Providence Journal Co.

National Labor Relations Board - Board Decisions

Jan 13, 1970

180 N.L.R.B. 669 (N.L.R.B. 1970)

PROVIDENCE JOURNAL COMPANY
Providence Journal Company and Local No. 41 of
the American Newspaper Guild, AFL-CIO. Case
I-CA-6551
January 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 31, 1969, Trial Examiner Max Rosenberg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the
General Counsel, the Respondent, and the Charging
Party filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Providence Journal
Company, Providence, Rhode Island, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified' and corrected= below.
The following sentence should be substituted for the second sentence of
fn 15 of the Trial Examiner's Recommended Order In the event that the
Board ' s Order is enforced by a judgment of the 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 "
'The first indented paragraph of the Notice to All Employees attached
to the Trial Examiner ' s Decision is corrected to read as follows
WE WILL NOT refuse to bargain with Local No 41 of the American
Newspaper Guild, AFL-CIO , as the exclusive representative of all our
employees in the appropriate unit by unilaterally instituting a system of
compensation for the sale of "two-column " advertising by classified
669
telephone ad solicitors under a rate schedule relating to payments for the
sale of siingle-column advertisements without first notifying and
consulting with the Union
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case was tried before me at Providence,
Rhode Island, on March 11, 1969, on complaint of the
General Counsel of the National Labor Relations Board
and an answer thereto filed by Providence Journal
Company, herein called the Respondent.' The issue posed
for decision is whether Respondent violated Section
8(a)(5) of the National Labor Relations Act, as amended,
by certain conduct to be detailed hereinafter. At the
hearing, the parties were afforded opportunity orally to
argue their respective causes. Briefs have been received
from the General Counsel and Respondent, which have
been duly considered
Upon consideration of the entire record in this
proceeding, including the briefs of the parties, I hereby
make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, a corporation duly organized under the
laws of the State of Rhode Island, maintains its office and
principal place of business in Providence, Rhode Island,
where it is and continuously has been engaged in the
publication, sale, and distribution of newspapers and
related products. During the annual period material to this
proceeding, Respondent has caused large quantities of
paper and newsprint used by it in the publication, sale and
distribution of newspapers, to be purchased and
transported in interstate commerce from and through
various States of the United States other than the State of
Rhode Island, and has caused substantial quantities of
newspapers to be sold and transported from its place of
business in the State of Rhode Island to other States.
During the same period, Respondent shipped newspapers
valued in excess of $50,000 directly to points located
outside the State of Rhode Island, received materials
valued in excess of $50,000 at its Providence installation
directly from points located outside of said State, and
derived in excess of $1,000,000 as revenues from the
publication, sale and distribution of newspapers.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that Local No. 41 of the
American Newspaper Guild, AFL-CIO, herein called the
Union , is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by (A) instituting a system of selling
'The complaint , which issued on February 7, 1969, is based upon charges
filed on December 5, 1968, and February 3, 1969, respectively, and served
on those respective dates
180 NLRB No. 103
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"two-column" classified newspaper advertising without
prior notification to or consultation with the Union, the
duly designated exclusive representative of its employees;
(B) unilaterally adopting and applying a schedule of
compensation for its employees engaged in the sale of
"two-column" classified advertising without first
bargaining with the Union over the establishment of the
rates for such compensation; and (C) refusing to bargain
with the Union concerning the use and the manner of
computing incentive earnings for employees who marketed
the larger advertisements. For its part, Respondent
maintains that it was statutorily free to take the action
charged against it.
B. The Evidence
This proceeding, which was submitted for decision on
the basis of a stipulation of facts and certain documentary
evidence, presents no essential issues of fact. I find them
to be as follows.
Respondent publishes a daily newspaper which carries
several pages of classified advertisements Each page
contains space for nine columns of advertising. This space
is sold to customers by Respondent's classified ad takers
and classified telephone ad solicitors. Prior to the events
which triggered this litigation, Respondent offered only
single-column advertising to the public, either in the form
of a one-column "solid"' or one-column "white space"
advertisement. As part of their compensation for thei
sales' efforts in this regard, the ad takers and solicitor;
were paid an incentive bonus for the initial appearance of
a "solid" or "white space" ad. Thereafter, solicitors
received additional compensation for the continued
carriage of these advertisements on a lineage quota basis,
but no further incentive payments were afforded.,
On or about December 12, 1967, the Board conducted
an election among a unit of all employees in the
Advertising Department and the Treasurer's office at
Respondent's publishing facility in Providence, Rhode
Island, excluding the confidential secretary to the
Treasurer, employees of other departments, guards,
professional employees, and all supervisors as defined in
the Act The Union was successful in the balloting and
obtained a Board certification as the exclusive
representative for all employees in the aforesaid unit.
Commencing in January 1968,3 the Union and
Respondent proceeded to negotiate a labor agreement
covering the certified unit of employees, including the ad
takers and telephone ad solicitors. On April 4,
Respondent submitted to the Union an "Advertising
proposal" which provided that "The Publisher will have
the exclusive right to establish bases and rates for
computing commissions and bonuses for the duration of
this Agreement." No consensus was reached by the parties
on this proposal and it was not incorporated in the
contract which the Union and Respondent ultimately
hammered out at the bargaining table.6 On March 14, the
parties for the first time exchanged written contract
proposals. At a bargaining session on May 28,
Respondent announced that, in the immediate future, it
planned to sell "two-column" classified advertisements to
its customers.' Respondent also stated that it
contemplated recompensing the ad takers and solicitors
for their "two-column" sales on the basis of the existing
or any negotiated single-column schedule. Respondent
added that, following the initial appearance of a
"two-column" advertisement containing "white space"
and the payment of an incentive bonus therefor, credit for
the sale of that space would thereafter be given toward the
ad solicitors' weekly quotas but not to incentives This
proposal drew the Union's opposition, and the Union
counter-proposed that the parties negotiate a separate
incentive program for "two-column" advertising for the
solicitors . The minutes of this meeting, which were
introduced into evidence by the General Counsel, disclose
the following colloquy between representatives of the
Union and Respondent regarding the establishment of and
payment for the "two-column" advertisement plan.
Respondent: . . . The second thing is that starting
shortly we will sell some two-column ads in help
wanted columns. I don't think there's any additional
work. It does offer the sales people an opportunity to
get more lineage.
Union- . On the two-column ads, we would have
to discuss how the lineage is to be computed. At any
rate, here are areas of change. We had a proposal on
how to handle change, and there is nothing in your
proposal on that.
Respondent: This is a routine thing. I don't know
that the workload is so onerous that it imposes any
overwork.
Union: I don't either, but these are matters you
discuss and resolve.
* * * * *
Respondent In my opinion, the change is
insignificant and will not affect the incentive operation.
Union: If you say you are going to make changes
and not negotiate them, your proposal is rejected.
* * *
Respondent- I think we've reached an area of
substantial agreement. One area of possible
misunderstanding remaining is the two column ad.
There are some being offered for sale, and some can be
sold for Sunday's Journal We have sent out notices to
advertisers and we are ready to go on it.
Union: What is the liability if you don't place the
ad?
Respondent- We have the right to refuse, but it's
very poor business to say `yes, you can buy it,' and then
,no you can't.' "
Union: The only thing I suggest is, if the proposals
are agreeable, is that we have a meeting the first thing
"'Solid" one-column advertising refers to space which contains
consecutive lines of print
"White space" advertising has reference to an ad which is laid out
without utilizing all of the purchased space for printed lines
'Under the quota system , ad solicitors were awarded a certain sum of
money if they attained the fixed quota of lineage set for the week In the
event they exceeded the weekly quota , Respondent afforded them
additional remuneration for each line sold in excess of the quota
'Unless otherwise indicated, all dates hereinafter fall in 1968
'The parties did, however, agree to the following contractual provision,
"Except as otherwise provided herein, the Publisher shall exercise the
regular and customary functions of management , including , but without
limiting the generality of the foregoing , , the right to determine in the
bargaining unit how, when, where and by whom work is to be
performed.. . .
'As the phrase implies, this type of advertising spans two of the nine
columns of advertising space which appear on the classified pages
PROVIDENCE JOURNAL COMPANY 671
tomorrow between your department representatives and
our committee.
Respondent: I'd be willing to do that, but I was
wondering if we could solve it here. Any lineage
involved in the two-column ads would go into quota
earnings.
Union: I understand from the subcommittee meeting
that it would be accompanied by a special incentive.
Respondent: As I recall, I said that two-column ad
would be fully creditable toward quotas, but nothing
about incentives.
Union:... When you place a one-column ad, do you
get credit for space, as well as lines?
Respondent: Yes. Everything is credited.
Union: So the only thing we have open is whether
this is in the category of a special incentive.
Respondent: There would be no change in rates for
one and two-column ads. The majority of this is from
local telephone calls. We sent out a rate card, but
haven't yet made an announcement on this. I've talked
with one advertiser and he is strongly contemplating
running an ad on Sunday. There would be no layout,
no different type faces, no extra work here. It would
result in more sales of space than previously.
Union: If you wanted to make this an incentive,
what would it be?
Respondent: We would think the lineage sold would
be to the employees' quotas.
* * * * *
Respondent: We had felt that the two-column ads
would benefit the company, the advertisers, and make it
easier for the classified people to meet their quotas. We
had felt it could be done with a minimum of effort after
a few days. We felt there is not room for a reasonable
incentive in that area , since it is being sold on the same
basis as single -column advertising.'
Union : Suppose you paid on each of these
two-column ads so much a line for each line sold, but
you also paid X cents a line for white space?
Respondent: Our position is the same factors that
apply to a single-column ad should apply to this.
Union: That preserves the good and the bad.
Respondent: The lineage does go to meet the lineage
quotas.
Union: The white space is a problem; the employer is
getting twice as much here, there's no typesetting, but
the employee is still getting nothing . It's twice zero. It's
wrong for single-column ads and it's twice as bad for
double columns. . . . There's a good deal of merit in
paying for white space in a two-column ad. The more
white space sold, the better off the publisher is. In
terms of two column ads for June and July only, I'm
talking about applying our incentive for them, plus the
philosophy of paying for the white space at so much per
line.
Respondent: Our feeling is that for the amount of
additional effort involved it will make the quotas easier
to reach. No foreseeable pot of gold for the company
here. In view of all your difficulties here, we will drop
the two-column ads.
It is undisputed and I find that, between May 28 and
October 17, the negotiators did not again broach the
subject of the sale of "two-column" advertisements, did
not discuss the matter of additional incentive payments to
the solicitors after the initial publication of said ads, and
did not consider thee applicability of the existing
commission schedule or any negotiated schedule regarding
single-column advertising to the sale of double-column
advertisements.
At a bargaining meeting on October 8, Respondent and
the Union agreed to continue the incentive payment plan
for ad takers which had been in existence for
"one-column" ads, except as specifically modified in the
course of the negotiations for these employees. However,
no mention was made as to any incentive emoluments for
solicitors. On October 17, the parties reached agreement
on contract terms and the document was ratified by the
Union's membership on that date.' Without prior notice
to or consultation with the Union, Respondent sold and
published its first "two-column" classified advertisements
on October 25. On the same day, Respondent commenced
to pay its ad takers and solicitors for the sale of
"two-column" ads pursuant to a commission schedule
dated October 27, which Respondent and the Union had
previously negotiated covering the sale of "one-column"
advertisements, without notifying or consulting with the
Union, and without obtaining its prior approval of the
application of the schedule rates to "two-column" sales.
On November 8, the parties executed a
collective -bargaining agreement covering the employees in
the certified unit , effective from June 1 through December
31, 1969, which contained the October 27 rate schedule.
Thereafter, on November 21, Respondent and the Union
scheduled a negotiating session for December 3. When the
meeting began, the Union raised a question as to the
disparity of earnings between the ad takers and the
solicitors which had developed under the contractual
guidelines relating to their pay, and Respondent expressed
a similar concern. Discussion then turned to the matter of
"two-column" advertisements. The Union protested that
Respondent had unilaterally instituted this type of
advertising and had unilaterally utilized the payment scale
for "one-column" ads to compensate the solicitors for
their sale of the larger copy which worked to their
economic disadvantage. The minutes of this meeting
reveal the following dialogue between the parties.
Union: . . . you are too restrictive in your treatment
of two-column ads for solicitors. The first time a
two-column ad is placed you handled it properly, but
the second time there is no white space credit given -
the ad merely counts towards lines for quotas. You
can't be restrictive this way any more, especially when
you complain about a distortion between the two
groups.
Respondent- We have tried to handle two-column ads
for solicitors the way we would before - the second
column is new the first time it is used and after that it
is just counted toward lineage for quota purposes.
Union: True. We used to treat ad takers one way,
then we agreed to new rules. With solicitors you are
still trying to use the old rules. The solution is to treat
solicitors fairly. White space incentive is part of their
plan.
Respondent: We have handled two-column ads the
same way we used to handle one-column ads.
'Pursuant to Article XVIII of the contract , classified ad takers and
telephone solicitors were guaranteed a minimum weekly salary depending
upon their years of experience In addition, provision was made for the
award of incentive payments to the ad takers different from that which had
previously prevailed However, no new incentive program was perfected for
the solicitors , although the lineage requirements for their weekly quotas
were reduced
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union You can't do the ad takers as you did before,
and you shouldn't treat the solicitors the same.
Respondent: We changed the plan for ad takers in
negotiations, but for solicitors we kept the old plan and
merely reduced the lineage quotas to 1,000 lines below
the October, 1968 quota and reduced the bonus for
making quota by $1. We could have handled the
two-column ads this way under the old plan.
Union: We objected to two-column ads without a
change in the formula during negotiations, and you
backed away from them. Now, immediately after we
have signed the contract, you put them in.
Respondent- Whether it is a one-column ad, a
two-column ad or a ten-column ad, it is still selling of
space We held off during negotiations because there
were problems.
Union- We know your position, but we didn't agree.
Then you unilaterally did what we refused to accept in
negotiations This is a refusal to bargain, in lawyers'
language. In spite of that, you should explain to your
principals why you created chaotic conditions and are
treating the solicitors unfairly.
Respondent- It is still selling space, and it is the right
of the paper to put in two-column ads.
Union It is in the absence of a collective bargaining
relationship
Union- Assume a two-column by 70" ad, how much
credit would she get?
Respondent- For a regular user for the first time it is
run, we pay space on the second column, and after that
it goes into the lineage totals
Union: . . . We have some problems which we were
going to discuss with you. One is the two-column ads
for solicitors. We ought to agree on the handling of this
situation. Another is the difference on the handling of
the ad taker plan, and we can handle this by the
grievance procedure if you wish. We have to solve the
two-column situation here [at the table] and not by the
grievance procedure.
Respondent then requested and was granted a recess in
which to caucus. Following private consultations,
Respondent returned to the bargaining table and the
meeting proceeded as follows-
Respondent- I will summarize our position in this
way the company feels it has the right to decide
unilaterally what type of ads to sell (1, 2 or 3-column).
When we went to two-column ads, we probably should
have talked to you about the incentive However, it was
to their [solicitors] benefit, and I doubt that you want
us to withdraw the payment. We feel it is fair and will
continue. The way to do away with the disparity
between ad takers and solicitors is not to come up with
another plan.
Union: Are you satisfied with the present system that
you won't negotiate on two-column ads for solicitors?
Respondent: I am not saying that we are so satisfied.
Union: Are you prepared to negotiate with us on
two-column ads for solicitors?
Respondent- There is no requirement for incentives
on two-column ads.
Union- Are you going to negotiate - we may differ
on the requirement to negotiate, but are you going to
negotiate?
Respondent: We don't choose to negotiate.
Union: You recognize that we request negotiations,
and your response is that you choose not toi
Respondent- Right
Union- There is only one agency I know of that
resolves this type of thing and that is the NLRB, and I
will recommend that we give it a chance
Respondent- Do you request us to withdraw the
incentives we are paying?
Union- No, not at this time. We request you to
negotiate
Respondent We have negotiated this morning. We
discussed the merits of it at great length.
Union- No, we haven't. The subject was not on the
agenda. The meeting was to discuss the disparity
between ad takers and solicitors and then this situation
came up.
Respondent- You tied the two subjects together. We
knew it was coming up because it had been raised
before. You told us why you wanted it changed, and we
told you why we don't want to change.
Following this discussion, the parties turned to other
issues and the meeting was then adjourned. Since October
25, Respondent has continued to sell "two-column"
advertisements and has refused to bargain with the Union
concerning the payment of added incentives to the
employees involved. These are the facts which govern
resolution of this litigation.
C. Conclusions
The General Counsel and the Union take the position
that the sale of "two-column" classified advertisements,
which Respondent unilaterally initiated on October 25,
constituted a mandatory subject of collective bargaining
because it wrought a change in the conditions of
employment for the ad takers and telephone solicitors,
and that Respondent's embarkation upon such sale,
without prior notification to or consultation with the
Union, thereby offended the provisions of Section 8(a)(5)
of the Act.' In support of this thesis, the General Counsel
asserts that the alteration in the employees' working
conditions was exemplified by the circumstance that the
advertising personnel were obligated to acquire
"Additional knowledge of different rates" and were forced
to expend "greater selling effort and the necessity of
spending more time with the buyer to sell [a] more
expensive commodity " Apart from argumentative
assertion, the General Counsel has failed to come forth
with any record support for his contention in this regard
The stipulation of facts entered into by the parties, as
well as the documentary evidence introduced into the
record, hardly demonstrate that the ad takers and
solicitors were encumbered by any additional or more
onerous duties as a result of Respondent's implementation
of its decision to sell "two-column" advertising to its
customers, or that any additional work skills were
demanded by the institution of the "two-column" format.
Indeed, the minutes of the May 28 bargaining session
disclose, as I have found, that when the Union inquired as
to how the enlarged advertising lineage was to be
computed, Respondent replied that "two-column"
'Section 8 (a)(5) provides that it shall be an unfair labor practice for an
employer to "refuse to bargain collectively with the representatives of his
employees " Collective bargaining is defined in Section 8(d) of the Act as
"the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and conditions of
employment "
PROVIDENCE JOURNAL COMPANY 673
advertising was a "routine thing" and stated that it did
not "know that the workload is so onerous that it imposes
any overwork," to which the Union responded that "I
don't either." Respondent added that "There would be no
change in rates for one and two-column ads.... There
would be no layout, no different type faces, no extra work
here. It would result in more sales of space than
previously." Finally, Respondent commented, "We had
felt that the two-column ads would benefit the company,
the advertisers, and make it easier for the classified people
to meet their quotas. We had felt it could be done with a
minimum of effort after a few days." So far as this record
stands, at no time during the bargaining session on May
28 or, for that matter, in the course of negotiations on
December 3, did the Union maintain that the sale of
increased classified advertising space had any impact,
substantial or otherwise, upon the conditions under which
the ad takers and solicitors toiled. Moreover, under the
circumstances presented herein, I am convinced that
Respondent's unilateral venture into the field of
"two-column" advertising was also sanctioned by the
clause in its contract with the Union which vested
Respondent with the management function of determining
"in the bargaining unit how, when, where and by whom
work is to be performed."
In short, I am persuaded that Respondent's decision to
expand its advertising program by vending "two-column"
advertisements was designed simply to improve its
customer-service and enhance its sales of advertising
space, and did not effect any substantial or even
discernable change in working conditions for the ad takers
and solicitors. As the Supreme Court observed in
Fibreboard Paper Products Corp v. N.L.R.B.,10
While employment security has thus properly been
recognized in various circumstances as a condition of
employment, it surely does not follow that every
decision which may affect job security is a subject of
compulsory collective bargaining. Many decisions made
by management affect the job security of employees.
Decisions concerning the volume and kind of advertising
expenditures, product design, the manner of financing,
and sales, all may bear upon the security of the
workers' jobs. Yet it is hardly conceivable that such
decisions so involve "conditions of employment" that
they must be negotiated with the employees' bargaining
representative. [Emphasis supplied.]
Accordingly, I conclude that Respondent's decision to sell
"two-column" advertising was not a mandatory subject of
collective bargaining within the purview of the Statute,
and that it was legally free unilaterally to implement that
decision on October 25.11 1 shall therefore dismiss the
complaint insofar as it alleges that Respondent violated
Section 8(a)(5) by the foregoing conduct.
Respondent's conceded failure to bargain with the
Union concerning the former's utilization of the October
27 commission schedule relating to single-column ads to
compensate the solicitors for dual-column advertisements,
as well as its refusal to negotiate over the computation of
incentive payments for those sales, presents another cup of
tea. As heretofore chronicled, the Union persistently
demanded during the course of the May 28 negotiations
that Respondent provide the ad solicitors with a special
monetary incentive for the enlarged advertisements. The
main thrust of the Union's concern when the subject of
"two-column" ads arose revolved around the issue of
"white space" payments to the solicitors In the Union's
view, the absence of a financial incentive for the expanded
advertisements which contained no printed lineage
redounded to the economic advantage of the Respondent
inasmuch as it was not obligated to compensate its
typesetters for the empty space. The Union made it clear
during the discussions on this date that it believed the
solicitors should be permitted to share in the increased
revenues which Respondent would derive from the new
program, pointing out that "The Employer is getting twice
as much here, there's no typesetting but the employee
[solicitor] is getting nothing. . . There's a good deal of
merit in paying for white space in a two-column ad. The
more white space sold, the better off the publisher is."
After reiterating its stand that Respondent did not
contemplate affording any additional bonus payments to
the solicitors, other than to phase the added lineage sold
into a credit toward the lineage quota, Respondent
abandoned the issue with the announcement that "In view
of all of your difficulties here, we will drop the
two-column ads."
It was conceded and I have found that, between May
28 and October 17, the issue of compensation for
"two-column" ads was placed at lest by Respondent.
When the Union learned that Respondent had embarked
upon the sale of such ads on October 25, despite
Respondent's earlier assurances that it would not do so,
and that Respondent had commenced to remunerate the
ad takers and solicitors pursuant to a negotiated
commission scale which applied to single-column
advertising, the Union unequivocably expressed its
opposition to this practice. At the December 3 negotiating
meeting, the Union informed Respondent that "We
objected to two-column ads without a change in the
[incentive] formula during negotiations [on May 28], and
you backed away from them. Now, immediately after we
have signed the contract, you put them in." After
repeating its protest, the Union inquired whether
Respondent would agree to bargain over the computation
of "two-column" incentive payment. While Respondent
candidly admitted that "When we went to two-column
ads, we probably should have talked to you about the
incentive," it bluntly remarked that "We don't choose to
negotiate."
The General Counsel asserts that Respondent's
selection of a commission schedule under which solicitors
were to be paid for "two-column" advertising, as well as
the computation of incentive payments for those sales,
were matters about which Respondent was required by
law to negotiate with the Union. He urges that at no time
during negotiations did the Union waive its right to
bargain thereon. Respondent seemingly does not dispute
that these items which I conclude constituted "wages"
within the ambit of Section 8(d) of the Act were subjects
for compulsory bargaining within the scope of the Statute.' 2
However, Respondent contends that, because the sale of
multiple-column advertising encompassed the same type of
work as single-column marketing, there was "no unilateral
institution of a system of payment to classified telephone
solicitors" when it employed the "one-column"
commission schedule because "The method of payment
had been in effect previously and was not changed in the
negotiations as it had been for classified ad-takers." In
this connection, Respondent also maintains that the
agreement between the parties contains no prohibition
"379 NLRB 203, 223 (concurring opinion)
" See Shell Oil Company , 166 NLRB No. 128. "See C & S Industries , Inc. 158 NLRB 454, 459
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the use of dual-column ads and hence it could
lawfully utilize existing pay schedules to compensate the
solicitors for the larger sale of space without apprising the
Union of its actions. Respondent further contends that
any obligation it might have owed to bargain with the
Union regarding incentive payments for "two -column"
ads was discharged when it met with the latter on
December 3 and discussed the merits of incentive awards.
I find no merit in either of Respondent's contentions.
In Proctor Manufacturing Corporation," the Board
concerned itself with issues not too dissimilar from those
presented herein. It there noted:
The Board's rule, applicable to negotiations during the
contract term with respect to a subject which has been
discussed in pre-contract negotiations but which has not
been specifically covered in the resulting contract, is
that the employer violates Section 8(a)(5) if, during the
contract term , he refuses to bargain or takes unilateral
action with respect to the particular subject, unless it
can be said from an evaluation of the prior negotiations
that the matter was `fully discussed' or 'consciously
explored' and that the Union 'consciously yielded' or
clearly and unmistakenly waived its interest in the
matter.
As heretofore found, the Union made it crystal clear
during the May 28 negotiations that it was opposed to the
application of any pay scale for multiple-column
advertisements which was based upon single- column rates,
pointing out that the solicitors should be entitled to
additional compensation for the sale of "white space."
Moreover, the Union demanded that the parties enter into
separate negotiations concerning the compensation of the
solicitors for "two-column" advertising, a request which
Respondent summarily rejected. At this juncture,
Respondent assured the Union that the former would
abandon any plans for publishing multiple-column
advertisements. Viewing the conceded facts in this posture,
it can hardly be said that the Union "consciously yielded"
or "unmistakenly waived" its interest in the matter of
incentive payments for solicitors prior to the execution of
the contract on November 8. Nor can it fairly be
concluded that the Union acquiesced in the application of
any existing or negotiated single-column commission
schedule to the payment of solicitors for marketing
"two-column " advertising inasmuch as Respondent,
during the May 28 negotiations, deliberately led the
Union to believe that the single-column rates would have
applicability only to the lesser-spaced ads.
Finally, I am convinced that Respondent did not
genuinely satisfy its statutory duty to bargain with the
Union over the computation of incentive awards for the
broader advertisements when the parties held their
meeting on December 3. After the Union protested that
Respondent had reneged on its May 28 promise to "drop"
multiple advertising by placing such ads on and after
October 25, and after the Union specifically requested
bargaining over incentive payments , Respondent reiterated
that it would not engage in any colloquy with the Union
regarding this issue . In fact , Respondent admitted that it
"probably should have talked to the [Union] about the
incentive " before innovating the sale of multi-column
advertisements , but once again maintained that it did not
"choose to negotiate " on the subject. In my opinion, this
is not the stuff of which good faith bargaining is made.
Accordingly, I conclude that Respondent offended the
provisions of Section 8(a)(5) of the Act when, on October
25, it unilaterally applied the negotiated schedule of
compensation for single-column advertisements to pay ad
solicitors for the sale of "two-column" advertising I
further conclude that Respondent violated that Section by
refusing to bargain with the Union on and after December
3 regarding the method and manner of computing
incentive earnings for the sale of the enlarged ads.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent set forth in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(5)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
During oral argument at the hearing, the General
Counsel and the Union were invited to state their
positions regarding the remedy which should be fashioned
in the event that the facts and the law embraced their
contentions in this litigation . In the course of argument,
both the General Counsel and the Union urged that
Respondent be ordered to cease from any further sale of
"two-column" classified advertising pending completion of
negotiations concerning incentive payments for such sales
by the ad solicitors. I have heretofore found that
Respondent was legally privileged unilaterally to institute
the sale of multiple-column ads because this subject was
not a matter for compulsory bargaining within the
meaning of the Act. Accordingly, I find no merit in this
remedial request. During argument, the Union also
requested that an order be forged directing Respondent to
reimburse the affected employees, retroactive to October
25 when the "two-column" advertisements first appeared
in its publication, for any monetary difference in incentive
payments which the parties might ultimately negotiate.
The General Counsel does not join in this remedial prayer
because, in his words, "There is no way of . . . telling how
much [the employees] would have gotten had the company
and the union negotiated about incentive plan for two
column classified ads before the company instituted it." In
light of the circumstances presented herein, I perceive no
cogent reason for departing from the Board ' s existing
policy regarding remedial orders in proceedings involving
infractions against Section 8(a)(5) of the Act, in which it
has declined to make monetary awards retroactively.10 I
shall therefore deny the Union's remedial request in this
regard."
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent , Providence Journal Company, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
" 131 NLRB 1166 , 1169 "See Hy- Vee Food Stores , Inc, 176 NLRB No 5.
PROVIDENCE JOURNAL COMPANY
2. Local No . 41 of the American Newspaper Guild,
AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. All employees in the Advertising Department and the
Treasurer ' s office employed by Respondent at its
publishing establishment in Providence , Rhode Island,
excluding the confidential secretary to the Treasurer,
employees of other departments , guards, professional
employees , and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. The aforesaid labor organization was, on December
12, 1967 and at all times thereafter , the exclusive
representative of all employees in such unit for the
purposes of collective bargaining within the meaning of
Section 9 ( a) of the Act.
5. By unilaterally instituting a system of compensation
for the sale of " two-column" advertisements by its
telephone ad solicitors pursuant to a commission schedule
relating to the sale of single-column advertising, without
prior consultation with, or notification to the Union, and
by refusing to bargain with the Union regarding the
manner of computing incentive earnings for those
employees engaged in the sale of " two-column"
advertisements , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 (a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case , and pursuant to
Section 10 (c) of the National Labor Relations Act, as
amended , I recommend that Respondent , Providence
Journal Company, Providence , Rhode Island , its officers,
agents, successors and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No. 41
of the American Newspaper Guild, AFL-CIO, as the
exclusive representative of all its employees in the
appropriate unit by unilaterally instituting a system of
compensation for the sale of "two-column" advertising by
the classified telephone ad solicitors pursuant to a rate
schedule relating to payments for the sale of single-column
advertisements , without prior consultation with, or
notification to the Union.
(b) Refusing to bargain with the aforesaid labor
organization regarding the manner of computing incentive
earnings for telephone ad solicitors in the sale of
" two-column " advertisements.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
right to self-organization , to form labor organizations, to
join or assist Local No . 41 of the American Newspaper
Guild, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement in conformity with Section 8(a)(3) of the Act,
as modified by the Labor- Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
675
(a) Upon request, bargain collectively with Local No.
41 of the American Newspaper Guild, AFL-CIO, as the
exclusive representative of all the employees in the
appropriate unit, regarding the application of
single-column rate schedules to the sale of "two-column"
advertising by the classified telephone ad solicitors.
(b) Upon request, bargain collectively with the
aforementioned labor organization regarding the manner
of computing incentive earnings for the ad solicitors
engaged in the sale of "two-column" advertising and, if an
understanding is reached, embody such understanding in a
signed agreement.
(c) Post at its publishing facility in Providence, Rhode
Island. copies of the attached notice marked "Appendix.""
Copies of said notice, to be furnished by the Regional
Director for Region 1, shall, after being duly signed by a
representative of Respondent, be posted by Respondent
immediately upon receipt thereof and maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
therewith.' 6
IT IS FURTHER RECOMMENDED that the allegations in the
complaint not herein found proven be dismissed.
"In the event that this Recommended Order be adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a formal trial before a Trial Examiner of the
National Labor Relations Board at which all sides had the
chance to present evidence, it has been found that we
violated the law and we have been ordered to post this
notice to inform our employees of their rights.
WE WILL NOT refuse to bargain with Local No. 41 of
the American Newspaper Guild, AFL-CIO, as the
exclusive representative of all our employees in the
appropriate unit by unilaterally instituting a system of
compensation for the sale of "two-column" advertising
by classified telephone ad solicitors under a rate
schedule relating to payments for the sale of
single-column advertisements without first notifying and
consulting with the Union.
WE WILL NOT refuse to bargain with the Union
regarding the manner of computing incentive earnings
for our solicitors engaged in the sale of "two-column"
advertisements. The appropriate unit is:
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees in the Advertising Department and
the Treasurer's office employed at our establishment
in Providence , Rhode Island , excluding the
confidential secretary to the Treasurer, employees of
other departments , guards, professional employees,
and all supervisors as defined in the Act.
The law gives all our employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a representative
they choose;
To act together for collective bargaining or other
mutual aid or protection; and
To refuse to do any or all of these things.
We assure you that WE WILL NOT do anything to
interfere with you in the exercise of these rights. Every
employee is free to become or remain a member of
Local No 41 of the American Newspaper Guild,
AFL-CIO, or any other union , or not to become or
remain a member of any union.
Dated By
PROVIDENCE JOURNAL
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office , 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston , Massachusetts 02203, Telephone
617-223-3300.