Gannett Rochester Newspapers

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 215 (N.L.R.B. 1995)

215
319 NLRB No. 35
GANNETT ROCHESTER NEWSPAPERS
1 As we affirm the judge’s finding that the Respondent had no past
practice of paying represented employees who miss work due to
weather conditions or legally imposed travel bans, we find it unnec-
essary to rely on the judge’s statement that, if a past practice had
existed, he could not find that the zipper clause in the Respondent’s
contract with the Guild was a waiver of the Guild’s right to bargain
regarding its elimination.
2 All dates refer to 1991 unless otherwise specified.
3 We reject as irrelevant and unsupported, the Respondent’s asser-
tion that because of the nature of its business, it was determined
early on that it was an essential service not restricted from travel.
Gannett Rochester Newspapers, a Division of Gan-
nett Co., Inc. and Newspaper Guild of Roch-
ester, Local 17 and Rochester Newspaper
Pressmen’s Union No. 36. Cases 3–CA–16218
and 3–CA–16403
September 29, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On December 21, 1992, Administrative Law Judge
Russell M. King Jr. issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, the Respondent filed a brief in answer to the
General Counsel’s exceptions, and the General Counsel
filed a reply brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 as modified and to adopt the recommended
Order as modified.
FACTS
Due to a severe ice storm, local officials banned
nonessential travel in the Rochester, New York area on
March 4, 1991.2 Severe weather conditions and travel
restrictions continued on March 5. As a result, a num-
ber of the Respondent’s employees, both represented
and nonrepresented, missed work. The employee hand-
book provided that if travel was banned by a legal au-
thority, the Respondent would pay nonrepresented em-
ployees for the work time lost. According to the hand-
book, ‘‘[f]or represented employees the provisions of
the contract, if any, will prevail.’’ The Respondent
paid most of the nonrepresented employees who
missed work on March 4 and/or 5 for those days. On
March 8, representatives of both the Guild and the
Pressmen’s Union received the following memorandum
from Hector Rodriguez, the Respondent’s director of
human relations:
In compliance with contractual agreements, for
those employees who were not at work on Mon-
day, 3/4/91, and/or Tuesday, 3/5/91, the following
will apply:
Employees may use a personal day, if avail-
able, in order to be compensated for the day.
If employees choose not to use a personal day,
they will not be compensated for the day.
Analysis
We adopt the judge’s findings that the Respondent
did not violate Section 8(a)(3) of the Act by paying
nonrepresented employees (but not represented em-
ployees) for days of work missed due to a weather
emergency. We agree with the judge, for the reasons
stated by him, that the Respondent did not have a past
practice of paying its represented employees for time
lost due to a weather emergency, and thus Respondent
did not unilaterally change any practice when it re-
fused to pay unit employees for lost worktime on
March 4 and 5.3 The judge, however, failed to address
the separate complaint allegation that the Respondent
applied the policy to the represented employees ‘‘with-
out having afforded either union an opportunity to ne-
gotiate and bargain.’’ We find, for the reasons stated
below, that the Respondent violated Section 8(a)(5)
and (1) by unilaterally promulgating and implementing
a policy requiring the Pressmen’s bargaining unit em-
ployees, who missed work on March 4 or 5, either to
take a personal day or not be compensated. For the
reasons stated below in footnote 4, however, we adopt
the judge’s dismissal of the similar 8(a)(5) allegation
involving the Guild unit.
The Respondent’s collective-bargaining agreement
with the Pressmen expired on December 31, 1990, and
the parties were in the process of negotiating a new
agreement in March 1991, when the ice storm oc-
curred. The judge found generally that the parties were
still operating under the terms of the expired contract,
although without any express extension agreement. The
expired contract did not contain any provision regard-
ing pay for time lost due to inclement weather or le-
gally imposed travel bans. The expired contract did not
provide for personal days, per se, but provided each
employee with a day off for his or her birthday and
employment anniversary date. These days could be
taken on a date other than the designated date, with the
permission of the employee’s foreman. As noted by
the judge, some employees used their birthday and/or
employment anniversary date days off to avoid the loss
of compensation in accordance with the policy an-
nounced in the Respondent’s March 8, 1991 memoran-
dum.
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer ‘‘to refuse to bargain collec-
tively with the representatives of his employees.’’ Sec-
tion 8(d) of the Act defines ‘‘to bargain collectively’’
as the mutual obligation of the employer and the union
‘‘to meet at reasonable times and to confer in good
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216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 During contract periods, a ‘‘zipper’’ clause may operate to privi-
lege a refusal to bargain on uncovered subjects for the life of the
contract. See NLRB v. Tomco Communications, 567 F.2d 871 (9th
Cir. 1978). Because the contract here had expired, we need not de-
cide whether sec. 27 of the contract was a ‘‘zipper’’ clause in this
sense of the word or constituted a waiver if the contract had contin-
ued in effect.
With respect to the Guild unit, the contract was in effect at the
time of the events. That contract contained a ‘‘zipper’’ clause in the
aforementioned sense of the word. Thus, the judge correctly dis-
missed the 8(a)(5) allegations regarding the refusal to bargain on re-
quest as to that unit.
5 The Respondent cannot successfully claim that its action was a
mere continuation of extant conditions. Although there was no prac-
tice of paying wages in weather emergencies, neither was there a
practice of not paying wages. Thus, the Respondent’s failure to pay
was not simply the continuation of a past practice.
faith with respect to wages, hours, and other terms and
conditions of employment.’’
It is clear that compensation for lost time due to a
weather emergency is an element of wages and is thus
a mandatory subject of bargaining. As noted, at the
time of the events, there was no contract in effect.
During such ‘‘non-contract’’ periods, all mandatory
subjects are, of course, subject to the duty to bargain.4
Thus, it follows that the matter of compensation in
connection with weather emergencies was subject to
the duty to bargain.
We recognize that the Pressmen never formally re-
quested bargaining on the subject. That was because,
however, the Respondent presented the Pressmen with
a fait accompli by its announcement on March 8.
Inasmuch as Respondent acted unilaterally with re-
spect to a mandatory subject, we conclude that it vio-
lated Section 8(a)(5) of the Act.5
Having found that the Respondent violated Section
8(a)(5) and (1), as described above, we shall modify
the recommended Order and notice accordingly.
AMENDED CONCLUSION OF LAW
Add the following as Conclusion of Law 2 and re-
number the last Conclusion of Law accordingly.
‘‘2. By unilaterally promulgating and implementing
a policy regarding compensation for worktime lost due
to inclement weather conditions, without giving the
Rochester Newspaper Pressmen’s Union No. 36 prior
notice and an opportunity to bargain, the Respondent
has violated Section 8(a)(5) and (1) of the Act.’’
AMENDED REMEDY
Having found that the Respondent acted unlawfully
in unilaterally promulgating and implementing a policy
regarding compensation to employees represented by
the Rochester Newspaper Pressmen’s Union No. 36 for
days missed due to inclement weather conditions, we
shall order the Respondent to restore personal days for
those unit employees who took such days in order to
avoid a loss of compensation in accordance with the
policy announced in the Respondent’s March 8, 1991
memorandum, and to make whole those unit employ-
ees who did not take personal days and who thereby
suffered a loss of compensation. We shall also order
the Respondent, on request, to bargain with the
Pressmen’s Union regarding the policy.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gan-
nett Rochester Newspapers, a Division of Gannett Co.,
Inc., Rochester, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph as 1(c).
‘‘(b) Unilaterally promulgating and implementing a
policy regarding compensation for work time lost due
to weather conditions for the bargaining unit rep-
resented by Rochester Newspaper Pressmen’s Union
No. 36, without giving the Union prior notice and an
opportunity to bargain.’’
2. Add the following as paragraphs 2(b), (c), and (d)
and reletter the subsequent paragraphs accordingly.
‘‘(b) Rescind, as to the bargaining unit represented
by the Pressmen’s Union, the policy announced in the
Respondent’s memorandum of March 8, 1991.
‘‘(c) Restore personal days for those unit employees
who took such days in order to avoid a loss of com-
pensation in accordance with the policy announced in
the Respondent’s March 8, 1991 memorandum, and
make whole those unit employees who did not take
personal days and who thereby suffered a loss of com-
pensation.
‘‘(d) On request, bargain with the Rochester News-
paper Pressmen’s Union No. 36 regarding the policy
announced in the Respondent’s memorandum of March
8, 1991.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to bargain in good faith
with the Newspaper Guild of Rochester, Local 17, by
failing or refusing to furnish it with requested informa-
tion which is relevant and necessary to the perform-
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217GANNETT ROCHESTER NEWSPAPERS
1 All dates hereinafter are 1991 unless otherwise specified.
ance of its obligations as the bargaining representative
of the appropriate bargaining unit.
WE WILL NOT fail or refuse to bargain with the
Rochester Newspaper Pressmen’s Union No. 36 by
unilaterally promulgating or implementing policies re-
lating to compensation for time lost from work due to
weather related emergencies, for members of the ap-
propriate bargaining unit, without giving the Union no-
tice and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL furnish the Newspaper Guild of Rochester,
Local 17, as the exclusive bargaining representative of
our employees in the appropriate unit, with the follow-
ing information which the Guild requested: all written
policies governing snow days and weather emer-
gencies, including all policies that existed before
March 3, 1991, and all those created subsequent to that
date, covering all of the departments in our Rochester,
New York facility.
WE WILL rescind, as to the bargaining unit rep-
resented by the Pressmen’s Union, the policy an-
nounced in the Respondent’s memorandum of March
8, 1991.
WE WILL restore to members of the bargaining unit
represented by Rochester Newspaper Pressmen’s
Union No. 36, any personal days taken in order to
avoid a loss of compensation in accordance with the
policy announced in the Respondent’s March 8, 1991
memorandum, and will make whole those unit employ-
ees who did not take personal days and who thereby
suffered a loss of compensation.
WE WILL bargain, on request, with Rochester News-
paper Pressmen’s Union No. 36, regarding the policy
announced in the memorandum of March 8, 1991, and,
if an understanding is reached, take the appropriate ac-
tion.
GANNETT ROCHESTER NEWSPAPERS, A
DIVISION OF GANNETT CO., INC.
Linda Harris Crovella, Esq., for the General Counsel.
William A. Behan, Esq., of Arlington, Virginia, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. This
case was tried in Buffalo, New York, on September 17, 18,
and 19, 1991,1 based on unfair labor practice charges filed
on April 1, by the Newspaper Guild of Rochester, Local 17
(the Guild), and on June 20, by the Rochester Newspaper
Pressmen’s Union No. 36 (the Pressmen’s Union), as amend-
ed on July 1, and a complaint issued by the Regional Direc-
tor for Region 3 of the National Labor Relations Board (the
Board), on May 9, as amended and consolidated on July 11.
The complaint alleges that Gannett Rochester Newspapers,
a Division of Gannett Co., Inc. (GRN or Respondent) vio-
lated Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) by discriminating between employees
represented by unions and those who were not so represented
in the payment of compensation for time lost due to a weath-
er emergency, by unilaterally changing a past practice re-
specting such payments, by refusing to furnish the Guild
with information relating to such past practices and policies
which was necessary and relevant to the Guild’s performance
of its statutory functions, and by refusing to negotiate with
the Guild concerning payment to employees in the Guild unit
who were unable to come to work during an officially de-
clared state of emergency. Respondent’s timely filed answer
denies the commission of any unfair labor practices.
On the entire record, including my observation of the wit-
nesses and their demeanor, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNIONS’ LABOR
ORGANIZATION STATUS
GRN, a Delaware corporation, with an office and place of
business in Rochester, New York, is engaged in the publica-
tion, circulation, and distribution of a morning and an
evening newspaper, the ‘‘Democrat and Chronicle’’ and the
‘‘Times-Union,’’ respectively. Over the course of the last 12
months, GRN has derived gross revenues in excess of
$200,000 and has held membership in interstate news serv-
ices, published nationally syndicated features, and advertised
nationally sold products. The complaint alleges, Respondent
admits, and I find and conclude that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Guild and the Pressmen’s Union are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Collective-Bargaining History
1. The Guild
Since at least November 1979, GRN has recognized the
Guild as the collective-bargaining representative of its em-
ployees in the following unit, appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All full-time employees of the news and editorial de-
partments, as described in the collective bargaining
agreement between the parties, employed at the Em-
ployer’s 55 Exchange Boulevard, Rochester, New York
facility; excluding all individuals described as exempt
in Article 1 of the collective bargaining agreement, all
managerial employees, confidential employees, guards
and supervisors as defined in the Act.
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218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Implicit in this unit is the exclusion of statutory supervisors,
managerial, and confidential employees and guards. The Employer
asserts that the following is the appropriate unit:
All web printing press employees employed by the Employer in
the pressroom at the 55 Exchange Boulevard, Rochester, New
York facility, excluding all individuals agreed by the Employer
and the Pressmen’s Union as exempt, all managerial employees,
confidential employees, guards and supervisors as defined in the
Act.
GRN and the Guild have been parties to successive (al-
though not continuous) labor agreements; the term of the
agreement pending at the time of the events ran from Sep-
tember 25, 1989, to September 24, 1992.
The Guild contract contains no express language respect-
ing pay for time lost due to inclement weather or legally im-
posed travel bans. In the most recent negotiations, neither
party had proposed such language and there was no discus-
sion of when or if employees would be paid under those con-
ditions. The contract does provide each unit member with 2
personal days to be used when and as the employee deter-
mines. That provision was a negotiated change from the prior
agreement that had provided that unit members had an addi-
tional vacation day on or around the employee’s birthday and
employment anniversary date.
The GRN-Guild contract contains the following ‘‘zipper’’
clause (art. XXV, sec. 4):
4. The contract entered into on September 25, 1989
between the [Guild] and the [newspapers] constitutes
the sole and entire agreement between the parties, and
supercedes all prior agreements, commitments, and
practices, whether oral or written between the Company
and the Union and any covered employee or employees.
No matter or matters shall be the subject of collec-
tive bargaining negotiations during the term of this
agreement, even though such matters may not have
been negotiated upon previously nor within the knowl-
edge or contemplation of either or both of the parties
hereto at the time of negotiations for this contract.
This same language, but with the date of that contract’s exe-
cution, has appeared in each of the agreements; the parties
updated this provision in the current agreement by insertion
of the new date, as proposed by GRN’s negotiator.
Other than the change in effective date, no changes in the
zipper clause had been proposed by either party. There had,
however, been discussion of that clause in the course of ne-
gotiations in connection with a proposed merger clause that
had included its own zipper language. The Guild’s negotiator
suggested that this ‘‘mini-zipper’’ was unnecessary in light
of the contractual zipper clause, quoted above, and it was
agreed that the ‘‘mini-zipper’’ clause be deleted from the
merger clause language.
Since the current agreement was executed, GRN has twice
requested that the Union bargain with it over changes in con-
tract language, notwithstanding the zipper clause. In 1989, it
requested that the Guild bargain over its proposal to modify
vacation language; in 1990, it requested negotiations on di-
rect deposit of payroll. In each case, the Guild acceded to
its request.
Wendell Van Lare, GRN’s director of labor relations, and
its chief negotiator, testified that there was a clear under-
standing that the zipper clause cut off all past practices, or
at least those that a party does not wish to maintain. It was
acknowledged, however, that certain noncontractual practices
and benefits have remained in effect for all of GRN’s em-
ployees, regardless of whether they were covered by a col-
lective-bargaining agreement. Included are such benefits as
life insurance, a stock purchase plan, and discounts on news-
paper subscriptions, classified advertising, and obituaries.
Other benefits enjoyed by the unrepresented employees, such
as a 401(k) plan or long-term disability insurance, are not
provided to the represented employees.
2. The Pressmen’s Union
Since at least 1976, GRN has recognized the Pressmen’s
Union as the collective-bargaining representative of the em-
ployees in the following unit, as described in the most recent
collective-bargaining agreement:
All web printing press employees employed in the Em-
ployer’s pressroom producing any portions of the daily
or Sunday newspapers.
Section 2(5) of that contract further provided that member-
ship in the Pressmen’s Union was optional for the day fore-
man, the night foreman, and their respective assistant fore-
men.
This unit is appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b).2
GRN and the Pressmen’s Union have had successive con-
tracts since at least 1978. The last contract expired on De-
cember 31, 1990. The parties were still operating under its
terms, although without any express extension agreement,
and were engaged in negotiations when the events of this
case transpired.
The last contract between GRN and the Pressmen’s Union
included, in section 27, the following zipper clause language:
The rights and relations of the parties hereto are cov-
ered by the terms of this Agreement and there are no
agreements or understandings past or present not set
forth herein or attached.
No proposals to amend this language were made by either
party in the current negotiations.
The expired contract did not provide for personal days.
Rather, it provided each employee with a day off for his or
her birthday and employment anniversary date, to be taken
on that date or on another day with the permission of the
foreman.
As with the Guild-represented employees, those in the
Pressmen’s unit shared some noncontractual benefits with the
nonrepresented employees but did not enjoy strict parity with
them on all benefits.
B. Relevant Policies and Practices
Respondent’s 1990 employee handbook, in effect in March
1991, contains the following inclement weather policy:
In the event that government agencies declare a snow
emergency, the company will adhere to the following:
2. All regular full time, non-represented employees
who are scheduled to work and do not work any por-
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219GANNETT ROCHESTER NEWSPAPERS
3 Rodriguez was not employed by GRN in Rochester in either
1979 or 1985.
4 Respondent’s records concerning who was paid, for what days,
and on what basis, are somewhat confused. For the purposes of this
decision, however, the conclusion stated above is both accurate and
sufficient. I note that any disparate treatment between employees
(whether represented or not) and supervisors, such as Patricia
Rissberger, is irrelevant to the issues of this case.
tion of their shift will not be paid for the unworked
shift unless a legal authority bans travel in their area
during work hours for bona fide emergencies.
Employees may not use vacation, personal or holiday
time in order to receive pay for the day. For rep-
resented employees the provisions of the contract, if
any, will prevail.
This handbook, which was distributed to the nonrep-
resented employees, also provided:
The programs and benefits described in this hand-
book may or may not apply to members of a bargaining
unit, depending on whether the union has bargained for
them. Union employees should consult their collective
bargaining agreement for programs applicable to them.
Prior to this, on January 29, 1985, the then personnel man-
ager, Chris Landauer, had issued a memorandum to various
department heads which stated GRN’s ‘‘revised policy on
snow days.’’ It stated:
If a legal authority bans travel during working hours
except for bona fide emergencies, employees will be
paid for such days.
Otherwise, employees who report to work will be
paid for the day. . . . Employees who do not (or can-
not) report to work will not be paid. Employees may
not use vacation or holiday eligibility in this case. [Em-
phasis in original.]
The department heads to whom this memorandum was di-
rected included those who supervised the pressroom and the
newsroom; under their supervision were both represented and
nonrepresented employees. The Landauer memorandum made
no distinction between those classes of employees. It was
posted in both the pressroom and the newsroom for some pe-
riod of time but had been removed long before March 1991.
According to Hector Rodriguez, GRN’s director of human
relations, the Landauer memo was a revision of the policy
that had been set forth in the 1979 edition of the supervisors
policy manual.3 That policy was essentially identical to the
1991 statement set forth above, except that it specifically
stated: ‘‘For represented employees, the specific provisions
of the union contract, if any, will prevail.’’
The 1979 policy did not mention personal days; there is
no indication whether such a benefit existed for either the
represented or unrepresented employees at that early date.
Like the Guild-represented employees, the nonrepresented
employees now have 2 personal days per year that they may
take for any purpose.
Several days prior to the issuance of the Landauer memo-
randum, Rochester had a heavy snow storm. No official ban
on travel, however, was announced. Nonetheless, at least one
employee in each of the represented units involved missed
work as a result of that storm and was paid for the day.
C. The Events of March 1991
Beginning on Sunday, March 3, Rochester experienced a
severe ice storm that continued into the late morning of
March 4. Travel was severely impacted by the ice and
downed trees and power lines. An official ban on non-
essential travel was announced.
As a result of the storm, a number of Respondent’s em-
ployees, both represented and nonrepresented, were unable to
get to work. Of the Guild-represented newsroom employees,
17 missed work on March 4 or 5 and 2 were out both days.
Four pressroom employees missed work on March 4.
On March 7, Rodriguez and David Mack, GRN’s pub-
lisher, discussed how to pay the employees who missed work
as a result of the storm. While both testified that they de-
cided to follow the policies of the 1990 handbook, Mack’s
notes indicate that, on March 8, he decided to:
stick to ’85 policy for non-rep[resented]. Pay for day
travel banned. Represented policy: Use a holiday or
vac[ation].
According to Mack, nonrepresented employees would be
compensated if they provided their managers with a reason-
able explanation for their absence. Represented employees,
however, were bound by the terms of their agreements and,
since those agreements were silent on the subject, he be-
lieved that the Employer was precluded by law from unilater-
ally conferring a new benefit upon them, i.e., paying them
for the day. He decided to permit them to use a personal day
for compensation if they so chose.
On March 8, representatives of both the Guild and the
Pressmen received the following memorandum from
Rodriguez:
In compliance with contractual agreements, for those
employees who were not at work on Monday, 3/4/91,
and/or Tuesday, 3/5/91, the following will apply:
Employees may use a personal day, if available, in
order to be compensated for the day.
If employees choose not to use a personal day, they
will not be compensated for the day.
Pursuant to that policy, the represented employees either
took personal leave or were not paid for the lost time. Non-
represented employees were, in the main, paid for their time
lost due to the storm.4
D. The Guild’s Grievance, Its Information Request, and
Bargaining Demand
On receipt of Rodriguez’ March 8 memorandum, the Guild
filed a grievance, dated March 12, protesting the denial of
compensation to Guild members unable to come to work dur-
ing the state of emergency ‘‘under the policy promulgated
unilaterally by management.’’ That grievance, filed under ar-
ticle XVII of the agreement, asked that Rodriguez contact
John Riley, the grievance chairman, particularly to explain
what ‘‘contractual provisions’’ management was relying on.
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220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The exhibit, G.C. Exh. 4, was mistakenly dated February 13.
On the same date, Guild President Steven Orr submitted
a written request for bargaining ‘‘over the company’s policy
of failing to pay employees who have been unable to come
to work during an officially declared state of emergency.’’
Orr referred to GRN’s actions as ‘‘unilateral changes in
terms and conditions of employment without benefit of col-
lective bargaining.’’
On the following day, Orr made the following information
request:5
So that the Guild can properly prosecute the griev-
ance filed yesterday, so that it can prepare for the bar-
gaining requested yesterday, and for the purposes of
general administration of the collective bargaining
agreement, please forward to us copies of all written
policies governing snow days and weather emergencies.
This request includes all policies that existed before last
week’s ice storm and those created subsequent to it,
and that cover the various departments in the building.
Rodriguez replied to Orr’s letters on March 22, asserting
‘‘that Gannett Rochester Newspapers made no unilateral
changes in terms and conditions of employment.’’ The letter
continued:
Article XXV (4) of the current collective bargaining
agreement [the zipper clause] is specific about the con-
tractual obligations of both parties. The [Guild] did not
negotiate any benefit covering emergencies, and it
would not be appropriate or legal for the Company to
unilaterally create such a benefit.
While the issue of pay during emergencies is a sub-
ject of bargaining, we decline to do so during the term
of the contract. We would be happy to take up the mat-
ter when we negotiate a successor agreement in 1992.
Your request for Company policies covering non-
bargaining unit employees in reference to this matter is
respectfully denied because you have not established
any relevance of such policies to your grievance.
The Guild made no effort to further explain to GRN why
the requested information was relevant. At the hearing, how-
ever, Orr testified that he made the request for several rea-
sons. One was that he had heard that there had been a post-
ing regarding weather emergencies in several departments; he
had no copy of that posting and sought it. Further, inasmuch
as he understood that unrepresented employees were being
treated differently, he wanted to verify whatever policy was
being applied to them. It was his intention, he claimed, to
use such information to formulate bargaining demands for
immediate and/or future use, and to muster arguments to be
used in prosecuting the grievance to show that the Guild em-
ployees were being treated unfairly.
Guild and GRN representatives met on the grievance on
March 29. Referring to the Landauer memorandum of Janu-
ary 29, 1985, Riley asked why GRN was treating its rep-
resented and nonrepresented employees differently. Rod-
riguez claimed that he had first seen the Landauer memo that
week, when Production Director Monscour referred it to him.
He had a copy of that memo with him, together with a cover
sheet which, he claimed, established that the Landauer memo
merely clarified pay policies that were in existence for non-
represented employees. Riley asked to see that cover, which
was a copy of the applicable page from the 1979 handbook.
Rodriguez refused to show it to him but read the sentence
stating: ‘‘For represented employees, the specific provisions
of the union contract, if any, will prevail.’’
In denying the Guild’s grievance, Rodriguez echoed
Mack’s assertion that it would have been illegal for GRN to
have unilaterally granted the represented employees the bene-
fit of paid leave for weather emergencies when no such ben-
efit had been negotiated.
Sometime before March 15, Pressmen’s Union’s president,
Kenneth Short, had met with Production Director Michael
Monscour to discuss the pay issue. At that meeting time,
Short gave Monscour a copy of the Landauer memorandum,
which Short had retained in union files since its posting in
1985. Purportedly, Monscour had not previously been aware
of that memorandum. Monscour rejected the Pressmen’s pay-
ment request by similarly contending that it would have been
illegal for GRN to pay the represented employees for the lost
time.
On March 15, Monscour sent Short a memorandum setting
forth the Employer’s position that the Landauer memoran-
dum was merely ‘‘an explanation of company policy for non-
bargaining unit employees.’’ Monscour referred Short to
Rodriguez’ March 8 memo explaining the procedures for
represented employees and again denied the request for pay-
ment. The 1979 policy was attached to his answer, with a
reference to the paragraph concerning union contracts.
E. Analysis
1. Existence of a practice
The starting point for any discussion is whether Respond-
ent had a practice of paying both nonrepresented and rep-
resented employees for time lost due to weather emergencies.
The record is less than crystalline on this point, in part be-
cause such occasions were rare, notwithstanding Rochester’s
frequently harsh winter weather.
Unquestionably, GRN has an established policy, dating
back to at least 1979, of compensating its nonrepresented
employees for such lost time. The 1979 supervisor’s hand-
book, the 1985 Landauer memorandum, and the 1990 em-
ployee handbook all so provide.
In January 1985, when a ‘‘blizzard’’ hit Rochester, some
employees were unable to come to work. No official travel
ban was declared. Nonetheless, at least one employee in each
of units involved was paid for the day without the necessity
of taking a day of leave. In what may have been a response
to those payments having been made in contravention of stat-
ed policy, then Personnel Manager Landauer published a
memorandum setting forth a ‘‘revised’’ policy on snow days.
That ‘‘revision’’ reasserted the position that such pay was
only to be granted when legal authority banned travel. It
made no distinction between represented and nonrepresented
employees, thus appearing to extend the policy to all em-
ployees.
The foregoing, I find, is insufficient to meet the General
Counsel’s burden of establishing a past practice. Exxon Ship-
ping Co., 291 NLRB 489, 493 (1988); Whirlpool Corp., 281
NLRB 18 (1986). Although the reference to it being a ‘‘revi-
sion’’ tends to indicate that some change in policy was in-
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221GANNETT ROCHESTER NEWSPAPERS
6 If, as it stated, that memorandum was a revision, and not merely
a restatement, of the 1979 handbook, the extension of such benefits
to the represented employees was the only substantive change made
to existing policies.
7 I would also note that if, in fact, the Landauer memorandum was
intended to extend the snow emergency policy to the represented
employees, it would potentially have been a unilateral change in vio-
lation of Sec. 8(a)(5).
8 The General Counsel’s contention that the policy should have
been applied to the members of the Pressmen’s unit because they
had no contract similarly must fall. While they had no current agree-
ment, they were continuing to work under the terms of their expired
agreement. They did not become nonrepresented and subject to the
terms of the policies for such employees merely because their con-
tract had expired.
tended, the memorandum is otherwise ambiguous.6 It neither
expressly included nor expressly excluded represented em-
ployees. See Ithaca Journal-News, Inc., 259 NLRB 394, 396
(1981), wherein the Board held that a single ambiguous
memorandum was insufficient to prove the existence of an
‘‘established past practice.’’ The distribution and posting of
this memorandum (by persons who have not been identified)
adds little inasmuch as it reached both classes of employees
and their supervisors. Similarly, the compensation of two
represented employees for lost time some 6 years earlier,
with no evidence that such payments have continued, fails to
prove the practice. These instances are ‘‘too remote in time
and too intermittent in their occurrence to demonstrate an es-
tablished practice.’’ Exxon Shipping, supra at 493.7 Argu-
ably, as those employees were compensated when there had
been no legal ban on travel, apparently in violation of exist-
ing policies, it could be contended that those payments
prompted the publication of the Landauer memorandum as a
clarification, as Rodriguez described it on March 29.
Neither can I find a practice to have existed simply be-
cause the language of the employee handbooks provides that
represented employees would enjoy the benefits provided in
their collective-bargaining agreements, ‘‘if any,’’ or that they
should consult those agreements to determine their benefits.
Contrary to the General Counsel, I do not find it implicit in
such language that, if there are no specified contractual bene-
fits, the policies applicable to the nonrepresented employees
would prevail. A more reasonable interpretation, particularly
in light of the zipper clauses in the contracts (present and ex-
pired), is that the represented employees have such benefits
only if they are set forth in their contracts.
2. Discrimination
The General Counsel contends that GRN’s failure to com-
pensate the represented employees, while paying those who
were unrepresented, for absences due to the weather emer-
gency was inherently destructive of the employees’ Section
7 rights and violative of Section 8(a)(3) under the general
language of NLRB v. Great Dane Trailers, 388 U.S. 26, 33
(1967). This argument is expressly and necessarily condi-
tioned upon the presence of an established policy to pay both
for such lost time. As I have found insufficient evidence to
establish the required practice, I shall recommend that this
allegation be dismissed.8
Moreover, even if I were to have found the practice to
have existed as suggested by the General Counsel, I would
be compelled to dismiss the 8(a)(3) charge. Adducing no evi-
dence of union animus, the General Counsel argues this alle-
gation under Great Dane, supra. The disparate treatment, it
is argued, was so ‘‘inherently destructive’’ of Section 7
rights as to require no proof of illegal motivation. The Board,
however, has considered similar cases under traditional
8(a)(3) concepts, and dismissed them where, as here, proof
of discriminatory motivation was lacking.
Thus, in Harvard Folding Box, 273 NLRB 841, 852
(1984), where the employer had provided insurance coverage
to nonrepresented employees without charge, but had charged
the represented employees for that same coverage, the Board
stated:
[I]t is well established that an employer’s grant of bene-
fits to unrepresented employees which are withheld
from represented employees does not violate Section
8(a)(3) of the Act absent proof of discriminatory mo-
tive.
Of similar import is Ithaca Journal-News, supra at 396,
where the Board noted that even if a past practice (of raising
mileage rates equally for represented and nonrepresented em-
ployees) had be established, ‘‘the evidence fails to prove that
Respondent’s motivation in discontinuing it was discrimina-
tory.’’
3. The Guild’s information request
The Guild, having filed a grievance and demanded bar-
gaining over the denial of compensation for time lost due to
the weather emergency, requested copies of Respondent’s
policies concerning snow days and weather emergencies. The
request sought all those policies which were applicable
throughout the facility. The request explained that the infor-
mation was needed in order to prosecute the grievance, pre-
pare for bargaining, and for general contract administration.
At the hearing, Orr further explained that he wanted to see
the policy statement which he believed to have been posted
and wanted to determine whether there had been disparate
treatment. He repeated his argument that the information was
necessary to process the grievance and for bargaining, then
and in the future. Respondent denied the request, claiming
that the Guild had not established relevance.
Respondent’s position cannot withstand scrutiny for sev-
eral reasons. The first is that the policies, to the extent that
they applied to the Guild members, were clearly relevant. In-
formation pertaining to the working conditions of unit em-
ployees ‘‘is presumptively relevant and must be disclosed
unless it ‘plainly appears irrelevant.’’’ Western Massachu-
setts Electric Co., 228 NLRB 607 (1977), enfd. 573 F.2d 101
(1st Cir. 1978); NLRB v. Yawman & Erbe Mfg. Co., 187
F.2d 947, 949 (2d Cir. 1951); WCCO Radio, Inc., 282 NLRB
1199 (1987), enfd. 844 F.2d 511 (8th Cir. 1988). The burden
of establishing that it is not relevant falls upon the employer.
WCCO Radio, supra. Respondent has not met this burden.
Respondent, however, argues that information pertaining to
the unrepresented employees was not relevant and therefore
its refusal to furnish such information was privileged. I dis-
agree. The Guild was clearly entitled to such information in
order to prepare for a grievance that was based on alleged
disparate treatment between the represented and nonrep-
resented employees. Associated General Contractors of Cali-
fornia, 242 NLRB 891, 893 (1979). Moreover, information
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222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Were I to reach this issue, I would be compelled to find that the
zipper clause did not evidence a clear and unmistakable waiver of
the Guild’s right to notice and bargaining concerning the elimination
of a preexisting practice. The Board has recently so held with re-
spect to these parties and this zipper clause. Gannett Rochester
Newspapers, 305 NLRB 906 (1991) enf. denied in relevant part 988
F.2d 198 (D.C. Cir. 1993). The administrative law judge therein
noted that the parties had discussed the zipper clause in connection
with the merger clause proposal; he and the Board noted that the
zipper clause remained unchanged in language from the prior agree-
ment. The Board concluded that ‘‘no event put the union on notice
that Respondent contemplated a change in the bargaining relation-
ship’’ and agreed with the judge ‘‘that the Union did not clearly and
unmistakably waive its right.’’ Neither the judge nor the Board com-
mented on the change in effective date of that clause from the prior
to the current agreement; I cannot conclude that that change was so
meaningful as to put the Guild on notice that Respondent might
eliminate existing practices.
is not irrelevant merely because it pertains to nonunit em-
ployees. A union is entitled to such information for the prep-
aration of future proposals. WCCO Radio, Inc., supra at fn.
6; Times-Herald, Inc., 237 NLRB 922 (1978). The Guild
wanted to bargain about weather emergency compensation
and what it believed to be a unilateral change in policy. Orr
professed to want it in preparation for future negotiations, as
well. Those are sufficient reasons to mandate disclosure of
benefits paid to nonunit employees. Orr adequately explained
the Guild’s purposes in seeking such information, both in his
letter and at the hearing.
The information which the Guild sought was relevant, the
Guild gave adequate explanations to establish its relevance,
and I find that Respondent’s refusal to furnish the informa-
tion violated its duty to bargain in good faith. NLRB v. Acme
Industrial, 385 U.S. 432 (1967).
4. Refusal to bargain
a. Alleged unilateral action
I have found that there was no past practice whereby GRN
paid its represented employees for time lost due to a weather
emergency. It follows that it engaged in no unilateral change
of any practice when it refused to pay unit employees such
time on March 4 and 5. Accordingly, I shall recommend that
this allegation be dismissed.
b. The refusal to meet and bargain with the Guild
GRN contends that the zipper clause contained in its
agreement with the Guild both vitiates any preexisting prac-
tice with respect to weather emergency compensation and re-
lieves it of any burden to bargain in midterm concerning
such compensation.
Whether this zipper clause would permit GRn to unilater-
ally cease following a practice respecting weather emergency
compensation is a question which need not be decided here,
as I have found no such practice to exist.9
Whether this zipper clause excuses Respondent from mid-
term bargaining with respect to such compensation where no
such practice exists, i.e., whether it may be interposed as a
shield against such a bargaining demand rather than as a
sword with which to eliminate existing noncontractual bene-
fits, is a separate question. The Board clearly answered this
question in GTE Automatic Electric, 261 NLRB 1491 (1982).
In that case, the parties’ agreement continued, without dis-
cussion, a waiver clause that had been in its successive
agreements for many years. That clause provided, inter alia:
[T]he Company and the Union, for the life of this
Agreement, each voluntarily and unqualified waives the
right to bargain collectively with respect to any subject
or matter referred to, or covered in this Agreement, or
with respect to any subject or matter not specifically re-
ferred to or covered by this Agreement even though
such subject or matter may not have been within the
knowledge or contemplation of either or both of the
parties at the time they negotiated or signed this Agree-
ment.
That language is the equivalent of the language that has con-
sistently appeared in the GRN-Guild agreements.
In its initial decision, the Board found that this clause did
not constitute a waiver of midterm bargaining as to benefits
that were neither in existence nor proposed in the negotia-
tions leading up to that agreement. On reconsideration, how-
ever, the Board expressly found that:
Respondent may rely on the waiver contained in its
contractual zipper clause [footnote omitted] . . . said
clause clearly and unequivocally covers the Union’s re-
quest to bargain concerning the implementation of a
new benefit.
The Board went on to state:
We are of the opinion that, by permitting Respondent
to invoke the zipper clause as a shield against the
Union’s midterm demand for bargaining over a new
benefit, and by giving literal effect to the parties’ waiv-
er of their bargaining rights, industrial peace and collec-
tive-bargaining stability will be promoted. [Footnote
omitted.]
GTE Automatic, supra at 1491–1492. That case stands as the
applicable precendent today. See TCI of New York, Inc., 301
NLRB 822 (1991).
General Counsel’s contention that GRN, by requesting
midterm negotiations with the Guild, has somehow waived
its right to use the zipper clause as a shield against such re-
quests by the Guild is without merit. The principle underly-
ing application of the zipper clause is that a party may not
be required to engage in midterm negotiations, not that it
may not seek, or participate, in them. Additionally, it could
certainly be argued that inasmuch as wages, holidays, and
paid leave were fully discussed in the course of the negotia-
tions, the zipper clause would stand as a waiver of rights to
midterm bargaining on a proposal for paid weather emer-
gency leave even if the tests applied by TCI of New York,
supra, and Gannett Co., supra, for bargaining over the elimi-
nation of existing benefits were to be applied here.
Accordingly, to the extent that the complaint alleges
GRN’s refusal to discuss weather emergeny compensation
with the Guild in midterm as an unlawful refusal to bargain
over a new benefit, I shall recommend that it be dismissed.
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223GANNETT ROCHESTER NEWSPAPERS
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules and
Regulations, be adopted by the Board and all objections to them
shall be deem waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. By failing and refusing to bargain in good faith with
the Newspaper Guild of Rochester, Local 17, by failing and
refusing to furnish it with requested information which was
relevant and necessary to the performance by the Guild of
its obligations as bargaining representative of Respondent’s
employees, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. Respondent has not, in any other manner alleged in the
complaint, engaged in any unfair labor practices.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Gannett Rochester Newspapers, a Divi-
sion of Gannett Co., Inc., Rochester, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
Newspaper Guild of Rochester, Local 17, by failing and re-
fusing to furnish it with requested information that was rel-
evant and necessary to the performance by the Guild of its
obligations as bargaining representative of Respondent’s em-
ployees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Newspaper Guild of Rochester, Local 17,
as the exclusive representative of all its employees in the ap-
propriate unit described here with the following information
requested by the Guild: all written policies governing snow
days and weather emergencies, including all policies that ex-
isted before March 3, 1991, and all those created subsequent
to that date, covering all of the departments in Respondent’s
facility.
(b) Post at its facility in Rochester, New York, copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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