Meredith Corp.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meredith Corporation and Local 71, International Brotherhood of Bookbinders, AFL-CIO. Case 18-CA-3148 December 15, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 23, 1971, Trial Examiner Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross- exceptions and answer to General Counsel's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner : This case was tried in Des Moines, Iowa, on June 10, 1971,1 on a complaint issued against Meredith Corporation, Respondent, pur- suant to a charge filed by Local 71, International Brotherhood of Bookbinders , AFL-CIO (the Union or Bookbinders), on February 1, alleging that Respondent violated Section 8(a)(1) and (3) of the Act2 by refusing to pay employees represented by the Union while paying nonrepresented employees for time not worked on January 4, when Respondent announced that its office building would be closed because of a snowstorm. At the hearing all parties were afforded opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and the General Counsel and Respondent thereafter filed briefs. Upon the entire record, observation of the witnesses, and r Unless otherwise stated, all dates herein are in 1971. 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519, 29 U S.C Sec. 151 et seq ) consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, an Iowa corporation, is engaged in the business, inter alia, of publishing magazines and books. During the 12-month period ended December 1970, a representative period, Respondent, in the course and conduct of its business, purchasedmore than $50,000 worth of paper which originated outside Iowa and shipped more than $50,000 worth of magazines and books from Iowa to customers located outside the State. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICE A. The Facts Respondent, engaged in various aspects of commumca- tions in many locations throughout the country, maintains its corporate office and a publishing plant in Des Moines, Iowa. At the office building, located downtown on Locust Street, it has about 700 employees, of which around 650 are secretarial or clerical workers,3 the remaining 50 including material movers, maintenance employees, painters, guards, and 3 returned-book inspectors. It is the returned-book inspectors who are specifically involved in this case. There are about 1,500 employees, including some clerical workers, at the production facility located at Park, Avenue, about 4 miles away. The nonclerical workers are represented by approximate- ly 10 unions. The Bookbinders (Charging Party) represents around 250 to 275 employees, all of whom, with the exception of the 3 returned-book inspectors, work at the Park Avenue facility. The returned-book inspectors are among some 30 employees at the central service and supply department, which is located at Locust Street. The nonclerical workers at Locust Street are represented by six unions. The clerical employees are not represented by any union. On January 4, because of a severe snowstorm, Respon- dent announced over local radio and television that the Locust Street plant would be closed. The three returned- book inspectors did not report for work. Some employees did report and were dismissed early. A small number reported and worked all day. Upon return to work on January 5, the returned-book inspectors asked their supervisor, Carroll L. Rogers, manager of the central service and supply department, how they were to prepare their timecards for January 4 and if 3 Receptionists, switchboard operators, file clerks, order processors, mail distributors, secretaries, executive secretaries, and keypunch operators 194 NLRB No. 103 MEREDITH CORP they were going to be paid for the day. Rogers said he did not know but would find out and let them know later. Donald L. Arnold, Respondent's vice president for employee and public relations, testified that he asked Phillip O'Brien, director of benefits and services, whether Respondent "had any practice regarding the payment of the clerical people under circumstances such as the snowstorm" and O'Brien said that Respondent had always done S0.4 Arnold did not make inquiry concerning the other employees because, in his words, "there was no policy question involving those people, it was a matter of interpretation of the labor agreements." After speaking with O'Brien, Arnold obtained the approval of Darwin Tucker, then Respondent's chief executive, and then advised Personnel Director Glenn Witt to see that the clerical employees were paid for the day. Glenn thereupon informed Rogers "that those people working under or covered by a union contract would not be paid" and that the employees should be so advised. On January 11, Rogers so notified the employees .5 All employees who showed up for work on January 4 and were dismissed early were paid for the full day. All clerical workers were paid for that day. Those employees who worked the entire day were later granted compensatory time off. No nonclerical workers who failed to show up at either building were paid for January 4.6 B. Discussion and Conclusion Before considering the basic legal issue whether an employer may legally differentiate between represented and nonrepresented employees in circumstances such as those here presented, the Examiner will dispose of subsidiary questions raised by the parties. First to be considered is Respondent's contention that if Respondent paid the employees here in question for January 4 it "technically would have been in violation of the governing collective-bargaining agreement." To sup- port this position, Respondent refers to the contract's conclusory integration clause when read in conjunction 9 Respondent presented no specific evidence supporting a past practice of paying clerical workers under similar circumstances As discussed below, the General Counsel established that on some occasions in the past both clerical and other employees had been paid when employees were excused from work as a group 5 According to the employee witnesses, Rogers said that "union members," "union workers," or "union people" would not be paid Rogers, however, testified that, pursuant to Witt's instructions, he defined the class of employees who would not be paid as those "covered by union contracts or working under a union contract." There is no suggestion in the evidence that Respondent differentiated among employees on the basis of union membership. The Examiner credits Rogers 6 So far as appears, the same pay pattern was followed for the Park Avenue building, although no announcement of its closing was made T The provision reads: No one shall be employed for less than a full day, except when discharged for cause or when excused by the Company at his own request The corresponding provision in Respondent's collective-bargaining agreement with the Pressmen's Union for May 1, 1971, through April 30, 1973,reads- if an employee is scheduled for work and reports for work he is to receive a minimum of seven and one-half (7 1/2) hours pay except when discharged for just cause or excused at his own request. The record does not disclose whether similar provisions are contained in 589 with a provision that, in effect, assures employees a full day's pay for any day they report for work.? So far as appears, Respondent has never announced any similar policy for its unrepresented clerical employees. The integration clause reads, in pertinent part: This agreement contains all the binding conditions in regard to hours, wages, and other conditions of employment that exist between the Union and the Company. . According to Respondent, since the Union contract pro- vides payment for time not worked under some circum- stances, the integration clause serves to prohibit payment for nonwork time in any other situations. In the Examiner's opinion, so far as here relevant, this clause means at most that the employees covered by the contract would have no contractual right to payment for January 4. But it certainly cannot be said that Respondent would "breach" its contract by giving more than it had committed itself to gives Contractual obligations and statutory responsibilities are not necessarily coextensive. Many acts required by contract may be prohibited by statute and, conversely, conduct prohibited by contract may be required by statute. The terms of Respondent's collective-bargaining agreement with the Union are not decisive of the present case.9 Attention is now turned to the General Counsel's apparent contention that in the past Respondent has consistently treated organized and unorganized employees the same with respect to pay for time not worked and is therefore obligated to do so in the present situation.10 The General Counsel's evidence establishes the following events in the past: In January 1961 Respondent dismissed employees of the machine bindery department at Park Avenue for an afternoon to attend the funeral of the wife of Respondent's founder. On the day of President Kennedy's assassination in November 1963, employees of the first shift at Park Avenue were dismissed and the second shift was told not to report for work. In June 1966 the Locust Street employees were dismissed for a half day when Respon- dent's founder's son died.ii Because of a power shortage, the Park Avenue plant was closed and the employees all of Respondent's collective bargaining agreements 8 "The word `breach,' as applied to contracts, is defined as a failure without legal excuse to perform any promise which forms a whole or a part of a contract . ' " 17 Am. Jur 2d 997 (Contracts, Sec 441.) 9 Cf. A 0 Smith Corp, Case 13-CA-7741, TXD-293-67, adopted by the Board in the absence of exceptions on June 27, 1967. That case, which is discussed in some detail below, presented a situation closely similar to the present. Trial Examiner Frederick U Reel there said: "Manifestly, I am not concerned with whether the contract should be construed to require payment for the time in question. . . . I am likewise not concerned with what an arbitrator might have decided had the Union resorted to the arbitration provisions of the contract" io The General Counsel's position is not entirely clear . After stating that Respondent has always treated represented and unrepresented employees the same with respect to payment when the plant has been closed, the General Counsel's brief says. This is the condition of employment which has always been applicable and which continued to be applicable on January 4, 1971. Therefore, the failure to pay snow pay to the unit employees violated the contract, and the contract cannot serve as a defense to the charge of discrimination on the basis of union representation ii Although the General Counsel's evidence concerning the events in 1961, 1963 and 1966 was restricted as summarized , there is no reason to believe that the dismissals were not company-wide, applying to all departments in both buildings. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dismissed early one day in March 1964. And the same thing happened sometime in 1967 because of a water shortage at the Park Avenue plant. In each instance all employees, both represented and unrepresented, were paid for the time lost. As heretofore noted, at least two of Respondent's current collective-bargaining agreements would require payment for a full day's work for covered employees who were dismissed early on the occasions described. While there is no evidence that similar provisions were contained in Respondent's collective-bargaining agreements at the times in question, it is at least possible that payment to unionized employees was then required by contract. It should be noted that those production employees who did report to work on January 4 were dismissed early yet paid for the entire day. Whether or not payment to organized employees on the past occasions referred to were contractu- ally required, the General Counsel's evidence falls far short of establishing a course of conduct which would make it a term or condition of employment that employees would be paid for days when they were not required to report. Nor does the General Counsel's evidence establish any pattern of conduct which would assure uniformity of pay and other personnel practices for represented and nonre- presented employees. To the contrary, although Respon- dent provides the same major fringe benefits (such as vacations, holidays, sick leave, life insurance, hospitaliza- tion and medical insurance) 12 to all employees, in several respects clerical and nonclerical employees have been afforded different treatment, both as to matters specifically governed by collective-bargaining agreements and with respect to items not so governed. Apart from and beyond the difference in levels of pay attaching to different jobs, there are significant differences in the wages and hours provisions governing the clerical employees and those provided in the Bookbinders' collective-bargaining agreement.13 For example, the Bookbinders has a basic 37 1/2-hour week as opposed, to the 40-hour week of the clerical employees. The Bookbinders' contract -calls for automatic, periodic wage increases, whereas clerical employees' compensation is prescribed in ranges with merit increases based on periodic performance reviews. Although the Union's collective-bargaining agreement does not provide for timeclocks, all nonclerical workers, including those represented by Bookbinders, punch timeclocks, whereas the clerical employees do not. There was uncontradicted evidence that attendance and leave policies are more flexibly or liberally applied to clerical than to other employees. For a time in 1966 clerical employees at the Park Avenue building were given a 2-hour lunch period and round trip transportation to Center City once a week, whereas production workers were afforded no such benefits. In short, the General Counsel has not shown, as he in effect contends, that the organized employees have acquired, through past conduct, what would amount to a type of "most-favored-nation" clause. In any event, while abandonment of an established practice such as that claimed by the General Counsel might possibly violate 12 According to Arnold, the only major fringe benefit in which there is lack of uniformity is the companywide pension plan, which the Bookbinders Union has rejected and the Mailers Union has taken to arbitration 13 The record contains no evidence of the wage and hour terms of Section 8(a)(5) of the Act, Gravenslund Operating Co., 168 NLRB 513, it would not automatically contravene Section 8(a)(3). New Orleans Board of Trade, Ltd., 152 NLRB 1258. In their able and helpful briefs, the General Counsel and Respondent have. reviewed many of the Board and court decisions involving employers' disparate treatment of "union" and "non-union" employees and of strikers and nonstrikers. Relying primarily on Radio Officers Union v. N.L.R.B. (Gaynor News Co.), 347 U.S. 1714; N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221; N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26; and N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, the General Counsel argues that it is inherently discriminatory to withhold or to grant payment for time not worked because of the snowstorm on the basis of whether the employees are represented by a union and working under a union contract. Respondent, on the other hand, maintains that Gaynor News is inapplicable to the present case since its holding is limited to situations in which the union is the exclusive representative of all the employees; the favored and unfavored employees perform the same jobs; and the differentiation in treatment is based solely on union membership or nonmembership or on the exercise or nonexercise of the right to strike. In this basic conflict, the decisions clearly support Respondent's conten- tion. In Gaynor News the employer, pursuant to a collective- bargaining agreement, had granted retroactive pay increas- es and vacation pay to union members, while denying such payments to other employees who had not joined the union. In sustaining the Board's finding of a Section 8(a)(3) violation, the Court held that:, ... the union being exclusive bargaining agent for both its members and nonmember employees, the employer could not, without violating § 8(a)(3), discriminate in wages solely on the basis of such membership... . The Court expressly left open "the legality of disparate payments where the union is not exclusive bargaining agent." Erie Resistor, involved discrimination against strikers in favor of their replacements, the two groups being within the same unit and performing the same work. Great Dane concerned discrimination with respect to vacation pay between strikers and nonstrikers within the same unit. To the same effect is Flambeau Plastics Corp., 167 NLRB 735, 744-745, enfd, 401 F.2d 128 (C.A. 7), cert. denied, 393 U.S. 1019, also cited by the General Counsel. Hanley Davison Chevrolet, Inc., 168 NLRB 944, also held violative differentiation concerning payment of commissions to strikers and nonstrikers within the same unit. Fleetwood Trailer held the employer had discriminated among employees within the same bargaining unit when it refused to reinstate strikers. Similarly, General Motors Corp., 59 NLRB 1143, modified, 150 F.2d 201 (C,A. 3), cited by the General Counsel, involved discrimination among employ- ees similarly situated, with union membership as the sole criterion. Respondent's other collective-bargaining agreements. 14 Gaynor News Co, 93 NLRB 299, modified, 197 F 2d 719 (C.A. 2), is one of three cases decided in Radio Officers. Of the three cases , Gaynor News is most relevant to the present case. MEREDITH CORP. Addressing itself to the question left open by the Supreme Court in Gaynor News, the Board has "specifically held that where the Union is not the exclusive bargaining agent of all the employees, the Board may not, without reference to the employer's actual motivation, properly infer discriminatory intent from the disparate conduct itself." While differentia- tion among employees "based on `membership' in a union" is a per se violation of Section 8(a)(3), "differentiation .. . based on membership in a unit" may be entirely legal. Central States Petroleum Union, Local 115, 127 NLRB 223, 228-229, referring to Speidel Corp., 120 NLRB 733, in which the Board held that an employer did not violate Section 8(a)(3) by granting a bonus to unorganized employees while withholding it from a unit which had recently chosen to be represented by a union. To similar effect, see, e.g., Anheuser-Busch, Inc., 112 NLRB 686; New Orleans Board of Trade, supra, 152 NLRB at 1264-1265. Cf. Wagner Electric Corp., 105 NLRB 1, finding no violation of the Act in an employer's paying unorganized employees who did not work during a strike'while not paying either the employees in the striking unit or those in another unit represented by a second union.15 Even in those cases in which the Board has found unlawful discrimination, it has recognized that "any employer has the right to restrict the compensation of represented employees to that agreed to by their bargaining representative, while setting the compensation of unrepre- sented employees at whatever level it deems proper, so long as the employer does not intend thereby to discourage union membership or activity." Pittsburgh-Des Moines Steel Company, 124 NLRB 855, 859 fn. 8, in which the Board held that an employer violated Section 8(a)(3) by not granting to strikers a customary Christmas bonus which it gave to nonstrikers.16 In the somewhat different context of pending contract negotiations, the Board has recently reaffirmed its longstanding interpretation of the Gaynor News principle. In Chevron Oil Company, 182 NLRB No. 64, in reversing a Trial Examiner's dismissal of Section 8(a)(3) allegation, the Board said: "Were it not for the unfair labor practice setting in which the withholding action occurred, we would have no hesitancy in adopting the Trial Examiner's finding. It has long been an established Board principle that, in a context of good-faith bargaining, and absent other proof of unlawful motive, an employer is privileged to withhold from organized employ- ees wage increases granted to unorganized employees or to condition their grant upon final contract settlement." 17 In Intermountain Equipment Co., 114 NLRB 1371, an employer discontinued paying a bonus and providing sick leave to a unit of employees represented by a union while continuing such benefits for other employees. In finding a violation of Section 8(a)(3), the Board did say (p. 1373) that "this disparate treatment concerning bonuses and sick 15 A similar result was reached in Cities Service Refining Corp, 105 NLRB 797, but the Board there based its decision on the breach of a no- strike provision in the second, union's contract 16 Set aside 284 F.2d 174 (C.A. 9). In that case, the Board found that the employer, by withholding a customary Christmas bonus, has reduced the compensation of certain employees in retaliation for their having engaged in a strike In reversing, the court held that the bonus had been withheld from the unit involved simply because those employees had not met the employer's productivity standards According to the court, the fact 591 leave had the inherent effect of discouraging union membership and therefore constituted a violation of Section 8(a)(3) and (1) of the Act, even absent independent evidence of the Respondent's antiunion motivation." However, it appeared as a fact that the employer had assured the union that it would "treat all employees in [its] employment the same as far as bonuses and sick leave were concerned," and the union had relied on this promise in the negotiations. Since such bad-faith bargaining by the employer would constitute affirmative evidence of discrimi- natory motivation, the Board's `per se" language can be viewed as dictum and not as an affirmative holding inconsistent with those heretofore discussed. In reversing the Board in Intermountain, the Ninth Circuit specifically distinguished Gaynor News and General Motors on the ground that they "involved discrimination among employ- ees doing exactly the same work for exactly the same pay on the basis of union membership," whereas Intermountain involved differentiation between organized employees, who had received benefits by contract, and nonunion members who "were outside the scope of the bargaining unit." 239 F.2d 480, 482. In Speidel Corp., supra, 120 NLRB at 736, fn. 7, the Board appears to have accepted the court's view (and that of the dissenter at the Board level) in Intermountain. Both the General Counsel and Respondent have referred to decisions in which employers have been found to have committed unfair labor practices by the terms or adminis- tration of profit-sharing, pension, or similar funds or benefit plans. The cases in that group are distinguishable from the instant case. International Harvester Co., 169 NLRB 787; Bendix- Westinghouse Automatic Air Brake Co., 185 NLRB No. 29, enfd. 443 F.2d 106 (C.A. 6); Goodyear Tire & Rubber Co., 170 NLRB 539, set aside, 413 F.2d 158 (C.A. 6); Dura Corp., 156 NLRB 285, enfd. 380 F.2d 970 (C.A. 6); and Jim O'Donnell, Inc., 123 NLRB 1639, all concerned funds or plans covering only salaried and/or office employees. In Quality Castings Co., 139 NLRB 928, set aside, 325 F.2d 36 (C.A. 6), the Board held that the provisions for distribution of a profit-sharing plan improperly and discriminatorily penalized strikers. In Toffenetti Restaurant Co., 136 NLRB 1156, 1173 enfd, 311 F.2d 219 (C.A. 2), cert. denied, 372 U.S. 977, the provisions of the company's plan discriminat- ed against union members as compared with nonunion members within the same bargaining unit. These cases thus involved disparate treatment among people performing "the same or comparable work." Crosby Chemicals, Inc., 121 NLRB 412, 417, fn. 9. In several of the pension and similar fund cases, the exclusion of the employees from the benefits of employer- maintained plans was made during the union's organizing campaign and thus clearly interfered with the employees' free exercise of their Section 7 rights, in violation of Section that the unit's low productivity was caused by the extended strike did not mean that the bonus was withheld in retaliation for the stoke or to discourage such concerted activity The Board and the court had no disagreement as to the basis principle that differentiation of treatment between organized and unorganized units is not necessarily unlawful 17 In setting aside the Chevron order in pertinent part, the Fifth Circuit quoted this portion of the Board's decision with approval The court disagreed with "the Board's finding that the Company's withholding action occurred within a bad-faith bargaining context," 442 F 2d 1067 (C A 5). 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1). Melville Confection, Inc., 142 NLRB 1334, enfd. 327 F.2d 689 (C.A. 7), cert. denied, 377 U.S. 933; Bendix- Westinghouse, supra. In other cases the essential vice of the exclusion of represented employees from company plans was its effect in limiting the scope of collective bargaining. Dura Corp., supra; The Kreger Co., 164 NLRB 362, enfd., 401 F.2d 682 (C.A. 6). In Motor Wheel Corp., 180 NLRB No. 71, set aside per curiam, 74 LRRM 2832 (C.A. 6), the Board assumed arguendo that a plan which specifically provided for continuance of participation during the course of contract negotiations would not violate the Act. The nub of the Board's rationale in finding the Motor Wheel plan unlawful was: "Employees considering selecting a bargaining agent would ... be impeded in their free exercise of their right of selection by clear and unequivocal language in Respon- dent's plan indicating that they would suffer a loss of benefit if they selected a Union and the Respondent recognized it." Compare N.L.R.B. v. Hudson Transit Lines, 429 F.2d 1223 (C.A. 3), cited by the General Counsel. That case affirms a Board holding that an employer violated Section 8(a)(1) by reducing employee benefits after an election had been held but before the union was certified.18 Whatever the specific variations, all the "fund" cases arise from restrictions written into continuing plans the very existence of which would inevitably interfere with employees' exercise of their Section 7 organizational right and/or limit the scope of bargaining assured by Section 7. The present case, on the other hand, involves a specific, isolated instance of differentiation, not inherently discrimi- natory on its face. Toffenetti, supra, illustrates the basic difference between the "fund" cases and those, like the present, involving ad hoc differentiation. The published plan in Toffenetti was held to be discriminatory on its face and thus violative of the Act irrespective of the employer's motivation. However, in holding that the employer also violated Section 8(a)(3) by withholding Christmas bonuses from its organized employees, the Examiner, affirmed by the Board, expressly found that "the record herein clearly discloses Respondent's antiunion motivation for the disparate bonus payments by substantial evidence inde- pendent of the bonus payment alone." 136 NLRB at 1168. Since the differentiation here involved may very well be based solely on reasonable economic or other nondiscrimi- natory considerations, it is entitled to a presumption of validity, the General Counsel shouldering his usual initial burden of proof. In the present case, there is no suggestion of union animus on the part of Respondent. Indeed, Respondent and the Union here involved have been bargaining for around 40 years. And Respondent has collective agree- ments covering 13 bargaining units in Des Moines and 11 in is The Board had expressly declined "to determine whether the conduct in question also violated Section 8(a)(3) " 173 NLRB 133, In. 2. 19 Arnold summed the distinction up as follows ". a secretary who is gone for a week's vacation does not leave a week's work undone Work will be done in advance of going, and work will be caught up on return This is possible in virtually all of the clerical functions It is not, of course, true in production, where if a machine is not running you can later use time when it is running to catch up for time that it didn't run It is a general distinction and difference, and you will find in costing benefits, such as vacations and holidays, that there is a significant difference in the cost of such items for clerical people as opposed to production people other locations. There is no evidence that Respondent opposed the unsuccessful attempt to organize its clerical employees in Des Moines which led to an election in 1965. In January 1971, the time here involved, there were no organizational or bargaining activities in progress or in immediate prospect. Nor has the General Counsel presented any affirmative evidence from which it could be found that Respondent's decision was motivated by a desire to discourage union membership. On the other hand, Respondent articulated a sound basis for distinguishing generally between prod- uction and clerical workers. Production lost when machines are down is forever gone unless made up on other time; much office work, such as that of switchboard operators and receptionists need not and cannot be made up, and other functions, such as typing and filing, can usually be fitted in without extending other regularly scheduled work time.19 The Examiner might well take official notice of what Vice President Arnold referred to as the "inherent difference" between clerical and production work which would warrant a difference in the treatment of pay for time not worked.20 Thus, since the General Counsel has failed to establish that Respondent's refusal to pay the three returned-book inspectors here involved for January 4, when they did not report to work because of a snowstorm, was motivated by union animus or a desire to discourage union membership, the complaint is dismissible under the authorities hereto- fore discussed. A postscript is here in order. At the hearing, the Examiner called to the parties' attention Trial Examiner Frederick U. Reel's Decision in A. 0. Smith Corp., TXD 293-67, adopted by the Board on June 27, 1967, in the absence of exceptions (Case 13-CA-7741). Like the present, that case involved allegedly discriminatory non- payment for time lost when a plant was closed because of a snowstorm. There, as here, the employer's representative stated that payment to the organized employees "would be in direct violation of the contract." But, unlike the present case, the employer's representative also stated that salaried personnel would be paid while hourly rated employees would not be. The company strictly followed the salary versus hourly wage distinction in making payments, to the extent of not paying hourly rated temporary clerical workers even though they were not within union represent- ed units. Additionally, the Examiner found that the employer representative who made the decision concerning snow pay "followed a consistent policy of distinguishing between salaried and hourly paid employees, even where the Union here involved represented salaried workers." The Examiner dismissed the A.O. Smith complaint on the basis of his ultimate finding that "the factor leading to the involved in machine operations " 20 The record is unclear as to whether Respondent's employees are "salaried," as distinguished from the hourly rated production workers Without contradiction, Union President James Geyer quoted Rogers as having said that the clerical workers in his department were hourly paid. However, there is in evidence a "Salary Administration Manual for Non- Exempt Positions." When questioned as to the "wage rates" for clericals, Arnold stated "per-week" figures, but testified that the clericals receive a shift differential on an hourly basis. In any event, Respondent does not seek to justify the differentiation here involved on the ground that the clerical employees are salaried rather than hourly rated. MEREDITH CORP. 593 disparate treatment was not union representation, but whether the employees were employed an a salary or at an hourly rate. " 2i The issue to which Examiner Reel addressed himself was: "whether the Company's disparate treatment of the salaried and hourly paid employees was motivated by the fact that the hourly paid employees were represented by a union, and, even if not so motivated, was the natural consequence of the conduct to discourage union membership, so that proof of motivation is not necessary." In the present case, on the other hand, Respondent stood squarely on its asserted right to limit represented employees to their contractual rights, regardless of any additional benefits afforded unorganized employees. Respondent's evidence establishes that in deciding to pay the "non- exempt clerical" employees it gave no consideration to the organized employees. It did not base its decision on the "inherent difference" between clerical and production workers concerning which Arnold testified. On the contrary, while Respondent could readily have justified the disparity of treatment on this functional distinction, it chose to make "union representation the factor leading to the disparate treatment." In this basic respect the present case differs from A . O. Smith. Despite this difference, the Examiner believes that such precedents as Anheuser-Busch, Speidel, and New Orleans Board of Trade, discussed above, require that the present case also be dismissed. CONCLUSION OF LAW Respondent, Meredith Corporation, has not engaged in the unfair labor practice alleged in the complaint. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, it is recommended that the complaint be dismissed in its entirety. 21 It was also found that a lower echelon supervisor had said to the concerning payment and then noted "that the complaint does not allege union representative, "I told them years ago not to join a union, so they that the statement violated Section 8(a)(1), but only that the nonpayment will not be paid and the others will be paid " The Examiner found that the violated Section 8(a)(1) and (3) of the Act " author of that statement had not participated in the actual decision