The Baltimore News American Division

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Baltimore News American Division, The Hearst Corporation and Baltimore Typographical Union No. 12. Case 5-CA-8061 June 14, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On November 11, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent, the Charging Party, and the General Counsel filed exceptions and supporting briefs. Respondent filed a reply brief to the exceptions filed by the Charging Party and by the General Counsel, and the General Counsel filed a reply brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Baltimore News American Division, The Hearst Corporation, Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hearing in this case was held on September 23, 1976, at Baltimore, Maryland, on complaint of the General Counsel against The Baltimore News American Division, The Hearst Corporation, herein called Respondent. The complaint issued on August 6, 1976, on a charge filed on July 12, 1976, by Baltimore Typographical Union No. 12. The only question to be decided is whether, by dealing individually with its active employees and in consequence paying them greater retirement benefits than its current contract with the Union provided, Respondent violated Section 8(a)(5) of I In pertinent part the early retirement plan set out in the contract reads as follows: . . an early retirement plan for present situation holders shall be 230 NLRB No. 29 the National Labor Relations Act, as amended. Briefs were filed by all parties. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, with its principal office in New York, New York, is engaged in the publication of daily and Sunday newspapers called "The Baltimore News American" and "The Sunday News American," at its Baltimore, Maryland, location. During the preceding 12 months, a representative period, Respon- dent had gross revenues exceeding $200,000; it regularly carries in its newspapers advertisements of products which are nationally advertised and sold in interstate commerce. I find that Respondent is an employer within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that Baltimore Typographical Union No. 12 is a labor organization within the meaning of Section 2(5) of the Act. In. THE UNFAIR LABOR PRACTICES Insofar as the truly pertinent facts are concerned there is no dispute in this case, no relevant question of credibility at all, and no subordinate issue to be resolved. On the face of the clear and uncontroverted evidence - spoken and documentary - Respondent violated the statute when it bypassed the Union in its dealings with admittedly union- represented employees. At the time of the events a collective-bargaining agreement was in effect between the Company and the Union; it was due to expire at the end of 1976. Two substantive sections of that contract directly related to and gave rise to the events leading to this proceeding. One section provides for a jointly administered Pension Trust Fund, its assets to assure retirement benefits to all employees covered by the contract. Details of how age and years of service determine benefits later to be received under what the contract calls the retirement plan are not set out in the agreement, but that detail is irrelevant to the question of this case. The contract does set out precisely how much money the Company must contribute to the pension fund. The agreement also contains a special clause detailing "an early retirement plan"; this provides that employees who have reached the age of 62, and have worked 5 years, would be paid additional sums directly by the Company if they retired.1 The second relevant provision, entitled "Job Security," establishes what are called "situations" for "members [of the Union I] who are presently employees." The clause then says these individuals [later personally and individually named in an appendix] "will be guaranteed life-time made available. The opportunity for early retirement shall be extended on a voluntary basis to all employees of more than five (5) consecutive years of full time service who have reached age sixty two (62). 216 BALTIMORE NEWS AMERICAN employment under the latest collective bargaining agree- ment so long as the newspapers are published. .. subject only to termination of named employees on the list appended hereto by voluntary retirement, resignation, death and dismissals for just and sufficient cause .... " The related appendix to the contract, or "list appended hereto," then sets out 134 names of the printers at work, all members of the Union. It is important to note that the "early retirement plan" provided for in the contract itself and identified by precisely those words, applies - again by use of unmistakable language - to "present situation holders." This means, again, the 134 persons individually named in the contract appendix. Both the ultimate purpose of these clauses and the words used at many places in the fuller language used in the contract are unusual in employer-union contracts. But in plain language, what they mean - and all parties at the hearing agreed that this is so - is that at least up to the end of 1976, when that agreement was to expire, Respondent bound itself not to remove from its payroll any one of the persons named in the appendix - virtually all of the regular full-time employees in its composing room. They could retire, as provided; they might die; they might just quit. But unless they misbehaved and merited discharge for "just and sufficient cause," they had to be paid full time regardless of whether or not there was any work for them to perform. Offer, and Payment, Over-and-Above Contract Terms By May 1976 there was not enough work for all the people in the composing room to do. The regular pension benefits provided for in the contract through the joint pension trust fund, even with the additional early retire- ment that employees under age 62 could choose, had not been sufficiently attractive to employees to induce enough of them to accept what had been agreed upon by contract and to get off the payroll. In order to induce some of the unneeded printers to leave and thereby to curtail the unnecessary part of its payroll, Respondent decided to offer them more in monthly retirement payment than the contract called for. It prepared a written plan called "Voluntary Employment Termination Incentive Payment Option," and distributed it among the employees. The offer was that employees who could not retire at all under the contract could now get some benefits if they went away; others could get more than the contract provided; under one provision some printers could choose a quick check for $15,000 in place of periodic support. Respondent had offered a similar voluntary retirement program the year before, in 1975, but made available to only some of the employees listed on the contract appendix. That plan had long ago been discontinued because, as the manager of Respondent said at the hearing, it had not been "successful." By this he meant that not enough people had left the payroll. It is not necessary here to set out the details of the 1976 plan, for all that matters is that, as Respondent conceded at the hearing, it substantial- ly departed from the contract provisions. The Union first learned of the Company's intention to pay greater retirement benefits to its employees than the contract called for, on May 20, in the manager's office. Theodore Kees, president of the Local Union, and Edward Lindt, chapel chairman, were called in. There is a pointless dispute among the witnesses as to precisely what was said at that meeting. The union agents said they were handed a copy of the plan, but did not really read it, and rejected it off hand. Anderson, the general manager, said the Company did not at that meeting put the plan in the hands of the union agents. But they agreed that the immediate reaction to the entire proposal was rejection by the Union. From Anderson's testimony: "Mr. Kees volunteered that if we presented the proposal to him, he would take it down before the National Labor Relations Board. .... the plan was not submitted because of the statement that it was going to go before the National Labor Relations Board, as a charge." Without belaboring the details, there is no question but that at that meeting all the Union said was it was opposed to the plan and would file charges. I also credit Kees' testimony that he told the Company that day that in his opinion the subject was a negotiable matter. The Company did nothing until it met with the union agents again on July I. Here, Anderson's testimony is that he explained to the Union that there had not been enough "attrition," and that the Company needed "a change because of the high cost of the over staffing." Anderson continued that despite his explanations to Kees that the employer was pressed economically to do this, all the union president did was say, "that it would still go to the Labor Board." There was absolutely no such thing as bargaining between the parties about this proposal. Apparently, in terms of money, the proposal was worth about $20,000 to each man who retired, over and above whatever the contract provided for anyway. At one point the union agents laughed at the idea, and suggested instead the job might be worth $150,000. The parties bandied back and forth with words such as "silly" and "ridiculous," to one another. It is also clear, on the uncontradicted testimony of union witnesses, that management told the Union that very day they intended and were going to put the plan in effect. They did so that very day. On July 2 the Company posted a notice in the composing room inviting employees to study the details of the plan and to retire. The Union posted a notice to the same people on July I advising its members not to accept the plan, and informing them that it was the Union's intention to file charges with the National Labor Relations Board because of what the Company was doing. Between July I and August 5, 13 employees accepted the Company's proposal, were paid, and have since left the Company. Analysis and Conclusion Retirement and pension benefits later to be given employees presently on the job are conditions of employ- ment within the meaning of that phrase as used in the statute, and therefore mandatory subjects of collective bargaining. Allied Chemical & Alkali Workers of America, Local Union No. I v. Pittsbwurgh Plate Glass Co., Chemical Division, et al. 404 U.S. 157 (1971). This means the employer may not as to this subject deal with its employees 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individually, or unilaterally, in disregard of their bargain- ing agent. And, of course, this also means that, after the employer has bargained with the union about such pension and retirement benefits, and signed a fixed contract precisely detailing the agreed-upon conditions, it may not thereafter deal with its employees individually, or unilater- ally, without the approval of their bargaining agent. Respondent had agreed with the Union 134 people would stay on the payroll - work or no work, but would be given so much but no more after leaving as later compensation for having worked there. In the face of the Union's absolute refusal to agree to proposed changes in the contract terms, Respondent did as it pleased. If any more be required to prove the commission of unfair labor practices in this situation, one need only look at Section 8(d) of the statute, which in so many words says that where there is in effect a collective-bargaining agreement "the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract," and that "the duties so imposed [by the statute] shall not be construed as requiring either party to discuss or agree to any modification" of the contract "if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract." I find that Respondent violated Section 8(aX5) of the Act by dealing directly with employees on the subject of how much money they would receive in retirement benefits and by in fact paying a number of them over and above the amounts the current contract called for. The General Counsel takes a different view of the case. He argues that the unfair labor practice is to be seen in the fact that Respondent, after hearing the union agents say that this was a negotiable matter, failed in its statutory duty to discuss the matter in good faith, comprehensively, with an open mind. For the most part, the General Counsel's brief reads as though the contract did not exist. He reads more in the words of the union president than was intended, or that in fact the following conversation among the parties would indicate. This was Kees' way of telling Respondent that it could not lawfully do this directly by dealing with the employees; in fact, Kees' offhand statements at the beginning of both meetings that he would go directly to the Labor Board to prevent what was about to happen could not make his position clearer. I think the General Counsel reads more than is warranted in the Board's holding in Equitable Life Insurance Company, 133 NLRB 1675 (1961), which says that where an employer has told the employees it wishes to give them more in pay and the union requests that the matter be discussed, the employer is obligated to talk with the union about its intention. It does not follow from this holding, however, that where in the end the union simply will not "agree," as the statute says is its right, the employer may nevertheless disregard the total language of Section 8(d) or the binding effect of the contract upon both parties. As to the factual assertion that Respondent did not bargain in good faith with the Union about its intent, certainly not to the point where in other circumstances an impasse could be spoken about, I find it to be correct on this record. If ever there was a picture that shows no bargaining worth mentioning, this was it. All that hap- pened was a mutual exchange of belittling remarks, each party calling the position of the other "silly" or "ridicu- lous." The Company's offer of the additional payment to the employees amounting to about $20,000 over the years, the Union came back with the suggestion the job was really worth $150,000. In ignoring the Union's cross-suggestion that the amount of the Company's offer should be raised to $150,000, Respondent's brief contends that it was the Union which therefore failed to bargain in good faith. But there is testimony of Richard Friedman, Respondent's assistant business manager, who testified that at the July 1 meeting management responded to the Union's position "by saying that there is no way that the publisher can make an offer to you - the ridiculous offer that you are proposing to the News American." The one thing that appears clearest on this record is that neither party moved from its original position, the Company saying offhand this is what it was going to do then and there, and the Union saying it simply would not consent. There was no impasse because there was no bargaining at all. But even assuming any of the talk that took place could be described as collective bargaining, so long as a party is not required to agree, in the words of the statute, I cannot see how its attempts to explain to the other party why it does not agree, or even its attempt to persuade the employer to a different course can deprive it of this basic legal right. I find no merit in Respondent's defense assertion that the Union itself refused to bargain, or that there was any impasse. I also find no merit in the assertion that what was involved here was not a condition of employment and therefore a bargainable issue under the statute. The essence of the new proposed plan was how much money was the Employer going to pay its present employees for having worked there. Carnation Company, 192 NLRB 237 (1971), is therefore completely inapposite. As to the further argument in Respondent's brief that because acceptance of its offered inducement was voluntary on the part of the employees the money part of what it was giving them must be ignored, this is not the place to teach logic. There is also an assertion that the Union waived any right to bargain about a negotiable matter; nothing could be further from the truth. Here Respondent relies upon the fact that in 1975 the Union did nothing about its unilateral action. From Pacific Coast Association of Pulp and Paper Manufacturers v. N.LR.B., 304 F.2d 760 (C.A. 5, 1962), cited in Respondent's brief: "The fact that, for nearly 15 years, the Unions did not insist upon doing so, does not require a finding that they had bound themselves not to do so the next time." And finally, a last defense assertion is that Respondent had no other choice because it was throwing money away - paying people who were not doing any work. On this record there is no denying the assertion seems true. But economic considerations appropriately govern the thinking of both parties when the collective-bargaining agreement is negotiated; once it is made the parties are stuck with its terms. If either could change it at all for economic reasons there would be no purpose in having any collective- bargaining agreements. 218 BALTIMORE NEWS AMERICAN IV. THE REMEDY I think the real question in this case is what shall the remedy be. Throughout the hearing the Union complained that the Company was trying to buy the employees out of their jobs, subverting their self-interest with a pittance, offering perhaps S20,000 for jobs worth $150,000. Normal Board procedures have long been to order a respondent to undo the effects of its illegal conduct, put the people back where they were, restore the status quo. But here again the General Counsel is somewhat ambivalent in his position. His brief speaks more of what remedies he does not request than what he seeks. He went out of his way to make it clear he does not think the retired employees need be offered an opportunity to return to their jobs. He also says the General Counsel "takes no position whether" the retirees need repay to the Company what extra money they have received for going away if they should choose to return to work. The clear request of the General Counsel, if he is to be taken literally, is that Respondent must be ordered to resume paying 134 people full pay without regard to the fact - clear on this record - that there is no work in the composing room for a substantial number of the original 135. From the General Counsel's brief: "The status quo ... is a bargaining unit having 134 composing room employees with the guarantee of lifetime employment ... General Counsel seeks only the restoration of the previola- tion conditions in the Respondent's composing room; i.e., a bargaining unit in which 134 employees have a contrac- tual guarantee of lifetime employment." The union puts it differently: "the only proper means of returning the parties to a status quo ante is through a restoration of situations to the bargaining unit, and payment by Respondent of those dues lost through the absence of these situations." The General Counsel's position amounts to a demand that Respondent now put somebody on its payroll - no matter who - and pay them regardless of whether there is work for them to do or not. What the Union is really saying is that while Respondent need not put people on its payroll if there is no work for them to do, it should be ordered nevertheless to pay directly to the Union whatever checkoff moneys, or other payroll contributions employees who might work - but in fact are not working - would make. There is no precedent in Board law for ordering an employer-respondent to place people on its payroll - persons who have never before been its employees and who therefore have not themselves suffered a hurt at its hands - and pay them while concededly there is no work for them to do. And it has long been an established principle that remedial orders under this statute are not to be punitive in character, but only restorative of the status quo. There is a certain literal logic in the contention that absolute restructuring of the past in this case means reestablishing the artificial arrangement of the unusual, to say the least, contract in effect when the unfair labor practices were committed. But it does not follow, merely because the parties, for reasons sufficient to themselves, saw fit to agree to force payment to employees who do not work, that the Board of necessity ought to be party to such 2 Although not exactly in point, a phrase from the decision of the Second Circuit Court of Appeals in E.E.O.C v. Steam Filters Local 638, 13 F.E.P. methods. The General Counsel could as well argue that where an unlawfully discharged employee elects not to accept the normal offer of reinstatement following a Board order, the employer must hire a stranger in his place, work or no work. Moreover, it is not true that the contract guaranteed continued existence of a unit of "134 composing room employees," as the General Counsel asserts. There is a confusion in terms here; the words "job" and "situation" are bandied about interchangeably, but as used in the context of this case they have totally different meanings. In my experience a job refers to a condition where there is certain work to be done and an employee performs it; the man has a job, works at it, and therefore is a paid employee. As used in this case - in the written contract and by the union representatives at the hearing - a "situation" is a job in which there may or there may not be any work to be performed, where the man on the "job," or in the "situation," works or does not work - depending upon whether or not there is any work to be performed - but is paid regardless of whether he works. There is another reason for denying this request that Respondent be ordered to call people from who knows where, and pay them now for "standing around doing nothing." The contract does not say the Employer agrees to pay people even if it should have no work for them to do; it says it shall pay "members who are presently employees ... named . . . on the list appended hereto .... " In plain language this means Joe, Sam, and Harry - or all the Joes, Sams, and Harrys individually identified by name in the appendix to the contract - have a contractual right to be paid even if there is no work for them. The contract does not say that if any of these quit, die, retire (or refuse to accept Respondent's offer of reinstatement as provided for here?), Respondent is obligated to call someone from off the street - even if it has no work for them to do, and pay him also.2 I also find no merit in the Union's suggestion that Respondent be ordered to pay to the Union whatever moneys it would have forwarded had the 13 now retired employees never left work. I suppose the moneys, not detailed in the brief, include such things as dues checkoff, pension contributions, and health and welfare payments. A labor organization has no existence apart from its mem- bers. And any assets payable to it by an employer must be predicated upon work performed by employees - mem- bers of or represented by the union. Payments are not made by an employer to a union on the basis of theoretical abstractions. The 13 employees who were unlawfully induced to leave their jobs must be offered an opportunity to return to work if they so desire. They are also free to remain in permanent retirement. If they do return, they must be made whole, and paid for what wages they lost on the job for having left. As usual, any interim earnings they have had will be deducted from their lost wages with Respondent in the event of their return. In this special case, the measure of interim earnings will include what payments Respondent in fact gave them in the form of preferred benefits under the 705, is not totally inapposite: [W ]e are not in the business of redistributing the wealth ... 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plan, including, wherever it may have happened, the $15,000 offered as single payment benefit. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set out in section 111, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. By dealing individually and unilaterally with its employees concerning pension and retirement benefits and by paying them pension and retirement benefits in excess of the conditions set out in its current collective-bargaining agreement with Baltimore Typographical Union No. 12, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aXl) and (5) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices [affecting commerce] within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, The Baltimore News American Divi- sion, The Hearst Corporation, Baltimore, Maryland, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Dealing individually and unilaterally with its employ- ees concerning pension and retirement benefits while a collective-bargaining agreement covering such conditions of employment is in effect between Respondent and Baltimore Typographical Union No. 12, or paying them pension and retirement benefits in excess of the amounts provided for retirement and pension benefits in its contract, without approval of the contract union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist Baltimore Typographical Union No. 12, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to each of the 13 employees who retired during the year 1976, pursuant to Respondent's innovative early retirement plan, immediate reinstatement to their prior positions, or, if such positions no longer exist, to compara- ble positions, without prejudice to their seniority and other rights and privileges. (b) Make whole all of the foregoing employees for any loss of pay or benefits they may have suffered by reason of their retirement in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Baltimore, Maryland, copies of the attached notice marked "Appendix." 4 Copies of said notice on forms provided by the Regional Director for Region 5, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 4 In the event that the Board's 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." 220 BALTIMORE NEWS AMERICAN APPENDIX NoncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LAiOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT offer to our employees individually benefits in terms and conditions of employment, including particularly pension and retirement benefits, in excess of the terms set out in our current contract with Baltimore Typographical Union No. 12. WE WILL NOT pay individually to our employees pension and retirement benefits in excess of the terms set out with respect to those conditions in our current contract with the Union. WE WILL offer reinstatement to each of the 13 employees who during 1976 retired pursuant to our voluntary retirement plan and make them whole for any loss of earnings they may have suffered in consequence of their separation from employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist Baltimore Typographical Union No. 12, or any other labor organization, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. BALTrMORE NEWS AMERICAN DIVISION, THE HEARST CORPORATION 221