Columbia Tribune Publishing Co.

National Labor Relations Board - Board Decisions

Feb 1, 1973

201 N.L.R.B. 538 (N.L.R.B. 1973)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbia Tribune Publishing Co. and Columbia
Typographical Union No. 160 . Cases 17-CA-647
and 17-CA-4840
February 1, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On May 10, 1972, Administrative Law Judge' Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.
The Board agrees with the Administrative Law
Judge that the Respondent violated Section 8(a)(1),
(3), and (5) of the Act for the reasons detailed in his
Decision. We also affirm his recommendation that
backpay should be computed on the basis of the
$4.33 hourly rate and 37-1/2-hour workweek, be-
cause, as stated in that Decision, these were the
conditions of employment at the time the employees
became unfair labor practice strikers and these
conditions had not been changed as a result of good-
faith bargaining.
The Administrative Law Judge has found, and we
agree, that the composing room unit is an appropri-
ate unit for the purposes of collective bargaining and
that the conversion by the Respondent of this
operation from a hot metal to a cold type process
neither impaired the appropriateness of the unit nor
the union's representative status. He has, therefore,
ordered the Respondent to reinstate the strikers upon
their renewed application 2 to the hot metal and cold
type jobs, dismissing, if necessary, any replacements
in order to provide work for these strikers.
His recommended Order provides for reinstate-
ment of the strikers ". . . to their former jobs or, if
those jobs no longer exist, to substantially equivalent
cold type positions . . .." Although the method of
operation of the composing room has been changed
from hot metal to a cold type process, the function of
the composing room has remained the same , and the
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 James Epperson , Jr. and Michael Naughton were not offered the two
unfair labor practice strikers who worked in the
composing room are entitled to be reinstated to the
jobs in that unit. Furthermore, as stated by the
Administrative Law Judge, some strikers had previ-
ous cold type experience, others had already been
retrained, or, if there are any who may not have the
necessary skills, it would be reasonable to assume
that they could be trained with no more instruction
than the newly hired inexperienced replacements.
We shall , therefore , order reinstatement of the
strikers to their jobs as they are now constituted
under the new process . We are ordering reinstate-
ment of the strikers to positions, of which some, at
least , may have undergone considerable change in
job content , as a means for remedying the violations
found, of making the employees whole for losses
incurred by reason of the Respondent's unfair labor
practices, and of restoring the status quo ante as
nearly as possible . However , we must recognize that
the cold type process may require lesser skills than
those exercised in the hot metal process and the
Respondent may be economically justified in paying
lower rates. Accordingly, we conclude that reinstate-
ment should be made at the present rate being paid
for the composing room work, subject to collective
bargaining between the Respondent and the Union
as to those rates.
If, after dismissal of the replacements , there are
insufficient positions for the employees ordered
reinstated, the available positions shall be distributed
on a nondiscriminatory basis. Those employees for
whom no employment is available shall be placed on
a preferential hiring list.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Columbia Tribune Publishing Co., Columbia, Mis-
souri , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with Columbia Typographical Union No. 160, as the
exclusive representative of the employees in the unit
described below, concerning rates of pay, wages,
hours of employment, and other conditions of
employment:
All employees in the composing room, at the
Company's plant in Columbia, Missouri, exclud-
ing office clerical employees, guards and supervi-
hot metal jobs , as were the other stokers, and, therefore , they are not
required to renew their applications to return to work made on September 8.
and their backpay shall not be tolled as is that of the other strikers.
201 NLRB No. 70
COLUMBIA TRIBUNE PUBLISHING CO. 539
sors as defined in the Act, and all other
employees.
(b) Refusing to incorporate in any agreement
reached by the parties a description of the appropri-
ate bargaining unit represented by the above-named
Union.
(c) Discouraging membership in the above-named
Union by refusing to reinstate employees who
engaged in a strike called by that Union or
discriminating against them in any other manner in
regard to their hire or tenure of employment or any
term or condition of employment.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the above-named Union, as the exclusive
representative of all the employees in the unit
described above concerning rates of pay, wages,
hours of employment, and other conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer James Epperson, Jr., and Michael
Naughton immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to cold
type positions, without prejudice to their seniority or
other rights and privileges.
(c) Upon unconditional application, offer the
employees named below immediate and full reins-
tatement to their former jobs or, if those jobs no
longer exist, to cold type positions, without prejudice
to their seniority or other rights and privileges
dismissing, if necessary, any replacements:
Walter Hart, Jr.
John McKay
Harold LaRue
Harold Bayless
Kenneth Stanley
Bill Hill
Clyde Yeager
James Albert Adams
Fred Canny
George Gouker
Robert Loutzenhiser
Gordon Williamson
If any employees remain for whom no positions are
available, the Respondent shall place such employees
on a preferential list with priority in accordance with
such system of seniority or other nondiscriminatory
practice heretofore applied by Respondent in the
conduct of his business, and thereafter offer them
reinstatement as such employment becomes available
and before other persons are hired for such work.
(d) Make whole all of the above-named employees
for any loss of earnings they may have suffered by
reason of the discrimination against them in the
manner set forth in the section of the Decision of the
Administrative Law Judge entitled "The Remedy,"
as modified by this Decision.
(e) 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 or useful in analyzing the
amount of backpay due and the right to reinstate-
ment and employment under the terms of this order.
(f) Post at its plant in Columbia, Missouri, copies
of the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's authorized representative, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.3
J In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a repre-
sentative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all of these
activities except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a
condition of employment as authorized in
Section 8(a)(3) of the Act.
WE WILL NOT refuse, on request, to bargain
collectively in good faith with Columbia Typo-
graphical Union No. 160, as the exclusive
representative of the employees in the unit
described below, concerning rates of pay, wages,
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment, or other conditions of
employment. The bargaining unit is:
All employees in the composing room at the
Company's plant in Columbia, Missouri,
excluding office clerical employees, guards
and supervisors as defined in the Act, and all
other employees.
WE WILL NOT refuse, on request, to incorporate
in any agreement reached by us with the above-
named Union a description of the appropriate
bargaining unit represented by the above-named
Union.
WE WILL NOT deny employees, on their
unconditional application, reinstatement to their
former jobs or, if those jobs no longer exist, to
cold type positions, or otherwise discriminate
against them because they engaged in a lawful
strike called by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL bargain collectively, on request. with
the above-named Union, as the exclusive repre-
sentative of all the employees in the unit de-
scribed above with respect to rates of pay, wages,
hours of employment, and other conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL offer James Epperson, Jr., and
Michael Naughton immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to cold type positions, without
prejudice to their seniority or other rights and
privileges dismissing, if, necessary, any replace-
ments, and make them whole for any loss of
earnings suffered by reason of the discrimination
against them.
WE WILL offer, the employees listed below, on
their unconditional application, immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to cold type positions,
without prejudice to their seniority or other rights
and privileges dismissing, if necessary, any re-
placements, and make them whole for any loss of
earnings suffered by reason of the discrimination
against them:
Walter Hart, Jr. Clyde Yeager
John McKay Gordon Williamson
Harold LaRue James Albert Adams
Harold Bayless Fred Canny
Kenneth Stanley George Gouker
Bill Hill Robert Loutzenhiser
If any employees remain for whom no positions
are available, the Respondent shall place such
employees on a preferential list with priority in
accordance with such system of seniority or other
nondiscriminatory practice heretofore applied by
Respondent in the conduct of his business, and
thereafter offer them reinstatement as such
employment becomes available and before other
persons are hired for such work.
All our employees are free to become, remain, of
refrain from becoming or remaining members of
Columbia Typographical Union No. 160, or any
other labor organization, except to the extent that
this right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act.
COLUMBIA TRIBUNE
PUBLISHING CO.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States , of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone
816-374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Trial Examiner: This consolidated
proceeding, with all the parties represented, was heard on
January 4 and 5, 1972, in Columbia, Missouri, on the
consolidated complaint of the General Counsel issued on
October 28, 1971,1 and the answer of Columbia Tribune
Publishing Co., herein called the Respondent or Company.
In issue are two questions-one, whether the Respondent,
I The consolidated complaint is based on original and amended charges
filed in Case 17-CA-4647 on April 19 and June 14 , 1971, respectively, and
on original and amended charges filed in Case 17-CA-4840 on September
16 and October 22, 1971 , respectively . A copy of each charge was duly
served on the Respondent by registered mail on the day after the respective
filing dates except that the October 22 charge was served on October 28
COLUMBIA TRIBUNE PUBLISHING CO.
in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended,2 failed to bargain in
good faith with Columbia Typographical Union No. 160,
herein called the Union, as the exclusive representative of
the Respondent's composing room employees, with respect
to a new contract to succeed an expiring one; and two,
whether the Respondent violated Section 8(a)(3)3 and (1)
of the Act by refusing to reinstate unfair labor practice
strikers 4 on their unconditional application to return to
work. At the close of the hearing the parties waived their
right to present oral argument but thereafter the General
Counsel and the Respondent filed briefs in support of their
respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, is engaged in
the publication and distribution of a daily newspaper. It
holds membership in, or subscribes to, interstate news
services; publishes nationally syndicated features; advertis-
es nationally, sold products; and has an annual gross
volume of business in excess of $200,000.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
over the continued inclusion in a contract of the traditional
jurisdiction-unit description clause ; the Respondent's
asserted managerial right to assign to nonunit employees
work claimed by the Union exclusively for the composing
room employees it represented ; and the Respondent's
insistence on reducing the hourly wage rate then being paid
composing room employees from $4.33 to $ 1.60, the
federally established minimum, and reserving to itself the
right to determine on an individual basis the employees'
entitlement to rates above this minimum . On April 1, the
day after the expiration of the contract , the composing
room employees went out on strike . Unfair labor practice
charges , alleging an unlawful refusal to bargain were
thereafter filed against the Respondent and complaint
thereon issued (Case 17-CA-4647). On August 26, an
informal settlement agreement , approved by the Regional
Director, was entered into by the parties, providing, among
other things , for the strikers' reinstatement on application,
"to their former jobs , or if those jobs no longer exist . . . to
substantially equivalent positions ." Because the parties
could not subsequently agree on the strikers' right to
reinstatement under the settlement agreement when they
applied to return to work , the Regional Director withdrew
his approval of the settlement agreement and issued the
consolidated complaint herein after new charges were filed
(Case 17-CA-4840). In substance , the consolidated com-
plaint alleges that the Respondent bargained in bad faith
with the Union in breach of its statutory obligation; that
this conduct prompted the employees to go out on strike in
protest of such unfair labor practices; and that the
Respondent thereupon discriminatorily denied the strikers
reinstatement on their unconditional application. We turn
to the evidence which , in critical respects , is not in dispute.
Concededly, the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; Issues Presented
This case arises out of the parties' inability to reach
agreement on a new contract covering the Respondent's
composing room employees to succeed the then current
one which was about to expire on March 31, 1971.
Creating problems in the negotiations was the Respon-
dent's scheduled conversion of its composing room
operation from a hot metal to a cold type or photocompo-
sition process to, produce newsprint. As will be discussed
below, disagreement soon developed, among other things,
2 Sec. 8(a)(5) of the Act makes it an unfair labor practice for an employer
"to refuse to bargain collectively with the representatives of his employees,"
designated by a majority of them in an appropriate unit. Sec. 8(a)(l) makes
it an unfair labor practice for an employer "to interfere with , restrain, or
coerce employees in the exercise of the rights guaranteed in section 7."
Insofar as pertinent , Sec. 7 provides that "[e ]mployees shall have the right to
self-organization , to form , join , or assist labor organizations , 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 ... .
3 Sec. 8(a)(3), with certain qualifications not material herein , prohibits an
employer, "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization i z a t i o n .
B. The Evidence
1. Bargaining history; the changeover from the
hot metal to cold type process in the composing
room; retraining of composing room employees
For some 30 years, the Union has been the collective-
bargaining representative of the Respondent's composing
room employees pursuant to successive contracts, the last
one being for a 2-year period expiring on March 31, 1971.5
This contract, as did at least the three previous ones,
described in article I the covered employees in terms of the
Union's jurisdiction and the appropriate unit, which is not
an uncommon practice in the newspaper and printing
industry.6 By letter dated January 20, the Union notified
the Respondent that their current agreement was terminat-
4 They are:
Walter Hart, Jr. James Albert Adams
John McKay Fred Canny
Harold LaRue George Gouker
Harold Bayless James Epperson, Jr.
Kenneth Stanley Michael Naughton
Bill Hill Robert Loutzenhiser
Clyde Yeager Gordon Williamson
5 Unless otherwise indicated , all dates refer to 1971.
6 The complete provision read as follows:
SECTION 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; markup men ; lineup and
(Continued)
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing on March 31 and proposed the commencement of
contract negotiations.
For a long time the composing room had utilized a so-
called hot metal process for producing newsprint which
involved using linotype machines to set type in molten
lead. Recognizing the inevitable technological advances
that had been taking place in the newspaper industry and
in order to meet its expanded needs the Respondent, after
much serious thought, decided to convert the composing
room operation to the new cold type or photocomposition
process whereby type is set photographically. Accordingly,
in late November 1970, the Respondent ordered the
necessary equipment with a target date of mid-March for
its installation and operation. In the latter part of February
or early March 1971, the Respondent leased a building
near its main plant for the temporary housing of its cold
type operation until a new permanent facility could be
erected.?
It is clear that the Union was fully aware that a
changeover was under consideration and at no time did it
voice any objection to the idea. Indeed, in anticipation that
a transition would materialize , the Union 's membership in
October 1970 voted to start a school on January 17, 1971,
to retrain and instruct composing room employees in the
new cold type process.8 Thereafter, a school was estab-
lished under the auspices of the Labor Extension Division
of the University of Missouri in Columbia. A nine -session
program beginning on January 17 and continuing on
succeeding Sundays was adopted. The Respondent was
advised of this program and its business manager, Frank
Holt, was invited to speak at the first session . Composing
Room Foreman Zimmerman was also asked to participate
as an instructor. In addition to the University of Missouri
program , the Union subsequently arranged with the
Respondent to sponsor two sessions on the March 19
weekend so as to afford its employees an opportunity to
train on the Company's new equipment .9
lockup men, stonehands; proofpress operators; machinists for typeset-
ting machines, operators and machinists on all mechanical devices
which cast or compose type, 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);
employees engaged in proofing, waxing and paste-makeup with
reproduction proofs, processing 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; photo-proofing, 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
effort. The Employer shall make no other contract covering work as
described above, especially no contract using the word "stripping" to
cover any of the work above mentioned.
In addition, sec I of art 1, provided that the term "employees" applied only
to "journeymen and apprentices," while sec. 2 stated that "[a ]il work within
the jurisdiction of the Union shall be performed only by journeymen and
apprentices "
r At the hearing, it was indicated that the construction of a new building
was scheduled to begin in February 1972.
8 Since 1955 the International Typographical Union has also maintained
a school, now located in Colorado Springs, Colorado, to instruct members
On January 14, Ronald Ott, the then president of the
Umon, t° inquired of Holt, as he had done on prior
occasions , whether there were further developments
regarding the contemplated changeover and the delivery of
the new equipment . Holt answered in the negative. On
January 16, however, the Respondent posted the following
notice over Holt's signature: 11
NOTICE TO COMPOSING ROOM EMPLOYEES
On April 1, 1971, the Tribune will convert to a
process of photo composition for setting text and
advertising copy.
The process and skills required will be different and
there will be a realignment of personnel.
Company representatives will be available to discuss
this matter fully with the employees affected or their
representatives.
The company will make every effort to make this
transition as painless as possible for the individuals
affected.
When the notice came to Ott's attention , he went to see
Holt at his office on January 18 and complained why he
was not given that information when he had spoken to him
only 4 days before. Holt replied that the Company was not
in a position to do so. In answer to Ott's questions, Holt
listed the equipment the Company already had and
advised him that delivery of other equipment was expected
about February 1. To allay Ott's concern , Holt also
assured him that the composing room employees would be
trained and that there would be no problems in that
respect.
Later in the day (January 18), the Respondent invited
seven printers with the longest service record 12 of the 26 or
28 employees in the composing room to meet with the
publisher, Henry J. Waters, III, in his office at the end of
the workday. Although the Union was not officially
notified, one of the seven was Chapel Chairman Wilson,13
the Union's liaison with the shop . At this meeting, which
in the cold type process. Chapel Chairman Clyde Yeager attended this
school . The Board has considered the availability of such instructional
facilities as a factor in making jurisdictional awards of cold type jobs to
employees who were represented by a Typographical Union See, for
example , international Stereotypers and Electrotypers Union, Local No. 25
(Niagara Falls Gazette Publishing Corporation), 193 NLRB No. 16; Local 9,
International Stereotypers' and Electrotypers ' Union of North America,
AFL-CIO (Detroit Free Press), 189 NLRB No. 130.
9 One session was scheduled for a Friday evening (March 19) and the
other for a Sunday afternoon (March 21). The latter session conflicted with
a University of Missouri class.
10 Ott was employed by American Press, another newspaper employer in
Columbia
ii According to Publisher Henry J. Waters , ill, the notice was posted to
alert the employees to the contemplated conversion and to the necessity of
their making a decision whether to take advantage of the Union 's training
program scheduled to begin January 17.
rs Waters testified that he anticipated at that time using 15 to 17
employees in the cold type process. It was stipulated that on February 19,
when contract negotiations began , there were 26 employees in the
composing room , two other employees having recently retired . It was also
agreed that when the strike was called on April I there were 22 employees
left in that unit.
is The position of chapel chairman is equivalent to that of union shop
steward . Wilson was succeeded by Clyde Yeager who was elected to that
post by the Respondent's composing room member-employees in the last
week in January when Wilson left the Company's employ.
COLUMBIA TRIBUNE PUBLISHING CO.
Holt and Foreman Zimmerman also attended, Waters
explained the changes that were being made in the
composing room and that he thought he could do better
than some shops which were replacing their printers with
girls who were paid a minimum wage. He further stated
that, although the seven employees were good employees
and skillful printers, he really had no need for their services
adding, however, that they would nevertheless be retained
because of their longevity. When questioned by an
employee what the wage scale would be under the new
process, Waters noted that he could offer them about $3 an
hour14 but that other employees would be paid less
depending on the nature of the work they would perform
and their competence. In answer to another question as to
how many of the Company's present complement in the
composing room would be needed under the cold type
process, Waters observed that he expected to reduce the
staff in half and that, if anyone chose to leave, he would
give him a good recommendation. Waters concluded the
meeting by inviting the employees to come to his office to
discuss any question they might have concerning their
future with the Company.
Upon learning of the Company's meeting with the seven
senior employees, Ott visited Holt again several days later.
Charging the Company with unfairness and driving a
wedge between that group and the rest of the composing
room employees, Ott demanded that the Company meet
with all the composing room employees to advise them of
all the facts relating to the conversion. Such a meeting was
held on February 10 in the lunchroom where, in the
presence of Alfred R. Shaw, the recently elected president
of the Union, and Ott, Waters conveyed substantially the
same information previously given to the seven senior
employees. Specifically, he explained the new cold type
equipment he was installing; that there was going to be a
reduction in force; that the new process did not require the
high skills previously used; and that the hourly wage rate
would be considerably less, varying with the particular job
assignment . At one point when an employee raised the
question of the $3 hourly rate which Waters had men-
tioned at the earlier senior employee meeting, Waters
responded that it was a figure picked out of the air and was
not intended as a firm offer. Nothing was said at the
February 10 meeting about the Company's plans to hire
new employees.
14 Under the expiring contract , all the composing room employees were
receiving $4.33 an hour, irrespective of their functions.
15 The full ads read as follows:
NEWSPAPER PRODUCTION WORKERS
We will train you in this exciting new method of newspaper production
by photocomposition. Learn paste make-up and the operation of
phototypesetting equipment . Must have good language skills, be neat
and accurate. Typing important, but not absolutely necessary.
Excellent opportunity. Good fringe benefits . Columbia Daily Tribune.
By appointment only. Call Alan Leach at 449-3811 for appointment.
EXPERT TYPIST
If you can type a minimum of 60 wpm, you may qualify to train for a
job operating an Autotape keyboard. Excellent opportunity. Training
will start soon . Columbia Daily Tribune. By appointment only. Call
Alan Leach at 449-3811 for appointment.
A third ad was simultaneously run for "Camera and Engraving Trainees."
543
2. The hiring of new employees
On February 28 and March 1, the Respondent ran two
wanted ads in its newspaper for "Newspaper Production
Workers" and "Expert Typist," 15 offering to train them in
the new cold type process in the composing room. As a
result, some seven or eight applicants were interviewed and
hired about March 11 at $1.60 an hour 16 and promptly
underwent a course of training by Foreman Zimmerman 17
and representatives of suppliers and installers of the
equipment. At the time of the hearing, there were several
new employees still receiving the $1 .60 rate, although the
average was about $2.25. Except for the seven senior
employees, whom Waters stated at the January 18 meeting
he would retain , no similar offer was made to any of the
other composing room employees . Indeed, at no time
before hiring the new employees did the Respondent make
any effort to ascertain the interest of these employees to
continue in its employ or their ability to perform the new
cold type operations, with or without training. On the other
hand , the record indicates that several employees had
previous cold type experience while others could be
adequately trained, especially in view of their long
experience in hot metal operations which have demonstrat-
ed similarities to certain cold type jobs , such as operating
the keyboard and doing paste makeup. Moreover, the
Respondent was fully aware of the Union's retraining
program attended by composing room employees at the
University of Missouri and the expected participation of
these employees in the two training sessions scheduled to
be held at the plant at the Union's behest on the March 19
weekend.18 Significantly, there is undisputed testimony by
Chapel Chairman Yeager and Union President Shaw that
before the above March 19 and 21 sessions, the Respon-
dent was not cooperative in making installed equipment 19
available to the composing room employees who were
interested in practicing on those machines on their own
time. As will be later discussed, the hiring of new
employees and the Respondent's failure to make the new
equipment available to its composing room employees
were the subjects of union complaints at several bargaining
meetings.
3. The contract negotiations
Pursuant to the Union's January 20 request to the
Respondent to renegotiate their expiring contract, the
parties held 9 or 10 meetings between February 19 and
Concededly, the Union does not make any jurisdictional claims to these
jobs.
16 One person with prior experience, who was later hired, received $2.25
or $2.50 an hour.
17 It appears that in late February or early March, Zimmerman received
training in a Compugraphic School run by the equipment manufacturer. In
early March, Assistant Foreman Kemper attended a school conducted by
another manufacturer.
is Waters testified that the Friday session held on March 19 was well-
attended . Because the Sunday session coincided with the University class, it
was evidently not well attended.
19 There is undisputed testimony that some cold type equipment was
installed by February 19 when it was exhibited to union representatives.
According to Waters, the last piece of equipment was installed about the
middle of March.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 31 before the Union went on strike the next day.
Representing the Union at these meetings was its negotiat-
ing committee consisting of President Shaw , Ronald Ott,
and William Galloway.20 On March 16, International
Representative Robert Ameln entered the negotiations to
assist the Union. General Manager Holt represented the
Respondent until Publisher Waters took over on March 12
as the chief negotiator . As reconstructed from the record,
the following discussions took place at the indicated
meetings.
a. February 19
On this date , Shaw and Ott met with Holt in his office.
Holt informed them that he was going to negotiate for
Waters until preliminary matters were disposed of 2' The
parties were in agreement that they would try to meet once
a week in an effort to conclude a contract . On this
occasion, the Union delivered its written proposals for a 2-
year contract based essentially on its expiring contract but
which contained a slightly modified jurisdiction and
appropriate unit clause , 22 and provisions for a wage
raise ; 23 a shorter workday and workweek ; increased
overtime pay, sick leave , vacation benefits , and severance
pay; an additional holiday; improved group life insurance
and hospitalization benefits; and a new pension plan. Holt
received the proposals for study.
b. February 23
The next meeting was on February 23 in Holt's office
where Holt presented the Union 's negotiating committee
with the Respondent's counterproposal containing 14
items . Conspicuously omitted were ajunsdiction appropri-
ate unit clause and a great number of other provisions
which had customarily been included in the parties' prior
contracts. Among the proposed items was a $1.60 mini-
mum hourly rate reduced from the $4.33 rate then being
paid to all composing room employees and a 40-hour week
compared with the then prevailing 37 1/2-hour week. The
Respondent 's proposals also contained several other
items24 which were substantially carried over from the
expiring contract . Some of these items , however, conflicted
with the Union's proposals. In addition, there were three
20 Not all the members of the committee were present at every meeting
21 It appears that during this period Waters was engaged in separate
contract negotiations with the Printing Pressmen 's Union which represented
the Respondent 's pressroom employees An agreement was subsequently
concluded with that organization
22 The old clause is quoted in fn 6 . supra According to Ott, the
modification was designed to clarify the provision in the then current
contract to assure that certain camera and related work involved in the cold
type process would be encompassed therein . He further testified , without
contradiction, that the change had been suggested by Waters after the
Board on May 15, 1970, dismissed as premature the Pressmen Union's
representation petition (Case 17-RC-6302) which sought to include camera
and related jobs not then in existence in the bargaining unit which the
Pressmen 's Union had been representing. Waters conceded at the hearing
that during the contract negotiations involved in the present case the Union
did not insist on the modified jurisdiction clause but rather demanded that
the clause in the expiring agreement at least be continued It is clear, and I
find, that the proposed modification was not the stumbling block to
agreement.
23 At the hearing, Shaw admitted that the Union's wage proposal
noneconomic proposals which were objectionable to the
Union.25
After the Union 's representatives read the Company's
counterproposal , they reacted in disbelief , characterizing
the Company's offer as ridiculous . Shaw also asked Holt
whether the Company' s counterproposal meant that no
union proposal was acceptable, even though it was a
continuation of a provision in the existing contract and
Holt responded in the affirmative . This led to a discussion
of the jurisdiction-unit clause which Holt stated Waters
wanted to change or completely exclude from any
agreement that might be reached . When asked why Waters
took this position or in what respect he proposed to change
it, Holt answered that he did not know . Shaw then pointed
out that such a clause was the very basis of the Union's
contract since it assured employees the security of their
jobs and that he could not negotiate this subject until he
consulted the International . The Union's representatives
also sharply criticized the Respondent 's proposed $1.60
wage rate as requiring too drastic a wage cut and as
reflecting the rate prevailing in 1946-48. Except for the
jurisdiction-unit and the $ 1.60 rate, there was no discussion
of any other proposal at this meeting.
c. March 1 meeting,' subsequent conversation with
Waters
As shown above, the Respondent advertised for help
whom it offered to train in the new cold type or
photocomposition process. Concerned over this develop-
ment, Shaw on the morning of March 1 telephoned Holt
and arranged for a meeting later in the day. At the
scheduled time , the Union's negotiating committee con-
ferred with Holt. Shaw asked Holt for the reason he was
advertising for personnel when composing room employees
were available to fill those jobs. Holt replied that it was
possible that some of those employees might not be able to
make the transition to the new process and that the
advertisements were intended as a form of insurance in the
event such contingency arose . In response to Shaw's
inquiry whether the composing room employees could
train on the Company's equipment on their own time, Holt
assured him that the equipment would be available to them
and that he would post a notice of the time and date the
contained "a tittle fat "
21 These were proposals relating to the lunch period , physical working
conditions, vacation , sick leave , severance pay, funeral attendance, jury
duty , and hospital , medical and group life insurance benefits. To be sure,
there were some insignificant variations in these proposals either in
language, content, or completeness from their counterparts in the expired
agreement.
25 These were:
4. Any employee who has been discharged and believes
the discharge unjustified shall have the right of a hearing before
company management.
13. The management of the company 's plant and works
and the direction of its working forces, including the right to
hire and to relieve employees from duty because of lack of work
or other reasons, and the right to suspend , discipline or
discharge shall be vested exclusively in the company.
14. There shall be no strikes or interruptions in production
by employes covered under this contract of any nature or for
any reason whatsoever.
COLUMBIA TRIBUNE PUBLISHING CO. 545
newly leased annex building would be open for such
purpose. No notice, however, was subsequently posted.
On or about March 11, Shaw was informed by Chapel
Chairman Yeager that the Company was training newly
hired employees in cold type paste makeup work. It
appears that during this time, Yeager was unsuccessful in
securing the Company's cooperation in. making the cold
type equipment available to the composing room employ-
ees for training purposes. Shaw promptly went to the plant
and spoke to Publisher Waters in the composing room.
Shaw asked Waters why he was training the new people.
Water's response was that he did not know whether the
Union and the Company would get together on a new
agreement and that therefore it was possible that he might
need those people. Waters then invited Shaw to his office
for further discussions . Shaw declined the invitation but
agreed to a meeting the next morning (March 12).
d. March 12
At this meeting, which was the first negotiating session
attended by Publisher Waters, the union committee
charged Waters with not honoring the current contract by
training the new hires in complete disregard of his regular
composing room employees. Waters justified his action
asserting that, unless the parties came to an agreement on
the jurisdiction clause which, as shown above, also defined
the appropriate unit, he needed the new people as a backup
crew. He also voiced his opinion that the jurisdiction clause
did not afford him the flexibility that he required to use ad
salesmen , who were not in the bargaining unit, to do paste
makeup work under the cold type process. Shaw retorted
that there was no need for using ad salesmen to perform
work of this nature when Waters had plenty of composing
room employees to do it. Because of Waters' unalterable
position, Shaw indicated that he would call upon Interna-
tional Representative Ameln for assistance in the negotia-
tions. After the meeting, Shaw arranged for Ameln's
participation.
e. March 16
On this occasion, International Representative Ameln
joined the Union's negotiating committee and became its
chief spokesman. Discussions opened up with the consider-
ation of the question of retaining the jurisdiction-unit
clause as it appeared in the expiring and prior contracts.26
Undeniably, this was a highly controversial subject
permeating all bargaining sessions. It was the Union's
position that this provision was absolutely necessary to
26 As indicated previously, the Union admittedly abandoned its
originally proposed modification in favor of the historical jurisdiction-unit
clause.
27 Apparently , Waters viewed as closed shop provisions art. I, sec. 1,
which defined "employees" as applying to "journeymen and apprentices"
and sec . 2 which stated that "[a ]Il work within the jurisdiction of the Union
shall be performed only by journeymen and apprentices ." These provisions,
which under settled law are valid , have appeared in the parties' prior
contracts and were included in the Union's proposed contract . Waters was
obviously mistaken in his closed shop position.
28 Art . 1, sec . 11, provided for a standing committee of two employer and
two union representatives to adjust certain disputes arising under the
contract and for arbitration if settlement failed.
29 Art. I, sec . 2, 3, and 6, and art . III, sec. 2, were the provisions allegedly
protect the jobs of the composing room employees whom it
had long represented and that without this clause it would
make no sense in having a contract at all. Waters was
equally adamant in his declared determination not to sign
another contract containing such a clause. He explained
that under the new cold type process he needed more
flexibility than that afforded him under the current
contract to use nonunit employees, such as ad salesmen,
editorial personnel, society or sports editors, to do paste
makeup or other work covered by the jurisdiction-unit
clause. With this clause eliminated, Waters argued, he
could -avoid duplication of work which might have been
necessary under the hot metal process where lead type had
to be cast in the composing room. Ameln, however, saw no
reason why the nonunit employees could not be more
advantageously employed in their own functions without
impinging upon printers' traditional work.
In the course of this discussion, Waters also stated that
he no longer intended to have a closed shop contract. In
response, Ameln tried to disabuse him of the idea that this
was the nature of their contractual relationship or the
Union's proposals, pointing out that neither the jurisdic-
tion-unit clause nor any other provision27 in the proposed
or prior contracts made union membership a condition of
employment or established a closed shop arrangement.
There can be no question that at this and subsequent
bargaining sessions the jurisdiction-unit controversy was
the principal stumbling block to agreement. Indeed, on
various occasions during negotiations when neither party
indicated a disposition to recede from its position and the
Union's representatives suggested that they consider wages
and other matters, Waters expressed his reluctance to do so
for the asserted reason that such discussions would be
"moot" and not meaningful unless and until the jurisdic-
tion issue was first settled. However, as shown below, some
consideration was actually given to wages and other terms
and conditions of employment during the course of
negotiations.
Following the unproductive discussion of the jurisdic-
tion-unit issue Shaw, pursuant to article 1, section 11, of the
expiring agreement,28 handed Waters a written grievance
signed by him as the Union's president. The grievance
charged the Respondent with violating specified sections of
that agreement 29 "by circumventing these sections and
hiring individuals to perform composing room work
without reference to or compliance with the aforemen-
tioned sections." Clearly, this grievance was directed
against the Respondent's employment of seven or eight
violated. Art. I, sec. 2, provided that:
All work 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 is the previously quoted jurisdiction -unit provision , while sec. 6,
which defined the term "journeymen," stated that:
. In hiring new journeyman employes the foreman may not
exclude as candidates for employment any individuals who have
established competency as journeymen, but must recognize priority [as
therein specified ] ....
Art. III, sec. 2, provided for the establishment of a Joint Apprenticeship
Committee composed of an equal number of union and employer
representatives with power over the selection of apprentices.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who had answered its February 28 and March I
wanted ads mentioned above. 30 In the ensuing discussions,
the Union 's representatives asserted that the Company was
ignoring the contract's journeymen and apprenticeship
requirements in hiring ineligible employees to perform the
paste makeup, keyboard, and other work encompassed by
the jurisdiction -unit clause . This provoked an argument
between the Union's representatives and Waters as to
whether a joint apprenticeship committee mentioned in
one of the sections of the contract cited in the grievance
had ever been established.31 Waters denied knowledge of
the existence of such a joint committee . Ameln also asked
Waters why he had not contacted the Union for personnel
instead of advertising and received Waters' reply that in
the past the Union had been unable to fill his requests for
employees for hot metal jobs. Shaw retorted that the
Union, however, was never requested to furnish employees
to perform cold type functions. The meeting ended when
Waters announced that he had another engagement.
f. March 17
considering their present employment with the Company,
it was only fair that those employees be given the right and
opportunity to make the transition , especially since it
would require little training, some of them had already
been retrained , and others were attending school. Moreo-
ver, the Union urged their retention because of their
experience in the printing trade which "outsiders" lacked.
Waters admitted that the Union requested the continued
employment of the composing room employees and that he
responded that he would use anyone who was competent,
if there were agreement on the conditions of employ-
ment.33
Another subject which was discussed was the Respon-
dent's asserted failure to retrain the composing room
employees or to make available to them the new equipment
on which to practice . In particular , the Union alluded to
Chapel Chairman Yeager's futile efforts to make arrange-
ments for such purposes . As a result of this complaint, the
composing room employees were subsequently given the
opportunity to familiarize themselves with the new equip-
ment and to attend the March 19 and 21 training sessions
conducted by the Company.
At this meeting, the question of the retention of the
jurisdiction-unit clause was again threshed out with
agreement being no closer than at previous bargaining
sessions . Ameln noted that without this clause agreed-upon
wage scales would not mean a thing. Again Waters raised
the question of a closed shop whose existence was
contradicted by Ameln. Here, too, the Union's efforts to
reach questions concerning wages and other matters met
with resistance from Waters who thought it would be
useless to enter upon such discussions unless the jurisdic-
tion-unit problem was first resolved.
On this occasion, Waters submitted his written answer to
the grievance which the Union had filed the preceding day.
Evidently rejecting the grievance, Waters noted that the
Company had made repeated requests to union officials
"to furnish people qualified to perform duties described in
the current collective bargaining agreement." Continuing,
he wrote:
If a city Joint Apprenticeship Committee exists the
Company is not aware of it. If journeymen or
apprentices are available through the Joint Apprentice-
ship Committee, Local # 160 has not provided them
upon request for help made to officials. The company
will welcome such journeymen or apprentices and has
situations open for them.
It is clear that the requests mentioned in Waters' letter
were actually for employees to perform hot metal func-
tions. Shaw acknowledged receiving such requests, adding
that he had sent the Company two employees to fill such
jobs.32 However, it is not claimed that the Company sought
employees from the Union for the cold type operation.
A heated discussion then followed respecting the
Respondent's failure to offer continued employment in the
new cold type process to the composing room employees
represented by the Union. The Union argued that,
g. March 23
At the next bargaining session on March 23 much the
same verbal exchange regarding the jurisdiction -unit clause
occurred with neither party yielding its position. Although
Waters exhibited a sample of paste makeup to demonstrate
the reasonableness of management's right to make assign-
ments of this nature to nonunit employees unhampered by
the clause in question , the Union remained unconvinced.
Also, as was the case at other meetings , the Union's
attempts to have wages and other economic proposals
considered encountered the same resistance by Waters on
the ground that such discussions would serve no fruitful
purpose without first achieving agreement on the jurisdic-
tion-unit deadlock . However , as subsequently shown, those
proposals did receive some consideration in the negotia-
tions.
h. March 26
Ameln brought to this meeting Frank Cremones, the
International 's automation director, to help resolve the
knotty jurisdiction-unit problem. Also in attendance was
Federal Mediator Dave Herring . Again the same pro and
con arguments respecting the continuation of the jurisdic-
tion-unit clause were presented . When it became apparent
that neither party was inclined to alter its position,
Cremones suggested that Waters write a clause satisfactory
to himself and place it on the bargaining table . Waters
agreed to try to draft such a provision for consideration at
the March 29 session.
i. March 29
Ameln was absent from this meeting which opened up
10 Ameln testified that a day before or after the March 16 meeting union the Respondent because the pending changeover from the hot metal to the
representatives visited the annex building and observed new employees cold type process did not assure them any measure of permanence in
practicing on cold type equipment . employment
31 It is unnecessary to decide this question 33 Although Waters did not identify the meeting at which he made those
32 According to Shaw, it was particularly hard to secure employees for remarks , it probably was the March 17 session
COLUMBIA TRIBUNE PUBLISHING CO. 547
with Shaw's inquiry whether Waters had prepared a
jurisdiction-unit provision. Waters replied that he was
unable to come up with anything suitable to both parties.
This prompted Shaw to propose that they discuss wages
and hours in the hope that the jurisdiction-unit impasse
might thus be broken. Waters, however, expressed his oft-
repeated opinion that such discussion would serve no
purpose unless the jurisdiction matter were first resolved.
Waters thereupon inquired whether the composing room
employees would be available after the current contract
expired on March 31. Shaw answered in the affirmative
and asked Waters how many would be needed.34 In
response, Waters stated that he did not know except that
he would require two employees to set the classified ads
under the hot metal process. Shaw then questioned Waters
whether he intended to comply with the existing contract
after its termination. Waters stated that he would not; that
the two men he needed for the hot metal assignment could
work without a contract; and that he would not negotiate a
new agreement because he needed the flexibility to use
personnel as he saw fit.
j. March 31
At this final meeting before the strike, Waters'repeated,
in answer to Ameln's question, that he was unable to draft
a satisfactory jurisdiction-unit clause. However, Waters
proposed that, if the Union wanted the jurisdiction-unit
clause which was embodied in the expiring contract, a
proviso be added to the effect that anyone else could
perform the work covered by the clause. Essentially, this
addition reflected no change in the Respondent's frequent-
ly expressed position. As Waters testified, "[W ]e did not
think any kind of limitation on who could do the work
would be acceptable to us because of the nature of the
equipment." Not unexpectedly, this proposal met with the
Union's swift rejection for the asserted reason that it
"nullified" the significance of the clause and the job
protection it afforded unit employees.
As this obstacle to agreement could not be eliminated,
Ameln offered to have the composing room employees
represented by the Union continue to work on and after
April 1 under the terms of the expired contract until a new
agreement was reached. Accordingly, he asked Waters
whether those' employees should show up the next
morning. In reply to Waters' inquiry, Ameln told him that
all would appear if they were given preference in
employment in the new cold type jobs to those individuals
hired on and after March 11 35 Waters stated that he did
not know whether the composing room employees would
be given the new positions or how many employees would
be needed. He also indicated that if the employees showed
up, he would pick and choose among them and determine
the wages they would be paid. Probably, severance pay for
those "let off" also was raised at this time and Waters
agreed to pay it.
34 There was an expected reduction in force due to the conversion from
the hot metal to cold type process which was scheduled to take effect on
April 1.
35 Apparently, Ameln was referring to the individuals hired as a result of
the February 28 and March 1 ads.
36 The record does not establish with sufficient specificity the meetings
k. Discussions concerning wages, hours and other
matters
It is quite clear that during the course of contract
negotiations36 wages, hours, and other matters contained
in the Respondent's counterproposal given to the Union on
February 23 did not escape discussion in some form,
despite Waters' repeated reluctance to consider them until
the jurisdiction-unit issue was first settled. Apart from the
latter question, the subject of wages cropped up in the
negotiations most frequently. As indicated above, the
Respondent proposed a minimum hourly rate of $1.60
which was a reduction from the $4.33 rate then being paid
to the composing room employees. Characterizing this
offer as ridiculous and reflecting rates prevailing in
1946-48, the Union declared that the reduction was wholly
unacceptable and that the Respondent was trying to take
advantage of the job situation in the area where students,
their wives, and unemployed people were available to work
at that rate. In an effort to justify the $1.60 rate, Waters
asserted that that rate was paid to many employees by
newspapers which had made the transition from a hot
metal to a cold type operation; that the skills required in
the new process were not as great as those involved in the
hot metal process and therefore did not warrant the $4.33
rate; that, in any event, this was a base rate from which
employees would ultimately be raised,37 depending on
their progress, competence, production, and performance.
Waters specifically rejected the idea embodied in the
parties' contracts over the years of the same wage scale
being paid all composing room employees regardless of the
skills entailed in their particular jobs. In determining the
rate to be paid individual employees working under the
new process, Waters stated that it would be a matter solely
between him and the individual employee concerned and
that he (Waters) alone would decide whether the employee
should receive an increase after considering the factors
previously outlined.38 As expected, this unilateral arrange-
ment was not satisfactory to the Union which argued that
the same hot metal rate should be paid all the composing
room employees because they would be performing the
same printing work as they had been performing in the
past, albeit under the new process. Waters, however, was
agreeable to pay the hot metal rate only for the hot metal
work still being done in the composing room. As for the
Union's proposed rate, which exceeded $4.33, Waters
commented that it was too high. At the hearing, Shaw
conceded that the proposal contained "a little fat" for
bargaining purposes.
Also mentioned at one meeting was the subject of the 40-
hour workweek proposed by the Respondent. The Union
voiced its objection on the ground that the proposal meant
at which particular subjects , other than the jurisdiction -unit clause, were
discussed or statements were made regarding them.
37 Waters hypothesized an ultimate top rate of $3.
-38 Such a unilateral arrangement with variable wage rates does not
appear in the Respondent 's contract with the Pressmen 's Union negotiated
at the time the negotiations involved in the present case were in progress.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an increase in the workweek of 37 1/2 hours then
prevailing in the shop 39 In addition, the Union's proposed
improvement in the existing vacation benefits , which the
Respondent was inclined to continue , was discussed on
one occasion. Waters rejected the Union's proposal for the
asserted reason that it would interfere with the Company's
ability to get out its newspaper on time. The record does
not convincingly establish that there was an exchange of
views with respect to hospital, medical, and life insurance
benefits.
Another matter that seems to have been given some
attention in the negotiations was the management clause in
the Company's written counterproposal.90 The Union's
criticism was simply that the foreman should have the
authority to discharge, suspend, or discipline composing
room employees, which was customary in the trade.
Waters , on the other hand , claimed this power as a
management prerogative . Finally , at one meeting the
Company's "no-strike" proposal was mentioned, although
the testimony furnishes no details. Except as shown above,
there is no evidence that other proposals were discussed in
the negotiations.
4. The strike
Following the breakdown in negotiations on March 31,
the Union held a meeting of the composing room
employees the same evening. The Union's bargaining team
reported the parties' inability to reach agreement, attribut-
ing it to the Company's unfairness and making a farce out
of the negotiations. They also informed the employees that
they did not know where they stood in their jobs in relation
to the newly hired people, the number of employees the
Company required under the new process, or what wages,
hours, or other working conditions would prevail after the
expiration of the contract. After being advised that the
International had approved the taking of a strike vote, the
employees unanimously voted to strike.
The next morning (April 1), the strike began with
picketing being established in front of the Company's main
and annex buildings. The Company , nevertheless , contin-
ued its operations and published its newspaper , utilizing in
the composing room its newly and subsequently hired
employees , management personnel , and help from other
departments. The strike ended on September 14 under
circumstances later discussed.
5. Abortive efforts to settle the strike on April 16
Pursuant to prior arrangement by Federal Mediator
Herring, a meeting between the Union and the Respondent
was held on April 16 in Herring's presence. In attendance
were International Representative Ameln, the Union's
negotiating committee, Publisher Waters, and General
Manager Holt. After the Federal mediator was briefed on
the nature of the cold type and hot metal processes,
39 The Union 's written proposal called for a reduction of the workweek
to 35 hours.
49 It provided.
The management of the company 's plant and works and the direction
of its working forces , including the right to hire and to relieve employes
from duty because of lack of work or other reasons, and the right to
suspend , discipline or discharge shall be vested exclusively in the
Herring conferred separately with management and then
reported to the Union's representatives that Waters was
willing to discuss 'wages, hours, and other working
conditions , and possibly the number of strikers to be
rehired and on what basis , provided that the Union agreed
to the following conditions : (a) there would be no
jurisdiction-unit section in the contract ; (b) the contract
would not contain a union -security clause ; 41 (c) ad
salesmen and editors in the various departments , such as
society, news , and sports , would be permitted to do their
own paste makeup ; (d) the Union would immediately
furnish two operators to perform hot metal work which
was unaffected by the conversion; and (e) the strike would
be terminated.
The Union declined this offer . However, recognizing that
the new process might require a reduction in force, the
Union proposed that, if the Respondent reinstated only the
number of strikers it needed in preference to the employees
hired since March 11, it would end the strike and furnish
the two hot metal operators . Waters' response was an
unequivocal rejection , declaring his determination not to
replace any of the newly hired employees to make room for
any of the old composing room employees.
6. Filing of unfair labor practice charges;
settlement agreement
A few days later, the Union filed unfair labor practice
charges (Case 17-CA-4647) and subsequently amended
charges, on the basis of which complaint issued . On August
26, the parties entered into an informal settlement
agreement which was approved by the Regional Director.
The agreement, which contained a statement that the
Respondent did not thereby admit violating the Act,
provided for the withdrawal of the complaint, on condition
that the Respondent post a notice to employees and
comply with its terms . The notice required the Respondent
to refrain from refusing to bargain in good faith with the
Union, as the representative of its employees in a unit
consisting of all journeymen and apprentices in the
composing room42 "by unilaterally deferring consideration
of certain items until agreement has been reached on
certain other items." The notice also provided for good-
faith bargaining by the Respondent, on request, with
respect to wages , hours, and other working conditions. In
addition, the notice stated:
WE WILL, upon their unconditional offer to return to
work, offer to those employees who went on strike on
or about April 1, 1971 , immediate and full reinstate-
ment to their former jobs , or if those jobs no longer
exist , we will offer such employees reinstatement to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges. If
necessary, we will discharge those employees who
replaced the strikers.
company.
41 As indicated previously, the parties' contract did not contain such a
clause and that actually Waters was referring to the provisions relating to
the employment of "journeymen and apprentices."
42 The indicated appropriate unit substantially conforms with that
contained in thejunsdiction- unit clause in the expired agreement, as quoted
earlier in this Decision.
COLUMBIA TRIBUNE PUBLISHING CO.
If there are not sufficient jobs for all returning
strikers , WE WILL place on a preferential hiring list
those employees who cannot be reinstated at the time
of their offer, in accordance with the established
seniority system.
7. The Respondent's rejection of the strikers'
application for reinstatement ; settlement agreement
vacated
Pursuant to the settlement agreement, Union President
Shaw on September 4, delivered to General Manager Holt
a letter, stating that "those employees and each of them,
members of-[the Union] who went on strike on or about
April 1, 1971, unconditionally offer to return to work on
September 8, 1971." Holt advised Shaw that Publisher
Waters was out of town and that therefore the offer could
not be acted on but that he would notify Shaw as soon as
he heard from Waters. Thereafter, on September 7, the
Union received a letter from Waters in which he asked for
individual reinstatement requests or a list of such appli-
cants. Waters also suggested that they meet "to discuss the
various details surrounding individual reinstatement before
it will be possible to act on these requests."
Accordingly, on September 8, Ameln, the negotiating
committee and employee Gouker met with Waters and
Holt in the presence of Federal Mediator Herring. Ameln
furnished Waters with the requested list containing 14
names of employees who unconditionally offered to return
to work the next day.43 When Waters announced that he
only had two hot metal jobs available, a dispute ensued as
to whether the cold type jobs were substantially equivalent
positions to which the strikers were entitled to reinstate-
ment under the terms of the settlement agreement . Waters
argued in the negative and that therefore the Company was
not obligated to offer those jobs to the applicants. Ameln,
on the other hand, contended otherwise, reiterating his
views that composing room work was essentially the same
whether performed under the cold type or hot metal
process. This led to a discussion of the jurisdiction-unit
clause and Water's prior approval of that language in the
settlement agreement to describe the appropriate unit.
Despite his acceptance of the unit description, Waters
reverted to his former opposition to the clause and
reasserted his determination not to consent to any contract
incorporating that clause or providing for union security.
There is a serious conflict in testimony whether Waters
made his offer of the two hot metal jobs subject to other
conditions. Thus, according to Ameln, Waters stated that
the applicants would have to return on his terms and,
although he was willing to pay the $4.33 rate set forth in
the expired contract, the workweek would be 40 hours with
no daily overtime. This was a departure from the 7 1/2-
hour day and the 37 1/2-hour week provided for in the
expired contract. On the other hand, Waters denied
43 These are the same individuals alleged as discriminatees in the
549
imposing the 40-hour week and no daily overtime as
conditions for reinstating applicants to the available two
hot metal jobs. He testified that during the course of
discussions on September 8 concerning substantially
equivalent employment he did refer generally to a 40-hour
week than prevailing in the shop but he did not indicate
that this condition would govern reinstatement to the hot
metal jobs. Indeed, Waters testified without contradiction
that at a prestrike bargaining session and at one of the
September meetings he offered to sign a contract covering
the hot metal employees which would embody the terms of
the old contract. Although as later shown, the written offer
of reinstatement to the hot metal jobs referred only to a
$4.33 rate, I am not entirely convinced that Waters
conditioned reinstatement to hot metal jobs upon accept-
ance of a 40-hour week with no daily overtime or any other
new condition of employment.
Before the meeting ended, Ameln told Waters that the
applicants were prepared to return to work the next
morning (September 9) and suggested that they get
together again at that time. Waters answered that he was
leaving town and needed a week to think it over.
On September 14, the parties conferred again but
without the Federal mediator being present and resumed a
futile discussion regarding the meaning of substantially
equivalent employment 44 Waters then renewed his offer of
reinstatement to the two hot metal jobs and expressed his
desire to interview each applicant privately. Ameln
opposed such interviews, asserting that Waters did not
have that right; that the Union still represented the
applicants; and that, as the applicants were not new
employees, the Company already had the information it
could possibly want. Finally, Ameln yielded to the extent
of agreeing to the interviews if a union representative were
present. However, this suggestion was not acceptable to
Waters.
After discussing the reinstatement problem, Waters
asked Ameln whether he wanted to negotiate other
contractual provisions. When Ameln indicated a willing-
ness to do so, Waters changed his mind and proposed that
they defer consideration of those matters.45 Ameln noted
that the strikers were ready to return to work and would
show up the next morning. In reply to Ameln's question as
to the time they could report, Waters indicated 10 a.m.
When Waters was also asked by Ameln whether those
people would be returned to work on the terms and
conditions provided for in the expired contract, Waters
answered that he would let him know. However, consider-
ing the context in which Walters remarks were made and
the subsequent events, there can be little doubt that Waters
never intended to offer the applicants any cold type
position.
On the morning of September 15, Ameln, Shaw, and all
John McKay George Gouker
consolidated complaint herein. 44 In answer to Ameln's inquiry, Waters stated that the composing room
Walter Hart Gordon Williamson was operating under the cold type process on two shifts and that he was
Harold Dale LaRue Clyde Yeager using about four employees on "keyboarding ... seven-plus on paste
Harold Bayless Jim Epperson makeup, [and ] two men . . . on the computer."
Jim Adams Kenneth Stanley 45 Ameln denied suggesting that further contract negotiations be
Fred Canny Mike Naughton postponed until the reinstatement problem was straightened out.
Robert Loutzenhiser Bill Hill
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except one of the strikers (Loutzenhiser) assembled in a
parking lot near the Respondent's plant. At the Respon-
dent's invitation, they went to the Company's paper
storage building where Waters repeated his request to
interview each striker privately. With the concurrence of
the strikers, Ameln again expressed his consent provided a
union representative was present. An exchange of previ-
ously stated views then followed until the meeting ended
with Waters asking Ameln to call him at 1:30 in the
afternoon. Ameln phoned at the appointed time and was
informed by Waters that he reluctantly agreed to Ameln's
presence during the interview.
Thereupon, Ameln and the 13 applicants returned to the
plant where, on the basis of seniority, the applicants were
ushered into Holt's office one at a time and, in Ameln's
presence, were questioned by Waters concerning his
health, availability for work, employment since the strike
began, the number of claimed dependents for income tax
withholding purposes, and his present address and tele-
phone number. No striker was questioned with respect to
his ability to perform cold type jobs. Chapel Chairman
Yeager and Gordon Williamson were the first two
interviewed at which time each received a letter reading, as
follows:
Pursuant to request made on September 9, 1971, and
confirmed by your appearance at our offices on
September 15, 1971, a determination has been made
with respect to your reinstatement.
You are herewith reinstated to the position of hot metal
printer at an hourly rate of $4.33 per hour, and are
requested to report for work at 8:00 a.m. on Monday,
September 20, 1971.
Apart from the $4.33 hourly rate stated in this letter,
nothing was said by Waters about the workweek or other
conditions of employment nor was any inquiry made.
As the Respondent had only these two hot metal
positions in the composing room and did not intend to
reinstate any striker to a cold type job, Waters at each
subsequent interview handed the other applicants, except
Naughton and Epperson, a letter acknowledging their
September 9 application and their September 15 appear-
ance at the plant. In addition it stated:
All available jobs as hot metal printers have been filled
by other members of Columbia Typographical Union
No. 160 holding higher seniority. Accordingly, you
have been placed on our preferential hiring list in
accordance with your seniority and when a hot metal
job becomes available you will be promptly notified.
Loutzenhiser presented himself for employment on
September 20 when he was given a similar letter
advising him of his placement on a preferential hiring
list for a future hot metal job if one became available.
At his September 15 interview, Naughton was given a
46 The following are the dates of the letters offering reinstatement
John McKay September 21
Walter Hart, Jr. 21
George Gouker 24
Fred Canny 28
Bill Hill
James Adams
October 1
1
Kenneth Stanley 5
Harold Bayless 5
letter in which he was informed that the Respondent
declined to reinstate him because of his conduct during the
strike . No details were given concerning his alleged
misconduct . Epperson was also similarly notified on the
same date that he would not be reinstated for the reason
that he had failed to "appear for work at any time during
the two months immediately prior to March 31, 1971." It
was then pointed out that , to Foreman Zimmerman's
knowledge, Epperson had been sick during that period.
Yeager and Williamson failed to report to their hot metal
jobs on September 20, as their letter requested them to do.
To fill these jobs, the Respondent thereupon resorted to
the above-mentioned preferential hiring list and made
successive written offers of the two hot metal jobs to the
two senior applicants and thereafter to the next two senior
applicants until the list was exhausted .46 Like Yeager and
Williamson , no applicant reported for work at the
designated time . The reasonable inference to be drawn
from the evidence is that the applicants were not inclined
to accept reinstatement unless , in addition to the two hot
metal jobs, the applicants as a group were also offered
reinstatement to the cold type jobs.
On September 16, the Union filed new unfair labor
practice charges in Case 17-CA-4840, which prompted the
Regional Director to withdraw his approval of the
settlement agreement and his issuance of the consolidated
complaint herein.
C. Concluding Findings
1. With respect to the refusal to bargain
a. Appropriate unit; the Union's majority status
As indicated above, the Respondent and the Union had
maintained a stable bargaining relationship in a unit of
composing room employees for some 30 years until the
events herein. Moreover, the Board has long recognized
that composing room employees traditionally comprise a
departmental unit appropriate in the newspaper industry
for collective-bargaining purposes. Furthermore, there can
be no question that during the negotiations involved
herein, which began before the expiration of the then
current contract, and at the inception of the strike the
Union was the majority representative of the employees in
such unit.
Accordingly, I find that at all material times the Union
was the exclusive collective-bargaining representative of
the Respondent's composing room employees in an
appropriate unit. I further find that the Respondent's
conversion of the composing room operation from a hot
metal to a cold type process neither impaired the
appropriateness of the unit47 nor the Union's representa-
tive status.
Harold LaRue 8
Robert Loutzenhiser 8
Another employee , Peter Kemper, was sent a letter on September 24 but he
is not alleged to be a discnmmatee
4T Because of this change in operation , I make no determination with
respect to the specific job classifications to be embodied in the unit
description . Of course , this does not preclude the parties from specifying the
classifications in the composing room encompassed by the appropriate unit,
if they can agree.
COLUMBIA TRIBUNE PUBLISHING CO. 551
b. The Respondent's failure to bargain in good faith
The General Counsel contends that the Respondent,
intent on destroying the composing room unit and
undermining the Union's representative status, failed to
bargain in good faith for a new contract and thereby
violated Section 8(a)(5) and (1) of the Act. The Respon-
dent, on the other hand, vigorously denies that it failed to
fulfill its bargaining obligation, arguing that it only
engaged in permissible hard bargaining. In particular, the
Respondent urges that it was justified in rejecting the
controversial jurisdiction-unit clause on the- ground that it
needed flexibility in assigning the new cold type work to
nonunit employees; that the clause in question was not a
mandatory subject for bargaining so that the Union's
insistence on its inclusion in a contract constituted a
breach of the Union's bargaining obligation; that the
Respondent's resistance to discussing wages, hours, and
other working conditions until the jurisdiction-unit prob-
lem was settled was reasonable as no meaningful negotia-
tions with respect to those matters could otherwise be held;
and that there was a genuine bargaining impasse on
management's right to assign work.
It has long been settled that an employer violates Section
8(a)(5) and (1) of the Act if it fails to bargain in good faith
with the employees' representative. This principle is
generally embodied in Section 8(d) which defines the
bargaining obligation as requiring the parties, inter alia, "to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms or conditions of
employment, or the negotiation of an agreement . . . and
the execution of a written contract incorporating any
agreement reached if requested by either party ....
Although this obligation does not "compel either party to
agree to a proposal or require the making of a concession,"
it does contemplate, as the Board and the courts have
uniformly held, a willingness to enter the discussions "with
an open mind and purpose to reach an agreement
consistent with the respective rights of the parties." 48
Simply entering "upon a sterile discussion of union
management differences,"49 is not sufficient. Essentially
then, the "ultimate issue whether the Company conducted
its bargaining negotiations in good faith involves a finding
of motive or state of mind which can only be inferred from
circumstantial evidence." 50
From a careful evaluation of the evidence, I find that the
46 Majure Transport Company v. N.L.R.B., 198 F.2d 735, 739 (C.A. 5);
see also N.L.R.B. v. Johnson Manufacturing Company of Lubbock, 458 F.2d
453, (C.A. 5); N.L. R.B. v. Darlington Veneer Company, Inc., 236 F.2d 85,
88-89 (C.A. 4).
46 N.L.R.B. v. American National Insurance Co., 343 U .S. 395, 402.
50 N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131,
139-140 (C.A. 1), cert. denied 346 U.S. 887.
51 McQuay-Norris Manufacturing Company v. N.L.R.B., 116 F.2d 748,
751 (C.A. 7). This obligation does not arise only from a Board certification;
other designation by a majority of the employees in an appropriate unit may
also be sufficient to create the obligation . United Mine Workers of America
v. Arkansas Oak Flooring Co., 351 U.S. 62, 74-75; N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575.
52 Sec . 8(d); McQuay-Norris Manufacturing Company, supra, 752; H.J.-
Heinz Company v. N.L.R.B., 311 U.S. 514, 525-526.
53 Although the Respondent indicated at the March 31 negotiation
meeting that it might accept the traditional clause if it acknowledged the
Company's unqualified right to assign composing room work to nonunit
employees, it is clear that the Respondent had no intention of recognizing
Respondent did not satisfy the requirements of good-faith
bargaining. There is no question that the principal obstacle
to agreement was the inclusion in a contract of the
jurisdiction-unit clause traditionally embodied in the
parties' previous contracts. Although this provision defined
the Union's jurisdictional claims, it also served to describe
the unit of composing room employees the Union was then
representing. Therefore, as the duly designated bargaining
agent of these employees in an appropriate unit, the Union
was entitled to exclusive recognition by the Respondent in
such unit, whether or not jurisdictional terminology was
also used. For, as one court observed a long time ago,
"[T]here could be no genuine bargaining as contemplated
by the Statute until complete recognition had been granted
as the Act requires." 51 In addition, under settled law, the
Union was entitled to have exclusive recognition and the
unit it represented incorporated in any contract reached by
the parties.52 However, throughout the negotiations the
Respondent not only flatly. rejected the Union's demands
for the inclusion of the jurisdiction-unit clause in a
contract, but also made it very plain that no unit clause
was acceptable53 for the asserted reason that it needed
flexibility to make assignments of cold type jobs to
employees outside the composing room. However, this
refusal to concede to the Union in written form its rightful
recognition in an identifiable composing room unit
certainly cannot be reconciled with the Respondent's
bargaining obligation.54 Nor can the Respondent's pur-
ported need for flexibility in assigning cold type jobs
immunize it from performing this obligation,55 although
under other circumstances management's demand for the
right to make assignments may not violate the Act just as a
bargaining representative may legitimately seek a preserva-
tion of unit work clause in a contract.56
Moreover, it is hard to escape the conclusion that the
Respondent's attitude was prompted by a desire to destroy
the bargaining unit and undermine the Union's representa-
tive status in an effort to avoid agreement. This is indicated
in its candid awareness that there could be no meaningful
discussions concerning wages, hours, and working condi-
tions unless the employees bargained for were identified 57
Thus, the Respondent used this as a reason for adamantly
resisting the Union's frequent attempts to break the
deadlock over the jurisdiction-unit clause by proposing
that wages and other matters be considered. Yet, as shown
the Union's representative status and responsibilities with respect to the
composing room unit. Indeed, at the April 16 meeting at which efforts were
made to settle the strike, the Respondent imposed , as one of the conditions
for resuming bargaining negotiations , that the Union relinquish its demands
for the jurisdiction-unit clause.
54 Because of the Union's right to written recognition in an appropriate
unit consisting of composing room employees, this subject is not one for
mandatory bargaining , McQuay-Norris Manufacturing Company, supra, 751;
cf. N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 350.
The Respondent 's argument that for this reason the Union was not
privileged to adamantly insist on this right manifestly must fall by the
wayside.
55 McQuay-Norris Manufacturing Company, supra, 752; cf. N.L.R.B. v.
Gluek Brewing Co., 144 F.2d 847, 855 (C.A. 8); N.L.R.B. v. Hudson Motor
Car Co., 128 F.2d 528, 532 (C.A. 6).
56 National Woodwork Manufacturers Association v. N.LR.B., 386 U.S.
612,642.
57 Douds v. International Longshoremen's Association, 241 F.2d 278, 282
(C.A. 2).
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, the Respondent displayed no disposition to accept
any description of a composing room unit.
The Respondent's disparagement of the bargaining
process also manifested itself in other ways at the
bargaining table. Thus, as discussed above, the Respon-
dent proposed to reduce the hourly wage rate for the new
cold type jobs from $4.33 then being paid to all the
employees in the composing room, which operated under
the hot metal process,58 to $1 .60, the Federal minimum
wage standard.. In addition, asserting that the wage rate to
be paid to individual employees was solely a matter
between the Company and the individual employee
concerned, the Respondent insisted on reserving to itself
the absolute right to determine unilaterally whether to raise
any employee above the minimum rate. Moreover, the
Respondent proposed to increase the workweek to 40
hours from the existing 37 1/2 hours, thereby also
adversely affecting the employees' rights to overtime pay.
On the other hand, conspicuously absent from the
Respondent's proposals was a provision for a grievance
procedure in which the Union could participate, although
it recognized the right of a discharged employee to request
a hearing on his discharge before management . Despite the
absence of a conventional grievance procedure, the
Respondent's proposals prohibited employees from engag-
ing in strikes or other interruptions in production. It is also
not without significance that there were numerous provi-
sions , in the expiring contract, including a grievance
procedure, which the Union offered to carry over into a
new contract but which the Respondent indicated it was
not interested in doing.
While it is true that "the obligation to bargain collective-
ly does not compel either party to agree to a proposal or
require the making of a concession," 59 this does not
preclude the Board from considering the totality of the
Respondent's actions to assess motivation in determining
whether it was really engaging in surface bargaining with
no genuine intention to reach agreement so In light of
established principles, I find that the Respondent did not
approach the negotiations with an open mind and a sincere
desire to reach agreement. To quote the appraisal of a
bargaining situation made by one court,61 which I find
equally applicable here:
... It is difficult to believe that the Company with a
straight face and in good faith could have supposed
that this proposal had the slightest chance of accept-
ance by a self-respecting union , or even that it might
advance the negotiations by affording a basis of
discussion; rather, it looks more like a stalling tactic by
a party bent upon maintaining the pretense of
bargaining.
In fact , it appears to me that the Respondent's
bargaining tactics went further and were calculated to
destroy the bargaining unit and reduce the Union to an
ss As indicated above , the Respondent was agreeable to continue the
$4.33 rate for the two remaining hot metal lobs.
59 N L. R.B v. American National Insurance Co, supra, 404.
eo See , for example , Stuart Radiator Core Manufacturing Co, Inc., 173
NLRB 125; N L. R.B. v. Herman Sausage Co., Inc, 275 F.2d 229,232 (C.A.
5); N L R.B v. Johnson Manufacturing Company of Lubbock, supra.
91 N L.R.B v. Reed and Prince Manufacturing Company, supra.
62 N.L R.B. v. Lewin-Mathes Company, 285 F .2d 329 (C.A. 7), cited by
ineffective and useless instrument for bargaining as the
representative of the composing room employees. I find
confirmation for this view , among other things, in the
Respondent's conduct in advertising for and hiring new
employees to be trained in the new cold type process
during the contract negotiations ; in its delay in making the
new equipment available to the composing room employ-
ees for training in preparation for the transition to the cold
type process; and in assembling on January 18 only 7 out
of about 26 or 28 employees , without notifying the Union,
to advise them of the proposed transition.
In sum , I conclude that this is not simply a case of hard
bargaining as the Respondent urges. Rather, I find that the
Respondent failed to engage in good -faith bargaining
envisioned by the Act and that it thereby violated Section
8(a)(5) and (1) of the Act 82
2. With respect to the denial of reinstatement of
strikers'
On the basis of previously discussed evidence, 13 of the
14 strikers named in the consolidated complaint went out
on strike on April 1 in protest to the Respondent' s failure
to discharge its bargaining obligation in good faith. For
this reason, I find that they became unfair labor practice
strikers who, under established law,83 were entitled to
reinstatement to their jobs in the composing room upon
unconditional application even if it required the dismissal
of replacements. The Respondent's contention that they
were economic strikers is therefore rejected. I further find
that James Epperson, Jr., also named in the complaint,
joined the strike in June 1971. Prior to that date and since
about the end of January 1971, he was temporarily absent
from work because of illness and kept Foreman Zimmer-
man informed of his condition. At no time did the
Respondent notify Epperson that his employment was
terminated by reason of his absence until September 15
when it rejected his application to return to work.
Accordingly, I find that in June Epperson, too, became an
unfair labor practice striker with the same right to
reinstatement as the other 13 strikers.
It is undisputed that on September 4 the Union, on
behalf of the strikers, made an unconditional application
to return to work on September 8. On that date, the Union
furnished the Respondent with a requested list identifying
the 14 applicants. However, no striker was offered
reinstatement at this time because of the Respondent's
unalterable position, that, as a result of the conversion of
the composing room operation from a hot metal to a cold
type process, substantially equivalent employment was no
longer available.e% I find this contention unsupported by
the record.
It is clear that before the strike began the strikers worked
in the composing room in the production of newsprint.
This function of the composing room remained the same,
the Respondent in support of a contrary finding, is factually distinguishable
from the present case . Among other things , unlike Lewin, the Respondent
did not seek the right to assign jobs in order to avoid jurisdictional disputes
with another union . Moreover , unlike here , the employer in Lewin agreed to
include in the contract the Board 's unit description, thereby eliminating that
question.
as Mastro Plastics Corp. v. N LR B., 350 U.S. 270, 278.
64 However , it appears that two hot metal jobs survived the conversion.
COLUMBIA TRIBUNE PUBLISHING CO. 553
even though the method of operation was changed from a
hot metal to a cold type process . Significantly, no
contention is advanced , nor could one be seriously made,
that the strikers were incapable of performing the job
requirements under the new process , with or without
training, or that they were refused reinstatement on that
ground . Indeed , the evidence indicates that several strikers
had previous cold type experience ; others had already been
retrained ; and, if there were some who did not have the
requisite qualification at the time of their application, they
could probably acquire it with little instruction , as did the
newly hired inexperienced employees who replaced the
composing room employees when they went out on strike.
Moreover, there is evidence that many cold type jobs, such
as paste makeup and the keyboard operation , are compara-
ble to those performed by the strikers under the hot metal
process and may well have been encompassed in the unit
description in the parties ' previous bargaining contracts.
Finally , there is uncontroverted testimony that, where
newspaper publishing companies in the Columbia area, as
well as in other parts of the United States , converted their
composing room operations from hot metal to cold type,
the hot metal operators were retained to work under the
new process . As a matter of fact , the Board itself has
recognized in jurisdictional dispute cases65 the qualifica-
tions of these employees to perform cold type jobs and, for
this and other reasons , upheld employers ' work assign-
ments of this nature to employees represented by sister
locals of the Union.
Accordingly , I find that the Respondent had no
justifiable basis for not reinstating the applicants to cold
type jobs , if hot metal positions were not available.
Moreover, with respect to Michael Naughton, who
received a letter from the Respondent on September 15
that he would not be reinstated because of strike
misconduct , no evidence was adduced by the Respondent,
upon whom rested that burden ,66 to substantiate this
charge . I therefore find that Naughton did not forfeit his
right to reinstatement.
In view of the foregoing, it is concluded that , by refusing
to grant the strikers reinstatement on and after September
8, the Respondent discriminated against them because of
their union and concerted activities in violation of Section
8(a)(1) and (3) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and like and related conduct and take certain
affirmative action designed to effectuate the policies of the
Act.
To remedy the Respondent's unlawful refusal to fulfill its
statutory obligation , I recommend that it be ordered to
bargain on request with the Union as the exclusive
bargaining representative of the Company' s employees in
the unit found appropriate herein concerning wages, rates
of pay , hours of employment, and other working condi-
tions . It has also been found that the Respondent on
September 8 unlawfully denied the 14 named employees
reinstatement to their former jobs or, if such positions were
no longer in existence , to the newly created cold type
positions in the composing room . However , as discussed
above, on September 15 the Respondent , on the basis of
seniority , offered applicants Yeager and Williamson
reinstatement to hot metal printing jobs,87 requesting them
to report for work on September 20. The other applicants,
excepting Epperson and Naughton , were also unlawfully
refused substantially equivalent cold type jobs but were
placed, instead, on a preferential hiring list . When Yeager
and Williamson failed to come to work as requested, the
Respondent made successive offers to the remaining 10
applicants on the preferential hiring list in the order of
seniority . However, these individuals also failed to report
for work at the designated time . The clear inference from
the record evidence is that Yeager, Williamson , and the
other 10 applicants declined reinstatement because all of
the named strikers were not offered reinstatement as a
group to the hot metal and cold type jobs. Consequently,
these individuals88 resumed their status as unfair labor
practice strikers entitled , upon their renewed application,
to the same indicated reinstatement rights to hot metal and
cold type positions dismissing , if necessary , any replace-
ments , in order to provide work for these strikers. Such
reinstatement shall also be without prejudice to the
strikers' seniority , or other rights and privileges which they
had previously enjoyed . It is further recommended that
these individuals be made whole for any loss of earnings
they may suffer by reason of the Respondent's refusal, if
any, to reinstate them , by payment to each of them of a
sum of money equal to that which he normally would have
earned 5 days after the date of his renewed unconditional
application for reinstatement to the date of the Respon-
dent's offer of reinstatement, less his net earnings during
said period.
I have also found that on September 8, prior to the above
reinstatement offers to 12 of the 14 strikers , the Respon-
dent had unlawfully discriminated against them . There-
fore , it is recommended that each one be reimbursed for
the loss of pay each may have suffered during the period
from September 8 to the date of his receipt of the
Respondent's offer of reinstatement , less his net earnings
during that period . With respect to Epperson and Naugh-
ton, who were also unlawfully deprived of employment on
September 8, they were never offered reinstatement.
Accordingly, it is recommended that they be made whole
for any loss of earnings they may have suffered by reason
of the discrimination by payment to each of them of a sum
of money equal to that which he normally would have
earned from September 8, the date of the discrimination, to
the date of the offer of reinstatement , less his net earnings
during the said period . Backpay herein ordered for all the
employees shall be determined on the basis of the $4.33
65 See , for example , International Stereotypers and Electrotypers Union, 67 As indicated above , these were apparently the only hot metal jobs
Local No 25 (Niagara Falls Gazette Publishing Corporation), 193 NLRB No. remaining after the institution of the new cold type process.
16; Local 9, International Stereotypers' and Electrotypers' Union of North 6e They are: Yeager, Williamson, Hart, McKay , LaRue, Bayless,
America, AFL-CIO (Detroit Free Press), 189 NLRB No. 130 . Stanley, Hill, Adams , Canny, Gouker, and Loutzenhiser.
66 N L R. B. v. Burnup & Sims, Inc, 379 U.S. 21.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hourly rate and 37 1 /2 hour workweek which were their
conditions of employment before they went on strike and
which conditions had never been changed as a result of
good-faith bargaining . Moreover , backpay shall be com-
puted with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
To facilitate the computation , as well as to clarify the
named employees' right to reinstatement and employment,
the Respondent shall make available to the Board, upon
request , payroll and other records necessary and appropri-
ate for such purposes . I further recommend that the
Respondent notify the above-named employees of their
right to reinstatement on application if they are serving in
the Armed Forces of the United States . The posting of a
notice is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees in the Respondent 's composing room,
excluding office clerical employees, guards and supervisors
as defined in the Act and all other employees , constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein , the Union has been the
exclusive bargaining representative of the employees in the
above-described unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing to incorporate in any contract reached
by the parties a description of the appropriate unit
represented by the Union and by otherwise refusing to
bargain collectively in good faith with that organization as
the exclusive representative of the employees in the above-
described unit , the Respondent engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By denying the striking employees reinstatement on
September 8, 1971, on their unconditional application
because of their union and concerted activities, the
Respondent discriminated against them to discourage
membership in a labor organization in violation of Section
8(a)(3) of the Act.
7. By the foregoing conduct , the Respondent interfered
with , restrained , and coerced employees in the exercise of
their statutory rights within the meaning of Section 8(axl)
of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]