The Idaho Statesman

National Labor Relations Board - Board Decisions

Aug 29, 1986

281 N.L.R.B. 272 (N.L.R.B. 1986)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Idaho Statesman and Boise Typographical
Union No. 271, International Typographical
Union, AFL-CIO. Cases 19-CA-17281, 19-
CA-17300, and 19-CA-17942
29 August 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 April 1986 Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the Charging Party filed a brief answering
the Respondent's exceptions, and the International
Typographical Union filed an amicus brief in sup-
port of the judge's decision.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, The Idaho
Statesman, Boise, Idaho, its officers , agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
i The International 's motion seeking permission to file an amicus brief
is granted
2 In sec III,B of his decision , the judge inadvertently omitted the
word "not" in the first line of the paragraph immediately following fn 8.
That sentence should read "If Respondent was not restricting the unit as
to the "A" trainees, it was attempting to expand the unit as to the "B"
trainees who were not part of the prior unit, but are now permitted to
perform unit work "
Daniel R. Sanders, Esq., for the General Counsel.
John B. Jaske, Esq., of Arlington, Virginia, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Boise, Idaho, on 13
February 1986,1 pursuant to a second order consolidat-
ing cases, consolidated complaint , and notice of hearing
issued by the Regional Director for the National Labor
Relations Board for Region 19 on 24 December and
which is based on charges filed by Boise Typographical
I All dates refer to 1985 unless otherwise indicated
Union No . 271, International Typographical Union,
AFL-CIO (the Union) on 11 February (Case 19-CA-
17942), 19 February (Case 19-CA- 17300), and 15 No-
vember (Case 19-CA-17300). The complaint alleges that
The Idaho Statesman (Respondent) has engaged in cer-
tain violations of Section 8(a)(1) and (5) of the National
Relations Act (the Act).
Issue
Whether Respondent bargained to impasse over a non-
mandatory subject of bargaining.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs . Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it is a corporation engaged in
the business of publishing a daily newspaper with office
and place of business located in Boise, Idaho . It further
admits that during the past year, which period is repre-
sentative of all times material , in the course and conduct
of its business operations, it held membership in or sub-
scribed to interstate news services , published nationally
syndicated features, and advertised nationally sold prod-
ucts . Accordingly, it admits , and I find, that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Boise Typographi-
cal Union No. 271, International Typrographical Union,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For approximately the last 75 years, Respondent and
the Union have maintained a collective-bargaining rela-
tionship. Among other subjects covered by the various
agreements over the years has been the mailroom oper-
ation. At issue in this case, mailroom work includes in-
serting of advertising material into the general circula-
tion daily newspapers, bundling, and transporting of the
papers from the mailroom to the docks. There, other em-
ployees load the papers onto trucks for delivery and dis-
tribution throughout Boise and surrounding areas. To
clarify the controversy in the present case, I provide
below a brief historical overview divided into three
parts.
281 NLRB No. 41
IDAHO STATESMAN
1. 1977-1980
The contract between the parties , extending from 3
October 1977 to 30 September 1980, is in the record.
(G.C. Exh . 2.) My attention is directed to pages 25-26 of
the contract where reference is made to journeyman
mailer and mailer apprentices . In addition, a number of
casual, part-time persons were employed on an "as
needed" basis for the purpose of doing the hand stuffing
and inserting of the advertisements . Their work would
vary considerably by the day of the week and season of
the year.
2. 1981-1984
A second contract between the parties extending from
1 October 1981 to 30 September 1984 is also in the
record . (G.C. Exh. 3.) Here, my attention is directed to
pages 16-18 where certain changes were made in the job
classifications of persons who work in the mailroom. To
supplement the rank of journeyman and apprentice mail-
ers, the classification of "A" trainees was established.
These persons could do the same work as journeymen
except for equipment maintenance or supervisory work.
The "A" trainees were selected from the ranks of those
persons who had been doing the casual part-time mail-
room work under the prior contract . In numbers, the
"A" trainees ran from 8 to 10 employees . According to
the General Counsel 's witness, H. Fredrick Liebenau,
president of the Union , 1980-1985, and 16-year employee
of Respondent , the "A" trainee eventually came to be
equivalent to the apprentice classification , even though
apprentices were not formally abolished so far as the
contract terminology was concerned.
A second classification created by the 1981-1984 con-
tract was called the "B" trainee . Considered by the
Union to be nonunion employees , the "B" trainees were
now the new, part-time casual employees . The "B" train-
ees fluctuated between 25 and 36 employees . While the
"A" trainees usually worked a full -time shift of 35 hours
per week, the "B" trainees worked between 14-30 hours
per week . "B" trainees were limited in their work to op-
erating the inserting equipment and related equipment
during inserting shifts . Regarding compensation of "B"
trainees, the contract reads (p. 18) "They ["B" trainees]
shall not be covered by any other provision of this con-
tract . Their wages and other conditions of employment
shall be established by company policy."2
3. 1984-present
As the prior contract expired , Respondent decided to
change the "A" and "B" trainee classifications and to
make certain other mailroom changes as well. At first,
Respondent proposed to the Union in negotiations for a
2 During the negotiations which led to the 1981-1984 agreement, the
parties never discussed whether the "B" employees were part of the col-
lective-bargaining unit. The agreement itself states, "The Employer rec-
ognizes the Union as the exclusive bargaining representative of all em-
ployees covered by this Agreement ." (G.C. Exh 3, art. I.)
273
new contract that a new classification called "helper" be
established and that it absorb the former "A" and "B"
trainee categories . Three reasons were provided for this
proposed change by Respondent 's witness, Thomas Bran-
don, a 22-year veteran of Respondent 's employ, the last
12 of which were as production director of all produc-
tion departments including the mailroom . Brandon testi-
fied as follows:
First, Respondent decided that the "A" trainees were
being paid too much and given higher benefits than were
warranted for the work being done . Second, the Union
had won a recent arbitration case, the result of which
was to increase the hours of "A" trainees and resultant
costs to Respondent, while reducing the hours of "B"
trainee, who worked at lower scale . Third, Respondent
had surveyed a group of comparably sized newspapers
and their mailroom operating procedures . The result of
this survey led Respondent to believe that it was em-
ploying many more full -time employees than the other
newspapers . Accordingly , Respondent desired to employ
a single group of part-time persons to augment its trained
journeymen , and thereby reduce its labor costs.
As part of its proposal to abolish the "A" and "B"
trainee classifications , Respondent also proposed to set
helper compensations and other conditions of employ-
ment pursuant to company policy . This was the same
method used for "B" trainees' wages and other condi-
tions of employment under the prior agreement.
Finally , Respondent proposed to change the Union's
jurisdiction to encompass only the four corners of the
mailroom, as opposed to jurisdiction over mailroom op-
erations which might be conducted in other locations,
leased, owned, or operated by Respondent , as had been
the case under the prior contract.
The Union objected to the three changes described
above and negotiations were not successful to resolve the
controversy . I turn next to review briefly the bargaining
sessions.
4. The negotiations over the new contract
The negotiations between the parties occurred during
two separate time periods . First, between August 1984
and 8 January , the parties met and negotiated approxi-
mately 20 times . It is stipulated that no agreement was
reached, that the parties reached impasse about 2 or 3
February, after the Union voted to reject Respondent's
last offer (G.C. Exh. 7), and that Respondent implement-
ed its last and final proposal about 2 or 3 February. Re-
spondent implemented its last offer by posting a notice
containing the last offer and a statement that the terms
and conditions contained therein were then in effect.
(G.C. Exhs. 8, 26.) As of the early February date indicat-
ed above, the parties reached agreement on most or all
other major issues.
On 28 August, Respondent 's publisher wrote a letter
to the Union making certain additional proposals relating
to mailroom work. The letter reads as follows:
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 28, 1985
Gordon Robins
Boise Typographical Union No. 271
4353 Adams
Boise, Idaho 83714
Dear Mr. Robins:
In view of the Arbitrator's decision in the recent
layoff case, together with the positions the Union
took in the second arbitration, we are proposing the
following changes in the Posted conditions:
1. Add to Article V. Section 9, the following:
"Irrespective of any other provision in this agree-
ment, Journeymen Mailers who are not on the
job guarantee list may be terminated without
other cause or without any reasons stated to
them to allow for the broader utilization of Mail-
room Helpers."
Journeymen Dale Dunn and Lewis Lavala will
be affected by this provision.
2. Change Article VI, Section 2, to read:
"There are no more "A" or "B" Trainees. There
are Journeymen, Apprentices and Mailroom
Helpers in the bargaining unit. All may perform
any bargaining unit work under the direction of
the office. The Mailroom Helpers shall not be
covered by any other provisions of this contract.
The wages and other conditions of employment
of Mailroom Helpers shall be established by
Company policy. Specifically, nothing shall pre-
vent the office from scheduling a Mailroom
Helper to perform work in the Mailroom rather
than scheduling Journeymen and Apprentices,
provided that job guaranteed Journeymen have
been offered no less than five shifts per week."
3. Add an additional provision to the severance
clause:
"This clause shall not apply to the termination of
Dale Dunn."
The reason for this proposal is that we believe
that Dunn has previously been offered and re-
fused a substantial severance package.
In addition, last January, the Company offered to
agree not to reduce the pay or benefits of any Mail-
room Helpers in exchange for a prompt contract.
Since no contract occurred, we propose to reduce
any Helper making over $6.09 per hour to that rate.
This is the top limit of the current wage range for
Mailroom Helpers. Further, we propose that all
Helpers have the same benefits.
Finally, if the current decision and the pending
case should allow us to clarify our positions so that
the Company gets what it needs as to the Mailroom
operation, and because the Company believes that
the Union has used the arbitration process to thwart
our clearly stated bargaining goals, we propose to
remove arbitration from the Posted Conditions.
The Company is, as always willing to meet with
you to consider any counterproposal you may have.
Should you wish such a meeting , please contact me
at once since we wish a quick resolution of these
issues.
Regards,
(s) Gary F. Sherlock
Publisher [G.C. Exh. 9]
As a result of the 28 August letter, negotiations were
reopened briefly. A total of four sessions were held in
September and October. For the final two of these ses-
sions, the union negotiating committee was joined by
Ken Prairie, an International representative for the Ty-
pographical Union. A witness at hearing, Prairie testified
that the Union made certain counterproposals such as re-
ducing its position concerning the amount of revenue the
"A" and "B" workers might receive or the hours they
might work. However, the Company rejected all of this
because they did not want a two-tiered system to contin-
ue in the mailroom. On 1 October Respondent submitted
its final offer (G.C. Exh. 27). This was rejected by the
Union and the parties remained at impasse for the second
time. Respondent then implemented its proposal.
On cross-examination, Prairie admitted that at no time
during negotiations had the Company stated that the
helper classification would not be part of the unit. How-
ever, he went on to testify that certain language in the
28 August letter was confusing to the union negotiators:
There are no more "A" or "B" trainees. There are
Journeymen, Apprentices and Mailroom Helpers in
the bargaining unit. All, may perform any bargain-
ing unit work under the direction of the office. The
Mailroom Helpers shall not be covered by any
other provisions of this contract. The wages and
other conditions of employment of Mailroom Help-
ers shall be established by Company Policy.
After reviewing the excerpt from the letter, Prairie ex-
plained on cross-examination that the Company's position
was to blanket in the helpers as part of the unit, but not
to bargain with the Union over the helpers' wages or
other conditions of employment.
In his testimony, Respondent witness Brandon denied
that Respondent sought the right to make unilateral
changes in the terms and conditions of helper employ-
ment. (R. Br. 88.) Brandon continued that if Respondent
desired to change company policy, insofar as it affected
helper wages, or other terms and condition of helper em-
ployment, then Respondent would be required to and
would in fact give the usual notice to the Union and then
bargain over the particular matter proposed. (R. Br. 77,
104.) According to Brandon, an example of the Compa-
ny's position is found in the 28 August publisher's letter
to the Union, quoted above. There the Company pro-
posed a helper wage of $6.09 per hour. This was dis-
cussed with union negotiators in September and October
before implementation. (R. Br. 89.)
Under cross-examination, Brandon's seemingly clear
and straightforward testimony regarding Respondent's
IDAHO STATESMAN
policy appeared to blur considerably . Witness this ex-
change.
Q. In the posted conditions which were posted in
February of '85, the mail room helpers language ba-
sically says that they shall not be covered by any
other provisions of this contract , that wages and
other conditions of employment shall be established
by company policy . Where in that do you see a
need to tell the Union when you are changing any
wage rates for these people? Wouldn 't you interpret
that language of giving you an absolute authority to
change it whenever you desire?
A. We don't interpret it that way . We interpret it
that the initial wages that were set, and at any time
we wish to change the wages, the wage scale, for
instnce, that those would be discussed with the
Union. They would be notified and we would dis-
cuss those.
Q. Do you view that as, then, any time you wish
to make a change, you tell the Union, discuss it
with them and if you reached an impasse , you could
change it during the term of the contract, assuming
that everybody reached agreement on this language,
and this was a signed contract?
A. Well, our position would be to discuss all
issues with the Union.
Q. But you could change the wages and any
other terms and conditions of employment of the
helpers?
A. Under the present conditions, we could.
Q. No, if the contract was in effect?
A. I don 't know that I am qualified to make
that-give that answer. (R. Br. 96-97.)
Later in his cross-examinations , Brandon conceded
that, in general, company policy has been in effect for
the last 15 years, during which time various changes
have been made . Historically , the Company never bar-
gained with the Union over any of the changes . (R. Br.
106.)
Finally, I note that currently the mailroom employs
approximately 15 journeymen and 40 helpers. Only after
helpers reach an average of 20 hours or more for a year,
do they qualify for certain company benefits the follow-
ing year . Respondent intended to limit the helpers to 20
hours or less . However, Brandon did not know whether
any of the helpers were currently averaging 20 hours or
more.
Witness Doralea Russell, a mailroom employee for ap-
proximately 13 years, provided testimony on this point.
Formerly an "A" trainee for 3 years , Russell averaged
30-37 hours per week . Now as a helper she averages 14-
20 hours per week . Her wages were reduced from $8.14
an hour as an "A" trainee , to $6.09 an hour as a helper.
Her experience is typical for all former "A" trainees who
are still working for Respondent.
B. Analysis and Conclusions
Both sides agree that, on two separate occasions, the
parties bargained to impasse . According to the General
Counsel, the parties were bargaining over the composi-
275
tion of the unit, a permissive subject of bargaining. Ac-
cording to Respondent, the parties were bargaining over
a jurisdictional clause, a mandatory subject of bargaining.
Both sides agree that it is a violation of the Act to bar-
gain to impasse over a permissive subject of bargaining.
Professor Morris explains the rationale:
Bargaining to impasse over a permissive bargain-
ing subject is a per se Section 8(a)(5) violation be-
cause, in effect, it is a refusal to bargain over man-
datory bargaining subjects.3
Accordingly, it is essential to determine exactly what the
parties were bargaining over.4 That is, were they bar-
gaining over "wages, hours, and other terms and condi-
tions of employment ," the definition of a mandatory bar-
gaining subject . Or were they bargaining over something
else, such as scope of the unit , a permissive subject.
As noted in the facts above , Respondent's proposal in
issue was divided into three parts : change the Union's ju-
risdiction to the four corners of the mailroom, change
the "A" and "B" trainees into a helper classification, and
determine the helpers' compensation and other condi-
tions of employment pursuant to company policy. It is
helpful to consider each of these separately.
First, I note that jurisdictional clauses concern the as-
signment of work to union members.6 Respondent con-
tends (R. Br. 10) that the change in issue here, to the
four corners of the mailroom , "is virtually identical to
the jurisdictional change approved in Newspaper Printing
Corp. v. NLRB, 692 F.2d 615 (6th Cir. 1982)." In citing
this case, Respondent failed to note the underlying Board
decision, Newspaper Printing Corp., 250 NLRB 1144
(1980), which the Sixth Circuit declined to enforce. I am
bound by Board law fording that the parties bargained to
impasse over unit description and not work description
alone (fn. 3). In reviewing the circuit decision , however,
I note that the court found that the expired agreement
contained the words "all composing room work" while
the impasse proposal stated "all work performed in the
composing room ." In refusing to enforce the Board's de-
cision, the court found that the evidence at the adminis-
trative hearing showed that the two phrases described
the same task. Compare that to the facts in the present
case . Witness this testimony of Liebenau, which I credit:
Q. Also, previously, the Judge asked you about
the language restricting you to the so-called four-
wall concept , as opposed to wherever the employer
did that particular work. Was there any actual work
that the employer was performing outside the mail
room prior to this most recent agreement?
A. Yes.
8 C. Morris, Developing Labor Law, 770 (2d ed . 1983); NLRB Y. Borg-
Warner Corp., 356 U.S. 342, 349 (1958).
• A permissive subject does not become a mandatory subject merely
because the partners have bargained about it . American Stores Packing
Co., 277 NLRB 1656, 1658 fn . 7 (1986), citing Chemical Workers v. Pitts-
burgh Glass Co., 404 U . S. 157, 187 (1971).
Newspaper Printing Corp. Y. NLRB, 625 F 2d 956, 964 (10th Cir.
1980), cert. denied 450 U.S. 911 (1981 ); Boeing Ca v. NLRB, 581 F.2d
793, 797 (9th Cir. 1978).
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Was it a lot or just a little?
A. A good portion of the work.
Q. What was being performed outside the mail
room?
A. The moving of skids with either an electronic
lift truck, dolly, electronic hand dolly, unloading of
trucks when skids arrived from outside the plant,
some dock work. I'm not all familiar with all of the
work that was done. I believe most of the mail
itself, as far as being mailed out, is done within the
mail room. I don't really know how far that goes
past the dock, as far as the mailers are concerned,
the journeymen mailers.
Q. And the language in the expired contract cov-
ered all the work that you were just speaking or.
A. Yes. Correct.
Q. Their proposed language would not have cov-
ered that work?
A. Not the way it was read, the way it was
worded. [R. Br. 56-57.]
I find that Respondent's attempt to change mailroom
work to the four corners of the mailroom, in the context
of this case, relates to the description or scope of the
unit, in the collective-bargaining agreement, and is a per-
missive subject of bargaining.6
I turn next to Respondent's proposal to consolidate the
"A" and "B" trainee classifications into the helper classi-
fication and to determine the helper wages and other
terms and conditions of employment pursuant to compa-
ny policy. Here too, I find the proposed change is an at-
tempt to change the scope of the unit and consequently
Respondent may not insist to impasse on this point.'
I agree completely with the General Counsel that Re-
spondent was, in effect, withdrawing recognition of the
Union to represent a part of the previously recognized
unit, the "A" trainees.8
If Respondent was restricting the unit as to the "A"
trainees, it was attempting to expand the unit as to the
"B" trainees who were not part of the prior unit, but are
new permitted to perform unit work. As a general rule,
insistance to the point of impasse on restriction or expan-
sion of the unit is an unfair labor practice.9
My conclusions above are not affected by the confus-
ing and contradictory language found in Respondent's
February proposals and 28 August letter. In the latter,
Respondent wrote on the one hand that helpers are part
of the unit; on the other hand, it states that helpers will
not be covered by any other provisions of this contract
and that wages and other conditions of employment shall
6 Newspaper Printing Corp. v NLRB, supra, 625 F 2d at 963
7 Bozzuto's Inc., 277 NLRB 977 (1985)
a Cf. San Antonio Portland Cement Co, 277 NLRB 309 (1985)
9 Newspaper Production Co, 503 F.2d 821, 828 (5th Cir 1974) This
case should be compared to the instant case In the cited case, respondent
union represented a unit of skilled photoengravers under a contract about
to expire. The same union was chosen to represent three general produc-
tion workers. After the contract expired , the union insisted to impasse
and subsequent strike that the production workers be included in a single
unit with the photoengravers The court affirmed the Board 's decision
that the union did not violate Sec 8(a)(5) of the Act because a provision
in the expired contract reflected the parties ' intent to include the scope of
the bargaining unit among the issues to be resolved at the bargaining
table No such clause exists in the present case.
be established by company policy. By offering evidence
at hearing on how this conflict should be interpreted,
Respondent seems to agree that the provisions are in
conflict. According to Section 8(d) of the Act, parties
are required to bargain in good faith over wages, hours,
and other terms and conditions of employment for all
unit employees . As noted above, Brandon testified that
Respondent always intended to bargain over any changes
in company policy affecting helpers. For three reasons I
cannot credit Brandon's testimony. First, the testimony is
in clear conflict with the wording in question which
strongly suggests Respondent has unilateral rights in
dealing with the helpers. Second, I note the lack of cred-
ible evidence to show that under the prior contract, with
identical language for the "B " trainees, Respondent bar-
gained with the Union over the "B" trainee wages and
other conditions of employment. Rather, as I have al-
ready noted and will address again below, "B" trainees
were not considered by either party to be part of the
unit. Finally, I cannot find that Respondent's present in-
terpretation was conveyed to the Union during bargain-
ing. Accordingly, it is too late now to be of value to Re-
spondent.
To show that the "B" trainees were not part of the
prior unit, I turn to the prior contract (G.C. Exh. 3, p.
16) which reads as follows:
Under the terms of this agreement , a new classifi-
cation of employee is recognized as being employed
within the mailroom bargaining unit to be registered
as "A" Trainees.
No such sentence refers to "B" trainees. This indicates
that the parties never intended the "B" trainees to be a
part of the unit . Yet under the helper classification, "B"
trainees are permitted to perform unit work. (G.C. Exhs.
9, 26, p. 17.) This is further evidence that Respondent
bargained to impasse over the scope of the unit.
In its brief (at 17), Respondent states: "There is no
direct evidence on this question." As to whether "B"
trainees were part of the unit (at 18), Respondent argues
that even if the "B" trainees were not part of the unit,
Respondent was merely transferring bargaining unit
work to nonbargaining unit employees, a mandatory sub-
ject of bargaining for which bargaining to impasse is per-
missible. In support of its argument, Respondent cites the
case of Newport News Shipbuilding & Dry Dock Co., 602
F.2d 73 (4th Cir. 1979). Respondent's excerpt from page
77 of the case is not complete. The entire passage reads
as follows:
The Board agrees that , unless transfers are specifi-
cally prohibited by the relevant collective bargain-
ing agreement , an employer may transfer work out
of the bargaining unit , as long as the employer first
bargains in good faith and is not motivated by anti-
union animus . [End of Respondent 's quote.] See
University of Chicago v. N.L.R.B., 514 F.2d 942, 949
(7 Cir. 1975); accord , Boeing Co. v. N.L.R. B., 581
F.2d 793, 797 (9 Cir . 1978). It does not follow, how-
ever, that an employer , under the guise of the trans-
fer of unit work, may alter the composition of the
IDAHO STATESMAN
bargaining unit . To do so would not only modify
the job functions of the various unit members but
also affect their right to representation . Thus, im-
plicit in the requirement that the employer bargain
in good faith before changing unit work is the as-
sumption that the affected members of the unit will
be represented.
The case of Newport News Shipbuilding & Dry Dock
Co. v. NLRB, is also important because the court en-
forced the Board 's order finding an 8(a)(5) violation of
the Act because the employer bargained to impasse over
the scope of the unit . The facts are similar to those in the
present case; for example, the controversy in Newport
News Shipbuilding involved the employer 's attempt to
alter the unit description by replacing the words "design-
ers" and "design" (read "A" and "B" trainees) with the
words "draftsman" and "drafting," (read helper) and sub-
sequently bargaining to impasse.' ° The court noted the
evidence indicating the employer 's intent to reduce the
size of the unit. Here, I find that Respondent 's overall
intent was to achieve the same end.
In sum , I find that on two separate occasions, Re-
spondent bargained to impasse over permissive subjects
of bargaining . This constitutes violations of both Section
8(a)(5) and (1) of the Act.11
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent 's oper-
ation described in section I, above , have a close and inti-
mate relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. The Idaho Statesman is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Boise Typographical Union No . 271, International
Typographical Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times material the following described unit
has been an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act, such unit being specified in the unit description of
the collective-bargaining agreement between Respondent
and the Union effective 1 October 1981 -30 September
1984:
All employees covered by the agreement . (G.C. Exh.
3.)
4. At all times material the Union has been and is now
the exclusive representative of the employees in the
above-described bargaining unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
10 Compare World Publishing Co., 220 NLRB 1065 (1975).
11 Bozzuto 's Inc., supra.
277
5. By bargaining to impasse on two separate occasions
on a charge in the bargaining unit 's scope as a condition
for a new collective-bargaining agreement , Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. By unilaterally changing the Union 's jurisdiction
over mailroom work from all mailroom work performed
within the plant or in any building leased , owned, or op-
erated by Respondent , to all mailroom work performed
within the mailroom , by consolidating the "A" and "B"
classifications into the helper classification , and by set-
ting the wages and other terms and conditions of helper
employment pursuant to company policy , Respondent
has engaged in an unfair labor practice within the mean-
ing of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
REMEDY12
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I shall also recommend that, on request, Respondent
be ordered to meet and bargain collectively with the
Union with respect to wages, hours, and other terms and
conditions of employment and to restore the status quo
ante.
Respondent 's unlawful unilateral changes shall be re-
scinded and the affected employees shall be made whole
with interest , computed in accordance with normal
Board policy . See F. W. Woolworth Co., 90 NLRB 289
(1950); Ogle Protection Service, 183 NLRB 682 (1970);
Florida Steel Corp., 231 NLRB 651 (1972).13
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent , The Idaho Statesman, Boise , Idaho,
its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Boise Typo-
graphical Union No . 271, International Typographical
Union, AFL-CIO, by insisting to impasse on a change in
the bargaining unit 's scope as a condition for a new col-
lective-bargaining agreement.
19 The General Counsel seeks a visitatorial clause as part of its
remedy . In O.L. Willis Inc., 278 NLRB 203 (1986), Rebel Coal Co., 279
NLRB 141 (1986), and in Glaziers Local 558 (Forman-Ford & Ca), 279
NLRB 150 (1986), the Board has found such a clause "unnecessary." In
light of these authorities and the lack of any Board authority to show
when such a clause is necessary , I decline to recommend a visitatonal
clause.
1' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
14 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally imposing on its employees a change in
the Union's jurisdiction over mailroom work, to cover
only mailroom work performed within the mailroom, a
helper classification to include the former "A" and "B"
training, and helper wages and other terms and condi-
tions of employment to be set pursuant to company
policy.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and confer with the Union at rea-
sonable times and places with respect to wages, hours,
and other terms and conditions of employment.
(b) On the Union's request , rescind any or all unilater-
al changes made on or after 2 February 1985 and make
its employees whole , with interest , as set forth in the
remedy section of this decision.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Boise, Idaho, location copies of the at-
tached notice marked "Appendix." 1 s Copies of the
notice , on forms provided by the Regional Director for
Region 19 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
that the notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain with Boise
Typographical Union No. 271, International Typographi-
cal Union, AFL-CIO, by insisting to impasse on a
change in the bargaining unit 's scope as a condition for a
new collective-bargaining agreement.
WE WILL NOT unilaterally impose on you changes in
the Union 's jurisdiction over mailroom work to cover
only work performed within the mailroom , a helper clas-
sification to include the former "A" and "B" trainees,
and helper wages and other terms and conditions of em-
ployment to be set pursuant to company policy.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, meet and confer with the Union
at reasonable times and places with respect to wages, and
other terms and conditions of employment.
WE WILL, on the Union's request, rescind any or all
unilateral changes made on or after 2 February 1985, and
make you whole for any losses you suffered, plus inter-
est.
THE IDAHO STATESMAN