Pioneer Press

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 972 (N.L.R.B. 1990)

972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pioneer Press and Chicago Newspaper Guild, Local
71, affiliated with the Newspaper Guild, AFL-
CIO, CLC. Cases 13-CA-27359, 13-CA-
27580, 13-CA-28440, and 13-CA-27533
March 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 3, 1989, Administrative Law Judge
Nancy M Sherman issued the attached decision
The Respondent filed exceptions and a supporting
bnef The General Counsel and the Charging Party
filed answering briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pioneer
Press, Wilmette, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order
'The Respondent has excepted to some of the judge's credibility find-
ings The Board s established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In finding that the Respondent did not have a good-faith and reason-
ably grounded doubt as to the Union's loss of majority status in the pro-
duction unit, the judge relied, in part, on the fact that the Respondent
committed certain unfair labor practices subsequent to its withdrawal of
recognition We find It unnecessary to rely on the postwithdrawal unfair
labor practices as evidence of the Respondent s lack of good faith
In its exceptions, the Respondent argues that the judge miscalculated
the number of authorization cards signed by employees prior to the Re-
spondent s withdrawal of recognition Even if the Respondent s calcula-
tions are correct, we agree with the judge that the Respondent failed to
prove that the Union lacked majority status because evidence that less
than half of the unit employees have signed authorization cards is insuffi-
cient to prove that the incumbent Union's presumption of continuing ma-
jority status has been rebutted
2 Member Cracraft agrees with the judge and with her colleagues that
none of the Issues in this case are deferrable to arbitration She does not,
however, rely on Heck s Inc , 293 NLRB 1111, 1115 (1989), cited by the
judge In Heck's, Member Cracraft would have deferred the access issues
because they were not factually intertwined with the handbook promul-
gation allegations Here, by contrast, Member Cracraft finds that the
Issues involving solicitation and posting of notices by editorial unit em-
ployees are intertwined with nondeferrable complaint allegations with re-
spect to the production unit employees (imposition of an overly broad
no-solicitation rule and unilateral change in bulletin board policy) Reso-
lution of the production unit allegations requires resolution of the same
factual and legal Issues affecting the ednonal unit employees
Rentta Reynolds and Sheryl G Sternberg, Esqs , for the
General Counsel
John A McDonald, Esq , of Chicago, Illinois, for the Re-
spondent
Nancy K Reed, Esq , of Chicago, Illinois, for the Charg-
ing Party
DECISION
STATEMENT OF THE CASE
NANCY M SHERMAN, Administrative Law Judge
These consolidated cases were heard before me in Chica-
go, Illinois, on May 18, 19, and 20, 1988 The charge in
Case 13-CA-27359 was filed against Respondent Pioneer
Press by Chicago Newspaper Guild, Local 71, affiliated
with the Newspaper Guild, AFL-CIO, CLC (the Union
or the Guild) on November 24, 1987, and the complaint
in that case was issued on January 28, 1988 The charge
in Case 13-CA-27533 was filed against Respondent by
the Union on February 22, 1988, and the complaint in
that case was issued on March 22, 1988, and amended on
May 18, 1988 The charge in Case 13-CA-27580 was
filed against Respondent by the Union on March 8, 1988,
and the complaint in that case was issued on April 18,
1988, and amended on May 18, 1988 The charge in Case
13-CA-28440 was filed on February 27, 1989, and the
complaint in that case was issued on March 23, 1989 1
The complaint in Case 13-CA-27359 alleges that Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by making unilateral
changes in the health insurance program which covers
two separate Unions-represented bargaining units of
Respondent's employees-namely, the production unit
and the editorial unit The complaint in Case 13-CA-
27533 alleges that Respondent violated Section 8(a)(5)
and (1) of the Act about February 18, 1988, by with-
drawing recognition from the Union as the exclusive bar-
gaining representative of the production unit and by
thereafter unilaterally granting a wage increase to em-
ployees in that unit The complaint in Case 13-CA-
27580 alleges, in its final form, that Respondent violated
Section 8(a)(1) of the Act in March 1988 by imposing an
overly broad no-solicitation and distribution rule, violat-
ed Section 8(a)(1) and (3) of the Act in March 1988 by
issuing a written warning to employee Jim Robinson,
and violated Section 8(a)(5) and (1) of the Act about
February 22, 1988, (1) by unilaterally changing its bulle-
tin board policy by refusing to allow (a) union agents to
post notices to employees in the production unit and (b)
editorial unit employees to post union notices relating to
employees in the production unit, and (2) by unilaterally
adding a long-term employee disability plan to its em-
ployee disability plan relating to the production unit
The complaint in Case 13-CA-28440 alleges that as to
the production unit, Respondent violated Section 8(a)(5)
and (1) of the Act about February 16, 1989, by unilater-
ally implementing a voluntary termination agreement
plan, whereby production unit employees can agree to
' The record made after the issuance of the complaint in Case 13-CA-
28440 consists entirely of certain pleading
297 NLRB No 160
PIONEER PRESS

973
voluntarily terminate their employment if they are sched-
uled for layoff
On the basis of the entire record, including the de-
meanor of the witnesses, and after due consideration of
the briefs filed by Respondent, by the Union, and by
counsel for the General Counsel (the General Counsel), I
make the following
FINDINGS OF FACT
I JURISDICTION_
Respondent is a limited partnership with an office and
place of business in Wilmette, Illinois At that facility,
and at various other facilities in and around the Chicago,
Illinois suburban area, Respondent has been, engaged in
the publication and printing of suburban newspapers
During the calendar or fiscal year preceding the issuance
of each complaint, a representative period, products,
goods, and materials valued in excess of $50,000 were
sold and shipped by Respondent, and/or purchased and
received by Respondent, directly between its Wilmette,
Illinois fmlity and points outside Illinois, and Respond-
ent derived gross revenues in excess of $200,000, pub-
lished various nationally syndicated features, and adver-
tised vanous nationally sold products I find that, as Re-
spondent admits, Respondent is engaged in commerce
within the meaning of the Act, and that assertion of ju-
nsdiction over its operations will effectuate the policies
of the Act
The Union is a labor organization within the meaning
of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Alleged Unlawful Change in the Health
Insurance Program
1 Background
At all matenal times since January 1978, the Union has
admittedly been the exclusive bargaining representative,
under Section 9(a) of the Act, of an admittedly appropri-
ate unit which is specifically described infra in Conclu-
sion of Law 3, and which is referred to herein as the edi-
tonal unit Since about 1977, and at least until about Feb-
ruary 15, 1988, the Union has admittedly been the exclu-
sive bargaining representative, under Section 9(a) of the
Act, of an admittedly appropriate unit which is specifi-
cally descnbed infra in Conclusion of Law 4, and which
is referred to herein as the production unit A collective-
bargaining agreement with respect to the editonal unit
was effective on February 1, 1987, and is to expire by its
terms on 'January 31, 1990 A collective-bargaining
agreement with respect to the production unit was effec-
tive between January 19, 1985, and February 11, 1988
The editorial contract includes the following provi-
sions
The Company agrees to make available to its
employees, and the [dependent's] of such employees,
the insurance plan which is in effect as of the date
of the execution of this Agreement for hospital care,
physical, dental and major medical coverage and
shall pay for the costs of such insurance 'according
to [a schedule which requires the Company to pay
90 percent of monthly premium cost for full-time
employees, and between 30 and 70 percent of
monthly premium cost for many part-time employ-
ees]
The Company will maintain health benefits at least
at a level substantially equivalent to the level in
effect at the time this contract is put into effect
The Company shall have the right to change carri-
ers, provided that notice is given to the [Union] If
such proposed change would result m an increase in
the employee's costs, such change in earners shall
take place upon agreement with the [Union]
The production contract included the following provi-
sion
The Company agrees to make available for its
employees and the dependents of such employees
the insurance plan, which is in effect as of the date
of execution of this Agreement, for hospital care,
surgical, dental and major medical coverage, and to
pay the cost of such insurance as provided in [a
schedule which calls for Respondent to pay 90 per-
cent of the foregoing insurance premiums for full-
time employees, and between 30 and 70 percent of
the monthly premium cost for many part-time em-
ployees]
2 The institution of the Medical Services
Advisory Program
At all times relevant here, Respondent has been a
party to contracts with Blue Cross/Blue Shield to pro-
vide employees in both units with a health care benefit
program 2 On an undisclosed date before October 29,
1987, the Medical Services Advisory Program (MSAP),
which is descnbed in detail below, was added to Re-
spondent's current contracts with Blue Cross/Blue
Shield By memorandum to "All Blue Cross/Blue Shield
Enrollees" and bearing that date, Respondent's human
resources director, Frank Santos, stated in part
In a continuing move to enhance Pioneer Press
employees' health benefits another feature has been
added to the traditional Blue Cross/Blue Shield
package
Starting November 1, 1987, Pioneer Press will
add the Medical Services Advisory feature to the
current contracts, resulting in a 20 percent cost sav-
ings to you, the consumer
Under MSA (Medical Services Advisory) when
you or your dependent are required by your doctor
to be hospitalized you must contact an MSA regis-
tered nurse (1-800-247-9211) for a date In the event
of an emergency or maternity admission you will
have to contact MSA at the above number two
business days following admission
2 Technically, Respondent's contracts are with Health Care Service
Corporation, which is the Blue Cross and Blue Shield Plan serving the
State of Illinois
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also, under MSA there are 13 surgical proce-
dures that are required to have a second opinion
MSA will provide the names of consulting surgeons
for the second opinion
These are just some of the features in the "new"
Blue Cross/Blue Shield benefit plan
Within the next two weeks, Margie Willis, bene-
fits administrator, will be scheduling orientation ses-
sions at your work site to give you full details on
the program Meanwhile, if you have any questions
regarding MSA feel free to contact margie
In late October 1987, some of Respondent's union-rep-
resented employees told the Union that Respondent was
describing to them a change in medical coverage benefits
in that people covered by the insurance plan would be
subject to penalties if the employees did not follow the
procedures that were imposed by the "cost containment
features" On November 1, 1987, and admittedly without
notice to the Union, Respondent implemented the MSA
program (see R Br 16) By letter to Santos dated No-
vember 12, 1987, the Union's associate director, Cather-
ine L Struzynski, requested that "copies of all informa-
tion relating to [the] change [in the Blue Cross/Blue
Shield medical insurance policy] be sent to this office"
The letter went on to say, "Since the policy changes
were implemented without agreement or consultation
with [the Union], we request to meet with you concern-
ing this matter" After referring to the grievance-arbitra-
tion articles in each of the two current collective-bar-
gaining agreements, the letter went on to say, "We are
filing this grievance directly with your office, rather than
with the managing director or foreman, because the issue
affects all employees in both units Please contact this
office to set a mutually convenient meeting time"
Under a covering letter to Struzynski dated November
17, 1987, Santos forwarded a copy of the above-quoted
memorandum to "All Blue Cross/Blue Shield Enrollees"
Santos' letter stated, "please contact me and we can ar-
range for a date and time for a meeting on the subject"
However, by letter to Struzynski dated November 20,
1987, Santos stated
After taking a closer look [at the] grievance con-
cerning Blue Cross/Blue Shield Insurance coverage
I find that this is not a gnevable matter since [Re-
spondent] has not violated the contract Therefore
we will not meet on this matter
In mid or late December 1987, employee James Robin-
son (the editorial unit chairperson) and several stewards
from that unit attended one of the regular labor-manage-
ment meetings called for by the editorial unit bargaining
agreement Robinson advised the management represent-
atives that the Union wanted to ask about some changes
in the Blue Cross coverage Santos, who was one of Re-
spondent's representatives at that meeting, said that man-
agement was not going to talk about that during the
meeting, that the Blue Cross coverage was to be handled
in a grievance, that he had had correspondence with As-
sociate Director Struzynski about it, but that the labor-
management meeting was not the proper forum to dis-
cuss it As previously noted, Santos had advised Stru-
zynski several weeks earlier that Respondent would not
meet on the grievance concerning the Blue Cross/Blue
Shield insurance because "this is not a gnevable matter"
The Union filed its charge as to this matter on Novem-
ber 24, 1987 As described infra part II, B1, in January
1988 the Union and Respondent conducted several bar-
gaining sessions directed toward a new bargaining agree-
ment (which was never in fact reached) to replace the
production unit contract to expire by its terms on Janu-
ary 21 During one of these bargaining sessions, Compa-
ny Attorney John A McDonald asked Union Executive
Director Gerald Minkkinen if the Union had any propos-
al to make about "the cost containment matter" in the
hospitalization plan Mmkkinen replied that the Union
had no proposal to make as to this matter, that this was a
subject of "ongoing litigation" and that was something
that the Union did not want in any way to affect by bar-
gaining The Union further stated that it did not want to
make this matter a subject for that bargaining because
(the Union said) it felt the subject was inappropriate for
that bargaining
3 The allegedly material changes effected by the
Medical Services Advisory Program
At no relevant time has Respondent's medical insur-
ance policy with Blue Cross/Blue Shield called for pay-
ment for hospitalization costs irrespective of any deter-
mination by it as to whether the hospitalization was
needed at all or was too long Nor at any relevant time
has Respondent's medical insurance policy called for
payment for a physician's diagnostic services irrespective
of his fee However, before Respondent put the MSAP
into effect, the amount which Blue Cross/Blue Shield
would pay to the hospital did not depend at all on
whether Blue Cross/Blue Shield had been advised by
telephone on the employee's behalf that he had been or
would be admitted, or on whether the employee had re-
ceived a second medical opinion as to the need for sur-
gery which had led or would lead to his admission to the
hospital 3 Nor had the amount of which Blue Cross/Blue
Shield would relieve an employee for a physician's diag-
nostic services depended at all on whether that physi-
cian's name appeared on any list maintained by it Fur-
ther, Blue Cross/Blue Shield has at all relevant times
continued to offer coverage without the MSA feature
However, the MSAP requires an employee to pay the
first $500 of a hospital bill incurred in consequence of an
emergency admission unless, within 2 business days after
the admission, a telephone call was made on his behalf to
the "Medical Service Advisory" (MSA), which is a
group of doctors and registered nurses who work at Blue
Cross/Blue Shield 4 The required telephone call must
3 All references under this heading to employee' Include, unless oth-
erwise stated or necessarily implied by the context, individuals Included
as dependents in the employee s coverage
4 My findings as to the time within which such a call must be made
and as to the composition of the MSA are based on brochures Issued by
Blue Cross/Blue Shield Steven Barr, a marketing executive for Blue
Cross/Blue Shield testified that the call must be made within 48 hours,
and that MSA consists of registered nurses
PIONEER PRESS 975
tell the MSA advisor the employee's group and member
number, his doctor's name, phone number, and address,
the name of the hospital, the date of admission, and "the
diagnosis and what's to be done If you do not
have all the information regarding your condition, the
MSA Advisor can contact your doctor" Blue
Cross/Blue Shield undertakes to supply each insured em-
ployee with a "handy wallet-sized card with this infor-
mation and the MSA Advisor's phone number on it"
The 2-day telephone call requirement is not imposed
where the employee's medical condition (for example, a
coma) would not allow the employee to make the call,
whether he had such an ability is ultimately determined
by Blue Cross/Blue Shield after discussing the situation
with the hospital admissions department, the attending
emergency physician, and the nurses on duty
In addition, the MSAP requires an employee to pay
the first $500 of a hospital bill incurred in consequence
of a nonemergency admission unless, before being admit-
ted to the hospital, he has made a telephone call as de-
scribed above and, if the MSA advisor so directs, has ob-
tained a second opinion as to the need for surgery to
which the hospitalization will be incident Also, if the
second opinion has been given by a physician who is not
on a list maintained by Blue Cross/Blue Shield for that
purpose, the employee is required to pay not only the
difference between Blue Cross/Blue Shield's "usual and
customary allowance" for such services and what the
physician's fee is in fact, but 20 percent of the "usual and
customary allowance" itself If the second opinion is
given by a physician on that list, all of whom have
agreed to accept as their full fee Blue Cross/Blue
Shield's "usual and customary allowance," the employee
pays no money for the physician's service 5 The physi-
cian who gives the second opinion may or may not
choose to conduct additional . diagnostic procedures, in
addition to inspecting any medical records which he may
receive from the employee's private physician A second
opinion which recommends against surgery does not pre-
clude Blue Cross/Blue Shield coverage, if the employee
nonetheless undergoes the surgery and related hospitali-
zation 6 As to whether a particular hospitalization inci-
dent to surgery is subject to a $500 employee payment
because not preceded by a second opinion, whether the
surgery was emergency surgery not subject to the
second-opinion requirement is ultimately determined by
Blue Cross/Blue Shield Blue Cross/Blue Shield main-
tains a , schedule of procedures which it regards as none-
mergency procedures and as to which MSA directs the
5 Barr testified that Blue Cross/Blue Shield has a list of over 1000 doc-
tors in the metropolitan area, and on the employee's request will give him
as many names as he wants However, a Blue Cross/Blue Shield bro-
chure which Respondent distributed to us employees merely states that
for the purpose of obtaining a second opinion, Blue Cross/Blue Shield
will provide the employee with a list of three physicians That same bro-
chure states that Blue Cross/Blue Shield "is not in any event liable for
any act or omission of any Provider,' a term elsewhere defined to in-
clude physician
6 The same is true if the employee has elected to obtain a third opin-
ion, which is reimbursable by Blue Cross/Blue Shield to the same extent
as a second opinion The record is silent as to whether a second and/or
third opinion which recommended against the surgery would affect Blue
Cross/Blue Shield s determination as to whether such services satisfied
the Insurance policy's requirement that they be medically necessary
employee to obtain a second opinion At least one of
these procedures (a particular kind of gallbladder sur-
gery) is on this list but is sometimes an emergency proce-
dure, if no prior second opinion was obtained, whether it
was a nonemergency procedure subject to a $500 pay-
ment by the employee is made by Blue Cross/Blue
Shield from the opinion of the hospital and the employ-
ee's own physician based on surgical notes Blue
Cross/Blue Shield will provide benefits for certain pre-
operative tests, but not if the employee cancels or post-
pones the surgery
The 1987-1990 editorial unit contract provides for up
to 5 paid days of leave per year for illness, accruable up
to 10 days, and for two-thirds of regular pay for up to 13
weeks where illness or disability extends beyond the 5
paid days The 5-day provision applies by its terms to
full-time employees only, inferentially, the same is true of
the 13-week provision The 1985-1988 production unit
contract provides for group accident and sickness bene-
fits consisting of two-thirds of regular pay per week for
up to 13 weeks Although both contracts provide for
paid vacations for employees with more than 6 months
of service (ranging between 1 and 4 weeks, depending on
length of service), neither contract provides in terms for
paid time off to undergo medical examinations or to ac-
company children who must undergo such examina-
tions 7
Blue Cross/Blue Shield will not pay for a longer stay
in the hospital than is "Medically Necessary" The "Ex-
clusions" provisions of a brochure issued by Blue
Cross/Blue Shield state, inter aim,
Medically Necessary means that Inpatient Hospital
care and treatment will not be covered when, in the
reasonable judgment of Blue Cross and Blue Shield,
your medical symptoms and condition no longer ne-
cessitate your continued stay in a Hospital The fact
that a Physician may prescribe, order, recom-
mend or approve a service or supply does not of
Itself make a service or supply Medically Necessary
As to the MSAP, that same brochure provides for a
"length of stay" determination by the MSA advisor,
which is subject to review by an MSA physician if the
employee's own physician recommends a longer stay
The brochure goes on to say
As applied to the length of stay review, Medical-
ly Necessary means that Inpatient care and treat-
ment will not be covered when, in the reasonable
judgment of the Medical Services Advisor, your
symptoms and condition no longer necessitate your
continued stay in a Hospital The fact that your
Physician may prescribe, order, recommend or
approve continued Inpatient hospitalization beyond
7 At least as of February 1988, Respondent s employee handbook
stated, in a section entitled 'Other Benefits," that all full time and some
part-tune employees receive two annual personal days off with pay
However, the handbook further states that as to jobs covered by a labor
contract, "there may be some difference in benefits [and] policies
In those Instances the labor contract will prevail This handbook does not
provide benefit or working condition information for employees covered
by labor contracts
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the length of stay authorized by the Medical Serv-
ices Advisor does not of itself make such an Inpa-
tient Hospital stay Medically Necessary
Even if your Physician prescribes, orders, recom-
mends, approves or views continued Inpatient hos-
pitalization beyond the length of stay assigned by
the Medical Services Advisor as Medically Neces-
sary, Blue Cross and Blue Shield will not pay for
Inpatient hospitalization which exceeds the assigned
length of stay if the Medical Services Advisor de-
cides an extension of the assigned length of stay is
not Medically Necessary
The length of the hospital stay which is found to be
"Medically Necessary" under the "Exclusions" provision
may differ from the length of the hospital stay which is
found to be "Medically Necessary" under the MSA pro-
gram Barr testified that as to length of hospital stay, dis-
crepancies between the MSA's authorization and the rec-
ommendation of the employee's own physician are rare
He further testified that if the employee stays beyond the
number of days authorized by the MSA, although no
longer than recommended by his own physician, the em-
ployee must pay the first $500 of the consequent cost As
to the MSAP, the Blue Cross/Blue Shield brochure fur-
ther states
RIGHT TO APPEAL
If you or your Physician disagree with the rec-
ommendations of the Medical Services Advisor
prior to receiving services, you may appeal that de-
cision by contacting the Medical Services Advisory
Unit or the Blue Cross and Blue Shield of Illinois
Medical Department
If your admitting Physician's request for an ex-
tension of the assigned length of stay is denied on
the basis that continued hospitalization is not Medi-
cally Necessary, and you disagree with the Medical
Services Advisor's decision, you may appeal that
decision by following the procedures for Claim
Review in the section of this Certificate entitled
"How to File a Claim" In most instances, the reso-
lution of the appeal process will not occur until
your assigned length of stay has elapsed You must
exercise your right to this appeal as a precondition
to the taking of any further action against Blue
Cross/Blue Shield, either at law or in equity
FAILURE TO COMPLY WITH MSA REC-
OMMENDATION
should you decide not to follow the recom-
mendation of the Medical Services Advisor as pre-
viously described, you will then be responsible for
the first $500 of the Hospital's charges for an eligi-
ble Inpatient stay in addition to any deductibles or
co-payments applicable to this Certificate This
amount shall not be eligible for later consideration
as an unreimbursed expense under any Benefit Sec-
tion of this Certificate
The record fails to show whether, before the institu-
tion of MSAP, any employee of Respondent had his
Blue Cross/Blue Shield claims reduced The record also
fails to show whether MSAP had caused the reduction
of any claim of Respondent's employees during the 6-
month period between the institution of MSAP and the
heanng
4 Analysis and conclusions
It is well settled that health insurance constitutes a
mandatory subject of collective bargaining Capitol-Hos-
ting Co v NLRB, 671 F 2d 237, 246 (7th Cir 1982),
Beitler-McKee Optical Go, 287 NLRB 1311, 1312 (1988),
Aztec Bus Lines, 289 NLRB 1021 fn 3, 1036 (1988) Ac-
cordingly, an employer violates Section 8(a)(5) and (1) of
the Act if, without first giving his employees' statutory
bargaining representative notice and an opportunity to
bargain, he effects material, substantial, or significant
changes in such employees' conditions of employment
with respect to health insurance Tecumseh Products Go,
285 NLRB 781, 785-786 (1987), United Technologies
Corp, 278 NLRB 306 (1986), Taino Paper Go, 290
NLRB 975, 978 (1988)
I agree with the Union and the General Counsel that
Respondent's institution of the MSAP, admittedly with-
out giving the Union notice and an opportunity to tar-
gain, effected a material, substantial, and/or significant
change in the unit employees' conditions of employment
with respect to their health benefits Thus, after but not
before the institution of MSAP, an employee stood to
pay $500 out of pocket, a sum which could constitute
almost 2 weeks' gross wages for some employees, 8 if he
or one of his dependents (1) failed to telephone an MSA
advisor before a nonemergency admission to the hospital,
(2) failed to comply with any instructions the eniployee
may have received to obtain a second opinion as to pro-
posed surgery, (3) failed to telephone an MSA advisor
within 2 business days after an emergency admission, or
(4) stayed in the hospital longer than MSA believed to
be appropriate, although no longer than was "Medically
Necessary" within the meaning of the "Exclusions" pro-
vision of the insurance policy I conclude that the
changes effected by Respondent's unilateral adoption of
the MSA program are material, substantial, and signifi-
cant See Tecumseh Products, supra, 785-786, Athey Prod-
ucts Corp, 282 NLRB 203, 205 (1986), Aztec Bus Lines,
supra at 1021 fn 3, 1036-1037, Keystone Consolidated In-
dustries v NLRB, 606 F 2d 171, 179 (7th Cir 1979) 9
Respondent's contention otherwise seems to disregard
the $500 payment which must be made by an employee
who fails to comply with the MSA advisor's instructions
to obtain a second physician's opinion before undergoing
nonemergency surgery Furthermore, if the second phy-
sician desires to base his opinion partly on a physical ex-
amination of the employee or his dependent, that individ-
ual must undergo a procedure which is unpleasant at best
and is occasionally painful or even dangerous Further,
8 At the time that Respondent instituted MSAP, editonal unit employ-
ees were paid, for their usual full-time 37-1/2-hour week, a minimum of
about $257, and production unit employees were paid, for their standard
35-hour week, a minimum of about $253
9 The complaint does not allege that Respondent violated the Act in
that MSAP calls for a different review procedure, by different persons,
than previously called for
PIONEER PRESS 977
the employee may lose worktime, and consequently lose
pay, if he must spend time either undergoing a physical
examination himself, or accompanying a dependent child
who is undergoing such an examination Moreover, the
employee may have to choose between obtaining a
second opinion from a physician whom he does not
know, or from a physician part of whose fee must be de-
frayed by the employee In addition, arranging for the
second opinion, and assembling papers relevant to the
first opinion for the use of the physician who is to give
the second opinion, may turn out to be burdensome to
the employee
Nor do I agree with Respondent that the telephone-
call aspect of the MSAP "was no more a unilateral
change in benefits or working conditions, than would be
a new form from the insurance company [which] would
have to be filled [out] before a claim could be made "10
Failure to make a timely call would cost the employee
$500 even though the call would likely be occasioned by
an unusual situation highly distressing to the employee
and his family, and even though they might not have
either any recollection of the telephone-call requirement,
the employee's group and member number, the MSA ad-
visor's telephone number, or the telephone number and
address of the employee's doctor, nor ready access to the
"handy wallet-sized card with this information" prom-
ised by Blue Cross/Blue Shield, nor ready access to a
telephone 11 All these factors are disregarded by the tes-
timony of Blue Cross/Blue Shield Marketing Executive
Barr, relied upon by Respondent, that the institution of
MSAP did not affect benefits because the employee's
failure to make "a simple phone call" constituted a
"choice" to pay the $500
Respondent's answer to the relevant complaint, and
Respondent's postheanng brief, allege that as to the edi-
tonal unit, any duty to bargain which Respondent may
have had with respect to the MSAP was waived by the
provision, in the editorial unit contract, which requires
Respondent to "maintain health benefits at least at a level
substantially equivalent to the level in effect at the time
this contract is put into effect" Respondent does not
appear to contend that such a waiver is effected by the
provisions in both contracts which state that Respondent
would make available "the insurance plan, which is in
effect as of the date of this Agreement" However, in
support of the waiver contention as to both units, Re-
spondent's brief relies on Minkkmen's testimony to the
following effect As to health insurance, the language in
the 1985-1988 production unit contract is identical to the
language which appeared in "several" preceding con-
tracts During the negotiations which preceded the first
production unit contract containing this language, the
parties agreed that the Union was not interested in bar-
gaining about administrative terms of the insurance, but
rather substance of the terms Thereafter, the parties
agreed on the first of several editorial unit contracts
which contained as to health insurance the same Ian-
10 "Major Medical' claims may be filed within 12 months, and other
claims within 6 months, from the date a service is received
" Blue Cross/Blue Shield will not defray the cost of a hospital pa-
tient's bedside telephone
guage as the 1987-1990 contract "I think" the "lan-
guage" that Respondent "could change the plans, if it
was not a substantive change," is "virtually the same" in
both contracts
However, for the reasons previously indicated, I do
not believe that the institution of MSAP clearly and un-
mistakably constituted a change in administrative terms
rather than level of benefits Accordingly, to accept Re-
spondent's contention otherwise would run afoul of the
well-settled principle that to be effective, the waiver of a
statutory nght to compel bargaining must be expressed
clearly and unmistakably Metropolitan Edison Co v
NLRB, 460 U S 693, 708-710 (1983), Keystone, supra,
606 F 2d at 180, Owens-Corning Fiberglas Corp, 282
NLRB 609 (1987) 12 need not and do not consider
whether the Union would have been under any Novem-
ber 1987 duty to bargain about the institution of the
MSAP if Respondent had requested it to do so See
Speedrack, Inc , 293 NLRB 1054 (1989)
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by implementing
the MSAP without giving the Union prior notice and an
opportunity to bargain about it My conclusions in this
respect are unaffected by the evidence that in January
1988, after this program had been in effect since Novem-
ber 1, 1987, and Respondent had refused on November
20 to meet with the Union on this matter, Respondent
asked during bargaining negotiations as to the production
unit whether the Union had any proposals about "the
cost containment matter," to which the Union replied no
because of the "ongoing litigation" about it Any, offer
by Respondent to bargain about the matter, after Re-
spondent had taken unilateral action, came too late to
constitute a legal defense to such action Wisconsin Alu-
minum Foundry Go, 173 NLRB 1160, 1161 (1968), enfd
in this respect 440 F 2d 393 (7th Cir 1971), see also
Soule Glass Co v NLRB, 652 F 2d 1055, 1084 (1st Cir
1981), NLRB v Plymouth Stamping Division, 870 F 2d
12 Respondent's posthearing brief does not renew the contention in its
answer that a waiver of the Union s right to bargain about the MSAP
effected by the contractual entire agreement" and management-rights
clauses On the basis of the legal principles set forth in the text, I con-
clude that any such contention would be unwarranted Both contracts
contain the following language
Entire Agreement
The Agreement constitutes the total agreement between the parties
and, other than as explicitly set forth herein, concludes all collective
bargaining between the parties as to all subject matters, whether or
not covered herein, or discussed during negotiations, for the full du-
ration of the Agreement
The editorial unit management rights clause reads as follows (emphasis
supplied, for reasons which will appear)
The management of the business of the Company and the direction
of its employees, including the nght to plan, direct, and control op-
erations, to determine the size of the work force, and to hire, suspend
or discharge its employees for proper cause or to transfer or relieve
such employees from duty because of lack of work or other valid
reasons, shall be vested exclusively in the Company, together with
the right to study and Introduce other and Improved methods or fa-
cilities of operating the Company's business and the right to establish
and maintain rules and regulations relating to and governing the op-
eration of that business, provided, however, that these rights shall be
exercised by the Company with justice and equity and without con-
flict with any provision of this Agreement
The production unit clause is identical, except that the emphasized clause
is not Included
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1112 1117 (6th Cir 1989) Further the context of Re
spondent s remarks to the Union suggests that they were
directed to the production unit only and did not extend
to the editorial unit Moreover because Respondent
never did rescind the unilateral change Respondent s fi
nancial responsibility therefor is unaffected by any subse
quent unwillingness by the Union to bargain about the
matter See Lehigh Portland Cement Co, 286 NLRB 1366
fn 5, 1389 (1987)
B The Allegedly Unlawful Withdrawal of
Recognition and Subsequent Economic Changes with
Respect to the Production Unit
1 Background
As previously noted the Union had represented Re
spondent s production employees since about 1977 and
had been a party to a series of collective bargaining
agreements with Respondent covenng that production
unit The most recent of these agreements was effective
by its terms between January 19 1985 and January 21
1988 About January 12, 1988, the parties agreed to
extend this contract until a party gave 3 days notice of a
desire to terminate it
Between about January 12 and February 4 1988 the
parties engaged in about six bargaining sessions The
Union s chief spokesman dunng these negotiations was
Gerald Mmkkinen, who has been the Union s executive
director during the entire time the Union has been the
exclusive bargaining representative for both units of Re
spondent s employees Respondent s pnmary negotiating
team included Chief Financial Officer Thomas Nen
Human Resources Manager Frank Santos and Company
Attorney John McDonald The February 4 meeting was
attended by Federal Mediator Sergio Delgado Each
party identified the open issues to Delgado and advised
him of its position Then, the parties separated and went
into different rooms Delgado tned to obtain concessions
from both sides on different matters Respondent made
some concessions but was advised by Delgado that the
Union was not prepared to make any The Union asked
him to try to set up another bargaining session He stated
that not much progress had been made, that he believed
the parties needed some time apart that at that time he
was not going to set up another bargaining session and
that he would get in touch with them later to make such
arrangements Nen credibly testified that dunng this
meeting the Union did not state that it was unwilling to
continue negotiations or to seek additional meetings
with Respondent regarding the new contract
2 The 2-5 letter
On February 5, 1988 a letter referred to herein as the
2-5 letter was posted on a bulletin board where bulletins
could be and were posted by employees including
those who were union officials The notice had been pre
pared by production unit employee Peter Wagner and,
perhaps, production unit employee Charles Porter both
of whom were production unit stewards who on several
occasions had appeared for the Union during negotia
tions as members of the employee bargaining commit
tee 13 Editorial unit employee James Robinson the
chairman of that unit first saw the letter about the first
day it was posted Mmkkmen credibly testified that he
first became aware of this letter when Wagner drew it to
his attention a day or two after it had been posted Pro
duction unit employee Kenneth Forster the chairman of
that unit and a union negotiator, credibly testified that he
had no role at all in writing the document that he did
not post it and that he first saw it when he was handed
a copy about February 20 1988 after his return from va
cation There is no evidence that anyone except Wagner
and Porter knew anything about the letter before it was
posted The letter read as follows
We the Union Negotiators have agreed to pro
pose a 0 % pay increase for production personnel
for the next 3 years Without the support of the
production personnel we have found that we dont
[sic] have a leg to stand on We have decided to
suffer the consequences to make non union mem
bers understand what we were fighting for all along
THEM [Emphasis in ongmal ]
If you have any comments you would like to be
heard I would plan to attend the union meeting next
Monday If you dont [sic] have any comments I
hope you will understand this contract has been
given up as a loss It seems the company has won
this battle and we hope the next contract we will
have the support to put forth our proposals with the
force we wish we had now It seems the company
has control of the whole process It has been a defi
mte no or a change of wording to everything we
propose They understand how much we are at a
loss and they are taking total advantage of this fact
All Union Members must plan to attend this
meeting What we have to say will shock most but
hopefully we will be able to show our reasoning Its
[sic] time to give up the Battle, lick our wounds and
hope for another Battle that we can win at another
time
The Union Negotiators
Time & Place
Feb 8 1988 St Johns Church
2 30-400 2nd & 3rd Shifts
4 00-5 30 1st Shift
The entire notice was typewntten except for the nota
bons after the underscored language The Union Negotia
tors Nen credibly testified that as of the February 4
meeting the Union was adhenng to its initial proposal
for a 15 percent wage increase and that Respondent had
agreed to at least a 3 percent wage increase Mmkkmen
testified that he did not know if there was any wntten
notice to the employees, other than the 2-5 letter about
the time and place of the February 8 meeting
13 My finding that Wagner was a steward is based on employee Ken
neth Forster s testimony Because he was the production unit chairper
son I regard him as having a better source of knowledge as to this
matter than Mmkkmen whose duties as executive director encompass
several employers
PIONEER PRESS
979
Early in the morning of February 5, Santos ( gave Nen
a copy of the 2-5 letter 14 Nen testified that after read-
ing the letter, he told Santos that "based upon this it ap-
pears that the [Union] does not have the support of the
production workers", Nen testified that in so stating, he
was relying upon the second and third sentences of the
letter Nen went on to testify that Santos agreed with
Nen's comments, and that Santos ,'believed that on the
basis of this [letter] and this conversation that the
[Union] did not have the support of the production
workers" Nen further testified that during this conversa-
tion, he told Santos that the first sentence of the letter,
"which indicated they were going to propose a zero per-
cent pay increase," did not accurately describe what the
Union's proposal had been during negotiations Also,
Nen testified that dunng this conversation, he and
Santos decided to issue to the staff a memorandum,
quoted below, indicating their understanding of the posi-
tion that "we" had taken during the bargaining sessions
Santos was called by Respondent as a witness, but was
not asked about this conversation
Nen further testified that on that day, February 5, he
told Respondent's chief executive officer, Richard Gil-
bert, that Nen thought the letter indicated that the
Union did not have the support of the production work-
ers, and that the letter did not accurately represent either
Respondent's or the Union's bargaining position Nen
went on to testify that after reading the 2-5 letter, Gil-
bert said that he thought Nen's conclusion to be correct,
and was "somewhat puzzled as to why the zero percent
pay increase" had been put into the letter Gilbert did
not testify, nor was his absence explained That same
day, February 5, Nen prepared the following memoran-
dum (emphasis in original), which was posted that day
on all the bulletin boards over his and Santos' signatures
TO All Employees
FR Management
RE Negotiations Update
Even though the Union has told all employees, in
writing, it will not seek a wage increase, you should
be aware that the company has advised the Guild
that it would be agreeable to an initial lump sum
payment and/or a wage increase of approximately
3%
Even if the Guild does not pursue the matter of a
wage increase BUT STAYS ON ITS COURSE OF
SIMPLY TRYING TO FORCE COMPULSORY
UNIONISM AT THE BARGAINING TABLE WE
STILL STAND BY OUR COMMITMENT TO
THESE WAGE INCREASES
AND OUR COMMITMENT STANDS WHETH-
ER OR NOT A CONTRACT IS NEGOTIATED
WITH THE GUILD
14 Nen initially testified that Santos did not tell him where Santos had
obtained his copy of the letter A few minutes later, and while Nen was
still on the witness stand, Respondent s counsel stated that copies had
been put under Santos door as he came in on February 5 On the next
day of the hearing, Nen testified that Santos had said it was placed under
his door The latter testimony was not received to show the truth of
Santos' alleged report Santos testified for Respondent, but was not asked
about this matter
Ned testified that he wrote the last paragraph of this
memorandum because he inferred, from the first two sen-
tences in the second paragraph of the 2-5 letter, that the
Union intended to give up the contract as a loss unless
there was support or comments from "other production
workers" and might be giving up the contract negotia-
tions, and because, "based upon the previous night's bar-
gaining session with the mediator in which there had
been no progress made, I was a little bit concerned" that
there were not going to be continuing conversations be-
tween Respondent and the Union
About February 5 or 6, employee Wagner told Mink-
kinen that it was Wagner who had written and posted
the 2-5 letter Minklunen asked him why he had done
this Wagner replied that "his purpose in writing this was
simply to attempt to shake people up To attempt to
make them angry so that they would start getting wor-
ried about their own pay and working conditions and
therefore start getting involved in the process" Mink-
kmen told Wagner not to do this again Then, Mmkkmen
asked "somebody" to send him a copy, which he re-
ceived about February 7 He did not give Wagner any
instructions about countermanding or disclaiming the 2-5
letter, or take, on the Union's behalf, any action to coun-
termand or disclaim to Respondent anything in that
letter Nor, so far as the record shows, were any such
instructions given, or any such action taken, by any
other union representative
3 Respondent's notice of termination of the
bargaining agreement
By letter dated February 8, 1988; and received by
Minkkinen that same day, Nen gave notice of the termi-
nation of the bargaining agreement with respect to the
production unit, effective February 11, 1988 Nen testi-
fied that he wrote this letter because of concern that "ne-
gotiations had broken down and - it appeared that
this process could continue on indefinitely," and because
of concern with statements in the 2-5 letter "in which it
was unclear whether the [Union] was planning to contin-
ue the negotiations"
4 The Union's February 8 membership meeting
That evening, Monday, February 8, the Union .con-
ducted a 3-hour membership meeting which was sched-
uled between 2 30 and 4 p m for the second and third
shifts and between 4 p m and 5 30 p m for the first shift
This meeting was attended at one time or another by 30
to 35 employees, a number perhaps slightly larger than
had attended other meetings held during bargaining ses-
sions 15 Wagner did not attend, Porter may have done
15 My finding as to the number of employees who attended is based on
the testimony of Minklunen, a professional union official who was present
throughout the meeting Because of his further credible testimony that
there was a changing crowd throughout the meeting, I do not regard
Minkkinen s testimony as inconsistent with the testimony of Ray Kang,
who testified to an attendance of about 10 Kang is a production employ-
ee, who inferentially was able to attend only the portion of the meeting
which did not overlap his workshift
V 1
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
so After learning of the existence of the 2-5 letter,
Minkkmen had prepared a document headed "Compari-
son of Positions as of 2/8/88" He distributed copies
of this "Comparison" to the employees who attended the
meeting, and arranged for copies to be posted, later that
day, on bulletin boards at Respondent's facility As to
wage rates, the "Comparison" summarized the Union's
position as "Across-the-board increases to be determined
with total economic package," and Respondent's position
as "Freeze wage scales in first year, with a 'lump sum'
payment, undetermined increases in second and third
years of three-year contract" As to "Security of the
[Union]," the "Comparison" summanzed the Union's po-
sition as "Revise to provide modified [union] shop—cur-
rent employees could join or not join, but remain mem-
bers if join New employees required to join"," and
summarized Respondent's position as "Old contract"
(which did not require union membership of anyone as a
condition of continued employment) Some of the em-
ployees asked about the 2-5 letter Minkkinen said that
Wagner had written it, and relayed to those present what
Wagner had told him regarding Wagner's purpose in
writing it Mmkkmen went on to say that the "zero in-
crease stuff was certainly not the Union's position "17
There is no evidence that Mmkkmen told the employees
that putting up inaccurate notices was not a good idea
On February 8, Kang distributed copies of Minkkm-
en's "Companson" to other employees, and also posted a
copy on the bulletin board in the press room, where the
document remained for a reasonable period
5 The 2-9 letter
On the following day, February 9, another letter,
herein called the 2-9 letter, was posted on the bulletin
board in the lunchroom and (according to R Br 7) "on
the production employees' bulletin boards" Editorial
Unit Chairman Robinson credibly testified that he did
not see it on any bulletin boards other than the one in
the lunchroom, and that he did not know who wrote or
posted it Minkkinen credibly testified that he had not
seen the 2-9 letter until shown it by the General Coun-
sel's attorneys in early March 1988 in preparation for the
hearing, and that prior to that time he had never been
told by anyone that this notice had been posted on the
company bulletin board He further testified that he
could not recall whether anyone had ever told him that
it had been posted There is no evidence as to who pre-
pared or posted this letter, which reads as follows (em-
phasis in original)
February 9, 1988
TO ALL EMPLOYEES
The Union had figured that money which is basi-
cally peoples [sic] livelihood would make people
motivated enough to express some valuable opin-
18 This summary is consistent with Nen's rather vague testimony re-
garding the Union's union-security proposals
17 My findings as to Minkkinen s remarks are based on his testimony
To the extent that Kang's testimony may be inconsistent with Minkkm-
en's testimony, for demeanor reasons I accept the latter See also supra,
fn 15
ions Obviously we were wrong People chose to
believe that they could do better on there [sic] own
This time they may get there [sic] chance A re-
minder, once the contract is terminated by the
Company, everyones [sic] basic protections setup
[sic] by the Union over the years will be void The
Union has no idea how the Company will deal with
seniority, vacations, holidays, hours and overtime
When Frank Santos was asked he did not know
The Company put on a show before the Unions
even got started The only thing we- can't under-
stand is that a Company who's [sic] goal it is to be
profitable would STOP production cold, to sell em-
ployees a package, that they should be negotiating
with the Union This shows a strong desire for the
Union to be weak, enough so that they would spend
valuable production time bypassing the Union as a
bargaining [sic] unit One thing that bothers the
Union is that, most everything the Company is tell-
ing you, hasn't been said at the negotiating table
This gives us the impression that the Company is
dealing in bad faith Yet they keep accusing the
Union of holding up the negotiating process
I would like to point out to production personnel
a strong example of how the Company can deceive
[sic] one In December a Company Official [sic]
told production personnel that he would have a
meeting with all production crews to iron out exist-
ing problems with management, work conditions
and to get departments to work together This Offi-
cial [sic] promised things would be done He even
went as far as saying he would come back and
work in the Bressroom [sic] and Bindery to see
what conditions were really like What was DONE?
How sure are we of this mans [sic] word`,
The Union would like to pose one Question to all
contract employees The Companys [sic] desire is to
have all shifts on the alternate work schedule of the
37-1/2 hr - 4 day week KNOWING THAT
THERE ARE ONLY 24 HOURS IN A DAY
WHICH SHIFTS WILL BE REQUIRED TO
WORK WEEKENDS?
The Unions [sic] intention is to negotiate this
contract To keep the protections setup [sic] by the
Union for all employees under contract It is our in-
tention to negotiate this contract fairly for all Con-
tract Employees
THE UNION NEGOTIATORS
On the morning of February 9, Nen drafted the fol-
lowing notice to "All Employees," which later that day
was posted (over Nen's and Santos' signatures) on the
bulletin boards for employees in both units, and may also
have been distributed to all the employees (emphasis in
original)
As of midnight Thursday, February 11, 1988, the
collective bargaining agreement between Pioneer
Press and the production unit will be terminated,
meaning the contract will no longer be in effect
PIONEER PRESS 981
The decision to end the contract at this time
WILL NOT AFFECT YOUR JOB SECURITY,
WAGES, OR BENEFITS And as indicated previ-
ously, the Company is agreeable to an initial lump
sum payment and/or a wage increase of a approxi-
mately 3% (Some people have asked is the increase
over 3 years? The answer is NO This is just for
1988 The lump sum would be paid immediately)
Why is Pioneer Press ending the contract at this
time The main reason is because the Guild contin-
ues to place , strong emphasis on compulsory union-
ism And in no uncertain terms is Pioneer Press
going to make all employees join the Guild to keep
their jobs .
Secondly, we are concerned that spice there has
been very little progress in negotiations that this sit-
uation could drift on indefinitely We have made a
commitment to YOU, THE EMPLOYEE YOU
WILL RECEIVE YOUR WAGE INCREASES
WHILE MAINTAINING BENEFITS AT THE
SAME LEVELS
Nen testified that about 9 30 or 10 that morning, and
after he had drafted the foregoing memorandum, Santos
brought him a copy of the 2-9 letter Nen went on to
testify that he told Santos the first few sentences of the
2-9 letter indicated that the Union did not get the sup-
port it was looking for as indicated in the 2-5 letter, and
that Santos agreed with him Santos testified for Re-
spondent, but was not asked about this conversation or
where he obtained his copy of the 2-9 letter
Nen went on to testify that about 10 45 or 11 a m that
day, February 9, he telephoned CEO Gilbert, who was
then in Hawaii and received this call at about 645 or 7
a m local time Nen further testified that he read Gilbert
the 2-9 "memo" and expressed the conclusion that "the
meeting that was held the night before, based upon this
memo, did not secure the support that the [Union] had
been seeking and that in this memo the [Union] had indi-
cated that the employees had chosen to do better on
their own" Still according to Nen's testimony, Gilbert
asked for his "interpretations" of the 2-9 "memo" and
"the situation at the time", and Nen replied that "at this
point I had a doubt as to whether in fact the [Union] did
represent a majority of workers" Gilbert did not testify,
nor was his absence explained
6 The withdrawal of recognition
Shortly after receiving Respondent's February 8 letter
which terminated the contract effective February 11,
Mmkkmen requested Federal Mediator ,Delgado to try to
set up another bargaining session Early in the morning
of February 18, Santos informed Nen that Santos had re-
ceived a call from Company Attorney John A McDon-
ald indicating that the mediator had been in contact with
him About 9 30 or 10 a m that day, Nen and Santos
telephoned McDonald "to discuss what options that we
had from the standpoint of what we needed to do at that
point" Immediately thereafter, at about 10 15 or 10 30
a m, Nen conferred with Santos
Nen testified as follows He told Santos that a question
of the Union's continued majority status was suggested
by the following language in the 2-5 letter
We the Union Negotiators have agreed to pro-
pose a 0% pay increase for the next 3 years
Without the support of the production personnel we
have found that we d̀on't have a leg to stand on
It seems the company has won this battle and
we hope the next contract we will have the support
to put forth our proposals with the force we wish
we had now It's time to give up the battle,
lick our wounds and hope for another battle that
we can win at another time
Santos stated that the 2-9 letter indicated that the
Union's February 8 meeting had not gained the support
the Union had been seeking, and Nen expressed agree-
ment, these conclusions were based on the following lan-
guage in that letter "The Union had figured that money
which is basically people's livelihood would make people
motivated enough to express some valuable opinions Ob-
viously we were wrong People chose to believe that
they could do better on their own" Then, he and Santos
discussed the fact that of the 99 unit members only 29
were on checkoff Also, Nen told Santos that because
the Union had proposed a "modified Union Security
Clause" at an informal bargaining session where the
union bargaining committee was not present, and at the
next bargaining session attended by the committee "mis-
represented" that Respondent was willing to compromise
on that issue, Nen believed that this "was an attempt to
create an illusion that we were reneging on some previ-
ous commitment," and that the Union "was not seeking
to reach an agreement [but was] in fact creating or look-
ing for issues in which to generate excitement among the
employees in order to gain more support"
Santos was called by Respondent as a witness, but was
not asked about this conversation
The expired production unit contract did not require
union membership of anyone as a condition of employ-
ment As previously noted, 10 days earlier, on February
8, Kang had posted on a bulletin board in the pressroom
a copy of the "Comparison of Positions" summary, dis-
tributed by Minkkinen at the union meeting that day,
which stated that as to union security, Respondent
wanted the old contract Nen and Santos both testified
that they had not seen this document until it was pro-
duced at the hearing, on May 20, 1988 I do not credit
their testimony in this respect, for demeanor reasons, be-
cause the document was posted for a reasonable period
on one of the same production unit bulletin boards as the
2-9 letter, which Santos obtained on February 9 and
showed to Nen, and because Nen's own testimony
shows that his February 11 notice, in which he an-
nounced Respondent's termination of the production unit
contract, was untruthful in at least implying that the
Union's pending request for a maintenance-of-member-
ship clause as to incumbent employees called for "all em-
ployees [to] join the [Union] in order to keep their jobs"
By hand-delivered letter to Minkkinen dated February
18, 1988, Nen stated that Respondent had "good faith
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
doubt that the [Union] represents a majority of the pro
duction unit employees therefore we will no longer bar
gain with the [Union] in respect to these employees
Immediately after receiving this letter Minkkinen tried
to reach Nen by telephone Upon being told that Nen
was not available at that time Minkkinen left a message
for him to return Mmkkmen s call About 10 minutes
later, the call was returned by Santos Minkkinen said
that he had just received Nen s letter and asked the rea
sons for Respondent s claim of good faith doubt Santos
replied just what it says in the letter Minkkinen said
that he could read what was in the letter but what he
needed to know was the basis for Respondent s claim of
good faith doubt Santos again replied just what it says
in the letter
Between the February 1988 withdrawal of recognition
and the May 1988 hearing the Union attempted to proc
ess grievances, which Respondent refused to entertain
on behalf of the employees in the production unit
During this period, at the end of an editorial unit gnev
ance meeting whose subject is not shown by the record,
Minkkinen commented to Santos that the Union would
see him back at the bargaining table but did not make
any specific reference to numbers of employees repre
sented by the Union
7 The unilateral economic changes
In late February or early March 1988 Respondent
gave employees in the production unit a 4 percent wage
increase retroactive to about the end of January 1988
Also, about March 1988 Respondent extended coverage
under an existing long term disability plan to such em
ployees About February 16, 1989 Respondent imple
mented a voluntary termination plan whereby produc
tion unit employees can agree to voluntanly terminate
their own employment if they are scheduled for layoff
Respondent had no contact with the Union prior to im
plementation of any of these changes
Admittedly during bargaining negotiations Respond
ent had offered the Union only a 3 percent wage in
crease Further there is no evidence that Respondent
had offered during bargaining negotiations to extend this
disability plan to production employees The complaint
as to the wage increase and the disability plan refers only
to Respondent s alleged duty to bargain when they were
effected, nor does the General Counsel appear to con
tend that this conduct constituted an unfair labor prac
tice regardless of any such duty
8 Evidence allegedly bearing on the Union s
production unit majority status vel non
At all relevant times the production unit has consisted
of about 99 employees 18 As of the May 1988 hearing,
the Union had in its possession about 54 cards which
constituted membership applications and authorization
cards and which bore at least the purported signatures
of employees in the unit As of January or February
1988 all of the Union s members were on checkoff more
LB Respondent s withdrawal of recognition on February 18
1988 and the hearing on May 18 1988 turnover in the unit was negligi
ble
specifically dues were being checked off from the pay
checks of 23 unit employees from whom the Union pos
sessed membership cards and in addition 6 employees
from whom the Union did not possess membership cards
Checkoff authorizations can be revoked only in Novem
ber and can be revoked only after 1 year or after the
termination of the contract whichever is the earlier No
records were produced to show how long any of these
employees had been on checkoff Of the approximately
21 employees who were on checkoff and from whom the
Union possessed dated membership cards about 12
signed such cards before November 1986 There is no
evidence that anyone sought to revoke his checkoff au
thonzation at any material time 19 Minkkinen credibly
testified that at least five of the employees who had been
on checkoff had expressed interest to him after dues
were no longer being checked off in continued represen
tation by the Union None of them signed union authon
zation cards after checkoff was discontinued at least two
such employees were requested but failed to do so for
reasons not shown by the record Of the approximately
54 membership cards in the Union s possession as of the
May 18-20, 1988 hearing about 42 are dated on or
before February 18 1988, the date on which Respondent
delivered its letter to the Union withdrawing recogni
lion Of the approximately 25 membership cards bearing
a 1988 date about 21 (about 10 dated before February
18 and about 11 on various subsequent dates through
April 5 1988) were authenticated by witnesses who saw
the employee sign the card or to whom the employee re
turned the signed card No similar testimony was ad
duced as to the remaining four cards with 1988 dates
(only one dated after February 18) or as to the six cards
bearing dates between November 1981 and March 1985
and at least the purported signatures of employees who
terminated their checkoff on undisclosed dates Respond
ent did not produce from its files any exemplars of any
employees signatures
Production unit employee Kang credibly testified that
in January and/or February 1988 Herschall Todd who
signed a card dated March 9 said that he would not sign
because he didn t want to really pay the dues Kang
further credibly testified that in January and/or February
1988 Robert Sanhamel who signed a card dated March
9, said that he supported the Union but would not sign a
card because he would not pay dues when not all the
others were paying Mmkkmen credibly testified that at
least three composing room employees told him that
they supported the Union but would not sign cards be
cause they were afraid of retaliation by Respondent
However he could not recall the names of these employ
ees and was not asked whether any of them eventually
did sign cards (although his testimony at least implies
19 Respondent stopped checking off dues upon the termination of the
contract on February 11 1988 Between that time and the May 1988
heanng nobody in the unit paid dues Where the employer has suspend
ed checkoff upon the expiration of a contract the Union has a policy of
suspending dues until a new contract has been put Into effect During the
effective period of a contract employees who joined the Union but
ceased paying dues cannot vote or hold union office but otherwise enjoy
the same Internal union nghts as members who are up to date in their
dues
PIONEER PRESS 983
that they never did) or whether these conversations oc-
curred before or after the withdrawal of recognition
Production Unit Chairperson Forster credibly testified to
various conversations with other production employees,
mostly on his own (first) shift, during the first 3 months
of 1988, about the progress of negotiations He credibly
testified that none of the employees who had been on the
checkoff list gave him any indication that they did not
support the Union
The Union processed grievances under the production
unit contract during the last 6 months of the effective
period of that contract, and thereafter continued to file
production unit grievances which Respondent refused to
entertain At all material times, all union offices in the
production unit have been filled Laying to one side the
2-5 and 2-9 letters, there is no evidence that any em-
ployee told either Respondent or the Union, at any mate-
rial time, that he or any other employees did not want
the Union to represent them
C Unfair Labor Practice Allegations Which
Respondent Wants Deferred to Arbitration Under the
Editorial Unit Contract
1 The location and use of Respondent's bulletin
boards and posting areas
All of Respondent's production unit employees, and
some of Respondent's editorial unit employees, work in
Respondent's Wilmette facility, which contains several
bulletin boards and posting areas One bulletin board is
located at the main employee entrance, which employees
in both units regularly use to enter and leave the facility
Another bulletin board is located next to the lunchroom,
which is also used by employees in both units Right
next to this bulletin board are glass doors, leading to the
composing department, which have been routinely used
for posting In addition, several other bulletin boards are
physically located in the editorial unit work areas (in-
cluding over the copy machine, in the photo lab, and
above the coffee machine), and others are physically lo-
cated in the production-unit work areas (including the
pressroom and the bindery) In supervisors' presence,
Respondent's employees have used all these bulletin
boards and posting areas to post such items as tickets to
plays, material regarding tickets to an amusement park,
invitations to parties, requests for pet sitters or apartment
sitters, football and baseball pools, for-rent notices, an-
nouncements of a seminar on police reporting, and for-
sale notices with respect to ballet tickets, Avon products,
Girl Scout cookies, used furniture, and old tires Such
notices (sometimes with the names of the posting em-
ployees) have been posted by production unit employees
on the bulletin boards in the editorial department, and by
editorial unit employees on the bulletin boards in the
production department In addition, both before and after
Respondent withdrew recognition from the Union with
respect to the production unit, the bulletin boards in the
production area have borne notices, which show on their
face to have proceeded from editorial employees, offer-
ing apartments and opera tickets for sale and publicizing
musical recitals being given by an editorial department
employee Since at least 1980, Respondent's employee
handbook has stated, in words or substance, "Bulletin
boards are placed in each department in Wilmette and in
all of the outer offices Check the bulletin board in your
department or office regularly for notices of important
events, changes in company or department policy, or
other information" At least in the February 1988 version
of the handbook, this provision appears in a section enti-
tled "Other Benefits," in which are also described (inter
aim) vacations, holidays, "personal days," tuition reim-
bursement, a matching-gift program for employee dona-
tions to charities, parking stickers at a "nominal charge,"
free classified ads, availability of Respondent's van for
personal hauling, contributions to Respondent's in-house
newspaper, company-paid dues to professional and civic
organizations, time off to vote, payment for jury duty,
and postage stamp purchase facilities Cf supra fn 7
The production unit contract which expired on Febru-
ary 11, 1988, included the provision, "The employer
agrees to provide bulletin boards suitably placed near
time clocks and in the lunchroom for the use of the
[Union] " The editorial unit contract in effect at all times
material here includes the provision, "The Employer
agrees to provide a bulletin board suitably placed in each
Company office where bargaining unit employees are
working, for use of the [Union] " Substantially similar
provisions have been included in earlier editorial unit
contracts
Before February 18, 1988, when Respondent withdrew
recognition from the Union with respect to the produc-
tion unit, Union Steward Sarah Mark, an editorial unit
employee, had posted, in supervisors' presence, union lit-
erature relating to the production unit in the production
area and possibly in the editorial area, and union litera-
ture relating to the editorial unit in the editorial area
During- this same period, Production Unit Chairperson
Kenneth Forster, a production unit employee who par-
ticipated in production unit negotiations, had posted, in
supervisors' presence, on the bulletin board above the
copy machines in the editorial work area, on the glass
doors of the composing department, on the bulletin
board in front of the lunchroom, and on the bulletin
board in the bindery (part of the production work area),
notices regarding upcoming union meetings and the
progress of collective-bargaining negotiations During
this same penod, editorial unit employees Linda Lipp
and Robinson, a union steward and the editorial unit
chairperson respectively, had posted, in supervisors'
presence, notices regarding information on negotiations
or intraunion matters, a union-sponsored editorial con-
test, and union memos, on the bulletin boards by the
lunchroom and the main employee entrance, and in the
editorial department Robinson testified that he had
never had any discussion with management about a
policy regarding posting information to employees, and
that, to the best of his knowledge, nothing was required
Lipp testified that she did not know of a company policy
regarding posting information to employees, that she had
never been required to do anything, and that employees
"are not required to have anything reviewed or author-
ized or approved We just put up whatever we have"
Forster testified that he did not know of a company
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
policy regarding posting of information to employees As
to the period before Respondent withdrew recognition
from the Union with respect to the production unit,
there is no evidence of any company restriction on use
of the bulletin boards
2 Removal of union notices from bulletin boards
Inferentially on various dates between about January
25 and February 5 1988 production unit employee For
ster, the chairperson of that unit posted in the bindery
(part of the production area) a series of notices which
had been put together by a joint committee of produc
lion and editorial employees and which set forth what
had been happening in production unit contract negotia
bons On a date between February 15 and 19 inferential
ly on February 18 or 19 the notices were taken down
Forster replaced them on 8 to 11 occasions and each
time he posted them they were taken down
On February 22 1988 the Union prepared two no
tices both of them bearing the signature The Produc
tion Unit Information Committee One of them headed
Management is Nervous asserted that Respondent was
nervous b.ecause of the high numbers of production
employees who had signed union cards and in conse
quence had upped the size of a wage increase (see supra
part II, B8) The nervous notice further stated that Re
spondent was trying to con us by saying they no longer
recognize the Union that Respondent was legally
forced to recognize the Union unless the employees
say otherwise and that the undersigned will continue
our fight for a new contract The record indicates that
this notice was intended as some kind of response to the
2-5 and 2-9 letters The other notice, headed Manage
ment Deceives Employees asserted that Respondent
was acting unlawfully by asking or requiring employees
to sign a slip, which allegedly purported to waive em
ployee rights, before giving them a copy of an employee
handbook Both notices referred to union charges with
the Board relating to the subject matter of the notices
The charge filed by the Union on February 22 1988,
which gave rise to the complaint in Case 13-CA-27533
included such allegations No production employee par
ticipated in drafting either of these notices
On February 22 1988 editorial unit employee Sarah
Mark who works in the Wilmette facility and was chief
steward of the North Group 20 posted these two no
tices on the bulletin board by the lunchroom on the
composing room doors next to the lunchroom, and on
the bathroom doors When she walked by these locations
about a half hour later she found out that the notices
had been taken down She replaced them but when she
walked by these locations later that day she found out
that the notices had been taken down again For several
days, she kept on replacing the notices and the notices
kept on being removed These notices were also re
moved from the east exit bulletin board where they had
been posted by Editorial Unit Chairperson Robinson
20 Respondent s letterhead lists its newspaper in four groups with the
Wilmette Life included under North Inferentially the Union s North
Group consists of unit employees who work at its 12 papers listed under
North
Meanwhile on the evening of February 23, editorial
unit employee Linda Lipp a union steward received
two telephone calls from employees who were con
cerned about the removal of these notices from bulletin
boards in the Wilmette office The following morning,
she wrote a memorandum to Santos which stated, in
part
It has come to our attention that Guild notices
and memos are being removed from bulletin boards
and other posting areas in the lunchroom and other
parts of the building This is a violation of the Fair
Labor Standards Act and must [be halted] immedi
ately
Please inform your department managers that
guild notices from either the shop or editorial units
must not be torn down
That afternoon Lipp received the following rely
from Santos
Reference is made to your memo this date con
cernmg notices and memos being removed from
bulletin boards and other posting areas in the lunch
room and other parts of the building The Fair
Labor Standards Act has nothing to do with bulle
tin boards but covers such items as overtime corn
pensation and minimum wages Further since the
guild does not represent a majority of production
workers they will not be afforded the opportunity
to communicate to those workers
Finally this matter does not involve editorial em
ployees therefore it is out of the scope of your role
as a guild steward in the editorial department
3 The warning to Robinson for distributing union
literature in the production area
About the last week in February Santos told editorial
unit employee Robinson the chairman of that unit that
editonal unit employee Mark the chief steward of the
North Group, had been upstairs in production passing
out cards and handing out memos Santos said that this
was illegal and he wanted it to stop Robinson asked
what Santos meant Santos said Its illegal Robinson
said that he did not think so but would tell Mark what
Santos had said 21
Shortly before March 3, 1988 Robmson was advised
by some unidentified employees in the production unit
that notices to production employees were being taken
down An unidentified clerk in the human resources de
partment (headed by Santos) told Robinson that the
clerk had been ordered by Santos to take down these no
tices 22 Because of these reports to him, Robinson decid
ed to give copies of the nervous and deceives no
tices to the production unit employees directly
21 My findings in this paragraph are based on Robinson s uncontmdict
ed testimony received without objection or limitation
22 My findings in these two sentences are based on Robinson s uncon
tradicted testimony which upon timely objection was not received to
show the truth of these reports
PIONEER PRESS 985
On the morning of March 3, before the beginning of
Robinson's workday, he entered the production area,
carrying copies of these two notices Robinson had se-
lected the hour of his visit after "strategy discussions"
with production employees, who told him that at that
hour they would all be there but would not be busy He
testified that he entered the production area shortly after
8 30 a m, Santos testified without objection that that
afternoon, the manager of the production area, Kirk
Kirksey, reported to Santos that Robinson had entered
the production area about 7 30 a m and that Robinson
talked to production employees who were "on work
time" Kirksey did not testify Robinson entered the pro-
duction area through the bindery He testified that he
saw nobody there, and that he thereupon proceeded to
the pressroom Santos testified without objection or limi-
tation that Kirksey reported to him that afternoon that
Robinson talked and passed out leaflets to people in the
bindery The three presses in the pressroom are large
machines which, when running, are very loud and poten-
tially dangerous Large and potentially dangerous ma-
chinery is not located in work areas where editorial
people normally work
When Robinson entered the pressroom, none of the
presses was operating Some of the 8 or 10 production
employees in the pressroom were coming to or leaving
work, some were smoking cigarettes, some were eating
snacks and having coffee, and some were going into the
locker room area Robinson believed that at least some
of the employees were between shifts He went into the
locker room and gave a couple of memos to people who
were changing clothes Also, he stationed himself about
10 feet from the presses, and in an aisle between a dump-
ster at the end of the presses and a wall The production
employees were standing at the coffeepot or right next
to the presses Robinson gave out copies of the notices to
the employees in the pressroom, Santos testified without
objection or limitation that Kirksey reported having re-
ceived copies from Robinson Robinson gave the em-
ployees his name and his union office He told some of
them that "we think" the notices he was giving them
had been taken down by management and "we just want
to make sure that you have them," and that any ques-
tions could be directed to the employees' own local offi-
cers or to Robinson Robinson did not ask whether any
of the employees had punched in After remaining in the
pressroom for about 15 minutes, Robinson went through
the plateroom and looked into the composing room, but
found nobody there Next, he went up to the lunchroom,
which is used by employees in both units Seeing several
workers who said they were bindery workers and who
were eating sweet rolls, he sat down, talked with them
for a few minutes, and gave them copies of the notices
Robinson, who works for Respondent as a photographer,
testified that he left the lunchroom and proceeded to the
darkroom about 9 a m, an hour before his tour of duty
began There is no direct evidence (hearsay or other-
wise) contradicting his testimony in this respect, includ-
ing his testimony about times
Santos testified that about 9 o'clock on the morning of
March 3, George Bomberry, who is Respondent's press-
room manager and had been on Respondent's negotiating
team, advised Santos that Production Area Manager
Kirksey had told Bomberry that about 7 30 a m, Kirksey
had seen Robinson in the production area, between the
bindery and the commercial press, passing out leaflets
On timely objection, Santos' testimony in this respect
was not received to show either the truth of Kirksey's
alleged report to Bomberry, or the truth of Bomberry's
report to Santos Kirksey and Bomberry did not testify,
nor was their absence explained
According to Santos' testimony (received without ob-
jection or limitation), Kirksey told him that afternoon
that about 7 30 that morning, Robinson had passed out
leaflets, in the bindery and pressroom areas, to the
people working in that area (including Kirksey) and in
the process had talked to them, that the employees to
whom Robinson was talking were on worktime, and that
Robinson was moving around there for about 15 minutes
Santos testified that Kirksey did not indicate any other
areas that he had seen Robinson in, and did not tell
Santos whether the press in the pressroom was working
while Robinson was there
On the following day, March 4, Santos drafted the fol-
lowing memorandum to Robinson, dated March 4
RE Union activity
It has been brought to my attention that you have
been engaging in non editorial union activity in the
production areas of Pioneer Press, specially in the
press room on March 3, 1988 You will refrain from
such activity in the future and interfering with the
production operations of the company immediately
Further, you are not to be in the production areas
of Pioneer Press unless authorized Failure to heed
this warning will result in disciplinary action
Santos testified that he wrote this letter because he felt
that Robinson was in an unauthorized area and interfer-
ing with what was going on in that particular depart-
ment, and that if Santos' information had been that Rob-
inson was talking to employees in the locker room
(which is in the production department area) when they
were not punched in, Santos would not have considered
it appropriate to issue any kind of letter
About noon on Sunday, March 6, Robinson happened
to meet Santos in the company parking lot Santos said
that Kirksey had seen Robinson in the production area
handing out memos Santos said that Robinson was not
supposed to be down there and Santos had written him a
letter about that Robinson asked what the letter said
Santos replied that the letter said Robinson was not sup-
posed to be down there handing out memos Robinson
said that Santos had been taking the memos down, that
Robinson had been in the production area trying to see
that they got the memos, and that Robinson thought
"that was the fair thing to do" He further said that if
Santos would leave those memos up, Robinson would
not go to the production area and pass them out Santos
said that he would not leave the memos up, that he had
always had a good relationship with the editorial em-
ployees and with Robinson as the editorial unit chair-
man, that any memos which he wrote as the editorial
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
chairman about "editorial business" would stay up, and
that any memos about "production" Santos would con-
tinue to take down He said that the letter to Robinson
was in the nature of a warning Santos went on to say
that Kirksey had seen Robinson in the production area
about 7 30 a m Robinson said that he knew he had not
been there that early, because he had intended to be in
the production area when people were there and were
not working, that he thought he had been there at 8 30,
and that at that hour he had in fact passed out the
memos in the production area to the production employ-
ees Then, Robinson went to the darkroom, where he
found a copy of Santos' March 4 warning
Prior to March 3, 1988, editorial unit employee Sarah
Mark, a steward for the North Group, had passed out
union literature to employees in both units, while she
herself was on break but some of the production work-
ers, at least, were on worktime She had distributed this
literature almost everywhere on the premises, including
production areas, editorial areas, and common areas such
as the lunchroom She testified that she was seen passing
out literature by editorial department supervisors and
production personnel who "I believe were supervisors,"
and nothing was said to her about this activity Also, on
5 or 6 occasions over a 1-month period which ended at
the end of February or mid-March 1988, she passed out
membership cards to about 13 production employees in
the lunchroom, the composing room, the pressroom, and
the plateroom Santos, who has worked for Respondent
long enough to have signed the editorial unit contract ef-
fective February 1, 1987, testified that as of March 4,
1988, he was not aware, except for Editorial Unit Chair-
person Robinson, of any nonproduction employees' being
in the production area during "working time," talking to
production employees and passing out material Howev-
er, as previously noted, he undisputedly told Robinson
about the last week in February 1988 that editorial unit
employee Mark had been upstairs in production passing
out cards and handing out memos, and that this was "il-
legal" Mark testified that before March 3, 1988, she had
used her breaktime to distribute "personal notices" (such
as invitations to parties) to both production and editorial
employees She further testified in May 1988 that about
three times a week since about the beginning of 1982, she
had seen other employees pass out union literature, foot-
ball betting forms, invitations to private parties, and re-
quests for others to purchase Girl Scout cookies or other
things Editorial unit employee Lipp, who since early
1985 has held various union offices, testified that both
before and after March 3, 1988, in her capacity as a
union officer, she had distributed to other editorial unit
employees such union literature as information put to-
gether by a production information committee about pro-
duction unit negotiations, memos from a sister local
union in Chicago, credit union notices, and memos from
Editorial Unit Chairman Robinson She testified that
during this period of 6-1/2 years, she had engaged in this
activity at least once a week, both during normal work-
ing hours and during her breaktime, at the employees'
desks, in the corridors, and in the lunchroom, and in the
presence of supervisors According to Lipp, on a couple
of such occasions the supervisors present expressed inter-
est in what was going on and asked for a copy, which
she gave them to read themselves Lipp went on to testi-
fy that supervisors had been present when other employ-
ees had passed out literature, and that she had never seen
the supervisors say anything to these employees about
this activity Lipp testified that she had never been in-
formed of a company policy regarding passing out litera-
ture to employees
Robinson testified in May 1988 that about every 2
months during his 2-year stint as editorial unit chairman,
he had put union memos on all the editorial employees'
desks, during normal working hours when he himself
had no work to do Robinson further testified that every
week or two during his 5 years of employment with Re-
spondent, he had seen Mark, Lipp, and other employees
hand out union memos, invitations to parties and sales,
tickets to events, and Girl Scout cookie solicitations He
testified that the foregoing distribution activity had taken
place in the presence of supervisors, and nothing had
been said to him or, at least in his presence, to the other
employees He testified that before receiving the March
4, 1988 warning letter, he did not know of any company
policy regarding passing out literature to employees
Further, he testified that before he received this warning
letter, there had been no "official restrictions" on being
in the production area, that all the employees had had
free access to the production area entrances, exits, and
aisles, that he generally proceeds through this area to get
to his car, that he had been down there to take pictures
(Robinson's job classification is photographer), and that
at the suggestion of Respondent's purchasing officer, he
had often gone into the bindery area to wrap personal
items for shipment He further testified that he had never
gone to the pressroom to distribute literature of any
kind, or to socialize with the employees
Production employee Forster, the chairperson of the
production unit, has distributed—in the production area
(including the bindery and the press room), the compos-
ing room, next to the ad desk, and in the cafeteria—foot-
ball-pool and baseball—pool literature, cards offering
automobiles for sale, and union literature, dunng his shift
and on times other than his breaktime to other employ-
ees who were sometimes on worktime and sometimes on
breaktime Since March 3, 1988, he has distributed to
other employees the monthly Guild memo and Respond-
ent's monthly in-house paper During his 8 years of em-
ployment at Respondent's Wilmette facility, he has seen
other production employees distribute similar material to
other employees on plant premises The foregoing activi-
ty by Forster and the other employees was observed by
supervisors, who said nothing about it
4 The Robinson grievance of March 7, 1988
The editorial unit bargaining agreement provides,
"Any complaint of employees and/or the Union as to the
interpretation or enforcement of this Agreement shall be
adjusted" under a two-step grievance procedure If the
matter has not by that time been satisfactorily resolved,
the Union "may submit the grievance to final and bind-
ing arbitration" Section 5 6 of that agreement provides,
"There shall be no discrimination against an em-
PIONEER PRESS 987
ployee because of membership or activity in" the Union
"nor because of the existence of a contract between" the
Union and Respondent
By memorandum to Santos dated March 7, 1988, Rob-
inson stated,
This is to request a meeting with you to grieve the
warning letter you wrote me about going into the
production area, and the letter you wrote Linda
Lipp about her duties as a union officer We feel the
letters violate article 5 6 of the contract, as well as
sections of the National Labor Relations Act Since
you wrote the letters, and you are the company
representative at Stage 2 for grievances, perhaps we
could combine stage 1 and stage 2 on this
By letter dated March 21, 1988, Santos stated, "Pioneer
Press has not violated the contract provisions of 5 6 or
the Labor Act, therefore said grievance is denied"
On May 6, 1988, Respondent filed with the Regional
Office a motion to defer to arbitration certain portions of
the complaint in Case 13-CA-27580 More specifically,
the motion was directed to the complaint allegations that
Respondent (a) violated Section 8(a)(1) of the Act by es-
tablishing and maintaining an overly broad no-solicitation
and distribution rule which prohibited employees from
engaging in union activities on its premises, (b) violated
Section 8(a)(1) and (3) by issuing a written warning to
Robinson, and (c) violated Section 8(a)(1) and (5), as to
both the production and editorial units, in unilaterally
changing its bulletin board policy by refusing to allow
posting of union notices (relating to employees in the
production unit) by union agents or editonal department
employees 23 This motion was denied by the Regional
Director on May 11, 1988, and, in effect, was renewed to
me at the hearing (see infra part II, C, 5a)
5 Analysis and conclusions
a Whether certain complaint allegations should be
deferred to the arbitration procedure in the editorial
unit contract
Like the Regional Director, I reject Respondent's con-
tentions that certain complaint allegations should be de-
ferred to the arbitration procedure in the editorial unit
contract Because no contract covering the production
employees was In effect at the time such alleged unfair
labor practices occurred (and, indeed, Respondent was
not even recognizing the Union as their representative),
such deferral would obviously be inappropnate as to the
allegations that Respondent violated Section 8(a)(1) by
establishing and maintaining an overly broad no-solicita-
tion and distnbution rule with respect to production em-
ployees, and violated Section 8(a)(1) and (5) by refusing
to allow posting of union notices relating to such em-
ployees Arizona Portland Cement Go, 281 NLRB 304
(1986) Moreover, such nondeferrable complaint allega-
tions with respect to production employees turn partly
23 The motion also purported to encompass the March 1988 unilateral
change in the employee disability plan covering production employees
However, at the hearing Respondent's counsel conceded, in effect, that
this request had been made in error
on resolving the same factual and legal issues as the cor-
responding complaint allegations as to editorial unit em-
ployees and the 8(a)(1) and (3) allegations with respect to
the reprimand of editorial unit employee Robinson Ac-
cordingly, none of these issues should be deferred to the
arbitration procedure in the editorial unit contract
Heck's, Inc , 293 NLRB 1111, 1115 (1989), Blue Cross &
Blue Shield of New Jersey, 288 NLRB 434, 436 (1988),
Burroughs Interstate Services Credit Union, 280 NLRB 292
fn 3 (1986) I note that as to the allegedly unlawful rep-
rimand administered to editorial department employee
Robinson for distributing union literature to production
employees, such conduct implicated a statutory nght-
namely, the right to receive union literature—possessed
by production employees, as to whom Respondent was
not and is not recognizing the Union at all See Photo-
Somcs, Inc , 254 NLRB 566 (1981), enfd 678 F 2d 121
(9th Cir 1982), Union National Bank of Pittsburgh, 276
NLRB 84, 88-89 (1985), Jennings & Webb, Inc , 288
NLRB 682 (1988) I note, moreover, that when editorial
unit employee Lipp; a union steward, complained about
the removal of union notices from the lunchroom (used
by all employees) and other parts of the building, Santos
replied, inter aim, that the matter "does not involve edi-
torial employees, therefore, it is out of the scope of your
role as a guild steward in the editorial department"
b Whether Respondent's -action with respect to the
bulletin boards violated the Act irrespective of whether
Respondent lawfully withdrew recognition with respect
to the production unit
The evidence shows that as to material unrelated to
the Union, Respondent imposed no restriction on posting
by employees, including posting by editorial unit em-
ployees of nonwork-related notices on bulletin boards in
the production area and in areas (such as the lunchroom)
regularly used by both editorial and production employ-
ees Accordingly, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by removing, from these bulletin
boards and posting areas, notices about the Union's activ-
ity on behalf of the production employees Midwest Stock
Exchange, Inc v NLRB, 635 F 2d 1255, 1271 (7th Cir
1980), St Anthony's Hospital, 292 NLRB 1304, 1308
(1989), Connecticut Color, Inc , 288 NLRB 699, 704
(1988), Central Vermont Hospital, 288 NLRB 514 (1988),
New Process Go, 290 NLRB 704, 720-721 (1988), Spring-
field Jewish Nursing Home for the Aged, 292 NLRB 1266,
1272 (1989) The expiration of the bargaining agreement
with respect to production employees did not entitle Re-
spondent to cancel posting privileges with respect to
production unit union matters, while permitting employ-
ees to post materials with respect to other matters unre-
lated to work Container Corp of America, 244 NLRB
318, 319-321 fn 2 (1979), enfd in relevant part 649 F 2d
1213, 1215-1216 (6th Cir 1981) Moreover, because Re-
spondent was admittedly under a duty at all relevant
times to bargain with the Union as the representative of
the editorial employees, I find at this point that as to the
editorial employee unit, Respondent violated Section
8(a)(5) by its action, without giving the Union notice and
an opportunity to bargain, in unilaterally altering Re-
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent s past practice of permitting the Union and the
editorial unit employees to use the bulletin boards and
other posting areas to post notices regarding union activ
ity among the production employees Hedison Mfg Co
249 NLRB 791 809-810, 823 (1980) enfd 643 F 2d 32
(1st Cir 1981)
c Whether Respondents action in connection with
union sohatation and the distribution of union
literature in the production department violated
the Act
(I) The warning to editorial department
employee Robinson
The credible and largely uncontradicted evidence es
tablishes that on March 3, 1988 editorial unit employee
Robinson the chairperson of the editorial unit, went to
the pressroom before his tour of duty began and when
none of the presses was operating distributed to produc
tion employees who were not supposed to be actively
working copies of union notices (which Respondent had
unlawfully removed from all the bulletin boards) regard
ing union matters in the production unit and told such
employees that any questions about the notices could be
directed to their own local officers or to Robinson 24 At
least a prima facie violation of Section 8(a)(1) and (3) of
the Act is made out by Respondent s conduct in issuing
Robinson a warning based on this incident
Respondent s posthearmg brief contends (Br 36 fn 18)
that the warning letter which Santos issued to Robinson
was not unlawful because Santos believed that Robin
son was in an unauthorized area talking to production
employees while they should have been working Be
cause the warning letter drafted by Santos shows his
knowledge that during this incident Robinson was en
gaging in union activity Respondent cannot defend that
letter to Robinson on the basis of any mistaken belief by
Santos that Robinson had misconducted himself in con
nection with such activity NLRB v Burnup & Sim 379
U S 21(1964) NLRB v Knuth Bros Inc 537 F 2d 950,
954 (7th Cir 1976) Kurz Kasch Inc 286 NLRB 1343 fn
1 (1987) In any event, it is Respondent which bears the
burden of showing that it entertained an honest belief
that in connection with his distribution and solicitation
on behalf of the Union Robinson engaged in the conduct
claimed to have deprived him of statutory protection
Franzia Bros Winery 290 NLRB 927 931 (1988) General
Chemical Corp 290 NLRB 76 81 (1988) Town & Coun
try Nursing Home 291 NLRB 74 75 fn 1 (1988) I find
that Respondent has not sustained that burden Thus al
though the warning letter from Santos alleged that Rob
mson had Interfered with Respondent s production oper
ations no testimony to this effect was tendered by either
the manager of the production area (Kirksey) who was
present during Robinson s visit, or by anyone else who
24 The only even arguably contrary testimony consists of Santos testi
mony that he was told by Kirksey (who unexplamedly did not testify)
that the employees to whom Robinson was talking were on work time
Although this hearsay test mony was not objected to I regard It as less
reliable than Robinson s direct testimony which is more specific as to
whether the production employees were supposed to be actively working
during Robinson s contact with them
observed It Similarly, although Respondent s counsel
stated at the hearing that Robinson should not have en
tered the pressroom because of the danger created by the
operation of the presses, neither Kirksey nor anyone else
denied Robinson s credible testimony that during his
visit the presses were not operating Further although
the warning letter indicated that editorial department
employee Robinson was not supposed to be in the pro
duction areas without authorization, no witness denied
either editorial department employee Mark s credible tes
timony that while she was on break she had previously
distributed union literature to production employees (on
occasion when they were on work time) in production
areas and in supervisors presence or her credible testi
mony that in such areas she had passed out membership
cards to production employees Nor did any witness
deny Robinson s credible testimony that before he re
coved the warning letter, there had been no restrictions
on being in the production area all the employees had
had free access to the production area entrances, aisles
and exits he had generally proceeded through the pro
duction area to get his car and at the suggestion of Re
spondent s purchasing officer Robinson had often gone
into the bindery area to wrap personal items for ship
ment For purposes of determining whether Respondent
had a good faith belief in the existence of circumstances
which would at least arguably render Robinson s con
duct unprotected I regard any supervisor s knowledge as
chargeable to Respondent whether or not Santos pos
sessed it 25
In any event I conclude that in issuing the warning
letter to Robinson, Santos was specifically motivated by
a desire to prevent the Union so far as he could from
communicating with the production employees I so find
because during his March 6 parking lot conversation
with Robinson about the warning letter Santos made no
claim that Robinson s conduct in distributing the memos
had endangered anyone or had interfered with produc
tion because Santos did not testify to receiving reports
to that effect from either Kirksey or Bomberry because
Santos by his own admission was not advised by Kirlcsey
whether the press in the pressroom was working while
Robinson was there because there is no evidence that
Santos attempted to retrieve or alter the warning letter
or even to conduct a further mvestigation after Robin
son had truthfully advised him in effect, that he had
been misinformed about the hour when Robinson had
distributed the memos and he had in fact done so when
production employees were not supposed to be actively
working 26 because when editorial department employee
25 NLRB v EDS Service Corp 466 F 2d 157 (9th Cir 1972) KR!
Constructors 290 NLRB 802 811 (1988) Photo Dnve UP 267 NLRB 329
361 (1983) Jackson Sportswear Corp 211 NLRB 891 902 (1974)
26 Santos testimony about his conversations with Bomberry and Kirk
say and Robinson s undisputed testimony as to his conversation with
Santos show a belief by Santos that the production employees were not
supposed to be actively working at 8 30 (when Robinson had entered the
area) but were supposed to be actively working at 7 30 Accordingly and
because there is no evidence that Nen played any part in the decision to
issue the warning letter drafted and signed by Santos I regard as immate
nal Nen s testimony on direct examination I believe the day newspaper
shift begins at eight thirty Moreover on cross-examination he merely
testified I know that there is a shift working at that time
PIONEER PRESS

989
Lipp complained to Santos about Respondent's removal
from the bulletin boards of the notices which Robinson
thereafter distributed to the production employees,
Santos stated that the Union "will not be afforded the
opportunity to communicate to" the production employ-
ees, and because, during the March 6 parking lot conver-
sation, Santos told Robinson, in effect, that Santos'
action with respect to Robinson's distribution of the
memos was an extension of Santos' conduct in systemati-
cally removing from all the posting areas in the facility
all union postings regarding production employees, al-
though Respondent had posted on all facility bulletin
boards its memorandums announcing Respondent's termi-
nation of the production unit contract and Respondent's
intention of giving production unit employees a wage in-
crease even if the Union did not pursue the matter and
never obtained a contract covering them, and although
Respondent left on all the bulletin board postings by
either production or editorial employees regarding 'all
other matters In view of the evidence summarized in
this paragraph, Respondent has plainly failed to dis-
charge its burden 27 of showing that Robinson would
have received a warning letter even if he had been dis-
tributing material to, and talking with, production em-
ployees about subjects unrelated to the Union
For the foregoing reasons, I find that Respondent's is-
suance of the warning letter to Robinson violated Sec-
tion 8(a)(1) and (3) of the Act
(2) The alleged rule against union solicitation
and distribution
As previously found, editorial department employee
Robinson received a warning letter for "non editorial
union activity" in the pressroom, when the activity in
question took place before the beginning of his shift and
consisted of his distnbution of union notices (involving
the production unit) to production employees at a time
when the presses were not operating and the employees
were not expected to be actively working, and his con-
comitant invitation to them to direct any questions about
the notices to him or other union officers Respondent's
counsel stated on the record that "if anybody did what
Mr Robinson did, anybody that wasn't authorized to be
there, would receive the same discipline" Further, as
previously found, the warning letter to Robinson consti-
tuted an extension of Respondent's conduct in systemati-
cally removing these notices from bulletin boards and
posting areas throughout the Wilmette facility where all
the production unit employees worked, a posting ban ad-
mittedly extending to both production and editorial em-
ployees and admittedly imposed for the purpose of pre-
venting the Union from communicating with the produc-
tion employees I infer from these circumstances that the
conduct for which Robinson was warned was forbidden
to employees generally, or at least to editorial unit em-
ployees generally—in short, that Respondent has estab-
lished, maintained, and enforced a rule or policy forbid-
ding employees to engage in union solicitation of other
27 Transportation Management Corp v NLRB, 462 U S 393, 401-403
(1983), NLRB v Del Rey Tortilkria Inc , 787 F 2d 1118, 1123 (7th Cu.
1986), Moore Business Forms, 288 NLRB 796 In 3 (1988)
employees, or to distribute union literature to other em-
ployees, in production areas at times when neither the
employee doing the solicitation and the distribution, nor
the employees who were objects of this activity, were
supposed to be actively working
I agree with the General Counsel that as to union so-
licitation, this rule is "overly broad" In the absence of
special circumstances not shown to be present here, an
employer may not lawfully forbid employees to engage
in union solicitation of other employees on the employ-
er's premises at times when neither the employees doing
the soliciting nor the employee being solicited is sup-
posed to be actively working 28 However, as to litera-
ture distribution, I do not accept any contention that Re-
spondent could not lawfully forbid the distribution of all
literature, including union literature, in production areas
at any time As to any such contention, the General
Counsel errs in relying on the evidence that when Rob-
inson distributed the union notices, his tour of duty had
not yet begun and the employees who received the no-
tices were not expected to be actively working The
Board takes the position that in working areas, the distri-
bution of literature, including union literature, can ordi-
narily be lawfully forbidden at any time, in view of the
employer's interest in keeping such areas free of litter 29
Manifestly, Respondent's interest in keeping its press-
room free of litter is not affected by whether the litter
was deposited during working or during nonworking
time
Nonetheless, this interest did not privilege Respondent
to forbid employees to distribute union literature in its
pressroom under circumstances where the employees
were permitted to distribute other kinds of literature un-
related to work Production employee Forster's uncon-
tradicted and credible testimony shows that management
permitted production employees to distribute such litera-
ture, other than union literature, in the production area
(including the bindery and the pressroom), during their
shifts and at times other than breaks, to employees who
were sometimes on work time and sometimes on break-
time Further, the evidence shows that editorial depart-
ment employees were permitted to enter the production
department, including the pressroom and the bindery, for
reasons unrelated to union activity, including the distri-
bution of nonwork-related written material unrelated to
union activity Accordingly, I find that Respondent vio-
lated Section 8(a)(1) of the Act by establishing, maintain-
ing, and enforcing a rule or policy which forbade em-
ployees to distribute union literature under circumstances
where the employees would have been permitted to dis-
tribute literature regarding, other subjects unrelated to
work, and for the specific purpose of preventing the
Union from communicating with the production employ-
22 Gemco, 271 NLRB 1190 (1984), see also Beth Israel Hospital v
NLRB, 437 U S 483, 492-493 (1978), NLRB v General Thermodynamics,
670 F 2d 719, 721 (7th Cif 1982)
29 See Stoddard-Quirk Mfg Co, 138 NLRB 615, 618-621 (1962), cited
with seeming approval in Eastex Inc v NLRB, 437 U S 556, 571 In 21
(1978), Vapor Corp, 242 NLRB 776, 790 (1979), Royal Sound Co, 287
NLRB 989 In 2 (1988), see also Beth Israel Hospital, supra, 437 U S at
492-493, General Thermodynamics, supra, 670 F 2d at 721 (7th Or 1982)
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees 3 ° Olympic Medical Corp 236 NLRB 1117 1122
(1978) enfd 608 F 2d 762 (9th Cir 1979) Lamar Indus
trial Plastics Co, 281 NLRB 511 (1986) Robinson Furm
ture Inc , 286 NLRB 1076 (1988) see also Midwest Stock
Exchange, supra 635 F 2d at 1270 (7th Cir 1980) Al
though the complaint merely alleges that this rule was
overly broad, the General Counsel expressed on the first
day of the hearing the theory that the rule was only de
signed to specifically prohibit that Union literature
And what we are showing is that previous to [Rob
mson s warning letter] anybody was able to pass out ev
erythmg including Union literature, non work related
things In view of her statement in this respect and the
connection between the no distribution rule and the com
plaint allegations regarding Robinson, I conclude that
the discriminatory aspect of the no distribution rule was
fully litigated
D Whether Respondent violated Section 8(a)(5) with
Respect to the Production Unit in 1988 and 1989
1 The withdrawal of recognition in February 1988
A collective bargaining agreement which is lawful on
its face creates the presumption that the Union was the
majority representative when the contract was executed
and that the Union s majority continued at least through
the life of the contract Although the presumption of ma
jonty status continues after the expiration of the con
tract at this time the employer may nonetheless lawfully
withdraw recognition if he can show by clear and con
vincing proof that his action was predicated on a good
faith and reasonably grounded doubt of the Union s con
tinued majority status which doubt was based on objec
tive considerations, was raised in a context free of unfair
labor practices and was not advanced for the purpose of
gaining time within which to undermine the Union Fur
ther, even in the absence of such a showing the employ
er can defend his withdrawal of recognition if he can
show, by clear and convincing proof that at this time
the union did not in fact enjoy majority status 31
Although Chief Financial Officer Nen testified that
the decision to withdraw recognition was made jointly
by himself Chief Executive Officer Gilbert and Direc
tor of Human Resources Santos the only direct testimo
ny about Respondent s motives for this decision proceed
ed from Nen who testified that Respondent withdrew
recognition because it entertained a doubt as to the
Union s majority status among the production employ
ees According to Nen this doubt was based on certain
statements in the 2-5 and 2-9 letters on the fact that of
the approximately 99 unit employees, only 29 were on
checkoff, and on the Union s misrepresentation, during a
bargaining session, that Respondent had previously ex
pressed willingness to compromise on the issue presented
3 ° For similar reasons I also find that this was the purpose of the no
solicitation rule The significance of this finding is discussed Infra part II
D
Si Orion Corp v NLRB 515 F 2d 81 84-85 (7th Cir 1975) KBMS
Inc 278 NLRB 826 846 (1986) Westbrook Bowl 293 NLRB 1000 1001
(1989) Robinson Bus Service 292 NLRB 70 77-78 (1988) Century Paper
284 NLRB 1151 1157 (1987) Bennett Packaging Co 285 NLRB 602 607
(1987)
by the Union s union security proposal According to
Nen s uncontradicted and uncorroborated testimony he
told Santos that Nen believed this misrepresentation
was an attempt to create an illusion that we were re
negmg on some previous commitment and the Union
was not seeking to reach an agreement [but was] in fact
creating or looking for issues in which to generate ex
citement among the employees in order to gain more
support As previously found several days before the
withdrawal of recognition Respondent saw on the em
ployee bulletin board an unsigned notice, prepared by
the Union s principal negotiator which accurately stated
that Respondent did not want any contractual require
ment of union membership by any employee as a condi
tion of employment
In agreement with the General Counsel and the Union,
I conclude that Respondent has failed to show by clear
and convincing proof, that the withdrawal of recognition
was predicated on a good faith and reasonably grounded
doubt based on objective considerations of the Union s
continued majonty status In the first place the existence
of employees who no longer wanted union representa
tion cannot reasonably be inferred from a misrepresents
tion (later withdrawn), by paid union agents to employee
members of the bargaining committee that the Respond
ent had reneged on an alleged previously expressed will
mgness to contractually require union membership of
current members and new hires I regard as improbable
Nen s speculation that the Union anticipated that excite
ment and support would be generated among employees
who allegedly no longer wanted union representation by
untruthful assertions that Respondent had newly ex
pressed a desire to leave union membership to each em
ployee s individual choice Indeed the postheanng brief
of Respondent s counsel does not rely on this consider
anon advanced in Nen s testimony Nor is a reasonable
basis for doubt supported by the evidence that only 29 of
the 99 unit employees were union members on checkoff,
particularly because the same was true when Respondent
agreed to extend the 1985-1988 contract and bargained
with the Union for more than 3 weeks thereafter Orion
supra 515 F 2d at 84-86 (7th Or 1975) General Electric
Co v NLRB 400 F 2d 713, 727 fn 14 (5th Or 1968)
cert denied 394 U S 198 (1969) NLRB v Gulfmont
Hotel Co 362 F 2d 588, 592 (5th Cm 1966) Atlanta
Hilton & Towers 278 NLRB 474 480 (1986) Indeed the
evidence fails to show that a larger proportion or
number of employees were on checkoff at any previous
time
Further, I find that the 2-5 and 2-9 letters did not
create a reasonable ground for doubt of the Union s con
tmued majdnty status In the first place, even taken liter
ally and at full face value, the letters did not constitute a
representation that a majority of the employees wanted
to rid themselves of union representation Rather the let
ters stated that the author or authors were dissatisfied
with the number of employees who had attended the
February 8 union meeting and/or evinced affirmative ap
proval of the Union s bargaining proposals, and that the
writers thought (for this or undisclosed reasons) that an
undisclosed number of employees believed they could do
PIONEER PRESS 991
better on their own This is not the equivalent of a repre-
sentation that a majority of the employees wanted not to
be represented by the Union Retired Persons Pharmacy v
NLRB, 519 F 2d 486, 490 (2d Cir 1975), Cut & Curl,
Inc , 227 NLRB 1869, 1873 (1977) 32 Moreover, the let-
ters on their face contain evidence that they did not pro-
ceed from an authoritative union source and were not
even intended to be read literally Thus, when Nen read
the 2-5 letter, he was well aware, and testified to advis-
ing Gilbert, that the letter not only exaggerated Re-
spondent's alleged unwillingness to offer acceptable con-
tract terms, 33 but also stated that the union negotiators
had agreed to propose no wage increase whatever for
the next 3 years, even though at that point Respondent
was proposing at least a 3-percent increase and, during
the most recent bargaining session, the Union had ad-
hered to its initial proposal of a 15-percent increase
When read with this background, the 2-5 letter strongly
suggests (as was in fact the case) that it was intended as
a rhetorical device to encourage employees' active par-
ticipation in union affairs during negotiations, in order to
obtain with respect to wages and other employee bene-
fits the attainable bargain which best suited most of the
the employees, and that the author or authors did not
question (and, indeed, assumed) the employees' continued
desire for union representation 34 At the very least, the
tone of and substantial inaccuracies in the letter, together
with the improved chances for a favorable agreement
suggested by the wage retreat which the letter attributed
to the Union, would have led a reasonable and honest
member of management to withhold, until checking to
ascertain whether the letter accurately reflected a new
position by the union bargaining committee, action based
on the assumption that the letter expressed a definitive
union position and Was intended to be read literally That
similar considerations would affect a reasonable and
honest reader of the 2-9 letter, from a wholly unknown
source, is shown by the fact that this letter purported to
proceed from the same source as the 2-5 letter and to
constitute a followup of the 2-5 letter's encouragement
of employees to attend the February 8 meeting and to
express to the Union their views about contract propos-
als However, management not only failed to look into
the source of the letters before withdrawing recognition
in alleged reliance thereon, but said nothing to Mink-
kinen about management's alleged reliance on the letters
even when he asked Santos the basis for Respondent's
32 In testifying about these letters representations regarding the
strength of union 'support," both Nen and Robinson failed to make the
critical distinction between whether the employees wanted to get rid of
the Union and whether they approved, or enthusiastically approved, of
what the Union was trying to accomplish during negotiations
33 All the concessions at the February 4 bargaining session, the last
one held between the parties, had been made by Respondent Moreover,
the notice prepared by Minkkmen on February 8, and posted on the em-
ployee bulletin boards the following day, stated that Respondent had
agreed to union proposals with respect to rest periods after overtime
work, advance notice of work schedules during holiday weeks, and cov-
erage under a retirement, income plan However, the 2-5 letter alleged,
It has been a definite no or a change of wording to everything we pro-
pose
34 Indeed, Respondent s postheanng brief characterizes the 2-5 letter's
claim about a Union proposal of no wage increase as a "shock statement
an obvious attention getter dramatic beginning" (Br 4)
claim of good-faith doubt of majority Management's si-
lence in this respect leads me to infer its belief that the
rhetorical tactic, and that management justifiably feared
this would be shown by even a casual investigation Be-
cause Respondent admittedly withheld from the Union at
all material timed Respondent's eventual representation
that its refusal to bargain was based partly on these let-
ters, I attach no significance to the Union's failure to "re-
tract," disavow, or repudiate them, or to advise Re-
spondent that they were unauthorized Indeed, Mink-
kinen did not see the 2-9 letter, or learn of its posting,
until the first week in March 1988, when the General
Counsel showed it to him in preparation for the hear-
ing 35 I note the absence of any evidence thai any em-
ployee whose identity was known to Respondent ever
said that he or any other employee no longer wanted
union representation See Redok Enterprises, 277 NLRB
1010, 1012 (1985), Destderia Serrales, 289 NLRB 51, 52
(1988) 36 In short, I find that the considerations adverted
to by Respondent, considered cumulatively, fail to con-
stitute clear and convincing proof that Respondent's re-
fusal to bargain was predicated on reasonably grounded
doubt, based on objective considerations, of the Union's
continued majority status
Furthermore, I conclude that Respondent's claim of
loss of majority was not advanced in good faith Thus,
Respondent's repeated refusal to give the Union any fac-
tual basis for Respondent's claim indicates that Respond-
ent was afraid that the Union would be able to disprove
or explain whatever evidence Respondent had in mind
Moreover, I do not credit Nen's testimony that he be-
lieved the Union was trying to create a desire for union
representation, among employees who did not want it,
by untruthfully claiming that Respondent had reneged on
a willingness to agree to a clause requiring union mem-
bership of some employees as a condition of employ-
ment I cannot accept his claim to the irrational opinion
that the Union would attempt to use Respondent's alleg-
edly new unwillingness to compel union membership as a
basis for inducing a change of heart among employees
who did not want the Union Further, I do not credit
Nen's claimed reliance on the number of employees on
checkoff, in view of the evidence that this number had
been the same at the time that Respondent agreed with
the Union to a temporary extension of the expired agree-
ment and thereafter bargained with the Union for a new
contract Moreover, of the three executives (Nen,
Santos, and Gilbert) who participated in the decision to
withdraw recognition, only two testified, and of these,
only one (Nen) was asked about Respondent's reasons
for this decision I infer that if the other two had testi-
fied, they would not have corroborated Nen's testimony
as to the reasons therefor or as to the Nen-Gilbert and
35 Although the 2-9 letter was seen on the lunchroom bulletin board
about February 9 by editorial employee Robinson, the chairperson of the
editorial unit, he did not participate in the production-unit negotiations
and did not know who had written this letter
36 Destilerus questions the continued vitality of J & J Drainage Product
Go, 269 NLRB 1163 (1983), and Sofco Inc. 268 NLRB 159 (1983), both
relied on by Respondent Cf Westbrook Bowl, supra, 293 NLRB 1000,
1001 fn 11 (1989)
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nen Santos conversations which allegedly preceded that
decision 37
Also, I note that beginning immediately after the with
drawal of recognition with respect to the production
unit, Respondent began to engage in unfair labor prac
bees for the specific purpose of preventing the Union
from communicating with the production employees—
more specifically by unlawfully removing union notices
from posting areas where they would normally be seen
by production employees, by unlawfully issuing a warn
ing notice to an editorial unit employee for distributing
such union notices to production employees and engag
mg in related union solicitation, and by unlawfully im
posing a rule or policy which forbid such solicitation and
distribution Such unlawful obstruction of union efforts
to address (inter aim) the very subjects of the letters on
which Respondent allegedly based its refusal to bargain
are unquestionably part of the context (as that term is
used in ordinary parlance) of such refusal, and did not
lose that status merely because they occurred afterward
and not before Computer Science Technicolor Associates
236 NLRB 266 281 (1978) enfd 86 LC I 11395 (4th
Cir 1979) However, because the employer in Computer
Science also committed unfair labor practices before
withdrawing recognition, that case leaves open the ques
tion of whether a context of unfair labor practices,
within the meaning of the cases cited supra, fn 31, may
be effected by unfair labor practices which the employer
did not commit until after (even though as here, almost
immediately after) withdrawing recognition 38 I con
dude that this question should be answered in the affirm
ative To be sure, part of the reason for the context
rule is to preclude the employer from asserting a good
faith doubt if his own unfair labor practices have sigmfi
cantly contributed to any loss of majonty or to the fac
tors upon which a doubt of such majority is based 33
manifestly, no such consideration is presented by
postwithdrawal unfair labor practices However, another
reason for the context rule is that an employer s un
lawful conduct for the specific purpose of causing em
ployees to want nonrepresentation by the union shows
him to be a partisan judge whose immediately preceding
professed doubt of the union s majority may well have
stemmed at least partly from wishful thinking Moreover
such unfair labor practices point to the conclusion that
the employer s professed doubt was advanced for the
purpose of gaining time within which to undermine the
union at least where (as here) they were committed im
mediately after the withdrawal of recognition Finally,
postwithdrawal unfair labor practices have the tendency
to impede postwithdrawal union efforts to prove that the
union enjoyed majority status before the withdrawal of
recognition I need not and do not consider whether
37 Kokomo Tube Co 280 NLRB 357 361 (1986) see also Golden State
Bottling Co v NLRB 414 U S 168 174 (1973) NLRB v Dorothy Sham
rock Coal Co 833 F 2d 1263 1269 (7th Cm 1987) Zapex Corp 235
NLRB 1236 1239 (1978) enfd 621 F 2d 328 (9th Cir 1980)
39 In contending that Respondent acted unlawfully in withdrawing
recognition with respect to the production unit the General Counsel chs
avowed any reliance on Respondent s action with respect to the MSA
plan
39 Clinton Food 4 Less 288 NLRB 597 606 (1988)
postwithdrawal unfair labor practices standing alone,
may negate an employer s predicate for withdrawal of
recognition on a claim of doubt of continued majority
status However I do conclude that m the instant case,
such unfair labor practices by Respondent add support to
my finding that Respondent s claim of loss of majority
was not advanced in good faith
Finally I conclude that Respondent has failed to
show by clear and convincing proof, that at the time
Respondent withdrew recognition, the Union did not in
fact enjoy majonty status In alleging lack of majority
status Respondent relies almost entirely upon the fact
that as of that date, fewer than half of Respondent s em
ployees had signed union authorization cards and/or
were having their dues checked off 40 evidence is
insufficient to sustain Respondent s burden of proving
that the Union did not represent a majonty NLRB v
Roger sIGA Inc 605 F 2d 1164, 1166 (10th Or 1979),
enfg 232 NLRB 1053, 1063 (1977) Orion Corp 210
NLRB at 633 (1974) enfd 515 F 2d 81 (7th Cir 1975)
and cases cited I note the evidence that some of Re
spondent s employees supported the Union but did not
want to pay dues 47
For the foregoing reasons, I fmd that Respondent vio
lated Section 8(a)(5) and (1) of the Act on February 18
1988, by withdrawmg recognition from the Union as the
representative of the production employees
2 Respondent s unilateral action with respect to the
production unit m 1988 and 1989
Respondent s counsel admitted on the record that Re
spondent s February 15 1988 change in its posting
policy, so as to forbid postmg of union notices regarding
the production unit extended to production employees
as well as to editorial employees Further as previously
found in late February or early March 1988, Respondent
gave each employee m the production unit a 4 percent
wage increase retroactive to the end of January 1988
Also, as previously found about March 1988 Respond
40 Respondent seems to concede that as to the number of union sup
porters as of February 18 1988 in the 99 employee unit I should include
the 29 employees who were having their dues checked off and the 9 em
ployees whose cards were executed on or before that date and which
were authenticated by the signer or by someone who saw him sign or to
whom the signer delivered the card In contending that I should not
count the 10 cards which were not so authenticated but which are dated
on or before February 18 1988 and bear the purported signatures of unit
employees Respondent relies on Ona Corp v NLRB 729 F 2d 713 722-
723 (11th Or 1984) Because the Ona complaint alleged an unlawful re
fusal to grant initial recognition of a nomncumbent union the General
Counsel bore the 131. den of proving that the union possessed a majonty
In the Instant case the complamt attacks the withdrawal of recognition
from an Incumbent union and such withdrawal was not predicated on a
good faith and reasonably grounded doubt based on objective consider
ations of the Union s continued majonty status Accordingly Respond
ent bears the burden of proving that the Union did not possess a majon
ty see the cases cited supra fn 31 Further as previously noted Re
spondent did not offer Into evidence from its personnel files any exem
plars of employee signatures see cases cited supra fn 37
41 Respondent s bnef also adverts to the attendance (somewhat higher
than previously) at the February 8 1988 union meeting However failure
to attend union meetings is not inconsistent with continued support for
the Union North American Mfg Co 224 NLRB 1252 1257-1258 (1976)
enfd 563 F 2d 894 (8th Cu. 1977) KEZI TV 286 NLRB 1396 1399
(1987) Vaughan & Sons Inc 281 NLRB 1082 1085 (1986)
PIONEER PRESS 993
ent extended coverage under an existing long-term dis-
ability plan to such employees In addition, as previously
found, about February 16, 1989, Respondent implement-
ed a voluntary termination plan, whereby production
unit employees can agree to voluntarily terminate their
own employment if they are scheduled for layoff Re-
spondent admits that these changes dealt with mandatory
subjects of collective bargaining, and that Respondent ef-
fected these changes without prior notice to the Union
and without having afforded the Union an opportunity
to bargain with respect to such changes In view of my
finding that Respondent violated Section 8(a)(5) and (1)
on February 18, 1988, by withdrawing recognition, I find
that Respondent further violated Section 8(a)(5) and (1)
by the foregoing unilateral conduct NLRB v Katz, 369
U S 736, 743 (1962)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All full time and regular part time editorial employ-
ees employed by Respondent, but excluding manag-
ing editors, group sports editors, group leisure
arts/entertainment editors, group copy desk manag-
ers, group photo chiefs, promotion department em-
ployees, stringers, production employees, display
advertising employees, classified ad employees, cir-
culation employees, data processing employees, ac-
counting employees, personnel employees, confiden-
tial employees, managerial employees, guards and
supervisors as defined in the Act and all other em-
ployees
4 The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All employees in Composing, Offset Plate, Press,
Bindery and Utility, including Assistant Foreman,
but excluding office and clerical employees and su-
pervisory employees at Respondent's plant in Wil-
mette, Illinois
5 At all relevant times, the Union by virtue of Section
9(a) of the Act has been the exclusive representative of
the unit described in Conclusion of Law 3 for the pur-
pose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment
6 At all relevant times, the Union by virtue of Section
9(b) of the Act has been the exclusive representative of
the unit described in Conclusion of Law 4 for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment
7 Respondent has violated Section 8(a)(5) , and (1) of
the Act, with respect to each of the appropriate units, by
implementing the Medical Service Advisory Program
without giving the Union prior notice and an opportuni-
ty to bargain about it
8 Respondent has violated Section 8(a)(1) and (3) of
the Act by issuing a warning letter to employee Robin-
son
9 Respondent has violated Section 8(a)(1) of the Act
by establishing, maintaining, and enforcing a rule or
policy which forbids employees to engage in union solic-
itation of other employees at times when neither the em-
ployee doing the soliciting nor the employee being solic-
ited is supposed to be actively working
10 Respondent has violated Section 8(a)(1) of the Act
by establishing, maintaining, and enforcing a rule or
policy which forbids employees to distribute union litera-
ture under circumstances where the employees would
have been permitted to distribute literature regarding
other subjects unrelated to work, and for the specific
purpose of preventing the Union from communicating
with the production employees
11 Respondent has violated Section 8(a)(5) and (1) of
the Act by withdrawing recognition from the Union, and
refusing to bargain with it, as the exclusive representa-
tive of the unit described in Conclusion of Law 4
12 Respondent has violated Section 8(a)(1) of the Act
by refusing to permit employees to use Respondent's bul-
letin boards and other posting areas to post notices with
respect to union activity regarding the unit described in
Conclusion of Law 4, while permitting employees to use
such posting facilities for other purposes unrelated to
work
13 Respondent has violated Section 8(a)(5) and (1) of
the Act, with respect to both units, by unilaterally alter-
ing Respondent's past practice of permitting the Union
and employees in both units to use the bulletin boards
and other posting areas to post notices with respect to
union activity among the employees in the unit described
in Conclusion of Law 4, without giving the Union prior
notice and an opportunity to bargain
14 Respondent has violated Section 8(a)(5) and (1) of
the Act, with respect to the unit described in Conclusion
of Law 4, by taking the following unilateral action with-
out giving the Union prior notice and an opportunity to
bargain (a) giving each employee a wage increase in late
February or early March 1988, retroactive to January
1988, (b) extending coverage under a long-term disability
plan to such employees, and (c) implementing a volun-
tary termination plan
15 The unfair labor practices summarized in Conclu-
sions of Law 7 through 14 affect commerce within the
meaning of the Act
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom, or from like or
related conduct, and to take certain affirmative action
necessary to effectuate the policies of the Act
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Affirmatively, Respondent will be required on request
by the Union, to recognize and bargain with the Union
as the representative of the production unit In addition
Respondent will be required on the Union s request as to
either or both units (1) to rescind the MSAP and (2) to
restore the practice which existed before February 1988
as to the posting of notices regarding union activity
among the production employees Further Respondent
will be required to bargain on request with the Union
as to such subjects with respect to either or both units
In addition Respondent will be required upon the
Union s request to rescind as to the production unit the
late February or early March 1988 wage increase the
long term disability plan and the voluntary termination
plan Nothing in this Order is to be construed as requir
ing Respondent to cancel as to either unit any wage in
crease or other improvement in benefits without a re
quest from the Union
In addition, Respondent will be required to make the
employees in both units whole for any losses they may
have suffered by reason of the unilateral implementation
of the MSAP Also, Respondent will be required to
make the production unit employees whole for any losses
they may have suffered by reason of any changes effect
ed in their terms and conditions of employment after Re
spondent withdrew recognition from the Union as to
them Loss of pay due to separation from employment is
to be computed in the manner prescribed in F W Wool
worth Go, 90 NLRB 289 (1950) All sums due under this
order other than any sums due to employee benefit
funds are to be paid with interest as computed in New
Horizons for the Retarded 283 NLRB 1173 (1987)
Furthermore, Respondent will be required to rescind
its unlawful rules or policies with respect to union solici
tation and distribution of union literature Also Respond
ent will be required to remove from Robinson s files any
reference to his unlawful warning letter and notify him
in writing that this has been done and that evidence of
such unlawful warning will not be used as a basis for
future personnel action against him Finally, Respondent
will be required to post appropriate notices
In the absence of a showing of need in this particular
case the General Counsel s request for a visitatonal
clause is denied Cherokee Marine Terminal 287 NLRB
1080 (1988)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed42
ORDER
The Respondent Pioneer Press Wilmette Illinois, its
officers agents successors and assigns shall
1 Cease and desist from
(a) Establishing maintaining or enforcing a rule or
policy which forbids employees to engage in solicitation
of other employees on behalf of the Chicago Newspaper
42 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
Guild Local 71 affiliated with the Newspaper Guild
AFL-CIO CLC or any other labor organization at
times when neither the employee doing the soliciting nor
the employee being solicited is supposed to be actively
working
(b) Establishing, maintaining or enforcing a rule or
policy which forbids employees to distnbute literature to
other employees on behalf of the Guild, or any other
labor organization under circumstances where the em
ployees would have been permitted to distnbute litera
ture regarding other subjects unrelated to work
(c) Refusing to permit employees to use Respondent s
bulletin boards and other posting areas to post notices
with respect to activity on behalf of the Guild or any
other labor organization, while permitting employees to
use such posting facilities for other purposes unrelated to
work
(d) Discouraging membership in the Guild or any
other labor organization by issuing warning letters or
other discnmmation in regard to hire or tenure of em
ployment or any other term or condition of employment
(e) Withdrawing recognition from, and refusing to rec
ogmze the Guild as the representative under Section
9(a) of the Act of the following unit, hereinafter called
the production unit
All employees in Composing Offset Plate Press,
Bindery and Utility including Assistant Foreman,
but excluding office and clerical employees and su
pervisory employees at Respondent s plant in Wil
mette Illinois
(t) Changing the health insurance plan or imposing re
stnctions on bulletin board use without affording the
Guild an opportunity to bargain about the matter as the
exclusive representative of the production unit and of the
following bargaining unit
All full time and regular part time editorial employ
ees employed by Respondent but excluding manag
ing editors group sports editors group leisure
arts/entertainment editors group copy desk manag
ers group photo chiefs promotion department em
ployees stringers production employees display
advertising employees, classified ad employees cir
culation employees data processing employees ac
counting employees personnel employees confiden
tial employees managerial employees guards and
supervisors as defined in the Act and all other em
ployees
(g) Changing wages extending coverage under a long
term disability plan or implementing a voluntary term
nation plan with respect to the employees in the produc
tion unit without affording the Guild notice and an op
portunity to bargain as the exclusive representative of
that unit
(h) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
PIONEER PRESS 995
(a) Rescind its rule or policy which forbids employees
to engage in soliciting of other employees on- behalf of
the Guild at times when neither the employee doing the
soliciting nor the employee being solicited is supposed to
be actively working
(b) Rescind its rule or policy which forbids employees
to distribute literature on behalf of the Guild under cir-
cumstances where the employee would have been per-
mitted to distribute literature regarding other subjects
unrelated to work
(c) Expunge from its files any reference to the warning
letter to James Robinson dated March 4, 1988, and notify
him in writing that this has been done and that this
warning will not be used as a basis for future personnel
action against him
(d) On request by the Guild, bargain with the Guild as
the exclusive representative of the production unit, and,
if an understanding is reached, embody the understand-
ing in a signed agreement
(e) On request by the Guild, rescind as to either or
both units the Medical Services Advisory Program, and
restore as to either or both units the practice which exist-
ed before February 1988 as to the posting of notices re-
garding Guild activity in the production unit
(f) On request by the Guild, rescind as to the produc-
tion unit the late February or early March 1988 wage in-
crease, the long-term disability plan, and the voluntary
termination plan, but nothing in this Order is to be con-
strued as requinng Respondent to cancel as to either unit
any wage increase or other improvement in benefits
without a request from the Guild
(g) Make the employees in both units whole for any
losses which they may have suffered by reason of Re-
spondent's unilateral implementation of the Medical
Services Advisory Program, in the manner described in
the remedy section of this decision
(h) Make the employees in the production unit whole
for any losses they may have suffered by reason of any
changes effected in their terms and conditions of employ-
ment after Respondent withdrew recognition from the
Guild as to them, in the manner described in the remedy
section of this decision
(i) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, time-
sheets, personnel records and reports, and all other
records necessary or useful for analyzing and computing
the amounts due under the terms of this Order
(I) Post at all of its facilities where members of either
unit are employed copies of the attached notice marked
"Appendix "43 Copies of said notice, on forms provided
by the Regional Director for Region 13, after being
signed by Respondent's authonzed representatives, shall
be posted by it immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
4 3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board' shall read 'Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
ensure that said notices are not altered, defaced, or cov-
ered by any other material
(k) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT establish, maintain or enforce a rule or
policy which forbids you to engage in solicitation on
behalf of the Chicago Newspaper Guild Local 71, affili-
ated with the Newspaper Guild, AFL-CIO, CLC, or
any other union, at times when neither the employee
doing the soliciting nor the employee being solicited is
supposed to be actively working
WE WILL NOT establish, maintain, or enforce a rule or
policy which forbids you to distribute union literature to
other employees on behalf of the Guild, or any other
union, under circumstances where you would have been
permitted to distribute literature regarding other subjects
unrelated to work
WE WILL NOT refuse to permit you to use our bulletin
boards and other posting areas to post notices with re-
spect to activity on behalf of the Guild or any other
union, while permitting you to use such posting facilities
for other purposes unrelated to work
WE WILL NOT discourage membership in the Guild, or
any other union, by issuing warning letters or otherwise
discnmmating in regard to hire or tenure of employment
or any term or condition of employment
WE WILL NOT withdraw recognition from, or refuse to
bargain with, the Guild as the exclusive representative of
the following unit, which in this notice is referred to as
the production unit
All employees in Composing, Offset Plate, Press,
Bindery and Utility, including Assistant Foreman,
but excluding office and clerical employees and su-
pervisory employees at our plant in Wilmette, Illi-
nois
WE WILL NOT change our health insurance plan, or
impose restrictions on bulletin board use, without offer-
ing the Guild an opportunity to bargain about the matter
as the exclusive representative of the production unit and
of the following bargaining unit
All full time and regular part time editorial employ-
ees employed by us, but excluding managing edi-
tors, group sports editors, group leisure arts!-
entertainment editors, group copy desk managers,
group photo chiefs, promotion department employ-
ees, stringers, production employees, display adver-
tising employees, classified ad employees, circula-
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion employees, data processing employees, ac-
counting employees, personnel employees, confiden-
tial employees, managerial employees, guards and
supervisors as defined in the Act and all other em-
ployees
WE WILL NOT change wages, extend coverage under a
long-term disability plan, or implement a voluntary ter-
mination plan, with respect to the employees in the pro-
duction unit, without giving the Guild notice and an op-
portunity to bargain as the exclusive representative of
that unit
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by the Act
WE WILL rescind our rule or policy which forbids you
to engage in solicitation of other employees on behalf of
the Guild at times when neither the employee doing the
soliciting nor the employee being solicited is supposed to
be actively working
WE WILL expunge from our files any reference to the
warning letter to James Robinson dated March 4, 1988,
and notify him in writing that this has been done and
that this warning will not be used as a basis for future
personnel action against him
WE WILL, on request by the Guild, bargain with it as
the exclusive representative of the production unit and, if
an understanding is reached, embody the understanding
in a signed agreement
WE wiLL, on request by the Guild, rescind as to either
or both units the Medical Services Advisory Program,
and restore as to either or both units the practice which
existed before February 1988 as to the posting of notices
regarding Guild activity in the production unit
WE WILL, on request by the Guild, rescind as to the
production unit the late February or early March 1988
retroactive wage increase, the long-term disability plan,
and the voluntary termination plan However, nothing in
the Board's order is to be construed as requiring us to
cancel as to either unit any wage increase or other im-
provement in benefits without a request from the Guild
WE WILL make the employees in both units whole,
with interest, for any losses they have suffered by reason
of our unilateral implementation of the Medical Services
Advisory Program
WE WILL make the employees in the production unit
whole, with interest, for any losses they may have suf-
fered for any changes effected in their terms and condi-
tions of employment after we withdrew recognition of
the Guild as to them
PIONEER PRESS