Newspaper Printing Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 811 (N.L.R.B. 1975)

NEWSPAPER PRINTING CORPORATION 811
Newspaper Printing Corporation and Nashville News-
paper Printing Pressmen's Union, Local No. 50.
Case 26-CA-52 10
November 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On April 23, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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 her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Newspaper
Printing Corporation, Nashville, Tennessee, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
1 In the absence of exceptions , we adopt, pro forma, the Administrative
Law Judge's decision to withhold ruling on the complaint 's allegation that
Respondent violated the Act by refusing to arbitrate employee Page's
discharge.
DECISION
STATEMENT OF THE CASE
NANCY SHERMAN, Administrative Law Judge: This
proceeding, heard at Nashville, Tennessee, on January 27
and 28, 1975, pursuant to a charge filed on July 22, 1974, a
first amended charge filed on December 10, 1974, and a
complaint issued on December 10, 1974, presents the
question of whether Respondent Newspaper Printing
Corporation (A) violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, (the Act) by
refusing on and after April 17, 1974, to honor the grievance
and arbitration procedure set forth in a contract, effective
January 1, 1970, between Respondent and Nashville
Newspaper Printing Pressmen's Union, Local No. 50 (the
Union); and by allegedly unilaterally revoking its alleged
delegation to the Union of authority to select and assign
employees' hours of work and job functions; and (B)
violated Section 8(a)(1) and (3) of the Act by discharging
221 NLRB No. 139
Union Day Chapel Chairman Kenneth Henry in connec-
tion with the employee assignment matter.
Upon the entire record;. including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent, the Union, and counsel for the General
Counsel (herein the General Counsel), I make the
following:
FINDINGS OF FACT
I. THE NATURE OF RESPONDENT'S BUSINESS; THE
UNION'S STATUS AS A LABOR ORGANIZATION
Respondent is a Tennessee corporation doing business in
Tennessee with an office and place of business located in
Nashville, Tennessee. It publishes a daily newspaper of
general circulation called "The Tennesseean" which
publishes nationally syndicated features and advertises
nationally sold products. Respondent also prints and
distributes a newspaper called "The Banner." During the
year preceding the issuance of the complaint, Respondent
had a gross volume of business in excess of $200,000 and
received at its Tennessee location, directly from points
outside Tennessee, products valued in excess of $50,000. I
find that, as Respondent concedes, Respondent is engaged
in commerce within the meaning of the Act, and that
exercise of jurisdiction over its operations will effectuate
the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all times here relevant, the Union has been the
statutory representative of Respondent's pressroom em-
ployees and has been recognized as such by Respondent.
The most recent collective-bargaining agreement between
them was effective on January 1, 1970. The unfair labor
practices alleged herein occurred during a period when the
parties were in dispute about whether any portions of the
1970 agreement were still in effect.
The 1970 agreement included the following provisions:
WHEREAS, the parties to this agreement desire to
establish and maintain harmonious relations between
themselves as employer and employee, and to provide
methods for considering and settling whatever disputes
may arise between them; therefore, in consideration of
the mutual promises herein made, it is agreed as
follows:
ARTICLE I
This contract and scale of wages shall, unless
changed by mutual consent, be in effect from January
1, 1970, through December 31, 1972, and thereafter
within the limitations hereafter set forth. If either party
hereto wishes to propose an amendment to this
contract or a new contract to take the place of this one
upon its expiration date it shall notify the other party in
writing of its wishes sixty (60) days prior to January 1,
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, and accompany the notice with statement in
detail of changes desired. The respondent party may
within thirty (30) days formulate and present a counter-
proposal setting forth the conditions it will seek to
establish. If no counter-proposal be filed, the existing
contract shall be considered to be the respondent
party's counter-proposal. If notice is not given by one
of the parties, as above described, it shall be construed
as a renewal of this agreement for one year and the
contract shall thereafter run from year to year until
opened for negotiations by the procedures above
described, it being understood that the renewal shall be
by negotiations in a conciliatory spirit, and if no
agreement is made in that manner, then by arbitration.
In either event there shall be a continuous operation of
the presses and a continuous and uninterrupted
friendly relationship between the parties to this
agreement, and all matters of dispute not specifically
set forth herein shall be settled in accordance with the
arbitration provisions hereinafter set forth.
ARTICLE II SETTLEMENT OF DISPUTES
Section 1. The parties to this agreement agree that all
disputes affecting wages, hours, working conditions,
and shop practices that may arise between them will be
settled by conciliation and in the event conciliation
fails, then by arbitration as provided for below.
Section 2. In the event of a difference arising
between the Publishers and the Union, parties to this
agreement, all work shall continue without interruption
pending proceedings looking to conciliation or arbitra-
tion, and the scale and hours provided herein as well as
the working conditions prevailing at the time the
difference arose, shall be preserved unchanged until a
final decision of the matter at issue shall have been
reached.
Section 3. A Standing Committee of two representa-
tives selected by the Publishers, and two representatives
selected by the Union, shall be appointed, and in case
of 'a vacancy, absence or refusal of either of such
representatives to act, another shall be appointed in his
place. To this committee shall be referred all disputes
which may arise as to scale of wages hereto attached, to
construction to be placed upon any clause of the
agreement, or alleged violations thereof, which cannot
be settled otherwise; and such joint committee shall
meet when any question or difference shall have been
referred to it for decision by the executive officers of
the parties to this agreement. Should the Joint
Committee be unable to agree, then it shall refer the
matter to a Board of Arbitration, the representatives of
each party to this agreement select two arbiters, and the
four to agree upon a fifth.
Section 4. The procedures and decisions of the
Arbitration Board shall be in conformity with rules and
regulations stipulated in the Agreement between the
ANPA and the I.P.P & A.U. of N.A., which has been
executed by the parties hereto.
I A January 1974 letter to the Union from Respondent alleges that a
letter from Respondent dated November 30, 1972, "confirmed the
expiration with the following statement* `sets forth the conditions we will
By letter dated November 1, 1972, the Union advised
Respondent:
This is to notify you that we are opening our
contract which expires December 31 of this year.
Our committee has been selected to meet with your
committee . We hope that we can have a meeting soon.
I am enclosing a list of the changes we wish to make
in our contract.
Respondent also gave the Union a notice, which is not in
the record.' By letter dated December 1, 1972, to the
Federal Mediation and Conciliation Service, enclosing a
copy of the Union's proposal, the Union stated, inter alia,
"Our present contract expires December 31, 1972."
The parties held negotiating sessions on various dates
between early 1973 and April 5, 1974, but were unable to
reach an agreement on some of the disputed provisions.
The Union broke up the April 5 negotiating session, which
as of the January 1975 hearing was the last such session, in
the middle of the day. By letter to Respondent dated
August 2, 1973, the Union stated, "In accordance, with
Article I of the Agreement between the parties, and the
Code of Procedure of the International Arbitration
Agreement, [the Union] hereby requests arbitration of the
`propositions originally submitted by the parties to each
other upon which agreement has not been reached.' " This
letter is referred to herein and in the record as a request for
"interest arbitration."
By letter dated August 8, 1973, and signed by Assistant
Finance Officer Ralph L. Saunders, Respondent stated,
inter alia:
... The Company is willing to conciliate the new
contract terms and has made this known in the
negotiation sessions and confirmed this position in a
recent letter. The agreements between the parties make
it clear that conciliation must precede arbitration. Now
we are in receipt of your letter demanding arbitration
when we have not yet entered into conciliation.
My reading of our agreements make [sic ] it clear that
local arbitration begins only after all other attempts at
negotiation and conciliation fail. We do not agree that
the differences have reached the point where they are
ready for consideration by a local board of arbitration.
We are perfectly agreeable to conciliation of new
contract terms and conditions and in the event
conciliation fails, we will follow the arbitration proce-
dure.
By letter to the Union dated September 10, 1973,
Saunders alleged that the Union's chairman had "refused
to let a straight time employee cover a shift . . . and
insisted that the shift be covered by an overtime employee
I believe that you will agree that our contract has
again been violated in this instance [see infra, sec. 11,C,3].
Because of this incident, we are today insisting that our
foreman exercise the rights guaranteed under Article VIII,
Section 3 of our agreement [see infra, sec. 11,C,31 and not
seek to establish at the expiration of our current collective bargaining
agreement.' "
NEWSPAPER PRINTING CORPORATION 813
hire overtime shifts if straight time shifts are available."
This grievance regarding the overtime matter was dis-
cussed by the parties during a September 1973 meeting of
the joint standing committee. Respondent asked for
reimbursement for the difference between the overtime rate
it had allegedly been forced to pay and the straight-time
rate at which employee Pole (a pensioner) and perhaps
other employees had allegedly been available. In addition,
Respondent asked the Union to discontinue its alleged
practice of "forcing regular employees to work overtime
when we had straight time men available." Union
President Delbert A. Tichenor, a member of the point
standing committee, told Respondent that he would "have
to go back to the Body for determination on whether they
would do it or not," and the Union never told Respondent
anything more about the matter. Respondent did not
invoke the contract arbitration procedure, whose availabil-
ity does not turn on agreement of the other party;
Saunders explained that such action "wouldn't do anything
to better our relationship with the Umon with a relatively
minor amount of money involved, forty or fifty dollars,"2
and that the Union "started marking up Mr. Pole up at
straight time rates before they marked the regulars up at
overtime rates [see infra, sec. II ,C,I], so they did take
corrective action." 3
Shortly thereafter, in September or October 1973,
employee Billy Phelps was hired by Respondent's foreman.
The Union initially told Respondent that it would not
mark Phelps up as ajourneyman4 because he did not have
a union card, saying that he had completed an approved
union apprenticeship program. After Saunders discussed
the matter with Tichenor, Respondent instructed the
Union to mark Phelps up as a journeyman, and it did so.
However, the Union induced Phelps to leave town before
his first work shift came up.
By letter to Tichenor dated September 18, 1973,
Saunders requested "a meeting of the Joint Standing
Committee" to consider two alleged union actions in
connection with the markup (infra, sec. 11,C, I) "which we
believe [are] a clear violation of the contract," and
requested "reimbursement for the additional expense of
overtime premium pay which resulted from these contract
violations ." Further, the letter alleged that Respondent was
"operating about 20 journeymen short of covering the
obligation set forth in the current manning table," and
"again" requested the Union to "provide the additional
journeymen that you have contracted to provide." The
letter also requested a discussion "with your committee" of
several other, unspecified items . In his reply, dated
September 21, 1973, Tichenor suggested particular dates
for "meetings with the Joint Standing Committee."
Thereafter, Saunders wrote a letter dated September 24,
1973, stating, inter alia:
2 Respondent did file an unfair labor practice charge about the matter,
which was administratively dismissed-
3 Saunders testified at the hearing that Respondent had "reserved" the
right to arbitrate this issue should the courts decide that the contract was in
effect. The earliest subsequent occasion on which Respondent asserted that
the contract was no longer in effect was January 21, 1974, 3 or 4 months
after thejoint standing committee meeting on the Pole grievance.
4 That is, give' him a work schedule and assignments appropriate to
journeymen . See infra, sec. II,C,1.
5 Lanz himself filed an unfair labor practice charge, based on his
... We very simply asked for a joint standing
committee meeting which is our right under Article II
of the contract. We have had several such meetings
with your union in the past two years ... .
... last week . . . I suggested to [Union attorney]
Adair that we would be having a joint standing
committee meeting soon and we would, at the same
time, try to work out a time for conciliation that was
convenient for all parties .. .
We feel, as I'm sure your attorney does, that there is
a significant difference between a dispute under a
current contract and the arbitration or conciliation of
terms and conditions of a new contract . . . I will
summarize our requests:
(1) Anoint standing committee meeting as soon as
possible to resolve the company's grievance.
The requested meeting of the joint standing committee was
in fact held.
By letter dated November 22, 1973, the Union asked
Saunders for a meeting of the joint standing committee to
discuss the discharge of employee Teddy Lanz. In
consequence of this letter, the point standing committee,
whose then employer representatives were Saunders and
Herman Green, met and attempted to resolve the discharge
grievance. It appears that this discussion did not result in
any action favorable to Lanz. The Union made no attempt
to invoke the arbitration procedure.5 '
By letter to Saunders dated November 13, 1973, the
Union alleged that Respondent had "violated Article IV,
Section 66 and other contract conditions by directing the
[Union] Chairman to mark up as journeymen seven new
employees who have not met the apprenticeship require-
ments of the Agreement and who have not been advanced
to journeymen status by the Union." (The chairman had
complied with these instructions .) In response , by letter
dated November 21, 1973, Saunders stated, inter alias
... We do not know what the other contract
conditions are, but our reading of Article IV, Section 6,
restricts it to the apprenticeship program. As you know,
we have never applied the apprenticeship section to
journeymen seeking work. The application of Article
IV, Section 6, has been to training persons to become
journeymen.
The seven employees who you refer to are journey-
men, all had work experience as journeymen , all were
trained as journeymen , and are being paid at journey-
men rates . We fail to see how the apprenticeship clause
applies to them in any way. Admittedly, it is regrettable
that you chose not to furnish the additional pressmen
required by the Publishers and chose to ignore the
contractual obligation under Article VI, Section 2 [see
grievance, which was administratively dismissed.
6 "... the training of apprentices shall be under thejoint supervision of
the signatories of this contract Upon registration of apprentices, the
Publishers shall be so notified . . The Union shall notify the Publishers
by letter of the advancement of each apprentice and fly-man to a higher
classification." A fly-man's wage ranges from 52 to 64 , percent of a
journeyman's wage, depending on the fly-man's length of service An
apprentice's wage begins at 65 percent of ajourneyman 's wage, and uses to
95 percent for the fourth year.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
infra Part 1IC3 ]. We again request that you furnish the
additional pressmen that you have contracted to
furnish. Until such time as we have obtained an
adequate supply of journeymen, we plan to continue to
use all available means to eliminate the shortage.
The only difference we see in the seven new
employees is that they were not hired through the
Union. We have not inquired as to their union
affiliation or lack of affiliation. As a matter of fact, we
are indifferent as to their affiliation. Of course, the right
to-work law in our state does not allow Union Shops to
exist and it is increasingly obvious that you are
attempting to operate one despite this.
By letter to Saunders dated December 21, 1973, the
Union stated, inter alia, "In accordance with Article II,
Section 3, of the Agreement, the Union hereby refers the
dispute [described in the foregoing paragraph] to a Board
of Arbitration." 7 By letter to Saunders dated January 4,
1974, the Union requested "interest arbitration" of the
"unresolved questions concerning the terms of a new
collective bargaining contract." By letter to the Union
dated January 21, 1974, Saunders refused these December
21 and January 4 requests, stating, inter alia:
Both parties have been in total agreement that the
contract expired December 31, 1972, and with its
expiration any and all obligations either party had
under the contract were terminated. Since that time
there have been no discussions or understandings that
relate to our extending the contract which expired
December 31, 1972, and the parties have been
operating without a contract since that date. The
Company feels no obligation to arbitrate grievances or
the terms and conditions of a new contract since its
contractual obligations and those of the Local were
terminated December 31, 1972.
Saunders testified at the hearing that before writing this
letter, Respondent had never questioned the existence of
the contract, At some time between the filing of the instant
charge in July 1974 and the issuance of the instant
complaint in December 1974 (probably during the early
part of this period), Union President Tichenor gave a
sworn statement to a Board field examiner that "The last
contract between the Company and [the Union] expired on
December 31, 1972."
After receiving the January 1974 letter quoted above, the
Union initiated a suit in the United States District Court
for the Middle District of Tennessee, Nashville Division,
under Section 301 of the Labor-Management Relations
Act of 1947 (29 U.S.C. Sec. 141, et seq.) to, compel
arbitration of the article IV, section 6, grievance set forth in
its letter of November 13, 1973 (relating to Respondent's
requirement that the Union mark up allegedly unqualified
journeymen), and of future contract terms. On July 10,
1974, the district court held that "the Company clearly
agreed to arbitrate future terms," and that this agreement
was judicially enforceable. The court ordered "the arbitra-
tion of all matters in dispute which were covered by the
7 The letter stated that the matter had been discussed at anoint standing
comnuttee meeting on November 30, 1973. There is no other evidence about
proposals and counter-proposals of the parties in their
letters of November 1, 1972, and November 30, 1'972."8 In
addition, the court referred "the question of the continuing
effect of the contract and the Article IV, Section 6,
grievance to ^ arbitration. If the contract had continuing
validity then all disputes including the Article IV, Section
6, dispute, will be subject to arbitration." Nashville
Newspaper Printing Pressmen's Union, Local 50 v. Newspa-
per Printing Corporation, 88 LRRM 2219. At the time of the
January 1975 hearing herein, appeals from the district
court's decision were pending before the United States
Court of Appeals for the Sixth Circuit.
B. The Page Grievance
On or about April 3, 1974, Respondent allegedly
discharged Raymond Page. By letter dated April 15, 1974,
the Union protested that he was "fired without just cause,"
and requested a joint committee meeting. By letter dated
April 17, 1974, Saunders referred to Respondent's January
21, 1974, letter rejecting the Union's requests for "interest"
arbitration and arbitration of the Article IV, Section 6
grievance, and stated:
the company, after extensive research sincere-
ly believes that the contract expired December 31,
1972, and therefore we have no obligation to observe
the grievance procedures under the expired contract.
Consequently, we will not honor your request for a
joint standing committee meeting.
We do, however, recognize that you have been
elected spokesman for a group of our employees. We
are always available to meet and try to resolve
differences for our mutual advantage. I understand that
you have already had discussions with [pressroom
superintendent] Maddin and [production manager]
Harwell relating to Raymond's discharge. Please let us
know who else you would, like to discuss this matter
with and we will schedule a meeting with,them as soon
as it is practical.
This letter constituted Respondent's first assertion that it
had no obligation to meet in the joint standing committee
procedure for the stated reason that the contract had
expired.
By letter dated April 25, 1974, the Union responded,
inter alia, "The Union does not agree. with your statement
that our contract expired December 31, 1972, or that' you
have no further obligation to observe the established
grievance procedures . . . . Without in any manner
waiving the Union's claim that the Agreement and the
grievance procedure are still effective and binding, your
consent to meet and discuss the Page discharge is
accepted."
Page's grievance was, discussed at a May 1974 meeting
where the Union was represented by Bob Breedlove and
Union President Tichenor, and Respondent by Saunders
this meeting
8 The November 30 letter is not in the instant record. See supra, fn. 1.
NEWSPAPER PRINTING CORPORATION 815
and Harwell. All of these individuals were in fact members
of the joint standing committees Page was not present, and
the union representatives were unable to 'locate him.
Tichenor indicated that he did not think a decision should
be made in Page's absence. The matter was not resolved.
Minutes are taken at joint standing committee meetings.
There is no evidence that any minutes were taken of the
conference on the Page grievance.
By letter to Saunders dated May 22, 1974, the Union
requested arbitration of the Page dispute. The letter stated,
"We are aware of your position that you are not obligated
to observe the grievance and arbitration terms of the
contract. Should the United States District Court rule
otherwise, you are on notice that we will expect arbitration
of the Page case." By letter to the Union from Saunders
dated May 28,, 1974, Respondent asserted, inter alia, "As
you know, the Company does not consider Mr. Page's
termination a discharge," 10 and offered to "consider his re-
employment."
All counsel conceded that in 1970 and 1971 the parties
had in fact processed grievances in accordance with the
contractual grievance procedure, and„that neither of the
parties had made any proposal during negotiations to
change the language of the grievance-arbitration clause
(art. II). In a letter to Union President Tichenor dated
September 24, 1973, Saunders stated, inter alia, that "in the
past two years" Respondent had had "several" joint
standing committee meetings with the Union under article
II of the contract. Saunders testified that in 1973 "we were
still going through the Joint Standing Committee arrange-
ment." Tichenor credibly testified that after he became
union president in April 1973 grievances were processed by
the joint standing committee in the manner set forth in the
1970. contract, that prior to 1974 the, joint standing
committee had held meetings pursuant to requests from
Respondent as well as from the Union, and that prior to
the April 17, 1974, letter Respondent had never told him,
that it,felt it had no obligation to meet in the joint standing
committee procedure because of the,expiration of the
contract. When union counsel asked Saunders, "Was it
your concern that if you met in a Joint Standing
Committee procedure that you would be compelled to
arbitrate the grievance if you couldn't reach it amicably by
resolution," Saunders replied, "Well, there was a number
of things that troubled me about this one in particular.
How we could have a grievance on an employee who
voluntarily quit (supra, fn. 101 kind of bothered me a little
bit too ... I don't think-we would have to arbitrate it as
such ." Respondent's counsel stipulated at the January 1975
hearing that Respondent would refuse to meet under the
joint standing committee procedure set out in the contract.
9 The committee normally consists of two representatives from each side,
but occasionally one side is represented by three. The parties sometimes
make changes or substitutions in the identity of their respective representa-
tives, and, neither party has ever objected to any such changes . Saunders
testified that Respondent had "four different management members who
serve in the two slots We go as were available." The Union's representa-
tives on the committee are elected by the membership.
10 Saunders' April 17, 1974, letter, stating that Respondent would not
honor the Union's request for a joint committee meeting, had referred to
"Raymond 's discharge." Respondent's brief repeatedly refers to Page's
C. The Alleged Unilateral Change in the Work
Assignment System and the Discharge of Day Chapel
Chairman Kenneth Henry
1. The practice followed before June 1974
Respondent's day operations and night operations are
supervised by different foremen, referred to in the record
as the dayside and the nightside foreman respectively.
Union members working for Respondent are members of
the dayside or the nightside chapel, depending on whether
their "priority" is attached to the dayside or to the
nightside.ii The dayside chapel members elect a chairman
from among themselves, and the nightside chapel members
elect a chairman from among themselves.
Between at least 1959 and June 28, 1974, work at
Respondent's plant was assigned in the following man-
ner:12 every Friday, the dayside foreman would provide
the Union's dayside chapel chairman with a list of the
number and kinds of machines Respondent expected to
operate on each day of the following week. The dayside
chairman would then take a copy of a form, whose
reproduction was arranged for by the Union, and whose
lefthand column lists the dayside employees in the order of
their priority (determined basically by the order in which
they had been attached to the dayside). The form lists
journeymen, apprentices, and., fly-men separately, and
contains blank spaces to permit-insertion of the names of
employees newly added to the dayside. This form, referred
to in the record as the weekly markup form, contains a
column for each day of the week. The chapel chairman
would then determine which employees were to work
which days, and put checkmarks in the appropriate boxes
after each employee's name. The chairman took into
account the contractual "manning table" requirements as
to the size and constitution of the crew for each type of
machine, the employees' classifications, (journeyman,
apprentice, or flyman), the foreman's desires, the employ-
ees' relative ,priority, and each employee's personal desires
about his days off. It is undisputed that until the early
spring of 1974 the dayside chairman selected the journey-
men to be assigned to maintenance work, which requires
particularly skilled workers who report to work 2 hours
later than the other dayside employees; 13 for the reasons
set forth infra section II,C;2,b, I find that this practice
continued after early spring 1974 and thereafter until June
28, 1974. Filling out the weekly markup form took the
chairman about an hour and a half during the Friday or
Saturday workday (for which period he was, inferentially,
paid by Respondent) and a half hour to an hour of his own
time . When filling out the weekly markup form, the chapel
chairman used a tiny makeshift office on Respondent's
"discharge" or "firing."
11 Dayside straight-time and overtime work opportunities and certain
nightside overtime work opportunities are made available to dayside
employees in order of their priority. The converse is true of nightside
employees. Other incidents of priority are discussed infra.
12 This description is put in terms of the dayside, where the , alleged
unfair labor practices occurred The nightside practice was much the same.
See, however, infra, in. 13.
13 Maintenance work was not performed on the nightside.
816 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
premises, which office was- otherwise used, mostly by
employees who wanted to use the telephone.. 4 .
On Saturday, after -,completing the weekly markup list,
the chapel chairman would write out a list of the names of
the dayside employees who were to work dayside on the
following Monday and attach this so-called "daily mark-
up" to a clipboard hung on the wall in a particular
location. Each day thereafter, the chapel chairman would
prepare and post the dayside daily markup for dayside
employees. Because, production plans ,frequently changed
after the weekly markup was prepared, the daily'markup
frequently called for -individual work schedules different
from those anticipated in the weekly markup. The chapel
chairman was in charge of telling employees who were not
working on a particular day whether they-were to, work the
next day, and.of arranging substitutions for employees who
were scheduled to work on a' particular day but called in
sick. In addition, when dayside manning requirements
could not be filled at straight-time rates by employees with
dayside priority,' the dayside chapel chairman was in
charge of making other arrangements to fill these require-
ments.14 -If a union 'member failed to report to- work
without giving advance notice to the -chapel chairman, or
came to work drunk, 'he would write up charges on the`
member and present them to the, Union's executive board
before the, next union 'meeting. - When the employees
reported to work, the "`man in charge" told each employee
which machine he was assigned to.
At the January 1975 hearing, Dayside Foreman Thomas
C. Whitman, credibly testified that for at least the 24'yedr"s
prior to June 1974 the chapel=chairman-had prepared the
weekly ' and daily markup sheets. Press Superintendent
William F. Maddin credibly corroborated his testimony in
this respect for the period he was in the pressroom (since
1948, with two short breaks in service); Union President
Tichenor' - credibly corroborated such, testimony for the
period since about 1961,' when he entered Respondent's
employ. Employee Kenneth Henry credibly testified that
between the time he became dayside chapel, chairman in
early March 1974 and' June 28,' 1974, Foreman Whitman
never prepared the markup. -
1 Pre-June 1974, complaints by Respondent
relating to the markup
a., The Gregg Cunningham incident,, before Henry
became chapel chairman
About early March 1974, Maddin reported to Saunders
that the preceding week dayside employee Gregg Cunning-
ham had had to work 'four consecutive shifts without a
14 Where nightside employees were available at straight-time rates, such
dayside work was assigned to those with the lowest priority. Merwise, the
work was offered at overtime rates to dayside employees with the highest
pnonty. Both chapel chairmen participated in arranging for nightside
employees to perform dayside work. ,
15 When asked in January 1975 whether Gregg Cunningham was a union
member, Henry replied, "No sir I don't know whether he is now or not "
The 'Union's July 8, 1974, minutes refer to "Cunningham a nonunion
employee," but without specifying whether Gregg Cunningham or dayside
employee James Cunningham was referred to. There is no other evidence
about this matter
16 These findings are based on Tichenor's credible testimony. Saunders
testified that "We, had indicated . , a number of times that it was going to
break in- order to get a 5-day week.15 This alleged schedule
was marked up by Henry's predecessor as chapel chair-
man. Saunders, thereupon wrote Tichenor the following
letter, dated March 11, 1974:
During the preceding financial week, it came to our'
attention that the Union is discriminating against some
of the employees in' the Press Room' in the assignment
of work days and overtime shifts. This matter has been
'discussed in considerable detail by you, the Chapel
Chairman and our Superintendent, 'Bill Maddin.
Hopefully, we will not have a recurrence of this unfair
practice.
I'm sure that you are aware that'the'assignment of
work is a normal 'management prerogative and is ' a
management function that has been delegated- to"the
Union for the convenience of the employees. When'the
delegation of this function ceases to 'be for the
convenience of the employees, and indeed becomes a
tool to inconvenience and cause hardship. to a ,select
group, of employees, the Company has no choice except
to exercise its rights to assign the work in a fair and
equitable-manner.
We hope that you can, convince your Chairman that
the employees who were discriminated against should
be made whole, as nearly as possible and that
safeguards should be established to prevent these unfair
labor practices in the future. In the event you can or
will not assign the work in the manner satisfactory to
the, company we will have no choice €xcept to exercise
our right to assign the work, ,
This was the first indication to the Union from
Respondent that it might take over the markup. Further, at
no time between April 1973 (when Union President
Tichenor began to attend bargaining sessions)rand'the last
such session in April 1974 did Respondent present any,
proposals or make any attempt to change the markup
procedure.16 Moreover, although the parties 'met {during
contract negotiations on April , 4 and 5, 1974, at no time
between the March 11, 1974, letter and Henry's-June 29,
1974, discharge did Respondent advise the Union that
Respondent intended to take over the markup procedure,
nor did the Union request any negotiations on the subject
of the markup,
b. The assignment of. employees to maintenance
work
In the early spring of 1974, then Chapel Chairman Ray
Milan , Henry's predecessor in that, capacity,,,prepared a
be necessary for the company to take over the markup` so that our-
employees ' wouldn't be discriminated-against m'the work assignments," and
that "innumerable times " before June 28, 1974 , Respondent notified the
Union and offered to - bargain about changing the markup procedure
However„the only specific incident he gave was the September 1973 Pole
incident. Read as a whole, Respondent's September 1973 letter regarding
the Pole incident contemplates continuation of the chairman's preparation
of the markup ("We would appreciate it if you would discuss this matter
with your chairman so that further mcidents ,of forced'overtime will be
avoided"), and there is no specific evidence about threats 'to take over the
markup during the oral discussions about the Pole grievance. Saunders'
remaining testimony summarized in this footnote is discredited because of
its lack of specificity and because of demeanor considerations
NEWSPAPER PRINTING CORPORATION 817
daily markup naming as a Friday maintenance crew two
employees who, in Foreman Whitman's opinion, were
incapable of performing this work without supervision.
Because Whitman had forgotten to check that Friday's
markup, which was posted on Thursday, and because the
maintenance crew reports to work 2 hours later than the
remaining dayside employees, Milan's maintenance crew
markup compelled Whitman to work late that day, until
the maintenance crew got through. Whitman testified that
thereafter he made a point of checking the markup daily.
Henry testified that when he became chapel chairman in
early March 1974, Whitman wanted "two of the union
pressmen to be marked up that could do the work," and
asked him to work particular employees on particular
dates. According to Henry, " Sometimes it worked out, and
sometimes it didn't." Still according to Henry, he made a
practice of telling Whitman whom Henry intended to mark
up for maintenance, they usually discussed the matter, and
sometimes the markup was changed in consequence.
Henry testified that on one occasion Whitman asked him
whether he could change those marked up for mainte-
nance , Henry replied that he had assigned junior men to
work on maintenance that day because the senior men
wanted to work on the press that day, and the markup was
not changed.
Whitman substantially corroborated Henry as to the
weight Henry afforded Whitman's desires about whom to
mark up for maintenance. Thus, Whitman testified that if
he was unhappy with both employees whom Henry had
marked up for maintenance, Henry would change one ("we
were always able to work it out satisfactorily"), and that if
Whitman requested two individuals on maintenance and
neither liked the schedule, Henry would try to get
Whitman to accept somebody else, "But 1 don't think we
had a big squabble over it." 17
c. The posting of the weekly markup
Sometime prior to mid-June 1974, some of the nightside
employees complained to Press Superintendent Maddin
that they were being required to work on days they wanted
to be off, and that their work schedules were unpredictable.
At that time, the chapel chairman was making only one
copy of the weekly markup, which he retained for his own
assistance in preparing the daily markup. In response to
these complaints , Maddin requested Assistant Nightside
Chapel Chairman Gordon Smith, who complied with this
request, to give more consideration than previously to the
employees' desires regarding their days off and overtime
assignments , and told the first 8 or 10 employees on the
dayside priority list that they would have a certain day off.
Henry credibly testified that Maddin's assurances did not
effect any changes in Henry's handling of the markup-
more specifically, that at all times , he continued to give the
employees their requested days off unless such a schedule
would require the assignment of dayside work to nightside
employees, and continued to assign overtime work to only
the employees who wanted it. In addition, Maddin asked
Henry and Smith to give a copy of the weekly markup to
the foreman for posting, in order to enable the employees
to find out their schedules in advance. Henry and Smith
said that this would be of little use in allaying the
employees' complaints because of the many changes
required after the weekly markup was originally drawn up,
but acceded to Respondent's request. Thereafter, each
foreman posted the weekly markup on his office door,
where employees could see it . Press Superintendent
Maddin testified, "So far, [this system has) been successful
and still working that way."
3. Allegedly relevant provisions of the 1970
bargaining agreement
Article VI, section 2, of the 1970 agreement provides,
inter alia:
If the Publishers call on the Union to supply additional
pressmen on any shift, the Union agrees to furnish
them. If such a situation holder is thus caused to work
six or more shifts in his financial work-week, then he
shall be paid time and one-half for each shift he works
in excess of five during any work-week. It is further
agreed that the Publisher shall give the Chapel
Chairman a list of the men needed during the coming
week.
Article VIII, section 3, provides:
The Foreman of the pressroom shall be a practical
newspaper pressman . He shall be the judge of compe-
tency and shall hire, discharge, supervise and govern all
employees, give out all the situations, and assign all
men to their positions in the pressroom of which he is
foreman, in accordance with the terms of this agree-
ment . In the event of a disagreement in regard to the
foreman's orders, which cannot be adjusted amicably
by the Publisher and employee or employees con-
cerned, said disagreement shall be submitted through
regular channels to a standing committee provided
elsewhere in this agreement.
There is no evidence about the contents of the parties'
bargaining agreements prior to 1970. The parties' contract
proposals in 1973 and thereafter did not seek any changes
in the language of article VI, section 2, or article VIII,
section 3, relevant to the issues here (see infra, fn. 50).18
17 Union President Tichenor, an employee on, the nightside where no
maintenance work is performed , testified that after a disagreement (the date
of which he did not recall) between the foreman and the chapel chairman
about which individuals were to work maintenance , the practice was
followed of having the foreman select two employees to work maintenance
from among the employees marked up by the chairman for that day.
However, in view of Henry's and Whitman's testimony to the contrary, and
in view of Whitman 's testimony that his dissatisfaction on one occasion with
Milan's selection of maintenance men led him to check the markup list
every day thereafter, I conclude that this testimony by Tichenor was
mistaken.
Is By letter dated November 1, 1972, the Union proposed that art. VIII,
sec 3 , be changed so as, inter alia, (1) to call for the man-in-charge , rather
than the foreman, to assign all press situations , the man-tn-charge had in
fact been doing this, and (2 ) to substitute for the last sentence in that section
the following language . "In the event of a disagreement the Foreman, the
Chapel, Chairman, and the person involved shall go to the pressroom office
and resolve the matter. The Foreman's decision may be challenged by the
Union and referred to the Joint Standing Committee."
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The dispute regarding the relative priority of
union member Brown and nonmember Whittle
Between May 29 and June 3, both union member Brown
and nonmember Whittle transferred from the nightside to
the dayside priority- list. It is conceded that Brown actually
worked on the dayside as an employee on the dayside
priority list before Whittle actually worked on the dayside
as an employee on the dayside priority list.19 The Union
contended at the hearing and in its brief that this
circumstance gave Brown priority over Whittle. Dayside
Foreman Whitman and Pressroom Superintendent Mad-
din, both of whom were called by Respondent, both
testified that Maddin approved Whittle's transfer to the
dayside before approving Brown's transfer, although
Whitman and Maddin gave somewhat inconsistent testi-
mony about the relevant conversations.20 Respondent
contended at the hearing and in its brief that this alleged
order of approval gave Whittle dayside priority over
Brown.21
Brown worked his first dayside shift as an employee with
dayside priority on Wednesday, May 29, in the middle of a
week encompassed by a single weekly -markup slip and
with Henry's acquiescence. About May 30, Foreman
Whitman noticed that Brown was working while dayside
people were off. (see supra, fn. 11), and asked Henry why.
Henry replied that Brown had come to the dayside.
Whitman said that Whittle was coming to the dayside; that
Whitman had told Whittle to wait until the following
Monday, June 3, to keep from "messing up" Henry's
markup slip; 22 and that Whittle would have dayside
priority over Brown.23 This was the first time Henry
learned that Whittle was coming to the dayside.
19 During the week Brown actually started to work under dayside
priority, Whittle's daytime work was performed under nightside priority (see
supra, fn. 14).
20 Maddin testified that he approved Whittle's transfer in a telephone
conversation with Whitman on May 24 . Whitman testified that ` Maddin
approved 'Whittle 's transfer in a face-to -face conversation with Whitman on
May 22 or 23
21 Respondent contended, in substance , that Whittle had, dayside
priority over Brown either because Whittle 's oral notification to Whitman of
an intent to move to dayside allegedly preceded Brown's similar oral notice
to Whitman, because Whitman's oral approval of Whittle 's request allegedly
preceded Whitman's oral approval of Brown's request, or because Maddin's
oral approval , of Whittle 's request allegedly preceded Maddin's oral
approval of Brown's request . Respondent relied on the provisions in the
1970 contract (which Respondent was then contending had already expired)
affording the foreman the right to hire (supra sec . II,C,3), on the fact that
nightside priority does not affect an employee 's priority after he transfers to
the dayside, on one or two alleged instances where an applicant who was
promised a dayside job with Respondent while working for another
employer was given higher priority than a nightside employee who
subsequently asked to be transferred to the dayside and began to work on
the dayside before the applicant started to work for Respondent , and on an
alleged incident where pending transfer requests were honored in the order
made The Union relied on an alleged incident where Press Superintendent
Maddin had advised two nightside employees to move at once to the
dayside in order to obtain dayside priority over an applicant who had
already been promised a dayside job but had not yet started to work, and
further contended that if both employees were already on Respondent's
payroll , the order of their requests or of such requests ' approval could not
affect their priority because such employees allegedly could move from the
nightside to the dayside (concomitantly losing their rughtside priority and
going to the bottom of the dayside priority list) at will and without obtaining
approval from a representative of Respondent or anyone else. The Union
Whitman was on vacation between June 2 and June 16.
During this period, Henry prepared the weekly and daily
markup lists on the assumption that Brown had dayside
priority over Whittle. Brown's name was, in consequence,
physically listed over Whittle's -name, but there is no
evidence that their priority inter se had any actual effect on
when or how many hours they worked. At a regular union
meeting held on June 10, Henry'told the membership that
Whitman had told him Whittle had dayside priority over
Brown and that Henry disagreed. The membership
instructed Henry to continue marking up Brown over
Whittle.24
On June 17, following Whitman's return from vacation,
Maddin advised him that Henry had been working Brown
before Whittle and that Whitman ' needed to see about
getting that straightened out. That same day, Whitman
asked Henry, in Maddin's presence , whether he could work
the problem out without a "big hassle ." Henry replied that
he thought so. Thereafter, Brown told Henry and Whitman
that neither Brown nor Whittle cared which of them had
priority.25 Whitman thereupon remarked to Henry, "See,
there, [Brown] doesn't care so why-not go ahead and do
this?" 26
On Friday, June 21, Whitman, as was the Friday custom,
gave Henry the equipment schedule for the following week.
Whitman also asked Henry to give 4 positive answer about'
whether he was going to start marking up Whittle over
Brown . Whitman stated that Whittle should be'marked up
ahead of Brown because Whitman had the ' contractual
power to hire, Whittle had contacted Whitman before
Brown did, and the fact that Whittle had not been actually
working first was due to scheduling considerations. Henry
replied that he was not going to change.27
apparently takes the position that the only deterrent on such transfers is the
adverse effect thereof on the transfemng employees' work opportunities (see
supra, fns 11, 14) The merits of this dispute are not before me . Whitman
testified that the problem would never apse again because any nightside
employee who thereafter wanted to move to dayside would be told by
Whitman to get over to the dayside at once
22 Henry credibly testified that the markup slip is "actually messed up all
the week , anyway. It doesn't really never get straightened out until the last
day of the week." His testimony in this, respect was corroborated by
Foreman Whitman.
23 Whitman testified , and Henry in effect denied , that Henry replied,
"That's what you all say." On the basis of the witnesses' demeanor, I credit
Henry.
24 This finding is based on the credited testimony of Tichenor and
Henry, and on the notation in the minutes of that meeting : "Chapel
Reports: The Banner reported having trouble getting flymen , apprentices
and non-union men to show up for work when marked up,, Also a
disagreement on seniority between Ralph Brown and Whittle " I do not
regard the minutes, which fail to reflect any motion as to the Brown-Whittle
matter, as impeaching Tichenor's testimony that -such instructions were
given Before inspecting the minutes, he testified that although he believed
such instructions were in the form of a motion, he was "not sure "
25 I infer from the probabilities of the situation that Brown so advised
them after the "big hassle" conversation and before June 21
26 When asked at the hearing why Henry thereafter regarded the issue as
important, he credibly testified that he was motivated by the possibility that
the next time a like question arose the result - "could really matter something
to somebody."
27 My findings as to the June 21 conversation are based on Whitman's
testimony , which I credit in view of the, uncontradicted testimony,
summarized infra about his preparation of the markup later that week.
Henry could not recall whether he talked with , Whitman about the matter
on June 21
NEWSPAPER PRINTING CORPORATION 819
On June 26, Whitman asked Henry what he was going to
do about Brown and Whittle. Henry replied that he "was
going to leave it like it was, with Brown ahead of him; that
[Henry] had brought it up before the Union meeting on
June 10 and they had told [him he] was working it right
and to leave it like it was." Whitman replied that "he
wasn't going to get mad or have no hard feelings over it but
he was going to do something about it." On June 27,
Whitman again asked Henry what he was going to do
about the matter. Henry again replied that he was going to
"leave it like itwas." Whitman told him to "sleep on it and
tell [Whitman] the next morning." The following day, June
28, Whitman asked him whether he still was not going to
change it. Henry replied, "Yes, sir." 28
On June 27 or 28, , Whitman drew up a weekly markup
list which purported to list the dayside employees in the
order of their dayside priority, and which listed Whittle
ahead of Brown. On June 27 or 28, Whitman posted this
list on the office door, where he had previously been
posting the chapel chairman's weekly markup list. On
Friday, June 28, Whitman gave Henry a copy of this
markup list and said that "we were going by this markup
this week." 29 Henry asked Whitman for a weekly equip-
ment list, which the foreman had previously given the
chapel chairman every Friday to enable him to prepare the
weekly markup list. Whitman complied.
On Saturday, June 29, Whitman prepared a daily
markup slip for the coming Monday, and posted it on the
clipboard where the chapel chairman customarily posted
his daily markup list. Whitman's slip called for both Brown
and Whittle to work that day, and fisted Whittle's name
before Brown's. In the meanwhile, on June 28 and 29,
Henry too prepared a weekly markup slip which listed
Brown's name before Whittle's, and a daily markup slip for
the following Monday, listing their names on separate
pages. When Henry went over to the clipboard to post his
daily markup slip, he found Whitman's slip already posted
there. Henry took down Whitman's slip, put it on
Whitman's desk,30 and posted his own. Both daily markup
slips called for the same employees to report to work,
except that Whitman's slip, but not Henry's, listed the
name of Travis, who was entitled to a paid holiday that
Monday 31
Thereafter, Whitman approached Henry and asked why
he had taken Whitman's daily markup down. Henry
replied that there was only room for one, and he had
always hung his there. Whitman said that "we were going
by his markup this week and if [Henry] wasn't going, to do
it that way [he] wouldn't be working there anymore."
28 My findings as to these June 26, 27, and 28 conversations are based on
Henry's credible testimony. On the basis of the witnesses' demeanor and the
probabilities of the situation, I do not credit Whitman's testimony that he
had no conversations with Henry about the matter between June 122 and
June 27, and that Henry never told him that in maintaining Brown's prionty
over Whittle, Henry was acting pursuant to union advice
29 This quotation is from Henry's credited testimony Whitman testified,
"I think that I told him that this is the way we would work it from now on."
30 My finding that he placed it on Whitman's desk is based on Henry'si
testimony On the basis of the witnesses' demeanor, I credit Henry and
discredit Whitman's testimony that Henry put it on the desk, in the
makeshift office already referred to
31 That Monday was Travis' hiring anniversary, which was a paid
Henry asked whether he was fired, and Whitman said
yes.32
Whitman testified that Henry was a conscientious
employee,33 that Whitman's dealings with him were always
cordial and on a friendly basis, that he fairly and honestly
represented the Union's interests, and that prior to the
Brown-Whittle incident Henry had never shown any
favoritism or discrimination in the way that he marked up
the scheduling of the men, whether, union or nonunion.
Saunders testified that to his knowledge, before refusing to
repost Whitman's markup Henry had never abused the
markup procedure.
After Henry's discharge, Tichenor discussed the matter
with Whitman, but failed to reach a mutually satisfactory
adjustment. By letter to Saunders dated September 12,
1974, Tichenor stated:
The actions of the Newspaper Printing Corporation
to date, i.e., the specific rejection of the grievance
procedure; the appeal to the U. S. Court of Appeals for
the Sixth Circuit from the District Court decision which
orders the arbitration of the contract, have effectively
prevented, and rendered futile, the filing of a grievance
in behalf of Kenneth M. Henry concerning his
discharge.
However, Nashville Newspaper Printing Pressmen's
Union No. 50 hereby advises the Newspaper Printing
Corporation that when these present bars to the filing
of grievances have been removed, that a grievance shall
be filed in behalf of Kenneth M. Henry in order to
resolve the dispute concerning Mr. Henry's discharge.
So far as the record shows, Respondent did not reply to
this letter. -
Whitman prepared and posted the daily markup list for
less than a full week after Henry's discharge. Thereafter,
employee Van McCloud, who became dayside chapel
chairman, prepared the daily and weekly markup slips.
Because Maddin believed that Brown was about to quit,
and in an effort to avoid a confrontation, for about a
month after Henry's discharge Brown and Whittle were
purposely given work assignments which could not have
been affected by their priority inter se. In the meanwhile,
McCloud listed Brown's name over Whittle's on the daily
and weekly markups.34 When asked whether Union
President Tichenor had given McCloud any specific
instructions on how to mark up Brown and Whittle,
Tichenor credibly testified, "I told him to do what he had
to do to keep from getting fired." When Brown stayed on
and a situation arose where their prionty inter se
necessarily affected their work ' assignments , Maddin told
holiday under the 1970 contract. Whitman testified that his listing of Travis
was an oversight.
32 My findings in this paragraph are based on Henry's testimony, which
I credit on the basis of the witnesses ' demeanor . Whitman gave a somewhat
different version of the discharge interview , including testimony that
Whitman in terms instructed Henry to post Whitman's markup slip and that
Henry in terms refused The result herein would be the same accepting
Whitman's version
33 Saunders , repeatedly averred that Respondent suffered from a chronic
shortage of journeyman pressmen , which was Henry's classification.
34 I so infer from the fact that Brown's name so appears on a daily
markup prepared by McCloud for July 7, 1974
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCloud that, Whittle was going to have to be marked up
before Brown. McCloud replied, ". . . that won't be any
problem because Tichenor has instructed me that the next
time this comes up to change it."35 Thereafter, Whittle was
marked up ahead of Brown.36
D. Analysis and Conclusions
1. The repudiation of the grievance and
arbitration procedure
a. Respondent's refusal to honor the grievance
procedure set forth in the 1970 contract
The record shows that during the admittedly effective
period of the 1970 contract, and thereafter "until Respon-
dent's April 17, 1974, refusal to discuss the Page grievance
at a meeting of thejoint standing committee as set forth in
the 1970 contract, grievances had in fact been processed in
accordance with the "Settlement of Disputes" procedure
set forth in that contract.37 Further, Respondent's refusal
thus to process the Page grievance was expressly based on
its assertion that "the contract expired December 31, 1972,
and therefore we have no obligation to observe the
grievance procedures under the expired contract" - in
other words, on a repudiation of any legal obligation to
observe such procedures. Respondent did not and does not
contend, nor do I see any basis for such a contention, that
the nature of the Page grievance made the "Settlement of
Disputes" clause inapplicable. Moreover, at no time during
the negotiations which began after the alleged expiration of
the 1970 contract had either party made any effort either to
delete or to alter the "Settlement of Disputes" clause. In
view of these undisputed facts, Respondent's refusal to
discuss the Page grievance through the joint standing
committee constituted a unilateral alteration of a previous-
ly prevailing condition of employment - namely, the
grievance procedure - which violated Section 8(a)(5) and
(1) of the Act, whether the contract was in effect38 or,
whether it had expired.39 While it is true that the cases
cited in footnote 39, supra, did not (as here) seem to involve
a willingness to comply with the duty to bargain about
grievances in the manner and to the extent required by the
Act before any bargaining agreement has been entered
into, the Board has regarded such willingness as insuffi-
cient to warrant repudiation of the contractually generated
grievance procedure. Kingsport Publishing Corporation, 165
NLRB 694 (1967); 40 The Hilton-Davis Chemical Company,
35 When asked whether he had given such instructions, Tichenor
testified, "I could have. I don't recall it "
36 My findings as to the McCloud-Madden conversation are based on
Whitman's testimony On the basis of the witnesses' demeanor, I discredit
Maddin's somewhat different version
31 Because such evidence establishes that the grievance procedure had
become part of the established operational pattern at Respondent's plant,
Kingsport Publishing Corporation v N LR B, 399 F 2d 660, 662 (C A 6,
1968), is inapposite here
30 Taft Broadcasting Company WDAF AM-FM-TV, 185 NLRB 202
(1970), enfd. 441 F 2d 1382 (C.A. 8, 1971); Massillon Publishing Co, 212
NLRB 869 (1974), 215 NLRB No 74 (1974).
39 Local 933, United Automobile, Aerospace and Agricultural Implement
Workers, 193 NLRB 223, 237 (1971), Bethlehem Steel Company (Shipbuilding
Division), 136 NLRB 1500, 1501-03 (1962), 133 NLRB 1347, 1358-59
(1961), remanded with approval in this respect 320 F 2d 615, 620 (C A 3,
1963), cert denied 375 U S 984 (1964), decision on remand 147 NLRB 977
Division of Sterling Drug, Inc., 185 NLRB 241, 243 (1970).
Nor is there any indication of the acceptability of such a
defense in the other decisions involving unilateral changes
in the grievance procedure. Further, because even precon-
tract bargaining about grievances requires the establish-
ment of some kind of procedures, as a practical matter it
would be difficult to distinguish between an abandonment
of and a change in contractually generated procedures. .
As indicated in subsequent Board decisions,41 Respon-
dent errs in contending that Hilton-Davis, supra, permits
unilateral abandonment of a contractually prescribed
grievance procedure upon the expiration of the contract.
Rather, the Board specifically stated that, notwithstanding
such expiration, "an employer cannot abandon established
channels for bargaining over the employee grievances and
thus undercut the union's status as exclusive representa-
tive. Such a view is not inconsistent with our recognition of
the consensual nature of the arbitral process." (185 NLRB
at 243; emphasis supplied.) Moreover, the Board based its
Hilton-Davis conclusion that no such obligation exists with
respect to an expired contract's arbitration' provisions on
the ground that an arbitration' agreement constitutes a
consensual surrender of the economic power which the
parties are otherwise free to utilize if free collective
bargaining fails to result in an agreement. This reasoning is
plainly inapplicable to a grievance procedure like that in
the instant case, where both parties are free to adhere to
their initial position if they remain unconvinced by the
facts and arguments brought out in the course of the
grievance procedure.42
Respondent's brief seems to contend, in passing, that a
finding that it unlawfully repudiated the grievance proce-
dure would be unwarranted because the manner in which it
did entertain the Page grievance was allegedly in substan-
tial conformity to the contractually' generated procedure.
However, Respondent's letters in connection with the Page
grievance show that its response thereto reflects a policy
decision by Respondent about the practice to be followed
absent an NLRB or judicial determination that it is
obligated to follow the arbitration and/or grievance
procedures set forth in the 1970 contract. So far as the
record shows, Respondent did not modify its position
when the Union expressly, advised Respondent that this
policy decision had led the Union to refrain from filing a
grievance with respect to Henry's discharge. Indeed,
Respondent has continued to adhere to this position during
the instant litigation. Moreover, in agreeing to meet about
(1964), United Nuclear Corporation, 156 NLRB 961, 966 (1966), enfd 381
F 2d 972, 977-978 (C A 10, 1967), The Celotex Corporation, 146 NLRB 48,
59-60 (1964), enfd in material part 364 F 2d 552 (C A 5, 1966), cert denied
385 U S 987
40 Enforcement denied for the reasons summarized supra, In. 37
41 E.g., Local 933, UA W, supra, 193 NLRB at 237, Fawcett Printing
Corporation, 201 NLRB 964, 973, in. 41 (1973)
42 Respondent contends that certain language in Heart ofAmerica Meat
Dealers Association, et al, 168 NLRB 834, 838, 843 (1967), privileges
unilateral changes in contractually generated employment conditions after
the contract' expires Even if that decision did so indicate, for purposes
relevant here it would be superseded by the subsequent decisions in Hilton-
Davis and cases relying thereon. In any event, the Heart of America Trial
Examiner's comments, adopted by the Board, were directed to rejecting the
contention that an employer which announced that it would continue to
observe such working conditions violated the Act when it concomitantly
advised the employees of the fact that the contract itself had expired
NEWSPAPER PRINTING CORPORATION 821
the Page grievance, Respondent anticipated a significant
distinction between the meeting and a meeting in accord-
ance with the, contractually generated grievance procedure
by carefully making it clear that the meeting would not be
held under the grievance procedures in the 1970 contract.
Similarly, Saunders testified at the hearing that, should the
Union request a joint standing committee meeting about a
grievance that arose after December 1972, Respondent
would`"probably say, `We don't want to meet with you in
Joint Standing Committee, but we will meet with you any
time.' " Further, in the event of a binding determination
that the Page grievance is subject to compulsory arbitra-
tion in the manner set forth in the 1970 contract, a
precondition to such arbitration might be a conference
which was formally denominated a joint standing commit-
tee meeting.
b. Respondent's refusal to honor the arbitration
procedure set forth in the 1970 contract
Hilton-Davis, supra, 185 NLRB at 242, 243, teaches that
an employer does not violate Section 8(a)(5) and (1) of the
Act by refusing to honor provisions of an -expired contract
calling for arbitration.of grievances even though the parties
have made no effort to exclude such provisions from, or
include different provisions - in, any new contract to be
agreed on.43 Accordingly, under Hilton-Davis, Respondent
cannot be found in violation of Section 8(a)(5) and (1) by
its -alleged refusal to process the Page grievance in
accordance with the arbitration provisions of the 1970
contract' unless the arbitration provisions of that contract
were in effect when that grievance arose. Apparently
relying on essentially the same arguments as those
advanced in the pending Section 301 proceeding, the
Union contends that the parties were contractually bound
by such provisions, and Respondent that the, parties were
not so bound.
While agreeing with the Union that such contract
provisions were m effect at'all material times, counsel for
the General Counsel states in his brief, ". . . if the Judge
considers it appropriate to withhold a decision on the issue
of the Respondent's failure to give credence to the
grievance and, arbitration procedure in the contract until
the arbitrator rules on these issues, the General Counsel
would not object, since such a course would avoid the
possibility of conflicting decisions over the meaning and
effect of the contract termination clause." I deem this
suggested action inappropriate in connection with the
alleged refusal to process the Page grievance through the
grievance procedure, because such conduct was unlawful
43 Cf. Industrial Union of Marine and Shipbuilding Workers of America v
N L.X.B (Bethlehem. , Steel Co.), 320 F.2d 615, 620 (C.A. 3, 1963), cert
denied 375 U.S 984 (1964) ("The company's. . alteration in the grievance
and arbitration procedure . . finds . .. no . protection in the statute.
The vice in this was not the refusal to comply with the provisions of an
agreement which had already expired, but the . . substitution of a new
employer-devised grievance procedure in lieu of the one which existed
under the expired contract." (Emphasis supplied.)
44 Houston Chapter, Associated -General Contractors ofAmerica, Inc., 143
NLRB 409 (1963), enfd. 349 F 2d 449 (C.A. 5, 1965), cert denied 382 U.S
1026 (1966).
46 Respondent also points to the new practice, adopted about 2 weeks
earlier, under which the chapel chairman provided the foreman with a copy
of the weekly markup slip so employees with questions about their schedule
whether or not the contract was in effect. However, I
accept this suggestion in connection with, Respondent's
alleged refusal to honor the arbitration procedure in
connection with the Page grievance, particularly because
the. Union has indicated willingness to await a favorable
judicial disposition of the Section 301 action before naming
its arbitrators. Cf. Collyer Insulated Wire, 192 NLRB 837
(1971); Medical Manors,,Inc., d/b/a Community Convales-
cent Hospital and Community Convalescent East, 199 NLRB
840 (1972), 206 NLRB,962 (1973).
2. The alleged unilateral action in connection
with the markup
The record shows that for at least 24 years prior to June
28, 1974, the Union's chapel chairman had been exercising
the power, through the markup procedure, of determining
the days on which individual employees were required to
work and to some extent the jobs they were, required to,
perform. Contrary to Respondent, I conclude that, an
arrangement affording such power to a union representa-
tive constitutes a mandatory subject of collective bargain-
ing.44 On June 28, 1974, Foreman Whitman took over the
markup for a few days, thus depriving the employees of the
voice which they had previously enjoyed, through the
markup practices of a fellow employee elected by them,
over their individual work schedules.
In contending that Whitman's action did not constitute a
change in the prior practice, Respondent relies on, the
evidence that the chapel chairman had always taken the
foreman's wishes into ' account in drawing up the markup,
and on the fact that, Foreman Whitman used the same
forms and posting procedure as had the chapel chairman.45
However, Respondent's brief goes - on to concede that
Whitman's action "was a change in the . degree of control
exercised by the Company over the markup procedure."
Moreover, a comparison between Whitman's and Henry's
weekly markup for the week following Henry's discharge
discloses that the work schedules of more than, half the
employees with dayside priority who were scheduled, to
work that week were different under Foreman Whitman's
markup than under Chapel Chairman Henry's markup.46
As Respondent recognized in arranging to post the weekly
markup, the days, of, the week on which an employee, is
required to work assume great significance in his personal
life. I cannot regard as merely a trivial matter of "degree" a
change which thus immediately and significantly affected
more than half the dayside'work force. Nor do the Henry-
Whitman discussions' about whom Henry would mark up
for maintenance show that Whitman's taking over the
could see it Because the chapel chairman agreed to the institution of this
practice, and because there is no evidence that it was intended to or resulted
in any changes in the chapel, chairman 's authority to.determine the contents
of the markup, I am unable to perceive why -Respondent-regards this new
posting practice as relevant, to its contention that Whitman's action did not
alter the markup procedure
46 'Whitman 'scheduled 4-day -weeks fora relatively ' large number of
employees who were not high on the priority list. Henry "tried to get the ,
most men [he ] could get with five before [he ] had to go,into cutting them
back to 4" because, in his 'view, the men at , the bottom of the priority list
were the ones who caused, any shortage of dayside work (inferentially,
because, they had likely elected- to transfer from the mghtside to the more
popular dayside). See also supra, fn. 11.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
markup procedure did not constitute a change therein.
Rather; the credited evidence shows that their discussions
regarding this matter, like their discussions over Henry's
other schedule arrangements under the markup procedure,
sometimes caused a change in Henry's proposed schedul-
ing and sometimes did not.
In addition to contending that the prior practice was not
changed, Respondent advances the somewhat inconsistent
contention that it gave the Union ample prior notice of the
contemplated change. The merits of this contention are
rendered questionable by the total absence of evidence of
any communication between Whitman and Respondent's
negotiators about the matter before Whitman took over the
markup . Nor do I view such notice as having been given by
Saunders' March 11, 1974, letter to Tichenor (a letter
which Whitman never read, so far as the record shows),
stating that if the Union "can or will not assign the work in
the manner satisfactory'to the company we will have no
choice except to exercise our right to assign the work." This
letter was occasioned by the activity of Henry's predeces-
sor as chapel chairman in allegedly marking up employee
Gregg Cunningham to work four consecutive shifts, and
not to any markup activity by Henry or in connection with
priority disputes ; and the letter was based on the allegation
that "the Union is discriminating against some of the
employees . . . in the assignment of work days and
overtime shifts" - an accusation which Whitman never
voiced to Henry while he was chapel chairman.47
Finally, Respondent -contends that if the 1970 contract
was still in effect (although Respondent contends that it
was not), Whitman' could lawfully have unilaterally and
without notice taken over the markup, on the ground that
the prior practice of the preceding 24 years-under which
the foreman gave a weekly equipment list to the chapel
chairman, who prepared the markup-was inconsistent
with the 1970 contract admittedly in effect during part of
the period when this practice was followed. Respondent
points to the contract provisions that "The Foreman of the
pressroom . . . shall be the judge of competency and shall
hire, discharge, supervise and govern all employees, give
out all the situations , and assign all men to their positions
in the pressroom . . . in` accordance with the terms of this
agreement" (art. VIII, sec. 3), and that "If the Publishers
call on the Union to supply additional pressmen on any
shift;'the Union agrees ' to furnish them ... the Publisher
shall give the Chapel Chairman a list of the men needed
during the coming week" (art. VI, sec. 2).48 As legal
authority for this position, Respondent cites N.L.R.B. v.
Frontier Homes Corporation, 371 F.2d 974, 980-981 (C.A. 8,
1967), enfg. 153 NLRB 1070, 1072=73 (1965). In that case,
an employer selected employees for layoff, after the
contract's expiration on the basis of ability, although the
practice during the contract term had been to lay off on the
basis of seniority alone . A Board majority (Chairman
McCulloch dissenting) stated:
[The employer] concedes that this, action was a
deviation from past practice but contends that it is not
a change in working conditions because the contract
granted the right to use ability as a criterion, with
seniority prevailing only when ability was substantially
equal. However, whatever meaning this clause might
have in the abstract need not be considered by us.
Here, the [employer] has consistently interpreted and
administered this clause to mean that strict seniority
and, only strict 'seniority will govern in layoffs. Here,
there was significant departure from past practice and a
significant impact on unit employees. We therefore
agree with the Trial Examiner that the unilateral
change in the system of layoff constituted a refusal to
bargain in good faith.2
2 Our dissenting colleague, unlike the parties themselves, gives
literal effect to the words of the contract , and therefore, while
conceding that there was a significant change in the way the layoff was
effectuated , finds no violation . We cannot agree Where in fact, as here,
a practice has developed, that practice is, in substance , a change in the
contract provisions , and a change in' practice is a change in the terms
and conditions of employment . It is not excused by arguing that an
expired contract, had it been followed , would have ,justified the action.
Where the parties themselves did not enforce the contract literally
during its term, we see no basis for resort to the parol evidence rule to
justify literal adherence to the contract after expiration.
In short, in such cases the Board reads the contract in light
of the practice followed thereunder .49 Such an approach
leads me to conclude 'that, in light of the practice followed
for at least 24 years before June 1974, the '1970 contract'
called for the chapel chairman to draw up the markup even
though, "in the abstract," the contract may have called for
the foreman to perform this funetidn .50 On this reading of
47 Although Respondent's brief contends that Gregg Cunningham was a
nonmember (see supra, fn. 15), Respondent's March 11, 1974, letter did not
allege that the Union was "discriminating" on the basis of union
membership and nonmembership. At the hearing , Whitman credibly
testified to a belief that Henry's action in the Brown-Whittle dispute was
motivated by Brown's membership and Whittle's nonmembership. Howev-
er,' I credit Henry 's testimony that this was not a factor in his priority
markup , in view , of his demeanor ; Whitman's testimony that Henry had
never before discriminated, against nonmembers; Saunders ' testimony that
to his knowledge Henry had never before abused the markup procedure;
and the Union's arguable basis for its position regarding the Brown-Whittle
priority dispute (supra, fn. 21). Nor is there any evidence that prior to the
instant hearing Respondent ever told either Henry or 'any other union
representative that it believed his position regarding the Brown-Whittle
matter was motivated by considerations of union membership . Accordingly,
even taking the March I I letter as a threat to take over the markup if the
Union discriminated on the basis of union membership , the Union could
hardly ' have regarded the letter as applicable to the Brown-Whittle matter,
when the Union was not in fact , and was not then being accused of being, so
motivated.
48 Although certain portions of Foreman Whitman's testimony indicate
that he believed the 1970 contract gave him the right to draw up the
markup, he also testified that under the terms of the agreement the
chairmen had been preparing the markup and that prior to June 28 there
had never been a dispute about who had the right to prepare the markup.
On the other hand, Union President Tichenor testified that to his knowledge
the 1970 contract did not forbid'the foreman to post his own markup.
49 See also Printing Industries of Northern Cal forma, 204 NLRB 329
(1973); Hotchner v. Neon Products, Inc., 163 F:2d 672, 676 (C.A. 6);
Matanuska Valley Farmers Cooperating Assm v. Monaghan, 188' F.2d 906,
909 (CA. 9). Indeed, Respondent's March 11 letter conceded that the
assignment of work had been "delegated to the Union " '
50 In so reading the contract , I reject Respondent 's reliance on the
Union's proposal to amend the 1970 contract so as to reflect the practice
under which the man in charge performed certain functions arguably
assigned by the contract to the foreman (see supra, fn. 18). To take this
proposal as a union admission that the foreman has the contractual right to
perform all the functions set forth in art. VIII, sec. 3, and as union
acquiescence in such a contract right except as to the man-in-charge
functions , would discourage negotiating parties from seeking what they
NEWSPAPER PRINTING CORPORATION
the contract, the result herein would be the same whether
or not it had expired.
The court of appeals agreed with the result reached by
the Board majority, but on somewhat different grounds
(371 F.2d at 980-981, citations omitted):
... The unilateral alteration of this established
condition of employment is a proscribed refusal to
bargain under the Act.
This conclusion cannot be altered by the fact there
was an expired contract provision that might have
authorized the action of [the employer]. Had the
contract been in force at the time of the layoff, [the
employer] would have been justified in following its
terms even though it differed from the past practice.
The right to consider ability (to some extent) had
already been given as the result of past negotiations, so
to the extent granted there would have been no need to
submit this issue to further negotiation. However, the
fruit of these past negotiations must end with the
expiration of the contract. As of the end of December
31st, the contract legally ceased to exist. There is
nothing in the Act or in the case law interpreting the
Act, that authorizes the terms of the contract to extend
beyond its expiration date. Consequently, there is no
reason why this expired contract should serve to relieve
the employer of his statutory duty to negotiate with the
Union over a change in seniority and layoff proce-
dures. This being true, there is no reason why the
expired contract should authorize a unilateral changing
of this mandatory subject of collective bargaining.
The expiration of the contract would permit the
Company to negotiate for a new and different layoff
arrangement, but would not allow it to institute a
unilateral change on this mandatory bargaining issue
without negotiating. The entire operation of the
Company, including precedent, custom, tradition and
contract, must be viewed in establishing the industrial
pattern of its operation. Any changes affecting matters
of mandatory bargaining, "wages . . . and other terms
and conditions of employment," which include layoffs,
must be negotiated out, or at least until, an impasse is
reached. An' expired contract in the Labor-Manage-
ment field must be viewed in light of its effect upon the
past operation of the plant and the entire industrial
pattern which has been established, in part, by it,
together with the customs, practices and traditions of
the industry and the Company. Expired contract rights
affecting mandatory bargaining issues, therefore, have
no efficacy unless the rights have become a part of the
established operational pattern and thus become a part
of the status quo of the entire plant operation.51
The Eighth Circuit's Frontier Homes opinion tacitly
assumes that the expired contract should be read as
genuinely believe to be mere clarification of the existing contract, by
creating the risk that any such proposal would be read as a concession that
the existing language called for a practice different from that in fact
followed thereunder. Cf. Clifton Precision Products Division, Litton Precision
Products, Inc, 156 NLRB 555, 562-563 (1966).
5i The last two sentences were quoted with approval in Kingsport
Publishing, supra 399 F 2d at 662 (C A 6).
823
inconsistent with the practice followed thereunder, and,
further, that if the contract had still been in existence the
employer could lawfully have elected to follow it rather
than the practice. However, I believe that the court's
opinion contemplates a situation where the -employer
regards the contract as in existence, and where he has
evinced an intention to observe the contractually pre-
scribed employment conditions until the contract's expira-
tion. In the instant case, Respondent had beenmaintaining
for a considerable period prior to June 1974 that the
contract was no longer in existence. Moreover, the events
which motivated Foreman Whitman's action in taking over
the markup and his acquiescence within a week in the new
chapel chairman's resumption of such activity show that
Whitman never intended permanently to exercise any
alleged contractual rights to perform the time-consuming
and troublesome task of handling the weekly and daily
markups himself, with the concomitant risk that the Union
would abandon its existing practice of using its internal
disciplinary procedure to compel members to report to
work in accordance with the markup when drawn up by
the chapel chairman.52 Such factors possess substantial
significance in determining these parties' statutory rights
and obligations in the circumstances present here. The
requirement that existing employment conditions be
maintained until the other party is afforded notice and an
opportunity to bargain contributes to the statutory purpose
of industrial peace by, inter alia, enabling the contracting
parties and the -employees to form habitual patterns of
individual and joint conduct in the industrial community,
secure in the expectation that the others too will confine
their own actions to predictable boundaries. While such
patterns are to some extent disrupted by any unilateral
decision by one of the parties to act in accordance with a
current contract clause inconsistent with the existing
practice, in the ordinary case any resulting confusion in
industrial relations is limited by the permanence of the
change and of its consequently predictable incidents, and
by the justifiable expectation that all parties will also abide
by the remaining contract provisions. The existence of such
limitations would be highly questionable, however, if a
party which is taking the basic position that no contract
exists is nonetheless permitted to rely on provisions in that
contract allegedly calling for particular employment
conditions in order to defend unilateral, temporary, and
sporadic changes' in prevailing conditions. To permit
Respondent thus to act, inconsistently and unpredictably
would aggravate the industrial relations problems which
necessarily arose from the parties' dispute and pending
litigation about the 1970 contract's effectiveness.
For the foregoing reasons, I conclude that Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
taking over the markup 53
52 As set forth in greater detail infra sec. II,D,3, his purpose was to
prevail in the Brown-whittle priority dispute and to increase the weight
afforded his needs when the chapel chairman drew up the markup. Such
purposes do not ordinarily justify an otherwise unlawful unilateral change.
Bethlehem, supra 320 F.2d at 620:
53 Respondent's brief does not raise its hearing contention that its
unilateral actions cannot be found unlawful because Respondent allegedly
(Continued)
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Chapel Chairman Henry's discharge
To some degree, Respondent and the Union approach
the issue of Henry's discharge as if Whitman's tacit or
express order to repost Whitman's markup, the order
which Henry was discharged for disobeying, is legally
indistinguishable from an order wholly unrelated to
Henry's duties as chapel chairman-for example, an order
to work on a particular press. On such an approach, and
because Whitman's reposting order was an integral part of
his action in taking over the markup, my previous finding
that Respondent was under a statutory duty to honor the
existing markup procedure, and was failing to honor any
mutually agreed-upon grievance procedure, would call for
a finding that Henry's refusal to obey that order constitut-
ed Section 7 activity for which he could not lawfully be
discharged.54 Moreover, Henry credibly testified to a belief
that the bargaining agreement was still in existence, and his
conduct and testimony as a whole lead me to conclude that
he honestly believed that it afforded him the right to
handle the markup. Assuming arguendo that the reason-
ableness of Henry's views is a relevant consideration, such
reasonableness is sufficiently established by the district
court's acceptance of Henry's first conclusion and my
acceptance of his second. Accordingly, I would find his
conduct protected' on the assumption that Respondent is
correct in its view that Whitman had a legal right to take
over the markup.
Thus, at least absent any adherence by Respondent to a
mutually agreed-upon grievance procedure, Henry's refus-
al to repost Whitman's markup constitutes protected
activity under the' rationale of the cases holding that an
employee engages in protected activity when he refuses to
obey an order because of an arguable claim that the order
contravenes an admittedly existing collective-bargaining
agreement.55 Moreover, for the reasons stated below, I
believe that Henry's conduct constituted protected activity
for additional reasons not wholly applicable to the class of
cases cited above.
Although testifying that Henry would not have been
discharged if he had left up his own markup list but
complied with the order to repost Whitman's, Whitman
further testified that if Henry had complied with the
reposting order the employees would have been expected
to work in accordance with Whitman's markup list and not
in accordance with Henry's. Both Whitman and Henry
testified that Whitman conveyed essentially this message to
Henry during the discharge interview. Moreover, Whitman
testified that,the "total thing" which led him to take over
the markup was Henry's refusal to mark up (in other
acted in subjective good faith. Such good faith would not constitute a
defense to Respondents action with respect to the grievance procedure and
the markup . N.L.R B. v Benne Katz, d/b/a Williamsburg Steel Products Co,
369 U.S. 736, 743 (1962). Accordingly, I find it unnecessary to evaluate the
factual basis for Respondent's "good 'faith" contention . The facts ,materal
to such a determination are summarized in sec . II, A, supra, relating to
Respondent's position regarding the continued effectiveness vel non of the
contract , and the last two paragraphs of sec II, B, supra, relating to the Page
grievance.
54 Dust-Tex Service, Inc, 214 NLRB No. 60 (1974); NLRB. v. Laney &
Duke , Storage Warehouse Co, 369 F 2d 859, 865-866 (C.A. 5, 1966);
Southwestern Bell Telephone Co., 212 NLRB 43 (1974); George E Light Boat
Storage, Inc., 153 NLRB 1209, 1215-17 (1965), enfd . in relevant part 373
F.2d 762, 766 (C.A. 9, 1967).
words, give priority to) Whittle over Brown. The Whitman-
Henry conversations about the matter between Whitman's
May 30 inquiry why Brown was working during the day
and Henry's June 29 discharge lead me to conclude that
Henry was aware of this motive for Whitman's taking over
the markup. In short, Foreman Whitman's tacit or express
order to Chapel Chairman Henry to repost Whitman's
markup list was intended and understood as tantamount to
an order requiring Chapel Chairman Henry to relinquish
the Union's- position regarding the priority dispute, to
acquiesce in Foreman Whitman's position about this
dispute, and to acquiesce in Foreman Whitman's schedul-
mg for the coming week even though it significantly
differed from the scheduling prepared by Chapel Chairman
Henry. It was this order which Henry was discharged for
refusing to obey.
Further, Whitman testified that he regarded Whittle as
having priority over Brown because Whitman had ap-
proved Whittle's transfer before approving Brown's and
such approval was an exercise of Whitman's power to hire
flowing - from his capacity as foreman. Whitman also
testified that when taking his markup list down and
refusing his order to repost it, Henry "was acting as a
fellow who was taking the foremans right of hiring and
giving out situations." Moreover; as previously found,
Henry had advised Whitman that the Union had instructed
Henry to ,mark up Brown over Whittle.56 In other words,
Whitman regarded the position of Henry and Henry's
Union in the Brown-Whittle priority dispute as challenging
and seeking to usurp Whitman's authority as foreman, and
discharged Henry as a means of asserting Whitman's own
authority over the transfer and scheduling of employees.
That this discharge achieved Whitman's purpose is
strongly suggested by Union President Tichenor's advice,
when Henry's successor as chapel chairman asked how to
mark up Brown and Whittle, to "do, what he had to do to
keep from getting fired," after which the new chapel
chairman marked up Whittle ahead of Brown.
Whitman's motives in discharging Chapel Chairman
Henry serve to accentuate the reality that the chapel
chairman's functions have for at least 24 years constituted
an integral part of the system of industrial self-government
in Respondent's shop, and m their sphere are analogous to
the functions ordinarily performed by a shop steward.57 It
is the chapel chairman who through the markup effects the
necessary day-to-day adjustments between the scheduling
desires of some employees and others and between the
employees' desires and the foreman's needs, !all in the light
of the customs relating to priority and the provisions of any
55 John Sexton & Co, 217 NLRB No. 12 (1975), Allen H. Kraft, et al
d/b/a Restonaire Bedding Company, 164 NLRB 729 (1967); Anaconda
Alununum Company, 160 NLRB 35 (1966); see also Bob Henry Dodge, Inc.,
203 NLRB 78 (1973).
56 As found supra, fn. 47, Whitman was mistaken in his 'belief that
Henry's position in the Brown-Whittle matter was motivated by the fact
that Brown was a union member and Whittle was not. Accordingly, such
belief cannot serve as a defense to conduct by Respondent which would
otherwise violate the Act. N.LR.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964).
57 Cf. United Steelworkers of America v. Warrior & Gulf, Navigation Co.,
363 U.S. 574, 578-582. In fact, the chapel chairman's functions include
handling grievances at the early stage of the grievance procedure.
NEWSPAPER PRINTING CORPORATION 825
relevant -bargaining agreement. The practice in which
Respondent (as well as the Union) had long acquiesced,
under which such determinations are made by the chapel
chairman, affords the employees the advantage of judg-
ments made by a fellow employee selected by the union
membership and, therefore, likely more responsive to the
employees' wishes than a foreman selected by Respondent
would have been. Accordingly, just as unit employees'
enjoyment of their statutory right to the full benefit of the
parties' agreements and practices is advanced by the broad
statutory protections afforded their stewards, the employ-
ees' enjoyment of their statutory right to the full benefit of
the chapel chairman's discretionary power in connection
with job assignments would be advanced by affording like
statutory protections to the chapel chairman.
On the basis of these considerations, I conclude that
whether or not Whitman acted lawfully in taking over the
markup, and whether or not Whittle was entitled to
dayside priority over, Brown, Respondent violated Section
8(a)(1) and (3) of the Act when Whitman discharged Henry
for his refusal to acquiesce in Whitman's conduct, which
refusal was evinced by Henry's refusal to repost Whitman's
markup. Clearly, a steward cannot lawfully be discharged
for refusing to abandon a grievance about an employer's
instructions to an employee (such as scheduling instruc-
tions) which the steward honestly and, reasonably believes
are inconsistent with a current contract or , practice,
whether or not the grievance is mentorious,58 and whether
or not the employer could properly discipline the employ-
ees for disobeying such instructions pending final disposi-
tion of the grievance. Moreover, Chapel Chairman Henry's
conduct in maintaining the claim that he was entitled to
control over the markup was not' even arguably discourte-
ous except on the question-begging assumption that he had
no right to disobey Whitman's reposting order. According-
ly, whether or not Respondent could lawfully have
disciplined employees (including Henry, Brown, Whittle,
and Travis, supra, fn. 31) if they reported to work on the
days and hours specified in . Henry's markup rather than
Whitman's,59 Respondent could not discharge Henry for
refusing in his capacity as a union chapel chairman to
acquiesce in Whitman's claim and exercise of his alleged
right to control the markup and the relative priority of
Brown and Whittle. Such a conclusion gains further
support from the fact that in all probability the Union
could not have fined or expelled union member Whitman,
or sought to compel his discharge, because of Whitman's
58 I need not and do not consider the extent of the steward's protection
in pressing grievances which he honestly but unreasonably believes
meritorious.
59 See the cases cited supra, fns. 54-55 I note that Whitman's weekly
markup sheet remained posted in the customary place.
60
Respondent suggested at the hearing, although not in its brief, that
Henry should have complied with Whitman's order and grieved the order.
However, as Henry pointed out in his testimony, 2 months earlier
Respondent had repudiated the joint standing committee procedure, which
was the procedure called for by, the contract provision (art. VIII, sec. 3)
assertedly affording Foreman Whitman his claimed power over the markup
This clause also enabled Whitman or Respondent to invoke the joint
standing committee procedures, which the Union was honoring, but they
did not do so Respondent 's position that the parties were not bound by the
contractual arbitration clause had indefinitely deprived Henry and the
Union of relief through that procedure, while (as Saunders admittedly
knew) the Union's contrary view had effectively deprived it and Henry of
action in connection with the markup. San Francisco-
Oakland Mailers' Union No. 18, Intl. Typographical Union
(Northwest Publications, Inc.), 172 NLRB 2173 (1968).60
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce 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. At all relevant times, the Union has been the
exclusive bargaining representative, under Section 9(a) of
the Act, of the following unit of Respondent's employees,
which is appropriate under Section 9(b) of the Act: All
pressroom employees employed at Respondent's Nashville,
Tennessee, location.
4. Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing on and after April 17, 1974, to honor
the grievance procedure set forth in the 1970 collective-
bargaining agreement between Respondent and the Union.
5. Respondent has violated Section 8(a)(5) and (1) of
the Act by unilaterally revoking its delegation to the Union
of authority to select and assign employees' hours of work
and job functions.
6. Respondent has violated Section 8(a)(1) and (3) of
the Act by discharging employee Kenneth Henry to
discourage protected concerted activity on behalf of the
Union.
7. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom,61 and from like or related
action, and to take certain affirmative action to effectuate
the policies of the Act. I shall recommend that Respondent
be required, on the Union's request, to entertain the Page
grievance through the joint standing committee procedure
set forth in the 1970 contract,62 and honor that procedure
unless and until (1) it is changed by agreement of the
parties, or (2) Respondent has given the Union notice of
and an opportunity to bargain about a change, and either
the Union has failed to request bargaining or the parties
have bargained about such proposed change to a legally
cognizable impasse. I shall also recommend that Respon-
dent be required to offer reinstatement to Kenneth Henry,
the strike weapon presumptively available in the absence of an arbitration
clause (Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455).
Moreover, to the extent that Henry's obedience would have led to his
subsequently drawing up markups which gave more weight than previously
to Whitman's wishes, the employees would have suffered an injury, in the
form of work schedules (pending final disposition of the grievance) more
distasteful than they otherwise would have been, which likely could never be
effectively remedied. Cf. Lepnno Cheese Mfg. Co., 170 NLRB _601, 606
(1968), enfd. 424 F.2d 184 (C.A 10, 1970), cert. denied 400 U.S 915.
6i While it is true that Respondent reverted to substantially the prior
markup practice a few days after the unilateral change, the motives for its
action 'summarized supra, sec . II,D,3, give reason to anticipate that
Respondent may again take over or may threaten to take over the markup
procedure for purposes related to the purpose of its June 1974 takeover.
62 This is the only remedy which counsel for the General Counsel seeks
as to the Page grievance.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to his seniority or other rights and
privileges, and' make him whole for any loss of earnings he
may have suffered' by reason,of his unlawful discharge, by
payment to him of a sum of money equal to that which he
normally would have earned from the date of his discharge
to the date of a valid offer of reinstatement less his net
earnings during this period, to be computed in the manner
described in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In addition, I shall recommend that Respondent be
required to post appropriate notices.
I shall also recommend that without prejudice to any
party and without deciding the merits of the controversy
the complaint here be dismissed to the extent that it alleges
that Respondent unlawfully repudiated the arbitration
procedure set ,forth in the 1970 contract, but that Board
jurisdiction be retained for the purpose of entertaining an
appropriate and timely motion for further consideration
upon a proper showing that (a) the pending Section 301
proceeding before the Court of Appeals for the Sixth
Circuit has resulted in a final determination that the
relevant arbitration provisions of the 1970 contract bound
Respondent at any material time after May 22, 1974, the
date the Union requested arbitration of the Page griev-
ance; and (b) following such a determination Respondent
has failed to honor the arbitration procedure with respect
to the Page grievance or any other grievance which arose at
a relevant time.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
(c) Offer reinstatement to Kenneth Henry and make him
whole for any loss of pay he may have suffered by reason
of the discrimination against him, in the manner set forth
in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board, 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 and computing the amount of backpay
due under the terms of the Order.
(e) Post at its Nashville, Tennessee, location copies of the
attached notice, marked "Appendix." 64 Copies of said
notice on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it, for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps 'shall be taken by Respondent to
insure that the said notices are not altered, defaced, or
covered by any other material.
(0 Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
The complaint is 'hereb'y dismissed to the extent that it
alleges that Respondent violated Section 8(a)(5) and (1) of
the Act by repudiating-'the arbitration procedure set forth
in the 1970 bargaining agreement; provided, however, that
jurisdiction over this portion of the proceeding is hereby
retained for the limited purposes indicated in that portion
of the Decision herein entitled "The Remedy."
ORDER63
Respondent Newspaper Printing Corporation, Nashville,
Tennessee , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating, against
employees in regard to hire or tenure of employment,, or
any term or condition of employment, to discourage
membership in Nashville Newspaper Printing Pressmen's
Union, Local No. 50, hereinafter called the Union.
(b) Unilaterally revoking. its delegation to the Union of
authority to select and assign employees' hours of work
and job functions.
(c) Refusing to honor the grievance procedure set forth
in the January 1, 1970, collective-bargaining agreement
between Respondent and the Union.
(d) In any like or related manner interfering with the
Union's efforts to bargain collectively, or interfering with,
restraining, or coercing employees -in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
I- -
(a) Upon the Union's request, entertain the April 1974
grievance filed by Raymond Page through the joint
standing committee procedure set forth in the 1970
bargaining agreement.
(b) Honor that procedure to the extent set forth in that
portion of this Decision entitled "The Remedy."
63 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein I shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
64 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES .,
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fire any employee to discourage
membership in Nashville Newspaper Printing Press-
men's Union, Local No. 50.
WE WILL NOT unilaterally revoke our delegation to
the Union of authority to select and assign employees'
hours of work and Job functions.
WE WILL NOT refuse to honor the grievance
procedure set forth in our contract with the Union
dated January 1, 1970.
NEWSPAPER PRINTING CORPORATION 827
WE WILL offer to reinstate Kenneth Henry and make - WE WILL, on request, entertain through- that proce-
him whole , with interest, for loss of pay resulting from dure the April 1974-grievance filed by Raymond Page.
his unlawful discharge.
WE WILL honor the joint standing committee NEWSPAPER PRINTING
grievance procedure set forth in the 1970 contract , CORPORATION