Missourian Publishing Co., Inc.

MISSOURIAN PUBLISHING COMPANY, INC. Missourian Publishing Company, Inc. and Local 505, Graphic Arts International Union, AFL-CIO- CLC. Cases 14-CA-7611 and 14-CA-7713 January 16, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 30, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions to the Administra- tive Law Judge's Decision and briefs in support thereof ; Respondent filed cross-exceptions and a brief in support thereof and in opposition to exceptions of the Charging Party and the General Counsel.' 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 Administrative Law Judge's Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,2 and conclusions 3 to the extent consistent herewith. AMENDED CONCLUSION OF LAW Add the following to the Administrative Law Judge's Conclusion of Law 6:"; and by unilaterally eliminating the free coffee, changing the work schedules of press employees and designating specif- ic lunch periods , and granting wage increases in excess of those being offered in negotiations, all without notifying or bargaining with the Union, Respondent has violated Section 8(a)(5) and 8(a)(1) of the Act." i The Respondent has requested oral argument. This request is hereby denied because the record , the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 In finding that Respondent did not bargain in good faith , we do not rely on the Administrative Law Judge's conclusion that Respondent's failure to grant some form of union security is an indication of bad faith. 3 The Administrative Law Judge found that Respondent discnminatonly assigned duties to Elmer Holtgreve, thereby violating Sec. 8 (aX3) of the Act. Since Holtgreve was not reduced in pay as a result of the discrimination against him, and was restored to his normal duties as of the hearing, the Administrative Law Judge did not recommend a make-whole order. The Administrative Law Judge found, inter alla, that Respondent's unilateral action in eliminating the free coffee, establishing a new system of hours for press employees and designating specific lunch hours , and granting wage increases in excess of those being offered in negotiations with the Union, all violated Sec. 8(aX5) and ( 1) of the Act. The General Counsel and the Charging Party have, excepted to the failure of the Administrative Law Judge to provide a remedial order and notice with respect to the findings that Elmer Holtgreve was discriminatorily ORDER 175 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Missourian Publishing Company, Inc., Washington, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organiza- tion by discriminating in regard to the hire and tenure of employment of any employee or applicant for employment. (b) Discriminatorily assigning employees to more onerous or menial work. (c) Refusing and failing to bargain in good faith with the above-named Union. (d) Unilaterally eliminating free coffee. (e) Unilaterally establishing new work schedules and designated lunch periods. (f) Unilaterally granting wage increases in excess of those being offered in negotiations. (g) Illegally interrogating its employees regarding their union support and activities. (h) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Local 505, Graphic Arts International Union AFL-CIO-CLC, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate reemployment to Stephen assigned work, and that Respondent unilaterally , and without notice to and bargaining with the Union, eliminated free coffee, changed the hours of press employees and designated specific lunch periods , and granted wage increases. The General Counsel and the Charging Party also excepted to the failure of the Administrative Law Judge to provide a remedial order requiring reinstatement of free coffee and to provide a make-whole remedy for wages lost as a result of the change in hours. We agree that such additional remedial relief would effectuate the purposes of the Act. We therefore shall amend the recommended Order and notice to provide that Respondent, upon request, be ordered to reinstate the free coffee, as it existed prior to Respondent's unilateral action on or about April 10, 1973, reinstate the work schedules and lunch periods of the press employees as they existed prior to May 7, 1973, and make the affected employees whole, as provided for in that portion of the Administrative Law Judge's Decision entitled "The Remedy" for any loss suffered as result of this change. However, nothing in this Decision shall be construed to require Respondent to withdraw the wage increases found herein to have been granted unlawfully. 216 NLRB No. 34 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frederick and make him whole in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (b) Upon request, bargain collectively with Local 505, Graphic Arts International Union, AFL-CIO-CLC, as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody it in a signed agreement. (c) Upon request, reinstate the free coffee for employees as it existed prior to April 10, 1973. (d) Upon request, reinstate the work schedules and lunch periods of press employees as they existed prior to May 7, 1973, and make the press employees whole for any loss they may have suffered as a result of this change, as provided for in that section of the Administrative Law Judge's Decision entitled "The Remedy." (e) Post at its place of business in Washington, Missouri, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in any labor organization by discriminating in regard to the hire and tenure of employment of any employee or applicant for employment because of their union activities, or by discriminatorily assigning them duties because of their union activities. WE WILL NOT refuse to bargain collectively in good faith with Local 505, Graphic Arts Interna- tional Union, AFL-CIO-CLC, as the exclusive representative of the employees in the unit described as follows: All full-time and regular part-time mechani- cal employees including offset pressmen, platemakers, strippers and opaquers, camera- men, compositors, pasteup artists, and perforator operators, employed at the Em- ployer's Washington, Missouri, facility, ex- cluding all nonmechanical employees, circu- lation room employees, advertising employ- ees, editorial and business department em- ployees, news department employees, mail- room employees, office clerical employees, professional employees, guards and supervi- sors as defined in the National Labor Relations Act. WE WILL NOT cease providing free coffee, change the work schedules and lunch periods of press employees, or grant wage increases without notifying the above Union and giving it an opportunity to bargain collectively about such matters. WE WILL NOT illegally interrogate employees about their union activities. WE WILL NOT assign employees more onerous or menial work because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. WE WILL offer immediate reemployment to Stephen Frederick and make him whole for any loss of pay suffered as a result of our discrimina- tion against him. WE WILL, upon request, recognize and bargain with Local 505, Graphic Arts International Union, AFL-CIO-CLC, as the exclusive repre- sentative of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agree- ment. WE WILL, upon request, reinstate the free coffee for employees as it existed prior to April 10, 1973. WE WILL, upon request, reinstate the work schedules and lunch periods of press employees as they existed prior to May 7, 1973, and make the press employees whole for any loss they may have MISSOURIAN PUBLISHING COMPANY, INC. 177 suffered as a result of this change as provided in the Board's Decision and Order. AFL-CIO-CLC, at all times material has been a labor organization within the meaning of Section 2(5) of the Act. MISSOURIAN PUBLISHING COMPANY, INC. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at St . Louis, Missouri, May 6 through 8, 1974. The complaint, dated April 2, 1974, based on charges filed October 3, 1973, in Case 14-CA-7611 and December 12, 1973, in Case 14-CA-7713, was issued by the Regional Director for Region 14 (St. Louis , Missouri) on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices by various specified course of conduct, including its failure to bargain with Local 505, Graphic Arts International Union, AFL-CIO-CLC, herein called the Union, as the bargain- ing agent of the majority of its employees in an appropriate unit, by discriminatorily assigning duties to its employee Elmer Holtgreve and by constructively discharging its employee Stephen Frderick, all in violation of Section 8(axl),(3), and (5) of the Act. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Missouri. At all times material Respondent has maintained its principal office and place of business in Washington , Missouri, where it has been engaged in the publication, printing, sale, and distribution of a daily newspaper. During the calendar year 1973, which is a representative period, Respondent held membership in, and subscribed to, interstate news services, published nationally syndicated features, adver- tised national brand products, and in the course and conduct of its business operations , derived gross revenues in excess of $200,000. During the same period Respondent purchased goods and services from suppliers located outside the State of Missouri valued in excess of $5,000, which goods and services were delivered to it in the State of Missouri. At all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Local 505, Graphic Arts International Union, III. THE UNFAIR LABOR PRACTICES The Missourian Publishing Company is a newspaper printing and publishing company located in Washington, Missouri, which publishes two weekly newspapers, The Missourian and The Citizen, and prints approximately 20 other weekly newspapers for other publishers. The supervi- sors of the Company are Jim Miller, Sr. (publisher), Bill Miller (editor), Tom Miller (advertising manager), John Miller (production manager) and Ken Strubberg (fore- man). Another Miller, Jim, Junior, also works for Respon- dent. John and Tom Miller were the only witnesses to testify on behalf of Respondent. The Union's organizing effort began in January 1973 , and resulted in a certification on April 6, 1973. Admittedly the Company was opposed to the organization of its employees. Negotiations began on May 10 and totaled 18 meetings as of the time of the hearing (a year later) without a contract having been reached. The complaint alleges that during this period certain 8(axl) incidents occurred; also alleged was the constructive discharge of union leader Stephen Frederick, the discriminatory assignment of work to union supporter Elmer Holtgreve, and a refusal to bargain by unilateral action regarding the employees wages, hours, and working conditions, and by bargaining in bad faith with no intention of entering into a contract. A. Interference, Restraint, and Coercion Michael Halley first worked for Respondent in August 1973. On Friday, April 27, 1974, he gave Respondent 2 weeks' notice that he was leaving. According to his testimony, in his hiring interview Tom Miller told him there was a union but that there was no contract yet and that he doubted they would go on strike. In any event, Miller asked him if he "would be willing to cross the picket line." Halley said he would. Toward the end of the interview Bill Miller came in and said "Hi." As he left Bill asked Tom whether he had told Halley about the union situation. Tom said "Yes" and that Halley would be "loyal and ... on their side." Bill said, "That's good, we need loyal employees." When he started work Halley was given a tour of the plant by Tom Miller. During this tour Miller said something about there being several union supporters among the employees that he should not associate with. Knowing that Stephen Frederick was involved with the Union, Halley mentioned his name. Tom Miller said, "Yes, Steve." Halley also testified about a conversation with Tom Miller in late afternoon in Tom's office on September 27, 1973. He was called in on the intercom . Miller asked him how he liked his job-whether he had any questions or complaints. He also asked Halley if the Union had been "pressuring" him or asking him any questions . He also asked Halley if he knew what the Union was doing. Halley told Miller that he had heard that the Union was planning on a strike around Christmas time as being "the roughest 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time of the year for ads and typesetters." Miller also wanted to know what the employee complaints were. In their discussion of the Union several names came up. Halley told Miller that Elmer Holtgreve was very active in the Union. Miller seemed "sort of amazed" at this information but did not say anything. Either at this time or on another occasion Halley asked Miller if he would hold it against him if he joined the Union. Miller said "No" it was Halley's privilege to join, but he added "That the Union wasn't right and there was no way they were going to get established in the Missourian." i About these matters Tom Miller testified as follows on direct: In his hiring interview with Halley he told Halley that Respondent was negotiating with the Union and that no contract had been signed, but added, "But we're still working." He denied asking Halley if he would cross a picket line in the event of a strike. Asked if there was any talk about a picket line he answered, "No, not of a picket line, not that I can remember." Miller also denied telling Halley during his initial tour of the plant not to associate with certain employees. He admitted asking Halley in the September 27 interview whether the Union was putting any pressure on him. He also admitted that in this conversation regarding the Union, Halley talked about some of the other employees, and "what was going on and things like that." But he denied telling Halley that the Union would not get a contract or get established. According to him he did tell Halley that the Union "wouldn't get what they were asking for.,, On cross, Miller testified that nothing was said in Halley's hiring interview about a union contract being signed or about the difficulty in reaching a contract. Asked if he cared "one way or the other" if Halley joined the Union he answered, "Not really." I credit Halley's version of the foregoing. Gary Tobben, another former employee, testified that in mid-August Tom Miller came up to his desk and said, "Gary, I don't know if you know it or not but Steve Frederick and them are saying something about there might be a strike . . . would you be on our side if the strike occurred?" Tobben said he did not know and Miller said, "You are a good worker and we'd like to have you on our side." According to Tobben, Miller also said something about a picket line and there always being work coupled with another comment about appreciation for being on Respondent's side. In his direct testimony Miller admitted the essentials of the foregoing but denied asking Tobben not to cross the picket line. I credit Tobben. David Jasper testified that in early May, on a Monday morning, Foreman Ken Strubberg asked him if he was paying dues to the Union. Caught by surprise Jasper did not answer immediately and Strubberg repeated his question. Finally Jasper told Strubberg he could not answer and that he would have to ask Frederick if he wanted to know. Strubberg did not testify. I credit Jasper. The following day, according to Jasper, he was called upstairs to the conference room where he was confronted by John Miller and Jim Miller, Sr. There he was accused of engaging in a slowdown the night before and told that if he "didn't like the way things were run around there" he could leave. John Miller said, "Oh, the hell with it, bust your ass off going out getting job work, and this is what you get for it." Jim said, "Yeah, the hell with it, I'm not going out and getting anymore." At this point apparently one of the Millers pointed toward St. Louis (location of the union headquarters) and said, "That place down there doesn't pay your wages, we do." Jasper said, yes, he understood that. Miller then said that if Jasper did not "like the way things were run" and if he thought he could "find that bed [of ] roses" he should leave. Elmer Holtgreve testified credibly that in late April, Jim Miller, Sr., told Holtgreve that he was doing his union talking on company time and if he ever caught him at it he would let him go. He further stated that it was against the law to talk about union business on company time. The foregoing interrogation by Tom Miller of Halley and Tobben and of Jasper by Strubberg I find violated Section 8(a)(1) of the Act. B. Discrimination Stephen Frederick was employed by Respondent as a cameraman from April 1963 to August 29, 1973. There is no question that he was the Union's chief instigator and generally accepted not only among the employees but by Respondent as the leader of the Union among the employees? Frederick was the only employee to partici- pate at any time in the contract negotiations. However, because it was felt his presence in the negotiations was creating some animosity on the part of company represent- atives his function as an employee bargaining representa- tive was discontinued after a few meetings.3 At one of the negotiations when the company lawyer, Robert Vining, stepped out of the room for a minute or two, John Miller directed a question to Frederick about what the employees' complaints were and why the Union was there. Frederick declined to answer. Union Represent- ative Creel asked if Frederick minded if he answered Miller and told the latter "That he had to be a rotten bastard to work for." Creel also told Miller that the Union had been certified as bargaining agent and that was why they were there. Miller replied that Respondent needed nobody from St. Louis to tell them how to operate the business. At a company-called meeting of employees to discuss the union campaign, Bill Miller stated that the Company's insurance program was a good one and that to his knowledge (looking directly at Frederick who had made complaints about the insurance program to his foreman) only one employee complaint had been made about it. According to Frederick, right after the election Respon- dent embarked on a campaign of surveillance, harassment, and reprimands of him and other union supporters. He cited an occasion that occurred on May 7 when he and Darrell Potthast were working late. The job they were doing took longer than usual (due to its volume) and they I Nowhere in Halley's affidavit was there any allusion to this last 3 All during Frederick's tenure as an employee negotiating representa- comment by Miller . live, according to his testimony, at the meetings "one of the Millers would 2 Tom Miller so testified usually sit there and stare at [him 1 as best they could." MISSOURIAN PUBLISHING COMPANY, INC. were accused of stalling by John Miller who had remained in the plant most of the evening. The following day Frederick and Potthast were called to the office of Jim Miller, Sr., where they were again accused of deliberately making mistakes and stalling and where Frederick was told by Miller that if he was not happy he should leave. On another occasion after the election Frederick was again called in by Miller Senior, and reprimanded regarding a mistake on a General Grocer job. On this occasion Miller told Frederick that he "could be gotten rid of" and that Respondent was "keeping a file" on him and two other unnamed employees' mistakes. Frederick claimed to have been reprimanded four or five times more after the election, most occurring right after negotiation meetings and all somewhat of a pattern. He was told that no one liked him, he had no friends and asked "why didn't [heI leave." In contrast to all this in the 10 years before the election Frederick had received less than an average of one reprimand a year. And on those occasions Frederick was merely informed of his mistake and told to "watch it a little closer" or something like that. Frederick also testified credibly and without denial about an incident that occurred between him and Jim Miller, Jr. Frederick had put some pictures in an envelope to file in the darkroom. Bill Miller wanted them and told Frederick to go get them, explaining that they did not belong in that envelope. When Frederick, outside the darkroom, asked Jim Junior, for the envelope the latter threw it at Frederick hitting him in the face exclaiming, "Stupid son-of-a-bitch can't do a simple job like this." The impact of the envelope caused a blood blister on Frederick's nose and the incident so upset him that he told his foreman he was going home and that he might not be back that afternoon. The foreman said, "O.K." The following day John and Jim Miller , Sr., called Frederick into the office where he was asked why he took off. He told them he did not feel well and they wanted to know if he had seen a doctor. He said no. Some other remarks were made and Frederick said that he was the one that got hit. John Miller replied that "nobody got hit." At this time, as usual, the comment was made to Frederick that if he was not satisfied why did he not leave. As the immediate result of this incident Frederick called Union Representative Creel and asked Creel to get him another job, "any job," because he felt he could no longer take the "pressure" he was under. On August 28 he told Bill and Jim Miller, Jr., he was leaving and would give any kind of notice Respondent wanted. Bill (who "seemed to be a little unsure" as to what Frederick had said and asked him to repeat it) said no notice was necessary . Jim Junior said nothing and simply "covered a smile." There was no denial of the foregoing . I find that Frederick's position was made untenable for him by Respondent with the purpose in mind that he leave Respondent's employment and that Respondent's actions in this regard was in retaliation for Frederick's union activity. This constitutes constructive discharge in violation of Section 8(a)(3) of the Act. Mason Industries, Inc., 212 4 This claim of being a supervisor is at odds with Respondent's contention that the reason he was given a variety of menial tasks for a period of months after the election was in part because younger and newer 179 NLRB 505 (1974); W. T. Grant Company, 195 NLRB 1000 (1972). Elmer Holtgreve had 18 years' tenure with Respondent, the last 7 of which he was engaged primarily in pasteup and markup work. He was an active union supporter participating with Frederick in getting the Union started and having convinced a number of female employees in the pasteup department to join. When he voted in the election March 29, the Company challenged him as being a supervisor.4 This fact along with the small size of the plant and the community support the inference, which I draw, that Holtgreve's union advocacy was known to Respon- dent before the election. In any event, it is clear that after the election such was the case in view of the warning Holtgreve got about talking union on the job as noted supra. As with Frederick, Respondent's attitude and treatment toward Holtgreve changed after the election. Prior to the election when Holtgreve made a mistake it was merely mentioned to him in the work area by one of the Millers in an informal way. In sharp contrast, about a month after the election Holtgreve was called into Jim Senior's office where he was presented with a formal written reprimand. In this connection it should be noted that the practice of giving out written reprimands did not begin until after the election. In late July after Holtgreve returned from his vacation he was informed that Gary Tobben would assume his markup duties. Nonetheless, because Tobben made it clear to Respondent that he did not feel adequate to markup on the Fenton paper, Holtgreve was retained on that task. According to Tobben's testimony Holtgreve was much better than he on markup due to Holtgreve's long experience. Tobben also testified that Holtgreve did better pasteup work. Employee Kleekamp, called by the General Counsel, testified that from her proofreading duties she concluded that Holtgreve did a better job and made less mistakes than she or Tobben. Kleekamp also testified that Holtgreve had trained her to do pasteup work and that whenever she had a problem or needed advice she would go to Holtgreve. On one occasion during this period after Holtgreve's vacation, according to Kleekamp's testimony, Kleekamp was assigned the classified page to do which Holtgreve normally did. In his place Holtgreve was assigned to do some painting on the first floor. It turned out that Kleekamp did not know how to do the job and Tobben eventually did it. Tobben testified that on other occasions as soon as Holtgreve was sent downstairs to do painting jobs or other menial tasks, work would be brought up in the pasteup department resulting in an "overload" in that department. Besides painting Holtgreve was assigned to cut and fold and collate materials. He also was utilized during this period to do bagging and mailing. Besides labeling and addressing this required lifting heavy mail sacks-a duty more suited to a younger man than Holtgreve. employees (who looked to him for guidance , incidentally) were more competent than he. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent explained the foregoing as follows: On April 26 Holtgreve was reprimanded in writing about a mistake he had made on the Ashley account costing Respondent $400. The reprimand stated that this was the second costly mistake by Holtgreve since March 5 and threatened him with disciplinary action including discharge for "one more mistake of this character." When Holtgreve went on vacation some of his markup work was given to Tobben. Tom Miller decided that he liked Tobben's work better than Holtgreve's and deter- mined to give some of it to Tobben who welcomed the added responsibility. Nonetheless, Holtgreve kept the Fenton paper and did some pasteup devoting full time to such activities "when . . . needed." But due to an ensuing slack period caused by a paper shortages Holtgreve was assigned other duties, on jobs like painting, working "on the cutter and . . . the folder and things like these." The reason pasteup and markup work was given to others during this period rather than to Holtgreve was because the latter "couldn't do hand lettering" and was experienced in the various other duties being assigned to him. In addition to the foregoing, Respondent had received complaints from the post office about improper mailing procedures and here too Holtgreve's experience was needed to correct the problem. In summary Respondent denied that Holt- greve's union activities played any part in its 5-month change in duties .6 Considering that for several years prior to the advent of the Union no question was ever raised as to Holtgreve's lack of lettering ability or artistic training in the perform- ance of his work; that he was the second highest paid (along with Frederick) of some 21 employees in the unit and was used to train new employees; and that some 5 months after his duties had been changed he was returned to his original routines, I am convinced and find, as alleged in the complaint, that Respondent's treatment of him was discriminatory within the meaning of Section 8(aX3) of the Act. C. Refusal to Bargain On April 6, 1973, the Union was certified as the collective-bargaining agent of a unit of Respondent's employees comprised of all full-time and regular part-time mechanical employees , including offset pressmen , plate- makers, strippers and opaquers, cameramen, compositors, pasteup artists, and perforator operators, employed at employer's Washington, Missouri, facility, excluding all nonmechanical employees , circulation room employees, advertising employees, editorial and business department employees, news department employees, mailroom em- ployees, office clerical employees, professional employees, guards and supervisors as defined in the Act. D. Unilateral Action For years prior to the election Respondent had provided 6 In August, according to Respondent's oral testimony (no business records were offered), Respondent cut the size of its paper four to eight pages by cutting out some features, using smaller type and asking advertisers "to hold back ... the size of their ads . . . as much as possible." Respondent even turned down circular jobs and job printing fell off. its employees with free coffee. Within days after the certification Respondent discontinued this practice without word to the Union, installing a coffee vending machine requiring the employees to pay for their own coffee. A few weeks later without notice to the Union, Respondent unilaterally announced a change in the work schedule of the press employees. Prior to May 1973 the pressroom employees had worked alternate long and short weeks. There was some variance in the hours each employee worked but basically in a long week a pressroom employee would come to work in the morning at approximately 7:30 on Monday and Tuesday and remain at work into the evening until the newspapers were completed. On an employee's short week the employee would come in at the regular starting time and leave at 4:30 or 5 p.m. On Wednesday, Thursday and Friday, the press employees worked a regular 8-hour day in both their long and short week. But in early May the press employees' schedules were changed so that they worked the same number of hours in each week. There was no longer a long and short week. As a result of the change in the working schedule the employees lost several hours per week as compared to their previous schedule. In addition to the hours lost by David Jasper as a result of this change, his previous arrangement with Respondent for a 1-1 /2-hour lunch period permitting him to attend a class now left him with a large gap in the middle of the day. In addition to the foregoing the employees were required to eat their lunches at a specified time while previously they had always had relative discretion as to the time they ate. According to his testimony, which I credit, these things were brought to Respondent's attention in the first negotiating session by Union Representative Creel, who pointed out to Respondent that their unilateral actions were putting the start of the bargaining "under a little bit of strain." Regardless what discussions took place about these matters at that time or in subsequent meetings,7 it is clear and I find that by taking the actions it did without notice to the Union or affording the opportunity of discussion about them Respondent violated its collective- bargaining obligation in violation of Section 8(a)(5) of the Act. N.L.RB. v. Benne Katz, etc. d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962); Abingdon Nursing Center, 197 NLRB 781 (1972). In his complaint the General Counsel alleged another illegal unilateral action by Respondent-namely, the granting of wage increases to employees after the certifica- tion without word to the Union. It was established that 11 employees were granted wage increases, 6 of them merit increases. The evidence shows that Respondent's practice was to give all new employees a probationary increase and to give others periodic merit increases. The evidence shows that 5 of the 11 increases were probationary and the rest merit increases. The evidence also shows that most if not all of the merit increases were 15 cents an hour. Since this s By November apparently all of the above alleged discriminatory conduct was discontinued by Respondent and Holtgreve returned to his routine of some years previous. r There is some dispute about this . But I find that at no time did the Union waive any of its legal rights regarding these unilateral actions. MISSOURIAN PUBLISHING COMPANY, INC. 181 amount exceeds any wage offer made by Respondent in negotiations by 5 cents and the increases were granted at times not customary for merit increases, I find them to have been made in derogation of the Union's bargaining rights and in violation of Section 8(aX5). E. Surface Bargaining As noted, negotiations began with a meeting on May 10, 1973, and carried on for an additional 17 meetings spreading over a year's time without a contract being agreed upon. In the first five meetings Respondent was represented by Attorney Robert Vining. During this period language was agreed upon on various noneconomic terms which was reflected in a typed memo given to Union Representative Creel by Vining. After the fifth meeting, Vining suggested a Federal mediator explaining that he did not think negotiations were "going to go any further .. . because the Millers are not about to move off the position they are on and maybe a federal mediator would have more of an impression on them than I'm having." Shortly after this Creel got a call from Vining informing Creel that Vining's services had been terminated and that Michael Tannler had been retained to represent Respondent. Creel asked "what in the world happened?" Vining answered, "I guess we were getting too close to a contract." Thereafter on August 16 meetings began with Tannler and a Federal mediator in the pictures In the August 16 meeting Creel asked Tannler where they would begin. Tannler said he did not know . Creel said, "Well, you know, we've got a package that is pretty well on the road." At which point he produced the memo given him by Vining. This took the Millers by surprise,9 and Bill Miller said, "We didn't agree to anything," to which Creel asked, "Well, are you denying that we have an agreement to this point?" Tannler then asked to see the paper. A discussion then ensued of economic matters. Tannler offered a wage increase of 10 cents an hour on ratification and 10 cents 6 months later for each year of a 3-year contract. Immediate- ly the Millers protested, "We didn't agree to that, hold it." The Company then caucused and on their return Tannler apologized for not having the information correct and the meeting broke up on that note. There is no question that Respondent entered into negotiations .with an unalterable opposition to any form of union security. The editorial policy of Respondent was such and Jim Miller, Sr., was active in a national "Right to Work" organization. According to the undenied and credited testimony of Creel, in the August 16 meeting Bill Miller emphatically said that the Union would "never get a union shop clause or dues checkoff ." As a result Respon- dent adamantly rejected any form of union security or checkoff throughout the negotiations. Respondent also was opposed to a strict seniority clause. In the October 11 meeting the Union again proposed a strict seniority clause in place of maintenance of member- ship or a union shop. Respondent would not agree to strict s It was at Creel's request that the mediator was there. a They maintained that this was the first they had seen of Vming's memo. to In January 1973 the average wage increase granted was 23 cents, in 1972 two increases were granted of 15 cents each . No Respondent offer was seniority. However, according to Creel's undenied and credited testimony, agreement was reached upon a seniori- ty clause as follows: Seniority is defined as length of continuous services with the employer. Where competency, skill, and ability of the employees are relatively equal, seniority shall be the controlling consideration in reduction of force or reemployment. Nonetheless in a subsequent meeting Respondent repudiat- ed this understanding saying that they could not agree to it. From October on the negotiations centered on economic matters with no progress being made. The Company offered essentially nothing more than it was currently providing for. Indeed, with respect to wages the Compa- ny's offers were less than it had given the employees in each of the 2 preceding years. Respondent's refusal to consider any form of union security, its repudiation of matters previously agreed upon, its insistence on an economic progression in wages less than it had previously been following,10 all viewed in, the background of its unilateral actions, its discrimination against • Holtgreve and Frederick and its other acts of interference, restraint, and coercion against its employees convince me that (regardless of any good faith on the part of its attorneys) the Millers had no intention of entering into a contract with the Union and that from May 10, 1973, on they were not bargaining in good faith as required by the Act. I so find. IV. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to restore as nearly as possible the situation that would have existed absent the unfair labor practices. Having found that Respondent discriminatorily assigned work to Elmer Holtgreve and constructively discharged Stephen Frederick in violation of Section 8(a)(3) of the Act, I shall recommend that it offer reemployment immediately to Frederick and make him whole for any loss he may have suffered as a result of the discrimination against him11 by paying him an amount equal to that which he would have earned in Respondent's employ less his net earnings elsewhere during the interim period to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and N.LRB. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with interest as provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that since April 11, 1973, Respondent has refused and is refusing to bargain collectively in good faith with the Union as the representative of the employees in an appropriate unit, I shall also recommend that upon request as high. 11 Since Holtgreve was not reduced in pay as a result of the discrimination against him and was restored to his normal duties as of the hearing, no make-whole order is recommended as to him. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent so bargain and if an understanding is reached embody such understanding in a signed agreement. In view of the character of the unfair labor practices committed, I shall also recommend that Respondent be ordered to cease and desist from infringing "in any manner" upon the rights guaranteed its employees by Section 7 of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation of Respondent described in section I, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent, Missourian Publishing Company, Inc., at all times material has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 505, Graphic Arts International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily assigning duties to Elmer Holt- greve and constructively discharging Stephen Frederick because of their union activities Respondent has discrimi- nated and is discriminating against them in regard to their hire or tenure of employment, thereby discouraging membership in a labor organization within the meaning of Section 8(a)(3) of the Act. 4. All full-time and regular part-time mechanical employees of Respondent including offset pressmen, platemakers, strippers and opaquers, cameramen, compos- itors, pasteup artists , and perforator operators, employed at Respondent's Washington, Missouri, facility, excluding all nonmechanical employees, circulation room employees, advertising employees, editorial and business department employees, news department employees, mailroom em- ployees, office clerical employees, professional employees, guards and supervisors as defined in the Act constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. Local 505, Graphic Arts International Union, AFL-CIO-CLC, at all times material herein has represent- ed a majority of employees in the above appropriate unit within the meaning of Section 9(a) of the Act. 6. Since April 10, 1973, Respondent has failed and refused to bargain collectively in good faith with the Union in violation of Section 8(aX5) of the Act. 7. By the foregoing conduct and by illegally interrogat- ing employees regarding their union activity and support, Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(axl) of the Act. [Recommended Order omitted from publication.]