E. W. Scripps Co.

National Labor Relations Board - Board Decisions

May 3, 1951

94 N.L.R.B. 227 (N.L.R.B. 1951)

E. W. SCRIPPS COMPANY 227
All production and maintenance employees of the Employer at its
iBirdsboro, Pennsylvania, plant, excluding office clerical employees,
guards, professional employees, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication in this
-volume.]
E. W. SCRIPPS COMPANY and CINCINNATI NEWSPAPER GUILD, LOCAL 9,
AMERICAN NEWSPAPER GUILD , CIO . Case No. 9-CA-285. May 3,
1951
Decision and Order
On January 18, 1951, Trial Examiner George A. Downing issued
his Intermediate Report 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 copy of the
-Intermediate Report attached hereto. Thereafter the Respondent
and the Union filed exceptions to the Intermediate Report and sup-
porting briefs.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modi-
fications."
1. We agree with the Trial Examiner's disposition of the alleged
supervisors,' except as to the managing editor of The Kentucky Post.
The Trial Examiner found that this managing editor is it supervisor.
The evidence is not adequate to support this finding. It is agreed that
he is not the equivalent of the managing editor on The Cincinnati
Post, who is concededly a supervisor. So far as the evidence shows,
the managing editor of The Kentucky Post acts as a supervisor only
when the editor of that newspaper is away on vacation or on sick
' The Respondent's request for oral argument is hereby denied because the record and
briefs , in our opinion , adequately present the issues and the positions of the parties
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Houston and Reynolds].
3 The Trial Examiner inadvertently found that bargaining negotiations began on Janu-
ary 7, 1950 . The record shows , and we find, that the negotiations began on January 27,
1950.
"The Salt Lake Tribune P u blishing Company , 92 NLRB 1411 . and cases cited therein
Arizona Times, Inc, 85 NLRB 230; A. S. Abell Company, 81 NLRB 82.
94 NLRB No. 55.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave. It does not show that he acts as a supervisor at other times.
Such sporadic substitution for a supervisor is not sufficient to make
an individual a supervisor within the meaning of the Act. 5 Accord-
ingly, we hereby modify the unit finding of the Trial Examiner to
the extent of including the managing editor of The Kentucky Post
in the unit. 6
2. The Trial Examiner found, as we do, that the,Respondent had
violated Section 8 (a) (5) of the Act by refusing to bargain with the
Union concerning merit increases for employees in the unit. Al-
though conceding that in some areas merit increases are a bargainable
issue, the Respondent contends that editorial personnel receiving more
than the top minimum salary provided in the collective bargaining
contract do not fall within this area, because the characteristics of
these positions and the qualifications of those who fill them are such
that merit cannot be determined by objective standards. Of necessity,
the Respondent argues, the merit of these employees "is a matter of
opinion formed by management with consideration to its fundamental
aims."
The distinction which the Respondent attempts to draw between
bargainable and nonbargainable merit increases does not find sup-
port either in the statute or in the decisions of this Board or the
courts. Merit increases are as much a part of the wage structure as
basic rates of pay. They are included within the meaning of the stat-
utory phrase "rates of pay."' Consequelitly, an employer obligated
to bargain concerning basic rates of pay for any group of employees,
must equally bargain for merit increases for the same employees. 8
That, in the opinion of the Respondent, acceptable objective standards
for awarding merit increases to its editorial employees may be diffi-
cult or perhaps impossible to achieve, does not relieve it of its statu-
tory duty to bargain on the subject. ' Perhaps the problem may not
be as impossible of solution by negotiation as the Respondent now
seems to think. In any event, it is under a statutory duty to seek such
a solution.
The Respondent also asserts that the 1950 contract alone sets forth
the rights and obligations of the parties. As the merit increase clause
in the 1950 contract was a carryover from previous contracts, when
it admittedly gave the Respondent the right unilaterally to make merit
5 Block and Kuhl Co ., 90 NLRB No 258 Compare Tennessee Coach Company , 88 NLRB
253, in which the Board held that an individual who i egularly substitutes for a supervisor
1 day out of every 6 is himself a supervisor .
The Union's majority standing is not affected by this additional inclusion in the unit.
J. H Allison Company, 70 NLRB 377 , enf'd 165 F. 2d 766 ( C. A. 6), cert . denied 335
U S 814, rehearing denied 335 U S 905
s J H Allison Company, supra
Cf Inland Steel Company v N L R B . 170 F 2d 247 (C A. 7), cert denied 336
U S 960, Tide Water Associated Oil Company , 85 NLRB 1096
E. W. SCRIPPS COMPANY 229
increases, the Respondent contends that the Trial Examiner improper-
ly resorted to parol evidence to show that the Union did not intend
in the 1950 contract to make a similar waiver.
We are dealing with a right that derives from statute and not from
contract. Although the Board has held that a union may waive cer-
tain statutory rights by genuine collective bargaining, 10 it has also
said that such a waiver will not-readily be inferred.
We are reluctant to deprive employees of any of the rights guaran-
teed them by the Act in the absence of a clear and unmistakable
showing of a waiver of such rights. 11
There is no "clear and unmistakable showing" in this case that the
Union intended to waive its right to bargain about merit increases.
On the contrary, as found by the Trial Examiner, both the Union and
the Respondent understood that the signing of the 1950 contract was
without prejudice to the litigation of the merit increase issue before
this Board. The parol evidence rule does not require nullification of
this understandii g.12
3. The Respondent contends that it was not required to furnish in-
formation about merit increases for top editorial employees because
the merit increases issue was not bargainable. A fortiori if, as we
hold, the Respondent was under a duty to bargain with the Union
about merit increases, it was obligated to furnish the requested infor-
mation so that, at the least, bargaining could be conducted on an intel-
ligent basis.,' The execution of the 1950 contract did not render moot
the Respondent's obligation to furnish this information, as main-
tained by the Respondent 14 The contract. has not foreclosed
bargaining as to merit increases, as we have found. The parties left
the issue open pending the Board's determination of the Respondent's
obligation. Therefore, the information is still needed. Moreover,
the information is certainly necessary for the negotiation of future
contracts. Accordingly, we find, as did the Trial Examiner, that by
refusing to furnish the payroll information requested by the Union,
the Respondent violated Section 8 (a) (5) of the Act 15
4. The Union has excepted to the Trial Examiner's finding that the
Respondent did not -unlawfully refuse to bargain by conditioning a
wage increase upon the signing of the 1950 agreement which incorpo-
rated the merit increases clause of the previous contract. In their
10 Shell Oil Company, 93 NLRB 161.
11 Tide Water Associated Oil Company, supra.
12 Bethlehem Steel Company , 89 NLRB 341; Restatement, Contracts , § 241 (1932).
13 General Controls Co , 88 NLRB 1341, and cases cited therein.
14 N L R B v Yamman & Erbe Mfg Co , 187 F 2d 947 (C A 2).
15 General Controls Co., supra ; N. L. R B. v. Yawman & Erbe Mfg. Co., supra; J. H.
Allison & Company, supra; Aluminum Ore Co v N. L R B , 131 F 2d 485 (C. A 7), enf'g
as modified , 39 NLRB 1286.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
many years of collective bargaining, the Respondent had never put-
into effei't a wage increase or made retroactive wage payments for the
employees represented by the Union until a contract had been signed..
Thus the Respondent's conduct in this case merely conformed to the
historical pattern. Under these circumstances, we agree with the
Trial Examiner that no refusal to bargain occurred.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations.
Board hereby orders that the Respondent, E. W. Scripps Company,
Cincinnati, Ohio, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively as to merit increases with
Cincinnati Newspaper Guild, Local 9, American Newspaper Guild,
CIO, as the exclusive representative of the employees in the appro-
priate unit.
(b) Refusing to furnish full information to the Union as to the
names, rates of pay, wage classifications, and merit increases granted
to each of the employees in the appropriate unit.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act.
'2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively as to merit increases with
Cincinnati Newspaper Guild, Local 9, American Newspaper Guild,,
CIO, as the exclusive representative of all its employees in the appro-
priate unit.
(b) Upon request, furnish to Cincinnati Newspaper Guild, Local 9,
American Newspaper Guild, CIO, full information as to the names,
rates of pay, wage classifications, and merit increases granted to each
of the employees in the appropriate unit.
(c) Post at its plants in Cincinnati, Ohio, and Covington, Kentucky,
copies of the notice attached hereto marked Appendix 16 Copies of
said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
16 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice before the words • "A Decision and Order," the words
"A Decree of the United States Court of Appeals Enforcing "
E. W. SCRIPPS COMPANY 231
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, of the steps taken
by the Respondent to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section 8
(a) (5) and (1) of the Act by conditioning the granting of a wage
increase awarded by an arbitrator upon execution of a contract which
incorporated the merit increase clause of the previous contract.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 :
WE WILL, upon request, bargain collectively as to merit in-
creases with CINCINNATI NEWSPAPER GUILD, LOCAL 9, AMERICAN
NEWSPAPER GUILD, CIO, as the exclusive representative of all
employees in the unit described herein.
WE WILL, upon request, furnish to the above-named union, full
information as to the names, rates of pay, wage classifications,
and merit increases granted to each of the employees in the
appropriate unit.
The bargaining unit is:
All employees of our editorial, advertising, business, circula-
tion, and maintenance departments involved in the operation of
The Cincinnati Post and The Kentucky Post, except for the
editor, business manager, secretaries of the above two men, man-
aging editor, advertising director, retail advertising manager,
assistant retail advertising manager, manager of general adver-
tising, classified advertising manager, advertising promotion
manager, office manager, secretary of the office manager, assistant
office manager, maintenance superintendent, circulation manager,
city circulation manager, suburban and country circulation man-
ager, assistant national advertising manager, assistant classified
advertising manager, classified advertising supervisor, assistant
classified advertising supervisor, manager of the advertising serv-
ice department, city editor, assistant city editor, news editor,
assistant news editor, sports editor, women's editor, editor of The
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kentucky Post, business manager of The Kentucky Post, and
any other supervisory employees, and guards as defined in the Act.
E. W. SCRIPPS COMPANY
Employer.
By ------------------------------
(Representative ) ( Title)
Dated------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. William A. McGowan, for the General Counsel.
Messrs. Ezra Bryan and James Garner (Baker, Hostetler & Patterson), of
Cleveland, Ohio, for the Respondent.
Mr. Rollin H. Everett, of Cincinnati, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on July 18, 1950, by Cincinnati Newspaper
Guild, Local 9, American Newspaper Guild, CIO, herein called the Union and
the Guild, the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Ninth Region (Cincinnati, Ohio) issued a complaint
dated September 12, 1950, against E. W. Scripps Company, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8
(a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint,
of said charge, and of the notice of hearing were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that the Respondent since on or about December 10, 1949, had refused to bargain
with the Union by: (a) Refusing to furnish the Union, upon request, certain
payroll information covering the employees in the unit for which the Union
was the designated representative ; (b) refusing to bargain as to merit increases ;
and (c) conditioning the granting of a wage increase awarded by an arbitrator
upon execution of a contract which incorporated the merit increase clause of
the prior contract ; and that the Respondent by its said acts also interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act.
The Respondent answered orally at the hearing and later filed a formal written
answer which superseded its oral statement of defenses. By its written answer
the Respondent denied the commission of the unfair labor practices, denied that
the alleged unit was appropriate and that the Union represented a majority
therein, and pleaded affirmatively defenses which may be summarized as fol-
lows: (a) It had furnished to the Union information sufficient for bargaining;
(b) on July 17, 1950, subsequent to the filing of the original charge [on May 10,
1950], the parties entered into a contract, thus rendering moot the question of
'The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
E. W. SCRIPPS COMPANY 233
a failure to bargain in good faith; and (c) that the unit which it had voluntarily
recognized included supervisory and professional personnel, none of whom was
properly within any unit on which the Board had jurisdiction to base a refusal
to bargain order.
Pursuant to notice a hearing was held on October 24, 25, and November 13,
1950, at Cincinnati, Ohio, before George A. Downing, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel
and the Respondent were represented by counsel and the Union by a representa-
tive. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce relevant evidence was afforded all parties. Respondent's motions
to dismiss the complaint and to strike certain paragraphs thereof were denied.
On the General Counsel's motion, the Respondent furnished particulars as to the
identity and number of the alleged supervisors and professionals in the unit.
Ruling was reserved on the General Counsel's motion to strike a portion of the
answer ; it is disposed of by the findings and conclusions herein.
At the conclusion of the hearing the General Counsel's motion was granted,
without objection, to conform the pleadings to the proof in matters not of
substance. The parties were also afforded an opportunity to make oral argu-
ment and to file briefs, proposed findings of fact, and conclusions of law. Oral
argument was waived. Briefs have been received from the General Counsel and
the Respondent and have been considered.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
E. W. Scripps Company is an Ohio corporation engaged in the publication of
daily newspapers of general circulation. Among the newspapers published by the
Respondent are The Cincinnati Post and The Kentucky Post, herein referred
to collectively as the Post. The Post is published in Cincinnati, Ohio. Re-
spondent also maintains offices in Covington, Kentucky, at which it is engaged in
the preparation of some portions of The Kentucky Post.
The average daily circulation of the Post for the 12-month period ending Oc-
tober 1, 1950, was approximately 150,000 copies, of which approximately 40,000
were distributed to or sold in the States of Kentucky and Indiana by the Respond-
ent from its place of business in Cincinnati, Ohio. In connection with the publi-
cation of the Post during its last fiscal year, the Respondent purchased raw
materials and supplies, including newsprint and printing supplies, valued at an
amount in excess of $1,000,000, of which over 75 percent was purchased at points
outside the State of Ohio, and shipped from such points to the Respondent at Cin-
cinnati, Ohio. It carries in the Post national advertising by manufacturers en-
gaged in commerce and interstate commerce throughout the United States, of an
annual average value in excess of $500,000. In connection with its publication of
the Post, the Respondent is a member of, and receives news from, and furnishes
news to, the United Press Association and the International News Organization.
It is concluded and found that the Respondent is engaged in commerce within
the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Cincinnati Newspaper Guild, Local 9, American Newspaper Guild, CIO, is a
labor organization admitting to membership employees of the Respondent.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Bargaining history
The Guild's first contract with Respondent was negotiated in 1937 for the
editorial department, and in 1938 the commercial departments were included.
There has been a continuous and relatively harmonious contractual relationship.
The wage scheme set up by the contracts has remained substantially the same,
i. e., minimum wage rates were established as a floor, with a provision for merit
increases. However, the Respondent has consistently maintained that the grant-
ing of merit increases was its sole prerogative, and recognition of that claim was
provided for in past contracts by the following clause, which was understood and
agreed by the parties to authorize the Respondent to grant merit increases with-
out consultation with the Union :
Nothing herein shall be construed to alter or modify the right of any in-
dividual to bargain for salary increases in his own behalf, but the publisher
agrees not to bargain with any individual for, or enter into any agreement
providing a salary less than required by this contract.
Pursuant to that clause and that understanding, the Respondent has acted uni-
laterally in granting all merit increases ; and it has not disclosed to the Union
the identity of employees receiving such increases nor the amounts thereof. It
has,-however, followed the practice of furnishing to the Union, shortly before
the commencement of annual negotiations, a statement of the number of em-
ployees who were paid at each salary level under each job classification set up
in the contract.'
The renewal date of the annual contracts was March 1, and negotiations
usually got under way a few weeks in advance. Prior to the negotiations for
the 1950 contract, the Union had accepted information of the foregoing type
and had not demanded more, nor had it insisted on bargaining with the Re-
spondent for merit increases. Its change of position on those matters led
directly to the situation which forms the subject matter of this proceeding.
B. Negotiations for 1950 contract
On December 6, 1949, Rollin H. Everett, executive secretary of the Union,
wrote Frederick W. Giesel, business manager of The Cincinnati Post, request-
ing "complete information as to wages, length of service, merit increases, com-
missions and any other remunerations" of "persons represented by the Guild."
On December 9, Giesel replied, "Can give you record of salaries as heretofore.
2 Such information furnished under the 1949 contract disclosed that there was a wide
spread between the minimum rates fixed by the contract and the maxima attained through
merit increases. A comparison of such rates is set out in Appendix A hereto attached.
Further comparisons reveal the following :
Forty -six out of sixty -one editorial employees received salaries in excess of the $95 top
minimum, the maximum being $ 177 85.
Eight out of seventeen local and national solicitors received salaries In excess of the
$95 top minimum , the maximum being $122.50
All five chief clerks Isere paid substantially in excess of the $76 top minimum, the
minimum salary being $86 50, the maximum $102.50, and the average $96.
Four out of seven special clerks received salaries substantially in excess of the $61 top
minimum , the maximum being $95 50.
Twelve out of fourteen senior clerks received salaries in excess of the $53 top minimum,
the maximum being $77 50.
Fifteen out of thirty-five clerks received salaries In excess of the top minimum of $45,
the maximum being $75.
Thirteen out of eighteen circulation district managers received salaries in excess of the
$76 top minimum , the maximum being $90.
E. W. SCRIPPS COMPANY 235
When do you want this, please?" By letter of December 10, Everett requested
the information "as of now" ; and on or about December 20, Respondent sub-
mitted payroll information of the same sort as furnished in the past.
Negotiations began in a conference on January 7, 1950, and were continued
in conferences on February 1, 8, 17, 23, and March 7. Subsequent conferences,
with a commissioner of the Conciliation Service present, were held on March
17, April 7, and May 5. Respondent was represented by Giesel and sometimes
also by Editor Groat. The Union was represented by Everett and by a com-
mittee.
Happenings at the conferences need be summarized only briefly. Negotia-
tions were extensive. The first meeting was devoted largely to a discussion
of management's proposals ; the second to the Union's proposals. The contract
proposed by the Union contained, as usual, provisions for a large number of
changes in the existing contract, including provisions which would have reserved
to the Guild the right to bargain on individual merit increases and which would
have required Respondent to furnish it with date of employment, classification,
experience rating, salary (including merit increases), and home address of all
employees.
The Union's position as outlined by Everett in the various meetings may
be summarized as follows : The provision as to bargaining for merit increases
was proposed not because the Union felt the old clause removed its legal rights
to bargain for merit increases but so that there would be a clear understand-
ing by management that such was not the case. The provision and the request
for information was made because of the annual difficulties experienced by
the Union in preparing for negotiations, in the actual process of collective bar-
gaining and in "policing" the contract after an agreement was reached. Al-
though both the Union and the Respondent had subscribed to the theory that
certain employees might be entitled to higher pay than others in the same
classification because of varying abilities, the Union was required to enter
into collective bargaining with no knowledge of the identity of the employees
concerned nor of the basis on which the merit increases had been arrived at
and awarded.
Furthermore, in discussions with employees during its "clinics," the Union had
found one of the greatest causes of unhappiness toward management, sometimes
toward the Union, and the whole process of collective bargaining, was that the
employees did not know what was taking place in regard to merit increases.
Although the Union felt there were perhaps misconceptions and exaggerations on
the part of the employees as to what they considered unfairness resulting from
merit increases, the Union was without adequate information to determine
whether the plan was being operated properly or equitably, nor even to enable it
to bargain intelligently for minimum rates. Everett testified that although he
did not recall specifically discussing the question of grievances, the Union was
obviously at a loss to bring a grievance without information as to merit increases.
In refusing the Union's demands, the Respondent's position was, essentially,
that the information was of a confidential nature, that the Union was calling
for matters which were the employees' own private business, and that the Respond-
ent's relationship with its employees was such that it was wrong for the Respond-
ent to disclose the information.
The foregoing contentions were renewed in the conferences with the Concilia-
tion Commissioner, but without resolving any of them. In fact, Giese] finally
stated he would be unwilling to furnish the additional information requested
unless required by law to do so.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By May 9, all major issues had been settled with the exception of wages, merit
increases , and the furnishing of informations On or about that date agreement
was reached to arbitrate the wage question, although the formal stipulation to do
so was not signed until May 22. On or about May 9, also, an understanding was
apparently reached between Everett and Giesel that the other two issues would be
determined on charges filed by the Union under the Act. Thus, on May 10 the
Union filed its original charge herein charging a refusal to bargain by a refusal
to furnish information necessary to bargain "in connection with wages, merit
increases, and other economic matters." On or about the same date Everett
typed up and submitted to Giesel the following proposed clause for inclusion in
the 1950 contract, which it was understood would be entered into after the
arbitration award was made :
The publisher agrees not to bargain with any individual for, or enter into
any agreement providing a salary less than required by this contract. The
minimum rates established herein are minimums only. There shall be added
to this contract a clause concerning merit increases and payroll information
after final disposition of Case No. 9-CA-285, filed by the Guild with the Na-
tional Labor Relations Board. [Emphasis supplied.]
Everett testified that Giesel agreed to the inclusion of the clause in the contract.
Giesel testified that he agreed only to submit it to the Respondent's attorneys.
Everett admitted that Giesel had stated that he would have to,submit "the word-
ing" to the attorneys. Although the point becomes immaterial in view of later
developments and the conclusions reached herein, it is concluded that Everett
mistakenly assumed that Giesel had agreed to inclusion of the clause as drawn.
The wage award, made on July 5, granted increases in the minimum rates;
and on July 6 Everett and Giesel met "to put the contract into shape," as
Everett testified, in accordance with the agreement which the Union felt had
been previously reached. When the merit increase clause was reached, Giesel
indicated he had not received clearance from the attorneys on the Union's pro-
posed clause above quoted. The Union also requested that payment be made
promptly of back wages due under the award since March 1 (to which date
it had been agreed the award should be retroactive), and Giesel agreed to do
so, but stated that computations could not be made by the next pay day.
On July 11, Giesel wrote Everett as follows :
Today is first chance I have had to talk to our lawyer. He is rather busy
down in N. Y.
That clause you proposed to be used relative to information on merit
raises is not acceptable to them. They believe that clause would give you
the law suit hands down. So we need to look at that again.
My conception of the whole thing is that you do not want to do away
with merit raise system as it now is but want information on each indi-
vidual raise.
Settlement of that seems simple to me-leave present clause in. If
law finally says we must give information then naturally we will obey
law. My belief is that the matter will not be settled before next March 1,
anyway.
S Everett and Giesel differed as to whether agreement had been reached on certain minor
issues It is clear from all the evidence that the parties were certainly in substantial
agreement on the minor issues and that all that remained was the reduction of that
agreement to writing, as testified by Everett
E. W. SCRIPPS COMPANY 237
Can we meet soon on this and other final clauses of contract? Want
to pay off soon as possible. `
In subsequent conferences Giesel refused to make payment of back wages un-
til a contract was agreed upon,` and refused to agree to a contract which did
not include the former merit increase clause, citing the opinion of the attorneys
that the Respondent's "case" would automatically be lost unless the old clause
were included. In finally acceding, Everett told Giesel that in signing the con-
tract the Union was doing so under duress and that it was not in any way
invalidating its rights. Everett testified that he felt the Union was being co-
-erced by the refusal of management to carry out its previous agreement and by
putting the membership in the position of not getting badly needed pay in-
,creases.
Everett and Giesel then prepared a rough draft of a new contract by inter-
lining a copy of the 1949 contract ; and they signed the rough draft on July 17,
1950, effective March 1, 1950.
On July 18 the Union filed its first amended charge herein, adding to its pre-
vious charge of a refusal to furnish information, a charge that the Respondent
had also refused to bargain as to the standards to be applied or the methods
adopted to effect merit increases, and by conditioning the granting of wage in-
crease awarded by the arbitrator upon the Union's signing and execution of a
new contract incorporating the old merit increase clause.
C. Contentions and evidence regarding the unit
The contracts had consistently covered all employees of the editorial, adver-
tising, business, circulation, and maintenance departments of the Post, with
certain exemptions of specified supervisory and confidential positions. The ex-
clusions from both the 1949 and the 1950 contracts were of 20 such positions.
In alleging an appropriate unit, the complaint followed the contract, but added
to the exclusions "any other supervisory employees, and guards as defined in
the Act."
The Respondent contended that in addition to the exemptions provided in the
contract, there were 14 other positions (hereinafter referred to) which quali-
fied as supervisory and which should be specifically excluded from the unit. It
also contended that the Board could not find the unit to be an appropriate one
because it included certain professional employees among whom no election had
been held. (See Section 9 (b).) It identified the latter as being approximately
30 in number and as consisting of all editorial employees who were paid in ex-
-cess of the top minimum salary fixed in the contract.
1. The additional supervisors
The Trial Examiner reserved ruling on the General Counsel's motion to strike
the portion of the Respondent's answer under which its contentions as to the
additional supervisors were asserted, and received evidence of the duties of said
persons. Though the number of such positions was not sufficient to affect the
Union's majority in the unit, and though it may perhaps be possible at the present
4 Everett had testified that in a telephone conversation with Giesel on July 9, Giesel
had said, "Well, my lawyers have hit the ceiling over the proposed clause, and will not let
me pay the arbitration award." Giesel denied making any such statement Giesel's
letter shows that he did not talk with the attorneys until July 11. His denials are
credited.
6 Everett admitted that historically the signing of a contract had preceded the putting
,into effect of any wage increase and the payment of any retroactive wages.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stage to avoid passing on the supervisory status of the persons in question (as
argued by the General Counsel), yet Respondent earnestly urged that the de-
termination be made and that it not be indefinitely postponed to the compliance
or contempt stages. Furthermore, it appeared from the Respondent's repre-
sentations in colloquies during the hearing that resolution of the issue might
well settle the entire controversy between the parties. Under the circumstances
the Trial Examiner feels that industrial peace may be obtained and the policies
of the Act effectuated by a determination of the positions in question, as to
which the evidence was fully developed and was not in dispute.
Assistant national advertising manager: During the absence of the national
advertising manager he has full supervisory authority over a staff of five em-
ployees. Periods of absence are for vacations, sickness, and out-of-town calls ;
and vacation periods alone amount to some 6 to 8 weeks a year. When the
manager is present the assistant has, and exercises, full discretion responsibly
to direct the employees in the department as well as authority to effectively
recommend the hiring, promotion, discharging, rewarding, etc., of such em-
ployees.
Assistant classified advertising manager: He is the assistant to the classified
advertising manager, and exercises similar authority to the assistant national
advertising manager over a staff of nine employees.
Classified advertising supervisor: She exercises full supervisory authority
over 10 to 12 employees in her department, being in full charge of them.
Assistant classified advertising supervisor: She acts for the supervisor during
her absence on vacations, during lunch periods, and on 1 day each week
(Saturday) when the supervisor is off.
Manager of the advertising service department: He exercises full supervisory
authority over nine employees, giving them approximately 99 percent of their
orders and directions.
Cashier: He is a working foreman, who exercises some direction over two
other employees. He works in a clerical capacity along with those employees
and is in charge of the receipt of money and the making of payments. The evi-
dence does not satisfactorily establish that in directing the other employees,
the cashier does so in responsible fashion, or that the exercise of authority is
other than of a merely routine or clerical nature. Neither does the evidence
establish that the cashier has authority effectively to make recommendations as
to the other employees. Thus, Giesel was unable to state that the cashier had
ever made a recommendation to hire or fire ; and he testified that although the
cashier had authority to grant leaves of absence, the only incident he knew of
where a cashier had made such a recommendation was one in which the office
manager (the cashier's superior) had actually brought the matter to Giesel for
approval.
Advertising manager of The Kentucky Post: The evidence does not establish
that he exercises supervisory authority over employees. Giesel's following tes-
timony, the only evidence on the subject, does not so establish:
Specifically, I don't know. I pay little attention to the Kentucky end.
Mr. Willenborg is business manager over there. He has under him an ad-
vertising manager and I assume that they run their affairs over there a
good deal like we do ours. I know that he does run all advertising affairs
in the absence of the business manager. [Emphasis supplied ]
City editor: He has and exercises authority responsibly to direct some 25 to
30 employees and to make effective recommendations as to them.
E. W. SCRIPPS COMPANY 239
Assistant city editor: He acts for the city editor in the absences of the latter.
These include a 3 weeks' vacation, 1 day off a week (usually Saturday), lunch
periods, illnesses, and other absences.
News editor: He exercises authority comparable to the city editor over a group
of approximately 9 to 11 employees.
Assistant news editor: He acts for the news editor in similar fashion as the
assistant city editor does for the city editor and for similar periods of time.
Sports editor: He heads a group of about five employees who are combination
writers and reporters. He has no assistants. He makes assignments to the
employees and reviews their stories for general form and content. They apply
to him for time off and he has authority to grant leave.
Women's editor: He is also called feature editor and also acts as dramatic
critic and book critic. He makes assignments to the six or seven employees on
his staff, they return their stories to him, and he reviews the material. The
employees also apply to him for time off and he has authority to grant such leave.
. Managing editor of The Kentucky Post: He acts as the assistant to the editor
of that paper over an editorial staff of 10 to 15 employees. In the editor's absence,
on vacation, sick, or other leave, the managing editor acts for the editor and is
in full charge of the staff.
It is concluded and found on the basis of the foregoing that the cashier and the
advertising manager of The Kentucky Post do not possess supervisory status,
but that the occupants of the remaining 12 positions above described are super-
visors within the meaning of Section 2 (11) of the Act.
2. The alleged professional employees
Section 2 (12) of the Act defines "professional employee" as-
(a) any employee engaged in work (i) predominantly intellectual and
varied in, character as opposed to routine mental, manual, mechanical, or
physical work ; (ii) involving the consistent exercise of discretion and judg-
ment in its performance; (iii) of such a character that the output produced
or the result accomplished cannot be standardized in relation to a given
period of time; (iv) requiring knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher learning or
a hospital, as distinguished from a general academic education or from an
apprenticeship or from training in the performance of routine mental, man-
ual, or physical processes ; or
(b) any employee, who (i) has completed the courses of specialized in-
tellectual instruction and study described in clause (iv) of paragraph (a),
and (ii) is performing related work under the supervision of a professional
person to qualify himself to become a professional employee as defined in
paragraph (a).
The Respondent offered no evidence which would establish its contention that
numbers of the employees in the editorial department were professional employ-
ees except for affirmative answers by Editor Groat to leading questions which
tracked the language of the above definition. What weight or persuasive effect
might normally be accorded such opinion evidence was dissipated by the cross-
examination from which the following facts were developed : The Respondent
in fact imposed no requirement of an academic or scholastic nature, though it
sometimes encouraged employees to supplement their education as a means of
bettering themselves for advancement. Employees were generally hired at the
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimum rates and thereafter went up through the ranks as experience warranted
and as skill developed ; and the Respondent customarily transferred or promoted
employees on that basis. Much of their work is of a routine nature and it is
necessary for all of them to meet time deadlines in getting out issues of the
newspaper.
Respondent made no attempt to establish that its editorial employees differed
from comparable employees in the newspaper industry generally. Indeed,
Groat's testimony on cross-examination showed that there was no difference ;
for as the courts have recognized, it is a matter of common knowledge "that
few newspaper employees are graduates of specialized schools of journalism,
and there are editors of long experience and trained judgment who, agreeing
that 'die proper study of mankind is man,' likewise believe that the only practical
school of journalism is the newspaper office " Sun Publishing Company v.
,Walling, 140 F. 2d 445, 449 (C. A. 6), cert den 322 U. S. 728; citing Bingay:
Detroit Free Press, August 27, October 12, 1943.
In Chesapeake & Potomac Telephone Company of Baltimore, 89 NLRB 231,
the Board rejected the view that employees qualified as professionals where
they were generally recruited from the labor force and primarily trained on
the job and where advanced education was not a prerequisite for the duties
to be performed And in two cases-Jersey Publishing Company, 76 NLRB 467;
Free Press Company, 76 NLRB 1047-the Board specifically rejected contentions
that editorial employees of newspapers were professional employees. In the
former case, the factual situation and the company's contentions were approxi-
mately identical with the Respondent's here. There the employer regarded as
professional employees those whom it considered of particular value to the
newspaper because of their experience and capabilities and who allegedly had
greater responsibilities than employees whom it regarded as nonprofessional.
Here Respondent adds an additional and arbitrary salary criterion, contending
that editorial employees who are paid above the top minimum rates set by the
contract are professionals
There is obviously no validity under the statutory definition for the latter
proposal. Thus, in Boniuit Teller, Inc., 84 NLRB 414, 424, the Board held the
salary criterion to be without significance. The employees there handled pro-
motional work and publicity and obtained free newspaper publicity, among
other duties. But the Board pointed out that there was no requirement for a
college degree and concluded, "There appears to be no justification in the record
for the Employer's contention that these employees are either professional or
confidential employees within the meaning of the amended Act."
The arbitrary and unreal basis of the Respondent's present contention is
further exposed by an analysis of the evidence Thus, as the General Counsel
points out, 46 of 61 editorial employees (75 percent) are paid above the top
minimum and would be professional employees under the Respondent's conten-
tion Seven others (11 percent) are paid at the atop minimum and could be
immediately converted by the Respondent into professionals, were its view
accepted, by the simple expedient of granting them merit increases of $1 a week.
The Board's rulings in the foregoing cases are in clear accord with the legis-
lative history of the Act,' which shows that Congress intended the definition to
6 They are also in accord with the rulings of the Wage-Hour Administrator and with
decisions of the courts passing on the Administrator 's regulations which define profes-
sional employees within an exemption under the Fair Labor Standards Act, 52 Stat. 1060,
and which are similar to the definition contained in Section 2 (12) of the present Act.
See, for example, Sun Publishing Company v Walling, supra , where the court rejected a
contention that reporters and editors were professional employees within the exemption;
and see Mabee v White Plains Publishing Company, 41 NYS 2d 534. Also see Stanger v.
E. W. SCRIPPS COMPANY 241
cover such "strictly professional " employees with "highly specialized professional
qualifications" as doctors , lawyers , scientists , engineers , architects , and nurses.
Senate Report No. 105 on S . 1126 , pp. 11, 19; House Conf. Rep. No . 510 on H. R.
3020, p. 36; Cong . Rec., Senate , p. 3952, Apr . 23, 1947. 1
It is, therefore , concluded and found that the evidence fails to establish the
Respondent ' s contention that there are , within the unit herein found to be
appropriate , any employees who qualify as professionals within the technical
definition of Section 2 (12). '
D. Concluding findings
1. The appropriate unit; representation' of a majority therein
All employees of the editorial, advertising, business, circulation, and mainte-
nance departments of the Respondent involved in the operation of The Cincin-
nati Post and The Kentucky Post, except for the editor, business manager, secre-
taries of the above two men, managing editor, advertising director, retail adver-
tising manager, assistant retail advertising manager, manager of general adver-'
tising, classified advertising manager ; advertising promotion manager, office
manager, secretary of the office manager, assistant office manager, maintenance
superintendent, circulation manager, city circulation manager, suburban and
country circulation manager, assistant national advertising manager, assistant
classified advertising manager, classified advertising supervisor, assistant classi-
fied advertising supervisor, manager of the advertising service department, city
editor, assistant city editor, news editor, assistant news editor, sports editor,
women's editor, editor of The Kentucky Post, business manager of The Kentucky
Post, managing editor of The Kentucky Post, and any other supervisory em-
ployees, and guards as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act. See Record Publishing Company, 91 NLRB No. 215, and cases there cited.
The number of employees in the unit normally varied from 215 to 240, of whom
approximately 191 were and have been members of the Union at all times since
December 10, 1949. The Union was, therefore, at all times covered by the com-
plaint, the representative for the purposes of collective bargaining of a majority
of the employees in said unit.
2. The refusal to bargain
It is now beyond dispute that an employer is under a duty to bargain with
the representative of its employees with respect to individual merit increases.
General Controls Co., 88 NLRB 1341; N. L. R. B. v. J. H. Allison and Company, 165
F. 2d 766 (C. A. 6) cert. den., 335 U. S. 814, rehearing den., 335 U. S. 905. It is
clear, however, that down to and including the 1949 contract the Union had
bargained away the right it otherwise would have had to participate in and
bargain with respect to such increases Cf. General Controls Co., supra. The
question is whether that right was likewise bargained away by the signing of
the 1950 contract.
Plainly it was not. After agreement was reached to arbitrate the minimum
wage question, the Union filed a charge to seek a determination by the Board
of the only remaining serious issues. Immediately thereafter Everett typed
V,ocafilm Corporation, 151 F. 2d 894 (C A. 2), citing "Report and Recommendations of the
Presiding Officer at Hearings Preliminary to Redefinition," Wage and Hour Division, U S
Department of Labor, October 1940, p 41, and "Manual of Newspaper Job Classifications,"
Wage and Hour and Public Contracts Division, U. S Department of Labor, April 1943.
953841-52-vol. 94 17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out and delivered to Giesel a proposed contract clause which left open the ques-
tions of merit increases and furnishing information pending the Board's decision.
Though, as found herein, Giesel did not agree to the inclusion of the exact clause
as drafted by Everett, he voiced no objection to the proposal that the questions
should be left open until adjudication by the Board on the Union's charge. That
his interest in referring the matter to the Respondent's attorneys was simply
to guard against prejudicing the Respondent's position in the contemplated
Board proceeding is clear,from his July 11 note to Everett:
That clause you proposed to be used relative to information on merit
raises is not acceptable to [the attorneys]. They believe that clause would
give you the lawsuit hands down.
But neither did Giesel intend nor suggest that the Union waive or prejudice
its own rights :
My conception of the whole thing is that you do not want to do away
with merit raise system as it now is but want information on each
individual raise.
Settlement of that seems simple to me-leave present clause in If law
finally says we must give information then naturally we will obey law
This was obviously a representation that the Union's rights were also to
be considered as reserved, without prejudice to its position in the "law suit,"
though to avoid prejudice to the Respondent's position the former clause was
to be included in the contract which both parties were anxious to sign to ex-
pedite payment of the arbitration award. Having induced the Union, in reliance
on that representation, to sign the proposed contract, the Respondent is now
estopped to assert that the Union has thereby bargained away the rights
which the Respondent had agreed were being reserved.
As the Board has repeatedly observed , it is ". . . reluctant to deprive
employees of the rights guaranteed them by the Act in the absence of a clear
and unmistakable showing of a waiver of such rights." Tide Water Associated
Oal Company, 85 NLRB 1096; The Standard Oil Company, 92 NLRB 227.
See also Inland Steel Company, Indiana Ilarbor, 77 NLRB 1, enforced, 170 F.
2d 247 (C. A. 7), cert. den. 336'U. S 960. Certainly, there is here no "clear
and unmistakable showing" that the Union had agreed to waive its rights to
bargain on merit increases, nor to receive information to which it was entitled
as the duly designated bargaining representative of the employees. Instead
the evidence is clearly to the contrary. ` _
The Respondent took the position at the hearing that merit increases were
not a bargainable issue in its case. Considerable evidence was offered to show
that the services performed by the employees were such that the evaluation
of merit was wholly a matter of the opinion of the supervisors. The Trial
Examiner orally ruled the defense to be invalid. That ruling is reaffirmed.
As found above, it is beyond dispute that merit increases are a bargainable
issue. General Controls Co., supra. The fact that merit increases constituted
so important a factor in the wage structure as possibly to be the controlling
element and that the question of merit might be a matter of opinion or judg-
ment offers no basis for creating an exception to the rule-rather it would af-
ford a fortiori reasons for applying it. The Respondent showed no relation-
ship to its employees which justified an exception. Certainly, that relationship
was not and could not be such as to overthrow the relationship between the
employees and the Union under which the Union was the statutory and exclusive
representative of the employees in all matters in respect to rates of pay, wages,
E. W. SCRIPPS COMPANY 243
hours of employment, or other conditions of employment, Section 9 (a). See
The Electric Auto-Lite Company, 89 NLRB 1192. In fact the contract expressly
recognized the Union's status as the bargaining agent for the employees in
the unit. Cf. ibid.
It is also conclusively settled that a union , which has been duly designated
and recognized as the statutory representative of employees, is entitled to
receive from the employer payroll information of the type the Union requested
here in order to enable it to bargain intelligently and to determine whether the
bargaining contract is being fairly and impartially administered. Aluminum
Ore Company, 39 NLRB 1286, enfd 131 F. 2d 485 (C. A. 7) ; J. H. Allison d
Company, 70 NLRB 377, enfd 165 F 2d 766 (C. A. 6) cert. den. 335 U. S. 905;
National Grinding Wheel Company, Inc., 75 NLRB 905; Dixie Manufacturing
Company, Inc, 79 NLRB 645; Vanette Hosiery Hills, 80 NLRB 1116; The Cin-
cinnatc Steel Casting Company, 86 NLRB 592; General Controls Co., supra;
Yawman and Erbe Manufacturing Company, 89 NLRB 881; The B. F. Goodrich
Company, 89 NL1UB 1151 ; The Electric Auto-Lite Company, supra; Montgomery
Ward d Co, Incorporated, 90 NLRB 1244. And, see Sherwin-Williams Company,
34 NLRB 651, and Southern Saddlery Company, 90 NLRB 1205.
The reasons advanced by the Union during the negotiations were in full
consonance with its statutory duties and functions Indeed, the Union's need
for such information was greater than usual because (1) it had surrendered
to the Respondent sole discretion and responsibility for the making of merit
increases and (2) no maximum wage rates were set, no system was established,
and no criteria were presciibed for the Respondent to follow. Cf. General
Cony ols Co., supra. Obviously the higher the degree of the employer's discretion
the greater a union's responsibility is, as the representative of the employees, to
obtain full information necessary to administer the contract and to protect the
employees' rights thereunder See The Electric Auto-Life Company and General
Controls Co., supra.
The Respondent's claim that the information was confidential was disposed
of by the Board and by the court of appeals in the Aluminum Ore case, supra.
See particularly the following statement by the court (131 F. 2d at 487) :
Again we do not believe that it was the intent of Congress in this legislation
that, in the collective bargaining prescribed, the union, as representative of
the employees, should be deprived of the pertinent facts constituting the
wage history of its members We can conceive of no justification for a
claim that such information is confidential. Rather it seems to go to the
very root of the facts upon which the merits were to be resolved. In
determining what employees should receive increases and in what amounts,
it could have been only helpful to have before the bargainers the wage
history of the various employees, including full information as to the work
done by the respective employees and as to their respective wages in the
past, their respective increases from time to time and all other facts bearing
upon what constituted fair wages and fair increases . -And if there be any
reasonable basis for the contention that this may have been confidential data
of the employer before the passage of the Act, it seems to us it cannot
be so held in the face of the expressed social and economic purposes of the
statute.
Upon a consideration of the entire record, it is therefore concluded and found
that the Respondent, by refusing to bargain as to merit increases and by refusing
to furnish the Union with the names, rates of pay, classifications, and merit
increases granted to the employees within the aforesaid unit, has refused to
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit, and has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
The evidence does not support the allekation that Respondent also refused to
bargain by conditioning the granting of the wage increase awarded by the arbi-
trator upon the execution of a contract which incorporated the merit increase
clause of the prior contract.
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 the Respondent described in Section I, 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 of commerce
V. THE REMEDY
It having been found that the Respondent has engaged in cei tarn unfair labor
practices, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action which the undersigned finds will ef-
fectuate the policies of the Act.
It has been found that the Respondent has refused to bargain with the Union
as the representative of its employees in an appropriate unit as to the standards
to be applied and the methods adopted to effect merit increases in wage rates
and by refusing to furnish or provide the Union with the names, rates of pay,
classifications, and merit increases gianted to the employees within the afore-
said unit. It will therefore be recommended that the Respondent, upon request,
bargain with the Union as to the standards to be applied and the methods
adopted to effect merit increases and that it supply to the Union, upon request,
information of the specified type
Because of the limited scope of the Respondent's refusal to bargain and be-
cause of the absence of any indication that danger of other unfair labor
practices is to be anticipated from the Respondent's conduct in the past, it will
not be recommended that the Respondent cease and desist from the commission
of any other unfair labor practices. General Conti ols Co, and cases there
cited.
On the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1 The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
2 All employees of the editorial, advertising, business, circulation, and
maintenance departments of the Respondent involved in the operation of The
Cincinnati Post and The Kentucky Post, except for the editor, business manager,
secretaries of the above two men, managing editor, advertising director, retail
advertising manager, assistant retail advertising manager, manager of general
advertising, classified advertising manager, advertising promotion manager,
office manager, secretary of the office manager, assistant office manager, mainte-
nance superintendent, circulation manager, city circulation manager, suburban
and country circulation manager, assistant national advertising manager, as-
sistant classified advertising manager, classified advertising supervisor, assist-
MOREHEAD CITY GARMENT COMPANY, INC. 245
ant classified advertising supervisor, manager of the advertising service depart-
ment, city editor, assistant city editor, news editor, assistant news editor, sports
editor, women's editor, editor of The Kentucky Post, business manager of The
Kentucky Post, managing editor of The Kentucky Post, and any other super-
visory employees, and guards as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
1. At all times since December 10, 1949, the Union has been and is now
the esctusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since December 10, 1949, to bargain
with the Union as to the standards to be applied or the methods adopted to
effect merit increases in wage rates, and by refusing to furnish or provide
the Union with the names, rates of pay, classifications, and merit increases
granted to each of the employees within the aforesaid unit, the Respondent has
failed and refused to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit and has thereby engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has engaged and is engaging in unfair labor practices within the mean-
ing of Section 3 (a) (1) 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 omitted from publication in this volume.]
MOREHEAD CITY GARMENT COMPANY, INC. and AMALGAMATED CLOTH-
ING WORKERS OF AMERICA , CIO. Cases Nos. 34-CA-143 and 34-
RC-150. May 3, 1951
Decision and Order
On December 21, 1950, Trial Examiner Thomas S. Wilson issued
his Intermediate Report 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 copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report,
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Murdock, and Styles].
94 NLRB No. 45.