Knight-Ridder Newspapers, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1976

222 N.L.R.B. 742 (N.L.R.B. 1976)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wichita - Eagle and Beacon Publishing Co., Inc., a
wholly-'owned subsidiary of Knight-Ridder Newspa-
pers, Inc. and Wichita Newspaper Guild. Case
17-CA--5421,
February 5, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On June 24, 1975, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceedng. Thereafter, the Respondent ,filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light' of the exceptions and brief
and has' decided not to affirm the rulings, findings,
and conclusions of the Administrative Law Judge,
but to dismiss for the following reasons:_
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) and (1) by reducing
the eligibility waiting period with respect to hospitali-
zation insurance and-by declaring an impasse in re-
gard to the issue of -maternity leave when it refused to
reopen negotiations on that clause which, among
others, had been previously agreed to.
1. On January 14, 1971, the Guild was certified as
the exclusive bargaining representative for employees
in the Respondent's news and editorial department.
After considerable preliminary correspondence be-
tween the parties, they met beginning on March 4,
1971, and continued meeting in some 47 collective-
bargaining sessions through October 1972.1 In Febru-
ary 1971, Respondent's personnel manager, Case,
wrote to the Guild, stating that inasmuch as some
time might elapse in negotiating a contract, Respon-
dent was instructing its executives to implement the
1971 salary schedule (which had become effective
December 1, 1970) for noncontract employees, in-
cluding those in the bargaining unit, unless there was
objection from the Guild. Respondent's letter went
on to state that it did not feel "any employee should
be penalized from a wage or benefit standpoint pend-
ing conclusion of negotiations." By letter dated Feb-
ruary 11, 1971, the Guild replied that it had no objec-
tion to the new salary schedule. In addition, the
1 About this time the Respondent petitioned the circuit court of appeals
for review of the Board's decision in 199 NLRB 360 (1972), which grew out
of Respondent's consistent position that two editorial writers should be ex-
cluded from the unit
Guild stated it wished to emphasize that any action
in withholding wage, or benefit increases from unit
employees where such benefits would be granted -to
other employees would be considered an unfair labor
practice by the Guild. Moreover, said the Guild, it
wished to assure all employees in the unit of their
right to "the continuation of all terms and conditions
of their employment, This includes established prac-
tices in regard to increasing salaries, as well as im-
proving benefits and. other employment terms and
conditions." The Guild went on to state that there
were some indications that employees' salaries, bene-
fits, and other terms and conditions of employment
"have been frozen or . . . suspended pending the
conclusion of negotiations" for the Guild's contract.
This, stated the Guild, "both in, the telling of it and
its practice, is in violation of labor law."
Case testified that early in the negotiations there
was discussion concerning what should be done
about increases in benefits during the course of nego-
tiations and that Ramsey (the Guild's chief negotia-
tor and later president as well) on at least two occa-
sions indicated that such benefits should continue;
that if they were granted to employees in other de-
partments and not to those represented by the Guild
such action would be considered an unfair labor
practice. One of the items discussed in negotiations
was the eligibility waiting period for company contri-
bution to Blue Cross-Blue Shield premiums. Early in
1972, at the direction of new management, Case par-
ticipated in a cost study concerning eligibility for the
Blue Cross-Blue Shield program for all noncontract
employees. As a result of that study, Respondent de-
cided to reduce the eligibility period from 5 years to
6 months for all of the noncontract employees in
three departments, including that represented by the
Guild. The Company on July 5, 1972, informed
Frank Garofalo, then president of the Guild, of the
decision, stating: "effective August 1, 1972, full time
noncontract employees who have 6 months continu-
ous service shall be eligible for company payment on
hospitalization up to the weekly limit of $10.49 for
family policies and $4.53 for single policies." On Au-
gust 21, 1972, the Guild in a bargaining session with
Respondent objected to the change.
The Administrative Law Judge concluded that the
Guild's letter of February 11, 1971, allowed only
"normally scheduled" improvements in benefits-
but that such a waiver did not apply to the reduction
in the eligibility period, and that by instituting such a
reduction Respondent violated its obligation to bar-
gain collectively. We disagree. The Guild's letter
states as to benefits for unit employees that "this in-
cludes established practices in regard to increasing
salaries, as well as improving benefits and other employ-
222 NLRB No. 117
WICHITA EAGLE AND BEACON 743
ment terms and conditions." Any doubt as to whether
the Guild's letter would encompass the decrease in
the eligibility waiting period here in question is in our
view dispelled by the testimony of Union President
and Chief Negotiator Ramsey .2 Moreover, the
Guild's last written proposal dated September 12,
1972, includes the following apparent acquiescence:
"For full-time employees, with at least six months of
employment, the publisher shall pay $10.49 per week
for family coverage and $4.53 per_ week for single
coverage on this hospitalization and medical plan."
Thus, the Guild concedes that the decrease in the
eligibility period is precisely the kind of benefit con-
templated (1) in its letter assuring employees of their
right to increased benefits notwithstanding negotia-
tions, and (2) in its Several warnings to management
that increased benefits given to other employees but
not to those represented by the Guild would be con-
sidered violations of labor law by the Guild.
In the circumstances, we find that the Respondent
did not violate Section 8(a)(5) by granting the re-
duced eligibility period to employees represented by
the Guild without negotiating concerning it.
2. The Administrative-Law Judge concluded that
Respondent violated Section 8(a)(5) of the Act by
declaring an impasse with regard to the issue of ma-
ternity leave. As noted above, the parties began face-
to-face meetings in March 1971. Prior to that, in its
initial proposal in February 1971, the Guild included
a provision for a maternity leave of absence. On July
6, 1971, the Guild's proposed maternity leave clause,
with some modifications, was agreed to by both par-
ties.'
On April 5, 1972, the Equal Employment Opportu-
nity Commission, herein referred to as EEOC, issued
guidelines on discrimination because of sex."
Thereafter, on June 21, 1972, the Guild in a letter
to Respondent suggested revisions in some 13 com-
plete contract articles already agreed to by the par-
ties in prior sessions : Among these was the maternity
2 On cross-examination , Ramsey was asked if "other benefits" would
mean to him a decrease in the eligibility period for the Blue Cross-Blue
Shield program Ramsey's response was. "Among other things, yes "
In further questioning about the relationship between the Guild's letter of
February Il and the reduction in the eligibility period for all noncontract
employees, Ramsey was asked.
Q We are in agreement, are we not, that the very kind of benefits
that is reflected by that exhibit [the reduction in the eligibility period
mentioned in the July 5 letter] would certainly commonly be under-
stood as being the kind of benefit referred to in Mr Garofalo's letter of
February I1 to Case9
A. The benefit in addition to salary, yes, sir
3 The maternity leave provision is found in proposed art. XV, sec 4(a) It
reads in pertinent part . "Maternity Leave of at least 6 months shall be
granted upon request to employees with at least 12 months of continuous
service No employee shall be required to take a leave of absence , nor shall
there be any penalty for pregnancy "
4 The EEOC guidelines are published at 29 CFR Sec. 1604.1-1604 10.
leave provision, which was mentioned in the con-
cluding sentence of the letter as follows: "We note
that because of the Equal Employment Opportuni-
ties' Commission ruling on pregnancy our agreement
in Article XV Section 4(a) might not be consonant with
that ruling." (Emphasis supplied.) In a written re-
sponse to the Guild's letter, the Respondent -stated
that it had examined all of the articles in detail and,
while the Union was possibly attempting to clarify
some of the language, "we do not believe it is advisa-
ble to attempt to improve upon terms, once they
have been agreed upon at the bargaining table."
The General Counsel had filed no brief to the
Board but in its brief to the Administrative, Law
Judge contended that Respondent by its letter and
by declining to reopen the maternity leave clause at
the August 21, 1972, bargaining session,' "in effect
agreed that the tentatively agreed to maternity leave
provisions apparently violated the EEOC guidelines
but said it would not bargain further concerning
these provisions and would abide by whatever results
the courts reached in the various litigation involving
the guidelines." Respondent asserts that it has
throughout the controversy held the firm belief that
the clause in issue does not contravene the EEOC
guidelines, and emphasizes that its counsel stated at
the August 21 meeting that if pending court cases on
the general subject resulted in any question as to the
validity of the maternity leave provision such rulings
would be followed. It further contends that its refusal
to reopen this clause among others already agreed to
does not constitute an admission of the illegality of
the clause as implied by the Administrative Law
Judge, nor does it force the Union into a position of
breaching its duty of fair representation by accepting
the clause. It urges that good-faith negotiating is not
tested by the accuracy of legal opinion, and parties
are not required to negotiate concernmg,questions of
law.
In finding that Respondent violated . Section
8(a)(5) of the Act by refusing to reopen negotiations
on the maternity leave clause, the Administrative
5 No contention has been made that Respondent's refusal to reopen other
articles referred to in the Guild 's letter was unlawful, or that the apparent
impasse that has existed as to other issues (e g , salaries, retirement, a no-
strike clause , management rights clause) was in any way violative of the Act
Counsel for the General Counsel offered the stipulation agreed ' to at the
hearing that "Respondent and the Union have been at impasse in collective
bargaining negotiations concerning about eight issues, including a clause
involving maternity leave .. ." and that "on June .21, 1972, the Union
asked the Respondent to renegotiate the clause involving maternity leave
because the Union believed it to be unlawful." Also at issue was
Respondent's contention that two editorial writers were improperly includ-
ed in the unit by the Board The Board subsequently found that Respondent
violated Sec 8(a)(3) and (1) of the Act by transferring editorial writer Wood
199 NLRB 360 (1972) The Tenth Circuit vacated the Board 's Order, view-
ing the Board's decision as infringing on Respondent's freedom to de-
termine the content of its editorial voice, 480 Fd.2d 52 (1973), cert. denied
416 U S 982 (1974)
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge apparently assumed that the clause is in
fact illegal under EEOC guidelines. However, neither
the actual legality of the clause in question nor the
manner in which it may allegedly conflict with the
EEOC guidelines was litigated at the hearing or dis-
cussed by the Administrative Law Judge.
Before the Respondent can be held to have violat-
ed the Act by insisting to impasse upon an illegal
clause, there must be a showing that the clause vio-
lates the law, either on its face or in its application.
No attempt at such showing has been made on the
record before us. We are not prepared to say, on this
record, that the clause at issue is illegal as a matter of
law. Nor are we prepared to speculate as to possible
conflict between this clause and other provisions for
leaves of absence which may have been agreed to by
the parties, or exist as a matter of employer practice.
Thus' we conclude that the General Counsel has
not met the burden of proof required to sustain a
finding that Respondent violated the Act by refusing
to renegotiate the maternity leave provision.
In view of our findings with respect to both issues
herein, we shall dismiss.'
ORDER
tions with the Union on a clause involving maternity leave
for employees in the appropriate unit, which clause violates
the guidelines promulgated by the Equal Employment
Commission, herein called the EEOC, involving employ-
ment policy relating to pregnancy and childbirth. Such
conduct, the complaint alleged, was violative of Section
8(a)(1) and (5) of the Act. In its answer, the Respondent
stated that the plan referred to in the complaint "was for
the benefit of employees" in three of Respondent's depart-
ments, including the news and editorial department; and
that the Respondent and the Union had agreed at the out-
set of their negotiations that the Respondent "would not
withhold benefits from the news and editorial employees
represented by the union if such benefits would have been
granted by respondent in the absence of collective-bargain-
ing negotiations; and, further, that Respondent would have
breached such agreement and would probably would have
been subject to claims by the Union that Respondent
would have violated Section 8(a)(3) and Section 8(a)(5) of
the Act, if Respondent had reduced for other employees
the eligibility requirements for participation in such plan,
while withholding the benefits of such reduction from em-
ployees in the news and editorial department."
Upon the entire record in the case, and from my obser-
vation of the witnesses as they testified and careful consid-
eration of the memoranda filed with me on May 21, by
counsel for the General Counsel, the Guild, and the Re-
spondent, I make the following:2
It is hereby ordered that the complaint shall be,
and it hereby is, dismissed in its entirety.
6 In view of our disposition herein, we find it unnecessary to reach other
questions raised by Respondent's exceptions to the Administrative Law
Judge's Decision
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: A hearing
in this case was held before me on April 1 and 2, in Wichi-
ta, Kansas, based upon charges filed November 24, 1972,
by Wichita Newspaper Guild, herein called the Guild or
the Union, which were amended on March 1, 1973. The
complaint and notice of hearing were issued under date of
December 31, 1974; at the hearing, the complaint was
amended in certain respects. The Wichita Eagle and Bea-
con Publishing Co., Inc., a wholly-owned subsidiary of
Knight-Ridder Newspapers, Inc.,' herein the Respondent,
filed its answer under date of January 7, 1975. Briefly stat-
ed, the complaint alleged that the Respondent had refused
to bargain in good faith with the Guild, which was the
certified exclusive representative of a unit consisting of the
Respondent's news and editorial employees, thereby violat-
ing Section 8(a)(1) and (5) of the Act. The complaint al-
leged that since on or about June 21, 1972, the Respondent
had insisted to impasse in collective-bargaining negotia-
i The name of the Respondent appears as amended at the hearing
FINDINGS OF FACT
I. JURISDICTION-
The Respondent is a corporation engaged in the publica-
tion, sale, and distribution of daily newspapers from its
main office and principal place of business in Wichita. It is
a member of and/or subscribes to interstate news services,
including United Press International, and publishes na-
tionally syndicated features and advertises products sold
nationally. It is admitted and I find that the Respondent's
operations come within the jurisdictional standards of the
Board and that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. It is
also admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The parties agree and I find that all employees of the
news and editorial department of the Respondent em-
ployed at Wichita, Hutchinson, and Topeka, Kansas, ex-
cluding editorial writers, professional employees, guards,
and supervisors as defined in the Act, and all other em-
ployees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. At all times material, there have been between 120
to 140 employees in the unit. On January 14, 1971, the
Guild, following an election conducted by the Regional
2 The unopposed motion of counsel for the General Counsel to correct
the transcript in certain respects is hereby granted
WICHITA EAGLE AND BEACON 745
Director for Region 17, was certified as the exclusive repre-
sentative of Respondent's employees in the foregoing ap-
propriate unit. Beginning on March 4, 1971, and continu-
ing through October 2, 1972, the parties met some 47 times
in collective-bargaining sessions . The chief negotiator for
the Guild was Richard Ramsey, executive secretary of the
Guild's contract committee. Assisting him were a number
of employees, including Frank Garofalo and Delores Quin-
lisk. The Respondent was represented by Glen Cummins,
Gerrit Wormhoudt, and Eldon Case.
A. Background
Under date of February 8, 1971, Case, the Respondent's
personnel manager, wrote to the Guild stating that, inas-
much as "some time may elapse in negotiating a contract,"
the Respondent was instructing its executives in the news
department "to implement the 1971 salary schedule, which
became effective last December 1, for those in the bargain-
ing unit unless there is an objection from the Guild," as it
did not feel "that any employees should be penalized from
a wage or benefit standpoint pending conclusion of negoti-
ations." In a letter of February 11, the Guild replied that it
had "no objection" to the implementation of the new sal-
ary schedule. It went on to state that the new schedule
"will provide for general increases to all news and editorial
department employees as of that date" and "will eliminate
existing discrimination in pay for, by way of example,
women's reporters." In addition, the Guild stated, with re-
spect to the Respondent's reference to not desiring to pe-
nalize any employees, that it wished to emphasize "that
any such action on the part of the company would be a
clear violation of labor law" and that it would assure all
employees in the unit of their right "to the continuation of
all terms and conditions of their employment" including
"established practices in regard to increasing salaries, as
well as improving benefits and other employment terms
and conditions." The Guild went on to state that execu-
tives and supervisors in the news department "be informed
of these facts in order to squelch some of their false reports
to the contrary, and in violation of labor law," stating that
some executives "have indicated or said outright that em-
ploye salaries, benefits and other terms and conditions of
employment have been frozen or even, in the matter of
some benefits and conditions of employment, suspended
pending conclusion of negotiations for the Guild contract."
It observed that such conduct "both in the telling of it and
in its practice, is in violation of labor law." Finally, the
Guild stated that its agreement "to implement the new
schedule in no way will remove the matter of salaries from
our forthcoming negotiations." In reply, the Respondent
by letter dated February 16, stated that it interpreted the
Guild's February 11 letter as meaning that the Guild "has
no objection to our continuing, on the basis of past practic-
es, work schedule implementation for employes covered by
the bargaining unit." With respect to the Guild's statement
about penalizing bargaining unit employees, the Respon-
dent stated that it "has abided by all labor law regulations
and will continue to do so and it does not intend to dignify
with a specific response the unfounded allegations in your
letter," nor did it "intend to jeopardize its bargaining posi-
tion by providing information that is not required by law."
It enclosed copies of the 1970 and 1971 salary schedules
together with a document explaining "how the program is
implemented," and stated that each change "will be made
on an individual basis and we will advise weekly of the
changes effected."
Following the foregoing exchange of correspondence,
the Respondent made a number of unilateral changes in
conditions of employment. In a memorandum dated
March 19, 1971, Bettie Magruder, a supervisor in a subde-
partment of the news and editorial department, notified
women staff employees that the Respondent had decided
to grant employees in that subdepartment a day off on
their birthdays. The Respondent also continued to grant
merit increases from time to time during the course of ne-
gotiations, without prior consultation with the Guild. For
the Respondent, Case testified that early in the negotia-
tions there was some discussion concerning what should be
done about increased benefits during the course of negotia-
tions and that, on at least two occasions, Ramsey, for the
Guild, indicated to the Respondent that such benefits
should continue, stating that if benefits were granted em-
ployees in other departments, and not to the employees
represented by the Guild, such action would be an unfair
labor practice.
B. Change in Hospitalization Waiting Period
In a memorandum to newsroom employees, dated De-
cember 31, 1970, John Colburn, the Respondent's editor
and publisher, advised the employees that in the future the
Respondent would pay any increases in the Respondent's
group health and hospitalization plan. At the bargaining
session on March 11, 1971, the Respondent stated that its
policy was to require employment for a period of 60
months before the Respondent would pay the hospitaliza-
tion premium for the low-option plan, or its equivalent to-
wards the high-option plan. It appears that in July 1971 the
Respondent announced that, effective August 1, 1971, it
would pay only a set amount, rather than the full cost,
including increases in the premium, toward the employees'
health insurance. The Guild had not been notified of this
change,prior to the time it was made. At the bargaining
session on September 20, Ramsey on behalf of the Guild
objected to this unilateral change, stating that it was in
derogation of the obligation of the Respondent to bargain
with the Guild. At a bargaining session on January 10,
1972, the Guild expressed the view that it felt the 5-year
waiting period was unduly long and proposed that an eligi-
bility period of 30 to 60 days be substituted. However, the
Respondent did not agree to this proposed change, stating
that any movement with respect to health insurance was
interrelated with all other economic issues that were yet to
be resolved in the contract.
When the parties met on May 30, they discussed when
they would next meet in view of conflicts in future engage-
ments. They concluded that they would meet late in Au-
gust and then set a date.
Early in 1972, so Case testified, he participated in a cost
study at the direction of management concerning the
length of the eligibility period for participation in the Blue
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross-Blue Shield program for noncontract employees, and
later presented the results to management. Under date of
July -5, Case wrote to the Union, advising that, effective
August 1, 1972, "Full-time non-contract employes who
have six months continuous service shall be eligible for
company payment on hospitalization up to the weekly limit
of $10.49 for family policies and $4.53 for single policies."
Case testified that he received no response to this letter
from the Guild. Case admitted that the Respondent did
increase wages unilaterally and that management did not
regard that, or the -reduction in the eligibility period for
Blue Cross-Blue Shield, as "a departure from any other
procedure of notification." Asked whether it was the posi-
tion of the Respondent that, in the absence of a union
contract for a particular unit of employees, the Respondent
could change benefits without first notifying the Guild and
giving it an opportunity to bargain, Case replied that that
"was the agreement that was made early in the bargaining
sessions , early in the negotiating sessions ." He further testi-
fied that the cost studies regarding Blue Cross-Blue Shield
were made because "there was a pending increase .. .
which we felt would be burdensome on our non-contract
employes." He elaborated by stating that it was anticipated
that because of the Respondent's experience factor there
would be an increase in the total premium on the August 1
anniversary date. Case testified that, as best as he could
recall , the Respondent had not, prior to the institution of
the change in August, discussed the matter or made that
specific offer to the Guild; in this regard, Union Represen-
tative Ramsey testified that, prior to the receipt of the July
5 letter, there had been no discussion between the parties
concerning these changes. According to Ramsey, there had
been "no agreement that 30 daysor 60 days waiting period
was acceptable nor did the Company propose as accept-
able a waiting period different than its then current five-
year waiting period or service eligibility requirement for
company payment."
When the parties next met on August 21, the Guild ob-
jected to the foregoing unilateral change, to which Worm-
houdt, the Respondent's principal negotiator, stated that
management considered the modification of the health in-
surance service eligibility requirement to be such a signifi-
cant additional benefit that the Respondent was unwilling
to grant any additional economic concessions. Ramsey tes-
tified that during the August 21 meeting Wormhoudt, on
behalf of the Respondent, stated that the Respondent
"could not alter any of its economic proposals because of
the substantial increase granted as a result of its health
insurance change" and, at the August 28 meeting at the
offices of the Federal Mediation and Conciliation Service,
Wormhoudt again, according to Ramsey, "said that the
Company could not make any changes in other economic
items within its contract proposals because of'the change in
the health insurance." Following the August 28 meeting,
there were no further joint sessions. Ramsey testified that
at a September 11 bargaining session the mediator stated
there was no change in the Respondent's position.
C: Maternity Leave Provisions -
The proposed contract submitted by the Guild under
date of February 17, 1971, contained a provision stating
that maternity leave "of at least 6 months shall be granted
upon request, with pay for at least 4 weeks. No employe
shall be required to take a leave of absence, nor shall an
employe's fob duties or working conditions be altered with-
out her consent, on account of pregnancy; nor shall there
be any penalty for pregnancy." Ramsey testified that, at
the March 11, 1971, bargaining session , the Respondent's
representatives stated that the Respondent was not op-
posed to maternity leave, as such, but it was opposed to
paying for it. With regard to the provision of the Union's
proposal on this subject that an employee shall not be re-
quired to take maternity leave, Ramsey testified that Re-
spondent took the position that at times it might be advisa-
ble for health reasons for an employee to take a leave of
absence by reason of pregnancy. According to Ramsey,
Case "said there comes a time when a pregnant woman is
not as graceful as a gazelle." At the March 24 meeting,
according to Ramsey, the Respondent continued to object
to any form of payment for maternity leave. Ramsey relat-
ed that at the March 24 meeting the Guild asked for a
statement concerning the Respondent's current policy with
regard to maternity leave and that a representative for the
Respondent stated that its current policy was that materni-
ty leave was to be arranged between the department head
and the employee involved. At the following meeting, on
March 26, the Guild took the position that the decision
whether or not to take maternity leave was one to be made
solely by the employee.
On April 5, 1972, the Equal Employment Opportunity
Commission issued guidelines on discrimination because of
sex. Because of these changes, the Union on a number of
occasions between January and May, and again on August
21, endeavored to renegotiate the maternity leave provi-
sions in the proposed contract.3
Ramsey testified that at the August 21 meeting the
Respondent's position was that it would not reopen negoti-
ations on the subject of maternity leave. Ramsey further
related that the Respondent at that meeting "declared an
impasse." In addition, he testified that the parties were not
agreed on other provisions, such as salaries, a no-strike
clause, a management rights clause, and a provision to the
effect that the Respondent was free to hire ajournalist who
only agreed with its views. In addition, they were not
agreed on other issues, such as retirement. Ramsey testified
3 Under date of June 21, Garofalo and Quinlisk wrote to the
Respondent's director of operations, Cummins, submitting copies of con-
tract articles apparently agreed to. In this letter, they noted that "because of
the Equal Employment Opportunities Commission on pregnancy" the
Union's agreement relating to pregnancy "might not be consonant with that
ruling." Quinlisk testified that the Respondent's response "was that we had
already discussed this issue and that it was not to be raised at this point
again ." In response to the Union's letter , the Respondent stated that the
various articles "have been examined in detail" and that, while the Respon-
dent felt the Union had attempted "to clarify language in many instances
which could probably have been better worded . we do 'not believe it
advisable to attempt to improve upon terms, once they have been agreed
upon at the bargaining table." Counsel for the General Counsel contends
that the Respondent "in effect agreed that the tentatively agreed to materni-
ty leave provisions apparently violated the EEOC Guidelines but said it
would not bargain further concerning these provisions and would abide by
whatever results the courts reached in the various litigation involving the
Guidelines."
WICHITA EAGLE AND BEACON 747
that he had submitted the maternity leave clause to the
general counsel of the Guild and requested his opinion,
and that he was orally advised by counsel that the materni-
ty leave clause as tentatively agreed to was in violation of
the EEOC guidelines. Ramsey further-related that, during
the negotiations, at no time did the Respondent offer a
savings and/or severability clause with regard to the mater-
nity leave provision.
D. Discussion and Conclusions
In his brief, counsel for the General Counsel, concerning
the maternity leave provision, relies upon the decision of
the Supreme- Court of the United States in Emporium Cap-
well Co. v. Western Addition Community Organization, 420
U.S. 50 (1975). In that case, the Court stated that the ques-
tion presented was "whether, in light of the national policy
against racial discrimination in employment, the National
Labor Relations Act protects concerted activity by a group
of minority employees to bargain with their employer over
issues of employment discrimination." The Board had
held, according to the Court, that a minority group of em-
ployees "could not circumvent their elected representative
to engage in such bargaining." The Court of Appeals for
the District of Columbia reversed, holding that in certain
circumstances such activity would be protected. In revers-
ing the court of appeals, the Supreme Court noted that
"natural labor policy embodies the principles of non-dis-
crimination as a matter of highest priority . . . and it is a
commonplace that we must construe the NLRA in light of
the broad national labor policy of which it is a part."
Counsel also cites Griggs v. Duke Power Co., 401 U.S. 424
(1971), where the Court stated that the EEOC, "having en-
forcement responsibility, has issued guidelines interpreting
703(h) to permit only the use of job-related tests [footnotes
omitted]," and that "the, administrative interpretation of
the Act by the enforcing agency is entitled to great defer-
ence. . . . Since the Act and its legislative history support
the Commission's construction, this affords good reason to
treat the guidelines as expressing the will of Congress."
(401 U.S. at 433-434.) Counsel also refers to other cases
decided by the Supreme Court (Espinoza v. Farah Mfg.,
414 U.S. 86 (1971) ). In Espinoza the Court stated that
"deference must have limits where, as here, application of
the guidelines would be inconsistent with an obvious con-
gressional intent not to reach the employment practice in
question. Courts need not defer to an administrative con-
struction of a statute where there are `compelling indica-
tions that it is wrong.' " (414 U.S. at 94.) The Court in
Espinoza decided that discrimination on the basis of citi-
zenship does not have the effect of discrimination on the
basis of national origin and, in so deciding, the Court ap-
parently based its decision on legislative history to the con-
trary and the fact that the Commission' had once held a
different view as to the meaning of the term "national ori-
gin "
So far as appears, the Supreme Court has not expressed
an opinion as to the validity of the EEOC guidelines with
respect to the provisions dealing with maternity leave.
However, it may be noted that in Cleveland Board of Edu-
cation v. LaFleur, 414 U.S. 632 (1974), the Court did find
that rules- requiring that pregnant school teachers take un-
paid maternity leave 5 months before the expected child-
birth, and the rule requiring the teacher to give notice at
least 6 months prior to the anticipated birth date, violated
the equal protection clause of the fourteenth amendment.
The Court emphasized that the individual determination
by doctors as to any particular teacher's ability to continue
performing her job was required and, further, that the in-
terest of the school in the physical fitness of its teachers
would be fully protected by the requirement that upon re-
turning to work the teacher either submit a medical certifi-
cate or undergo a medical examination. It should be noted
that the Court refrained from expressing any opinion con-
cerning the validity of the EEOC guidelines and noted that
they would affect similar suits in the future.
Research discloses very few decisions of the Board con-
cerned with violations of the Act and sex discrimination. In
Jubilee Manufacturing Company, 202 NLRB 272, 273
(1973), the Board stated that it had found that an employer
violates Section 8(a)(5) "for refusing to bargain in good
faith concerning the elimination of existing . . . racial dis-
crimination. Similarly, we have also held that an employer
violates Section 8(a)(5) by insisting on bargaining for union
acceptance of provisions within a supposed nondiscrimina-
tion clause which would prevent the Union from fulfilling
its duty of fair representation and expose the union to legal
liabilities under Title 7 of the Civil Rights Act of 1964."
The Board went on to state that it had also held "that an
employer's unilateral elimination of the female employees
in its plant at the very moment that the union was negotiat-
ing for equal pay for them was an attempt to by-pass bar-
gaining for the union and was an unlawful refusal to bar-
gain...." In two cases following Jubilee, the Board found
certain violations concerning sex discrimination. Thus, in
Local No. 106, Glass Bottle Blowers Association, AFL-CIO
(Owens-Illinois, Inc.), 210 NLRB 943 (1974), a majority of
the Board found that, by maintaining a separate local on
the basis of sex and failing to process grievances because of
the sex of employees, and their nonmembership in the par-
ticular local union, the union had violated Section
8(b)(1)(A) of the Act. In finding a violation, a majority of
the Board equated sex discrimination to racial discrimina-
tion and cited the Miranda Fuel line of cases.'
The record in this case makes it quite clear that the
Union was particularly concerned with the matter of sex
discrimination from the time it began negotiations with the
Respondent. At its convention in June 1972, the Union
resolved to implement these nondiscriminatory policies in
its contracts with employers and, in addition, in its negotia-
tions with the Respondent.5
4Miranda Fuel Company, Inc, 140 NLRB 181 (1962), and Local Union
No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-
CIO (Goodyear Tire & Rubber Co of East Gadsden, Ala), 150 NLRB 312
(1964), enfd. 368 F 2d 12 (C.A. 5, 1966), cert denied 389 U.S 837 (1967)
5 In this regard, counsel for the General Counsel again moves that I admit
into evidence G C Exh. 19 This document consists of a portion of the
proceedings at the Guild's 39th annual convention in June 1972. In rejecting
the exhibit, I noted that there had been testimony that the matter had been
the subject of discussion at the convention, and I expressed the view that I
doubted "the materiality of including the verbatim or the reported verbatim
Continued
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After carefully considering the record and the able briefs
of counsel, I come to the conclusion that the Respondent,
by declaring an impasse in regard to the issue of maternity
leave, violated Section 8(a)(5) of the Act. In this connec-
tion, it might be noted that the Respondent did not suggest
that this issue be put aside for the time being, while the
parties endeavored to resolve other important outstanding
issues. I infer, and find, that the Respondent adamantly
refused to discuss this subject and sought refuge in a state-
ment that it would be guided by the decisions of the courts.
It seems plain that this position, if adhered to, might result
in postponing the resolution of issues in this area for a
substantial period of time, as is clearly evident from the
fact that, as of the present date, court decisions have by no
means definitively resolved the various areas of concern to
employees concerning this subject.
There can be no doubt that the accepted rule is that the
law does not require futile action. Thus, when the Respon-
dent refused to discuss the matter of the effect of the
change in law on the maternity leave provisions that had
been tentatively agreed upon, that action effectively fore-
closed the Union from proposing alternative solutions that
might have complied with the EEOC guidelines. It would
appear that the position of the Respondent substantially is
that made by the employer-respondent in Potlatch Corp.,
63 LA 1057, to the effect that the EEOC regulations are
not on the same levels as "laws or regulations" within the
meaning of the agreement of the parties, for the reason that
they are not, in the view of the Respondent, "good law."
Insofar as I have been able to ascertain, the EEOC sex
guidelines,have been upheld by virtually all of the courts
that have thus far passed on the issue .6 Another important
consideration is that if the position of the Respondent were
accepted the Union would be required to violate its duty of
fair representation under the Act and be exposed to liabili-
ties under Title 7 of the EEO Act. Moreover, as the Board
and the courts have decided, the obligation of a labor orga-
nization is to bargain for all employees that it represents;
in consequence, the Union would breach its obligation if it
adopted the position of the Respondent 7 In consequence, I
conclude that by declaring that an impasse had resulted
the Respondent violated Section 8(a)(5) and (1) of the Act.
As related more fully above, the Union made certain
responses to the Respondent's position, beginning with the
letter of February 11, 1971. The contention that the Union
by that letter, and in subsequent bargaining sessions, had
waived any opposition to the action the Respondent took
in unilaterally lowering the hospitalization eligibility wait-
ing period from 5 years to 6 months is not tenable. As I
read the letter, in context, it only allowed the Respondent
to continue all terms and conditions of employment, in-
cluding normally scheduled improvements in benefits.
Thus, it seems quite plain that the action of Respondent in
this regard violated its obligation to bargain collectively. In
this connection , it should be noted that the 1972 change
report of what was said during the deliberations" concerning that matter I
adhere to my ruling.
6 For example, see the cases cited in the brief of General Counsel
7 See Local Union No 12, Emporium Capwell Co, and Jubilee, supra.
resulted from a special and rather extensive study the Re-
spondent made of costs, wages, and salary policy matters.
However, the Respondent did not, prior to its announce-
ment implementing the change, inform the Union of these
studies or of the impending change. While the change may
have resulted, in part, from studies ordered by new man-
agement, they were not, it seems clear, the result of any
established past practices. In this regard, I note that in its
letter of July 5, 1972, to Garofalo, the Respondent an-
nounced these changes as matters which had been accom-
plished; its communication cannot properly be regarded as
an invitation to the Union to bargain about the matter. On
balance, I am convinced and find that the Union did not
waive its right to bargain with respect to the actions taken
by the Respondent, in view of the well-established require-
ment that in order for waiver to be operable it must be
clear and unmistakable.
In sum, I conclude that the Respondent violated the Act
in the respects alleged by making the unilateral changes
described above.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
I have found that the Respondent, in the respects set
forth above, unlawfully refused to bargain collectively with
the Union. I will, therefore, recommend that the Respon-
dent, upon request, bargain with the Union concerning
terms and conditions of employment and that it make no
changes therein without first discussing such changes with
the Union.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Wichita Eagle and Beacon Publishing Co., Inc., a
wholly-owned subsidiary of Knight-Ridder Newspapers,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
2. By refusing to bargain collectively with the Union in
the respects found above, the Respondent violated Section
8(a)(5) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]