on November 11, 1975,
Respondent advised the Union of what would be incorpo-
rated in Respondent's forthcoming proposals, including
proposals regarding discontinuance of chapel meetings on
company premises, modification of the jury duty provi-
sions of the contract, and reducing the contractual ratio of
apprentices to journeymen. And at the bargaining sessions
of January 14 and 21, 1976, and thereafter, Respondent
voiced its objection to the contractual priority hiring
system, explaining that the complete elimination of the
priority hiring concept was not being proposed; rather,
Respondent was interested in clarifying certain ambiguous
38 Despite the Union's expressed verbal agreement to request bargaining
assistance from the International, the Union's subsequent failure to do so
until receiving the February 2, 1976, letter announcing the unilateral
changes indicates that the Union had no real immediate intention of
summoning International assistance, as agreed.
a3 Respondent expected more than mere intervention by the Internation-
al. namely, some assurance from the International. by telephone or
otherwise, of the prospects of movement which would break the impasse.
308
NEWSPAPER PRINTING CORP.
areas of the procedure which had caused disputes between
the parties in the past.
Respondent, in its written proposal of January 14, 1976,
omitted any reference to the above-mentioned matters, and
the record shows further discussion only of the priority
hiring system during the ensuing course of bargaining prior
to the impasse. I therefore find that it was reasonable for
the Union to believe that such matters, other than the
matter of priority hiring which was discussed subsequent to
Respondent's written proposal, enunciated by Respondent
early in negotiations but not further pursued, were not
thereafter advanced as specific bargaining proposals.
There can be no doubt that the withdrawing of
permission to conduct chapel meetings on company
premises constitutes a serious departure from the prior
specific contract provision and apparently longstanding
practice of permitting such meetings, and that requiring the
Union to hold its meetings elsewhere results not only in
inconvenience but also may result in economic detriment
to the Union, and thereby to the employees.
During the course of bargaining, there was some
discussion about reducing the contractual apprentice-jour-
neyman ratio, and while the Union apparently voiced its
acquiescence in this regard, no such written proposal was
ever advanced. More importantly, however, Respondent
did not even mention, much less propose, during the
preimpasse bargaining, the elimination of the Joint Ap-
prenticeship Committee. Thus, it is clear that not only was
there no reference to proposed changes in the Joint
Apprenticeship Committee in Respondent's contract pro-
posal of January 14, 1976, but Respondent's unilateral
change of February 2, 1976, completely eliminating the
contractual Joint Apprenticeship Committee, goes far
beyond any matter advanced by Respondent during the
course of negotiations.
I therefore conclude that Respondent, by unilaterally
instituting changes in terms and conditions of employment
which go beyond, and were not reasonably comprehended
within, its preimpasse proposals, specifically the matters of
chapel meetings and the Joint Apprenticeship Committee,
has committed violations of Section 8(a)(S) of the Act.40
Ace Galvanizing, Inc., supra; Times Herald Printing Compa-
ny, supra.
While the jury duty language contained in Respondent's
unilaterally established "work practices" letter of February
2, 1976, has been extensively changed from the prior
contract language, the record is not sufficiently clear to
establish that the new jury duty language constitutes a
material departure from actual past practice of the parties,
or whether the language is merely a codification or
clarification of past practice. Therefore, as insufficient
record evidence exists to show that the new language
constitutes a material departure from prior practices, I find
4( Respondent's contention that the language used in its contract
termination/reopening notice to the Union dated October 17, 1975, as
interpreted by an arbitrator. above, thereby privileges Respondent to make
unilateral changes upon the termination of the contract and without having
arrived at impasse is clearly erroneous, particularly where, as here,
Respondent and not the Union is asserting the waiver of the Union's nghts
based upon the self-serving language contained in Respondent's termina-
tion/reopening letter. See Kingsport Publishing Corporation, 165 NLRB 694,
695 (1967), enforcement denied on other grounds 399 F.2d 660 (C.A. 6,
968).
that the necessary burden of proof has not been met to
establish that Respondent, by the institution and imple-
mentation of such language, has further violated the Act.
With regard to the Joint Standing Committee, it is clear
that at the outset of negotiations Respondent maintained
that referral of a grievance to the committee should not
operate as a stay or temporary reversal of a prior
management decision. And in its proposal of January 14.
1976, Respondent preserved its position by proposing that
the particular section of the contract was "open for
discussion and clarification," thereby indicating to the
Union that Respondent had not abandoned its prior verbal
proposal in this regard. It appears that while disestablish-
ing the Joint Standing Committee, Respondent is neverthe-
less not abolishing the underlying grievance procedure,
stating in its February 2, 1976, letter that certain grievances
"will be handled through a grievance procedure identical
with the prior custom, but without arbitration, unless by
mutual agreement." Under the circumstances, the matter
not being fully litigated or briefed, the actual practice of
the parties under the new grievance procedure not having
been established (it seems that Respondent proposed on
February 12, 1976, that the committee would, in fact,
function), and there being other sections of the expired
contract (secs. 6, 34, and 35) bearing on the matter but not
placed into proper context during the course of the
proceedings, I find the record evidence insufficient to show
that the disestablishment of the Joint Standing Committee
constitutes a material departure from the proposals
advanced by Respondent during negotiations. Moreover,
Respondent's refusal to honor provisions of an expired
contract calling for arbitration of grievances, even though
there has not been bargaining thereon, does not violate
Section 8(a)(5) of the Act. The Hilton-Davis Chemical
Company, Division of Sterling Drug, Inc., 185 NLRB 241
(1970).
I find that the other unilateral changes announced in
Respondent's February 2, 1976, letter and thereafter
apparently instituted were privileged, there having been
requisite bargaining proposals and discussion reasonably
encompassing the changes made with regard to substitute
hiring,41 priority hiring, jurisdiction, management rights,
ITU general laws, ITU negotiated pension plan, and
reproduction.
CONCLUSIONS OF LAW
i. Respondent Newspaper Printing Corporation is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Tulsa Typographical Union Local No. 403 is a labor
organization within the meaning of Section 2(5) of the Act.
" I find that although Supervisor Marion Wood impliedly threatened
Chapel Chairman (union steward) Phil Jones with discharge. Wood later
told Jones he meant nothing by it, and such implied threat was made as a
result of Respondent's belief that the Union was blatantly refusing to adhere
to the new, lawfully implemented, work rules regarding substitute hiring,
which had become effective on February 2. 1976. Having found that
Respondent was privileged to make such changes, I find that Respondent's
attempt to enforce the implementing rules by its implied threat to Jones, did
not violate Sec. 8(aX I) of the Act, as alleged in the complaint.
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has bargained in good faith to an
impasse with the Union over the matters of jurisdiction,
management rights, ITU general laws, ITU negotiated
pension plan, priority hiring, substitute hiring, and repro-
duction, and has otherwise not been shown to have refused
to bargain in good faith.
4. Respondent by unilaterally instituting changes in
certain terms and conditions of employment which were
not reasonably comprehended within its preimpasse pro-
posals, namely, the elimination of chapel meetings on
company premises and the disestablishment of the Joint
Apprenticeship Committee, has engaged in and is engaging
in, unfair labor practices in violation of Section 8(a)(5) of
the Act.42
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged in the complaint.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.4 3
Respondent will be required to restore the pre-existing
practices concerning chapel meetings on company prem-
ises, and to reestablish and thereafter permit the function-
ing of the Joint Apprenticeship Committee, as such matters
were applied, operated, and interpreted under the expired
1973-76 collective-bargaining agreement, and as modified
by collective bargaining subsequent to February 2, 1976.
Further, Respondent will be required to post an appropri-
ate notice.
There has been no showing that the Union and/or any
particular unit employees have been economically injured
as a result of such unlawful unilateral changes, such
potential injury being entirely speculative at the present
time. Therefore, I shall leave for the compliance stage of
this proceeding any further remedial provisions, including
reimbursement to the Union for expenses incurred in
holding chapel meetings elsewhere, and backpay and
reinstatement for employees who may have been injured as
a result of the discontinuation of the Joint Apprenticeship
Committee, which further remedies may be determined to
be necessary to effectuate the purposes of the Act.
[Recommended Order omitted from publication.]
12 In subsequent bargaining proposals Respondent agreed to the prior
contract provisions regarding the Joint Apprenticeship Committee, as
proposed by the Union, and Respondent further proposed that chapel
meetings he permitted in the composing room and employees then on duty
be permitted to attend "with permission of the foreman." It therefore
appears that subsequent bargaining has modified Respondent's original
unilateral changes of February 2, 1976, to the extent indicated. There is no
showing, however, that Respondent is now permitting chapel meetings to
take place on company premises or that the Joint Apprenticeship
Committee is now viable, Respondent perhaps taking the position that the
unilateral changes will remain in effect until a new agreement is reached, as
Respondent indicated in its letter of February 2, 1976.
4:1 I do not regard the statements of counsel for the General Counsel and
counsel for the Charging Party acknowledging an impasse to have occurred
on June I 1. 1976, as an implied assertion that the remedy herein should not
be recommended.
APPENDIX A
NEWSPAPER PRINTING CORPORATION'S
PROPOSAL FOR TYPOGRAPHICAL UNION #403
Agreement Section: Remain the same except for date
changes.
Section 3: JURISDICTION
The jurisdiction of the Union and the appropriate unit
for collective bargaining is defined as including only those
employees engaged in all work which the Employer may
from time to time designate to be performed in the
Composing Room. It is the express intention of the
Employer to accomplish his complete production needs in
the manner which he determines to be the most effective
and economical method to fulfill the work requirements.
In the event a computer and related equipment are
located in the Composing Room and such are used for
Composing Room work, the jurisdiction of the Union will
include only input originating in the Composing Room,
but shall not include any input originating outside the
Composing Room. This shall in no event be construed to
be a limitation upon the right of management to cease any
procedure or remove any equipment from the Composing
Room, in the interest of efficiency. The Jurisdiction
referred to herein shall not follow the equipment or
procedures.
Nothing herein shall preclude preparing material to be
sent outside the Composing Room for the making of
photographically enlarged, reduced, screened, or reverse
plates to be incorporated subsequently in copy to be used
by the Publisher.
References to jurisdiction are for purposes of delineating
between the various units of represented employees, not
ownership of work.
Where savings can be realized or quality and consistency
improved, it is agreed that the Employer may put into
practice pre-printing of recurring items including but not
limited to:
(1) Advertising borders, boxes and rules.
(2) Advertising signature cuts, including addresses
and telephone numbers and other material normally
incorporated in the signature.
(3) Typefaces and/or figures which are requested
and/or provided by advertiser.
(4) Standing news, columnists and feature headings,
continued lines, news fillers, masthead, standing boxes
and other similar material.
(5) Want ad and other promotional material.
No duplication of work will be performed between
departments, or employees, and should this occur, the
Employer shall determine who will do the work.
In the event any news, editorial or advertising matter is
received from any source, including but not limited to the
leased wires of AP, UPI, syndicated news features (in
forms such as scanner-ready copy, tapes for CRT and/or
VDT), it is agreed that such matter shall be processed as
directed by the Employer.
310
NEWSPAPER PRINTING CORP.
It is not intended that the Union's jurisdiction include
the addition of creative artwork to reproduction proofs.
Nothing herein shall preclude sending glossy proof to a
customer for the making of photographically enlarged,
reduced, screened or reverse plates by the customer to be
incorporated in copy to be used by the Employer.
Nothing herein shall prevent the Employer from sending
proofs of type to advertisers to be used in advertising
material.
It is further understood that the Employer's right to
perform Research and Development work on the afore-
mentioned equipment and processes with persons not
covered by this Agreement shall not be limited, provided
such Research and Development is not producing live
matter for any publication or printed products for sale by
the Newspaper Printing Corporation.
Nothing in this section shall be construed as abridging in
any manner the right of the Employer at his option to have
installations made by experts, not to interfere with the
temporary services of qualified and experienced traveling
inspectors and repairmen.
Section 4: Eliminate.
Section 5: Remove . . . "who shall be a member of the
Union.". ...
Section 7: Open for discussion and clarification.
APPENDIX B
Mr. Robert Melton, President
February 2, 1976
Tulsa Typographical Union #403
P.O. Box 44
Tulsa, Oklahoma 74102
Dear Bob:
In light of the fact that the contract with your Union
expired by its terms and notification on January 31, 1976,
and pending execution of a new agreement or a corltinua-
tion of the existing impasse, no provision, past practices or
obligations that existed under the prior contract will be
effective.
We announce the following work relationships that will
exist not as a contractual understanding but work practices
as follows:
Wages: Unchanged.
Hours. Work will continue to be performed as
presently scheduled, including lunch periods, holidays,
and vacations.
Working Conditions: It is the express intention of the
Employer to accomplish his complete production needs
in the manner which he determines to be the mo
effective and economical method to fulfill the work
requirements.
In this connection, Management shall exercise the
right to cease any procedure or remove any equipment
from the composing Room, in the interest of efficiency.
No duplication of work will be performed between
departments, or employees, and should this occur, the
Employer shall determine who will do the work.
No provisions of the ITU general laws or any other rules
or bylaws of the International Typographical Union shall
be considered applicable to the work relationships of the
Employer.
There shall be no Standing Committee. Any disciplinary
or discharge case that may arise will be handled through a
grievance procedure identical with the prior customs, but
without arbitration, unless by mutual agreement.
The priority system will only apply when increasing or
decreasing the work force, with competency to perform the
job in question as the determining factor. All situations
shall be staffed only by the Employer. Situations will be
filled and all placements handled exclusively by the
Employer with competency as the highest criterion for
selection and retention.
There will be no Chapel meetings held on the company
premises.
There will be no deductions made for any pension plan.
However, an amount equal to fifty cents for each shift
worked, maximum weekly amount $2.50, shall be included
in checks for each employee for disposition at his
discretion.
There shall be no reproduction work not required by the
Employer.
Jury Duty: Any regular full-time employee required to
serve on jury duty shall be protected against loss of pay due
to such service. This compensation shall be the difference
between the pay received from the Court (as verified by the
Court) and the scale of the employee. This compensation is
applicable only if serving on the jury takes place during the
individual's normal scheduled working hours and shall not
be paid for any time off for which compensation is
forthcoming under this agreement, such as holidays,
vacation or other special pay.
There shall be no Joint Apprenticeship Committee. Any
apprenticeships shall be handled exclusively at the direc-
tion of the Employer.
Funeral pay shall remain unchanged.
The provision of insurance for the loss-of-time will
remain unchanged.
This is not to the prejudice of the use of the collective
bargaining process to reach a new agreement.
Sincerely,
NEWSPAPER PRINTING CORPORATION
/s/ Kenneth S. Fleming
Vice President/General Manager
311