Peoria Journal Star

National Labor Relations Board - Board Decisions

Jun 8, 1979

242 N.L.R.B. 928 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoria Journal Star and Peoria Newspaper Guild Lo-
cal 86 and International Mailers Union, Local 98.
Cases 33-CA-3470-8 (formerly 38-CA-3470-8)
and 33-CA-3470-9 (formerly 38-CA-3470-9)
June 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On February 28, 1979, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the Charging Parties filed ex-
ceptions and a supporting brief, and Respondent filed
a brief in response to the Charging Parties' excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
MEMBER PENELLO, concurring:
I hesitate to expend any further valuable staff time
on this trivial matter,3 but I am impelled to again
I The Charging Parties have excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Product.r, Inc.. 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Chairman Fanning and Member Jenkins do not agree with their concur-
ring colleague. Sec. 3(d) of the Act vests the General Counsel with exclusive
authority to issue complaints. Accordingly, the Chairman and Member Jen-
kins find it inappropriate to "second guess" his exercise of such authority.
Moreo,cr, the importance of the rights involved may be viewed by the one
seeking to exercise them with a perspective different from that in which they
appear in Washington.
' The two Unions involved herein have had collective-bargaining agree-
ments with Respondent since 1938 and 1958 respectively. There is no history
of unfair labor practices by Respondent. There is no allegation that Respon-
dent instituted unilateral changes or otherwise failed to bargain in good
faith, only that Respondent threatened to terminate and cease abiding by the
noneconomic provisions of the contract, i.e., that Respondent stated during
the course of negotiations and in response to questioning by the respective
union representatives that upon expiration of the contract, the economic
protest this Agency's involvement in inconsequential
problems thereby hoping to divert the flow of the
Board's valuable resources from processing charges
through complaint and hearing where the alleged
misconduct is such that no purpose of the Act would
be served by the issuance of a remedial order, to those
involving real deprivations of rights under the Act.
This is not the first time that the Board's depletion of
its time and resources in the formal processing of
trivia has drawn my disapprobation.4 1 wish that it
could be the last. I have indicated in previous cases,
cited in footnote 4 herein, the seriousness of the
Board's burgeoning caseload problem, and can only
reiterate that the diversion of our attention to these
trifles detracts from our ability to provide effective
remedies where they are merited.5
provisions would be "applicable" and the noneconomic provisions would not
be applicable. Respondent did not state or even imply that changes in work-
ing conditions would be made without notice or opportunity to bargain and
in fact in one instance agreed to give a week's notice to any change. Bargain-
ing continued beyond the expiration dates of the respective contracts, no
changes were made or proposed by Respondent, and the parties shortly
thereafter reached final agreements. I heartily agree with the Administrative
Law Judge in dismissing the complaint.
I See my concurring opinions in Untied Stares Postal Service, 242 NLRB
No. 39 NLRB (1979): United Sleel'orkers of America, AFL-CIO (Buc rus-
Erie Compani.), 238 NLRB 177 (1978): Peerless Food Productr, Inc.. 236
NLRB 161 (1978): and note my remarks in Bureau of National Affairs, Inc.,
235 NLRB 8 fn. 2 (1978).
I 1 find my colleagues' response in fn. 2 to be without any foundation
whatsoever. Contrary to the view expressed therein, I am not attempting to
invade the General Counsel's "final authority" under Sec. 3(d) with respect
to the issuance of complaints. Rather, I am discharging the responsibility
committed to the Board by Sec. IO(c) of fashioning remedies that "will effec-
tuate the policies of this Act." This responsibility of tailoring the remedy to
the conduct involved cannot. as the majority implies, be delegated to a par-
ticipant in a particular proceeding. be it the General Counsel. the respon-
dent, or the employee. Where the quantum of misconduct necessary to sus-
tain a violation is o lacking such that no purpose of the Act would be served
by the issuance of a remedial order, the Board should exercise its discretion
under Sec. IO(c) to withhold one, even if under some theory the conduct
should be construed as being in technical contravention of the statute. And.
if the Board refuses to grant a remedy in such cases. it follows that it is
pointless for the General (Counsel to continue to issue complaints under
similar circumstances.
DECISION
SrAIEMENf 01; Ill CASI
RAI.PH WINKI.ER. Administrative Law Judge: Pursuant
to charges filed by Peoria Newspaper Guild, Local 86
(Guild), and International Mailers Union. I.ocal 98 (Mail-
ers), a hearing was held upon a complaint issued by the
General Counsel and an answer filed by Peoria Journal Star
(Respondent).
Upon the entire record, including observation of the de-
meanor of witnesses and consideration of' brief. I make the
following:
FINDIN(S 01 FA(t I
1. BUSINSS OFI RISP()NI)IN I
Respondent is an Illinois corporation engaged in publish-
ing, printing, and distributing newspapers in Peoria. Illi-
242 NLRB No. 139
928
nois. The parties agree and I find that Respondent is an
employer within Section 2(6) and (7) of the Act.
II. THE l.ABOR ORGANIZATION INVOIVtI)
The Guild and the Mailers are labor organizations within
Section 2(5) of the Act.
111. THE UNFAIR ABOR PRACICLS
A. Prelminarin Statcement
Respondent employees hate been represented by unions
since 1858. and it has had about 15 collective-bargaining
agreements with the Mailers since 1938 and some 9 agree-
ments with the Guild since 1958. At no time has the Board
issued unfair labor practice findings against Respondent.
On September 6, 1977,' Respondent timely notified the
Guild in accordance with their then current (1974) contract
that it desired to terminate that contract on November 15
and it also advised the Mailers on September 23 that their
1974 contract would terminate on November 30. Respon-
dent concurrently submitted proposed contract changes to
each Union and it also requested them to contact it to ar-
range mutually convenient dates for renewal negotiations.
Beginning on October 4, Respondent and the Guild then
had approximately 20 bargaining sessions and they reached
a new agreement effective December 16: Respondent met
with the Mailers on nine similar occasions, the first on Oc-
tober 14, and they reached a new agreement effective De-
cember 9.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act because, during negotiations on or about
November 14 and 30, it "threatenled] to terminate and
cease abiding by the non-economic conditions of employ-
ment established by its collective bargaining agreement
with the Unions [Mailers and Guild]." The General Coun-
sel does not allege any bad-faith bargaining violative of
Section 8(a)(5) and he also does not contend that Respon-
dent's aforementioned notices of termination were not law-
fully given in accordance with pertinent contract provi-
sions. The General Counsel further acl'nowledges that
Respondent did not commit any unilateral indiscretions
during the periods between expiration of the respective
1974 contracts and the operative dates of the 1977 agree-
ments.
Guild Negotiarions2
Respondent Vice President Frank Green vas Respon-
dent's principal negotiator, and Guild Vice President Den-
nis Dimond was the Guild's chief spokesman. At the first
negotiating meeting on October 4, a bargaining team of 22
guild representatives and members appeared (some appar-
ently as observers) and Respondent representatives said
that this was an "unwieldy" number and would make nego-
All dates are in 1977 unless indicated otherwise.
2 The General Counsel sought to establish his guild case almost entirely on
the basis of transcribed notes of meetings taken by Judy Howard. the Guild's
secretary. Howard had no independent recollection of the entire meetings
and she also testified that she possibly was not able to record es erN thing that
was said on these occasions.
PEORIA JOURNAL STAR
tiations "confusing." During this discussion, Respondent
representatives stated that the contract would terminate on
November 16 and that it therefore "behooves you [the
Guild] to bargain in good faith." At the second meeting on
October I1, and before addressing various proposals for
contract changes, Green reminded the Guild representa-
tives that their contract would "no longer be in force" after
November 15. Dimond inquired what action would be
taken should the parties not reach a new agreement by that
date. and Green replied, "You will find out at that time."
The parties held their third session on October 13, at which
time the Guild presented union proposals to Respondent.
Green remarked that the parties "have a long way to go to
get an agreement" and stated with reference to the Novem-
ber 15 expiration date of the contract, "We only have about
a month to work out an agreement." Dimond again asked
what will happen if the parties do not conclude negotiations
by November 15. and Green replied that "We will advise
you on that date." Dimond then asked whether Respondent
was "holding this over our head as a threat?" Green re-
plied. "No No Not a threat at all." but that "We will have
to decide when November 15 gets here." Dimond com-
mented, "Oh, you have no plans at this time," whereupon
Green suggested that the parties set up futher meetings and
that longer sessions be held.
The parties held their 14th session on November 14. and
at this meeting Guild Representative Luis Montanez asked
Green what Respondent would do when the 1974 contract
terminated on November 15. Green replied that the eco-
nomic provisions of the contract would be "applicable" or
"remain as present" and that the noneconomic provisions
would "not [be] applicable." At Montanez' request, Green
indicated which provisions of the 1974 contract were eco-
nomic and which were not. Green stated at the time that
"we don't feel that we have to be governed by any part of
the agreement that is not applicable," and he went on to say
that Respondent reserved the right to make changes after
November 15, but that it would give the Guild one week's
notice of any change in either economic or noneconomic
conditions.
Respondent and the Guild had six more bargaining ses-
sions after the November 14 meeting and, so far as the
record indicates, nothing further was discussed concerning
the impact of the 1974 contract's termination. They eventu-
ally reached agreement effective December 16 and, as also
indicated above, Respondent made no economic or noneco-
nomic changes during the period between operative con-
tract terms.
B. Mailers Negotiationv
Vice-President Green and Personnel Director Jerry Lipe
were principal spokesman for Respondent at the Mailers'
first bargaining meeting on October 14. Mailers' President
Gene Dellinger was the Union' chief negotiator. Lipe re-
minded the Mailers' representatives at the beginning of this
session that their 1974 contract would terminate on Novem-
ber 30. The following colloqu then occurred:
Dellinger: I have a question on that. We have had
the same expiration date for several years nows and
there have been a few times we have had to go past the
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I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD
deadline. The contract has always been extended on
those occasions. Are you saying that won't be the case
this time?
Lipe: The contract terminates on Nov. 30 as stated
in your letter.
Dellinger: Well, are you threatening us with a lock-
out?
Green: Wait a minute. We're not threatening you
with anything. It behooves us to terminate the contract
on the deadline date. We haven't said what our course
of action will be at that time.
Dellinger: In the past. we have always extended and
we have always been able to get retroactvity.
Green: Retroactivity is a negotiable item this time.
Dellinger: If we can't reach an agreement by Nov.
30, what will happen?
Green: You received notification of the termination
date in a letter. We're not threatening you. We'll have
to see what happens.
At subsequent bargaining sessions, Respondent's negotia-
tors made passing comments to the effect that the parties
should move along with their negotiations as their contract
would terminate on November 30. Responding to Dellin-
ger's questions at a negotiating meeting on November 30,
Green said the contract would terminate that night in
which event monetary sections of the contract would "re-
main applicable" and nonmonetary items would not be ap-
plicable. At the Mailers' request, Green then indicated
which provisions of their 1974 contract were "applicable"
and which were not.
No further mention of the contract's termination was
made at the four subsequent negotiating sessions, and, as
indicated above, the parties reached a new agreement effec-
tive December 16 and Respondent had not proposed or
made monetary or nonmonetary changes during the con-
tractual hiatus.
Concluding Findings
The General Counsel contends that Green's statements
at the November 14 meeting with the Guild and the No-
vember 30 meeting with the Mailers constituted threats to
make unilateral changes in "non-economic" working condi-
tions. This is particularly so, the General Counsel asserts, in
view of Respondent's repeated mentioning that the con-
tracts would respectively terminate on November 15 and
30. Although the General Counsel states that "Pressuring
the employees through the vague statement that the con-
tracts would terminate was not an unfair labor practice," he
never leless describes this as a bargaining tactic approach-
ing "brinksmanship." And, according to the General Coun-
sel, "when Respondent went beyond its early statements
that the contract would terminte and stated that non-eco-
nomic provisions were inapplicable and that it would oper-
ate without regard to them, it stepped over the brink."
Upon expiration of a contract, an employer may not
except as to certain matters, union security, for example
unilaterally change terms and conditions of employment.
This generally means that an employer in that situation
must advise the affected union of proposed changes and
then discuss such proposals with the union at the latter's
timely request before implementing any changes. Medi-
c'nler. Mid-South Hospital. 221 N LRB 670, 678 (1975): Sir
James, inc., 183 NLRB 256, 259 (1970): Kingsport Publish-
ing (Corporation, 165 NL.RB 694, 696 696 (1967). The issue
therefore is whether the record preponderantly establishes
that Respondent. when it said that certain conditions would
not be "applicable," threatened to change those conditions
without notice to the Unions and without offering them
timely opportunity to bargain concerning any proposed
changes.
The word "applicable" used by Respondent in negotia-
tions is hardly a word of art and I cannot be certain pre-
cisely what thoughts were conveyed or intended to be con-
veyed. Respondent, as best as I can interpret, was saying
that "non applicable" conditions would be subject to
change, but in the circumstances I do not consider it rea-
sonable to find that Respondent was also saying or imply-
ing that specific conditions would be changed without fur-
ther notice to the Guild or the Mailers and without first
giving these Unions an opportunity to discuss the matter. In
the guild negotiations. Green in fact said he would give the
Union one week's notice of any change.
In the context of this case, and mindful of strictures
against "microscopic examination" of negotiations partic-
ularly in situations involving long and apparently successful
relationship between the parties3 - I conclude that the rec-
ord does not preponderantly establish that Respondent
threatened to make the unilateral changes alleged in the
complaint.
CO()N(IUSIONS OF LAW
I. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Guild and the Mailers are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent did not, in violation of Section 8(a)(1) of
the Act, threaten to make unilateral changes in conditions
of employment.
Having determined that Respondent has not engaged in
the violations alleged in the complaint, and pursuant to
Section I0(c) of the Act. I hereby issue the following recom-
mended:
ORDER4
The complaint in this matter is dismissed.
1 VL...R B v. Frontier Hornes (orporation., 371 F.2d 974, 977 978 (8ih ('ir.
1967) 7he MAasilbn PubliLhing (n5opam, 212 NLRB 869 (1974). ( Union
Elerric Compaim, 196 N IRB 830 (1972.
In the event no exceptions are filed as provided hb Sec. 10246 of the
Rules and Regulati'nls of the National l.abor Relations Board. the findings.
conclusions. and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted b the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived ftr all purposes
930