Hearst Corp.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Herald-Examiner, Division of the Hearst Corporation and Newspaper Independent Union Council. Case 21-CA-10126 FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS May 23, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 8, 1972, Trial Examiner Martin S. Bennett issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 his 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. I In affirming the Trial Examiner, we do not rely on his finding that details of the pension plan were presented to the Union after the hearing or the fact that a sixth meeting was held, inasmuch as these facts were not admitted into evidence TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Los Angeles, California, on November 18, 1971. The complaint, issued August 26 and based upon a charge filed July 6, 1971, by Newspaper Independent Union Council, herein the Union, alleges that Respondent, Los Angeles Herald-Examiner, Division of the Hearst Corpora- tion, has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following- It is undisputed herein and I find that the above-described unit is a unit appropriate for the purposes of collective bargaining within the meaning of Los Angeles Herald-Examiner, Division of the Hearst Corporation, is a division of a Delaware corporation maintaining its principal offices in New York City, New York, which, inter alia, publishes a daily and Sunday newspaper at Los Angeles, California. Respondent annual- ly subscribes to several interstate news services, enjoys a gross volume of business in excess of $1 million and purchases goods and materials valued in excess of $100,000 which are shipped to it from points outside the State of California I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Newspaper Independent Union Council is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Issue Since 1941, Respondent has recognized the Union as the bargaining representative of a unit of approximately 50 employees. This group includes all employees in the addressograph, advertising, accounting, auditing, cashier, circulation accounting, credit and collections, data proc- essing, night checking, paper and traffic, payroll, person- nel, production office, purchasing, employees' insurance, statistical, and telephone exchange sections, excluding all professional employees and supervisors. The last contract between Respondent and the Union covered a 1-year period and expired May 31, 1971. Respondent does not challenge the Union's representation of the employees in the above-described unit.' Basic to an appreciation of the instant issue and Respondent's motivation herein, as it urges, is the fact that Respondent's approximately 2,000 employees are repre- sented by 13 labor organizations in 13 separate units, including the unit directly involved herein. The other 12 units have been on strike since December 1967, with much ensuing litigation and the Charging Party represents the only unit not on strike; it would seem that 1 of the 12 is not formally on strike. The General Counsel alleges that Respondent has refused to bargain in good faith with the Union as the representative of the employees in the unit described above, that it has engaged in surface and bad-faith bargaining, that it has utilized dilatory and evasive tactics, and that it has insisted that the Union agree to Respon- dent's proposals relating to mandatory subjects of bargain- ing. He further alleges that Respondent has refused to provide substantive information concerning its proposal of a new pension plan and that, on or about July 1, 1971, Respondent unilaterally changed rates of pay, wages, and Sec 9(b) and that the Union was and now is the representative of said employees within the meaning of Sec. 9(a) of the Act 197 NLRB No. 15 LOS ANGELES HERALD-EXAMINER conditions of employment of employees in this unit by discontinuing dismissal and retirement pay. As will appear, the last contract between the parties had clauses providing for dismissal and retirement pay. These might better be described as involuntary and voluntary severance pay as they provided, commensurate with length of service, 2 to 62 weeks of pay in the former, and 5 to 60 weeks in the latter, instance. In negotiations for a new contract, Respondent sought to eliminate these clauses and, in return, proposed a pension plan. Vital to an evaluation of this issue is the fact that the pension plan was in the process of formulation, not only for this unit but for all 13. It is the position of Respondent that it sought basically to stabilize working conditions of the employees in all 13 units as to a pension plan; that a plan was being formulated is not disputed. Needless to say, I consider it a truism that an employer would prefer to bargain with I unit rather than 13 and it is readily understandable that he would attempt to devise and implement an identical pension plan for all 13 units rather than have a piecemeal arrangement with conflicting benefits and ensuing morale problems; indeed, Respondent has pointed to the problems raised in this area by transfers of personnel from one unit to another.2 B. Sequence of Events On March 9, 1971,3 the Union duly requested reopening of the contract expiring on May 31 and Respondent, on the same day, responded with the suggestion that the Union propose a meeting date and such modifications as it desired. On March 22, the Union asked Respondent to set a date for a meeting and requested two changes in working conditions. These were (1) a cost-of-living wage adjust- ment, ranging from $6 to $10 per week, depending upon wage scale, and (2) reduction of the eligibility period for vacations, in one' category, from 18 to 10 years. A first meeting was held on April 21 with Respondent represented by Labor Relations counsel William McCar- thy. Respondent presented the Union with a counterpropo- sal of some 13 items, including: (1) start of the night-shift differential at 3 p.m. rather than 6 p.m., through 5:59 a.m.; (2) a wage increase of 5 to 10 cents per hour; (3) commencement of sick leave benefits on the fourth rather than the first day of illness; (4) replacement of the dismissal pay plan with a pension plan then being developed; (5) deletion of the retirement plan and its replacement with a new hospital and surgical plan; and (6) a new group life insurance plan The minutes of the meeting recorded by Respondent reflect, and I find, that the key area of discussion was Respondent's proposal that the dismissal and retirement pay plans, in essence, be replaced by the pension proposal At this point, it is in order to note that Respondent was then developing this pension plan proposal through insurance firms. While the plan had not been fully formulated as of the date of the instant hearing, it now exists and, indeed, has been the subject of meetings by 2 Respondent has moved since the close of the hearing, opposed by the General Counsel, that the details of the pension plan submitted to the Union after the close of the hearing and the minutes of subsequent meetings with the Union and with other striking labor organizations be received in 43 Respondent with the Union, as well as with most, if not all, of the striking labor organizations at the newspaper. As stated, the crux of the General Counsel's case is Respon- dent's refusal, upon the expiration of the contract in 1971, to temporarily continue these two working conditions until receipt of the pension plan. A second meeting was held on May 4. A union representative asked if the details of the pension plan were available and McCarthy replied that they were not; as noted, it was not finalized until after the close of the hearing although no allegation of dilatory tardiness is made by the General Counsel. The Union complained that Respondent's wage offer did not meet the increase in the cost of living and McCarthy responded that Respondent would not negotiate wages based upon any artificial index until it, Respondent, was responsible for the economic policies of the country. The Union next proposed a wage increase of 12 to 22 cents per hour which Respondent rejected. It suggested a 2 rather than a 3-day wait for sick leave 'eligibility and Respondent refused, pointing out that some striking units had a 3-day waiting period and it desired here, as elsewhere, to achieve uniformity in fringe benefits in the building. The parties did agree to five of Respondent's proposals made on April 21. These included, in relevant part, the change in the night shift differential hours, the medical insurance plan, and an effective date of June 1 for a new contract. A third meeting was held on June 18 and Respondent submitted a revised counterproposal. Inter alia, this offered a wage increase of 7 to 13 cents per hour, and an effective date of July 1 for the contract, except that the wage increase would be effective on July 12, the latter date being tailored to Respondent's payroll period. Respondent also stated that it had modified a proposal on leaves of absence to accommodate an objection'by'the'Union. It is to be noted that Respondent agreed to extend the existing dismissal and retirement pay programs until July 1, but declared its intention to drop them on that date absent agreement on a contract. Again, details on the pension plan proposal were requested by the Union but were not forthcoming because, as noted, the plan was still in the process of development. A fourth meeting was held on June 23. The Union agreed to a modified leave of absence program and offered to accept Respondent's wage proposals if they were retroactive to June 21. McCarthy rejected any retroactivity, but did offer to agree to an effective date of June 28 for a contract if it was executed. However, the parties were still apart on the abandonment of the dismissal and retirement pay provisions and their replacement by the pension plan and Respondent informed the Union that they were at an impasse since neither party would budge. The Union spokesman agreed that they were indeed at a deadlock. Respondent offered at this point a new proposal on pensions, viz., that if Respondent proposed a plantwide pension plan to the other umts, this plan would be offered to the Union. The Union asked about eligibility under the evidence or that the hearing be reopened In view of the findings hereinafter, the motion is hereby denied 3 All dates herein reflect 1971 negotiations DECISIONS OF NATIONAL LABOR RELATIONS BOARD old dismissal pay plan during the interim period before the pension plan was installed; McCarthy reiterated that there would be no protection after July 1, specifying that the 12 striking units did not have such protection and Respondent desired to achieve uniformity in its departments. A fifth and critical meeting was held on June 30, just prior to the expiration of the extended contract. The Union announced that the only issue separating the parties was the proposed discontinuation of the dismissal and retire- ment pay programs and stated that an agreement could be reached if these plans were retained. McCarthy dissented, pointing out that no one else in the building enjoyed such benefits and announced that they were at an impasse; he stated that Respondent intended to implement its June 18 proposal as of midnight on July 1. A union representative asked about the benefits in Respondent's new proposal, and McCarthy listed some of them, including the pension plan. A union representative asked about credit for past service under the pension plan and McCarthy perforce replied that he did not know. One of the Union's team, Shewey, offered to relinquish the wage increase if the dismissal and retirement pay plans were retained until such time as the new pension plan became operative. McCarthy rejected this, stating that this would be a disservice to the membership of the Union. According to McCarthy, he did not consider this to be a serious offer on the part of Shewey, in view of the young membership in the unit.4 Both Shewey and McCarthy agreed that they were deadlocked. Respondent put its final proposal into effect on July 1 with the wage increase effective on July 12. A sixth meeting was held in October, after the issuance of the instant complaint with no change in positions. As noted, Respondent has since presented a pension proposal and there have been meetings between Respondent and the Union as well as the various striking labor organizations, and the proposed exhibits do reflect concessions on the part of Respondent from its initial pension proposal. C. Analysis and Conclusions At first blush, the General Counsel's case has some appeal. Respondent wished to drop two existing benefits and replace them with a new pension plan concerning which no details were available; as noted, there is no dispute that the plan was then under preparation. The Union unsuccessfully sought temporary coverage under the dismissal and retirement pay plans until the pension plan was forthcoming. And, as McCarthy admitted, he deemed the potential cost of the interim proposals to be light because of the relative youth in the unit. On the other hand, Respondent's bargaining position was primarily predicated upon its concern of the impact of the interim benefits upon the other striking units which had no such comparable benefits; it is to be noted that one of the striking units, namely that represented by the Los Angeles Newspaper Guild, Local 69, with some 1,000 in the unit, had previously enjoyed such benefits under its expired contract. Respondent feared that it might run afoul of the teachings in N.L.R.B. v. Great Dane Trailers, supra. There, after the expiration of a contract containing a vacation clause, a strike took place and the Court condemned the payment of vacation benefits to nonstrik- ers and strike replacements and the refusal to pay same to the strikers. This was so viewed, even in the absence of antiunion motivation and despite the fact that the employer was motivated by business concerns, where the employer's conduct was deemed as inherently destructive of employee rights. In the present case, Respondent was concerned that yielding to the nonstrikers would imperil its position as to the approximately 1000 strikers represented by the Guild, particularly so where it was embroiled in litigation with the latter about benefits under these two provisions and was concerned that it might convert the strikers to unfair labor practice strikers. I am somewhat dubious about this analogy. The Supreme Court handed down its decision with respect to the treatment of strikers in one bargaining unit. It would be extending this considerably to use this as a criterion in the case of an employer saddled with 13 separate bargaining units which have bargained separately. On the other hand, it does not follow as the General Counsel in effect contends, that Respondent's negotiations with the one unit involved herein are to be viewed in a vacuum. Where any issue requires a determination whether an employer, on the one hand, is bargaining hard, or on the other, has gone beyond and has not met his obligations under the Act, subjective factors are to be considered in the factual context of the particular case, N.L.R.B. v. Stevenson Brick and Block Co., 393 F.2d 234 (C.A. 4). And the Board has recognized that an employer may conduct negotiations with full realization of their likely impact upon unorganized segments of employees at its other terminals. Standard Trucking Co., 183 NLRB No. 17. See McCulloch Corp., 132 NLRB 201. In a recent case, a labor organization was replaced by another after a Board election. In negotiations for a contract, the employer refused to concede to the new union the same contract provisions regarding checkoff and union security that existed in the former contract and also existed in other contracts at its various facilities. The Board concluded, nevertheless, that this did not reflect a desire to avoid reaching an agreement. Dow Chemical Co., 186 NLRB No. 58. In essence, on this record, Respondent had a realistically felt concern about the impact of this contract upon the other 12 units and it bargained hard to achieve its objective. As an additional, although probably lesser, factor, it desired to achieve a uniform pension plan throughout the plant and to avoid problems in interunit transfers which do take place. Respondent points also to the fact that the principal striking unit, the Guild, with some 1,000 strikers, pursued it with much litigation, some of it still pending, concerning clauses identical to the two under consideration herein. In the final analysis, Respondent did bargain with the Union in these areas. At the very first meeting, Respondent 4 But it is readily apparent, on the face of McCarthy's belief, that this would have been a relatively modest, at best, cost factor to Respondent. This, however, ties in with one of Respondent's defenses based upon NLRB. v Great Dane Trailers, Inc, 388 U.S. 26, discussed below. LOS ANGELES HERALD-EXAMINER announced its desire to install uniform fringe benefits throughout the paper and pointed out that no other employees enjoyed the two sought by the Union. On the other hand, the Union was adamant in its desire to retain them and had no offer other than a temporary extension. Respondent, in turn, presented its pension proposal. It is to be noted also that these two benefits in the expired contract with the Union were not funded; nor were those with the Guild. And the record does disclose, as set forth, a number of concessions made by Respondent in the course of bargaining, including wage increases, an improved night shift differential, a group medical plan and a group life insurance plan. True, the meetings were only five in number. But with a long-established bargaining relationship and numerous contracts, the area of dispute was small. Indeed, the Union had initially sought changes only in the wage structure and in one facet of the vacation plan. As the disagreement on the two key issues was apparent at the very first meeting, I do not view this as a case where an employer has abruptly terminated negotiations too early in the game. And Respondent did offer to reopen the contract at such time as the pension plan was ready. Information concerning the pension plan was not meaningfully available and the changes in working conditions came after bargaining to a good-faith impasse. I find that Respondent did not engage in "surface" or "sham" bargaining and has not committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. See Midwest Casting Corp, 194 NLRB No. 91, and Freeman Co., 194 NLRB No. 84. 5 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in CONCLUSIONS OF LAW 45 1. Los Angeles Herald-Examiner,Division of the Hearst Corporation, is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Newspaper Independent Union Council is a labor organization within the meaning of Section (2)(5) of the Act. 3. Newspaper Independent Union Council is the representative of Respondent's employees in the addresso- graph, advertising, accounting, auditing, cashier, circula- tion accounting, credit and collection, data processing, night checking, paper and traffic, payroll, personnel, and production, purchasing, employees' insurance, statistical and telephone exchange sections. excluding all professional employees and supervisors, this being a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(a) and (b) of the Act. 4. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:5 ORDER The complaint is dismissed in its entirety. Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes