Thomson Newspapers

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