Hearst Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1965

151 N.L.R.B. 834 (N.L.R.B. 1965)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Mirror, Division of the Hearst Corporation and New
York Newspaper Printing Pressmen 's Union Number Two, In-
ternational Printing Pressmen and Assistants ' Union of North
America, AFL-CIO and New York Stereotypers ' Union No. 1,
International Stereotypers ' and Electrotypers ' Union, AFL-
CIO and Newspaper Guild of New York Local No. 3, American
Newspaper Guild, AFL-CIO and Paper Handlers & Sheet
Straighteners' Union Number One, International Printing
Pressmen and Assistants ' Union of North America , AFI.-CIO
and Publishers ' Association of New York City, Party in Interest.
Cases Nos. 2-CA-9619, ?-CA-9619-2, 2-CA-9619-3, and 2-CA-
9619-44. March 19, 1965
DECISION AND ORDER
On April 3, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Decision. Thereafter, the
General Counsel and the Charging Parties filed exceptions to the
Trial Examiner's Decision and supporting briefs, and the Respond-
ent filed an answering brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error has been committed. Subject to one qualification set forth
below, the rulings are hereby affirmed. The Board has considered
the Trial Examiner's Decision and entire record in this case, includ-
ing the exceptions and briefs, and hereby adopts the Trial Exam-
iner's findings, conclusions, and recommendations only to the extent
consistent with our Decision herein.
The underlying facts are not in dispute.' During 1962 and 1963
the Respondent Hearst Corporation, through the general manager
of its various newspapers, several times informed the New York
News that Hearst would consider an offer of purchase of the New
York Mirror, an unincorporated division of Hearst Corporation?
The News consistently stated that it would not consider the matter
until Hearst determined that the Mirror should no longer be
published.
" We agree with all parties that their stipulation , set forth in the Trial Examiner's
Decision, was not intended to preclude consideration of or reliance on other evidence,
and the findings and conclusions herein are based on the complete record
2 The General Counsel 's exception to the Trial Examiner 's failure to make a single
employer finding is inapposite , as it is clear that the Mirror is merely one component of
a legal entity known as the Hearst Corporation , the Respondent herein.
151 NLRB No. 110.
NEW YORK MIRROR 835
On August 14, 1963, pursuant to authorization by Hearst's Execu-
tive Committee, Hearst's general manager commenced sale negotia-
tions with the News at the latter's offices. Further negotiations
were held on August 22, September 4, and October 9 through 14.
On October 14, Hearst's Executive Committee approved a proposed
contract of sale of the Mirror's name, goodwill, and assets to the
News. On the same day the Mirror's publisher and top executive,
Charles B. McCabe, who is not a member of Hearst's Executive
Committee, informed the Mirror's general manager, William N.
Thomson, that there was a "likelihood" that the Mirror might be
sold. Thomson theretofore had not known of the current sale
negotiations between Hearst Corporation and the News.
The next day, October 15, 1963, the contract of sale was approved
by the News' board of directors. At 4 p.m. that afternoon both
parties signed the contract, which was effective immediately. General
Manager Thomson was immediately notified. At 6 p.m., pursuant to
plans he had been making since apprised the previous day by
Publisher McCabe of a possible sale, Thomson sent the following
telegram to approximately 1,300 of the Mirror's 1,600 employees :
It is with deep regret that the management of the New York
Mirror must inform you of the termination of your services
as of the end of your shift which you began on October 15,
1963. It will not be necessary for you to report for further
duty after such date.
The Chief Accountant has been instructed to mail you a check
as soon as possible for whatever monies may be due under the
collective-bargaining agreement pertaining to your services.
W. N. Thomson, General Manager
Thomson also sent telegrams to the various labor organizations that
are the recognized collective-bargaining representatives for separate
units of the Mirror's employees, some of the labor organizations
having served in that capacity since the Mirror's inception in 1924.
None of the labor organizations had theretofore been notified, or
knew, of Hearst's sale negotiations with the News or of the con-
tract of sale executed at 4 p.m .3 The telegram sent to the labor
organizations merely informed them of, and quoted, the telegrams
which had been sent to the employees they represented.
About 7 p.m., on October 15, approximately an hour after send-
ing the above telegrams, the Mirror published the first edition of
8 Although in past and most recent negotiations Mirror officials had complained to the
labor organizations of increasing financial losses, they had discounted rumors that the
Mirror was going out of business when confronted with such rumors by union officials.
Thus, in the fall of 1961 General Manager Thomson told a Guild official that a rumor
of the Mirror 's closing was untrue , but that continued publication would require certain
economies . As a result the Guild and the Mirror agreed to reduce, and did reduce, the
Guild complement by about 20 employees.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what was to be its final publication, dated October 16. The paper
contained an announcement which stated in pertinent part as
follows :
MIRROR CEASES PUBLICATION
The Hearst Corporation announced yesterday that it will
cease publication of the New York Mirror with the issue of
October 16, 1963.
The name, goodwill, and other intangible and physical assets
of the Mirror have been sold to the New York News.
The circumstances which forced the Hearst Corporation re-
luctantly to take this step are the same that have necessitated
the discontinuance of so many other good newspapers all over
the country, the announcement said. Costs have risen far in
excess of revenues and have created substantial deficits over
an extended period of time. The recent prolonged newspaper
strike aggravated the already serious problems of the Mirror.
Numerous outstanding Mirror Features . . . will appear in
the New York Journal-American.
AN EMPLOYMENT OFFICE is being established in the
Mirror building where every effort will be made to obtain
employment for Mirror staff members who desire such assistance.
Termination pay in excess of $3,500,000 will be paid by man-
agement to the employees upon termination of their employment.
Shortly after the telegrams were dispatched and the above edition
of the paper was released, General Manager Thomson began receiv-
ing telephone calls and visits from officials of the various labor
organizations, including officials from all four of the Charging-
Party Unions which represent in separate units approximately 750
of the Mirror's employees. Officials of the Unions expressed sur-
prise and regret at the sudden sale and closure, and some complained
of receiving such short notice. Thomson stated that he had just
been notified, and that otherwise he would have informed the Unions
earlier. The Unions' discussions with Thomson, however, consisted
primarily of seeking assurances from him that the employees would
receive the severance and termination pay provided for in the
parties' collective-bargaining contracts, which were not due to expire
until 1965. The main contract provisions with which the Unions
were concerned are as follows :
PRINTING PRESSMEN (Section 47):- In the event of
merger, consolidation, or permanent suspension by any news-
paper covered by this argeement all employees on a mutually
approved priority list with one (1) year or more service who,.
NEW YORK MIRROR 837
by virtue of the merger, consolidation, or permanent suspension,
are deprived of their work in said newspaper shall receive the
cash equivalent of three (3) weeks' (fifteen shifts') pay.
STEREOTYPERS (Section 41) : When any regular situa-
tion holder with one (1) year or more priority is discharged
by reason of merger, a consolidation, or permanent suspension
of publication, he shall receive three (3) week's (fifteen (15)
shifts') pay at his current rate in addition to any accumulated
vacation credits or any other money due him. The foregoing
shall apply only to those discharged from the merged, con-
solidated, or suspended publication.
PAPER HANDLERS (Section 22) : In the event of merger,
consolidation, or permanent suspension by any newspaper
covered by this agreement all regular situation holders with
,one year or more of service as regular situation holders who by
virtue of the merger, consolidation, or permanent suspension
are deprived of regular situations shall receive the cash equiva-
lent of three weeks' (fifteen shifts') pay at their current rate
in addition to any accumulated vacation credits or any other
money due them.
GUILD (Section 10-DISMISSAL PAY) : (a) When an
employee other than exempted employees or an employee work-
ing under a personal service contract is discharged, he shall
receive a cash dismissal payment in lump sum in accordance
with the following schedule for years of continuous and un-
interrupted employment: [dismissal pay varying from 1 to
60 weeks' pay].
For 2 or 3 weeks following the shutdown on October 16, Thomson
met regularly with officials of the Unions to work out the employees'
contract benefits. The Mirror fully honored the termination and
severance pay provisions. The Mirror, as well, maintained an em-
ployment office, as it was still doing at the time of the hearing
before the Trial Examiner, and placed substantial numbers of em-
ployees. On at least two occasions the Mirror ran ads in other
publications to find available jobs. At the time of the hearing,
the Mirror had only about 40 employees still on its payroll.
All four of the Unions' contracts contain the following "zipper"
clause :
The parties hereto agree that they have fully bargained with
respect to wages, hours and other terms and conditions of em-
ployment and have settled the same for the terms of this agree-
ment in accordance with the terms thereof.
It is not disputed that the Respondent's October 15, 1963, decision
to sell and to shut down the Mirror was solely for economic reasons,
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was devoid of any unlawful antiunion, discriminatory motiva-
tion. The General Counsel and the Unions, relying on the Board
decisions in Town & Country Manufacturing Co., Inc., 136 NLRB
1022, enfd. 316 F. 2d 846 (C.A. 5), and Fibreboard Paper Products
Corp., 138 NLRB 550, enfd. sub nom. East Bay Union of Machinists,
Local 1304, et al., 322 F. 2d 411 (C.A.D.C.), affd. 379 U.S. 203, and
related cases, contend that the Respondent violated Section 8(a) (5)
and (1) of the Act by failing to notify the Unions of the con-
templated decision and by failing to give the Unions an opportunity,
if they desired, to consult and negotiate with the Respondent before
a final decision was made and implemented. The Respondent
asserts that its decision to sell and to shut down the Mirror's
operations was not a mandatory subject of bargaining. In the
alternative the Respondent asserts that even if the decision was a
mandatory subject, the Unions waived any rights to bargain about
it in this case. As support for its latter assertion, the Respondent
contends that: (a) the provisions in the contracts granting sever-
ance and termination pay "in the event of merger, consolidation, or
permanent suspension," together with the zipper clauses, gave the
Respondent the right unilaterally to terminate operations; and
(b) during contract negotiations the Unions waived any statutory
rights to be consulted about a decision to terminate operations.
For the reasons stated infra, we reject the Respondent's broad
contention that an employer's decision to terminate an entire opera-
tion, regardless of its impact on employees, is outside the scope
of mandatory bargaining. The Trial Examiner held it was un-
necessary to pass on this contention, as he found merit in the Re-
spondent's waiver defense and dismissed the complaint on that
ground. However, although in the state of the record before us
we do not find sufficient support for the Trial Examiner's waiver
finding, we dismiss the complaint herein for other reasons to be
more fully set out below.
Because we dispose of this case on other grounds, we need only
briefly explicate the basis of our rejection of the Respondent's
contention that a decision to sell and to shut down an entire opera-
tion does not fall within the management decisions which we held
in Town & Country and Fibreboard are mandatory subjects of
bargaining.4 Town cC Country and Fibreboard 5 involved, to be sure,
management decisions to contract out a phase of an operation. But
The effects on the employees of a change or termination of operations is a mandatory
subject of bargaining as well ; however , as indicated , infra, the Respondent is not
charged with failing to bargain in this respect.
6 We do not adopt the Trial Examiner ' s analysis of the Board decisions in Town
Country and Fibreboard, and prior and subsequent related Board decisions ; nor do we
adopt his analysis of the holdings in related court cases and their impact on the cited
Board decisions.
NEW YORK MIRROR 839
the principles of these earlier cases have been equally applied to
management decisions to take other steps to alter or to discontinue
permanently either a portion or all of an operation when the deci-
sions have the effect of eliminating unit work.6 Thus our decisions
in Town t Country and Fibreboard did not turn on the means
whereby, or the extent to which, the employer terminated operations,
but rather on the fact that a management decision "eliminating unit
jobs . . . is a matter within the statutory phrase `other terms and
conditions of employment."" The elimination of unit work is
no less within that statutory phrase when it is to result from a man-
agement decision affecting an entire operation .8 And this is so
even though the likelihood is slim that prior consultation with the
union will alter the employer's contemplated decisions For the
Act "at least demands that the issue be submitted to the mediatory
influence of collective negotiations." to
Turning to the issue of waiver, we, of course, recognize that
the statutory right of a union to bargain about changes in terms
and conditions of employment may be waived by the union. How-
ever, a waiver of a statutory right is not to be lightly inferred
but must be "clear and unmistakable." 11 The Board will not find
that contract terms of themselves confer on the employer a manage-
ment right to take unilateral action on a mandatory subject of
6 See , for example , Can Rochet, et al., doing business as The Renton News Record,
et al., 136 NLRB 1294; Weingarten Food Center of Tenn, Inc ., 140 NLRB 256; Esti
Neiderman, et al., doing business as Star Baby Co., 140 NLRB 678, 681, modified 334
F. 2d 601 ( C.A. 2) ; Pepsi-Cola Bottling Co. of Beckley , Inc., 145 NLRB 785, enfd.
sub nom. Chauffeurs , Teamsters, Local Union No. 175 , etc, 57 LRRM 2607 (C.A.D C ),
decided November 12, 1964; Winn-Dixie Stores Inc., 147 NLRB 788, Royal Plating and
Polishing Co., Inc., 148 NLRB 545 ; William J . Burns International Detective Agency,
Inc., 148 NLRB 1267; Apex Linen Service of Columbus , Inc., 151 NLRB 305.
7 Town & Country Manufacturing Co., supra, at 1027. As stated by the Supreme
Court , in affirming our decision in Fibreboard, "The [statutory ] words . . . plainly cover
termination of employment ," even where the management decisions result in terminating
the "work of the entire unit " Fibreboard Paper Products Corp. v. N.L.R .B., supra,
at 210, 213.
$ Royal Plating and Polishing Co, Inc., supra ; Star Baby Co., supra; Apex Linen Service
of Columbus , Inc., supra , Pepsi- Cola Bottling Co of Beckley , Inc., supra ; Weingarten
Food Center of Tenn., Inc., supra. Cf. John Wiley & Sons v. Livingstone , 376 U.S.
543, 549; Steelworkers v. Reliance Universal , Inc., 335 F. 2d 891, 894 (CA. 3)
We note, however , that in the instant case the Respondent negotiated a reduction of
force with the Guild in 1961, following the Respondent ' s announcement that such action
was necessary to continue publication . Similarly, disclosure in October of 1963 of a
contemplated decision to shut down may have of itself provided a basis for discussion
of the Unions' "seemingly fixed position" on matters affecting the decision Town &
Country, supra, at 1027, footnote 9, and accompanying text. Cf. Winn-Dixie Stores,
Inc., supra . As its earlier experience with the Guild demonstrates , the wage costs which
were assertedly a substantial component of the high costs which led the Respondent to
terminate the enterprise were "matters peculiarly suitable for resolution within the col-
lective bargaining framework ." Fibreboard Paper Products Corp. v. N .L.R.B., supra,
at 213-214.
io Fibreboard Paper Products Corp. v. N.L.R B., supra, at 214. Accord: Town &
Country, supra, at 1027. Royal Plating and Polishing Go, Inc., supra
n The Timken Roller Bearing Co. v. N.L.R B , 325 F. 2d 746 , 751 (C A 6), cert.
denied, 376 U S. 971 ; Smith Cabinet Manufacturing Company, Inc ., 147 NLRB 1506 ;
Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unless the contract expressly or by necessary implication
confers such a right.12 In the instant case, as noted, the Respond-
ent would support an inference of waiver primarily on the severance
and termination pay provisions. Undoubtedly these provisions,
except possibly for the one in the Guild contract, clearly establish
that the parties had bargained about the compensation to be received
by the employees in the event of a lawful suspension of the Mirror's
operations; 13 indeed, the General Counsel concedes as much. But
on the specific waiver issue with which we are here concerned, the
severance and termination provisions are at best equivocal. They
contain no specific reference to a right by the Respondent to termi-
nate operations without prior notice or consultation With the Unions
and on their face are entirely consistent with the reservation by
the Unions of such right. Applying the applicable principles set
out above, we are therefore unable to conclude on the basis of these
provisions standing alone that the Unions clearly and unmistakably
waived their statutory right to be notified and consulted in advance
about any decision by the Respondent to suspend operations. Nor
are we able to find adequate support for an inference of such
waiver by considering the severance and termination pay provisions
in juxtaposition with the zipper clause in the contracts. This
boilerplate clause, carried over from previous agreements, does no
more than indicate that the parties embodied their full bargaining
ageement in the written contracts. A wrap-up clause of this nature
affords no basis for an inference that the agreement contains an
implied undertaking over and beyond those actually written into
the agreement.14
But our finding that the severance and termination provisions
are not of themselves sufficient to spell out a waiver does not end
the scope of permissible inquiry into the validity of the Respondent's
waiver defense. We agree with the Respondent that in determining
the parties' actual contractual intent we are not restricted to the
contract provisions themselves but may properly evaluate them
against the elucidating background of their bargaining history.15
Thus, for example, if it were to appear that after full exploration
of the subject during prior negotiations the Unions had consciously
12 Smith Cabinet Manufacturing Company, Inc , supra. Cf. Leroy Machine Co , Inc.,
147 NLRB 1431 ; General Motors Corporation , Buick-Oldsmobile-Pontiac Assembly Di-
vision, 149 NLRB 396
13 We note that the provision in the Guild contract is concerned only with "dismissal
pay in the event of "discharge "
31IGE v. General Electric Co., 332 F. 2d 485, 489 (C.A. 2), footnote 3. We do not
agree with the Trial Examiner 's statement that a similar wrap-up clause underlay the
Board ' s finding of waiver in The Borden Company, Maricopa Division, 110 NLRB 802. In
Borden the Board found a waiver on the basis of the parties' positions in the contract nego-
tiations , the substantive terms of the contract dealing with the dispute in issue, and the
availability of arbitration and grievance machinery to settle that dispute.
15 0 & 0 Plywood Corporation, 148 NLRB 414; Kennecott Copper Corporation (Chino
Mine Division), 148 NLRB 1653.
NEW YORK MIRROR 841
yielded their interest to be notified about the permanent suspension
of the Mirror's operations in return for the severance and termina-
tion provisions, a finding of a clear and unmistakable waiver might
well be justified."'
In the instant case, however, the Trial Examiner ruled that he
was "only interested in what got into the contracts." He therefore
refused to admit evidence of the parties' positions during prior
negotiations.17 In this respect we find he was in error.
Under other circumstances we might remand the proceeding to
the Trial Examiner for further hearing.18 However, we shall not do
so in this case because we are satisfied that no remedial order would
be warranted in any event. We are mindful of the Supreme Court's
statement in N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel
Products Co., 369 U.S. 736, 747, that even though unilateral action
by an employer without prior discussion with the union is contrary
to congressional policy, this "do[es] not forclose the possibility that
there might be circumstances which the Board could or should
accept as excusing or justifying [such] unilateral action . . . ." We
are satisfied that such circumstances are present here. Thus it is
undisputed that the Respondent's decision to sell the Mirror was
prompted solely by pressing economic necessity.19 The sale and total
cessation of the Mirror's operations have permanently abolished all
unit jobs formerly held by employees represented by the Unions,
and restoration thereof and reinstatement of the employees with the
Unions as their recognized bargaining representatives are not sought
by any party. Moreover, the Unions and the Respondent have had
a long and effective bargaining relationship pursuant to which they
had reached contractual settlement of the employees' severance pay
and termination rights in the event of abolishment of unit jobs.
The Respondent continued the bargaining relationship after the
shutdown by meeting and negotiating with the Unions whenever
requested. Furthermore, the Unions' primary and virtually sole
concern after the shutdown was securing the employees' rights under
19 Proctor Manufacturing Corporation, 131 NLRB 1166 , 1169; Shell Oil Company, 149
NLRB 283; Shell Chemical Company, a Division of Shell Oil Company, 149 NLRB 298.
17 Inconsistently with his own reasoning , however, the Trial Examiner did not rest
his waiver finding solely on the terms of the contracts , but, relying on information
outside the record, found that the Unions as "a matter of common knowledge" were
aware of the possibility , if not the probability, that the Respondent might shut down the
Mirror during the terms of the new contracts . Even assuming the correctness of this
finding we do not view this as sufficient to support the Trial Examiner 's reading into
the contract clauses of a "clear and unmistakable " waiver . See Henry I. Siegel Co.,
Inc., 147 NLRB 594, after remand sub nom. Amalgamated Clothing Workers of America,
AFL-CIO v. N .L.R.B., 324 F. 2d 228 (C.A. 2 ) ; The Timken Roller Bearing Company,
supra; Perkins Machine Company, 141 NLRB 98 , enfd . 326 F. 2d 488 ( C.A. 1). See
also Beacon Piece Dyeing and Finishing Co, Inc, 121 NLRB 953 , 956-957; The Press
Company, Incorporated , 121 NLRB 976, 978.
's Cloverleaf Division of Adams Dairy Co., supra
19 Cf. The Renton News Record , etc., supra.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contracts. The Respondent concededly met its obligation to
bargain with the Unions concerning those rights and other effects
of the shutdown, negotiating to full and complete settlement the
employees' severance and termination pay, and cooperating in efforts
to find other employment for them. Finally, we note that the record
herein contains no evidence of union animus by the Respondent
and that it was not charged that the Respondent otherwise violated
the Act. All things considered, we are satisfied in these circum-
stances that effectuation of the purposes of the Act would not
require a remedial order even if a technical violation were found.20
Accordingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner and
orders that the complaint therein be, and it hereby is, dismissed.
20 Cf. The Flintkote Company, 149 NLRB 1561; Sinclair Refining Company, 145
NLRB 732; Kentile Inc., 145 NLRB 135; American Gilsonite Company, 122 NLRB
1006, 1007; Fleetwood Trailer Co ., Inc., 118 NLRB 1355, 1356. See also Shell Oil Com-
pany, 149 NLRB 305; Jersey Farms Milk Service, Inc., 148 NLRB 526; Hartmann Luggage
Company, 145 NLRB 1572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on October 16, 1963, by New York Newspaper Printing Press-
men's Union Number Two, herein called the Pressmen , on October 25 ,1963, by New
York Stereotypers ' Union No. 1, herein called the Stereotypers , on November 4, 1963,
by the Newspaper Guild of New York Local No. 3, herein called the Guild, and on
December 16, 1963, by the Paper Handlers and Sheet Straightener 's Union Number
One, herein called the Paper Handlers, against the New York Mirror, Division of the
Hearst Corporation , herein called the Mirror or the Respondent (Hearst Corporation
will be referred to as Hearst ), the General Counsel issued an order consolidating the
cases and an amended complaint alleging Respondent violated Section 8(a)(5) and
(1) of the Act . The amended answer of the Respondent denied the commission of
any unfair labor practices . The Publishers ' Association of New York City, herein
called the Publishers , was named and served as a party in interest.
This proceeding , with all parties represented , was heard before Trial Examiner John
F. Funke at New York, New York, on January 27 and 28, 1964. All motions on
which decision was reserved are disposed of in accord with the recommendations of
this Decision . The parties were given leave to file briefs and briefs were received on
March 4.
Upon the entire record in this case , and my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The New York Mirror, Division of Hearst Corporation. was at all times material
herein and until October 15, 1963, engaged in the publication of a daily newspaper
in the city of New York.
During a representative year the Mirror held membership in interstate news services,
published syndicated features, advertised nationally sold products , and derived gross
revenues from its publishing operations in excess of $500,000.
Respondent , at all times material herein , was an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
NEW YORK MIRROR
II. LABOR ORGANIZATIONS INVOLVED
843
The Pressmen, the Stereotypers, the Guild, and the Paper Handlers are labor
organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The Mirror came into existence in 1924 as a tabloid member of the Hearst chain
of newspapers and was published in the city of New York. Almost 40 years later
it ceased publication. The steps leading to the termination of publication have been
stipulated and the stipulation reads:
Respondent, New York Mirror, Division of the Hearst Corporation, herein
after referred to as the Mirror, having petitioned to revoke two subpoenaes duces
tecum, issued herein dated January 14, 1964, Nos. B51239 and B51240, and
News Syndicate Company, Inc. Publishers of the newspaper Daily News, and I
quote "Sunday News" herein after referred to as the News, having petitioned
to revoke subpoenaes ad testificandum No. A174012 and duces tecum No.
B51237, dated January 14, 1964, and counsel for the General Counsel having
reviewed with counsel for the Mirror and the News respectively certain facts
deemed relevant by counsel for the General Counsel to the alleged violations
contained in the amended consolidated complaint herein and sought to be
adduced through the aforesaid subpoenaes.
Now therefore, in order to obviate the necessity for formal proceedings with
respect to all of said subpoenaes the undersigned herein stipulated as follows:
1. This stipulation shall be for the purpose of this proceeding only.
2. The Mirror reserves all rights without prejudice including the right to
object to the materiality and relevance of any of the facts hereinafter set forth
and stipulated to on the hearing herein.
3. During 1962 and 1963 the Hearst Corporation bad indicated to the News
that it would consider an offer for the Mirror. The News consistently informed
the Hearst Corporation that the News would not purchase the Miff or or any of
its assets unless the Hearst Corporation reached a decision that suspension of
publication was necessary . Acting pursuant to previous authorization by the
Executive Committee of the Hearst Corporation, the General Manager of the
newspaper published by the various divisions of the Hearst Corporation, Hearst
Consolidated Publications, Inc., and Hearst Publishing Company, Inc. and a
now deceased Hearst Corporation executive on August 14, 1963, met with two
senior executives of the News at the offices of the latter for discussion of the
possible sale of the Mirror and all of its assets to the News. The initiation of
this discussion was at the instance of the Mirror. Among the assets offered for
sale at this subsequent meeting were those listed in Paragraph 7 of this stipulation.
The said authorization of the Executive Committee empowered the General
Manager and the said Hearst executive to enter into negotiations for the sale of
the New York Mirror and all of its assets and that any agreement of sale reached
was to be subject to the approval of the said executive committee. The New
York Mirror is a division of the Hearst Corporation and is separately managed,
has, inter alia separate union contracts , separate payrolls and personnel and
separate editorial policies, but is not separately incorporated. The said General
Manager was and is a member of the said executive committee.
4. Further discussion and negotiations between the Hearst Corporation and
the News on the same general business subjects were held on the following dates
in 1963: August 22, September 4, October 8, October 9, October 10 and Octo-
ber 14. On each of these dates some progress was made toward reaching a sub-
stantially complete agreement. On October 10, 1963, the negotiators reached a
substantially complete agreement subject to the approvals of the News' Board of
Directors and the executive committee of the Hearst Corporation and, on that
date, the first draft of an agreement was drawn up by the Mirror counsel and
delivered to the News' counsel. On October 11, 1963, a counter draft was
proposed by the News' counsel . During the course of the negotiations, the said
General Manager advised members of the executive committee of the progress
of the negotiations, and discussions.
Paragraph 5. On Monday, October 14, final approval was given by the said
executive committee to the sale of specific assets hereinafter set forth in Para-
graph 7 of this stipulation, by a majority of the members of the executive com-
mittee consenting to a resolution proposed by a Hearst Corporation officer to the
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect that the Hearst Corporation authorizes and consents to the sale of certain
of the Mirror's assets to the News and authorizes the contract of sale be signed
by the proper official.
6. On Tuesday, October 15, at anproximately 12:30 p.m. the board of
directors of the News Syndicate Co., Inc. voted to approve the execution of an
agreement dated that day and covering the purchase of the assets hereinafter
set forth in Paragraph 7 of this stipulation. The agreement between the Hearst
Corporation and the News Syndicate Co., Inc. was thereafter signed on behalf
of the News. Four original counterparts were thereafter executed by Hearst
Corporation executives at or about 4:00 p.m. on the afternoon of Tuesday,
October 15. The agreement was effective at 4:00 p.m. on October 15, 1963.
7. The assets which were purchased from the Mirror by the News pursuant to
the agreement were as follows: The name, title, goodwill, trademark and trade-
mark registration of the Mirror together with its rights, title and interest in and
to all names ( including all pen names , names of writers and other names not
those of a living person), titles, logotypes and slogans used exclusively in con-
nection with the Mirror, including the right to use the whole or any part of the
foregoing and all rights and privileges of whatsoever kind or description belong-
ing or incidental thereto.
b. The circulation and data generally described in Exhibit A. hereto.
c. The Mirror's right, title and interest in and to the feature materials listed
in Exhibit B. hereto, but subject to the provisions of Paragraph 4 of said agree-
ment. The text of which appears in Exhibit B. hereto.
d. All copy rights and rights of literary property (excluding those relating
to feature materials held by the Mirror solely as a result of the publication of
material in the Mirror) together with a general exclusive license under each
and all of said copyrights.
e. The library or "Morgue," of the Mirror including 1, all files of clippings,
photos (including negatives) and related publication material together with the
file cabinets in which stored, and 2, all bound files and file copies of the Mirror.
f. All of the Mirror's prepaid subscription contracts and lists.
g. Such rights as the Mirror may have in the Mirror promotion programs and
activities and circulation contests excluding the national sports, vacation and
travel show and the Mirror Welfare Fund Dinner schedule for October 27, 1963.
8. No assets of the Mirror were sold prior to four p.m. on October 15, 1963.
9. The subpoenaes referred to herein shall be deemed withdrawn.
10. Notice of the shutdown of operations of the Mirror and discharges was
not given by the Mirror to its pressmen, stereotypers, editorial-commercial
employees and paper handlers or the pressmen's union, stereotypers union, the
Guild or the paper handlers union prior to five p.m. on October 15, 1963. How-
ever, this shall not preclude evidence as to when notice was actually received.
11. The assets listed on Exhibit C hereto were sold or otherwise disposed of
by the Mirror after October 16, 1963.
12. Only insofar as the facts herein above set forth relate to facts within the
knowledge of the News or of F. M. Flynn, are such facts to be deemed stipulated
by the News or F. M. Flynn.
The stipulation covers all of the facts upon which the General Counsel relies for
proof to support his case. No claim is made that the closing of the Mirror was dis-
criminatory within the meaning of Section 8(a) (3) of the Act.
B. Conclusions
The sole issue in this case is stated succinctly in the General Counsel's brief as
follows:
The g,avamen of the Amended Consolidated Complaint was that on or about
October 15, 1963, Respondent unilaterally terminated and shut down its opera-
tions and terminated the services of its pressmen, stereotypers, editorial-
commercial employees and paperhandlers, without prior notice to the Pressmen's
Union, the Stereotypers' Union, the Guild and the Paperhandlers' Union, and
without having afforded such labor organizations an opportunity to negotiate or
bargain with Respondent with respect to its decision to shut down and terminate
its operations and to terminate the services of such employees, notwithstanding
that such labor organizations were the exclusive representatives of such employ-
ees for the purposes of collective bargaining.
NEW YORK MIRROR 845
The decision which opened this entire area of collective bargaining to Board review
was Town & Country Manufacturing Co., Inc., etc., 136 NLRB 1022, in which the
Board specifically overruled its first Fibreboard decision.' In Fibreboard the Board
had held that an employer which had unilaterally subcontracted a portion of its
operations for economic reasons did not violate Section 8(a) (5) of the Act by failing
to notify and negotiate with the designated bargaining representative of its employees
concerning its decision. In Town & Country the purity of motive found in Fibre-
board was lacking and discrimination was held the motivating factor but in its recon-
sideration of Fibreboard 2 a Board majority found motive immaterial. In its recon-
sidered decision the Board majority was guided by the same sanction which had
prompted Member Fanning to dissent in the original Fibreboard; i e , the decision of
the U.S. Supreme Court in Order of Railroad Telegraphers v. Chicago & Northwestern
Railroad, 362 U.S. 330. As a result of this putative reconciliation of the Board's
thinking with that of the Supreme Court, it is clear that under present Board law an
employer may not, by unilateral action, subcontract or close down a portion of his
business in which the employees have selected a bargaining representative even though
the decision is economic in motive and that his obligation to bargain applies to the
decision itself as well as to the rights of employees affected 3
This twofold requirement has already been approved by the Court of Appeals for
the District of Columbia in Fibreboard Paper Products Company v. N.L.R.B., 322
F. 2d 411, and is presently before the Supreme Court (cert. granted 375 U.S. 963).
Other circuits, however, are not in complete concurrence. In those circuits which
have passed on the issue in cases free from the taint of discriminatory motive the
Fifth rejected it in its entirety in N.L.R.B. v. The Houston Chronicle Publishing
Company, 211 F. 2d 848, reversing the Board's finding that the Employer was moti-
vated by a desire to avoid its bargaining obligation in its decision to use independent
contractors rather than its employees in the distribution of its papers 4 The First
Circuit likewise denied enforcement to the Board's order in N.L.R.B. v. New England
Webb, Inc., et al. 309 F. 2d 696, holding that an employer had the right to close its
plant for economic reasons including such economic pressures as he might anticipate
from the unionization of his plant. The Sixth and Seventh Circuits are in agreement.5
The Fourth Circuit, sitting en banc and by a 3-to-2 majority, has gone further and
held that an employer may close its plant for any reason, including a desire to avoid
bargaining with a union .6
In N.L.R.B. v. Rapid Bindery, Inc., et al., 293 F. 2d 170, the Second Circuit split
on the duality of the obligation, finding that the Respondent's failure to consult with
the Union or to give it an opportunity to bargain with respect to contemplated
changes in employment which result from the closing of a plant was unlawful,
although it found such a closing economically motivated. It refused, however, to find
that the decision to close the plant should have been submitted to bargaining since
such a decision remained a managerial prerogative. The Eighth Circuit reached a
similar conclusion in N.L.R.B. v. Adams Dairy, Inc., 322 F. 2d 553, agreeing that the
Employer had an obligation to bargain with respect to the employees' termination
rights but not with respect to its decision to make a change in its operations.
While the array of the law in the circuit courts might be characterized as disheveled
and will remain so until the Supreme Court rules on Fibreboard, it is clear that the
overwhelming consensus (Fibreboard is the only exception) is against any require-
ment that any employer must bargain with a representative labor organization con-
cerning a decision to go out of business. It might be noted, in view of the limited
issue present here, that the Supreme Court decision in the Order of Railroad
Telegraphers case, supra, does not touch upon it for that issue was not before the
Court. In that case the Chicago & Northwestern had applications pending in State
courts for leave to abandon certain railway stations in the interests of economy.
1 Fibreboard Paper Products Corporation, 130 NLRB 1558.
2Id 138 NLRB 550.
8 Adams Dairy, Inc., 137 NLRB 815 ; Carl Rochet, et at., doing business as The Renton
News Record, et at., 136 NLRB 1294; R. C. Can Company, 144 NLRB 210 (footnote 3) ;
Pepsi-Cola Bottling Co. of Beckley, 145 NLRB 785; Hartmann Luggage Company, 145
NLRB 1572.
4 Cf. Town & Country Manufacturing Co., Inc. v. N.L.R.B., 316 F. 2d 846, where the
same circuit found an unlawful motive and enforced the Board's Order.
6N.L.R.B. v. Adkins Transfer Company, Inc., 226 F. 2d 324 (CA. 6); N.L.RB. v.
The R. C. Mahon Company, 269 F. 2d 44 (CA. 6) ; N.L R.B. v. J M. Lassing, et at d/b/a
Consumers Gasoline Stations , 284 F. 2d 7'81 (CA. 6) ; Jays Foods, Inc., an Illinois
Corporation v. N.L.R B., 292 F. 2d 317 (C A. 7).
6 Deering-Milliken, Inc. (Darlington Manufacturing Company) v. N.L.R B , 325 F. 2d 682.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The union then requested that the railroad negotiate on an amendment to the
current contract which would forbid the discontinuance of any job except by agree-
ment between "the carrier and the organization ." When the union threatened to
strike to obtain compliance with its request the railroad sought an injunction against
the strike which the district court refused and the court of appeals granted. The
jurisdiction of the Norris-LaGuardia Act was at issue and the Supreme Court held
the Act prevented the issuance of an injunction . Rejecting the contention that the
union 's demand to bargain concerning the consolidation and abandonment of certain
railroad stations was unlawful , the Court, page 339, stated:
. Here, far from violating the Railway Labor Act, the union 's effort to nego-
tiate its controversy with the railroad was in obedience to the Act's command
that employees as well as railroads exert every reasonable effort to settle all
disputes "concerning rates of pay , rules, and working conditions ." 45 U.S.C.
§ 152, First. Moreover , neither the respondent nor anyone else points to any
other specific legal command that the union violated here by attempting to bring
about a change in its collective bargaining agreement . It would stretch credulity
too far to say that the Railway Labor Act, designed to protect railroad workers,
was somehow violated by the union acting precisely in accordance with that
Act's purpose to obtain stability and permanence in employment for workers.
There is no express provision of law, and certainly we can infer none from the
Interstate Commerce Act, making it unlawful for unions to want to discuss
with railroads actions that may vitally and adversely affect the security , seniority
and stability of railroad jobs. And for a number of reasons the state public
utility proceedings , invoked by the railroad to obtain approval of consolidation
or abandonment of stations , could not stamp illegality on the union 's effort
to negotiate this whole question with the railroad . The union merely asked
for a contractual right to bargain with the railroad about any voluntary steps
it might take to abandon stations or to seek-permission to abandon stations and
thus abolish jobs. Nothing the union requested would require the railroad to
violate any valid laws or the valid order of any public agency . There is no
testimony and there are no findings that this union has set itself up in defiance
of any state mandatory order. In fact, there was no state order of any kind at
the time the union first asked to negotiate about the proposed contractual
change. Even if a Norris -LaGuardia "labor dispute" could not arise out of an
unlawful bargaining demand, but see Afran Transp. Co. v. National Maritime
Union, 169 F. Supp. 416, 1959 Am. Mar. Cas. 326, the union 's proposal here
was not unlawful . [Footnote omitted.]
Although the Supreme Court has not reached the issue before me and the weight
of authority is manifestly against the position of the General Counsel , the Board
nevertheless requires its Examiners to follow its decisions until they have been over-
ruled by the Supreme Court or by a reorientation of Board policy by the Board itself.?
The facile and thought -saving answer for an Examiner requires only that he cite
Fibreboard and issue his Recommended Order.
There were , however, contracts in existence between three of the Charging Parties
and the Publishers ' Association and a separate contract between the Guild and the
Mirror. In each of these contracts provision was made for various forms of termina-
tion or severance pay 8 and it was agreed that the Mirror lived up to these provisions.9
Each of these contracts contained , however, another clause which reads:
The parties hereto agree that they have fully bargained with respect to wages,
hours and other terms and conditions of employment and have settled the same
for the term of this agreement in accordance with the terms thereof.1°
7lnsurance Agents' International Union, AFL-CIO (The Prudential Insurance Com-
pany of America ), 119 NLRB 768 , reversed 361 U S. 477.
e The contracts between the Publishers and the Pressmen ( General Counsel 's Exhibits
Nos. 2 and 3 ) provided for vacation pay and optional leave pay in the event of sever-
ance. The contracts between the Publishers and the Stereotypers ( General Counsel's
Exhibit No . 6) and between the Publishers and the Paper Handlers (General Counsel's
Exhibit No. 12 ) provided for "Suspension and Merger Pay," and that between the
Publishers and the Guild provided for dismissal pay varying from 1 to 60 weeks' pay
01n view of this concession it is difficult to regard the General Counsel ' s request for-
backpay from the date of the closing of the Mirror until each employee should receive
substantially equivalent employment elsewhere as other than punitive in the extreme.
1O Pressmen ' s contract, sec. 48 ; Stereotypers' contract , sec 65; Paper Handlers' con--
tract, 23 ; Guild 's contract , sec 40.
NEW YORK MIRROR 847
Counsel for the Mirror urges that this clause effectively foreclosed either party to
the agreement from reopening on any issue whether covered by the contract or not.
In support of this contention counsel cites The Jacobs Manufacturing Company, 94
NLRB 1214; The Borden Company, 110 NLRB 802; International News Service Divi-
sion of The Hearst Corporation, 113 NLRB 1067, as well as Section 8(d) of the Act.
He quotes the pertinent part of 8(d) as:
shall not be construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and condi-
tions can be reopened under the provisions of the contract....
In the Jacobs case the Board , in a divided decision , held the Respondent had vio-
lated Section 8(a) (5) of the Act by refusing to discuss pensions and insurance under
a clause permitting a reopening of the contract after 1 year on the issue of wages.
Pensions and insurance were not included in the contract but in reopening on wages
the Union included a demand that Respondent share the full cost of group insurance
and establish a pension plan. Agreeing that pensions presented a bargainable issue,
a Board majority limited the construction of the above language of Section 8(d) to
terms and conditions which had been integrated and embodied into a writing. It
quoted from the Tide Water 11 case with approval as follows:
. Conversely it [Section 8(d)] does not have reference to matters relating to
"wages, hours and other terms conditions of employment ," which have not
been reduced to writing. As to the written terms of the contract either party
may refuse to bargain about them , under the limitations set forth in the para-
graph , without committing an unfair labor practice . With respect to unwritten
terms dealing with "wages, hours and other conditions of employment," the
obligation remains on both parties to bargain continuously.
In the Borden case the Board supported the recommendation of the Trial Examiner
and dismissed the complaint in a short form order . The contract between Respondent
and the Union contained the following clause,:
Section 16 . . . . It is understood and agreed that all matters subject to col-
lective bargaining have been covered in this Agreement and it may not be opened
before 1954 for change in its terms, or additions of new subject matter , except
as may be mutually [agreed] upon by the parties.
After finding that the Respondent was free to take the action to which the Union
complained under the management prerogatives clause, the Trial Examiner had this
to say concerning the quoted clause:
Moreover , the contract is free from doubt that the parties waived any right either
had to require the other to bargain on any matter during the life of the contract,
whether or not such matter was contained therein or was discussed prior to its
execution.
In view of the fact that there was alternate grounds upon which the Board's affirmance
could have been based , I consider his language binding upon me only to the extent
that the Board took no exception to it.
In International News the Union had requested information concerning individual
merit increases above the minimal rates fixed by the contract which also provided
that such merit increases be fixed by agreement between the Employer and individual
employees. The Respondent asserted a waiver by the Union in its signing of the con-
tract then in effect. In negotiating the succeeding contract the Union proposed that
it be given the right to bargain on merit increases together with a request for other
information . After some meetings the Union agreed to a contract which left the
issue of merit increases to the Respondent as had past contracts . Some months later
the Union repeated its request for the information previously denied at the bargain-
ing table. In holding that the Union indicated by the signing of the contract after
the Respondent's rejection of this proposal that it had clearly and unmistakably
waived its right to the information the Board majority stated, at 1071:
In these circumstances , we believe it would be an abuse of the Board's man-
date to throw the weight of Government sanction behind the Union 's attempt,
some 3 months later, to disturb the terms of the bargain the parties themselves
achieved . The give-and -take of the bargaining table is undoubtedly a better place
than the Board 's offices for resolving disputes as to the type and amount of infor-
mational data parties to collective -bargaining contracts must give to each other.
n Tide Water Associated Oil Company, 85 NLRB 1096.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Where, as here , the parties have themselves decided the issue at the bargaining
table, the issue has been taken away from the Board and there is no need for
it to interfere . To hold otherwise is to encourage one party to a bargaining
agreement to resort to the Board 's processes to upset the terms of a contract
which the other party to the agreement had every good reason to believe had
been stabilized for a definite period.
The problem is one which has given the Board trouble through the years because
the question is primarily one of fact . In the Speidel Corporation 12 and The Press
Company, Incorporated, 13 cases the same Board drew contrary conclusions from
the facts of each case . In the Speidel case the employer had refused to agree to a
maintenance-of-privileges clause in its 1955 contract with the Toolmakers so as to
avoid making contractual obligations with respect to bonuses and insurance . The Tool-
makers agreed to the rejection and in the contract proposed for the following year
made it clear that the clause was not intended to cover bonuses . In March of 1956
the management discontinued its bonus to the Toolmakers because of the disparity
in pay between the Toolmakers and other employees, to whom it paid the bonus. The
Board found no refusal to bargain in the unilateral action taken by management
with respect to the bonus , stating; at 741:
Accordingly , we think it highly significant that the 1955 contract, as eventually
signed, did not contain the Union 's proposed "Maintenance of Privileges" clause.
Although we will not readily infer a waiver of statutory bargaining rights, we
find here, based on the entire record, that there was a clear understanding
between the parties that the subject of bonuses would remain a "management
prerogative ." In the circumstances , we therefore find that in the course of the
1955 contract negotiations , the Union "bargained away" or waived , its interest
in the matter of bonuses.
In the Press Company the Board found the Respondent had engaged in an unlaw-
ful refusal to bargain when it unilaterally abolished the commissions which it paid
its salesmen . Commissions had not been included in the contract despite the Union's
request over a period of years because of management 's claim that they were a
"management prerogative ." The last contract provided , as had previous contracts,
that "there shall be no cuts in basic salary during the term of this agreement" with
the understanding that commissions were not encompassed within the meaning of this
provision . The Union had agreed to this upon assurance from Respondent that it
did not contemplate any change in commissions . The Union, however, reserved
the right , if rates were changed, to take whatever legal steps were available. The
Trial Examiner found that the Respondent was under no obligation to bargain with
the Union with respect to the abolishment of commissions on the ground that the
Union had bargained away its right to reopen negotiations respecting commissions
during the life of the contract . Reversing the Trial Examiner, the Board stated, at 980:
In these circumstances , and particularly in the light of the specific reservation
taken by the Union at the final negotiating session, we cannot find , as did the
Trial Examiner , that the parties were in agreement at the time the current con-
tract was signed that "the practice of commissions was within the unilateral
control of the Respondent and would so continue while the contract was in
force .. . Nor can we find , as in Speidel, a clear understanding between
the parties that this subject would remain a "management prerogative" and
the Union thereby bargained away or waived its interest in the matter of
commissions.
It would serve no purpose to quote from other Board cases since each pivots on its
own particular facts.
The instant case should , I believe, be considered in relation to the modern history
of the newspaper industry, particularly in the city of New York, and that history is
one of sale , merger, and discontinuance . 14 That this condition has prevailed through
the country has been a matter of common knowledge to those interested in the indus-
try and a source of some concern to those who feel that this media of communication
should remain competitive . The Journalism Quarterly, Winter Issue, 1961 , reported
that there had been a decline in the number of competitive daily newspapers in the
United States from 117 in 1945, to 61 in 1961 , and the sale of the Houston Press on
12120 NLRB 733.
13121 NLRB 976
14 Within the last 25 years the city has witnessed the death , in one form or another,
of the New York Morning World, the Evening World , The Evening Sun, the Morning
Journal, and the Mirror
NEW YORK MIRROR 849
March 20 of this year left the country with no more than three cities (New York,
Boston, and Washington) with more than two competing newspapers. This situation
has, in fact, been the subject of an investigation by the Anti-Trust Subcommittee of
the House of Representatives. The prolonged strike and lockout in the industry in
New York which began on December 8, 1962, and which continued until March 31,
1963, did not alleviate conditions and there were rumors, given circulation in the
press of other cities, that at least two newspapers might be discontinued as a
result of the labor dispute and consequent financial loss to the publishers With all
due deference to the fact that this is a tactic not too uncommonly employed by
management in a strike situation it was not an entirely idle threat which was posed.
It cannot be said, therefore, that these contracts were executed without an aware-
ness of the hazard of mergers or suspensions of publication with respect to several
papers, including specifically the Mirror,15 and, in fact, the clauses in two of the
contracts which provided severance benefits were entitled "Suspension and Merger
Pay " These were sophisticated and powerful unions with a long history of collective
bargaining in the newspaper industry and which engaged in negotiations with knowl-
edge, shared by the general public, of the financial insecurity of some of the members
of the Publishers Association, again including the Mirror. Forewarned, each of the
Unions carefully provided for compensation for its members in event of final disaster.
Having done that they agreed to the so-called zipper clause, foreclosing the parties
from further negotiation during the life of the contract. Although the language is
not identical, I am in agreement with the Trial Examiner in the Borden case and
hold that the parties concluded a final and binding contract not only as to all the
terms embodied therein but as to all other "wages, hours and other terms and con-
ditions of employment." There must be language available by which parties to a
collective-bargaining agreement can forclose themselves from resort to the Board on
any conceivable or inconceivable issue not embraced in the agreement and I find the
language used here sufficiently clear and unambiguous to accomplish that purpose.
Having found that the parties had bargained in their most recent contracts in an
atmosphere not entirely free from fear of sudden death, and that they included in
their agreement not only the provisions for compensation in the event of that unhappy
conclusion but also the "zipper" clause, I hold that not only was there an implied
but a direct, written, and unconditional waiver of the right to notice of or con-
sultation on any decision to suspend publication.
This relieves the Examiner, of course, from disposing of the more novel problems
presented by the case. There is no need to decide whether the final disposition of
an entire business may be distinguished from the subcontracting or discontinuance
of a portion of a business, in which event there is a survivor against whom an order
may be enforced; 16 whether due notice was in fact given to the labor organiza-
tions involved; 17 whether the Mirror was a single employer together with the
other Hearst papers; 18 and whether the energies of any agency should be expended
toward seeking a final order as impossible to implement as Canute's mandate to
the sea.
16 There was evidence at the hearing that inquiries had been made, from time to time,
by representatives of labor organizations representing the Mirror's employees as to the
possible suspension of the Mirror and that one organization had agreed to a reduction
in force because of the Mirror's financial straits
1s See the Decision of Trial Examiner Joseph Nachman in Royal Plating and Polishing
Co., Inc, 22-CA-1640 (February 3, 1964) [148 NLRB 545], holding that this was a dis-
tinction without a difference.
17 These organizations were notified immediately following the sale of the Mirror's
physical assets to the News. It may be assumed that the decision to cease publication
could not have been made until the sale was consummated. This raises the interesting
question as to the required timing of the notice under the General Counsel's theory of
the case. Any business is presumably for sale at any time if the offer is sufficiently at-
tractive or at any price if the situation is sufficiently dire. Is the union to be notified
as soon as a tentative decision has been reached, as soon as a prospective customer has
been found, as soon as negotiations have been initiated, as soon, as in this case, as agree-
ment has been reached? If the General Counsel is seeking to define the terms under
which a business may cease to operate then those terms should be clear and express,
particularly if the General Counsel seeks to assess them, as he would in this case, with
a potential liability of millions of dollars in backpay.
18 See Miami Newspaper Printing Pressmen Local No 46, etc. (Knight Newspapers,
Inc.), 138 NLRB 1346, in which the Board held that notwithstanding the fact of single
ownership the potentiality of common control and integrated operation is not a sufficient
basis to support a finding of a single employer.
783-133-66-vol. 151-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. The Pressmen , the Stereotypers, the Guild, and the Paper Handlers are labor
organizations within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
General Tube Company and International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case No. 7-CA-4531. March 19,
1965
DECISION AND ORDER
On October 1, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief. The General
Counsel filed a brief in answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in the Respondent's exceptions.
1. We find, in agreement with the Trial Examiner, that the
General Counsel failed to prove by a preponderance of the evidence
that the Respondent on or about December 6, 1963, unilaterally and
without prior notice to the Union "abandoned its practice" of recall-
ing employees on the basis of their seniority so as to delay until
January 8, 1964, the recall of the nine employees named in the com-
plaint. Specifically, the Trial Examiner found that,. contrary to the
allegation in the complaint, the Respondent followed a practice of
recalling employees on the basis of their shi f t seniority, and that in
recalling employees to work after the layoff of December 5, 1963, the
151 NLRB No. 89.