Chicago Tribune Co.

National Labor Relations Board - Board Decisions

Aug 31, 1995

318 N.L.R.B. 920 (N.L.R.B. 1995)

920
318 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 304 NLRB 259.
2 The Board’s remand order granted the General Counsel’s motion
to strike certain of the Respondent’s references to evidence outside
the record, denied motions to censure the Respondent, deferred to
the judge the Respondent’s motion to reopen the record, and denied
the Respondent’s request for oral argument.
3 The Respondent’s answering brief was originally rejected as un-
timely. Thereafter, the Respondent filed a motion to file its answer-
ing brief out-of-time. Both the General Counsel and the Charging
Party filed opposition to the Respondent’s motion. By order dated
February 19, 1993, the Board granted the Respondent’s motion.
4 We deny the Respondent’s renewed request for oral argument as
the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
5 We affirm the judge’s December 2, 1991 ruling on the Respond-
ent’s April 26, 1990 motion to reopen the record. The judge granted
the motion in part and denied it in all other respects. By motion filed
on February 27, 1995, the Respondent again seeks to reopen the
record. Exhibits 1, 2, and 3 of Respondent’s latest motion represent
the same January 1988 correspondence that Judge Ladwig’s ruling
allowed in the record. As noted, we affirm this ruling. In all other
respects, we deny the Respondent’s February 27, 1995 motion to re-
open the record.
6 The General Counsel, the Charging Party, and the Respondent
have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
7 We adopt the judge’s findings regarding the individual 8(a)(3) al-
legations concerning the discharges of strikers Ralph Fiore, William
Carrington, and Arthur Vehlow for picket line misconduct.
8 The 8(a)(3) allegations have a complicated procedural history. On
March 21, 1986, the Union filed a charge in Case 13–CA–25791 al-
leging that the Respondent had unlawfully failed to reinstate strikers
after January 30, 1986. The Region dismissed this charge. The Of-
fice of Appeals upheld the dismissal. On May 4, 1987, the Union
renewed this allegation as an amendment to the charge in Case 13–
CA–25535. On July 2, 1987, the complaint in that case was amend-
ed to allege various unlawful refusals to reinstate unfair labor prac-
tice strikers. At the commencement of the hearing on October 2,
1987, the General Counsel moved to amend the complaint further to
allege that economic strikers had also been unlawfully denied rein-
statement. The judge denied the motion. Following the General
Counsel’s special appeal, the Board by Order dated December 4,
1987, granted the motion to amend only with respect to violations
alleged to have occurred after November 4, 1986, i.e., 6 months be-
fore the amendment to the charge.
Chicago Tribune Company and Chicago Web Print-
ing Pressmen’s Union No. 7, Graphic Commu-
nications International Union, AFL–CIO. Cases
13–CA–25535, 13–CA–25802, 13–CA–25906,
13–CA–25921, and 13–CA–26131
August 31, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On December 12, 1989, Administrative Law Judge
Marian C. Ladwig issued the original decision in this
case. On August 23, 1991, the Board issued a Decision
and Order1 reversing the judge’s ruling striking the Re-
spondent’s affirmative defenses and remanding this
proceeding for a supplemental decision on the merits
of those defenses and to explain the judge’s findings
that striker replacements hired by the Respondent after
August 19, 1985, were permanent, rather than tem-
porary.2
On October 26, 1992, Judge Ladwig issued the at-
tached supplemental decision. The Respondent filed
exceptions and a supporting brief and renewed its re-
quest for oral argument. The General Counsel filed ex-
ceptions and a supporting brief, and a brief answering
the Respondent’s exceptions. The Charging Party filed
exceptions and a supporting brief. The Respondent
filed an answering brief to the General Counsel’s and
Charging Party’s exceptions.3 The General Counsel
filed a reply brief to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, supplemental
decision, and the record in light of the exceptions and
briefs,4 and for the reasons set forth below, has de
cided to affirm the judge’s rulings,5 findings,6 and con-
clusions7 only to the extent consistent with this Sup-
plemental Decision and Order.
I. OVERVIEW OF COMPLAINT ALLEGATIONS AND
AFFIRMATIVE DEFENSES
This proceeding presents numerous unfair labor
practice issues that arose during lengthy contract nego-
tiations and an attendant strike. The amended com-
plaint in Case 13–CA–25535 alleges that the Respond-
ent: (1) violated Section 8(a)(5) by insisting to impasse
on November 13, 1985, on a permissive subject of bar-
gaining—an interpretation of a zipper clause that
would change the description of the bargaining unit—
and thereby converted the July 18, 1985 economic
strike to an unfair labor practice strike; (2) violated
Section 8(a)(3) by refusing to reinstate unfair labor
practice strikers and displace 74 replacements hired
after November 13, 1985, and before receipt of the
Union’s January 30, 1986 unconditional offer to return
to work; and (3) violated Section 8(a)(3) by failing to
reinstate former economic strikers to vacancies existing
after November 4, 1986, the date 6 months before the
May 4, 1987 filing of an amended charge in Case 13–
CA–25535.8 The complaint in 13–CA–25535 was fur-
ther amended at trial in October 1988 to allege that the
921CHICAGO TRIBUNE CO.
9 All subsequent dates are in 1985 unless otherwise indicated.
Respondent violated Section 8(a)(5) on November 1,
1986, by posting and implementing changes in work-
ing conditions that differed from those proposed in its
last offer to the Union and also without a lawful im-
passe.
Four other complaints were issued between March
25, 1986, and July 21, 1986. The complaint in Case
13–CA–25802 alleges that the Respondent paid non-
strikers and returning strikers wages that were not ne-
gotiated with the Union and that were not contained in
the expired contract. The complaint in Case 13–CA–
25906 alleges that the Respondent violated Section
8(a)(3) by discharging three striking employees for
picket line misconduct. The complaint in Case 13–CA–
25921 alleges that the Respondent violated Section
8(a)(5) by refusing to furnish the Union with the
names and addresses of strike replacements and the
number of supervisors who had performed bargaining
unit work. The complaint in Case 13–CA–26231 al-
leges that the Respondent violated Section 8(a)(5) by
refusing to furnish the Union with a weekly list of bar-
gaining unit employees who had been terminated, in-
cluding names, addresses, and reasons for termination.
These complaints were consolidated with Case 13–
CA–25535.
In its answers, the Respondent asserts that the July
18, 1985 strike was illegally based on three affirmative
defenses previously alleged in 8(b)(3) unfair labor
practice charges that were either withdrawn or dis-
missed. These defenses allege that, during the course
of 59 bargaining sessions from February 1985 to No-
vember 1986, the Union: (1) unlawfully insisted to im-
passe on a permissive subject of bargaining—including
supervisors in the bargaining unit; (2) unlawfully en-
gaged in coordinated bargaining; and (3) unlawfully
engaged in surface bargaining.
As noted, the Board’s initial Decision reversed the
judge’s ruling and remanded this issue for, inter alia,
a determination on the merits of these defenses. In his
supplemental decision, the judge rejected each of the
Respondent’s affirmative defenses. We adopt the
judge’s findings rejecting these defenses. Accordingly,
we find no illegal strike.
II. THE 8(A)(5) ALLEGATION THAT THE RESPONDENT
INSISTED TO IMPASSE ON A PERMISSIVE SUBJECT
OF BARGAINING—AN INTERPRETATION OF ITS
ZIPPER CLAUSE THAT WOULD CHANGE THE SCOPE
OF THE BARGAINING UNIT
A. Factual Background
In October 1982, the Respondent completed the
move of its pressroom from the Tribune Tower on
Michigan Avenue to the ‘‘Freedom Center,’’ a new
production facility on Chicago Avenue. The new facil-
ity was equipped with state-of-the-art offset presses,
replacing the old letterpress equipment.
The 1979–1985 collective bargaining agreement, ex-
piring April 3, 1985,9 was between the Union (Chicago
Web Printing Pressmen’s Union No. 7, GCIU, AFL-
CIO) and the Chicago Newspaper Publishers’ Associa-
tion (CNPA), composed of the Respondent and the
Chicago Sun-Times. Section 1 of this agreement pro-
vided:
Section 1.(a) The Employer recognizes the
Union as the exclusive collective bargaining agent
for the employees engaged in the operation of the
presses in the pressrooms of the Employer and
such rewinding machines of the Employer as they
are used for printing. The press room department
shall be interpreted to mean the entire pressroom
and not any portion of this department, and shall
be understood to mean such as is made up of
Union employees and in which the Union has
been formally recognized by the Employer . . . .
(b) It is mutually agreed that the above is de-
fined to mean all work currently recognized be-
tween the parties as embracing the operation of all
printing presses in the respective pressrooms of
the Employer and shall be interpreted to include;
[listed make- ready items 1-6].
It is understood and agreed that any or all of
the above work (items 1-6 inclusive) may be per-
formed by machinists as part of a repair or over-
haul. [1960 jurisdictional dispute resolution].
It is further agreed that the above provisions
shall apply to the present printing presses and
pressrooms and all new printing presses and
pressrooms of the Employer for the production of
newspapers or associated parts thereof.
(c) The Union shall have no control or jurisdic-
tion over labor whose work is not in connection
with the operation of the presses, such as janitors,
watchmen, electricians or machinists.
Section 1(a), the unit description, had remained un-
changed between the 1952 collective-bargaining agree-
ment and the parties’ 1979–1985 agreement: ‘‘the em-
ployees engaged in the operation of the presses
. . . .’’ By contrast, section 1(b), the jurisdiction
clause, was changed in 1960 because of a jurisdictional
dispute between the Union and the Machinists over
certain work in connection with operation of the press-
es. The words ‘‘and shall be interpreted to include,’’
followed by six enumerated (make-ready) work assign-
ments, were added to section 1(b)’s definition of the
Union’s work assignment: ‘‘all work currently recog-
nized between the parties as embracing the operation
of all printing presses.’’
The 1979–1985 agreement contained a zipper clause
which provided:
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The plateroom is where journeymen pressmen make plates from
negatives and install them in the presses.
11 The reel room is where the paper comes from through rollers.
It is printed simultaneously on both sides and offset. The journey-
men pressmen were responsible for operation of the rolls in the reel
room at the time of the strike. Labor Relations Manager Howe testi-
fied that employees represented by the Union worked in the reel
room and the pressroom on the presses. The Paperhandlers, however,
also represented certain reel room employees. Company attorney and
bargaining committee member James Kulas testified that under the
Respondent’s proposal the pressmen’s reel room work was not the
Union’s ‘‘exclusive contractual jurisdiction,’’ and if the Company
chose it could reassign that work to members of the Paperhandlers’
Union.
It is mutually agreed that the contract, the Job Se-
curity Lists, the letter from the Association to the
Union dated February 29, 1980, and the Supple-
mentary Agreement between the parties dated
February 29, 1980 shall constitute the agreement
between the parties.
An arbitration award, dated March 27 (the Fleischli
Award), specifically held that this zipper clause did not
preclude consideration of past practice. In addition, on
June 18, 1981, during the term of the 1979–1985 con-
tract, the Respondent, the Union, and the Stereotypers
local executed a Memorandum of Understanding as-
signing the operation of a laser platemaking system to
pressroom employees represented by the Union.
On January 3, the Union withdrew its consent to
further multiemployer bargaining with the Respondent
and the Chicago Sun-Times. At the initial separate bar-
gaining session for a successor agreement with the Re-
spondent on February 4, the Union proposed that sec-
tion 1(b) include a new item 7 to show plateroom ju-
risdiction.10 From February until October 24, when the
Respondent fully explained its interpretation of its new
proposed zipper clause (discussed below) as applied to
section 1(b), the principal dispute about the unit-juris-
diction language in section 1 of the expired contract
concerned whether the platemaking operations, also
performed in the press department, should be added to
section 1(b). At the July 26 poststrike negotiating
meeting, the Company agreed to incorporate platemak-
ing in its proposed section 1(b) as item 7.
On October 4, the Respondent proposed an agree-
ment that contained, in all material respects, the above-
quoted unit-jurisdiction language from sections 1(a)
and 1(b) and incorporated platemaking item 7. It also
included a new zipper clause proposal, which the
Union interpreted as undoing the effect of the Fleischli
award by precluding the use of past practice to prove
jurisdictional claims. The new zipper clause proposal
provided:
This agreement, the Job Security List (attached)
. . . and the Memorandum of Understanding . . .
June 18, 1981, as amended, constitute the com-
plete and total agreement between the Employer
and the Union on all wages, hours, benefits and
other working conditions, and, as such, supersedes
any previous agreements or understandings or
practices between the Employer and the Union
whether written, oral or implied. Any such agree-
ments, understandings or practices are hereby ter-
minated as of the effective date of this contract.
The application of this contract is limited to the
employees and the Union as defined in this Con-
tract.
At the October 24 negotiating session, when the
Union was reaffirming its previous tentative agreement
to sections 1(a) and 1(b) of the Respondent’s October
4 proposed agreement, Respondent’s spokesman,
George Veon, interpreted the impact of the zipper
clause. Under Veon’s expressed interpretation, the
Union’s exclusive work jurisdiction was limited to
make-ready work, items 1–6, plus the platemaking
item 7, but not the majority of the presswork. This ex-
cluded that part of the reel room work performed in
operating the presses, which had historically been as-
signed to the pressroom. According to Veon, that as-
signment had been solely at the Respondent’s discre-
tion.11
Veon said that the Union’s exclusive work jurisdic-
tion was specifically spelled out in section 1(b): ‘‘All
that it says specifically is what it means.’’ When
Union President Robert Hagstrom asked whether past
practice meant anything, Veon said that past practice
meant nothing and he stated that the Respondent
would risk arbitration on items not listed. The Union
informed the Company that under the proposed zipper
clause there would be no past practice, and therefore
nothing to arbitrate.
Hagstrom credibly testified that he was astounded
by Veon’s position. Hagstrom wrote ‘‘No way’’ in his
bargaining notes. International Vice President Guy De
Vito told Veon, ‘‘We are not going to have [an] open-
ended contract based on . . . your interpretation and
your zipper clause.’’ Veon indicated that the Respond-
ent was comfortable with its proposal and negotiations
proceeded on other issues.
At the next bargaining session on November 5, the
Union proposed to amend section 1(b) to include a list
of traditionally performed pressroom and reel room as-
signments. Veon rejected the Union’s proposal and
confirmed that the Respondent’s section 1(b) proposal
was limited by the zipper clause to items 1–7. Veon
told De Vito, ‘‘Contract means what it says. Past prac-
tices or understandings don’t apply, contract language
applies.’’
At the next meeting on November 13, Veon pre-
sented the Respondent’s ‘‘firm and final’’ offer, which
retained the new zipper clause and unit-jurisdiction
proposals as discussed on October 24. Veon reaffirmed
that the Respondent’s interpretation of the zipper
923CHICAGO TRIBUNE CO.
12 The expired contract contained the classifications of junior
pressman, apprentice, and journeyman. The joint apprenticeship pro-
gram was citywide. Apprentices became journeymen after 4 years.
clause as it applied to the language of section 1(b) re-
mained the same. Veon stated, ‘‘The language is what
it says, and a large amount of presswork is not covered
in that section.’’ Veon added, ‘‘The most gleaming ex-
ample is the reel room.’’ When asked by Union coun-
sel whether the strikers would perform the pressmen’s
assignments listed in the Union’s proposed section 1(b)
if they returned to work, Veon answered that the
Union could not claim such work under the Compa-
ny’s proposal. Veon’s bargaining notes reflect that the
November 13 meeting concluded soon after he sug-
gested that an impasse had been reached:
We have considered your proposals [on Section
1(b)], you have considered our proposals. Seems
like we are now starting to engage in fruitless bar-
gaining that will lead nowhere.
By letter dated November 13, Veon wrote Hagstrom
to answer Union Attorney Sheldon Charone’s question
posed that day about the Respondent’s intent to assign
presswork. Veon answered, ‘‘We see no significant
difference from how we have assigned the work in the
past.’’
On November 18, Union President Hagstrom wrote
Respondent’s spokesman Veon, asking for clarification
of his November 13 ‘‘firm and final’’ offer. The fifth
question in Hagstrom’s letter read:
In respect to your section 1(b), would our mem-
bers if they returned to work continue to perform
work described in our section 1(b), such as: [list
of 18 traditional functions in the pressroom and
reel room as set forth in the Union’s November
5 proposal].
Veon prefaced his November 25 response by stating,
‘‘Some time ago . . . [the parties] reached impasse in
negotiations . . . .’’ Veon answered Hagstrom’s first
four questions, and then answered Hagstrom’s fifth
question as follows:
The work assignments you proposed in your pro-
posals for section 1(b) have not been agreed to by
the Company. The broad management rights
clause at Section 4 of our final offer clearly gives
the Company the right to determine the work each
employee shall perform within his or her job clas-
sification and to determine the make-up of its
work force (the job classifications to be used and
the number of persons in each job classification).
Although our proposed contract gives the Union
no contractual jurisdiction over the work de-
scribed in your letter, the Company has no current
plan to change the work assignment but will de-
termine make-up of the work force of employees
necessary to perform that work. In addition to su-
pervisors, the Company may or may not deter-
mine to use any of the job classifications of
Trainee, Associate Pressman, Apprentice, Plate
maker, or Journeyman in any combination it
deems effective and most economical. It is our in-
tention to cover the vast majority of the work
with Trainees, Associate Pressmen, and Appren-
tices.12
B. Contentions of the Parties
The General Counsel contends that this case turns
on the Respondent’s interpretation of section 1(b) in its
November 13 ‘‘firm and final’’ offer—an interpreta-
tion based on its proposed zipper clause that limits the
Union’s exclusive contractual jurisdiction to make-
ready items 1–6. According to the General Counsel,
this proposal would alter the historical unit description
by allowing the Respondent at will to reassign press-
room work to nonbargaining unit employees. Further,
the General Counsel contends that the Respondent’s
insistence on this proposal created an impasse in bar-
gaining on and after November 13. Therefore, the Gen-
eral Counsel alleges that the Respondent violated Sec-
tion 8(a)(5) by insisting to impasse on a permissive
subject of bargaining.
The Respondent contends that its proposal would
not change the employees represented by the Union;
that the scope of the bargaining unit is defined only in
contract section 1(a); and that section 1(b) outlines the
work assignments that the Union has the exclusive
contractual jurisdiction to perform. The Respondent ar-
gues that it negotiated to transfer work without affect-
ing the persons represented by the Union, and that it
consistently advised the Union that it did not plan to
remove work from the pressmen, much less change the
scope of the unit. It claims that its contract proposals
concerned work assignment, a mandatory subject of
bargaining. See, e.g., University of Chicago v. NLRB,
514 F.2d 942, 949 (7th Cir. 1975); Hill-Rom Co. v.
NLRB, 957 F.2d 454 (7th Cir. 1992).
The Respondent also contends that it requested
agreement only on the language of its proposed zipper
clause, not on its interpretation or the effect of its in-
terpretation on other contract provisions. Rather, the
Respondent claims that it agreed to arbitrate this issue
and never insisted that the Union agree to its interpre-
tation of the proposed zipper clause as it applied to
section 1(b).
C. Analysis
The judge noted that a party may not lawfully bar-
gain to impasse over changes in unit description be-
cause the scope of the bargaining unit is a permissive
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See, e.g., Newspaper Printing Corp. v. NLRB, 692 F.2d 615,
620–621 (6th Cir. 1982).
14 As explained below, we find that a lawful impasse did exist
later on November 1, 1986, when the Respondent implemented and
posted conditions of employment.
15 The Union’s claim could be pursued before the Board, for ex-
ample, in a unit clarification proceeding.
16 Chairman Gould approves the Antelope Valley test. He notes,
however, that he does not endorse the notion, as suggested by the
analysis in that case, that the transfer of unit work is normally an
employer ‘‘privilege.’’ The transfer of work, like all mandatory bar-
gaining subjects, is subject to collective bargaining.
17 The only change made in sec. 1(a) of the Respondent’s proposal
concerns the old CNPA contract language which described the unit
to be all the pressrooms of the Employers. Because the Union with-
drew from multiemployer bargaining and the present negotiations
concern only the Union and the Respondent, the Respondent
changed this clause to read ‘‘the unit is in the Chicago Tribune’s
press department.’’ The parties tentatively approved this change dur-
ing bargaining.
bargaining subject.13 He found that, under extant
law,changing the interpretation of contract section
1(b)’s definition of the work assignment would auto-
matically change the unit description in section 1(a)
because section 1(b) contains the phrase ‘‘the above is
defined to mean . . . .’’ He found that the Respondent
applied the proposed new zipper clause in its Novem-
ber 13, 1985, ‘‘firm and final offer’’ to limit the
Union’s contractual presswork jurisdiction to the
make-ready items 1–6, plus the platemaking item 7.
Under this interpretation, the judge found that the
Respondent could assign reel room and other press-
work at its discretion. The judge held that this interpre-
tation of the zipper clause had the effect of changing
the scope of the bargaining unit from ‘‘employees en-
gaged in the operation of the presses’’ to ‘‘employees
engaged in performing make-ready pressroom work
and other pressroom work assigned to pressmen.’’ The
judge concluded that the Respondent’s interpretation of
its proposed zipper clause had the effect of changing
the scope of the bargaining unit and was a permissive
subject of bargaining on which the Respondent could
not lawfully insist to impasse.
We reverse. We find that the Respondent’s contract
proposal is a mandatory subject of bargaining. We do
not pass on the judge’s finding that the parties reached
impasse on November 13, 1985, on the Respondent’s
unit-description work jurisdiction proposal.14 In light
of our decision, we also do not pass on the judge’s
findings that the Respondent failed to withdraw its
‘‘unlawful impasse demand’’ and formulated a ‘‘de-
ceptive defense’’ to the unfair labor practice charge.
As discussed above, section 1 of the expired con-
tract defines the unit in terms of the work performed.
Because of this close relationship between the com-
position of the bargaining unit and the specific jobs the
unit performs, it is likely that a change in the unit’s
functions will have a concomitant effect on the scope
of that unit. Therefore, any attempt to determine
whether the allocation of work constitutes a work as-
signment rather than a change in unit scope is difficult.
Subsequent to the judge’s decision, the Board articu-
lated a new test for determining whether an employer
may insist to impasse on a bargaining proposal that
would alter an existing contract provision that defines
a bargaining unit in terms of work assignments rather
than job classifications. Antelope Valley Press, 311
NLRB 459, 460–461 (1993). This new test abandons
attempts to characterize a disputed proposal of this
type as relating exclusively either to unit scope or to
work assignments, but not to both.
Under Antelope Valley, an employer that does not
propose to change the unit-description language may
lawfully insist to impasse on a proposal permitting it
to reassign work currently performed by unit employ-
ees so long as the proposal does not preclude the
union, after any reassignment of work, from claiming
that employees performing the reassigned work are
unit employees.15 After impasse, the employer will be
permitted to transfer work lawfully to nonunit employ-
ees for legitimate reasons. The employer, however,
will not be privileged to determine the scope of the
unit by insisting on a change in the unit description,
even if, as here, the unit is described in terms of the
work performed. The Antelope Valley test thus accom-
modates both a union’s concern that any modification
of a clause defining the unit by the work the unit per-
forms changes the scope of the unit and an employer’s
concern that barring modification of such a clause re-
stricts the transfer of work to nonunit employees even
after bargaining to a lawful, good-faith impasse.16
In this case, the Respondent’s October 24, 1985 pro-
posal retains, in all material respects, the language of
sections 1(a) and 1(b) of the 1979–1985 contract.17
The Respondent’s proposal also incorporated the
Union’s February 4 initial contract proposal that sec-
tion 1(b) include a new item 7 to show plateroom ju-
risdiction. Thus, the parties agreed during bargaining
that the unit description would not materially change.
The parties’ dispute arose over the Respondent’s de-
mands that its proposed new zipper clause as applied
to section 1(b) was to be interpreted to limit the
Union’s exclusive contractual pressroom jurisdiction to
make-ready items 1–6 plus the new item 7, and that
using past practice to determine work assignments
would be barred.
We find that the Respondent’s explanation of its
proposed zipper clause did not change the unit descrip-
tion. Thus, although the Respondent explained its pro-
posal as giving the Respondent discretion to assign
presswork to nonbargaining unit employees, this inter-
pretation would only privilege the Respondent to as-
sign the work to individuals who were not currently in
the unit. The zipper clause as interpreted by the Re-
925CHICAGO TRIBUNE CO.
18 In this regard, we note that at the hearing, the judge granted the
Respondent’s motion for summary judgment on the issue of whether
the individual discharges of striking employees for picket line mis-
conduct converted the strike to an unfair labor practice strike. Also
during the hearing, the General Counsel withdrew his allegation that
the payment of nonnegotiated wage rates for nonstrikers and return-
ing strikers converted the strike to an unfair labor practice strike.
19 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
20 The Respondent excepts to the judge’s rejection of its Exhs.
38(d), 41(a), (b), and (c), 88–93, 97, 111, 112, 126(a), 126(v), the
majority of which are affidavits from replacements purportedly indi-
cating that the Respondent told them of their permanent status. In
light of our decision finding the replacements permanent, we find it
unnecessary to pass on these exceptions.
21 Hansen Bros. Enterprises, 279 NLRB 741 (1986), enfd. 812
F.2d 1443 (D.C. Cir. 1987).
spondent does not include a clear waiver by the Union
of its right to contend that any individuals performing
reassigned work should be included in the unit.
Further, when the Respondent’s spokesman, Veon,
advanced the proposal, he specifically disclaimed an
intent to change the scope of the unit, which he under-
stood to be defined by the following language in sec-
tion 1(a)—‘‘employees engaged in the operation of the
presses in the pressrooms of the Employer and such re-
winding machines of the Employer as they are used for
printing. . . .’’ Rather, the Respondent’s zipper clause
section 1(b) proposal merely gave it authority to trans-
fer bargaining unit work to nonbargaining unit employ-
ees. The proposal did not alter whom the Union rep-
resented, but rather what work those employees would
perform. Under the proposal, the Union retained the
right to file a representation petition, unfair labor prac-
tice charge, grievance, or breach of contract action,
claiming that the employees performing any reassigned
work should be included in the unit.
We therefore dismiss this complaint allegation. We
conclude that the Respondent’s contract proposal was
a mandatory bargaining subject upon which it could in-
sist to impasse. Accordingly, we reverse the judge and
find that the Respondent did not violate Section 8(a)(5)
by bargaining to impasse on a demand to change the
scope of the bargaining unit.
III. ALLEGED CONVERSION OF ECONOMIC STRIKE
TO UNFAIR LABOR PRACTICE STRIKE
The judge found that the economic strike was con-
verted to an unfair labor practice strike on November
13, 1985, by the Respondent’s unlawful insistence to
impasse on a zipper-clause interpretation that he found
was a permissive subject of bargaining. The judge also
found that the Respondent prolonged the strike by un-
lawfully refusing to reinstate unfair labor practice strik-
ers and displace replacements hired after November
13, but before receipt of the Union’s January 30, 1986
unconditional offer to return to work.
We have reversed the judge’s finding that the Re-
spondent unlawfully insisted to impasse November 13
on a permissive subject of bargaining. The General
Counsel does not argue before us that any other unfair
labor practice that occurred during the strike could
have prolonged the strike.18 Accordingly, the strike
which began on July 18 remained an economic one
until it ended on January 30, 1986, when the strikers
unconditionally offered to return to work.
IV. REFUSAL TO REINSTATE ECONOMIC STRIKERS
A. The Permanent Replacement Issue
It is undisputed that the Respondent had replaced all
strikers who unconditionally offered to return to work
on January 30, 1986. As economic strikers, they were
entitled to immediate reinstatement only if they had
not been permanently replaced by the Respondent.19 In
our remand Order, we directed the judge to articulate
his basis for finding that striker replacements hired
after August 19, 1985, were permanent rather than
temporary replacements. On remand, the judge con-
cluded that the Respondent had met its legal burden of
proving that the employees it hired to replace eco-
nomic strikers were all permanent replacements. Al-
though none of the replacements testified about their
status,20 the judge found that credited testimony from
the Respondent’s witnesses demonstrated a ‘‘mutual
understanding’’ between the Respondent and the re-
placements that they were permanent.21 We agree, for
the reasons set forth below.
It is undisputed that strike replacements were hired
on a temporary basis from the beginning of the strike
until August 19, 1985. Vice President of Operations
Gene Bell credibly testified that during the first month
of the strike, the Respondent was having problems hir-
ing employees in the pressroom without telling them
that they were permanent replacements. He testified
that on about August 19, he personally informed Press-
room Manager Richard Malone and other division
managers that ‘‘we [Brumbeck, Bell, and Veon] have
made the decision to hire full-time regular employees
to permanently replace the striking employees.’’ That
‘‘eliminated that [hiring] problem.’’
Pressroom Manager Malone, the Respondent’s prin-
cipal witness on this issue, credibly testified that when
interviewing applicants after Bell told him on August
19 about the Respondent’s permanent-replacement de-
cision, he told them that if they were hired, ‘‘they
were going to be permanent replacements.’’ After em-
ployees were hired, they were required to attend ori-
entation meetings. Malone credibly testified that ‘‘as
far as [he] knew,’’ in these orientation meetings, he
personally told all new pressmen—those hired both be-
fore and after August 19—that they were full-time reg-
ular employees permanently replacing striking employ-
ees.
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 We agree with the judge that this memorandum shows crew
shortages on all three shifts, extending into January and February
1987, and that it reveals that Unger’s three operations managers
were aware of the Company’s decision not to ‘‘look outside the
company for additional employees’’ (a reference to reinstating strik-
ers).
23 The Respondent employed 295 employees on January 30, 1986;
234 employees (23 fewer than the 257 prestrike number) on Novem-
ber 4, 1986 (when the limitation period began); 218 employees (39
fewer than prestrike) on January 1, 1988; 192 employees (65 fewer
than prestrike) on July 1, 1988; and 182 employees (75 fewer than
prestrike) on December 1988.
24 Most of the Respondent’s specific evidence concerning effi-
ciency, productivity, and the comparative costs of recalling strikers
versus working replacements at increased overtime rates comes from
the 10(j) proceeding, which followed the close of the original Board
proceeding in January 1989. Our Decision and Order Remanding
Proceeding to the judge granted the General Counsel’s motion to
strike references to this extra-record evidence. See fn. 2, supra. The
Respondent has not shown that this evidence was newly discovered,
previously unavailable, or contemporaneously relied on by it. Fur-
thermore, we reject the Respondent’s argument that we should give
collateral estoppel effect to the findings of the district court in the
10(j) proceeding. It is well established that the Board need not give
collateral estoppel effect to findings made in 10(j) proceedings. See,
e.g., Iron Workers Local 378 (N.E. Carlson Construction), 302
NLRB 200, 209 (1991); NLRB v. Q-1 Motor Express, 146 LRRM
2460, 2462 fn. 3 (7th Cir. 1994). Cf. NLRB v. Denver Bldg. Trades
Council, 341 U.S. 675, 682–683 (1951) (a decision on jurisdiction
made by a district court in an independent preliminary proceeding
for interlocutory relief under Sec. 10(l) of the Act shall not foreclose
a proceeding on the merits in an unfair labor practice case).
Records introduced into evidence by the General
Counsel indicate, however, that some replacements
failed to attend any of the orientation meetings. Ac-
cordingly, if Malone had conveyed notice of perma-
nent replacement only at those meetings, the Respond-
ent would not have proved the requisite mutual under-
standing of permanent replacement status for those
who did not attend the meetings. Although not specifi-
cally mentioned by the judge, Malone affirmatively
testified ‘‘with absolute certainty’’ that he spoke to
every pressroom employee about permanent replace-
ment, regardless of whether an employee had failed to
attend the orientation meetings. Based on this specific
and uncontroverted testimony by Malone, whom the
judge otherwise credited on the replacement issue, we
agree with the judge that the Respondent has met its
burden of proving that all economic strikers were per-
manently replaced prior to their January 30, 1986 offer
to return to work.
B. Refusal to Recall Economic Strikers as
Vacancies Occurred
As explained below, we agree with the judge that
the Respondent failed to prove that its refusal to offer
full reinstatement to strikers upon the departure of re-
placements was for legitimate and substantial business
reasons. In this regard, we adopt the judge’s findings
that the Respondent failed to recall strikers as full-time
vacancies became available; deliberately operated
shorthanded as established in a confidential internal
memorandum dated January 15, 1987 (the ‘‘Pondel’’
memo);22 and used both end-of-shift overtime and
sixth-shift or extra-day overtime to avoid recalling
strikers.
In Laidlaw Corp., the Board held that:
[E]conomic strikers who unconditionally apply for
reinstatement at a time when their positions are
filled by permanent replacements: (1) remain em-
ployees; [and] (2) are entitled to full reinstatement
upon the departure of replacements unless they
have in the meantime acquired regular and sub-
stantially equivalent employment or the employer
can sustain his burden of proof that the failure to
offer full reinstatement was for legitimate and
substantial business reasons.
Applying this rule, we note initially that 52 replace-
ments left the Respondent’s poststrike press depart-
ment between November 4, 1986 (when the limitations
period began) and the close of the original hearing.23
The Respondent has not established that progressive
poststrike efficiencies always allowed it to absorb the
departure of these replacement employees. The Re-
spondent argues now that the weekly-straight-time rate
plus benefits for reinstated journeymen was in fact
greater than the average cost of paying replacement
employees under the posted conditions. The Respond-
ent, however, has failed to establish that it prepared or
contemporaneously relied on documents or studies
demonstrating the cost effectiveness of working re-
placements at increased overtime rates as compared to
recalling strikers at straight-time pay and benefits. In-
deed, Vice President of Operations Bell admitted that
the Respondent made no studies to determine if it was
more cost effective to work replacements at increased
overtime as opposed to recalling the strikers at regular
pay. Nor has the Respondent demonstrated that its re-
fusal to recall strikers was based on studies tracking
the frequency or distribution of sixth-shift overtime
among the 21 shifts per week, which might have
shown the infeasibility of eliminating four or five over-
time shifts per week. Similarily, it has not shown that
end-of-shift overtime was too irregular to permit rein-
stating strikers. In addition, the Respondent did not
rebut Pondel’s memorandum, which established that
there was a shortage of employees.
We find, as did the judge, that the Respondent has
failed to prove actual reliance on substantial and legiti-
mate business reasons, if there were any, for refusing
to recall strikers to full-time vacancies which arose
after the departure of at least 52 striker replacements.24
We conclude that since November 4, 1986, the Re-
spondent violated Section 8(a)(3) by failing to offer re-
927CHICAGO TRIBUNE CO.
25 The Union subsequently filed charges on behalf of two dis-
charged replacements, Joe Outlaw and Ronald Graham.
26 In the absence of exceptions, we adopt the judge’s dismissal of
the complaint allegation that the Respondent refused to furnish the
Union with information about the number of supervisors performing
bargaining unit work.
27 Based on undisputed evidence that the Respondent did provide
the Union with weekly notice of terminations, we find, contrary to
the judge, that the Respondent did not violate the Act by refusing
to provide this information.
28 The judge did not specifically find that there was no impasse
on September 22, 1986, nor did he find that the Respondent imple-
mented terms and conditions of employment inconsistent with its
final offer. The judge excluded most evidence relating to the parties’
specific bargaining proposals during the period between January 30
and November 1, 1986.
instatement to former strikers as full-time vacancies
arose. Any additional full-time vacancies may be es-
tablished at compliance.
With respect to part-time vacancies, we agree with
the judge’s analysis that the Respondent may be liable
for its failure to recall a certain additional number of
former strikers to part-time work instead of assigning
overtime work. The record shows that the Respondent
used part-time workers prior to the strike. In contract
negotiations, it proposed only a change in the method
of selecting part-time employees. At least nine former
strikers on the preferential rehiring list were part-time
employees. We leave to the compliance stage of this
proceeding the determination of whether the Respond-
ent has a remedial obligation to offer part-time em-
ployment to any other former strikers, including full-
time employees, in addition to the nine part-time em-
ployees on the preferential rehire list.
V. REFUSAL TO FURNISH INFORMATION
The Union requested the names on January 30, and
the names and addresses on April 7, 1986, of all strike
replacements. On June 9, 1986, the Union further re-
quested a weekly listing of the names, addresses, and
reasons for terminations of discharged bargaining unit
employees.25
Claiming that the pattern of strike violence had
aroused its concern about replacements’ personal safe-
ty, the Respondent refused to furnish the Union with
the names and addresses of replacement employees,
but offered a third-party alternative. The Respondent
did provide the Union with weekly notice of termi-
nations, but, without explanation, failed to provide rea-
sons for the terminations of unidentified replacement
employees.
The judge found that the Respondent violated Sec-
tion 8(a)(5) by refusing to provide the above informa-
tion.26
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) by refusing to furnish the Union
with the reasons for terminations of bargaining unit
employees, including replacements. The Respondent
failed to establish how the release of this requested in-
formation, without identifying the terminated replace-
ments, was likely to result in harm to replacements.27
We find it unnecessary to pass on the judge’s find-
ing that the Respondent violated Section 8(a)(5) by re-
fusing in 1986 to provide the Union with the names
and addresses of strike replacements. The remedy that
we would order for any such violation has been sub-
sumed by the remedy that we ordered in Chicago Trib-
une Co., 316 NLRB 996 (1995). That case involved
the same parties, the same unit employees, and the
same request for the names and addresses of striker re-
placement employees. There we ordered the Respond-
ent to supply the union with the names and addresses
of all employees in the pressmen unit, the same infor-
mation sought by the Union in this case since 1986.
In these circumstances, it is unnecessary for us to pass
on the merits of this issue, because the remedy for any
violation that might be found would not materially
supplement the remedy already ordered in Chicago
Tribune, supra.
VI. POSTED CONDITIONS OF EMPLOYMENT AFTER
LAWFUL IMPASSE
On November 1, 1986, the Respondent declared im-
passe and issued a document entitled ‘‘Posted Condi-
tions of Employment.’’ This document acknowledged
the Union as collective-bargaining representative and
announced a change in conditions of employment to
conditions the Respondent had proposed in its Septem-
ber 22, 1986 final offer. Based on his finding that the
Respondent had unlawfully bargained to impasse on
November 13, 1985, and had refused to withdraw its
unlawful impasse demand, the judge concluded that the
unilateral changes in working conditions on November
1, 1986, violated Section 8(a)(5).
We have reversed the judge’s finding that the Re-
spondent unlawfully insisted to impasse on November
13, 1985, on a permissive subject of bargaining. The
only reason advanced by the General Counsel as pre-
cluding lawful impasse in November 1986 is grounded
in this reversed unfair labor practice allegation.
We conclude that the parties were at impasse by
September 22, 1986,28 for the following reasons. The
parties’ hard bargaining in 1985 continued regularly
throughout 1986 without agreement being reached on
most of two dozen important issues regarding manda-
tory bargaining subjects. Considering the bargaining
history, including the lengthy period of time that the
parties were at loggerheads over these issues; the over-
all good-faith of the parties in attempting to resolve
these issues; the importance of the numerous unre-
solved issues involving mandatory subjects in reaching
an overall agreement; and the understanding expressed
by both sides that their positions had become predomi-
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Accordingly, we find it unnecessary to address the Respondent’s
exception claiming that this complaint allegation must be dismissed
because the judge improperly granted the General Counsel’s motion
at trial to amend the complaint to add this allegation.
30 We agree, however, with the judge’s finding that since October
25, 1985 (the judge incorrectly referred to October 27) the Respond-
ent, without prior notice to the Union and without having afforded
it the opportunity to bargain, paid nonstrikers and returning strikers
nonnegotiated wage rates in violation of Sec. 8(a)(5). See River City
Mechanical, 289 NLRB 1503, 1505 (1988); Schmidt-Tiago Con-
struction Co., 286 NLRB 342 (1987); and Marbro Co., 284 NLRB
1303 (1987). We also agree with the judge that the Respondent
showed no necessity for unilaterally establishing a new wage scale
and new classification (pressroom employee) for the nonstriking jun-
ior pressmen.
The General Counsel did not allege that the Respondent violated
Sec. 8(a)(5) by failing to bargain about the terms and conditions of
employment for strike replacements. Chairman Gould and Member
Browning disagree with Board precedent holding that employers
have no obligation to bargain about the terms and conditions of em-
ployment for striker replacements during the course of an economic
strike. In their view, the employer’s duty to bargain with the union
encompasses all unit employees, including both the strikers and the
replacements (as well as any nonstrikers and returning strikers who
may be working), because all such employees are members of the
bargaining unit. In their view, as part of its obligation to bargain
with the union in good faith, the employer must maintain existing
terms and conditions of employment during the pendency of negotia-
tions until a lawful impasse is reached, at which point the employer
is privileged to implement only those terms and conditions that are
consistent with its last offer to the union. Chairman Gould and
Member Browning believe that these principles should be applied to
govern the terms and conditions of all unit employees, including re-
placement workers during an economic strike.
nantly fixed and that negotiations had reached the
point of stalemate, we conclude that by September 22,
1986, the parties were at lawful impasse. Thus, the Re-
spondent was free to make, and in fact did make, uni-
lateral changes in working conditions on November 1,
1986, that were consistent with its final September 22
offer that the Union had rejected.29
Accordingly, we dismiss this allegation.30
AMENDED REMEDY
We find merit in the General Counsel’s and the
Charging Party’s exceptions to the judge’s omission of
a make-whole remedy for the Respondent’s unilateral
change in wage rates that has been found unlawful.
Our make-whole remedy, however, is limited to the
period from October 25, 1985, until November 1,
1986, when the parties reached an overall lawful im-
passe that subsumed this change. This does not, how-
ever, require or permit any unilateral changes of im-
proved wages, benefits, or working conditions. Back-
pay shall be computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
As stated in section IV, B, above, we leave to com-
pliance the determination of whether the Respondent
will be required to offer part-time employment to any
other former strikers, including full-time employees, in
addition to the nine part-time employees on the pref-
erential rehire list.
The judge recommended that the Union be granted
access to the Freedom Center to meet at reasonable
times with bargaining unit employees in nonwork areas
during nonworking time. We find that an access rem-
edy is unnecessary in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Chicago Tribune Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to offer reinstatement to employees on
the preferential-hiring list to full-time and any part-
time vacancies as they occur.
(b) Refusing to furnish the Union with the reasons
for the terminations of bargaining unit employees.
(c) Paying nonnegotiated wage rates to nonstrikers
and returning strikers without bargaining with the
Union to agreement or to lawful impasse.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to em-
ployees on the preferential hiring list to their former
positions to fill full-time and any part-time vacancies
that have occurred since November 4, 1986, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of its failure to reinstate them when the vacan-
cies occurred.
(b) Offer Arthur Vehlow immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
his discharge.
(c) Remove from its files any reference to Vehlow’s
unlawful discharge and notify him in writing that this
has been done and that the discharge will not be used
against him in any way.
(d) Furnish the Union with the reasons for the termi-
nations of bargaining unit employees.
(e) Make whole any nonstrikers or returning strikers,
who suffered any loss of wages because of the Re-
spondent’s payment of nonnegotiated wage rates from
October 25, 1985, until November 1, 1986, as set forth
in the amended remedy.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
929CHICAGO TRIBUNE CO.
31 If 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.’’
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its Freedom Center facility in Chicago,
Illinois, copies of the attached notice marked ‘‘Appen-
dix.’’31 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaints are dis-
missed insofar as they allege violations of the Act not
specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail to offer to reinstate economic
strikers on the preferential-hiring list to fill full-time
and part-time vacancies.
WE WILL NOT refuse to provide the Union with the
reasons for the termination of bargaining unit employ-
ees.
WE WILL NOT pay nonnegotiated wage rates to non-
strikers and returning strikers until we have bargained
with the Union to agreement or to lawful impasse.
However, we will not change any improvements uni-
laterally.
WE WILL offer immediate and full reinstatement to
employees on the preferential hiring list to their former
positions to fill full-time and part-time vacancies that
have occurred since November 4, 1986, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
our failure to reinstate them when the vacancies oc-
curred, less any net interim earnings, plus interest.
WE WILL offer Arthur Vehlow immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Arthur Vehlow that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
WE WILL furnish the Union with the reasons for the
terminations of bargaining unit employees.
WE WILL make whole any nonstrikers or returning
strikers, who suffered any loss of wages because of
our payment of nonnegotiated wage rates from October
25, 1985, until November 1, 1986, with interest.
CHICAGO TRIBUNE COMPANY
Paul Bosanac, Esq., for the General Counsel.
R. Eddie Wayland and James P. Thompson, Esqs. (King &
Ballow), of Nashville, Tennessee, for the Respondent.
Sheldon M. Charone, Esq. (Carmell, Charone, Widmer, Mat-
hews & Moss), of Chicago, Illinois, for the Union.
SUPPLEMENTAL DECISION
I. OVERVIEW OF REMAND ISSUES
The Board remanded this proceeding (a) ‘‘for further find-
ings and conclusions with respect to’’ the Company’s three
affirmative defenses (each alleged to show that the Union’s
strike was illegal) and (b) for ‘‘articulating the basis’’ for the
finding that striker replacements hired from July 18 (when
the strike began) to November 13, 1985, were permanent, not
temporary. Chicago Tribune Co., 304 NLRB 259 (1991). A
hearing on remand (following unsuccessful settlement ef-
forts) was held on December 2–6 and 9–11, 1991, and Janu-
ary 13, 1992, and (after a subpoena enforcement proceeding)
was concluded on July 7–8, 1992.
The first affirmative defense is that the Union (Pressmen)
‘‘bargained to impasse upon the inclusion of supervisors in
the bargaining unit, a permissive subject of bargaining.’’ To
the contrary, as found below, the evidence shows that the
Union was instead insisting that supervisors, if excluded,
should not be permitted to perform bargaining unit work.
There was no impasse on including supervisors.
The second affirmative defense is that the Union unlaw-
fully engaged with the Printers and Mailers in coordinated
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1985 unless otherwise indicated.
(coalition) bargaining in which ‘‘one union would not seri-
ously attempt to get a contract unless the other two did.’’ To
the contrary, the evidence clearly shows that the Company
and the Union exerted sincere efforts to reach an agreement.
As found in my December 12, 1989 decision, Chicago Trib-
une Co., 304 NLRB at 267:
Both the Company and Union engaged in hard bar-
gaining [in negotiations that began February 8, 1985]
and little progress was made in resolving . . . major
differences.
Finally on June 20, 1985 [over 4 months later], after
Vice President of Operations Gene Bell had entered the
negotiations, both parties began demonstrating a sincere
desire to compromise and avoid a strike. In nine off-
the-record discussions (some of them quite long, lasting
into the night or early morning hours), they sought so-
lutions to the . . . major issues . . . .
. . . .
The effort failed, however, when the parties could
not agree on all the provisions as a package.
The third affirmative defense is that the Union ‘‘engaged
in unlawful surface bargaining,’’ not ‘‘sincerely negotiating
to get an agreement.’’ Particularly in view of the union
members’ risk of jeopardizing their guaranteed working-life
job security if they could not reach an agreement and were
permanently replaced, I deem this defense to be unfounded.
Permanent replacements. Regarding the finding (supra at
267) that in the middle of August 1985 (a month after the
strike began) ‘‘the Company began permanently replacing
the striking pressmen,’’ credible evidence shows a mutual
understanding between the Company and the replacements
after August 19 that the replacements were permanent.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Company, and the Union,
I find and conclude as follows.
Affirmative Defenses
II. FIRST DEFENSE, IMPASSE ON SUPERVISORS
A. Before off-the-Record Discussions
The dispute over supervisors involved the proposed re-
moval of about 60 jobs from the pressroom bargaining unit
(Tr. 3713 1/18/89; R. Exh. 32 item 14).
Historically, all working foremen and supervisory men-in-
charge were included in the bargaining unit and were mem-
bers of the Union (Tr. 4922 12/9/91). Until the parties held
off-the-record discussions preceding the July 18, 19851
strike, the Company was proposing that these and other
pressroom supervisors be excluded without any restriction on
their continuing to perform bargaining unit work.
The Company proposed on February 15: ‘‘All supervisors
as defined under the National Labor Relations Act, as
amended, shall be excluded from coverage under this Con-
tract’’ (G.C. Exh. 7 sec. 7, p. 7). On May 21, Company Vice
President and Chief Spokesman George Veon orally sug-
gested that the Union agree to this proposal—that is, to ex-
clude the supervisors from the bargaining unit without any
work restriction, taking the 60 unit jobs with them—then the
Union could ‘‘propose [the supervisors] not working’’ (Tr.
4647 12/5/91; G.C. Exh. 176 p. 323).
In response, the Union sought to retain the working super-
visors in the bargaining unit, but readily acknowledged that
their inclusion was a permissive subject of bargaining. On
March 29, International Vice President Guy DeVito ‘‘stated
that the issue of supervision was not a mandatory subject of
bargaining that could . . . be insisted [on] to impasse [but]
if the company demanded the exclusion of supervisors from
the Union, the Union would stand on its proposal that they
could not perform bargaining unit work’’ (Tr. 2462–2463
1/20/88).
Labor Relations Manager William Howe’s bargaining
notes confirm these positions. His April 17 notes (G.C. Exh.
176 p. 217) read:
Veon says would it be correct to say that you agree
with [excluding supervisors] but we disagree on wheth-
er they perform work.
DeVito says that’s correct.
Howe’s notes on May 1 (p. 247) read (with abbreviations
spelled out):
Supervisors—you agree the law says they come out, but
that your position is they do no bargaining unit work.
DeVito concurs.
Howe admitted that the Union ‘‘said on more than one oc-
casion that they understood that the law [is] that supervisors
couldn’t be insisted to be under the contract’’ (Tr. 4973
12/9/91).
B. Off-the-Record Discussions
On July 3, during off-the-record discussions that began be-
fore the July 7 strike deadline, the Company offered a com-
promise. At 9:10 p.m. (over 12 hours after discussions began
that morning), it included in its off-the-record proposal (R.
Exh. 101 par. c, p. 2) the following supervisor provision:
All supervisors . . . shall be excluded from coverage
under the agreement; all supervisors may do work that
is considered bargaining unit work only to the extent
necessary to carry out supervisory functions. [Emphasis
added.]
In the next meeting that began on July 6 the Union sub-
mitted an off-the-record proposal (R. Exh. 105) at 12:36
a.m., July 7, in response to this and other company propos-
als. It agreed to exclude supervisors, but sought an unquali-
fied prohibition against supervisors performing bargaining
unit work (R. Exh. 105 par. c, p. 2):
Supervisors—excluded from bargaining unit—shall not
perform bargaining unit work.
At 10 o’clock that evening, July 7, the Union submitted
‘‘on the record’’ another proposal (R. Exh. 107; G.C. Exh.
176 p. 379), which also placed on the record its 12:36 a.m.
July 7 proposal. DeVito credibly explained that ‘‘this was to
move into a firm position for a settlement . . . the tactic we
employed in an effort to get a contract’’ (Tr. 5145 12/10/91).
931CHICAGO TRIBUNE CO.
Beginning at 2:20 a.m., July 8 (beyond the midnight strike
deadline, with the ‘‘clock stopped,’’ Tr. 4675 12/5/91), the
Company gave its oral off-the-record response to this and
other open issues (G.C. Exh. 176 pp. 382–383; R. Exh. 25
pp. 83–84). In the next meeting on July 10, the Company in-
corporated this response in an off-the-record written proposal
(R. Exh. 109; G.C. Exh. 189).
In this oral and written response the Company was refus-
ing to agree with the Union’s proposal for an unqualified
prohibition against supervisors performing bargaining unit
work. It included qualifying language similar to the language
it used in its July 3 proposal, which permitted supervisors to
perform unit work ‘‘to the extent necessary to carry out su-
pervisory functions.’’
Without specifying what bargaining unit work would be
included in ‘‘customary supervisory duties,’’ the Company
proposed the following provision (R. Exh. 109; G.C. Exh.
189 par. c, p. 3):
All supervisors . . . shall be excluded from coverage
under the agreement; all such supervisors shall not per-
form bargaining unit work but shall perform customary
supervisory duties. [Emphasis added.]
The Union’s response (R. Exh. 110 p. 2; Tr. 4691 12/5/91)
was ‘‘No agreement.’’ As both Union President Hagstrom
(Tr. 2446 1/20/88) and DeVito (Tr. 5154 12/10/91) credibly
testified, the parties agreed to the first part (the exclusion of
supervisors), not the last part (the qualifying language, ‘‘but
shall perform customary supervisory duties’’).
The bargaining notes of Company Attorney James Kulas
(a management bargaining committee member) state that at
the next meeting on July 15, DeVito said there was no agree-
ment on 15 of 25 items, 8 of which were ‘‘tough ones,’’ in-
cluding the ‘‘very sticky’’ supervisor issue (Tr. 4704
12/5/91). Further testifying from his notes (which are not in
evidence), Kulas added (Tr. 4705 12/5/91) that Hagstrom
made what Kulas termed ‘‘an emotional plea’’ for including
supervisors in the bargaining unit, because the system had
been there a long time and had worked ‘‘and all we were
doing is putting the supervisors in the middle who had been
union members for a long time.’’
I infer from this evidence that the Union’s bargaining
strategy was to seek either to obtain an unequivocal contrac-
tual provision that supervisors shall not perform bargaining
unit work (saving the bargaining unit work for unit journey-
men), or to persuade the Company to permit men-in-charge
and foremen to remain in the unit.
C. During the Strike
After the beginning of the strike on July 18, the Company
withdrew its off-the-record proposals, stating that ‘‘we never
reached agreement on anything’’ and ‘‘everything is on the
record from now on’’ (G.C. Exh. 176 pp. 406, 411; Tr. 4846
12/6/91).
On July 30, the Company returned to its earlier suggestion
that the Union agree to exclude supervisors and then pro-
pose, after the supervisors were excluded, that they not per-
form bargaining unit work. The Company divided its super-
visor proposal into two parts as follows (G.C. Exhs. 49, 50):
Section 32. All supervisors . . . shall be excluded
from coverage under the Contract.
Section 32A. Supervisors . . . may perform bargain-
ing unit work.
The Union refused to ‘‘TA’’ (tentatively agree to) section 32
(which would remove about 60 jobs from the bargaining
unit) and afterwards bargain on their continued performance
of unit work. As Kulas testified (Tr. 4724 12/6/91), DeVito
responded no, that he would not accept section 32 unless it
included ‘‘language not to do bargaining unit work.’’
Kulas later conceded that the Company’s position was that
‘‘if [the supervisors] were excluded, we didn’t see any rea-
son to change them from what they did before under the old
contract’’; they would ‘‘continue to do bargaining unit
work’’ (Tr. 4838 12/6/91). He also conceded that Union At-
torney Sheldon Charone said the Company ‘‘had a perfect
right . . . to have [the supervisors] excluded,’’ but the Union
‘‘had the right to insist that they don’t do bargaining unit
work’’ (Tr. 4859 12/6/91).
The Union proposed on July 30 (Tr. 4865–4867 12/6/91,
Tr. 5028–5029 12/10/91; G.C. Exh. 54) that if the Company
would withdraw section 32, it would agree to delete from its
proposal the supervisor provision (‘‘It is mutually agreed
[emphasis added] that all pressroom supervision shall be
members of the Union’’) in section 26 of the expired 1979
agreement (G.C. Exh. 51 p. 26).
Regarding that supervisor provision, I note that Howe’s
May 24 bargaining notes (G.C. Exh. 176 p. 344; Tr. 3801–
3802 1/18/89) show that DeVito then stated that the ‘‘fore-
men language in Section 26 . . . says mutually agreed and
since you don’t mutually agree it will no longer be in con-
tract. . . . Veon says yes. I thought that’s what your position
has been all along.’’ As found, Howe admitted that the
Union ‘‘said on more than one occasion that they understood
that the law [is] that supervisors couldn’t be insisted to be
under the contract’’ (Tr. 4973 12/9/91). His notes on August
6 (G.C. Exh. 176 p. 458) reveal an example, when DeVito
‘‘says we understand your right to [exclude supervisors],’’
but adding: ‘‘We say [they] do no [bargaining unit] work.’’
The Union proposed that the following supervisor provi-
sion be substituted:
Pressroom supervision may be excluded from coverage
under the Contract at the discretion of the Publisher,
however, all such supervisors so excluded shall not per-
form bargaining unit work. [Emphasis added.]
Kulas conceded that this proposal (G.C. Exh. 54) was tell-
ing the Company that the Union was no longer demanding
‘‘that supervisors be members of the Union’’ (Tr. 4808
12/6/91). DeVito credibly recalled that the Union proceeded
‘‘under the assumption that if [foremen and assistant fore-
men] were out of the bargaining unit and declared super-
visors, they would also withdraw from membership in the
union’’ (Tr. 5133 12/10/91).
On October 23 the Union submitted a proposal, responding
to the Company’s October 4 proposal (G.C. Exh. 66), which
included sections 32 and 32A. The union proposal included
the following provisions (G.C. Exh. 67 pp. 6, 11):
Section 7. No foreman, acting foreman or assistant
foreman shall be subject to fine, discipline or expulsion
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Union for any act they may perform as foremen
in carrying out the terms of this Agreement. . . .
. . . .
Section 31. Press Department supervision may be ex-
cluded from coverage under the Contract at the discre-
tion of the Employer, however, all such supervision so
excluded shall not perform bargaining unit work. [Em-
phasis added.]
Howe admitted his understanding was that those super-
visors who, ‘‘at the discretion of the Employer’’ were not
excluded, ‘‘would be covered under the contract and be
members of the union’’ (Tr. 5078–5079 12/10/91).
On December 18, the Union attempted to accept the Com-
pany’s July 10 off-the-record supervisor proposal by propos-
ing the identical language (G.C. Exh. 74 p. 8; R. Exh. 109
p. 3):
All supervisors . . . shall be excluded from coverage
under the Agreement; all such supervisors shall not per-
form bargaining unit work but shall perform customary
supervisory duties.
The Company did not agree. At this time, as DeVito credibly
testified (Tr. 5136 12/10/91), it was not the Union’s position
that supervisors had to be members of the Union.
Finally on February 26, 1986, the Company sent the
Union a letter by messenger (G.C. Exh. 121), stating that
‘‘the Company would like to know if the union’s position is
that the parties are at impasse on the Company’s proposal for
a new Section 32 [‘All supervisors . . . shall be excluded
from coverage under the Contract’]?’’ The same day the
Union replied by letter (G.C. Exh. 122) that ‘‘we have stated
during negotiations that you have the right to exclude super-
visors as defined by the Act from the bargaining unit. We
are not at impasse in respect to Article 32.’’
At the March 7, 1986 meeting the Union ‘‘TA’d’’ section
32 in the Company’s latest proposal (G.C. Exh. 176 p. 662;
R. Exh. 25 p. 148). But, as Hagstrom credibly testified, this
tentative agreement on section 32 did not ‘‘bring the parties
any closer’’ to achieving a collective-bargaining agreement
(Tr. 5542 7/7/92). The dispute over supervisors’ performing
bargaining unit work continued (Tr. 4745–4749 12/6/91, Tr.
5096 12/10/91).
D. No Impasse on Including Supervisors
The evidence shows that the Union never insisted to im-
passe on the inclusion of supervisors in the bargaining unit,
or on their union membership.
As found, the Union acknowledged on March 29 (soon
after the bargaining began) that ‘‘the issue of supervision
was not a mandatory subject of bargaining that could . . .
be insisted [on] to impasse.’’ Kulas conceded (Tr. 4777
12/6/91): ‘‘I don’t recall any specific reference to the super-
visor issue’’ being at ‘‘impasse.’’
The issue was whether supervisors, if excluded, should be
permitted to continue performing bargaining unit work. The
parties continued to bargain on that issue. The Union’s
‘‘TA’ing’’ the section 32 supervisor provision on March 7,
1986, did nothing to bring the parties closer to reaching an
agreement.
Moreover, the Company admits in its brief (at 64) that it
‘‘did not believe that the parties were at impasse in late
1985’’ (months after the strike began in July). The Company
in effect indicated on February 26, 1986, that it was not
aware of any impasse before then on the supervisor issue
when it inquired if the Union’s position ‘‘is that the parties
are at impasse on the Company’s proposal for a new Section
32?’’
E. Concluding Findings
Although contending that there was no impasse in bargain-
ing, the Company argues in its brief (at 60–65) that if the
parties were at impasse on November 13 on another issue,
as previously found, ‘‘the parties [also] were at impasse on
the exclusion of supervisors from the bargaining unit.’’ To
the contrary, the evidence shows that the Union never bar-
gained to impasse on including supervisors.
Earlier in its brief (at 35) the Company contends that its
allegation ‘‘that the Union bargained to impasse upon the in-
clusion of supervisors in the bargaining unit’’ is ‘‘the most
simple and incontrovertible’’ of its three affirmative de-
fenses.
I find, however, that in the absence of an impasse, the
Company’s affirmative defense that the strike was illegal be-
cause the Union ‘‘bargained to impasse upon the inclusion
of supervisors’’ lacks merit. I therefore reject this first af-
firmative defense.
III. SECOND DEFENSE, COORDINATED (COALITION)
BARGAINING
A. Overview
As found, the Company and the Union demonstrated ‘‘a
sincere desire to compromise and avoid a strike’’ during nine
off-the-record meetings after Vice President of Operations
Gene Bell entered the negotiations.
Yet the Company contends in its brief (at 35) that the
Union was engaging in ‘‘unlawful coordinated bargaining’’
and ‘‘would not seriously attempt to get a contract unless the
other two [unions] did,’’ referring to the Printers and Mail-
ers.
In support of this affirmative defense the Company pre-
sents an unconvincing version of both legal precedents and
the facts of this case.
First, it makes the unequivocal contention in its brief (at
37): ‘‘The Board has repeatedly held that unions violate the
Act by engaging in coordinated bargaining.’’ To explain this
statement of legal precedents, it defines ‘‘coordinated bar-
gaining’’ as a ‘‘bargaining strategy with other unions [by
which] a union unlawfully expands its bargaining beyond the
unit it represents’’—a definition often used to define unlaw-
ful ‘‘coalition bargaining.’’ It then proceeds to cite evidence
of lawful coordinated activities, as well as evidence of pur-
portedly unlawful coalition bargaining, as proof of this ‘‘un-
lawful coordinated bargaining.’’
Second, as proof that the Union was unwilling to sign a
contract unless the Printers and Mailers also signed, the
Company relies on a May 13 statement (by Edward Brabec,
president of the Chicago Federation of Labor) that was unau-
thorized and not taken seriously by either the Unions or the
Company: that ‘‘all the unions must have a contract before
933CHICAGO TRIBUNE CO.
any union will settle and that Mr. Brabec has the support of
all of the unions.’’
Third, it treats as one organization the CFL Unity Council
(consisting of about 10 local unions) and the Strike Unity
Council (consisting of the 3 striking Unions) when contend-
ing that the Union and the Printers and Mailers appointed
Brabec as their spokesman and authorized him to speak to
the Company on May 13 on their behalf.
Fourth, the Company makes factual contentions that I find
unpersuasive.
B. Coalition or Coordinated Bargaining;
Terms Defined
The Company repeatedly contends in its brief (at 8, 35,
51, 54, 57, 58) that the Union (Chicago Web Printing
Pressmen’s Union No. 7) was engaged in a ‘‘coalition’’ with
the Printers (Chicago Typographical Union No. 16) and
Mailers (Chicago Mailers Union No. 2) and that the three
Unions were parties to a ‘‘coalition’’ agreement for dealing
with the Company. Elsewhere in its brief the Company refers
to the three Unions having engaging in unlawful ‘‘coordi-
nated’’ bargaining.
It is well established in Board and court decisions that
unions as well as employers may lawfully engage in coordi-
nated bargaining.
As summarized in Morris, The Developing Labor Law (2d
ed., vol. 1, BNA 1983), ‘‘Coalition and Coordinating Bar-
gaining’’ (at 666–667):
The terms ‘‘coalition’’ or ‘‘coordinated’’ bargaining are
often used interchangeably, although there is a logical
difference between the terms which corresponds to the
intent and nature of the mutual bargaining activity.
‘‘Coordinated’’ bargaining connotes communication and
accommodation among different bargaining agents but
independent decision making in separate bargaining
processes. Such activity is therefore not illegal as such.
‘‘Coalition’’ bargaining, on the other hand, implies a de
facto merger of bargaining units, or an effort to achieve
that end. Thus, to the extent such a merger is forced
on a nonconsenting bargaining partner, a refusal to bar-
gain, by virtue of insistence on a nonmandatory bar-
gaining subject, results. [Emphasis added.]
A major case cited by the General Counsel makes the dis-
tinction between lawful ‘‘coordinated’’ bargaining and un-
lawful ‘‘coalition’’ bargaining. General Electric Co. v.
NLRB, 412 F.2d 512 (2d Cir. 1969), enfg. General Electric
Co., 173 NLRB 253 (1968). As here, the employer alleged
an affirmative defense that the union would not reach an
agreement until other unions did.
In that case, as held by the Board (173 NLRB at 253,
258), the International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–CIO (IUE) added
to its negotiating committee as nonvoting members, a rep-
resentative from each of seven other International unions.
The eight International unions had formed the Committee on
Collective Bargaining (CCB), whose purpose was to set com-
mon goals and to seek to achieve those objectives through
a ‘‘coordinated approach.’’ General Electric ‘‘refused to en-
gage in discussions with the Committee and left the [nego-
tiating] room,’’ having previously stated that the participating
unions hoped to engage in ‘‘coalition bargaining.’’ The
Board found that this refusal to meet because of the presence
of ‘‘outsiders’’ on the negotiating committee violated Section
8(a)(5) and (1).
General Electric based its affirmative defense on issues of
the CCB publication ‘‘Unity,’’ on more than 40 leaflets,
newspapers, statements, etc., and on statements attributed to
stewards of union locals at grass roots meetings. Citing this
material, it contended that the IUE and the other unions had
‘‘pledged that no one of them would consummate a contract
covering any bargaining unit with [General Electric] until all
should do so.’’ The trial examiner found to the contrary (173
NLRB at 265) that
there was never any conspiracy, agreement, express or
implied, among the cooperating unions that none would
sign with [General Electric] unless all signed. Instead,
I find there was a mere tacit understanding that before
any of them varied or abandoned any of the agreed
‘‘national goals,’’ they would inform and consult with
each other. . . . [E]ach union retained the ‘‘autono-
mous’’ status . . . so that each was free at all times to
sign with [General Electric] on terms it deemed accept-
able. [Second emphasis added.]
The Board (173 NLRB at 254–255) held that because
General Electric
left the negotiating table before negotiations began . . .
we need not decide whether [its] refusal to bargain
might have been justified if, in fact, the participating
unions had been ‘‘locked in’’ to a conspiratorial under-
standing.
In its often-cited decision, the Second Circuit referred to
the avowed purposes of the members of the CCB to ‘‘coordi-
nate’’ bargaining and to the Company’s refusal to participate
in any eight-union ‘‘coalition’’ discussions. It held in rel-
evant part (412 F.2d at 522–523):
Thus, we have decided that it was improper for the
Company to refuse to bargain . . . on the ground that
members of other unions were on the IUE committee.
However, we must still deal with the Company’s claim
that in any event it could refuse to meet with the IUE
committee . . . because the IUE was ‘‘locked-in’’ to an
agreement whereby it would not accept any offer made
by the Company until the other unions did.
The Board rejected [this contention] without deciding
whether [this] factor would have justified a refusal to
meet. . . . However, the trial examiner found . . . the
IUE was [not] ‘‘locked-in’’ . . . and the Board found
that there was no substantial evidence of the IUE com-
mittee’s ulterior motive or bad faith. . . . [T]he IUE
disclaimed any intention to bargain for others and
maintained its ability to enter into any agreement that
satisfied its demands regardless of the position of other
unions. Still, the Company did not offer to test IUE’s
good faith. . . .
The Company was guilty of a refusal to bargain in
violation of section 8(a)(1) and (5) of the Act. [Empha-
sis added.]
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Both the Board and court decisions make it clear that the
coordinated bargaining itself was lawful.
In the three purported ‘‘coordinated bargaining’’ cases on
which the Company relies, the Board and the courts either
affirmed that unions may lawfully engage in coordinated bar-
gaining, or found specific unlawful conduct without labeling
it coalition or coordinated bargaining.
The Company first cites in its brief (at 37, 38, 43, 44, 46,
51) the Board’s decision in NLRB v. South Atlantic District
Longshoremen ILA (Lykes Bros.), 443 F.2d 218, 219–220
(5th Cir. 1971), enfg. 181 NLRB 590 (1970). In that case,
bargaining with a separate local of clerks and checkers ‘‘did
not begin until . . . a few days after the longshoremen and
the [employers] reached agreement.’’ Although the long-
shoremen locals ‘‘had reached a full agreement with the em-
ployers, they refused to return to work or to execute the
agreement until a contract had been agreed upon by the
clerks and checkers.’’ Agreeing with the Board, the court
held (443 F.2d at 220):
When parties to collective bargaining reach a final
agreement on the terms of the agreement, they have a
duty to execute that agreement by written contract, and
this duty may not be avoided by injecting extraneous
issues into the negotiations. . . . A union enjoying stat-
utory status as exclusive representative of all employees
within a bargaining unit may not unilaterally extend the
scope of its agency authority and insist to impasse upon
the employer’s capitulation to the demands of other em-
ployees and other unions. . . . So to attempt to expand
the bargaining power and influence of the longshore-
men beyond the bounds of the Board-authorized appro-
priate bargaining unit constituted an unfair labor prac-
tice.
Neither the Board nor the court called this unlawful at-
tempt to expand bargaining beyond the unit, after a full
agreement had already been reached, either coalition or co-
ordinated bargaining.
The case next cited in the Company’s brief (at 37, 42, 75,
78) is the Board’s decision in Standard Oil Co. [of Ohio]
v. NLRB, 322 F.2d 40, 42–45 (6th Cir. 1963), enfg. 137
NLRB 690 (1963). In that case the court (322 F.2d at 44)
adopted the trial examiner’s statement that
[t]he evidence in the instant case is clear enough that
both on [Sohio’s] part and on that of the Unions there
is intramural communication and coordination with re-
spect to bargaining positions. [Emphasis added.]
The unions’ ‘‘Sohio Council’’ (which was composed of
several Ohio locals) had adopted a bargaining program for
the locals to follow in negotiations at the four Sohio refiner-
ies. The International president had issued credentials to six
members of the four bargaining committees to serve as
‘‘temporary representatives’’ of the International on the com-
mittees other than their own. The plant managers refused to
meet with the regular bargaining committees as long as the
temporary representatives were present.
The court held in effect that the coordinated bargaining
(each local’s bargaining committee being composed of both
members of that local and members of other locals) was law-
ful. It affirmed (322 F.2d at 44) the Board’s finding that
Sohio violated Section 8(a)(1) and (5), concluding that it was
the duty of Sohio ‘‘to negotiate with the bargaining commit-
tees of the Unions at the respective refinery plants even
though the temporary representatives were present.’’
The court’s second holding in the case, however, was that
the International and one of the locals unlawfully delayed
signing agreements reached at the Cleveland and Lima refin-
eries until an agreement was reached at Toledo. The court
held (322 F.2d at 45) that imposing an agreement at the To-
ledo refinery (an ‘‘extraneous matter’’) as a condition for
signing agreements previously reached at the other refineries
violated Section 8(b)(3). Neither the Board nor the court
called the decision to delay signing the Cleveland and Lima
agreements, until an agreement was reached at Toledo, either
coalition or coordinated bargaining.
Thus, the unions’ engaging in coordinated bargaining was
lawful, but the delay in signing agreements that had already
been negotiated was unlawful.
In the third purported ‘‘coordinated bargaining’’ case cited
by the Company in its brief (at 38, 42, 46, 55), AFL–CIO
Joint Negotiating Committee (Phelps Dodge), 184 NLRB 976
(1970), enf. denied 459 F.2d 374 (3d Cir. 1972), there was
no finding of unlawful coalition or coordinated bargaining.
Neither term was used by either the Board or the court.
As recited in the court’s opinion (459 F.2d at 376–377),
‘‘the parties agreed to the joinder of all of the [40] bargain-
ing units in Arizona locations into a single negotiating for-
mat,’’ called the Joint Committee. There was no contention
or finding that this coordinated bargaining was in itself un-
lawful. The ‘‘negotiations were conducted separately in the
various units of Phelps Dodge and . . . there was no insist-
ence on discussion in one locale as to the contract of another
locale.’’
The Board found (184 NLRB at 976–978) that the unions’
primary objectives throughout the course of bargaining
at [Phelps Dodge’s] Arizona operations was to obtain
agreement on terms and conditions of employment to
be applicable generally on a companywide basis, and
that the strikes . . . were intended, in substantial part,
to force [Phelps Dodge] to accede to . . . demands for
such a companywide agreement. . . .
. . . .
Accordingly, we find that the [unions], by demand-
ing that [Phelps Dodge] engage in companywide bar-
gaining, beyond the scope of established bargaining
units, and by striking in support of its demands, have
violated Section 8(b)(3) of the Act.
To the contrary the court, denying enforcement, held (459
F.2d at 378):
We conclude from this record that in the Arizona ne-
gotiations petitioner unions did not insist that Phelps
Dodge agree to terms and conditions of employment to
be applicable generally to other bargaining units and
that they did not strike to enforce such a demand.
I do not agree with the Company’s contention in its brief
(at 42) that the Board found in that case that the ‘‘unions
engaged in unlawful coordinated bargaining.’’ The Board did
not find that the unions were engaging in either unlawful co-
935CHICAGO TRIBUNE CO.
alition or coordinated bargaining. It made a finding (rejected
by the court) that the unions were unlawfully demanding
companywide bargaining.
The Company contends a total of 23 times in its brief (at
34–60, 74) that the Union was engaging in ‘‘unlawful co-
ordinated bargaining.’’ In doing so, it fails to distinguish be-
tween lawful coordinated activities and purportedly unlawful
bargaining.
C. Lawful Coordinated Activities
1. On the part of the Company
The Company and the Chicago Sun-Times engaged in co-
ordinated bargaining, without any contention being made that
this bargaining was unlawful.
The two publishers were members of the Chicago News-
paper Publishers Association (CNPA), through which they
historically negotiated with a number of unions. On January
3, the Union withdrew its consent to engage in further multi-
employer bargaining (G.C. Exh. 87). On February 8, it began
negotiating separately with the Company for an agreement to
replace the 1979 CNPA agreement, which was to expire
April 3.
After the withdrawal from multiemployer bargaining, the
Company engaged in coordinated bargaining with the Sun-
Times in negotiations with the Union. It included Burton
Abrams, the Sun-Times director of employee relations, on
the company negotiating team in bargaining sessions on Feb-
ruary 8, 15, 25, 26, March 4, 11, 27, 29, April 30, May 8,
and June 28—until the Sun-Times and the Union agreed in
separate negotiations on a new contract, which the union
membership ratified June 30 (R. Exhs. 17 p. 30, 25, 98 p.
853 insert; Tr. 4263, 4307 12/3/91).
I note that in 1985 and 1986, Company Attorney Kulas
was the CNPA executive director, who ‘‘joined the Chicago
Tribune Management Negotiating Committee in March of
’85’’ (Tr. 4604–4605 12/5/91).
The Company and the Sun-Times continued their coordi-
nated bargaining after the Union, Printers, and Mailers gave
the Company notices of a Sunday midnight, July 7 strike
deadline (R. Exh. 21; Tr. 1269–1273 2/4/87). On that Sunday
evening, Company President Charles Brumback and the Sun-
Times president met with a vice president of ITU (the Print-
ers’ International). With an obvious purpose of delaying the
strike in the hope of reaching settlements with the three
unions, Brumback and the Sun-Times president agreed that
the CNPA would resume negotiations with the Printers. (Tr.
4613–4614 12/5/91, 4980–4981 12/9/91.) At that time the
Printers local was a party to multiemployer bargaining with
the Company and the Sun-Times through the CNPA, but ne-
gotiations had been suspended since an impasse had been
reached in September 1984 (Tr. 1167, 1188 12/4/67; 5255
12/11/91).
This agreement to resume the CNPA-Printers negotiations
did contribute to the decision to delay the strike. The Union
‘‘held back on the strike in hopes that this was a harbinger
of good things to come’’ (Tr. 5534–5535 7/7/92). The delay
enabled the Company and the Union to engage in 3 addi-
tional days of off-the-record bargaining before the strike
began on July 18.
2. On the part of the Union
a. The setting
In its separate negotiations with the Union, the Company
proposed the exclusion of supervisors (discussed above) and
other major changes in the expiring 1979 CNPA agreement.
One of those proposed major changes was the Company’s
‘‘number one priority,’’ to stabilize the work force by elimi-
nating referrals from the Union’s call room (Tr. 2317
12/13/88). Another was to add a new classification of associ-
ate pressman, who would be paid 55 percent of the journey-
man rate (G.C. Exhs. 25 pp. 3–5, 49 pp. 6, 9; Tr. 1116
12/1/88; 3717, 3722–3723 1/18/89).
For over 4 months there was little progress in the negotia-
tions. But when the ‘‘popular Production Vice President’’
Bell entered the negotiations, it was ‘‘an uplifting of spirits’’
for the union negotiators, who ‘‘thought we would get some-
thing settled’’ (Tr. 5543 7/7/92). Beginning on June 20, both
the Company and the Union demonstrated a sincere desire to
compromise and avoid a strike.
The stakes were high on both sides. Bell, who had the re-
sponsibility of keeping the presses running (Tr. 2440
1/20/88), realized that trained pressmen were not available to
replace the 208 journeyman pressmen. The Union realized
that the journeymen, virtually all of whom had guaranteed
working-life job security (Tr. 4929 12/9/91), could jeopardize
their job security by striking.
In their efforts to reach an agreement, the parties held off-
the-record bargaining sessions that sometimes lasted into the
early morning hours. Instead of bargaining from the parties’
previous proposals, they took a ‘‘different approach’’ and
began bargaining on an agreement to extend and amend the
1979 CNPA agreement (Tr. 3808 1/18/89). As tentative
agreements on various issues were reached during the off-
the-record discussions, the Company incorporated them in a
proposed ‘‘Agreement to Extend and Amend’’ (Tr. 4565
12/5/91; R. Exhs. 101, 104, 109; G.C. Exh. 189), from which
the parties would continue to bargain.
As a major concession by the Company, in addition to its
concession on supervisors, the proposed extension agreement
omitted any reference to associate pressmen. As a major con-
cession by both the Company and the Union (Tr. 4828
12/6/91), the proposed agreement contemplated a complete
elimination of referrals from the call room in exchange for
a ‘‘sub-line of 50 journeymen from the call room’’ and a
backup sub-line group of 25 or 50 call-room journeymen.
The compromise would enable the Company to stabilize its
work force with regular part-time journeyman pressmen (Tr.
4929 12/9/91).
Despite substantial progress made in the off-the-record dis-
cussions, the parties failed to agree on all the issues as a
package (Tr. 2539 1/20/88).
b. CFL Unity Council
Since 1981 Edward Brabec, the (now deceased) president
of the Chicago Federation of Labor (CFL), had been holding
luncheon meetings of a so-called unity council at the Como
Inn. It was a ‘‘loosely knit group’’ of all ‘‘newspaper
unions’’ and ‘‘related mechanical unions’’ from ‘‘the [News-
paper] Guild on top to the drivers [Teamsters] on the bot-
tom.’’ Brabec was seeking cooperation among the unions
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(who were ‘‘not always compatible’’) in their dealings with
the newspaper publishers (Tr. 1170–1172, 1175, 1213
12/4/87; 4264–4267 12/3/91; 5513–5514, 5538 7/7/92.)
In December 1984, when the Company was planning a 25-
percent cut in sick pay benefits, the unions met and author-
ized Brabec to intercede on their behalf. Brabec succeeded
in getting Company President Brumback to invite all the
unions to a January 21 meeting, where Brumback agreed to
postpone the cut in benefits until August 1. (Tr. 4250–4255
12/3/91, 5513 7/7/92.)
Meanwhile, in bargaining directly or through the CNPA,
the Company was making similar proposals to all the unions
as their agreements came open (Tr. 4256–4257, 4270
12/3/91; 5112–5113 12/10/91).
On March 8 and 19, the unity council (before it was for-
mally named the Chicago Newspaper Union Employees
Unity Council for announcing an April rally) met and de-
cided to ‘‘attend each other’s negotiations’’ with the Com-
pany and the CNPA. (I refer to this unity council, represent-
ing about 10 local unions, as the CFL Unity Council to avoid
confusion with the Strike Unity Council, discussed below.)
Those attending these CFL Unity Council meetings in
March, besides the Union, included IBEW #134, Machinists
#126, Mailers, Paperhandlers #2, Photo Engravers #458,
Printers, and Teamsters #706. (Tr. 4284–4285 12/3/91; R.
Exh. 98 p. 847.) (The evidence does not disclose whether of-
ficers from Newspaper Guild #71 and Stereotypers #3, as
well as Operating Engineers #399, Tr. 4251 12/3/91, 5112
12/10/91, also attended the March meetings.)
Representatives of five of the CFL Unity Council unions
(Mailers, Newspaper Guild, Paperhandlers, Printers, and
Stereotypers) attended the Union’s negotiations between
March 27 and April 9. Mailers President John Philbin at-
tended the four meetings on March 27–29 and April 9.
Newspaper Guild Executive Director Jerry Minkkinen at-
tended March 27 and April 9 and Charles Sturzyvski March
28. Paperhandlers President William Roberts attended the
four meetings. Printers Vice President Steven Berman at-
tended March 27 and 28 and Robert Branick March 29 and
April 9. Stereotypers Secretary-Treasurer Richard Bee at-
tended March 27–29. (R. Exh. 25 pp. 14, 18, 22, 25.)
In April, CFL President Brabec chaired weekly meetings
of the CFL Unity Council, planning the April 28 rally. Be-
sides the Union, the local unions represented in these meet-
ings included the IBEW, Machinists, Mailers, Newspaper
Guild, Paperhandlers, Photo Engravers, Printers, Stereotypers,
and Teamsters. (Tr. 1221–1224 12/4/87; R. Exh. 98 p. 849.)
CFL Unity Council’s rally announcement, using the coun-
cil’s new formal name, reads in part (R. Exh. 17):
CHICAGO NEWSPAPER UNION EMPLOYEES
UNITY COUNCIL MASS MEETING ALL UNION
MEMBERS EMPLOYED AT THE CHICAGO TRIB-
UNE AND CHICAGO SUN-TIMES
Date: SUNDAY, APRIL 28, 1985
. . . .
MEETING OF ALL UNION MEMBERS EM-
PLOYED AT THE CHICAGO TRIBUNE AND CHI-
CAGO SUN-TIMES TO DISCUSS:
Update on status of ongoing, difficult negotiations
Proposals by management to weaken or destroy
longstanding contract provisions, protections, and prac-
tices
Potential impact if such proposals are effected
Strategies to counter management’s effort to destroy
your contract rights
THIS IS THE FIRST MEETING OF ITS KIND—
THE FIRST TIME ALL UNION EMPLOYEES WILL
MEET TOGETHER TO SUPPORT AND EXPRESS
UNITY FOR THOSE EMPLOYEES FACED WITH
GREATLY REDUCED WORKING CONDITIONS.
Listed at the bottom of the announcement are the names of
Printers President Dave Donovan and Pressmen President
Robert Hagstrom as co-chairmen and CNG (Chicago News-
paper Guild) Executive Director Jerry Minkkinen as sec-
retary. The last line reads: ‘‘FOR INFORMATION CALL:
CNG #17 236–4924.’’
President Donovan’s announcement of the rally in the
Printers’ April ‘‘Reporter’’ (R. Exh. 121) reads in part:
It has taken four years for the Unity Council to take
shape. With the help of Chicago Newspaper Guild
(CNG) Executive Director Jerry Minkkinen, the new or-
ganization embraces all Union members employed in
the Chicago Sun-Times and the Chicago Tribune. Many
meetings of the fledgling group have taken place at
which views were exchanged and discussed. The Unity
Council meeting is scheduled under the guidance of
Chicago Federation of Labor-Industrial Union Council
President Ed Brabec.
On April 29, Brabec met again with the CFL Unity Coun-
cil at the CFL and wrote Brumback the following letter (R.
Exhs. 18, 98 p. 849; 1236–1239 12/4/87):
On April 28, 1985, a joint meeting was held of the
members of all AFL–CIO affiliated unions who are em-
ployed at the Chicago Tribune.
At this informational meeting reports were given of
the status of negotiations with the various unions. The
lack of progress in the negotiations was a matter of
deep concern to the members.
The officers of these unions have authorized me to
inform you that they must have acceptable agreements
by June 1, 1985, as they are obligated to report to their
members with a recommended course of action. It is the
sincere desire of these officers to reach mutually ac-
ceptable agreements through collective bargaining by
this date.
We are asking that you meet jointly with the officers
of the unions and me to discuss ways of expediting the
collective bargaining procedures which have been un-
successful to date. I would appreciate hearing from you
today on this matter. [Emphasis added.]
On May 10, Brumback replied (G.C. Exh. 228), stating
‘‘All of us appreciate your taking time to help us with our
labor relations.’’ He offered to meet individually with the
presidents of four of the unions (the Union and the Mailers,
Paperhandlers, and Printers), but refused a joint meeting.
On May 13, Brabec and the CFL Unity Council met to
discuss Brumback’s May 10 written response to Brabec’s
937CHICAGO TRIBUNE CO.
April 29 letter. The council asked Brabec to meet with
Brumback, to express the council’s decision not to meet with
Brumback on an individual basis, and to request Brumback
again to meet with the CFL Unity Council. That afternoon
Brabec reported back that Brumback was adamant in his po-
sition (refusing to meet with the council) and that Brabec
‘‘reaffirmed to Mr. Brumback that the June 1 date still
stood.’’ (Tr. 1241–1244, 1256–1257, 1266 12/4/87; R. Exh.
19.)
(Discussed later is Brabec’s unauthorized statement to
Brumback in their May 13 meeting that ‘‘all the unions must
have a contract before any union will settle and that . . .
Brabec has the support of all of the unions.’’)
The CFL Unity Council met weekly at the CFL on May
6, 13, and 23 ‘‘to discuss the problems at the Chicago Trib-
une and to plan for future eventualities, if needed’’ (R. Exh.
98 p. 851 insert; 4299–4300 12/3/91). On May 23, CFL
Unity Council Secretary Minkkinen sent a letter to all the
council members, stating in part (R. Exh. 20; Tr. 1268
12/4/87):
Following is a list of strike committees and a thumb-
nail description of the duties of each. As we know, the
potential for a confrontation with the Chicago Tribune
is looming larger by the day. By action of 5/23/85, we
have decided to begin naming members of each union
to these committees, in order to prepare ourselves for
such an eventuality. [Emphasis added.]
Minkkinen requested the selections to be completed and re-
turned to him at the office of the Newspaper Guild if pos-
sible by May 31. The list of nine strike committees included
a ‘‘Policy Committee—Comprised of the leadership of each
of the unions involved in the strike, together with CFL rep-
resentatives.’’
Hagstrom made no committee selections at that time (Tr.
1172 12/4/87, 4301 12/3/91). The Union’s vote for permis-
sion to set a strike date was not held until June 9 (R. Exh.
98 p. 852). On May 31, however, he attended a meeting
called by CFL President Brabec and CFL Unity Council Sec-
retary Minkkinen of ‘‘Newspaper Unions to discuss strike
headquarters and committees, if needed’’ (R. Exh. 98 p. 851;
Tr. 1233 12/4/87).
The CFL Unity Council held meetings at the CFL also on
June 17 and 24 and July 1 and 5 ‘‘to determine committee
selections and strategy’’ (Tr. 4315–4316 12/3/91; R. Exh. 98
p. 854 insert). On June 17, the Union and the Printers and
Mailers set the July 7 strike deadline, which the CFL Unity
Council announced in a press release prepared by Co-Chair-
man Hagstrom (R. Exh. 14; Tr. 1168–1169 12/4/87). The
CFL Unity Council meetings held before that strike deadline
were attended by 12 or 15 persons (Tr. 4323 12/3/91). The
evidence does not reveal, however, how many of the other
CFL Unity Council unions were in attendance or how many,
if any, had made strike committee selections in anticipation
of a strike.
The evidence does reveal that none of the other CFL Unity
Council unions decided to strike. Hagstrom testified: ‘‘Unfor-
tunately’’ only the three unions went on strike (Tr. 1233
12/4/87). The Company reached agreements (through the
CNPA) with all the other unions—the agreement with the
Paperhandlers through interest arbitration (Tr. 3691 12/13/88,
4615–4616 12/5/91, 4923 12/9/91, 5112–5113 12/10/91).
The CFL Unity Council was continuing to hold luncheon
meetings at the Como Inn (Tr. 5243–5244 12/11/91; 5381–
5384, 5538 7/7/92; 5574 7/8/92).
c. Strike Unity Council
When none of the other CFL Unity Council unions de-
cided to strike, the Union and the Printers and Mailers
formed the Strike Unity Council shortly before the July 7
strike deadline (Tr. 1170–1172, 1186–1191 12/4/87; 4275
12/3/91).
In forming the Strike Unity Council, the three unions gen-
erally followed the list of committees in the May 23 letter
(R. Exh. 20) that Minkkinen sent to all CFL Unity Council
members. They did not, however, establish a policy commit-
tee with CFL representatives. They appointed only members
of the three unions to the various committees. The three local
presidents became the steering (or policy) committee. Ini-
tially, each of the presidents appointed a strike coordinator
for his union. On August 27 the presidents, as the steering
committee, appointed two strike coordinators to whom all
committee chairmen would report. (Tr. 1195–1198 12/4/87,
4361 12/3/91; R. Exh. 96.)
I note that there is considerable confusion in the record re-
sulting from the fact that both the CFL Unity Council and
the Strike Unity Council used the identical formal name,
Chicago Newspaper Union Employees Unity Council (Tr.
1170–1172, 1189, 1212, 1222–1225, 1239, 1278–1280
12/4/87). As examples: that formal name was used on CFL
Unity Council’s April 28 rally announcement, as quoted
above (R. Exh. 17), which shows Printers President Donovan
and Pressmen President Hagstrom as co-chairmen, News-
paper Guild Executive Director Minkkinen as secretary, and
the Newspaper Guild telephone number as the number to call
for information. The same formal name was used on Strike
Unity Council’s ‘‘Dear Advertiser’’ and ‘‘Don’t Buy It’’
boycott literature (R. Exhs. 23, 100 p. 5), both of which
identify the three unions as the council and show the address
and telephone number of the strike headquarters.
The three unions made equal contributions to the Strike
Unity Council to maintain a strike headquarters, print picket
signs, publish strike literature, conduct rallies, and engage in
other strike activities (Tr. 1193, 1207 12/4/87, 4461–4471
12/4/91).
The Strike Unity Council’s steering committee held its
meetings at the strike headquarters, except when they met at
the CFL for a special purpose, such as making a press re-
lease (Tr. 4361–4362 12/3/91, 4389–4390, 4424 12/4/91).
CFL President Brabec was able to command more media at-
tention. He acted as a spokesman from time to time because
‘‘he could get the audience.’’ (Tr. 1198–1199 12/4/87, 4360–
4362 12/3/91, 5545 7/7/92.)
d. Separate bargaining
Although the three unions participated in the CFL Unity
Council, set the initial strike deadline, postponed the strike,
and ran the strike through the Strike Unity Council—all law-
ful coordinated activities—there was very little coordinated
bargaining.
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
With one exception, the only times representatives from
the Printers and Mailers attended the Union’s negotiations
were when they and representatives from three other CFL
Unity Council unions (Newspaper Guild, Paperhandlers, and
Stereotypers) attended bargaining sessions over 3 months be-
fore the strike. This one exception was when Printers Presi-
dent Donovan and Mailers President Philbin attended on
June 19, the day before the Company and the Union began
engaging in 9 days of productive off-the-record bargaining.
At this June 19 meeting, as Labor Relations Manager
Howe’s bargaining notes show (G.C. Exh. 176 p. 348),
‘‘Veon says if they can be of help to us in negotiations,
we’re glad to have them.’’
The evidence is clear that these visiting representatives
from other unions officers were nonvoting members, mainly
observers, although the Union stated that they had the full
right to speak. None of them ever presented a proposal on
behalf of the Union. (Tr. 1202 12/4/87, 4591–4594, 4628
12/5/91, 4825 12/6/91, 5241–5242, 5279 12/11/91; G.C. Exh.
176 p. 348.)
Concerning their role, Kulas testified on direct examina-
tion about an incident in the negotiations on March 28.
When the parties were discussing manning, Philbin said the
position the Company was taking was very similar to what
was going on in the Mailers negotiations. Kulas testified that
Veon asked if they were not here to discuss the Union’s con-
tract, and Philbin said ‘‘no, we are here to discuss all of the
matters, all unions [emphasis added],’’ referring to ‘‘the
Mailers and the other unions without a contract [emphasis
added]’’—without revealing any response from the Union.
(Tr. 4635–4636 12/5/91.)
On cross-examination Kulas conceded that when Veon ob-
jected, Hagstrom (disputing Philbin’s statement) responded
‘‘something like’’ they ‘‘are here to discuss [the Union’s] ne-
gotiations’’ (Tr. 4780–4781 12/6/91). Similarly, Howe later
testified that Hagstrom responded ‘‘no, we are here to nego-
tiate [the Union’s] negotiations’’ (Tr. 4941–4942 12/9/91).
I note that four times in its brief, the Company omits
Hagstrom’s response, although twice citing a page reference
to Howe’s testimony. When reviewing the facts, the brief
states (at 8): ‘‘Philbin said no, they were there to discuss
matters involving all of the unions without a contract [em-
phasis added].’’ Later in the brief, when contending that
‘‘The manner in which the Union conducted its negotiations
is additional evidence of unlawful coordinated bargaining,’’
the Company argues (at 49, 50 fn. 6, 52):
When the Company objected to a discussion of the
Mailers negotiations, Philbin said that they were not
just there to negotiate the Pressmen’s contract, they
were there to negotiate all of the contracts.
. . . .
. . . In the negotiations, Philbin said that they were
not just there to negotiate the Pressmen’s contract, but
to negotiate all of the contracts.
. . . .
Philbin even stated in Pressmen negotiations that the
representatives were there to discuss all of the con-
tracts. This conduct is additional evidence of unlawful
coordinated bargaining. [Emphasis added.]
Yet this incident occurred early in the negotiations,
Hagstrom promptly corrected Philbin, and this was the first
and only time in all the negotiations that an issue in another
union’s negotiations was ever mentioned.
In their separate negotiations, the Company and Union
bargained only on their own contractual issues and never on
any Printers or Mailers issues (Tr. 4505 12/4/91).
D. Union Assurances
1. Early morning, July 8 meeting
The Union was already demonstrating its eagerness to
reach an agreement and avoid a strike by joining the Com-
pany in the off-the-record discussions after Vice President of
Operations Bell entered the negotiations.
Then about 2 o’clock Monday morning, July 8—2 hours
after the Sunday midnight strike deadline—the Union ex-
pressly gave an assurance to the Company that it was eager
to sign an agreement (without regard to the Company’s ne-
gotiations with other unions).
The Company and Union were making substantial progress
in their latest off-the-record negotiations that had extended
from Saturday evening, July 6, into early Sunday morning
and (after the Company met with the Mailers Sunday after-
noon) had resumed Sunday evening, July 7. That evening
was when Company President Brumback and the Sun-Times
president met with an ITU vice president and agreed to re-
sume negotiations with the Printers.
At 10 p.m., 2 hours before the strike deadline, the Union
submitted ‘‘on the record’’ a proposal (R. Exh. 107) that also
placed on the record its early Sunday morning off-the-record
proposal (R. Exh. 105), in a further effort to reach an agree-
ment and avoid a strike. It also agreed to ‘‘stop the clock’’
to continue bargaining beyond the midnight deadline and
scheduled another meeting to be held after the Company met
again with the Mailers. Before midnight it received the news,
hopefully ‘‘a harbinger of good things to come,’’ that the
CNPA would resume negotiations with the Printers. (Tr.
4675 12/5/91, 4978 12/9/91, 5145 12/10/91, 5220–5221
2/11/91, 5534–5535 7/7/92.)
The Union did follow the Mailers and met with the Com-
pany about 2 o’clock Monday morning, July 8, after the
Company had prepared its oral response to the Union’s 10
p.m. on-the-record proposal (R. Exh. 107; Tr. 5222–5224
12/11/91). As Howe testified, both the Company and the
Union were saying ‘‘we think we can settle this.’’ Howe ad-
mitted (Tr. 4984 12/9/91): ‘‘I remember Mr. DeVito for sure
saying we want to settle this.’’ (Emphasis added.)
At 2:20 a.m., after receiving this explicit assurance from
the Union, the Company began giving its oral response. Just
before 2:30 a.m. (Tr. 4984 12/9/91; G.C. Exh. 176 pp. 382–
383), it reached the supervisor issue.
As found, the Company refused to agree with the Union’s
on-the-record proposal for a provision that excluded super-
visors, with an unqualified prohibition against them perform-
ing bargaining unit work (R. Exh. 105 par. c, p. 2): ‘‘Super-
visors—excluded from bargaining unit—shall not perform
bargaining unit work.’’ The Company did make a significant
concession that the excluded supervisors ‘‘shall not perform
bargaining unit work.’’ It added, however, the qualification:
‘‘but shall perform [undefined] customary supervisory du-
ties.’’
I discredit Howe’s claim (Tr. 4985 12/9/91) that the Com-
pany ‘‘backed all the way off and proposed to the Union
939CHICAGO TRIBUNE CO.
what they had stated to us that they wanted [emphasis
added]’’: that supervisors ‘‘would be excluded from the con-
tract and not perform bargaining unit work.’’ I also discredit
Kulas’ claim (Tr. 4685 12/5/91) that when the Company
made its oral offer on supervisors, that was ‘‘when [the
Union] wanted to go back and meet with the other unions.’’
Instead, the Company then proceeded to give the remainder
of its oral response and, despite the late hour, the parties
continued negotiating ‘‘Absolutely’’ in ‘‘earnest’’ to reach an
agreement (Tr. 5228 12/11/91).
They were near agreement on the major call-room issue,
disagreeing on the number of 25 or 50 journeymen to be se-
lected from the call room for the backup subline group (Tr.
4845 12/6/91, 4992 12/19/91; G.C. Exh. 176 p. 389). Despite
their efforts to reach an agreement, however, the parties ad-
mittedly (Tr. 4993 12/9/91, 5113 12/10/91) remained apart
on some ‘‘important or major issues.’’
Finally at 3:15 a.m. the Union decided to go next door to
the hotel where the Printers and Mailers were waiting and
conferred with them on the status of the negotiations (Tr.
4522 12/4/91, 4986–4994 12/9/91, 5090 12/10/91, 5228–
5229 12/11/91). (The Company and Mailers had scheduled
another bargaining session to follow the Union’s negotiations
that morning, Tr. 4527 12/4/91.)
DeVito’s bargaining notes (Tr. 5150 12/10/91) state the
reason for adjourning the negotiations at that particular time:
‘‘Veon wished to draft language in the amended areas. We
stated we weren’t interested at this hour and decided to ad-
journ at 3:15.’’ DeVito credibly explained on the stand that
Veon employed the practice of submitting a complete draft.
‘‘The hour was late. We had a very tedious day and every-
body was under severe strain . . . . We had been going all
day long and we were just basically exhausted. And I believe
they were, too.’’ (Tr. 5150–5251 12/10/91.)
In view of the progress that had been made in the negotia-
tions and the favorable news that the Company and Sun-
Times had agreed to resume bargaining with the Printers
(perhaps indicating further company concessions), the Union
agreed with the Printers and Mailers not to strike that morn-
ing and to negotiated on a day-to-day basis. DeVito credibly
testified that ‘‘we . . . extended the deadline because we
were all under the impression we could come to a settlement
after the first deadline had been reached and we did not
strike.’’ (Tr. 4520–4524 12/4/91, 5576 7/8/92.)
DeVito telephoned the Company. He notified them that the
strike was being postponed and the three unions scheduled
bargaining dates: the Mailers that afternoon and on July 9,
the Union on July 10, and the Printers on July 11. (Tr. 5152–
5153 12/10/91, 5229 12/11/91.)
2. July 10 meeting
The Union again assured the Company that it desired an
agreement on July 10 at the next bargaining session after the
strike was postponed.
Near the beginning of this meeting, before presenting its
revised proposed ‘‘Agreement to Extend and Amend’’ (R.
Exh. 109; G.C. Exh. 189; Tr. 4994 12/9/91), the Company
specifically asked ‘‘if the Union was in a position to go
ahead and sign off’’ on an agreement (without agreements
first being reached between the Company and the Printers
and Mailers).
This question arose in the context of (a) the Union, Print-
ers, and Mailers having sent virtually identical strike notices
on June 17, setting the same strike deadline (R. Exhs. 14, 21;
Tr. 1271–1273 12/4/87, 4498–4499 12/4/91) and (b) the
Union having from time to time inquired about the status of
the Mailers’ negotiations and commented on the absence of
any negotiations with the Printers (Tr. 4504–4509, 4513,
4519–4520 12/4/91, 4965–4966 12/9/91, 5151–5152,
12/10/91, 5217–5220 12/11/91).
DeVito’s bargaining notes read as follows (Tr. 5231–5232
12/11/91):
Bob [Hagstrom] asked Veon about Mailers meetings.
Veon responded no significant change in their negotia-
tions.
George [Veon] asked if we are in a position to sign
off. Bob [Hagstrom] and I responded that if we secure
our issues, that is possible. [Emphasis added.]
Hagstrom credibly recalled (Tr. 5535 7/7/92) that ‘‘we told
him . . . that we were in there for [Pressmen’s Union] No.
7 and if we could get an agreement, we have got an agree-
ment [emphasis added].’’
After both Hagstrom and DeVito gave this assurance, the
Company presented its off-the-record written proposal, incor-
porating its early Monday morning oral proposals, and the
parties resumed bargaining ‘‘where they left off’’ (Tr. 5091
12/10/91). That afternoon, July 10, the Union submitted a
five-page proposal (R. Exh. 110; Tr. 4995–4996), again ‘‘on
the record.’’
Howe’s July 10 bargaining notes (G.C. Exh. 176 pp. 384–
387) conclude:
Discussion on what transpired [at] Sunday meeting.
If unions [had] extended deadlines before midnight and
[if] we were informed of that, we could have avoided
a lot of the chaos.
[Adjourn to] July 15 and July 16 (9:30 a.m. at CNPA).
At that time, there was no complaint that they had not nego-
tiated even later that Monday morning.
3. July 15 meeting
At the beginning of the July 15 meeting, before another
full day of bargaining, the Company sought and received fur-
ther assurance from the Union.
Howe’s bargaining notes read (G.C. Exh. 176 p. 388):
Veon says . . . . Not sure where we are and if you
want to settle. We’ve been told that you won’t settle
until others settle.
Hagstrom says have we ever told you that?
Veon says your representative and agent, Ed Brabec,
told us that.
Also, other two unions won’t do anything until Aug.
20. [Emphasis added.]
Similarly, Kulas read from his bargaining notes (Tr. 4698–
4700 12/5/91):
MR. VEON: I am not sure where you are. We have
been told that we won’t get a contract until all unions
do.
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
MR. HAGSTROM: Did we tell you that?
MR. VEON: Your spokesman, Brabec did. It appears
the ITU Unions [Printers and Mailers] want to wait
until August 20th. And then there is talk about what
happened at the Printers meetings and Mailers meetings
and how they stall.
Then DeVito asked what is August 20th, and Veon
says that is [when] the ballots [are to be] counted in [a
proposed] merger. At loss at why you support that. If
you are, there is a question, we need to know that.
DeVito, he talks about getting to the truth and my
understanding is the Mailers made substantial move-
ment and you firmed up. [Emphasis added.]
I note that when Hagstrom was shown the bargaining
notes of employee Warren, he recalled (Tr. 4535–4536
12/4/91) that DeVito also responded that the Printers had
made a proposal (in their negotiations on July 11)—further
indicating that DeVito was not aware of any stalling until
August 20.
Although the Union’s assurance is not shown at that point
in either Howe’s or Kulas’ bargaining notes, I discredit
Kulas’ claim that the Union did not ‘‘say anything at that
time about we are here to get an agreement’’ (Tr. 4702
12/5/91) and Howe’s claim that ‘‘They didn’t say anything
more about it’’ (Tr. 5003 12/9/91). To the contrary,
Hagstrom credibly testified (Tr. 5535 7/7/92):
[W]e told [Veon] at all times, that we were in there for
[Pressmen’s Union] No. 7 and if we could get an
agreement, we have got an agreement. [Emphasis
added.]
(I observed that Hagstrom could not remember as many
details when he testified at the remand hearing in 1991 and
1992 as he could when he testified before in 1987 and 1988
at the trial. He again, however, ‘‘impressed me most favor-
ably by his demeanor on the stand as a sincere witness,
doing his best to recall accurately what occurred.’’)
Hagstrom’s testimony, that the Union again gave the Com-
pany the assurance that it would sign if an agreement could
be reached, is confirmed by Kulas’ own bargaining notes.
Kulas read this part of his notes when he was testifying
about a proposed tradeoff near the close of the July 15 nego-
tiations (at 5 p.m., as shown by Howe’s notes, G.C. Exh. 176
p. 401). Kulas testified (Tr. 4708 12/5/91):
Q. What did Mr. Veon say before he made this
movement on this proposal about the changing of the
zipper clause for this other issue?
A. My notes indicate that he said we are taking [the
Union] at their word that we can reach agreement, and
that maybe we can accommodate them. [Emphasis
added.]
I consider it obvious that the Union must have given such
an assurance in response to Veon’s inquiry (about CFL
President Brabec’s statement to Company President
Brumback on May 13 that ‘‘all the unions must have a con-
tract before any union will settle’’). Otherwise, the parties
would not have then spent the full day bargaining on the un-
resolved issues, as shown by Howe’s bargaining notes (G.C.
Exh. 176 pp. 388–401).
Although the Union did not dispute Brabec’s statement
‘‘flat out’’ (Tr. 5536 7/7/92), I find that by giving the Com-
pany this assurance (that the Union would sign if an agree-
ment could be reached), the Union was in effect repudiating
Brabec’s statement, which was made over 2 months earlier
and which the Company had been ignoring until the July 15
meeting.
Regarding the status of the negotiations, as found, Kulas’
bargaining notes state that at the July 15 meeting, DeVito
said there was no agreement on 15 of 25 items, 8 of which
were ‘‘tough ones’’ (Tr. 4704 12/5/91). Howe’s notes show
that this occurred between 3:44 and 4 p.m. (G.C. Exh. 176
pp. 398–400), after hours of bargaining on many issues.
At the next meeting on July 16, the parties spent most of
the time in an unsuccessful attempt to trade off various
issues (G.C. Exh. 176 pp. 402–405; Tr. 4718 12/6/91), fur-
ther demonstrating that both the Company and the Union
were sincerely seeking an agreement.
4. July 30 meeting
The Union assured the Company at the July 30 meeting
(nearly 2 weeks after the strike began) that it was eager to
sign an agreement.
By that time, the Union obviously was in a poorer bar-
gaining position. Kulas testified ‘‘I would say yes,’’ the
Company had ‘‘really won the strike’’ at that stage ‘‘because
we weathered the strike . . . we didn’t miss an edition and
we were able to get the paper out and distributed’’ (Tr. 4847
12/6/91).
Although the Company was still hoping that the strike
could be settled and was hiring only temporary replacements
for the first month, it had (lawfully) withdrawn its prestrike
off-the-record concessions, such as those on supervisors and
the call room, and had reinstated its proposal for a new clas-
sification of associate pressman to be paid 55 percent of the
journeyman rate (Tr. 4846 12/6/91; G.C. Exh. 49 p. 7).
It was under these circumstances that the Union expressed
its eagerness at the July 30 meeting to settle the strike and
return to work. Howe’s notes show that after several hours
of bargaining, when Veon asked Hagstrom, ‘‘What are the
important issues in these negotiations [to] get it resolved?’’
there was an immediate reply (G.C. Exh. 176 p. 438; Tr.
3823 1/18/89):‘‘Hagstrom says the important issue is to get
the people back to work.’’ (Emphasis added.)
The evidence shows that Hagstrom took this same posi-
tion, showing independent decision making, when ‘‘making
a statement about settlement’’ at a (CFL Unity Council)
meeting of Tribune unions at the Como Inn. Printers Vice
President Berman (who referred to these meetings as ‘‘Presi-
dents’ meetings’’ or ‘‘Unity meetings’’) credibly recalled
(Tr. 5243–5246 12/11/91, 5381–5384 7/7/92) that
Hagstrom stated at one of the meetings I attended at the
Como Inn that if anybody could settle, go ahead and
settle. [Emphasis added.]
Recalling more fully what he stated at the meeting,
Hagstrom credibly testified that at the Como Inn (Tr. 5538–
5539 7/7/92):
[W]e were questioned whether or not there would be a
gentleman’s agreement, whether overt or covert, that all
941CHICAGO TRIBUNE CO.
return . . . one back, all back. And it was the opinion
of my local union and myself, and I so stated that, ‘‘If
you get a settlement, you go back. And anybody that
can get a settlement, it is going to be a breakthrough
for all of us.’’ [Emphasis added.]
I find the evidence clear that after the July 30 meeting, the
Union demonstrated in the negotiations that it was seeking
a settlement, without regard to the Printers or Mailers nego-
tiations. Howe recalled that at the October 24 meeting,
DeVito ‘‘made a long statement . . . stating that why don’t
we go back to where we were . . . in the off-the-record type
negotiations.’’ The Company refused, responding ‘‘that we
had proposals on the table . . . and we wanted to continue
to negotiate on those points.’’ (Tr. 3833 1/18/89.)
When Kulas was asked if the Union ever raised issues that
concerned the other two unions after the strike started, he ex-
pressed uncertainty about whether there was ever any men-
tion of their bargaining. He answered (Tr. 4855 12/6/91) that
he had reviewed his bargaining notes and ‘‘I vaguely remem-
ber a comment made by Mr. DeVito, and I think [emphasis
added] it was made after the strike, about progress at the
Mailers Union. If you want me to, I will gladly look for it.’’
Howe expressed similar uncertainty (Tr. 5628 7/8/92):
Q. After the strike at the bargaining table did [the
Union] ever bring up the problems that [the Mailers] or
[the Printers] were having getting the contract with the
[Company]?
A. I think they may have. I would have to review
all my notes and correspondence. I know there was dis-
cussion because I know there was also in the other ne-
gotiations with the Mailers. [Emphasis added.]
Neither Kulas nor Howe checked his bargaining notes to
point out a single instance.
Finally, when the Union learned in January 1986 that the
Regional Director was issuing a complaint against the Com-
pany for unlawfully bargaining to an impasse on November
13, the Union did not hesitate in deciding to make an uncon-
ditional offer to return to work—without regard to the status
of the Printers and Mailers negotiations. Then when the
Union advised the other two unions of its decision, it ‘‘didn’t
bother’’ the Printers ‘‘because they were planning to do the
same thing.’’ But Philbin ‘‘was extremely put out. He
thought it put the Mailers in a very bad light,’’ because the
Printers also had unfair labor charges pending against the
Company, but ‘‘Philbin had none.’’ (Tr. 4427–4428 12/4/91,
4580–4584 12/5/91, 5542 7/7/92.)
Nothing was said at that time about any agreement that
‘‘Nobody goes back until everyone goes back.’’
E. Undisputed Facts
In evaluating the Company’s affirmative defense that the
Union was engaged in ‘‘unlawful coordinated bargaining,’’ I
take into consideration the following undisputed facts:
It is undenied, as Hagstrom credibly testified, that the
Union never said that no union would sign a contract until
they all had a contract (Tr. 1203 12/487).
Kulas testified that he never heard the Union say ‘‘we
won’t sign a contract unless the other two unions sign off’’
(Tr. 4854 12/6/91).
Howe admitted that the Union did not state after the strike
‘‘we are never going to sign a contract unless [the Printers
and Mailers] reach their contract’’ (Tr. 5627–5628 7/8/92).
Howe admitted that before the Union offered to return to
work on January 30, 1986, he never heard anyone say there
was an agreement among the unions to all return to work at
the same time (Tr. 5598 7/8/92).
F. ‘‘Unlawful Coordinated Bargaining’’
1. Admitted ‘‘desperate attempt’’ to reach agreement
Perhaps inadvertently, the Company in effect acknowl-
edges the overwhelming evidence that the Company and the
Union exerted sincere efforts during their off-the-record dis-
cussions to reach an agreement.
In its brief (at 53) the Company refers to ‘‘the parties des-
perate attempt to reach an agreement prior to the original,
July 7, strike deadline.’’
Yet the Company asserts (at 35, 60) that the conclusion
is ‘‘inescapable’’ that the Union and the Printers and Mailers
‘‘conspired to engage in unlawful coordinated bargaining,’’
whereby ‘‘one union would not seriously attempt to get a
contract unless the other two did.’’
2. Contentions of the parties
The General Counsel contends in his brief (at 35) that the
Company ‘‘had access to all three unions’ meeting minutes
and innumerable subpoenaed documents, but was unable to
come up with any reference’’ to an agreement that the Union
would not settle unless the Printers and Mailers also settled.
‘‘There simply was no such agreement.’’
The Union contends in its brief (at 1, 6–7) that the Com-
pany’s claim that there was such an agreement is a ‘‘Con-
spiracy Fantasy’’ and that the Union’s prestrike bargaining
‘‘demonstrated a sincere desire to reach agreement.’’
The Company contends in its brief (at 41–42) that under
Board law, the Union is bound by the statement made by its
agent, CFL President Brabec, on May 13. It contends (at 42–
43) that Brabec stated
directly and unequivocally to the President of the Com-
pany that none of the unions would settle until they all
settled. His statement is a blatant admission of unlawful
coordinated bargaining.
Since unlawful conspiracies are not often announced
to the party being conspired against, it is hard to imag-
ine more clear and convincing proof of unlawful co-
ordinated bargaining. The statement by Brabec is cer-
tainly the proverbial smoking gun. [Emphasis added.]
The Company—confusing the CFL Unity Council (consist-
ing of about 10 local unions) with the Strike Unity Council
(consisting of the three striking unions)—contends (at 45)
that the Union and the Printers and Mailers formed the
‘‘Unity Council’’ by April 1 and because ‘‘the Unity Council
was formed, funded and directed by the three unions,’’ it
‘‘was an agent and acted on the authority of the Union.’’
The Company contends (at 34) that acting through the the
Unity Council, the three unions ‘‘authorized Brabec to speak
to the Company on their behalf.’’
The Company also contends (at 39–40) that unity council
statements and conduct ‘‘are further proof of the Union’s un-
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lawful conduct’’ and that ‘‘the manner in which the Union
conducted its negotiations is additional proof of the Union’s
improper conduct.’’
The Company further contends that some of the coordi-
nated activities, found above to be lawful, constituted ‘‘un-
lawful coordinated bargaining.’’
3. Hope, not reality
Hagstrom admitted (Tr. 1203, 1256–1259 12/4/87; R. Exh.
19 p. 2) that Brabec reported back to the CFL Unity Council
on May 13 that he had told Company President Brumback
in the meeting that afternoon that
all unions must have a contract before any union will
settle and that Mr. Brabec has the support of all the
unions. [Emphasis added.]
The evidence is clear, however, that Brabec was express-
ing his hope, not a reality.
As found, since 1981 Brabec had been holding informal
‘‘unity council’’ luncheon meetings at the Como Club with
the ‘‘not always compatible’’ newspaper unions, seeking co-
operation among them in their dealings with the publishers.
He spoke for them in arranging their January 21 meeting
with Brumback, who agreed to postpone a cut in sick bene-
fits. At meetings of the CFL Unity Council in March, the
newspaper unions decided ‘‘to attend each other’s negotia-
tions’’ with the Company and the CNPA.
Brabec’s unity endeavors were crowned on April 28 when
the CFL Unity Council sponsored the first-time ‘‘Mass Meet-
ing’’ of ‘‘All Union Members Employed at the Chicago Trib-
une and Chicago Sun-Times.’’ On April 29 Brabec sent a
letter to Brumback, asking him to ‘‘meet jointly with the of-
ficers of the unions and me’’ and informing him that ‘‘The
officers of these unions . . . must have acceptable agree-
ments by June 1, 1985, as they are obligated to report to
their members with a recommended course of action.’’
The CFL Unity Council, including Hagstrom, had author-
ized Brabec to send the letter. But the unions in the council
never agreed, and they never authorized Brabec to tell
Brumback, that all the unions must have a contract before
any union would settle. (Tr. 1236, 1257 12/4/87; 5246
12/11/91; 5540, 5545–5546, 5552 7/7/92.)
Moreover, the evidence shows that neither the unions nor
the Company took Brabec’s statement seriously. All the
unions, except the Union, Printers, and Mailers, reached
agreements with the Company (through the CNPA). The
Company, with one exception, never mentioned Brabec’s
May 13 statement in any of the negotiations. The one time
was on July 15, the eighth day of the productive off-the-
record discussions, when the parties were seeking to resolve
the remaining issues separating them. Until then, the Com-
pany had ignored Brabec’s statement to its president, even
through the Union had been making references to the Mail-
ers’ negotiations and the absence of Printers’ negotiations.
As found, Veon said at the beginning of that meeting that
‘‘We have been told that we won’t get a contract until all
unions do’’ and that ‘‘Your spokesman, Brabec’’ said that.
After Hagstrom again assured the Company that ‘‘if we
could get an agreement, we have got an agreement,’’ the par-
ties continued their off-the-record bargaining, demonstrating
their efforts to avoid a strike, without any further references
to the Printers’ or Mailers’ negotiations. The following day
they tried to break the deadlock by trading off various issues.
Obviously, the Company would not have engaged in the
9 days of off-the-record discussions if they had taken
Brabec’s earlier statement to Brumback seriously.
4. Two unity councils
The Company confuses the CFL Unity Council—which
Brabec had been nurturing among all the newspaper unions
for about 4 years, which sponsored the April 28 ‘‘Mass
Meeting’’ of ‘‘All Union Members Employed at the Chicago
Tribune and Chicago Sun-Times,’’ and which authorized
Brabec to seek a joint meeting with Brumback and to set the
June 1 deadline for reaching ‘‘acceptable agreements’’—with
the Strike Unity Council, which the Union and the Printers
and Mailers formed shortly before the July 7 strike deadline.
Using the single name, ‘‘Unity Council,’’ the Company
asserts in its brief (at 45)—without the emphasized bracketed
clarifications:
By April 1, 1985, the Pressmen, Printers, and Mail-
ers Unions had formed the [CFL] Unity Council [rather
than Brabec, as found]. The [Strike] Unity Council was
funded by contributions from the three unions.
Hagstrom, Donovan, and Philbin, the three union
presidents, were co-chairmen of the [Strike] Unity
Council. [As found, Hagstrom and Donovan were co-
chairmen and Newspaper Guild Executive Director
Jerry Minkkinen was secretary of the CFL Unity Coun-
cil, whose telephone number was the Guild’s number.]
They were also members of the [Strike] Unity Coun-
cil’s steering committee and policy committee.
Throughout 1985 the [Strike Unity Council’s] policy
committee met on an average of twice a week [al-
though, as found, the Strike Unity Council was not
formed until July]. . . . Brabec directed the [CFL]
Unity Council in planning the mass meeting held on
April 28, 1985.
It was on the basis of this erroneous analysis of the evi-
dence that the Company asserts in its brief (at 45 fn. 3) that
because ‘‘the Unity Council was formed, funded and directed
by the three unions, including the Pressmen’s Union, the
Unity Council was an agent and acted on the authority of the
Union.’’ The Company further asserts (at 42) that ‘‘Clearly,
Brabec was an agent of the Unity Council and [the] Union
when he told Brumback that all the unions had to have con-
tracts before any union would settle.’’
It was the multiunion CFL Unity Council that authorized
Brabec to speak to Brumback, not the three unions’ Strike
Unity Council. Moreover, even if Brabec’s May 13 statement
to Brumback (that ‘‘all unions must have a contract before
any union will settle’’) had been authorized and taken seri-
ously, that would have indicated a broken commitment by
the newspaper unions that none of them would sign a con-
tract before all the unions settled—not an agreement between
the Union and the Printers and Mailers that the Union would
not settle until the other two unions settled. All the other
unions, beside the Union and the Printers and Mailers, settled
without a strike.
943CHICAGO TRIBUNE CO.
5. ‘‘Exactly what the Union said it wanted’’
The Company argues in its brief (at 54):
Most telling of the Union’s unlawful coordination
with other unions is its conduct on the supervisory ex-
clusion issue on July 7, 1985. Late in the evening, the
Company orally proposed that supervisors would be ex-
cluded from the bargaining unit and would not perform
bargaining unit work. This significant concession to ex-
actly what the Union had said it wanted should have
broken the logjam and perhaps led to an agreement.
However, the Union’s response was not one of imme-
diate agreement. The Union did not even respond to the
Company’s major concession. Instead, the Union ad-
journed the meeting so it could go talk to the other
unions. . . . This conduct by the Union shows that
even concessions by the Company on major issues were
not going to lead to a settlement unless the other unions
also settled. . . . Thus, it was the coordinated bargain-
ing, not individual contract items separating the parties,
which was preventing the parties from reaching an
agreement. [Emphasis added.]
Neither this version of the facts nor the conclusion is per-
suasive.
As found, when the Company made the oral proposal—not
late in the evening but near 2:30 a.m.—that ‘‘all such [ex-
cluded] supervisors shall not perform bargaining unit work,’’
it added the qualification: ‘‘but shall perform [undefined]
customary supervisory duties.’’ The Company refused to
agree with the Union’s proposal that omitted that qualifica-
tion: ‘‘Supervisors—excluded from bargaining unit—shall
not perform bargaining unit work.’’
Also as found, when the Company orally proposed the
qualifying language, the Union did not leave the meeting:
‘‘Instead, the Company then proceeded to give the remainder
of its oral response and, despite the late hour, the parties
continued negotiating . . . . Finally at 3:15 a.m. the Union
decided to go next door to where the Printers and Mailers
were waiting and conferred with them on the status of the
negotiations.’’ This occurred when ‘‘Veon wished to draft
language in the amended areas’’ and the Union was not ‘‘in-
terested at this hour.’’ DeVito credibly explained: ‘‘The hour
was late. . . . We had been going all day long and we were
just basically exhausted. And I believe they were, too.’’
From the credited evidence, I reach the opposite conclu-
sion from the Company about the adjournment. The Union
decided not to proceed with the strike that morning. It in-
stead agreed with the Printers and Mailers to postpone the
strike and negotiate on a day-to-day basis because (a) there
was progress in the negotiations, (b) it had received the news
that the Company and Sun-Times had agreed to resume bar-
gaining with the Printers (perhaps indicating further company
concessions), and (c) as DeVito credibly testified, ‘‘we were
all under the impression we could come to a settlement after
the first deadline had been reached and we did not strike.’’
Moreover, after another 3 days of off-the-record bargain-
ing (on July 10, 15, and 16) and sincere efforts to reach an
agreement by trading off various issues, a total of eight
major issues remained unresolved. I conclude that the inabil-
ity of the Company and Union to resolve these remaining
major issues was the reason for the failure to reach an agree-
ment, not coordinated bargaining.
6. Other arguments
The Company, in the absence of any testimony or docu-
mentary evidence that the Union and the Printers and Mailers
had met and entered into an agreement that each would not
settle until the other two unions settled, makes many factual
contentions that I find unpersuasive.
All of these arguments ignore the obvious facts that the
Union was eager to sign an agreement to avoid a strike and,
when the Company was able to keep the presses running
without the strikers, to reach a settlement and ‘‘get the peo-
ple back to work.’’
a. Nonvoting committee members
The Company argues in its brief (at 49) that the attendance
of representatives of the Printers and Mailers at the March
27 and 28 and June 19 meetings as bargaining committee
members with ‘‘full rights to speak’’ is evidence of ‘‘unlaw-
ful coordinated bargaining.’’
It fails to mention that representatives from a total of five
CFL Unity Council unions (Mailers, Newspaper Guild,
Paperhandlers, Printers, and Stereotypers), as found, attended
four meetings from March 27 to April 9 (early in the nego-
tiations) and that Veon welcomed the Printers’ and Mailers’
representatives on June 19, stating he was glad to have them.
The Company does not explain how this obviously lawful
coordinated activity (inviting nonvoting members to attend)
has any relevance to the purported conspiracy that the Union
would not settle unless the Printers and Mailers also settled.
The brief at four places does argue that on March 28, Philbin
stated that they were there to discuss or negotiate all the con-
tract or matters involving all the unions without a contract.
Each time, as discussed above, the brief omits Hagstrom’s
response, correcting Philbin and stating that only the Union’s
issues were to be discussed.
Also apparently irrelevant is the Company’s argument (at
50) that Printers Vice President Berman was ‘‘involved with
other unions with respect to their strategy and negotiations,’’
a reference to Berman’s participation in the lawful coordi-
nated action of the Union and the Printers and Mailers on
the night of the July 7 strike deadline, when they decided to
postpone the strike (Tr. 5273–5278 12/11/91).
b. All to return together
The Company argues in its brief (at 44–46) that the two
following documents are proof of ‘‘unlawful coordinated bar-
gaining.’’
(1) ‘‘Secretary’s Unofficial Notes—June 17, 1985
Executive Committee Meeting.’’
June 17 was the date that the Union and the Printers and
Mailers set the initial July 7 strike deadline (R. Exhs. 14, 21;
Tr. 1271–1273 12/4/87, 4498–4499 12/4/91). According to
these minutes of a 1 p.m. meeting of the Printers’ executive
committee on that date (R. Exh. 124), President Donovan re-
ported that at a ‘‘Unity meeting’’ attended by DeVito and
two ITU vice presidents, ‘‘Agreement [was] reached that all
[emphasis added] unions would return together.’’
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Neither Donovan nor either of the two ITU vice presidents
was called to testify. DeVito (who again appeared on the
stand to be an honest witness) credibly denied categorically
that in any meeting he attended with the two ITU officials,
there was ever an agreement reached that all unions would
return together (Tr. 5571 7/8/92). When questioned about the
minutes, he credibly testified (Tr. 5573–5575 7/8/92):
I notice by the date that this preceded the strike and
I am baffled by . . . what I read here because we
hadn’t even struck at that time and I don’t know when
this meeting took place. . . . I know that we had meet-
ings together in unity at the Chicago Federation of
Labor. We had sporadic luncheon meetings . . . where
things were discussed on each other’s negotiations and
what progress was being made. At this particular time
the [Printers] . . . were not in negotiations. . . . I
know [the Union], we were negotiating on the premise
that if we could come to a settlement that we would
settle our contract and we said that during negotiations.
. . . .
Dave Donovan would envision a lot of things . . .
he would say and do things that were erratic at times.
We used to have spats . . . Dave what the hell are you
doing we never said this, this never happened and dif-
ferent things.
I personally don’t take any stock in this. . . . It was
never said by me and it was never said . . . that we
would all go back or none would go back or whatever
that is. Never. Never.
If Donovan’s report were true, it would be valuable infor-
mation for the membership, but none of the minutes of the
membership meetings held by the Union and the Printers and
Mailers reflects any agreement that all the unions would re-
turn together. Donovan’s report, made only to his executive
committee on the day he joined in setting a strike deadline
with the Union and the Mailers (both of whom, unlike the
Printers, were in negotiations), merely raises the suspicion
that Donovan’s purpose in reporting the purported agreement
was to reassure his fellow union officials of the wisdom of
the action.
Furthermore, I consider it unlikely that all the CFL Unity
Council unions would be agreeing to return together when
none of them—except the Union and the Printers and Mail-
ers—was deciding to strike.
In view of DeVito’s credited testimony and all the cir-
cumstances, I do not consider Donovan’s report to his execu-
tive committee on June 17 to be persuasive evidence of ei-
ther an agreement that ‘‘all unions would return together,’’
or an agreement between the Union and the Printers and
Mailers that if they did strike, the three unions would return
together and not settle separately.
(2) ‘‘STRIKE FACTS, Twenty-One Answers to
Questions You’ve Been Asking’’
This flyer (R. Exh. 22), which was distributed about July
6, the day before the July 7 strike deadline (Tr. 1273–1277
12/4/87, 5446–5448 7/7/92), shows that it was issued by
‘‘Chicago Newspaper Union Employees’ Unity Council, Pub-
lic Relations Committee—[pressman] Dennis Boyle, Chair-
man, 222–1000 (CFL), 733–2300 (Strike Hqs.).’’ It reads in
part:
18. Q. What support can we expect from members
of other unions not represented at the Tribune?
A: Other unions are being contacted through the Chi-
cago Federation of Labor (whose president, Ed Brabec,
is serving as spokesman for the unions) and through
other labor groups and organizations.
. . . .
21. Q. If there’s a strike, will they probably try to
‘‘pick off’’ one union at a time?
A. Perhaps. But it’s been agreed among the unions:
Nobody goes back until everyone goes back.
For a number of reasons, I find that the answer to question
21, that ‘‘it’s been agreed among the Unions: Nobody goes
back until everyone goes back,’’ reflects the position taken
by CFL President Brabec and his CFL Unity Council and not
an actual agreement between the Union and the Printers and
Mailers—12 days before the strike—that if they did strike,
they would remain on strike until all three unions reach set-
tlements.
First, DeVito, Hagstrom, and Printers Vice President Ber-
man all credibly denied that the three striking union ever en-
tered into such an agreement (Tr. 5246–5247, 5253–5254
12/11/91; 5537–5538, 5540 7/7/91; 5571, 5574–5576, 5579
7/8/92). As found, none of the minutes of their membership
meetings reflects any agreement that all the unions would re-
turn together. As further found, the Union gave the Company
repeated assurances that it was acting independently and de-
sired an agreement without regard to whether the other
unions reached settlements.
Second, the flyer was not a printed document, issued by
the Strike Unity Council itself, such as the one issued the
day before, July 5, entitled ‘‘Workers’ Data Link’’ (G.C.
Exh. 224). That flyer, prepared by the public relations com-
mittee with the assistance of legal counsel and officers and
members of the three unions, was issued as an official publi-
cation of the council, ‘‘Chicago Newspaper Unions Employ-
ees Unity Council’’ (Tr. 5546–5547, 5536–5537 7/7/92). The
other printed publications in evidence (R. Exhs. 23, 100) are
all issued by the council, not the public relations committee.
In contrast, the July 6 leaflet (containing the ‘‘Nobody
goes back until everyone goes back’’ answer) is a typed doc-
ument, issued by the committee itself. It reveals a connection
with the CFL or the CFL Unity Council. The answer to
question 18 states that ‘‘Other unions are being contacted’’
through CFL President Brabec, who ‘‘is serving as spokes-
man for the unions’’ (evidently referring to all CFL unions
at the Tribune). The flyer also gives the CFL telephone num-
ber as one of the committee’s numbers.
At the time, as found, the CFL Unity Council was holding
weekly meetings (on Mondays) at the CFL ‘‘to determine
committee selections and strategy.’’ The last of these meet-
ings was held Friday, July 5, the day before this flyer was
distributed at the plant. (Tr. 4315–4316, 4323–4324 12/3/92.)
From the circumstances and the contents of the flyer, I
infer that either Brabec or the CFL Unity Council prepared
or assisted in the preparation of the leaflet on July 5.
Third, I agree with the Company’s argument in its brief
(at 46) to the extent that it asserts that this statement (‘‘No-
body goes back until everyone goes back’’) comes from a
945CHICAGO TRIBUNE CO.
‘‘common source,’’ namely, CFL President Brabec (who, as
found, was expressing his hope, not a reality, when he told
Company President Brumback that ‘‘all unions must have a
contract before any union will settle’’). I infer that the an-
swer to question 21 was also the hope of either Brabec or
the CFL Unity Council.
Regarding this flyer, Howe testified that ‘‘it was circulated
amongst employees at the [Company] and obviously we had
a copy of it’’ (Tr. 5599 7/8/92). When asked if Veon ever
stated at the bargaining table that he understood that the
three unions had an agreement that they would all return to
work together, Howe answered: ‘‘I don’t recall him saying
that specifically. Obviously before a strike it would have
been academic.’’ As found, Howe admitted that before the
Union offered to return to work, he never heard anyone say
there was an agreement among the unions to all return to
work at the same time.
Although the Union, Printers, and Mailers distributed the
flyer in preparation for the strike, I find from all the evi-
dence and circumstances that the three unions had not
reached an agreement at that time, 12 days before the July
18 strike, that they would remain on strike until all three
unions settled.
c. Miscellaneous
In arguing that ‘‘The Union would not settle until the
other unions settled,’’ the Company asserts in its brief (at
52–53) that ‘‘It is significant that representatives of the Print-
ers Union were at Executive House [next door to the build-
ing where the negotiations were taking place on the night of
July 7–8] even though they did not have any negotiations
scheduled with the Company.’’ The Company appears to
overlook the facts that Printers’ members were scheduled to
go on strike at midnight and their International vice president
was meeting with the presidents of the Company and the
Sun-Times, seeking negotiations.
The Company also argues (at 53) that ‘‘Hagstrom con-
ceded’’ that ‘‘he told the Company [on July 30] that if it had
locked itself in a room with all three unions on July 7, it
could have gotten an agreement.’’ I infer that by making this
statement, after the Company had succeeded in keeping the
presses running and had withdrawn all its off-the-record con-
cessions, Hagstrom was lamenting the lost opportunity to ne-
gotiate a more favorable agreement—instead of admitting
that the Union had agreed not to reach an agreement unless
the Printers and Mailers settled as well. Of course, the state-
ment was purely speculative; joint bargaining was infeasible
under the circumstances.
The Company argues in its brief (at 48) that ‘‘admissions’’
by DeVito and Paperhandlers President Roberts at a GCIU
general board meeting on October 8 are further evidence that
the ‘‘Unity Council’’ was ‘‘designed to coordinate strike ac-
tivity’’ and ‘‘to enable the unions to negotiate collectively
with the Company.’’
The minutes (R. Exh. 43 p. 3) show that DeVito ‘‘indi-
cated that although maximum effort had been extended by
the four-union [emphasis added] unity council established to
negotiate collectively with the publisher, no significant
progress could be reported to date.’’ This evidently refers to
obviously lawful efforts by the three-union Strike Unity
Council to join with the Paperhandlers in seeking a meeting
with President Brumback through the auspices of Theodore
Kheel, a well-known arbitrator (Tr. 4390, 4392 12/4/91).
In turn, Roberts complained about the lack of ‘‘coordina-
tion among all unions involved in the Tribune prior to the
decision by the graphic arts unions to strike’’ (referring to
the three striking unions). The minutes further read (R. Exh.
43 p. 4):
As to the resolution of the current strike, [Roberts]
noted that there was some sentiment among the various
striking unions that the graphic arts unions’ unity coun-
cil [presumably the Strike Unity Council and the
Paperhandlers] should be broken up and each union
should attempt to resolve their respective contractual
differences with the publisher independently. Noting his
strong disagreement with this strategy, he reported the
details of his local union’s contractual terms with the
Tribune prior to the strike, as opposed to what the Trib-
une was now offering. He felt that if coordination and
unity were not maintained with all involved unions,
each individual local union would face substantial dif-
ficulties in future contract settlements. [Emphasis
added.]
Having an interest-arbitration provision in its contract,
Roberts’ Paperhandlers local did not join the strike and was
not a member of the Strike Unity Council. Evidently Roberts
was attempting both to show his solidarity with the three
striking unions in what he called the ‘‘graphic arts unions’
unity council’’ and to solicit any support he could get from
the Strike Unity Council in resolving his contract problems
without his resorting to interest arbitration.
Roberts did not testify. In the absence of any showing that
he had personal knowledge of the relationship between the
Union and the Printers and Mailers, I find that his report to
the general board is not persuasive evidence that the Union
and the Printers and Mailers had entered into an agreement
that precluded their acting independently in negotiating their
own contracts.
Finally, among other clearly unfounded positions, the
Company argues in its brief (at 54–55) that the Union unlaw-
fully proposed a picket line clause that would permit em-
ployees to honor the picket line of another union, including
the Printers and Mailers, ‘‘while claiming that none of the
unions would settle until they all settled’’ (referring to
Brabec’s May 13 statement to Brumback). Having found that
the Union repeatedly gave the Company assurances that it
was acting independently and desired an agreement without
regard to whether the other unions reached settlements, I find
that the Union lawfully proposed the picket line clause.
7. Concluding findings
As in General Electric Co., 173 NLRB 253, 265 (1968),
‘‘[T]here was never any conspiracy, agreement, express or
implied, among the cooperating unions that none would sign
with [the Company] unless all [three] signed. Instead . . .
each was free at all times to sign with [the Company] on
terms it deemed acceptable.’’
The evidence is overwhelming that the Union dem-
onstrated a sincere desire during the prestrike off-the-record
discussions to compromise and avoid a strike. During the
strike, as the Union contends in its brief (at 8), it ‘‘was des-
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
perately trying to get a contract’’ and ‘‘get its members back
to work regardless of what happened to the other unions.’’
The Union repeatedly gave the Company assurances that it
was acting independently and desired an agreement without
regard to whether the Printers and Mailers reached settle-
ments.
The Union engaged in lawful coordinated activities with
the Printers and Mailers, setting the initial strike deadline,
postponing the strike, and running the strike. It, however, ex-
ercised its independent decision making in its separate nego-
tiations. At all times (including the five meetings at which
visiting officers from a total of five CFL Unity Council
unions attended as nonvoting members of the union bargain-
ing committee), the Company and Union bargained only on
their own contractual issues and never on any Printers, Mail-
ers, or other unions’ issues.
I find that the Union did not engage in unlawful coordi-
nated or coalition bargaining. I therefore reject this second
affirmative defense.
IV. THIRD DEFENSE, SURFACE BARGAINING
The Company contends in its brief (at 73) that the Union
was engaged in surface bargaining, ‘‘not sincerely negotiat-
ing to get an agreement.’’ In making this contention, the
Company is faced with the fact that the Union was eagerly
seeking an agreement, particularly because a strike could
jeopardize its members’ working-life job security.
The Company first argues (at 73–75) that the Union’s un-
lawful coordinated bargaining ‘‘is also evidence of unlawful
surface bargaining.’’ Having found that the Union did not
engage in unlawful coordinated or coalition bargaining, I re-
ject this argument.
The Company argues (at 75–76) that (a) the Union ‘‘was
adamantly opposed to the Company’s elimination of its use
of the call room,’’ preventing the Union from reaching an
agreement, (b) the Union’s concern about preserving the re-
ferral system ‘‘did not have anything to do with wages,
hours, and working conditions of bargaining unit employ-
ees,’’ (c) ‘‘a substantial question exists as to whether the call
room is a mandatory subject of bargaining,’’ and (d) ‘‘the
Union’s attempt to preserve the call room was an extra-unit
consideration and evidence of unlawful surface bargaining.’’
These arguments obviously have no merit.
A referral system has long been held to be a mandatory
subject of bargaining. NLRB v. Houston Chapter, Associated
General Contractors, 349 F.2d 349 F.2d 449, 451–452 (5th
Cir. 1965), cert. denied 382 U.S. 1026 (1966). There was no
impasse on this issue. In fact, as found, the Company and
Union were near agreement on the call-room issue during the
prestrike off-the-record discussions, contemplating a ‘‘com-
plete elimination of referrals from the call room in exchange
for a ‘sub-line of 50 journeymen from the call room’ and a
backup sub-line group of 25 or 50 call-room journeymen.’’
This was not surface bargaining.
Finally the Company argues in its brief (at 77–78) that the
Union was engaged in unlawful surface bargaining because
it ‘‘was not bargaining solely in the best interest of the bar-
gaining unit employees,’’ but also in the interest of other
union members covered by a most-favored-nation clause.
‘‘The Union knew that it could not agree to any concessions
with the Company which it had not given to the Sun-
Times.’’
This is a novel argument that, in the Company’s judgment,
it is to ‘‘the best interest of the bargaining unit employees’’
to capitulate to the Company’s demands for concessions, and
the Unions would be engaged in surface bargaining unless
they are willing to supplant their own discretion with the
Company’s judgment on the best interest of the unit employ-
ees. The Company does not advance any supporting author-
ity. I find that the argument lacks merit.
In the absence of evidence that the Company was engaged
in surface bargaining, I reject this third affirmative defense.
Permanent Replacements
In my 1989 decision, Chicago Tribune Co., 304 NLRB
259, I found that ‘‘after the middle of August . . . the Com-
pany began permanently replacing the striking pressmen, as
decided by President Charles Brumback, Bell, and Veon.’’
In its order remanding proceeding, the Board ruled (304
NLRB at 261, footnote omitted):
In the event that the judge’s resolution of issues re-
lated to the affirmative defenses does not affect his un-
fair labor practice findings, we find that the judge must
also explicate the basis for stating that replacements
hired for strikers were permanent, rather than tem-
porary, prior to November 13, 1985. . . .
Contrary to the [Company], we find that it must
prove the contested fact of permanent replacement as
part of its affirmative burden of proving substantial and
legitimate justification for failing to hire former eco-
nomic strikers upon receipt of their unconditional offer
to return to work. Furthermore, the Board has held that
a showing of an employer’s own intent to employ re-
placements permanently is insufficient. ‘‘[R]ather, the
employer must show a mutual understanding between
itself and the replacements that they are permanent’’
[citing Hansen Bros Enterprises, 279 NLRB 741
(1986), enfd. 812 F.2d 1443 (D.C. Cir. 1987)].
Vice President of Operations Bell credibly testified that
during the first month of the strike, the Company was having
problems hiring employees in the pressroom without telling
them that they were permanent replacements. ‘‘We had met
with them a number of times . . . listening to the problems
that they were having not knowing if we were going to per-
manently replace [strikers].’’ About August 19 he personally
informed Pressroom Manager Frank Malone and other divi-
sion managers that ‘‘we have made the decision to hire full
time regular employees to permanently replace the striking
employees.’’ That ‘‘eliminated that [hiring] problem.’’ (Tr.
2325–2326, 2395–2396 12/13/88).
Malone, the Company’s principal witness on the subject,
convincingly gave similar testimony. Although I have not re-
lied on any of Malone’s testimony about the negotiations or
pressroom overtime because he obviously gave fabricated
testimony on those subjects and because ‘‘By his demeanor
on the stand he appeared willing to fabricate any testimony
that might help the Company’s cause,’’ he did not appear to
be fabricating his testimony about hiring permanent replace-
ments.
Malone credibly testified that before August 19, ‘‘we had
difficulty . . . hiring people without giving them a perma-
nent replacement status. So we had people questioning
947CHICAGO TRIBUNE CO.
whether or not they would actually stay employed there’’
(Tr. 1835 12/7/88). When interviewing applicants after Bell
told him on August 19 about the permanent replacement de-
cision, he told the applicants he interviewed that if they were
hired, ‘‘they were going to be permanent replacements’’ (Tr.
1837, 1847 12/7/88).
After employees were hired, they were required to attend
orientation meetings (Tr. 1842 12/7/88). As far as Malone
knew, in these orientation meetings he personally told all
new pressmen—those hired both before and after August
19—that they were full-time regular employees, permanently
replacing striking employees (Tr. 1843–1845 12/7/88, 3177
1/16/89).
Employment specialist Kevin Dansart was interviewing up
to 20 or 30 applicants a day (Tr. 890 11/30/88). He credibly
testified that after mid-August when Veon instructed him to
inform applicants that they would be hired as permanent re-
placements, he began telling almost ‘‘everybody that I would
refer on to the next step in the interviewing process and any-
body else who asked’’ that ‘‘they would be hired as regular
full-time employees who would permanently replace the
strikers’’ (Tr. 893–894, 907–908 11/30/88).
I find that the Company has met its legal burden of prov-
ing that the employees it hired before November 13 to re-
place economic strikers were permanent replacements. Al-
though none of the strike replacements testified, I find that
the credited evidence shows a mutual understanding between
the Company and the replacements that they were permanent.
CONCLUSIONS OF LAW
1. The Company’s three affirmative defenses lack merit.
2. All the strike replacements hired before November 13,
1985, were permanent.
[Recommended Order omitted from publication.]