Little Rock Mailers Union No. 89

LITTLE ROCK MAILERS UNION NO. 89 Little Rock Mailers Union No. 89 and Little Rock Newspapers, Inc. Case 26-CB-924 July 30, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On the basis of a charge filed by Little Rock Newspapers, Inc., hereafter referred to as the Em- ployer, on August 29, 1974, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint against Little Rock Mailers Union No. 89, hereafter referred to as Respondent, on December 6, 1974. The com- plaint alleges that, since on or about June 24, 1974, Respondent has violated Section 8(b)(3) of the Act by refusing to bargain with the Employer on all is- sues involving wages, rates of pay, hours of employ- ment, and other terms and conditions of employment and, instead, insisted that bargaining between the Employer and Respondent be limited only to wages and pensions. Respondent filed an answer to the complaint on December 17, 1974, in which it denied the commission of any unfair labor practices. On February 5, 1975, the parties entered into a stipulation to transfer this proceeding to the Board wherein they agreed that certain documents would constitute the entire record herein,' waived all inter- mediate proceedings before an Administrative Law Judge, and submitted this case directly to the Board for it to make findings of fact and conclusions of law and the issuance of its Decision and Order. On Feb- ruary 20, 1975, the Board approved the stipulation and set a date for the parties to file their briefs. Thereafter, briefs were filed by all the parties. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record herein, as stipulated to by the parties, as well as their briefs, and makes the following findings of fact and conclu- sions of law: 1 The parties agreed that the charge, complaint, answer to the complaint, and the stipulation of facts, including exhibits attached thereto , constitute the entire record in this case. The Employer subsequently filed a motion to reopen the record to receive a document entitled "Assignment of Intangible Assets." In view of our decision herein, we find it unnecessary to consider this document and here- by deny the Employer's motion. a Sec. I of the agreement provided , inter aha, that: "... either party may, upon at least 60 days notice to the other party, prior to the annual anniver- sary date of the agreement, open negotiations for changes in wage rates and/or pensions only." 1. THE BUSINESS OF THE EMPLOYER 707 The Employer, Little Rock Newspapers, Inc., was organized as a corporation on March 5, 1974, and, since the said date, has been at all times material herein a corporation doing business in the State of Arkansas with an office and place of business locat- ed in Little Rock, Arkansas, where it is engaged in the printing and sale of a daily newspaper. During the past 12 months, the Employer, in the course and conduct of its business operations, received gross rev- enues in excess of $200,000 from its publishing oper- ations, and during the same period of time the Em- ployer purchased and received at its Little Rock, Arkansas, location goods and materials valued in ex- cess of $50,000, directly from points located outside the State of Arkansas. The parties stipulated, and we find, that the Employer is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts The Arkansas Democrat is a newspaper published in Little Rock, Arkansas, from 1926 to the present. Prior to 1968, it was owned by K. A. Engel, and thereafter, until March 15, 1974, it was managed and operated by trustees under the last will and testament of K. A. Engel. Respondent has been the recognized bargaining agent of the mailroom employees of the Arkansas Democrat since 1938. The latest collective- bargaining agreement between the Arkansas Demo- crat Company and Respondent was executed on April 12, 1973, and was by its terms effective from February 27, 1973, to February 26, 1976. This agree- ment permitted an annual reopener on wages and pensions? On December 13, 1973, Respondent served a writ- ten notice on the Arkansas Democrat pursuant to the above-described agreement, seeking to open "negoti- ations for changes in wage rates and/or pensions only." Thereafter, representatives of the Arkansas 219 NLRB No. 84 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Democrat and Respondent met on February 19, 1974,' to consider Respondent's proposals. The meet- ing was recessed after the Arkansas Democrat asked Respondent to submit another proposal. In accor- dance with this request, Respondent prepared and submitted another proposal on wages and pension items which was received on March 4. On March 4, it was announced in an article on the front page of the Arkansas Democrat that the Em- ployer had purchased all the assets of that newspa- per, except various stocks and bonds. On March 15, the Arkansas Democrat conveyed by warranty deed to the Employer the real estate, including the build- ings, used in the production of the newspaper. On that same date the Employer also received from the Arkansas Democrat all of the machinery and equip- ment, furniture and fixtures, automobiles and trucks, printing press, and related equipment, as well as the circulation structure, name, and goodwill of the newspaper. The Arkansas Democrat did not terminate or lay off any of the employees at the time of the sale and they experienced no hiatus in their employment. When the Employer took over, all of the employees continued to report to work and continued to work under the same wages, hours, and working condi- tions, with the exception of the assistant mailroom foreman who received an increase in pay. Since March 15, the Employer has operated the newspaper with the same line supervisors and the same employ- ees, including the mailroom employees represented by Respondent. Operations have continued in the same building, with the same equipment and machin- ery, and under the same name (Arkansas Democrat), without interruption 4 On March 18, Respondent's president, Junior D. Roberts, and the chairman of Respondent's scale committee, James H. Morris, met with Walter Huss- man, Jr., the Employer's president and owner. Huss- man told Roberts during this meeting that the Em- ployer did not assume any of the obligations of any labor agreement existing between the Arkansas Democrat Company and Respondent. Hussman fur- ther told Roberts, however, that the Employer would observe its duty to bargain with Respondent on wag- es, hours, working conditions, and other conditions of employment affecting members of the bargaining unit in the mailroom. On March 19, the Employer issued a letter to Re- spondent and to other unions representing its em- ployees, informing them that the Employer was not bound by the substantive terms of the labor agree- ments with Arkansas Democrat, but assured them the present wages, hours, and working conditions would be maintained until new terms were negotiat- ed. On June 11, Respondent sent a letter to the Em- ployer which, inter alia, stated that Respondent would like to resume the "opener" negotiations as commenced and carried on with the Arkansas Dem- ocrat Company prior to March 4. Thereafter, Respondent and the Employer met on three separate occasions in June and August. The Employer took the position at these meetings that it was not bound by the substantive terms of the agree- ment between Respondent and the predecessor Ar- kansas Democrat. Respondent claimed that the Em- ployer was bound by the agreement with the predecessor and that, therefore, negotiations should be restricted to the wage and pension reopener clause. At the last meeting between the Employer and Re- spondent on August 29, the Employer's representa- tive asked Respondent's representative if Respon- dent was "willing to bargain about and reach agreement on all issues involving wages, hours, and working conditions for employees in the appropriate unit," i.e., the mailroom. Respondent's representative replied that Respondent was willing to bargain on wages and pensions, in accordance with the existing collective-bargaining agreement, and specifically stated that it declined to bargain on any issues except the opener on wages and pensions. The meeting end- ed at this juncture and the charges in this case were filed that same day. There have been no subsequent negotiation sessions to the date of the stipulation, February 5, 1975.5 B. Contentions of the Parties General Counsel and the Employer contend that Respondent's refusal to bargain with the Employer on all issues involving wages, hours, and other terms and conditions of employment affecting the mail- room employees represented by Respondent and its insistence, instead, that negotiations be limited to wages and pensions only violated Section 8(b)(3) of the Act. They further contend that the Employer has continuously recognized its duty to bargain with Re- spondent, but that the Employer did not assume any obligations under the collective-bargaining agree- ment between Respondent and the Arkansas Demo- crat Company. Finally, they contend that this case is 3 S On or about December 17, Respondent again inquired as to the All dates hereafter are 1974, unless otherwise indicated. Employer's willingness to bargain with respect to wages and pensions only. The Employer made a number of changes in the management of the The Employer responded by letter dated December 26 to the effect that newspaper shortly after March 15, but none of these changes directly affect- Respondent's position was a confirmation of its earlier position which re- ed the mailroom employees. suited in the deadlock in negotiations on August 29. LITTLE ROCK MAILERS UNION NO. 89 709 controlled by N. L. R. B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). The Employer separately argues that Respondent's refusal to bargain is predicated upon a frivolous de- fense, warranting extraordinary remedial relief. Respondent essentially contends that the Employ- er is a successor-employer to the Arkansas Democrat Company; that as such it is obligated to honor the wage and pension opener provision of Respondent's contract with the predecessor; and that, in the event an impasse was reached on this matter, the Employer was obligated to proceed to arbitration on the wage and pension provision. In support of its position, Re- spondent relies principally on Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board Hotel & Restaurant Employees & Bartenders, International Union, AFL-CIO, 417 U.S. 249 (1974). C. Discussion and Conclusions The complaint alleges in effect that, on and after June 24, Respondent refused to bargain with the Em- ployer on all issues affecting the wages, hours, and other terms and conditions of employment of the mailroom employees and, instead, insisted that the negotiations be limited only to wages and pensions, in violation of Section 8(b)(3) of the Act. This case turns on whether or not the Employer was bound by the predecessor's contract with Respondent to bar- gain about the wage and pension opener. For the reasons set forth below, we find that the Employer was not bound by the substantive terms of the predecessor's contract with Respondent and that Respondent's conduct here constitutes a violation of Section 8(b)(3) of the Act. In addressing the merits, we would first point out that there is no dispute concerning a number of fac- tual and legal issues generally present in cases involv- ing a refusal-to-bargain allegation which arises in the context of a successor question .6 In this connection, the parties' stipulation shows that the Employer is a successor-employer to the Arkansas Democrat. The Employer has continued to operate the same busi- ness (a newspaper) with the same employees (includ- ing the mailroom employees represented by Respon- dent) and the same immediate supervisors, in the 6 For example, these cases generally involve issues related to a new employer's status as a "successor-employer" to the predecessor, the new employer's plan to retain a majority of the predecessor's employees, and the obligation to bargain over initial terms and conditions of employment where the new employer has imposed less advantageous terms and condi- tions at the time of the takeover. See United Maintenance & Manufacturing Co., Inc., 214 NLRB No. 31 (1974); Anita Shops, Inc., d/b/a Arden's, 211 NLRB 501 (1974); Collinge Enterprises, Inc., d/b/a Jerry's Finer Foods, 210 NLRB 52 (1974); and Spruce Up Corporation, 209 NLRB 194 (1974). As described elsewhere in this decision, we are not faced with these issues here. same building, with the same equipment and machin- ery, under the same name (Arkansas Democrat), without interruption. Accordingly, under all the cir- cumstances here, we find that the Employer is the legal successor to the Arkansas Democrat. The parties' stipulation also shows that the Em- ployer has retained all the mailroom employees and that the Employer has continued to recognize Re- spondent as the representative of the mailroom em- ployees. Furthermore, the Employer has not unilater- ally changed the terms and conditions of the employment of the mailroom employees but instead informed Respondent that the existing wages, hours, and working conditions would be maintained until new terms were negotiated. Finally, there is no dispute as to the factual allega- tions that Respondent did insist that negotiations be limited only to wages and pensions and that Respon- dent did refuse to bargain with the Employer on all other bargainable subjects affecting the mailroom employees. We take our guidance in this case from the Su- preme Court's decision in N.L.R.B. v. Burns Interna- tional Security Services, Inc., 406 U.S. 272 (1972). There, the Supreme Court concluded, inter alia, that a new employer (Burns) did not violate its bargaining obligation under the Act by refusing to honor the collective bargaining agreement negotiated by its predecessor (Wackenhut). In so concluding, the Su- preme Court found that to impose the predecessor's collective-bargaining agreement on a successor-em- ployer would be contrary to the policy of free collec- tive bargaining reflected in Section 8(d) of the Act and the principles enunciated in H. K. Porter Co. v. N. L. R. B., 397 U.S. 99 (1970). The assumption of the predecessor's collective- bargaining agreement is precisely the obligation that Respondent has attempted here to impose on the Employer. Thus, Respondent repeatedly sought to limit negotiations with the Employer to the wage and pension opener provided for in its contract with the predecessor. Concomitantly, Respondent refused to bargain about all other issues affecting the mailroom employees and, in effect, thereby sought to force the Employer to honor those terms and conditions as provided for in the predecessor's contract. But it is plain that the Employer has neither assumed nor agreed to be bound by the predecessor's contract with Respondent. In fact, the Employer expressly re- jected the predecessor's contract with Respondent in its purchase agreement. Furthermore, the Employer notified the Union it had not assumed any of the obligations of any labor agreement existing between the predecessor and Respondent and it has taken no action inconsistent with this position. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find no support for Respondent's position in Howard Johnson, supra. There, the U.S. Supreme Court was addressing itself to labor obligations un- der Section 301, related to circumstances under which a new employer will be bound by the griev- ance-arbitration provision in the predecessor's con- tract. The present case does not involve a Section 301 suit; nor does it involve a duty to arbitrate. The in- stant case, instead, involves an unfair labor practice proceeding where the Board is expressly limited by the provisions of Section 8(d)? Nothing in Howard Johnson indicates a disposition on the part of the Su- preme Court to depart from the principles enuncia- ted in H. K. Porter, supra, as applied in the Burns holding that a new employer was not obligated to honor the union's -contract with the predecessor where, as here, the new employer neither assumed nor agreed to be bound by the predecessor's con- tract. Accordingly, under all the circumstances present in this case, we find that the Employer was not obli- gated to bargain solely about the wage and pension opener provided for in the predecessor's contract and that Respondent's refusal to bargain with the Em- ployer about all issues affecting the mailroom em- ployees violated Section 8(b)(3) of the Act. Finally, we find no merit in the Employer's request for extraordinary remedial relief in the circumstances of this case. Normally, litigation expenses are not re- coverable by the charging party in Board proceed- ings even though the public interest is served when the charging party protects its private interests before the Board .8 We have, however, granted such relief in certain instances,9 for reasons further explicated in Heck's, Inc., 215 NLRB No. 142 (1974). In the in- stant case, we note that Respondent agreed to bring this case directly to the Board on a stipulated record. This procedure avoided the imposition of excess liti- gation expenses, and in fact eliminated altogether many litigation costs and expenses, to the parties and the Board and also avoided any unnecessary delay in the resolution of the merits of this case. In these cir- cumstances, we believe the remedies we apply here are suitable and not in conflict with any policies in other like proceedings. IV. REMEDY Having found that Respondent violated Section 8(b)(3) of the Act by refusing to bargain with the Employer on all issues involving the wages, hours, 7 Burns, supra. $ Heck's, Inc, 191 NLRB 886, 889 (1971). Tudee Products, Inc., 194 NLRB 1234, 1236 (1972), Tudee Products, Inc, 196 NLRB 158, 159 (1972). and other terms and conditions of employment of the employees in the bargaining unit composed of the mailroom employees and, instead, insisting that ne- gotiations be limited to wages and pensions only, on and after June 24, 1974, we shall order it to cease and desist therefrom and affirmatively to bargain with the Employer upon request. CONCLUSIONS OF LAW 1. Little Rock Newspapers, Inc., Little Rock, Ar- kansas, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Since 1938 and at all times material herein, Re- spondent has been the recognized representative of the mailroom employees of the Arkansas Democrat newspaper, within the meaning of Section 9(a) of the Act. 4. On and after March 15, 1974, Little Rock Newspapers, Inc., succeeded to the bargaining obli- gation of its predecessor, Arkansas Democrat Com- pany. 5. By refusing to bargain with Little Rock News- papers, Inc., on all issues involving wages, hours, and other terms and conditions of employment, as the exclusive bargaining representative of the mailroom employees, and, instead, insisting that negotiations be limited to wages and pensions only, on and after June 24, 1974, Respondent Little Rock Mailers Union No. 89 violated Section 8(b)(3) of the Act. 6. The foregoing is an unfair labor practice affect- ing commerce within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Little Rock Mailers Union No. 89, its officers, agents, and representatives, shall: 1. Cease and desist from refusing as the collective- bargaining representative of the Employer's mail- room employees to bargain collectively with the Em- ployer by failing or refusing to bargain with the Em- ployer on all issues involving wages, hours, and other terms and conditions of employment and/or by in- sisting that the negotiations with the Employer be limited to wages and pensions only. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request by Little Rock Newspapers, Inc., as the exclusive bargaining representative of the mailroom employees, bargain with respect to wages, LITTLE ROCK MAILERS UNION NO. 89 hours, and other terms and conditions of employ- ment and, if an agreement is reached, embody it in a signed contract. (b) Post at its offices and meeting places in and about Little Rock, Arkansas, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Re- gion 28, after being duly signed by Respondent's au- thorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (c) Forward signed copies of said notice to the Re- gional Director for Region 26 for posting by Little Rock Newspapers, Inc., if willing, at its Little Rock, Arkansas, location where notices to employees are customarily posted. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 10 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 711 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with Little Rock Newspapers. Inc., on all issues involving wages, hours, and other terms and conditions of employment affecting the mail- room employees of Little Rock Newspapers, Inc. WE WILL NOT insist that negotiations with Lit- tle Rock Newspapers, Inc., concerning the unit composed of mailroom employees, be limited to wages and pensions only. WE WILL, upon request, by Little Rock News- papers, Inc., as the exclusive bargaining repre- sentative of the mailroom employees of Little Rock Newspapers, Inc., bargain collectively on all issues involving wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed con- tract. LITTLE ROCK MAILERS UNION No. 89