Perry Publications, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1965

151 N.L.R.B. 1030 (N.L.R.B. 1965)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Palm Beach Post -Times, Division of Perry Publications, Inc.,
and West Palm Beach Typographical ' Union No. 709; Interna-
tional Typographical Union , AFL-CIO
Pensacola News Journal , Division of Perry Publications , Inc. and
Pensacola Typographical Union No. 293, International Typo-
graphical Union, AFL-CIO
Perry Publications , Inc., Palm Beach Post -Times and Pensacola
News Journal Divisions and West Palm Beach Typographical
Union No. 709 and Pensacola Typographical Union No. 293, In-
ternational Typographical Union AFL-CIO. Cases Nos. 12-
CA-2698(1-2), 12-CA-2786, 12-CA-2787 and 12-CA-2787-2.
March 24, 1965
DECISION AND ORDER
On November 5, 1964, Trial Examiner Thomas S. Wilson issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent did not
unlawfully discharge Melba Mai Miller, as alleged in the amended
complaint, and recommended that that allegation be dismissed.
Thereafter, the Respondent, the General Counsel, and the Charging
Parties filed exceptions to the Trial Examiner's Decision, and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
'record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
exceptions, additions, and modifications.'
'The Respondent has requested oral argument . Because, in our opinion , the record
and briefs adequately set forth the Issues and positions of the parties , this request is
hereby denied.
The Trial Examiner dismissed an allegation insofar as it related to "Dewey Wallace,"
referred to in the record as Dempsey Lovelace. As no exception has been taken thereto,
we' adopt the Trial Examiner 's dism1ssal"in' this'resjectpro forma.
151 NLRB No. 114.
PALM BEACH POST-TIMES, ETC. 1031
1. We agree with the Trial Examiner that the Respondent. (1)
refused to bargain in good faith with the Unions in violation of
Section 8(a) (5) ; (2) unlawfully discriminated against John A.
Dulin, John Jensen, George Venis, Connie Highfield Ellzey, and
Ralph Weymark in violation of Section 8(a) (3) ; and (3) threatened
employees with reprisals for union adherence in violation of Section
8(a) (1), as more fully set forth in the Trial Examiner's Decision.
2. The Trial Examiner concluded that the Respondent discharged
Melba Mai Miller because of "her admittedly low production and
not because of her union membership or activity. . . ." However,
the Trial Examiner admitted that he entertained "rather grave
doubts" as to this conclusion because of "the fact that the Respond-
ent was engaged in eliminating union TTS operators such as
Miller and replacing them with nonunion computer typists. . . ."
In addition, the Trial Examiner found that, although "Miller
received the same telegram on November 9 asking her to return
to work as all other employees did, she, unlike the other employees,
was offered reinstatement to her job only upon her passing a pro-
duction test. . . ." In making this finding, the Trial Examiner
was factually in error. The Respondent's telegram of November 9
offering Miller reinstatement made no reference to her passing a
production test. Like the other offers, this offer of reinstatement
was conditioned only upon her reporting for work within 48 hours.
Furthermore, although such a condition had been imposed a week
earlier, it does not appear that the Respondent did, in any other
way, indicate that passing such a test was then a condition of re-
instatement. Based thereon, and based on the facts otherwise found
by the Trial Examiner, particularly Miller's long service record,
the accuracy of her work, the Respondent's threats of reprisal
for union adherence, the secrecy in which the Respondent conducted
a check of Miller's production rate, the timing of the discharge
within about 1 week after the Respondent had expressed irritation
concerning union-filed unfair labor practice charges, and the fact
that the discharge was made without prior warning to Miller, we
are persuaded that the Respondent used Miller's low production
record as a pretext to rid itself of her because of her union member-
ship. Accordingly, we find that, by discharging Miller, the Re-
spondent violated Section 8(a) (3) and (1) of the Act. To remedy
this unlawful conduct, we shall require the Respondent to rein-
state Miller with backpay.
3. The Trial Examiner also found that the Respondent reduced
the wages of employees generally, and specifically the wages of
John Jensen, without giving advance notice to the Union and
affording it an opportunity to bargain with respect thereto. The
Trial Examiner recommended that the otherwise normal backpay
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
award for Jensen include the amount of the pay reduction suffered
by him prior to his unlawful discharge. We adopt these findings
and this recommendation. However, the Trial Examiner failed
to make any specific findings or any recommendation with respect
to employees James Shiver and Herman Goeffert who likewise
suffered a unilateral reduction in pay.' Thus, without prior notice
to the Union, the Respondent discontinued certain overrides of
$2.33 a week for Goeffert and $1.35 a week for Shiver for additional
duties performed. Although continuing to require them to perform
such additional duties, the Respondent did not pay the override to
Goeffert for six weekly pay periods and, in the case of Shiver,
from about the middle of July 1963 to the time of the strike in
November 1963. Accordingly, we shall require the Respondent to
reimburse Geoffert and Shiver, as well as Jensen, for the pay lost
by them as the result of the unlawful unilateral reductions in
pay, together with interest thereon at the rate of 6 percent per
annum. We shall also require that Jensen, Goeffert, and Shiver be
restored to the pay classification enjoyed by each of them just prior
to such unlawful conduct.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts as its Order the Order recommended
by the Trial Examiner and orders that the Respondent, its officers,
agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as modified hereinafter :
1. Paragraph 1(c) of the Recommended Order, and the fourth
indented paragraph and the last paragraph before the signature
in the notice, are amended by deleting therefrom the following
words : "except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act."
2. Paragraph 2(a) of the Recommended Order is amended as
follows : Insert "Melba Mai Miller" following the name "George
Venis".
3. Paragraphs 2(b), (c), (d), (e), and (f) of the Recommended
Order are redesignated 2(d), (e), (f), (g), and (h), respectively,
and two new paragraphs designated 2(b) and (c) are included as
follows :
"(b) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
PALM BEACH POST-TIMES, ETC. 1033
"(c) Make whole John Jensen, James Shiver, and Herman Goef-
fert for moneys lost as the result of the Respondent's unilateral
reduction of their wages, and restore them to the pay classification
which they enjoyed just prior to the reduction in their pay."
4. The notice is also amended by inserting therein as the sixth
full indented paragraph the following :
WE WILL reimburse John Jensen, James Shiver, and Herman
Goeffert for moneys lost by each of them as a result of an
unlawful reduction in pay, and we will restore them to the pay
classification which they enjoyed just prior to the reduction
in their pay.
5. The notice is further amended by inserting, at the end of the
paragraph which will then follow the above paragraph, the name
of "Melba Mai Miller".
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed by Local 709 in Case No. 12-CA-2698 on July 29, 1963,
and amended on September 26, 1963, and in Case No. 12-CA-2786 on November 12,
1963, and upon charges duly filed by Local 293 in Case No. 12-CA-2787 on
November 12, 1963, and further upon charges duly filed by both said locals in
Case No. 12-CA-2787-2 on December 12, 1963, the General Counsel of the
National Labor Relations Board, hereinafter called the General Counsel' and the
Board, respectively, by the Regional Director for Region 12 (Tampa, Florida),
issued its amended complaint 2 dated March 11, 1964, against Palm Beach Post-
Times, Division of Perry Publications, Inc., Pensacola News Journal, Division of
Perry Publications, Inc., and Perry Publications, Inc., Palm Beach Post-Times, and
Pensacola News Journal Divisions, herein called the Respondent. The complaint
alleged that Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and
Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended,
herein called the Act. Copies of the charges, complaint, amended complaint, and
notice of hearing thereon were duly served upon the Charging Parties and
Respondent.
Respondent duly filed an answer admitting certain allegations of the amended com-
plaint but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at West Palm Beach, Florida,
from April 21 through May 5, 1964, inclusive, before Trial Examiner Thomas S.
Wilson. All parties appeared at the hearing, were represented by counsel, were
afforded full opportunity to be heard, to produce, examine, and cross-examine
witnesses, and to introduce evidence material and pertinent to the issues, and
were advised of their right to argue orally upon the record and to file briefs and
proposed findings and conclusions or both. Oral argument at the conclusion of
the hearing was waived.
Time for filing briefs was originally set for June 9, 1964. Numerous extentions
of time for said filing of briefs, requested by all parties, were granted. Timely
briefs were received from General Counsel and Respondent on August 17, 1964.
Charging Party's brief was received on August 24, 1964, 1 week overdue. By
telegraphic order dated August 24, 1964, I accepted Charging Party's brief despite
the late filing with permission to Respondent to file a reply brief by September 1,
'This term specifically includes the attorney appearing for the General Counsel at
the hearing
213y order dated January 31, 1964, the Regional Director ordered the cases above noted
to be consolidated for hearing. By order dated February 18, 1964, Trial Examiner Wil-
liam Seagle denied Respondent's motion to sever said cases. Permission to appeal this
ruling was denied by the Board on March 10, 1964. At the commencement of the hearing
Respondent renewed said motion to sever which I denied.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964, which was by subsequent order extended to September 8, 1964. Respondent's
reply brief was received on September 8, 1964. All briefs have been duly considered.
Upon the entire record in the case,3 and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Perry Publications, Inc., is now, and has been at all times material herein, a
corporation duly organized under and existing by virtue of the laws of the State
of Florida. During the last 12 months Perry Publications, Inc., in the course and
conduct of operating and publishing various newspapers throughout the State of
Florida, including the Palm Beach Post-Times in West Palm Beach, Florida, and
the Pensacola News Journal in Pensacola, Florida, had a gross volume of business
in excess of $500,000 and holds membership in and subscribes to various interstate
news services such as Associated Press and United Press and also advertises within
its publications nationally sold products.
The complaint alleged, the answer admitted, and I find that Respondent is now,
and has been at all times material herein, an employer engaged in commerce within
the meaning of the Act.
II. THE UNIONS INVOLVED
West Palm Beach Typographical Union No. 709 and Pensacola Typographical
Union No. 293, International Typographical Union, AFL-CIO, are labor organiza-
tions admitting to membership employees of Respondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The facts
a. Pre-Section 10(b) negotiations at Post-Times
On November 30, 1960, the existing collective-bargaining agreement between
Local 709 and Respondent at the Post-Times expired by its own terms. At the time
of the expiration of this agreement 4 Respondent Labor Relations Consultant Brady
Lemons told the Local 709 scale (negotiations) committee that the contract would
remain in effect until a renewal agreement was consummated.
8 There having been no objections to Charging Party's August 12, 1964, motion to
correct record, the same Is hereby allowed.
* In addition to his position as labor relations consultant for Respondent, Lemons was
personnel manager for the Post-Times. As labor relations consultant, Lemons was in
charge of union negotiations at each of Respondent's numerous papers
At the hearing Respondent maintained that, in the negotiations material here, Lemons
was responsible to the editor of the respective paper for whom he was at the time negotiat-
ing, the implication being that these editors held the ultimate authority. Since 1961
the facts indicate the contrary.
In the 1961 negotiations at the News Journal In Pensacola the facts indicate that its
editor, Braden Ball, did In fact exercise his then authority and executed the negotiated
agreement which Lemons was then at least hesitating over. After the News Journal be-
came a division of Respondent In July 1962, Local 293 was Informed that It was to take
all labor problems to Lemons and/or General Manager Grice of the News Journal instead
of to Editor Ball.
The evidence further proved that In labor relations Grice was an unnecessary factor
as in 1963 all the serious negotiations regarding the News Journal were carried on by
Lemons alone in West Palm Beach from October 28 to the strike on November 9. Thus
it appears that the News Journal had little, If any, authority over Lemons In the negotia-
tions with Local 293. Grice's absence might indicate that It was known that no agree-
ment with Local 293 would be consummated.
Perhaps, however, this whole question Is merely a problem In semantics. Lemons was,
of course, responsible to the Perry Publications, Inc., and its board of directors consist-
ing of President John Perry and Vice President Braden Ball, editor of the News Journal,
and Cecil P. Kelley, Sr., editor of the Post-Times.' Thus obviously the editors did exer-
cise some control as members of the board of directors.
PALM BEACH POST-TIMES, -ETC. 1035
This expired contract contained in its article I the following sections reading in
pertinent part as follows:
SECTION 1. Party of the first part hereby recognizes the party of the second
part as the exclusive bargaining representative of all employes covered by
this agreement. The word "employe" and "employes" when used in this con-
tract apply to journeymen and apprentices.
SECTION 2. All composing room work 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.
SECTION 3. Jurisdiction of the Union and the appropriate unit for collective
bargaining is defined as including all composing room work and includes clas-
sifications such as: Hand compositors; typesetting machine operators; makeup
men; bank men; markup men; lineup and lockup men; stonehands; proofpress
operators; machinists for typesetting machines; operators and machinists on
all mechanical devices which cast or compose type, 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, Filmotype, Typro, and Hadego);
employes engaged in proofing, waxing and paste-makeup with reproduction
proofs, processing the product of phototypesetting machines, including develop-
ment and waxing; pastes-makes of all type, hand-lettered, illustrative, border
and decorative material constituting a part of the copy; ruling; photo-proofing;
correction, alteration, and imposition of the paste-makeup serving as the com-
pleted copy for the camera used in the platemaking 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 or effort. The Employer shall make no
other contract covering work as described above, especially no contract using
the word "stripping" to cover any of the work above mentioned.
The employers agree to supply full opportunity to journeymen or apprentice
members of the union to become proficient on paste makeup and its attendant
processes on adequate equipment and the union agrees to supply partially trained
journeymen or apprentices for that purpose.
John Perry, Respondent's president, is somewhat of a mechanical genius who
was intrigued with the idea, publicly expressed, of automating his chain of news-
papers to the ultimate. He is one of the leading exponents of automation in the
newspaper field.
Consequently the Post-Times began experimenting in 1960 with the cold type
(photographic) method of printing. Perry himself was the inventor of a photo-
composing machine known as the Perry Ad Setter. This machine was originally
set up in the composing room along with its preliminary pasteup operations. Although
being used somewhat in an experimental capacity at this time, the operation of the
Ad Setter and its preliminary work was being done by union members engaged in
composing room unit work. At this time both Respondent and the Union considered
that work to be included within the Union's jurisdiction.
By April 1961, Lemons or Respondent and the scale committee of Local 709
had reached agreement on all terms of a new contract except wages when Lemons
proposed that the Post-Times be changed from a two chapel operation to a one-
chapel operation.
The change to a one-chapel system was ready to go into operation on May 7, 1961,
when Lemons requested further negotiations upon this change with the scale
committee.
On July 31, 1961, while these further negotiations were still pending, Lemons by
letter notified Local 709 that the existing contract as orally extended was canceled
by Respondent.
Sometime in August 1961 the Perry Ad Setter was removed from the composing
room and the acknowledged unit employees who had been doing that work were
transferred to other unit work. The Ad Setter was moved to the dispatch room
where it was continued in operation but with newly hired nonunion employees.
Occasionally during this period some pasteup employees from the composing room
would be assigned to assist those employees in the dispatch room who were doing
the preparatory work for the machine. Although the preparatory work in the dis-
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patch room was exactly the same as the pasteup work in the composing room, the
term "offset preparatory" came into use by Lemons to describe the work of those
doing this work in the dispatch room.5
At another scale committee meeting in August 1961 with the contract canceled,
the one chapel operation seemingly agreed upon and everything in the renewal!
contract decided except wages, Lemons introduced four brand new proposals: (1)
a management rights clause ; ( 2) a foremen 's clause; ( 3) a new clause in the joint
standing committee , or arbitration , clause; and (4) a further modification of the
one chapel plan. From that time until the middle of 1962 these four new proposals
in large part engaged the attention of Lemons and the scale committee of Local 709.
In January 1962 Respondent ordered from RCA a computer with which it
planned to further Perry's intention to automate the newspapers.
In October 1962 this computer was installed in Respondent's Post-Times build-
ing. Respondent and RCA worked out programs for straight matter and advertising
for the paper as well as for accounting purposes . New employees were hired and
began training as programers , console operators , and computer typists 6
The computer has been called a "machine with a brain." As it is being used by
Respondent , it is no exaggeration to say that the computer is revolutionizing the
newspaper industry.
Among other remarkable feats, the one of most immediate concern here is that
the computer has been taught (programed) to "justify" tape. This, to the layman,
means spacing the type in a newspaper column with even identation on the right and
on the left of the column. For some years newspaper type has been set automatically
by the teletypesetter machine electrically set in motion with perforated tape punched
out on machines looking like an ordinary typewriter by typists referred to as TTS
operators. In this operation the TTS operators not only typed the copy but also
"justified" it as the operator typed. This operation was known as punching justified
tape. It was a highly skilled and, due to the mathematical calculations necessary,
somewhat slow operation.
With the computer taught to justify electronically, Respondent introduced at the
Post-Times a machine referred to as the "gutless wonder" which was in fact merely a
simplified TTS machine, simplified by the removal of the spacing devices necessary
to justify the tape. With the introduction of the "gutless wonder" Respondent began
employing new personnel who perforated tape by straight copying of material
given them without attempting to justify the same, i.e., punching unjustified tape.
This unjustified tape was run through the computer which automatically justified it
for subsequent use in operating the Linotype machine. The Respondent referred to
these unjustified tape perforators as "computer typists." Except in rare instances
the computer thus eliminated Respondent's need for TTS (justified) perforators.
The record shows that in less than a year's time Respondent reduced the number of
its union TTS operators from approximately 25 to 5 of less, while hiring some
18 or 20 nonunion "computer typists," many of whom were employed on accounting
or bookkeeping work.
In addition RCA and Respondent taught the computer accounting and bookkeeping
so that at the time of the hearing the computer in the Post-Times building in West
Palm Beach was doing the centralized bookkeeping and accounting, as well as pay-
roll work, for Respondent's wide-flung operations in the State of Florida through
high speed transmission of unjustified tape from those offices. Automation was well
on its way.
Early in 1963 Respondent's News Journal in Pensacola installed four or six
unjustified tape perforating machines and began training "computer typists." The
News Journal had no computer then and has none today. But the plan then and
now in effect was to transmit the unjustified tape perforated at the News Journal in
Pensacola to the Post-Times in West Palm Beach by high speed Data Speed Trans-
6 In his testimony Lemons claimed that he had assured Local 709 that when the Perry
Ad Setter became fully operational , it would be operated by a union journeyman. He
made no such claim in regard to the so -called "offset preparatory" employees although
acknowledging that by February 1962 he knew the Union was claiming them as unit
employees. -
At the hearing Local 709 contended , without contradiction from Respondent , that the
preparatory work, whether called "pasteup" as was done for the hot type process or
called "offset preparatory " for the cold type process , was in fact identical.
O At this time computer operations in newspapers were novel , although not unique
Hence even the terminology used in regard to job classifications on computer work were
indefinite , uncertain , and subject to confusion.
PALM BEACH POST-TIMES, ETC. 1037
mitter, justify the straight matter tape for the newspaper through the Post-Times
Computer, and return the justified copy again via Data Speed Transmitter to the
News Journal where it was used in its own teletypesetter machines for publication
in that day's paper in Pensacola. The News Journal accounting, bookkeeping,
and payrolls were similarly transmitted to and from West Palm Beach computer.
Actually when all the electronic devices have been installed, one girl typist on an
unjustified tape perforating machine at the Post-Times building in West Palm Beach
could be setting news type in each of Respondent's many newspapers in Florida.
In addition Perry planned and now has apparently been able to centralize the whole
accounting operations for his many publications in West Palm Beach by use of the
computer and the Data Speed Transmitter. This, of course, requires that each office
has its own computer typists doing accounting work.
Hence the so-called "computer typists" perforating type has become a most impor-
tant element in the Perry newspaper empire, both in the composing room and in the
accounting department.
Although the scale committee of Local 709 had been claiming the computer typists,
programers, console operators, and "offset preparatory" employees as part of its unit
doing "composing room work" under the terms of the expired contract since at least
February 1962 to Lemons' knowledge, at the September 1962 scale committee meet-
ing Lemons proposed a new article I, section 3, which specifically excluded these
classifications from the Union's jurisdiction. This put the jurisdictional conflict into
writing.
Local 709 rejected Lemons' jurisdictional proposal contending that all these classi-
fications were doing composing room work and were thus included within the unit
under the jurisdictional language of the old contract. Local 709 furthermore com-
plained that Respondent was deliberately hiring nonunion outsiders for each of these
classifications instead of giving union employees the opportunity to work therein. At
the hearing Lemons testified that he informed the scale committee at that time that
unit employees were as free to apply for such jobs as anyone else.?
From this time on the argument between Lemons and the scale committee of Local
709 over the jurisdiction of the programers, console operators, computer typists,
and the offset preparatory employees remained continuous and constant until Novem-
ber 5, 1963, at least.
In November 1962, without consulting Local 709, Respondent gave a 6-cent per
hour increase to the employees of the Post-Times.
b. Preliminary negotiations at Post-Times after January 29, 1963
The computer at the Post-Times went into full-scale operation in January 1963.
About the same time the nonunion photocomposer and the nonunion offset prepara-
tory employees were once again returned to the composing room from the dispatch
department and again worked side by side with the union composing room employees
and particularly with the union paste makeup employees.
As early as January 30, 1963, Local 709 requested a list of Respondent's employees
performing work within the Union's jurisdiction at the Post-Times. On February 6
Lemons furnished the Union with a list of unit employees which excluded all pro-
gramers, console operators, computer typists, and offset preparatory employees.
When these omissions were called to his attention, Lemons stated, as he was fre-
quently to do subsequently, that these four classifications of employees were not
doing work within the Union's jurisdiction.
At the union meeting held on the first Sunday in April 1963, Post-Times employee
Milton Wickles was nominated to run for the presidency of Local 709 against encum-
bent President Louis Dolce who had held the office for 2 years. At this same meeting
.employee John M. Jensen was nominated for the position of vice president. From
that time until the election held in the middle of May Wickles and Jensen, as a
team, campaigned on a platform of more active unionism in the paper and to cut the
"pipeline" to Local 709 which they contended Lemons had through Dolce. During
half of Dolce's administration the Union had had no contract, oral or otherwise,
with Respondent and what few grievances had arisen were handled on a person-to-
7 The facts tend to belie this statement. Of some 20 TTS operators employed at
the time of the installation of the computer only 4 or 5 remained 1 year later although
each of them could operate a "gutless wonder." Respondent preferred nonunion em-
ployees At the hearing Respondent attempted to corroborate Lemons' contention as to
console operators but it developed that the only two unit employees tested for the console
.operator 's job happened to be known to be nonunion.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person basis between Lemons and Dolce, meetings which Dolce testified were "not
necessarily" kept secret, and in the absence of the Local 709 joint standing (grievance)
committee
About the time of Wickles' nomination, William L. Hooper, a long-time union
member who was then foreman of the composing room and an admitted supervisor,
mentioned to employee Max H. Wontenay, father-in-law of Wickles, that he, Hooper,
did not think it was a "good idea" for Wickles to run for president "because if he
did run and make it, he [Wickles] would get himself in trouble at the Post-Times."
At the election of May 15, 1963, Wickles and Jensen were elected, respectively,
president and vice president of Local 709. They were installed as such officers on
June 2, 1963.
In the meantime on April 21, makeup employee John Dulin, a former officer of
Local 709, pied a page of classified advertising. Two days later Hooper discharged
Dulin.8
In the latter part of May 1963, even before the installation of the new officers,
Local 709 filed certain charges of unfair labor practices against Respondent.
On or about June 1, 1963, Lemons telephoned International Representative Joe
Bingel. During this telephone conversation Lemons told Bingel of the fact that a
new machine known as the Photon 513 was about to be delivered and installed at
the Post-Times and that its installation would probably result in the elimination
of about 24 "situations" (jobs) in the composing room. Lemons also remarked that
he had just read the charges filed by Local 709, that they were the "silliest" or "most
ridiculous" that he had ever read. Lemons added that he had intended to eliminate
the 24 positions by attrition but that, if Local 709 continued as it was then doing,
he might have to eliminate those situations by September.9
At or about this same time Respondent's Doyan Dacus, who became the Post-
Times mechanical superintendent in April, unilaterally announced a change in the
classification of certain machinists to the classification of "machinist-operator" with
a resultant loss in pay of $4.35 per week. When Fred Morris, head machinist and
supervisor, reported that two of his machinists were refusing to accept this job
reduction, Dacus said "as soon as they learn that this is an open shop and will stay
an open shop, the better off they will be." Dacus then went out and discharged the
two machinists.
This change in classification admittedly was not negotiated-or even discussed-
with Local 709. Dacus merely announced the change.
On June 19 the pay of John Jensen, one of the machinists affected by Dacus'
order, was reduced by $4.35 per week. These unilateral changes were made the sub-
ject of grievance by Local 709.
About the same time Dacus also told Morris that "the Company was getting tired
of [unfair labor practice] charges being brought against them every time they made
a move, that they were going to clean house and get rid of the troublemakers."
Ross E. Rankin, chapel chairman and a member of the scale committee of Local
709, had a conversation with Morris in early June about these unilateral changes in
which Morris, a union member, quoted Dacus as having told him that "the Company
was going to go ahead and make these changes, make a clean sweep-they were
going to keep who they wanted and let go who they did not want regardless of the
Labor Board charges, the Union, or our [union] priority "
Morris also told John Hryhor, secretary-treasurer of Local 709 and a former com-
posing room foreman at the Post-Times, that the filing of unfair labor practice
charges "was upsetting to the Company" and suggested that the Union should stop
filing such charges. Morris also said on that occasion that "the previous firing of
active members of the Union did not rid it of the troublemakers and the Company
was planning further house cleaning."
International Representative Bingel also complained about the unilateral changes
to Lemons who answered that "this was management's prerogative."
On June 21 Respondent discharged Melba Mai Miller, a TTS operator of many
years' experience, on the grounds that her production was unsatisfactory. This also
became a subject of a grievance.10
8 The, details of this incident will be more fully considered infi a.
9 Lemons, admitted having had such a conversation,as above with Bingel in order to
inform him oP the Photon 513. during which he had informed Bingel of the possible
elimination of the 24 situations, and "possibly" had mentioned the filing of the unfair
labor practice charges But Lemons denied that there was any *'threat" involved
10 This will also be covered more fully infra
PALM BEACH POST-TIMES, ETC. 1039
During this period the scale committee of Local 709, including Wickles and Jensen,
were meeting with Lemons attempting to negotiate the renewal agreement. The time
at these meetings was being spent in arguments over the Union's jurisdiction and upon
the various grievances over discharges, layoffs, and unilateral changes of workuig
conditions. So much time was being spent on these latter matters that Local 709
demanded joint standing committee (grievance) meetings with Lemons "under the
contract." Although Lemons was quick to point out that, as there was no contract
in existence at this time, he could not figure out under "what contract" Local 709 was
demanding such meetings, he agreed to meet with such joint standing committee.
On the evening of Saturday, August 24, Foreman Whitney Calkins asked Jensen and
his fellow employee George Venis if they wanted to work overtime that evening.
Both refused and left work at the end of their shift at 9:30 p.m.
On Monday, August 26, the joint standing committee held its first meeting with
Lemons. Among the grievances brought up by Jensen, as the Union's spokesman,
was one involving employee "Beth" Lemons, Brady Lemons' daughter, for having
done some pasteup work while neither a union member nor employed in the Union's
unit. The transcript of this meeting shows that Lemons lost his usual aplomb and
affability because Jensen and the Union had had to reach "pretty low" to pick up
such "fly specks" as the grievances concerning Beth Lemons, Miller, and others in
order to "harass the Company" and spend "a lot of time uselessly and unnecessarily
and quibbling over trivials." Lemons' answer to each of these grievances was
negative.
On Tuesday, August 27, Jensen and Venis reported back for work for the first
time since the evening of August 24 following their usual 2 days off. Jensen and
Venis were discharged at the beginning of their shift that day.
On September 11, her second day back at work following a 2-week vacation,
Connie Highfield who had answered "hell, no" when asked if she wanted to work
overtime on the evening of August 24, was notified that she was suspended I week
without pay for her "refusal" of a "direct order by her supervisor to work overtime."
The discharges of Jensen and Venis and the suspension of Highfield were then added
to the growing list of grievances being considered by the joint standing committee 11
Further meetings of the joint standing committee were held on September 16, 20,
23, and 30, at which the aforementioned grievances were further considered. With
one exception Lemons' answer to these grievances remained in the negative
The exception aforementioned occurred in the case of John Hryhor who had been
discharged on September 28 for "carelessness during working hours." When Local
709 was able to prove that Hryhor's "carelessness," if any, was due to the fact that
Hryhor was working on that occasion under the influence of pain killing drugs
administered by the dentist who had just pulled four of Hryhor's teeth, Lemons
agreed to his reinstatement.
At the joint standing committee meeting of September 30 Jensen requested that
the remaining grievances be taken to arbitration. Due to the subsequent delay in
selecting an arbitrator and other subsequent events in this case, the requested arbi-
tration was never held.
By letter dated September 6, 1963, Local 709 again requested Respondent to fur-
nish it with a list of composing room employees and their wages "specifically includ-
ing employees who are punching unjustified tape, all paste up employees, and photo
composer operators." The list furnished by Respondent on September 16 again
excluded the requested categories on the ground, as Lemons put it, that those employ-
ees were not part of the Union's unit.
Finally, with the parties still at complete loggerheads over the question of juris-
diction, Local 709 asked for the assistance of an International representative in their
negotiations with the Post-Times. Local 709 thereupon arranged for a scale com-
mittee meeting with Lemons for October 22.
International Representative Russell Waterson arrived in West Palm Beach on
October 20 for such negotiations. Upon arrival he sent a telegram to Lemons request-
ing a meeting for October 21 and to continue daily thereafter until an agreement was
reached 12 Lemons made no answer.
Thus negotiations between Respondent and Local 709 resumed on October 22,
1963, with Waterson in attendance. And so, almost 35 months after the contract
expired, the parties were about to get down to serious bargaining.
n These discharges and suspension will be considered In detail infra.
22 Respondent's brief cites this wire as an incident of the Union's attempt to "build a
case" against Respondent.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Preliminary negotiations at Pensacola News Journal
The agreement between Respondent at the News Journal and Local 293 expired
by its own terms and in accordance with notices given by both parties on July 31,
1963.
Originally both parties appeared to believe that agreement on a renewal contract
would be easily accomplished, especially as Respondent had already arrived at new
wage rates with other mechanical unions at the News Journal.
However at or about this time four or six unjustified perforating machines, the
"gutless wonders," were received by the News Journal.
Lemons agreed to meet with the Local 293 scale committee on September 16, 1963.
However the first negotiating meeting at Pensacola was held on October 16 due to
postponements required by two unhappy events in the Lemons family.13
At the meeting on October 16 the scale committee inquired about the newly
arrived machines and learned from Lemons that these "gutless wonders" machines
were for perforating unjustified tape for transmission by data speed from the News
Journal to the computer at the Post-Times where the tape would be justified and
returned by data speed to the News Journal for use there on the teletype setting
machines. President Walsingham of the scale committee promptly claimed the
unjustified tape perforators as part of the Union's unit. Lemons thereupon informed
Local 293, as he had Local 709 on September 16, 1962, that these unjustified tape
operators were not a part of the appropriate unit, even though Respondent planned
to have unjustified operators replace the justified operators at the News Journal-
even as had been accomplished in large part at the Post-Times. When Walsingham
continued to contend that the unjustified operators were covered under the jurisdic-
tional clause of the old contract, Lemons answered that this would have to be deter-
mined by the Board on issues already raised at the Post-Times, that the Board's deci-
sion in the Post-Times case would determine the jurisdictional question at the News
Journal, and that Respondent could not negotiate with Local 293 until the jurisdic-
tional question had been determined by the Board in the Post-Times case. Thus the
jurisdictional question was raised at the News Journal.
The parties, however, agreed to continue negotiations on October 28 at Pensacola.
d. Negotiations of October 22 and 24 at Post-Times
With International Representative Russell Waterson in attendance in lieu of Repre-
sentative Joe Bingel, the Local 709 scale committee again met with Lemons and Cecil
Kelly, Jr., representing Respondent. Again the discussion on October 22 centered
around the jurisdictional clause with the Union still contending that console oper-
ators, computer typists, and offset preparatory (pasteup) and photo composers were
within the unit described in the expired contract and Lemons contending the con-
trary. Waterson thereupon proposed a new jurisdiction clause which mentioned the
above classifications specifically so that there could be no misunderstanding as to
their inclusion within the unit.14
In the discussion of this October 22 proposal on both October 22 and 24 Respond-
ent maintained that it would be impossible to negotiate the jurisdictional clause of
the contract until the Board had decided the issue at the Post-Times and until all
the charges pending before the Board had been withdrawn. Local 709 maintained
that, if the parties could agree upon a contract, the Union could withdraw the
charges, the Regional Director could dismiss the complaint, and the whole matter
would be settled. Lemons, however, insisted upon a Board Decision on the juris-
dictional question and the withdrawal of the charges first.
In addition, on October 24 President Wickles for Local 709 reminded Lemons that
Local 709 had requested a list of all composing room personnel, specifically includ-
ing the four classifications under dispute, with their wage rates on September 6
together with a manning chart for the composing room. He pointed out that on
September 16 Lemons had answered this request with a list which admittedly omitted
the classifications specifically requested. Lemons admitted that the four classifica-
tions had in fact been omitted in Respondent's answer theretofor the reason that
Respondent did not consider such employees to be within the Union's jurisdiction.
He also contended that he did not understand what was meant by a "manning chart."
1S The complaint contained an allegation that Respondent deliberately delayed the
negotiations . The above being the only evidence thereof, this allegation of the com-
plaint is hereby dismissed.
14 The language of this proposal had been lifted from a contract in existence on a Los
Angeles newspaper which had a computer in operation.
PALM BEACH POST-TIMES, ETC. 1041
At Waterson's suggestion it was decided to bring the Local 293 scale committee
and General Manager Grice of the News Journal from Pensacola to West Palm Beach
beginning October 28 so that negotiations on the News Journal contract could con-
tinue in the morning while those relating to the Post-Times contract could proceed
in the afternoon.
e. The separate negotiations of October 28-31
On October 28, 29, 30, and 31 the parties met at West Palm Beach and conducted
negotiations on the Local 293 contract in the mornings and those involving the Post-
Times in the afternoons. President Walsingham and Secretary Creighton were pres-
ent on behalf of Local 293 but General Manager Grice found himself to be too busy
to be able to attend. However, negotiations continued without him. Joe Bingel
appeared on the afternoon of October 29 and continued thereafter as the Union's
chief negotiator.
Throughout these negotiations on both contracts the jurisdictional question con-
tinued to be the stumbling block as Lemons continued to maintain steadfastly that
Respondent could not negotiate that question with either union until the Board had
rendered its Decision on the issue in a case pending at the Post-Times. Lemons also
advised that the contract with Local 293 would depend upon Respondent's contract
with Local 709. At one point in the negotiations Lemons requested that the Unions
have the Board's Regional Office send an observer who would "approve" the
negotiations.
On the morning of October 30 Bingel, during the course of the News Journal
negotiations, informed Lemons that Local 293 represented the majority of the mail-
room employees at the paper and requested recognition. After looking over the
signed authorization cards offered to him by Bingel, Lemons agreed that the Union
apparently represented 100 percent of those employees. When Bingel offered a
contract proposal for the mailers, Lemons stated that he would have to go to Pensa-
cola and observe the operations of the mailroom before he could undertake any nego-
tiations in regard thereto He suggested that he probably would be able to make
that trip in a couple of weeks. It was agreed that in the meantime the parties would
continue their negotiations in regard to the other portions of the News Journal
contract.
On October 31, Lemons insisted that he could not negotiate until all charges
against Respondent had been dropped. The Union pointed out that it was attempt-
ing to settle the whole matter as had been suggested by the Regional Director and
as its attorneys said could be done but agreed that it could not "guarantee" that the
complaint would be dismissed as it had been issued by the Regional Director and
he would have to dismiss it. Lemons then demanded a "written guarantee" from
the Unions' attorneys that the complaint would be dismissed if the parties settled the
dispute This the Union refused to give. It did assure Lemons that it would do
everything in its power in the event that the parties reached a settlement to assure
the fact that the complaint would be dismissed. At this time the Union suggested
that it would prepare a list of the requirements for a package settlement of all pend-
ing disputes between the parties, including the charges and the various grievances.
On November 1 Bingel submitted the Union's package settlement plan to Lemons
which read as follows:
Statement of demands essential to total settlement
The following mutual terms are necessary to resolve all disputes
1. Agreement on jurisdiction which must conform to present proposal made
by Russ Waterson.
2. Agreement on terms of contract Conditions prescribed for the future in
the contract ( together with the other items here outlined ) will resolve all griev-
ances now pending.
3. Dulin, Miller, Venis, Jensen reinstated; Weymark employed; all five and
Connie Highfield to be paid back pay to dates of discrimination defined in
Labor Board complaint.
4. All grievances will be withdrawn.
5. All settlements are contingent upon labor board approval but union will
cooperate fully in closing out labor board case.
6. Company will post such notice as is required by labor board.
Following a short discussion of this package proposal Lemons agreed to submit
Respondent's counterproposal the following morning.
783-133-66-vol. 151-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 2, Respondent submitted its counterproposal which was as follows:
Company proposal made on November 2, 1963
1. Company will accept No. 1 proposal on jurisdiction made by Waterson
,)n Oct. 26, 1963.
2. Duhn, Venis, Jensen to go back to work with full priority but without any
back pay.
3. Mrs. Miller to take a 4-hour competency test under the direction of Joe
Bingel. If she passes the test, return her to work with back pay.
4. Weymark to be employed as needed, like any other snowbird.
5. Connie Highfield to accept the discipline that had been imposed on her.
6. All grievances to be withdrawn (assistant foreman, unilateral action, etc.).
The people aggrieved will be paid the difference in pay through Oct. 31, 1963.
This refers to Jensen, Goepfert, Shivers.
Any agreement reached to be approved by the National Labor Relations Board.
Any notice required by the Board to be posted.
Management representative will not appear at next appeal hearing on Venis
and Jensen on unemployment compensation.
Bengel noted the omission of a contract agreement between the parties in Respond-
ent's counterproposal. Lemons answered that he could not negotiate a contract with
the Union until all the unfair labor practice charges had been disposed of by the
Board. Bingel also noted the fact that Respondent had offered reinstatement with-
out backpay. Jensen stated that he thought that he was entitled to backpay. When
Jensen made this remark, Lemons immediately withdrew Respondent's counterpro-
posal and stated that he would accept the Union's position on jurisdiction but would
require all other issues to be litigated Thereupon Bingel replied that Jensen's
demand for backpay was not necessarily the Union's position with the result that
Lemons reinstated the counterproposal but made it clear that the Union would have
to accept reinstatement without any backpay by rejecting Bingel's suggestion of 50
percent backpay. Lemons also said the Union would have to secure the dismissal
of all charges then pending before the Board before Respondent would proceed to
negotiate the agreements. At this same meeting Lemons inquired whether the Union
would require full journeymen's pay for computer typists. The Union said that it
would. The meeting adjourned with the situation in this posture.
On Sunday, November 3, Locals 293 and 709 held meetings in Pensacola and
West Palm Beach at which reports were made on the progress of the negotiations.
Following this report the following resolution. prepared in advance of the meeting
by the Union's attorney, was moved, seconded, and almost unanimously passed by
Local 709:
I move that West Palm Beach Typographical Union No. 709 authorize the offi-
cers and representatives of the Union to call and institute strike action at the
Palm Beach Post-Times because of the refusal of the Company to discuss and
bargain upon the terms of a collective bargaining agreement except upon con-
dition that ITU first settles the unfair labor practice charges against the Palm
Beach Post-Times upon terms dictated by the Company which amounts to a
requirement that the Union and its members waive rights protected by the
National Labor Relations Act, and because of the other unfair labor practices
of the Post-Times.
Local 293 in Pensacola unanimously passed a similarly worded resolution.
On the evening of November 3, upon receipt of news of these not unexpected
developments, Binge] took occasion to notify Lemons of the seriousness of the situa-
tion and of the passage of the strike votes. Lemons answered:
Well, if both local unions have voted to strike; if it is the union membership
[determination?] to strike, we will have to take a strike; we will prepare to take
a strike.
Bingel stated that he desired to continue negotiations and asked for a meeting the
next day. Lemons could not meet the next day because of personal business but
agreed to meet again on Tuesday, November 5
f. The joint negotiations of November 5-7
The parties did meet again on November 5. From this time on there was no
attempt or suggestion made to hold separate meetings on the Post-Times and the
News Journal. It was agreed by all parties that the subsequent meetings were for
the purpose of discussing negotiations at both Post-Times and the News Journal.
PALM BEACH POST-TIMES, ETC. 1043
On morning of November 5, after Bingle had presented Lemons with an affidavit
by employee Wilma Dafoe to the effect that Judy Arnold, then supervisor of the
computer typists at the Post-Times, had told the computer typists that they were not
to talk to the union personnel in the composing room and that any of them who
joined the Union would be fired as that was "company policy," Lemons stated, "We
will have to get a lot more verification than just the affidavit of one person."
Thereafter the Union asked Lemons for the list of composing room employees it
had requested. Lemons handed the list to the Union which, for the first time, did
contain the names and wages of the employees in the four disputed categories, with
the comment, "This will take care of our refusal to bargain charge."
Bingel commented on the low rates being paid to the computer typists to which
Lemons replied that they did not have the skills of journeymen printers and he felt
that they should not be paid the journeymen rate. After some discussion of the
Weymark grievance, Lemons reiterated that the Board would have to render its
decision on the pending unfair labor practice charges before there could be further
negotiations. However, upon the Union's insisting on further negotiations, the par-
ties talked about various proposed clauses in the contract until 5 p.m. when the
meeting adjourned.
The parties met again on the morning of November 6 when it became apparent
that each of them had a different idea as to the duties of the computer "programmer."
The systems analyst, John Clark, was called in and explained the duties of the pro-
gramer with the result that the Union promptly withdrew its demand that the
programer be considered a part of its unit.
Thereupon Lemons proposed an addition to article I, section 2, which had never
before been in question and was considered by all parties to have been agreed to
and which read:
All composing room work shall be performed only by journeymen and
apprentices. Apprentices may be employed only in accordance with a ratio of
apprentices to journeymen provided elsewhere in this agreement.
Lemons' proposed addition to this section read as follows:
The word "journeymen" when used in this contract applies to journeymen
printers, journeymen console operators, offset preparatory journeymen and
computer-typist journeymen. Trainees may be employed in the last three cate-
gories listed above as needed by the office.
The Union rejected this proposed addition on the ground that it negated the whole
jurisdiction section of the contract. Bingel testified that this proposed change of
article I, section 2, coming as it did after some 3 years of negotiations, "floored" him.
At the same time Lemons handed Binge] a proposed wage scale for "computer-typists"
which was as follows:
Computer-typists
Typing-starting salary, minimum 70 words per minute:
40 hours $62 50 day.
40 hours $67.50 night.
Punching-
When they reach, 375 lines, 11 picas 8 point:
40 hours $65 00 day.
40 hours $70 00 night.
When they reach 510 lines per hour:
35 hours $67.50 day.
35 hours $72.50 night.
Bingel for the Unions objected to what he called the "impossible" minimum of 70
words per minute and to the 40 hours per week as well as to the rate. Before the
session ended, Lemons had agreed to the same 35-hour week for computer-typists as
the other composing room personnel worked. The Union suggested a gradual stepup
in wages for computer-typists until they reached the journeyman rate which the Union
insisted computer-typists must reach Lemons refused the suggestion. The meeting
adjourned with the agreement to meet the following morning
The meeting on November 7 was short with Lemons insisting that his addition to
article I, section 2, was a "must" which he "had to have" in any contract and the
Union insisting that it could not grant such a proposal as it completely negated the
whole jurisdictional and other contract clauses, but that the Union was willing to
permit Respondent to step up the wages of computer-typists until the journeyman
rate was reached. At this point, Bingel suggested that the meeting recess so that the
Union could prepare another complete proposal. Such a recess was taken.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This complete contract proposal was submitted to Lemons by Bingel at the begin-
ning of the afternoon meeting and was being discussed clause by clause until Lemons
requested a further recess so he could prepare a counterproposal thereto.
About 5 p.m. Lemons returned with his counterproposal containing the same
breakdown into journeymen printers, journeymen console operators, journeymen
computer-typists, and journeymen offset preparatory employees, with separate wage
scales for each classification with additional gradations in wage scale based upon
ability. This proposal also added a minimum qualification of "2 years training in
commercial art or other related fields" for offset preparatory employees. The Union
continued to insist that these in effect nullified the whole jurisdictional clause which
Lemons had agreed upon only 2 days before. It explained its objections in detail.
Lemons was adamant. Bingel called attention to the fact that there was no raise
contained in the proposal for the unit employees, although the unilateral 6-cent-per-
hour raise given by Respondent in November 1962 was the only raise the unit
employees had had since 1959. Lemons said Respondent could not afford a pay
raise because of its heavy expenditures on equipment. Bingel then called attention
to the fact that Lemons had made no counterproposal relating to the News Journal,
whereupon Lemons stated that he could make no such proposal because the Union
had introduced the mailers into that agreement. Bingel promptly withdrew his
claim to the mailers so far as the present contract was concerned suggesting a subse-
quent separate agreement as to the mailers. Thereupon Lemons stated that he could
not discuss the Pensacola contract because that contract and the jurisdiction was con-
tingent upon the Post-Times contract. When Bingel made another suggestion for
further negotiations regarding Pensacola, Lemons rose and said, "This is the Com-
pany's final proposal. Good day, gentlemen." Bingel stated that he wanted to nego-
tiate further and would be available at the Royal Palms Motor Court and requested
a call as to when they could meet again. Lemons answered, "If you are prepared
to accept the management's proposal, I will be home all evening and available and
you may call me."
On November 8, Walsingham and Creighton called on Lemons at his office with
a letter withdrawing Local 293's proposal that the foreman of the composing room
be a union member, reminded Lemons that Bingel was still at the Royal Palms Court
and available for further negotiations. Lemons' answer was to offer them transpor-
tation to the airport which the men refused as they already had such transportation.
Upon arrival in Pensacola, Walsingham sought out Editor Braden Ball and
requested him to do something to get the negotiations going again. Ball stated that
he could do "nothing."
On November 9, both Local 293 in Pensacola and Local 709 in West Palm Beach
went on strike. These strikes were still current at the time of the hearing. Out of
the 73 composing room employees, 69 went on strike in Pensacola and almost 100
percent of the composing room employees went out at the Post-Times.
Both the Post-Times and the News Journal have continued publication despite the
presence of the picket lines. In order to continue publication at the News Journal,
Respondent found it necessary to transfer a number of its employees from its other
publications to Pensacola as well as to hire new employees. In addition to paying
these new hires and transfers at least the same rates of pay, regular and overtime, as
prevailed at Pensacola prior to the strike, these replacements were housed and
boarded at the San Carlo Hotel in Pensacola at the expense of the News Journal.
After the first week Respondent reduced this added increment being paid the replace-
ments by restricting such charges to board and room and thus eliminating such other
items as laundry, telephone, and bar bills which had been paid theretofore.
2. Conclusions
a. Unit and majority
I find that the appropriate unit for collective bargaining here consists of all employ-
ees doing composing room work, as more fully described in the attached Appendix B,
at the Post-Times as far as Local 709 is concerned and at the News Journal as far as
Local 293 is concerned. This finding coincides with both the facts and with the
stipulation of the parties at the hearing.
I further find in accord with the facts and the agreement of the parties that at all
times material here Locals 709 and 293 were the representatives of the majority
.of the employees in their respective appropriate units.
PALM BEACH POST-TIMES, ETC. 1045
b. The refusal to bargain
The critical (Section 10(b)) period of the Post-Times negotiations began on
January 29, 1963. What occurred prior thereto is merely prologue. History, how-
ever, has a habit of repeating itself.
By January 29, 1963, Lemons and Local 709 had been long engaged in a seemingly
interminable argument as to whether the newly named classifications of "computer-
typists," "offset preparatory," photocomposers, and console operators were, or were
not, a part of the Union's acknowledged appropriate unit consisting of those doing
"composing room work."
This disagreement had begun actually with the installation of the "gutless wonders"
and the computer in the Post-Times offices and the concurrent move of the Perry
Ad Setter with its offset preparatory employees to the dispatch room. It had been
put into writing first on September 16, 1962, when Lemons proposed an amendment
to article I, section 3, which specifically excluded these four categories from the
appropriate unit. This argument raged unabated thereafter until at least Novem-
ber 5, 1963, when Lemons suddenly appeared to concede the correctness of the posi-
tion of Local 709; to wit, that all four of the disputed classifications were within the
Union's jurisdiction.
On January 30, 1963, and September 6, 1963, Local 709 had requested of Respond-
ent a list of names and salaries of all persons doing composing room work. The
latter request specifically included those employees in the disputed categories. On
each occasion Lemons responded with lists from which he had excluded the four
categories because, as he put it, those four categories were not within the Union's
jurisdiction. As late as August 26, 1963, Lemons told the Union's joint standing
committee, "but I reserve the right to decide what persons are in the bargaining unit,
along with my definition, I reserve the right to decide when they are in it and when
they are not " This explains the omissions from the requested lists.
This remained Lemons' unalterable position until the afternoon of November 5
when for the first time he handed Local 708 a list which included the four categories.
This he did in the face of the outstanding Board complaint and with the knowledge
of the strike votes of November 3. As he handed over the lists, Lemons commented,
"This will take care of our refusal to bargain charge." Thus Lemons himself recog-
nized that his deliberate refusal of pertinent information to Local 709 had consti-
tuted a refusal to bargain under Section 8(a)(5) of the Act. I agree and so find.
Lemons' comment implies that his belated attempt at compliance on November 5
successfully expunged his many months of having steadfastly refused to supply the
requested material. I cannot agree. In the light of the outstanding complaint and
the strike votes of November 3 of which Lemons was aware on the day of their
passage, Respondent's last minute attempt at compliance can only qualify as being
"too little and too late," especially the latter. Good faith in negotiations requires
more than a last minute attempt to eliminate a clear and longstanding unfair labor
practice.
In fact this hurried attempt to eliminate an obvious unfair labor practice brings
into question the Respondent's good faith in making this jurisdictional argument
itself.
Until September 16, 1962, Respondent had always recognized the appropriate unit
to be that which it had negotiated in article I, section 3, of the expired agreement
which Lemons himself had orally extended. The operational part of article I, sec-
tion 3, is short and clear, reading as follows:
Jurisdiction of the Union and the appropriate unit for collective bargaining
is defined as including all composing room work and includes classifications
such as:
The "such as" enumeration which followed is long and complicated but included:
... operators and machinists on all mechanical devices which cast or compose
type, slugs. or film; operators of tape perforating machines and recutter units
for use in composing or producing type ... Pastes-makeup of all type. ... .
It is quite true, as Respondent pointed out, that the section contains no mention
of a "computer," probably because at the time when that contract was negotiated
computers were not in use in newspapers.
There is, and can be, no doubt but that all four of the disputed categories were
doing "composing room work."
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the theoretical , reasonable man it is quite obvious that, despite the use of
Lemons' newly coined terminology , "computer-typists" were tape perforators , "offsetpreparatory" for doing the same work with the same tools and, therefore , should be
included among the "paste makeup," console operators qualify under "operators of
all mechanical devices, etc .," and Lemons ' own testimony showed that he had previ-
ously said that, when operating regularly, the photo composer would be operated by
a union journeyman . Thus the reasonable man would have promptly concluded that
all four categories were within the Union 's jurisdiction. Lemons himself finally
agreed by making his apparent concession on November 5, 1963. At the hearing
Respondent 's attorneys promptly stipulated that the four classifications were in fact
part of the appropriate units But Respondent , through Lemons , had adamantly
refused to abandon its unreasonable position to the contrary from January 29, 1963,
until at least November 5.15
In view of all the facts , it is impossible to believe that Respondent could have
maintained this untenable position for such a long period of time in good faith.
I so find.
What then impelled Lemons to assume and maintain such a position for such a
period of time? It was not stupidity, because Lemons proved himself to be a very
astute and knowledgeable person . The fact is that Lemons took this position simul-
taneously with the advent of the "gutless wonders" and of the computer , and in con-
junction with Respondent 's plan to automate its newspaper operations . He main-
tained the position to the bitter end. It thus appears that this attempt to eliminate
the Union from the composing room was in fact an integral part of Respondent's
plan to automate the newspapers . Corroboration of this can be found in the state-
ments of Superintendent Dacus, that the sooner the employees learned that Respond-
ent was "an open shop " the better off they would be, and the statement of Supervisor
Arnold that it was "company policy that computer typists were to remain nonunion." 16
Further corroboration can be found in the fact that Dacus in June 1963 unilater-
ally, and without consulting with Local 709, changed the classification of Respond-
ent's machinists to "machinist-monitors" or "operators" with a resultant loss of pay
of $4.35 per week. Dacus discharged two machinists who refused to accept his
reduction . On June 19 , 1963, some 2 weeks after his installation as vice president
of Local 709, Jensen learned of his similar demotion upon finding his paycheck $4.35
short. Other union employees discovered their demotions the same way. When
Bingel spoke to Lemons about these unilateral changes in wages and working condi-
tions, Lemons ' only answer was that that was "management 's prerogative ." Quite
obviously Respondent had no intention of engaging in any collective bargaining with
regard to these jobs and wage rates with Local 709 17 Such unilateral action by an
employer while allegedly engaging in collective bargaining amounts to a refusal to
bargain. Such unilateral action is further proof of Respondent 's lack of good faith
throughout the negotiations . I so find.
On November 5 Lemons appeared to concede the Union 's jurisdiction but effec-
tively nullified that concession on November 6 by opening article 1, section 2, of the
proposed renewal agreement , which had not theretofore been in dispute , by proposing
the addition thereto of the following:
The word "journeymen" when used in this contract applies to journeymen
printers , journeymen console operators , offset preparatory journeymen and com-
puter-typist journeymen . Trainees may be employed in the last three categories
listed above as needed by the office.
Lemons stated frankly that this amendment of article 1, section 2, above, was a
"must" in any contract Respondent might enter into thereafter.
The proposal of November 6 required the opening of no less than seven sections
in the proposed contract , all of which had been considered as agreed to theretofore.
In fact this proposed change not only nullified the jurisdictional concession of Novem-
ber 5 but also destroyed the whole basic concept upon which the contract had been
negotiated from its very inception.
15 In fact, Respondent had originally taken this position on September 16, 1962.
16I recognize that both Dacus and Arnold denied having made these statements I
have found to the contrary. The facts prove the accuracy of the statements, regardless
of whether they were ever put into words or not.
17 History was repeating itself for in November 1962 Respondent for the first time
posted a set of working rules in the composing room written by then Superintendent
Jackson and Foreman Hooper without consultation with Local 709.
PALM BEACH POST-TIMES, ETC. 1047
On the following day, November 7, Lemons handed the Union what he termed the
Respondent's "final" offer with graduated wage scales for the numerous classifica-
tions of journeymen about 5 p.m.
The facts show that Lemons had been preparing this strategic maneuver since at
least November 2 when he ascertained that the Union would insist upon journey-
men's rates for the employees in the theretofore disputed four categories. Lemons
knew that this proposal for classes of journeymen eliminated the very basis upon
which the negotiations had been carried on theretofore and would require the open-
ing and renegotiation of no less than seven other sections of the proposed contract.
Hence Lemons knew even before his disclosure of the names and rates on Novem-
ber 5 that the Union could not and would not accept either the different classes of
journeymen or the varying rates for such classes which Lemons proposed on Novem-
ber 6 and 7. Thus, this step, a "must" for a contract as Lemons himself stated,
effectively destroyed everything agreed to in 2 years of negotiations . 18 I cannot
believe this was unintentional.
Then, of course, for an experienced and as knowledgeable a negotiator as Lemons
to even suggest, much less insist as Lemons did during the October-November meet-
ings, that Respondent could not negotiate with Locals 709 or 293 while unfair labor
practice charges were outstanding against Respondent, that a representative of the
Board must be present to "approve" of the negotiations, that the Board must decide
the jurisdictional question and/or that the Union's attorneys must give Respondent
a "written guarantee" that all matters pending before the Board would be dismissed
if Respondent were to enter into a contract proved by the clear and recognized ille-
gality of the suggestions themselves that they could not have been made in good
faith or for any purpose other than to buy a little more time-or to force the two
locals to strike. These requirements by Lemons constitute refusals to bargain in
good faith. Lemons himself proved that he recognized the illegality in these require-
ments because he always thereafter purported to continue to talk on the terms of the
agreement. Lemons was much too astute to be caught brazenly in an easily recog-
nized illegal position
It is also noteworthy that on November 2, when the parties first started considering
the possibility of package settlement of all their disputes, the Union's proposal for
such a blanket settlement included an agreement on the terms of a contract whereas
Lemons' counterproposal conspicuously omitted any mention of such a contract other
than the ambiguous statement that "any agreement reached to be approved by the
National Labor Relations Board." An experienced negotiator and labor relations
consultant such as Lemons knows that the Board has no such power or authority to
"approve" collective-bargaining agreements. I cannot believe that Lemons was act-
ing in good faith when he made this proposal.
Lemons continued the use of this same successful strategy to the very end of the
negotiations At 5 p.m. on November 7, the last day of the negotiations, as Lemons
knew it was to be because of his own intent to make the Respondent's "final offer"
at that time, Lemons made his counterproposal to the package deal settling all con-
troversy between the parties This counterproposal contained, as the Union must
have expected from Lemons' remarks of the previous day, the four separate "journey-
men" classifications with their individual graduated wage scale and, in addition, this
counterproposal also contained further new matter, or "kicker," never before men-
tioned in the negotiations , which required "2 years of commercial art" for eligibility
for employment in the "offset preparatory" section of Lemons' recently accepted
(as of November 5) appropriate unit
The addition of this new qualification is significant in that it in effect eliminated
the experienced union pasteup employees from working, by transfer or otherwise,
in Respondent's nonunion "offset preparatory" section despite the fact that the work
performed in the two sections was identical and despite the fact that there had been
interchanges of employees theretofore between the two. Thus it appears that, while
Lemons had reason to be confident that the Union could not and would not accept
Is This was not the first time Lemons had employed this strategy. By April 1961, the
parties had agreed on everything in the proposed renewal agreement except wages when
Lemons proposed a new one-chapel system When this new proposal had been accepted
by the Union, and was ready on May 6, 1961, Lemons suddenly brought forth four new
proposals which reopened all negotiations again. Lemons ' September 16, 1962, jurisdic-
tional proposal constituted a similar maneuver on his part. This last maneuver effectively
stalled negotiations for 13 months before Lemons resorted to his new proposal on article 1,
section 2 , as noted heretofore During the negotiations Lemons caused history to repeat
itself frequently.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this proposal of classes of journeymen, he had his usual position prepared, in the
event of any miscalculation on his part, by which he could still keep union employees
out of the offset preparatory. Cold type and the computer must remain free of the
Unions. This had been since January 29, 1963, and still was on November 7, 1963,
the ultimate objective of Lemons' negotiations with the Unions.
With the presentation of this intentionally unacceptable counterproposal with its
"kicker," Lemons announced that "this was Respondent's final proposal. Good day,
Gentlemen." When the Unions requested the continuation of the negotiations,
Lemons' only answer was that, if the Union was prepared to accept Respondent's
"final proposal," they were at liberty to call him at his home that evening.
While most of the facts referred to above relate to the. Post-Times negotiations,
Lemons himself had deliberately conditioned an agreement with Local 293 in Pensa-
cola to the Palm Beach agreement. Originally he had insisted that the appropriate
unit at Pensacola would be determined by what the Board decided with regard to the
Palm Beach unit, that Respondent could not negotiate Local 293 until the Board had
decided the charges brought by Local 709 and that the Pensacola agreement would
follow the Palm Beach agreement However, the final meetings in November were
joint negotiations covering both Palm Beach and Pensacola so that Lemons' statements
and action affected both equally. However, when it was pointed out to Lemons on
November 7 that his package proposal referred exclusively to Palm Beach, Lemons
refused both to make a counterproposal to Local 293 or to continue negotiations with
it although requested to do so. Lemons had no intention of arriving at an agreement
with either Local 709 or Local 293.
On the following day, November 8, Lemons persisted in his rejection of the idea of
further negotiations with Local 293 when Walsmgham made that suggestion to him
in his office.
That Respondent had closed the door to further negotiations was confirmed later
that same day when President Walsingham of Local 293 requested Publisher Braden
Ball, who had prevented a strike in 1961, for help in getting the negotiations going
again . On November 8, Ball's answer was that "there was nothing he could do "
Section &(d) defines collective bargaining as "the performance of the mutual obli-
gation of the employer and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms and con-
ditions of employment, or the negotiation of an agreement ...." Here the Respond-
ent's last attitude was that it had made its "final offer," the Unions could accept or
reject it, and that was the end to any further negotiations. That attitude together
with its implementation does not conform to the requirements of the Act, proves the
bad faith of that party, and constitutes a violation of Section 8(a) (5) of the Act.
One further element requires mention here. That is the action of News Journal in
increasing the wages paid the strike replacements at Pensacola by at least the amount
of their room and board at the San Carlo Hotel over and above the wages prevailing
at the News Journal prior to the strike. This constitutes both evidence of bad faith
and also a violation of Section 8(a)(5) of the Act particularly when done in face of
Respondent's claim that it could give no wage increase made both in November 1963
and reiterated by Lemons in April 1964 when Bingel initiated abortive efforts to settle
the strike just before the hearing.")
Respondent's brief suggests, without documentation, that the negotiations came to
an end on November 7 because the parties had reached an impasse on the economic
issues. The facts warrant no such finding. The only day on which wages in all
classifications was mentioned was on November 7 in Respondent's "final offer."
While it is true that the Union objected to the wages of computer typists as insuffi-
cient,20 its objection to the counterproposal was not economic but was still jurisdic-
tional and to the breakdown of the journeymen into classifications Lemons prog-
nosis had proved to be correct.
The facts prove and, therefore, I must find that Respondent through Labor Rela-
tions Consultant Lemons sat throughout the negotiations from January 29, 1963-
actually long prior to that-through November 7, 1963, not with the good-faith inten-
tion of reaching an agreement with the Unions if a mutually agreeable contract could
be worked out to the satisfaction of both parties, as the law requires, but, on the
contrary, Respondent sat there with a fixed intention to prevent the consummation
of any agreement and with the firm purpose to exclude the Union and its members
from having any part in the computer or cold type processes. This latter had been
obvious from at least July 30, 1961, and remained firmly fixed still at the date of the
1e N.L R.B v. St. Clair Lime Co, 315 F. 2d 224, 228 (C.A. 10).
21 In fact the Unions had suggested graduated increases until the journeyman rate
had finally been reached.
PALM BEACH POST-TIMES, ETC. 1049
hearing. Lemons' tactics and maneuvers throughout the critical periods prove that
Respondent wanted no collective-bargaining agreements and maneuvered to see that
none were reached in violation of Section 8(a) (5) and (1).
Therefore, completely disregarding the self-serving strike resolutions prepared
for the purpose by its counsel and passed by each of the two local unions on Novem-
ber 3, 1963, the facts prove and I therefore find that Locals 293 and 709 went on
strike on November 9, 1963, because of Respondent's fixed determination not to
bargain in good faith with either local. The strikes of November 9, 1963, were thus
caused and created by Respondent's own unfair labor practices in refusing to bargain
with the Unions, or either of them, in violation of Section 8(a)(1) and (5) of the
Act and the strikers at both Palm Beach and Pensacola are consequently unfair labor
practice strikers entitled to reinstatement upon request. I so find.
B. The discharges
1. John A. Dulin
a. The facts
In April 1963, John Dulin, a former officer of Local 709, had been employed by
Respondent for approximately 61/2 years. He was then employed as a makeup man.
On two occasions during his employment Dulin had been convinced the copy as
then composed was wrong and changed the copy. On both these occasions Foreman
Hooper had severely criticized Dulm for his actions. Once Dulin had been wrong.
The other time Dulin had been right and was commended by supervisors other than
Hooper for his action.
On April 21, 1963, about 1 a.m. as the paper was being put to bed that evening,
the aisles had become clogged by turtles with chases on them.21 On this occasion as
Dulin pushed a turtle out of the way attempting to clear the aisle, something happened
with the result that a page of classified advertising was pulled off the turtle and pied;
i.e., the type was caused to fall out of the closed chase and was, therefore, scrambled.
It so happened that the engraving department had already finished its work with
this particular page so that the classified ads were printed as usual in the morning
paper.
After hearing the crash as the page was pied, Foreman Hooper came into the
composing room and ordered the page reconstructed immediately even though most
of the type had already been shoveled into what is euphemistically known in the
composing room as the "hell box." By about 5:30 a.m. the page had been recon-
structed by hand despite the fact that part of the type had been damaged in the fall.
The Post-Times publishes a morning and an evening edition. Both editions use the
same page of classified ads. After the publication of the morning edition, the office
gets out a "kill sheet," a sheet advising the composing room which classified ads to
remove from the page and what new ads to insert.
Although there was much testimony adduced both pro and con about Hooper's
order to reconstruct the page immediately by hand before the kill sheet appeared in
the morning and before the operators and numerous machines commenced work in
the morning, I believe this testimony to be inconclusive and largely immaterial.
On April 24, when next Dulin was scheduled to work, he was informed by Hooper
that he had been discharged, Hooper stating that he could no longer put up with
Dulin's "carelessness." Dulin requested that the reason for his discharge be put in
writing. Thereafter Dulin was given a statement in writing dated April 24, 1963,
signed by W. L. Hooper with copies to Lemons, Dacus, Spearman, and Dolce, which
read as follows:
Mr. John Dulin:
In pursuance to your request for a written statement of reason for your dis-
charge from employment in the composing room of the Post-Times Company,
the following is submitted:
For failure to use the customary and necessary safety precautions in the
handling of "live" type matter, resulting in the pieing of a full page of
Classified Advertising type, one of the most intricate and costly of all
advertising matter published in the newspaper.
a Turtles are small tables on four wheels used to transport chases, which are the forms
containing pages of type, from place to place as required.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In recent months I have held several conferences with all members of the page-
make-up section relative to pied and jumbled-up type matter which reflects
carelessness and lack of proper and customary precautions in the handling of live
type matter that is expected to be a fixed habit of experienced journeyman
workers. These conferences were called in an effort to overcome these untoler-
able [sic] production problems and focus our attentions, collectively, for a more
concerted application of our mental and physical abilities to the work performed
on that portion of the newspaper for which we are responsible.
Composing Room, Palm Beach Post
(S) W. L. Hooper, Foreman
Hooper promptly replaced Dulin with one Clarence Martin, who was not a member
of the Union.
The discharge of Dulin was promptly made the subject of a grievance and discussed
at length by the new officers, Wickles and Jensen, with Lemons. Lemons consistently
refused to reinstate Dulin throughout many meetings.
On November 2, while the parties were attempting to arrive at a package deal
settling all issues between them, Respondent's "final offer" contained the following:
"2. Dulin, Venis, Jensen to go back to work with full priority but without any back-
pay." At that same meeting Lemons rejected Bingel's suggestion of a payment of
50 percent of the backpay for Dulin and the others.
On November 9, 1963, after the strike began, Respondent sent Dulin the following
telegram, dated November 9, over the signature of Lemons which read as follows:
"We are holding your job in the composing room of the Palm Beach Post-Times for
48 hours. Unless you have returned to work within this period of time, we will, by
necessity, have to replace you permanently."
Dulin refused to cross the picket line and has not been reinstated.
b. Conclusion
During Dulin's 6'/2 years of employment at the Post-Times, there had been only
two pages pied. The other individual responsible was not discharged.
Respondent pointed to the fact that the classified page was a "live" page as a
distinguishing feature between the two cases. In this Respondent was partially right:
as the Post-Times worked it, the classified page is always a live page with its kill
sheet eliminations and additions.
There is no showing in this record that Dulin in pushing the turtles in order to
clear the aisles did anything which is not done every night when the Post-Times puts
the paper to bed. Thus the pieing of the page by Dulin appears to have resulted from
an accident rather than from carelessness.
On April 21 a page of classified ads was pied as a result of action by Dulin. How-
ever, as the engraving department had already finished with that page, the classified ad
page appeared in the paper as usual. The pieing of the page did cause extra work
both that same evening in the reconstruction of the page by hand and the following
morning in resetting the page by machine.
Hooper's letter of discharge indicates that Respondent, like the Union, was not
above the use of self-serving statements and exaggeration in justifying the discharge.
If this were all there was to this case, I would recommend its dismissal albeit
slightly shocked at the severity of the punishment meted out by Respondent. How-
ever, there is more
Foreman Hooper, a union member but from his actions throughout this case
hardly a friendly one, promptly replaced union member Dulin with the nonunion
Clarence Martin. In addition Respondent's wire to Dulin on November 9, after the
strike had begun, shows that Respondent was willing, if not anxious, to reinstate
Dulin, for all his alleged carelessness, if he were willing to take a nonunion job
Thus it appears quite clearly that Dulin's union membership and inclinations played
a substantial part in both his discharge and in Respondent's offer of reinstatement in
violation of Section 8(a) (1) and (3) of the Act. I so find.
2. Melba Mai Miller
a. The facts
Melba Mai Miller was first employed by Respondent in September 1951. She
became a teletype setter (TTS) operator who by 1960 was perforating both justified
and unjustified tape. As a known union member, she worked steadily for Respondent
at the Post-Times until August or September 1961, when she was laid off on the
grounds of lack of work and in order to reduce Respondent's expenses. On this
occasion Miller filed unfair labor practices against Respondent with the Board.
These charges were dismissed by the Regional Director.
PALM BEACH POST-TIMES, ETC. 1051
Respondent recalled and reinstated Miller as a TTS operator about a week before
Christmas 1961 . Thereafter she worked steadily until June 6, 1963, at which time
then Superintendent Dacus suddenly and without prior warning informed her that
her production was poor and that Respondent would not require her services after
June 8.
At that time Miller and two other operators capable of perforating justified tape
were working in the tape room along with four or five computer-typists under the
supervision of Katrina Earnhardt.
Sometime early in May Earnhardt had requested a raise for the computer -typists
from Dacus. When Dacus refused , Earnhardt cited the higher wage being paid to
Miller for less production than the computer -typists were getting out . Dacus, who
testified that he had previously determined to discharge Miller for low production,
then ordered Earnhardt to conduct a secret test on Miller's production over a period
of time and ordered that she say nothing about this test to Miller.
Dacus inquired of Labor Relations Consultant Lemons if he could conduct such a
test of Miller. Lemons agreed that it would be all right.22
On these orders of Dacus, Earnhardt conducted a test of Miller 's production over
a period of several weeks beginning the last part of May. Miller was never warned
of her low production or notified that she was being tested . Reports weie given to
Dacus daily . The reports show Miller to have been one of the slower producers.23
Miller had been a known union member since 1959 . At the time of her discharge
she was one of the last two or three union members in the tape room.
Wilma Dafoe worked as a computer-typist on the day side under the supervision of
Earnhardt for 1 month before she was transferred to the night side as a computer
typist. When Dafoe started on the night side early in May, she was told by Judy
Arnold that she, Arnold , was Dafoe 's supervisor and would become the "supervisor"
of the tape room as soon as the remaining union members had been eliminated
therefrom.
In subsequent conversations with Dafoe, Arnold told her, in July, that she was
doing the supervisor 's work in the tape room but had not yet received her supervisor's
pay so that she had gotten worried and gone to see Dacus who had told her that,
until she agreed to permit the removal of the other union employees in the tape room
who were drawing union scale and working the union 35-hour week, she would not
get her supervisor's pay.
On another occasion Arnold quoted William L. Hooper, composing room fore-
man, to Dafoe as having told her, Arnold , that Earnhardt was a union member and
would be removed from her supervisory position in the tape room while Arnold was
on her 2-week vacation.
The facts show that Hooper's prognostication came true at the time he said that it
would although Earnhardt retained her supervisor 's pay in the job outside the tape
room to which she was transferred.
Finally at the end of August or the first of September after these two union mem-
bers had been removed from the tape room , Arnold announced to the remaining
nonunion tape room operators that she was now the "supervisor ." She told them
how she planned on managing things and ended by saying "if anyone ( in the tape
room ) were to join the Union they would be fired" and that that was "company
policy." This obviously is a violation of Section 8(a)(1) of the Act.
The facts further show that within the first year of operation of the computer the
TTS operators had been reduced from some 20 to 3 or 4 and that the TTS operators
were removed from the tape room.
On November 5 Bingel , who had previously complained about Arnold 's remark
regarding the firing of any computer -typists who joined the Union, gave Lemons an
affidavit by Dafoe as proof of his previous statement . Lemons answered that he
would require "a lot more proof than the affidavit of one individual ." Lemons did
agree to investigate.
Dacus and Assistant Production Manager Wallace Reichart testified that "probably"
at the time both day and night shifts were in the building they spoke to Arnold and
22 During his testimony Dacus denied having asked Lemons' "permission " to give this
secret test to Miller and testified that he only requested Lemons' "advice" on the matter.
Dacus was semantics conscious.
23 Miller punched justified tape . Punching justified tape is a slower operation than
punching unjustified tape It is also a more skilled job. I recognize the many pos-
sibilities of unfairness in the type of testing which Earnhardt was ordered to make. I
have accepted these reports because Earnhardt was obviously an honest witness and
because they merely confirmed previously given testimony by Miller that she was not a
fast producer although her work was careful and accurate . This does not mean that
I condone the type of testing practiced on Miller.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercier, who had by then replaced Earnhardt as the day supervisor, and told them
that what the computer-typists did on their own time, what clubs and organizations
they joined, and how they spent their time was no business of the Respondent. Arnold
expressed her bewilderment as to what Dacus was talking about so Dacus explained
further that "any organization" included the Union.24 Arnold then denied having
made any such statement, even as she testified at the hearing.
As noted heretofore on or about June 1 Lemons had telephoned Bingel about the
new equipment coming to the Post-Times and mentioned his receipt of the "most
ridiculous" unfair labor practices just filed by Local 709 together with the possible
elimination of 24 positions or jobs by September through attrition or otherwise.
Miller was discharged within a week of that telephone call.
This discharge also became the subject of a grievance.
After the strike began on November 9, Respondent sent Miller the identical tele-
gram it sent to Dulin to the effect that it was "holding your job" for 48 hours before
replacing her permanently.
b. Conclusion
Although Miller received the same telegram on November 9 asking her to return
to work as all the other employees did, she, unlike the other employees, was offered
reinstatement to her job only upon her passing a production test conducted by Joe
Bingel.
Although admitting to some rather grave doubts as to the conclusion herein caused
by the fact that the Respondent was engaged in eliminating union TTS operators
such as Miller and replacing them with nonunion computer-typists, I nevertheless
believe and, therefore, conclude that Respondent discharged Miller because of her
admittedly low production and not because of her union membership or activity and
will, therefore, recommend the dismissal of this complaint as it relates to Miller.
3. John Jensen, George Venis, and Connie Highfield (Ellzey)
a. The facts
Under its then President Dolce Local 709 had been unsuccessfully attempting to
negotiate a new collective-bargaining agreement with Respondent before July 30,
1961, on which date Lemons had notified Local 709 that Respondent was canceling
its own oral extension of the last written agreement between the parties which would
have expired on November 30, 1960, except for the oral extension.
In April 1963, Milton Wickles and John Jensen were nominated as a team to run
for the presidency and vice presidency of Local 709, respectively. At the time of the
nominations Foreman Hooper prophesied that Wickles would get himself into
trouble with Respondent if he were successful in the election.
Wickles and Jensen, however, were elected in May 1963 and inducted into their
respective offices on June 2. Between the date of the election and their induction
into office, Local 709 filed some unfair labor practice charges against Respondent
which Lemons characterized as the "most ridiculous" he had ever read.
Early in June 1963, Superintendent Dacus, without consulting with Local 709,
unilaterally downgraded various established classifications of employees in the com-
posing room with the result that Jensen's pay, among others, was reduced $4.35
per week in his paycheck of June 19.
The others similarly affected either quit or were discharged by Dacus who at the
time explained the unilateral reclassification on the grounds that the sooner the
employees recognized that Respondent was an "open shop" the better and on the
further ground that Respondent was tired of having unfair labor practice charges filed
against it and was going to get rid of the "trouble makers." When this unilateral
reclassification became the subject of a grievance, Lemons explained that such reclassi-
fication was a matter of "management prerogative."
On Saturday, August 24, Jensen, who in addition had become chairman of the
joint standing (grievance) committee of Local 709, George Venis, Local 709 chapel
chairman prior to July, and Connie Highfield (Ellzey) were at work as usual on the
2 to 9:30 p.m. shift at the Post-Times composing room Jensen was operating the
Photon 200, Highfield the Photon 513, and Venis the photosetter.
At this time Jensen and Venis had been employed by Respondent about 61/2 years
each and Highfield approximately 3 years, of which the last 3 months had been as
the Photon 513 operator and the remainder as a TTS operator.
The foreman of the composing room was William Hooper. Under Hooper, Lloyd
Fenno was the foreman of cold type operations, exclusive of the offset preparatory.
24 The most charitable thing to be said about the investigation and instruction by
Dacus is that they were both more mystifying than thorough
PALM BEACH POST-TIMES, ETC. 1053
On Fenno's "slide" or off days, Saturdays and Sundays, Whit Calkins replaced him
as foreman on the day side (2 to 9:30 p.m.) on Saturdays. With both Fenno and-
Calkins off duty on Sundays, Jack Preston acted as the cold type foreman.25
As customary on Saturday evenings Jensen and Venis cleated their machines about
8:45 p.m. in order to take care of any last minute corrections on Sunday and Monday
ads. Both Jensen and Venis testified credibly that there were few, if any, corrections
made that evening and that the box for the ads to be corrected was empty.
About 8.45 p.m. Foreman Hooper moved Preston from the cold type department
into the hot type department to operate the Ludlow machine because hot type was
behind.
According to the testimony of Preston and Hooper, shortly after Preston's transfer
to the Ludlow machine Preston informed Hooper that he (Preston) was going to be
"stuck" in cold type with about 20 Sunday and Monday ads 26 to be corrected and that
he had requested Calkins to ask all the operators to work overtime that night.
About 9 p.m. Calkins approached Jensen and Venis and asked if they were in a
hurry to get home that evening or if they wanted to work overtime. Jensen answered
that he could not work overtime because he was expecting a long-distance call from
his sister at home about 10 p.m. that evening. Calkins then inquired of Venis if he
did not ride home in Jensen's automobile and, upon receiving an affirmative answer,
remarked that Venis therefore could not work either. Calkins accepted the excuses
and walked off.
Calkins then asked Highfield if she wanted to work overtime. Highfield, who was
starting her 2-week vacation at the end of the shift , answered emphatically , "Hell,
no." Calkins walked off without comment.
Preston testified that Calkins then reported back to him that "everybody will stay
but the two operators, Mr. Jensen and Mr. Venis." 27
A few minutes after 9 p.m. Preston came to Jensen and Venis and said, "When you
fellows leave I won't have an operator on." Jensen pointed out that at 9:30 Leon
Rockman, an operator, would be on duty. After stating that Rockman was on
vacation, Preston asked, "You don't want to work overtime tonight?" After receiv-
ing another negative response, Preston said, "Bill Hooper told me to ask you if you
wanted to work overtime and to tell him what you said." As Preston started to
return to the hot type department, Jensen reminded him that Larrabe, a machinist
who was on duty, was also an experienced operator, a fact Preston admitted he did
not know.
About 9:20 Foreman Hooper came to Venis and said, "What's the matter with you
fellows" to which Venis answered, "There's nothing wrong with us, . . . Mr. Jensen
can't be here because he has to receive a long-distance call at home, and I ride with
him, and there's nobody here to take me home if I should work overtime." Hooper
thereupon grumbled something and walked off. It is admitted that Hooper did not
speak to Jensen and that Jensen was not present at the conversation between Hooper
and Venis.28
zs Preston worked from 5 p in. to 12.30 a m. He testified that he "assumed"-without
having been told-that he became the cold type foreman when his shift began at 5 p in.
on Saturday, despite his admission that he knew that Calkins was the day side shift
foreman Hooper however, testified that Preston became the cold type foreman only
after 9:30 pin. on Saturdays The other employees actually did not know what, if any,
supervisory capacity Preston had on Saturdays This was due to the fact that, in
Calkins' words, overtime work on Saturday was "rare." Jensen was unable to recall
that he had ever worked overtime on Saturdays.
28 Hooper recalled the number of ads as 10
27 After Highfield 's emphatic refusal, it seems highly unlikely that Calkins made such
a report to Preston.
28 Hooper's testimony of his conversation with Vents differed considerably According
to Hooper he asked Vents , "George, what is this all about you people not working overtime
and getting the paper out 9" After Vents had told him of the telephone call, Hooper
testified that he said, "George, you know this is not a reasonable excuse . . we just
can't go along with that . . George, I can't go along witk it, it's your decision to make;
if you walk out and leave the paper stuck, you've had it"
During his testimony Hooper suggested that Jensen could have had his long-distance
call transferred to one of the five or seven telephones in and about the composing room
and adjoining offices. Even if the telephone company could have accomplished this trans-
fer, Hooper had obviously forgotten rule 3, which he had coauthored, of the new work-
ing rules unilaterally posted by Respondent in the composing room in November 1962,
which read: "Use of telephone for personal or private business, social visits or discussions
will not be permitted "
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the end of the shift at 9:30 p.m. Jensen and Venis left work after once again
reminding Preston that Larrabe could operate the machines if it became necessary.
Admittedly Preston made no mention of any possible discharge.2- Connie Highfield
also left at 9:30 p.m. without comment from Preston or Hooper. This left Calkins
as the only person in the cold type department who worked overtime that evening.
Upon learning from Preston that Jensen and Venis had clocked out, Hooper tele-
phoned Lemons,30 told him that he was unable to reach Superintendent Spearman by
telephone, and that he was "in a bind" and had to have help, as he had "just fired
Jensen and Venis." 31 Lemons telephoned Spearman, who thereupon rushed to the
office. Somebody telephoned Head Machinist Fred Morris, who also went to the
office when he was unable to secure another machinist to work overtime.
While Preston continued working on the Ludlow machine in the hot type depart-
ment for an hour or an hour-and-a-half, Spearman did some monitoring and Morris
found little, if anything, to do. Larrabe operated the photosetter correcting ads for
an hour or an hour-and-a-half. Larrabe testified that he corrected four or five ads
during the evening but deliberately saved one full-page ad to the last because it was
"dirty" or a "rehash" due to last-minute changes made by the advertiser. He finished
all the corrections by 11 or 11:30 p.m. Although Larrabe was unable to identify
the ad, this was probably the so-called "Jefferson ad" which Preston testified had
worried him all evening There is nothing in this record to indicate that Preston ever
inquired about the ad of Larrabe, despite his alleged worry.
The composing room report for the "8/25,/63" Sunday paper indicates that Hooper
himself closed the chase on the last page (A-2) at 1.05 a m. As Larrabe finished
all the ads by 11 or 11:30 p.m, nothing in the cold type department held up page A-2.
Sunday and Monday were nights off for Jensen and Venis.
The joint standing committee, with Jensen as its chairman, met with Lemons on
the afternoon of Monday, August 26, over a number of grievances, including one that
Lemons' daughter, Beth, had on a couple of occasions been seen doing unit work in
the composing room, despite the fact that she was not employed in the unit. At this
meeting Lemons accused Jensen and the Union of "stooping pretty low" to pick up
"fly specks" and "trivialities" as grievances with which to "harass" the Company.
Although the transcript of that meeting proved Lemons' acknowledged "irritation"
at Jensen and the Union, it is significant that he made no comments about the inci-
dent of August 24 or that Jensen had been discharged.
When Jensen and Venis reported back to work as scheduled on the afternoon of
August 27, their timecards were missing from the rack. Spearman beckoned them
into his office. As they went toward Spearman's office, Jensen requested Ross Rankin,
then chapel chairman for Local 709, to accompany them. As the three men entered
Spearman's office, Spearman objected to Rankin's presence but finally agreed to allow
him to enter before telling Jensen and Venis that they no longer worked for Respond-
ent because they had refused to work overtime on Saturday. The men inquired if
they were to be permitted to present their side of the incident but were told by Spear-
man that he "was not interested."
Spearman then took the men to Lemons' office, after again objecting to Rankin's
continued presence with the group. Lemons informed them that they were discharged
"for refusing to obey a direct order of their immediate superior " The men inquired
if there was anything they could say in order to change Lemons' mind about the
discharges. The answer was "no." They then requested that they be given the
reason for the terminations in writing.
A day or so thereafter Jensen and Venis were handed identical office memoran-
dums dated August 27, 1963, signed by R. Spearman as composing room superin-
tendent and reading as follows: "Your discharge, effective August 24, 1963, was the
result of your refusal to obey a direct order by your immediate supervisor when he
directed you to work overtime."
In addition Respondent produced at the hearing two "termination notices" dated
August 25, 1963, and signed by Foreman Hooper The termination notice regarding
Venis indicates that he was terminated on August 24, 1963, for "insubordination in
29 This omission is rather remarkable in the light of Preston's own testimony that just
a few minutes before Hooper had told him, "These men, when they hit the clock at
9.30, they are out ; they know they are at fault, they know the score, they have been told
by three or four different people "
30 Spearman testified that, although lie had had a new unlisted telephone number for a
week or so, he had forgotten to leave the new number at the office or with his next in
command, Hooper However, Lemons had the number
3i Admittedly neither Hooper nor Preston had so informed either Jensen or Venis.
PALM BEACH POST-TIMES, ETC. 1055
refusal to work overtime after two requests were made to the employee by the
assistant foreman and the foreman ." The termination notice for Jensen indicates
his termination as of August 25 , 1963,32 was for "insubordination in refusal to work
overtime after two requests had been made to this employee." 33
Although the discharges of Jensen and Venis were made the subjects of grievances
and discussed in several joint standing committee meetings with Lemons , Lemons
remained adamant so that neither Jensen nor Venis had been reinstated to date.
On September 10 Connie Highfield returned from her 2 -week vacation , found her
card in the time rack, and worked all day. On Wednesday , September 11, Highfield
had been working on her job for about a half hour when Spearman asked her to
come into his office and then went to get Foreman Fenno. Upon returning to the
office with Fenno, Spearman told Highfield that he was "too busy" to handle the
matter at that time and ordered them both to return to work.
Sometime later that day Dacus had Highfield come to his office where he asked
Highfield if she had been ordered to work overtime on August 24. Highfield answered
that Calkins had asked her if she wanted to work overtime that evening but that she
had refused . Dacus then stated, "Well , I will have to punish you in some way." As
punishment Dacus laid Highfield off for 1 week without pay . She was reinstated the
following week and has worked since until the strike.
The Respondent's November 2, 1963, proposal for a package deal settling the
problems between the parties contained the following:
2. Dulin, Venis , Jensen to go back to work with full priority but without any
backpay.
* * * * * * *
5. Connie Highfield to accept the discipline that has been imposed on her.
After the strike began on November 9, 1963, both Jensen and Venis received the
following telegrams over the signature of Brady M. Lemons which read as follows:
"We are holding your job in the composing room of the Palm Beach Post-Times for
48 hours Unless you have returned to work within this period of time, we will, by
necessity , have to replace you permanently."
b. Conclusions
The facts make it crystal clear that from the moment of their nomination to union
office in April 1963 Respondent was unalterably opposed to Wickles and Jensen as
officers of Local 709. At the time of the nomination Foreman Hooper, a good friend
32 Hooper testified that this date was "in error "
33 The above memos plus their author ' s testimony at the hearing indicate one reason
why the testimony of both Hooper and Spearman have to be viewed with skepticism
(1) Hooper's August 25 memos , not identical in phraseology , both refer to "requests"
made to Jensen and Venis.
(2) Spearman ' s August 27 memos to Jensen and Venis , which are identical and which
had to be based on information supplied by Hooper and Preston because Spearman forgot
to consult Calkins on the matter , refer to one "direct order from your immediate super-
visor" ( unidentified).
(3) As a witness on May 4 , 1964, Hooper testified that he gave a "direct order"
which he accompanied with a direct threat of discharge as a penalty for disobedience-
to Venis only. Hooper agreed that he never spoke to Jensen on August 24, an admission
subtly confirmed by Hooper ' s own use of different phraseology in his two memos dated
August 25
This chronology shows that Hooper obviously was able to convince himself that he had
been more and more emphatic to Venis the longer he considered the incident Con-
sequently I have accepted the testimony of Venis as to the conversation with Hooper
on August 24, because that coincided with Hooper ' s original conception that he had made
a "request" only.
On the other hand Spearman , who had proved himself adept in the use of semantics as
a witness , sought to cover Hooper 's omission by writing identical memos to Jensen and
Venis speaking of only one " order" from one unidentifiable " immediate superior" In
the memo to Venis this superior was, of course , Hooper whereas the reference in the
Jensen memo had to be to Preston. The trouble with this solution is that when Preston
spoke to Jensen even Hooper acknowledged that Preston was not a supervisor and, in
addition , Preston testified in answer to questions by Respondent ' s counsel that he never
gave "orders" as he did not think he had that authority.
Hence, for one or more of these reasons , none of these memos was accurate.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of then President Dolce, took occasion to warn that, if elected , Wickles would get
into trouble with Respondent . After annoying unfair labor practices had been filed
promptly after the election was held, Superintendent Ducas made it clear that
Respondent was an "open shop " and would stay that way and , in addition, that
Respondent was going to get rid of the "troublemakers " for having filed unfair labor
practices against Respondent . Similarly Lemons took occasion to telephone Bingel
about the same time to ask what Local 709 was doing in filing the "silliest" unfair
labor practice charges against Respondent he had ever read and then remarking that
the 24 positions which he had previously intended would be vacated through attrition
might have to be abolished earlier.34
Respondent had good reason not to want the status quo disturbed . During Dolce's
tenure of 2 years in office as president of Local 709 , Labor Relations Consultant
Lemons had not only successfully avoided a renewal agreement with Local 709 but
Respondent had also successfully canceled Lemons ' oral extension of that agreement,
had by unilateral action given its employees a 6-cent-per -hour increase with no credit
going to Local 709 , had succeeded in rendering the joint standing committee of
Local 709 innocuous by handling such few grievances as came up with Dolce alone
in meetings which were "not necessarily" secret, and , in addition , had without objec-
tion from Local 709 successfully posted unilaterally adopted working rules for the
composing room without negotiating them with Local 709.35
Wickles and Jensen constituted a threat to that status quo
Less than 2 weeks after Jensen's induction into office, Ducas unilaterally changed
Jensen 's work classification , along with others, thereby causing a $4 35 per week
reduction in his pay . This unilateral action may or may not have constituted
"management prerogative " as Lemons defined that term but it was not collective
bargaining such as Wickles and Jensen sought-or the law required . Although by
this maneuver Ducas did get rid of two union men , Jensen was not eliminated
simply because he accepted the reduction and thereafter attempted to correct it
through the grievance procedure and collective bargaining . That Jensen's efforts
along this line had not met with success prior to August 24 did not endear him to
Respondent . Lemons' "irritation ," if not anger , at Jensen and the Union at the joint
standing committee meeting of August 26 was clear for all to see.
The facts convince me that Respondent used the incident of August 24 as a pretext
in order to rid itself of Jensen even though it meant that Venis and Highfield also,
had to suffer in order to give the incident the appearance of being bona fide.
Respondent maintained at the hearing and in its brief that the sole cause for the
discharge of Jensen and Venis was that each "had refused a direct order of his
immediate supervisor to work overtime " thereby leaving Respondent "in a bind" on
that Saturday night.
Respondent argues in its brief:
It should be further noted, that it was within the discretion of Mr. Hooper,
Mr. Preston , and Mr. Calkins , who were the foremen and supervisors on the job,
to request overtime , when in their discretion overtime was required. It is
further submitted , that there is no discretion vested in the employees , except in
exceptional cases, for them to refuse overtime when requested.
The evidence here proved the contrary : that Respondent did not require an
employee to work overtime if he had a legitimate excuse and that his immediate
superior determined the validity of that excuse. The record also proved that no
employees had ever before been disciplined for refusing to work overtime , although
such refusals were commonplace . In the instant case Calkins , the immediate super-
visor of the three involved, had accepted the excuses as reasonable and legitimate-
which they in fact were.36
However, on August 24 the fact that Calkins accepted the excuse did not satisfy
Foreman Hooper . Hooper appeared to feel that Jensen should have used the com-
$* Hooper and Ducas denied having made the above statements Lemons was more
honest in his testimony and thought "possibly " he had made the statements attributed
to him denying only that they constituted threats
ae When Respondent had attempted this same thing with Local 293 in Pensacola,
Local 293 had threatened an immediate walkout If such were posted causing Respondent
to abandon the plan
3e The excuses of Jensen and Vents, at least, were both legitimate and reasonable
although Highfield ' s excuse might well qualify as stretching the feminine prerogative
a bit far The facts show that Respondent was never concerned over the legitimacy of'
Highfield ' s so-called "excuse "
PALM BEACH POST-TIMES, ETC. 1057
posing room telephones for his long-distance call even though such use would have
been in derogation of rule No. 3 of the working rules of the composing room co-
authored by Hooper himself. Whether the telephone company could, or would,
have been able to transfer such a long-distance telephone call to the composing room
telephones is another matter.
The record is clear that neither Calkins nor Preston ever ordered Jensen or Venis
to work overtime on August 24. In answer to questions by Respondent's attorney,
Preston was positive that he had never "ordered" any employee to work overtime,
that he always "asked" an employee to do so for the reason that he did not think he
had the authority to order an employee to work overtime. This was Preston's testi-
mony given with the knowledge that Hooper had previously ordered Preston to tell
Jensen and Venis "to work, in no uncertain terms," an order given at a time when
even Hooper acknowledged that Preston was not a supervisor.
The only testimony in this record which might qualify as "a direct order by your
immediate supervisor when he directed you to work overtime" was given, if at all,
by Hooper when he testified that at 9:20 p in. that evening he told Vems, "George,
you know this is not a reasonable excuse . . . we just can't go alone with that . .
George, I can't go along with it, it's your decision to make, if you walk out and
leave the paper stuck, you've had it." Venis recalled that Hooper had come to him
at that time and inquired about why he and Jensen were not working overtime
and that, after Venis had explained their reasons, Hooper had turned away "grum-
bling" something Venis could not hear.
It is inconceivable to me that, if Hooper were in such a "bind" as he
maintained at the hearing he was in, he, as foreman of the composing room, would
not have promptly at 9 o'clock, upon receipt of the first word that Venis and
Jensen could not work overtime that evening, gone directly to both men and issued
his orders himself "in no uncertain terms" instead of sending an admittedly non-
supervisor. Hooper's inconsistent actions, the inherent improbabilities of his testi-
mony, his obvious attempts at self-justification in both this and the Weymark incidents,
as well as his appearance on the stand, cause me to accept the version of Venis
that Hooper turned away muttering something unintelligible.
That raises the question as to whether or not Respondent was in fact "in a bind"
in the composing room that night. Calkins, the cold type foreman on duty, testified
credibly that at 8:30 that evening there was only one Sunday ad and four Monday
ads yet to be completed. Larrabe, who actually did the work, testified credibly
that he only corrected four or five ads that evening, one of which was a full-page
ad which was both "dirty" and a "rehash." On Respondent's side Preston testified
that at 8.45 p in. there were 20 ads to be completed, although by that time he was
himself working in hot metal. Preston further testified that an hour or so later,
while still working in hot type, there were only about 10 ads to be done, including
a full-page Jefferson store ad which was "dirty" and a "rehash." Yet Spearman
testified that he checked the ad record book about 10 p in. and found 18 to 20 ads
still to be corrected. Respondent did not produce this ad record book 37
Contrary to the testimony of Respondent's witnesses, the facts show that the cold
type department was not "in a bind" on August 24. Hooper used his cold type
supervisor Preston in hot type until 11 or 11:30 that evening. Although Hooper
and Preston testified that they desperately needed an operator in cold type, neither
of them even asked operator Highfield to work overtime. In fact Preston admitted
his ignorance of the fact that Larrabe, an efficient operator, was even working that
evening. Both Calkins and Preston testified that, while not efficient operators, each
could have corrected the ads that evening. Neither was used. Nobody estimated
a time later than 11:30 p.m. as the time when all ads were cleared in the cold
type, a time only 45 minutes later than the theoretical 10.45 p.m. deadline contained
on Respondent's composing room report and a not unusual hour in the composing
room.
Respondent appeared to contend at the hearing that the paper was held up wait-
ing for the corrections on the Jefferson store ad. According to Preston, he worried
about this Jefferson ad all night long. Yet the record shows that neither he, Hooper,
nor anyone else including Spearman ever inquired about that Jefferson ad or urged
sT Spearman 's memory was not good . He already had testified that he had forgotten
to leave his week-old telephone number at the office or with his understudy Hooper,
though the facts show that Lemons had that number. Respondent introduced his lack
of memory in order to explain why Hooper had to call Lemons in order to get hold of
Spearman on August 24
783-133-66-vol . 151---68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speed in its correction to Larrabe who was making the corrections . In fact Larrabe
testified that he corrected only one full -page ad that evening and that one he
deliberately left to the last because it was "dirty " and a "rehash ." Larrabe could
not identify this ad as the Jefferson ad but the full-page ad he corrected was finished
no later than 11:30 p .m. Hooper locked up page D-9, the Jefferson ad, at 11 . 45 p.m.
It is a fair assumption from the Respondent 's failure to produce the ad log upon
which Spearman relied that the production of such log would not have assisted
Respondent 's case.
Accordingly , I find that the cold type department was not "in a bind" on Au-
gust 24. That raises the question as to just when Jensen and Venis were actually dis-
charged. All the documents Respondent produced indicate the date of discharge to
have been August 24 except for the "error " Hooper made in the termination notice
on Jensen which indicated August 25 . The record is clear that neither Jensen nor
Venis was notified of his discharge until the afternoon of August 27, this despite
the fact that Jensen spent the afternoon of August 26 in a joint standing committee
meeting with Lemons at which even Lemons admits that he was "irritated" at
Jensen. This silence would indicate an unusual reticence on the part of Lemons.
Yet Lemons had known Hooper 's version of the facts within 5 minutes of the time
Jensen and Venis "had hit the clock " by reason of Spearman 's forgetfulness about
his new telephone number. If Respondent had intended to discharge Jensen and
Venis at that time, it would have been only normal and natural for Lemons to
have mentioned the discharges on August 26.
It is also significant as to the cause of the discharges that Highfield , who admittedly
did not even attempt to give an excuse for not working overtime when requested
on August 24, was not discharged also but, on the other hand, was permitted to
return to work after her 2-week vacation without comment and that it was only
on her second day at work that she was told she "had to be punished " for her
refusal with a 1-week layoff , an obvious attempt to make the discharges of Jensen
and Venis look bona fide after Calkins had raised the question.
The facts when analyzed show that the incident of August 24 was used by Respond-
ent as a mere pretext 38 by Respondent in order to discharge John Jensen because of
his union activities and because he had proved himself to be an able and articulate
spokesman for and on behalf of the Union to the irritation of Respondent and
that Respondent discharged George Venis and discriminated against Connie High-
field not only because of their union membership and activities but also as a means
of strengthening Respondent 's use of the pretext against Jensen, in violation of
Section 8 ( a) (1) and ( 3) of the Act . I so find.
4. Ralph Weymark
The Facts
Ralph Weymark was first employed by Respondent in 1961 as a compositor in
the cold type department , then a relatively new operation. At the conclusion of
that "season" in Palm Beach , he applied for, and was granted, a long leave of
absence. When he reported back about the time that school opened in 1962, he
was put back to work as a repro proofing man at the Post-Times without question.
Again in June 1963, after the season in Palm Beach, Weymark applied to his
foreman, William L. Hooper, for another long "leave of absence " from the Post-
Times until fall. Hooper stated that that would be "ok with him, if it was ok with
Dacus." So Weymark applied to Superintendent Doyan Dacus for this long leave
of absence only to have Dacus return him to Hooper with the same noncommittal
remark that " it was ok with him, if it was ok with Hooper."
Upon seeing Hooper again, it was arranged that Weymark should return in
September in time to relieve fellow compositor Palumbo at the time Palumbo in-
tended to take his vacation. Weymark, as Hooper admitted , left a self-addressed
postcard so that, if Respondent needed him prior to his relieving Palumbo, Respond-
ent could recall him to work.
Weymark returned to the Post-Times on September 9, 1963, and promptly relieved
Palumbo for Palumbo's 2-week vacation as had been agreed. At the time of his
return Hooper remarked that "things were slow" in Weymark's department.
At the time he relieved Palumbo, Weymark found his card in the rack and his
name still in the chapel roster. Weymark's name was also still on the payroll as
no notification had been given to the payroll office that Weymark had been discharged
or quit.
38 See Thor Power Tool Company, 148 NLRB 1349.
PALM BEACH POST-TIMES, ETC. 1059
While relieving for Palumbo, Weymark was working on the day shift while a
newly hired nonunion employee named Tom Martin was doing repro proofing work
on the evening shift.39
Although the Respondent did not produce its payroll records on this matter,
Tom Martin apparently went to work about August 26, 1963 Hooper testified
at the hearing that Weymark had been replaced by a "Clarence Martin" whereas
Weymark was in fact replaced by Clarence's brother, Tom. Hooper also testified
that Tom Martin was hired sometime in June but had not reported to work until
about the third week in August because he had had to work out a 2-week notice
with his prior employer. Hooper's testimony was to the effect that repro proofing
was so busy on the Post-Times that he had refused Weymark a leave of absence
in June and had had to hire "Clarence" Martin to replace Weymark. This testimony,
like a number of other instances in Hooper's testimony, is not corroborated by
Hooper's remark to Weymark that "things were slow" or by the fact that Weymark's
"replacement" did not report for work until August 26 at the earliest. Similar
inconsistencies in his testimony cause me to view Hooper's testimony with consider-
able caution.
The fact that Weymark left a self-addressed card with Hooper at the time he
left in June for the express purpose of permitting Respondent to recall Weymark
prior to Labor Day if his services were needed, together with the acknowledged
fact that Hooper and Dacus shunted Weymark back and forth between them
regarding his requested leave of absence, causes me to completely discredit Hooper's
testimony that he refused Weymark a leave of absence in June This together with
past history and the fact that Respondent did not remove Weymark's name from
the payroll or from the rack requires the finding, here made, that Respondent gave
Weymark reason to believe that his usual long leave of absence had been granted 40
Upon Palumbo's return to work at the end of his vacation, Weymark found
himself without work. By telephone Dacus told him that he was "laid off "
If repro proofing had been as busy as Hooper would have us believe during the
summer of 1963, it is remarkable that Hooper did not use the self-addressed card
recalling Weymark to work but instead preferred to allow the nonunion Tom Martin
to work out at least a 2-week notice to his former employer. This preference
indicates that repro proofing was not as busy as Hooper testified and also that
Hooper seized the opportunity to replace a union employee with a nonunion man
even as he had done in the case of Dulin.
This evidence convinces me, and I therefore find, that Respondent refused to
reinstate Weymark because it preferred to have a nonunion man working instead
of a known union member in violation of Section 8(a) (1) and (3) of the Act. This
finding is confirmed by Respondent's telegram to Weymark dated November 9, 1963,
when, as it had done with the other dischargees, it offered Weymark employment
during the strike and, therefore, to a recognized nonunion job.
5. Dewey Wallace
The complaint charges, as an item in the refusal-to-bargain issue with Local 293,
that the News Journal established a new unilaterally adopted working rule depriving
a supervisor from claiming priority on a nonsupervisory situation in the composing
room.
The evidence showed that Wallace was relieved of his duties as composing room
superintendent at Pensacola because he was reluctant to cooperate in Respondent's
plans to automate the paper. Charging Party's brief concedes that Wallace's removal
on this ground did not constitute an unfair labor practice. I agree.
But under the contract between Local 293 and the News Journal, the ITU laws,
and past practice, a deposed supervisor enjoyed the right to claim priority on a non-
supervisory situation in the News Journal composing room within a period of 90
days.
After his removal Wallace took a 90-day leave of absence. During this period the
new composing room superintendent, Johnson, demanded that Wallace's name be
31 Tom Martin was the brother of Clarence Martin whom Hooper had hired to replace
Dulin. Both Hooper and Dacus testified incorrectly that Clarence Martin replaced
Weymark.
40 If, as Hooper contended during his testimony, repro proofing had been so busy as
to require Hooper to deny Weymark's requested leave of absence in June, it is a fair
assumption that Foreman Hooper could not have waited until at least August 26 before
finding a replacement for Weymark It is also a fair assumption from the fact that
the Respondent failed to produce its payroll records regarding Tom Martin that Tom
Martin was not employed prior to August 26, at least
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
removed from the slip or priority board of Local 293 on which Wallace stood high:
in seniority. Local 293 objected, although the chapel chairman testified that the
removal of Wallace's name from the board would have been of no actual significance.
Charging Party contends that this attempt by Respondent was an attempt to,
make unilateral changes in the working rules of the composing room.
The beginning of the strike on November 9, 1963, however, makes consideration
of this matter at this time premature for the reason that it occurred before the 90-day
leave of absence had expired and before Wallace had reported back to claim his
priority.
Until Wallace reports back to work at the conclusion of this strike and claims
his priority, no one can tell what will happen and so any decision made here would
be based upon speculation.
Accordingly, I will recommend that this part of the complaint be dismissed with-
out prejudice at this time.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that beginning on or about February 6, 1963, and at all
times thereafter, Respondent has refused to bargain collectively in good faith with,
West Palm Beach Typographical Union No. 709, International Typographical Union,
AFL-CIO, and that beginning about October 16, 1963, Respondent has refused
to bargain collectively in good faith with Pensacola Typographical Union No. 293,.
International Typographical Union, AFL-CIO, it will be recommended that Respond-
ent, upon request, bargain collectively with each of said Unions in good faith as
the exclusive bargaining representative of Respondent's employees in the respective-
appropriate unit.
It having further been found that Respondent discriminated in regard to the:
hire and tenure of employment of John Dulin on April 21, 1963; John Jensen on
June 19 and August 24, 1963; George Vems on August 24, 1963; Connie Highfield
(Ellzey) on September 11, 1963; and Ralph Weymark on September 23, 1963, by
discharging or otherwise discriminating against each of the above, I will recommend
that Respondent offer to each of them immediate and full reinstatement to his or
her former or substantially equivalent position, except for Connie Hi^hfield who has
already been reinstated, without prejudice to his seniority or other rights and privi-
leges, and make each of them whole for any loss of pay 41 he has suffered by
reason of said discrimination against him by payment to him of a sum of money
equal to that which he would have earned as wages from the date of the discnmina-
tion against him to the date of his reinstatement, less his net earnings during such,
period, in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, with interest thereon at the rate of 6 percent per annum.
As it has been found that the employees who went on strike on November 9, 1963,
at Respondent's Post-Times and News Journal divisions, are unfair labor practice
strikers having gone on strike in order to protest Respondent's unfair labor practices,
I will recommend that, upon the offers of Locals 709 and 293 to return to work
unconditionally, Respondent reinstate all striking employees to their former or sub-
stantially equivalent positions, restoring to them the terms and conditions of employ-
ment enjoyed by them prior to November 9, 1963, without prejudice to their
seniority or other rights and privileges, dismissing or terminating, if necessary, any
employees hired or transferred in Respondent's employ on or after November 9,
1963, to replace them. If after such dismissal, or other disposition of such replace-
ments, there are insufficient positions available for all said strikers, the available
positions shall be distributed among them, on the basis of seniority or such other
nondiscriminatory practice as may have heretofore been applied in a reduction in
force in Respondent's business. Thereafter, the employees for whom no employ-
&' In the case of John Jensen , this includes the weekly pay reduction of $4.35 per week.
PALM BEACH POST-TIMES, ETC. 1061
ment is immediately available shall be placed upon a preferential hiring list. If
such offers of reinstatement are not made within 5 days after the Union's uncondi-
tional offer to return to work, then backpay shall be awarded to those striking employ-
ees to whom Respondent has made no such offer of reinstatement.
In my opinion, the unfair labor practices committed by the Respondent in the
instant case are such as to indicate an attitude of opposition to the purposes of the
Act generally. In order, therefore, to make effective the interdependent guarantees
of Section 7 of the Act, thereby minimizing industrial strife, which burdens and
obstructs commerce, and thus effectuate the policies of the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. West Palm Beach Typographical Union No. 709, and Pensacola Typographical
Union No. 293, International Typographical Union, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. All employees doing composing room work at Respondent's Post-Times and
at Respondent's News Journal, respectively, as more particularly set forth in the
attached Appendix B, constitute separate units appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(c) of the Act.
3. At all times material herein, Local 709 has been and now is at Respondent's
Post-Times and Local 293 has been and now is at Respondent's News Journal the
recognized bargaining representative of all the employees in the aforesaid appropriate
units for the purpose of collective bargaining within the meaning of Section 9(a)
-of the Act.
4. By failing and refusing on, and at all times since, February 6, 1963, at Respond-
ent's Post-Times and on and after October 16, 1963, at Respondent's News Journal
,to bargain collectively with Locals 709 and 293 as the exclusive bargaining representa-
tive of the employees in the aforesaid and appropriate units, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act
5. By discriminating in regard to the hire and tenure of employment of John A.
Dulin, John Jensen, George Venis, Connie Highfield, and Ralph Weymark, thereby
-discouraging membership in Local 709, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Perry Publications,
Inc., Palm Beach Post-Times and Pensacola News Journal Divisions, West Palm
Beach and Pensacola, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging memberhip and activities in West Palm Beach Typographical
Union No. 709, and Pensacola Typographical Union No. 293, International Typo-
graphical Union, AFL-CIO, by discriminating in regard to their hire and tenure of
employment of its employees, or by discriminating in any manner in regard to any
terms or conditions of employment, in order to discourage membership or activities
therein.
(b) Refusing to bargain collectively with said Locals 709 and 293.
(c) Interfering with, restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor organizations, to join or assist West
Palm Beach Typographical Union No. 709 or Pensacola Typographical Union No.
293, International Typographical Union, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such activities, except
to the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act.
1 062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to John A. Dulin, John Jensen , George Venis, and Ralph Weymark
immediate reinstatement to their former or substantially equivalent positions in
Respondent 's employ, without prejudice to his seniority or other rights and privileges,
and make each of them whole along with Connie Highfield for any loss of pay
which he or she may have suffered by reason of such discrimination against him
or her in the manner provided in the section of this Decision entitled "The Remedy."
(b) Upon request , bargain collectively with West Palm Beach Typographical
Union No. 709 and Pensacola Typographical Union No. 293 , International Typo-
graphical Union , AFL-CIO, as the exclusive representative of the employees in the
respective appropriate units hereinabove found.
(c) Within 5 days of the offer of Locals 709 and 293 to return to work uncondi-
tionally, offer immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privi-
leges, to all striking employees at the Post-Times and the News Journal, dismissing,
if necessary , any person transferred to or hired on or after November 9, 1963, or,
if employment is even then not available , place such remaining striking employees
on a preferential hiring list , in the manner set forth in the section of this Decision
entitled "The Remedy."
(d) Preserve and, upon request , make available to the Board and its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary and useful to
determine the amount of backpay due and the right of reinstatement under the
terms herein.
(e) Post at its Post-Times plant in West Palm Beach , Florida, and in its News
Journal plant in Pensacola , Florida, copies of the attached notice marked "Appendix
A." 42 Copies of said notice , to be furnished by the Regional Director for Region 12,
shall, after being duly signed by Respondent 's representative , be posted by it immedi-
ately upon receipt thereof, and be maintained by it for at least 60 consecutive days
thereafter , in conspicuous places, 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.
(f) Notify the Regional Director for Region 12, in writing , within 20 days from
the date of this Decision , what steps the Respondent has taken to comply herewith 43
It is further recommended that unless on or before 20 days from the date of receipt
of this Decision , Respondent notifies the Regional Director , in writing , that it will
comply with the foregoing Recommended Order, the National Labor Relations
Board issue an order requiring the Respondent to take the action aforesaid.
42 If this Recommended Order is adopted by the Board , the words " a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice . If the Board 's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words " a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order"
43 If this Recommended Order is adopted by the Board , this provision shall be modified
to read. "Notify the Regional Director for Region 12, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of West Palm
Beach Typographical Union No. 709, and/or Pensacola Typographical Union
No. 293, International Typographical Union , AFL-CIO, or any labor organiza-
tion of our employees , by discriminating in regard to their hire, tenure of
employment , or any term or condition of employment because of their union
affiliation or activity.
WE WILL NOT make unilateral changes in wages, hours , or other terms and
conditions of employment without consulting and negotiating with said Local
PALM BEACH POST-TIMES, ETC. 1063
Unions, and we will not otherwise seek to discredit or undermine the bargaining
status of the union or otherwise refuse or fail to bargain collectively in good
faith with said Unions.
WE WILL NOT refuse to negotiate in good faith with said Unions unless said
Unions withdraw any unfair labor practice charges they may have filed with the
Board.
WE WILL NOT in the same or in any othei manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from engaging in any or all such
activities, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act.
WE WILL bargain collectively, in good faith, with West Palm Beach Typo-
graphical Union No. 709, and Pensacola Typographical Union No. 293, Inter-
national Typographical Union, AFL-CIO, as the exclusive representatives of
all employees in the respective bargaining units described in the attached
Appendix B, with respect to rates of pay, hours of employment, and other
conditions of employment, and, if an agreement is reached, embody such under-
standing in a signed agreement. The bargaining unit at Respondent's Post-
Times and at Respondent's News Journal, respectively, consists of those
employees doing composing room work and is more fully described in the
attached Appendix B.
WE WILL offer immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and other rights
and privileges, to each of the following named employees and will make each
whole for any loss of pay he may have suffered by reason of the discrimination
practices against him, together with interest thereon at 6 percent per annum:
John A. Dulin Connie Highfield (Ellzey)
John Jensen Ralph Weymark
George Venis
WE WILL offer, within 5 days of the time that Locals 709 and 293 offer uncon-
ditionally to return to work, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or other
rights and privileges, to the unfair labor practice strikers at both the Post-Times
and News Journal, dismissing, if necessary, any person hired on or after Novem-
ber 9, 1963, or transferred on or after that date to either of our newspapers.
If after such dismissals, sufficient positions are not available for all the unfair
labor practice strikers, we will place said employees on a preferential hiring list.
WE WILL NOT discriminate in regard to hire or tenure of employment or term
or condition of employment, against any employees because of membership in
or activities on behalf of any labor organization.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named Unions, or any other labor organization,
except to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act.
PERRY PUBLICATIONS, INC., PALM BEACH POST-TIMES
AND PENSACOLA NEWS JOURNAL DIVISIONS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
706, Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-
7711, if they have any question concerning this notice or compliance with its,
provisions.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
ARTICLE I
SECTION 3. Jurisdiction of the Union and the appropriate unit for collective bar-
gaining is defined as including all composing room work and includes classifications
such as: Markup men, copy cutters, hand compositors, typesetting machine operators,
makeup men, bank men, proofpress operators, proofreaders, machinists for type-
setting machines, operators and machinists on all mechanical devices which cast or
compose type or slugs, or film, operators and machinists for tape perforating
machines and recutter units for use in composing or producing type, operators and
machinists on all devices in a computer operation which are producing material for
composing room work, beginning with the preparation of material used by the input
devices and continuing until the completed product of the output devices is ready
for further processing under the terms of this agreement, operators of all photo-
typesetting 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, processing and product of photo-
typesetting machines, including development and waxing; paste-makeup of all type,
handlettered, illustrative, border and decorative material constituting a part of the
copy; ruling, photo-proofing, correction, alteration and imposition of the paste-
makeup serving as the completed copy for the camera used in the platemaking
process. Paste-makeup for the camera as used in this paragraph includes all photo-
stats 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 or quality or duplication of efforts. The jurisdiction of the Union
includes the conversion of the computer program into the processing media, except
when such program media is provided by the manufacturer or lessor under prior
agreement , but does not include the design and development of the computer pro-
gram. Maintenance on computer equipment (except such computer maintenance
which because of its nature is performed by the manufacturer or lessor by prior
agreement ) shall be done by employees covered by this agreement. The employer
shall make no other contract covering work as described above, especially no con-
tract using the word "stripping" to cover any of the work above-mentioned.
City Gas Company of Phillipsburg , N.J. and United Steelworkers
of America, AFL-CIO and Ernest E. Snover. Cases Nos. 22-
RC-0201 and 22-CA-1773. March 24, 1965
DECISION AND ORDER
On April 30, 1964, Trial Examiner Lee J. Best issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions and a supporting brief. It alleged,
inter alia, that the Trial Examiner had committed prejudicial error
in denying Respondent's demand that the General Counsel submit
for inspection by Respondent the prehearing statement of General
Counsel's witness, Burgstresser. Finding merit in the Respondent's
exception, the National Labor Relations Board, on October 8, 1964,
directed the General Counsel to make Burgstresser's prehearing
statement available to Respondent, with leave for Respondent to
151 NLRB No. 115.