The Baltimore News American Division

National Labor Relations Board - Board Decisions

Jun 14, 1977

230 N.L.R.B. 216 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Baltimore News American Division, The Hearst
Corporation and Baltimore Typographical Union
No. 12. Case 5-CA-8061
June 14, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 11, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent, the Charging
Party, and the General Counsel filed exceptions and
supporting briefs. Respondent filed a reply brief to
the exceptions filed by the Charging Party and by the
General Counsel, and the General Counsel filed a
reply brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Baltimore
News American Division, The Hearst Corporation,
Baltimore, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
in this case was held on September 23, 1976, at Baltimore,
Maryland, on complaint of the General Counsel against
The Baltimore News American Division, The Hearst
Corporation, herein called Respondent. The complaint
issued on August 6, 1976, on a charge filed on July 12,
1976, by Baltimore Typographical Union No. 12. The only
question to be decided is whether, by dealing individually
with its active employees and in consequence paying them
greater retirement benefits than its current contract with
the Union provided, Respondent violated Section 8(a)(5) of
I In pertinent part the early retirement plan set out in the contract reads
as follows:
. . an early retirement plan for present situation holders shall be
230 NLRB No. 29
the National Labor Relations Act, as amended. Briefs were
filed by all parties.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, with its principal
office in New York, New York, is engaged in the
publication of daily and Sunday newspapers called "The
Baltimore News American" and "The Sunday News
American," at its Baltimore, Maryland, location. During
the preceding 12 months, a representative period, Respon-
dent had gross revenues exceeding $200,000; it regularly
carries in its newspapers advertisements of products which
are nationally advertised and sold in interstate commerce. I
find that Respondent is an employer within the meaning of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that Baltimore Typographical Union No. 12 is a
labor organization within the meaning of Section 2(5) of
the Act.
In. THE UNFAIR LABOR PRACTICES
Insofar as the truly pertinent facts are concerned there is
no dispute in this case, no relevant question of credibility at
all, and no subordinate issue to be resolved. On the face of
the clear and uncontroverted evidence - spoken and
documentary - Respondent violated the statute when it
bypassed the Union in its dealings with admittedly union-
represented employees.
At the time of the events a collective-bargaining
agreement was in effect between the Company and the
Union; it was due to expire at the end of 1976. Two
substantive sections of that contract directly related to and
gave rise to the events leading to this proceeding. One
section provides for a jointly administered Pension Trust
Fund, its assets to assure retirement benefits to all
employees covered by the contract. Details of how age and
years of service determine benefits later to be received
under what the contract calls the retirement plan are not
set out in the agreement, but that detail is irrelevant to the
question of this case. The contract does set out precisely
how much money the Company must contribute to the
pension fund. The agreement also contains a special clause
detailing "an early retirement plan"; this provides that
employees who have reached the age of 62, and have
worked 5 years, would be paid additional sums directly by
the Company if they retired.1
The second relevant provision, entitled "Job Security,"
establishes what are called "situations" for "members [of
the Union I] who are presently employees." The clause then
says these individuals [later personally and individually
named in an appendix] "will be guaranteed life-time
made available. The opportunity for early retirement shall be extended
on a voluntary basis to all employees of more than five (5) consecutive
years of full time service who have reached age sixty two (62).
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BALTIMORE NEWS AMERICAN
employment under the latest collective bargaining agree-
ment so long as the newspapers are published. .. subject
only to termination of named employees on the list
appended hereto by voluntary retirement, resignation,
death and dismissals for just and sufficient cause .... "
The related appendix to the contract, or "list appended
hereto," then sets out 134 names of the printers at work, all
members of the Union. It is important to note that the
"early retirement plan" provided for in the contract itself
and identified by precisely those words, applies - again by
use of unmistakable language - to "present situation
holders." This means, again, the 134 persons individually
named in the contract appendix.
Both the ultimate purpose of these clauses and the words
used at many places in the fuller language used in the
contract are unusual in employer-union contracts. But in
plain language, what they mean - and all parties at the
hearing agreed that this is so - is that at least up to the end
of 1976, when that agreement was to expire, Respondent
bound itself not to remove from its payroll any one of the
persons named in the appendix - virtually all of the
regular full-time employees in its composing room. They
could retire, as provided; they might die; they might just
quit. But unless they misbehaved and merited discharge for
"just and sufficient cause," they had to be paid full time
regardless of whether or not there was any work for them
to perform.
Offer, and Payment, Over-and-Above Contract
Terms
By May 1976 there was not enough work for all the
people in the composing room to do. The regular pension
benefits provided for in the contract through the joint
pension trust fund, even with the additional early retire-
ment that employees under age 62 could choose, had not
been sufficiently attractive to employees to induce enough
of them to accept what had been agreed upon by contract
and to get off the payroll. In order to induce some of the
unneeded printers to leave and thereby to curtail the
unnecessary part of its payroll, Respondent decided to
offer them more in monthly retirement payment than the
contract called for. It prepared a written plan called
"Voluntary Employment Termination Incentive Payment
Option," and distributed it among the employees. The offer
was that employees who could not retire at all under the
contract could now get some benefits if they went away;
others could get more than the contract provided; under
one provision some printers could choose a quick check for
$15,000 in place of periodic support.
Respondent had offered a similar voluntary retirement
program the year before, in 1975, but made available to
only some of the employees listed on the contract
appendix. That plan had long ago been discontinued
because, as the manager of Respondent said at the hearing,
it had not been "successful." By this he meant that not
enough people had left the payroll. It is not necessary here
to set out the details of the 1976 plan, for all that matters is
that, as Respondent conceded at the hearing, it substantial-
ly departed from the contract provisions.
The Union first learned of the Company's intention to
pay greater retirement benefits to its employees than the
contract called for, on May 20, in the manager's office.
Theodore Kees, president of the Local Union, and Edward
Lindt, chapel chairman, were called in. There is a pointless
dispute among the witnesses as to precisely what was said
at that meeting. The union agents said they were handed a
copy of the plan, but did not really read it, and rejected it
off hand. Anderson, the general manager, said the
Company did not at that meeting put the plan in the hands
of the union agents. But they agreed that the immediate
reaction to the entire proposal was rejection by the Union.
From Anderson's testimony: "Mr. Kees volunteered that if
we presented the proposal to him, he would take it down
before the National Labor Relations Board. .... the plan
was not submitted because of the statement that it was
going to go before the National Labor Relations Board, as
a charge." Without belaboring the details, there is no
question but that at that meeting all the Union said was it
was opposed to the plan and would file charges. I also
credit Kees' testimony that he told the Company that day
that in his opinion the subject was a negotiable matter.
The Company did nothing until it met with the union
agents again on July I. Here, Anderson's testimony is that
he explained to the Union that there had not been enough
"attrition," and that the Company needed "a change
because of the high cost of the over staffing." Anderson
continued that despite his explanations to Kees that the
employer was pressed economically to do this, all the union
president did was say, "that it would still go to the Labor
Board."
There was absolutely no such thing as bargaining
between the parties about this proposal. Apparently, in
terms of money, the proposal was worth about $20,000 to
each man who retired, over and above whatever the
contract provided for anyway. At one point the union
agents laughed at the idea, and suggested instead the job
might be worth $150,000. The parties bandied back and
forth with words such as "silly" and "ridiculous," to one
another. It is also clear, on the uncontradicted testimony of
union witnesses, that management told the Union that very
day they intended and were going to put the plan in effect.
They did so that very day.
On July 2 the Company posted a notice in the composing
room inviting employees to study the details of the plan
and to retire. The Union posted a notice to the same people
on July I advising its members not to accept the plan, and
informing them that it was the Union's intention to file
charges with the National Labor Relations Board because
of what the Company was doing.
Between July I and August 5, 13 employees accepted the
Company's proposal, were paid, and have since left the
Company.
Analysis and Conclusion
Retirement and pension benefits later to be given
employees presently on the job are conditions of employ-
ment within the meaning of that phrase as used in the
statute, and therefore mandatory subjects of collective
bargaining. Allied Chemical & Alkali Workers of America,
Local Union No. I v. Pittsbwurgh Plate Glass Co., Chemical
Division, et al. 404 U.S. 157 (1971). This means the
employer may not as to this subject deal with its employees
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individually, or unilaterally, in disregard of their bargain-
ing agent. And, of course, this also means that, after the
employer has bargained with the union about such pension
and retirement benefits, and signed a fixed contract
precisely detailing the agreed-upon conditions, it may not
thereafter deal with its employees individually, or unilater-
ally, without the approval of their bargaining agent.
Respondent had agreed with the Union 134 people would
stay on the payroll - work or no work, but would be given
so much but no more after leaving as later compensation
for having worked there. In the face of the Union's
absolute refusal to agree to proposed changes in the
contract terms, Respondent did as it pleased. If any more
be required to prove the commission of unfair labor
practices in this situation, one need only look at Section
8(d) of the statute, which in so many words says that where
there is in effect a collective-bargaining agreement "the
duty to bargain collectively shall also mean that no party to
such contract shall terminate or modify such contract,"
and that "the duties so imposed [by the statute] shall not be
construed as requiring either party to discuss or agree to
any modification" of the contract "if such modification is
to become effective before such terms and conditions can
be reopened under the provisions of the contract."
I find that Respondent violated Section 8(aX5) of the Act
by dealing directly with employees on the subject of how
much money they would receive in retirement benefits and
by in fact paying a number of them over and above the
amounts the current contract called for.
The General Counsel takes a different view of the case.
He argues that the unfair labor practice is to be seen in the
fact that Respondent, after hearing the union agents say
that this was a negotiable matter, failed in its statutory duty
to discuss the matter in good faith, comprehensively, with
an open mind. For the most part, the General Counsel's
brief reads as though the contract did not exist. He reads
more in the words of the union president than was
intended, or that in fact the following conversation among
the parties would indicate. This was Kees' way of telling
Respondent that it could not lawfully do this directly by
dealing with the employees; in fact, Kees' offhand
statements at the beginning of both meetings that he would
go directly to the Labor Board to prevent what was about
to happen could not make his position clearer.
I think the General Counsel reads more than is
warranted in the Board's holding in Equitable Life
Insurance Company, 133 NLRB 1675 (1961), which says
that where an employer has told the employees it wishes to
give them more in pay and the union requests that the
matter be discussed, the employer is obligated to talk with
the union about its intention. It does not follow from this
holding, however, that where in the end the union simply
will not "agree," as the statute says is its right, the employer
may nevertheless disregard the total language of Section
8(d) or the binding effect of the contract upon both parties.
As to the factual assertion that Respondent did not
bargain in good faith with the Union about its intent,
certainly not to the point where in other circumstances an
impasse could be spoken about, I find it to be correct on
this record. If ever there was a picture that shows no
bargaining worth mentioning, this was it. All that hap-
pened was a mutual exchange of belittling remarks, each
party calling the position of the other "silly" or "ridicu-
lous." The Company's offer of the additional payment to
the employees amounting to about $20,000 over the years,
the Union came back with the suggestion the job was really
worth $150,000. In ignoring the Union's cross-suggestion
that the amount of the Company's offer should be raised to
$150,000, Respondent's brief contends that it was the
Union which therefore failed to bargain in good faith. But
there is testimony of Richard Friedman, Respondent's
assistant business manager, who testified that at the July 1
meeting management responded to the Union's position
"by saying that there is no way that the publisher can make
an offer to you - the ridiculous offer that you are
proposing to the News American." The one thing that
appears clearest on this record is that neither party moved
from its original position, the Company saying offhand this
is what it was going to do then and there, and the Union
saying it simply would not consent. There was no impasse
because there was no bargaining at all.
But even assuming any of the talk that took place could
be described as collective bargaining, so long as a party is
not required to agree, in the words of the statute, I cannot
see how its attempts to explain to the other party why it
does not agree, or even its attempt to persuade the
employer to a different course can deprive it of this basic
legal right.
I find no merit in Respondent's defense assertion that the
Union itself refused to bargain, or that there was any
impasse. I also find no merit in the assertion that what was
involved here was not a condition of employment and
therefore a bargainable issue under the statute. The essence
of the new proposed plan was how much money was the
Employer going to pay its present employees for having
worked there. Carnation Company, 192 NLRB 237 (1971),
is therefore completely inapposite. As to the further
argument in Respondent's brief that because acceptance of
its offered inducement was voluntary on the part of the
employees the money part of what it was giving them must
be ignored, this is not the place to teach logic.
There is also an assertion that the Union waived any
right to bargain about a negotiable matter; nothing could
be further from the truth. Here Respondent relies upon the
fact that in 1975 the Union did nothing about its unilateral
action. From Pacific Coast Association of Pulp and Paper
Manufacturers v. N.LR.B., 304 F.2d 760 (C.A. 5, 1962),
cited in Respondent's brief: "The fact that, for nearly 15
years, the Unions did not insist upon doing so, does not
require a finding that they had bound themselves not to do
so the next time."
And finally, a last defense assertion is that Respondent
had no other choice because it was throwing money away
- paying people who were not doing any work. On this
record there is no denying the assertion seems true. But
economic considerations appropriately govern the thinking
of both parties when the collective-bargaining agreement is
negotiated; once it is made the parties are stuck with its
terms. If either could change it at all for economic reasons
there would be no purpose in having any collective-
bargaining agreements.
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BALTIMORE NEWS AMERICAN
IV. THE REMEDY
I think the real question in this case is what shall the
remedy be. Throughout the hearing the Union complained
that the Company was trying to buy the employees out of
their jobs, subverting their self-interest with a pittance,
offering perhaps S20,000 for jobs worth $150,000. Normal
Board procedures have long been to order a respondent to
undo the effects of its illegal conduct, put the people back
where they were, restore the status quo. But here again the
General Counsel is somewhat ambivalent in his position.
His brief speaks more of what remedies he does not request
than what he seeks. He went out of his way to make it clear
he does not think the retired employees need be offered an
opportunity to return to their jobs. He also says the
General Counsel "takes no position whether" the retirees
need repay to the Company what extra money they have
received for going away if they should choose to return to
work. The clear request of the General Counsel, if he is to
be taken literally, is that Respondent must be ordered to
resume paying 134 people full pay without regard to the
fact - clear on this record - that there is no work in the
composing room for a substantial number of the original
135. From the General Counsel's brief: "The status quo
... is a bargaining unit having 134 composing room
employees with the guarantee of lifetime employment ...
General Counsel seeks only the restoration of the previola-
tion conditions in the Respondent's composing room; i.e.,
a bargaining unit in which 134 employees have a contrac-
tual guarantee of lifetime employment." The union puts it
differently: "the only proper means of returning the parties
to a status quo ante is through a restoration of situations to
the bargaining unit, and payment by Respondent of those
dues lost through the absence of these situations." The
General Counsel's position amounts to a demand that
Respondent now put somebody on its payroll - no matter
who - and pay them regardless of whether there is work
for them to do or not. What the Union is really saying is
that while Respondent need not put people on its payroll if
there is no work for them to do, it should be ordered
nevertheless to pay directly to the Union whatever checkoff
moneys, or other payroll contributions employees who
might work - but in fact are not working - would make.
There is no precedent in Board law for ordering an
employer-respondent to place people on its payroll -
persons who have never before been its employees and who
therefore have not themselves suffered a hurt at its hands
- and pay them while concededly there is no work for
them to do. And it has long been an established principle
that remedial orders under this statute are not to be
punitive in character, but only restorative of the status quo.
There is a certain literal logic in the contention that
absolute restructuring of the past in this case means
reestablishing the artificial arrangement of the unusual, to
say the least, contract in effect when the unfair labor
practices were committed. But it does not follow, merely
because the parties, for reasons sufficient to themselves,
saw fit to agree to force payment to employees who do not
work, that the Board of necessity ought to be party to such
2 Although not exactly in point, a phrase from the decision of the Second
Circuit Court of Appeals in E.E.O.C v. Steam Filters Local 638, 13 F.E.P.
methods. The General Counsel could as well argue that
where an unlawfully discharged employee elects not to
accept the normal offer of reinstatement following a Board
order, the employer must hire a stranger in his place, work
or no work.
Moreover, it is not true that the contract guaranteed
continued existence of a unit of "134 composing room
employees," as the General Counsel asserts. There is a
confusion in terms here; the words "job" and "situation"
are bandied about interchangeably, but as used in the
context of this case they have totally different meanings. In
my experience a job refers to a condition where there is
certain work to be done and an employee performs it; the
man has a job, works at it, and therefore is a paid
employee. As used in this case - in the written contract
and by the union representatives at the hearing - a
"situation" is a job in which there may or there may not be
any work to be performed, where the man on the "job," or
in the "situation," works or does not work - depending
upon whether or not there is any work to be performed -
but is paid regardless of whether he works.
There is another reason for denying this request that
Respondent be ordered to call people from who knows
where, and pay them now for "standing around doing
nothing." The contract does not say the Employer agrees to
pay people even if it should have no work for them to do; it
says it shall pay "members who are presently employees
... named . . . on the list appended hereto .... " In
plain language this means Joe, Sam, and Harry - or all the
Joes, Sams, and Harrys individually identified by name in
the appendix to the contract - have a contractual right to
be paid even if there is no work for them. The contract does
not say that if any of these quit, die, retire (or refuse to
accept Respondent's offer of reinstatement as provided for
here?), Respondent is obligated to call someone from off
the street - even if it has no work for them to do, and pay
him also.2
I also find no merit in the Union's suggestion that
Respondent be ordered to pay to the Union whatever
moneys it would have forwarded had the 13 now retired
employees never left work. I suppose the moneys, not
detailed in the brief, include such things as dues checkoff,
pension contributions, and health and welfare payments. A
labor organization has no existence apart from its mem-
bers. And any assets payable to it by an employer must be
predicated upon work performed by employees - mem-
bers of or represented by the union. Payments are not
made by an employer to a union on the basis of theoretical
abstractions.
The 13 employees who were unlawfully induced to leave
their jobs must be offered an opportunity to return to work
if they so desire. They are also free to remain in permanent
retirement. If they do return, they must be made whole,
and paid for what wages they lost on the job for having left.
As usual, any interim earnings they have had will be
deducted from their lost wages with Respondent in the
event of their return. In this special case, the measure of
interim earnings will include what payments Respondent in
fact gave them in the form of preferred benefits under the
705, is not totally inapposite: [W ]e are not in the business of redistributing
the wealth ...
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan, including, wherever it may have happened, the
$15,000 offered as single payment benefit.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set out in section 111,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
I. By dealing individually and unilaterally with its
employees concerning pension and retirement benefits and
by paying them pension and retirement benefits in excess
of the conditions set out in its current collective-bargaining
agreement with Baltimore Typographical Union No. 12,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aXl) and (5) of
the Act.
2. The aforesaid unfair labor practices are unfair labor
practices [affecting commerce] within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
The Respondent, The Baltimore News American Divi-
sion, The Hearst Corporation, Baltimore, Maryland, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Dealing individually and unilaterally with its employ-
ees concerning pension and retirement benefits while a
collective-bargaining agreement covering such conditions
of employment is in effect between Respondent and
Baltimore Typographical Union No. 12, or paying them
pension and retirement benefits in excess of the amounts
provided for retirement and pension benefits in its
contract, without approval of the contract union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist Baltimore
Typographical Union No. 12, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to each of the 13 employees who retired during
the year 1976, pursuant to Respondent's innovative early
retirement plan, immediate reinstatement to their prior
positions, or, if such positions no longer exist, to compara-
ble positions, without prejudice to their seniority and other
rights and privileges.
(b) Make whole all of the foregoing employees for any
loss of pay or benefits they may have suffered by reason of
their retirement in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant in Baltimore, Maryland, copies of the
attached notice marked "Appendix." 4 Copies of said
notice on forms provided by the Regional Director for
Region 5, after being duly signed by its representatives,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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BALTIMORE NEWS AMERICAN
APPENDIX
NoncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LAiOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT offer to our employees individually
benefits in terms and conditions of employment,
including particularly pension and retirement benefits,
in excess of the terms set out in our current contract
with Baltimore Typographical Union No. 12.
WE WILL NOT pay individually to our employees
pension and retirement benefits in excess of the terms
set out with respect to those conditions in our current
contract with the Union.
WE WILL offer reinstatement to each of the 13
employees who during 1976 retired pursuant to our
voluntary retirement plan and make them whole for
any loss of earnings they may have suffered in
consequence of their separation from employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to join or assist
Baltimore Typographical Union No. 12, or any other
labor organization, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
BALTrMORE NEWS
AMERICAN DIVISION, THE
HEARST CORPORATION
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