Newspaper Printing Corp.

NEWSPAPER PRINTING CORP. Newspaper Printing Corporation and Tulsa Typo- graphical Union Local No. 403. Cases 16-CA- 6463 and 16-CA-6669 September 23, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 25, 1977, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Union filed exceptions and supporting briefs, and Respondent filed answering briefs to both the General Counsel and the Union. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consis- tent herewith. The complaint alleged that Respondent violated Section 8(a)(5) and (1) by refusing to agree upon contract language defining the appropriate unit and by unilaterally instituting changes in the absence of a bargaining impasse or not encompassed in its preimpasse bargaining proposals.' The Administra- tive Law Judge found that Respondent's proposed unit-jurisdiction clause sufficiently identified the unit, that Respondent lawfully could insist to impasse on that clause, and that certain unilateral changes were within the scope of the preimpasse proposals. He further found two unilateral changes to be outside the scope of preimpasse bargaining and therefore to have violated the Act. The General Counsel and Union except, inter alia, to the. Administrative Law Judge's finding that insistence on the unit-jurisdiction clause did not violate Section 8(a)(5), to his failure to find that all of the unilateral changes were unlawful, and to his failure to recommend a bargaining order. We find merit in these exceptions. The principal cause of the January 21 impasse was Respondent's jurisdiction-unit proposal, which in- cluded the following language: i The complaint further alleged that Respondent violated Sec. 8(aHX ) by threatening an employee with discharge if he failed to comply with a unilateral change in work rules. The Administrative Law Judge dismissed that allegation. In the absence of exceptions, we adopt the dismissal of that allegation pro forma 2 Columbia Tribune Publishin Co., 201 NLRB 538 (1973) 232 NLRB No. 42 The jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including only those employees engaged in all work which the Employer mayfrom time to time designate to be performed in the Composing Room. It is the express intention of the Employer to accomplish his complete production needs in the manner which he determines to be the most effective and economical method to fulfill the work requirements. [Emphasis supplied.] The Administrative Law Judge analyzed the clause by separating it into three components-definition of the appropriate unit, jurisdiction, and management rights. By this method, he eliminated the manage- ment-rights language allowing Respondent to deter- mine who is in the unit to produce a unit definition as follows: "The ... appropriate unit for collective bargaining is defined as including only those employ- ees engaged in all work . . . in the Composing Room." Although he recognized that even this doctored version of the clause represented a modifi- cation of the existing unit definition, he found it to be a "clarifying change" and therefore within Respon- dent's rights. We disagree with both the method of analysis and the legal conclusions. Respondent's proposed juris- diction-unit clause cannot properly be analyzed by removing the management-rights language. That language is an integral part of the unit definition in that it allows Respondent unilaterally to determine who is in the unit at any given time. The Board does not certify as appropriate a unit where one party has unilateral control over unit scope. Contrary to the Administrative Law Judge's analysis, the holding in Columbia Tribune2 is fully applicable here. In Columbia Tribune, as here, the jurisdiction-unit clause was the major obstacle to agreement in negotiations. The respondent there was found to have precluded good-faith bargaining by refusing to include the traditional jurisdiction-unit clause of prior contracts; both its asserted need for flexibility in changing from hot to cold type and the fact that jurisdiction and unit definition were combined in one clause3 were rejected as defenses. The Columbia Tribune case cannot be distin- guished, as did the Administrative Law Judge, on the basis that the Respondent there refused to accept any unit clause. The jurisdiction-unit clause proposed by Respondent here, when properly analyzed as a whole, is tantamount to a refusal to include a unit ' As in Columbia Tribune, we find the traditional composing room unit as set out in fn. I of the Administrative Law Judge's Decision to be appropriate for the purposes of collective bargaining and further find that neither the appropriateness of the unit nor the Union's representative status is affected by the change from hot to cold type. 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD definition because Respondent retains unfettered discretion to redefine the unit at any time. By insisting on such a clause, Respondent has, like the respondent in Columbia Tribune, failed to fulfill its statutory obligation to bargain in good faith. Moreover, even if the proposed unit-jurisdiction clause did not contain this fatal flaw, as the definition of an existing appropriate unit is not a mandatory subject of bargaining, Respondent can- not lawfully insist to impasse on a modification of the existing clause.4 Consequently, we find Respon- dent's insistence on its proposed jurisdiction-unit clause to be a refusal to bargain in good faith in violation of Section 8(a)(5) of the Act. The Administrative Law Judge found that the parties reached impasse on other items in addition to the jurisdiction-unit clause. Although his finding concerning impasse on these other items is at best tenuous, we find it unnecessary to resolve that issue. We do note, however, that discussion of these other issues continued in bargaining sessions after January 21. The jurisdiction-unit clause was always the focus of discussion and was acknowledged by the parties to be the main obstacle to agreement. Respondent's insistence on its jurisdiction-unit proposal, which we have found to be a refusal to bargain in good faith, precluded a genuine impasse on the other issues. As stated in Douds v. International Longshoremen's Association [N. Y. Shipping Assn.], 241 F.2d 278, 282 (C.A. 2, 1957), "Parties cannot bargain meaningfully about wages or hours or conditions of employment unless they know the unit for bargaining." Therefore, each of the unilateral changes instituted on that date is a further violation of Section 8(a)(5) of the Act. Accordingly, we shall order Respondent to rescind the unilateral changes, make the employees whole for any losses they have suffered because of Respondent's unlawful acts, plus interest as pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation,5 and bargain upon request with the Union. ORDER Pursuant to Section 10(b) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, News- paper Printing Corporation, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: i. Cease and desist from: 4 McQuay -Norrix Manufacturing Compan)y v. N.L.R.B., 116 F.2d 748 (C.A. 7. 1940). 5 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25. 1977. in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. (a) Refusing to bargain collectively in good faith with Tulsa Typographical Union Local No. 403. (b) Unilaterally changing terms and conditions of employment, including preexisting practices regard- ing chapel meetings on company premises, priority hiring, substitute hiring, jury duty, the I.T.U. general laws, reproduction, jurisdiction, management rights, the Joint Standing Committee, the Joint Apprentice- ship Committee, and the I.T.U. negotiated pension plan. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Restore and abide by the preexisting practices regarding chapel meetings on company premises, priority hiring, substitute hiring, jury duty, the I.T.U. general laws, reproduction, jurisdiction, and manage- ment rights; reestablish and permit the functioning of the Joint Apprenticeship Committee and the Joint Standing Committee; and reinstitute the I.T.U. negotiated pension plan, as such matters were applied, operated, and interpreted under the collec- tive-bargaining agreement, and as modified by collective bargaining subsequent to February 2, 1976, and make whole all unit employees for any losses they suffered due to the unilateral changes. (b) Upon request bargain collectively in good faith with Tulsa Typographical Union Local No. 403, as the exclusive representative of its employees in the appropriate bargaining unit as defined in the most recent collective-bargaining agreement, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its Tulsa, Oklahoma, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places within the composing room, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, 6 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." 292 what steps Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT refuse to bargain in good faith with Tulsa Typographical Union Local No. 403. WE WILL NOT unilaterally change terms and conditions of employment, including preexisting practices regarding chapel meetings on company premises, priority hiring, substitute hiring, jury duty, the I.T.U. general laws, reproduction, jurisdiction, management rights, the Joint Stand- ing Committee, the Joint Apprenticeship Com- mittee, and the I.T.U. negotiated pension plan. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL restore and abide by the preexisting practices regarding chapel meetings on company premises, priority hiring, substitute hiring, jury duty, the I.T.U. general laws, reproduction, jurisdiction, and management rights; reestablish and permit the functioning of the Joint Appren- ticeship Committee and the Joint Standing Committee; and reinstate the I.T.U. negotiated pension plan, as such matters were applied, operated, and interpreted under the collective- bargaining agreement, and as modified by collec- tive bargaining subsequent to February 2, 1976, and make whole all unit employees for any losses they suffered due to the unilateral changes, with interest. WE WILL, upon request, bargain collectively in good faith with Tulsa Typographical Union Local No. 403, as the exclusive representative of the employees in the appropriate unit as defined in the most recent collective-bargaining agreement, with respect to wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. NEWSPAPER PRINTING CORPORATION NEWSPAPER PRINTING CORP. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge: Pursuant to notice a hearing with respect to this matter was held before me in Tulsa, Oklahoma, on September 28 and 29, October 12, 13, and 14, and November 15, 16, and 17, 1976. The original charge in Case 16-CA-6463 was filed on February 18, 1976, by Tulsa Typographical Union Local No. 403 (herein called the Union), and a first amended charge was filed by the Union on March 31, 1976. Thereafter, on April 7, 1976, a complaint was issued alleging violations by Newspaper Printing Corporation (herein called Respondent) of Section 8(a)(5) and (I) of the National Labor Relations Act, as amended (herein called the Act). The charge in Case 16-CA6669 was filed on June 28, 1976, by the Union, and alleges an additional 8(a)(5) violation. Thereafter, on August 12, 1976, an order consolidating cases, consolidated complaint and notice of hearing was issued by the Acting Regional Director for Region 16 of the National Labor Relations Board (herein called the Board), the cases being consolidated in order to effectuate the purposes of the Act, and to avoid unneces- sary costs or delay. Respondent's answers, duly filed, deny the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing briefs have been received from the General Counsel, counsel for Respondent, and counsel for the Charging Party. Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following: FINDINGS OF FACT 1. JURIsDICTION Respondent is an Oklahoma corporation engaged in the printing, sale, and distribution of daily newspapers, with its principal place of business located in Tulsa, Oklahoma. In the course and conduct of its business operations Respon- dent annually receives gross revenues in excess of $500,000, and annually ships or distributes newspapers valued in excess of $50,000 directly to points outside the State of Oklahoma. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings are: 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Whether Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to agree upon contractual language describing the unit appropriate for purposes of collective-bargaining, thus precluding the Union from engaging in meaningful collective-bargaining negotiations. 2. Whether Respondent, in violation of Section 8(a)(5) and (1) of the Act, unilaterally instituted changes relating to employees' wages, hours, and working conditions prior to having reached a bargaining impasse with the Union. 3. Whether Respondent, in violation of Section 8(a)(5) and (I) of the Act, unilaterally instituted changes relating to employees' wages, hours, and working conditions not reasonably encompassed by its preimpasse bargaining proposals. B. The Facts 1. Background The Respondent maintains its office, printing facilities, and principal place of business in Tulsa, Oklahoma. It is agent for two competing daily newspaper publishers, the Tulsa Tribune Company and the World Publishing Company, publishers of the Tulsa Tribune, and Tulsa World, respectively; and is responsible for the printing, solicitation of advertising, production, and distribution of both newspapers. Respondent has maintained a collective- bargaining relationship with the Union, representative of Respondent's composing room employees, since 1905.' In addition, Respondent maintains a collective-bargaining relationship with six other unions. The most recent contract between the parties extended from February 1, 1973, to January 31, 1976. On September 16, 1975, Robert L. Melton, president of the Union, sent I The combined unit-jurisdiction provisions contained in the most recently expired collective-bargaining agreement are, in pertinent part, as follows: JURISDI(-I ION Sec. 2. All work which this agreement recognizes to be within the jurisdiction of the Union shall be performed only by journeymen and apprentices. Apprentices may be employed only in accordance with the ratio of apprentices to journeymen provided elsewhere in this agreement. Sec. 3. Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including all composing room work and includes classifications such as hand compositors, typesetting machine operators, makeup men, bank men, proofpress operators, proofreaders, machinists for typesetting machines, operators and machinists on all devices which cast or compose type of slugs, or film, operators of tape perforating machines and recutter units for use in composing or producing type, operators of all phototypesetting machines (such as Fotosetter, Photon, Linofilm. Monophoto, Coxhead Liner. Filmotype, Typro and Hadego) and employees engaged in proofing, waxing and paste makeup with reproduction proofs, process- ing the product of phototypesetting machines, including development and waxing: paste makeup of all type. hand lettered. illustrative, border and decorative material constituting a part of the copy; ruling, photoproofing, correction, alteration and imposition of the paste makeup serving as the completed copy for the camera used in the plate making process. Paste makeup for the camera as used in this paragraph includes all photostats and prints used in offset or letterpress work and includes all photostats and positive proofs of illustrations (such as Velox) where positive proofs can be supplied without sacrifice of quality or duplication of efforts. The employer shall make no other the following letter to Kenneth Fleming, vice president and general manager of Respondent: You are hereby notified that as of January 31, 1976, our current collective bargaining agreement will expire. Negotiations should begin immediately so that a new agreement may be consummated by or before this January 31, 1976, expiration date. We hereby offer to meet with you for the purpose of negotiating an agreement with respect to wages, hours and other terms and conditions of employment. On October 17, 1975, Fleming replied as follows: You are hereby notified that as of January 31, 1976, any agreement - written, oral, or implied - or any conditions of employment or other understanding, including any claimed custom or past practice, now in effect between Newspaper Printing Corporation and Tulsa Typographical Union No. 403 will terminate.2 We hereby offer to meet with you for the purpose of negotiating an Agreement with respect to wages, hours and other terms and conditions of employment. 2. The negotiations The first negotiating meeting between the parties were held on November 11, 1975. The participants on behalf of the Union were Charles Jobe, chairman of the Union's negotiating or scale committee; Robert Melton, president of the Union; and scale committee members Phil Jones and John Blair. The participants for Respondent were Kenneth Fleming, vice president and general manager of Respondent; Robert Lorton, president of Respondent; and contract covering work as described above, which shall be performed only by journeymen and apprentices, especially no contract using the word "Stripping" to cover any of the work above mentioned. 2 This language used by Fleming is substantially similar to the language utilized by the Union in both its 1966 and 1972 contract termina- tion/reopening notices to Respondent. In 1974, the parties being subject to the provisions of the recently expired contract, an arbitration proceeding arose as a direct result of the termination language utilized by the Union in its 1972 termination/reopening notice. Respondent had discontinued the preexisting practice of granting washup time to composing room employees. and the Union objected to this as constituting a unilateral change in working conditions. The arbitrator ruled that Respondent was not precluded from making such changes, because the then current contract (1973-76) contained no provisions for washup time, and the Union, by its termination language. had declared that any agreements. conditions of employment or understandings under the prior contract would terminate as of the date of the expiration of the contract. Thus. the arbitrator ruled that the preexisting practice could be unilaterally changed by Respondent with impunity. In reopening the current contract negotiations, Respondent desired the same result. Fleming, elaborating, chose the similar language because: In view of his [the arbitrator's I ruling we wanted the contract that was . . . terminating on January 31, 1976 to be completely open to negotiations, including any implied past practices or what have you. and that's why I chose that language. Conversely, as a result of the adverse decision of the arbitrator, the Union chose to never again employ such termination language, and therefore utilized the language set forth above in its September 16, 1975, reopening letter. 294 NEWSPAPER PRINTING CORP. supervisors Dexter Jones, Jim Hathaway, and Jack Fitzpa- trick. At the outset of negotiations Jobe presented Fleming with a letter suggesting that negotiating meetings be held each Wednesday until a contract was reached. Fleming stated that as a result of various appointments and commitments Respondent could not commit itself in advance to this rigid schedule, and the Union did not object. A few days prior to the meeting Melton had furnished Fleming with a copy of the Union's contract proposals, but at the meeting Jobe advised Fleming that the aforesaid proposals should be disregarded as changes thereto had been recently made. Thereupon, Jobe present- ed Respondent with new contract proposals. Melton inquired regarding the then-current court pro- ceedings involving linotype equipment used in the compos- ing room.3 Fleming stated that he did not know what would be the outcome of the current litigation between OSHA and Respondent, but related that Respondent would undoubtedly abandon the hot metal linotype machines, and would acquire "cold type" or phototypeset- ting equipment to replace the linotype machines. Addition- ally, Fleming stated that Respondent's supplier of linotype parts was no longer going to stock such parts and necessary related materials, and that this enforced Respondent's present intent to abandon the linotype operation and install additional phototypesetting (also called "photocom- position") equipment in the composing room. Fleming asked whether the scale committee had full authority to negotiate a new working agreement, being mindful of the parties' unpleasant experiences in prior negotiations in connection with the scale committee's apparent lack of authority to reach a binding agreement. Melton agreed that the matter should be clarified at the outset, and assured Fleming that he and Jobe, together with the entire scale committee, had full authority to negotiate an agreement without qualification. Fleming informed the Union that Respondent's propos- als were not yet prepared because of major technological changes affecting the composing room that were then being considered and would be implemented during the life of the new agreement, and, in addition, because of an :1 Respondent had been previously informed by the Occupational Safety and Health Administration (OSHA) that certain linotype machinery in the composing room was unsafe, and that the situation should be immediately corrected. Respondent was attempting to secure an abatement period from OSHA during which time Respondent desired to investigate the various alternatives in this regard. 4 In this latter regard Fleming, at the hearing herein, provided the details of the pressing operational problems with which he was, at the time, confronted and which required immediate attention. Counsel for the Charging Party stated his willingness to stipulate that during the material period of time herein Fleming "was certainly a very busy man, trying to take care of all the problems that he had in administering all of the contracts and everything else." General Counsel implies, but the complaint does not allege, that Respondent engaged in dilatory tactics by not immediately responding to the Union's initial reopening letter of September 16, 1975, and by failing to have an initial contract proposal available at the initial bargaining session. I find this implied contention to be clearly without merit. the alleged delays In this regard having been caused by valid business considerations and, moreover, certainly cured by subsequent protracted bargaining. I The work in the "composing room," actually comprising five separate rooms on the third floor of Respondent's building, then included both phototypesetting and linotype or "hot metal" operations. extremely busy schedule.4 The parties then reviewed the Union's proposals in a general fashion, and, upon conclud- ing this cursory examination, Fleming advised the Union of what would be incorporated in Respondent's proposals, emphasizing that Respondent desired to negotiate major changes in the Union's jurisdiction over particular work as a result of the introduction of new technology that would affect not only the composing room but various other operations of Respondent. Elaborating, Fleming stated that Respondent would be making large investments in new machinery and processes, and that the Respondent wanted complete flexibility in making job assignments, in placement of the new equipment, and in determining who would operate the equipment. Elaborating further, Fleming explained that initially, as soon as possible, Respondent would convert the composing room to a total phototypeset- ting process. 5 Continuing, Fleming stated that, upon converting the composing room entirely to the phototype- setting process, Respondent intended to install a large and complex general-purpose computer system which would be designed for use not only in conjunction with phototypeset- ting work, but also for billing and other business purposes. Finally, as a result of the aforementioned innovations, both newsroom and classified advertising room application to the system would become feasible and would be imple- mented. Thus, a "front-end" system most likely consisting of sophisticated terminals, each containing a video screen and typewriter keyboard with additional "function" keys, would be utilized by newsroom employees and by classified advertising room employees whereby newspaper copy (ads or news articles) would be electronically transmitted directly from the newsroom and classified ad room terminals to the general-purpose computer for storage and recall. Such copy could then be directly transmitted to the composing room phototypesetting machinery, thus elimi- nating the need for various historic composing room processes. 6 Next, Fleming announced that Respondent wanted to negotiate from the contract the reference to the Interna- tional Typographical Union (ITU) general laws. 7 When asked why Respondent objected to the incorpora- tion of the ITU general laws as part of the collective- 6 The effect on the composing room employee complement is clear. Hard copy, or typewnritten material, would no longer be customanly utilized within the composing room. As a result, composing room employees would no longer customarily perform the work involved in receiving hard cop) from the newsroom or classified ad room, and in cutting. distributing. retyping. or rekeyboarding the hard copy, preparatory to further phototype- setting or linotype operations. And. with the advent of a total phototypeset- ting operation in the composing room, linotype machine operators would no longer be necessary. The implementations of such a new system, as descnbed. would result in the extensive elimination of unit work. and a concomitant reduction in the number of unit employees. For a comprehen- sive explanation of the nature of the new technology and its effect on historic composing room functions see the discussion appearing in World Publishing Company, 220 NLRB 1065, enfd. sub nom Omaha Tipographical Union No. 190 v. N LR.B.. 545 F.2d 1138 (C.A. 8, 1976). Prior contracts contained the following language in this regard: ITU LAWS Sec. 7. It is understood and agreed that the General Laws of the International Typographical Union in effect at the time of signing this /Continued) 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement, Fleming related problems of "sub- stitute hiring," which procedure was sanctioned by the general laws and therefore made a part of the collective- bargaining agreement by reference. This substitute hiring procedure, in effect, allowed the Union, rather than Respondent, to hire substitutes, sometimes, according to Fleming, with undesirable results. Fleming also announced that Respondent would be proposing changes in Joint Standing Committee procedures, explaining his reason in this regard. 8 Fleming also brought up the subject of the contractual ITU negotiated pension plan, whereby Respondent was required to contribute to the pension fund 50 cents per shift per employee, not to exceed five shifts per week, for the purpose of providing pensions on retirement, and also death benefits and other related benefits for covered employees. 9 Fleming related to the Union that it appeared that Respondent, as a result of the Pension Reform Act, may be held liable in the event of insufficient funding or improprieties in the administration of the plan despite the delimiting contract language. However, Fleming stated that Respondent was awaiting the opinion of counsel prior to making a contract proposal in this regard. Fleming also asked Melton for updated information concerning the plan. Melton replied that the descriptive booklet, which Respondent had in its possession, was the most current publication, but that he would secure additional informa- tion from the International regarding the plan. Fleming also brought up the subject of union or "chapel" meetings on Respondent's premises, which he felt inter- fered with production. Jobe replied that chapel meetings had been conducted for many years at a designated time in the composing room, and Fleming responded that some employees on the day shift cease work to attend the meetings, while other employees on the next shift arrive early for the meetings, and the visiting and general conversations among employees tend to adversely affect production. Fleming also explained that Respondent would propose the complete elimination and deletion of reproduction work from the new agreement.t 0 Fleming was also asked about apprentices. He replied that the innovations occasioned by the new technology would result in fewer jobs, and that he would not be agreement, not in conflict with law or this agreement, shall govern relations between the parties on conditions not specifically enumerated herein. Sec. 8. Nothing contained herein shall be construed to interfere in an) way with the creation or operation of any rules not in conflict with law or this contract by any chapel or by the Union for the conduct of its own affairs. Theretofore, the Union could, for example, immediately reinstate a discharged or disciplilied employee simply by referring the discharge to the Joint Standing Committee, the contract providing that, upon the matter being referred to the committee, the "conditions prevailing at the time of dispute shall he maintained until resolved by the Joint Standing Commit- tee." Upon the inability of the Joint Standing Committee, composed of two members from the Union and two from Respondent, to resolve the dispute the matter was subject to arbitration. " The then-current contract had been the first contract between the parties containing provisions for the ITU negotiated pension plan. Dunng the prior contract negotiations Respondent indicated its willingness to allow employees to participate in the plan, the "contributions" simply being deducted from employees' wages, and paid into the plan by Respondent. opposed to reducing the contractual ratio of apprentices to journeymen, rather than having apprentices performing the jobs of displaced journeymen. Apparently the Union did not disagree with Fleming's thoughts on this matter. Fleming stated his belief that employees had taken advantage of the jury duty section of the contract, whereby Respondent is to pay the employee the difference between jury compensation and his regular wages, maintaining that employees who were released early from jury duty should report to work or report that they were available for work, and implied that Respondent would propose contract language to this effect. Fleming was asked whether, because of the pending OSHA suit involving the safe operation of the linotype equipment, Respondent would be immediately installing phototypesetting equipment. Fleming replied that he was going to begin pursuing this operational change very vigorously, but that he could not state the precise day on which the equipment would be purchased or installed. Jobe asked what kind of phototypesetting equipment would be utilized. Fleming reiterated that the phototypesetting machinery would be forthcoming, and stated that such equipment is similar to automobiles in the sense that you could buy a Volkswagen or a Cadillac, but that neither would perform the same essential functions. Fleming was asked whether Respondent had given serious consideration to any newsroom front-end system equipment. He answered affirmatively, stating that in the newspaper printing industry, as a general rule, there had been a customary progression from the advent and use of phototypesetting equipment, to the use of a general purpose computer in conjunction therewith, and finally, to the installation of newsroom and classified ad room terminal hookups. The balance of the meeting was primarily concerned with a general discussion of the new technology. Fleming asked for, and received, a current copy of the ITU general laws, and was told that he would receive a revised copy of the general laws when such became available. The meeting ended with Fleming stating that he would check his schedule and advise the Union when he would be available for the next meeting. Sometime shortly thereafter, Fleming advised Melton that certain management decisions had been made regard- Thus Respondent incurred no additional expense in this regard. The contract reflects Respondent's considered intent to avoid any liability as a participant in the plan, as embodied in the following contract language: In making this agreement [Respondentl in no way guarantees or assumes any liability for the actuanal soundness of the Plan, the payment of any benefits from the Plan (whether retirement death benefits and/or other related benefits), the exemption of said Plan by the IRS under the Internal Revenue Code, or any administration of the Plan. In addition, the above mentioned contribution shall constitute the sole obligation and liability of [Respondent] to the Plan and persons drawing benefits from the Plan. 'o Reproduction work pertains to an historic contract provision whereby unit employees, in exchange for permitting Respondent to immediately use "matrices, plates, cuts or type of local advertisements or other local matter" furnished to Respondent from outside sources, have the right to reproduce this material within the composing room at a later date, merely to be discarded because it is no longer useful. This procedure is sometimes referred to as "setting bogus type." 296 NEWSPAPER PRINTING CORP. ing the new technology, which decisions were hastened by the existing problems with OSHA, and that the new operations would be implemented in phases, the first phase, namely, total conversion to cold type in the composing room, to be completed in or about September 1976. At this time the next negotiating meeting was scheduled for December 17, 1975. At the December 17, 1975, session Jobe asked whether Respondent was prepared to submit its proposals, and Fleming again stated that Respondent was not, but that its proposals would be forthcoming. There ensued a very detailed discussion regarding the new technology, its application to the jurisdictional language of the contract, and its effect on job assignments, job classifications, and the employee complement in the composing room unit. The scale committee members asked specific questions about new equipment, the questions being directed toward discerning the effect of the new technology upon the bargaining unit, and the extent of potential job displace- ment. Fleming again discussed the three-phased sequence which would be followed, and stated that he did not know whether 3 jobs or 50 would be eliminated. He attempted to ease the apprehensions of the committee by stating that the conversion to the new equipment and processes would be implemented in phases, that the entire changeover would not take place instantaneously, and that job displacement could be handled as part of a gradual process dictated by the progressive phases of the conversion process. Fleming recalled to the scale committee the methods by which, in the past, certain phototypesetting equipment had been introduced, stating that there had been a very orderly process in making a prior conversion from hot metal to phototypesetting equipment in the composing room, that everyone cooperated and worked very diligently, that various training processes were implemented, and that the conversion was a smooth one. Fleming suggested that, similarly, the forthcoming conversion process could be so implemented, and further suggested that a chaotic situation could be avoided if the committee members would attempt to assuage the unfounded fears of the employees who might feel that their jobs would be suddenly eliminated. There was discussion of the relative merits of various brands of phototypesetting equipment, Fleming stating his preferences, specifying the brand name and functions of the phototypesetting equipment and general purpose computer to be purchased. He indicated that the type or brand of terminals should have no real bearing on the parties' ability to reach agreement, as all terminals which were then being considered incorporated a typewriter keyboard with function keys and a video screen, and operated in a similar fashion. Fleming explained that the new phototypesetting equip- ment would be located in the composing room and would be operated by composing room employees, as said employees had been operating this type of equipment and were familiar with it, having had prior operating experience and maintenance training on similar phototypesetting equipment. Fleming said that if terminals were purchased and located in the newsroom, which he indicated was Respondent's current intention, he did not believe that the type or brand name of terminal should be of major concern to the Union because composing room employees would not be operating this equipment; rather it would be operated by newsroom employees. Further, Fleming said that, if terminals were put in the composing room for the purpose of recalling copy stored in the general purpose computer, the terminals would definitely be operated by composing room employees, who would be given training on the operation and repair of the terminals, regardless of the brand name of the terminal utilized. Fleming told the committee that Respondent had been verbally advised by its counsel that Respondent did have a liability under the Pension Reform Act as a result of Respondent's participation in the ITU negotiated pension plan, and that because of this liability Respondent desired to negotiate out of, and no longer participate in, the plan. Jobe and Melton stated that they were not qualified to thoroughly discuss the plan, and Fleming suggested that they contact the ITU and obtain information regarding the plan in order to be able to engage in more constructive conversation regarding it. Further, Fleming suggested that because of the serious problems that were developing in connection with the negotiation of new jurisdictional language in the contract, it would be advantageous for the Union to request assistance from the ITU. Jobe replied, in effect, that it was too early to call for ITU assistance. Fleming again suggested this course of action, and Melton replied that he would be talking with the ITU about the situation. It was agreed that further negotiating meetings would be held after the first of the year, the approaching holiday season being a particularly slack time and therefore amenable to vacation scheduling. On or about February 7, 1976, Fleming received a letter from the scale committee, as follows: Dear Mr. Fleming, As Management indicated to the Union's Scale Committee they intend to install a new computer system for the purpose of producing the newspapers which will involve serious changes to the working conditions in the composing room effecting employees presently performing such work, this is a formal request for the following information, needed to the proper execution of our obligation to fully and fairly represent our members in the composing room: 1. What type of computer system is to be installed? 2. Where will the main computer or central processor and/or OCR-VDT-CRT equipment be installed? 3. If the computer is to be installed in another department than the composing room, will there be a control panel in the composing room? 4. Will composing room employees be allowed access to the main computer or central processor when located in another department. If not, why not? 5. Does the employer intend to establish a data processing system to include employees of other departments to process other than composing room work, such as accounting, bookkeeping, etc., regardless ofjurisdiction lines? 6. Will composing room employees be trained by the employer in programming techniques and console 297 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations, and/or operation of OCR-VDT-CRT equipment, including maintenance, in courses made available to the employer through the lease or purchase of the equipment? Please advise by return letter. Scale Committee Upon receipt of the letter, Fleming advised Melton that the subject matter would be discussed at the next negotiating session. The next negotiating session was held on January 14, 1976. Fleming stated that he had received the letter from the scale committee and would like to discuss the matters contained therein and answer the letter verbally. Receiving an assurance that this procedure would be satisfactory, Fleming answered the questions seriatimr With regard to questions I and 2, Fleming stated that he was interested in several Digital Equipment Corporation (DEC) general-purpose computers and that the computer (or central processor) decided upon would not be located in the composing room because of its size and the environmental prerequisites attendant to its operation. He explained that Respondent was going to build an environ- mental computer room on the fourth floor of the World Building where the computer would be located, and further stated that the system would not only be utilized for production purposes, but that it would also be used for administrative purposes such as checking credit, and performing billing and accounts receivable functions. Fleming stated that, upon receiving more information from DEC, he would further elaborate on this equipment at future negotiating meetings. In response to question 3, Fleming stated that the computer's bank or panel must be located adjacent to the computer, and would therefore be located in the environmentally controlled room along with the computer, rather than in the composing room; if, for production reasons, any controls for the computer needed to be located in the composing room, they would be so located and would be operated by composing room employees. Fleming stated that the entire system needed to be laid out in order to determine what parts, if any, would be located in the composing room. In response to question 4, Fleming said that as the main computer will be located in the environmental room, he believed that composing room employees would not need direct physical access to the computer, but, if necessary, that they could communicate with the computer with equipment located in the composing room. For efficiency reasons, Fleming stated, it would be inappropriate to require composing room employees to walk up and down flights of stairs to communicate with the computer. When asked how composing room employees might be able to communicate with the computer from the composing room, Fleming replied that either a VDT (video display terminal) type of terminal could be used for this purpose, or that another piece of equipment which has no video screen but prints out in hard copy the instructions being sent to the computer could also perform this function. With respect to question 5, Fleming answered the question, "Most certainly," but indicated that he did not know what was meant by "regardless of jurisdictional lines." He went on to explain that the new system was costing about $1-1/2 million, and an outlay of this magnitude could not be justified merely for the handling of composing room work, adding that the work which the computer is capable of performing is in direct relationship to its size and cost. Again Fleming was asked his thinking on the impact of the new system on the composing room unit. Fleming stated that he could not be specific until the full mechanics of the system had been decided upon, that he had no idea if 3 or 30 jobs would be affected, but that as soon and as quickly as possible Respondent would try to establish the impact it would have, which, because of the three-phased sequence of the system's installation and operation, would not create an overnight impact of significant magnitude. Fleming again explained the various stages, reiterating that the first step would be to eliminate the linotype machine or machines and complete the total conversion to cold type in the composing room, that the second step would involve installation of the general-purpose computer, and that placing terminals in the newsroom and ad room would constitute the final step. Regarding question 6, Fleming responded that any equipment located in the composing room would be operated by composing room employees, who would certainly be trained to operate and maintain the equip- ment, stating further that the procedure would be similar to that followed in the composing room upon the partial changeover in the composing room to cold type which occurred several years earlier. It also appears that at this meeting Fleming advised the Union of the estimated time frame for the institution of the new technology, explaining that the phototypesetting equipment would be installed in the composing room during the late summer of 1976, which would complete the conversion to cold type in the composing room; that the environmental equipment for the computer room, and the computers and related hardware could be delivered in about May 1977; and that the terminal hookups in the newsroom and ad room, and possibly the composing room, could be installed and the entire system could thereby become operational by August I, 1977. Having responded to the questions there was further discussion of workflow, new equipment, installation of equipment, and impact on the bargaining unit. Fleming said that when Respondent acquired updated information concerning the changes with which the Union was concerned, as reflected by the questions asked in the letter, the Union would be the first to know. Fleming presented Respondent's written proposal to the Union at this time. Respondent proposed extensive jurisdictional language changes which essentially is ex- pressed by the first paragraph of Respondent's jurisdiction proposal, as follows: I I Respondent's entire proposal is set out in Appendix "A." 298 NEWSPAPER PRINTING CORP. The jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including only those employees engaged in all work which the Employer may from time to time designate to be performed in the Composing Room. It is the express intention of the Employer to accomplish his complete production needs in the manner which he determines to be the most effective and economical method to fulfill the work requirements. Fleming suggested that as Respondent's jurisdictional language, having been necessitated by the nature of the planned technological changes, was quite different from the historic contract language, the Union would probably want to thoroughly study the language before making a response to it. Jobe indicated that such a procedure would be most advisable. Fleming also mentioned that Respondent's proposal deleted reference to the ITU general laws as being embodied in, and made a part of, the contract. Particularly, Fleming stated that Respondent was opposed to the substitute hiring procedure which is authorized by the general laws. Fleming explained that although Respondent was not philosophically opposed to having regulars hire their own substitutes, regular employees have not always done so in Respondent's best interests, having sometimes hired or selected substitutes who were not capable of adequately performing the work in question. Thus, Re- spondent was not proposing the complete elimination of substitute hiring, but rather wanted the foreman to act as a monitor to assure that the substitute was a qualified individual. One member of the scale committee, objecting to the new proposed substitute hiring procedure, stated that on occasion the employees want to take time off from work to go fishing. Fleming said that this would still be possible, but that under Respondent's proposal the fore- man would be apprised of this fact in advance. Fleming further said that as a result of new technology, composing room jobs are becoming more specialized, thus providing another reason for discontinuing the existing procedure of selection of substitutes by regulars. One member of the scale committee said it would be very difficult for the Union to agree to any contract without incorporation of the ITU general laws. There was considerable discussion about cleaning up gray areas in the priority or seniority board, the method by which, according to the contract, situation holders and extras are to be hired "in strict priority order in the class of work in which they claim competency." Melton agreed that clarification of the priority hiring provision of the contract was warranted. The ITU negotiated pension was again discussed, Respondent's proposal calling for its deletion, and Fleming requesting more information to determine how Respon- dent could be assured of incurring no liability as a result of participating in the plan. Melton said he was trying to get additional information. At the end of the meeting Jobe said that the Union would study Respondent's entire proposal. Fleming asked whether the local committee felt it was in a position to resolve the issues without help from the ITU because of the seriousness of some of the issues. The committee indicated that it could resolve the issues, stating that intervention or assistance by an ITU representative was not then wanted because certain committee members felt that the ITU did not always primarily consider the local union's best interests. Fleming reiterated that because of the serious issues relating to technology changes, jurisdiction, job assignment, and job classifications he did not see how a contract would be able to be finalized without assistance from the ITU. Melton or Jobe affirmed that it might be rather difficult to resolve many of the issues, and Melton announced that he had been talking with the International and would be talking with ITU representatives on a continuing basis. Fleming stated that the contract would be expiring very soon, and that he hoped representation by the International would be forthcoming before the expira- tion of the contract. Fleming asked Melton if he had received an updated copy of the ITU general laws, and Melton said he would check on this with the Union's secretary. The parties agreed to meet again on January 21, 1976, Fleming suggesting that, as the expiration date of the contract was rapidly approaching, the parties ought to meet more frequently and be more constructive particular- ly because of the major contract issues involved, and the fact that in these prior bargaining session so much time had been spent discussing new technology with no progress having been made. The next meeting occurred on January 21, 1976. The scale committee questioned Respondent about its propos- als, again discussing the matter ofjurisdiction, which led to a further discussion of the new technology and its application to the composing room work force. The types of systems and equipment to be installed were again discussed. Fleming stated, in response to a question, that the overall impact on employees, and, in particular, the number of composing room jobs to be eliminated by the new technology, would be difficult to estimate with any degree of accuracy, but that this should not be of immediate monumental concern to the Union as reassign- ment of jobs, some retraining, and some attrition would minimize the problem during the various phases of the conversion process. Fleming was asked whether Respon- dent had considered and/or would consider proposing a guaranteed number of composing room jobs throughout the life of the agreement. Fleming said he would be more than happy to negotiate along these lines. There was further discussion of deletion of the ITU general laws, the Union again wanting to know why this was being proposed and Respondent again stating its reasons. Respondent's proposed changes in the priority or seniority hiring system were discussed. Fleming stated that hiring by strict priority sometimes had an adverse effect on Respondent by causing unqualified employees to be assigned work on particular jobs. Melton agreed with Respondent's concerns in this regard, stating that under the existing system employees not qualified to perform a particular job would nevertheless assert their priority in an effort to obtain a more desirable job or shift. Also, the matter of reproduction or setting bogus type was again discussed, the Union basically agreeing that this was a dead issue, and that it would not object to the 299 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deletion of the contract provision relating to reproduction work. The ITU negotiated pension plan was again discussed, Respondent having proposed that the plan be entirely deleted from the contract. The committee asked how much the pension benefits would be reduced if Respondent stopped participating, to which Fleming replied, "how would we know?", there being no data from which to make such calculations. Melton then declared that the scale committee was powerless to resolve major contract issues. At one point in the meeting Jobe stated that the scale committee had studied Respondent's jurisdictional proposal, and that "there's no way in the hell the Union could ever accept it, that to do so would be to kill the Union." Respondent's representatives asked him to elaborate, and Melton said the scale committee was powerless to resolve the issues of jurisdiction, ITU general laws, ITU negotiated pension plan, and the substitute hiring procedure as embodied in the ITU general laws and made part of the contract by reference. Fleming stated that he had repeatedly suggested that the local union seek assistance or direction from the ITU because of the serious nature of the issues involved, and once again made the suggestion that ITU assistance be sought because of the nearness of the expiration date of the contract. At this point Fleming looked back in his negotiating meeting notes and read from them previous statements by members of the scale committee to the effect that the scale committee had the autonomy and authority to negotiate and resolve all contract issues. Fleming said that if the local was now maintaining that it did not have such authority, then someone with the full authority and power to resolve the issues must be brought into negotia- tions. Fleming, apparently at this meeting, stated that he knew for a fact that local union had a vast degree of autonomy, and that the scale committee could indeed conclude an agreement with Respondent. Lorton stated that there had been considerable discus- sion on all major issues, and that no progress was being made. Fleming stated that it appeared an impasse had been reached or was being reached. Jobe replied, according to Fleming, "Hell, call it what you want, impasse, deadlock or whatever-we are, without question, locked up on this thing. We're not making any progress." 12 Fleming asked what the scale committee proposed to do if it was powerless to negotiate, inquiring as to how the issues could be resolved. After continued discussion Jobe again stated, "Hell, Ken, I guess we've got an impasse." Again Fleming asked Melton, "If you are powerless, have you made any arrangements to bring an ITU representa- 12 Jobe testified that during the January 21, 1976, meeting Fleming stated that the contract expired on January 31, 1976, and that therefore Respondent intended to make job assignments and use the new equipment in the most feasible and economical manner. Jobe replied that it was his understanding of the law that the parties were required to work under the terms of the old contract until either a new agreement or a bargaining impasse had been reached. Jobe categorically denies that either he or Melton or any other member of the scale committee made any statement to the effect that the parties were deadlocked or had reached a bargaining impasse. I credit Fleming and find that such statements, at both the January 21, 1976. meeting and later meetings, were made by Jobe and/or Melton. Fleming favorably impressed me as a highly credible witness, with a vivid recollection of the entire course of bargaining negotiations. The record tive in" and Melton replied that no such arrangements had been made. Jobe, who had previously said that an impasse had been reached, nevertheless stated that he did not believe the point had been reached for the intervention or services of an ITU representative. Upon being reminded by Fleming that Jobe had previously stated an impasse had been reached, Melton again said he would be continuing to talk with the ITU, as he had stated on several occasions at prior negotiating sessions. There was discussion regarding the approaching contract expiration date, and it was suggested that the parties should meet more often and for longer periods. It was agreed that the next meeting would be held on January 28, 1976. Melton said that he was going to be talking with ITU headquarters, and that if the scale committee could meet prior to January 28, 1976, Fleming would be advised. The following Monday Melton told Fleming that he had talked with ITU headquarters about the pension issue and questions in the jurisdictional area, and that the meeting between Respondent and the local union scale committee would be held as scheduled. Melton did not state that an ITU representative would be in attendance or would participate in the negotiations. The parties met on January 28, 1976. Again the jurisdiction issue was discussed, Fleming explaining that he was not attempting to limit the Union's historic jurisdiction which would continue to be commensurate with the physical boundaries of the composing room, but rather, by its jurisdictional language, Respondent merely wanted to clean up the outdated jurisdictional language in prepara- tion for the new technology. All major contract issues were once more discussed at great length, Melton again stating that the local union was still attempting to get further information concerning the ITU negotiated pension plan. After considerable discussion Melton reiterated that the scale committee was powerless to resolve the major issues. Fleming queried whether any arrangements had been made for ITU assistance and Melton once again merely replied that he had been talking with the ITU. Fleming asked whether any ITU representative had been scheduled to attend or participate in negotiations and Melton said no. Fleming reviewed the situation, stating that it had been agreed an impasse had been reached, that the scale committee was powerless to resolve major contract issues, and that no help or assistance from the ITU was on the way. Both Melton and Jobe again confirmed that impasse had been reached, and Melton stated, "You know how this works, Ken. You know that we can't resolve this jurisdic- tional and some of these other key issues." reflects that Fleming took complete minutes of each bargaining session, had such notes in his possession during his testimony, and referred to them when necessary to refresh his recollection of the events. The record does not show that the minutes, available to General Counsel and counsel for the Union, upon request, failed to support Fleming's testimony in various material respects. Lennon v. U.S., 316 U.S. 129, 132; General Engineering Inc., and Harvey Aluminum, 125 NLRB 674 (1959). Further, although Jobe, Melton, Blair, and Phil Jones attended the bargaining sessions on behalf of the Union, it is significant that none of these individuals were called as witnesses to corroborate Jobe's testimony, even though Jones did testify with regard to other matters. I further credit Fleming's testimony, for the same reasons, over the testimony of Jobe, to the extent that there is a material variation in their respective versions of the contract negotiations. 300 NEWSPAPER PRINTING CORP. At this meeting, Fleming presented Melton with a letter from Respondent stating as follows: Not withstanding our several bargaining conferences and our explanation of our proposals for a new Agreement, we have been unable to reach agreement on any subject. We desire to be notified on or before January 30, 1976 with respect to your acceptance or final rejection of our proposal for new Agreement. In the event you have not accepted our proposal by that date we desire to withdraw each proposal and we will submit a new counter-proposal on February 1, 1976. The record does not indicate any significant discussion regarding the letter, and Fleming was not asked to elaborate on the nature of the new counterproposal to be submitted to the Union on February 1, 1976. Melton stated he was going to be conversing with ITU headquarters and it was agreed that the parties would meet the following morning, January 29, 1976. At the outset of the January 29, 1976, meeting Fleming asked whether a representative from the ITU would be in attendance. Melton said no. The scale committee, appar- ently responding to the aforementioned letter of the preceding day, stated that the Union had no desire to change either its jurisdictional proposal or any other proposals, explaining that the parties had operated under the old contract language for many years and that there was no need to make the changes proposed by Respondent. The major issues were discussed again, there being no change in the positions of the parties, and no agreement being reached. During the life of a prior agreement, before the implementation of phototypesetting equipment in the composing room, contract language dealing with this new process had been negotiated. The scale committee pro- posed that likewise the parties could enter into a new agreement virtually identical to the old one, and reopen the contract and renegotiate on the applicable contract provisions during succeeding months or years prior to the implementation of the new technology. Fleming pointed out that he had no desire to begin operating under a new working agreement only to be burdened with new contract negotiations some 60 or 90 days later, stating that both sides had sufficient data and information to resolve the problems at the present time. Fleming emphasized that 11 While it was not until after February 17, 1976, that Respondent received a statement directed to "all contributing employers. covered employees, local unions and other interested parties." and entitled "Statement Adopted by the Board of Trustees ITU Negotiated Pension Plan." the statement sets forth the concerns which Respondent expressed to the Union during negotiations. as follows: The Trustees are well aware that employers generally are troubled that under ERISA they may be called upon legally to make contributions to a pension plan in addition to the amounts agreed upon in their collective bargaining agreements, if. on an annual basis, the plan shows deficit funding, or if it should terminate for lack of adequate funding. Fear of this so-called "open end" is not realistic in regard to the ITU Negotiated Pension Plan. The ITU Negotiated Pension Plan is certainly not about to terminate, nor will it operate on a deficit basis. In December 1975, Respondent had received from its corporate counsel, not Respondent was not attempting to "get [the Union] on a complete jurisdictional wipe out," and explained that Respondent was interested in negotiating a jurisdictional clause which would give Respondent flexibility in a changing technological area. Fleming explained that employees would be performing jobs in the future that they were not performing heretofore, that many jobs would overlap, and that Respondent did not want to be burdened with archaic contract language having no applicability or confusing applicability, to the new technology. At this meeting, it appears that the Union proposed that during the year 1976 Respondent guarantee 180 situations or jobs, apparently the number of composing room jobs then in existence, and that the guaranteed figure be reduced by 5 situations each year over an 8-year period until a minimum of 145 jobs were guaranteed. Fleming stated that attrition alone would reduce the number of jobs at a more rapid rate, and suggested that the Union submit another proposal. Jobe replied, apparently at this meeting, that for internal union reasons, it would be more expedient for Respondent, rather than for the Union, to propose a lesser number ofjob guarantees. Substitute hiring was again discussed, Fleming reiterat- ing that Respondent was not basically opposed to a regular employee (situation holder) having a substitute when necessary, as in the past, but that Respondent desired the foreman to monitor the process and evaluate the compe- tency of each substitute prior to the time the substitute commenced performing the work. The Union replied that it was powerless to change the ITU general laws in this regard, which laws operated as the implementing language for the substitute hiring procedure. Respondent reiterated its reasons for wanting to change or negotiate out of the pension plan because of liability over which Respondent had no control, imposed by the Pension Reform Act.t 3 The scale committee again stated its general unfamiliarity with the specific problems created by the Pension Reform Act, and reiterated that it was still attempting to secure information in this regard which it had previously requested from ITU headquarters. Fleming stated that the contract was due to expire in 48 hours, that he would like to meet as often as possible prior to the contract's expiration, and that the Union should attempt to obtain the assistance of an ITU representative prior to the expiration of the contract. Melton stated his intention to speak with the ITU and to ask the ITU to send assistance prior to the expiration of the contract. Fleming representing Respondent in the instant matter, a letter consisting of a legal analysis with regard to the potential liability of Respondent as a participant in the ITU negotiated pension plan. The seven-page analysis concludes that as long as Respondent is a contributing employer to the plan, it has potential liabilities over which it has no control, and such liabilities may arise even though Respondent fulfills the requirements of its agreement with the Union; and that, therefore, the liability exposures and uncertainties indicate that Respondent should negotiate out of its obligations to contribute to the plan. Further, the analysis states that ITU allows union members to participate in the plan by making individual contributions, and thus the employees could themselves purchase the same benefits without imposing an unknown risk on Respondent. Regarding this latter opinion by Respondent's counsel, record testimon) was presented by the Charging Party that, in fact. no individual employee contributions were possible under the plan. I regard the record as being inadequate to determine herein the correctness of either interpretation, 301 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that Respondent would be available to meet that afternoon, a Thursday, or anytime thereafter, including Saturday and Sunday, with a representative of the International, with the hope of resolving some of the major issues prior to the contract's expiration. Further, it was suggested by Fleming that if International assistance was not forthcoming, the scale committee and Respondent should meet again on Monday morning, February 2, 1976. Jobe said he would not be available as he had a prior social commitment which would cause him to be out of town for several days, and it was agreed that, as the scale committee did not want to meet without Jobe, the parties would meet on February 4, 1976, unless there was some communica- tion from Melton that a meeting with an ITU representa- tive could be arranged at an earlier time. From January 29, 1976, to February 2, 1976, Fleming was anxiously awaiting some communication, by phone or otherwise, that the International would have a representa- tive in attendance for an immediate meeting. Fleming was hopeful that, at the least, an International representative would phone him and generally indicate that progress in negotiations was a real possibility. However, no communi- cation was received from either the local or the Interna- tional, and on February 2, 1976, Fleming sent a letter to Melton (the complete text of which is attached hereto as Appendix B), which states, inter alia, as follows: In light of the fact that the contract with your Union expired by its terms and conditions on January 31, 1976, and pending execution of a new agreement or a continuation of the existing impasse, no provision, past practices or obligations that existed under the prior contract will be effective. We announce the following work relationships that will exist not as a contractual understanding but work practices .... * * * This is not to the prejudice of the use of the collective bargaining process to reach a new agreement. Obviously the Union was not impressed with the urgency of the situation expressed by Fleming at the January 29, 1976, meeting as it failed to immediately contact the International, as promised. Rather, Jobe testified that Melton, who had received Respondent's February 2, 1976, letter on the afternoon of that day, called a meeting of the scale committee at 4 o'clock that afternoon to discuss the matter and only then was it decided that the International should be contacted. Jobe testified in this regard as follows: A. We called international Headquarters in Colo- rado Springs and advised them we had received a letter of what we considered a change in working conditions, and that we felt like we needed assistance, an ITU representative, and after some lengthy discussion they said that they would get in touch with us and let us know what they had decided. On February 4, 1976, the next negotiating meeting was held. Melton asked what the February 2, 1976, letter meant and whether it constituted the new counterproposal mentioned in Respondent's prior January 28, 1976, letter. Fleming replied that the February 2, 1976, letter meant precisely what it said. Fleming stated that since he was not advised that assistance from the ITU was forthcoming it was necessary to institute the new rules and guidelines, which would continue to remain in effect until such time as a new working agreement had been negotiated. Melton asked whether Respondent was declining to bargain further, and Fleming replied that, to the contrary, Respon- dent wanted to negotiate and hopefully reach an agreement on all issues. Melton said that Jack Boris, an ITU representative, was due to arrive that day, and would be available for a meeting that afternoon. There was a general discussion of the February 2, 1976, letter, Fleming explaining the intent of the letter, item by item, and the procedures which would be followed in implementing the new procedures therein. Fleming stated that substitutes and regulars would be hired as in the past, except that the foreman is to be aware and apprised of each hiring situation, thus enabling the foreman to object to and apparently deny a request to hire a particular sub or regular prior to the time such employee commences work. That afternoon Boris attended the negotiating session along with the regular members of the scale committee, and became the chief negotiator for the Union. Fleming had negotiated with Boris previously regarding the institu- tion of the current phototypesetting system, and thus the two individuals were acquainted with each other. Boris stated that he was somewhat vague on the issues, and a generalized conversation ensued involving the prior negoti- ations, Fleming reconstructing what had transpired over the previous weeks of bargaining. Boris stated that he felt there was no insurmountable problem and requested that Respondent withdraw the letter of February 2, 1976, and that the parties continue to adhere to the terms of the old contract, further stating that he would get busy and help the local union come up with new jurisdictional language. Fleming refused to rescind the letter, replying that he did not regard the provisions of the letter as constituting an impediment to quickly finding solutions through negotia- tions on all the major issues. Boris said the Union could take the position, "no contract, no work," and Fleming agreed that this could be done. Boris queried if Fleming wanted the employees to go on strike, and Fleming said he had no control over the matter. Boris then stated that he felt Respondent might be committing an unfair labor practice. Fleming disagreed, stating that an impasse had been reached and that Respondent was exercising its rights. Boris retorted that the Union fully intended to exercise all of its rights, and again asked Fleming to reconsider his initial position and withdraw the letter. Fleming declined to do so. Boris reviewed Respondent's proposal on jurisdiction and reiterated the position that had been taken throughout the course of bargaining by the scale committee; namely, that, with Respondent retaining the unequivocal right to remove work from the jurisdiction of the Union simply by unilaterally determining what work should remain in the composing room, Respondent was making it impossible for the Union to know for whom it was bargaining. Further, 302 NEWSPAPER PRINTING CORP. Boris stated that Respondent's proposal was in effect a proposal to destroy the bargaining unit by retaining the unilateral right to determine from time to time who would, or would not, be included therein. Fleming reiterated that the jurisdictional clause contained in Respondent's propos- al was designed to provide Respondent with the necessary flexibility to print its newspapers most efficiently and that, particularly for the purpose of accommodating the changes dictated by the new technology, Respondent wanted no limitation upon its right to remove any work from the jurisdiction of the Union, and desired the further unequiv- ocal right to place new equipment and processes in the composing room, in which event Fleming assured Boris that the work in question would be performed by composing room employees represented by the Union. The next morning, February 5, 1976, a similar negotiat- ing session took place, Boris again requesting withdrawal of the letter, stating that the Union would have to file unfair labor practice changes, and that the Union could take the position "no contract, no work." Fleming stated he did not believe Respondent had committed an unfair labor practice, and Boris said, "Well, we'll try to find an unfair labor practice to file." The meeting adjourned after about 30 minutes, there being very little discussion of the contract items. The next meeting was scheduled for February 12, 1976. Further negotiating meetings were held on February 12, 18, and 25, March 2 and 3, April 5, 20, and 21, May 13 and 14, June 3, 4, 10, and II, and August 26, 1976. While virtually all contract items were thoroughly discussed during the course of these negotiations, the parties concentrated their efforts on the jurisdictional language, which had readily been recognized as the overriding issue throughout the protracted negotiations. Various jurisdic- tional proposals were exchanged, Respondent consistently believing and taking the position that the Union was attempting to expand its jurisdiction into the newsroom, ad room, and computer room as evidenced by somewhat vague jurisdictional language proposed by the Union. And while Respondent modified its initial jurisdictional propos- al as well as other contract proposals on several occasions, the jurisdictional modifications were designed to assuage the Union's alleged fears that certain historical composing room work would be removed from the composing room, but nevertheless Respondent continued to insist upon the widest latitude and flexibility to determine what work would be performed within the confines of the composing room, and thus, what would remain within, or be transferred into, the Union's jurisdictional sphere. The negotiations from February 12 through August 26, 1976, were not entirely unproductive, Respondent agreeing that many sections of the prior contract would remain unchanged, including some contract items which had been unilaterally changed by Respondent as a result of its February 2, 1976, letter, such as certain functions of the Joint Standing Committee, the contract provisions regard- ing the Joint Apprenticeship Committee, and the right of 14 Both General Counsel and counsel for the Charging Party. in their respective briefs, acknowledge that a bargaining impasse was reached on or about June 11, 1976, at which negotiating meeting the Federal mediator correctly characterized the status of negotiations as hopelessly deadlocked. the Union to conduct chapel meetings in the composing room "with permission of the foreman." Job guarantee proposals were made and discussed, and wage increases were proposed by Respondent, the proposed increases for the first year of the contract amounting to approximately 15 percent. Nevertheless, as stated above, the overriding jurisdictional issue remained the primary obstruction to the reaching of a new working agreement. On June 11, 1976, a Federal mediator, who had been assisting the parties during the course of negotiations since about May 13, 1976, stated to the parties that jurisdiction was the major area of disagreement, that he did not envision that agreement could be reached in this area, and that he felt taxpayers' money was simply being wasted by his participation in the unproductive and protracted negotiations. 14 No further negotiations have taken place, the parties' respective positions having remained firm. C. Analysis and Conclusions I. The unit-jurisdiction issue The complaint contains the allegation that Respondent has violated Section 8(aX5) of the Act by insisting upon a contractual provision "which failed to sufficiently identify or define the collective bargaining unit or work of said employees so as to allow the Union to engage in meaningful collective bargaining regarding said employees or to otherwise represent said employees." Respondent, utilizing, the unit-jurisdiction clause format embodied in preceding contracts, and thus maintaining consistency with the Union's similar unit-jurisdiction clause format as proposed by the Union in the instant negotiations, initially proposed the following clause, inter alia, under the heading of "Jurisdiction": The jurisdiction of the Union and the appropnate unit for collective bargaining is defined as including only those employees engaged in all work which the Employer may from time to time designate to be performed in the Composing Room. It is the express intention of the Employer to accomplish his complete production needs in the manner which he determines to be the most effective and economical method to fulfill the work requirements. Respondent's proposed clause serves a threefold pur- pose. Reduced to its component parts, the clause defines the appropriate unit for purposes of collective bargaining, establishes the Union's jurisdictional boundaries, and operates as a management-rights clause. It is clear that the clause, when analyzed in this fashion, unequivocally sets forth an appropriate unit description.'I Indeed, the parties have been operating under a similar unit description contained in a succession of collective- bargaining agreements over the course of many years. during which time apparently no contention has been '` "The . . . appropriate unit for collective bargaining is dclined as including only those employees engaged in all work . . in the Composing Room." 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made that the unit description was somehow defective. Thus, preceding contracts, including the most recently expired contract, have also provided under the heading of "Jurisdiction": Jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including all com- posing room work and includes classifications such as Thereafter, the contract language proceeds to elaborate upon and identify the said composing room work by detailed specific classifications and job descriptions. Even so, the language is not exhaustive, allowing further assertions of jurisdictional claims by its open-end phraseol- ogy. Of course, there is a distinction between the two above- quoted clauses. Thus, historically, both the unit and the Union's jurisdiction have been defined in terms of "all composing room work," leaving room for the contention that certain work which may be performed outside the composing room is nevertheless composing room work. That the Union so recognizes and relies on this language is evidenced by the fact that in its initial contract proposal, apparently anticipating Respondent's conversion to the new technology, it desired to modify the contract clause entitled "New Processes" by adding the following lan- guage: In the event of the introduction of any new equipment, machinery or processes which replaces or is a substitute for, or evolution of present composing room equip- ment, machinery or processes, employees covered by this agreement will continue to perform all work thereon and these new processes, equipment and devices shall be within the jurisdiction of the Union as recognized by this agreement regardless of the method, equipment, or material used regardless of where located, in the performance of such composing room work. [Emphasis supplied.] Conversely, Respondent desired to clearly confine the Union's jurisdictional, and thereby the unit, to the physical boundaries of the composing room, Respondent's pro- posed language defining the Union's jurisdiction, and thereby the unit, in terms of work to be performed "in the Composing Room." 16 The requirement that a collective-bargaining representa- tive is entitled to exclusive recognition in an identifiable appropriate unit 17 serves the necessary purpose of delineat- ~ Significantly, the complaint herein defines the unit as "all composing room employees" rather than in terms of "all employees who perform composing room work." '? Columbia Tribune Publishing Co.. 201 NL.RB 538, 551 (1973); McQuaV-Norris Manufacturing Company v. N.L.R.B., 116 F.2d 748. 751 (C.A. 7. 1940). '* The matter of the appropriate unit being clearly a nonmandatory subject of bargaining, proposed changes in the unit may not be insisted upon. Delhi-T7 lor Refining Division, Hess Oil and Chemical Corporation, 167 NLRB 115 (1967), enfd. on this point 415 F.2d 440. 443 445 (C.A. 5. 1969); N L.R.B.. v. Wooster Division of Borg Warner Corporation, 356 US. 342 (1958); Shell Oil Compane el al., 194 NLRB 988, 995 (1972). affd. 486 F.2d 1266 (CA.D.('C. 1973). I1' .g., Hevs Oil and Chemical Corporation. supra; Palm Beach Post- ing, with particularity, a group of employees with whom the union is both entitled and obligated to bargain. Otherwise, meaningful bargaining could not take place. Douds v. International Longshoremen's Association, 241 F.2d 278 (C.A. 2, 1957). And once such a unit has been established, a party may not insist to the point of impasse that the unit be changed 18 because, among other reasons not pertinent herein, to do so may result in the disenfran- chisement of employees who are entitled to union represen- tation.19 There is no record evidence in the instant case, nor did General Counsel or counsel for the Charging Party ever attempt to show, that the unit has ever, in practice, actually included employees performing work outside the compos- ing room despite the contract language which would arguably permit such expansion; nor is there evidence that during the long collective-bargaining relationship under numerous working agreements there was ever a meeting of the minds that the unit may encompass employees outside the composing room at some future date. And while it may be argued that Respondent's insistence upon a more restrictive unit clause constitutes a deviation from the longstanding unit-jurisdiction description as recognized by the parties, the practical effect of the proposed language is to more carefully delimit the unit consistent with the realities of the working relationship between the parties through the years, and further, consistent with Respondent's interpretation of the intent of the traditional unit-jurisdiction clause. Most importantly, no employees will have been disenfranchised as a result of Respondent's proposed unit language, and the Union is thereby able to engage in meaningful negotiations, know- ing precisely that the unit of employees for which it is bargaining is the same unit for which it has always bargained. Thus, as the clarifying change in the unit description proposed by Respondent does not appear to contain the inherent defects proscribed by established Board law, no employees being prejudiced or disenfranchised thereby, I find that Respondent's insistence upon such or similar language is not unlawful, and that, contrary to the allegation of the complaint, the proposed language does, in fact, define with particularity the appropriate collective- bargaining unit.20 With regard to the jurisdictional aspects of Respondent's proposed clause, it is likewise clear that the clause unequivocally establishes the parameters of the Union's jurisdiction. 2i Again, this language is consistent with the past practice of the parties, as it appears that no work over Times, Division of Perry Publications, Inc., 151 NLRB 1030, 1044-46 (1%965). enfd. 375 F.2d 118 (C.A. 5, 1967); Salt River Valley Water Users'Association, 204 NLRB 83 (1973), enfd. 498 F.2d 393 (C.A. 9, 1974); Hess Oil, supra. 20 The Columbia Tribune, supra, upon which both the General Counsel and counsel for the Charging Party place overriding significance, is clearly inapposite, the respondent therein not only flatly rejecting the union's proposed unit-jurisdiction clause, but also making it "very plain that no unit clause was acceptable." Id at 551; moreover, respondent's attitude therein was prompted by a "desire to destroy the bargaining unit and undermine the Union's representative status in an effort to avoid agreement," Ibid Such is not the case herein. 21 "The jurisdiction of the Union . . . is defined as including . . . all work ... in the Composing Room." 304 NEWSPAPER PRINTING CORP. which the Union was arguably granted jurisdictional rights had ever been performed outside the composing room. To be sure, Respondent deleted from its proposal the detailed, open-ended listing of job classifications and descriptions contained in preceding contracts, maintaining that under the new technology many of the described jobs, machines, and procedures would no longer be in existence,22 and that therefore such language would be superfluous or at least ambiguous when applied to the new methods and proce- dures which would come into existence under the new working agreement. However, it is clear, and I find, that by its proposal, including the deletion of such examples of composing room work from its jurisdictional clause, Respondent was not in any manner changing the intent of the historic language, as interpreted by Respondent and evidenced by past practice of the parties, ceding to the Union jurisdiction over all work in the composing room. Further, I find that, contrary to the complaint allegation, the jurisdiction of the Union, or "work of said employees" was sufficiently identified so as to permit meaningful collective bargaining.23 Finally, the proposed clause operates as a management- rights clause, which is discussed below under the heading of "Good-faith bargaining." 2. Good-faith bargaining It is not disputed that, largely because of the advent of the new technology, and the problems attendant thereto, both parties regarded their initial "jurisdiction"24 propos- als as the very foundation, the sine qua non, of a working agreement, upon which all other contract provisions must rest. World Publishing, supra, is strikingly similar in many respects to the instant case, certain contract proposals made and positions taken by Respondent herein during the course of bargaining being virtually identical to the facts in World Publishing. The reasons for the similarities are readily understandable, both the employer in World Publishing and Respondent herein having operated under virtually the identical collective-bargaining agreement, and both having made the decision to update their respective newspaper operations with a similar technology.25 In finding that the employer in World Publishing had not failed to bargain in good faith with the union as alleged, the Administrative Law Judge, affirmed by the Board, made certain observations which are also instructive herein, as follows at 1071: The General Counsel relies on certain language in Board cases, quoting language originally uttered in a circuit court decision, that bad faith can be inferred from an offer that is so poor that no self-respecting 22 At the hearing Fleming readily admitted that all the jobs enumerated in the prior contract were then "generally" still in existence and were being performed by composing room employees. as none had yet been eliminated by the new technology. 23 Even assuming that Respondent was attempting to remove from the Union's jurisdiction work which it had previously been granted, it is clear that Respondent would be permitted to insist upon such limitation of the Union's jurisdiction, the matter being a mandatory subject of bargaining. infra. 24 As noted above, Respondent's "jurisdiction" proposal constituted a union could accept it. This is an interesting and sometimes helpful observation but by no means has risen to the status of a doctrine in Board law. The fact is the law requires that the Employer shall bargain in good faith with an intention to reach a contract and history has shown that the ultimate terms of the contract normally depend on the "muscle," which is to say the economic power, of one party over the other. During the years that newspapers could not publish without the expertise of the composing room employees represented by the Charging Party, the Charging Party was able to get contracts that were extremely favorable to it; contracts that, like the 1972 contract, removed from the employer any right to determine who its employees should be and contracts that provided for the reproduction of material which came into the employer's hand ready for publishing. But there is no law that says that when economic power shifts from the Union to the employer that the employer cannot retrieve some of the economic benefits that it lost in the prior contracts. That is the situation here. With the introduction of the scanner, the Employer was for the first time physically able to publish a newspaper without the expert services of the ITU members, particularly in running its linotype operation, and other hot metal processes. With the growing automation in the newspaper industry, Respondent had achieved no- strike clauses in its contracts with other unions which enabled it to limit the industrial battlefield to the members of the ITU. While Respondent would certainly likewise acquire bargaining strength as a result of automation, it neverthe- less was, during the course of bargaining, in a very vulnerable position, then being involved in an extensive building program, a lawsuit with OSHA involving allegedly unsafe linotype machines in the composing room, and extensive discussions with various manufacturers of com- ponents regarding the purchase of very technical equip- ment which Respondent desired to integrate into a functional system. However, in order to implement the new technology, Respondent needed to remove potential obstructions, and pave the way to a smooth transition to the new equipment and processes which would become operational not forthwith, but in various stages dunng the life of the new working agreement. Despite its vulnerable position, and knowing full well that the Union would be exceedingly reluctant to relinquish those favorable contrac- tual provisions which it had acquired through the years. nevertheless Respondent felt compelled to take a stand, not for the purpose of undermining the Union, but, as the record shows, for valid business reasons. tripartite unit, jurisdiction. and management-rights clause and is hereinafter considered as such. 25 In World Publishing, the introduction of the "scanner," another type of front-end system, became the central issue around which the entire course of bargaining revolved. Respondent in the instant case chose not to use a "scanner" type of front-end system because of the higher costs involved. however, both the "scanner" and the terminals which Respondent intend to use perform the same ultimate function, and thereby eliminate composine room work. 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus there is no evidence that Respondent, having armed itself with technological innovations, was motivated by a desire to destroy the bargaining unit and undermine the Union's representative status.26 Rather, Respondent went to great lengths to explain to the Union that such was not its intention; 27 and there is no record evidence that Respondent's conduct away from the bargaining table belied its stated lawful motivation. Nor does it appear that Respondent was attempting to avoid reaching a collective- bargaining agreement. On the contrary, it is clear that Respondent was exceedingly anxious to arrive at an agreement which would allow a smooth transition to the new processes. Indeed, observing that no progress was being made, Fleming repeatedly suggested that the scale committee obtain the services of an ITU representative in order to accelerate the bargaining process which had became stagnate. Finally, Respondent exhibited through- out negotiations a sincere willingness to consider the welfare of the unit members, many of whom were longtime employees, and was not averse to negotiating regarding methods, such as retraining and job guarantees, whereby the transition would cause the least economic injury to members of the bargaining unit. It is in this light that Respondent's proposed manage- ment-rights clause must be evaluated. While clearly defining the unit and setting forth the Union's jurisdiction, as found above, Respondent has proposed to reserve, as a prerogative of management, the unequivocal right to operate its business in what it deems to be the most efficient and economical manner. A corollary of this, which the Union finds to be most unacceptable, is Respondent's intent to reserve to itself the very broad authority to determine from time to time what work shall be performed in the composing room. In Tomco Communications, Inc., 220 NLRB 636 (1975), the Board discusses the consideration to be afforded proposed management-rights clauses in evaluating the conduct of parties during the course of bargaining negotiations, stating at 636: It is well established that an employer's insistence upon a management-rights clause does not, in and of itself, constitute a violation of Section 8(a)(5) of the Act.' However, the nature of an employer's proposals on management-rights and other terms and conditions of a collective-bargaining agreement are material factors in assessing the employer's motivations in the course of collective bargaining. Rigid adherence to 25 Cf. Columbia Tribune Publishing Co., supra; Tomco (ommunicuations, 1I(, infra. z? See N. L. R. B. v. Lewin-Mathes Compauny, infra. IN It is highly questionable whether the Union was in fact fearful that Respondent would remove work historically performed in the composing room to other areas of Respondent's facility. Thus, although Respondent stated as specifically as possible what work would not be affected by the new technology and would therefore continue to remain in the composing room, the Union did not even request, prior to the impasse, infrau, that such a verbal commitment he reduced to writing. Further, Respondent was not reluctant to reduce this commitment to writing, and proceeded to do so during the latter stages of negotiations. Thus, Respondent's proposal of March 3. 1976. contains the following under the heading of "Jurisdiction": When the Employer introduces new electronic typesetting systems such proposals which are predictably unacceptable to the union may indicate a predetermination not to reach agreement, or a desire to produce a stalemate, in order to frustrate bargaining and undermine the statutory representative.2 IN. LR.B. v. American National Insurance Co., 343 U.S. 395 (1952). 2 Stuart Radiator Core Manufacturing Co.. Inc., 173 NLRB 125 (1968); Continental Insurance Co. v, N.L.R.B., 495 F.2d 44 (C.A. 2, 1974). It is therefore clear that a management-rights clause must be evaluated in conjunction with all other bargaining proposals and, moreover, the entire course of conduct during bargaining negotiations, in order to assess the good faith of a party. International Woodworkers of America, AFL-CIO, Local 3-10 [Long Lake Lumber Co.] v. N.L.R.B., 458 F.2d 852 (C.A.D.C., 1972). Obviously, as argued by General Counsel and counsel for the Charging, Party, such exclusive retention of authonty could, if abused by Respondent, theoretically result in the complete removal of all work heretofore performed in the composing room, for retaliatory or other reasons, to other areas of Respondent's facility, thereby eliminating the Union as a viable collective-bargaining representative. The Union voiced this alleged apprehension on numerous occasions during the course of bargaining, and Respondent consis- tently replied that the Union's fears were unfounded, that the composing room would always remain in existence, that certain composing room processes would not be affected or changed by the new technology, that new phototypesetting equipment was being placed in the composing room and would be operated by unit employ- ees, and that the Union would retain jurisdiction over the work performed in the composing room.28 However, Respondent wanted the unfettered right to install the expensive machinery and processes without being con- fronted with delays or interruptions which it anticipated could be caused by the Union's initiation of grievances, arbitration proceedings, and perhaps lawsuits, based in part upon ambiguous contract language. Further, Respon- dent desired to avoid similar potential disruptions after the new technology became operative. Finally, the work relating to the front-end system, which work Respondent intended to assign to employees outside the bargaining unit, would be, Respondent believed, better performed, for efficiency and other reasons, by newsroom or ad room employees rather than by composing room employees. As a result of these considerations, Respondent chose to reserve as video display terminals and/or optical character equipment, the fIllowing w ill be the arrangement for processing the work: 2. Classified: Classified Display Advertising, which cannot be efficiently handled by the system, shall be processed by employees covered by this Agreement. 3. Display Advertising: Display ads that require mark-up and/or paste-up will be processed by employees covered by this Agreement. 4. Typesetting Equipment: The photo-comp typesetting equip- ment will be located in the Composing Room. It shall be operated and maintained (if competent maintenance employees are available) by employees covered by this Agreement. 306 NEWSPAPER PRINTING CORP. to itself one particular management prerogative; namely, the exclusive right to determine the work to be performed in the composing room. And Respondent desired very broad ongoing prerogatives in this area as a result of possible production contingencies which apparently could not be readily anticipated or precisely defined until such time as a period of actual experience under the new systems could be evaluated. Just as the Union had the right, which it exercised during negotiations, to insist upon contractual language which would, at least arguably, guarantee the assignment of certain work to unit employees and which would, Respon- dent believed, enlarge the Union's jurisdiction to areas outside the composing room,29 so also did Respondent have the corresponding right to insist upon contractual language which would grant it the right to eliminate unit jobs 30 and assign particular work to whomever it select- ed.31 Respondent, for valid business reasons, and not for the purpose of attempting to undermine the Union or penalizing employees, chose to exercise its lawful rights in this regard. It is true that from the outset of negotiations Respondent was determined to make basic changes in the working agreement; but "a firm position consistently maintained is not necessarily evidence of bad-faith bargaining." 3 2 As stated in N.L.R.B. v. Herman Sausage Co., Inc.:33 If the insistence is genuinely and sincerely held, if it is not mere window dressing, it may be maintained forever though it produces a stalemate. Deep convic- tion, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system ... of free collective bargaining. Based upon the foregoing, considering Respondent's proposed management-rights clause together with the entirety of Respondent's proposals, I find that Respondent fulfilled its statutory duty to confer in good faith with the Union over the effect of automation on the bargaining unit and upon all other bargainable subjects presented during the course of negotiations, and that the evidence herein, viewed as a whole, does not disclose a motive or state of mind lacking the element of good faith.34 3. The bargaining impasse The applicable principles of law governing the right of an employer to institute unilateral changes during the course of collective bargaining are well established. In Taft Broadcasting Co., 35 the Board has succinctly set forth these legal principles and has specified the primary factors or Z'I See National Woodwork Manufacturing Associatrion 'r. N.I.R.B.. 386 U.S. 612, 642 (1967). International Typographical Union Local 38, et al. v. N.L.R.B.. 278 F.2d 6. 10-12 (C.A. 1, 1960), affd. in pertinent part 365 U.S. 705 (1961). :o Town and Country Manufacturing Company, Inc., 136 NLRB 1022, 1027 (1962). enfd. 316 F.2d 846 (C.A. 5, 1963). :' See N.L. R. B. . American National Ins. Co., supra, N.L.R.B. v. Lecwin- Mathes Companr. Division of Cerro De Posco Corp., 285 F.2d 329, 331-333 (C.A. 7. 1960); Columbia Tribune Publishing Co.. supra at 551: Teras Industries, Inc. 140 NLRB 527, 529 530(1963). :12 Times Herald Printing Company, 221 NILRB 225, 229(1975). standards to be considered and evaluated in connection therewith: An employer violates his duty to bargain if. when negotiations are sought or are in progress. Ic jnilateral- ly institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his preimpasse proposals. [Footnotes omitted.] Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. [A]n impasse is no less an impasse because the parties were closer to agreement than previously, and a deadlock is still a deadlock whether produced by one or a number of significant and unresolved differences in positions. There is "no fixed definition of an impasse or deadlock which can be applied mechanically to all factual situations which arise in the field of industrial bargaining. Nor is there a rigid formula for assessing so subtle an issue as the precise time when an impasse occurs." 36 Although matters of serious import other than "jurisdic- tion" were certainly proposed and discussed at great length during the course of negotiations, the parties simply have been unable to resolve their "jurisdictional" differences. Such was the case early on in negotiations; such was the case on or about January 21, 1976, when, as I find, the parties reached a bargaining impasse; such was the case when on June 11, 1976, General Counsel and counsel for the Charging Party acknowledge that an impasse was reached upon the Federal mediator, noting that the jurisdiction-unit issue constituted the major stumbling block between the parties, expressed reluctance in continu- ing to waste taxpayers' money by scheduling additional meetings; and, apparently, such is the case today. It appears unnecessary to review in detail the specifics of the six bargaining sessions prior to February 2, 1976, described above, which were conducted over a period of nearly 3 months. While Respondent did not make a written proposal until the conclusion of the third bargaining session, it is clear that Respondent's general proposals were verbally presented to the Union commencing with the :i3 275 F.2d 229. 231 (C.A. 5. 1960). 34 Omaha Typographical Union. No 190 v. N.LR. B., 545 F. 2d 1138 (C.A. 8, 1976). Times Herald Printing Company, supra; cf. Tomco Communications, Inc., supra; Columbia Tribune Publishing Co., supra. Palm Beach Post-Tiries, Division of Perry Publications, Inc., 151 NLRB 1030 (1965). 35 163 NLRB 475, 478 (1967) affd. sub nom. American Federation of Television and Radio Artists. AFL-CIO, Kansas City Local v. N. LR. B. 395 F.2d 622 (C.A.D.C. 1968). 3a Dallas General Drivers. Warehousemen and Helpers, Local L nion No. 745. IBT [Empire Terminal Whse. Co. v. N.L. RB. 335 F.2d 842. 845 (C.A.D.C., 1966). affg. 151 NLRB 1359(1965). 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initial bargaining session, and were discussed at length at the first and all subsequent meetings. The parties had ample opportunity to discuss, and did discuss, the "juris- diction" issue and all other issues to the point of stalemate, and after such discussions no indication of perceptible movement was exhibited by either party. There is no doubt that the Union believed that deadlock or impasse had been reached, as did Respondent. Thus, at the January 21, 1976, meeting Jobe commented that the scale committee was powerless to resolve major contract issues and further stated. "hell, call it what you want, impasse, deadlock or whatever -- we are, without question locked up on this thing. We're not making any progress." Later during that same meeting, after further discussion, additional state- ments regarding the scale committee's inability to resolve the key issues and the belief that a bargaining impasse was reached were voiced by the Union. Such beliefs were further reiterated by the scale committee during the meeting of January 28, 1976. And at the meeting the next day, January 29, 1976, the major issues were again discussed with no change in the positions of the parties. At many prior meetings Fleming had requested that the scale committee seek assistance from the ITU because of the serious contract issues confronting the parties. At one point Fleming was told that the Union did not want International assistance because the International did not always represent the best interests of the Union. At other times Fleming was told by Melton or Jobe that they would talk with and/or had been in communication with the International. And when Fleming was finally told at the January 21, 1976, meeting that the local was powerless to resolve the issues he expressed his disbelief, stating his opinion that the local, having been in communication with the International, was simply making unfounded excuses for failing to exercise the authority which the local body, at the outset of and throughout negotiations, admitted it possessed.3 7 Nor was the impasse broken by the scale committee's belated agreement on January 29, 1976, pursuant to Respondent's repeated exhortations throughout the course of bargaining, to finally request assistance from the International.3 8 At the outset of bargaining the Union advised Respondent of the Union's complete authority to negotiate and enter into a new working agreement. Further, during the course of bargaining the Union had stated and reiterated that it indeed had been conferring with the International, thus causing Respondent to believe that the views propounded by the Union were also the views of the International. Finally, upon being told that the scale committee did not have the necessary authority, Respondent stated its disbelief, and advised the Union that its alleged lack of authority was merely being used as a convenient excuse to avoid its real bargaining obligation. :7 It should be noted that the International is not a party to the collective-bargaining agreement, the expired contract containing the following exp anatory language: This agreement is approved as being in compliance with the laws of the International Typographical Union, as limited by the Taft-Hartley law, and the undersigned on behalf of the Executive Council of the International Typographical Union, hereby pledges as a matter of Union policy only, its full authority under its laws to the fulfillment thereof without becoming a party thereto and without assuming any liability, thereunder. At that point, Respondent was put on notice that continued bargaining with the Union would not result in an agreement. Nor could Respondent have reasonably believed that negotiating directly with the International would lead to a different result, as the International, so far as Respondent knew, had been advising the Union regarding its bargaining stance during negotiations. Being confronted with the utter futility of continued bargaining with the Union, Respondent imposed a deadline, certainly not unreasonable under the circumstances, requiring the immediate intervention of the International,3 9 and impress- ing upon the Union that time was of the essence. Not even being contacted by the International, and having reached an impasse with the Union, Respondent chose to put into effect certain unilateral changes in terms and conditions of employment as embodied in its letter of February 2, 1976. Under the circumstances, I find that a bargaining impasse began on January 21, 1976, and that the impasse was not broken merely by the Union's belated statement, shown above to be less than candid, to the effect that it would seek assistance from the International. Therefore, I find that Respondent was privileged to make certain unilateral changes on February 2, 1976, subsequent to the impasse. See United States Sugar Corporation, 169 NLRB 11 (1968); Taylor-Winfield Corporation, 225 NLRB 457 (1976); Times Herald Printing Company, supra. 4. The unilateral changes Having bargained in good faith to the point of impasse, Respondent is thereafter free to make "unilateral changes that are reasonably comprehended within his pre-impasse proposals." Taft Broadcasting Co., supra, Bi-Rite Foods, Inc., 147 NLRB 59, 65 (1964); Taylor-Winfield Corporation, supra. However, when unilateral changes are made which are not in line with or reasonably encompassed by the employer's preimpasse proposals, a violation is established despite the existence of an impasse. Ace Galvanizing, Inc., 217 NLRB 144 (1975); Times Herald Printing Company, supra. At the initial bargaining session on November 11, 1975, Respondent advised the Union of what would be incorpo- rated in Respondent's forthcoming proposals, including proposals regarding discontinuance of chapel meetings on company premises, modification of the jury duty provi- sions of the contract, and reducing the contractual ratio of apprentices to journeymen. And at the bargaining sessions of January 14 and 21, 1976, and thereafter, Respondent voiced its objection to the contractual priority hiring system, explaining that the complete elimination of the priority hiring concept was not being proposed; rather, Respondent was interested in clarifying certain ambiguous 38 Despite the Union's expressed verbal agreement to request bargaining assistance from the International, the Union's subsequent failure to do so until receiving the February 2, 1976, letter announcing the unilateral changes indicates that the Union had no real immediate intention of summoning International assistance, as agreed. a3 Respondent expected more than mere intervention by the Internation- al. namely, some assurance from the International. by telephone or otherwise, of the prospects of movement which would break the impasse. 308 NEWSPAPER PRINTING CORP. areas of the procedure which had caused disputes between the parties in the past. Respondent, in its written proposal of January 14, 1976, omitted any reference to the above-mentioned matters, and the record shows further discussion only of the priority hiring system during the ensuing course of bargaining prior to the impasse. I therefore find that it was reasonable for the Union to believe that such matters, other than the matter of priority hiring which was discussed subsequent to Respondent's written proposal, enunciated by Respondent early in negotiations but not further pursued, were not thereafter advanced as specific bargaining proposals. There can be no doubt that the withdrawing of permission to conduct chapel meetings on company premises constitutes a serious departure from the prior specific contract provision and apparently longstanding practice of permitting such meetings, and that requiring the Union to hold its meetings elsewhere results not only in inconvenience but also may result in economic detriment to the Union, and thereby to the employees. During the course of bargaining, there was some discussion about reducing the contractual apprentice-jour- neyman ratio, and while the Union apparently voiced its acquiescence in this regard, no such written proposal was ever advanced. More importantly, however, Respondent did not even mention, much less propose, during the preimpasse bargaining, the elimination of the Joint Ap- prenticeship Committee. Thus, it is clear that not only was there no reference to proposed changes in the Joint Apprenticeship Committee in Respondent's contract pro- posal of January 14, 1976, but Respondent's unilateral change of February 2, 1976, completely eliminating the contractual Joint Apprenticeship Committee, goes far beyond any matter advanced by Respondent during the course of negotiations. I therefore conclude that Respondent, by unilaterally instituting changes in terms and conditions of employment which go beyond, and were not reasonably comprehended within, its preimpasse proposals, specifically the matters of chapel meetings and the Joint Apprenticeship Committee, has committed violations of Section 8(a)(S) of the Act.40 Ace Galvanizing, Inc., supra; Times Herald Printing Compa- ny, supra. While the jury duty language contained in Respondent's unilaterally established "work practices" letter of February 2, 1976, has been extensively changed from the prior contract language, the record is not sufficiently clear to establish that the new jury duty language constitutes a material departure from actual past practice of the parties, or whether the language is merely a codification or clarification of past practice. Therefore, as insufficient record evidence exists to show that the new language constitutes a material departure from prior practices, I find 4( Respondent's contention that the language used in its contract termination/reopening notice to the Union dated October 17, 1975, as interpreted by an arbitrator. above, thereby privileges Respondent to make unilateral changes upon the termination of the contract and without having arrived at impasse is clearly erroneous, particularly where, as here, Respondent and not the Union is asserting the waiver of the Union's nghts based upon the self-serving language contained in Respondent's termina- tion/reopening letter. See Kingsport Publishing Corporation, 165 NLRB 694, 695 (1967), enforcement denied on other grounds 399 F.2d 660 (C.A. 6, 968). that the necessary burden of proof has not been met to establish that Respondent, by the institution and imple- mentation of such language, has further violated the Act. With regard to the Joint Standing Committee, it is clear that at the outset of negotiations Respondent maintained that referral of a grievance to the committee should not operate as a stay or temporary reversal of a prior management decision. And in its proposal of January 14. 1976, Respondent preserved its position by proposing that the particular section of the contract was "open for discussion and clarification," thereby indicating to the Union that Respondent had not abandoned its prior verbal proposal in this regard. It appears that while disestablish- ing the Joint Standing Committee, Respondent is neverthe- less not abolishing the underlying grievance procedure, stating in its February 2, 1976, letter that certain grievances "will be handled through a grievance procedure identical with the prior custom, but without arbitration, unless by mutual agreement." Under the circumstances, the matter not being fully litigated or briefed, the actual practice of the parties under the new grievance procedure not having been established (it seems that Respondent proposed on February 12, 1976, that the committee would, in fact, function), and there being other sections of the expired contract (secs. 6, 34, and 35) bearing on the matter but not placed into proper context during the course of the proceedings, I find the record evidence insufficient to show that the disestablishment of the Joint Standing Committee constitutes a material departure from the proposals advanced by Respondent during negotiations. Moreover, Respondent's refusal to honor provisions of an expired contract calling for arbitration of grievances, even though there has not been bargaining thereon, does not violate Section 8(a)(5) of the Act. The Hilton-Davis Chemical Company, Division of Sterling Drug, Inc., 185 NLRB 241 (1970). I find that the other unilateral changes announced in Respondent's February 2, 1976, letter and thereafter apparently instituted were privileged, there having been requisite bargaining proposals and discussion reasonably encompassing the changes made with regard to substitute hiring,41 priority hiring, jurisdiction, management rights, ITU general laws, ITU negotiated pension plan, and reproduction. CONCLUSIONS OF LAW i. Respondent Newspaper Printing Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Tulsa Typographical Union Local No. 403 is a labor organization within the meaning of Section 2(5) of the Act. " I find that although Supervisor Marion Wood impliedly threatened Chapel Chairman (union steward) Phil Jones with discharge. Wood later told Jones he meant nothing by it, and such implied threat was made as a result of Respondent's belief that the Union was blatantly refusing to adhere to the new, lawfully implemented, work rules regarding substitute hiring, which had become effective on February 2. 1976. Having found that Respondent was privileged to make such changes, I find that Respondent's attempt to enforce the implementing rules by its implied threat to Jones, did not violate Sec. 8(aX I) of the Act, as alleged in the complaint. 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent has bargained in good faith to an impasse with the Union over the matters of jurisdiction, management rights, ITU general laws, ITU negotiated pension plan, priority hiring, substitute hiring, and repro- duction, and has otherwise not been shown to have refused to bargain in good faith. 4. Respondent by unilaterally instituting changes in certain terms and conditions of employment which were not reasonably comprehended within its preimpasse pro- posals, namely, the elimination of chapel meetings on company premises and the disestablishment of the Joint Apprenticeship Committee, has engaged in and is engaging in, unfair labor practices in violation of Section 8(a)(5) of the Act.42 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Except as found above, Respondent has not engaged in other unfair labor practices as alleged in the complaint. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act.4 3 Respondent will be required to restore the pre-existing practices concerning chapel meetings on company prem- ises, and to reestablish and thereafter permit the function- ing of the Joint Apprenticeship Committee, as such matters were applied, operated, and interpreted under the expired 1973-76 collective-bargaining agreement, and as modified by collective bargaining subsequent to February 2, 1976. Further, Respondent will be required to post an appropri- ate notice. There has been no showing that the Union and/or any particular unit employees have been economically injured as a result of such unlawful unilateral changes, such potential injury being entirely speculative at the present time. Therefore, I shall leave for the compliance stage of this proceeding any further remedial provisions, including reimbursement to the Union for expenses incurred in holding chapel meetings elsewhere, and backpay and reinstatement for employees who may have been injured as a result of the discontinuation of the Joint Apprenticeship Committee, which further remedies may be determined to be necessary to effectuate the purposes of the Act. [Recommended Order omitted from publication.] 12 In subsequent bargaining proposals Respondent agreed to the prior contract provisions regarding the Joint Apprenticeship Committee, as proposed by the Union, and Respondent further proposed that chapel meetings he permitted in the composing room and employees then on duty be permitted to attend "with permission of the foreman." It therefore appears that subsequent bargaining has modified Respondent's original unilateral changes of February 2, 1976, to the extent indicated. There is no showing, however, that Respondent is now permitting chapel meetings to take place on company premises or that the Joint Apprenticeship Committee is now viable, Respondent perhaps taking the position that the unilateral changes will remain in effect until a new agreement is reached, as Respondent indicated in its letter of February 2, 1976. 4:1 I do not regard the statements of counsel for the General Counsel and counsel for the Charging Party acknowledging an impasse to have occurred on June I 1. 1976, as an implied assertion that the remedy herein should not be recommended. APPENDIX A NEWSPAPER PRINTING CORPORATION'S PROPOSAL FOR TYPOGRAPHICAL UNION #403 Agreement Section: Remain the same except for date changes. Section 3: JURISDICTION The jurisdiction of the Union and the appropriate unit for collective bargaining is defined as including only those employees engaged in all work which the Employer may from time to time designate to be performed in the Composing Room. It is the express intention of the Employer to accomplish his complete production needs in the manner which he determines to be the most effective and economical method to fulfill the work requirements. In the event a computer and related equipment are located in the Composing Room and such are used for Composing Room work, the jurisdiction of the Union will include only input originating in the Composing Room, but shall not include any input originating outside the Composing Room. This shall in no event be construed to be a limitation upon the right of management to cease any procedure or remove any equipment from the Composing Room, in the interest of efficiency. The Jurisdiction referred to herein shall not follow the equipment or procedures. Nothing herein shall preclude preparing material to be sent outside the Composing Room for the making of photographically enlarged, reduced, screened, or reverse plates to be incorporated subsequently in copy to be used by the Publisher. References to jurisdiction are for purposes of delineating between the various units of represented employees, not ownership of work. Where savings can be realized or quality and consistency improved, it is agreed that the Employer may put into practice pre-printing of recurring items including but not limited to: (1) Advertising borders, boxes and rules. (2) Advertising signature cuts, including addresses and telephone numbers and other material normally incorporated in the signature. (3) Typefaces and/or figures which are requested and/or provided by advertiser. (4) Standing news, columnists and feature headings, continued lines, news fillers, masthead, standing boxes and other similar material. (5) Want ad and other promotional material. No duplication of work will be performed between departments, or employees, and should this occur, the Employer shall determine who will do the work. In the event any news, editorial or advertising matter is received from any source, including but not limited to the leased wires of AP, UPI, syndicated news features (in forms such as scanner-ready copy, tapes for CRT and/or VDT), it is agreed that such matter shall be processed as directed by the Employer. 310 NEWSPAPER PRINTING CORP. It is not intended that the Union's jurisdiction include the addition of creative artwork to reproduction proofs. Nothing herein shall preclude sending glossy proof to a customer for the making of photographically enlarged, reduced, screened or reverse plates by the customer to be incorporated in copy to be used by the Employer. Nothing herein shall prevent the Employer from sending proofs of type to advertisers to be used in advertising material. It is further understood that the Employer's right to perform Research and Development work on the afore- mentioned equipment and processes with persons not covered by this Agreement shall not be limited, provided such Research and Development is not producing live matter for any publication or printed products for sale by the Newspaper Printing Corporation. Nothing in this section shall be construed as abridging in any manner the right of the Employer at his option to have installations made by experts, not to interfere with the temporary services of qualified and experienced traveling inspectors and repairmen. Section 4: Eliminate. Section 5: Remove . . . "who shall be a member of the Union.". ... Section 7: Open for discussion and clarification. APPENDIX B Mr. Robert Melton, President February 2, 1976 Tulsa Typographical Union #403 P.O. Box 44 Tulsa, Oklahoma 74102 Dear Bob: In light of the fact that the contract with your Union expired by its terms and notification on January 31, 1976, and pending execution of a new agreement or a corltinua- tion of the existing impasse, no provision, past practices or obligations that existed under the prior contract will be effective. We announce the following work relationships that will exist not as a contractual understanding but work practices as follows: Wages: Unchanged. Hours. Work will continue to be performed as presently scheduled, including lunch periods, holidays, and vacations. Working Conditions: It is the express intention of the Employer to accomplish his complete production needs in the manner which he determines to be the mo effective and economical method to fulfill the work requirements. In this connection, Management shall exercise the right to cease any procedure or remove any equipment from the composing Room, in the interest of efficiency. No duplication of work will be performed between departments, or employees, and should this occur, the Employer shall determine who will do the work. No provisions of the ITU general laws or any other rules or bylaws of the International Typographical Union shall be considered applicable to the work relationships of the Employer. There shall be no Standing Committee. Any disciplinary or discharge case that may arise will be handled through a grievance procedure identical with the prior customs, but without arbitration, unless by mutual agreement. The priority system will only apply when increasing or decreasing the work force, with competency to perform the job in question as the determining factor. All situations shall be staffed only by the Employer. Situations will be filled and all placements handled exclusively by the Employer with competency as the highest criterion for selection and retention. There will be no Chapel meetings held on the company premises. There will be no deductions made for any pension plan. However, an amount equal to fifty cents for each shift worked, maximum weekly amount $2.50, shall be included in checks for each employee for disposition at his discretion. There shall be no reproduction work not required by the Employer. Jury Duty: Any regular full-time employee required to serve on jury duty shall be protected against loss of pay due to such service. This compensation shall be the difference between the pay received from the Court (as verified by the Court) and the scale of the employee. This compensation is applicable only if serving on the jury takes place during the individual's normal scheduled working hours and shall not be paid for any time off for which compensation is forthcoming under this agreement, such as holidays, vacation or other special pay. There shall be no Joint Apprenticeship Committee. Any apprenticeships shall be handled exclusively at the direc- tion of the Employer. Funeral pay shall remain unchanged. The provision of insurance for the loss-of-time will remain unchanged. This is not to the prejudice of the use of the collective bargaining process to reach a new agreement. Sincerely, NEWSPAPER PRINTING CORPORATION /s/ Kenneth S. Fleming Vice President/General Manager 311