NLRB v. Columbia Tribune Publishing Company

• Decision Date: 22 April 1974
• Docket Number: No. 73-1259.,73-1259.
• Citation: 495 F.2d 1384
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLUMBIA TRIBUNE PUBLISHING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.2d 1384 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLUMBIA TRIBUNE PUBLISHING COMPANY, Respondent.

No. 73-1259.

United States Court of Appeals, Eighth Circuit.

Submitted November 13, 1973.

Decided April 22, 1974.

John H. Ferguson, Atty., N.L.R.B., Washington, D. C., for petitioner.

Terence C. Porter, Porter & Cleaveland, Columbia, Mo., for respondent.

Before MEHAFFY, Chief Judge, MOORE,^* Senior Circuit Judge, and WEBSTER, Circuit Judge.

MOORE, Circuit Judge.

This case is before the court on application of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970), for enforcement of its order against the Columbia Tribune Publishing Company which it has found guilty of violating § 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Columbia Typographical Union No. 160 and § 8(a)(3) and (1) of the Act by refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work.

The Columbia Daily Tribune, owned by the Tribune Publishing Company, is a daily newspaper of general circulation in Columbia, Missouri. For more than thirty years the Columbia Typographical Union No. 160 of the International Typographical Union has been the collective bargaining representative for the company's composing room employees. The latest contract between the union and the company expired on March 31, 1971.

Until April 1, 1971, the type for the Columbia Daily Tribune was set exclusively by the "hot metal process." This is a fairly complicated method whereby skilled composing room employees cast lines of type in molten lead, assemble those lines by hand into a complete page and send the page on to the pressroom where the pressmen, workers represented by a different union, make up the press plates which actually print the newspaper.

During the fall of 1970, it became apparent to the Tribune's management that the newspaper's expanding requirements could not be met if the paper continued to rely on the cumbersome hot metal process. Subsequent to April 1, the company, although intending to continue to use the hot metal process in the production of classified ads, began employing a new technique, the cold type or photo composition process, for the production of most of the type used in its paper. "Cold type" is a process by which type is prepared by simply pasting printed material on a mat which in turn is photographed in a manner that transfers the image to a metal plate which when exposed to acid is etched into a finished plate ready for the pressroom. The cold type process eliminates the highly complicated linotype procedure. Consequently, it does not require any of the skilled labor necessary to the hot metal process.

On January 18, 1971, Henry J. Waters, III, publisher and chief operating officer of the newspaper, summoned seven of the approximately twenty-eight composing room employees to his office to inform them of the changes to be made at the Tribune. Waters told the seven employees that he expected to reduce the number of composing room employees by about half and that although these seven, the most senior of the employees, might expect to earn $3 an hour under the new process, others would be paid less depending on what function they performed and how well they performed it.¹

Neither the president of the Typographical Union nor any other union official was formally notified of this meeting although one of the seven employees at the meeting happened to be the shop steward in the composing room. After learning of the meeting, Union Local President Ronald Ott insisted that the company hold a similar meeting for the entire composing room staff. On February 10, 1971, the company held such a meeting.

On February 19, 1971, after some of the new cold type equipment had arrived, Alfred Shaw, the newly elected president of the local union and successor to Ronald Ott, urged the union members to practice the cold type procedure on their own time on the newly acquired machinery. Prior to March 1, various union officials had requested the company to make the new equipment available to the composing room employees. Although the company assured the union that such access would be permitted, it gave various excuses to forestall any immediate implementation. Similar inaction prevailed through the first two weeks of March 1972. Finally, on March 17, the union heatedly protested the company's failure to make the new equipment available to its existing employees or to offer them opportunities for retraining. As a result of this protest, the company permitted the employees to practice on the new equipment on Friday, March 19, and Sunday, March 21.

Meanwhile, on February 28 and March 1, the Tribune had advertised employment opportunities seeking "typists" and "newspaper production trainees." As a result of these ads, the company interviewed various applicants and on Thursday, March 11, it hired seven or eight new employees and promptly began training them in the new cold type process.

Before their current contract expired on March 31, 1972, the parties held nine bargaining sessions and thereafter, on April 16 and September 8, the parties had two further meetings in which there was significant discussion of contract issues. At these meetings the union initially proposed to continue the previous contract while improving wages and fringe benefits. The company's initial counterproposal, on the other hand, proposed major alterations in the traditional relationship between the Columbia Daily Tribune and the Typographical Union. First, the company's counterproposals on wages and hours merely restated the requirements of the Fair Labor Standards Act, 29 U.S.C. §§ 206(a) (1), 207(a) (1), viz., that the employees should receive no less than $1.60 an hour and that they should be paid time and one half for all time worked in excess of forty hours weekly. Second, the company's counterproposal eliminated provisions in the existing contract which defined the foreman's authority to discipline employees and which provided for union participation in the review of discharge decisions challenged by employees, replacing them with a "management's rights" clause. Finally, and most significantly, the counterproposal omitted any clause, such as that in the existing contract, (1) recognizing the union as exclusive bargaining representative of the composing room employees and (2) providing that all composing room work was within the jurisdiction of the union and could only be performed by union members. The company maintained that the existing jurisdiction-unit clause did not afford it sufficient "flexibility" and that it needed the freedom to assign composing room work to ad salesmen, society and entertainment page editors, and other similar persons who were not regularly employed in the composing room.²

By the fourth and fifth bargaining sessions, on March 16 and 17, the parties gave the appearance of being deadlocked on the jurisdiction-unit issue. The union felt that unless the employees were assured the exclusive right to perform unit work, the other terms of the collective bargaining agreement, including the wage scale, "wouldn't mean a thing." Trial Examiner's Decision, Appendix, at 20. By the ninth and final pre-strike meeting between the parties, the company agreed to include the existing jurisdiction-unit clause as long as it was limited to "hot metal employees," a limited concession in view of the fact that the newspaper was changing almost exclusively to a cold type process. The union rejected this offer. Finally, the company said that it would agree to the continuation of the existing jurisdiction-unit clause if a proviso were added to the effect that anyone could perform the work. The union likewise rejected this proposal on the ground that such a proviso was internally inconsistent with any jurisdiction clause and would completely nullify it. On April 16 the company reverted to its original position and demanded that the union agree to eliminate altogether the jurisdiction-unit clause appearing in the previous contract.

On various occasions when the contract negotiations were becoming snarled on the jurisdiction-unit issue, the union suggested that the parties move on to consider wages and other matters. Publisher Waters, however, resisted these union efforts to break the deadlock on the jurisdiction-unit issue and maintained that there was no use in discussing "wages or anything else" until the parties first came to agreement on the jurisdiction-unit issue. See Trial Examiner's Decision, Appendix, at 19. On March 23, Publisher Waters responded to the union's efforts to discuss wages with the statement that "wages would be a matter solely between him and the individual employee concerned and that he (Waters) alone would decide whether the employee should receive an increase * * *." Trial Examiner's Decision, Appendix, at 26.

On the evening of March 31, the union's negotiating team reported to the membership that the company had "made a complete farce out of our negotiations"; that in consequence no agreement had been reached; that they did not know what the wages, hours or other working conditions would be nor how the employees stood in relation to the newly hired employees; and that they did not know how many employees would be needed to work in the new process. Trial Examiner's Decision, Appendix, at 28. The employees thereupon voted to strike and the next day began picketing the company. Using the newly hired employees, supervisory personnel, and help from other departments, the newspaper continued operations.

After an abortive attempt to settle the strike on April 16, 1972, the union filed unfair labor practice charges against the company and a complaint issued. Four months later, on August 26, the parties entered into an informal settlement which was approved by the Board's Regional Director. Under...