Thomson Newspapers

National Labor Relations Board - Board Decisions

Feb 26, 1969

174 N.L.R.B. 804 (N.L.R.B. 1969)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dothan Eagle, Inc., a subsidiary of Thomson
Newspapers and International Printing Pressmen
and Assistants' Union of North America,
AFL-CIO. Case 15-CA-3143
February 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 9, 1968, Trial Examiner John M.
Dyer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor 'Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings' are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, the General Counsel's brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Dothan Eagle,
Inc., a subsidiary of Thomson Newspapers, Dothan,-
Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
Delete paragraph 1(b), and substitute the
following:
"(b) Withholding and failing to pay the
established and regular progression increases to
apprentice employees in the aforesaid unit for the
purpose of undermining the Union and discouraging
employee adherence thereto."
TRIAL EXAMINER'S DECISION
of North America, AFL-CIO, herein called the Union,
filed the charge herein alleging violations of Section
8(a)(1) and (5) against the Dothan Eagle, Inc., a
subsidiary of Thomson Newspapers, herein called the
Company, Dothan Eagle, or the Respondent. The
complaint and notice of hearing in this matter issued on
April 12, 1968,1 alleging that Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, by seeking to bargain individually with the
employees in the unit, encouraging, assisting, allowing,
and acquiescing in the preparation, distribution, and
execution of a petition to repudiate the Union, and by
withholding established progression increases for unit
apprentice employees. In addition to these particulars, the
complaint alleges that the Company negotiated in bad
faith with the Union and refused to meet to negotiate at
reasonable times and confer in good faith.
Respondent admitted the requisite jurisdictional facts,
that the Union was certified as the majority representative
in an appropriate unit of press and stero journeymen and
apprentices on December 29, 1966, following the
December 20, 1966, election, and that it discontinued
granting progression increases to unit apprentices from
approximately November 1966 until May 1968, but denied
that it had in any way violated the Act.
This case was heard on May 27 and 28, 1968, in
Dothan, Alabama, and all parties were afforded full
opportunity to participate in the proceeding and to
examine and cross-examine witnesses. Counsel for the
General Counsel and counsel for Respondent have filed
briefs which I have received and considered
The principal question in this proceeding is whether
Respondent in its negotiations with the Union was
-motivated by good or bad faith. Resolution of this
question must of necessity entail more than a statement
from Respondent that it was motivated by good faith. In
order to determine motivation, it will be necessary to
consider the proposals and positions taken by Respondent
and the Union during the course of bargaining, together
with their stated reasons for such and to assess the whole
of the bargaining relationship noting the contentions and
the disagreements, the contradictions and
self-contradictions of the parties and after resolving
credibility, arrive at a judgment.,
Upon the complete record in this case and on my
evaluation of the reliability of the witnesses based both on
the evidence received and my observation of their
demeanor, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS AND THE LABOR
ORGANIZATION
Respondent, an Alabama corporation wholly owned by
Thomson Newspapers, has offices and facilities in Dothan,
Alabama, where it is engaged in the publication of
newspapers. In the course of its business in the preceding
year, Respondent's gross sales exceeded $200,000 and it
received in excess of $50,000 for services to customers
located outside the State of Alabama and during the same
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner: On August 9, 1967,'
the International Printing Pressmen and Assistants' Union
'Unless specifically stated otherwise all dates herein refer to 1967
'The dismissal of this charge by the Regional Office was timely appealed
to the General Counsel, who sustained the appeal and directed that the
instant complaint be issued.
174 NLRB No 120
DOTHAN EAGLE, INC.
period Respondent purchased goods • or services from
outside the State of Alabama valued in excess of $50,000.
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent admits and I find that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
The Dothan Eagle is a daily paper, and its general
manager and publisher, Mirl Crosby, has been with it for
approximately 15 years, being the publisher since June
1966. Lloyd White has been the pressroom foreman for 12
of his 15 years with Respondent and at the relevant time
had Lloyd Penuel as his assistant foreman. Prior to the
advent of the Union, there were in addition to White and
Penuel,' two journeymen, Hudson and Snell, and three
apprentices, Lisenby, Key, and Lunseth. The composing
room under Foreman Kelly had various journeymen and
apprentices making up its work force.
For a number of years prior to the advent of the
Union, journeymen in both the pressroom and the
-composing room were given pay increases around
mid-May of each year after Respondent reviewed its
financial picture and the raise amounts ranged from 5 to 7
cents. Independent of this system was the progression
increases which the Company had given for a number of
years to apprentices in both the pressroom and the
composing room at intervals of 6 months. According to
Respondent these progression increases amounted to '10 to
15 cents per hour every 6 months until the apprentices
reached journeyman status. The apprentice pay rates and
the system in the composing room and the pressroom
were the same.
James M. Baysinger is the manager of personnel
relations for Thomson Newspapers, Inc., and in that
capacity advises individual publishers of papers in the
Thomson chain in regard to their personnel problems and
is available to assist in negotiations and grievances and as
a consultant on various labor relations problems.
Baysinger had considerable prior experience before
coming to this job having served as a personnel manager
with various San Francisco and New York newspapers. In
his position, Baysinger was familiar with contracts the
Union had with various papers in the Thomson chain.
In the fall of 1966 the Union filed its petition and the
election was set for December 20, 1966, in a unit
consisting of press and stero department employees, which
the parties agree is the appropriate unit. The Union won
the election and was certified on December 29, 1966. In
November 1966, Respondent stopped granting progression
raises to unit apprentices.
During examination by the General Counsel at the start
of this proceeding, Publisher Crosby stated that in a
discussion with his pressroom foreman, he told White to
tell the apprentices who were then due raises that
Respondent was not giving the raises because they did not
want to and that they considered them a bargainable
issue. Crosby later denied this statement saying that he
did not recall saying anything to Foreman White before
the election about the then due raises and that it was after
the election he told White the progression increases were a
bargainable item and that they would bargain on that
issue. He then testified that prior to the election he took
805
the position that the progression increases would be
bargainable items.
Near the end of the hearing Crosby was called to the
stand by Respondent, and testified that between the time
of the Union's petition in November and the election in
December 1966, he discussed with Counsel Leslie Inman
of the firm of Kullman & Lang the question that some of
the apprentices were due their 6-month progression raises
and was advised by Inman not to grant the raises since
the election had not been held and the granting of such
raises could be alleged as unfair labor practices. During
cross-examination on this item, Crosby did not recall if he
told Mr. Inman how long the Company had been giving
those raises to the apprentices. Crosby said he was advised
to answer inquiries concerning the raises by having
Forman White say they' were pending, and that the
election was coming and Respondent felt it advisable not
to give the raises in order not to influence the unit
employees. Foreman White did not testify to any such
instructions.
None of the pressroom employees received any raises in
the period prior to the 1966 election until Monday, May
20, 1968, when Crosby talked to Foreman White and told
him he was granting raises effective May 13, 1968, to
White, Assistant Foreman Penuel, pressroom journeyman
Smith, and pressroom apprentice Pittman. According to
Crosby's early testimony he had not made a decision on
the raises on May 13 but made it retroactive to then. In
later testimony, Personnel Manager Baysinger and Crosby
testified that a decision was made on May 9 to grant
raises to these four people but the amounts were then left
undetermined. They both testified they tried to make the
raises effective around the middle of May as had been the
custom. Neither Crosby nor Baysinger gave any
explanation as to what occurred on May 9 to prompt
these raises, nor did they testify to any meeting or other
circumstances which makes this date stand out as the date
for this decision. In view of all the circumstances and
contradictions, I can not credit this plucking of a date
from, midair.
These four pressroom personnel selected for the first
raises in 1 -1/2 years had by May 20, 1968, received their
subpenas to testify in the instant proceeding scheduled for
that following week. Foreman White testified that prior to
Crosby telling him about the raises he had told Crosby
that he and another pressroom employee had received
their subpenas and Crosby said he had received one too.
Crosby denied that he knew these four (of the total eight)
pressroom employees had received subpenas before
announcing their raises to White.
There is no allegation that the May 20, 1968, raises
were granted for an illegal purpose, but they do not fit
any pattern established by Respondent theretofore.
Respondent had a prior practice of giving progression
raises to apprentices every 6 months, but apprentice
Pittman was with Respondent about 13 months when he
received this raise. Since Respondent had refused early in
the negotiations to bargain with the Union concerning
Foreman White's salary, there was no known or stated
reason to raise his salary at this particular time. The
raises in mid-May according to testimony were given to
journeymen and not to apprentices who were on the
progression program. There was at least one additional
pressroom journeyman and apparently at least three
apprentices, who according to testimony, did not receive a
May 1968 raise. Considering further, that during the first
week of May 1968, Foreman White's request of a raise
for apprentice Peacock was refused by Crosby on the
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that Respondent couldn't grant any raises until the
union business was settled, which would probably be a
couple of months from then, the granting of these four
raises is most suspect.
This conduct by Respondent, contrary to its prior
practices and indeed contrary to its testimony, appears to
have been done for the purpose of influencing the
testimony of these individuals.
However, I make no such finding, there not being such
an allegation regarding what I consider a most serious
matter although Respondent offered some testimony in
this regard. Respondent's conduct raises suspicions as to
its motives.
1 -1 have previously stated that in order to determine the
ultimate question in this case it will be necessary to review
the proposals and positions of the parties during their
course of negotiations. Such a procedure is in no way
meant to determine from the proposals themselves
whether Respondent was bargaining in good faith, but
rather in the light of the reasons advanced, the
circumstances at those times, and the other actions of the
parties, what Respondent's motives were in making the
proposals and taking the positions, and whether
Respondent was motivated by good or bad faith in its
course of conduct.
In attempting to determine motive here, it is also
necessary to make credibility determinations. In that
-regard Respondent's Pressroom Foreman White who is
still in Respondent's employ testified for the General
Counsel and contradicted a number of statements made
by General Manager Crosby. Respondent showed no
untoward motive for White to contradict Crosby and
Baysinger, and indeed did not seek to disparage White's
veracity. However Crosby avowedly was out to defeat the
Union from the moment he heard of it in the plant Two
witnesses, Lisenby and Snell, were no longer employed by
Respondent when they testified and neither appeared to
have any reason to lie about or distort their testimony.
The testimony of Baysinger and Crosby was vague at a
number of points, and there were occasions on critical
issues when they appeared to sidestep questions. At other
times their answers seemed contrary to what common
sense would dictate. To a number of questions both
Baysinger and Crosby answered that they could not recall
or remember the event. In one particular regarding the
testimony of Lisenby, Crosby, although denying the major
import of Lisenby's testimony, affirmed the essence of
additional facts given by Lisenby which would not make
sense unless the version given by Lisenby was correct.
Therefor, I am constrained to discount the testimony of
Baysinger and Crosby, and do not credit them regarding
most of their testimony. International Representative
Smith appeared to testify convincingly, but there are some
points where I believe he overstated himself and I do not
credit all of his testimony. Composing Room Foreman
Kelly appeared doggedly positive of everything to which
he testified. Kelly is still employed by Respondent, and
where his testimony conflicts with that of Snell I am
constrained to believe Snell's version of the facts.
In pursuance of this inquiry I will first consider the
question of the progression raises and then consider
seriatim the negotiations between the parties. It was
stipulated that the parties' negotiation meetings occurred
on March 22 and 23, May 2, 3, and 22, June 20 and 21,
and August 1, 1967.
B. The Parties' Bargaining Relationships
1. As noted above, Respondent stopped granting
progression raises to pressroom apprentices in November
1966 and the complaint alleges this action as violative of
Section 3 (a)(1) and (5) of the Act on and after February
11, 1967.3
Union Representative Smith testified that at the time
the parties agreed to the date' for the election in this
matter following the Union's petition, he discussed with
Company Counsel Inman the matter that the Christmas
bonuses had not been paid to the employees. Inman told
him that the Christmas bonuses would be taken care of.
On December 19, 1966, the day before the election, after
certain of the employees had asked Smith why they had
not received the Christmas bonus or their progression
raises, Smith called Counsel Inman and asked about both
the progression raises for the apprentices and the
Christmas bonuses. Inman said he would advise the
Company to give the Christmas bonus immediately, and
that he would see that the progression raises were taken
care of when shortly he would consult with the publisher.
Following the election and certification, Smith wrote
Inman confirming his December 19, telephone
conversation, and noting that the Christmas bonus had
been paid but that nothing had been done concerning
payment of the progression increases even though the
Union acquiesced in and was requesting they be made.
Smith asked for early resolution of the matter and for
advice as to who would conduct negotiations for
Respondent.
Smith received a notice from Crosby that he would
conduct the negotiations, and the parties thereafter sought
to agree on dates. On February 20, Smith in a telegram to
Crosby said he could not meet the previously arranged
dates, asked for dates in March, and requested that the
progression increases due the pressroom apprentices be
given them as had previously been discussed and that the
Union had no objection to those increases being effected.
Smith testified that in nearly every bargaining meeting
he asked the Company to put the progression raises into
effect, and received no agreement to do so but rather a
reply that the increases were negotiable.
According to Personnel Manager Baysinger, during the
negotiation meeting of May 3, apprentice Riley Lisenby of
the union committee heatedly protested that the men in
the unit were falling behind the men in the composing
room and were not getting the money they should, have
and were not being treated properly. According to
Baysinger, Crosby said that they were in negotiations to
discuss those matters.
Both Baysinger and Crosby denied that in the
negotiation meetings Smith asked for the progression
raises.
Foreman White stated that he and Crosby hired most
of the employees and that in employment interviews the
employees were told that if they performed capably they
would get a raise of 10 to 15 cents every 6 months. They
were also advised that Respondent usually paid the
premium for hospitalization and life insurance. According
to White the last pressroom progression raises were were
paid in May 1966, at which time four men were under
'During the hearing a motion to amend the complaint to change the date
from February 8 to I1 was allowed on the basis of General Counsel's
theory that the denial of progression raises to the pressroom apprentices is
a continuing violation of the Act, which first took place in November
1966, a date beyond the 6-month limitation on the charge in this case
DOTHAN EAGLE,
that system, none of whom were employed by Respondent
at the time of the hearing. Apprentices Whitehurst and
Lisenby asked White for the raises due them in November
and White went to Crosby for them Crosby, according to
White, said no raises would be given at that time, adding
something about the Union would have to get the raises
and it would be a bargainable item. According to White
apprentice Key resigned in March 1967 because he wanted
more money and Crosby refused to give him a raise.
Apprentice Pittman was hired to replace Key and was told
by White that the Company paid hospitalization and life
insurance and had been giving bonuses each year ranging
from 1/2 to 2 weeks' pay and that they usually got raises
in 6 months' time. Another new apprentice, Peacock, was
hired and after he had worked awhile, White during the
first week of May 1963, told Crosby he would like to get
him more money since he was a good man. Crosby said
he could not give any raises until the union business was
settled and that would probably be a couple of months. In
addition Crosby said company policy would keep Peacock
from getting a raise for several months.
In the interim composing room apprentices continued
to get their regular progression increases.
Despite Lisenby's denouncement of the Company for
not granting the raises and Smith's written and verbal
requests for the increases, Respondent denied that any
verbal requests for the raises were made and stated it did
not put those raises in effect because it considered them a
negotiable item. However, Respondent never made any
offer in regard to progression raises nor did it even
include the subject in its contract proposal.
Respondent in its brief takes the position that it denied
the progression raises because of the wide differences
existing between the Company's and the Union's positions
on apprentices both as to the rates to be paid and the
number of apprentices to be used by Respondent.
Respondent's brief claims Respondent did all it could to
negotiate the question of the progression raises for the
apprentices, but that since an impasse was not reached,
Respondent could not unilaterally grant the raises.
Respondent summarizes that the Union's request for the
raises was immaterial and it did all it could in attempting
to bargain on the issue.
Respondent's explanation does not meet the facts The
Union's expressed position before and after the election
was that it agreed that Respondent should continue its
established program of granting progression increases to
pressroom apprentices in the same manner Respondent
continued to grant these raises to composing room
apprentices. The question of ultimate wage rates was open
to negotiation and certainly the amount of interim
progression increases could be considered by Respondent
in making its counteroffer on wages. But the item of
progression increases was essentially deleted by the Union
as a bargaining item with the Union's agreement that
Respondent continue its past practices without even
questioning the amounts of the raises.
Respondent states it was attempting to bargain on the
item but yet Respondent made no offer nor did it present
a program on these progression increases. The flat
statement by Respondent that the item is negotiable
doesn't mean that Respondent ever negotiated on this
item or'made an attempt to do so.
The conflicting reasons for refusal to grant the raises
prior to the union election (that the item would be
bargainable and secondly that counsel advised they could
be subject to an unfair labor practice charge) against the
background of the Union's request that the Company
INC. 807
continue its established practice, in the presence of
established union animus and a clear desire by
Respondent to defeat the Union, make it clear that
Respondent stopped giving raises prior to the election in
an attempt to defeat the Union by placing the onus for
the denial of raises on the Union. This tactic did not
prevent the Union's election victory. ' Respondent
continued to withhold the progression raises following the
election despite the Union's renewed requests for them
and Lisenby's impassioned protest about not receiving the
raises. It seems clear again that by prolonging the tactic
and claiming that it could not grant the raises due to the
negotiations when clearly it could do so and was being
requested to do so, Respondent again sought to blame the
Union for the employees not receiving their wage
increases and by this tactic sought to sow dissension in the
unit ranks. It is evident that this tactic did cause
dissension as evidenced by Lisenby's statement during
negotiations and in fact caused employee union adherents
to resign from Respondent and to become disenchanted
with the merits of collective bargaining.
In all events it is clear that Respondent would not have
withheld the progression increases in the pressroom unit
without the Union in the picture. The principle
ennunciated in International Ladies Garment Workers'
Union, AFL-CIO, 142 NLRB 82, 84, which has been
followed in numerous Board cases is broad enough to
cover the present situation in that Respondent on and
after February 11, 1967, has denied established wage
increases to its pressroom apprentices in order to
undermine the Union and cause dissatisfaction with the
Union by the unit employees. I find and conclude that this
conduct violates Section 8(a)(1) of the Act and is
probative of and part of the 8(a)(5) violations found hereafter.
2. Following the initial correspondence, Smith on
February 2, sent Crosby two copies of the Union's
contract proposal seeking either negotiation dates or a
company counterproposal. Crosby stated that meetings
would have to be held in the afternoon since the
pressroom would not be free until then and following
cancellation of the initial dates, the parties met first on
March 22 and 23. Baysinger and Crosby represented
Respondent with Union Representative Smith ' and
employees Key and Lisenby appearing for the Union at
the meeting which started around 4 p.m. in Crosby's
office.
According to Smith, at the beginning of the meeting
Crosby took out his watch, laid it on the table, and said
he would limit the meetings to 2 hours, since he had a
newspaper to run and other things to which he must
attend. Smith testified he told Crosby that he did not
think much could be accomplished in 2 hours and that he
complained of this limitation at the meetings held
thereafter but that Crosby adhered to his practice of
laying his watch on the table and timing and limiting the
meetings. Crosby admitted they timed all the meetings but
advanced no particular reason for so doing.
Baysinger testified he and Crosby discussed the Union's
contract proposal prior to the negotiation meeting. Crosby
at the beginning of the meeting asked Smith to explain the
Union's proposal in detail and, according to Baysinger,
Smith started explaining it in a rather cursory fashion, but
was interrupted by Crosby stating it was his first
negotiation and he needed to understand the Union's
proposal, and having no experience he wanted more
details. According to Baysinger, Smith objected and
Baysinger said that it was necessary that Crosby
understand the agreement. Smith said that it was
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baysinger's job to inform Crosby as to the meaning of the
various clauses. Baysinger said that the contract would be
administered by Crosby and the local employees and it
would be best if they all understood it. Smith started
through the contract clause by clause with Crosby asking
questions and Smith explaining the apprenticeship
program, the hours of work, etc. Crosby had an objection
to lowering the work week to 37-1/2 hours and
complained about the foreman's clause. After getting
through approximately the first four sections Crosby
consulted his watch, said it was about time and adjourned
the meeting until the next day. Smith commented that not
much could be done in 2-hour sessions.
The meeting started late the next day due to a late
press run. Smith explained the remaining items of the
Union's proposal. Nearing the end of the contract Crosby
asked a further explanation of one clause and Smith
replied that Baysinger was familiar with the union
contracts, knew what the clauses meant, and that they
were wasting valuable time.
Baysinger's testimony as partially corroborated by
Smith and Crosby concerning these first two meetings was
in more detail on the discussion of the various clauses.
According to Crosby, Smith stated they would probably
not have a local of the Union since this was such a small
unit and the members would be considered "at large"
members under the International. The Company said that
the 60-day clause regarding contract expiration was
unnecessary language since the Taft-Hartley Act provided
for such, and they did not want to be included under the
International Arbitration Agreement between the
International Union and the American Newspaper
Publishers Association. Respondent objected to the broad
coverage of present and possible equipment and areas
outside the traditional jurisdiction of the Union in the
Union's proposal (section 2) on jurisdiction and
recognition and further objected to the proposal therein on
hiring employees on a referral basis through the Union,
preferring their present manner of hiring by the publisher.
Respondent opposed the Union's proposal of bargaining
about the wages of the foreman, stating that since the
pressroom' foreman was management's representative it
would not bargain about his wages. Further regarding
section 3 the Union said it had a standard 5-year
apprentice program with Crosby replying he had his own
6-year apprentice program. One further provision in
disagreement at the first meeting was the clause calling
for agreement on rates for operating new equipment.
The Union in section 4 proposed a 37-1/2 hour
standard workweek and a fixed lunch period. Respondent
said it couldn't recede from a 40-hour week and needed
flexibility in establishing lunch hours.
The March 23 meeting picked up at section 5 regarding
overtime with the Union wanting daily overtime before
and after a 7-1/2 hour workday. The Company's position
was that it worked the men on irregular daily periods
depending on the volume needed and would pay overtime
only after a 40-hour period
Union's section 6, the manning schedule, provided that
a six-unit press such as Respondent had would be manned
by eight journeymen and one apprentice. Respondent said
it was operating the press efficiently with four journeymen
and four apprentices and did not see the necessity for an
additional man and the added expense of that many
journeymen.
Respondent objected to the foreman's clause since it
said the foreman never had sole authority in the
pressroom but his authority had always been subject to
discussion with Crosby and Crosby wanted it that way.
On grievances Respondent proposed that all the various
sections dealing with this topic be consolidated in one
section referring to the Joint Standing Committee.
Section 10, which called for seniority to govern layoffs
and recalls, was objected to by Crosby saying that while
he foresaw no need for a reduction in force, that if such
became necessary he would keep the most competent
personnel and saw no reason to use seniority.
Section 11 on apprentices evoked another discussion of
the Union's 5-year program which included lessons to
apprentices and a certificate upon completion of the
program. Crosby maintained that his 6-year program of
apprentice training satisfied his needs.
Section 12 called for 2 weeks' vacation after 1 year and
3 weeks' vacation after 5 years. Respondent said its
maximum for all employees was 2 weeks' vacation.
Section 13 provided for funeral leave for employees
when certain relatives died. Crosby stated the Company
had no specific plan for such leave but that he decided on
the basis of individual need and the circumstances of the
case whether and how much leave to grant.
Regarding section 14, Jury Pay, Crosby said the
Union's proposal was unlimited and that he determined
the cutoff point for pay when employees were on jury
duty.
Baysinger said that the Union's proposal on military
leave, section 15, was merely a rehash of applicable law
and unnecessary in the contract. Smith wanted to keep it
in the contract.
Smith explained the section on disputes as the "status
quo" clause which provided that prevailing conditions be
maintained in case of a dispute until the dispute was
decided. Crosby objected that this would mean a
discharged employee would have to be kept on his job
until the dispute was settled. Smith said the person would
have to be kept on the payroll but not necessarily on the
j ob.
Respondent objected to the language in the section on
the Joint Standing Committee as being so broad tha' any
miniscule problem could be raised and that it should be
selective on gravity of the question. There were also
questions regarding finality of arbitration and regarding
conflicts between shop rules and the agreement.
The Company said that the provision that the publisher
would not interfere with union affairs should be broadened
to provide that union rules should not interfere with the
operations of the newspaper.
After review of the Union's proposal, Respondent said
it needed time to digest it and would need some time to
put a counterproposal together and would probably have
it for the next meeting. Smith testified the Company said
it would have its counterproposal ready in a few days and
mail it to the Union.
Crosby did not recall any agreements on the contract in
those two meetings or that the parties agreed to a date for
the next meeting, stating they had to consult their
schedules. Baysinger testified they agreed to meet on April
18 and 19. Smith said no meeting was scheduled at the
end of the March meetings, and he sent copies of the
International Arbitration Agreement to Crosby and
Baysinger, on March 31, also notifying them he had filed
unfair labor practice charges regarding one employee.
Baysinger acknowledged Smith's letter and said they had
not completed reviewing the Union's contract proposal but
expected to do so in the next week or so and get the
Company's counterproposal ready by the next meeting.
DOTHAN EAGLE, INC.
3. By the May 2 meeting Committeeman Key had
resigned and was replaced on the committee by apprentice
Lunseth. According to Smith, Crosby, after putting his
watch on the desk, started presenting Respondent's
counterproposal. Smith protested that the Company was
late in presenting it, but then leafed through it, and said it
contained only a small portion of the Union's proposals or
answers to them. Crosby and Baysinger said they wanted
to explain it to him, but Smith answered he did not need
their explanation, that he knew what it was and had seen
enough contracts to know. He added if they wanted, they
could explain it to the committeemen and he left the
room.
According to Baysinger, Crosby started the May 2
meeting by stating that the Union's contract did not
reflect the Dothan operations and he felt that a simpler
proposal-outlining the operations with less complicated
language would relate to the Dothan Eagle. Baysinger said
Smith leafed through the counterproposal, stated it was
substandard and totally unacceptable, and that he rejected
it and Baysinger replied that it was amazing that Smith
could flip through it and know exactly what was in it and
suggested that Smith give them the courtesy of having
Crosby explain it to Smith. Smith answered that he did
not need to listen, that he knew what was in it. Baysinger
replied he was amazed at Smith's ability to read Crosby's
mind and that he should not keep the union
committeemen from hearing Crosby's proposal. According
to Baysinger, Smith said there was no need for him to be
there, that he knew what was going on and felt it was a
waste of time. Baysinger left the room right after Smith
and said he did not return, to the meeting that day.
According to Crosby, Union Representative Smith
returned to the meeting for just a few minutes and told
Union Committeeman Lisenby that he would see him
after the meeting was over and left again.
According to Smith, after he had stayed out of the
room some 20 to 30 minutes he went back in and told
Crosby that the Company's proposal was not a proposal,
that all the fringe benefits like pensions and health and
welfare, holidays and vacations, wages, and progression
increases had all been left out and that it just was
incomplete. Smith stated he asked Crosby for the meaning
of the clause that the apprentices would receive wages up
to 80 percent of the journeyman's rate, since with no
company proposal for a journeyman's rate the clause was
incomprehensible. According to Smith, Crosby's only
reply was that the journeyman's rate was a negotiable
item. Smith complained that the Union on three separate
occasions had assented to the Company' s granting
progression increases to pressroom apprentices and asked
why they hadn't been given. Respondent answered that it
was a negotiable item. Smith noted that Respondent's
counterproposal contained nothing as to progression
increases. The reply once more was that the subject was
negotiable.
Crosby announced the end of the meeting and Smith
complained once more that nothing much could be
accomplished in short meetings
Baysinger and Crosby disagree with Smith's testimony
that he returned to the May 2 meeting. Resolution of this
conflict is unnecessary since similar items were again
discussed in the May 3 meeting and the parties are in
essential agreement as to what was discussed.
Smith went through the Company's proposal item by
item giving the Union's position. On Company's section 1,
Recognition and Jurisdiction, Smith objected to the
phrase "other work as assigned" in the first clause but
809
noted no other objections to the section except the
Union's dislike of the "Right to Work" clause in the
second part, which he asked be put on another page.
On section 2, Duration, the Union objected to an
unlimited contract duration while the parties negotiated on
future contracts, wanting a specific terminating date. The
Union also objected to a no-lockout clause not being
included with the no-strike clause Baysinger testified that
the no-strike provision was in response to the Union's
provision on struck work whose legality they doubted on
the "Allied Employers" doctrine and that Respondent
didn't want the employees deciding what work they would
do. Respondent said it didn't feel a no-lockout provision
was needed and further if another Union' came in and
struck and plant operations stopped, they might' be stuck
under the no-lockout clause for paying for services they
weren't getting.
The Company in its section 3, Hours of Work, called
for a 40-hour workweek spread throughout the publishing
week on schedules it would prepare. The Union wanted a
37-1/2 hour workweek with established shifts and
schedules.
In item 4, Overtime, the Company maintained its
current practice of overtime only after 40 hours of work,
while the Union's position was that overtime should be
figured on a daily basis counting both the hours before
and after the regular schedule.
The Company proposed five holidays in item 5 with a
day's pay for work performed on holidays. The Union's
position was it wanted seven holidays and a guarantee of 1
day's wages for 3-1/2 hours worked on a holiday. This
figure was later modified to 4 hours of work.
The proposal on Vacations, item 6, called for 1 day of
vacation for each 51 days worked for employees of less
than 2 years and 1 day for each 25 worked for all
employees of more than 2 years. Smith said that this
proposal was less than what the men were currently
receiving since it set rigid standards for vacations which
might not be met due to small eventualities. Respondent
said it was basically the same system and the only
difference was that the plan spelled out the basis for
vacation accumulation."
The Union voiced some objections to Company's item
7, Joint Standing Committee, on the basis that not all
grievances including minor gripes should be presented as
formal written grievances and that some matters should
and could be settled orally. The Union also objected to
that part of the proposal giving the Company rights to file
grievances against employees but agreed to leave it with
some changes of wording. Respondent said that since it
was the first contract it felt the grievance procedure
should be formal until the parties had some experience in
operating under the plan.
The Company's proposal on the foreman granted him
the sole authority in determining the size and makeup of
the pressroom unit and gave him sole and final authority
in the pressroom. The Union objected to the foreman's
determining the pressroom gang noting its proposal on the
manning schedule and that this proposal by Respondent
In regard to this section Mr Crosby was asked on cross-examination to
explain how the plan would work with the illustration of an employee of
less than 2 years' service who worked only 254 days in a year' s time. He
was asked if such a person would receive 4 or 5 days' vacation and replied
that he did not know, that they had never used such a basis before Asked
about employees in the past who were sick and might not have had
consecutive service Crosby answered that "They never got a vacation
unless they deserved it" The proposed day-rate plan was not used by
Respondent in granting vacations in 1967
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would give it sole determination in this area. Crosby said
Respondent was a small paper and not a metropolitan
daily and Smith replied that the Union's proposal was
based on contracts covering similar papers. Respondent
stated its giving the foreman sole authority represented a
change in their procedure and a concession towards the
Union.
The Union's objection to Respondent's item 10,
Probationary Period, was that journeymen were hired as
such and should not undergo a probationary period and if
an employee could not make the grade the foreman could
fire him at any time.
On the company item, Union Rules and Regulations,
Crosby stated this was the reverse of the Union's proposal
and provided that union rules and regulations would not
interfere with company operations. The Union objected to
this proposal.
Company's section 11, Wages, provided only that
apprentices would be paid not less than the minimum
wage and rates ranging from 40 percent to 80 percent of
the journeyman's rate. The Company's proposal contained
no rates for journeymen. Smith asked for the current top
pay for journeymen and was told it was $122.50 per week.
When Smith inquired why men with 7 and 8 years'
seniority were making $99 to $108 per week, he was told
that the $122.50 figure was the top pay not the
journeyman's rate. Smith then asked what figure the
apprentices' percentage was to be applied to and was told
it was the journeyman's rate. Smith received no answer as
to what the journeyman's rate was to be. Baysinger
testified there was no discussion on journeyman's rates
and there was only a discussion on the apprentice
percentages. Baysinger avoided a direct question on
whether there was a discussion on the manning schedule,
progression increases, and the length of the apprentice
program.
The Company's proposal concluded with a clause
providing that the contract was intended to cover all
matters affecting wages, hours, and working conditions
and that the employer would not be required to negotiate
on those or any other subjects.
Smith protested that the Company's proposal was
inadequate in that it contained no proposals for seniority,
fringe benefits (other than the vacation and holiday
clauses), and nothing on wage rates.
The parties then discussed the Union's proposal with
Smith making some concessions. Either at this or a later
meeting Smith agreed to drop the Union's jurisdiction and
recognition proposal and use the certification language
which essentially was Respondent's proposal. Smith
further agreed to drop the provision regarding the
International Arbitration Agreement and the section on
wages for the foreman. The Union wanted its 5-year
apprenticeship program arguing that it was an established
program running throughout the country with lessons
provided for apprentices to move them to journeyman
status and there was no 6-year program established
anywhere. Crosby said he was not interested in contracts
elsewhere, he had a successful 6-year program and wanted
to retain it.
Smith agreed to drop the 37-1/2-hour workweek
proposal and agreed to the Company's 40-hour proposal,
and to drop the request for overtime before starting hours.
While keeping the section on manning the pressroom, he
dropped a section, Circulars and Dodgers, offered a
wording change in regard to the Foreman section,
eliminated several paragraphs in the Grievance section,
and lessened the union demand on vacations, offering to
accept a 3-week vacation for men with the Company 10
years instead of the originally proposed 5 years. Smith
maintained the union proposals on funeral and jury leave
and offered to rewrite the military leave section.
The parties differ as to whether the four items in the
addendum were discussed at this or a later meeting, but
agree the Union dropped three of the items.
According to Respondent, it was at this meeting that
Union Committeeman Lisenby vehemently protested that
the men were falling behind the wage rates being paid to
the men in the composing room and that they were not
being treated properly. Baysinger said that he and Crosby
caucused and returned to point out to Smith various union
proposals which would have to be reconciled to meet
Respondent's objection before they could get together.
4. Smith asked for negotiation meetings in the
following week or 2 weeks and agreement was finally
reached on a meeting for May 22. The May 22 meeting
began with Crosby placing his watch on the desk and
asking for further explanations of certain parts of the
union proposal which Smith provided. Respondent then
presented a counterproposal on jurisdiction which omitted
the phrase "other duties as assigned" and after a question
as to the meaning of a part of the language Smith
accepted the Company's section. Respondent's second
proposal concerned the apprentice scale and contained no
concessions but merely set forth in detail the percentage
ranges from 40 percent to 80 percent at periods of 6
months for a 6-year term. Smith said he needed a wage
proposal from Respondent so that he could have a
journeyman's rate to work from and determine just what
Respondent's percentage proposal on apprentices meant.
Smith testified that he never got the journeyman's rate or
a wage proposal from Respondent. Smith asked
Respondent about the progression increases for the
pressroom apprentices, noting that the composing room
had recently received a raise. Respondent's only reply was
that the subject was negotiable.
Baysinger testified Smith asked why the Company was
limiting the percentage proposal to 80 percent on the
apprentice pay rate and that the Company replied it had
no intention of hiring any employees, nor that employees
should receive anything less than the old scale but they
wanted a range for future apprentices. Baysinger objected
to the manning clause saying it would be a very costly
item in that it provided for eight journeymen and one
apprentice as opposed to the four journeymen and four
apprentices presently employed and Respondent saw no
necessity to increase its costs when the present system
worked effectively.
I do not believe Baysinger's testimony that the Union
raised no question as to what the journeymen rates were
to be or what the Company was proposing.
Baysinger stated that Lisenby said the company
proposal did not include jury pay, hospitalization
insurance, and Christmas bonuses. Baysinger replied that
these items were discretionary with the publisher and
suggested that the employees would not want such items
in the contract, "because at this moment there may be
practices which were more generous on the part of the
publisher than would be if put into an agreement. Because
once put into an agrement, you are stuck by the language
of the agreement." Baysinger said he pointed out that
company practices on sick leave and funeral leave were
established by the publisher on the basis of individual
needs and, "I pointed out to them also that it was not Mr.
Crosby's intention to take anything away from them, that
Mr. Crosby did feel that once you put it into an
agreement you are bound by the language that is in it, and
it may end up less than you have." According to
DOTHAN EAGLE, INC.
Baysinger Lisenby stated he had been employed by the
Company for 8 years and Crosby replied he had been
gone over 2 years and had not worked in the pressroom
that long.
Smith told the Company that the employees were going
over a counterproposal which would be mailed to them
shortly They tried to get together on meeting dates, with
Smith complaining about the shortness of the meeting and
asking for a dinner break and continuation of the session.
Crosby said he had another meeting that evening. Smith
told Respondent nothing could be accomplished in 2-hour
meetings every 6 or 7 weeks and Crosby replied he
couldn't do more, that he had a business t, run and other
things to do. Smith tried to get meetings i.i the following
2 weeks but Baysinger and Crosby said that they had
other things scheduled and could not agree on a concrete
date but would have to let him know.
5. Due to a change in plane schedules Smith was unable
to attend the June 20 meeting and advised the union
committe members and the Company to proceed without
him.
Lisenby, who is no longer with Respondent, testified
that the committee met with Baysinger and Crosby and
something was said about going over the contract, and he
replied that he didn't see much use in that. Baysinger said
that maybe he and Smith were a drag on the meetings,
that without them maybe they could get together with
Crosby and let their hair down, have supper and a drink
and maybe they could get together on it. Lisenby said he
would have to talk to the men about that. This brief
meeting ended when Lisenby said they might as well
conclude since Smith was not there.
Sometime thereafter while in the composing room,
Crosby asked Lisenby if he had talked to the men and if
the men let him know anything and Lisenby replied that
they had not gotten together yet.
Lisenby testified he worked in the pressroom for
Respondent about 6-1/2 years and had worked in the
circulation department another 5 or 6 years
According to Baysinger, in the June 20 meeting, Crosby
said he had received the Union's counterproposal and
wanted to talk about it. Lisenby said he had received a
copy of it but couldn't discuss it since he didn't
understand it. Baysinger testified that "Mr. Crosby asked
what it was they wished to discuss and what it was they
were looking for." Lisenby replied, "we just want what we
got" and that Crosby stated that it was not his intention
to take anything away from the employees.
Baysinger said he pointed out that the union law and
union contracts didn't necessarily provide that graduating
apprentices would be retained by the employer but could
be released and a new apprentice hired if no provisions
were made in the contract to prevent this. Crosby said
that if they went through the contract stating what they
wanted, leaving out the legal language, they might make
headway. Baysinger said he and Smith might be a drag on
negotiations because both were concerned with
technicalities and were talking over the men's heads and
maybe'they should get down to talking about Dothan and
not about contracts elsewhere. Baysinger testified he did
not suggest that the union committee and Crosby let their
hair down or meet other than at scheduled meetings.
Crosby testified that during the June 20 meeting they
briefly ran through the management proposal and
explained it so the men could understand it and stated
that Baysinger did not suggest a "get-together" with the
men to work it out. Crosby answered yes to a question of
whether Lisenby said he would have to talk to the men
about it. Crosby attempted to explain this by stating that
811
what Lisenby would talk to the men about was the
Company's proposal and further affirmed that there was
some discussion regarding meeting with him but insisted
that this was not about trying to settle the situation
without Smith. Crosby was asked whether at another time
he asked Lisenby what the men had said and answered "it
seems like he did mention it to me in meeting somewhere
in the pressroom like that, that the men hadn't decided
anything or something like that." Crosby stated he did not
know what Lisenby had reference to and didn't ask what
the men had said.
It seems incredible that Crosby would ask Lisenby to
take the Company's proposal to the men and discuss it
since apparently they had done so prior to this time and
agreed to the union counterproposal which had recently
been given to Respondent. Further it is inconceivable that
at a later point there would be a discussion between
Crosby and Lisenby about whether the men had met and
decided on something and that Crosby would not know
what Lisenby was talking about or would not ask Lisenby
to clarify the matter. Crosby's affirmance of these
additional conversations seems to confirm Lisenby's
testimony and that what Respondent sought was a secret
meeting with the employee committeemen to discuss and
settle the matters without the presence of Smith
representing the certified bargaining agent.
6. According to Smith the June 21 meeting began with
Crosby setting his watch on the desk and Smith
questioning the 2-hour time limit again with no success.
Smith asked whether Respondent received the Union's
counterproposal and Crosby replied he didn't see any
material changes. Smith stated he apparently didn't read
it carefully and that there were numerous changes in the
Union's proposal. Smith said he was beginning to see the
pattern of the negotiations and asked if the Company
would give the Union the current fringe benefits on
holidays, vacations, pensions, health and welfare, sick
leave, etc. Respondent said no, that these were all
negotiable matters. Smith again asked for a journeyman's
rate and received no reply. Smith's testimony was that to
everything he proposed except the apprenticeship program
the Company's reply was that it was a negotiable matter
and that it did not have set programs as such regarding
pension plans.
Baysinger testified that Respondent took the position
the Union made no substantial change in its proposal but
rather added sections regarding fringe benefits. Crosby
said the hospital program was paid for by the Company
and they had no intention of taking it away from anyone
but that if it were put in a contract it would foreclose him
from adopting a better plan in existence at other Thomson
papers.'
Section 21 - Publishers agrees to maintain an equal or
better Health and Welfare program during the life of
this agreement that is now in existence.
In regard to the pension program, Crosby said there
was no formal plan but that it was at the Employer's
discretion and depended on the individual and was granted
only to employees who retired after long service. Crosby
didn't want to put anything regarding Christmas bonuses
in the contract because he said it would tie him to paying
'The Union 's proposal on health and welfare programs which apparently
would not have foreclosed Respondent from adopting a better program,
provided only:
Section 21 - Publishers agrees to maintain an equal or better Health
and Welfare program during the life of this agreement that is now in
existence.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not less than what he paid the last time and he didn't feel
he could so commit the Company , that the Christmas
bonus had been discretionary and depended on the health
of the operations and was solely in his control . As to sick
leave, Crosby was fearful that this section would mean
that because he had been generous in the past he would
have to be again for all employees . Baysinger said he
asked Smith , "What it was they felt was the past practice
of the publisher so that we could get closer together and
understand just how far apart we were on the subject."
Baysinger said Smith did not respond , and he told Smith
that they needed to delineate what the past practices were
in an agreement or else the agreement would be subject to
a lot of grievances . Smith said he didn ' t know what the
Company had done in the past on these items. Baysinger
said that they should continue to talk about these items to
find out what the Union was seeking and how they could
accommodate them.
Smith went through the Union's counterproposal
explaining it to the Company and securing agreement only
on the section on veterans ' reemployment rights (which
essentially is a restatement of the applicable law) and on
the recognition and jurisdiction proposals which had been
adopted from the Company ' s proposals . The' Union's
proposals on health and ' welfare programs , bonuses, sick
leave, etc, called for maintenance of Respondent's
existing programs and regarding health and welfare,
provided for a program equal to or better than the
existing program.
Smith said he again complained that nothing much
could be accomplished in 2 hours and Crosby replied he
had other matters to take care of such as publishing a
paper . Smith asked for negotiation dates for the following
week and Respondent said it would let him know.
Respondent said it told Smith that not too much was
accomplished in the meetings because Smith took up time
complaining that the Company wasn't bargaining.
Baysinger testified that there was no discussion on
journeymen ' s rates, or progression raises and that in
discussing dates for a next meeting both sides had other
things scheduled and agreed that the next available date
would be in the week of July 17. Smith remembered no
such agreement.
In a letter to Union Representative Smith , Crosby
proposed nonconsecutive dates of July 17 and 20, or July
17 and 25. In a telegram on July 14, Smith agreed to July
20 and 21 which had not been made available. Respondent
replied that not having heard from him until the 14th,
other arrangements had been made by Crosby and
Baysinger , and further discussions produced a meeting
date of August 1.
7. James Snell , a journeyman printer who worked for
Respondent some 15 years until he left the Company in
1968, testified that in mid-1967 the pressroom boys were
dissatisfied with the way negotiations were going, and he
and some of the others talked about getting rid of the
Union . One of the pressroom employees , Smith , advised
him to talk to Composing Room Foreman Kelly.
Subsequently he told Kelly he had heard Kelly could help
them get up a petition against the Union . Kelly said he
thought he could and would do so - "but if anything
comes up about it, its a damn lie, I didn 't do it." He told
Snell he would set up a meeting and that he should go to
the chamber of commerce and ask for Mr. Glawson. Snell
went to the chamber of commerce building (across the
street from Respondent ) but Glawson was out, and it
wasn ' t until the following day that he talked to Glawson.
Glawson said he thought he knew what he wanted and to
come back in a couple of hours and it would be ready for
him. Snell went back to work and towards the close of the
shift returned to the chamber of commerce and was given
copies of the prepared petition . With the exception of
Lisenby, Snell got all the employees , including Assistant
Foreman Penuel , to sign it and asked Pressroom Foreman
White to sign . White said he didn ' t know whether he
should or not and would find out. White later told Snell
he didn't have to sign it. Snell said he went to the front
office and asked the secretary - who assists the publisher to
mail it for him. She asked him where to send the copies
and he told her to send one to Union Representative
Smith and another to the National Labor Relations
Board . Snell gave a copy to Crosby, telling Crosby he
didn ' t know whether it would do any good but everyone
hoped that it would. '
During cross-examination ' Snell was asked why his
affidavit did not mention that Foreman Kelly sent him to
the chamber of commerce and instead said employee
Smith did so. Snell answered that when he gave the
affidavit he ' was still employed by Respondent and his
dependence on Respondent for a job made him hold back.
He testified he did not recall Smith ever telling him to go
to the chamber of commerce . Snell testified that the
pressroom men knew the composing room men were
getting raises and thought if they got rid of the Union
they could get raises too
Foreman- White testified that Snell called h im and
asked if he wanted to sign a petition to get rid of the
Union, and that he replied he didn ' t know whether his
name was necessary or not, - and that he would be down to
the plant in a few minutes to see about it. White called
Crosby and asked if his name was necessary on the
petition . Crosby told him to call Glawson at the chamber
of commerce and find out . White went to the chamber of
commerce and was told by Glawson that as the pressroom
foreman his name was not needed. He so informed
Crosby's secretary in Crosby's absence and told Snell.
Two or three months before this, while in Crosby's
office, Crosby told White the men could get rid of the
Union by getting a letter or petition from the chamber of
commerce and if it was signed by a majority of the
employees it would be thrown out . Crosby asked White to
tell this to the men but White states he did not do so.
Crosby denied talking to White about whether White's
name should be on a petition.
Henry Kelly, the composing room foreman, testified he
talked with Snell in July 1967 and that Snell asked him to
help do away with the Union , since everybody was getting
tired of the mess , and Smith hadn't done anything he said
he would do and the men wanted to get rid of the Union,
and Kelly ought to know how to do it. Kelly states he
replied he didn't know how and if he did , he couldn't do
so. Snell persisted and Kelly said that if they voted it in, it
looked like they could vote it out. Snell asked how and
Kelly told him to hire a lawyer . Snell said they had no
money and Kelly told him to go to the chamber of
commerce, that they had an industrial commission, and
maybe they had a labor commission . Snell asked who he
should see there and Kelly said that Mr. Glawsonwas the
head of the office and could tell him who to see.
According to Kelly, Snell asked Kelly to go with him and
Kelly refused saying , that he could have nothing to do with
it, and refused to look up the telephone number of the
chamber of commerce .' Kelly testified , Snell said Kelly
could get the letter written for him, but Kelly said no that
Snell would have to be the one to see Glawson. Kelly
stated that was the end of his conversation with Snell
DOTHAN A LE,J C.
concerning the subject, and he had no further
conversations with him about it.
Kelly testified he was instructed about the Union at the
time of the election when he was told that as a foreman
he was to stay out of it, and he told his em loyees that
since it was not in their department, they also were to stay
out of it. Kelly said that he has known Snell for 15 to 20
years but he figured that the petition was none of his
business and he didn't want to get involved in it., - ,
8. By the August 1 meeting, Respondent had received
the petition from Snell. According to Baysinger, he,and
Crosby discussed it prior to the meeting and he advised
Crosby that the International Union was certified as the
bargaining agent and that Respondent had a duty to
bargain with the International, and that Smith represented
the International and could bargain for it. Despite this
advice he told Crosby to go ahead and ask Smith what
authority he had when the meeting began. Crosby began
the meeting by telling Smith he had received a petition
signed by six or seven of the pressroom employees, and
realizing he had an obligation to bargain he wanted to
know whether Smith could' sign a binding agreement.
Crosby said he could commit the Company but wondered
whether Smith could commit the Union. Smith explained
that the International was certified as the bargaining agent
and that as a democratic gesture local members
participated in bargaining sessions but did not need to be
there. Smith said he could bind the local group by signing
a contract on behalf of the International. Baysinger
testified that Crosby questioned the democracy of such a
procedure and that there was a good bit more discussion
regarding Smith's authority. Smith finally asked if Crosby
had a counteroffer and where it was. According to Crosby
and Baysinger they told Smith they wanted to be sure any
agreement would be binding, then left, caucused, and
came back to the meeting with some counterproposals.
Smith testified that the discussion about his authority
went on for 15 to 20 minutes with Crosby and Baysinger
repeatedly asking if he had authority to negotiate a
contract for the pressroom and he stating over again that
he did. Smith added that they usually had an employee
committee during negotiations and presented the contract
to the employees for ratification but in the present case
the methods used had broken the majority and he would
not have to present the contract to the employee
members, but he wouldn't sign a substandard contract and
have it haunting him elsewhere. Smith asked if the
Company had a counterproposal or anything to offer
accusing them of being lax in submitting it, stating it took
3 months from the date of his original proposal before the
Company presented him with a first counterproposal, and
further accusing the Company of reneging on various
promises.
The parties disagree as to the amount of time the
Company's caucus consumed, but agree that when Crosby
and Baysinger returned they presented Smith with five
contract clauses. The first clause was an addition to
Respondent's foreman proposal and provided that the
Union might appeal to the Joint Standing Committee in
behalf of any employee it believed was discharged
unjustifiedly and that the foreman would give the reasons
for discharge in writing within 48 hours- The second
proposal in relation to manning in essence is the same as
Respondent's original proposal since it stated that
Respondent would be the sole judge of the number and
makeup of men to be employed in the department and
was to be the sole judge of the work the men would do
and that such would not be open to question by the
813
i he third proposal was a new section, which
provided that where c mpetency and ability of employees
were equal, then - seniority would control in the
determination of layoffs . Respondent provided that the
foreman was to be the sole judge of competency. The
fourth proposal set ow that negotiations for a new
contract would begin aoi less than 30 days prior to the
expiration; of the . agreement. but the proposal made no
pro-vision; to meet the Un n ' s. objection that there should
,be - Aoint €Ief ite to .atir n point , since the Company's
p still that the terms of the agreement would
gte-v , the pates as _ long as negotiations continued. The
fifth ;pail was aanm addition to the vacation section and
allowed enapleytes their choice of a vacation schedule
subject to prtlddiiaion necessities as determined by the
fnreno.
Smith told Respondent that the proposals met only one
of his objections and that the remainder seemed to be the
same as their original offer- Crosby and Baysinger said
they didn't know what else to do,
Smith asked for a company wage offer and for the
same fringe benefits as they were giving. Crosby replied
that they did not have a set program on the fringe benefits
and that as to wages and progression raises, those were a
negotiable matter. The Company did not offer any wage
proposals. Smith said the negotiations had gone on long
enough , that the Company had broken the Union's
majority and that while he had hoped to get a contract it
didn 't look possible and that he was going to file charges
with the NLRB.
According to Baysinger , Smith said he intended to
write the other Thomson papers ' locals and let them know
the tactics that had been used here. Baysinger asked if
Smith was threatening the Thomson Newspapers and
Smith replied he was not but felt that the locals should
know how unfair the Company was. According to
Respondent , Smith was asked to negotiate on the new
proposals but refused to do so. Baysinger denied there was
any discussion of fringe benefits or a request for or
discussion on the journeyman rates or requests for the
progression rates at that time,
The negotiation sessions between the Company and the
Union ended at this point.
C. Analysis of Bargaining.
According to Mirl Crosby's testimony, some 2 years or
more prior to the advent of the Union he prepared,
signed, and distributed to the employees a two-page
document entitled "Benefits for Dothan Eagle
Employees." This document (on yellow paper) was again
distributes to the employees a few months before the
Union began its campaign at Respondent. It began by
saying that it was listing the employee benefits so that
everyone could be familiar with them and detailed them as
follows:
One week paid vacation on completion of one year's
employment; thereafter, two weeks each year.
Up to two weeks paid sick leave per year. In case of a
longer absence because of illness, circumstances
determine amount of sick leave granted.
A Christmas bonus to each employee every year.
Amount of bonus depends on length of service,
estirrtate4 at one-half week's pay for each full year of
employment, maximum two weeks' pay.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When an employee is retired by the company, said
employee will be paid $100 per month by the Eagle.
Delivery of the Eagle to the home of employees without
cost to them.
Full cost of employee and employees' dependents
hospitalization insurance , as well as full cost of
employees' life insurance. Benefits of the plan are as
follows:
Hospital room and board, limit 31 days, $12 Per Day
Other Hospital Charges:
If cost of surgery is $75 or more,
Maximum hospital fees payable .....$125.00
If cost of surgery is less than $75,
Maximum hospital fees payable .... .$75 00
When no surgery is performed,
Maximum hospital fees payable. . . . . $75.00
Additional allowance for hospital charges
exceeding the above, subject to 75% of excess
and subject to maximum of . ..... $375.00
Maternity Expense:
Hospital Allowance ..... ...... .$50 00
Doctor Allowance , ...... ...$50 00
Major Medical Insurance: This insurance is designed to
pay the major part of the expenses of a long and serious
illness. After the basic benefits have been exhausted and
an extra $100 has been paid by the employee, this
insurance will pay 80 percent of covered expenses up to
$10,000.
Amount of life insurance is determined by salary range,
as follows:
Annual Salary to $4,000 ....................$4,000 Insurance
Annual Salary $4,000 to $6,000.......10,000 Insurance
Annual Salary $6,000 and Up..........15,000 Insurance
The company also pays an amount equal to the
employees' payments on Social Security. For example,
if an employee pays $150 per year, the company also
pays $150 per year. The company also pays state and
federal unemployment taxes on each employee.
This makes it evident that for at least 2 years prior to
the advent of the Union, Respondent had specific
programs on vacations, sick leave, pensions, Christmas
bonuses, free newspapers, and a hospitalization and life
insurance plan. These benefits provided for contingencies
such as additional sick leave depending on circumstances.
It is these programs that the Union suggested be
continued in their counterproposals which Respondent
resisted.
Respondent's counteroffer contained none of these
listed benefits and with the conclusionary or "zipper"
language in its final clause, it was in effect offering a
contract without these benefits and thus suggesting they be
dropped. To the Union's objections that these items were
not included in Respondent's counterproposals and
suggestion that they be included in the contract in their
present form, Respondent replied in two ways: (1) that it
had not set benefit program (although here acknowledging
that it had set benefits for over 2 years), and (2) that if it
put the benefits in a contract, the language would preclude
enlargement of those benefits (despite the Union's
proposal which allowed for enlargement of some benefits).
Respondent's voiced claim that it had no intention of
taking anything away from the employees is contradicted
by Baysinger's testimony that Respondent told the
employee committeemen that if language concerning the
fringe benefits was put into the contract it might result in
the employees getting less benefits than they presently
enjoyed. Bearing on this too is that Respondent despite
Lisenby's answer to Respondent (testified to by Baysinger)
that they just "wanted what they got," never made a
counteroffer that even approached giving the employees
their present benefits, but rebuffed such suggestions by
saying the items were negotiable.
Such contradictory statements and actions by
Respondent was one of the determining factors in
resolving credibility.
On another topic, the Union proposed its 5-year
apprentice program which Respondent resisted claiming
throughout the negotiations and the hearings herein that it
had a successful 6-year apprentice training program.
Pressroom Foreman White, who occupied that position
for 12 years, testified that there was no time set by
Respondent for apprentices to advance to journeymen and
that in the 15 years he has been with Respondent no
apprentice was ever raised to the journeyman level by
Respondent. He noted that two apprentices had left
Respondent's employ and been rehired as journeymen. As
further evidence of Respondent's not having an apprentice
program we have Lisenby's testimony that he worked in
the pressroom as an apprentice for 6-1/2 years and was
never made a journeyman by Respondent.
It seems evident that if Respondent had a definite
apprenticeship program its pressroom foreman would have
known of it. I conclude that Respondent had no program
of raising apprentices to journeymen level in a 6-year span
but rather stated it had such a program to raise an
irreconcilable issue and stave off reaching any agreement
with the Union.
Considering the apprenticeship program and fringe
benefit controversies as well as the manning schedule
provisions and foreman's powers, it appears that
Respondent had no intention of allowing the Union any
voice in the decisions relating to its work force, how the
jobs were to be run, how the men were to be employed, or
how many were to be employed.
Respondent's position regarding fringe benefits makes it
plain that management was not ready to give the Union
what it actually had been giving its employees for over 2
years. Its argument that it wanted flexibility to decide on
the basis of the publishers' preference what benefits he
would give to individuals and that its programs were not
set, when according to its own testimony the programs
had been published as set programs for a period of more
than 2 years, is not compatible with a conscientious and
sincere effort to come to an agreement with the Union.
Respondent's arguments and positions do not stand up
under any reasonable inspection and appear rather absurd.
Another phrase, which according to Smith kept
recurring, was the Company's statement that the matter,
whatever the question was, was a negotiable item. The
fact that Respondent stated that a particular matter was
negotiable did not mean that Respondent was in fact
negotiating on it. As an example, consider the matter of
wage scales. Respondent proposed that apprentice wage
rates be scaled at 40 to 80 percent of the journeyman rate.
Smith repeatedly asked for a journeyman wage proposal
DOTHAN EAGLE, INC.
from Respondent and Respondent never proposed any
wage rates, merely replying that wage rates were a
negotiable item.
The Union proposed a wage scale in its original
contract proposal which Respondent received in February
1967, but from then until the last bargaining session in
August 1967, Respondent made no proposal on wage rates
or raises. Thas no meaningful bargaining could take place
as to the wage rates for both journeymen and apprentices
although Smith continued to ask for a company proposal
and did not even receive the current journeyman rates
from Respondent.
Considering Respondent's counterproposals as a whole,
they would vest in management unlimited control of hours
of work and lunch periods, size and makeup of work
force, determination of competence of employees, and
whether and how much employees were to be
compensated in all the items of special leave and subjects
generally termed fringe benefits.
In essence Respondent's position was flat and
intractable on any items of significance, while maintaining
for itself unlimited discretion in the control of its business
affairs and with no concession to the Union of any voice
in the working conditions of the employees or their
benefits which was other than essentially meaningless.
One other point, that of the restrictions on bargaining
sessions imposed by management seems worthy of note.
Crosby refused to meet at any time when Baysinger could
not be present. Baysinger's office was in Chicago and
according to his testimony he operated on a schedule
which kept him moving to various Thomson papers
throughout the country. He stated that in coming to
negotiation sessions in Dothan, Alabama, from Chicago,
he tried to fit in visits to other Thomson Newspapers in
the area. Representative Smith was based in Atlanta and
had other negotiation sessions and union matters to attend
to in the southeastern area and it was necessary for him to
travel either from Atlanta or other locations to Dothan,
for negotiation sessions.
Respondent testified that most of the bargaining
sessions took over 2 hours while Smith testified that all
but one were less than 2 hours. Smith sought to extend
the bargaining sessions by asking that they meet for a
longer period of time or in succeeding weeks for several
days but his suggestions were continually rebuffed by
management's statements that they had other things to do
than meet in negotiation sessions. It appears to me that
management ' s restriction on bargaining sessions to 2
hours and arranging no more than 2 consecutive days for
bargaining sessions, at extended intervals considering the
difficulties in coordinating Smith's and Baysinger's
schedules, unduly hampered the negotiations and in fact
was designed to insure that not much could be
accomplished in the bargaining meetings. The tactic of
Baysinger in: (1) insisting that Smith explain the Union's
contract proposal to Crosby, although Baysinger had
apparently already done so and this explanation took up
two negotiation sessions; (2) Baysinger's insistence again
that the Company's counterproposal be explained at
length to Smith and the union committee although Smith
did not want such an explanation and it took up another
session, and (3) Crosby' s and Baysinger's questioning of
Smith at the last negotiation meeting as to his authority
to negotiate, although Baysinger had prior thereto
reminded Crosby that the certification was of the
International and Smith could negotiate for it, all appear
to me to be designed to use time, act as a harassing tactic,
and avoid the possibility of reaching an agreement with
815
the Union. Apprently some of the meetings scheduled by
the parties were canceled at the instance of the Union, but
at the same time the limitation of a 2-hour negotiation
session coupled with refusal to schedule meetings at any
more frequent intervals than 2 to 4 weeks apart indicates
that Respondent was not attempting to come to terms
with the Union.
Respondent's claim that the Union no longer represents
the majority of the unit employees is immaterial since I
find and conclude that Respondent caused the disaffection
of the employees by its bargaining conduct and in
particular by its refusal to grant raises to the unit
employees.
Considering all the facts, including. Respondent's
refusal to grant the progression raises to the apprentice
employees according to its scheduled plan; the fact that
Respondent's negotiation proposals were less than what it
was presently giving its employees; the fact that it told the
employees that they might wind up with less than what
they were getting if the fringe benefits were put into a
contract; the fact that it raised a false issue in regard to
an apprenticeship program; the fact that essentially the
proposals and positions taken by Respondent retained for
it exclusive control of the working conditions, hours, and
wages with essentially no voice for the Union; the fact
that the negotiation sessions were restricted by
Respondent as to duration and scheduling ; the fact that
the idea of a decertification petition was first raised by
management to Foreman White and that some months
thereafter Foreman Kelly assisted an employee in having
the petition prepared; the fact that Respondent attempted
to bargain with the union committeemen and the
employees in derogation of the status of the Union and
Smith as the International representative; convinces me
that Respondent was making no effort whatsoever to
reach any agreement with the Union, but rather was
endeavoring to keep from doing so, unless the Union was
prepared to accept a meaningless, benefitless contract
which would provide for less benefits than what
Respondent was then giving these very employees.
Respondent's course of bargaining was designed for no
other purpose than rejection of its proposals by the Union.
Accordingly, I find and conclude that Respondent rejected
the principle of collective bargaining and did its best to
avoid collective bargaining in its negotiation conduct; and
that by its refusal to grant the progression raises to
apprentice employees in the pressroom unit, by its attempt
to bargain individually with union committeemen and
employees in the union concerning their desires in
derogation of the status of the bargaining agent; by the
encouragement and preparation of the petition to
repudiate the Union' by its limitation of the hours of
collective bargaining; and by its other courses and conduct
outlined above and by each of them, Respondent has
demonstrated it was not bargaining in good faith, had no
intention of entering into a bargaining relationship with
the Union, and thereby has violated Section 8(a)(5) and
(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section II,
above, and therein found to constitute unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
occurring in connection with Respondent's business
operations as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
W. THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Respondent, since on or about February 11, 1967, has
at all times refused and still refuses to bargain with the
Union in good faith as the representative of its employees
in an appropriate unit. Therefore, I recommend that
Respondent, upon request, bargain collectively with the
Union in good faith and, in the event that an
understanding is reached, embody such understanding in a
signed agreement.
Respondent having discontinued, withheld, and failed
and refused to pay the established and regular progression
increases to apprentice employees in the appropriate unit
since February 11, 1967, as found above in section II, I
recommend that Respondent make the apprentices
employed in that unit during such time whole for any loss
of pay they may have suffered by reason of Respondent's
discrimination against them by payment to each of them
of a sum equal to that which each would normally have
received as increases from February 11, 1967, until
Respondent reinstitutes the payment of such raises to the
unit employees. The amount of the increases shall be
equivalent to the increases received by employees in the
composing room department, from comparable dates in so
far as possible, and the affected employees shall receive
interest on such amounts at the rate of 6 percent per
annum, to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. Employees
who have left Respondent's employ as well as current
employees are entitled to receive said backpay according
to the dates of their employment. I further recommend
that Respondent make available to the Board, upon
request, payroll and other records in order to facilitate
checking the amounts of backpay due.
Having found that Respondent discriminated against its
employees for exercising their rights under the Act, and
that Respondent has rejected the principle of collective
bargaining and sought to avoid collective bargaining, and
has by such action invaded its employees' rights under the
Act, as set forth in section II, above, I am of the opinion
that Respondent may commit further unfair labor
practices, having by its actions detailed herein, shown its
proclivity for so doing. Since it is part of the purpose of
the Act to prevent the commission of unfair labor
practices, I recommend that Respondent be placed under
a broad enjoinder to cease and desist from in any other
manner infringing upon the rights guaranteed its
employees by the Act.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Dothan Eagle, Inc., a subsidiary of Thomson
Newspapers, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All press-stero journeymen and apprentices of the
Employer at its Dothan, Alabama, plant; excluding all
other employees, including watchmen, guards, the press
room foreman and all other supervisors as defined by the
Act, as, amended, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since December 20, 1966, the Union has
been and is now the exclusive representative of the
employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Respondent by refusing to bargain in good faith with
the Union on and after February 11, 1967, as the
exclusive representative of its employees in the appropriate
unit, has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(5) and (1),
and 2(6) and (7) of the Act.
6. By discriminatorily refusing to pay established
progression increases to the apprentice employees in the
aforesaid unit, by encouraging and assisting in the
preparation of a petition to repudiate the Union, and by
attempting to bargain individually and directly with
employees in the unit, Respondent has violated Sections
8(a)(1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case
considered as a whole, it is recommended that Dothan
Eagle, Inc., a subsidiary of Thomson Newspapers, of
Dothan, Alabama, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and other
terms or conditions of employment with International
Printing Pressmen and Assistants' Union of North
America, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit described in paragraph
3 of the section entitled "Conclusions of Law," above.
(b) Withholding and failing to pay the established and
regular progression increases to apprentice employees in
the aforesaid unit.
(c) Attempting to bargain individually with employees
in the aforesaid unit in derogation of the bargaining status
of the Union.
(d) Encouraging or assisting in the preparation of a
petition to repudiate the Union.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, to bargain
collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named Union as the exclusive representative of
all employees in the appropriate unit and embody in a
signed agreement any understanding reached.
(b) Make whole the apprentice employees employed in
the unit on and after February 11, 1967, for loss of pay
they suffered by reason of Respondent's discrimination
against them, in accordance with the recommendations set
forth in the section of this Decision entitled "The
Remedy."
DOTHAN EAGLE, INC.
(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 Recommended Order.
(d) Post at its Dothan, Alabama, plant copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
representative, shall be posted by 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 15, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
Following a trial in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered their evidence, it has been
817
found that we violated the law and we have been ordered
to post this notice and to abide by what we say in this
notice.
WE WILL bargain collectively in good faith, upon
request, with International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, as the
exclusive representative of all the employees in the
bargaining unit described below, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, we will sign a contract containing such
understanding.
The bargaining unit is:
All press-stero journeymen and apprentices of the
Employer at its Dothan, Alabama, plant; excluding
all other employees, including watchmen, guards,
press room foreman, and all other supervisors as
defined by the Act, as amended.
WE WILL make the apprentices in this unit whole by
payment to- them of the progression raises which they
were denied, and which were due them on and after
February 11, 1967.
WE WILL NOT attempt to bargain individually with
employees
WE WILL NOT encourage or assist in the preparation
of a petition to repudiate the Union.
All our employees are free to become or remain union
members.
Dated By
DOTHAN EAGLE, INC.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.