The Washington Post Co.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 819 (N.L.R.B. 1967)

THE WASHINGTON POST CO.
The Washington Post Company and
Newspaper Web Pressmen's Union, Local
No. 6, International Printing Pressmen's
and Assistants ' Union of North America.
Evening Star Newspaper Company and
Newspaper Web Pressmen's Union, Local
No. 6, International Printing Pressmen's
and Assistants ' Union of North America.
The Washington Daily News Company, Inc.
and Newspaper Web Pressmen 's Union,
Local No. 6, International Printing
Pressmen 's and Assistants ' Union of North
America. [The Washington Publishers
Association of Washington , D.C., Inter-
venor.] Cases 5-CA-3526, 5-CA-3527, and
5-CA-3528.
June 22,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On February 1, 1967, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Charging Union 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 the
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions , the 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 Respondents, The Washington
Post Company, Evening Star Newspaper Company,
and The Washington Daily News Company, Inc.,
Washington, D.C.. their officers, agents, successors,
819
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
' The Respondents have requested oral argument. As the
record, including the briefs of the parties, adequately presents the
issues and the positions of the parties, the request is hereby
denied
TRIAL EXAMINER'S DECISION
PROCEDURAL BACKGROUND
STANLEY N. OHLBAUM, Trial Examiner: This
consolidated case was heard before me in Washington,
D.C., on September 6-9, 1966,' on complaint of General
Counsel of the National Labor Relations Board, issued
through the Regional Director for Region 5 on August 18,
based upon charges filed on June 21 by Newspaper Web
Pressmen's Union, Local No. 6 (Union or Local 6),
separately against The Washington Post Company (Post),
Evening Star Newspaper Company (Star), and The
Washington Daily News Company, Inc. (News), herein
collectively referred to as Respondents or Newspaper
Publishers.
In essence , the complaint alleges that each Respondent
has violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151 et seq. (Act)
by refusing in 1966 to bargain collectively with the Union
as exclusive bargaining representative of its employees in
a unit appropriate for bargaining purposes,2 with respect
to terms and conditions of employment. Respondents in
effect admit refusal to bargain upon an individual-
employer basis as requested by the Union in 1966, but
deny violation of the Act in view of their expressed
willingness to continue to bargain with the Union in the
same manner as in the past , namely multiemployer or
joint-employer bargaining through their agent for that
purpose, Washington Publishers Association of
Washington, D.C. (Publishers Association), Intervenor
herein.3
All parties, represented and participating throughout by
counsel, have been permitted full opportunity to present
their evidence and contentions, propose findings of fact
and conclusions of law, and file briefs. Subsequent to the
hearing, voluminous briefs were received. These, together
with the evidence4 and contentions raised at the hearing,
and further exhibits received after the hearing and
incorporated into the record without opposition by my
order of November 30 on notice, have been carefully
considered.
Upon the entire record and my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENTS' BUSINESS; LABOR ORGANIZATION
INVOLVED; JURISDICTION
Each Respondent is a corporation maintaining its
principal place of business in the District of Columbia,
Unless otherwise specified, all dates are 1966
2 Each allegedly appropriate bargaining unit is said to consist of
the journeymen pressmen, apprentice pressmen, and flymen (i e ,
beginner pressmen) employed by each newspaper
J Publishers Association, permitted at the hearing to intervene
without opposition, is represented by counsel for Respondents.
' Hearing transcript as corrected by my unopposed
November 30 order on notice
165 NLRB No. 118
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regularly advertises nationally advertised and sold
products, publishes nationally syndicated articles and
news stories, and ships newspapers to points outside the
District of Columbia; in the 12-month period preceding
issuance of the consolidated complaint did business
exceeding $200,000 in gross volume.5 The Union is a labor
organization as defined by Section 2(5) of the Act.
I find that at all material times each Respondent has
been and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and meets the Board's
standards for assertion of jurisdiction over employers in
the newspaper industry; at all material times the Union
has been and is a labor organization within the meaning of
Section 2(5) of the Act; assertion of jurisdiction in this case
is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Main Issue
The basic question here for decision is whether the
refusal of each Respondent to bargain individually with
the Union, and Respondents' insistence upon bargaining
only, in accordance with past pattern, as a multiemployer
group, is an unfair labor practice in violation of Section
8(a)(5) and (1) of the Act. Related issues and contentions,
raised by Respondents' affirmative defenses in alleged
justification of their conceded refusal to bargain with the
Union on other than a multiemployer basis, are also
presented.
B. Factual Background and Findings6
Since 1926 Respondents, separate corporate entities
each engaged in publishing its own newspaper in
Washington, D.C., and comprising the three metropolitan
newspapers in that city, have conducted their labor
negotiations affecting pressmen employed in their
respective pressrooms, with the Union, on a
multiemployer or joint-employer bargaining basis through
Publishers Association as their bargaining representative
or agent. If predecessors7 are taken into account, this
multiemployer or joint-employer8 bargaining pattern is
traceable as far back as the 1880's, or some 80 years ago.
Although prior to 1958 (at least from 1954) the Union's
collective agreements with Respondents were entered into
with Publishers Association, since 1958 such agreements
have expressly been between the Union and the three
Respondent newspaper publishers "acting through"
Publishers Association.9 Also since 1958, the collective
agreements have provided" for and involved separate
supplemental agreements between the Union and the
individual newspaper publishers regarding particularly
applicable "details of operation" not inconsistent with the
basic collective agreement itself and approved by all of the
contracting parties." The last of such agreements,
effective October 1, 1964, expired September 30, 1966.
Credited evidence establishes that numerous employee
catagories- for example, news gatherers, writers, editors,
typesetters, photocomposers, photoengravers, stereotyp-
ists, gatherers, folders, assemblers, counters, stackers,
distributors, machinists, electricians, and other
maintenance men12- are involved in the integrated end-
product of newspapers in the hands of reading public.
Pressmen operate printing presses, insuring that material
thereon is properly aligned and printed. It is conceded that
although, prior to 1966, Respondents (through Publishers
Association) bargained as a group with the Union in
relation to the pressmen employed in their respective
pressrooms, in regard to other types of employees utilized
by them in newspaper production- for example, editorial
personnel, mailroom helpers, paperhandlers and drivers,
janitors, and maintenancemen- each Respondent
bargained individually, for itself, with the particular union
involved,13 including another Local of IPP&AU of
NA.14 With regard to still other categories of employees,
however, Respondents have bargained through Publishers
Association.15 It is likewise conceded that there have been
5 Conceded by pleadings.
6 Unless otherwise indicated, the facts here and elsewhere set
forth are essentially uncontroverted.
7 The earliest collective agreement (Memorandum for
Settlement of Pending Differences) submitted , dated 1896, is
between Columbia Typograhical Union No 101 and Associated
Publishers of Washington From at least 1898 until 1920, Printing
Pressmen's Union No 1, of Washington, D C (International
Printing Pressmen's and Assistants' Union of North America,
IPP&AU of NA or the International, was apparently estabhshed
as such also around 1898) represented all unionized pressmen in
the Washington, D C., metropolitan area In 1920, unionized
pressmen employed by Washington, D.C , newspapers received,
separate charter from the International as Local 6; Local I
continuing in existence , and now representing only U S.
Government-employed pressmen in the Washington, D C., area
There have also been changes in Publishers Association due to
discontinuances , formations, and mergers of Washington
newspapers; for example, the present three Respondent
Washington newspapers are the immediate product of acquisition
by the Post in 1954 of the former Washington Times-Herald,
apparently in turn created through merger of the former Times
with the former Herald in 1939
" As Respondents' counsel suggests on brief, and as Judge
McGowan took recent occasion to point out for the District of
Columbia Circuit Court of Appeals in Western States Regional
Council No 3 v N L R B [Weyerhaeuser Co ], 365 F.2d 934
(C A D.C ), no useful purpose would appear to be served-here,
at any rate- by attempt to characterize the parties' past
bargaining patterns as "multiemployer" rather than "multiple" or
"joint," since it is the underlying material facts which control, and
not semantic touchstones
" I am unable to attach controlling significance herein to this
variation
10 E g, G.C. Exh 4, sec. 19 (1958), the so-called Detroit clause
11 Supplemental individual negotiations and agreements
pursuant to the Detroit clause in fact took place between the
Union and individual newspaper publishers in 1959 and 1960 It is
noted in this connection that as early as 1950 separate
supplemental agreements appear to have been entered into
between the Post alone and the Union, as well as between the
Star, Daily News, and Times-Herald (since acquired by the Post);
these appear as addenda to the 1956-58 collective agreement
(G.C.Exh. 5, pp 24-26 and 21-23), although not in the 1954-56
collective agreement (G C Exh. 6) except by reference therein
only to the 1950 separate agreement with the Post (G.C Exh 6,
sec 9[k])
12 Historically, the five production crafts involved in newspaper
production- lithographers, photoengravers, stereotypists,
pressmen , and mailers- were originally part of the typographical
unit
11 E g , American Newspaper Guild, International Brotherhood
of Electrical Workers; International Union of Operating
Engineers
14 Local 449, IPP&AU of NA, for Post paperhandlers
15 E g, Columbia Typographical Union, No 104, Mailers'
Union, No 29, of ITU; Washington Photoengravers' Union No. 17,
IPEU of NA, Washington, D.C , Stereotypers' Union No. 19
Apparently, however, not all contracts or portions of contracts
were necessarily applicable to all Respondent newspaper
publishers, for example, since prior to 1937, the News had no
photoengraving department and it was not subject to the
Publishers Association "photoengravers contract "
THE WASHINGTON POST CO. 821
and are newspapers other than those of Respondents,
published in the Washington, D.C., metropolitan area,is
for employees of which Local 6 has been and is the
designated collective-bargaining representative, but for
which Publishers Association does not bargain.
Local 6 itself has continued to have separate "chapels"
or working subdivisions in the pressrooms of each of the
Respondents, each chapel consisting of all journeymen
pressmen, apprentice pressmen, and flymen employed in
the particular pressroom and functioning under the
collective agreement.
It is undisputed that in January and again in July 1966,
the Union notified Respondents and Publishers
Association that the Union would no longer bargain on a
multiemployer or joint-employer basis with them, but,
effective with respect to then current collective agreement
expiring on September 30, 1966, only upon an individual-
employer basis with each Respondent; and that
Respondents refused to enter into bargaining other than
on the previous multiemployer or joint-employer basis,
resulting in the charges and complaint herein. The
propriety and legal efficacy of this action by the Union, as
well as of the formal notifications, are, however, disputed.
C. Union Right to Require Newspaper Publishers to
Bargain on Individual Rather than Joint Basis; First,
Fifth, Sixth, Seventh, and Ninth Affirmative Defenses
Respondents' first affirmative defense alleges that the
Union has no right to "abandon or disrupt" the
multiemployer bargaining relationship pattern existent
between the parties or their predecessors since 1886; that,
at the least, modification of that historic bargaining
pattern itself requires negotiation; and that the Union is
"in effect" violating Section 8(b)(3) of the Act by
demanding such change of bargaining pattern. The fifth
affirmative defense alleges that by "express consent" as
well as by course of conduct during the historic bargaining
period the Union has "waived" or lost the right to
"abandon" multiemployer bargaining, which is said to be
"interrelated" to other bargaining arrangements of
Respondents with other unions continuing beyond the
expiration of the parties' currently expiring multiemployer
agreement (i.e., September 30, 1966); and that
Respondents themselves do not have "right or equality of
withdrawal" from the existing multiemployer bargaining
pattern. The seventh affirmative defense alleges in part
that no Respondent has in fact withdrawn from Publishers
Association, and that the Union has no equal or
comparable right. The sixth affirmative defense asserts
that the Union has expressed no "reason" for
unwillingness to continue to engage in multiemployer
bargaining. The ninth affirmative defense contends that
under the structure of multiemployer bargaining, existing
during the historic bargaining period, interchange of
pressmen among Respondents has resulted in creation of
rights.['
There is thus presented the primary question of whether
Respondents have violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union on an individual
newspaper publisher basis, as distinguished from the
previous multiemployer or joint-employer basis, with
regard to the period following expiration of the October 1,
1964-September 30, 1966, collective agreement.
Resolution of this issue turns upon whether the Union
could and did lawfully require Respondents to bargain on
an individual-employer rather than multiemployer or joint-
employer basis.
Respondents argue, in essence, that the long history of
multiemployer bargaining, as here practiced, precluded,
or estopped the Union from "withdrawing" therefrom, and
at the very least required the Union to bargain on a
multiemployer basis with respect to any alteration of that
mode of bargaining.
Whatever might otherwise be said of Respondents'
contentions in this regard, marshalled with painstaking
skill by their distinguished counsel, the basic question
appears to have been laid at recent rest by the Board's
decisions in The Evening News Association, etc., "The
Detroit News," 154 NLRB 1494, The Evening News
Association, etc., "The Detroit News," 154 NLRB 1482111
(Detroit publishers cases), and Hearst Consolidated
Publications, Inc., 156 NLRB 210 enfd. sub nom.
Publishers' Association of New York City, et al. v. N.L.R.B.
& N.Y. Typographical Union No. 6, 364 F.2d 293 (C.A. 2),
cert. denied 385 U.S. 971 (New York publishers case). In
those cases, the Board explicated its view that a union
which had for an historic period been party to a
multiemployer bargaining pattern (there also with
newspaper publishers through a publishers association), is
not obligated to continue to bargain in that manner but
may, through timely unequivocal expression, withdraw
from that arrangement and insist on single-employer
bargaining with each employer of the multiemployer
group.
After careful consideration, I am unable to discern any
significant distinguishing feature between the New York
and Detroit publishers cases and that at bar. Respondents
urge as a distinction that, unlike the New York and Detroit
publishers cases, here Respondents had no "reciprocal
right of withdrawal" from Publishers Association. The
evidence, however, does not establish this to be the fact
nor warrant such an assumption. Indeed, Respondents'
witness Waits, in charge of labor relations at the News,
conceded that as to Publishers Association- a juridically
amorphous entity having no corporate charter or other
formal birth certificate, articles of association, bylaws, or
organizational documentation, and into or to which none of
the Respondents has documentary (nor, for aught that
appears, legally enforceable oral) pledges, ties, or bonds-
there exists nothing among Respondents obligating them
to remain as members. Nor is there evidence of any
surrender or relinquishment to Publishers Association by
16 Wall Street Journal (an "associate[d] dues paying member"
of Publishers Association), Northern Virginia Sun According to
Publishers Association Executive Director Gronkiewicz, the
associate membership of Wall Street Journal in Publishers
Association does not entitle the former to be represented, nor has
it in fact been represented in labor negotiations by Publishers
Association, but only to receive meaningful summaries of labor
negotiations earned on by Publishers Association on behalf of its
members , as well as certain labor relations consultative services
Also according to Gronkiewicz, in practice Wall Street Journal
has utilized or adopted the collective-bargaining form entered into
by Respondent with Local 6 with a "supplement cover[ing]
their own respective shop conditions "
17 The subject of pressmen interchange is considered infra,
under paragraph D, in connection with the issue of
appropriateness of single-employer bargaining units
18 Petitions and cross-petitions currently pending, sub nom
Detroit Newspaper Publishers Association, et at. v N L R B , 372
F 2d 569 (C A. 6).
299-352 0-70-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any Respondent of the latter's right to engage in individual
collective bargaining with the Union.
Since the cited cases do not in my opinion differ
materially from that at bar, the Board's decisions there
must here be regarded as controlling on the basic
question. Iowa Beef Packers, Inc., 144 NLRB 615, 616, and
cases cited fn. 2; Insurance Agents' International Union,
AFL-CIO (The Prudential Insurance Company of
America), 119 NLRB 768, 773; Ranco, Inc., 109 NLRB 998,
1009-10, fn. 8. Reiteration here of the principles
elaborated by the Board in the Detroit and New York
publishers cases would serve no useful purpose, as they
are evident from a reading of those decisions.
Respondents further insist that even if the Union was
not required to continue to bargain on a multiemployer
basis a In past pattern, at the very least it was obliged to
bargain on a multiemployer basis regarding whether it
should continue to bargain on a multiemployer basis. It is
apparent, however, that this contention is essentially the
very one disposed of by the Board in the New York and
Detroit publishers cases, since it concerns merely a
possible subject for bargaining once negotiations have
incepted. There is no reason why the subject of whether
bargaining should be on a multiemployer rather than on a
single-employer basis cannot be considered within the
format of single-employer negotiations . Nor, contrary to
Respondents' apparent contention, is there anything in the
notification of change provision of the parties' current (i.e.,
1964-66) collective agreement (G.C. Exh. 2, sec. 1 [b])
which commits the notifying party to bargain on a
multiemployer basis regarding the desired change-even
were it to be assumed arguendo that the identity of the
contracting parties constitutes a "condition of this
Agreement" within the meaning of Section 1(b) of the
agreement.
With regard to Respondents' contention that through
insistence on change of the historic multiemployer
bargaining pattern to single-employer bargaining, the
Union is "in effect" violating Section 8(b)(3) of the Act, it
may be said that although there is neither charge nor
evidence that the Union has violated Section 8(b)(3), in any
event violation thereof would not constitute a defense to
the charges here. Furthermore, as will be shown, the
Union fully complied with the express provisions of the
applicable collective agreement between the parties (G.C.
Exh. 2, sec. 1 [b]) with regard to notification of change.
The fact that Respondents are parties , through
multiemployer bargaining , to other collective agreements
with other unions whose members are engaged in work
related to that performed by the Union's members,'" is
hardly a persuasive reason for freezing this Union against
its will into an otherwise unrequired bargaining pattern. A
party's contract obligations are measured by the contract
to which he is a party, not by the contracts of others. The
"problem" posed by overlapping contract expiration dates
11 Concededly, individual Respondents also have numerous
contracts with still other unions , arrived at through their
respective individual , single -employer bargaining
21 In passing, however, it may be observed that credited
testimony of Union President Callahan establishes that at a
meeting held with Respondents in April, following the Union's
notice of intention not to continue multiemployer bargaining, the
Union did in fact, in response to Respondents' inquiry as to why it
desired individual-employer bargaining, give as its reasons that
"the relationship between the parties had deteriorated to the
point that it necessitated a change" and that there had arisen
various nationwide problems of pressmen through such
developments as newspaper mergers and consolidations
may also exist under single -employer collective -bargaining
relationships . It could hardly be argued that the fixed life
of such a contract is extensible notwithstanding the
express provisions of the contract and over the opposition
of a party to the contract , because the other party to the
contract has other contracts with other persons which
expire later.
Finally, with regard to Respondents ' contention that the
Union failed to express any "reason " for its unwillingness
to continue to engage in multiemployer bargaining, it is
plain under the Board 's decision in the Detroit publishers
cases, supra , that , having the right to refrain from
engaging in multiemployer bargaining- like a
Respondent desiring to withdraw from Publishers
Association- its exercise of the right not to enter into or
continue that particular kind of contractual relationship
was not conditional upon its furnishing of reason S.20
D. Appropriateness ofSingle-Employer Units for
Bargaining Purposes. Seventh, Eighth , and Ninth
Affirmative Defenses
The seventh affirmative defense alleges in part that the
Union has at no time "offered to sever its representation of
employees into separate unions representing the
employees of each Respondent only." The eighth
affirmative defense avers that the Union has not claimed
to represent a majority of employees in an appropriate unit
of "each" Respondent ; that it has never been recognized
pursuant to Board certification ; and that inasmuch as
since 1898 it (or its predecessor ) has only been recognized
by Respondents as appropriate as a multiemployer unit,
such a unit (i.e., multiemployer ) is the "one and only
accepted and appropriate unit ," barring "the mutual
consent of each Respondent and the Washington
Publishers Association ." The ninth affirmative defense
states that "rights" have been derived through the
practice of "interchange " of pressmen under the system of
multiemployer bargaining in effect between the parties for
over 80 years.
Since these defenses all basically concern the
appropriateness of the single -employer bargaining unit
requested by the Union, they may be considered together.
Credited testimony'' establishes that the pressroom of
each Respondent is manned by, among others,
journeymen pressmen, apprentice pressmen, and
flymen . 22 Each Respondent has its own pressroom, where
it publishes only its own newspaper with its own
equipment . For practical purposes all pressmen employed
by each Respondent are members in good standing of the
Union. Except for flymen (who apparently may rotate
among publishers somewhat to gain varied experience),
each journeymen pressman or apprentice pressman in
practical effect has a full-time regular job, known as a
"situation ," on a particular newspaper, being so
2i I e., General Counsel 's witnesses Callahan (union president),
Fisher (Post union chapel chairman), Yost (Star union chapel
chairman ), and Clark (News union chapel chairman), and
Respondents ' witnesses Gronkiewicz (Publishers Association
executive director), Kennelly (assistant business manager for
labor relations at the Post), Boyd (director of industrial relations
at the Star), and Waits (assistant business manager for labor
relations at the News)
22 Flymen are beginners at pressmen ' s work , hired directly by
each publisher at its own prerogative According to credited
te.,timony of Publishers Association Executive Director
Gronkiewicz , flymen do essentially menial work, such as carrying
plates to and from pressrooms for journeymen pressmen
THE WASHINGTON POST CO. 823
considered by that newspaper 23 as well as by the Union,
and carried on the rolls of both- i.e., by the newspaper on
its personnel records, and by the Union on its particular
"chapel priority list,"24 which is a seniority list of the
pressmen regularly employed by the particular
newspaper, usually kept posted on the newspaper's
bulletin board. The particular newspaper's "markup" is in
effect its anticipated stable or guaranteed minimum of
full-time pressmen's jobs (filled by its own regular
"situation"-holder pressmen) which will exist in its
pressroom during the period covered by the collective
agreement'25 undoubtedly based primarily on such factors
as the newspaper's circulation. However, since the size
(i.e., number of pages) of a newspaper may vary
substantially from day to day by reason of such factors as
amount of news and quantity of advertising, in actual
practice it not infrequently occurs that the "markup" or
pressmen manpower reporting regularly for work in the
particular newspaper's pressroom, is inadequate for the
newspaper's needs on a given day or days. On such
occasions, it has been the practice for the newspaper
publisher to notify its chapel chairman of its needs for
additional pressmen. The chapel chariman in turn
communicates with the Union, which, on the basis of
rosters of pressmen available for extra work, furnishes
pressmen from any source available- including other
Washington newspaper employees (both those who are
employed by members of Publishers Association and
those, such as Wall Street Journal pressmen and Local
No. 1 [U.S. Government] pressmen, who are not),
pressmen from "neighboring" places such as Hagerstown,
Maryland, and "traveler" pressmen who may be from
distant locales.2t Such supernumeraries are not placed on
the employing newspaper's "priority list."
This somewhat detailed description has been furnished
because it is this system which Respondents characterize
as "interchange" of pressmen among their newspapers. It
is clear, however, that it is either not interchange at all, or
not interchange in a sense which is controlling here, since
(1) the practice does not involve a Publisher
Associationwide unified manning system under which
pressmen are constantly or indiscriminately shifted in
employment from newspaper to newspaper, but rather
separate pressmen employment chapels for each of the
three Respondent newspapers;27 (2) the additional
pressmen thus temporarily recruited as the particular
need arises are mere supernumeraries, almost invariably
elsewhere regularly employed; (3) the practice of
supplying such supernumeraries is neither limited to
Respondents, nor is the manpower pool of such
supernumeraries limited to employees of Respondents;
(4) the Union could (as other unions do) continue to supply
such supernumeraries in precisely the same fashion within
a single-employer bargaining context.
With regard to the contention raised by Respondents'
seventh affirmative defense, that the Union has not
"offered to sever its representation of employees into
separate unions representing the employees of each
Respondent only," it may be observed that there was no
obligation upon the Union to do so. The Union was and is
not required to reorganize itself or fragment its
membership into separate unions at each of the
publishers' pressrooms. There is nothing unusual about a
union's representing employees at a number of plants of
different employers, with the employees at each plant
constituting a separate bargaining unit while all hold
membership in the same union.
Respondents' contentions, raised by their eighth
defense, that the Union has not claimed to represent a
majority of employees in each of Respondents'
pressrooms, has not been recognized pursuant to Board
certification, and that the historic multiemployer
bargaining pattern establishes the multiemployer unit as
the "one and only accepted and appropriate unit" unless
Respondents and Publishers Association agree otherwise,
are likewise unsound. In and by its requests for bargaining
on a single-employer basis, the Union claimed
representation of the pressmen in each of Respondents'
pressrooms, which in fact it unquestionably had and
25 Star Director of Industrial Relations Boyd testified credibly
that he regards the Star's regular pressmen as regular full-time
employees of the Star. Post Assistant Business Manager for
Labor Relations Kennelly testified credibly that "We have a right
to discharge [pressmen ] employees There is no doubt about it "
It was conceded by Publishers Association Executive Director
Gronkiewicz that at no time have any of the employees here
involved been in the employ of Publishers Association, but all "in
the employ of one of the three newspapers involved here." It was
stipulated at the hearing that each Respondent has maintained its
own particular types of employee benefits Thus, for example, the
Post has a profit-sharing-pension benefits plan for its own regular
employees, including members of the Union, not part of the
multiemployer collective agreements here described, as do also
the Star and the News
21 As indicated above, a "chapel" consists of all union
pressmen working in the pressroom of a given newspaper
publisher Each chapel maintains , to the newspaper's knowledge,
a printed current list of chapel members in order of seniority,
known as a "priority list " If a chapel member elects to transfer to
another of the Respondent newspapers in the event of an opening,
and is not vetoed by the newspaper publisher to whom he wishes
to transfer, he loses all seniority in the old chapel and goes to the
bottom of the seniority list at the new chapel, "in effect .
changing employment .. completely," as testified credibly by
Union President Callahan Each chapel is headed by an elected
chapel chairman, who holds meetings of the chapel from time to
time
2s The number of "situations" at a given newspaper is the
arithmetical product of that newspaper's "markup" times the
number of shifts
26 It is additionally observed that pressmen accrue length-of-
vacation rights upon the basis of overall time in grade as
pressmen, including for this purpose supernumerary work of the
type described Since this relates essentially to union-
administered benefits applicable upon an across-the-board basis
to all pressmen, even those moving to Washington from
California, I do not consider it to be of controlling significance
here
2' For example, Star Director of Industrial Relations Boyd
testified credibly that the "priority list" of pressmen constituting
the "markup" of the particular newspaper is made up on the basis
of the seniority of the pressmen employed by that individual
publisher, and not on a Publisher Associationwide seniority basis.
He further testified that he regards the pressmen on the Star's
"priority list" as regular full-time employees of the Star
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has."" At no time did Respondents or any of them, or their
representative Publishers Association, express doubt
regarding the Union's representative status concerning
their respective pressmen, nor was there any basis for
doubt on that score. At no time has any pressmen raised
such a question, nor has any Respondent inquired. Board
certification is not a prerequisite to unit appropriateness
or recognition, and has never been so regarded by the
parties here in their past dealings. Nor is an employer's
acceptance, agreement, or consent a prerequisite to unit
appropriateness; were it otherwise, an employer could
defeat his statutory obligation to bargain by withholding
his consent. It is for the Board, and not Respondents, to
decide which unit is appropriate for bargaining purposes-
with or without Respondents' "mutual consent." And,
further contrary to Respondents' contention, no Board
representation case or election is required for that
purpose; such a question may be tested and decided in a
refusal-to-bargain unfair labor practice case such as that at
bar."`'
Finally, Respondents' contention, raised also by their
ninth defense, in effect that in view of their historic
pattern of bargaining, the multiemployer unit was the only
appropriate bargaining unit, is manifestly untenable for a
variety of reasons; viz, (1) the controlling decisions in the
Detroit and New York publishers cases, supra; (2) the fact
that a particular type of bargaining unit has been utilized
in the past does not negate the appropriateness of a
different unit; (3) the Act does not require that the
bargaining unit sought be the only appropriate unit, but
merely that it be "a[n]" appropriate unit;30 (4) a plant-size
bargaining unit is presumptively appropriate31 and the
presumption has not here been overcome ; (5) no question
has been raised as to the appropriateness of the grouping
of pressmen personnel (journeymen , apprentices, and
Hymen ) or job classifications ; 32 (6) the Board does not
regard a multiemployer unit as appropriate in absence of
consent of the parties;33 (7) the record as a whole clearly
establishes, as is here found , that single-employer units of
pressmen at each of Respondents ' pressrooms-
separately owned, operated, supervised, and staffed as
they are- are appropriate for bargaining purposes.34
E. Adequacy of Union Notice of Intention to Bargain on
Single-Employer Basis - Second Affirmative Defense
Respondents allege in the second affirmative defense
that their latest collective agreement with the Union was
automatically renewed because the Union failed to give
proper notice of nonrenewal.
i" Cf Lincoln Manufacturing Co, Inc, 160 NLRB 1866
Although there is no evidence that the representation status of the
Union was limited by any of its members to multiemployer
bargaining , credited testimony of Union President Callahan
establishes that the union actions here requesting individual-
employer bargaining were taken after full discussion and
unanimous resolution at a general union membership meeting,
with no dissent since Credited testimony of the union chapel
chairmen (Fisher, Yost, and Clark) at each of Respondent
newspaper publishers ' pressrooms establishes beyond doubt that
all pressmen employed there are (with the possible exception of a
few Hymen, not yet initiated , who in no way affect the otherwise
arithmetical unanimity enjoyed by the Union) all members of the
Union Respondents ' own witnesses conceded their absence of
doubt concerning their pressmen 's membership in the Union
Z" New York publishers case , supra, 364 F 2d at 296-297,
Seventeenth Annual Report of the National Labor Relations Board
(1952), p 56. Even good-faith doubt as to appropriateness of a unit
does not constitute justification for refusal to bargain if in fact and
The parties' collective agreement here involved
extended from October 1, 1964, to September 30, 1966.
Section (1), dealing with "Duration and Renewal,"
provides, in subsection (b), that unless notification of
proposed change "in any conditions ... to take effect after
Sept. 30, 1966," is given between 60 and 90 days prior to
the agreement's expiration date, the agreement is to be
deemed automatically renewed for a further year. The
facts relating to notifications by the Union are undisputed.
It is their legal efficacy under the quoted provision which
is challenged.
On January 20, 1966, the Union notified Publishers
Association in writing that following expiration of the then
current agreement (i.e., September 30, 1966), the Union no
longer wished to bargain with Respondents on a
multiemployer basis but only separately with each of
them. Specifically calling attention to section 1 of that
agreement , the Union added that it would again provide
timely notice under that provision (i.e., 90-60 days before
expiration), but that "in view of the serious and important
nature of the action we wish to take, we have deemed it
advisable to notify you of it at this time as well." The same
letter was sent to each Respondent. These letters were
acknowledged on January 27 and 28 by Publishers
Association and Respondents, indicating that the matter
was receiving consideration. On June 8, Publishers
Association notified the Union in writing that the
publishers declined to negotiate on a single - employer basis
but would insist on continuing to bargain only on a
multiemployer basis as in the past.
On July 1, 1966, the Union again wrote to each
Respondent , calling attention to its previous notification of
January 20 and stating that notification of its intention to
bargain on a single-employer basis was now being given
within the 90-60 day period preceding contract expiration;
and that it would submit and be available to discuss a new
proposed agreement before July 30. On July 6, 7, and 8,
each Respondent replied to the Union in writing , calling
attention to Publishers Association 's previous response on
Respondents' behalf, "unqualifiedly rejecting your
Union 's demand for individual bargaining ," and stating
that the Union's July 1 letter had been referred to
Publishers Association Executive Director Gronkiewicz
for reply. On July 11, Publishers Association, through
Gronkiewicz on behalf of Respondents, further replied to
the Union's July 1 letter, again "unqualifiedly reject[ing]
your demand for bargaining on an individual employer
basis and we will not enter into any negotiations
concerning a new contract while the union adheres to this
law the unit is appropriate N L R B v Primrose Super Market of
Salem, Inc , 353 F 2d 675 (C A 1), cert. denied 382 U S. 830,
United Aircraft Corporation v N L R B , 333 F 2d 819, 822
(C A 2), cert denied 380 U S 910, Florence Printing Co. v
N L R B , 333 F 2d 289, 291 (C A 4), Owego Street Supermarkets,
Inc , 159 NLRB 1735, 1750, Oklahoma Sheraton Corporation, 156
NLRB 681 , fn 1 Respondents ' August 26 petitions seeking an
"Association [ i e , multiemployer] Unit" were accordingly
dismissed by the Board 's Regional Director for Region 5, review
of whose action was denied by the Board on October 27.
30 NLRA Sec 9(a), New York publishers case , supra, 364 F 2d
at 296 . Nor need the requested unit be the "optimum or most
appropriate unit for collective bargaining." The Black and Decker
Manufacturing Company, 147 NLRB 825, 828
3' New York publishers case , supra, 364 F 2d at 296;
Worthington Corporation, 155 NLRB 59, 61.
32 New York publishers case , supra , 364 F 2d at 296
33 Detroit publishers case , supra , 154 NLRB 1494 , 1500-01
34 Cf Detroit and New York publishers cases, supra
THE WASHINGTON POST CO. 825
position . We stand willing to continue our negotiations as
we have in the past [i.e., on a multiemployer basis] and we
are prepared to exchange proposals with you." On July 12,
the Union hand delievered to each Respondent an
individual proposed contract for the period October 1,
1966, to September 30, 1967.35 On August 2, Publishers
Association wrote to the Union that although a "strict
reading of the Contract would entitle us to consider it as
having been extended," since Publishers Association (as
distinct from Respondents, its members) had not been
given formal notification within the 90-60 day period
preceding expiration, nevertheless, inasmuch as
Publishers Association was "aware that your Union does
expect to negotiate a new Agreement," Publishers
Association was forwarding to the Union a contract
proposal upon which it would negotiate "as we have in the
past" (i.e., on a multiemployer basis).
On August 9, the Union wrote each Respondent
suggesting specific dates, times, and places for single-
employer negotiations . On August 11 and 12, each
Respondent wrote the Union, stating that the Union's
August 9 letter had been referred to Publishers
Association for reply. On August 12, Publishers
Association replied that it (i.e., Publishers Association)
was available to meet with the Union at Publishers
Association offices. On August 15, union counsel wrote
Publishers Association, recounting the Union's January 20
and July 1 letters expressing intention to bargain only on a
single-employer basis; rejecting Publishers Association's
contention that the current agreement had been extended
"upon `a strict reading' or otherwise"; that the current
collective agreement would expire September 30, 1966;
and that the Union continued to stand ready to bargain on
an individual-employer basis but not on a multiemployer
basis.
It would appear that Respondents' claim of improper or
defective notification by the Union under the 1964-66
collective agreement rests upon the failure of the Union to
send Publishers Association (as distinct from its
Respondent members) a copy of its July 1 letter to
Respondents. To begin with, it is questionable whether the
notification-of-changes provision (section 1(b)) is
applicable to the union bargaining request here, since it is
doubtful whether the method of negotiating is a
"condition" in the agreement, particularly inasmuch as it
is nowhere mentioned in the agreement However,
assuming that section 1(b) of the agreement is here
applicable, it is to be noted that the 1964-66 agreement is
by its express terms between the Union and Respondent
publishers as "party of the first part" ("acting through"
Publishers Association), and that section 1(b) thereof,
dealing with changes and renewal, requires notification to
the "other party." It would therefore appear that even
"Except for the name of the particular newspaper publisher as
contracting party, these appear to be substantially the same,
although not identical (e g , sec 3, "Hours and Overtime", sec
7(c), vacation scheduling, sec 9( e), maintenance crews, sec 24,
retirement, pension, and profit-sharing programs , sec 25 [News],
work uniforms and gloves)
ae In this connection it is observed that Union President
Callahan's credited testimony establishes that, except for
grievances (at a stage referable to a joint -standing committee and
expressly required by the collective agreement to be addressed
directly to Publishers Association), communications regarding
problems arising under the 1964-66 collective agreement were
addressed by the Union "normally to each individual publisher "
'r It is further noted that in RM petitions (Cases 5-RM-574,
575. and 576) filed by each Respondent with the Board' s Regional
technically the Union complied with the notification
requirement of section 1(b) by its July 1 written
notifications to the Respondent publishers, expressly
identified in the agreement as the other "party" to the
agreement.36 Furthermore, notifications to a principal
itself may hardly be regarded as defective because its
agent is not also notified, particularly where the contract
notification provision does not require notifications to the
agent. It cannot be doubted that had each Respondent (as
distinguished from Publishers Association) sent written
notifications under the contract to the Union, these would
not have been invalid because not also sent by Publishers
Association. Moreover, it is plain from Respondents' own
July 6, 7, and 8 letters to the Union that the Union's July 1
letters had been referred to Publishers Association for
reply; and also from Publishers Association letter of
July 11 to the Union that it had received from Respondents
the Union's July 1 letters and was responding thereto. If,
notwithstanding the foregoing, there nevertheless
remained any doubt, which there does not, of the
effectiveness of the Union's notifications, it would be
dispelled by Publishers Association's further letter of
August 2 (as well as its and Respondents' subsequent
actions and letters of August 11 and 12) proposing contract
modifications - a position consistent with acknowledgment
on its and Respondents' part that the existing (1964-66)
contract had not been automatically renewed or
extended.37 It is of course crystal clear, upon the record
presented, that Respondents were at no time since at least
the receipt of the Union's January 20 letter under any
misapprehension as to the Union's intentions, desires, and
position with regard to the Union's unwillingness to
continue with multiemployer bargaining. The Union's
position and its consistent maintenance thereof were made
clear not only in all of its written communications from
January 20 on, but also in meetings thereafter between the
Union and Publishers Association and Respondents.
Under the circumstances shown, it appears to be
reasonably apparent that the Union gave timely,38 unequiv-
ocal, and otherwise proper notice of its desire not to
continue the existing multiemployer bargaining
arrangement, as well as of its subsequent consistent desire
and demand to engage in single-employer bargaining with
each Respondent, which each Respondent consistently
rejected. It is accordingly so found.
F. Union's Failure to Establish International Approval for
Union's Request to Bargain on Single-Employer Basis.
Third and Fourth Affirmative Defenses
In their third and fourth affirmative defenses,
Respondents attempt to justify their refusal to bargain
with the Union on a single-employer basis upon the ground
Director for Region 5 on August 26, 1966- officially noticed
herein upon application of Respondents- each Respondent
expressly stated that " Request for recognition as Bargaining
Representative was made [by the Union] on July 1 , 1966 and
Employer declined recognition on or about July 7, 1966" and that
"Date of Expiration of Current Contract " is "Sept 30, 1966
between Union and Washington Publishers Association."
1 N Notification of withdrawal is timely if "given prior to the date
set by the contract for modification, or to the agreed - upon date to
begin the multiemployer negotiations " Retail Associates, Inc ,
120 NLRB 388 , 395 See also NLRB v Jeffries Banknote
Company, 281 F 2d 893 , 896 (C A. 9), Detroit Window Cleaners
Union , Local 139 , et al , 126 NLRB 63, 70-71; Tulsa Sheet Metal
Works , Inc , 149 NLRB 1487 , enfd sub nom NL R.B v Tulsa
Sheet Metal Works , Inc , 367 F 2d 55 (C A. 10)
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union's single-employer bargaining requests had
not been approved by its parent International Union; the
Union lacked authority to demand single-employer
bargaining here without prior approval of the
International; and Respondents doubted that a "final
agreement would or could result" from such union
demands.
The 1964-66 collective agreement- the last arrived at
here through multiemployer bargaining- was by its terms
between Respondent newspaper publishers as "party of
the first part" with the Union (i.e., Local 6) as "party of the
second part."39 The agreement was also thus executed.
The parties' signatures in execution of this agreement are
followed by a statement, signed by the International's
president, that the agreement was made "with the consent
and approval of the International ... which undertakes to
guarantee the fulfillment of the conditions hereinbefore
set forth" except for breaches or work stoppages not
actually authorized, ratified, or actively participated in by
the International. The same statement by the International
follows an incorporated separate agreement between the
Union and the Star, supplementary to this 1964-66
multiparty collective agreement; but not the Union's
incorporated separate supplementary agreement with the
Post.40
Although the evidence establishes that at times (not
invariably) in the past Local 6 has called upon the
International for assistance in attempting to resolve
negotiations with Respondents when a blockage was
reached, there is no credible evidence that the
interposition or approval of the International occurred,
much less that it was required, at any stage prior to arrival
at an understanding between Local 6 and Respondents. It
is unnecessary to speculate upon the effect, if any, which a
refusal by the International to "approve" a collective
agreement entered into by Local 6 might have had;
although there would be substantial basis for concluding41
that such an agreement would bind the Local but possibly
not the International. There would also be substantial
basis for concluding that the International- as, indeed,
set forth in the very language employed by it following the
"4 There is no question that Local 6 is subordinate to the
International
4" G C Exh 2, p 47 and p 52
41 As attributed even to the Star's Director of Industrial
Relations Boyd, by the testimony of Respondents' witness Waits,
the News' Assistant Business Manager in charge of its Labor
Relations
42 This takes into consideration the provisions of the
International's constitution and bylaws in terms of the actual
"loose" practices of the International and its local unions
thereunder, as established by credited testimony of International
Vice President Moore Particularly since not proved otherwise,
Respondents are hardly in a position to insist that the Union and
its International should apply stricter or different rules of conduct
in their dealings with each other than they themselves (i e , Union
and International) chose to observe N L R B v National Mineral
Co , 134 F 2d 424, 426-427 (C A 7), cert denied 302 U S. 753;
N.L R B v National Seal Corporation, 127 F 2d 776, 779 (C.A. 2),
Pueblo Gas and Fuel Co v. N L R B , 118 F 2d 304, 307-308
(C.A. 10); N L R B v Star Publishing Co , 97 F 2d 465, 470-471
(C A. 9), Lane Cotton Mills Company, 9 NLRB 952, 967-968,
enfd 111 F 2d 814 (C.A 5); cf N.L.R B v Deena Art ware Inc ,
198 F 2d 645,652 (C A 6)
4" News Assistant Business Manager for Labor Relations Waits
conceded that there has never been any indication from the
International , Local 6, or elsewhere that the International "was in
any way questioning or disassociating itself from the Union's
parties' (i.e., Local Union's and Respondents') signatures
to the agreement- serves merely as a limited guarantor of
performance by its Local union of the agreement. Be these
matters as they may, however, it is clear that, at any rate
so far as Respondents are concerned, International
participation in or approval of a bargaining request of its
Local is neither required nor has it been shown historically
to have taken place; it is only International approval or
guarantee of the final agreement which has occurred.
What is here involved is the statutory bargaining
obligation of each Respondent, not the validity of any
collective agreement they might reach.
Speculation by Respondents as to whether Local 6 had
the power to or was "authorized" by the International to
request single-employer bargaining would seem to be as
unwarranted, pointless, and theoretical as speculation by
Respondents that (as alleged in their fourth affirmative
defense) the International would not approve a collective
agreement negotiated on a single-employer basis by its
Local.42 There is no indication in the various
communications from Respondents or Publishers
Association to the Union that Respondents or Publishers
Association entertained any doubt on this score.
Furthermore, if any such doubt was entertained, it would
have been a simple matter for Respondents or Publishers
Association to resolve it by inquiring from the
International, which was concedely not done.43 Under the
circumstances, it is late in the day for Respondents to
raise such speculative suppositions at this time.44 45 Far
from establishing that the International would have
withheld its guarantee or "approval" from collective
agreements negotiated by Local 6 on a single-employer
basis,46 credited evidence47 establishes that Local 6 was
free to bargain with Respondents on a single-employer
basis and the International has in fact approved
agreements negotiated in that manner by other Locals, as
well as by Local 6 itself in the Washington area (e.g., with
Wall Street Journal). Furthermore, a collective agreement
negotiated by the Union with each Respondent herein
following the hearing at bar and around the time of the
expiration of the 1964-66 agreement- under a "no
request for single -employer bargaining."
44 It is nevertheless noted that credited testimony of
International Vice President Moore and of Union President
Callahan establishes that although International President
DeAndrade had appaiently at one time indicated that he was
opposed to abandonment by Local 6 of the multiemployer
bargaining pattern, this was clearly only DeAndrade 's personal
view, in no way binding upon Local 6 or the International
International Vice President Moore testified credibly that the
International would not withhold its approval of a collective
agreement because negotiated by Local 6 on a single-employer
basis
45 Refusal to bargain is not excused by belief that bargaining
will be futile Cf N.L R B v Sunrise Lumber & Trim Corp, 241
F 2d 620, 624-625 (C A 2), cert denied 355 U S 818, N L R B v
Jacobs Manufacturing Co., 196 F 2d 680,683 (C A. 2).
4" There is no evidence that under the International's
constitution or the Union's charter, bylaws, or otherwise, any
restriction existed or was placed on the Union's power to engage
in collective bargaining on a single-employer basis at any time at
its election General Counsel' s motion , upon which decision was
reserved at the hearing, to strike International 's constitution and
bylaws (Resp Exh 12) from evidence as unconnected, is hereby
denied
41 Testimony of International Vice President Moore and Union
President Callahan
THE WASHINGTON POST CO.
prejudice" stipulation , to be sure48- was thereafter in
fact "approved" in the usual form by the International.
G. Understandings Reached Between Union and
Respondents on Multiemployer Basis, in Interim Between
Union's Demand for Single-Employer Bargaining and
Expiration of Last Multiemployer Collective Agreement:
10th Affirmative Defense
Respondents ' 10th and last affirmative defense raises
the issue of the effect, if any, of dealings and
understandings arrived at between the Union and
Respondents , on a multiemployer basis, during the period
intervening between the 90th and 60th days preceding
expiration of the parties' 1964-66 collective agreement.
It is undisputed that following its January and July
notices of intention to bargain only upon a single-employer
basis, the Union met with Respondents and Publishers
Association concerning various matters involved in the
operational administration of the existing (1964-66)
collective agreement . One such matter concerned the
pressmen 's apprentice program , and decisions arrived at
could well have had continuing effects and implications,
although they did not in any way constitute negotiation of a
new agreement.
As to Respondents ' contention that these meetings in
some way constituted a waiver or abandonment of the
Union ' s position insisting on single-employer bargaining
with respect to any new contract to be effective after
expiration on September 30 of the existing agreement, it
need only be said that matters so discussed involved
operational problems arising under administration of the
parties' then -effective collective agreement , and that such
discussions , during such period , for practical purpose
could hardly be without impact upon the parties'
relationships or without effect upon the pressmen even
beyond the contract period ; that discussion and handling
of such operational problems were required under the
parties' collective agreement then in force; it has not been
shown- indeed , the contrary clearly appears- that any
such discussions or dealings were intended to alter or had
the effect of altering the Union 's consistently maintained
prior and subsequent position insisting on single-employer
bargaining with respect to any new contract to be effective
on and after October 1, 1966; the Union's mere
participation in discussions with Respondents and
Publishers Association during the 90-60 day period prior
to the expiration of the 1964-66 collective agreement was
neither a waiver nor abandonment of the Union's position
and notices insisting on single-employer bargaining
regarding any subsequent contract , nor an extension of the
existing contract ; 49 and Respondents do not claim they
were misled ,50 and have not shown they were prejudiced.
4' Although the no prejudice" stipulation inhibits reference by
the parties to these facts, parties are without power to forbid
utilization of facts by the trier, Board, or courts, in the formulation
of decisions, since proceedings of this type are not mere sterile
intellectual pastimes
"" Cf The Evening News Association, etc , "The Detroit News,"
154 NLRB 1482, 1483-84
"' Respondents' witness Gronkiewiez (Publishers Association
executive director) and Kennelly (Post assistant business
manager for labor relations) conceded that at no time did the
Union withdraw, modify, or mitigate its insistence upon single-
employer bargaining with respect to any new contract RM
petitions filed by each Respondent with the Board's Regional
Director for Region 5 on August 26 expressly state that "Date of
827
H. Posthearing Developments, Mootness
Shortly after conclusion of the hearing herein, each
Respondent publisher, under the terms of a stipulation
settling and withdrawing a proceeding by General Counsel
in the United States District Court in and for the District of
Columbia for injunctive relief under Section 100) of the
Act (in effect requiring Respondent publishers to bargain
with the Union individually), engaged in single-employer
bargaining with the Union, resulting in execution on
October 19 of separate collective agreements between
each Respondent newspaper publisher and the Union for a
3-year period (October 1, 1966-September 30, 1969),
conditionally automatically renewable from year to year
thereafter. Each of these agreements was subsequently
"approved" and "guaranteed" by the International in the
same form as the previous (multiemployer) agreement.
Although there may be basis for regarding this
posthearing development as in a sense mooting the basic
issues, at least so far as Federal court jurisdiction is
concerned, upon the ground that the requirement of "case
or controversy"51 may no longer be met, the Board does
not appear to have been deterred by such factors from
issuance of orders in effectuation of its responsibilities for
administration of the public policies underlying the Act. 52
Concluding Findings
In view of the foregoing, more specifically the seemingly
controlling applicability of the New York and Detroit
publishers cases, and the absence of merit in the
affirmative defenses, it is apparent that each Respondent
has without factual or legal justification refused to bargain
with the Union as duly authorized collective-bargaining
representative of its employees in a unit (namely, the
journeymen and apprentice pressmen and flymen
employed in its pressroom) appropriate for that purpose. I
so find.
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Each Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All journeymen and apprentice pressmen and flymen
employed in the pressroom of each Respondent, excluding
all other employees and supervisors as defined in the Act,
constitute separate appropriate units for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
Expiration of Current Contract" is "Sept 30, 1966 between Union
and Washington Publishers Association "
s' U S Const Art III, Sec 2, Ivan C McLeod v General
Electric Co , et at , 385 U S 533, Barker Painting Co v Local No
734, Brotherhood of Painters, et al , 281 U S 462,463-464, United
States and Interstate Commerce Commission v Alaska Steamship
Co et at, 253 U S 113, 115-117, but compare Southern Pacific
Terminal Co v Interstate Commerce Commission and Young, 219
U S 498, with which cf United States, et at v Anchor Coal Co , et
at , 279 U S 812 See, generally, Munson, The Decision of Moot
Cases by Courts of Law, 9 Colum L Rev 667 (1909)
sz Cf Jaycox Sanitary Service of Garden Grove, Inc ,161 NLRB
544, 545-546, and cases cited fn 4, Aacon Contracting Company,
Inc , 127 NLRB 1250, 1268-69
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times material herein, the Union has been the
exclusive bargaining represent-anve-oftheemployees in
each of the aforesaid appropriate units within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively with
the Union as exclusive representative of the employees in
the aforesaid separate appropriate units since on or about
July 1, 1966, each Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(5) of the Act.
6. By engaging in such refusal to bargain, each
Respondent has interfered with, restrained, and coerced
its employees in the exercise of their statutory rights, in
violation of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondents' affirmative defenses and each of them
are insufficient in fact and law.
THE REMEDY -
Having found that Respondents have engaged in certain
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, I recommend that they be required to
cease and desist therefrom, as well as from like or related
conduct, and that they take certain affirmative action to
effectuate the policies of the Act. None of Respondents'
affirmative defenses having been established or being
sufficient in fact or law, each should be dismissed with
prejudice.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby make the following:
RECOMMENDED ORDER
Respondents, The Washington Post Company, Evening
Star Newspaper Company, and The Washington Daily
News Company, Inc., shall each, and their respective
officers, agents, successors , and assigns , shall each:
1. Cease and desist from:
(a) Refusing to bargain collectively with Newspaper
Web Pressmen's Union, Local No. 6, International
Printing Pressmen's and Assistants' Union of North
America as exclusive representative of all journeymen and
apprentice pressmen and flymen employed in their
respective pressrooms, excluding all other employees and
supervisors as defined in the Act, concerning rates of pay,
wages, hours, and other terms and conditions of
employment.
(b) In any like or related manner interfering with the
efforts of the above- named Union to bargain collectively
for the employees in said unit.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as exclusive representative of all employees
in the appropriate unit described above, concerning rates
of pay, wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at their respective plants in Washington, D.C.,
copies, of the attached notice marked "Appendix A." 53
Copies of said notice, to be furnished by the Regional
Director for Region 5, after being duly signed by
Respondents' respective representatives, shall be posted
by each 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 it to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.54
Respondents' affirmative defenses should be and they
are each hereby dismissed with prejudice.
53 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 "
54 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
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 you that:
WE WILL bargain collectively, upon request, with
Newspaper Web Pressmen's Union, Local No. 6,
International Printing Pressmen's and Assistants'
Union of North America as the exclusive
representative of all of our employees described
below, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and
embody in a written agreement any understanding
reached. The bargaining unit is:
All journeymen and apprentice pressmen and
flymen employed in our pressroom at our
Washington, D.C., place of business, excluding
all other employees and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner
interfere with the efforts of the above-named Union to
bargain collectively for the employees in said unit.
THE WASHINGTON POST
COMPANY [OR: EVENING
STAR NEWSPAPER
COMPANY] [OR: THE
WASHINGTON DAILY NEWS
COMPANY, INC.]
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 707 North
Calvert Street, Baltimore, Maryland, Telephone 725-846,
Extension 2100.