Kingsport Publishing Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 694 (N.L.R.B. 1967)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kingsport Publishing Corporation and
Kingsport Typographical Union 940. Case
10-CA-6404.
June 21, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 1, 1967, Trial Examiner John F.
Funke issued his Decision in this proceeding, finding
that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions and a supporting
brief' and the Charging Party filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Kingsport
Publishing Corporation, Kingsport, Tennessee, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
' As the record, exceptions, and briefs in our opinion
adequately present the issues and the positions of the parties,
Respondent's request for oral argument is hereby denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
December 13, 1965, and an amended charge filed
September 26, 1966, by Kingsport Typographical Union
940, herein the Union, against Kingsport Publishing
Corporation, herein Kingsport or the Respondent, the
General Counsel issued a complaint alleging Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
' General Counsel's Exhibit 2 is a stipulation of the parties
which contains 42 paragraphs and 29 documentary appendixes
submit the discharge of an employee to the Joint Standing
Committee pursuant to the grievance procedure of a
recently expired contract.
Respondent 's answer admits the refusal to submit the
discharge to the Joint Standing Committee but denies the
commission of unfair labor practices.
This proceeding , with all parties represented, was heard
before me, at Kingsport , Tennessee , on November 22,
1966. At the conclusion of the hearing the parties were
given leave to file briefs and briefs were received from the
parties by January 6.
Upon the entire record in this vase and from my
observation of the witness while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with its principal
place of business at Kingsport, Tennessee, where it is
engaged in publishing three newspapers. Respondent's
gross volume of business, during a representative 12-
month period, exceeded $200,000 and Respondent held
membership in or subscribed to interstate news services,
published nationally syndicated features, and advertised
nationally sold products.
Respondent is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this case are, like the annals of the poor,
short and simple. The Respondent and the Union had a
collective-bargaining agreement which extended from
November 1, 1962, through October 31, 1964. (There had
been collective-bargaining agreements between the Union
and Respondent's predecessors for about 18 years prior
thereto.) On August 12, 1964, the Union notified
Respondent that "on October 31 any agreement-written,
oral or implied-or any conditions of employment or
understanding now in effect between the Kingsport
Publishing Company and Kingsport Typographical Union
940 will terminate." (Appendix 2, G. C. Exh. 2.)' The letter
included an offer to meet to negotiate a new contract. The
first meeting was held September 24, 1964, and at the time
of the hearing some 34 meetings had been held and were
continuing.
The contract which expired on October 31 contained the
following clause under the provision "Joint Standing
Committee":
Section 9. An employee who believes he has been
illegally or unjustly discharged shall have the right of
appeal to the Chapel. The Chapel shall decide by
majority vote, secret ballot whether the discharge was
justified. Either the discharged employee or the
foreman may appeal to the Local Union against the
decision of the Chapel. If the Chapel orders
reinstatement and the foreman fails or refuses to
Needless to say the preparation of such a stipulation greatly
expedited the hearing
165 NLRB No. 116
KINGSPORT PUBLISHING CORPORATION 695
reinstate, the matter shall at once be referred to the
president of the Local Union and a representative of
the office in which the discharge occurred, who shall
endeavor to settle the dispute. If a settlement is not
reached, appeal may be made to the Local Union. If
the Local Union orders reinstatement, its decision
must be complied with pending settlement of the
appeal by the Joint Standing Committee. Either the
foreman or the discharged employee may appeal to
the Joint Standing Committee against the Local
Union's decision.
On June 22, 1965, Respondent discharged its composing
room employee, Ivil L. Lytz, for reasons not alleged to be
discriminatory within the Act. On June 25 Chapel
Chairman Don Lane made an oral request on the part of
the Chapel to composing room Foreman Vernon'O'Quinn
to reinstate Lytz. O'Quinn refused to reinstate Lytz.
Thereafter, on July 12, Clarence E. Samples, secretary of
the Union, wrote Respondent informing it that the Union
had voted to reinstate Lytz and demanding his
reinstatement pending appeal to the Joint Standing
Committee. (Appendix 20, G.C. Exh. 2.) A similar letter
was sent Respondent by President McKee and Secretary
Samples on July 12. (Appendix 21, G.C. Exh. 2.) On
July 26 Respondent replied through its General Manager
E. G. Heiberger, denying the request to reinstate Lytz on
the ground that the Union had terminated the contract,
quoting the Union's letter of August 12, 1964.
(Appendix 22, G.C. Exh. 2.)
It is relevant to note the progress and status of
negotiations both prior and subsequent to this date and the
position of the parties with respect to the continuance of
the terms of the recently expired contract. Robert S.
McMichen, International representative for the
International Typographical Union, testified that at a
meeting held either October 20 or 21, 1964, E. G. Hunter,
attorney for Respondent, advised him that he (Hunter)
would be unavailable for any meetings until after the
current contract expired on October 31, and asked him
what the Union's position would be after expiration.
McMichen replied that the Union's position, historically
and traditionally, would be to continue working under the
terms and conditions of the contract until a new agreement
was reached. Hunter, according to McMichen, asked that
no changes be made.2
Heiberger testified that on May 6, 1965, Respondent
made a "final and best offer" to the Union and that
McMichen would take it back to the Union's membership
but that he never received any report of the results. At a
meeting held on July 27 the "final and best offer" was
again submitted but again no report was received after
McMichen said he would take it back. On August 16
Respondent wrote the Union (Resp. Exh. 1) referring to the
fact that it had received no response to its final offer and
stating that it would initiate certain unilateral changes in
working conditions and offering to discuss these changes.
In September Respondent learned the membership had
rejected the final offer.
On May 4, 1965, agreement was reached on the
terminology of sections 6 and 9 of a new proposed article
IV entitled "Joint Standing Committee ." (See paragraph
23 and appendix 15, G.C. Exh. 2. ) Following the discharge
of Lytz, the Union , according to McMichen , offered to
refer the discharge of Lytz to the Joint Standing
Committee under the terms of either the expired contract
or the terms of the proposed contract . Respondent
continued to refuse on the ground that the expired
contract was not binding and that it would not agree to any
terms of the proposed contract until it was executed as a
complete agreement . Respondent was willing to discuss
the discharge of Lytz but not pursuant to any contractual
grievance procedure . It was this impasse which led to the
filing of the charge herein 3
B. Conclusions
As stated in the brief of the Charging Party, the basic
issues of the case are:
(1) Do the provisions of a grievance procedure as set
forth in a collective- bargaining agreement cease to exist,
or do they survive, upon expiration of that collective-
bargaining agreement?
(2) Does Respondent's refusal to process the grievance
of Ivil Litz pursuant to the provisions of the grievance
procedure as set forth in the expired collective-bargaining
agreement violate Section 8(a)(5) of the Act?
Before reaching the basic issues I believe the contention
of the Respondent that the Union, by its letter of
August 12, 1964, terminating the contract, ended all
obligation on the part of Respondent to continue in effect
any of the terms of the contract and was in fact a waiver of
its rights under the contract. I do not agree. While the
letter was "clear and unambiguous," it was no more than
required by Section 8(d) of the Act. Its purpose was to
serve notice that negotiations leading to a new contract
were requested, a request Respondent, absent a good-faith
doubt as to the Union's continuing majority status, was
obligated to grant. To hold otherwise would confer on
every employer served with the notice of termination
required by the Act the right unilaterally to change all
contract terms upon the expiration of the contract and
before impasse had been reached. It cannot be assumed
that it was the intent of the Congress to create such chaos
in bargaining relations.
Reaching the basic issues as set forth above, and I
believe the answer to the second will depend on the
answer to the first, I find the controlling case to be
Bethlehem Steel Company (Shipbuilding Division), 136
NLRB 1500.4 In that case the Board held that union
security, checkoff, preferential seniority, and a grievance
procedure are matters related to "wages, hours and other
terms and conditions of employment" within the meaning
of the Act and, therefore, are mandatory subjects of
collective bargaining. (Citing N.L.R.B. v. The Proof
Company, 242 F.2d 560 (C.A. 7); N.L.R.B. v. Reed &
Prince Manufacturing Company, 205 F.2d 131 (C.A. 1);
N.L.R.B. v. Ross Gear & Tool Company, 158 F.2d 607
(C.A. 7); United States Gypsum Company, 94 NLRB 112.)
It then held that since the union-security clause contained
in the expired contract could not be made a condition of
2 Hunter did not appear as a witness at the hearing but in a
footnote to paragraph 8 of the stipulation it was agreed that
Hunter would testify that the Respondent was agreeable to the
termination of the contract and did not contemplate any change in
working conditions , not because of any continuing contractual
obligation after October 31 but because " this was a matter of
observing the requirements of the National Labor Relations Act
as applied by the National Labor Relations Board."
3 General Counsel's Exhibit 2 and its appendixes set forth in
full the history of negotiations, but I find the issue narrowly
confined and see no necessity for complete recital
4 Remanded on other grounds 320 F 2d 615 (C A. 3),
reconsidered and affd on point 147 NLRB 977
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment except under a contract which conformed to
the proviso of Section 8(a)(3) and the checkoff clause
implemented the union -security clause, Respondent
lawfully discontinued these provisions . As to the unilateral
changes made by the Respondent after the expiration date
respecting the grievance procedure and the superseniority
clause a different conclusion was reached . The Board
stated , 136 NLRB at 1503:
As of August 1 , 1959, the Respondent , acting
unilaterally , abandoned this grievance machinery and
substituted a new procedure therefor . We find that
this unilateral action taken with respect to
"wages, hours, and other terms and conditions of
employment" was in derogation of the Union's
representative status and a violation of Section 8(a)(5).
The Board also held that by unilaterally abrogating the
seniority rights of employees acquired under the former
contract Respondent also violated Section 8(a)(5) of the
Acts
Respondent has attempted to distinguish this case from
Bethlehem Steel Company on the ground that here
Respondent did not impose a new grievance procedure
upon its employees but merely maintained that , without a
contract , no grievance procedure was in existence. I find
this a distinction without a difference . It was equally a
unilateral change in the "wages , hours, and other terms
and conditions of employment" as would be the
application of the terms of the tentative agreements I have
considered the cases cited in Respondent ' s brief with
some care . As to those cases which refer to the arbitration
clause the Board , in discussing mandatory subjects of
collective bargaining , did not include arbitration among
them . It might be noted that the Trial Examiner in the
original Bethlehem Steel Company case (133 NLRB 1347)
stated , at 1361 : "What is important is that as with
checkoff , compulsory membership or arbitration,
superseniority for union officials cannot truly be said to be
a condition of employment ." In reviewing its original
decision in 136 NLRB 1500, the Board , at 1502, stated, "In
accord with Board and court decisions , we find that union
security , checkoff , preferential seniority , and a grievance
procedure are matters related to `wages, hours, and other
terms and conditions of employment ' within the meaning
of Section 8(d) of the Act and , therefore , are mandatory
subjects for collective bargaining ." Whether inadvertently
or not arbitration was not included. It would , of course,
seem totally inconsistent to hold that a grievance
procedure would survive a contract but the arbitration
clause, the final and binding part of that procedure, would
not. But the court in Proctor & Gamble Independent Union
v. The Proctor & Gamble Manufacturing Company, 312
F.2d 181 (C.A. 2), reversing 202 F . Supp . 518 (E .D.N.Y.),
found that the right to proceed to arbitration is not a right
incident to the employer -employee relationship since only
the parties to the contract could call for arbitration. The
contract on the other hand provided that grievances could
be presented by "any employee or group of employees." It
is unnecessary to belabor the point since it is not germane
to the present proceeding.
5 The Celotex Corporation, 146 NLRB 48, affd. as modified 364
F2d552(CA 5)
6 See Bethlehem Steel, 136 NLRB 1500 , as to the
discontinuance of the supersenwrity clause.
' Insurance Agents' International Union, AFL-CIO (The
Prudential Insurance Company of America), 119 NLRB 768, 772,
773
8 1 find no merit in Respondent's contention that an impasse
Conceding that some of the cases cited in Respondent's
brief would lead to a different conclusion than that
reached here , I find myself bound by the Board 's Decision
in Bethlehem Steel7 and accordingly find the Respondent
in violation of Section 8(a)(5) of the Act .8
IV. THE REMEDY
Having found that Respondent engaged in and is
engaging in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent by failing, upon
request, to reinstate Ivil Lee Lytz and to refer his
grievance to the Joint Standing Committee pursuant to a
contract between Respondent and the Union which
expired October 31, 1964, violated Section 8(a)(5) and (1) of
the Act, I shall recommend that Respondent reinstate Lytz
to his former position without prejudice to his seniority or
other rights and privileges and make him whole for any
loss of pay he may have suffered by reason of such failure
to reinstate9 and refer his grievance to the Joint Standing
Committee. Backpay shall be computed in accordance
with the formula set forth by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. By refusing to reinstate Ivil Lee Lytz upon request of
the Union and by refusing to refer his grievance to the
Joint Standing Committee pursuant to the terms of a
contract between Respondent and the Union which
expired October 31, 1964, Respondent violated Section
8(a)(5) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, it is recommended that Respondent, Kingsport
Publishing Corporation, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from refusing to reinstate Ivil Lee
Lytz to his former position upon request of the Union and
refusing to refer his grievance to the Joint Standing
Committee pursuant to the terms of a contract between
Respondent and the Union which expired October 31,
1964.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request reinstate Ivil Lee Lytz to his former
position without prejudice to his seniority and other rights
and privileges.
was reached on May 6 when the members rejected Respondent's
last offer This rejection was not made known to Respondent until
September and the parties continued to negotiate after the
rejection , a situation not uncommon in collective-bargaining
negotiations
e Backpay should be computed from the date of receipt by
Respondent of the Union's letter of July 12, 1965
KINGSPORT PUBLISHING CORPORATION
(b) Make Ivil Lee Lytz whole for any loss of pay he may
have suffered by reason of Respondent's failure to
reinstate Ivil Lee Lytz as requested by the Union on
July 12, 1965.
(c) Notify Ivil Lee Lytz if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Kingsport, Tennessee, copies of
the attached notice marked "Appendix."10 Copies of said
notice, to be furnished by the Regional Director for
Region 10, after being duly signed by an authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
said Respondent to insure that said notices are not altered,
defaced, orcovered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith. i i
10 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 10, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
697
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse, upon request of Kingsport
Typographical Union 940, to reinstate Ivil Lee Lytz to
his former position in the composing room and we will
not refuse, upon request of said Union, to refer his
grievance to the Joint Standing Committee under the
terms of a contract between Kingsport Publishing
Corporation and said Union which expired
October 31, 1964.
WE WILL make said Ivil Lee Lytz whole for any loss
of pay he may have suffered because we refused to
reinstate him upon request of said Union made
July 12,1965.
KINGSPORT PUBLISHING
CORPORATION
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above- named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 7th Street, N.E., Atlanta, Georgia
30323, Telephone 526-5760.