Kingsport Publishing Corp.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kingsport Publishing Corporation and Kingsport Typographical Union 940. Case 10-CA-6404. June 21, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On February 1, 1967, Trial Examiner John F. Funke issued his Decision in this 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 and a supporting brief' and the Charging Party filed an answering brief. 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 exceptions and briefs, and the entire record in the 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, Kingsport Publishing Corporation, Kingsport, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' As the record, exceptions, and briefs in our opinion adequately present the issues and the positions of the parties, Respondent's request for oral argument is hereby denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed December 13, 1965, and an amended charge filed September 26, 1966, by Kingsport Typographical Union 940, herein the Union, against Kingsport Publishing Corporation, herein Kingsport or the Respondent, the General Counsel issued a complaint alleging Respondent violated Section 8(a)(5) and (1) of the Act by refusing to ' General Counsel's Exhibit 2 is a stipulation of the parties which contains 42 paragraphs and 29 documentary appendixes submit the discharge of an employee to the Joint Standing Committee pursuant to the grievance procedure of a recently expired contract. Respondent's answer admits the refusal to submit the discharge to the Joint Standing Committee but denies the commission of unfair labor practices. This proceeding, with all parties represented, was heard before me, at Kingsport , Tennessee , on November 22, 1966. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the parties by January 6. Upon the entire record in this vase and from my observation of the witness while testifying, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with its principal place of business at Kingsport, Tennessee, where it is engaged in publishing three newspapers. Respondent's gross volume of business, during a representative 12- month period, exceeded $200,000 and Respondent held membership in or subscribed to interstate news services, published nationally syndicated features, and advertised nationally sold products. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The facts in this case are, like the annals of the poor, short and simple. The Respondent and the Union had a collective-bargaining agreement which extended from November 1, 1962, through October 31, 1964. (There had been collective-bargaining agreements between the Union and Respondent's predecessors for about 18 years prior thereto.) On August 12, 1964, the Union notified Respondent that "on October 31 any agreement-written, oral or implied-or any conditions of employment or understanding now in effect between the Kingsport Publishing Company and Kingsport Typographical Union 940 will terminate." (Appendix 2, G. C. Exh. 2.)' The letter included an offer to meet to negotiate a new contract. The first meeting was held September 24, 1964, and at the time of the hearing some 34 meetings had been held and were continuing. The contract which expired on October 31 contained the following clause under the provision "Joint Standing Committee": Section 9. An employee who believes he has been illegally or unjustly discharged shall have the right of appeal to the Chapel. The Chapel shall decide by majority vote, secret ballot whether the discharge was justified. Either the discharged employee or the foreman may appeal to the Local Union against the decision of the Chapel. If the Chapel orders reinstatement and the foreman fails or refuses to Needless to say the preparation of such a stipulation greatly expedited the hearing 165 NLRB No. 116 KINGSPORT PUBLISHING CORPORATION 695 reinstate, the matter shall at once be referred to the president of the Local Union and a representative of the office in which the discharge occurred, who shall endeavor to settle the dispute. If a settlement is not reached, appeal may be made to the Local Union. If the Local Union orders reinstatement, its decision must be complied with pending settlement of the appeal by the Joint Standing Committee. Either the foreman or the discharged employee may appeal to the Joint Standing Committee against the Local Union's decision. On June 22, 1965, Respondent discharged its composing room employee, Ivil L. Lytz, for reasons not alleged to be discriminatory within the Act. On June 25 Chapel Chairman Don Lane made an oral request on the part of the Chapel to composing room Foreman Vernon'O'Quinn to reinstate Lytz. O'Quinn refused to reinstate Lytz. Thereafter, on July 12, Clarence E. Samples, secretary of the Union, wrote Respondent informing it that the Union had voted to reinstate Lytz and demanding his reinstatement pending appeal to the Joint Standing Committee. (Appendix 20, G.C. Exh. 2.) A similar letter was sent Respondent by President McKee and Secretary Samples on July 12. (Appendix 21, G.C. Exh. 2.) On July 26 Respondent replied through its General Manager E. G. Heiberger, denying the request to reinstate Lytz on the ground that the Union had terminated the contract, quoting the Union's letter of August 12, 1964. (Appendix 22, G.C. Exh. 2.) It is relevant to note the progress and status of negotiations both prior and subsequent to this date and the position of the parties with respect to the continuance of the terms of the recently expired contract. Robert S. McMichen, International representative for the International Typographical Union, testified that at a meeting held either October 20 or 21, 1964, E. G. Hunter, attorney for Respondent, advised him that he (Hunter) would be unavailable for any meetings until after the current contract expired on October 31, and asked him what the Union's position would be after expiration. McMichen replied that the Union's position, historically and traditionally, would be to continue working under the terms and conditions of the contract until a new agreement was reached. Hunter, according to McMichen, asked that no changes be made.2 Heiberger testified that on May 6, 1965, Respondent made a "final and best offer" to the Union and that McMichen would take it back to the Union's membership but that he never received any report of the results. At a meeting held on July 27 the "final and best offer" was again submitted but again no report was received after McMichen said he would take it back. On August 16 Respondent wrote the Union (Resp. Exh. 1) referring to the fact that it had received no response to its final offer and stating that it would initiate certain unilateral changes in working conditions and offering to discuss these changes. In September Respondent learned the membership had rejected the final offer. On May 4, 1965, agreement was reached on the terminology of sections 6 and 9 of a new proposed article IV entitled "Joint Standing Committee." (See paragraph 23 and appendix 15, G.C. Exh. 2. ) Following the discharge of Lytz, the Union , according to McMichen , offered to refer the discharge of Lytz to the Joint Standing Committee under the terms of either the expired contract or the terms of the proposed contract . Respondent continued to refuse on the ground that the expired contract was not binding and that it would not agree to any terms of the proposed contract until it was executed as a complete agreement . Respondent was willing to discuss the discharge of Lytz but not pursuant to any contractual grievance procedure . It was this impasse which led to the filing of the charge herein 3 B. Conclusions As stated in the brief of the Charging Party, the basic issues of the case are: (1) Do the provisions of a grievance procedure as set forth in a collective- bargaining agreement cease to exist, or do they survive, upon expiration of that collective- bargaining agreement? (2) Does Respondent's refusal to process the grievance of Ivil Litz pursuant to the provisions of the grievance procedure as set forth in the expired collective-bargaining agreement violate Section 8(a)(5) of the Act? Before reaching the basic issues I believe the contention of the Respondent that the Union, by its letter of August 12, 1964, terminating the contract, ended all obligation on the part of Respondent to continue in effect any of the terms of the contract and was in fact a waiver of its rights under the contract. I do not agree. While the letter was "clear and unambiguous," it was no more than required by Section 8(d) of the Act. Its purpose was to serve notice that negotiations leading to a new contract were requested, a request Respondent, absent a good-faith doubt as to the Union's continuing majority status, was obligated to grant. To hold otherwise would confer on every employer served with the notice of termination required by the Act the right unilaterally to change all contract terms upon the expiration of the contract and before impasse had been reached. It cannot be assumed that it was the intent of the Congress to create such chaos in bargaining relations. Reaching the basic issues as set forth above, and I believe the answer to the second will depend on the answer to the first, I find the controlling case to be Bethlehem Steel Company (Shipbuilding Division), 136 NLRB 1500.4 In that case the Board held that union security, checkoff, preferential seniority, and a grievance procedure are matters related to "wages, hours and other terms and conditions of employment" within the meaning of the Act and, therefore, are mandatory subjects of collective bargaining. (Citing N.L.R.B. v. The Proof Company, 242 F.2d 560 (C.A. 7); N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131 (C.A. 1); N.L.R.B. v. Ross Gear & Tool Company, 158 F.2d 607 (C.A. 7); United States Gypsum Company, 94 NLRB 112.) It then held that since the union-security clause contained in the expired contract could not be made a condition of 2 Hunter did not appear as a witness at the hearing but in a footnote to paragraph 8 of the stipulation it was agreed that Hunter would testify that the Respondent was agreeable to the termination of the contract and did not contemplate any change in working conditions , not because of any continuing contractual obligation after October 31 but because "this was a matter of observing the requirements of the National Labor Relations Act as applied by the National Labor Relations Board." 3 General Counsel's Exhibit 2 and its appendixes set forth in full the history of negotiations, but I find the issue narrowly confined and see no necessity for complete recital 4 Remanded on other grounds 320 F 2d 615 (C A. 3), reconsidered and affd on point 147 NLRB 977 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment except under a contract which conformed to the proviso of Section 8(a)(3) and the checkoff clause implemented the union-security clause, Respondent lawfully discontinued these provisions . As to the unilateral changes made by the Respondent after the expiration date respecting the grievance procedure and the superseniority clause a different conclusion was reached . The Board stated , 136 NLRB at 1503: As of August 1 , 1959, the Respondent , acting unilaterally, abandoned this grievance machinery and substituted a new procedure therefor . We find that this unilateral action taken with respect to "wages, hours, and other terms and conditions of employment" was in derogation of the Union's representative status and a violation of Section 8(a)(5). The Board also held that by unilaterally abrogating the seniority rights of employees acquired under the former contract Respondent also violated Section 8(a)(5) of the Acts Respondent has attempted to distinguish this case from Bethlehem Steel Company on the ground that here Respondent did not impose a new grievance procedure upon its employees but merely maintained that , without a contract , no grievance procedure was in existence. I find this a distinction without a difference . It was equally a unilateral change in the "wages , hours, and other terms and conditions of employment" as would be the application of the terms of the tentative agreements I have considered the cases cited in Respondent 's brief with some care . As to those cases which refer to the arbitration clause the Board , in discussing mandatory subjects of collective bargaining , did not include arbitration among them . It might be noted that the Trial Examiner in the original Bethlehem Steel Company case (133 NLRB 1347) stated , at 1361 : "What is important is that as with checkoff, compulsory membership or arbitration, superseniority for union officials cannot truly be said to be a condition of employment ." In reviewing its original decision in 136 NLRB 1500, the Board , at 1502, stated, "In accord with Board and court decisions , we find that union security, checkoff, preferential seniority , and a grievance procedure are matters related to `wages, hours, and other terms and conditions of employment ' within the meaning of Section 8(d) of the Act and , therefore , are mandatory subjects for collective bargaining." Whether inadvertently or not arbitration was not included. It would , of course, seem totally inconsistent to hold that a grievance procedure would survive a contract but the arbitration clause, the final and binding part of that procedure, would not. But the court in Proctor & Gamble Independent Union v. The Proctor & Gamble Manufacturing Company, 312 F.2d 181 (C.A. 2), reversing 202 F.Supp. 518 (E.D.N.Y.), found that the right to proceed to arbitration is not a right incident to the employer-employee relationship since only the parties to the contract could call for arbitration. The contract on the other hand provided that grievances could be presented by "any employee or group of employees." It is unnecessary to belabor the point since it is not germane to the present proceeding. 5 The Celotex Corporation, 146 NLRB 48, affd. as modified 364 F2d552(CA 5) 6 See Bethlehem Steel, 136 NLRB 1500, as to the discontinuance of the supersenwrity clause. ' Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772, 773 8 1 find no merit in Respondent's contention that an impasse Conceding that some of the cases cited in Respondent's brief would lead to a different conclusion than that reached here , I find myself bound by the Board 's Decision in Bethlehem Steel7 and accordingly find the Respondent in violation of Section 8(a)(5) of the Act .8 IV. THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent by failing, upon request, to reinstate Ivil Lee Lytz and to refer his grievance to the Joint Standing Committee pursuant to a contract between Respondent and the Union which expired October 31, 1964, violated Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent reinstate Lytz to his former position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of such failure to reinstate9 and refer his grievance to the Joint Standing Committee. Backpay shall be computed in accordance with the formula set forth by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By refusing to reinstate Ivil Lee Lytz upon request of the Union and by refusing to refer his grievance to the Joint Standing Committee pursuant to the terms of a contract between Respondent and the Union which expired October 31, 1964, Respondent violated Section 8(a)(5) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent, Kingsport Publishing Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to reinstate Ivil Lee Lytz to his former position upon request of the Union and refusing to refer his grievance to the Joint Standing Committee pursuant to the terms of a contract between Respondent and the Union which expired October 31, 1964. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request reinstate Ivil Lee Lytz to his former position without prejudice to his seniority and other rights and privileges. was reached on May 6 when the members rejected Respondent's last offer This rejection was not made known to Respondent until September and the parties continued to negotiate after the rejection , a situation not uncommon in collective-bargaining negotiations e Backpay should be computed from the date of receipt by Respondent of the Union's letter of July 12, 1965 KINGSPORT PUBLISHING CORPORATION (b) Make Ivil Lee Lytz whole for any loss of pay he may have suffered by reason of Respondent's failure to reinstate Ivil Lee Lytz as requested by the Union on July 12, 1965. (c) Notify Ivil Lee Lytz if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) 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 Order. (e) Post at its plant in Kingsport, Tennessee, copies of the attached notice marked "Appendix."10 Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by an authorized 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 said Respondent to insure that said notices are not altered, defaced, orcovered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. i i 10 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 10, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX 697 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: WE WILL NOT refuse, upon request of Kingsport Typographical Union 940, to reinstate Ivil Lee Lytz to his former position in the composing room and we will not refuse, upon request of said Union, to refer his grievance to the Joint Standing Committee under the terms of a contract between Kingsport Publishing Corporation and said Union which expired October 31, 1964. WE WILL make said Ivil Lee Lytz whole for any loss of pay he may have suffered because we refused to reinstate him upon request of said Union made July 12,1965. KINGSPORT PUBLISHING CORPORATION (Employer) Dated By (Representative) (Title) Note: We will notify the above- named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 528 Peachtree- Seventh Building, 50 7th Street, N.E., Atlanta, Georgia 30323, Telephone 526-5760.