Toledo Blade Co.

National Labor Relations Board - Board Decisions

Oct 28, 2004

343 N.L.R.B. 385 (N.L.R.B. 2004)

TOLEDO BLADE CO.
343 NLRB No. 51
385
The Toledo Blade Company, Inc. and Toledo News-
paper and Printing Graphics Union No. 27N,
a/w Graphic Communications International Un-
ion, AFL–CIO. Case 8–CA–33734
October 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
Upon a charge filed by Toledo Newspaper and Printing
Graphics Union No. 27N, affiliated with Graphic Com-
munications International Union, AFL–CIO (the Union),
the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on March
31, 2003, alleging that the Respondent, The Toledo Blade
Company, Inc., violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by unilaterally
changing the disciplinary policy for its pressroom employ-
ees. The Respondent filed a timely answer to the com-
plaint, denying that its conduct violated the Act.
On August 12, 2003, the parties jointly moved to trans-
fer the proceedings to the Board, without benefit of a
hearing before an administrative law judge, and submit-
ted a proposed record consisting of the formal papers and
the parties’ stipulation of facts with attached exhibits. On
January 21, 2004, the Executive Secretary, by direction
of the Board, issued an order granting the motion, ap-
proving the stipulation, and transferring the proceedings
to the Board. Thereafter, the Respondent, the Union, and
the General Counsel filed briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record in the case, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The Toledo Blade Company, Inc., an
Ohio corporation, with an office and place of business in
Toledo, Ohio, is engaged in publishing a daily and Sun-
day newspaper. In the course and conduct of its business
operations, the Respondent annually derives gross reve-
nues in excess of $200,000 and holds membership in or
subscribes to various interstate news services, publishes
various syndicated features, and advertises nationally
sold products. The parties stipulated, and we find, that
the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
We further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
changing a work rule and a disciplinary policy for its
pressroom employees.
A. Facts
Based on Section 9(a) of the Act, the Union is the ex-
clusive collective-bargaining representative for employ-
ees in the following appropriate bargaining unit:
All pressroom employees, who work in pressrooms
operated by the Respondent, and on all printing
presses employed in the pressroom, including but not
limited to gravure, offset and letterpress printing
presses and associated devices, but excluding all of-
fice clerical employees, guards, and supervisors as de-
fined in the Act.
The Respondent’s recognition of the Union has been
embodied in successive collective-bargaining agree-
ments, the most recent of which was effective from
March 22, 1995, to March 21, 2003.
On May 24, 1990, the Respondent issued the following
rule for unit employees:
The production man in charge shall assign at the begin-
ning of each shift a unit or units of responsibility to
members of the operating crew.
It shall be their responsibility to ensure the quality of
the pages in their assigned unit(s).
This is to include but not limited to the following defi-
ciencies: 1) Blank or partially printed sheets, 2) ink
spills on paper, 3) compensation (cutoff), 4) filled in
type or smutting resulting from plate swell, 5) dirty or
incorrect ink, 6) turnovers and torn sheets, 7) register
and/or any other fault that lessens print reproduction or
quality.1
Between November 1990 and December 1999, the Re-
spondent issued 17 disciplines pursuant to this rule.2
These disciplines conformed to the Respondent’s prac-

1 Exh. 2. (Emphasis in original.)
2 Thirteen of the discipline forms specify that the person disciplined
was the person responsible for the unit (Exhs. 3–5, 8, and 10–18). The
remaining four discipline forms do not indicate whether the individual
disciplined was the individual with responsibility for the unit (Exhs. 6–
7, 9, and 19). In the parties’ motion to transfer the proceeding to the
board and stipulation of facts, they listed the disciplines reflected in all
17 of these forms as having been issued for violations of the May 24,
1990 rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD386
tice of progressive discipline.3 In addition, in 1994, dis-
cipline was imposed on employees Al Davis and Keith
Finley when plates were run in the wrong position. Davis
and Finley were responsible for the units involved. The
Respondent issued Davis a first written warning for ne-
glect of duty. It issued Finley a 2-day suspension because
it was his third offense for neglect of duty. Grievances
over these disciplines went to arbitration; the arbitrator
denied the grievances and upheld the Respondent’s deci-
sion to discipline Davis and Finley and to apply progres-
sive discipline.4
On March 31, 2001, an error occurred on unit 59 in
which the plates for two pages were transposed. On that
shift, Finley was the man-in-charge, Frank Hayden was
assigned to unit 59, and seven other employees were as-
signed to other units. Hayden was suspended for 3 days,
and first written warnings were given to Finley and six of
the seven other employees.5 The Union grieved, con-
tending that these disciplines did not follow the Respon-
dent’s May 24, 1990 memo (1990 memo) and its policy
of progressive discipline.6 The grievance went to arbitra-
tion, and Arbitrator Nels Nelson ordered the Respondent
to reduce Hayden’s suspension to a first written warning
and to rescind the warnings given to the other employ-
ees.7 He found:
there is a clear and consistent practice or custom re-
garding discipline for the routine errors that take place.
First, whenever an error occurs on a unit, only the per-
son responsible for the unit receives discipline. Second,
the employee who is deemed responsible receives pro-
gressive discipline consisting of a first warning, a sec-
ond written warning, and a suspension.
The arbitrator concluded that “the pressmen . . . believed
that the consequence of failing to catch an error was pro-
gressive discipline for the person responsible for the unit

3 The progressive discipline practice, as described in the latest ver-
sion of the “Corrective Discipline Action” form, provided for “First
written warning,” “Second written warning,” and “Disciplinary suspen-
sion for__days and Final warning,” which could lead to additional
disciplinary action, up to and including discharge (Exhs. 10–19). Under
this practice, discipline over 2 years old is not considered.
4 Exh. 21.
5 A written warning was given to the seventh employee, but it was
later rescinded. Although the seven employees were not assigned to the
unit in which the error occurred, the Respondent issued them warnings
because they “were part of the crew on #50 press and should have
caught the error before 13,320 papers were run” [Exh. 28].
6 Under progressive discipline, Hayden should have received a first
written warning, as it was his first offense. Under the 1990 memo, the
six employees should not have been disciplined because they were not
in charge of the unit.
7 The arbitration hearing was held on March 18, 2002. Arbitrator
Nelson issued his decision on June 19, 2002.
where the error occurred,” and that the Respondent had
provided no notice of any change in its penalties.8
On July 23, 2002, Barbara Gessel, the Respondent’s
director of human resources and labor, sent a letter to
Finley, who was the Union’s president, in which she
stated:
At this time, I am notifying the Union that the
Company is rescinding the May 24, 1990 memoran-
dum from former Superintendent, John Buczkowski
regarding the responsibility of members of an oper-
ating crew to ensure the quality of the pages on their
assigned unit(s). It should be clearly understood
from this time forward that the Company holds all
pressmen on a shift responsible for checking the en-
tire paper and will not limit discipline to the person
assigned to a particular unit or units where the error
occurs. The appropriate level of discipline will be
determined on a case-by-case basis.[9]
In response to this letter, union representatives met
with management and told them that the Union did not
agree to the unilateral change to the disciplinary system.
Counsel for the Union also contacted Gessel by phone
about the disciplinary policy change and followed up
with a September 25, 2002 letter.10 On October 2, 2002,
Gessel responded, stating in part: “Please allow this to
serve as a second formal notice that the Company will
proceed with future discipline as outlined in our letter to
you dated July 23, 2002.”11 In that same letter, the Re-
spondent again announced that in the future the appropri-
ate level of discipline would be determined on a case-by-
case basis, and that it would not necessarily conform to
the practice of progressive discipline as described by the
disciplines in Exhibits 10–19, discussed above.
B. Contentions of the Parties
The Respondent argues that it has always had the abil-
ity to hold all involved pressmen responsible from a dis-
ciplinary standpoint and that it did not modify the disci-
plinary system, but merely clarified who was responsible
and potentially subject to discipline. It claims that it was
merely providing the notice that Arbitrator Nelson found
lacking in his 2002 arbitration decision. The Respondent
asserts that progressive discipline does not always need
to start with a verbal or written warning and is not vio-
lated by looking at issues on a case-by-case basis. It also

8 Exh. 40.
9 Exh. 41.
10 Exh. 42.
11 Exh. 43.
TOLEDO BLADE CO. 387
asserts that the actions at issue here are not significant or
material changes in terms or conditions of employment.12
The General Counsel argues that the Respondent’s in-
stitution of a new system of discipline is a significant and
material change in working conditions, requiring notifi-
cation and an opportunity to bargain prior to institution.
The General Counsel contends that the Respondent pro-
vided no opportunity to bargain over the changes, but
presented the Union with a fait accompli.
The Union contends that the Respondent made two
unilateral changes in employee terms and conditions of
employment. First, it rescinded its longtime disciplinary
rule of holding only the pressmen in charge of a unit re-
sponsible for the quality of pages in their assigned units
and replaced it with one under which all employees
working on the shift could be held responsible for a mis-
take on one of the units. Second, the Respondent re-
scinded its progressive discipline policy and replaced it
with a policy of determining the level of discipline on a
case-by-case basis. The unilaterally implemented chang-
es were not a mere clarification, the Union asserts, but
significant deviations from the way discipline had been
administered for mistakes in the past.
C. Discussion
Section 8(a)(5) of the Act requires an employer to pro-
vide its employees’ representative with notice and an
opportunity to bargain before instituting changes in any
matter that constitutes a mandatory bargaining subject.
NLRB v. Katz, 369 U.S. 736 (1962). However, a unilat-
eral change in a mandatory subject of bargaining is
unlawful only if it is a “material, substantial, and signifi-
cant change.” Flambeau Airmold Corp., 334 NLRB 165
(2001), quoting Alamo Cement Co., 281 NLRB 737, 738
(1986), modified on other grounds 337 NLRB 1025
(2002).
In this case, the Respondent stipulated that it did not
give the Union notice and an opportunity to bargain over
its July 23, 2002 announcement rescinding the policies
expressed in the 1990 memo. The issues before us, there-
fore, are (1) whether the disciplinary policy and the work
rule set out by the 1990 memo are mandatory subjects of
bargaining; (2) if so, whether the Respondent’s actions
actually made changes in those policies; and (3) if so,
whether the changes had a material, substantial, and sig-
nificant impact on the employees’ terms and conditions
of employment. As explained below, we find that the
work rule and disciplinary policy are mandatory subjects
of bargaining, that the Respondent in fact changed the
rule and policy, and that the changes are material, sub-

12 The Respondent does not argue that the Union waived its right to
bargain over the conduct in issue in this case.
stantial, and significant. Therefore, we find that the Re-
spondent violated Section 8(a)(5) and (1) as alleged.
1. Disciplinary policies and work rules are mandatory
subjects of bargaining
It is well established that an employer’s disciplinary
system constitutes “a term of employment that is a man-
datory subject of bargaining.” Migali Industries, 285
NLRB 820, 821 (1987) (progressive discipline system
held to be mandatory subject of bargaining); Electri-Flex
Co., 228 NLRB 847 (1977) (written warning system of
discipline held to be mandatory subject of bargaining),
enfd. as modified 570 F.2d 1327 (7th Cir. 1978), cert.
denied 439 U.S. 911 (1978). The Respondent’s action in
the instant case involves its system for administering
discipline to employees for errors in unit work, be it pro-
gressive discipline or case-by-case discipline. Such a
system constitutes a mandatory subject of bargaining
under the precedent discussed above.
It is equally well settled that “work rules, especially
those involving the imposition of discipline, constitute a
mandatory subject of bargaining.” Cotter & Co., 331
NLRB 787, 796 (2000). Here, the Respondent’s July 23,
2002 letter (2002 letter) stated that all pressroom em-
ployees on a shift were subject to discipline in the event
an error occurs. The 2002 letter clearly set forth a work
rule involving the imposition of discipline and is, there-
fore, a mandatory subject of bargaining.
2. The Respondent changed its disciplinary policy
and work rule
The documents in this case and the past practice be-
tween the parties indicate that the Respondent changed
its progressive discipline policy to a policy of discipline
on a case-by-case basis. The disciplines issued under the
1990 memo followed a system of progressive discipline.
In the 1994 discipline of Davis and Finley, the Respon-
dent applied progressive discipline, and the arbitrator
upheld the Respondent’s decision to apply such disci-
pline. Indeed, the Respondent’s brief to the arbitrator in
the 1994 Davis/Finley arbitration stated: “The Com-
pany’s use of progressive discipline principles is likewise
well established and mutually recognized.”13
The Respondent’s 2002 letter, however, announced
that “[t]he appropriate level of discipline will be deter-
mined on a case-by-case basis.” By determining the
level of discipline solely on the basis of a single current
case, the 2002 letter substantively changed the previous
progressive discipline policy, which considered a current
case of discipline in the context of past discipline cases.

13 Exh. 20.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD388
Similarly, the record shows that the Respondent
changed its work rule governing which employees would
be held responsible for an error. As noted above, in its
1990 memo, the Respondent had placed responsibility
for an error on the pressmen who were in charge of the
unit where the error occurred. The 1990–1999 disci-
plines discussed above, including the 1994 discipline of
Davis and Finley, imposed discipline only on the person
in charge of the unit where the error occurred. In the
2002 letter, however, the Respondent stated that it was
“rescinding the May 24, 1990 memorandum . . . regard-
ing the responsibility of members of an operating crew to
ensure the quality of the pages on their assigned unit(s).”
The Respondent continued: “It should be clearly under-
stood from this time forward that the Company holds all
pressmen on a shift responsible for checking the entire
paper and will not limit discipline to the person assigned
to a particular unit or units where the error occurs.” Be-
yond question, the Respondent’s 2002 letter greatly ex-
pands the type of conduct and the number of employees
subject to discipline for errors and thus is a substantive
change from the policy set forth in the 1990 memo.
The Respondent argues that it has always had the au-
thority to impose discipline on all pressmen involved in
an error and that its 2002 letter merely clarifies this au-
thority. However, the Respondent’s February 1994 brief
to the arbitrator in the Davis/Finley grievance undercuts
this argument. This brief, in a discussion about the 1990
memo, stated as follows:
These unit man responsibilities were reiterated in
a meeting with Union officials on February 27, 1992
to discuss Pressman Brad Thatcher’s misplating of
plates on the unit for which Keith Finley was re-
sponsible. It was agreed and understood by the Un-
ion officials that Keith Finley, as the unit man in
charge of his unit, was responsible for the misplating
and would receive discipline accordingly. There-
upon, Finley was issued a written verbal warning for
the misplating.
The Respondent also stated in that brief: “The Com-
pany is neither contractually restricted nor unreasonable
in implementation of its rule holding unit men account-
able for the operation of their units.” 14
The testimony of the Respondent’s witnesses at the
2002 arbitration hearing concerning the discipline im-
posed for the March 31, 2001 mistake on unit 59 shows
that the past practice was to impose discipline only on
the person responsible for the unit where a mistake oc-
curred and that progressive discipline had been followed.

14 Exh. 20.
In this regard, Larry Sommers, the plant superintendent,
testified that there had never been an incident in which
the entire crew was disciplined for a production error and
that he could not recall a pressman ever receiving a sus-
pension for a first mistake on a unit. James Frederick,
production director, also testified that he was not aware
of any time that an entire crew had been disciplined for a
mistake and that Frank Hayden was the first pressman
suspended for a first mistake.
For all of these reasons, we find that the policy the Re-
spondent announced in its 2002 letter was a change from
its progressive discipline policy and from the work rule
set forth in its 1990 memo.
3. The changes made by the Respondent were material,
substantial, and significant
As noted above, a unilateral change in a mandatory
subject of bargaining is unlawful if it is “material, sub-
stantial, and significant.” Flambeau Airmold Corp., su-
pra. “The Board has long held that an employer is not
obligated to bargain over changes so minimal that they
lack such an impact.” W-I Forest Products Co., 304
NLRB 957 (1991) (citing Rust Craft Broadcasting, 225
NLRB 327 (1976)). As discussed above, the Respon-
dent’s 2002 letter changed both the scope of the disci-
pline and the method for determining the level of disci-
pline to be applied: all employees on a shift are now
subject to discipline for an error rather than only the per-
son in charge of the unit where the error occurred, and
the discipline imposed is to be decided on a case-by-case
basis, rather than pursuant to a progressive disciplinary
system. As a result of the changes, an increased number
of unit employees are subject to discipline whenever a
work error occurs, and the Respondent’s choice of disci-
pline is not restricted to the four-step progressive disci-
pline procedure. Thus, we find that those changes had a
material, substantial, and significant impact on the em-
ployees’ terms and conditions of employment.
D. Conclusion
Because the Respondent’s work rules and disciplinary
policies are mandatory subjects of bargaining, and be-
cause the Respondent changed a work rule and a disci-
plinary policy, with a resulting material, substantial, and
significant impact on its pressroom employees’ terms
and conditions of employment, we conclude that the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
TOLEDO BLADE CO. 389
3. The Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally, without notifying and bargaining
with the Union, changing a work rule and disciplinary
policy for its pressroom employees.
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found
that the Respondent has violated Section 8(a)(5) and (1)
of the Act by unilaterally, without notifying and bargain-
ing with the Union, changing a work rule and discipli-
nary policy for its pressroom employees, the Respondent
shall be ordered, upon the request of the Union, to re-
scind the unilateral changes found herein. The Respon-
dent shall also be ordered to notify, and upon request,
bargain with the Union, as the exclusive collective-
bargaining representative of its pressroom employees,
before implementing any changes in wages, hours, or
other terms and conditions of employment of unit em-
ployees.
ORDER
The National Labor Relations Board orders that the
Respondent, The Toledo Blade Company, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Toledo Newspaper and
Printing Graphics Union No. 27N, affiliated with
Graphic Communications International Union, AFL–
CIO, as the duly designated representative of its employ-
ees in the appropriate bargaining unit, by making unilat-
eral changes to its work rules and disciplinary policy.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, rescind the unilateral
changes found herein.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of unit employees, notify
and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the
following bargaining unit:
All pressroom employees, who work in pressrooms op-
erated by the Respondent, and on all printing presses
employed in the pressroom, including but not limited to
gravure, offset and letterpress printing presses and as-
sociated devices, but excluding all office clerical em-
ployees, guards, and supervisors as defined in the Act.
(c) Within 14 days after service by the Region, post at
its facility in Toledo, Ohio, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed its facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 23, 2002.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form proscribed by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with Toledo Newspa-
per and Printing Graphics Union No. 27N, affiliated with
Graphic Communications International Union, AFL–
CIO, as the duly designated representative of our em-
ployees in the unit set forth below, by unilaterally chang-
ing our work rules and disciplinary policy.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD390
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request of the Union, rescind the work
rule and disciplinary policy we unlawfully implemented
for unit employees.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All pressroom employees, who work in pressrooms
operated by us, and on all printing presses employed
in the pressroom, including but not limited to gravure,
offset and letterpress printing presses and associated
devices, but excluding all office clerical employees,
guards, and supervisors as defined in the Act.
THE TOLEDO BLADE COMPANY, INC.