Worrell Newspapers, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 402 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Worrell Newspapers, Inc. and Bristol Printing and
Graphic Communications Local No. 259, Interna-
tional Printing and Graphic Communications
Union. Case 5-CA-8090
September 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 29, 1977, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in response to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify the Remedy,2 and to adopt her
recommended Order, as modified herein.
In her recommended Order, the Administrative
Law Judge ordered Respondent to sign the collec-
tive-bargaining agreement agreed to between the
Union and Respondent on July 13, 1976, and to give
retroactive effect to its terms and conditions. How-
ever, the terms of that agreement establish an
effective life of I year from February 1, 1976, to
January 31, 1977, and the contract term obviously
will have expired prior to the issuance of this
Decision. Under these circumstances, in order to
fully remedy the unfair labor practices found herein,
we will order Respondent to sign that agreement at
the request of the Union. We will further order that if
the Union does not request Respondent to sign the
agreement that Respondent, upon request, bargain in
good faith with the Union with respect to the terms
and conditions of a contract and, if an agreement is
reached, embody it in a signed agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Worrell Newspa-
pers, Inc., Bristol, Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order, as herein modified:
232 NLRB No. 65
1. Substitute the following for paragraph 2(a) of
the recommended Order:
"(a) Upon request, sign a collective-bargaining
agreement containing the terms and conditions of
employment agreed to between Respondent and the
Union on July 13, 1976, give retroactive effect to its
terms and conditions, and make its employees whole
for losses, if any, they may have suffered as a result
of its refusal to sign such an agreement, with
interest."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) If no such request is made, bargain collectively
in good faith with the Union, upon its request, as the
exclusive representative of the employees in the
appropriate unit, over the terms and conditions of a
new collective-bargaining agreement and, if an
agreement is reached, embody it in a signed
agreement.
3. Substitute the attached notice for that of the
Administrative Law Judge.
In adopting the Administrative Law Judge's findings and conclusions
in this case, we do not adopt her interpretation, expressed in fn. 18 of her
Decision, of Lucas County Farm Bureau Cooperative Association, Inc., 218
NLRB 1150 (1975), as that Decision was reversed in part by the Board in a
Supplemental Decision and Order, 218 NLRB 1155 (1976).
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, sign a contract with
Bristol Printing and Graphic Communications
Local No. 259, International Printing and Graph-
ic Communications Union, containing the terms
and conditions of employment agreed to between
us on July 13, 1976.
WE WILL give retroactive effect to its terms and
conditions and make our employees whole for
losses, if any, which they may have suffered as a
result of our refusal to sign a contract.
WE WILL, upon request, bargain with the Union
over the terms and conditions of a new agreement
if the Union does not request that we sign the
agreement, and, if an agreement is reached, we
will sign a new contract.
WE WILL NOT refuse to bargain collectively with
the aforementioned Union for the unit described
herein with respect to rates of pay, wages, hours
of work, and other terms and conditions of
employment. The bargaining unit is:
402
WORRELL NEWSPAPERS, INC.
All pressroom employees, including those
employees involved in opaquing, enlarging,
reducing and screening of half tones, cam-
eras used for plate making, the plate burner,
the plate processor and all functions from
the cameras preparatory for the making of
offset plates, except stripping, but excluding
all other employees, guards and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to engage in, or to
refrain from engaging in, any or all the activities
specified in Section 7 of the Act.
WORRELL NEWSPAPERS,
INC.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRCA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act. Based on charges filed on
July 26, 1976,1 a complaint was issued on September 14
presenting allegations that Worrell Newspapers, Inc.,
hereinafter referred to as Respondent, committed unfair
labor practices within the meaning of Section 8(aXI) and
(5) and Section 2(6) and (7) of the Act. Respondent filed an
answer denying that it committed the violations of the Act
alleged. Upon due notice the case was heard before me at
Bristol, Tennessee, on October 28 and 29. Representatives
of all parties entered appearances and had an opportunity
to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs filed by
Respondent and the General Counsel, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a Tennessee corporation, maintains its
principal office in Bristol, Virginia, where it is engaged in
the publication of a morning newspaper called The Bristol
Herald Courier. During the preceding 12 months, a
representative period, Respondent had gross revenues
exceeding $200,000 and regularly printed advertisements of
products which are nationally advertised and sold in
interstate commerce, published nationally syndicated
articles and news stories, and shipped newspapers to points
outside the Commonwealth of Virginia.
Respondent admits, and I find, that at all times material
Respondent is, and has been, an employer as defined in
Section 2(2) of the Act, engaged in commerce and
operations affecting commerce as defined in Section 2(6)
and (7) of the Act, respectively.
II. THE LABOR ORGANIZATION
It is admitted and I find that Bristol Printing and
Graphic Communications Local No. 259, International
Printing and Graphic Communications Union, hereinafter
referred to as the Union, is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The determinative issue presented in this case is whether
Respondent and the Charging Party reached an agreement
upon the terms and conditions of a collective-bargaining
agreement which Respondent refused to sign.
B. Background
It is admitted that, at all times material herein, Respon-
dent has recognized the Union as the representative of
employees of Respondent in a unit appropriate for
collective bargaining consisting of all pressroom employ-
ees, including those employees involved in opaquing,
enlarging, reducing and screening of half tones, cameras
used for platemaking, the plate burner, the plate processor,
and all other functions from the cameras preparatory for
the making of offset plates, except stripping. Respondent
and the Union have had a collective-bargaining relation-
ship which dates from 1938. At least since 1954, with the
exception of the years 1968-69, when the parties executed a
2-year contract, there have been successive 1-year con-
tracts. The most recent contract expired on January 25,
1976.
C. The Operative Events
By letter dated November 21, 1975, Respondent gave the
Union a contract termination notice. On December 15, the
Union stated its desire to negotiate a new contract and
presented Respondent with its contract proposals. By letter
dated December 20, 1975, Respondent's senior vice
president, Herman Giles, made Respondent's counterpro-
posal that the current contract be renewed without change
and indicated Respondent's willingness to discuss the
proposals contained in the Union's letter.
The first negotiating meeting was held on January 8.
Publisher Giles was not present for Respondent, but gave
instructions to Jack W. Smith, a private management
consultant under retainer with Respondent for the past 7-
1/2 years, who acted as Respondent's spokesman. Smith
was accompanied by Floyd Jones, Respondent's account-
ing manager. He responded to the Union's itemized
proposals with criticism and commentary in accordance
with Giles' instructions, and presented Respondent's wage
counteroffer of an increase for journeymen-pressmen. In
rejecting the Union's various proposals, and consistent
All dates herein are in 1976 unless otherwise specified.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with its written proposal for the renewal of the existing
contract without change, it was clear and the parties so
understood that Respondent was proposing the continua-
tion of existing benefits. It also was made apparent that
neither Smith, as Respondent's spokesman, nor Jones
possessed the authority to depart in negotiations from the
instructions they had brought to the meeting from Giles. 2
Thus, at this first meeting Henry D. Little, president of the
Local Union and spokesman for the union negotiating
committee, advised that the wage counteroffer was inade-
quate and insisted that Giles attend future bargaining
sessions.
Giles attended the second bargaining session held on
January 13. According to Giles, he informed the union
committee that:
If we can go through these things and get them settled,
we'll do it, but there's a lot of garbage in this contract
that needs to come out, but we're not going to go into it
if we can reach an agreement.3
Giles, who had been on the scene since 1954, admitted he
did not identify any particular contract language as
"garbage," and that frequently, in the course of negotia-
tions over the past 7 years, he has made similar references
to "garbage." The last major revision in contract language
took place 5 years before the current negotiations and for
some time prior to that the contract language covering the
joint standing committee, the arbitration clause language,
and the arbitration agreement in the contract have
remained the same.4 Giles explained that when he used the
term "garbage" in negotiations he simply meant "its
language I don't like." Little testified that Giles started the
January 13 meeting with an offer to sign their expiring
agreement with a journeyman wage increase and reiterated
Respondent's wage offer. Little averred that Giles did not
say that a lot of things in the contract had to be changed,
nor did he mention that a lot of "garbage" had to come
out. The witnesses agree that no specific proposal of
contract language revision was ever suggested at this
meeting. Giles then proceeded with the Union's list of
proposals, explaining with respect to each how certain
existing benefits applied and what was already available
thereunder, as well as what changes he was willing to make
and which proposals were being rejected together with the
reasons therefor. Agreement was reached on improvements
in facilities relating to the installation and repair of showers
and a change in the scheduling and timing of the New
Year's Eve holiday. Otherwise, all of the Union's proposals
were rejected. Giles testified that no response was made by
the Union to his replies on their rejected proposals. In
2 Giles verified that at no time did Smith or Jones have any authority or
discretion to make concessions or increase Respondent's offers during
negotiating sessions without his personal approval.
:' Smith testified that at the January 13 meeting Giles stated that "If we
could forget about getting an agreement, we would go along with the same
agreement. If not, there would have to be a lot of garbage come out of the
agreement." Jones recalled that it was at the January 14 meeting that Giles
stated that before they signed another contract they "would need to get
some garbage out of the language." There were no questions and no
discussion raised by this comment and Smith could not recall the context of
the "garbage" statement. but testified that it was not in response to anything
from the Union, and Giles gave no explanation as to what was meant by his
discussions relating to the issue of wages, it was suggested
that there was a need for a change in the apprenticeship
scale and Giles proposed a general figure with a promise to
work up and return with specific figures and percentages.
No change was made in Respondent's wage offer for
journeymen at this meeting.
Giles brought to the third negotiating meeting, held the
following day, January 14, an increased journeyman wage
offer and the figures for the proposed apprenticeship scale.
The Union accepted this scale for apprentices. In the
course of negotiations Giles again raised the journeyman
pay proposal by offering a night differential. He also
suggested that they needed to get further away from the
Christmas season than the mid-January anniversary date
for their contract. He proposed a term effective from
February 1, 1976, to January 31, 1977. The Union accepted
this offer. 5 Finally, Giles again raised the journeyman wage
offer and told the Union this was his final offer. The Union
requested that the parties hold another negotiating meeting
to give the Union an opportunity to determine whether to
bring in an International representative. A date for such
meeting was left open, pending the Union's determination
in this respect and, if it decided upon assistance, to
ascertain the availability of such a representative. Giles
informed the union committee that he had presented his
final offer and personally would not attend any further
meetings, but that Smith and Jones would be available.
At a union membership meeting which followed, it was
decided to seek the assistance of an International represen-
tative in the hopes of obtaining a higher wage offer and to
give such representative the power to invoke the "interest
arbitration" clause of the contract to arbitrate wages if
necessary. In furtherance thereof, a fourth meeting was
held with Respondent on January 19,6 at which Interna-
tional Representative Baron Watkins joined the union
committee. Smith and Jones represented the Respondent.
Smith, as Respondent's spokesman, reiterated the final
wage offer presented by Giles at the earlier meeting. In the
course of wage discussions, Watkins inquired whether the
Company would be interested in a contract of longer
duration, and Smith obtained a recess for the purpose of
caucusing with Giles. When Smith returned he reported
that Giles was not interested in anything but a I-year
contract. The Union indicated its willingness to stay with
the 1-year agreement previously agreed to and the subject
was dropped. Watkins and Smith continued their discus-
sion of Respondent's journeyman wage offer and Smith
reaffirmed Giles' last offer as Respondent's final offer.
Watkins then stated that the Union was invoking the
contract arbitration clause and, after leafing through the
statement. The negotiators were fully aware of Giles' offer to sign the
contract "as is," as well as the other specific offers and proposals.
4 These were the subjects of alleged discussions initiated by Respondent
just prior to the hearing herein which I ruled to be in the nature of
settlement efforts and irrelevant to the conduct causing the complaint.
s Little testified that the Union responded by stating that this created no
problem, whereas Giles could not remember any specific comment by the
union negotiators and testified that the Union's acceptance of his proposal
may have been by its silence. There is, however, agreement that the Union
accepted this change in the contract anniversary date.
6 1 accept January 19 as the correct date and find that testimony
referring to a meeting of January 20 had reference to this same meeting.
404
WORRELL NEWSPAPERS, INC.
contract and commenting something to the effect that "It
was not worth a green sheet,"7 Smith told Watkins to put
the Union's intentions in writing.8
By undated letter from Little to Giles received by
Respondent on January 23, the Union put in writing its
request for arbitration of the differences of the parties on
the wage issue, and requested that the Respondent name its
representatives to such arbitration board in accordance
with their contract. 9 Giles replied for Respondent, by letter
dated January 28, informing the Union that Respondent
viewed its termination notice as effectuating the expiration
of the contract on January 25, 1976, and stated Respon-
dent's position that, therefore, the arbitration clause was
not available for determination of their wage disagreement.
On February I 1, Little wrote a letter to Giles advising that,
in the Union's view, Respondent's position that the
agreement to arbitrate had expired was erroneous and
referring their disagreement on the applicability of the
"interest arbitration" clause interpretation to the joint
standing committee established by the contract for an
interpretation of their agreement. On February 12, Giles
replied, stating Respondent's position that since the
contract had expired the provision of the joint standing
committee had likewise expired.
On or about February 16, after receipt of Respondent's
February 12 letter, Little, accompanied by another member
of the union bargaining committee, went to the office of
Giles and asked for the names of the Company's represen-
tatives for the arbitration board. They informed Giles that
the Union had chosen their two members and urged Giles
to select the Company's members so that the parties could
proceed to arbitration. Giles told them they had no
contract and, therefore, had nothing to arbitrate, so there
was no need for a board.
By letter dated March 10, Giles wrote Little the following
letter:'
The parties to the collective-bargaining agreement met
several times in good faith in an effort to agree upon a
successor contract. Unfortunately an impasse devel-
oped and no collective-bargaining agreement exists.
There has been no official communication between the
parties since January 19, 1976.
We do not think that all of the employees in the
pressroom should be deprived of the increase in scale
7 Green sheet has reference to an arbitration submission.
K In this respect I do not credit the testimony of Jones that Watkins then
stated there were several unresolved issues and the parties had reached an
impasse, or Smith's testimony that Watkins indicated they might buy the
Company's position on insurance but definitely would not go for a I-year
contract, and, when presented with the Respondent's final offer, said it was
too bad that other issues were still on the table and there appeared to be a
hopeless deadlock. Instead, I credit the testimony of Little that the Union's
other proposals were not mentioned at this meeting which was convened for
the purpose of discussing the open-money issues; that the subject of the
contract duration was limited to the inquiry concerning the Company's
interest therein; that there were no deadlock comments; and that, although
the Union had not at this time specifically withdrawn its rejected proposals,
the Company had never changed its position of rejection of those proposals.
I also credit Little's testimony that when Smith returned after caucusing on
the extended contract duration inquiry he reported Giles' reply that I year
was working just fine and that was what had been discussed, and that Little
stated the Union would go along with that, as well as Little's denial that
Watkins ever said the Union would not accept a 1-year contract duration.
These findings are consistent with the sense of the subsequent letter from the
Union invoking the "interest arbitration" clause.
offered by the publisher. Consequently, it is our
intention to unilaterally put into effect the increase and
the other improvements we offered to all of the
pressmen effective with the pay period beginning
March 14, 1976. Should you desire to discuss this
matter, please advise Mr. Jack W. Smith, SESCO
Management Consultant, telephone 764-4127.
A copy of this letter was hand-delivered by the plant
superintendent to Little on March 10, and a copy was
posted by Respondent on the bulletin board that day. The
letter was received through the mail by Little several days
later. By this time the improvements in facilities agreed to
in January negotiations had been installed. As indicated in
its letter, Respondent effectuated its last offer wage
increase for journeymen effective March 14 and, at the
same time, increased the apprentice wages according to the
scale agreed to by the parties.
Thereafter, on May 19, after further legal consultation
and advice, the Union held a membership meeting at which
it was agreed to accept the Company's contract proposals
as already implemented, rather than pursue the legal issues
with respect to arbitration. In furtherance of this decision,
Little and Union Secretary-Treasurer Gerald Schneider
went to the office of Giles and stated that the Union would
accept "the contract" that the Company had already
implemented and that they were there to sign "the
contract." They asked Giles, "Will you sign the con-
tract?" 10 Giles replied that he was not interested in
signing; that he was not going to sign "that" contract or
"any" contract, and that "If he signed anything it would
not be this contract." According to Giles, he also told the
union representatives that "We went through all these
negotiating sessions and you got an opportunity to agree
and you didn't agree. I'm not going to sign it, and if I did
sign it, it wouldn't be this contract." Little and Schneider
attempted to persuade Giles of the importance of having a
written contract. Giles said he was obligated by law to talk
to the union representatives and he would talk all year, but
he was not going to sign anything. The union representa-
tives stated they were unable to understand why he would
not sign the contract as it was he who had proposed it for
the most part and who had implemented it, and the
discussion turned to why they felt they needed a contract."l
9 The first paragraph of this letter reads as follows:
With further reference to your letter of December 20. 1975. as well as
with respect to the negotiations in which we have been engaged
subsequent thereto, please be advised that we accept your offer, with
one reservation, to renew for I year, commencing January 25, 1976, our
current collective-bargaining agreement.
'O In years past, the Company has always prepared the written
agreement with copies for the Union after agreement was reached and the
Union signed such copies. When Little and Schneider approached Giles,
they had no prepared document.
i" Giles testified that he asked the union representatives why they
wanted a contract "since the employer treats them right." In his testimony,
Giles explained that when he said he was not going to sign "that contract"
he meant the contract Little and Schneider were talking about; that he told
them he was content as things stood. The record testimony establishes the
discussion then turned to Giles' expressed personal dislike of the Interna-
tional, his review of the history of labor problems at other publishers in
(Continued)
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 9, with knowledge that Giles was out of town on
vacation but with Giles' March 10 referral of the Union to
Smith for any further discussions, Little contacted Smith
by telephone and requested that Smith set up a meeting for
the purpose of signing an agreement. Smith advised Little
that he had no authority to sign an agreement or to
schedule a meeting but consented to try to reach Giles and
to contact Little or see him on Monday, July 12. When
Little heard nothing from Smith by the end of his work
shift on July 12, he went to the office of Jones to ascertain
if a meeting had been arranged. Jones knew nothing of the
conversation with Smith but arranged a telephone confer-
ence between the three of them for July 13. At this time, the
Union had a I-year proposed contract drawn up in
accordance with the changed benefits agreed upon and
implemented. In the conference telephone call, Little
reviewed, one by one, the Union's proposals which the
Company had not accepted and informed Smith that the
Union was dropping those proposals. He also informed
Smith that the Union was withdrawing the unfair labor
practice charges it had filed against Respondent, in the
interim after Giles had said he would not sign, and that the
Union was dropping the arbitration request in order to get
a signed contract. Little told Smith that the Union
accepted the contract as the Company proposed it and had
implemented it, and asked Smith to sign. Smith stated that
he did not have the authority to sign a contract. Little
asked Smith for a statement of intent until Giles returned
from his vacation. Smith replied that he had no power to
sign anything but that he would try to contact Giles. Little
asked Smith for a definite date and was given July 19.
Smith did not contact Little on July 19. Instead, Jones
called Little to his office on that date and told Little he
could not do anything.
According to Giles, while he was on vacation he learned
by telephone of the details of the conference call conducted
by Little, Smith, and Jones, regarding signing a contract,
and he told Jones to leave everything alone until he got
back. Upon his return on July 26, Giles called Little to his
office and informed Little of his awareness of the attempts
to obtain a signed contract. Giles testified he told Little,
"Nobody can sign that contract but me.... Now we've
discussed this and we haven't agreed on this contract and
I'm not going to sign it. As far as I'm concerned the matter
is closed." Giles also told Little that he had been through
negotiations and had given all kinds of information to the
National Labor Relations Board, adding, "You fellows had
an opportunity." He did not tell Little that he was willing
to discuss it further. Instead, he said the matter was at an
"end, finished," and "closed." Giles did, however, add that
they need not worry because the Company was going to
look after them and treat them well. Little denied that Giles
stated they had failed to reach an agreement.
which the International was involved, and his assertion that, because of
more recent involvement with The Washington Post, the International was
going broke.
12 The General Counsel points out that, whether or not the Union's
partial acceptance letter misstated the parties' agreement as to the beginning
date of the I-year contract, there is no dispute as to what dates were agreed
upon in bargaining, and irregularities of this nature do not justify a refusal
to sign. See Trojan Steel Corporation, 222 NLRB 478,483 (1976).
On August 12, 1976, Little sent to Smith by registered
mail a drafted contract which the Union requested the
Company to sign, with a covering memo identifying the
contract as the one which was discussed in their July 13
telephone conversation.
D. Analysis and Conclusions
The General Counsel contends that by its refusal to
execute the collective-bargaining agreement since on or
about July 13, 1976, Respondent violated Section 8(a)(1)
and (5) of the Act. He asserts that the evidence establishes
agreement to a new contract containing the terms and
conditions of the old contract, with a new I-year duration
period from February I to January 31, and encompassing
the other changes admittedly agreed upon during January.
His position is that, at the time of the last bargaining
session, the only open question was the amount of the wage
increase for journeymen, as the employer had presented a
final offer on this issue, and that offer was never
specifically withdrawn by the employer. Therefore, he
postulates, it was a continuing offer which remained open
for acceptance while the parties disputed over its arbitrabil-
ity under the expiring contract and which was accepted by
the Union. Further, the General Counsel argues that, even
assuming that the inquiry by the Union at the last
bargaining session concerning the employer's interest in a
multiyear contract amounted to a negotiation for a
contract of longer duration, the employer's rejection
thereof and the Union's reiteration of its earlier commit-
ment to the I-year agreement effectively eliminated
contract duration as a pending issue.12 Alternatively, the
General Counsel urges that even assuming arguendo that
the Union's actions in seeking arbitration constructively
terminated its power of acceptance of Respondent's
January 19 final wage offer, Respondent's unilateral
implementation, on March 10, 1976, of that wage offer, as
well as the other revised contract terms previously agreed
upon, unequivocally demonstrated a continuing offer
which the Union was free to accept at any time, and on this
basis the Union was free to accept the employer's
continuing offer after March 10.
It has long been settled law that where the employer and
the union have reached agreement as to the terms and
conditions of employment covering the represented em-
ployees, either party is required by law, upon the request of
the other, to sign a written collective-bargaining agreement
embodying such understanding. 13
Respondent asserts that no agreement was reached. It
relies on a general statement of contract law that rejection
of an offer terminates that offer so that it is no longer
available for future acceptance.l 4 Respondent contends
that here, when the Union did not accept its final wage
offer but instead sought to invoke the "interest arbitration"
13 See H. J. Heinz Company v. N.LR.B., 311 U.S.514(1941); Sec. 8(d) of
the Act; and Adams Potato Chips, Inc. v. NLR.B., 430 F.2d 90 (C.A. 6,
1970).
14 Board precedent is in agreement with this principle. See Oxmoor Press,
a Subsidiary of the Progressive Farmer Company, 207 NLRB 376 (1973),
where the union's failure to withdraw a proposal after the employer had
rejected it was found not to constitute a basis for an assertion that the union
had agreed to that proposal.
406
WORRELL NEWSPAPERS, INC.
clause, the Union thereby rejected Respondent's final
contract offer.' 5 Thus, its first line of defense is that the act
of seeking an alternative avenue for reaching an agreement
other than the bargaining table is tantamount to a rejection
of the contract proposal last offered at the bargaining table.
It is well recognized that some areas of general contract
law simply do not accommodate themselves to the special
mandatory bargaining scheme established by the statute
governing labor relations. Many approaches away from the
bargaining table are pursued in order to influence the
resulting agreement, and resort to such alternative or
simultaneous action does not constitute abandonment or
rejection of the proposals on the table.' 6 Common among
these are ratification votes, International approval, legal
consultation, strikes, and even impasse.' 7 I see nothing in
the "interest arbitration" concept which suggests that a
submission thereto constitutes a rejection of the proposals
being submitted. Accordingly, as the employer at no time
withdrew its proposal, I hold that the final wage offer was
an open and continuing one.
In this respect, Respondent asserts that under "horn-
book" principles, an offer remains open only for a
reasonable time and thereafter lapses, and that the Union's
"6-month delay" in accepting the contract was plainly
unreasonable. Cases cited by Respondent do not require
the conclusion it urges.'i These cases reveal no set pattern
of specific time limitation for acceptance of offers, nor do
they indicate, other than by a statement of the particular
circumstances, what factors are determinative.19 The
passage of time in the instant case must be considered in
the context of the steps and procedures the Union was
attempting to pursue,20 and the difficulty thereafter
encountered in ascertaining and contacting a representa-
tive whom the Respondent acknowledged as having the
authority to receive the Union's reply. For, just what is
reasonable always depends upon surrounding circum-
stances. This is not a case where an offer or contract
proposal was ignored for an unconscionable span of time
which could lead the party making the offer to believe the
offer was not being considered. Instead, the employer was
immediately made aware that the Union would seek to
invoke procedures to make this final offer more palatable.
When this approach was resisted, the Union advised the
'5 Reliance is misplaced on the The Lane Construction Corporation, 222
NLRB 1224 (1976), involving contract-bar issues, where there had been an
"unqualified rejection" which the union attempted to change after a
question concerning representation was raised. Similarly, T M. Cobb
Company, 224 NLRB 694, 699 (1976), is distinguishable from the situation
here in that the parties had reached an agreement both were obligated to
sign, but the union refused and reopened one of the issues. It was found that
the employer was thereupon free to withdraw or modify its previous
proposal on the ground that the parties are prvileged by mutual consent to
reopen their negotiations. Nor does Loggins Meat Co., Inc., 206 NLRB 303
(1973), lend support to Respondent's position that the Union here rejected
its final offer, for, in that case (at 308), the offer was withdrawn prior to
notification of acceptance. That case does cite precedent (at 307) for the
pnnciple that "while the technical rules of contracts" do not necessanly
control all decisions in labor-management cases, "the normal rules of offer
and acceptance. are generally determinative of the existence of a bargaining
agreement."
16 See e.g., N. L. R. B v. Insurance Agents' International Union, A FL CIO,
361 U.S. 477(1960).
17 See, e.g., Idaho Fresh Pak-Inc., 215 NLRB 676 (1974).
1' John Nickels & Leonard Whitney,, d/,'ua Big John Food King. 171
NLRB 1491 (1968), involved an offer of retroactivity in exchange for a
employer of its selection of members of the joint standing
committee to resolve their dispute on the applicability of
the "interest arbitration" agreement. Thereafter, the em-
ployer's final offer became an existing condition of
employment through the employer's unilateral action. It
could hardly be said in these circumstances that any of the
parties viewed it as an offer which was dying on the vine. I
conclude that the events herein do not support a finding
that the employer's final offer lapsed with the passage of
time.
Respondent also suggests that the disagreement of the
parties which developed after the final wage offer was
made regarding the interpretation of their expiring contract
gave rise to another area in which there was no agreement
with respect to the new contract and became an open-
bargaining issue. I reject this contention. In my view the
disagreement of the parties in this respect was one of legal
interpretation affecting their respective rights under their
expiring contract and not a matter placed in issue on the
bargaining table for the new contract. No contract
proposals in this regard were presented by the employer to
the Union before the Union accepted the employer's offer
to renew the old contract with changes thereafter agreed
upon, an offer under which the parties operated throughout
their negotiations.
The Union advanced the theory that, in substance, the
contract which Respondent refused to sign was made up of
Respondent's own proposals which the Union had accept-
ed, and for this reason it was not privileged to refuse to
sign. I find it unnecessary to scrutinize the evidence
covering the give and take of the bargaining to determine
the origin of each proposal agreed upon, since the refusal
to sign the final agreement is unlawful regardless of
motive. 2 ' Accordingly, I find that the parties reached
agreement when the Union advised of its acceptance of the
employer's final wage offer, and that Respondent unlawful-
ly refused to bargain with the Union in violation of Section
8(aX5) and (1) of the Act, by refusing, on and after July 13,
1976, to sign the agreement proffered by the Union.22
stated condition which was subsequently rejected. The employer's statement
immediately thereafter that the offer was still open was found not to survive
the fulfillment of the condition by outside forces in the order of time. In
Lucas County Farm Bureau Cooperative Association, Inc., 218 NLRB 1150
(1975), the Board held that the employer's last offer, after it was initially
rejected, either continued or was effectively revived or reinstated by the
employer's subsequent conduct and statements, and was accepted within 2
weeks of the last reinstatement of it. Associated Printers Inc., 225 NLRB 619
(1976), did not turn on the time lapse alone, but on the number of "crucial
intervening events" so that reintroduction of matters on which there had
been prior tentative agreement was not found to constitute a repudiation or
bad faith.
19 Cf. Transport Company of Texas, 175 NLRB 763 (1969).
20 Necessary to those steps were the obtaining of legal advice and
counsel regarding the Union's rghts as well as the advisability of pursuing
these various legal courses and, finally, the presentation of an analysis of the
Union's options to the membership for their choice of action.
2i Pioneer Broadcasting Company, 202 NLRB 1005 (1973).
22 In view of my holding herein, I find it unnecessary to pass upon the
General Counsel's alternative contention that the employer's actions in
placing its final wage offer into effect made that proposal a continuing offer.
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW ORDER2 3
1. Worrell Newspapers, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Bristol Printing and Graphic Communications Local
No. 259, International Printing and Graphic Communica-
tions Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All pressroom employees, including those employees
involved in opaquing, enlarging, reducing and screening of
half tones, cameras used for platemaking, the plate burner,
the plate processor and all other functions from the
cameras preparatory for the making of offset plates, except
stripping, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein, the Union has been, and
now is, the exclusive representative of the employees in
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about July 13, 1976, and at all
times thereafter, to execute a collective-bargaining agree-
ment including all the terms and conditions to which the
parties had agreed, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and (I), and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent violated its obligation under
the Act, by refusing to execute the agreement reached by
the parties, I shall recommend that Respondent be ordered
upon request to sign such an agreement, to comply
retroactively to its effective date with its terms, and to
make whole the employees for losses, if any, which they
may have suffered by reason of Respondent's refusal to
sign such an agreement, in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
The Respondent, Worrell Newspapers, Inc., Bristol,
Virginia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign a collective-bargaining agreement
incorporating terms and conditions of employment agreed
upon between it and Bristol Printing and Graphic Commu-
nications Local No. 259, International Printing and
Graphic Communications Union, or otherwise refusing
upon request to bargain collectively with said Union as the
exclusive representative of the employees in the appropri-
ate unit described in paragraph 3 in the section of this
Decision entitled "Conclusions of Law," above, with
respect to rates of pay, wages, hours of work, and other
terms and conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to engage in or refrain from engaging in any or all of
the activities specified in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, sign a collective-bargaining agreement
containing the terms and conditions of employment agreed
to between Respondent and the Union on July 13, 1976,
give retroactive effect to its terms and conditions, and
make its employees whole for losses, if any, they may have
suffered as a result of its refusal to sign such an agreement,
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) 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 amounts of backpay, if any, due
under the terms of this recommended Order.
(c) Post at its Bristol, Virginia, place of business copies of
the attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
408