Citizens Publishing & Printing Co.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1622 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1622
Citizens Publishing and Printing Company and
Teamsters Local Union No. 261 a/w Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Cases 6–CA–27215, 6–CA–28147–1, 6–CA–
28147–2, 6–CA–27832, and 6–CA–27832–2
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On June 30, 1997, Administrative Law Judge C. Rich-
ard Miserendino issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.2
Contrary to our dissenting colleague, we agree with the
judge for the reasons he stated that the Respondent vio-
lated Section 8(a)(5) of the Act by unilaterally subcon-
tracting the night and weekend (n/w) work of the full-
time photographer to stringers. The record reflects that
Eugene “Bud” Dimeo was the full-time photographer at
the Ellwood City Ledger for 35 years until his retirement
in January 1995. Dimeo took photos for the newspaper
and worked in the dark room developing pictures on
weekdays. N/W photography assignments were given to
“stringers,” i.e., freelancers on whom the Respondent
could rely to cover assigned events. Stringers were paid
$5–6 a photo, with no deductions taken from their
checks. Sports editor, Mark Crepp, also took n/w photos
in his spare time to earn extra income. He, too, was paid
a flat per photo fee, but the money was included in his
regular paycheck and payroll deductions were made
based on the gross amount of his check.

1 The Respondent and the General Counsel 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.
2 On June 1, 1999, counsel for the General Counsel filed an unop-
posed motion to sever and remand Cases 6–CA–27832 and 6–CA–
27832–2, which involve the Respondent’s prosecution of libel actions
in state court. Thereafter, on June 29, 1999, the General Counsel filed
a motion, which also was not opposed, to withdraw certain exceptions,
sever the foregoing cases, and dismiss portions of the consolidated
complaint. The motions are based on the parties’ non-Board settlement
of the state court libel actions. The Board granted the motions and
dismissed the complaint allegations in Cases 6–CA–27832 and 6–CA–
27832–2 on July 14, 1999.
As a part of the non-Board settlement mentioned above, the Union
disclaimed “any and all interest” in representing the employees, effec-
tive December 28, 1998. Accordingly, although we agree with the
judge’s finding that the Respondent unilaterally subcontracted unit
work in contravention of Sec. 8(a)(5) and (1), in the absence of a re-
quest for alternate remedial action, we have modified the judge’s order
to delete the requirement that the Respondent bargain with the Union
over the subcontracting. Rochester Institute of Technology, 264 NLRB
1020, 1021 fn. 7 (1982). Cf. Wells Fargo Armored Service Corp., 290
NLRB 936 (1988).
We find merit in General Counsel’s exception that the judge should
have ordered that the backpay for the effectively discharged strikers be
awarded from the date of their discharge, March 14, 1996, rather than
from the date of the Union’s unconditional offer on their behalf to
return to work in May. See American Linen Supply Co., 297 NLRB
137 (1989), enfd. 945 F.2d 1428 (8th Cir. 1991); Granite Construction
Co., 330 NLRB 205 (1999).
In 1993, the volume of work for Dimeo to perform di-
minished. When Jim Tammaro, a stringer, quit in Au-
gust 1993, n/w work was assigned to Dimeo, and he,
along with Crepp, took most of the n/w photos.3
During negotiations for a collective-bargaining agree-
ment in 1994, the Respondent’s use of stringers was dis-
cussed but not resolved. On June 3, 1994, the Respon-
dent and the Union agreed that the Respondent would
continue the past practice during negotiations. Signifi-
cantly, a day later, the Union requested that the Respon-
dent employ a stringer to take n/w photos to enable Di-
meo to spend more time with his ailing wife, but the Re-
spondent refused.
When Dimeo retired in January 1995 the Respondent
assigned Crepp to be the full-time photographer. Crepp
also alternated as a weekend sports editor, wrote sports
stories, and did sports layout, as well as working on the
“Progress Edition,” an annual business supplement due
out in April. In March 1995 Crepp expressed concern
about completing the n/w photography work that Dimeo
previously had done. To resolve the situation, the Re-
spondent’s general manager, Scott Kegel, retained a
stringer, Jackson, to perform the n/w work. Jackson quit,
and Kegel retained two stringers to replace him. With
the hiring of two stringers, Crepp worried that he had
permanently lost the n/w work that he wanted to supple-
ment his income. He complained to the Union, and the
Union subsequently filed the unilateral subcontracting
charges at issue in this case and called a strike.
The record establishes, and the judge found, that the
Respondent made n/w work part of the regular duties of
the full-time photographer position in August 1993 when
it assigned such work to Dimeo. N/W work effectively
became bargaining unit work at that time. Therefore, we
agree with the judge that when the Respondent hired new
stringers to perform the n/w work of the full-time pho-
3 As the full-time photographer, Dimeo was not paid extra for his
n/w work. The record shows that the Respondent used four stringers to
take photos for the Ledger and its other local newspaper, the Valley
Tribune, between August 1993 and January 1995. Harry Bazzichi
occasionally took n/w photos but quit in November 1994, and Jan Mar-
shall, a fire fighter, took fire photos. Gwennie Sloan took photos from
April 1994 to March 1995, and Kitty McGraw who worked primarily
for the Valley Tribune also took some stringer photos. However, Di-
meo and Crepp did the bulk of the n/w photography work during this
period.
331 NLRB No. 176
CITIZENS PUBLISHING CO. 1623
tographer in 1995, without first consulting the Union, it
unilaterally subcontracted unit work in violation of Sec-
tion 8(a)(5).4 That the Union’s initial concern was the
reduction of extra income opportunities that Crepp had
come to expect does not diminish the fact that n/w work
that had become part of the photographer’s job was given
to stringers Jackson, Robinson, and Manzo.5 Nor does
the fact that Crepp was overextended excuse the Respon-
dent’s unilaterally subcontracting the n/w duties of the
full-time photographer. The determinative factor is not
that the Respondent had a longstanding practice of using
stringers, as our dissenting colleague concludes, or that it
may have been reasonable to assign n/w work to string-
ers because Crepp was wearing several hats; it is that the
Respondent subcontracted to stringers the n/w work of
the full-time photographer without notifying and bargain-
ing with the Union. This is particularly significant in
light of its refusal to do so in 1994 when the Union re-
quested that the Respondent hire a stringer to relieve
Dimeo of n/w work.
Further, we agree with the judge that the July 24 strike
by employees was initiated in response to the Respon-
dent’s unilateral subcontracting of the n/w work. Both
Crepp and Local Union President Douglas Campbell
testified that the employees voted to strike after being
informed that the Board’s Regional Office would issue a
complaint on the Union’s subcontracting charges. Thus,
contrary to our dissenting colleague’s view, the strike
clearly was an unfair labor practice strike from its incep-
tion. Consequently, the Respondent was not free on
March 14, 1996, to convey to the Union that striker re-
placements would become permanent, or to refuse to
immediately reinstate strikers following their uncondi-
tional offer to return to work. By doing so, the Respon-
dent violated Section 8(a)(3) and (1) of the Act. Dorsey
Trailers, Inc., 327 NLRB 835 (1999).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and directs that the
Respondent, Citizens Publishing and Printing Company,
Ellwood City and Beaver Fall, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action set
forth below.
1. Cease and desist from
(a) Unilaterally subcontracting night and weekend
photography work performed by the regular, full-time
photographer.
(b) Unlawfully discharging strikers and failing to rein-
state them.
4 Acme Die Casting, 315 NLRB 202 (1994).
5 In this connection, we agree with the judge that there is no evi-
dence that Crepp personally suffered a loss because of the subcontract-
ing of n/w work. Indeed, Crepp testified that he earned more in over-
time during this period than by taking n/w photos.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days, restore the status quo with respect
to the night and weekend photo work performed by the
regular, full-time photographer prior to April 15, 1995.
(b) Within 14 days from the date of this Order, offer
Susan Bertagna, Stacey Book, Barbara Bellisimo, Joyce
Bender, Jean Bischoff, May Ann Caputo, Anthony Car-
rozza, Mark Crepp, Charlene Donley, Harry Elder, Col-
leen Flecher, Bridget Hysell, Michelle Lamanza, Kim
McCarten, Carol McDonald, Blanche Novak, Jill Paschl,
Brian Rooney, Raney Senior, Donald Shellenberger,
Steve Shinsky, Susan Smith, George Veres, JoEllen
Whitlatch, Richard Winchell, and Janet Young full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(c) Make the employees named in paragraph 2(b),
above, whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
beginning on March 14, 1996.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Ellwood City and Beaver Falls, Pennsyl-
vania, copies of the attached notice marked “Appendix.”6
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent immediately on 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 18, 1995.
Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1624
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that, the complaint is
dismissed insofar as it alleges violations of the Act no
specifically found.

MEMBER HURTGEN, dissenting.
I disagree with my colleagues’ adoption of the judge’s
conclusion that the Respondent violated Section 8(a)(5)
by unilaterally subcontracting certain night and weekend
photography work.1 The issue for resolution is whether
the Respondent changed its past practice regarding its
use of photographic “stringers” to perform the night and
weekend photography work.2 Contrary to my colleagues,
I find that the Respondent did not violate the Act because
its use of “stringers” was consistent with its established
past practice.
As fully set forth by the judge, the Respondent em-
ployed full-time photographer Bud Dimeo for over 35
years. Dimeo performed regular daytime photography
work. Also, over the years, the Respondent had used sev-
eral stringers to cover the night and weekend photography
work, sometimes hiring three to four at a time. At some
point in 1993, daytime photography work began to decline
for Dimeo. To keep Dimeo busy and also to permit sports
editor Mark Crepp to earn extra money, the Respondent
assigned night and weekend photography work to the two
of them.3 Dimeo performed this work as an employee;
Crepp performed as a stringer—independent contractor.
During contract negotiations, the parties discussed the
Respondent’s use of stringers but failed to resolve the
matter. Dimeo retired in January 1995, and Crepp be-
came the full-time photographer. Ultimately, however,
Crepp was too busy with his other responsibilities to be
able to complete the photography work. In response to
this, the Respondent hired a stringer who quit a few days
later. The Respondent then hired two more stringers.
The Respondent informed Crepp that the two stringers
would perform most of the photography work but that
Crepp would continue to take sports photographs on
nights and weekends.
Based on the above, I cannot find that the Respondent
made an unlawful unilateral change in 1995. The judge
essentially reasoned that, in 1993, most of the night and
weekend photographic work became the work of the full-
time photographer Dimeo (i.e., bargaining unit work),
and thus the Respondent acted unlawfully in 1995 by

1 There is no contention that there is a violation with respect to day-
time work during the week.
2 As set forth by the judge, the photographic “stringers” are indi-
viduals who take photographs for the newspaper on an ad hoc basis.
They are paid a flat fee for each photo. The parties agree that the
stringers are independent contractors and that they are excluded from
the bargaining unit.
3 It appears that this occurred before the Union’s certification on De-
cember 28, 1993.
unilaterally removing this work from the bargaining unit
and giving it to stringers.
Unlike the judge, I do not find that the Respondent’s
“past practice” was such that night and weekend photog-
raphy work became the unit work of the full-time pho-
tographer. For many years, the Respondent had made
considerable use of stringers to perform night and week-
end photographic work. In 1993, to keep Dimeo from
having idle time, the Respondent assigned Dimeo some
of this work. Also, in 1993, Crepp helped Dimeo with
the night and weekend work. As the judge specifically
found, Crepp performed his photography work as a
stringer. Further, as the judge found, after 1993, other
stringers (including Harry Bazzichi, Jan Marshall,
Gwenn Sloan, and Kitty McGraw) performed occasional
stringer work. Thus, both before and after 1993, and
both before and after the advent of the Union, the Re-
spondent, when necessary to meet its photographic
needs, made considerable use of stringers for night and
weekend work. Thus, in my view, looking at the Re-
spondent’s long history of using stringers, I conclude that
it had a longstanding “past practice” of using stringers
for night and weekend photographic work as its needs
warranted. The events of 1993 did not alter the Respon-
dent’s past practice. Rather, in order to keep Dimeo busy
in 1993, it gave him some night and weekend work.
However, it did not change but rather continued its exist-
ing practice of also using stringers for this work (e.g.,
Crepp). When Crepp in 1995 was unable to perform the
necessary photographic work, the Respondent again ad-
justed, as it had in the past, by adding stringers to insure
that it met its photographic needs. Quite simply, it did
not make a unilateral change. Rather, it acted consistent
with its long-standing practice of using stringers, when
necessary, to meet its needs.
My colleagues argue that the Respondent assigned to
stringers the night-weekend work of the full-time pho-
tographer (Dimeo). Of course, that happened in January
1995 when Dimeo retired and the work was assigned to
stringer Crepp. Subsequently, when Crepp complained
that he was unable to perform all of the work, Respon-
dent retained other stringers to perform it. Crepp com-
plained to the Union, and the Union filed the instant
charges. In sum, the Union’s concern was not the as-
signment of unit work to the stringer (Crepp), but rather
Crepp’s complaint that he was losing work to other
stringers.
I also disagree with the judge’s conclusion that the Re-
spondent unlawfully discharged its striking employees.
As set forth by the judge in more detail, the employees
began a strike, which I find to be an economic strike, on
July 24, 1995.4 Subsequent efforts to reach an agreement
4 Because I have concluded that the Respondent did not commit an
unfair labor practice when it used stringers in 1995, I cannot find that
the strike, which the judge found was caused in part by the Respon-
CITIZENS PUBLISHING CO. 1625
and end the strike were unsuccessful. At a negotiating
session on March 14, 1996, the parties remained unable
to settle their differences. Although the Union had ap-
parently intended, at this meeting, to make an uncondi-
tional offer on behalf of the strikers to return to work, it
failed to do so.5 After a caucus at this meeting, the Re-
spondent handed the Union a letter, dated March 13,
which stated that, as of that date, the Respondent consid-
ered its current replacements to be permanent replace-
ments. Up until this time, the Respondent had main-
tained that all its replacements were temporary employ-
ees. The Respondent, however, did not advise its re-
placements until the next day, March 15, that they had
become permanent replacements.
Based on this, the judge concluded that the Respon-
dent, on March 14, had “falsely” stated that its replace-
ments were permanent and had thereby discharged the
striking employees. I cannot agree. I do not believe that
the Respondent’s March 14 statement was “false.” In
any event, I would not find that the Respondent’s letter
conveyed a message of discharge.
On March 14, the Respondent, at the negotiating ses-
sion, announced that it considered its replacements to be
permanent. 6 It did not say that it had completed all as-
pects of converting the replacements from temporary to
permanent. By showing its letter to union representa-
tives, the Respondent accurately advised that it had de-
cided to convert the status of its replacement employees.
It had in place a cohesive group of replacement employ-
ees who had been working for many months. Consistent
with its announced intention, the Respondent completed
the conversion in the status of its replacements 1 day
later.
This case is quite different from American Linen Sup-
ply Co., 297 NLRB 137 (1989), cited by the judge. In
American Linen, an employer, on the day a strike com-
menced, informed striking employees—about 10 minutes
before the 7 a.m. starting time for work—that they had
“until 7 a.m.” to “return to work” and if they did not they
would be “permanently replaced.” In fact, the employer
had obtained no replacements whatsoever. Relying on
cases holding that an employer who informs lawful eco-
nomic strikers that they have been permanently replaced
when in fact the employer has not “obtained such re-
placements,” the Board reasoned that the employer had
made a false statement and had effectively discharged the
strikers. Here, in marked contrast, the Respondent had
utilized a group of replacement employees for many

dent’s actions regarding the use of stringers, was an unfair labor prac-
tice strike.
5 The judge found that the Union did not make an unconditional of-
fer to return until May 15, 1996.
6 As noted by the judge, the Respondent’s March 13 letter was one
addressed from Respondent’s vice president, Ryan Kegel to Respon-
dent’s management consultant, Donald Smith. The judge found that the
Respondent had prepared the letter as part its worst-case scenario strat-
egy in case there was no progress in negotiations.
months. Thus, it had obtained replacements long before
March 14. On March 14, the Respondent accurately an-
nounced that it now “considered” its replacements per-
manent, and it finalized its position the next day. The
Respondent’s March 14 statement was not false and did
not convey a message of discharge. Rather, faced with
the failure to reach agreement with the Union, the Re-
spondent announced how it intended to proceed.
In NLRB v. Noel Foods, 82 F.3d 1113 (D.C. Cir.
1996), the court found, in similar circumstances to this
case, that an employer had not discharged its economic
strikers. There 2 hours before a strike began, an em-
ployer informed employees that it had hired permanent
replacements and that employees who went on strike
would be permanently replaced. By the time of its
statement to employees, the employer had contracted
with employment agency to supply replacement workers.
The court could not conclude that the employer’s state-
ments were “actually false” or that the statements effec-
tively discharged striking employees. The employer had
in fact arranged for the hiring of replacements and subse-
quently the replacements in fact replaced the striking
employees.
Here, the Respondent was even further along in the
process of utilizing permanent replacements then was the
employer in Noel. As noted, it had a cohesive group of
employees who had been working as replacements for
many months. There was no hiring to be done. Rather,
as noted, the Respondent needed only confirm with the
replacements that they had become permanent replace-
ments and it did this the day after it announced its inten-
tion to the Union.
Finally, even if Respondent’s statement were “false”
(premature by 1 day), it clearly did not convey the mes-
sage that the strikers were discharged.
The Respondent made no false statements and did not
discharge its striking employees. It announced its inten-
tion to convert the status of its current replacements and
it acted promptly in conformance with its announced
intention. There were no discharges. There were no vio-
lations of Section 8(a)(3).7
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
7 As I have found that the strikers were economic strikers who were
permanently replaced on March 15, 1996, I find that the Respondent
did not unlawfully refuse to reinstate the strikers upon the strikers’ May
15 unconditional offer to return to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1626
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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unilaterally subcontract night and
weekend photography work performed by the regular,
full-time photographer.
WE WILL NOT unlawfully discharge strikers and fail-
ing to reinstate them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Order,
restore the status quo with respect to the night and week-
end photography work performed by the regular, full-
time photographer prior to April 15, 1995.
WE WILL, within 14 days from the date of the Order,
offer Susan Bertagna, Stacey Book, Barbara Bellisimo,
Joyce Bender, Jean Bischoff, May Ann Caputo, Anthony
Carrozza, Mark Crepp, Charlene Donley, Harry Elder,
Colleen Flecher, Bridget Hysell, Michelle Lamanza, Kim
McCarten, Carol McDonald, Blanche Novak, Jill Paschl,
Brian Rooney, Raney Senior, Donald Shellenberger,
Steve Shinsky, Susan Smith, George Veres, JoEllen
Whitlatch, Richard Winchell, and Janet Young full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make the employees named above whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, beginning on
March 14, 1996.
CITIZENS PUBLISHING AND PRINTING
COMPANY
Donald J. Burns and Suzanne C. McGinnis, Esqs., for the Gen-
eral Counsel.
Phillip J. Clark Jr., Esq., of New Castle, Pennsylvania, for the
Respondent.
Robert A. Eberle, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Pittsburgh, Pennsylvania, on October 15–
18 and 21, 1996. The charge in Case 6–CA–27215 was filed
on April 18, 1995, and the complaint issued on October 2,
1995. The charge in Case 6–CA–27832 was filed on January
24, 1996, and the charge in Case 6–CA–27832–2, as amended,
was filed on June 6, 1996. An order consolidating cases,
consolidated complaint and notice of hearing issued for these
cases on June 13, 1996, and the consolidated complaint was
amended on June 28, 1996. The charges in Cases 6–CA–
28147–1 and 28147–2 were filed on May 8, 1996, and the latter
28147–2 were filed on May 8, 1996, and the latter was
amended on August 21, 1996. An order further consolidating
cases, second amended consolidated complaint, and notice of
hearing issued for all these cases on August 28, 1996, and the
second amended consolidated complaint was further amended
on September 24, 1996.8 The Respondent’s timely answer
essentially denied the material allegations of the second
amended consolidated complaint, as amended. The parties
were afforded a full opportunity to appear, present evidence,
examine and cross-examine witnesses, and file briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation with an office
and place of business in Ellwood City and Beaver Falls, Penn-
sylvania, is engaged in the publication, circulation, and
distribution of the Ellwood City Ledger, a daily newspaper and
the Valley Tribune, a weekly newspaper. During the 12-month
period preceding December 31, 1995, the Respondent derived
gross revenues in excess of $200,000, held membership in or
subscribed to various interstate news services, and advertised
various nationally sold products. Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The primary issues are: (1) whether the Respondent unlaw-
fully subcontracted bargaining unit work (i.e., night and week-
end photography work) performed by the regular, full-time
photographer to “stringers”9 in violation of Section 8(a)(5) of
the Act; (2) whether the strike which commenced on July 24,
1995, was an unfair labor practice strike and, if not, whether it
was subsequently converted by the Respondent’s conduct to an
unfair labor practice strike; (3) whether the Respondent unlaw-
fully filed and maintained a libel lawsuit in state court against
various striking employees, a former employee, the Union and
its president, the Union’s strategic campaign group known as
“United for Survival,” two nonemployees, and a strike newspa-
per known as the Ellwood City Press in violation of Section
8(a)(1) of the Act; (4) whether the Respondent unlawfully filed
and maintained a libel lawsuit in state court against former
employee, L. David Brown, involving the Lincoln Publishing
Company, Inc., in violation of Section 8(a)(1) of the Act; (5)
whether the Respondent unlawfully continued the aforesaid
state court lawsuits after the instant complaint issued in viola-
tion of Section 8(a)(1) of the Act; (6) whether the Respondent
unlawfully refused to reinstate striking employees George
Veres and Richard Winchell on February 17, 1996, in violation

8 Par. 23 of the second amended consolidated complaint was further
amended at the hearing to insert the following language at the end of
the paragraph: “thereby constituting an unlawful termination of the
employees” named below in par. 25. Par. 25 was also amended to add
the names “Susan Bertagna” and “Donald Shellenberger.”
9 Stringers are individuals who contribute stories and/or who take
photographs for the newspapers on an ad hoc basis. They are paid by-
the-line for articles or a flat fee for each photo.
CITIZENS PUBLISHING CO. 1627
of Section 8(a)(1) and (3) of the Act; whether the Union made
an unconditional offer to return to work on March 14, 1996,
and whether the Respondent thereafter unlawfully failed to
reinstate the striking employees in violation of Section 8(a)(1)
and (3) of the Act; (7) whether the Respondent falsely advised
the Union on March 14, 1996, that the strikers had been perma-
nently replaced, thereby unlawfully terminating the striking
employees in violation of Section 8(a)(3) and (1) of the Act;
and (8) whether the Respondent unlawfully failed to provide
the Union with certain requested information on March 14,
1996, and on various dates thereafter, in violation of Section
8(a)(1) and (5) of the Act.
B. Facts
The Respondent is a family owned newspaper corporation,
operated by two brothers, W. Ryan Kegel and Scott R. Kegel,
who together own the majority of the corporation’s stock.10 W.
Ryan Kegel (RKegel) is the vice president and publisher with
overall responsibility for the newspaper. Scott R. Kegel (SKe-
gel) is the general manager, who together with RKegel is re-
sponsible for all day-to-day operations.
1. Subcontracting and the collective-bargaining negotiations
On December 28, 1993, Teamsters Local No. 261 (Local 261
or Union) was certified as the exclusive collective-bargaining
representative for the following unit of Respondent’s employ-
ees:

All full-time and regular part-time employees, including Edi-
tor, Valley Tribune; Classified Supervisor and Sports Editor
employed by the Employer at its Ellwood City and Beaver
Falls, Pennsylvania, facilities; excluding all office clerical
employees and guards, professional employees and supervi-
sors as defined in the Act.11

Shortly after the Union was certified, negotiations com-
menced for an initial collective-bargaining agreement.12 Sub-
contracting was among the issues discussed. The Union ini-
tially opposed any subcontracting whatsoever. The Respondent
sought to adhere to past practice. At the bargaining table SKe-
gel explained that the Respondent historically had published
articles from various news services, including the Associated
Press, as well as from various nationally syndicated columnists,
and had used college interns to write stories. He also explained
that stringers had been used to write stories and to take night
and weekend (nwe) photographs.13

10 Ryan and Scott Kegel each own one-third of the corporation’s
stock. Their father, William Kegel, who is president of the corporation,
owns the remaining one-third of the stock.
11 Also excluded from the unit, and of particular relevance here,
were “stringers.” The parties agreed that these individuals were inde-
pendent contractors, who are not covered by the Act.
12 SKegel, along with Donald Smith, a management consultant, rep-
resented the Respondent at the bargaining table. The Union was repre-
sented by Local 261 President Douglas Campbell and International
Brotherhood of Teamsters (IBT) International Representative Rudy
Cummings.
13 Campbell testified that SKegel did not mention the use of photog-
rapher stringers when he described the extent of subcontracting in
negotiations. I credit SKegel’s version of what was discussed during
the negotiations, which is supported by credible evidence, including the
Respondent’s bargaining notes. In addition, the evidence shows that
during the negotiations the Union on more than one occasion sought to
persuade the Respondent to hire a photographic stringer in order to
relieve Bud Dimeo, a full-time photographer, of his nwe photo duties.
a. The use of photographic stringers
Bud Dimeo had been the full-time photographer for the Ell-
wood City Ledger (Ledger) for over 35 years. He worked days
taking photos and doing dark room. The nwe photos were taken
by stringers, who were paid a flat fee of approximately $5–6
per picture. The Respondent had used several photographic
stringers over the years to cover the night and weekend photo-
graphic work, sometimes hiring three to four at a time. For
example, in July 1993, the nwe photos were taken by Jim
Tammaro (who had his own photography business), Lori Lu-
carelli, Harry Bazzichi (who also wrote stories as a stringer),
and Mark Crepp, who was also employed as the sports editor of
the Ledger, a regular full-time job.14
At some point the daytime photography work began to de-
cline leaving Bud Dimeo with less to do during the day. When
stringer Jim Tammaro stopped taking nwe photographs for the
Respondent in August 1993, some of the nwe work was as-
signed to Dimeo, thereby becoming a part of his regular full-
time duties. From August 1993, up until the day he retired in
January 1995,15 Dimeo, along with Crepp, took the bulk of the
nwe photos.16 However, unlike Crepp, Dimeo received no
extra compensation for taking nwe photos.
b. The tentative agreement and failed ratification
In the interim, and more specifically on June 3, 1994, the
parties tentatively agreed during negotiations that “subcontract-
ing shall continue in accord with past practice.” The next day,
June 4, the Union came to the bargaining table seeking to adjust
Bud Dimeo’s working hours. Campbell suggested that the Re-
spondent hire a stringer or a part-time employee to take the nwe
photos assigned to Dimeo, which the Respondent summarily
rejected. Smith, speaking for the Respondent, explained that
the Respondent could no longer afford to carry Dimeo, who
spent many hours counting paper clips before the nwe photos
were assigned to him. While the Respondent was open to ideas
that would not cost more money, it was not inclined to give
Dimeo 40 hours’ pay to work parttime. Although a followup
session between employee Mary Caputo, Dimeo, and SKegel
was held to discuss the issue, nothing was resolved.
In late November 1994, the parties reached a tentative
agreement on all issues and Campbell and Cummings agreed to
hold a union member meeting on December 5 to ratify the
agreement. Two days before the meeting, the Union requested
some additional concessions, which the Respondent agreed to,

This lends credence to SKegel’s assertions that the use of photographic
stringers was discussed at the bargaining table.
14 In addition to his regular weekly pay, Crepp earned extra money
taking nwe photos for a flat fee per picture. The money earned by
Crepp for nwe photo work was added to his regular biweekly pay and
taxes were withheld from the total amount earned.
15 Dimeo and Crepp worked out an arrangement where Crepp took
nwe photos on Monday, Wednesday, and Friday and Dimeo took them
on Tuesday and Thursday. They also agreed to alternate taking photo-
graphs every other biweekly pay and taxes were withheld from the total
amount earned.
16 Occasionally, some nwe photos were taken by stringers Harry
Bazzichi and Jan Marshall (a firefighter who submitted photos of fires),
as well as Gwenn Sloan and Kitty McGraw, two stringers who wrote
stories and occasionally took photos for the Valley Tribune and the
Ledger. Bazzachi stopped taking nwe photos altogether in November
1994, and from then until April 1995, there is no evidence that any
photographic stringers, other than Crepp, took nwe photos again until
stringer Thom Jackson was hired in April 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1628
on the condition that Campbell and Cummings stand before the
union membership and recommend ratification of the agree-
ment. The December 5 meeting was postponed. When a ratifi-
cation vote eventually was taken the tentative agreement was
rejected: neither union official had stood before the member-
ship to recommend ratification.
2. Bud Dimeo’s retirement and Mark Crepp’s new duties
In January 1995, photographer Bud Dimeo retired on short
notice. Mark Crepp, the sports editor, became the temporary
full-time photographer and Randy Senior, a sports writer, be-
came the temporary sports editor. In addition to his new pho-
tography duties, Crepp alternated Saturday mornings with
Randy Senior as sports editor. Crepp wrote sports stories, laid
out the sports page, and selected sports photos and wire stories.
He also was responsible for working on the “Progress Edition,”
a supplemental business publication that was issued by the
Ledger every year in April.17
In March 1995, Crepp spoke to Veronica Pacella, editor of
the Ledger, about the amount of work that was required to pub-
lish the “Progress Edition” by April. He was particularly con-
cerned about getting the photography work finished on time.
Crepp was already working 5 nights a week taking evening
photos as a result of Dimeo’s departure, as well as alternating
Saturdays as sports editor.18 This meant that the weekend
photo work that Dimeo would have taken was not getting
done.19
3. The hiring of photographic stringers and unfair
labor practice charge
In mid-March, SKegel spoke to Crepp about the nwe photo
work, which was not getting done. He told Crepp that he was
going to hire a photographic stringer to help out, which he did.
Thom Jackson was hired to take nwe photos, but quit after a
few days.20 A short time later, SKegel informed Crepp that he
had hired two more photographic stringers: Heather Manzo and
Christopher Robinson. Crepp was told that most of the nwe
work would be done by the stringers, but that he had the option
to take some sports nwe photographs. After that Crepp took a
limited number of nwe photos. He usually covered for the
stringers when someone could not make an assignment or when
the two stringers could not work something out between them-
selves.
Crepp nevertheless became concerned that the opportunity to
earn additional money in the future would not be available to
him, particularly when a full-time photographer was hired and
he returned to being the sports editor.21 He therefore went to
17 Crepp was paid an hourly rate for taking daytime photos and doing
darkroom work, as well as overtime pay for alternating as sports editor
on Saturdays. Although he became the temporary full-time photogra-
pher, he continued to receive a flat fee per picture for nwe photos.
18 Crepp, a divorcee, testified that he usually had his children every
other weekend, which precluded him from taking photos on opposite
weekends. At times he had to take his children with him to take photos
on the weekend.
19 At least one local high school had complained to RKegel about the
lack of media coverage at its sports events and specifically about how
Crepp failed to address the problem.
20 In his testimony, Crepp stated that photographic stringers on the
whole were not reliable.
21 Crepp testified that he was not concerned when Thom Jackson
was hired as a photo stringer. He became dismayed, however, when
two stringers were hired to replace Jackson, even though he admitted
that he did not have a lot of time to take nwe photos.
the United for Survival22 office to talk with Local Union Presi-
dent Campbell. Crepp told Campbell that SKegel had taken the
nwe photo work away from him and that he had hired two
photo stringers to do it.
At the next negotiating session on April 11 the Union as-
serted that the Respondent had unilaterally removed photogra-
phy work from the bargaining unit when it took away the nwe
photo work from Crepp. The Union demanded that the Re-
spondent rescind its action. The Respondent asserted that it
made the change at Crepp’s request, relying principally on the
concerns that Crepp had shared with Pacella in mid-March.
When Campbell spoke to Crepp on the following day to ascer-
tain whether, in fact, he had made such a request, Crepp denied
doing so. On April 18, the Union filed an unfair labor practice
(ULP) charge alleging that the Respondent had unilaterally
changed terms and conditions of employment without bargain-
ing in good faith.
Crepp continued working as the temporary full-time photog-
rapher. In the morning he would work in the darkroom. In the
afternoon he would take photos. On opposite weekends, Crepp
substituted for Senior as sports editor. During this time he also
worked as a reporter covering school board meetings and a
school board election for which he was paid on an overtime
basis. Around the same time, Heather Manzo and Chris Robin-
son began taking nwe photos.
On May 1, Veronica Pacella, editor of the Ledger, resigned
from her position,23 but agreed to stay on until on May 31. On
June 1, Mark Crepp became the acting editor of the Ledger.
For several weeks, he worked at the editor’s desk from 6
a.m.—1 p.m., took photographs in the afternoon, and occasion-
ally worked evenings in the darkroom for which he received
overtime pay. His availability to take nwe photos was almost
nonexistent.
In mid-June, photo stringer Robinson quit. SKegel told
Crepp that he should decide who would take the nwe photos.
Crepp assigned the majority of those photos to stringer Heather
Manzo. He also took some nwe photos at the Ellwood City
Arts, Crafts, and Food Festival for which he received overtime
pay.
4. The strike
On Thursday, July 20, 1995, the Board’s Regional Office
faxed a letter to Smith informing him that unless the pending
ULP charge was settled, a complaint would be issued. The
Respondent was given until Tuesday, July 25, to respond. The
following day, Friday, July 21, a second letter was faxed to
Smith in South Dakota where he was working. A copy was
22 In early February, the Union initiated a strategic campaign called
“United for Survival” which was designed to put pressure on the Re-
spondent to negotiate in good faith. It was a group comprised of Local
261 officials, bargaining unit members, other labor organization mem-
bers (i.e., SEIU, AFSCME), community supporters and a local ministry
society. It had an office in Ellwood City, where weekly meetings were
held.
23 Pacella prepared a letter of resignation claiming that she felt com-
pelled to quit because RKegel allegedly had asked her to lie to the
Board in connection with the unfair labor practice charge: an allegation
that RKegel flatly denied. However, she did not give the letter to RKe-
gel because she did not know what legal ramifications may result.
Instead, she wrote another resignation letter citing as her reason the
increasing pressures of the work environment and the criticism of her
work on the “Progress Edition.” She also consulted an attorney con-
cerning her allegations that RKegel had asked her to lie.
CITIZENS PUBLISHING CO. 1629
also faxed to Local 261 President Campbell. On Saturday, July
22, Campbell called a meeting of the Union’s bargaining com-
mittee to discuss the recent developments concerning the ULP
charge. He showed them a letter drafted by the Union’s attor-
ney for Campbell, which inaccurately alleged that the Respon-
dent had told Crepp “that he would no longer be a photographer
and that [it had] subcontracted out the bargaining unit work of
photography.” The letter also stated that at the April 11 nego-
tiation session the Union demanded that the Respondent rescind
its action and bargain over the issue, which the Respondent
refused to do. The bargaining committee decided to apprise the
bargaining unit members about what had transpired. On Sun-
day, July 23, a meeting was held to update the bargaining unit
members. After reviewing the letter, and acting under the as-
sumption that a complaint was about to be issued, the member-
ship voted to strike.
At 8 a.m., the next day, Monday, July 24, the Union went on
strike without notice. As the bargaining unit members arrived
for work, they were advised by Campbell and other union offi-
cials that the strike had begun. When picketing commenced at
the Ledger, the Respondent sought and received injunctive
relief in state court enjoining the Union and its members from
among other things blocking the ingress and egress of the Re-
spondent’s facility. In the meantime, the Respondent continued
to publish its newspapers with family, supervisors, and a few
bargaining unit employees, who did not engage in the strike. It
eventually hired temporary replacements and reinstated two
bargaining unit employees who returned to work during the
first several weeks of the strike.
In mid-August, the Union encouraged the striking employees
to start a strike newspaper, which they did, called the Ellwood
City Press (the Press), a weekly publication. The Press was
incorporated under Pennsylvania law as a nonprofit corporation
by two striking employees: Mary Caputo and Carol Mac-
Donald. It was funded primarily by Local 261 and was staffed
by volunteer striking employees and two nonemployees (Mary
Ann Gavrile and Charles Moser). Major publishing decisions
were made by the editor, Mary Caputo, subject to approval by
the Union’s executive board. The Press had a checking account
which required the dual signatures of Caputo and MacDonald
with prior approval of Local 261 President Campbell.
5. The state court libel lawsuits
In late November 1995, a former employee of the Ledger, L.
David Brown,24 who resides in Florida, wrote a letter to the
editor of another local newspaper, the South County News (SC
News), in which he sympathized with the striking employees.
Brown wrote about working for the Ledger when it was run by
William Kegel, the father of Ryan and Scott. He described the
elder Kegel as a benevolent employer who stood by his word.
In contrast, Brown stated, “[W]hen the sons took over, their
word was not enough. They would promise you many things
but would not stand behind their word.” Brown concluded the
letter by praising the strikers for “finally standing up and fight-
ing for their rights.” The letter was published by the SC
News.25

24 Brown worked for more than 20 years for the Respondent. His
employment ended sometime in 1987 under less than amicable circum-
stances.
25 When RKegel learned of the publication, he phoned the publisher
of the SC News to request a retraction, which he did not receive.
Caputo heard about the article from an acquaintance who
worked at the SC News. She obtained a copy and showed it to
the other strikers, who were appreciative of Brown’s support.
They sent him a thank you note and an Ellwood City Press T-
shirt. A few days before Christmas Brown called Caputo to
thank her for the T-shirt and at that time Caputo obtained
Brown’s permission to reprint the letter in the Press. Brown’s
letter appeared in the December 30, 1995 edition of the Press.
On January 18, 1996, Ryan and Scott Kegel filed a libel law-
suit in state court naming as defendants, the Press, the local
union, Campbell as president of the local union, United for
Survival, Mary Caputo, as editor of the Press, L. David Brown,
20 striking employees alleged to be part of the “publishing
group” of the Press, and two nonemployee volunteers.26 The
lawsuit alleged that the statements in Brown’s letter were false
as they reflect on the plaintiffs’ character and reputation and
that the defendants knew or should have known that the state-
ments were false, but nevertheless published them intentionally
and maliciously or with reckless disregard for the truth or fal-
sity. The lawsuit sought damages in excess of $20,000 plus
costs.27
On January 24, 1996, in response to the filing of the mali-
cious libel lawsuit, the Union filed an unfair labor practice
charge against the Respondent on which the General Counsel
subsequently issued a complaint alleging that the Respondent’s
decision to bring and maintain the libel lawsuit violated the
Act.28 Subsequently in the state court, the Union filed a second
set of preliminary objections in the Press libel lawsuit, and
joined with Lincoln Publishing, Inc. in a motion to stay the
proceedings in both lawsuits. In that motion, it was alleged that
the state court action was preempted by Federal labor law and
that the NLRB should be permitted to hear and decide whether
the alleged libelous statements were protected expressions of
opinion in the course of a labor dispute. The objections and
joint motion were denied by the state court, which retained
subject matter jurisdiction.29
6. Veres’ and Winchell’s attempt to return to work
George Veres and Richard Winchell were two long-term
employees, who were less than fully committed to the strike
from its beginning. After being on strike for more than 6
months with no resolution in sight, they decided in early Febru-
ary 1996 to talk to the Kegels about returning to work. On
26 In addition to Mary Ann Caputo, the lawsuit named striking em-
ployees, Barb Bellisimo, Joyce Bender, Stacy Book, Mark Crepp, Col-
leen Flecher, Bridget Hysell, Michelle Lamenza, Carol McDonald, Kim
McCarten, Blanche Novak, Jill Paschl, Brian Rooney, Randy Senior,
George Veres, Joellen Whitlatch, Richard Winchell, Janet Young,
Charlene Donley, Susan Smith, and nonemployee volunteers Mary Ann
Gavrile and Charles Moser.
27 On February 6, 1996, a similar lawsuit was filed in state court by
the Kegels and the Respondent against the parent corporation of the
South County News (Lincoln Publishing, Inc.), its holding company,
the newspaper’s publisher, managing editor, and bureau chief, as well
as L. David Brown.
28 Because the libel lawsuit was brought by the Kegels, as individu-
als, against the Union and others, the General Counsel also alleged that
the Kegels, as majority stock owners and corporate officials, were alter
egos of the Respondent.
29 By order, dated April 16, 1997, the United States District Court
for the Western District of Pennsylvania enjoined further prosecution of
the state court libel lawsuit against the Ellwood City Press, the Union
and the other defendants. Gerald Kobell v. Citizens Publishing &
Printing Co., Civil No. 97-0632 (W.D.Pa., April 16, 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1630
February 17, Veres phoned RKegel and said “I’d like to see if I
could come back to work” and could he and Winchell talk to
him. A meeting was set up for later that morning at the Ledger.
In the meantime, RKegel was apprehensive about talking with
the two striking employees so he called Smith to get his advice
on what to do. Smith told him to be guarded and to ask if their
union representative knew about the meeting.
The meeting was attended by Ryan and Scott Kegel, their
secretary Barbara Welsh, Veres and Winchell. RKegel started
by asking Veres and Winchell if Campbell, the Union’s presi-
dent, knew that they were meeting with the Kegels. Veres re-
sponded, “No,” and added that they were through with the Un-
ion. He asked if their jobs were still available. Winchell ex-
plained that there had been some vandalism to his car. He also
said that a few other people might want to come back, includ-
ing Steve Shinsky, a printer, who could not make the meeting.30
Winchell explained that some of the strikers were concerned,
however, that Don Viccari, a supervisor, would make life diffi-
cult for them if they came back. Winchell said that he was
currently working and that he would have to give 2 weeks no-
tice. Veres asked about the libel lawsuit, but the Kegels did not
respond. The meeting, which lasted about 15 minutes, ended
with RKegel telling the two that he would get back to them
after he spoke to his representative.
RKegel called Smith to apprise him of what had occurred.
He told Smith that Veres and Winchell said that they repre-
sented other strikers who were interested in returning to work,
but were afraid of Don Viccari. Smith was concerned about
talking to strikers who claimed to represent other employees.
He was afraid that the Union would file another unfair labor
practice against the Respondent alleging that it was bargaining
with someone other than the exclusive bargaining representa-
tive. He told RKegel not to call either Veres or Winchell and
dictated a response to be read to them should either or both call
again. The statement read as follows: ”A determination will be
made on an individual basis when an unconditional offer to
return to work is made.”
A few days later, Veres called RKegel at home. RKegel read
the response prepared by Smith. Veres asked him several times
to repeat the statement so he could write it down to tell
Winchell. When Veres asked RKegel to explain what the re-
sponse meant, he declined, saying that he could not say any-
thing more. When Veres hung up, he phoned Winchell and
read to him what RKegel had said. Neither one could figure
out what it meant, so Veres had his wife call the NLRB seeking
an explanation, which was not provided.
A short time later, at a United for Survival meeting, Camp-
bell mentioned that he had heard that someone had talked to the
Kegels about returning to work. Veres revealed that he and
Winchell had been to see the Kegels. This caused many of the
strikers to become upset, but for different reasons. Those fully
committed to the strike were angry because they viewed the
meeting with the Kegels as an act of disloyalty. Others were
dismayed because if the Kegels had not given two longtime
employees like Veres and Winchell back their jobs, it did not
bode well for everyone else.

30 Shinsky apparently had called SKegel himself before this meeting
to express an interest in returning to work.
7. The exchange of correspondence and the Respondent’s
March 5 letter
In between the libel lawsuits and the meeting between Veres,
Winchell, and the Kegels, an exchange of correspondence took
place between the Respondent and the Union. It began with the
Union’s request, dated January 5, 1996, to resume bargaining31
and for information concerning the temporary replacements.
On January 16, the Respondent answered nine questions pre-
sented by the Union concerning the temporary replacements
and provided a list with their names, addresses, wage rates, and
full-time or part-time status. The Respondent’s letter stated
that the replacements were temporary and that none of the bar-
gaining unit positions had been eliminated or reduced since the
date of the strike.
On receiving the Respondent’s letter, the Union requested
additional information about the bargaining unit employees
who had continued working or had returned to work after the
strike. It also sought information about benefits received by the
temporary replacements and repeated a request for the applica-
tions of those hired since the strike began. Although Smith
promptly provided most of the information, he declined to pro-
vide the employment applications asserting that he had “confi-
dentiality” concerns. On February 22 the Union again asked the
Respondent to identify whether any bargaining unit positions
had been eliminated or reduced. Because the Respondent’s
earlier response seemed to suggest that it was utilizing a
smaller workforce, the Union wanted to ascertain which jobs
were available “in the event that our members make an uncon-
ditional offer to return to work.”
By letter, dated March 5, 1996, Smith responded, in relevant
part, as follows:

If, as you suggest in your correspondence, you and
your members (our striking employees) should make an
unconditional offer to return to work:
*No bargaining unit positions have been eliminated or
reduced.
*The facility in Beaver Falls is still being rented by
this Employer, equipment is in use, the Valley Tribune is
still being produced and distributed, no jobs have at this
time been reduced or eliminated, although some may not
be filled at the present time. As the Client sees it today, all
jobs would be available.

The letter ended by saying “None of the temporary replace-
ments are considered to be permanent replacements.”
8. The March 14, 1996 negotiation session
A bargaining session was scheduled for March 14, 1996.
Two days before, Smith met with the Kegels to discuss the
current situation and their bargaining strategy. In the meeting,
RKegel asked Smith what he thought about permanently re-
placing the strikers. When Smith expressed reservations, RKe-
gel replied, “Well, I’m ready to do it right now.” To his think-
ing, the Respondent was into the 8th month of the strike and
things had turned around for the Ledger. The temporary re-
placements were cooperative and doing a good job. It was
basically a new work environment. If he could not get a con-
tract with the Union soon, RKegel was ready to act. The next
day, March 13, the Kegels and Smith drafted a letter from
31 The last bargaining session was held on August 9, 1995, at which
time the Union withdrew all of its tentatively agreed-on proposals.
CITIZENS PUBLISHING CO. 1631
RKegel to Smith32 stating that RKegel now considered the tem-
porary replacements “to be regular permanent replacement
employees.” On March 14, RKegel printed a copy of the per-
manent replacement letter and took it with him to a prearranged
location where he was to meet with SKegel and Smith during a
negotiation caucus.
In preparation for the March 14 session, the Union brought
in Thomas J. McGrath, the IBT’s director of the Newspaper,
Magazine, and Media Workers Division. He had assigned
Rudy Cummings to assist Campbell in negotiations and had
monitored the strike situation on an irregular basis. There came
a time, however, when McGrath realized that the strike was not
going anywhere. He prevailed on Campbell to get the negotia-
tions back on track and decided to become personally involved
himself. That required McGrath to spend some time with the
bargaining committee to come up to speed on the issues. In the
course of doing so, the committee told him that if the Employer
was willing to give the striking employees the same wage rate
that the replacements were receiving, that would provide the
basis for consummating a collective-bargaining agreement.
McGrath, however, had one other concern. After reviewing
the correspondence between Campbell and Smith, and in par-
ticular Smith’s March 5 letter, he could not accept Smith’s
representation that all jobs would be available if an uncondi-
tional offer to return to work was made. He therefore asked the
bargaining committee to prepare a list of jobs, and the employ-
ees who had performed those jobs, so he could compare it
against a list of jobs presently being performed by the replace-
ments. With this information, McGrath went to the negotiation
session.
Accompanying McGrath to the March 14 negotiation session
were bargaining committee members Mary Caputo and Barb
Bellissimo, Local Union President Campbell, and another IBT
representative named Joe Molinaro, who worked parttime in
McGrath’s division. Seated on the other side of the table were
Smith, Skegel, and Barbara Welsh, who took notes. A Federal
Mediator named John Pinto also was present. There was no
advance notice that McGrath would be substituting for Rudy
Cummings at the bargaining table. Smith was surprised to see
a new face at this stage of the negotiations and formal introduc-
tions were slow in the making. Once that was behind them,
Smith began by stating, “I understand that the Union plans to
make an unconditional offer to return to work today.” McGrath
responded yes, that the offer would be for everyone, but he first
needed some additional information. He had heard that the
replacements were receiving a wage rate that was higher than
what strikers had received, so he asked if the strikers would
receive the higher wage rate when they returned.33 He was told
they would not. Smith said that the strikers would receive the
wage rate that they were getting when they struck. McGrath

32 The record does not disclose why the letter was addressed to
Smith, rather than the Union. Nor did anyone explain precisely why
RKegel wrote the letter on March 13. The evidence supports a reason-
able inference, however, that this was part of the Respondent’s worst
case scenario strategy in the event that progress was not being made in
negotiations. The evidence reflects that the Kegels were concerned
about taking back the strikers without a collective-bargaining agree-
ment, because they feared that the strikers could go out on strike again
without notice.
33 The General Counsel has not alleged that the higher wage purport-
edly paid to the temporary replacements violated the Act nor did he
present any argument or evidence with respect to this issue.
then began asking questions about the March 5 letter seeking to
ascertain the positions to which the striking employees could
return. When he asked about the status of the Valley Tribune
and the status of Caputo’s position, Smith told him that all jobs
would be available. McGrath remained unconvinced and Smith
tried to reassure him that the Respondent was committed to
what was stated in the March 5 letter.
McGrath, however, was still skeptical. He had a list of em-
ployees who went out on strike (part of his bargaining notes, as
he put it), which he wanted to “marry” with a list of replace-
ments and the jobs they were performing. McGrath sought to
cross-check his list against the jobs which were being per-
formed by the replacements to make sure that everyone return-
ing came back to a job and optimally the same job that they
performed before the strike began. Unfortunately there were 47
names on McGrath’s list of strikers, which far exceeded the
number of employees that went out on strike. When McGrath
began to read off a few names, Smith cut him off because some
of the people on McGrath’s list had resigned. Smith exclaimed,
“Who are you talking about?” McGrath responded, “I’m mak-
ing an unconditional offer on behalf of everybody who went on
strike in July. That’s who I’m talking about.”34 When Smith
asked to look at his list, McGrath refused to show it to him.
The negotiations then took a turn for the worse. McGrath de-
manded to see the personnel files of all the replacement to as-
certain who was a temporary replacements and who was not.
Smith stated that all the replacements were temporary and that
he would not provide the files. McGrath backed off saying that
he needed a list identifying the replacements and the jobs that
they performed. A caucus was requested by Smith to consider
the request.
Smith, SKegel, and Barb Welsh drove to a nearby restaurant
where they had prearranged to meet with RKegel. The two
negotiators basically reported that the negotiations were going
nowhere. A fourth chief spokesman (i.e., McGrath) had unex-
pectedly showed up and the Union had not placed anything on
the table. Smith and SKegel felt that the Union was playing
games. RKegel agreed. He had the March 13 letter in his
pocket. Because no progress was being made at the bargaining
table, he gave it to Smith with instructions to give the letter to
the Union.
Two hours passed before Smith and SKegel returned to the
bargaining table. Smith entered the room, sat down, and told
McGrath that the Respondent had always thought that the strike
was an economic strike. He then handed him the letter signed by
RKegel. McGrath continued talking as he read the letter. He
asked again for the information that he had requested before the
caucus. A shouting match between McGrath and Smith followed
which ended with McGrath demanding that the Respondent pro-
34 In contrast, on cross-examination, McGrath equivocated about
whether he actually made an unconditional offer. When asked why on
March 14, he simply did not come out and say “We accept the fact that all
jobs are available and hereby make an unconditional offer to return to
work,” he responded by saying: “If my mother had raised a very dumb
child, it [sic] could have said that . . . I simply couldn’t possibly accept
that as being true.” In an earlier affidavit taken by the General Counsel,
McGrath also stated that he “intended” to make an unconditional offer to
return to work.” He testified at the hearing that he had not done so (i.e.,
that he had not made an unconditional offer) at that point in the negotia-
tions (TR. 777) because “my plan was to get replies to this arrangement
when he [Smith] came back from lunch and then to give him a formal
written return to work request.” (TR. 781.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1632
duce the personnel files for the replacements. McGrath also
wanted to continue bargaining the next day, but Smith stated that
he was unavailable to meet and that he would get back to them
with available dates.
On March 20, Smith provided McGrath a list, which identi-
fied replacements and striking employees and attempted to
identify job functions formally performed by the strikers that
were currently being performed by the replacements. Campbell
was not satisfied with the list, which he thought was confusing
and unresponsive. Over the next several weeks, he continued
to press for the information requested at that session, as well as
for some dates and times to resume negotiations.
The next bargaining session, which lasted only 5 minutes,
was held on May 13, 1996. It quickly erupted into a heated
argument with name calling. Two days later, on May 15,
Campbell sent Smith a letter seeking to establish future
bargaining dates. In that letter, Campbell stated that he wanted
to “reconfirm” that “each of the employees represented by
Local 261 is making an unconditional offer to return to work, at
all times since March 14, 1996.”35 In a reply letter, dated May
21, Smith asserted that Campbell’s May 15 letter was the first
time the Union made an unconditional offer to return to work.
Although subsequent negotiation sessions were held, they were
not productive and a collective-bargaining agreement was never
consummated.
C. Analysis and Findings
1. The subcontracting of bargaining unit work
Paragraph 31 of the second amended consolidated complaint,
as amended, alleges:

Since about April 4, 1995, and on various dates thereafter dur-
ing the months of April through July 1995, Respondent re-
moved photography work from the bargaining unit employees
and subcontracted such work to “stringers” and reduced or
eliminated bargaining unit positions and related work and/or
changed and eliminated work duties of certain of its bargain-
ing unit employees which conduct resulted in material and
substantial alteration to the unit employees’ terms and condi-
tions of employment.

The General Counsel asserts that when SKegel hired photo-
graphic stringers Heather Manzo and Christopher and told
Mark Crepp that these individuals were to take the majority of
nwe photos, it unilaterally implemented a change in the terms
and conditions of employment, which violated the Act. The
Respondent asserts that it was a longstanding practice to use
stringers to take nwe photos and that the hiring of two photo-
graphic stringers in April 1995, was not a change, but repre-
sented the status quo. A review of who performed what duties
and when is key to determining whether a past practice existed
and whether the Respondent’s conduct violated the Act.
a. Bargaining unit work
As of August 1993 nwe photo work became an integral part
of the regular full-time photographer’s job. The evidence es-

r.

35 Campbell’s May 15 letter is inconsistent with a letter he sent to
Smith on March 26, which characterized, in part, what transpired at the
March 14 negotiating session. Notably the earlier letter stated that the
Union had asked for certain information “in order to properly advise
the employees who were prepared to make unconditional offers to
return to work.” It did not state that an unconditional offer had been
made.
tablishes that without that work, there would not have been
enough work to sustain a full-time photographer position.36
The bulk of the nwe photo work was taken by Dimeo and
Crepp (as a stringer)37 from that time forward to keep Dimeo
busy as the full-time photographer and because Crepp asked for
as much extra work as possible because he needed the money.
This was the situation which existed when the Union was certi-
fied in December 1993 and thereafter. I therefore find that at
the time the Union was certified as the exclusive bargaining
representative and thereafter, taking nwe photos was an essen-
tial part of the bargaining unit work performed by the full-time
photographer.
b. The past practice
The evidence also discloses that the Respondent had used
“stringers” to take nwe photos both before and after the Union
was certified. Crepp testified that for as long he was employed
by the Ledger there were numerous stringers, including him-
self, taking nwe photos as independent contractors paid on a per
picture basis. He worked on and off as a stringer in 1983, re-
sumed taking nwe photos intermittently in late 1992, and then
did so on a regular basis starting in 1993. Gwenn Sloan and
Kitty McGraw wrote stories and occasionally took nwe photos
as stringers for the Valley Tribune and Ledger at least during
1993. Harry Bazzichi occasionally took nwe photos up until
November 1994.
There is no evidence, however, that at any time after August
1993, the Respondent used stringers to do the nwe photo work
that became part of Dimeo’s full-time photographer job in
1993. That would have defeated the purpose for making nwe
photo work a part of the full-time photographer position, which
was to keep the photographer busy on a full-time basis. When
the Union asked the Respondent during negotiations to relieve
Dimeo of his nwe photo duties by hiring a stringer or a part-
time person, the Respondent refused, stating that Dimeo would
have little work to do if the nwe photo work was reassigned. I
therefore find that the “past practice” of using stringers to take
nwe photos did not extend to or include performing the
bargaining unit work of the full-time photographe
36 This point was made very clear at the bargaining table in June
1994, when the Respondent rejected the Union’s proposal to hire a
stringer or part-time person to perform the nwe photo work that was
assigned to the full-time photographer, Dimeo. Smith testified that it
was explained to Campbell that the Respondent was not going to pay
Dimeo on a full-time basis to work part-time, which is what he would
be doing, if the nwe photo work was removed from his job.
37 The General Counsel contends that Crepp was not a stringer once
he began taking nwe photos on a regular basis in 1993 because the flat
fees per picture he earned were included with his regular pay as sports
editor and subjected to deductions for taxes. I do not agree. Simply
because flat fees per picture were rolled into Crepp’s regular pay does
not alter what he did, when he did it, and how he got paid (i.e., on a flat
fee per picture basis). Nor does it alter the fact that taking nwe photos
was not part of his regular duties as sports editor, a position within the
bargaining unit. Crepp did not have a right or any obligation to take
nwe photos as sports editor or as a stringer. The credible evidence
establishes that the Respondent permitted him to take nwe photos be-
cause he needed to earn extra money. Crepp unequivocally testified
that what he earned taking nwe photos was in addition to what he
earned as a sports editor. I therefore find that Crepp was a “stringer” at
all times he took nwe photos.
CITIZENS PUBLISHING CO. 1633
c. The applicable legal standard
In Bottom Line Enterprises, 302 NLRB 373 (1991), the
Board held that when, as here, the parties are engaged in nego-
tiations for a collective-bargaining agreement, an employer’s
obligation to refrain from unilateral changes extends beyond
the mere duty to provide notice and an opportunity to bargain
about a particular subject matter; rather it encompasses a duty
to refrain from implementation at all, absent overall impasse on
bargaining for the agreement as a whole. The Board recog-
nized two limited exceptions to this general rule: (1) when a
union engages in tactics designed to delay bargaining and (2)
“when economic exigencies compel prompt action.” Id. at 374.
In RBE Electronics of S.D., 320 NLRB 80 (1995), the Board
elaborated further that there are two categories of “economic
exigencies” under the Bottom Line limited exception.38 The
first category is economic circumstances so compelling that
unilateral action is justified and no bargaining whatsoever is
required. There is no evidence in this case to support the appli-
cation of that exception, therefore, further discussion of that
category is unnecessary. The second category pertains to cir-
cumstances that require “prompt action” and cannot await final
agreement or impasse on the collective-bargaining agreement
as a whole. Under those circumstances, the employer will sat-
isfy its statutory duty to bargain over the changes proposed to
respond to the exigency by providing adequate notice and an
opportunity to bargain over the proposed changes and by bar-
gaining to impasse on the particular proposal. The Board cau-
tiously added, however, that not every change proposed for
business reasons would meet the Bottom Line limited excep-
tion. Rather, this exception is limited to those exigencies where
time is of the essence and which demand prompt action. In
order for an employer to show that a proposed change was
“compelled,” it must demonstrate that the exigency was caused
by external events, was beyond the employer’s control, or was
not reasonably foreseeable. Id. at 82.
The evidence does not establish that an economic exigency
existed. The inability of Crepp to take the nwe photos was not
caused by external events nor was it beyond the Respondent’s
control. It was due to Crepp’s taking on too many responsibili-
ties in an effort to make extra money working overtime and to
the Respondent’s failure to properly assign duties to Crepp. It
could have been avoided if the Respondent had monitored what
Crepp was doing and limited his duties to that of the full-time
photographer, leaving the Saturday sports editor work to the
acting sports editor and the reporting work to the reporters. In
addition, the problem was reasonably foreseeable because when
Dimeo retired on short notice, the Respondent knew or should
have known that one person (Crepp) would not be able to per-

38 The General Counsel cites Marriott In-Flite Services, 258 NLRB
755 (1981); and Gresham Transfer, 272 NLRB 484 (1984), for the
proposition that “during contract negotiations, an employer may not
implement proposed changes or those tentatively agreed to by the par-
ties, even if an opportunity to bargain is first given the union, absent of
valid pre-existing impasse [or] consent of the union.” G.C. Br. at 30.
These cases, however, predate the Board’s decision in Bottom Line
Enterprises, supra, and its progeny, which provide the appropriate
analytical framework for this case. The Respondent does not cite any
cases in its posthearing brief in support of its argument that it followed
past practice and did not change the status quo. See R.Br. at 43–48.
The only cases the Respondent cites on this issue relate to its argument
that the strike, which followed the subcontracting was an economic
strike, even if an unfair labor practice was committed.
form the work of 1-1/2 people (Dimeo and Crepp) while work-
ing at the same time as the sports editor on alternate Saturdays,
as a reporter for the school board elections, and assisting in
publishing the Progress Edition. Finally, the problem did not
develop all of a sudden. It gradually became worse as Crepp
was permitted to become involved in activities beyond taking
photographs.
Even if the Respondent was facing an economic exigency,
the Act was violated because the Respondent did not provide
the Union with the required notice and an opportunity to bar-
gain over the subcontracting of bargaining unit work (nwe pho-
tos) performed by the regular, full-time photographer. Rather,
it unilaterally implemented its decision solely for its own bene-
fit and to serve its own purpose, after previously rejecting a
Union proposal to do basically the same thing. When the Un-
ion demanded at the bargaining table on April 11 that the uni-
lateral decision be rescinded, the Respondent said that it would
look into the matter and get back to them, which did not hap-
pen. The evidence therefore establishes that the Respondent
acted in complete derogation of the collective-bargaining rela-
tionship by unilaterally removing bargaining unit work, which
was an integral part of the full-time photographer’s position,
solely for its own benefit.39
Accordingly, I find that the Respondent violated Section
8(a)(5) and (1) of the Act, when it unilaterally subcontracted to
stringers the nwe photo work of the full-time photographer,
thereby unilaterally removing such work from the bargaining
unit.40
I further find that the strike, which occurred on July 24, 1995,
was an unfair labor practice strike. The evidence establishes
that the impetus for the decision to strike was the letter received
from the Board’s Regional Office that it was going to issue an
unfair labor practice complaint alleging that the Respondent had
violated the Act by subcontracting nwe photo work to nonbar-
gaining unit individuals. News of the General Counsel’s letter
galvanized the bargaining unit members’ belief that an unfair
labor practice had been committed and served as the flashpoint
for discussion about calling a strike.41 The testimonies of strik-
39 There is no other reason which would excuse the Respondent’s
failure to notify the Union and to provide an opportunity to bargain.
There is no evidence that in the context of discussing past practice,
SKegel or anyone else for the Respondent discussed using stringers to
perform the nwe photo work of the regular, full-time photographer.
The parties were not at impasse and the Union did not waive the right
to bargain on this issue.
40 The Respondent argues, and the evidence supports, that Crepp did
not lose any money when the nwe photos were assigned to the stringers
because he was paid overtime for other duties, which compensated him
for the flat fees he would have received had he taken the nwe photos.
While that may be relevant to the issue of back pay, the important point
is that when the Respondent assigned the nwe photos to the stringers, it
took work from a bargaining unit position (i.e., the only full-time pho-
tographer position). The evidence amply demonstrates that without the
nwe photos there would not have been enough work to sustain the full-
time bargaining unit position. That is the reason the Respondent added
nwe photos to the photographer’s job in August 1993. That also is the
reason why the Respondent rejected the Union’s proposal during nego-
tiations to relieve Dimeo of nwe photos. Therefore, the impact of sub-
contracting on a bargaining unit position was not de minimus.
41 Union President Campbell acted deceptively when he showed the
Union bargaining committee members a letter, dated July 21, 1995,
prepared by the Union’s attorney to RKegel, which erroneously stated
that the Respondent told Crepp he no longer would be a photographer
and that it had subcontracted out all the photography work. While this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1634
ers Mary Caputo, Carol McDonald, and Mark Crepp, which I
credit, establish that the strike which began on July 24, 1995,
was precipitated by the subcontracting and the General Coun-
sel’s decision to issue an unfair labor practice complaint.42 I
therefore find that the July 24 strike was an unfair labor practice
strike.
2. The filing and maintaining of state court libel lawsuits
Paragraphs 13–20 of the second amended consolidated com-
plaint, as amended, which pertain to the state court libel law-
suits precipitated by the letter written by L. David Brown and
published in the Ellwood City Press and South County News,
allege three separate violations of Section 8(a)(1) of the Act.
First, it is alleged that W. Ryan Kegel and Scott R. Kegel, as
alter egos of Respondent, violated the Act by filing and main-
taining the Press lawsuit43 in retaliation against all the defen-
dants therein. Next, it is alleged that the Act was violated by
filing and maintaining the separate Lincoln Publishing lawsuit
in retaliation against L. David Brown.44 Finally, it is alleged
that the Respondent separately violated the Act by continuing
to maintain both lawsuits after the Regional Director issued the
complaint.
In Loehmann’s Plaza I, 305 NLRB 663 (1991),45 the Board
established a bifurcated analysis for determining whether an

evidence reflects that the Union may have had an ulterior motive for
wanting to call a strike (e.g., so that the strikers could received unem-
ployment benefits), it does not alter the fact that the bargaining commit-
tee members actually believed that the Respondent had unlawfully
subcontracted bargaining unit work in violation of the Act.
42 The Respondent argues that even if the subcontracting violated the
Act, the strike was not an unfair labor practice strike. The Respondent
asserts that there was no causal connection between the subcontracting
and the strike because three months passed before the Union called a
strike. I do not agree. Three months is not a long time between when
the unfair labor practice was committed and when the strike was called.
Moreover, less than 72 hours passed between the time that the Union
found out that the Board’s Regional Office was going to issue a com-
plaint and when the strike was called. The Respondent also argues that
the strike was an economic strike, relying on various flyers and letters
distributed both immediately before and after the strike was called,
which drew attention to the economic concerns of the strikers. (See
Proposed Findings of Fact, R.Br. at 20–21.) At best this evidence
demonstrates that the strike was caused in part by the unfair labor prac-
tice and in part for economic reasons. As the Respondent concedes “a
strike which is caused in whole or in part by an employer’s unfair labor
practice is an unfair labor practice strike. Northern Wire Corp. v.
NLRB, 887 F.2d 1313, 1319 (7th Cir. 1989).” (R.Br. at 42.)
43 W. Ryan Kegel and Scott R. Kegel are the only plaintiffs in the
Press lawsuit.
44 The complaint asserts that both lawsuits “lack a reasonable basis
in fact or law since the published statement written by Brown is a pro-
tected expression of opinion.”
45 At the Board’s request, Loehmann’s Plaza I, was remanded for re-
consideration by the U.S. Court of Appeals for the Sixth Circuit in light
of the Supreme Court’s decision in Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992). In Loehmann’s Plaza II, the Board reversed itself and
dismissed the allegation that the employer violated the Act by pursuing
a state court lawsuit after the complaint was filed. That decision, how-
ever, did not alter the bifurcated analytical framework, which was
established by the Board in Loehmann’s Plaza I. See, e.g., Bakery
Workers Local 6 (Stroehmann Bakeries), 320 NLRB 133 (1995) (where
the Board found that the respondent’s Federal district court action was
preempted at the time the complaint was issued, but found no violation
of the Act under traditional NLRA principles. The Board then under-
took a Bill Johnson’s analysis, presumably for the precomplaint period,
employer, who files a state court lawsuit, violates Section
8(a)(1) of the Act. Prior to the issuance of the NLRB’s com-
plaint, the lawfulness of a state court lawsuit must be evaluated
under the standards set forth in Bill Johnson’s Restaurant v.
NLRB, 461 U.S. 731 (1983). However, once a complaint has
been issued, a different analysis is required. At that point, and
thereafter, the state court lawsuit is preempted, and an evalua-
tion relying on traditional labor law principles must be made.
Loehmann’s Plaza I, supra at 670–671.
In the present case, however, there is a preliminary issue
which must be resolved before conducting a bifurcated analy-
sis; that is, whether the Kegels were acting as alter egos of the
corporate Respondent when they filed the state court lawsuits.
a. The alleged alter ego status
Contrary to the General Counsel’s assertions, the alter ego
doctrine is inapplicable. The doctrine was developed to prevent
employers from evading their statutory obligations merely by
changing or altering their corporate form. It requires the exis-
tence of two entities, at some point in time, one of which is a
disguised continuance of the other. The doctrine does not apply
in the present case because there is no entity other than the
corporate Respondent, Citizen Publishing & Printing Company.
The Kegels sued in state court in their individual capacities and
at least in the Press’ lawsuit, they were the only plaintiffs.
There is no evidence that the Kegels, individually or otherwise,
sought to do business in a manner intended to relieve the corpo-
rate Respondent of its statutory obligations. See Fugazy Conti-
nental Corp., 265 NLRB 1301 (1982); Cofab, Inc., 322 NLRB
162 (1996) (discussing the factors considered by the Board in
determining whether an alter ego relationship exists). I there-
fore find that the General Counsel’s reliance on the alter ego
doctrine is misplaced.
Where the Board has held an individual liable for the unfair
labor practice of a corporation, it has employed a veil-piercing
analysis. AAA Fire Sprinkler, Inc., 322 NLRB 69 (1996)
(where contrary to the administrative law judge, who relied on
alter ego doctrine, the Board used the veil-piercing analysis to
impose personal liability). That analysis is likewise inapplica-
ble here because there is no evidence that the Kegels disre-
garded the separate identity of the corporation, utilized its as-
sets for personal gain and adhered to a corporate form which
would sanction a fraud, promote injustice, or lead to an evasion
of legal obligations. See White Oak Coal, 318 NLRB 732
(1995).
What the General Counsel really seeks to establish and in es-
sence what he argues in his brief (GC Br. at 51, fn. 63) is that
the Kegels’ actions in filing the state court lawsuits are imput-
able to the Respondent corporation, under the common law
agency principle of respondeat superior. The General Counsel
cites two cases, which are not alter ego cases, in support of his
position concerning the liability of a corporation for actions by
a supervisor. In Consolidated Edison Co., 286 NLRB 1031,
1033 (1987), the Board found that threats made by a division
manager against an employee during a grievance meeting and
afterwards involved a form of retaliation by a supervisor within
the framework of his supervisory responsibilities in violation of
the Act.46 In contrast, in Postal Service, 275 NLRB 360

finding that the General Counsel had not sustained his burden under
that theory either.
46 Importantly, the Board in Consolidated Edison Co., distinguished
a threat to file a lawsuit from the actual filing of a lawsuit. “In the
CITIZENS PUBLISHING CO. 1635
(1985), the Board found that the remarks of a temporary low-
level supervisor concerning a threat to file a lawsuit could not
be construed to be a retaliatory threat within the framework of
supervisor’s responsibilities and were not attributable to the
employer.
The present case, while not on all fours with Consolidated
Edison, Co.,47 falls within its parameters. The Kegels together
own a majority of the corporate stock, are its principal officers,
and have split the responsibility for all policy and day-to-day
decisions. In other words, they are not low level supervisors.
Also, as the pleadings in the Lincoln Publishing lawsuit allege,
there is a close identity between the Kegels’ individual names
and the name of the corporate Respondent.48 (See CP Exh. 89,
pars. 23–27.) What the Kegels say and do impacts the corpo-
rate Respondent. Likewise, what is said about the Kegels im-
pacts the corporate Respondent, as they allege in the Lincoln
Publishing pleadings. Finally, the evidence establishes both
lawsuits are singularly focused on the statement that as em-
ployers, the Kegels, are not truthful with their employees and
therefore the lawsuits are a reaction to the statement about how
the Kegels carry out their responsibilities as employers, manag-
ers, and supervisors. The evidence therefore supports the con-
clusion that the Kegels were acting on behalf of the corpora-
tion, as much as on their own behalf.
I therefore find that the actions of the Kegels in filing and
maintaining both lawsuits are imputable to the corporate Re-
spondent. To hold otherwise, simply because the corporate
Respondent is not a party plaintiff in the Press lawsuit, would
reward artful pleading, and exalt form over substance.
b. The precomplaint pursuit of the state court lawsuits
In Bill Johnson’s, supra, the Supreme Court held that the
Board may not enjoin a state court lawsuit as an unfair labor
practice unless (1) the lawsuit lacks a reasonable basis in fact or
law and (2) the lawsuit was filed with a retaliatory motive. The
Court stated that when an employer’s state court lawsuit against
an employee presents a genuine issue of material fact, the em-
ployer’s First Amendment interest in filing the lawsuit, in hav-
ing the factual issues resolved by a jury, and the State’s interest
in protecting its citizens, empowers the state court, and not the
Board, to resolve the factual issues presented. The Court con-
cluded that “if a state plaintiff is able to present the Board with
evidence that shows his lawsuit raises genuine issues of mate-
rial fact” the Board must stay its unfair labor practice proceed-

latter situation, a concern for a party’s constitutional right of access to
judicial forums must also be considered. Cf. Bill Johnson’s Restau-
rants v. NLRB, 461 U.S. 731 (1983),”supra at 1033 fn. 8. In other
words, even if the Kegels’ action could be attributable to the Respon-
dent corporation, the Board has intimated that where, as here, a lawsuit
has been actually filed a Bill Johnson’s analysis would be required in
order to determine whether the Act was violated.
47 The Respondent does not dispute that the corporate Respondent
can be held liable for the actions of the Kegels, regardless of the theory.
48 The Press lawsuit also alleges that the Kegels “are involved in the
publishing of two newspapers known as the Ellwood City Ledger and
the Valley Tribune, W. Ryan Kegel being publisher of said newspapers,
and Scott Kegel being the general manager of said newspapers. . . [t]he
statements contained in the article were intended to and did convey to
the readers thereof either directly or by implication that plaintiffs W.
Ryan Kegel and Scott Kegel are untruthful, that they lie to their em-
ployees and they should not be afforded credibility.” (C.P. Exh. 74,
pars. 43 & 42, respectively.)
ings until the state court lawsuit has been concluded.49 461
U.S. at 746–747.
(1) The Press lawsuit
Several factual issues exist with respect to the Press lawsuit
which preclude proceeding further with this aspect of the com-
plaint. First, the evidence discloses a factual issue as to
whether the striking employees who were volunteers at the
Press (and the two nonemployees working in concert with
them), are proper party defendants to that lawsuit.50 The Re-
spondent, in reliance on certain Teamsters publications, deter-
mined that the Press was published by the striking employees.
In its answers to interrogatories in the Press lawsuit, the Charg-
ing Party stated that the Press was published by Local 261, and
that the striking employees were indirectly responsible for pub-
lishing the Press as a result of their membership in the Union.
(CP Exh. 79, answers to deft. interrogatories 5 and 7.) Whether,
and to what degree, the striking employees and others were
responsible for publication of the allegedly libelous statement
presents a factual issue for the state court to decide. See Skeoch
v. Ottley, 377 F.2d 804 (3d Cir. 1967).
There is also a factual issue as to whether the statement by L.
David Brown that the Kegels have been untruthful to their em-
ployees is false. The Kegels deny the allegation in their testi-
monies and in their complaint in the Press lawsuit. At the hear-
ing, however, the General Counsel presented evidence, pre-
sumably to show that RKegel is untrustworthy, that he asked
Veronica Pacella, the former editor of the Ledger, and Jill
Paschl, a striking employee, to lie to the NLRB, which RKegel
denied. This raises a genuine issue of material fact that turns
on the credibility of witnesses.
Third, there is the question of whether the statement by L.
David Brown was made and published with actual malice. The
issue is first raised in allegations of Press complaint, which on
its face, would satisfy the malice requirement imposed by Fed-
eral law. Linn v. Plant Guard Workers Local 114, 383 U.S. 53,
64–65 (1966). The evidence also shows that Brown left the
Respondent’s employ on less than amicable terms, which he
describes in the very first paragraph of his letter to the editor.
SKegel essentially denied Brown’s assertion that he was mis-
treated, which calls into question whether Brown had an ax to
grind after many years which colored his perception of his deal-
ings with the Kegels. Whether and to what extent the editor of
the Press sought to inquire/determine the basis for Brown’s
statement before publishing the same51 raises a material factual
issue.
49 Bill Johnson’s clearly places the burden on the Respondent to
show that factual or legal issues are in dispute. 461 U.S. at 746.
50 A similar factual issue exists as to whether United for Survival is a
proper party defendant.
51 Further evidence that a reasonable basis exists for the Press law-
suit is the fact that on November 12, 1996, the state court overruled the
defendants’ second set of preliminary objections, which argued Federal
preemption based on Linn, and also denied that a joint motion for stay
of the proceedings by defendants in both the Press and Lincoln Publish-
ing lawsuits. The state court’s rulings arguably establish that the Re-
spondent’s lawsuit had a reasonable basis. Bill Johnson’s Restaurants,
290 NLRB 29, 31 (1988) (where on remand the Board concluded that
the employer violated Sec. 8(a)(4) and (1) by pursuing its business
interference claims in state court, but found no violation of the Act with
respect to the employer’s libel claim because the General Counsel
failed to show that the libel claim was baseless).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1636
The General Counsel nevertheless argues that the state court
lawsuits, as a matter of law, do not establish a state cause of
action under the actual malice standard established by Linn,
because the statement by Brown was merely an expression of
his opinion. The argument is unpersuasive because whether
Brown’s statement is fact or opinion, as the General Counsel
suggests, is a question of law for the state court to determine.
See Dougherty v. Boyertown, 547 A.2d 778, 785 (Pa. Super.
1988). While Linn imposed the Federal standard enunciated in
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for de-
termining actual malice, it stopped short of fashioning a Federal
standard for distinguishing fact from opinion and the General
Counsel has cited no authority for doing so.
Finally, the General Counsel asserts that there is no reason-
able basis for the state court lawsuits because the statement
made by Brown and published in the newspapers is tantamount
to calling the Employer a liar, which is not uncommon in the
course of a labor dispute nor is it so intemperate, abusive, or
inaccurate as to remove it from the protection of Section 7. I do
not agree. Linn teaches that a malicious defamation, even in the
context of a labor dispute, is not protected under the Act.
I therefore find that a reasonable basis, as defined in Bill
Johnson’s, has been established with respect to the Press law-
suit. Accordingly, these proceedings are stayed until the state
court lawsuit is concluded. If the Respondent prevails, then
there would be no basis for the finding a violation of the Act. If
the Respondent does not prevail, then the issue becomes
whether the Press lawsuit was filed and maintained for a re-
taliatory reason.52
(2) The Lincoln Publishing lawsuit
Similar factual issues as to whether Brown’s statement was
false, fact or opinion, and made with malice are present in the
Lincoln Publishing lawsuit. However, I find that Brown’s
statement does not fall within the ambit of Section 7’s protec-
tion, thus even if there was no reasonable basis for the Respon-
dent to file and maintain the Lincoln Publishing lawsuit, no
violation of the Act occurred. Section 7 of the Act provides
that “[e]mployees shall have the right . . . to engage in . . . con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.”53 Brown, however, is not an
employee of the Respondent or anyone else. His employment
with the Respondent ended approximately 9 years before he
submitted the letter to the editor of the South County News.
There is no evidence that he acted in concert with the striking
employees or the Union. There is no evidence that he either
spoke or corresponded with any of the striking employees or
the Union before he submitted the letter to the South County
News. While the letter is “supportive” of the Union’s cause it
is peripheral to their labor dispute. Brown’s relationship with
the striking employees is so attenuated that it cannot be fairly
said that his conduct falls within the “mutual aid or protection”
clause. Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, 568–569
(1978). Moreover, the South County News is not a union spon-
sored newspaper nor do the strikers or the Union have any in-
volvement with it. Naming Brown as a defendant no more
invokes the protection of the Act than naming the publisher,

52 It is conceivable that the Respondent could prevail as to some de-
fendants, but not others.
53 The General Counsel alleges that Brown’s statement was pro-
tected by Sec. 7 and therefore the Lincoln Publishing lawsuit as it per-
tains to Brown violated the Act.
Lincoln Publishing Company, Inc., as a defendant, which the
General Counsel tacitly concedes does not establish a basis for
a violation. Accordingly, I shall recommend that the allega-
tions of the complaint as they pertain to the Lincoln Publishing
lawsuit be dismissed.
c. The postcomplaint pursuit of the state court lawsuits.
As set forth above, the Board in Loehmann’s Plaza I, held
that once the General Counsel issues a complaint, the state
court action is preempted and an analysis different from Bill
Johnson’s is warranted with respect to the Respondent’s post-
complaint pursuit of the state court lawsuit.54 “Rather, the
‘normal’ requirements of established law apply.” Loehmann’s
Plaza I, supra. The employer’s preempted lawsuit must be
found to be unlawful under traditional NLRA principles. In the
present case, it is the General Counsel’s burden to show that the
publication of Brown’s letter was protected activity and that the
Press lawsuit tended to interfere with Section 7 rights thereby
violating Section 8(a)(1) of the Act. Loehmann’s Plaza II,
supra, 316 NLRB at 114.55 I find that the General Counsel has
not met his burden. The allegations of actual malice in the
Press56 lawsuit and the existing factual issues concerning those
allegations, preclude a finding at this juncture that the lawsuit
was baseless. The absence of evidence establishing that the
Respondent’s libel lawsuit is baseless, precludes a finding that
L. David Brown’s letter and the publication thereof were pro-
tected activity (in accordance with Linn) and therefore, no vio-
lation of the Act can be found because a lawsuit to enjoin activ-
ity that is not protected is not unlawful.57 Accordingly, I shall
recommend that the allegations concerning the postcomplaint
pursuit of the state court lawsuit be dismissed.58
3. The failure to reinstate Veres and Winchell
The General Counsel alleges that the Respondent failed to
reinstate striking employees, George Veres and Richard
Winchell, after they made an unconditional offer to return to
work on February 17, 1996. Both Veres and Winchell testified
that they told Ryan and Scott Kegel that they wanted to return
54 Although the issuance of a complaint preempts the state court law-
suit, the pursuit of the lawsuit afterwards does not automatically consti-
tute a violation of the Act. Absent a finding that the activity in question
is protected, no violation exists because a lawsuit to enjoin unprotected
activity is not unlawful. See Loehmann’s Plaza II, supra; Bakery Work-
ers Local 6 (Stroehmann Bakeries) 320 NLRB 133 (1995).
55 In Bakery Workers Local 6 (Stroehmann Bakeries) supra, and
Phoenix Newspapers, 294 NLRB 47 (1989), the respective court ac-
tions had concluded by the time the matters where decided by the
Board. In Bill Johnson’s Restaurants (on remand), supra, the state
court lawsuit had been concluded through the parties’ settlement of the
libel claim. Unlike those cases, the issue here is whether a pending
state court lawsuit constitutes an unfair labor practice.
56 In light of my previous finding with respect to the Lincoln Pub-
lishing lawsuit, I find that no basis exists for finding a postcomplaint
violation with respect to that lawsuit, and I shall therefore recom-
mended that the allegations in the complaint as they pertain to the pur-
suit of the postcomplaint Lincoln Publishing lawsuit be dismissed.
57 The General Counsel cites Phoenix Newspapers, in support of its
position. I find the case is inapposite. It predates Loehmann’s Plaza I,
and therefore does not even address the issue of postcomplaint preemp-
tion. Also, as noted above, the state court case had concluded in Phoe-
nix Newspapers, which provided an evidentiary starting point for decid-
ing whether the Act was violated.
58 To stay this part of the proceeding while awaiting the conclusion
of the state court lawsuit would be contrary to teachings of Bill John-
son’s and Loehmann’s Plaza I.
CITIZENS PUBLISHING CO. 1637
to work, if their jobs were still available. The Kegels acknowl-
edge that both individuals asked if their jobs were still avail-
able, but they deny that the two striking employees said that
they wanted to return to work. Rather, according to the Kegels,
Veres and Winchell equivocated, indicating that they repre-
sented several striking employees who were interested in re-
turning to their jobs. I credit the testimonies of Ryan and Scott
Kegel, and I find that Veres and Winchell did not make an un-
conditional offer to return to work. Gaywood Mfg. Co., 299
NLRB 697 (1990).
Veres testified that he called RKegel and said that “I’d like
to see if I could come back to work, if I could talk to him.” He
further elaborated that at the meeting “we said that we’d like to
come back to work, if, I mean, if our jobs are still available.”
His testimony is not corroborated by the notes taken by Barbara
Welsh, which were introduced by the General Counsel (GC
Exh. 9). The notes do not mention that Veres or Winchell
stated that they wanted to return to work or anything close to it.
Instead, the notes confirm that Veres asked if their jobs were
still available, which no one disputes, and then the discussion
shifted to the other striking employees who Winchell sought to
entice to return to work depending upon the results of the meet-
ing.
Veres’ testimony is also contradicted by Welsh’s notes,
which disclose that Veres asked what would happen to the libel
lawsuit, if they returned to work. Both he and Winchell denied
that the libel lawsuit ever came up at the meeting.
Winchell’s credibility was undermined at the hearing when
he denied at least twice that some of the employees that he
spoke to about returning to work expressed an interest in
returning. He was contradicted by Veres, who testified that
Winchell told the Kegels at the meeting that there were other
striking employees that he had spoken to who also wanted to
come back. His testimony was inconsistent with his earlier
affidavit, which said that he called some other people to see if
they were interested in ending the strike and there was some
interest. Finally, Winchell contradicted himself when he testi-
fied that he did tell the Kegels that there were other employees
who had some interest in returning to work although there was
some concern about Don Viccari.59
Rather than establishing that Veres and Winchell made an
unconditional offer to return to work, the evidence paints a
picture of two individuals who, after being on strike for 8
months, were trying to sound out their employer as to what
would happen if they and some others returned to work. The
continual reference to the other employees who had some inter-
est in returning to work, but were apprehensive about Don Vic-
cari, and the reference to the libel lawsuit, if anything made the
Kegels apprehensive themselves. To the extent that there may
have been some confusion, RKegel attempted to address the
issue when he told Veres, a few days after the meeting, that “a
determination would be made on individual basis when an un-
conditional offer to return to work is made.” Despite Veres’
testimony that he did not understand what RKegel meant and
that RKegel declined to elaborate, I do not find anything cryptic
about the sentence, which supports a reasonable inference that
an unconditional offer had not been made and that the Respon-
dent would consider such an offer if and when it was made.

59 In contrast, I find that the evidence, including Barbara Welsh’s
notes, substantiate the Kegels’ account of what occurred.
I find that an unconditional offer was not made by Veres and
Winchell and therefore the Respondent did not unlawfully re-
fuse to reinstate them. Accordingly, I shall recommend that the
allegations in the second amended complaint be dismissed.
4. The Union’s failure to make an unconditional offer to return
to work on March 14
Notwithstanding what anyone else at the bargaining table
may have thought they heard on March 14,60 the testimony of
the Union’s chief negotiator, William McGrath, establishes that
while he “intended” to make an unconditional offer to return,
he never actually did. After studying the March 5 letter,
McGrath had questions, and serious doubts, about whether all
of the jobs were still available. He went into the meeting hop-
ing to ascertain whether the striking employees would be
brought back at a higher wage and which of the temporary re-
placements were performing what jobs. When the meeting
opened, McGrath said he was going to make an unconditional
offer, but first he wanted to obtain information, which he be-
lieved was necessary in order to make the actual offer to re-
turn.61 As McGrath explained,

If the day had proceeded as I had hoped, I expected
that at some point, there would be a discussion about a re-
turn to work which would be orderly and take into consid-
eration it was a newspaper and its special arrangements to
get a paper out every day. I was willing to enter into a re-
turn-to-work agreement. I was willing to suggest at that
point in time, “ Why don’t we sign the whole thing and
just say the same rate of pay to the workers coming back
as replacements and make a contract? (Tr. 786.)

The day, however, never progressed as McGrath had hoped and
more importantly it never progressed to the point of making an
unconditional offer to return to work. As McGrath testified, his
plan was short-circuited when the Respondent returned from
the caucus and handed him the March 13 letter. Asked whether
there was a particular set of answers that he needed in order to
send people back to work? McGrath said, “I didn’t have to
have any answers. I could just say, ‘I make an unconditional
offer,’ and took potluck. But, then I would have had to done
the same process after the fact, and I would have had every-
body on my back.” Thus, the evidence establishes, and I find,
that an unconditional offer to return to work was not made on
March 14.
Instead, the evidence shows, and I find, that the Union’s first
unconditional offer to return to work was made on May 15,
1996. On that date, Campbell wrote to Smith seeking to “re-
confirm” that “each of the employees is making an uncondi-
tional offer to return to work, at all times since March 14,
1996.” The letter alludes to the fact that the Union attempted to
make this point clear at each of the last two bargaining sessions
(March 14 and May 13), but there is no evidence to corroborate
this self-serving statement,62 which was quickly refuted by
Smith in a reply letter, dated May 21.
60 Caputo, MacDonald, and Campbell all testified that McGrath
made an unconditional offer to return to work on March 14.
61 In a prehearing affidavit, McGrath stated that he “intended” to
make an unconditional offer to return to work, but had not done so, at
least at the outset of the March 14 meeting, when Smith asked if he was
going to.
62 To the contrary, in a letter to Smith, dated March 26, Campbell
tacitly concedes that such an offer was not made, when he explained
that at the March 14 bargaining session the Union requested informa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1638
In accordance with the above, I shall recommend that the al-
legations in the second amended complaint, as amended, that
the Union made an unconditional offer to return to work on
March 14, and that the Respondent failed to reinstate the strik-
ers prior to May 15, be dismissed.
5. The unlawful discharge of the strikers
A false statement by an employer that permanent replace-
ments have been obtained, in effect, terminates the striking
employees in violation of Section 8(a)(3) and (1) of the Act.
American Linen Supply Co., 297 NLRB 137 (1989), enfd. on
other grounds 945 F.2d 1428 (8th Cir. 1991). The replacements
must be permanent at the time of discharge and the burden of
proving that the replacements were permanent employees lies
with the employer, who must show that there was a “mutual
understanding” with the replacements that they were perma-
nent. NLRB v. Mars Sales & Equipment Co., 626 F.2d 567 (7th
Cir. 1980); and NLRB v. Augusta Bakery Corp., 957 F.2d 1467,
1473 (7th Cir. 1992). See also, Georgia Highway Express, 165
NLRB 514, 516 (1967), affd. sub nom. Teamsters Local 728 v.
NLRB, 403 F.2d 921 (DC Cir. 1968), cert. denied 393 U.S. 935
(1968).
The facts relating to this issue are not disputed. At the outset
of the March 14 meeting, and up to the lunchtime caucus,
Smith on behalf of the Respondent steadfastly maintained that
the jobs of all of the striking employees were available and that
the replacements were temporary. After attending a 2-hour
caucus with Ryan Kegel, Smith returned to the meeting and
handed McGrath a letter, dated March 13, which stated that as
of that day, the replacements were considered to be permanent
regular employees. The Respondent has not produced any
evidence whatsoever showing that on or before March 14, it
had advised the replacements, or any one of them, that they
were considered to be permanent, that they perceived them-
selves as permanent replacements, or that there was an under-
standing (mutual or otherwise) between the Respondent and the
replacements that they were permanent. Rather, the undisputed
evidence establishes that the Kegels did not advise the replace-
ments that they were permanent until the following day, March
15, in a meeting during which several replacements had ques-
tions about what that actually meant.
I therefore find that the Respondent falsely stated that the re-
placements were permanent, thereby terminating the strikers.63
Accordingly, I find that the Respondent violated Section 8(a)
(3) and (1) of the Act. 64 In addition, I find that by doing so, the
Respondent prolonged the strike. The evidence establishes
that, although McGrath had not yet made an unconditional offer
to return to work, it was his desire and expectation to do so
sometime in the afternoon of March 14, after returning from the
lunchtime caucus. The Respondent’s action thwarted that at-
tempt, and prolonged the strike, as well as the negotiations.
Finally, the evidence establishes, and I find, that the Union first

tion about existing positions in order to “advise the employees who
were prepared to make unconditional offers to return to work.”
63 By order, dated January 13, 1997, the Federal district court
granted an injunction pursuant to Sec. 10 (j) of the Act directing the
Respondent to offer interim reinstatement, among other things, to the
striking employees. Gerald Kobell, Regional Director v. Citizens Pub-
lishing & Printing Co., Case No. 96-2366 (USDC-W.D.Pa.).
64 Although I have made a finding that the strike which began on
July 24, 1995, was an unfair labor practice strike, this additional unfair
labor practice, which I find prolonged the strike, would have neverthe-
less converted the strike to a ULP strike, had I ruled otherwise.
made an unconditional offer to return to work on May 15, 1996.
Accordingly, I find that by failing to reinstate the strikers on
their unconditional offer to return to work on May 15, 1996, the
Respondent violated Section 8(a)(3) and (1) of the Act.
6. The alleged refusal to provide information
The General Counsel argues that the Respondent violated the
Act by failing to furnish the Union with information relevant to
making an unconditional offer to return to work, i.e., the num-
ber of bargaining unit positions which existed at the Ledger and
the Valley Tribune as of March 14, 1996, and the status of the
positions formerly occupied by the striking employees. I do not
agree. The information requested by the Union was not rele-
vant because Smith had told the Union in writing and in person
that all of the jobs of the striking employees were available
should they make an unconditional offer to return to work. No
probative evidence has been presented showing that his state-
ments were not accurate, at least up until the lunchtime caucus,
or that the Respondent was not ready, willing, and able to re-
turn all of the striking employees to their former positions, had
the Union made an unconditional offer to return to work on
March 14. To this extent, the information sought was not rele-
vant.
Nor was the information, which McGrath demanded, neces-
sary to make an unconditional offer because the Respondent
had already provided the Union with sufficient information
which would have enabled it to make such an offer. Prior to
March 14, and more specifically by letter dated, January 16,
1996, the Respondent, through its representative Smith, gave
the Union a list of all replacements, showing their names, ad-
dresses, wages, and the positions that they had filled. It subse-
quently provided a list of regular employees who either contin-
ued to work or returned to work, containing the same informa-
tion as the replacement list. On January 31, Smith provided the
Union with an updated replacement list, as well as a list of re-
placements who had resigned or had been terminated prior to
January 16, when the first replacement list was compiled.
I find that by March 14 the Union had been provided with
sufficient information to discern who the replacements were,
how much they were being paid, what jobs they were perform-
ing, and, in addition, it had been assured in writing that none of
the bargaining unit positions had been reduced or eliminated
and that all of the striking employees’ jobs would be available.
Accordingly, I find that the requested information was not nec-
essary to facilitate an unconditional offer to return to work.
Finally, and contrary to the General Counsel’s assertions, I find
that the additional information, provided to that Union on
March 20, 1996, which essentially “married” the two lists as
McGrath requested, was not incomprehensible, but was a rea-
sonable attempt to do what McGrath had requested. That in-
formation, in addition to the lists provided to the Union in
January, was also sufficient to allow the Union to make an
unconditional offer.
Accordingly, I shall recommend that the allegations concern-
ing the Respondent’s failure to provide relevant information be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
CITIZENS PUBLISHING CO. 1639
3. The following constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.

All full-time and regular part-time employees, including Edi-
tor, Valley Tribune; Classified Supervisor and Sports Editor
employed by the Employer at its Ellwood City and Beaver
Falls, Pennsylvania, facilities; excluding all office clerical
employees and guards, professional employees and supervi-
sors as defined in the Act.

4. Since December 30, 1993, the Union has been the exclu-
sive representative for purposes of collective bargaining of the
employees in the above-described appropriate unit within the
meaning of Section 9(a) of the Act.
5. By unilaterally subcontracting the bargaining unit work of
the regular full-time photographer to photographic stringers,
when the parties were not at impasse in negotiations and when
no extenuating circumstances existed, the Respondent engaged
in unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act.
6. By falsely advising the Union that the replacements were
permanent replacements, the Respondent unlawfully terminated
the employment of the striking employees in violation of Sec-
tion 8(a)(3) and (1) of the Act.
7. By failing to reinstate the discharged strikers on their un-
conditional offer to return to work on May 15, 1996, the Re-
spondent engaged in an unfair labor practice in violation of
Section 8(a)(3) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
9. With respect to the allegations concerning the Respon-
dent’s precomplaint conduct in filing the state court lawsuit in
W. Ryan Kegel & Scott Kegel v. The Ellwood City Press, Court
of Common Pleas, Lawrence County, Pennsylvania, Case No.
10046 of 1996, the Board’s proceedings are stayed pending the
final outcome of that case. If the plaintiffs prevail in state court,
i.e., if the state court finds merit in the allegations that the
statement by L. David Brown and the publication thereof, was
defamatory and malicious (as defined by the Federal law stan-
dard or in a manner that is consistent therewith) or if the matter
is settled, then the allegations herein will be deemed dismissed.
If the state court finds against the plaintiffs or in favor of all or
any one of the defendants or if the lawsuit is withdrawn or oth-
erwise shown to be without merit, then under those circum-
stances this case will proceed, and I hereby retain jurisdiction,
to determine whether the lawsuit was motivated by retaliatory
purposes.65
10. Except as found above, the Respondent has not violated
the Act as alleged in the complaint.

65 In light of my findings and conclusions, it would be appropriate
for the General Counsel, Charging Party, and anyone acting for or in
concert with them, to file a motion in Federal district court to lift the
stay of the state court lawsuits.
REMEDY
Having found that the Respondent, Citizens Publishing &
Printing Company, has engaged in certain unfair labor prac-
tices, I find that it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having unlawfully failed to bargain with the
Union over the subject of subcontracting the night and weekend
photo work performed by the regular full-time photographer,
when no impasse in negotiations had occurred and when no
exigent circumstances existed, it shall be ordered to meet and
bargain in good faith with the Union concerning the use of
photographic stringers to perform the above-reference night and
weekend work of the regular full-time photographer. I shall not
order, however, a make whole remedy for the full-time photog-
rapher because the essence of the violation is the failure to bar-
gain itself and in light of my finding that the acting full-time
photographer at the time of the violation did not sustain a loss
of earnings as a result thereof.
The Respondent having unlawfully terminated the striking
employees by falsely advising the Union that the replacements
were permanent, it shall be ordered to offer those employees
who were on strike on May 15, 1996, immediate and full rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges
previously enjoyed, dismissing, if necessary, any employee
hired since the date of the strike, July 24, 1995, to fill the posi-
tions, and make them whole for any loss of earnings they may
have suffered by reason of Respondent Citizens Publishing &
Printing Company’s unlawful acts herein detailed, by payment
to them of a sum of money equal to the amount they would
have earned from the date of the Union’s unconditional offer to
return to work, May 15, 1996, to present less their net interim
earnings during such periods, with interest thereon, to be com-
puted on a quarterly basis in the manner established in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizon for the Re-
tarded, 283 NLRB 1173 (1987).
It shall be further ordered that the Union be allowed no at-
torney fees for the defense of the state court lawsuit at this
time; however, jurisdiction shall be retained for the purpose of
assessing such attorney fees or further action in the event the
Respondents, Citizen Publishing & Printing Company, W.
Ryan Kegel and Scott R. Kegel, do not prevail on the remainder
of the state court action.66
[Recommended Order omitted from publicartion.]

66 See Buffalo Newspaper Guild Local 26 (Buffalo Courier Express),
266 NLRB 813 (1983).