World Publishing Co.

National Labor Relations Board - Board Decisions

Oct 3, 1975

220 N.L.R.B. 1065 (N.L.R.B. 1975)

WORLD PUBLISHING COMPANY 1065
World Publishing Company and Omaha Typographi-
cal Union No. 190. Case 17-CA-5645
October 3, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On March 12, 1975, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief and
cross-exceptions.' Respondent also filed a motion to
reject the Charging Party's exceptions as untimely?
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions,4 and recommendation of the Adminis-
trative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommenda-
tion of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is,
dismissed in its entirety.
i Upon the Administrative Law Judge 's granting of the General Counsel's
motion to amend the complaint made at the hearing , Respondent sought
permission of the Board for an interim appeal . The Board granted Respon-
dent permission to appeal the Administrative Law Judge's ruling . We subse-
quently denied the appeal on its merits . Respondent now requests the Board
to reconsider its ruling . In the absence of a showing of prejudice to Respon-
dent, and in light of the result in this case , we hereby affirm our previous
ruling.
2 Upon the issuance of the Administrative Law Judge's Decision , the time
for filing exceptions and briefs was set for April 4, 1975. The Executive
Secretary's Office , in response to the Charging Party's separate requests,
granted two extensions of time for filing-the first to May 2 and the second
to May 9. On Friday , May 9, the Charging Party confirmed an early morn-
ing telephone call to the Executive Secretary 's Office by sending a mailgram
to the Board requesting a 3-day extension of time to Monday, May 12, to
file exceptions "because of disruption of the community due to a tornado on
Tuesday, May 6, 1975 a contingency not forseen by Charging Party." The
mailgram was not delivered to the Board until after closing hours on May 9
and accordingly was not received by the Board until the morning of Mon-
day, May 12 . On May 12 the Charging Party hand-delivered its exceptions
and bnef to the Board . After acceptance of the Charging Party's exceptions
and bnef , the Executive Secretary 's Office granted a request by Respondent
for an extension of time to file cross-exceptions and an answering brief.
Respondent asserts that the Charging Party's exceptions and brief were
received by it on May 13 with an undated certificate of service , and that
they were not mailed by the Charging Party's attorneys of record in Omaha,
Nebraska , but rather by a Washington , D.C, law firm . Respondent moves
the Board to reject the Charging Party's exceptions and bnef as untimely. In
view of the extenuating circumstances present in this case , we feel it would
effectuate the policies of the Act to liberally apply our filing deadlines. In
our judgment, the Charging Party made a reasoned, good- faith effort to
comply with our requirements . Accordingly, we shall grant the Charging
Party's request for a 3-day filing extension to May 12, accept Charging
Party's exceptions and brief, and deny the Respondent' s motion to strike.
3 In the absence of exceptions thereto, we adopt pro forma the Adminis-
trative Law Judge's dismissal at the hearing of the allegation in the com-
plaint that Respondent violated Sec 8(a)(5), (3), and (1) by failing to pay
accrued vacation pay to strikers.
4 We find it unnecessary to pass upon the validity of the Administrative
Law Judge's interpretation of sec 5(c) of the collective-bargaining agree-
ment since the record otherwise amply supports the result which we reach
herein.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On June 1,
1973, Omaha Typographical Union No. 190, hereinafter
called the Union, filed with the Regional Director for Re-
gion 17 of the National Labor Relations Board, hereinafter
called the Board, a charge alleging that World Publishing
Company, hereinafter called Respondent, violated Section
8(a)(5), (3), (2), and (1) of the National Labor Relations
Act, hereinafter called the Act. On April 30, 1974, the Re-
gional Director, on behalf of the Board's General Counsel,
issued a Complaint and Notice of Hearing alleging that
Respondent by insisting to impasse that certain employees
were not within the appropriate bargaining unit and by
refusing to bargain concerning that issue, by granting $500
bonus payments to certain nonstriking employees during
the course of the Union's strike, and by failing and refusing
to pay accrued vacation benefits to certain striking em-
ployees violated Section 8(a)(5) of the Act; by the failure to
pay accrued vacation benefits, Section 8(a)(3) of the Act;
and by all of that conduct, Section 8(a)(1) of the Act. By its
duly filed answer, Respondent admitted certain allegations
and denied certain allegations, denied the commission of
any unfair labor practices, admitted that on or about May
11 bonuses were paid to six supervisory employees in re-
turn for extra effort and work performed, and, as an affir-
mative defense, alleged that the strike, which the General
Counsel alleged to have been caused by the Respondent's
unfair labor practices, was in fact caused and prolonged by
the unfair labor practices committed by the Union. On the
issues thus joined, the matter came on for hearing before
me on August 22, 1974. All parties were present and repre-
sented by counsel and had an opportunity to call and ex-
amine witnesses and to adduce relevant and material evi-
dence. During the course of the hearing the General
Counsel moved to amend the complaint to allege that Re-
spondent had engaged in a course of bad-faith bargaining
and to amend the allegation with regard the payment of
bonuses to conform with evidence adduced during the
hearing. Upon my granting of the motion to amend, Re-
spondent sought permission of the Board for an interim
appeal which was granted. On the granting of the interim
appeal the hearing was adjourned until the Board had
ruled. The hearing resumed on December 16, 1974, and
220 NLRB No. 161
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was completed on December 17. At the close of the hearing
the parties waived oral argument . All parties have filed
briefs which have been carefully considered. Upon the en-
tire record I in this case and in consideration of the briefs,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It is alleged and admitted that Respondent is a corpora-
tion publishing a newspaper in Omaha, Nebraska ; that in
the course and conduct of its business operations Respon-
dent has an annual gross volume of business exceeding
$200,000 ; and that it publishes nationally syndicated fea-
tures and advertises nationally sold products. It is alleged,
admitted, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11. THE LABOR ORGANIZATION
It is alleged , admitted, and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent publishes the Omaha World Herald, a
newspaper of daily circulation . At the commencement of
negotiations for a new contract in November 1972, Re-
spondent had approximately 900 employees, including ap-
proximately 190 employees in its composing room repre-
sented by the Union .2 The unit, as spelled out in the last
preceding contract, included all composing room employ-
ees and lists classifications in accordance with the claimed
jurisdictions of the Union but without regard to whether
employees in all classifications listed were employed by
Respondent.
The last contract signed between the parties was negoti-
ated , commencing in 1971, and was agreed upon in July
1972, effective for the calendar year 1972. Shortly before
November 1972 each party notified the other of their desire
to negotiate changes in the contract and by November 8
had exchanged initial proposals concerning which on that
date they met.
By the time of commencement of negotiations Respon-
dent had commenced the automation of its composing
room. It was then publishing partly with "hot type" using
linotype machines which were activated by perforated pa-
1 Respondent's motion to correct the transcript in certain particulars,
without objection , is hereby granted.
2 The parties agreed that the Union had probably represented the
Respondent's composing room employees for at least 50 years . No records
apparently exist showing whether the Union has ever been certified by the
Board as the collective-bargaining representative of the composing room
employees but no issue has ever been raised with regard thereto.
per tape punched by unit personnel. Respondent also was
using so-called "cold type," in which the items to be print-
ed are set up in print pasted on a mat and photographed.
During the year 1972 Respondent had considered the em-
ployment of a new device known in the trade as a scanner
or optical character reader and other new equipment for
typesetting and had discussed it during the negotiations for
the 1972 contract . The discussion resulted in a memoran-
dum of agreement which states as follows:
During negotiations for the contract signed August 1,
1972, the following was agreed upon in lieu of changes
in the jurisdiction section of the contract:
The Employer agrees that for the duration of the ex-
isting labor agreements , that should an optical charac-
ter reader, cathode ray terminals or similar scanning-
proofreading equipment be purchased for Composing
Room use or production , said equipment shall be used
on an experimental basis only. If during the life of this
agreement the equipment is used for production pur-
poses , its application shall be negotiated and agreed to
by both parties to the existing contract. Failure to
reach agreement shall not subject the question to any
joint standing committee or arbitration procedure.
In the fall of 1972 Respondent ordered new equipment
including a scanner known as the ECRN. It was delivered
in December and placed in a conference room not thereto-
fore used for production purposes.
In a negotiating session prior to the receipt of the scan-
ner, Respondent's chief negotiator , William Donaldson,
mentioned that it was expected or had been ordered and
stated that initially it would be used for billing for the ad-
vertising department but warned the union negotiators
that, as they knew, it could be used for production purpos-
es and suggested that they consult with their International
concerning the position that they should be prepared to
take.
After the receipt of the scanner, Respondent com-
menced experimenting with its use and prepared to handle
the advertising billing with nonunion employees.
Negotiations between Respondent and the Union con-
tinued. There is no evidence that they were delayed by
either party unduly and proposals and counterproposals
were passed back and forth. On April 1, 1973, the Employ-
er gave the Union a complete offer which it termed its
"best offer" which was countered by the Union on April 4
with a counterproposal which it termed its best offer.
Thereafter on April 13, Respondent gave the Union anoth-
er offer which it deemed its "final offer" and which the
Union took to its membership which rejected it. The Union
came back 2 days later with a counter, final offer which the
Employer rejected.
By this time the prospective use of the scanner was one
of the main points in contention between the parties al-
though by no means the only serious impediment to agree-
ment . Toward the end of April the Union announced its
members would no longer work overtime. Overtime had
until then been worked on a fairly regular basis and Re-
WORLD PUBLISHING COMPANY 1067
spondent contended that it could not put out its paper
without a certain amount of overtime being worked.
On May 4, 1973 , after an abortive negotiating meeting
which ended in the parties agreeing that they were at im-
passe , the union president called two "chapel " meetings of
the employees in the unit during working hours , contrary
to the custom in the plant and the contractual provisions.
At or about 4 : 30 p.m ., Respondent 's president read a state-
ment to the members of the day shift stating that Respon-
dent would not continue with the employees refusing to
work overtime and advising the employees that its lawyers
were of the opinion that they were striking. President An-
derson called upon the employees either to work overtime
or leave the plant and as they left the plant other employ-
ees moved into their job and continued the work necessary
to put out the next edition . The Union has been on strike
ever since . At a negotiating meeting held shortly after the
commencement of the strike, Respondent advised the
Union that the scanner was in operation and that produc-
tion work was being done upon it.
In the late spring of 1974, no meetings having taken
place for about a year, Respondent notified the Union that
it proposed to make a change in one of the benefits of
which the employees in the unit had theretofore been par-
ticipants. The Union countered with a suggestion that ne-
gotiations resume and called upon Respondent to come
forward with a new proposal for an entire contract. The
Union and Respondent each made proposals;
Respondent's proposal this time was far less palatable to
the Union than its "best offer" or its "final offer" had
been . The Union protested vigorously that the Respondent
was proceeding in a negative fashion and declined to con-
tinue the negotiating session . Apparently no further meet-
ings were held up to the time of the hearing.
Commencing with the payroll period ending May 15,
1973, Respondent paid bonuses varying in amounts from
$40 to $1,750 to employees, supervisory employees, and
managerial officials who worked during the strike. The
General Counsel contends that the payment of these bo-
nuses is an unfair labor practice.
Discussion and Conclusions
The Scanner Issue
Although the unit description contained in the 1972 con-
tract did not contain such language, the General Counsel
alleges that the description should appropriately include:
All full time and regular part time employees of the
Respondent engaged in Respondent 's Optical Scanner
Operation, including, but not limited to, copy typists
and tape perforators.
The General Counsel contends that Respondent violated
Section 8(a)(5) by insisting to impasse that employees per-
forming preparation and/or actual optical scanner work
are not within the appropriate bargaining unit and by re-
fusing to bargain from November 8, 1972, to the present.
Respondent argues that it has bargained about the use of
the scanner with the Union to an impasse and that upon
reaching the impasse, the Union having engaged in a
strike, Respondent was free to and did assign the work of
the scanner to other employees.
Prior to the advent of the scanner, the material appear-
ing in Respondent's newspaper was handled in various
ways. Material originating in the newsroom, other than by
tapes from news services, was typed, handwritten, or other-
wise produced in the newsroom, forwarded to the compos-
ing room where, using perforating machines, unit members
produced a tape which, in its turn, was fed into a computer
which set the type and justified it. Proofreading was then
done by unit members and the process went on from there.
Classified advertising without pictures or other display
characteristics were received in the advertising department
sometimes by telephone to advertising salesmen, some-
times by mail, sometimes brought in in the form of typed
or handwritten copy. That which was telephoned in was
typed by the salesman. Sometimes the handwritten copy
was retyped by the salesman, and all the copy was then
sent to the composing room where it followed the same
course as news copy.
Wire service copy came into Respondent's plant on tele-
printers which produced a perforated tape. By contract Re-
spondent was permitted to feed such tape received from
UPI or AP directly into the computer; however other wire
copy was required by the contract between the parties to
be "rekeyboarded" which is to say processed by a unit
member through the perforators for use in the computer.
Display advertising was either received complete from a
customer ready to be pasted up in one of the final pro-
cesses of the composing room procedure or was composed
by members of the unit using both the perforator for writ-
ten portions of the display ad and other equipment for the
addition of the "displays," which is to say pictures, draw-
ings, or decorative material. When such material was re-
ceived in finished form from the advertiser, according to
another provision of the 1972 contract and contracts pre-
ceding'that, the Union agreed that it might be used without
the interposition of unit employees but that thereafter, at a
time when unit employees had an opportunity while not
engaged in production work, they were to set it up as
though it were first produced in the composing room and
make a reproduction of the advertisement as it went out or
as near as possible thereto. This process, which is called
"reproduction" by the Union and "bogus" by the Respon-
dent, was not always promptly done and indeed over 1- 1/2
million lines of reproduction had been accumulated at the
time of the negotiations with which we are here concerned
to be done by the unit members at such time as they had
leisure to do it.
Editorial copy normally arrived at the composing room
in typewritten form and was rekeyboarded on the perforat-
ing machine by a unit member, thereupon following the
same course as other written material.
Prior to the 1972 negotiations when the perforated tape
was fed into the computer, the computer could produce the
copy either through a linotype machine in hot type or a
photocomposition machine as cold type.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The perforating machine known as a TTS is operated by
a keyboard almost identical to a standard typewriter key-
board. Its use has normally been accepted to be within the
jurisdiction of the Union representing the composing room
since it supplanted the keyboard usage of the linotype ma-
chine.
The scanner in its turn largely supplants the TTS. It has
no keyboard. Material to be produced in the newspaper, in
the form of typewritten copy, is fed into the scanner which
reads the copy electronically, feeds it into a specially pro-
grammed computer , which is part of the scanner , which in
its turn produces an unjustified tape similar to or identical
with the tape produced by the TTS machine. This tape is
then run through a computer where it is justified and pro-
ceeds through other steps . It is possible also for the scanner
to be attached directly to the second computer, eliminating
the tape from the scanner . The typewritten sheet then is fed
directly by electronic impulses into the computer which
produces the photocomposition as its end result. The rec-
ord does not reveal to what extent the intermediate tapes
have been eliminated by Respondent's operation since the
commencement of the strike. The testimony produced by
Respondent indicates that the scanner is used not only for
the production of the newspaper but for billing purposes
and it may be used for other purposes. Accordingly, it
would seem probable that the scanner is still producing
tape which is then fed into the second computer.
The typed material to be fed into the scanner for opti-
mum efficiency must be typed on an IBM Selectric type-
writer using a specified type face , a one time carbon ribbon
to insure uniform blackness and must be done on clean
white sulphite bond paper. Changes or corrections can be
done with black felt tip pens which can be read by the
scanner. Interlineations can be typed on the original copy
but must be delineated with a black felt tip pen. Finally,
the copy must be "coded" before it is fed into the scanner.
Such coding instructs the final computer with regard to
type faces, capitals or punctuation marks. Such coding is
done by combinations of letters by the typewriter. Similar
coding was done on TTS prepared tape.
Using the scanner, if the advertising department, the edi-
torial department and the news department all submit their
product in the form of typewritten pages suitable for inser-
tion into the scanner , nothing remains to be done other
than the necessary coding and the physical insertion of the
typewritten sheet into the scanner. Further, with minimal
instructions the advertising agents, news gatherers , and ed-
itorial staff can be trained to insert the codes so that noth-
ing remains for the composing room employees of what
formerly had been a large part of their operation, i.e., key-
boarding or the typing of all printed matter on the key-
boards, first of the linotype, then of the TTS, and now of
the IBM Selectric typewriter.
In the meeting of November 29, 1972, the sixth meeting
between the Union and the Respondent in their attempt to
negotiate a contract, the union negotiators stated that they
were going to Colorado to check out some of the issues in
negotiation with the representatives of the International.
As the Union's spokesman said "I intend to find out just
how much or how far some of these things can go." The
parties agreed not to set an agenda for the next meeting
until after they returned from Colorado. Respondent's ne-
gotiator, Donaldson, suggested that they should get a posi-
tion on scanners also, that one was on the way and Re-
spondent initially planned to scan billing information but
that there was no secret that it would do more. The
Union's negotiator assured Donaldson that that was at the
top of their list.
The next meeting took place on December 6, 1972. At
this meeting Donaldson asked the Union's negotiators if
the ITU had formulated a policy on a scanner. He was
answered that the Union was going into arbitration on it
and that the Union claimed all input that goes into the
scanner. Donaldson said that the Respondent took the op-
posite view and pointed out that one was being installed to
use immediately for billing, for classified advertising, and
that there was a lot involved in getting it going but that
they could see a lot of uses for it. The Union's chairman
answered that the Union felt that the input language in the
former contract was sufficiently strong to cover the scan-
ner.
The first definitive negotiating with regard to the scan-
ner took place at the meeting of December 20. The union
negotiators had reported on their negotiations to the union
membership shortly before this meeting and had come
away from the union meeting with the sense that the unit
members were upset at the fact that the Respondent was
training girls in another building who they believed were to
operate the scanner. In the full scale discussion that fol-
lowed, the union's negotiators took the position that all
typed sheets that were to be fed into the scanner should be
"keyboarded" by unit members. Donaldson on the other
hand proposed that the typing be done in the departments
in which the material originated, including coding and re-
keyboarding of typed materials received from other
sources. The Union argued that at least when material had
to be retyped it should be done by unit members, but Don-
aldson disagreed even to the point of stating that when
corrections to advertisements were sent in by the customers
they were to be made in the advertising department rather
than the composing room.
Donaldson pointed out that at the time the scanner was
being used only for billing but that the next application
might be in the newsroom and "if it works there would be
a change in the types of work done in composing." The
Union complained that Donaldson was in effect saying
Respondent just didn't know how long it would take to get
rid of the unit, and the Union asked "what is left?" Don-
aldson answered "paste up and page make-up." When the
Union asked how many people would be left in the unit,
Donaldson answered "Your work is being eliminated in
the use of a scanner." The parties then admitted that they
were at an impasse and the Union suggested delaying until
an International representative arrived to lead the Union
in the negotiations. Donaldson finished the meeting re-
questing that the Union let him know when the Interna-
tional representative could be there and stating his availa-
bility at any time. They agreed in any event to meet on
December 29.
When the parties met on December 29, 1972, the Inter-
WORLD PUBLISHING COMPANY 1069
national representative had not arrived and the Union's
chairman stated that they were not prepared to make any
moves and further stated that the Union felt that the big-
gest issues to be resolved were reproduction and jurisdic-
tion.
International Representative William Wilson arrived in
January and from that point forward he was a spokesman
for the Union . He immediately attempted to ascertain from
Donaldson what Respondent's plans were for the use of
the scanner . On January 29, on a discussion of the use of
the scanner , Donaldson indicated that firm decisions had
not been made but that Respondent expected that the typ-
ing, scanner-ready, would be done in the department from
which the materials originated. Wilson asked him to pre-
pare a proposal regarding the scope of the use of the equip-
ment and its effect on the bargaining unit and Donaldson
promised to do so.
On February 1, Wilson received the memorandum, the
parties had a caucus, and Wilson came back stating that he
admired Respondent's courage but couldn 't believe that
the memorandum contained Respondent 's ultimate posi-
tion . Donaldson said that it was negotiable . The memoran-
dum provided that advertising department employees
would prepare the copy scanner-ready outside the compos-
ing room and would operate the scanner, a supervisory
employee would do the maintenance , news copy would be
prepared outside the composing room and that scanner-
produced material would serve as input for typesetting
equipment . The memorandum ended in the statement
"The above represents the present plans and in no way
shall this be interpreted to limit the Employer's right to
make changes, or use such electronic equipment in differ-
ent ways." By the end of the February 1 meeting, Respon-
dent had proposed a severance pay and attrition arrange-
ment for employees displaced by the new technology, and
had fairly clearly signaled its willingness to consider plac-
ing the scanner in the composing room to be operated and
maintained by unit employees , but Respondent hung fast
on the typing of scanner-ready copy. Donaldson also pro-
posed that unit employees do the mark-up-place code
marks on the scanner-ready copy which instruct the com-
puter as to type faces and make-up. The negotiation by this
time had paired the consideration of the use of the scanner
with the proposals regarding attrition and severance pay
since it had become obvious that the use of the scanner
would substantially reduce the amount of composing room
work and the Union had stated that agreement on the use
of the scanner would necessarily be contingent upon agree-
ment on attrition and severance pay. In this discussion Re-
spondent suggested the elimination of the backlog of re-
production and of the accumulation of further
reproduction on the theory that reproduction had been ne-
gotiated and existed as a form of job security which would
not be necessary if job security were otherwise guaranteed.
When the Employer gave its "best offer" on March 21, it
included a memorandum regarding the use of the scanner
which provided that advertising copy be prepared outside
the composing room but mark-up and all display advertis-
ing would he done by the composing room; that compos-
ing room employees would operate the scanner, which
would be located in the composing room and they would
do that portion of the maintenance not provided by the
manufacturer; that news copy would be prepared scanner-
ready outside the composing room; that the Employer re-
serve the right to install typewriters in the composing
room; and that the agreement should not be interpreted to
limit the Employer's right to make changes in the use of
electronic equipment in different ways in the composing
room, including the right to install equipment in other de-
partments to be used for other than composing room work.
The "best offer" was rejected at a union meeting on April
1, 1973.
The "final" offer was submitted on April 13 by Don-
aldson who referred to it as "a full, firm and final offer."
The parties went through the document and discussed it
and the Union said the offer was unacceptable but it would
be submitted to the memhership. The only serious issue of
credibility in this proceeding resulted from this meeting.
According to all of the union witnesses, Respondent' s "last
offer" did not include the scanner memorandum that had
been attached to the "best" offer. According to all of
Respondent's witnesses, the scanner memorandum was at-
tached to the "last offer." According to the Union's wit-
nesses the only mention made in the discussion concerning
the absence of a scanner offer was that, as the discussion
was breaking up, one of the union committee stated resent-
fully that the last offer did not even contain the scanner
memorandum to which Donaldson answered "take it or
leave it." According to all of the company witnesses, cor-
roborated by Respondent's minutes of the meeting, no
mention was made of the scanner memorandum through-
out the meeting. I find that the scanner memorandum was
meant to be a part of the last offer and that it may have
been inadvertently left off the copies handed to the Union.
I find further that the union negotiators did not consider
that the memorandum was withdrawn. I predicate this
finding,on the fact that, under the situation then existing,
the primary issues between the parties were the use of the
scanner and the attrition and severance proposals of Re-
spondent. (Perhaps an issue of almost equal importance to
the Union was the Respondent's proposal that the contract
should no longer require the foreman to be a member of
the Union and the addition of a no-strike clause. But from
the tenor of negotiations to that joint I believe they had no
significant impact on the Union's rejection of the contract.)
Yet, the Union's negotiators made no significant mention
of its absence although they had taken a caucus to read or
consider the final offer and discuss it. Nevertheless neither
at that meeting nor at the two meetings that followed the
Union's rejection of the Company's final offer was any
mention made by the Union's chief spokesman that the
Company had no scanner offer outstanding. Under all cir-
cumstances, it is unbelievable that the Union could have
made no mention if it had understood that Respondent
proposed a contract with no mention of the scanner which
had become the central part of the negotiations. Whether
the union officers who reported to the membership prior to
the vote of the membership on acceptance of the contract
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated to the membership that no scanner language was
contained in the final proposal on which they were voting
is immaterial.
I conclude that the General Counsel must fail in its con-
tention that Respondent violated Section 8(a)(5) by bar-
gaining to an impasse on the exclusion of employees per-
forming perforation and/or actual optical scanner work
from the collective -bargaining unit.
The scanner issue is a textbook example of the effect of
the elimination of manpower by machinepower. Prior to
the use of the scanner all copy had to be prepared in one
form or another in the departments responsible therefore,
news, classified advertising, or editorial. The copy then had
to be rekeyboarded by composing room personnel to pro-
duce perforated tape which activated the computer which
set the type. In essence, all copy thus had to be written
twice, once by the producer thereof and once by the opera-
tor of the TTS or other similar equipment.
Using the scanner, on the other hand , makes it possible
that copy could be written only once if that writing is done
under the circumstances that the product is "scanner-
ready." It is no more difficult for a secretary or an ad
writer to type clean scanner-ready copy than for a compos-
ing room employee. Respondent's thrust was to eliminate
the double writing of this material . Its "best offer" on the
use of the scanner provided that the coding was to be in-
serted by unit personnel. The Union's "best offer" on the
other hand would have required retyping every word that
went into the newspaper, a duplication of all copy.
In terms of the unit as it had been established the pecu-
liar function of the scanner is to translate the raw copy
from the writing in which it arrived in the composing room
to a perforated tape. This is precisely the function thereto-
fore accomplished by the unit personnel operating TTS
perforators and this is the function which the machine
eliminates. Although the Union could be said to have in-
sisted that the girls who take ads , the secretaries in the
editorial section, and the typists in the news department
should be included in the unit, the Union 's real thrust was
that the work being done by the scanner should continue to
be done preliminarily by retyping by unit members. Much
has been made in argument by the Union and by the Gen-
eral Counsel that the Union has jurisdiction over the input
to the computer but this language historically referred to
input to the computer which sets type. That the scanner
has as part of its mechanism a computer to enable it to
translate optical images into coded tape was not within the
contemplation of the parties when they negotiated Section
5(c) of the contract but in any event, the preparation of the
input to the computer was performed by the scanner not
by the employees who typed that which the scanner scans.
I recommend that the complaint be dismissed insofar as it
alleges a violation based on the bargaining concerning ju-
risdiction.
The complaint , as amended at the trial, alleges that Re-
spondent failed and refused to bargain in good faith by its
entire course of conduct during the 1972-74 negotiations.
The General Counsel argues that Respondent has shown
that it engaged in the negotiations without the intent or
expectation of arriving at a contract with the Union and
with the intent of causing the Union to engage in a strike
and thus ridding itself of the Union and its members. The
General Counsel contends that Respondent's posture in
this regard is demonstrated by various factors including
Respondent's failure at any time to make a contract offer
that a self-respecting union could possibly accept; by its
failure to bargain in good faith concerning the manning of
the scanner and the jurisdiction of the Union; by its inter-
ference with the employees in the unit; by publicizing to
members of the unit and to the world at large a false pre-
sentation of its bargaining position ; by its commencing,
even before the parties started negotiations , the training of
employees to take over the composing room work if the
Union were to go on strike; and finally by its last offer
delivered 14 months after the commencement of the strike
which so reduced the offers it had theretofore made that
the Union could not possibly have accepted it.
At the first negotiating session, the Union's spokesman
complained bitterly about the Employer's first offer and
made a serious issue of almost everything in it . This offer
provided for a 3-year contract rather than a 1-year con-
tract; it dropped the designation of employees as appren-
tices and journeymen and referred to them simply as em-
ployees, it omitted the proofreading function from the
composing room, it provided that all tape supplied by any
news service, syndicate or feature, might be used by the
employer without composing room work rather than mere-
ly the AP and UPI tape as in the past. It deleted all refer-
ence to the ITU laws which had theretofore been adopted
to govern relations between the employer and the Union
on conditions not specifically enumerated in the contract
and deleted a provision that the ITU laws should not be
subject to arbitration. It eliminated all the backlog of re-
production and the obligation to reproduce copy and pro-
vided broadly that nothing in the contract shall require the
employer to do work which is not required for publication
or that the Employer deems unnecessary. It eliminated a
limitation on the number of split shifts that could be as-
signed in the composing room , raised the workweek from
37-1/2 to 40 hours a week, removed the requirement that
the foreman should be a member of the Union, and provid-
ed for initial screening of applicants by the personnel de-
partment , eliminating the custom in ITU shops of hiring
from a "slip board" on which any traveling union member
could insert his name and be put to work by the composing
room foreman, provided that the foreman should be the
sole judge of the employee's competency without review by
the Joint Standing Committee. It eliminated the provision
requiring that laid-off employees must be recalled by prior-
ity. It eliminated the struck work clause under which Re-
spondent had agreed not to require employees to execute
work received from another employee having labor diffi-
culties with the Union and it provided that the two chapel
system under which the Union had separate chapels for
day and night shifts, which caused problems in scheduling
work in the evening . It also provided for a no-strike clause
theretofore not to be found in the contract and provided
for a zipper clause.
WORLD PUBLISHING COMPANY
The negotiations commenced on a grim note with the
Union's chairman suggesting that they skip the pleasantries
and stating that he considered the Employer the enemy
while Respondent , when the Union expressed anger at the
initial proposal , stated "this is the year."
It is not difficult to perceive Respondent 's position at the
opening of negotiations . It was aware of the imminent re-
ceipt of the scanner , although for tactical reasons it made
no mention of the scanner in its proposal. The introduction
of the scanner in the composing room necessarily meant
that there would be a substantially curtailed need for unit
employees. Respondent was aware that during the course
of negotiations the scanner would arrive and that pursuant
to the memorandum of understanding in the 1972 contract
it would have to bargain with the Union about its use so
that this year a contract would be very difficult to negoti-
ate. In the negotiations for the 1972 contract the Union
had threatened to strike several times , although historically
this had not been a union that was prone to strike . Accord-
ingly Respondent had cause to believe that in the instant
negotiations it stood a greater chance of facing strike ac-
tion than it had in the past . To this end it commenced
training girls in another building to operate the TTS ma-
chines with which its paper was then being produced.
At the same time it is no secret and I take notice that
other composing room units around the country were elim-
inating the costly custom of reproduction and in various
ways eliminating the backlog of reproduction that had
grown in many newspaper establishments . The economics
of modem newspaper publication have of course been
greatly altered by the introduction of electronic devices
which have eliminated need for the expertise of the jour-
neyman employee in the composing room. Respondent, re-
cognizing that it had an almost insuperable bargaining task
ahead of it if it were to reap the financial benefits of the
introduction of new machinery, determined , as Donaldson
stated , "this is the year."
The Union on the other hand had made a proposal pro-
viding that all local advertisements should be made up by
unit employees , that all training on new process equipment
should be based on priority, and that no employee with
priority should be laid off because of reduction of work
caused by any new processes , and updating the ITU gener-
al laws which were to be part of the contract. The proposal
also provided that dischargees were to be continued at
work until disputes concerning their status were settled by
the joint standing committee; that if the Employer made
changes and the Union grieved that the changes were to be
rescinded until the joint standing committee ruled on the
grievance ; for a cost-of-living allowance and a maximum
wage raise within the limitations of the then existing ceil-
ing; and for an increase in vacation benefits . The proposal
added an additional paid holiday ; provided that the night-
shift holiday shall be the eve of the holiday; lowered the
workweek to 35 hours rather than 37-1 /2; raised overtime
from time and a half to double time and the 7th day of
work in a week from double time to 2-1/2 times straight
time ; provided that scheduled changes for apprentices
should be made only for training purposes and done only
1071
by the joint apprentice committee; provided for the estab-
lishment of a first-aid station with a registered nurse on
duty at all times; and provided a clothing and tool allow-
ance for machinists . The Union's proposal also provided
that the foreman would have to give 72 hours' notice of a
change in starting time rather than 18 as in the past and
provided that assistant chapel chairman as well as chapel
chairman could not be disciplined for acts taken in perfor-
mance of their duties as representatives of the Union. The
Union wanted to add a picket line clause and to eliminate
a provision that chapel meetings were to be held outside
working hours, they also wanted improvement in paid-for
days of bereavement and paid-for election duty compensa-
tion to be the same as that made for jury duty. In addition
the Union wanted a complete health and welfare plan as
distinguished from the Company's group hospitalization
plan then in existence and wanted the adoption of the ITU
pension plan as well as a continuation of the Employer's
present pension plan.
In the early part of the negotiations the Employer made
no economic proposal but when it finally made one it was
substantially the same as the Union's. It must be recalled
that at this time there was a limitation imposed by the
President and both proposals provided for the full amount
that could be granted.
The General Counsel relies on certain language in Board
cases, quoting language orginally uttered in a circuit court
decision, that bad faith can be inferred from an offer that
is so poor that no self-respecting union could accept it.
This is an interesting and sometimes helpful observation
but by no means has risen to the status of a doctrine in
Board law. The fact is the law requires that the Employer
shall bargain in good faith with an intention to reach a
contract and history has shown that the ultimate terms of
the contract normally depend on the "muscle," which is to
say the economic power, of one party over the other. Dur-
ing the years that newspapers could not publish without
the expertise of the composing room employees repre-
sented by the Charging Party, the Charging Party was able
to get contracts that were extremely favorable to it; con-
tracts that, like the 1972 contract, removed from the em-
ployer any right to determine who its employees should be
and contracts that provided for the reproduction of materi-
al which came into the employer's hand ready for pub-
lishing. But there is no law that says that when economic
power shifts from the Union to the employer that the em-
ployer cannot retrieve some of the economic benefits that
it lost in the prior contracts. That is the situation here.
With the introduction of the scanner, the Employer was for
the first time physically able to publish a newspaper with-
out the'expert services of the ITU members, particularly in
tanning its linotype operation, and other hot metal pro-
cesses . With the growing automation in the newspaper in-
dustry, Respondent had achieved no-strike clauses in its
contracts with other unions which enabled it to limit the
industrial battlefield to the members of the ITU.
Although Respondent had achieved considerable eco-
nomic power, nevertheless I find it bargained in good faith
with the Union. It did not, as in the case of the Columbia
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tribune cited by the General Counsel ,3 simply tell the
Union that the situation was changed and here was its pro-
posal, take it or leave it. It bargained hard and over a
lengthy period of time , but in an effort to secure agreement
it dropped many of its demands, retaining by the date of its
last offer only the most basic changes it wanted , including,
in addition to preparation of input for the scanner , the use
of all TTS tapes supplied by news services , syndicates and
features, the elimination of reproduction , the elimination
of the requirement that the foreman must be a member of
the Union, and the addition of a no-strike clause . The give
and take of bargaining had resulted in agreements includ-
ing the adoption of the ITU laws and a new paragraph
providing that situation holders who were working on Jan-
uary 1, 1973, could not be discharged to reduce the force
because of the introduction of new machinery or produc-
tion devices , but limiting such guarantee to the normal re-
tirement age of 65 years and the continuation of the con-
tractual relationship between the Company and the Union.
I believe and find that Respondent showed throughout the
course of negotiations its willingness to consider the wel-
fare of the unit members and to negotiate in good faith for
provisions of the contract which it wanted to excise or
change. Accordingly, I find that when the strike began it
was an economic strike not caused by any unfair labor
practices of Respondent.
However, the General Counsel argues that the July 1974
offer of the Respondent clearly reveals its intention to get
rid of the Union. If the situation had stayed the same
throughout the strike it could well be said that the General
Counsel is right. The offer of 1974 was, from the Union's
standpoint, substantially worse than Respondent 's final of-
fer immediately before the strike. But the situation did not
stay the same . Respondent's witnesses testified that it
would not have had the scanner in complete operation un-
til mid-1975 by the timetable it was prepared to follow.
Due to the strike however , Respondent had immediately
begun to phase out its hot metal operations , those requiring
greater expertise , and pushed the use of the scanner so that
it was in full use by November 1974 and the hot metal
operations had ceased entirely. The dire forebodings of the
union negotiators prior to the strike that typists could not
do a satisfactory job had been disproven and Respondent
has been successfully publishing its newspaper using un-
trained or relatively untrained help. The insistence
throughout negotiations by the Union that all journeymen
be trained in the various activities had given way to the use
by. Respondent of specialists to do the various jobs, per-
sons trained to do but one job and left on that job. In short
the economic background against which Respondent was
negotiating had substantially changed during the period of
the strike and it had a right to capitalize on the fact by
negotiation for the conditions under which it had found it
could successfully operate . I reject the General Counsel's
argument and find that Respondent at all times negotiated
with the intention of reaching a contract if it could, al-
7 Columbia Tribune Publishing Company, 201 NLRB 538 (1973).
though it surely engaged in hard bargaining in every sense
of the word. Respondent was willing to take a strike to
achieve its primary purpose of operating the composing
room according to its concepts of efficiency and it is no
violation of law for it to capitalize on its ability to restruc-
ture the activities in the composing room to more economi-
cal standards. I shall recommend that the complaint be
dismissed insofar as the allegation of bad-faith bargaining
is contained therein.
The Bonuses
The General Counsel contends that Respondent lacked
business justification for giving so many bonuses in such
sizable sums and over such an extended period of time,
especially in light of the fact that previous "emergencies"
requiring overtime did not give rise to bonuses when unit
personnel were in the composing room . General Counsel
argues that the bonuses interfered with the nonunit em-
ployees' Section 7 rights to honor the picket line and im-
peded the strikers' future option of going on strike. The
record is clear however , that bonuses were not paid to
rank-and-file employees who replaced the strikers . Bonuses
were paid to composing room supervisors and to employ-
ees who shifted from other jobs and worked large portions
of overtime with great diligence to get out the paper during
the initial months of the strike. A review of the
Respondent 's records of bonus payments reveals that large
amounts of bonuses were paid during the first weeks of the
strike . No promises were made to pay bonuses and they
came as a complete surprise to the employees who received
them . The large bonuses that were paid were paid to super-
visory and managerial personnel . Furthermore, there is no
evidence that the distribution of bonuses was brought to
the attention of the strikers , at least during the period dur-
ing which they were paid , and it appears that it was not
until the midpoint of the trial that the Union was even
aware that bonuses had been paid other than one time at
the beginning of the strike . Under the circumstances, it is
hard to see how the bonuses could have operated to demo-
ralize the striking employees. As far as the nonunit employ-
ees' Section 7 rights to honor the picket line was con-
cerned, bonuses were not paid until they had refused to
honor the picket line and had worked exceptionally hard to
keep the newspaper publishing. I find the cases cited by the
General Counsel irrelevant to this issue . They deal with
bonuses granted to unit personnel who crossed the picket
line or with promising benefits to strikers to break their
own picket lines . Neither situation exists here . The Union
would have me find a violation predicated on the payment
of expenses paid to employees who came from other cities
to work in the composing room . The record reveals that I
warned the parties throughout the hearing that I would
find no violations other than those alleged in the com-
plaint . The General Counsel does not contend that pay-
ments of the expenses of the strikebreakers was a violation.
Most of those to whom expenses were paid were not em-
ployees as such but were borrowed from other employers
and returned to the employment of other employers. They
WORLD PUBLISHING COMPANY
never became replacements as such. Those who became
replacements were paid expenses only for the period of
time from their arrival until they were able to find housing
in Omaha . I reject the Union 's contention in this regard.
I have found that Respondent committed none of the
unfair labor practices alleged in the complaint and accord-
1073
ingly I recommend that the complaint be dismissed in its
entirety.4 -
4In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.