Leavenworth Times

National Labor Relations Board - Board Decisions

Feb 3, 1978

234 N.L.R.B. 649 (N.L.R.B. 1978)

THE LEAVENWORTH TIMES
The Leavenworth Times, A Division of Thomson
Newspapers, Inc. and Leavenworth Typographical
Union, Local No. 45, affiliated with International
Typographical Union, AFL-CIO. Cases 17-CA-
7077 and 17-CA-7100
February 3, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On March 14, 1977, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order,2 as
modified. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, The Leavenworth Times, a Division of Thom-
son Newspapers, Inc., Leavenworth, Kansas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b):
"(b) Reinstitute the wages and salary review
and/or merit increase program formerly in effect and
apply it retroactively from on or about January 1,
1976. Further make the employees in the bargaining
unit whole by paying to them the difference, if any,
between their actual wages and salaries and the
wages and salaries they would have received had the
I We note, however, that Respondent is correct that the decertification
petition was filed on April 2, 1976, rather than April 22, 1976, as the
Administrative Law Judge stated.
2 Contrary to our dissenting colleague, we do not find merit in the
General Counsel's exceptions to the failure of the Administrative Law Judge
to order the extraordinary remedies requested by the General Counsel in the
instant case and thus decline to grant the same for the reasons set forth in
Crystal Springs Shirt Corporation, 229 NLRB 4 (1977). Therein, the majority
reaffirmed their adherence to the principle expressed in Tiidee Products, Inc.,
194 NLRB 1234, 1236 (1972), that the Board, in appropriate circumstances,
is capable of providing other than the usual remedial relief in order to rectify
particular unfair labor practices. However, we do not find that the facts of
the instant case warrant any of the extraordinary remedies the General
234 NLRB No. 99
wage and salary review merit increase program not
been suspended during the above period, together
with interest as prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER MURPHY, dissenting in part:
I agree with my colleagues' adoption of the
Administrative Law Judge's findings and conclusions
that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to bargain in good faith with the
Union; by engaging in a course of surface bargaining
with a fixed intent to avoid reaching agreement with
the Union; by unilaterally abandoning its established
practice of granting semiannual wage reviews and
wage increases to unit employees; and by refusing to
furnish the Union with requested information con-
cerning its sick leave policy covering the bargaining
unit employees. Unlike my colleagues, however, who
merely adopt without comment the Administrative
Law Judge's recommended standard Order, I agree
with the General Counsel's contention that an
extraordinary remedy is warranted here to correct
the egregious violations committed by Respondent.
In so finding, I rely not only on Respondent's
outrageous conduct at the bargaining table here, but
also on the fact that Respondent's parent corpora-
tion, Thomson Newspapers, Inc., which guides its
labor relations, has demonstrated a proclivity to
violate Section 8(a)(5) of the Act, as evidenced by
two relatively recent Board decisions finding that
two other subsidiaries of Thomson Newspapers had
committed violations similar to those herein. 4
The Administrative Law Judge, in his findings
adopted herein, concluded that Respondent entered
the bargaining sessions without any intention of
reaching an accord with the Union. Rather, he found
that Respondent's conduct and concept of bargain-
ing evidenced a strong inclination to frustrate the
Union and to avoid reaching agreement with it.
Thus, at the very outset of the negotiations, shortly
after the Union was certified, Respondent's general
manager and publisher, J. H. Johnston III, made it
clear to the Union that Respondent intended to
Counsel requests; therefore, we adopt the remedy recommended by the
Administrative Law Judge. As in Crystal Springs, while Respondent's
conduct was ultimately determined to have been in bad faith, we do not feel,
on the facts as presented, that its behavior was so egregious, nor its defenses
so frivolous, that the usual remedies provided by the Administrative Law
Judge are inadequate or will fail to remedy entirely the unfair labor
practices found.
3 Interest will be calculated according to the "adjusted prime rate" used
by the U.S. Internal Revenue Service for interest on tax payments. We shal
modify the recommended Order and notice accordingly.
4 Dothan Eagle, Inc., a subsidary of Thomnon Newspapers, 174 NLRB 804
(1969), enfd. 434 F.2d 93 (C.A. 5, 1970); The Adrian Daily Telegram, a
Division of Thomson Newspapers, Inc., 214 NLRB 1103 (1974).
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to operate its business with the fewest
possible restraints on its management prerogatives.
Respondent's conduct during the ensuing 20 bargain-
ing sessions between October 29, 1974, and March
22, 1976, was aimed at implementing this objective
and, as the Administrative Law Judge found, verged
on a demand that the Union virtually abdicate its
role as the employees' exclusive bargaining represen-
tative. Respondent's posturing and charading at the
bargaining table are fully documented by the record
and recounted in the Administrative Law Judge's
Decision which we adopt. Thus, for example, Re-
spondent engaged in protracted haggling over the
recognition clause and sought even to limit the scope
of the bargaining unit in which the Union was
certified. Respondent adamantly declined to discuss
the important economic issues until all nonmonetary
matters were disposed of, thereby eliminating areas
in which compromises could have been reached.
With respect to economic matters, Respondent
insisted on sole discretion in such areas as the
amount of scheduling of vacations, sick leave, com-
pensation for business expenses, leaves of absence,
etc. Respondent's only substantive proposal with
respect to wages came after 19 bargaining sessions
and was silent on such matters as sick leave,
pensions, life insurance, or hospital benefits. Respon-
dent's proposal provided, in effect, that the employ-
ees continue to receive what they had been getting in
terms of wages and benefits, and that any increases
beyond that would be subject to the Employer's own
review and discretion. In addition, Respondent's
contract proposal contained a zipper clause and a
broad management rights clause which, when viewed
against Respondent's proposed elimination from the
contract of many of the benefits which the employees
presently enjoyed, offered little or no assurance to
employees as to their basic conditions of employ-
ment and effectively excluded the Union from
bargaining about such conditions. Thus, it is evident
that Respondent intended to continue to operate as it
had before the employees selected the Union to
represent them.
Further indicative of Respondent's hostile attitude
toward bargaining was its unilateral withholding
from unit employees of their semiannual wage
reviews and merit increases in January 1976, a time
when Respondent adamantly refused even to discuss
wages with the Union. Respondent defends this
action as a justifiable use of economic power, which
was admittedly undertaken as a tactical bargaining
tool in order to expedite agreement upon a contract,
particularly with respect to wages and salaries. How
5 See fn. 4, supra.
6 International Union of Electrical, Radio and Machine Workers, AFL-
CIO [Tiidee Products, Inc.] v. N.LR.B., 426 F.2d 1243, 1249 (C.A.D.C.,
1970).
Respondent could lawfully expedite a contract over
items it had refused even to discuss is beyond my
ken. Also indicative of Respondent's bad faith was
its refusal to furnish the Union with information
regarding its sick leave policy, a subject over which
Respondent also insisted on sole discretion. Indeed,
while stating that certain criteria were utilized in its
past sick leave policy, it declined to furnish the
Union with information concerning such criteria
assertedly on the ground that no such information
was available. The Administrative Law Judge prop-
erly characterized Respondent's conduct in this
respect as constituting gamesmanship.
In view of all of the foregoing, the conclusion
reached by the Administrative Law Judge and
adopted herein is inescapable that Respondent delib-
erately undertook a course of conduct aimed at
frustrating the bargaining process and at avoiding
agreement with the Union while, at the same time,
giving the impression of bargaining. That the forego-
ing conduct was not the result of Respondent's
innocence or inexperience with the requirements of
Section 8(a)(5) and 8(d) of the Act is amply demon-
strated by the fact that Respondent has engaged in
substantially similar conduct, with substantially simi-
lar consequences, in the relatively recent past.5
Indeed, in the early stages of bargaining here,
Respondent was represented at the bargaining table
by the same person, James Baysinger, who represent-
ed it in Dothan Eagle, supra.
Although my colleagues adopt all of the findings
and conclusions made by the Administrative Law
Judge, they decline to provide a meaningful affirma-
tive remedy and, in so doing, abdicate their responsi-
bility under Section 10(c) of the Act. Simply to return
the parties to the bargaining table, without more, as
my colleagues do, not only allows Respondent to
continue the farcical charade in which it has become
adept, but also allows Respondent to reap the
benefits of its gross misconduct.
It is well settled that the obligation of collective
bargaining is at the core of the Act and is the primary
means fashioned by Congress for securing industrial
peace. 6 In Section 10(c) of the Act, Congress "charg-
e[d] the Board with the task of devising remedies to
effectuate" this policy objective.s The Board's "affir-
mative action" remedies are designed "to restrain
violations and as a means of removing or avoiding
the consequences of violations where those conse-
T N.LR.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344,
346 (1953).
650
THE LEAVENWORTH TIMES
quences are of a kind to thwart the purposes of the
Act."8 By removing the gains and compensating the
losses that result from the unfair labor practice, the
Board seeks "restoration of the situation, as nearly as
possible, to that which would have obtained but for"
the unlawful conduct.9 Such a restorative remedy
may properly exert a deterrent or restraining influ-
ence on further violations.10 In enacting Section
10(c) Congress clearly could not "define the whole
gamut of remedies to effectuate these [statutory]
policies in an infinite variety of specific situations.
Congress met these difficulties by leaving the adapta-
tion of means to end to the empiric process of
administration."1 In fashioning specific remedies to
fit specific wrongs "the Board must draw on enlight-
enment gained from experience." 12
My colleagues here, and in like situations,' 3 have
ignored the foregoing basic principles. I believe that
an appropriate affirmative remedy here must not
only direct the parties back to the bargaining table
with a mandate to bargain in good faith, but must
attempt to restore the status quo ante as much as
possible and act as a deterrent against future viola-
tions of a similar kind. Thus, I would require that
Respondent reimburse the Union for all of its
bargaining expenses incurred during Respondent's
duplicitous bargaining charade. For such masquer-
ading at the bargaining table as occurred here is
possibly even more destructive of the employees'
rights under the Act than an employer's outright
refusal to bargain as occurred in Tiidee Products Inc.,
194 NLRB 1234 (1972). By engaging in such con-
duct, Respondent not only demoralized the employ-
ees and weakened the Union's strength by undermin-
ing it in the eyes of the employees, but it also
depleted the Union's treasury. For the same reason, I
would require Respondent to reimburse the Union
and the Board for all litigation expenses incurred as a
result of its blatant unfair labor practices. Such a
remedy, in my experience, will serve as a substantial
deterrent against future violations and, in my judg-
ment, is consistent with the Supreme Court's pro-
nouncements as to the extent and meaning of the
Board's obligation under Section 10(c) of the Act.
Additionally, in order to assure that our bargaining
order is carried out, I would require that such
bargaining begin promptly upon the Union's request;
that, at the Union's request, Respondent meet for a
minimum of 15 hours per week until agreement is
reached or a lawful impasse is reached; that Respon-
dent consent to the presence of a representative from
the Federal Mediation and Conciliation Service if the
Union so requests; and that Respondent prepare
written bargaining progress reports every 15 days
and submit them to the Regional Director for Region
17, with true copies thereof to the Union.
Considering the nature and extent of the violations
found here and their devastating effect on the
employees, as well as Respondent's past commission
of similar violations, I think the foregoing remedy is
fully justified.
8 Consolidated Edison Co. v. N. LR.B., 305 U.S. 197, 236 (1938). See also
Fibreboard Paper Products Corp. v. N.LRB., 379 U.S. 203, 215-217 (1964);
Virginia Electric Power Co. v. N.LR.B., 319 U.S. 533, 539-540, 543-544
(1943).
9 Phelps Dodge Corp. v. N.LRB., 313 U.S. 177, 194(1941).
10 N.LR.B. v. J. H. Rutter-Rex Manufacturing Conpany, Inc., 396 U.S.
258, 265 (1969).
" Phelps Dodge Corp. supra at 194.
12 Seven-Up Bottling Co., supra at 346.
13 See, e.g., Betra Manufacturing Company, 233 NLRB 1126 (1977).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence it has been decided that
we violated the law and we have been ordered to post
this notice. We intend to carry out the order and
abide by the following:
WE WILL NOT refuse to bargain with Leaven-
worth Typographical Union, Local No. 45, affili-
ated with International Typographical Union,
AFL-CIO, by refusing to give the Union informa-
tion concerning the names of employees in the
unit below who have received paid or unpaid sick
leave, the dates and duration of said sick leave for
the period of 2 years prior to March 22, 1976, and
WE WILL provide said information.
WE WILL NOT refuse to bargain with the above-
named Union by unilaterally discontinuing the
merit and salary wage review and/or merit
increases for the employees in the unit below,
without prior notice to, or bargaining with, the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed under Section
7 of the National Labor Relations Act.
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment with Leavenworth Typographical Union,
Local No. 45, affiliated with International Typo-
graphical Union, AFL-CIO, as the exclusive
representative of all the employees in the appro-
priate unit described below and, if an agreement
is reached, embody in it a signed contract. The
appropriate unit is as follows:
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time news-
room department employees employed at
the Employer's 418-26 Seneca Street, Leav-
enworth, Kansas, facility, including editors,
reporters, staff writers and photographers,
but excluding the general manager, manag-
ing editor, office clerical employees, and
guards, professional employees and supervi-
sors as defined in the Act, and all other
employees, constitute a unit appropriate for
collective bargaining within the meaning of
Section 9(b) of the Act.
WE WILL reinstitute the merit wage and salary
review and/or merit increase program formerly in
effect and apply it retroactively from on/or about
January 1, 1976, by paying the employees in the
above-described unit the differences, if any, be-
tween their actual wages and salaries and the
wages and salaries they would have received
during the above period, together with interest.
THE LEAVENWORTH
TIMES, A DIVISION OF
THOMSON NEWSPAPERS,
INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This case
was heard on August 30 and 31 and September 1, 2, 27,
and 29, 1976, in Kansas City, Kansas, pursuant to charges
duly filed and served and a complaint which issued in Case
17-CA-7100 on June 4, 1976, a complaint which issued in
Case 17-CA-7077 on July 16, 1976, and an order consoli-
dating cases which issued on July 19, 1976. The consolidat-
ed complaint presents questions as to whether Respondent
violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended. In its answer Respondent
conceded certain facts with respect to its business opera-
tions but denied all allegations that it committed any unfair
labor practices.
At a hearing, all parties were represented by counsel. All
were given full opportunity to examine and cross-examine
witnesses and to file briefs. On November 29 and Decem-
ber 1, 1976, all parties submitted briefs. Respondent's
unopposed motion of December 1, 1976, to correct the
transcript is hereby granted. Upon the entire record in the
case, including the briefs of counsel, and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the operation of
a newspaper business at its Leavenworth, Kansas, facility.
In the course and conduct of its business at that facility
Respondent has an annual gross volume of business in
excess of $200,000, and subscribes to interstate news
services, runs nationally syndicated features, and advertises
nationally sold products. Respondent concedes and I find
that The Leavenworth Times, a Division of Thomson
Newspapers, Inc.,l herein called Respondent, is engaged in
commerce within the meaning of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
Leavenworth Typographical Union, Local No. 45, affili-
ated with International Typographical Union, AFL-CIO,
herein the Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequences of Events-
Case 17-CA-7077
The Leavenworth Times was acquired by Thomson
Newspapers, Inc., in 1967 and since that date has operated
as a division thereof. The general manager and publisher of
Respondent is J. H. Johnston III. The Union and Respon-
dent have maintained a collective-bargaining relationship
for many years with respect to the terms and conditions of
employment of Respondent's pressroom and composing
room employees. On August 13, 1974, the Board, in Case
17-RC-7472, issued a Decision and Certification of Repre-
sentative wherein the Union was designated as exclusive
bargaining representative of the following appropriate
unit:
All full-time and regular part-time newsroom depart-
ment employees employed at the Employer's 418-26
Seneca Street, Leavenworth, Kansas, facility, including
editors, reporters, staff writers and photographers, but
excluding the general manager, managing editor, office
clerical employees, and guards, professional employees
and supervisors as defined in the Act, and all other
employees.
The parties engaged in collective-bargaining meetings
commencing in October 1974 and carried on intermittently
through March 22, 1976. On April 22, 1976, a decertifica-
tion petition was filed by Stephen L. Sigafoose, an
individual, in Case 17-RD-608. On April 6, 1976, the
Regional Director for Region 17 issued a notice of a
representation hearing to be held on April 15, 1976. On
April 14, 1976, the Regional Director issued a telegraphic
order postponing the hearing in Case 17-RD-608 indefi-
nitely. On August 26, 1976, the Regional Director dis-
I Respondent's name appears as corrected at the hearing.
652
THE LEAVENWORTH TIMES
missed Case 17-RD-608 inasmuch as he had issued the
complaint herein. The complaint in Case 17-CA-7077
alleges that Respondent violated its obligation under the
Act to bargain in good faith with the Union by (a)
engaging in a course of surface bargaining since October
12, 1975, (b), commencing on or about October 12, 1975,
and particularly on November 6, 1975, and February 26,
1976, failing and refusing to furnish the Union with
information concerning the sick leave policy covering
employees in the unit set forth above (herein the newsroom
unit), and (c) by unilaterally limiting its semiannual
granting of wage reviews and wage increases to nonunit
employees on or about January 1, 1976, thereby withhold-
ing wage increases from those employees represented by
the Union in the newsroom unit which they would
otherwise have received under an established practice of
the employer.
B. Bargaining History Preceding the 10(b) Period
of October 12, 1975
During the period preceding October 12, 1975, 13
collective-bargaining sessions were held on the following
dates: October 29, 1974; November 21, 1974; December
14, 1974 April 14 and 15, 1975; May 27 and 28, 1975; June
25 and 26, 1975; July 31, 1975; August 13 and 14, 1975;
and October 9, 1975.
At the time that the Union was certified as collective-
bargaining agent for the newsroom unit on August 13,
1974, the parties were engaged in negotiations of a new
composing-pressroom contract.2 Paul French, the presi-
dent of Local 45 since 1965, was a participant on behalf of
the Union in the composing room negotiations. In late
August or early September 1974, he had prepared the
initial union proposal with respect to the newsroom unit
and had submitted that proposal to Johnston at one of the
mechanical unit bargaining sessions. This was done with-
out comment and French conceded that he was preoccu-
pied with the mechanical unit negotiations, but that he did
write to the International headquarters of the Union and
requested a representative to assist the Local Union in the
bargaining of the initial newsroom contract. Bargaining
continued on the mechanical unit contract until agreement
was achieved on October 25, 1974. Subsequently, three
meetings were held pursuant to a mutual agreement of both
the Union and Respondent on October 29, November 12,
and December 4, 1974. James Baysinger, industrial rela-
tions representative for the Thomson papers who partici-
pated in the mechanical unit negotiations, suggested to
French that negotiations for the newsroom unit should be
initiated by the local representatives of the parties. Accord-
ingly, with French's agreement, the first three meetings
were negotiated in the absence of a representative either
from the International Union or from the Thomson papers.
The union negotiating team was headed by French who
had no experience in negotiations with respect to a
newsroom unit. He was assisted by employee Bordon, a
member of the mechanical unit, and employees Williams
2 Otherwise referred to as the mechanical contract.
3 The concept of priority was never fully defined by any representative of
the Union, however. French testified that priority constitutes that "length of
time which an employee serves in a specific situation, i.e., that he lays
and McGrath, members of the newsroom unit. The
Employer was represented by Johnston with the assistance
of Ted Anderson, the managing editor. French viewed
these meetings as a "familiarization," that is, the parties
reviewed the Union's proposals and French attempted to
explain the Union's proposals. French testified that no "in-
depth" discussions took place. French conceded that
questions were put to him by Johnston and that he was not
able to give immediate explanations, but that he deferred
to later dates for further explanation. French conceded that
at least in one instance he did not understand the language
of the union contract. He had, however, sometime before
December 9, contacted International Representative James
Wood by telephone for guidance. Johnston suggested that
pursuant to the procedure followed in negotiating the
mechanical contract the parties would not discuss econom-
ics until they had discussed the noneconomic aspects of the
contract. French agreed. He stated that in any event it
would take "quite a while to get through the written
language." At no time during these meetings did French
ask for any counterproposal from Respondent. The union
proposal was derived from language used in other con-
tracts including nonnewsroom contracts. It is Johnston's
credible and uncontradicted testimony that when each
section of the union proposal was reviewed, he (Johnston)
indicated the problems that Respondent had with the
Union's proposals. Particularly, Johnston was concerned
about the impact of the proposal, which he considered to
be inappropriate for a small newspaper. There are only
seven employees in the appropriate unit. Thus, Johnston
expressed his opposition to the dues-checkoff proposal.
Dues checkoff was not contained in the mechanical
contract. He objected to the proposal that a 120-day notice
be required before installation of new equipment, which he
considered to be too restrictive; to the proposals with
respect to the photoengraving and advertising deadlines,
which he considered to be not within the purview of the
certified unit; to the proposal that someone other than the
photographer develop their photographs; to the overtime
proposals, which he considered to be restrictive on man-
agement prerogatives; to the contractual reference to
"priority"; 3 to the shift concept set forth in the union
contract, which he considered unrealistic in light of the
unscheduled nature of news events; to the lunch period
concept, which he considered inflexible in light of the
contingencies of the newsroom operation; to the nondiscri-
mination clause, which he viewed as an aspersion of his
integrity; to the proposal regarding the joint standing
committee in determining "competency," inasmuch as he
contended that mechanical unit members were not able to
judge the competency of a newsroom employee; to the
reinstatement provisos, which he considered not applicable
in a small paper where employees who have left the
employment of a paper usually leave town to find employ-
ment elsewhere; to the nondiscrimination with respect to
sex proviso, which he felt would be inappropriate because
certain positions, such as the editor of the woman's page,
competency, to which gives certain rights to his length of service in that
particular job." It is not defined in the contract, and it is not seniority.
French admitted on cross-examination that priority is whatever Local 45
determines it to be.
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be filled by a male; to the physical exam proviso,
wherein he contended that management should have the
option of making such a requisite; to the proviso on
training, wherein he envisioned difficulty in the obtaining
of an available substitute; to the proviso on bylines,
wherein he felt it was necessary that management should
retain discretion as to whether an employee was entitled to
a byline; and to the proviso on letters of criticism, wherein
Johnston was opposed to permitting an employee the
option of vetoing the publication of reader's letters of
criticism of that employee, and also with respect to the
employee's ability to respond to the letters of criticism with
a published letter of his own. Johnston felt that the Union
should have no part in the decision of management as to
whether a letter was to be run or whether it was to be
rebutted. He also objected to the proviso dealing with the
resale of a work product of a reporter-photographer, which,
he felt, might impinge upon the paper's contract with a
rational news service. French engaged in no extended
responses to Johnston's objections, but, according to
Johnston, expressed his interest and appreciation of John-
ston's views.
On January 3, French asked Johnston for a company
counterproposal, and was told that Johnston would try to
give him a company proposal before he was scheduled to
leave town on January 9. The proposal was not submitted
to French until February 3, 1975. Prior to the next meeting,
Johnston and French agreed that it was time to call the
representatives of the Thomson papers and the Interna-
tional Union to participate in negotiations; i.e., Interna-
tional Union Representatives Wood and James Gunder-
son, the sucessor to Baysinger who left the employ of
Respondent at or about that period of time. The next
meeting was scheduled pursuant to the availability of both
Gunderson and Wood and was set for April 9, 1975.
Although French received Respondent's proposal on
February 3, it wasn't until February 22 that he placed the
call to Wood to attempt to arrange a meeting. The first
dates that Wood had available were in late March or not
until April. Wood thereafter participated in 17 remaining
bargaining sessions and though he characterized himself as
assisting the local committee he clearly appeared to be the
spokesman of the Union at the bargaining table. A meeting
was set for April 9 and 10 but was canceled at the request
of Wood and rescheduled for April 14 and 15. Between
April 14 and October 12, 1975, 10 collective-bargaining
sessions took place. They commenced generally at or about
4 p.m. and terminated anywhere from 8 until 11 p.m. They
were arranged by mutual agreement as were all collective-
bargaining sessions. No evidence was submitted that the
Union made any objection to the spacing of the meetings,
or that the Union sought to accelerate the meetings, or that
the Union requested consecutive bargaining sessions. The
union team remained essentially the same except on
occasions one employee representative would replace
another employee representative. The employer's team
consisted of Johnston, Anderson, and Gunderson. Al-
though Gunderson characterized himself as only an advi-
sor, it is clear that he was a major spokesman if not the
chief spokesman for Respondent's team. There were
instances of temper tantrums and name calling but these
situations were of negligible import and had no appreciable
impact on the speed of negotiations. Neither the Charging
Party nor the General Counsel either at the hearing or in
their briefs alluded to these rather minor incidents as
evidence of Respondent's bad faith. Accordingly, I will not
belabor this Decision with the recitation of these occur-
rences.
With respect to the flow of the meetings there is
insufficient evidence that Respondent purposely sought to
delay or cut short any of the meetings that would reflect a
pattern of conduct or an intent not to meet and negotiate
with the Union. There are one or more instances when
meetings were cut short, however, the Union itself was in
part responsible for one or more instances of a canceled or
delayed meeting. No party seriously suggests that refusing
to meet, canceling meetings, or restricting the duration of
any meeting is a significant factor in this case. Accordingly,
it is unnecessary to belabor this Decision with the descrip-
tion of the duration of the meetings, the number of
caucuses taken by both parties nor any of the interruptions
that resulted in short caucuses and recesses taken by
Respondent. If anything, disruptions were caused on
several occasions by the desire of the union negotiating
team to discuss matters not relevant to bargaining; e.g.,
problems of grievances relating to the composing room
contract. Furthermore, the Union made no serious effort to
request meetings of longer duration.
After 13 bargaining sessions, up to the date of October
12, 1975, the parties had achieved agreement in the
following areas:
1. Preamble. Which was agreed to on April 14, 1975.
The agreement ran through the first paragraph of Respon-
dent's original proposal.
2. Discharge notice. Agreement was reached on May 27,
1975, on the Union's original section 9-06 agreement
except that the reference "managing editor" was replaced
by the word "employer."
3. Pro rata vacation pay. An agreement was reached on
May 28 upon acceptance of Respondent's original proposal
contained in section 4-02 of its first contract proposal.
4. Promotions. Agreement was reached on June 26,
1975, on the following language: "No employee shall be
required to accept a permanent promotion in the news-
room except by mutual consent."
5. Grievance procedure. On June 26, 1975, the parties
agreed to the first two sentences contained in Respondent's
original proposal as reflected in section 2-01 and the
Union's June 25, 1975, counterproposal which is identical.
The language is merely prefactory.
6. Nondiscrimination. Agreement was reached on Au-
gust 14, 1975.
7. Grounds for discharge. Agreement was reached on
August 14, 1975, embodying essentially Respondent's
original proposal.
8. Accrued benefits to the estate of deceased employee. As
set forth in the mechanical contract, agreed to on October
9, 1975.
The following is a highlight of the area of discussion by
topic matter as it progressed throughout these 10 meetings.
Request for information: At the fourth meeting on April
14, 1975, the Union made a request for information
654
THE LEAVENWORTH TIMES
concerning names of employees, classifications, dates of
hire, and rates of pay, as well as what fringe benefits they
enjoyed. At the fifth meeting held on April 15, the
following day, Respondent supplied the data contained in
General Counsel's Exhibit 5 consisting of the names of
employees, their classifications, dates of hire and salaries as
of April 14, 1975, as well as a statement to the effect that
the Employer supplied employees with a combination
medical-insurance-annuity program "as outlined in the
accompanying booklets," and that they enjoyed certain
enumerated holidays and bereavement leave "as set forth
in the Company's agreement with Local 45, ITU." Gunder-
son testified that the booklets referred to were attached to
the document which was submitted to the Union at that
meeting. He was corroborated by Johnston. Wood testified
that the Union did receive data on wages, dates of hire, and
fringe benefits, but that the information did not include
existing fringe benefit data such as the life insurance,
vacations, or sick leave. However, General Counsel's
Exhibit 5 which was stipulated to by all parties as the
information that was submitted to the Union on or about
April 15 in response to its request of April 14, as noted
above, clearly indicates that the employer offers a medical-
insurance-annuity program and refers to an accompanying
booklet. In view of Wood's lack of certitude and apparent
confusion in his demeanor, as well as his statement that he
has no independent recollection of any of these bargaining
sessions aside from what is summarized in his notes, I
credit the testimony of Johnston and Gunderson which is
precise and specific. Moreover, it would appear that had
the benefit booklet not been attached to the document
given to Wood on April 14, he surely would have made a
specific reference to the lack of its attachment which
apparently he did not do according to his somewhat cryptic
testimony. It should be noted that Respondent's contract
proposal submitted to the Union on February 3 remained
in large part unmodified throughout the entire course of
negotiations. It contained no proposal with respect to sick
leave, pensions, life insurance, or hospitalization. Gunder-
son testified that Respondent did not specifically suggest
that present benefits be eliminated. He retracted earlier
testimony intimating that the Company was offering a
continuation of present benefits in light of the submission
to the Union of General Counsel's Exhibit 5 on April 14 by
testifying upon cross-examination that no Respondent
representative at any time expressed to the Union in
negotiations that the April 15 list of benefits was a proposal
on the bargaining table to maintain the benefits mentioned
therein.
The recognition clause: Basically, the Union started out
with a proposal which reflected recognition of the news-
room unit by specific delineation of the certified unit.
Respondent's proposal reflected a more cursory recogni-
tion of a unit "duly certified" or "as certified in Case 7-
RC-7472." Discussion ensued throughout these meetings
over the verbiage concerning the recognition clause. On
July 31, the Union presented a counterproposal with
respect to "Recognition & Jurisdiction" citing the certifica-
tion in Case 17-RC-7472, and setting forth a full quotation
thereof, but ending with the language: "The jurisdiction of
the Union shall consist of those functions presently
performed by employees described in the above unit."
Gunderson testified that the employer objected in part to
that inclusion of jurisdictional language because the Em-
ployer insisted on its right to remain free of restrictions
implicit therein. That is, the Employer desired to retain the
right to be able to assign the duties and work functions of
employees within the appropriate unit to persons outside of
the appropriate unit, as for example, the managers, their
spouses, and "others."
Related to the discussion of the recognition clause is the
proposal in the Employer's original contract proposal that
would exclude "part-time employees" from the unit. The
Union had argued that the exclusion of part-time employ-
ees would derogate from the certified unit which included
"regular part-time employees." A good deal of discussion
was consumed wherein the Employer kept reiterating its
position that exclusion of part-time employees did not
subsume the exclusion of regular part-time employees.
Arguments over those semantics were not resolved. The
Union did agree that "stringers" and other casual employ-
ees would be excluded but that was never really in issue.
The Union expressed its concern at the bargaining table
that the Employer's insistence upon discretion with respect
to the assignment of work was a threat to the integrity of
the bargaining unit in that the Employer would be in a
position to transfer all the work outside of the bargaining
unit to nonunit employees, and thus destroy the unit. Thus,
the failure to resolve this "jurisdiction" problem became a
key impediment to the failure to even agree to a recogni-
tion clause.
Zipper clause: The second paragraph to the preamble in
the Employer's contractural proposal contained the follow-
ing proviso:
Both parties agree that their respective rights and
obligations under this contract would have been afford-
ed by the performance and fulfillment of the terms and
conditions thereof and that the complete obligation to
each other is expressed herein.
Commencing at the April 14 meeting, the Union object-
ed to the "zipper clause" as it characterized it, or the "fully
bargained clause" as Gunderson characterized it, later
adopting the Woods characterization. Wood took the
position that the Union could not agree to that language
unless every benefit presently enjoyed by unit members
was incorporated explicitly into the contract. Wood reiter-
ated his argument at the 10th meeting held on July 31, and
specifically pointed out that specific benefits such as life
insurance and sick leave were not contained in any
Respondent proposal. Wood testified that Gunderson
merely responded that "It's in the contract under law,"
whereupon Wood responded that the law does not provide
employees with sick leave. No agreement was reached.
Lunch periods: Various proposals and counterproposals
were submitted with respect to the Union's request for
specific language regarding the assurance to an employee
of an unpaid 30-minute lunch period. The Employer's
concern, as expressed throughout the negotiations, was that
the newsroom operation was quite different from the
composing room unit and that it did not operate "within
the four walls." Furthermore, there were deadlines which
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were dissimilar from deadlines under which composing
room and pressroom employees operated. Reporters
worked odd hours and an erratic schedule. The Employer
initially suggested that no lunch period language be
inserted into the contract. The Union essentially was
arguing for some language that would assure a lunch
period of one-half hour of unpaid time to be granted to an
employee upon condition that he worked a specified
number of hours, and to be given, wherever possible, near
the middle of his shift.
Grievance procedures: Extensive discussion was held
between the parties not with respect to whether there
should be a grievance procedure, indeed, as such was
proposed by the Employer. However, the parties engaged
in prolonged discourse as to the timeframes suggested by
either party; the number of persons to serve on the
arbitration panel, i.e., a five-member, three-member, or
one-member panel, and, if indeed a five-member panel,
how the fifth member should be selected; and, finally,
whether a party not ordering a transcript ought to be
entitled to access to a transcript. The Union refused to
acquiesce to the Employer's language which required that
the grievance as submitted ought to cite the specific portion
of the contract which the grievance claimed was violated.
The Union expressed fears that such requirement would
defeat a grievance because of a technical miscitation. With
respect to timeframes, the Union thought more time ought
to be allowed to the small Local Union as to whether or not
a decision would be made to go to arbitration so as to
enable the Union to consider means of raising funds to
support a grievance arbitration undertaking. Originally, the
Employer proposed a five-man panel but as of July 31
suggested a three-man arbitration panel to avoid a problem
earlier raised as to how two panel members appointed by
each party would select the fifth panel member. At one
point in his testimony, Wood appeared to be stating that
Respondent refused to define whether the word "days" in
Respondent's proposals was to be defined as calendar days
or workdays. However, on cross-examination he retracted
that position but finally testified that he "didn't recall."
The Union's position with respect to the composition of the
arbitration panel was that there should either be five
members or a single member, but not three. The Union
then took a position that it did not wish a fifth member to
be chosen by the four selected. Respondent's counterpro-
posal of October 9, 1975, proposed a grievance panel of
three persons, one appointed by each party and the two
would appoint a third party. In the event of nonagreement
within a certain period of time, the third person was to be
selected by the American Arbitration Association. It
should be noted that the Union's original contract proposal
did in fact provide for a five-man arbitration panel.
Although the Employer acquiesced to a reduction of time
of a timeframe in the earlier stage of the grievance
procedure pursuant to the Union's request that the thresh-
old entrance be made more quickly, Respondent still set
forth a time limit of 10 days for the submission of the
grievance to arbitration and still insisted upon a recitation
in the grievance of the specific portion of the contract
claimed to be violated.
Outside activities: Respondent proposed, in section 10-01
of its contract, language which would have the effect of
restricting the activity of the unit employees in regard to
employment by other employees. That is, such employment
must be precluded unless "such activities do not consist of
service performed in direct competition with the employer,
do not result in any conflict of interest with respect to the
employees' duties with the newspaper and do not diminish
the employees' reputation and standing in the community."
Gunderson testified without contradiction that Wood
characterized that priviso as an "ethics clause," and that
Gunderson denied that it was an ethics clause. In any event
this clause was discussed at the April 14, April 15, May 27,
July 31, and October 9 meetings. By the October 9 meeting
the Union offered a counterproposal which stated: "Em-
ployees shall be free to engage in any activities outside of
working hours, provided such activities do not consist of
service performed in direct competition with the employer,
do not result in any conflict of interest with respect to the
employees' duties with the newspaper, and do not diminish
the employer's reputation and standing in the community."
The critical difference between the two proposals, of
course, is the Employer's contention that the outside
employment activity not impact employee's credibility, etc.
It is argued that it was necessary in order to prevent its
news sources from drying up. Gunderson's testimony that
the union committee "simply felt" that the company
explanation was "not satisfactory" was unrebutted. How-
ever, Gunderson also testified that when a member of the
union committee asserted that the Union would not be able
to grieve the Employer's action in this regard, that
contention was not responded to by any member of
Respondent's bargaining committee.
Checkoff: The Union included a provision for a dues-
checkoff procedure which was not included in the mechan-
ical contract. Respondent conceded that it did not wish to
be a collector for union dues inasmuch as it was a small
newspaper. An agreement was never reached.
Other topics: A multitude of other topics were discussed
wherein no agreement was reached such as the Union's
proposal 3-01, "struck work"; the Union's proposal 4-01,
"picket line activity"; the scheduling of vacations which
Respondent resisted because contractual incorporation
would restrict its flexibility in the operation of a small
newspaper (Johnston had stated at the April 15 meeting
that the vacation benefits were the same as the composing
and pressroom unit, but when the Union offered to include
the same contract language as found therein, no agreement
was reached); the Union's proposal 18-17, "allowance for
use of employee of his photography equipment; mileage
allowances; the management rights clause as proposed by
the Employer which the Union contended at the June 26
meeting that it negated proposals already agreed to, i.e., the
clause which permitted the employee a right to refuse a
promotion; the Union's request for a bulletin board which
had several times been discussed but no agreement had
been given by the Employer; sanitary regulations which
were discussed on July 31 but were rejected entirely by
Respondent as not applicable to a newsroom operation;
and the Union's proposal with respect to letters to the
editor critical of employees within the unit to which
656
THE LEAVENWORTH TIMES
Johnston wanted no contractual reference. With respect to
the discussion of expenses of employees at the August 13
meeting, Gunderson stated that that "was something that
could not be put into a contract." Leaves of absence were
discussed as late as August 13, and at the July 31 meeting
Johnston stated that it was not practical to have that kind
of language in a contract. Further discussion took place as
to the protection of employees' "priority" when an employ-
ee is ill or on leave; bereavement leave; the proposal of the
Union that employees be permitted to carry over from one
year to the next earned vacation pay to which Wood
testified without contradiction that "Gunderson told us to
trust them, that we did not need that in a contract." With
respect to bereavement leave there had been an agreement
reached on October 9, 1975, but Respondent had with-
drawn from that agreement when it became apparent that a
dispute existed over whether an employee on vacation
would be entitled to tack on bereavement leave during
vacation time. The Employer contended that he should not
be so entitled and, therefore, withdrew from its agreement
on bereavement leave in view of this discrepancy.
At the meeting of October 9, 1975, the subject of sick
leave was discussed. The Union had proposed a provision
for sick leave in the collective-bargaining agreement. Wood
requested the Company to specify what the sick leave
policy was in its present terms. Johnston responded that
sick leave was a matter of employer discretion and that
whether an employee was to be given sick leave was a
matter to be determined on a case-by-case basis. Wood
asked for employer information to be gleaned from its
records which would indicate when and to whom sick leave
was granted. The Union requested that such information
be made available by the next meeting which was sched-
uled to be held on November 6. During this discussion,
however, Respondent made clear that it wanted to con-
tinue its present policy of discretionary sick leave and was
opposed to the inclusion of a specific sick leave provision
in the contract other than a mere recitation that sick leave
was at the Employer's discretion.
Economic issues: Wood testified that at the meeting held
on May 27, 1975, he "vigorously" asked for a wage
proposal from the Employer "since the company was not
willing to put economics in other areas [and] we wanted to
see what they would put into wages." This request was
made at the tail end of a session which had commenced
about 3:50 p.m. and ended at 11:15 p.m. To this request
Gunderson responded that perhaps the meeting ought to
adjourn, since it was near I 1: 15 p.m. Wood testified that he
then offered to clarify the Union's position with respect to
"stringers" and the meeting adjourned. Wood's version was
not controverted. However, at no time prior to the 10(b)
period which commenced on October 12, 1975, did Wood
again raise the subject of a wage proposal by the Employer.
The original contract proposal submitted by the Employer
on February 3 did not include a wage proposal. Thus, the
situation with respect to wages up to October 21, 1975, was
that French had agreed with Johnston to discuss noneco-
nomics first before discussing economics and that pattern
continued, and the only objection to it was raised at the tail
end of the May 27 meeting to which Respondent remained
silent. From May 27 to the last meeting held outside the
10(b) period on October 9, 1975, the Union acquiesced
without any further objection to a continued discussion of
the areas enumerated above.
Bargaining Relationship as it Transpired During
the 10(b) Period Commencing on October 12, 1975
Subsequent to the last meeting in the 10(b) period on
October 9, 1975, seven more collective-bargaining meetings
were held until a point in time when a decertification
petition was filed by employee Stephen Sigafoose. Meet-
ings were held on November 6 and December 16 and 17,
1975, and January 27, February 26, and March 22, 1976.
Meeting 14, November 6, 1975: This meeting commenced
about 4 p.m. The bargaining team personnel remained the
same with the exception of the addition of employee
Johnston to the union team. At this meeting Respondent
withdrew its agreement on bereavement leave and offered a
counterproposal. The Union objected on the grounds of a
prior agreement but Respondent's position, as stated at the
meeting, was that there was an apparent disagreement as to
whether the parties intended to add on bereavement leave
to vacation leave in a situation wherein a death occurred
while an employee was on vacation. Thus, that topic was
opened for further discussion but no agreement was
reached. The counteroffer made by the Employer with
respect to bereavement leave appended the following
sentence which precluded agreement: "If any of the above
days fall on an employee off day or vacation such
employee will not be paid for those days" (G.C. Exh. 46).
Three counterproposals relating to outside activities,
holidays, and vacation pay were characterized by Wood as
containing a mere change of verbiage but did not differ in
substance from the Employer's previous position as set
forth in prior negotiating sessions. Indeed, section 10-01 of
the Employer's counterproposal (G.C. Exh. 47) essentially
set forth the same language and again put the emphasis
upon the prohibition of all outside activities which under-
mined the employees' reputation and standing in the
community in "such a manner as to impair the employees'
effectiveness or credibility in his or her duties." Wood did
not testify as to what arguments he advanced in the
negotiating meeting to counter the Employer's position on
off-time activities, vacation, and holidays. From prior
meetings it would appear that the difference between the
parties with respect to vacations included in particular the
amount of discretion the employer desired to retain in
scheduling vacations. As Gunderson testified, Respon-
dent's position was that it desired to retain discretion with
respect to the scheduling of vacations and Johnston stated
at the negotiating meetings that all news personnel would
take vacations in June, July, and August because of the
availability of a summer intern, but Wood was arguing on
behalf of a vacation option of the employee for January
and February. Other areas of disagreement discussed relate
to the carrying over of vacation time to the next calendar
year. The Union's concern as expressed earlier at the May
28, 1975, meeting was that an employee who had not taken
vacation and who was ill at the end of the year might lose
his vacation time. At that meeting, it is Wood's uncontrad-
icted testimony that Gunderson responded "trust us." The
Employer's original position on vacation time in section 4-
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
03 provided that: "Vacation time or vacation credit shall
not be carried over from one calendar year to another.
Vacation pay shall be calculated on the individual regular
straight time rate of pay." Furthermore, section 4)04
provided: "The vacation schedule shall be arranged by the
employer with due consideration of work load, seniority,
and the convenience of the employees, but the employer
reserves the right to determine the number of employees
who may be on vacation at any one time." With respect to
the carrying over of vacation from one calendar year to
another, at the November 9 meeting, the Union attempted
to add a caveat to the employee's right to carry its vacation
from one year to the next by "conditioning it upon mutual
agreement" between the Employer and the employee.
However, Respondent refused to agree. According to
Wood's uncontradicted testimony he attempted to obtain a
delineation from Respondent as to under what circum-
stances the Employer might be willing to carry over
vacation time. Somehow the conversation, however, turned
to the circumstance of an employee whose day off fell on a
holiday. The Employer then agreed that if a holiday fell
during an employee's vacation time, the employee could
take that day off on another occasion upon "mutual
agreement" of the Employer and employee. Thus, by the
meeting of November 6, no substantial advancement was
made with respect to the areas of outside activities,
holidays, and vacations. 4
At the November 6 meeting, the parties then discussed at
length the Union's proposal on sick leave which it submit-
ted to the Employer on October 9 (secs. 18-04 through 18-
06, G.C. Exh. 35). Wood made specific reference to the
proposal he had submitted to Respondent on October 9,
which at that time Gunderson had promised to study and
make a response. Also, it should be noted that at the
October 9 meeting, Wood had requested Respondent to
check its records for any sick leave that exceeded I day and
Gunderson had responded that the Union would receive
what information it was "legally entitled." At the Novem-
ber 6 meeting, Johnston responded to Wood's reference to
the sick leave proposal by stating that sick leave and the
amount of sick leave to be given to an employee was
discretionary with the Employer. He responded that there
were no records available that would reveal the time that
an employee was out on sick leave. According to Wood,
Johnston stated that if reference to sick leave is put into a
contract it might restrict the amount of sick leave employ-
ees would actually receive, and thus, it would be better to
leave the matter flexible and to operate under the present
practice. 5 Wood testified that he argued that if there were a
problem with respect to delineating the sick leave practice
then the parties ought to identify it and cover it in the
contract. Wood suggested a caveat to the effect that sick
leave beyond a certain amount set forth as a minimum in
the contract will be granted at the discretion of the
Employer.
Respondent took a caucus and, according to Wood,
Johnston returned and stated: "It was not in the manage-
ment's best interest to agree to language that would hinder
producing a newspaper in Leavenworth, Kansas. We are
4 There is little or no testimony by any of the parties with respect to the
arguments exchanged in negotiations relative to the various holiday
proposals.
under a 10,000 circulation." Wood testified that he specifi-
cally asked for the criteria under which sick leave was
granted and Johnston simply responded that it was
discretionary. Furthermore, Johnston stated that there was
no employer information indicative of what amount of sick
leave was given to any particular employee in the past. At
that meeting, an employee member of the union bargaining
committee, Jean Williams, volunteered that she was sick
for I week and was paid for it. Wood conceded on cross-
examination that Johnston did refer to certain factors upon
which he determined the amount of sick leave allowed, but
Wood could not recall any of the factors except perhaps
longevity. Wood conceded that he did not ask for any
specific records but only for information. Johnston testified
that at the November 6 meeting, he was "reluctant" to
reduce sick leave language to a written agreement other
than to set forth in the contract that sick leave was
"discretionary with the employer." He stated that in
response to Wood's request for his criteria he answered
that he based his decision as to whether he would grant
sick leave on the employee's length of employment,
faithfulness, loyalty, and the nature of the illness. Johnston
testified that there were no two identical situations and this
is what he told the Union. Gunderson testified that
Johnston offered to insert in the contract language that sick
leave was discretionary and that he had told Wood he had
searched his records but that those records did not indicate
whether employees were paid for hours worked or hours on
sick leave. Further, Gunderson testified that Johnston
argued that since there was no past abuse of sick leave by
newsroom employees, there was no need to put a sick leave
provision into the newsroom contract. Respondent did not
put its position with respect to sick leave into a written
format or counterproposal. Wood testified on cross-exami-
nation that Johnston refused to even insert language into
the contract which set forth that sick leave would be
discretionary with the Employer. This is much stronger
than his testimony on direct-examination and I find to be
an exaggeration much as his testimony with respect to the
allegation that Respondent refused to define the term
"days" with respect to the grievance procedure discussion.
As noted before, Wood had an admittedly negligible
independent recollection of what took place at the bargain-
ing table and his recollection was far inferior to that of
Johnston and Gunderson. I therefore conclude that Re-
spondent did not refuse to put any reference to sick leave
into the agreed-upon contract.
The parties then discussed the relative merits of a five-
man arbitration panel versus a three-man panel. No
agreement was reached. The Union again insisted that
either a five-man or a one-man concept was appropriate
but not a three-man concept. However, since the Union
was opposed to the concept of the fifth member being
selected by the four members appointed by the parties, the
Union, in effect, was arguing on behalf of a single
arbitrator. Gunderson testified that Respondent had
changed its position from originally proposing a five-man
panel to a three-man panel for economic reasons. Although
he conceded that it was more economical to have a single
s Wood was not specifically contradicted on this point.
658
THE LEAVENWORTH TIMES
arbitrator, Respondent did not agree to that suggestion
because it placed a value upon having some input into the
arbitration panel which overrides arguments on economics.
Wood requested Respondent's panel to discuss the
recognition language but Gunderson had replied that he
had not studied the situation. Recognition had been
discussed, as noted earlier, throughout the 16 bargaining
sessions preceding the 10(b) period and was, as we shall
see, still on the bargaining table well into 1976.
Prior to concluding the meeting the Union submitted its
proposal on holidays and vacations (G.C. Exh. 48) and
Respondent presented the Union with a counterproposal
on bereavement pay (G.C. Exh. 46). Respondent's counter-
proposal still contained a provision that would prevent the
employee who was on the vacation from tacking on
bereavement leave to his vacation time. The parties were
apart as to the extent of the vacation time to be taken, and
as to the issue of vacation carryover. Also, they remained
apart as to the scheduling of vacation time.
Toward the end of the meeting, Wood stated that up to
this point the Union had received no employer proposal
with respect to wages. He pointed out that the original
employer proposal contained no monetary figures, and that
it merely set forth employer discretion with respect to wage
rates. Therefore, Wood asked for a company wage propos-
al. Section 8-01, "salaries," of the Employer's proposal of
February 3 set forth;" "the policy of review and adjust-
ments of any individual salaries at the discretion of the
employer shall continue, and salary determination shall be
based on length of service, proficiency, and demonstrated
professional ability." An adjournment was then taken from
7:30 to 8:30 p.m. for dinner, but, at 8:30 p.m., Gunderson
returned and stated that because he was ill he was
requesting that the parties not meet any further that
evening. Before departing Gunderson asked the Union if
they had any proposals to submit. Wood then submitted to
him the Union's proposal on sick leave. (G.C. Exh. 50).
That counterproposal provided as follows:
Employees who have held situations during the 12
months ending December 31, shall be entitled to 21
days sick leave with pay at the individual straight time
rate. Sick days shall be accumulative from year to year.
Other employees shall be entitled to I day [of] benefit
for each 20-1 (21) days worked. Where the employer
has reason to believe the employee is violating the
purpose of sick leave, he may require a doctor's
certificate to support the sick leave claim.
Wood then remonstrated that the parties should come to
some kind of agreement on things like vacation language.
The parties mutually agreed to meet on December 16 and
17. The meeting was adjourned at 8:45 p.m. Gunderson
testified that at the negotiations of November 6, he
objected to the Union that instead of resolving what
Gunderson considered "gut issues," i.e., the noneconomic
issues, the Union was attempting to get into economic
issues which was contrary to Gunderson's experience. At
the meeting, Gunderson stated that in his opinion, the
parties were going around "the mullberry bush"; i.e., by
attempting to discuss economics instead of resolving other
matters first. Thus, Wood's 11th hour attempt at the
November 6 meeting to prompt Respondent into a discus-
sion of economics was thwarted by Gunderson, and the
final topic touched upon before departure was a noneco-
nomic matter.
Meetings 15 and 16, December 16 and 17, 1975: The
meeting on December 16 commenced at 4:30 and ended at
6:50 p.m. Johnston presented Respondent's proposal on
recognition, section 1-01. (G.C. Exh. 51). Respondent's
proposal read as follows:
The employer hereby recognizes that the Union has
been duly certified and is the exclusive representative
for the purposes of collective-bargaining for those
employees of the newsroom constituting the bargaining
unit defined in the NLRB Case No. 17-RC-7472 dated
August 13, 1974.
Wood testified that the Union rejected that proposed
clause because the Respondent refused to insert into the
contract a proviso on "jurisdiction" of the Union; that is,
the Union wanted a contractual provision which limited
the transfer of unit work to nonunit employees. Wood
testified that at that point he asked Gunderson whether
Gunderson expected the Union to assign work to other
people and thus eliminate the bargaining unit and that
Gunderson responded: "Yes, we expect that." Wood also
testified that Gunderson further stated that the Union
represented "people and not work." Gunderson's and
Johnston's testimony, which appeared to be more assured,
detailed, and based upon independent recollection, indicat-
ed that Wood indeed asked the question but that Gunder-
son started to answer at a midpoint in Wood's question as
to whether Respondent expected to retain the right to
assign work and his answer was given before Wood
finished the question with respect to the elimination of the
bargaining unit. I credit Gunderson's and Johnston's
version of that statement and conclude that Gunderson did
not boldly tell the Union that it expected to gut the
bargaining unit. However, the positions were fairly clear
that the Union would not agree to recognition language
proposed by the Employer on the grounds that Respondent
was seeking the right to retain discretion with respect to the
assignment of unit functions to nonunit employees, includ-
ing managers, wives of managers, and any other person. A
good portion of the meeting, however, was consumed in a
heated debate between Wood and Gunderson over what
actually was said by Gunderson in response to Wood's
question.
Further discussion was held between the parties with
respect to the Union's dues-checkoff proviso to which
Gunderson had raised a question of legality. After a short
caucus between 5:31 and 5:52 p.m., Wood complained
about the lack of progress and the failure of Respondent to
explain, as requested in prior meetings, its lunch period
language, i.e., that the lunch period was to be taken after 6
continuous hours, but as near to the middle of the shift as
possible. Wood testified that the Union withdrew the last
two paragraphs of section 9-10, relating to the reinstate-
ment right of a terminated employee and the amount of
salary that such employee would be entitled. However, the
Union was retaining its first paragraph which provided that
an employee who was designated for an economic layoff
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retained the option of transferring to a previous depart-
ment or job from which he had transferred in the past
rather than to be laid off. The discussion was turned,
however, to the Union's dues-checkoff language and
Gunderson raised a particular question, according to
Wood, as to the word "assessment" and further Gunderson
stated in regard to the Union's recognition and jurisdiction
proposals: "You have a lot of gall to even ask us to respond
to those proposals." Wood's testimony was undenied.
The parties again met the following day from 4:15 to
9:48 p.m. At the meeting Respondent addressed itself to
the subject of leave of absence and management rights by
giving the Union written proposals (G.C. Exhs. 52 and 53).
With respect to leave of absence, Respondent's proposal
set forth that the:
Employer may, at its sole discretion, grant employees
who apply in writing, an unpaid leave of absence not to
exceed 30 days duration; provided however, that such
leave may be extended by mutual agreement between
the employer and the employee involved. All condi-
tions of the leave and return to work must be in writing
and agreed to by both the employer and the employee
before leave is effective. Time on leave of absence does
not count toward pension or other benefits, but such
leave will not constitute a break in service.
Wood responded that the proposal should specifically
exclude sick leave and maternity leave from the 30-day
maximum limitation set forth therein. The Union offered
its counterproposal during the course of the meeting as to
leave of absence incorporating, inter alia, a proviso that
maternity leave and sick leave will not be limited by the 30-
day maximum, and that the employee may continue his
insurance coverage by paying the entire cost of the
insurance for the term of the leave of absence. Respondent
spent some time discussing this counterproposal but ulti-
mately did not agree because of the language excluding
employees on sick leave and maternity leave from the time
limit in the leave-of-absence clause. Ultimately, by the last
meeting of March 22, Respondent did agree to exclude sick
leave and maternity leave from the proviso. Gunderson
testified that during the negotiations he was "apprehensive
about putting something in writing regarding maternity
leave" because of its being the subject matter of litigation
"in the courts." He testified that he did not want to exclude
reference to maternity leave in the contract entirely.
Respondent's management-rights clause proposal, sec-
tion 1-04, read as follows:
The Union acknowledges that [it] is the exclusive
function of the Employer, unless otherwise expressly
modified in this agreement, to:
(a) Maintain order, discipline and efficiency;
(b) Hire, discharge, classify, direct, transfer, layoff,
promote and discipline for cause;
(c) Make and alter from time to time rules and
regulations to be observed by the employees, and
generally to manage the enterprise in which the em-
6 In regard to the G.C. Exh. 54, i.e., the Union's proposal on grievance
procedure, Gunderson testified that in December 1975 the same language
ployer is engaged and to determine the methods and
equipment to be used.
After Wood objected to the management rights clause a
discussion of Respondent's "chain of command" ensued
and Wood testified without contradiction that at that point
Gunderson stated: "Why don't you let the Company take
care of it in any manner it deems proper?" After some
discussion a caucus ensued at the request of Respondent.
Neither Johnston nor Gunderson denied this aspect of
Wood's testimony and I therefore credit Wood.
The Union offered its counterproposal on grievance
procedure (G.C. Exh. 54); recognition-jurisdiction (G.C.
Exh. 55); and lunch periods (G.C. Exh. 56). Wood testified
that Gunderson's reaction was that Respondent wanted to
exclude part-time employees and insisted on the right to
bargain over the exclusion of part-time employees. Fur-
thermore, Gunderson refused to accept the suggestion of
the Union to incorporate the language from the mechanical
unit, i.e., the composing room-pressroom contract as being
too "tortured" with respect to grievance procedure. Ap-
pended to the counterproposal with respect to recognition
in lieu of a jurisdiction clause, the Union set forth language
which provided that the Union recognize the Employer's
past practice of hiring stringers and correspondents, and
that pursuant to past practice their hire will continue and
they will not be covered by the terms of the agreement. It
also provided for the employment of temporary employees
during the vacation season for a period not to exceed 90
days; and further that "the Union recognizes that there has
been a past practice of supervisors from time to time
performing bargaining unit work. This practice may con-
tinue to the extent of the past practice." Finally, "stringers,
correspondents and temporary employees shall not be
employed on work normally performed by regular employ-
ees except as vacation replacements. Bargaining unit work
will not be performed by supervisors to the extent it would
eliminate or displace a regular employee." (G.C. Exh. 55).6
Respondent offered a counterproposal with respect to
recognition (G.C. Exh. 57) which again simply stated:
The employer hereby recognizes that the Union has
been duly certified and is the exclusive representative
for the purposes of collective-bargaining with respect to
rates of pay, wages, hours of employment, or other
conditions of employment for those employees in the
newsroom constituting the bargaining unit defined in
NLRB Case 17-RC-7472 dated October 13, 1974.
No offer was made to assuage the Union's fears with
respect to the dissipation of unit work by assignment to
nonunit employees. Nor did Respondent meet the modi-
fied language of the Union's counterproposal with recogni-
tion of the Employer's past practice of assigning nonunit
work. Wood testified that Gunderson again also refused
recognition of part-time employees and that he, Wood,
insisted on the certification language. Gunderson testified
that Respondent did not object to the Union's desire to
quote "directly the certified unit" but was objecting to the
Union's insistence on a jurisdictional clause. According to
was the source of confusion in the mechanical unit contract. He was
uncontradicted.
660
THE LEAVENWORTH TIMES
Gunderson, supervisors performed work in the past and
Respondent did not want the restriction of a jurisdictional
clause. As for example, an ad manager might be the
Company's main representative at a rotary club function
and therefore might bring back notes and compose a story
instead of a reporter. Neither Johnston nor Gunderson
explained at the meeting nor at the hearing what was
specifically objectionable about the Union's concession to
recognize a continuation of past practice. Disagreement
further persisted with respect to the Union's desire for the
actual certified unit language rather than the Company's
insistence upon referral to the case number, an indirect
incorporation, because of Union's insistence upon some
protective jurisdictional language. The Union made no
further written proposals with respect to recognition after
the December 17 meeting.
The union proposal of December 17 with respect to
recognition was characterized by Gunderson on cross-
examination as a "double recognition language which
borders on a jurisdictional type of approach." Gunderson
conceded that Wood did agree to accept the Company's
proposal with respect to recognition in its section 1-01 if
the Company would agree to drop the phrase "has been
duly certified" but that the Company did not agree to drop
that phrase. Wood conceded on cross-examination that
Gunderson indicated during negotiations that he was
willing to abide by the Board's certification as to the unit
and that the Union is certified as bargaining agent on
behalf of regular part-time employees. However, Wood
interpreted the employer's proposal of exclusion of part-
time employees to exclude in effect "all" part-time employ-
ees. He conceded on cross-examination he could not recall
when or where or under what circumstances Gunderson
specifically wanted to exclude "all" part-time employees,
but that was his conclusion. I cannot find on the basis of
Wood's demonstrably poor powers of recollection that
Gunderson specifically made a demand to exclude all part-
time employees meaning "regular" and casual part-time
employees. However, it is fairly clear that the Employer at
no time made an effort to put the Union's anxiety to rest by
specifically setting forth language to assure them that
regular part-time employees would be included in the unit
other than incorporation of the unit description. The
anxiety of the Union of course was based upon the
Employer's original section 9-01 proposal which read "The
parties agree that all part-time and temporary employees
shall be exempt from the provisions of this agreement."
With respect to the matter of assignment of work, Wood's
testimony was unrebutted that Gunderson stated in negoti-
ations that the right of assignment was necessary in
managing a small newspaper and the Employer wanted
freedom to operate in the most efficient or economical
fashion. As a matter of practice, Respondent, except for a
negligible period of time, employed no regular part-time
employees.
The final subject which involved a great deal of discus-
sion related to the lunch period proposal and the Union's
counterproposal tendered during the meeting (G.C. Exh.
56). The Union's proposal read as follows:
A lunch period of at least thirty (30) minutes shall be
allowed and shall be unpaid time. The lunch period
shall be scheduled as near the middle of the employee's
work period as the work load allows, except the lunch
period on the Saturday night shift may be taken at the
convenience of the work load. Should the Saturday
night shift consists of less than six (6) hours the lunch
period may be waived by mutual agreement.
The Employer's last written counterproposal on lunch
periods was tendered at a meeting on August 14, 1975,
wherein it was provided:
A lunch period of at least 30 minutes shall be allowed
[for] employees who work continuously 6 hours or
more [and ] shall be unpaid time. The lunch period shall
be scheduled as near the middle of the employee's work
period as the work load allows, except the lunch period
on Saturday night may be taken at the convenience of
the office. [G.C. Exh. 28.]
Gunderson testified that the chief problem which caused
failure of agreement between the parties as to lunch periods
was the Union's failure, in his words, "to comprehend the
Respondent's problems with respect to deadlines." That is
to say the newsroom operation operated under a fluctuat-
ing deadline system and ran on a nonshift concept by
employees who did not work an 8-hour day. According to
Respondent the Union was bargaining along the lines of a
lunch period proviso as set forth in the mechanical
contract. However, the type of deadlines in the composing
room were quite foreign to the deadlines encountered in
the newsroom operation. Again the key note of Respon-
dent's position on this point was the widest latitude of
discretion for the Employer.
After a brief flareup of tempers during this meeting, a
brief caucus was called by the Employer in order to let
Johnston calm down a bit; and, upon the return of the
Employer, Gunderson asked for a union counterproposal
on leave of absence in response to which the Union
submitted to the Employer its counterproposal of Decem-
ber 17 regarding leave of absence. (G.C. Exh. 58). Materni-
ty and sick leave were again excluded. Gunderson suggest-
ed adjourning the meeting that evening at 9:48 p.m., in
view of the unpleasantries that were exhibited by both
Wood and Johnston toward one another. However, before
adjourning Wood requested that Respondent check its
records with respect to the employment of a summer intern
and in particular as to how many days the intern worked
during the course of the year, and also whether the amount
of days exceeded 90 days for the last two summers.
Meeting 17, January 27, 1976: This meeting lasted from
4:15 to 10:39 p.m. and essentially the same parties were in
attendance with the exception of the addition of Donald
Berg, an attorney and industrial relations consultant
employed by Thomson Newspapers. Berg attended chiefly
as an observer at the request of Gunderson. The following
subject matters were again discussed without agreement:
Leave of absence; management rights; section 20-01 of the
union proposal which set forth that the only parties to the
contract were the Employer and the Union and that
approval of the agreement by the International Union did
not render it a party thereto; and section 20-02 relating to
the possible nullification of any section of the agreement
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by "any Federal law, rule or regulation pursuant thereto."
Wood testified without contradiction that he again, futiley,
asked Respondent for an explanation of the meaning of its
lunch period proposal in regard to the 6-hour requirement
vis-a-vis the middle of the shift allowance. Specifically,
Wood testified without contradiction that Gunderson
suggested that lunch periods not be included in the
contract. The Union presented a proposal on struck work
and a proviso setting forth the employee's right to honor a
picket line of nonunit employees (G.C. Exh. 60), which is
essentially the same provision as found in the mechanical
contract, but no agreement was reached.
The Union also submitted counterproposals with respect
to sections 9-01 through 9-04 and 9-06 through 9-08 of the
Union's original proposal. Section 9-06 had already been
agreed to, i.e., notice time for discharge, and 9-08 was in
effect withdrawn; i.e., a limitation on the authority of the
managing editor to appoint heads of departments from
outside the department. Section 9-01 dealt with the
authority and control of the newsroom as it was vested in
the Employer and his designated supervisor, with a caveat,
however, that all employees must be advised as to the
identity of the supervisors. Section 9-02 set forth that the
authority of the Employer or his supervisor shall be
exercised in a nondiscriminatory manner "under the law
and this agreement"; section 9-03 set forth that "all
employees shall perform such work as the Employer or his
designated supervisor may direct"; and section 9-04 set
forth that "the employer or his designated supervisor shall
be the judge of an employee's competency. However, the
fairness of this judgment may be subject to the grievance
procedure set forth elsewhere in this agreement." Also
discussed without agreement was the Union's proviso in its
contract relative to protection of "priority" of employees;
specifically, whether employees' priority would be protect-
ed in situations of illness, attendance at an ITU seminar,
school, or during residency at the ITU Convalescent
Printers Home. In this regard, Johnston took the position
that such language was not necessary because the eventual-
ity was unlikely to occur and that the Union was just
"garbaging up" the negotiations. At this point Wood
stated: "We have our proposals on the table and we will
negotiate each, item by item." Gunderson responded:
"Let's negotiate item by item and start with number one
and go straight through." Wood thereupon stated: "That is
not the way to do things. You do not go item by item, you
move around in the contract and try to find places to
move."
With respect to the lunch period again the Employer was
opting for the greatest flexibility and was contending that
the Union was refusing to abandon its shift concept of
operations. Thus, Respondent took the position that a split
shift created a problem and that there would be no need for
a lunch period whereas the Union's proposal might result
in a lunch period at 10 a.m. or 8 p.m. Respondent again
refused to agree to recognition because it contended that
the Union was insisting on jurisdictional language which
7 With respect to the January 27 meeting, Berg testified on cross-
examination that Johnston stated orally that the Employer's wage proposal
implied the current wages received by the newsroom employees. The
Union's original proposal calls for a wage increase of 50 percent above the
highest paid employee in the unit and apparently 100 percent above the
would be a hindrance upon its flexibility of operation. As
to the picket line clause the Employer took the position
that there is no need for language of such in the contract
inasmuch as those honoring the picket line would be "in
the same shoes" as the original strikers under the law.
Also raised at this meeting was the issue of an annual
wage review and merit salary increase for full-time employ-
ees. Since 1971, the Employer has engaged in a wage and
salary review of employees outside of the composing room
and pressroom, which is covered by a collective-bargaining
agreement, for individual employees employed on a full-
time basis, and as a result has granted certain merit wage
and salary increases to those employees usually in January
and July of each year. This was done during the preceding
January and July with the express waiver of the Union of
any objections to the continuation of that practice. At the
January 27 meeting, Wood raised the question that
inasmuch as it was the end of January why had no merit
raises been given to employees in the newsroom unit
whereas in fact other employees not covered by the
mechanical unit had been given their periodic merit wage
and salary increases pursuant to the periodic wage and
salary review. Wood reminded Respondent of that policy
and stated that the Union expected the policy to continue.
Wood testified that Johnston responded that the Employer
had a proposal on the table in relation to wages and that it
was within the Employer's discretion whether to review
wages. Wood stated that he then insisted upon negotiation
on wages. Wood's request then led to a discussion of
management rights and company rules. Wood testified that
it was the Union's demand to negotiate on all rules that
may affect the working conditions of employees. Gunder-
son, whom I credit, testified that indeed Johnston's
response was that the Company had a wage proposal on
the table "that implied current salaries," to which Wood
responded, "We reject that." Apparently, at that point
Wood did not ask Johnston what he meant by his
statement that the Company had a proposal on wages on
the table. The meeting was adjourned at the suggestion of
Gunderson about 10:39 p.m.7
Meeting 18, January 28, 1976: The following day,
January 28, negotiations recommenced at 4 p.m. and lasted
until 10:36 p.m. Wood testified that he gave Respondent a
letter consisting of the Union's statement of nonobjection
to the continuation and implementation of the Employer's
practice of wage and salary reviews and the granting of
merit wage increases to all full-time employees in the
newsroom unit (G.C. Exh. 61). Wood testified that he
asked Johnston if there were any problem but got no
response. Neither Berg, who testified as to the meeting on
behalf of Respondent, nor Johnston rebutted this testimo-
ny.8
Bereavement leave was again discussed and Gunderson
again took the position that he couldn't abide by the earlier
tentative agreement in view of the Union's interpretation
that an employee on vacation would be entitled to tack on
bereavement leave to his vacation time if a death occurred
highest paid reporter. Wood testified that he was unaware of what the wage
rates were of the newsroom employees.
8 Objections to cumulative testimony, particularly as to matters not in
issue, were sustained by the Administrative Law Judge but as to this point
no testimony was offered by Respondent.
662
THE LEAVENWORTH TIMES
therein. The lunch proposal was again discussed. Berg
testified without contradiction that Wood expressed a
failure to understand the Employer's position with respect
to the requirement of 6 continuous hours prerequisite for a
lunch period.
The Union's proposal under section 15-06 was discussed.
That proposal's proviso read: "Any new benefits offered to
employees of the Leavenworth Times or Thomson News-
papers shall be granted to newsroom employees, with
consent by the union membership." The Employer op-
posed any reference to parties other than Leavenworth
Times and Local 45. Berg testified that Wood told an
unrelated story about his experience at Petersburg, Virgin-
ia, with respect to the inability to obtain a better insurance
carrier because of alleged intermingling of directors of the
newspaper and the insurance company. Wood testified that
he pointed out that section 15-06 provided for its incorpo-
ration into the employees' insurance plan and any im-
provement contained in the Thomson master plan and was
necessary because of the proposed zipper clause. Again
because of Wood's earlier noted deficiencies as a witness
and in view of Berg's much more precise recollection and
certainty of demeanor, I credit Berg's recollection as
opposed to Wood. According to Berg, at that point in the
discussion Wood's narrative of his Petersburg, Virginia,
experience led to an argument wherein Wood called
Gunderson a liar and French told Johnston to "shut up,"
which resulted in the suggestion of a caucus by Johnston in
order to evaluate the Union's proposal on bereavement.
The parties returned after the caucus but continued to talk
in whispered tones about travel experiences. Wood in
particular narrated the difficulties and vicissitudes of
traveling.
During the course of the meeting Wood again suggested
language excluding maternity leave from the proviso of
Respondent relating to the limitation of leave of absence,
but Gunderson stated that the issue of maternity leave was
in the courts and in a "state of flux," whereupon Wood
suggested using language which set forth that maternity
leave and illness were not covered by the agreement.
Gunderson then responded that he would entertain a
counterproposal. Before the meeting ended, Wood submit-
ted to the Respondent a letter requesting information on
summer intern Bryant Biggs (G.C. Exh. 63). Johnston took
the position that Biggs was a summer intern and excluded
from the unit and the information requested was not
relevant. Biggs had worked two summers in 1974 and 1975.
Wood asked if Biggs would again work in 1976, and
Johnston responded that no decision had been made.
Wood reduced his request to a letter (G.C. Exh. 63)
wherein Wood indicated that it was necessary in relation to
the Union's proposal "for this employment period not to
exceed 90 days and your position that 90 days is not long
enough." The information requested was the period of
employment of Biggs during the previous two summers.
Johnston responded by letter dated January 28 given
during the course of that meeting, wherein it was recited
that Biggs was a full-time student and that Biggs was not,
therefore, within the bargaining unit inasmuch as "students
do not have the substantial and continuing intent in the
employment condition."
Finally, the vacation proposals were discussed and the
Union suggested incorporation of the mechanical contract
language, but Gunderson refused, contending that the
Employer was not willing to reduce "everything to writing"
and stated "when you reduce it to contract language it is
much more difficult." Gunderson admitted stating during
the course of the meeting: "When you organize a small
newspaper or a small unit the employer is unwilling to
reduce everything to contract."
During the course of the meeting other areas were
discussed with no agreement such as the savings clause and
the impact of nullifying legislation, the Employer counter-
proposal on leave of absence, and the protection of
"priority" in different situations, such as when an employee
is on union business or military leave.
Meeting 19, February 26, 1976: The parties at this
meeting remained essentially the same with the exception
of an augmentation of the Union's bargaining team by the
presence of a mechanical unit employee, Gardner, and
International Union Representative Jack Boris.
Respondent commenced the meeting by submitting a
written counterproposal covering certain areas (G.C. Exh.
70). The written counterproposal with respect to the
savings clause was directed to proposals and counterpropo-
sals of the parties submitted at the meeting of January 28.
It set forth as follows: "In the event that any section or
sections are held to be in violation of the law, then such
section or sections shall become null and void to the extent
provided by law consistent with the rights of the parties."
Boris objected to the clause and complained about the
phrase "consistent with the rights of the parties." Boris
stated that he did not know the meaning of that phrase
since the Employer "has all the rights." It is not clear
whether Respondent gave any explanation in response.
The second aspect of Respondent's counterproposal
dealt with section 11-01, "holidays," of the Union's
original proposal. It offered consideration for the with-
drawal of the Union's sections 18-03 through 18-05 and
section 18-24 (first seven paragraphs). These sections again
referred to the protection of loss of "situation or priority
standing" under certain situations such as, for example,
attendance at the ITU training center in Colorado, illness,
activity on behalf of the ITU, and admission into the ITU
printers home (convalescent home). Also it related to the
proposal that employees be granted leave of absence upon
request and reinstatement upon termination of leave of
absence. In return for the withdrawal of certain union
reproposals, Respondent offered to modify its previous
position with respect to priority protection by adding the
following language: "Sick leave shall not be covered by this
provision; maternity leave shall be covered by statutory
law." Respondent's earlier position, as set forth in its
counterproposal of January 28, was that in return for
withdrawal of the 18 series cited above Respondent would
offer section 11-01, which again incorporated an earlier
"leave of absence" proposal of December 17 with an
additional language to the effect that: "The employer may
continue group insurance coverage by paying the entire
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cost of the insurance for the term of the leave of absence
subject to insurance carrier conditions." 9
The third portion of Respondent's counterproposal of
February 26 dealt with the distribution of cost of an
arbitration transcript. It set forth that if either party desires
not to share in the cost of the transcript then that party
shall not have access to the transcript without written
permission of the other party.
In addition to Boris' objection to the savings clause, the
Union pointed out that its proposal provided that nullify-
ing legislation only affect the particular portion of the
section of the contract, whereas the Employer's clause
regarding legislative impact would affect the entire section.
With respect to transcription cost, the Union submitted a
counterproposal which stated: "The employer and the
Union should share equally in the cost, fees and expenses
of an arbitrator. If either party desires a copy of the
transcript, such party shall pay for their own copy" (G.C.
Exh. 74). Wood simply testified that there was no agree-
ment, although this matter was discussed. According to
Berg's uncontradicted testimony, Boris appeared to have
been taking a position that if the arbitrator had possessed a
copy of the transcript then, in effect, both parties would
have assumed the cost of the arbitrator's copy, and
therefore, either party would have the right to inspect the
arbitrator's copy. According to Berg, Gunderson replied
that that was not the issue but rather the issue was
"whether or not a party had the right to inspect the copy of
the transcript where only the other party paid the entire
cost of the transcript." A caucus was taken and a confusing
discussion ensued over interpretation of the American
Arbitration Association's rules. No agreement was
reached. At this point, according to Berg's uncontradicted
testimony, Wood again referred to the meeting in January
and accused the Company of accusing the Union of
"garbaging up" the negotiations. Johnston tried to explain
that he used the word as a verb such as to "clutter." At that
point, Wood stated that the Company was proposing its
language with respect to the cost of distribution of the
arbitration transcript so that it could hide any change it
might desire in the transcript. Gunderson did not respond
to that accusation.
Wood testified very cryptically that on February 26 the
grievance procedure was again discussed, but no agreement
was reached. No testimony was offered by Respondent as
to what was discussed with respect to the substance of the
grievance procedure.
The topic of Respondent's sick leave policy occupied a
good deal of discussion at this meeting. Boris asked
Respondent to define its policy. According to Berg,
Gunderson responded that it was "discretionary" where-
upon Boris objected that there was no standard. Again,
according to Boris, Gunderson responded that there were
standards and at that point Johnston enumerated them.
According to Berg, Johnston stated that the criteria that
the Employer used in the past were seniority, length of
service, ability, and past history of sick leave and how much
pay was granted. At that point, according to Berg, Boris
9 With respect to the reference in the counterproposals regarding
insurance, it should be noted that as of January 28 there was no
counterproposal by the Company on the substance of an insurance program
objected and Gunderson attempted to explain that Re-
spondent effectuates its sick leave policy on an ad hoc
basis. Boris' answer to that was "we're going to have it."
Wood testified that Gunderson refused to reduce its sick
leave policy to writing, and stated that "until you under-
stand that, we're going to have problems." This statement,
which I credit, is in accord with Respondent's stand
throughout negotiations that at most it would set forth in
the contract that sick leave was to be accorded pursuant to
the discretion of the Employer, but that anything beyond
that was too difficult to reduce to writing because of the
nebulous nature of its ad hoc decision making process.
At this meeting, Wood reduced to writing, in the form of
a written letter to Johnston, the following request: "We
hereby request your duration of sick [sic ] leave with pay for
each employee over the past 2 years and the amount of
time lost without pay during this time. We wish to know
the reasons for granting pay or not granting pay" (G.C.
Exh. 71).
Another topic discussed at length was the Union's
proposal with respect to lunch periods. After the discus-
sion, Respondent took a caucus and returned and submit-
ted a counterproposal on lunch periods (G.C. Exh. 72). It
set forth as follows:
A lunch period of at least 30 minutes shall be allowed
an employee who works continuously 4 hours or more
and shall be unpaid time. The lunch period shall be
taken as the work load allows especially on Saturday
night."
The Union submitted a counterproposal (G.C. Exh. 73). It
set forth as follows:
A lunch period of at least (30) minutes shall be allowed
and shall be unpaid time. The lunch period shall be
scheduled as near the middle of the employer's work
schedule as the work load allowis]; provided an
employee who works 4 hours or less on a particular day
shall receive no lunch period by mutual agreement."
The record is not clear why an agreement was not reached.
Presumably, the Union's position was that it objected to
the word "continuously" as it had in the past and that its
position was that an employee was entitled to a lunch hour
as long as he worked 5 or more hours. Thus, a lunch could
be taken in the middle of a 5-hour shift, that is, after 2-1/2
hours. Respondent's position apparently was that an
employee must work continuously for 4 hours before he
shall be granted a lunch period. In the past meetings,
Wood had testified that he had difficulty in obtaining a
definition from Respondent as to the word "continuously"
and, indeed, this is what prompted the current exchange of
counterproposals. Wood's testimony is not clear, however,
that at this meeting Respondent refused to explain the
meaning of its current counterproposal. In any event, no
agreement was reached.
Prior to taking a dinner break at 7:45 p.m., the Union
submitted its written letter regarding nonobjection to a
or pension plan. Also, there was no new union proposal on January 27 or
January 28 with respect to a pension plan or insurance.
664
THE LEAVENWORTH TIMES
wage increase to Respondent (G.C. Exh. 75). This letter
referred to the past written request of January 28, wherein
it waived objections to the implementation of a wage
increase for all full-time newsroom employees. The letter
also reflected that wages had been put into effect every 6
months for several years, and that the latest increase was
due "in early January." The letter concluded by stating
"should the company continue to withhold this increase,
the Union will have no alternative but to view it as unfair
labor practice." It is conceded by Respondent that a wage
review was made in January of all employees not covered
by the mechanical contract, and that there were granted
selective merit wage increases. Furthermore, there is no
issue that employees in the newsroom would have been
granted merit increases on a selective basis had it not been
for the negotiations. After the dinner break the parties
resumed bargaining about 8:30 p.m., and discussed the
distribution of transcript cost as referred to above. They
also discussed the topic of sick leave in relation to
vacation; i.e., the Union took the position that an employ-
ee on vacation who becomes ill should be able to tack onto
his vacation pay, sick leave pay. The Respondent refused.
Johnston stated "an employee cannot come off vacation
and go on sick leave."
Wood then turned to the topic of the December 17 union
proposal on recognition and asked specifically, what the
problem was, if any, with respect to excluding stringers and
correspondents from the coverage of the contract.
According to Wood, Gunderson responded that they
were already excluded and Wood stated that the Board's
certification was silent as to stringers and correspondents.
Gunderson, however, repeated that there was no need to
refer to their exclusion. Gunderson then referred to the
section 9-01 with respect to the exclusion of part-time
employees, and Wood stated that he responded to Gunder-
son by stating that the Union had already rejected the
Employer's proposal to exclude part-time employees. A
short caucus was taken by Respondent and upon their
return, Wood requested information on Bryant Biggs.
Johnston responded that information as to Biggs was not
pertinent because Biggs was not in the unit whereupon the
parties agreed to adjourn and to meet on March 22.
Meeting 20, March 22, 1976: Essentially, the same parties
were present except for the absence of Gardner and Boris.
The meeting lasted from 4 until 11:10 p.m. The meeting
commenced with a presentation by Johnston to Wood of a
written response to Wood's February 26 letter requesting
sick leave information (G.C. Exh. 76). Therein Johnston
responded: "As stated at the bargaining table previously
there is no distinction between hours worked and sick leave
payments on company payroll records, so as to answer
your inquiry." Wood asked whether anyone at the bargain-
ing table recalled ever being off on sick leave, and Mrs.
Williams, a member of the union team, indicated that she
had been off at one time for an entire week because of
illness and did receive pay. At one time Johnston had
indicated that there were instances of individuals being
paid for I-day absences because of illness but as to
anything beyond that he had no recollection. Apparently,
Mrs. Williams' absence occurred 5 to 6 years earlier.
Johnston recalled that there were two instances where
employees were on extended sick leave, one of which
involved Mary Combs, but he was not certain. Wood asked
Johnston to check his records as to the interruption of
employment of Combs to determine whether that interrup-
tion correlated in time to her illness. Johnston agreed to do
so. He had said that Combs had been employed 10 years
and the search might have to encompass 10 years. Wood,
however, asked Johnston to go back 2 years from that
point. It should be noted that the Union never asked for
specific records but only information. Johnston agreed to
search his records to see if there was any interruption in
Combs' work record and to see if during a period of time
she did not receive compensation which might correlate to
the time of her illness. However, Johnston still reminded
Wood that despite what the records would indicate, the
Employer's policy was still the same; that is, to look at each
situation from a discretionary aspect and it was not likely
that any two situations would be the same. Johnston
testified that subsequently he did make a search of records
going back 6 years and that he had assembled records
preparatory to a meeting that was to be held on April 6 but
was subsequently canceled. Johnston testified that he
researched the "payroll sheet" which does not reveal
whether or not an employee was out on sick leave during
the period in which he or she was compensated. However,
he conceded on cross-examination that he did not research
the timecards because "I had no reason to believe they
were marked sick." The timecards had not been in use
prior to March 1975.
Therefore, whatever data was revealed on the timecards
could only reflect a period of about I year prior to the
March 22 meeting. However, Johnston was completely
ignorant of what information could be obtained from
timecards and he merely assumed that they would not
reflect whether an employee was compensated while they
were out on sick leave.
According to Berg, Gunderson reiterated the Employer's
discretionary sick leave policy and stated that it was only a
problem with respect to inserting it into the contract
because of the difficulty of reducing to contract language
standards which were relied upon by the Employer, and
which varied and were determined on a case-to-case basis.
Thus, up to this point the Employer offered no counterpro-
posals which made any attempt to reduce the criteria to
writing.
Wood asked Respondent as to what its intentions were
with respect to the selective wage increases which were due
to newsroom employees in early January. He received the
response that to acquiesce to merit wage increases would
have the effect of altering the Company's wage proposal;
i.e., the current wages being paid. Respondent then
requested a caucus at 4:48 p.m., returned at 6:02 p.m., and
presented a "wage proposal" (G.C. Exh. 77). Its wage
proposal, section 8-01, read as follows:
The policy of review and the adjustments of individual
salaries at the discretion of the employer shall continue,
and salary determination will be based on length of
service, proficiency, and demonstrated professional
ability, provided that no full-time employee including
new hires recognized as included in the bargain unit as
defined [in] NLRB Case No. 17-RC-7472, dated
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 13, 1974, shall receive less than a weekly wage
specified in the following categories:
News/Editor
Editor/Reporter -----
Editor/Compiler -----
Photographer/Reporter - ----
Reporter -----
Compiler/Reporter -----
News Assistant -----
Any change in the wage category for each employee
shall be determined by the employer based on the most
suitable category as reflected by the employee's assign-
ments over the preceding 6 months.
Wood raised several questions concerning this "wage
proposal," particularly as to whether each category was
meant to encompass each one of the then seven employees
in the newsroom unit. Johnston explained that the number
of categories set forth was merely coincidence and that
some categories would not necessarily have been extant at
that point, as for example, "news assistant." As Berg
testified, Johnston explained that these categories were to
be used as a way of "moving toward the establishment of
framework from a salary or a wage proposal." Berg further
testified that, in response to Wood's questions concerning
who would be classified as a reporter, Johnston responded:
"Slotting individuals is judgmental by the employer" and
that he, Johnston, would have to consult Anderson as to
who would be placed in that category. According to Berg,
Wood asked Johnston what was meant by the blanks
following each classification, and Johnston responded that
they were initial steps to a framework and conceivably to
be steps based on length of service. According to Berg,
Wood also asked about the variations of pay between the
senior employee versus the new employee, and Johnston
responded that "this would provide for steps to be
"negotiated" and that the proposal implied the "current
wage scales [then] in effect at the Leavenworth Times."
The discussion terminated. Berg was corroborated by
Gunderson, who testified that Johnston explained that the
Company's proposal on the table was the "current wage
scale" which was implied therein, and that Johnston stated
that wages and fringe benefits were to be the subject of
bargaining. According to Berg, Johnston stated that he had
moved by effecting two wage and salary reviews and
selective merit increases in 1975, but that the Union
remained at the same wage proposal as contained in the
original contract proposal. On the other hand, Wood's
recollection was that when presented with the March 22
"wage proposal" he objected that the language of the
proposal left wages at the discretion of the Employer,
particularly in view of the blanks following each of the job
classifications. Wood testified that in response to his
objection, Johnston stated that salaries were to be deter-
mined at the discretion of the Employer. Wood testified
that he asked Johnston to fill in the blanks and also to
implement the periodic wage and salary review and merit
increases, and that Johnston responded: "The fact that we
to Subsequently, in June 1976, Respondent notified the Union of a
proposed wage increase which did go into effect with the July 1976 payroll.
are bargaining has [preempted] our willingness to become
compassionate with the people ... what you are counting
on is that we are going to keep sweetening the kitty, and
when we get down to the end you're are going to want us to
[sweeten ] it some more." Wood further testified that when
he asked for a direct answer as to whether the wage and
salary review and merit increases were going to be put into
effect, he received no answer except that Gunderson feft
the room upon a short recess and returned and gave no
further answer. I do not credit Wood's testimony that
Johnston insisted that wages would be left to the discretion
of the Employer. The proposal on its face clearly indicates
a specification for a minimum weekly wage for each
specific category. However, what the proposal clearly does
indicate is that the Employer shall have discretion to
review and institute wage increases beyond that minimum.
Therefore, I credit Berg and Gunderson that Respondent
was not taking a position that the minimum rates were to
be left blank only to be filled in at the discretion of
Respondent. However, it is conceded that, with respect to
the implementation of the January wage review, which in
fact had been performed by Johnston earlier in January,
and specific figures for selective merit wage increases for
full-time employees which had been reached, they would
not be implemented so as not to "[sweeten] the pot," and,
further, Wood conceded that Johnston did state that "the
fact that we are bargaining has [preempted] our willingness
to be compassionate." It is Berg's uncontradicted testimo-
ny that at the March 22 meeting Johnston stated that
Respondent's total dollar package would include wages
and fringe benefits, that they were all tied together and
would be considered "economic," that Johnston reminded
the Union at the March 22 meeting that the Union still bad
on the table its original 1974 wage proposal, and that
subsequent to that wage proposal Respondent had put into
effect two merit wage increases.' 0 Prior to this March 22,
1976, meeting, Johnston had consulted with Berg with
respect to the implementation of the two earlier wage
increases. Johnston also wanted to put in effect the January
1976 wage review and merit increases and he again
consulted with Berg as to whether or not he should do so.
However, Berg advised him not to put in effect the January
1976 wage increases for the newsroom employees, and
instead advised that Respondent make its wage proposal
"to stay at the current level and see if this would push the
negotiations forward." Berg testified that this advice was
based on the fact that he wanted to see the parties "move
forward and end up with a meaningful collective-bargain-
ing agreement," and that he thought that this was one way
which would put some impetus toward that goal.
The discussion turned to other matters. Gunderson noted
that the Union's dues-checkoff provision was still on the
table. Wood responded affirmatively, but apparently no
agreement was reached, although it appears that Gunder-
son withdrew his doubts as to the legality of the clause.
Respondent presented a counterproposal on lunches and
leave of absence (G.C. Exh. 78). It provided in part that an
employee would not be required to work continuously for 6
hours without a lunch period. It also provided in part for
666
THE LEAVENWORTH TIMES
the exclusion of sick leave and maternity leave from the
provisions of the contract with respect to leave of absence,
thus not limiting sick leave and maternity leave to the 30-
day maximum. With respect to the lunch period several
more proposals and counterproposals were entertained and
the Union finally accepted Respondent's last counterpro-
posal (G.C. Exh. 81). That proposal provides "30 minutes
of unpaid time for an employee who works continuously
for 4 hours or more whereas an employee who works less
than 4 hours shall receive a lunch period at request only
upon approval by the employer," and finally that "the
lunch period would be taken as the workload allows but
[in] no instance shall an employee be required to work for
6 hours without a lunch period." With respect to the leave-
of-absence clause, Respondent agreed to accept the
Union's counterproposal on leave of absence and to
bargain later with respect to the 18-03 through 18-05
series.
The previous discussion relative to the distribution of
transcript cost was repeated and no agreement was
reached.
The parties mutually agreed to meet again on April 6,
1976. Thus, during the 10(b) period the only agreement
achieved by the parties were those on March 22, relative to
the lunch period and the leave-of-absence clause. On April
2, 1976, in Case 17-RD-608, employee Stephen L. Siga-
foose filed a petition for decertification with the Regional
Director. Accordingly, Respondent canceled the scheduled
meeting for April 6 and refused to meet thereafter.
Willets Conversations
William G. Willets was employed at the Leavenworth
Times in October 1974 in the newsroom unit. When he was
hired he was told by Managing Editor Anderson that merit
raises were due the following January. Therefore, he
expected a raise in January. In January 1975, he spoke to
Anderson and asked him if he were to receive a merit wage
increase and was told that wage increases were tied up in
union negotiations. In January 1976, he received no wage
increase, and therefore, he approached Anderson and
asked him why he did not get a wage increase that January.
Anderson told him, according to his unrebutted testimony,
that salary and wage increases were not given to the
newsroom unit employees at that time because Respondent
was engaged in negotiations for a contract with the Union
and wages were a topic for negotiations. Furthermore,
Anderson told him that any raises given to employees
would be a starting point for the Union in negotiations for
the ultimate contract that was to be signed, and that the
Union up to that point had failed to make "any movement
in economics." There was no mention at that time of voting
out the Union. In February, Willets engaged in another
conversation with Anderson in regard to his salary. His
memory was admittedly "foggy" but he did testify that he
had been promised a wage increase in October to be given
around the first of the year if he did a good job, but that in
February Anderson told him that he would not get a merit
increase because of the union negotiations. Willets again
approached Anderson in April 1976. This occurred subse-
quent to the filing of the decertification petition. Both
Willets and Anderson stated in the conversation that they
would both be glad when the election was over with "one
way or the other," The conversation also occurred after the
filing of the unfair labor practice charge in Case 17-CA-
7077. On direct examination, Willets testified that Ander-
son stated that he was aware of the decertification petition,
that Anderson expected that a vote would be taken on
whether or not to have the Union as a bargaining agent,
and that he expected that the Union would be defeated.
Willets then testified that the two of them discussed salaries
and that Anderson stated that when he had the opportunity
he would be giving salary increases "to me and Steve
Sigafoose, the largest on the staff." On cross-examination
Willets testified that he stated to Anderson that he, Willets,
would be glad when the decertification petition was "over
with" so he could negotiate directly with Anderson about
raises, whereupon Anderson stated that it was improper for
him, Anderson, to talk about raises with Willets because
that could be construed as an unfair labor practice. Willets
then clarified his testimony on direct examination by
stating that at that point Anderson told him that he and
Sigafoose would "probably be getting increases if and
when any were granted 'based on job performance.' "
Thereupon Willets asked how large the increases would be
and Anderson responded that it would "not be proper for
the managing editor to talk to employees about how big a
raise they would get." Willets conceded he never asked
when he would receive a wage increase but stated that "it
was implied" that they would be received "after the
election if the Union was defeated." On further questioning
he changed his testimony to state that it was "implied" that
raises would be given after the "Union negotiations" were
completed and "not necessarily after an election." This is
the extent of testimony that the General Counsel has
submitted in support of its contention that Respondent
"solicited" and "encouraged" the decertification petition.
This contention, however, was not alleged as a violation in
the complaint. It was, however, argued by General Counsel
to be evidence of the Employer's state of mind with respect
to collective bargaining and, therefore, evidence of surface
bargaining.
Case 17-CA-7100
Factual Background
The complaint alleges that on or about March 13, 1976,
at his home, Johnston did inform an employee that his
starting wages might be higher if he did not join the Union,
and further that he did tell an employee that if he did not
join the Union he would be subject to harassment from
other employees. This allegation relates to a conversation
in the home of Mr. Johnston with an applicant for a
position as a pressroom employee at The Leavenworth
Times. The pressroom employees have been represented
for a period of many years and covered by successive
contracts, the current one of which does not expire until
1977. Respondent moved to sever this complaint on the
grounds that it related to a unit other than the newsroom
unit. General Counsel, however, has taken the position that
although it relates to an employee in a unit other than the
newsroom unit it is indicative of Respondent's mental
status vis-a-vis the Union and, therefore, it is material to the
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolution of the bad-faith bargaining allegations in the
companion case. Respondent's motion to sever was denied.
Employee Mika Fowler testified that he entered on duty
on March 15, 1976, as a pressroom apprentice. Prior to his
entering on duty he engaged in a conversation with
Johnston on Saturday, March 13, at Johnston's home upon
invitation. The conversation was characterized without
contradiction as one of Johnston's giving the new applicant
fatherly advice. It lasted for approximately 45 minutes and
covered a description of the job for which the applicant
was hired, the amount of salary he would be paid, and the
insurance coverage. Fowler testified that Johnston told him
that Kansas was a "right to work state" and that he was not
required to join the Union. However, Johnston did tell him
that the employees in the pressroom were union members
and had boasted that if any employee refused to join the
Union he would not last more than a week. Therefore, he
told Fowler that he could expect to be subjected to verbal
harassment by fellow employees should he decide not to
join the Union.
Johnston further told Fowler that The Leavenworth
Times had recently converted to the coldtype process.
Inasmuch as Fowler had had experience in that process
which exceeded the experience of the journeymen-press-
men then employed at Leavenworth Times, some tact
would be required by Fowler in his relations with fellow
employees; that is, Fowler was told not to "come on too
strong." Furthermore, Johnston told Fowler that there had
been some opposition by the Union to his being hired; that
is, the Union had been suggesting that Respondent transfer
a composing room employee to fill the opening which was
caused by the retirement of a pressman. Fowler testified
that he was advised by Johnston that under the composing
room and pressroom contract he would start off in the first
year of a 4-year apprenticeship program whereunder he
would get 60 percent of the journeymen's rate, and that the
only acceleration under the contract would be dependent
upon a recommendation of the joint apprenticeship com-
mittee pursuant to provisions in the composing room-
pressroom contract. However, Fowler also testified that
Johnston told him that if he did not join the Union that it
was possible that he could receive a raise in 2 weeks' time if
Johnston liked the nature of his work. He further testified
that Johnston told him about the existence of the Metro-
politan Insurance coverage of nonunion employees, but
did not mention the Blue Cross coverage of union employ-
ees. Ultimately, Fowler did not subscribe to either pro-
gram. As a matter of fact he was not eligible for the
Metropolitan Insurance program but he testified that he
was not made aware of his ineligibility.
Johnston testified that he indeed had such a conversation
with Fowler but that he did not suggest to Fowler that he
could receive a raise in 2 weeks if he did not join the
Union. Furthermore, Johnston testified that he told Fowler
that Respondent maintained two hospitalization insurance
programs. Employees not represented by union contract
were eligible for the Metropolitan Insurance program, and
Blue Cross and Blue Shield extended to employees covered
by the union contract. Johnston testified that he specifical-
ly told Fowler that he would be under the jurisdiction of
the Union. Further, he admitted telling him that his
advancement was subject to review by the joint apprentice-
ship committee but denied telling him that he could
advance I or 2 weeks if he did not join the Union. Johnston
denied telling Fowler that he had an option for insurance
plans. Johnston explained that the reason that he discussed
the existence of two insurance plans was that Fowler's
brother had been employed and was eligible for the
Metropolitan Insurance plan and, therefore, he wanted to
make certain that Fowler was aware that the insurance
coverage that his brother had would not be applicable to
him so that there would be no confusion on his part as to
which insurance plan he was eligible for. As a matter of
fact Fowler subsequently joined the Union but testified
that he was subject to no harassment.
The resolution of credibility in this particular conversa-
tion becomes quite thorny. Fowler had no direct interest in
these proceedings and no apparent motive to misrepresent
his conversation with Johnston. Johnston had gone out of
his way to provide Fowler with an opportunity t9 return to
his hometown from an employment situation in another
city. On the other hand, it would be illogical for Johnston
to have warned Fowler of the possible harassment he might
receive from fellow employees if he refused to join the
Union, and then attempt to discourage bim from joining
the Union and incurring the wrath of his fellow employees
and their harassment by offering him the possibility of an
accelerated advancement which would contravene pre-
scribed contractual procedures covering all unit employees.
Surely, Johnston was aware that Fowler would be covered
by the contract. He was no novice, having held his
supervisory position for several years, and was well aware
of the bargaining relationship between Respondent and the
Union over the years. He was well aware of the terms of the
contract. What good would it have been to Johnston had
he wished to discourage Fowler from joining the Union if
in fact Fowler did not join the Union only to discover that
he was not eligible for Metropolitan Life Insurance
coverage and that any acceleration would run afoul of the
union contract. Such a development would only accelerate
Fowler's eventual union membership. Moreover, John-
ston's demeanor as exhibited throughout many hours of
examination and cross-examination impressed me as that
of a sincere, honest witness who made no attempt to
exaggerate, refurbish, modify, or explain away testimony.
He impressed me as being fairly forthright and sincere.
Fowler, on the other hand, although he had no apparent
motive to tell anything other than the truth, impressed me
as having for some unknown reason a deep-seated antago-
nism. I can only conclude that whatever the basis of this
antagonism it obscured his recollection, and that he
misunderstood the purpose of Johnston's reference to the
Metropolitan Insurance coverage and somehow implied an
alternative course of advancement when Johnston ex-
plained the advancement procedures set forth in the
composing room-pressroom contract. I therefore credit
Johnston's version of this conversation.
668
THE LEAVENWORTH TIMES
Analysis-Case 17-CA-7077
The Bargaining Relationship
Section 8(d) of the Act mandates the parties in a
bargaining relationship "to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of
an agreement." The Board has stated on numerous occa-
sions that "the obligation to bargain collectively does not
compel either party to agree to a proposal or require the
making of a concession." Tomco Communications Inc., 220
NLRB 636, 637 (1975). The Board may consider the
totality of the employer's conduct in arriving at a determi-
nation as to whether that employer was engaging in hard
bargaining or merely surface bargaining, with no sincere
intent of reaching an agreement. N. LR.B. v. Reed & Prince
Manufacturing Company, 205 F.2d 131, 138-139 (C.A. 1,
1953), cert. denied 346 U.S. 887. A review of the Employ-
er's conduct in this case fails to reveal that Respondent
sought to evade agreement on a contract by means of
refusing to meet and bargain, or by refusing to schedule
more frequent meetings, or by refusing to meet in extensive
bargaining sessions. Clearly, Respondent was willing to sit
and talk at length with the Union in some 20 bargaining
sessions. General Counsel and the Charging Party argue
that we must look to the conduct of the Employer away
from the bargaining table to help shed light upon its
attitude in negotiations. However, the argument that
Respondent solicited or encouraged the decertification
petition is based upon meager evidence in the form of
testimony of employee William Willets with respect to
conversations with Managing Editor Anderson. His testi-
mony was far from consistent as to precisely what was said
and his recollection as to when the conversations occurred
was extremely unsure. The decertification petition and
unfair labor practice charge had been filed at the time of
his most recent conversations with Anderson. In the final
analysis, after cross-examination, his testimony recited a
statement by Anderson that merit increases would not be
given until after "union negotiations" were completed. It is
a far cry from evidence that the Employer advised its
employees that .hey would receive a wage increase if they
voted against the Union. At most, Anderson's statement is
reflective of Respondent's announced position at the
bargaining table that it would suspend the semiannual
merit increase for employees in the newsroom unit. The
validity of that conduct will be discussed, infra. A determi-
nation of that unilateral action violative of Section 8(aX5)
need not depend upon its propagation to employees. If
Respondent engaged in conduct violative of Section 8(aX5)
of the Act, the necessarily resulting erosion of the Union's
support among the employees in any event makes the
conducting of a decertification election untenable. There-
fore, I find little value in the testimony regarding Ander-
son's conversation with Willets. In short, it is subsumed in
the issue of whether or not Respondent unilaterally and in
violation of Section 8(aX5) withheld the semiannual merit
increases to the unit employees.
General Counsel and Charging Party allude to Respon-
dent's conduct in the companion case as further indicia of
bad faith. This conduct related to the hiring of an employee
in a unit separate and distinct from the newsroom unit. The
employer had for many years a collective-bargaining
relationship and had executed successive contracts with the
Union. All employees in the mechanical unit were mem-
bers of the Union. As indicated above, I do not conclude
that Johnston attempted to dissuade a prospective employ-
ee from joining the Union. The only factual element
remaining in that case is that Respondent advised an
employee of rumors that if he refused to join the Union he
would be subject to harassment from fellow employees. I
fail to see any relevance of that conduct, which if anything
encourages an employee to join the Union, to the issue of
the Employer's good faith at the bargaining table in the
newsroom unit. Therefore, I must necessarily have recourse
to an evaluation of the conduct of the Employer at the
bargaining table.
The Charging Party places great emphasis in its brief
upon the alleged tardy submission of Respondent of its
contract proposals to the Union on February 3, many
months after the August 1974 certification. It further
stresses the lack of progress in the first three meetings.
However, this is an untenable position in view of Local
President French's casual approach to these meetings
which he characterized as a mere "familiarization" process.
He quite agreeably spent three whole bargaining sessions
reciting the Union's position which he himself did not
totally understand. He did not make a demand for any
company proposal until well into negotiations and admit-
ted that his explanation of the union proposals would take
"quite some time" anyway. Though he received a proposal
from the Employer on February 3, he made no effort to
obtain meaningful assistance from the International Union
until he called Wood on February 22.
It is next argued that Respondent engaged in conduct at
the bargaining table which is violative of the Act by
reneging on contractual provisions upon which there had
been previous agreement. There is some rather mild
testimony in the record that at the point when Wood
entered negotiations he had understood that there had
been some prior agreement. However, this is clearly
inconsistent with French's testimony that the meetings
were merely a "familiarization" at which no in-depth
conversation took place. Therefore, Johnston's testimony is
credited wherein he set forth that although he nodded his
head and indicated that there may not be problems on
some language, or that he understood the Union's position,
there was no agreement as to any contractual provision
prior to Wood's entrance on the bargaining scene.
More specifically, the General Counsel and the Charging
Party argue that Respondent engaged in bad faith when it
reneged on its previous agreement with respect to bereave-
ment leave. Certainly it is as General Counsel argues well-
settled Board law that withdrawal from a previous agree-
ment "without good cause" demonstrates a lack of good
faith on a part of an employer. However, Respondent
herein did not frivolously withdraw his tentative agreement
on bereavement leave. A genuine disagreement arose over
whether bereavement leave accrued to an employee while
on vacation. Thus, Respondent, in order to clear up a
misunderstanding as to the scope and extent of bereave-
ment leave, withdrew its prior agreement. Under such
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances I do not find that such conduct is indicative
of bad faith. Cf. Holmes Typography, Inc., 218 NLRB 518,
524 (1975).
An evaluation, therefore, must be made of the totality of
the Employer's conduct at the bargaining table including
its contract proposal, its posture with respect to the
proposals of the Union, its willingness to make concessions
or not to make concessions, its willingness to negotiate with
respect to the basic elements of the collective-bargaining
agreement, and its statements at the bargaining table
indicative of its attitude. To do so, it is necessary, therefore,
to delve in great part into the pre-10(b) period in order to
evaluate Respondent's subsequent bargaining stance. Wal-
Lite Division of United States Gypsum Co., 200 NLRB 1098
(1972). From the outset of negotiations Johnston himself
made clear that Respondent as a smalltime newspaper
operation could only operate effectively with the fewest
possible limitations upon its management prerogatives.
Although Respondent was willing to sit and negotiate
meeting after meeting for 20 meetings with the Union, and
avowed an express intent to reach collective-bargaining
agreement, its concept of a satisfactory collective-bargain-
ing agreement and its determination to avoid as many
restraints upon its descretion as possible were of such a
nature as to render any possible agreement with the Union
as extremely remote. Undoubtedly, Johnston was con-
cerned about the impact upon the efficiency of running this
small newspaper with a circulation of only 10,000 and a
newsroom complement of only seven employees. Certainly,
it is a valid and legally viable basis for an employer to
negotiate as best he can the most advantageous contract
for himself. The problems of running a small newspaper
are indeed unique problems. Clearly, it was an endeavor
which differed from the negotiations of a mechanical room
contract to which the union negotiators had expertise.
However, Respondent's insistence upon the highest degree
of discretion in the operation of its business came nearly to
the point of a demand that the collective-bargaining
representative of the employees in that appropriate unit
have little or no impact upon some extremely basic
conditions of employment. This is evidenced by the
numerous occasions where either Gunderson or Johnston
resisted contractual references to vacation scheduling,
vacation carryover, sick leave, compensation for business
expenses, leave of absence, etc. The keynote was that the
Employer wanted to retain its discretion in these areas.
Thus, although Gunderson testified that Respondent never
asked for a reduction of present benefits of employees, he
did not specifically rebut Wood's testimony that on
November 6, 1975, "Mr. Johnston told [the Union] at this
point that if we insisted on sick leave [in] the contract, it
might restrict the amount of the sick leave that people in
the bargaining union would receive." And further during a
discussion on vacation proposals on January 28, 1976,
"Mr. Gunderson said that when a union organizes a small
newspaper like this, the employer is not willing to reduce
everything to contract. He emphasized it by repeating that
statement, saying, 'Yes, the employer is not willing to
reduce everything to writing.' He said, 'When you reduce it
to contract language, it is much more difficult.' " Thus, the
key message to the Union was that the employees should
"trust us." However, the very concept of collective-bar-
gaining involves the objective of a collective-bargaining
agreement which sets forth to employees certain definitive
assurances as to their terms and conditions of employment.
Further evidence of the employer's determination to
remain unfettered by the restrictions of a collective-bar-
gaining agreement is its very contract proposal which
contained no reference to sick leave, pensions, life insur-
ance, or hospitalization benefits despite the fact that the
employees in the newsroom unit were the recipients of
those benefits. Gunderson made a rather specious effort to
characterize the information relating to presently enjoyed
benefits submitted to the Union early in negotiations as an
"offer," or as a "commitment," but he finally conceded
that Respondent never at any time made a specific offer to
put those benefits into the contract. Respondent's contract
proposed and contained a zipper clause and a broad
managements rights clause which, in view of Respondent's
position with respect to eliminating from the contract
reference to numerous benefits of employees, was actually
a contract proposal offering little or no assurances to
employees as to their basic conditions of employment.
Respondent's offer with respect to wages and salaries,
when it finally came extremely late in negotiations, was in
effect an offer that the employees continue to get what they
had been getting in the past, and that any increases beyond
that would be subject to the Employer's own review and
discretion. With respect to wages, Gunderson had persisted
in evading or diverting the negotiations away from that
subject toward what he considered "the gut issues" of the
noneconomic area. However, it was clear that very little
progress was being made on those so called gut issues such
as sick leave, where the Employer adamantly insisted on
complete discretion; jurisdiction, where Respondent adam-
antly insisted on the right to assign unit work to whomever
it wished; leave of absence; vacations; etc. Prolonged,
agonized discussion took place over the semantics of a
recognition clause, the verbiage involved in an outside
activities clause, and a lunch period proviso despite efforts
by the Union to accommodate the Employer's production
problems. Respondent's first proposal of any substance
with respect to wages occurred at the March 22 meeting.
This occurred after 19 previous bargaining sessions. Its
proposal encompassed a breakdown of a minimum rate of
pay which it stated was "implied" as the current salary for
classifications that were not yet in existence. The attempt
to categorize job functions indeed was a peculiar stand for
an employer who had been arguing against artificial
restraints and limitations embodied in a collective-bargain-
ing agreement unsuitable to a small newspaper operation.
In any event its refusal to get into negotiation of economic
matters up to that point ran contrary to the concepts of
good-faith bargaining. The Adrian Daily Telegram, a
Division of Thompson Newspaper, Inc., 214 NLRB 1103
(1974).
Also revealing of Respondent's attitude toward bargain-
ing is the admitted suspension of the semiannual practice
of evaluating and implementing selective merit wage
increases for full-time newsroom employees on or about
January 1, 1976. Respondent argues in its brief that the
action was not unilateral and in any event was a justifiable
670
THE LEAVENWORTH TIMES
use of economic power and a tactical bargaining tool in
order to expedite agreement on a contract, and in particu-
lar wages and salaries. Clearly, the action was unilaterally
conceived. There is no question that the Employer did
maintain such a practice of salary and wage reviews and
merit increases. The January review was made and figures
were arrived at but employees in the newsroom unit were
not granted a wage increase in January. The question was
first raised by Wood at the January 28 meeting. It wasn't
made clear until thereafter that Respondent did not intend
to implement those wage increases. Clearly, there had been
no bargaining up to this point with respect to the
suspension of the Employer's practice of granting a merit
wage increase to full-time newsroom unit employees. The
Union was faced with afail accompli. Under such circum-
stances any subsequent meaningful bargaining must, there-
fore, have necessarily been obstructed. Allied Products
Corporation, Richard Brothers Division, 218 NLRB 1246
(1975); enforcement granted in part and denied in part 548
F.2d 644 (C.A. 6, 1977). Respondent was very careful to
adduce testimony that up to that point in time the Union
had on the bargaining table its original economic offer
encompassing a wage increase of anywhere from 50 to 100
percent above the highest paid reporter or employee. Thus,
it is true, as Respondent suggests, that the Union had not
made any subsequent wage counterproposals. However,
because Gunderson had refused to negotiate concerning
wages no meaningful discussions had ever taken place
regarding a wage proposal. The manifest effect of such
unilateral action was to signal to the employees in the unit
that they were worse off with a union than they would have
been without a union. The March 22 proposal containing
blank spaces which "implied" current wages minus what
employees would have received early in January hardly
rose to the dignity of the meaningful wage bargaining
stance. Accordingly, I conclude that Respondent violated
the mandates of good-faith bargaining by its unilateral
action of withholding merit increases from the newsroom
employees on or about January 1, 1976, and that such
action also is indicative of its total attitude toward
bargaining.1
The final allegation in the complaint deals with Respon-
dent's failure to provide information regarding its sick
leave policy. Respondent consistently took a position that
it desired not to have any reference to sick leave in the
contract but that at most it would recite therein that sick
leave was discretionary. It did not embody such willingness
in any written counterproposal. It refused, however, to put
into any viable form the statement of criteria upon which it
relied in the past. It stated that certain criteria was in fact
utilized. The Union, in attempting to meet the position of
the Employer as to the difficulty of embodying in a written
format some criteria, requested information as to what sick
leave employees had been granted in the past and for what
period of time. Respondent took the position that no such
information existed. The name of an employee was offered
to Respondent and Johnston agreed to check her records.
He indicated that the records revealed no such informa-
" For a similarity with respect to the unilateral action as well as
Respondent's bargaining stance see Dotrhan Eagle, Inc., a subsidiary of
Thompson Newspapers, 174 NLRB 804 (1969); enfd. 434 F.2d 93 (C.A. 5,
tion. However, this position flies in the face of the
testimony of Berg. It should be recalled that Berg testified
that at the February 26 meeting, when International
Representative Boris interrogated the Employer as to his
policy and specifically what his standards were, Johnston
responded with an enumeration of criteria including the
past history of sick leave and the extent of such. If no data
existed how could the Employer apply such criteria even
on an ad hoc basis? Moreover, Johnston admitted after
prolonged cross-examination that he did not even inspect
the timecards which had been in existence for at least a
year prior to the request, and which may or may not have
indicated the amount of time an employee may have
utilized in sick leave. The inescapable conclusion is that
Respondent was engaged in gamesmanship with respect to
negotiation of the sick leave proposal of the Union and
made no serious effort to obtain relevant information
requested by the Union. Its conduct with respect to sick
leave is in accord with its prior refusals to submit
information with respect to the employment experience of
the summer intern, Bryant Biggs. Respondent's sole basis
for refusing information was that Biggs was not encom-
passed in the bargaining unit. However, the Union suggest-
ed such information to make a determination whether
Biggs was in or out of the unit and furthermore what
impact his employment might make upon unit employees
as for example in the scheduling of vacation leave. The
refusal to grant information on Biggs, however, was not
alleged in the complaint and was adduced as evidence of
Respondent's attitude toward bargaining. However, I
conclude that Respondent breached its bargaining obliga-
tion by refusing to provide meaningful information to the
Union concerning past sick leave allowances, and that such
conduct together with the totality of its conduct is
sufficient to warrant a conclusion that Respondent en-
gaged in surface bargaining from October 2, 1975, to
March 22, 1976.
Analysis - Case 17-CA-7100
Having found that Respondent, by its agent and general
manager, J. H. Johnston III, did not inform an employee
that his starting wages would be higher if he did not join
the Union, there is left to this aspect of the complaint only
the allegation that Respondent violated the Act by the
conduct of Johnston in telling an employee that if he did
not join the Union, he might be subject to harassment from
fellow employees. The prospective employee was hired
against a background wherein the Union had been advo-
cating the transfer of an employee from the mechanical
unit into the newsroom. Johnston had testified that he had
been aware of rumors that employees had taken a poll and
boasted that no nonunion employee would last longer than
a certain period of time. He advised the prospective
employee of his right to join or not join a union but warned
him of the existence of such boasting. I find the action of
the Employer to constitute no more than a prediction and
an opinion of what might happen within such context. This
is quite different from a statement of the Employer that he
1970). In that case the chief negotiator for Respondent therein was James
Baysinger, the predecessor of James Gunderson herein.
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be responsible for or adopt the harassment of an
employee by his supervisors or by other employees.
Accordingly, I conclude that such conduct of the Employer
does not violate the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
I. Respondent, The Leavenworth Times, a Division of
Thomson Newspapers, Inc., is an employer engaged in
commerce within the meaning of the Act.
2. Leavenworth Typographical Union, Local No. 45,
affiliated with International Typographical Union, AFL-
CIO, is a labor organization within the meaning of the Act.
3. All full-time and regular part-time newsroom depart-
ment employees employed at the Employer's 418-26
Seneca Street, Leavenworth, Kansas, facility, including
editors, reporters, staff writers and photographers, but
excluding the general manager, managing editor, office
clerical employees, and guards, professional employees and
supervisors as defined in the Act, and all other employees,
constitute a unit appropriate for collective-bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein Leavenworth Typo-
graphical Union, Local No. 45, affiliated with Internation-
al Typographical Union, AFL-CIO, has been the exclusive
collective-bargaining representative within the meaning of
Section 9(a) of the Act for all of Respondent's employees
employed in the unit described above in Conclusions of
Law 3.
5. Since on or about October 12, 1975, Respondent has
refused and continues to refuse to bargain collectively in
good faith with the Union herein as the exclusive bargain-
ing representative of its employees in the unit described
above in Conclusions of Law 3, by engaging in a course of
surface bargaining with a fixed intent to avoid reaching
agreement; by unilaterally limiting on January 1, 1976, its
semiannual granting of wage reviews and wage increases to
nonunit employees thereby withholding all wage increases
under its established practice from those employees repre-
sented by the Union in the unit described above in
Conclusions of Law 3; and by refusing on November 6,
1975, and February 26, 1976, to furnish the Union with
information concerning the sick leave policy covering
employees in the unit described above in Conclusions of
Law 3.
6. Respondent has not violated the Act by telling an
employee that if he did not join the Union he would be
subject to harassment from other employees in the press-
room, or that he would be granted an accelerated promo-
tion.
7. The unfair labor practices recited above have a close,
intimate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
The General Counsel and the Charging Party seek in
addition to a bargaining order, the extraordinary relief
prayed for in paragraph 9 of the complaint in Case 17-CA-
7077, which petitions that Respondent shall be ordered to:
(a) Bargain with the Charging Union upon request and
within 15 days of the Board's Order to issue herein. (b)
Meet in bargaining upon request either on consecutive
days or, alternatively, for a minimum of 15 hours per week
until agreement or a lawful impasse is reached. (c) Consent
to a union request that a Federal Mediation and Concilia-
tion Service representative be present at negotiations. (d)
Prepare written bargaining progress reports every 15 days
and submit them to the Regional Director for Region 17 of
the Board and also serve true copies of such reports on the
Union to provide the latter an opportunity to reply. (e)
Reimburse the Union for its past and future bargaining
committee expenses, including union representatives' sala-
ries and any employees' wages paid by the Union during
bargaining sessions and also lodging, mileage, or other
traveling expenses and any clerical expenses, until either
agreement or a lawful impasse is reached. (f) Reimburse
the Union for past and future fees and/or other money
paid to an attorney in connection with said attorney's
bargaining role, until either agreement or a lawful impasse
is reached.
Additionally, the Charging Party requested reimburse-
ment of litigation expenses and costs incurred by the
Charging Party in pursuing the instant charges.
The General Counsel and the Charging Party conceded
the extraordinary nature of the relief prayed for. Charging
Party and General Counsel cite the Board's decision in
Heck's Inc., 215 NLRB 765 (1974), in support of the
argument that the litigation expenses should be awarded.
The General Counsel also cites that case in support of its
argument that the Union be compensated for expenses
incurred during negotiations. In Heck's Inc., the Board
reviewed and considered the question of awarding litiga-
tion expenses and costs and reaffirmed the position as
previously expressed in Tiidee Products, Inc., 194 NLRB
1234 (1972), that the award of litigation expenses except in
extraordinary circumstances involving frivolous defenses
would discourage a respondent from gaining access to the
aFpropriate forum in order to fully litigate debatable
defenses. As observed by the Board in Kings Terrace
Nursing Home and Health Facility, 227 NLRB 251 (1976):
"In Tiidee Products, Inc., supra, wherein litigation
expenses were assessed against a respondent, the
respondent had engaged in numerous violations of the
Act, reflecting a hostile attitude toward collective
bargaining. The Board emphasized that the remedy was
justified because of the "patently frivolous" nature of
the defense offered by the respondent. Where the
defenses raised by the respondent are "debatable,"
rather than frivolous, the remedy has been found to be
unwarranted, even where the employer has "engaged in
'clearly aggravated and pervasive misconduct' or in the
'flagrant repetition of conduct previously found unlaw-
ful' " [Citing the Heck's case, supra].
In the instant case, the General Counsel argues that
Respondent's conduct is similar to that of the respondent
in the Dothan Eagle case, supra, and thus repetitious.
However, the Dothan Eagle case involved a different
newspaper, a different geographical location, and a differ-
672
THE LEAVENWORTH TIMES
.,t unit. Although there is a great deal of similarity in the
overall bargaining posture of the respondent in the two
cases, the unilateral action of the respondent in the Dothan
Eagle case occurred at the onset of negotiations. In the
instant case, Respondent effectuated two semiannual wage
increases during the first year of negotiations. In a
misconstruction of its right to use raw economic power to
suspend its practice it did not give wage increases in
January 1976, but it did do so in June 1976. It is also noted
that Respondent herein has maintained a contractual
relationship with the Union in the mechanical unit. It is
thus not an employer in the posture of being totally hostile
to the collective-bargaining process. Thus, although I have
found that its bargaining posture in the instant case
contravenes the concepts of good-faith bargaining, I
cannot conclude that its position was patently frivolous.
Certainly, it was not patently frivolous with respect to the
companion complaint in Case 17-CA-7100. Moreover, at
the outset of the hearing herein, General Counsel in its
opening remarks indicated that bad faith would be con-
cealed by dilatory tactics of Respondent and also by
conduct away from the bargaining table consisting of an
encouragement and solicitation of the decertification peti-
tion. As concluded above, counsel for the General Counsel
did not sustain his point before the close of the hearing and
did not resurrect it in his brief. Although, in fact, there
have been 20 bargaining sessions over a lengthy period of
time, I cannot conclude based upon the evidence in the
record that Respondent was in any sense dilatory with
respect to approaching the bargaining table. Although I
have found that Respondent did engage in surface bargain-
ing, the Charging Party Union was not exceptionally
noteworthy for its diligence with respect to more frequent
or lengthy meetings. Additionally, the Charging Party
Union itself inserted irrelevant topics of discussion during
the course of the meetings and diverted negotiations from
the topic of the newsroom contract to discussion of
grievances and matters relating to the mechanical unit.
Although Wood did make an effort to direct the negotia-
tions to economic areas in May of 1975, he was easily
deflected by Gunderson to other noneconomic matters. It
really was not until the November 6, 1975, meeting that
Wood pressed the issue, thus causing Gunderson to come
out unequivocally against negotiation of noneconomic
matters. The very outset of negotiations was approached
with somewhat of a casual attitude by Local President
French as noted above. Although this lack of diligence by
the Union did not excuse Respondent from its obligation
to bargain in good faith, I feel that there is a lack of
warrant to conclude that Respondent's defenses were
completely frivolous. Furthermore, it would seem inappro-
priate under these circumstances, where the Union had
never requested a Federal Mediation and Conciliation
Service representative to be present, to now order Respon-
dent to consent to such. Also it would be inappropriate to
now dictate to Respondent that it should meet on consecu-
tive days or a minimum number of hours per week when
the Union made no effort during the entire course of
'2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
negotiations to obtain such an objective. For the same
reasons, I feel that the balance of the extraordinary
remedies prayed for by the General Counsel and the
Charging Party is unwarranted. Accordingly, I shall recom-
mend that Respondent be ordered to cease and desist from
engaging in the unfair labor practices found above and to
recognize and bargain with the Union and to remedy the
effects of its unilateral actions.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I make the following recommended:
ORDER 12
The Respondent, The Leavenworth Times, a Division of
Thomson Newspapers, Inc., its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain in good faith with Leavenworth
Typographical Union, Local No. 45, affiliated with Inter-
national Typographical Union, AFL-CIO, as the duly
designated exclusive bargaining representative of the em-
ployees in unit found appropriate herein.
(b) Refusing to bargain collectively with the above-
named Union by refusing to furnish the above-named
Union with information concerning the sick leave policy
covering employees in the unit found appropriate herein.
(c) Unilaterally discontinuing merit wages and salary
reviews and/or merit increases for the employees in the
unit found appropriate herein without prior notice to or
bargaining with the Union.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Leavenworth
Typographical Union, Local No. 45, affiliated with Inter-
national Typographical Union, AFL CIO, as the exclusive
representative of the employees in the appropriate unit
and, if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate unit is as
follows:
All full-time and regular part-time newsroom depart-
ment employees employed at the Employer's 418-26
Seneca Street, Leavenworth, Kansas, facility, including
editors, reporters, staff writers and photographers, but
excluding the general manager, managing editor, office
clerical employees, and guards, professional employees
and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act.
(b) Reinstitute the wage and salary review and/or merit
increase program formerly in effect and apply it retroac-
tively from on or about January 1, 1976. Further, make the
employees in the bargaining unit whole by paying to them
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the difference, if any, between their actual wages and
salaries and the wages and salaries they would have
received had the wage and salary review merit increase
program not been suspended during the above period,
together with interest at the rate of 6 percent per annum, as
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Supply the Union with all information as to the
names of employees who have received paid or unpaid sick
leave, the dates and duration of said sick leave in the 2-year
period preceding March 22, 1976.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its premises in Leavenworth, Kansas, copies of
the attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
674