The Massillon Publishing Co.

National Labor Relations Board - Board Decisions

Aug 14, 1974

212 N.L.R.B. 869 (N.L.R.B. 1974)

THE MASSILLON PUBLISHING COMPANY 869
The Massillon Publishing Company and The Cleveland
Newspaper Guild , Local No. 1, of the Newspaper
Guild, AFL-CIO. Case 8-CA-7920
August 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 29, 1974, Administrative Law Judge
Samuel Ross issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as noted below, and to adopt his recommended Order,
as modified herein.
We disagree with that portion of the Administrative
Law Judge's Decision which finds that Respondent
violated the Act by Publisher Rowe's statement that
"if there were to be a strike, there would be no con-
tract." We view this statement to be a proper expres-
sion of Respondent' s at least arguably correct
statement of the law. In our opinion, a decision by the
Union to collectively withhold the services of all em-
ployees might well justify Respondent's taking the
position that the Union would thereby be estopped
from claiming that Respondent had to continue to
apply the contract. Hence we find no violation in this
statement.
We also do not find violative of Section 8(a)(1)
Publisher Rowe's responses, when advised in a negoti-
ating meeting by the Union's executive secretary, Jack
Weir, of strike authorization, that Weir was "leading
them [the employees] out onto thin ice," and that if
"they [the employees] followed that man [Weir] out
that door they would be walking the streets unem-
ployed." In order to determine whether the remarks
in question were coercive, consideration must be giv-
en to the nature of the words, the audience, and the
context. Rowe's statements were, for the most part,
true and dealt with what would happen to the employ-
ees as a result of their own action, not his. Thus, if they
left, they would then have been unemployed. Neither
this remark nor the ambiguous allusion to "thin ice"
can be said to be intimidatory. This is especially true
where, as here, the listeners were admittedly sophisti-
cated members of the Union's negotiating committee.
Unlike the Administrative Law Judge, we believe it
highly unlikely that such an audience of seasoned
negotiators would be impressed, much less coerced,
by Rowe's statements. Nor can we accept the Admin-
istrative Law Judge's strained interpretation of
Rowe's remarks that the union negotiators who heard
them would inevitably translate them into a threat
that their employment by Respondent would be ter-
minated if they went out on strike. It can not be
emphasized too much that the statements occurred in
a collective-bargaining context. When an employer
and a union have been dealing amicably with one
another for a number of years, as in this case since
1944, a wider latitude of expression in bargaining ne-
gotiations is permissible than might be tolerated in an
organizing campaign. Examining every statement
made during such negotiations with a microscope for
possible coercive impact can only serve to undermine
and impair seriously the collective-bargaining pro-
cess. It is certainly not conducive to the fundamental
Board precept of fostering industrial stability.
AMENDED CONCLUSION OF LAW
Substitute the following for paragraph 7 of the Ad-
ministrative Law Judge's "Conclusions of Law."
"7. By the foregoing conduct, the Respondent also
has interfered with, restrained, and coerced employ-
ees in the exercise of rights guaranteed by Section 7
of the Act, and thereby has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, The Mas-
sillon Publishing Company, Massillon, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Delete paragraph 1(a) and reletter the present
paragraphs 1(b) and 1(c) as 1(a) and 1(b), respectively.
2. Substitute the attached notice for the notice rec-
ommended by the Administrative Law Judge.
212 NLRB No. 137
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, an Administrative Law Judge
of the National Labor Relations Board has found that
we violated the National Labor Relations Act, and
has ordered us to post this notice and we intend to
carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, loin, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights.
Since it was decided that we violated the Act
by failing and refusing to process the grievance
involving the discharge of Vanna Schuster in ac-
cordance with the procedures provided in article
XII of our collective-bargaining agreement with
the Cleveland Newspaper Guild, Local No. 1, of
the Newspaper Guild, AFL-CIO, which was exe-
cuted on September 8, 1972, WE WILL upon re-
quest process the said grievance in accordance
with all the procedures provided in said contract.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form labor organizations, to join or assist the
Cleveland Newspaper Guild, Local No. 1, of the
Newspaper Guild, AFL-CIO, or any other labor
organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activi-
ties, except to the extent that such rights may be
affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized by Section 8(a)(3) of the Act.
THE MASSILLON PUB-
LISHING COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Suite 1695, Anthony J. Celebrezze
Federal Building, Cleveland, Ohio 44199, Telephone
216-522-3715.
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried before me in Massillon, Ohio, on January 31, 1974.
The charge in this case was filed by the above-named Union
on October 1, 1973, and a complaint based thereon issued
on November 16, 1973, against the above-named Company
(herein called Respondent) which alleges that the Respon-
dent engaged in unfair labor practices within the meaning
of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.
Specifically, the coplaint alleges that the Respondent, with-
out prior notice or bargaining, unilaterally changed the
grievance procedures contained in its collective-bargaining
agreement with the Union which represents an appropriate
unit of its employees, and refused to process the Union's
grievance over the discharge of a unit employee, and there-
by violated Section 8(a)(5) and (1) of the Act. The complaint
further alleges that the Respondent also violated Section
8(a)(1) of the Act by threatening employees with loss of
employment and other reprisals if they assisted the Union
or engaged in other concerted activities protected by the
Act. The Respondent filed an answer which denies the sub-
stantive allegations of the complaint and the commission of
unfair labor practices.
Upon the entire record, and my observation of the wit-
nesses and their demeanor, and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS OF FACT
I COMMERCE
The Respondent is an Ohio corporation whose principal
place of business is located in Massillon, Ohio, where it is
engaged in the business of publishing a newspaper, the Eve-
ning Independent. The Respondent subscribes to interstate
news services, publishes nationally syndicated features, and
advertises nationally sold products. Its annual gross volume
of business exceeds $200,000. Based on the foregoing admit-
ted facts, the Respondent concedes, and I find that it is
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE MASSILLON PUBLISHING COMPANY 871
II THE LABOR ORGANIZATION INVOLVED
It also is not disputed, and I find, that The Cleveland
Newspaper Guild, Local No. 1, of the Newspaper Guild,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are relatively simple, and to a great
extent undisputed. Since 1944, the Union has been continu-
ously recognized by the Respondent as the exclusive collec-
tive-bargaining representative of its employees in the
following unit which concededly is appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed at the Respondent's Massil-
lon, Ohio, facility in the editorial, advertising, proof-
reading, commercial, circulation, janitorial, and
maintenance departments, excluding employees who
are members of other recognized unions in other de-
partments, and the publisher, business manager, editor,
-managing editor, advertising manager, circulation
manager, and auditor.
The last collective-bargaining agreement between the
Union and the Respondent was executed on September 8,
1972, and its term extended retroactively from August 30,
1971, until its expiration date on February 24, 1973. The
said contract contained a grievance procedure for handling
all matters "involving the interpretation, application, ad-
ministration or alleged violation" of the agreement, and
provided for final and binding arbitration by a "Board of
Arbitration" of all disputes which were not successfully
resolved by a' joint standing committee of two representa-
tives each from the Respondent and the Union. The con-
tract did not contain a no-strike provision. It did, however,
contain the following provision:
Section 3. At any time not more than ninety (90) days
nor less than sixty (60) days prior to the termination of
this Agreement the Publisher [the Respondent] or the
Guild [the Union] may initiate negotiations for a new
agreement to take effect Feb 25, 1973, and [the] condi-
tions of this Agreement shall remain in effect during such
negotiations. If such negotiations do not result in a new
agreement prior to the expiration of this Agreement,
the new agreement shall be made retroactive to Febru-
ary 25, 1973. [Emphasis supplied.]
In anticipation of the expiration of the said agreement, on
January 10, 1973,1 Jack Weir, the Union's executive secre-
tary, sent a letter to John E. Rowe, the Respondent's pub-
1 All dates hereinafter refer to 1973 unless otherwise noted.
lisher, in which he expressed the Union's desire "to change
the terms and conditions of the agreement between the
parties," and stated that he would contact Rowe to arrange
"a mutually satisfactory time and date for our first meet-
ing." Thereafter, the parties held their first negotiating ses-
sion on March 8 and subsequently met again fairly regularly
for further negotiations.2 As of the date of the hearing in this
case , no agreement had been reached by the parties on a
new contract.
On about May 9, as a result of the Union's disenchant-
ment with the progress of the negotiations towards a new
contract, the unit employees voted at a union meeting to
authorize the negotiating committee to call a strike against
the Respondent if they deemed it necessary. At an ensuing
negotiating session in May, the Respondent's representa-
tives were notified by Weir that authorization to call a strike
had been granted to the Union's negotiators, and Publisher
John E. Rowe responded that Weir was "leading them [the
employees] out onto thin ice," and that if "they [the employ-
ees] followed that man [Weir] out the door that they would
be walking the streets unemployed." 3 In addition, accord-
ing to the uncontroverted and credited testimony of em-
ployee David Crookston, a member of the Union's
negotiating committee, either Publisher Rowe or his son
Business Manager John L. Rowe also said that "if there
were to be a strike, there would be no contract," "the con-
tract would be nullified by a strike." 4 Notwithstanding the
authorization to strike, no strike ever occurred, and the
contract negotiations between Respondent and the Union
continued thereafter.
On July 9, the Respondent fired employee Vanna Schus-
ter from her position as a full-time clerk.5 Union Officer
Weir learned about Schuster's discharge on July 20, and at
the negotiating meeting on that day, he told the
Respondent's negotiators John E. and John L. Rowe, that
"he wished to grieve on the matter." Weir complained that
the Respondent had violated the contract because it had not
given the Union 2 weeks' notice prior to Schuster' s dismis-
2 The Respondent was represented at these negotiating meetings by its
publisher, John E Rowe, and his son, Business Manager John L. Rowe. The
Union's negotiators were Executive Secretary Jack Weir, and an employee
negotiating committee consisting of DavidtCrookston, Larry Neeley, Vivian-
ne Greene, and Rick Hoffer.
3 There is a conflict in the record in respect to whether Weir notified the
Respondent's representatives about the Union's strike authorization vote
Weir denied doing so. I base my contrary finding above on the admission
of David Crookston, one of the Union's negotiators who testified for the
General Counsel, and on the credited testimony of Respondent's publisher,
John E Rowe There is a further conflict in the record as to whether Rowe's
statement as to what would transpire if the employees went out on strike was
made at the May 17 or the May 24 meeting of the parties. I deem it unneces-
sary to decide at which of the two meetings it happened. There is also a
substantial conflict in the testimony of the four witnesses in this case as to
the words used by Rowe after he was advised of the Union's strike vote. The
quotes above are Rowe's version of what he said which I accept, not because
I regard his version as more reliable than that of the other witnesses, but
because as found infra I consider it an admission of an unlawful threat.
4 Publisher Rowe, although asked by Respondent's counsel, failed to deny
that he said he would not "recognize the contract " Business Manager Rowe,
although present throughout the hearing, was not called to testify.
5 According to the stipulation of the parties, Schuster was hired on May
18 as a part-time clerk and became a full-time clerk on June 4. There is no
allegation in the complaint or contention that Schuster's termination was
motivated by other than lawful considerations.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sal.6 One of the Rowes replied that the notice was not re-
quired because Schuster was a probationary employee.7
John L. Rowe stated that the meeting had been called to
negotiate a contract, and that "the management team" was
not "prepared to engage in a grievance session." Neverthe-
less, one or both of the Rowes explained to the Union's
negotiators "that the Company had lost $40 to $50 because
of Vanna Schuster's inefficiency in the handling of money
and that she was incapable of operating an adding ma-
chine."8
On August 9, representatives of the Union and the Re-
spondent met for the specific purpose of considering the
grievance regarding Schuster's discharge pursuant to Article
XII, Section 1 of the parties' last contract. Although the
subject matter of her dismissal was discussed "in detail" at
this meeting (the first step of the grievance procedure pro-
vided by the contract), the grievance was not resolved. On
August 30, the Union and the Respondent's representatives
met again for the dual purpose of discussing the grievance
over Schuster's discharge, and then engaging in contract
negotiations. The ensuing discussion of the Schuster griev-
ance produced no resolution of the dispute over her dis-
charge. Weir then notified the Rowes that in accordance
with Article XII, Section 3 of their contract, he and David
Crookston were the Union's appointees to the joint standing
committee to process the next step of the grievance proce-
dure.' Weir asked Publisher Rowe who his appointees
would be, and the latter replied that he knew of no one he
wished to appoint. Weir persisted and pointed out that the
contract required the Respondent to make the appoint-
ments, and that the failure to do so was a contract violation.
Publisher Rowe facetiously replied, "I don't know. I might
even appoint our lawyer." That concluded the discussion on
August 30 of the Schuster grievance.10
On September 10, the Union by letter formally requested
the Respondent to designate its representatives to the joint
standing committee as provided in Article XII, Section 3, of
the contract, and to set a date and place for a meeting of
the committee to further process the Vanna Schuster griev-
ance. It is undisputed that the Respondent never answered
nor complied with this request. Accordingly, on October 1,
the Union filed the charge in this case, in which it alleged
that "the employer has refused to process a grievance under
Article 12 of the contract regarding the dismissal of Vanna
Schuster."11
6 See Joint Exh 1, Art X, Sec
7 I find no provision in the parties' last contract which refers to probation.
aryl employees
The findings above are based on the uncontroverted and credited testi-
mony of Crookston, and on admissions elicited from Weir on cross-examina-
tion
9 Art XII, Sec. 3 of the contract provides as follows
Section 3 Any matter involving the interpretation, application, ad-
ministration or alleged violation of this Agreement (except renewal of
this agreement), including any question whether a matter is arbitrable,
not satisfactorily settled within thirty (30) days of its first consideration,
shall be submitted to anoint standing committee comprised of two (2)
representatives appointed by the Publisher and two (2) representatives
appointed by the Guild
10
The findings above are based on the uncontroverted and credited testi-
mony of Weir and Crookston
11 G C. Exh I(a)
B. Contentions and Concluding Findings
As found above, when Publisher John E. Rowe was ad-
vised during a negotiation session in May that Respondent's
employees had authorized the Union's negotiators to call a
strike, he responded by saying that Union Executive Secre-
tary Weir was "leading them out onto thin ice," and that if
they followed that man [Weir] out the door that they would
be walking the streets unemployed."12 As indicated previ-
ously, the contract between the Respondent and the Union
does not contain a no-strike provision.
The complaint in this case alleges and the General Coun-
sel contends that Rowe's statement to the employees regard-
ing the consequences of a strike constituted a threat to
terminate the employment of any employee who went out
on strike, and that the Respondent thereby interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed to them by Section 7 of the Act. The Respon-
dent contends that Rowe's statement was not a threat that
strikers would be discharged, "but rather a statement of the
natural consequences of the employees' own acts." 13
I regard the contention that Rowe's statement was not a
threat of discharge as devoid of merit. These admittedly
"sophisticated" employee members of the Union's negotiat-
ing committee,14 who also are newspaper reporters, quite
obviously did not require any explanation from Rowe to
know that if they went out on strike, they would not be
working or earning pay. I regard Rowe's explanation of his
noncoercive intent as implausible. To the contrary, I find
that Rowe's statement clearly had coercive connotations-
viz : the reference to treading "on thin ice," and "to walking
the streets unemployed." Moreover, it was understood by
the employees who heard it as a threat that their employ-
ment by Respondent would be terminated if they went out
on strike.ls Thus, even assuming that the employees misun-
derstood the intent of Rowe's statement (which I do not
believe), it was he who engaged in "brinkmanship" and was
responsible for the employees' belief that he said that if they
participated in a strike, it would result in the loss of their
jobs. 16 I conclude from the foregoing that Rowe's statement
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act, and that the Re-
spondent thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
The complaint (par. 11(B)) further alleges that the Re-
spondent through Publisher John E. Rowe also threatened
that if the employees went out on strike, the Company
"would not recognize the validity" of the contract with the
Union, and "would no bargain in good faith" with the
Union "to conclude a new collective bargaining agree-
12 Weir's version of what Rowe said was that if the employees "walked out
of this building that they need not ever return " Employee Crookston testified
that Rowe said, "if the employees walked out that they would never return
as employees of the Evening Independent" Employee Neeley testified that
his notes (made during the meeting) reflect that Rowe said that the employees
would "forever sever employment if [they] walk out "
13 Resp br, p 15
14 See Resp. br, p 20
15 See fns 3 and 12, cupra
16 Cf N L R B v Rollins Telecasting, Inc, 494 F 2d 80 (C A 2, 1974),
N L R B v Gissel Packing Co, 395 U S 595, 620 (1969)
THE MASSILLON PUBLISHING COMPANY 873
ment." As found above on the uncontroverted testimony of
employee David Crookston, at the negotiating meeting in
May at which Publisher Rowe threatened the employees
with job terminations if they went out on strike, he or his
son, Business Manager Rowe, also said, "if there were to be
a strike, there would be no contract," "the contract would
be nullified by a strike."17 I regard these statements as a
threat of reprisal if the employees engaged in activities pro-
tected by the Act, and I accordingly find that the Respon-
dent thereby engaged in further unfair labor practices
within the meaning of Section 8(a)(1) of the Act. However,
the General Counsel adduced no testimony or other evi-
dence to support the allegation in paragraph 11(B) of the
complaint that either of the Rowes threatened that they
would-not negotiate and bargain with the Union for a new
contract if the Union struck. I accordingly will recommend
dismissal of the complaint in this respect.
There remains for consideration the issue of whether the
Respondent failed and refused to bargain in good faith with
the Union and violated Section 8(a)(5) and (1) of the Act by
its admitted refusal to designate two employer representa-
tives to a joint standing committee to process the Union's
grievance over the discharge of Vanna Schuster as required
by Article XII; Section 3, of the collective-bargaining agree-
ment. In its answer to the complaint, the Respondent initial-
ly contended that it had no obligation to comply with the
said provision because "the collective bargaining agreement
expired on or about May 24, 1973 by mutual agreement of
the parties." At the hearing in this case the Respondent
amended its answer and deleted the assertion that the con-
tract expired "on or about May 24, 1973 by mutual agree-
ment of the parties." It now contends that the last
collective-bargaining agreement with the Union expired by
its own terms on February 24, 1973, and since Vanna Schus-
ter was not fired until after the contract expired, it was not
required to follow the procedures in the expired contract in
processing the grievance over her dismissal. Contrary to
both the initial and revised contentions of the Respondent,
I find that at all times material herein, the collective-bar-
gaining contract between the Respondent and the Union
was still in effect.
As indicated earlier, the duration clause of the last con-
tract between the Respondent and the Union provided that
within a specified number of days prior to its February 24
expiration date, either party could initiate negotiations for
a new contract to take effect 'on February 25, that if a new
agreement was not arrived at prior to the expiration date of
the contract, it would be made retroactive to February 25,
and that "the conditions of this agreement shall remain in
effect during such negotiations." The language of this provi-
sion clearly and unambiguously indicates that the contract
was to remain in effect after February 24 for an indefinite
period during the pendency of the negotiations.
The Respondent nevertheless contends that this language
did not extend the agreement past February 24, and that to
hold otherwise
would impose upon the Respondent a contract provi-
sion which does not exist in the Agreement, which was
17 See fn . 4, supra.
never negotiated and by which the Respondent never
intended to be bound.18
I regard this contention as without merit, for it is quite
obvious that the Respondent at all times understood from
the clear language of Article I, Section 3, that the contract
remained in effect after February 24 during the pendency
of the contract negotiation.
As noted above, in its answer to the complaint in this
case, the Respondent originally contended that the contract
terminated on May 24 "by mutual agreement of the par-
ties." The Respondent's answer thus tacitly admitted that
the contract continued in effect for at least 3 months after
its specified expiration date until the negotiating session on
May 24, and that it thus did not expire by its own terms on
February 24, as the Respondent now contends.19
I note, moreover, that according to the uncontroverted
and credited testimony of Weir and Crookston, the
Respondent's officials did not, in responding to the Union's
request that the Company appoint two representatives to a
joint standing committee, state that their reason for not
doing so was that the contract had expired and that the
requirement to make the said appointments no longer ex-
isted. To the contrary, as found above Publisher Rowe's
only response to the Union's requests was that he knew of
no one whom he wished to appoint, and when Weir persist-
ed that the failure to make the appointments was a contract
violation, Rowe facetiously replied, "I don't know. I might
even appoint our lawyer." Even after the Union by letter
requested on September 10 that the Respondent proceed
under Article XII, Section 3, and appoint its representatives
to a joint standing committee to resolve the Schuster griev-
ance, the Respondent did not reply that the contract had
expired and that, therefore, the contract procedure no lon-
ger was effective. Indeed, it was not until after the Union
filed its charge in this case on October 1 that Rowe claimed
for the first time that the contract was not in effect when
Schuster was fired, and his claim then was that it terminated
on May 24 because Weir allegedly said that "the Guild feels
that there is no contract and would be free to strike." 20
I conclude from all the foregoing that the Respondent at
all times understood from the clear and unambiguous lan-
guage of Article I, Section 3, that the contract would remain
18 Resp. br., p. 6
19 The Respondent adduced no testimony of any "mutual agreement" to
terminate the contract either on May 24 or on any other date. The signifi-
cance of the May 24 date is that according to Publisher John E. Rowe, at
the negotiating session on that day , Union Representative Weir allegedly
said, "the Guild feels that there is no contract and would be free to strike."
Weir categorically denied making this statement and I credit his denial
notwithstanding that in other respects , I did not ' consider his testimony as
always reliable. N L.R.B v. Universal Camera Corporation, 179 F.2d 749, 754
(C.A. 2, 1950), reversed and remanded on other grounds . I note in this regard
that the contract between the parties did not contain a no-strike clause, and
that the arbitration provision of the contract between the parties specifically
excluded matters involving the "renewal of this Agreement." (See fn. 9,
supra) Thus a protected strike by the Union in furtherance of demands for
a "renewal" contract was not precluded either ' by any implied no-strike
clause based on the arbitration provisions of the agreement-see Local 174,
Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour
Co, 369 U S. 95 (1962), or by any express no-strike clause, and thus did not
depend on the nonexistence of the contract I therefore reject the contrary
contention of the Respondent (br., p 6).
20 See fn 19, supra.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in effect after February 24 during the negotiations for a new
contract, and that the contrary assertions, first that the con-
tract was terminated by "mutual agreement" on May 24,
and later that it expired by its own terms on February 24,
are pure afterthoughts. I further find that by its terms, the
agreement between the parties was still in effect when Van-
na Schuster was fired and the grievance over her dismissal
was initiated. I therefore conclude that by its failure to
comply with the requirements of Article XII, Section 3, as
requested by the Union, the Respondent unilaterally
changed the terms and conditions of employment of its
employees, and it thereby failed and refused to bargain in
good faith with the Union and engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.21
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 com-
merce 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 the Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Massillon Publishing Company is an employer
engaged in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Cleveland Newspaper Guild, Local No. 1, of the
Newspaper Guild, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All employees employed at the Respondent's Massil-
lon, Ohio, facility in the editorial, advertising, proof-
reading, commercial, circulation, janitorial, and
maintenance departments, excluding employees who
are members of other recognized unions in other de-
partments, and the publisher, business manager, editor,
managing editor, advertising manager, circulation
manager, and auditor.
21 Cf. N L R B v. Benne Katz, et al d/b/a Williamsburg Steel Products Co,
369 U S 736, 747 (1962), Taft Broadcasting Co, WDAF AM-FM-TV, 185
NLRB 202, enfd 441 F 2d 1382 (C A 8, 1971)
4. At all times material herein, the Cleveland Newspaper
Guild, Local No. 1, of the Newspaper Guild, AFL-CIO, has
been the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. At all times material herein, the collective-bargaining
agreement between the Respondent and the above-named
Union which was executed by the parties on September 8,
1972, was in full force and effect.
6. By failing and refusing on and after August 30, 1973,
to designate two employer representatives to ajoint stand-
ing committee to process the Union's grievance over the
discharge of employee Vanna Schuster as required by Arti-
cle XII, Section 3 of the said collective-bargaining agree-
ment, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
7. By the foregoing conduct, and by threatening employ-
ees with discharge and other reprisals if they participated in
a strike by the Union in furtherance of new contract de-
mands, the Respondent also has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. 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 basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER 22
Respondent, The Massillon Publishing Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other repri-
sals for engaging in a strike or other concerted activities
protected by Section 7 of the Act.
(b) Failing and refusing to process the grievance involv-
ing the termination of Vanna Schuster in accordance with
the procedures set forth in the collective-bargaining agree-
ment with the Cleveland Newspaper Guild, Local No. 1, of
the Newspaper Guild, AFL-CIO, which was executed on
September 8, 1972, or in any like or related manner, refusing
to bargain collectively in good faith concerning rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment with the Cleveland Newspaper Guild,
Local No. 1, of the Newspaper Guild, AFL-CIO, as the
exclusive representative of the employees in the following
appropriate unit:
All employees employed at the Respondent's Massil-
22 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
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
THE MASSILLON'PUBLISHING COMPANY 875
Ion, Ohio, facility in the editorial, advertising, proof-
reading, commercial, circulation, janitorial, and main-
tenance departments, excluding employees who are
members of other recognized unions in other depart-
ments, and the publisher, business manager, editor,
managing editor, advertising manager, circulation
manager, and auditor.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist the Cleveland Newspaper Guild, Local No. 1,
of the Newspaper Guild, AFL-CIO, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concert-
ed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such
activities, except to the extent that such rights may be affect-
ed by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request, process the grievance involving the
termination of Vanna Schuster in accordance with all the
procedures provided in Article XII of the collective-bar-
gaining agreement with the Cleveland Newspaper Guild,
Local No. 1, of the Newspaper Guild, AFL-CIO, which was
executed on September 8, 1972.
(b) Post at its place of business in Massillon, Ohio, copies
of the attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent, shall be
posted by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted, Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to 'comply herewith.
I FURTHER ORDER that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above.
23 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board"