The Herald Statesman

National Labor Relations Board - Board Decisions

Feb 10, 1969

174 N.L.R.B. 371 (N.L.R.B. 1969)

WESTCHESTER ROCKLAND NEWSPAPERS
Westchester Rockland Newspapers , Inc., d/b/a The
Herald Statesman and Newspaper ' Guild of New
York, Local 3, American Newspaper Guild,
AFL-CIO. Case 2-CA-11495
February 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 23, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in certain unfair labor practices as alleged
in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and Charging Party filed
exceptions to the Decision and supporting briefs and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The issue here, as phrased by the Trial Examiner,
is whether "Respondent refuse[d] to incorporate into
the contract being negotiated . . . whatever
agreement might be reached concerning certain
conditions of employment . . . enumerated in the
complaint." The complaint mentions the subjects of
"pensions, hospital and medical benefits, maternity
leave, military leave, sick leave, severance pay,
dismissal notice pay and related matters," as those
conditions of employment which Respondent refused
to include in any agreement. The Trial Examiner
dismissed the complaint. In so holding, he concluded
that Respondent "did say more than once that .. .
[it] would not include certain things in the
contract," but that the Union indicated little, if any,
protest against this position nor did "Respondent
adamantly insist to impasse upon its demands that
certain conditions of employment be excluded from
the contract." We find merit in the General
Counsel's and Charging Party's exceptions to this
finding.
Briefly, the record shows that the Union was
certified as bargaining representative on June 6,
1967. From June 6 through December 27, 1967,'
Respondent met with the Union in 22 bargaining
371
sessions. The General Counsel and Charging Party
rely on the testimony of the Union's chief negotiator
William South who was not discredited by the Trial
Examiner. Respondent presented no witnesses to
rebut South's testimony. The uncontradicted
testimony of South shows that on August 29 or at a
later meeting, Respondent, represented by Thomas
Dignan, stated that it had a sick leave policy, but
"was not prepared to write that into the contract."
Similarly, on September 20, Respondent stated that
it had a policy on dismissal pay, but "would not put
it into the contract."
At the November 20 meeting, Respondent
conceded that it had a group hospitalization policy
in effect which covered all employees within the
Westchester Rockland group. Respondent added
that it intended to expand the present coverage, but
that it "would not include hospitalization into (sic)
the contract." At the same meeting, Respondent
admitted that there was a "company policy on
pensions," that it in fact has "retired people under
company policy." However, Respondent rejected the
Union's proposal that such policy be reduced to
contract language stating "that the company policy
could not be included in the contract." In regard to
severance pay, South testified that Dignan said,
"from time to time they [employees] had received
money when they separated from the company.
However, there was no policy, no set policy on, this
question, and, no, he would not agree to write
severance pay into the contract." Dignan made it
plain that Respondent was willing to talk about the
matter forever. At this same meeting on November
20, Respondent indicated that the past practice had
been to give notice pay. Respondent "here also
concluded that [it was] not prepared to write this
into the contract." Finally, at the December 15
meeting, the parties discussed an incentive pay plan
and Respondent stated that it was not going to write
this into the contract either.
We cannot agree that by engaging in such a
course of bargaining, Respondent was merely
requesting that the Union agree to leave certain
matters to its discretion. On the contrary, it is clear
from the evidence set out above that Respondent
asserted unequivocally on several occasions that it
would not include in a contract any agreement that
might be reached on certain mandatory subjects of
bargaining. Under these circumstances, any protests
by the Union would have been an exercise in futility
for to insist at this stage upon agreement to reduce
the result of any negotiations to writing would have
foreclosed negotiations on that subject. The
announcement in advance of a determination not to
comply with the statutory requirement to reduce any
understanding reached to a signed and binding
agreement displays the absence of a good-faith
intention to conclude an agreement. Such avoidance
of the statutory obligation is a violation of Section
'Unless otherwise indicated , all dates herein occurred in 1967
174 NLRB No. 62
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(5). Further by stating that it would not include
even existing company policies in the contract,
Respondent foreclosed bargaining with respect to
these mandatory areas. Such foreclosure is
tantamount to a refusal to negotiate about such
subject matters and each instance is an independent
violation of Section 8(a)(5) of the Act. Accordingly,
we find that Respondent violated Section 8(a)(5) and
(1) of the Act by stating that it would not include in
a contract any agreed on provisions concerning
pensions, hospital and medical benefits, sick leave,
severance pay, dismissal notice pay and incentive
pay plan.2
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom , and from like or related
conduct , and that it take certain affirmative action
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Westchester Rockland Newspapers, Inc., d/b/a
The Herald Statesman, is an Employer within the
meaning of Section 2(2) of the Act, engaged in
commerce and business affecting commerce within
the meaning of Section 2(() and (7) of the Act.
2. Newspaper Guild of New York, Local 3,
American Newspaper Guild, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By stating that it would not include in a
contract any agreed on provisions concerning
pensions, hospital and medical benefits, sick leave,
severance pay, dismissal notice pay and incentive
pay plan, Respondent violated Section 8(a)(5) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Westchester Rockland Newspapers, Inc., d/b/a The
Herald Statesman, Yonkers, New York, its officers,
agents, successors, and assigns, shall take the
following action:
1. Cease and desist from.
(a) Refusing to bargain collectively in good faith
with Newspaper Guild of New York, Local 3,
American Newspaper Guild, AFL-CIO, as the
exclusive bargaining representative of all its
employees in the following appropriate unit:
The record does not contain evidence showing that Respondent refused
to include in a contract any agreement reached on maternity and military
leave, items mentioned in the complaint.
All district advisors, junior district advisors, and
clericals employed in the circulation department
of The Herald Statesman plant, exclusive of all
other employees, guards, and supervisors as
defined in Section 2(l 1) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with the above-named Union as the exclusive
bargaining representative of the employees in the
heretofore described appropriate unit and embody
any understanding reached in a signed contract.
(b) Post at its plant in Yonkers, New York,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 2, shall after being
duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 2, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words " a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively in good
faith with Newspaper Guild of New York, Local 3,
American Newspaper Guild, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit
described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain collectively in good
faith with the above-named Union, as the exclusive
representative of all employees in the bargaining unit
described below and, if an understanding is reached,
embody such understanding in a signed agreement The
bargaining unit is-
All district advisors, junior district advisors, and
clericals employed in the circulation department of
The Herald Statesman plant, exclusive of all other
WESTCHESTER ROCKLAND NEWSPAPERS 373
employees , guards, and supervisors as defined in
Section 2(11) of the Act.
Dated By
WESTCHESTER ROCKLAND
NEWSPAPERS, INC. D/B/A
THE HERALD STATESMAN
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
Building, 36th Floor, 26 Federal Plaza, New York, New
York 10022, Telephone 212-751-5500.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner A hearing in the
above-entitled proceeding was held before me at New
York City, New York, on July 8, 9 and 10, 1968, on
complaint of the General Counsel against Westchester
Rockland Newspapers , Inc., d/b/a The Herald
Statesman , herein called the Respondent or the Company.
The issue in litigation is whether the Respondent refused
to bargain with a certified majority representative of its
employees in violation of Section 8(a)(5) of the Act. The
charge was filed on January 31 , 1968, and the complaint
issued on May 17. "Briefs were filed at the close of the
hearing by all parties.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation engaged, in
various places in the State of New York, in the
publication, sale and distribution of newspapers. The sole
location involved in this proceeding is its place of business
in the city of Yonkers, New York, where it publishes a
newpaper called The Herald Statesman. During the past
year, a representative period, in the course of its
publishing operations the Respondent held membership in,
and subscribed to, various interstate news services,
including, among others, Associated Press, and derived
gross revenues from its publishing operations in excess of
$200,000. During the same period it derived gross
revenues in excess of $50,000 from advertising the
products of firms engaged in interstate commerce. I find
that the Respondent is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper Guild of New York, Local 3, American
Newspaper Guild, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue Presented
This is a refusal-to-bargain case. Following the Union's
certification in a Board election proceeding, there were 22
bargaining sessions, some of them long enough to justify
dinner recesses, spanning a 6-month period from June
through December of 1967. Every variety of proposal and
counterproposal, written and oral, was discussed at great
length. The written proposals were received in evidence;
there is no claim they evidence any illegality. The proof
said to establish the Respondent's pervasive rejection of
the collective-bargaining principle consists almost entirely
of oral testimony by two union representatives, Harry
Fisdell and William South, who led the discussion on their
side of the table. Their stories fill over 230 of the 269
pages of the total transcript of testimony. Essentially it is
argued that the Respondent's bad faith, the conduct now
said to have been illegal, is to be gleaned by detection of a
phrase here and a phrase there uttered by Thomas
Dignan, the company lawyer who did most of the talking
for management, during the very extensive and exhaustive
talks. The damning words were quoted by Union
Respresentative South, whose testimony came more than
a half-year later and shows calculated coloration with an
eye to adding persuasion to the complaint
There is an unusual oddity in what could loosely be
called the pleadings in this particular proceeding. Because
the General Counsel's final theory of the case must be
appraised in the light of the total record, it is necessary at
the outset to consider the significance of these documents
received in evidence. Especially does fairness dictate such
careful analysis of the total picture of the case, because
the Respondent's good faith has been questioned, and
because the conduct of the Union agents bears an
inescapable relationship to that of the company official in
a case of this kind. Cf. Times Publishing Company, 72
NLRB 676.
The following are the sole two paragraphs of the
complaint which spell out the unfair labor practice
allegations:
10. Since on or about August 1, 1967, Respondent
negotiated with the Union in bad faith, with no
intention to enter into any final or binding collective
bargaining agreement with it.
11. On or about August 23, August 29, September
20 and November 20, 1967, when the Union requested
Respondent to discuss and negotiate respecting the
subjects of pensions, hospital and medical benefits,
maternity leave, military leave, sick leave, severance
pay, dismissal notice pay and related matters,
Respondent, by Thomas G. Dignan, its Labor Relations
Manager and agent, stated that it would not include in
any agreement to be reached with the Union any
provision respecting the subjects described herein above
and thereby foreclosed any bargaining with respect
thereto.
The complaint issued on May 17. That same day, on
behalf of the Regional Director, whose complaint this is, a
letter went to the Union, which filed the charge, and to
the Company. Except for here irrelevant formal language,
it reads as follows:
Re: Case 2-CA-11495
The above-captioned case charging a violation under
Section 8 of the National Labor Relations Act, as
amended, has been carefully investigated and
considered.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insofar as you allege that the above-named Company
negotiated from a predetermined position with respect
to wages and certain other subjects of collective
bargaining, the evidence is insufficient to support such
conclusion. The evidence establishes that the Company
considered your proposals and offered its own proposals
for improvements and modifications for your
consideration and was willing to negotiate with respect
to those subjects. I am therefore refusing to issue a
complaint with respect to the aforesaid allegation. The
remaining portions of your charge are being processed
further in a complaint being issued at this time.
At the end of the second day of the hearing the General
Counsel was asked whether this letter still reflected his
position, and he reaffirmed it. The next day, sensitive to
the apparent inconsistency between the "refusal to issue
complaint" letter, and the complaint as served upon the
Respondent, General Counsel explicated a theory, saying
that the Respondent never intended to enter into a
contract with the Union, that its representatives had said
they would not include certain specified conditions of
employment in any agreement, and that each such
separate statement of refusal constituted "an independent
unfair labor practice." Proof that such precise statements
of refusal were uttered by the company agent is said to be
found in the testimony of Mr. South
South is also the representative of the Union who filed
the charges, the original on January 31, 1968 and an
amended one on May 6. The two charges, each in
identical language, state only as follows:
Since on or about June 6, 1967, and continuously
thereafter the Employer has violated Sections 8(a)(1)
and (5) of the Act by engaging in a course of surface
bargaining with the Guild, with no good faith intention
of concluding an agreement.
By these and other acts, the Employer has violated
its duty to bargain in good faith, and has, and
continues to, restrain, interfere with and coerce
employees in the exercise of their Section 7 rights.
Significantly, even as late as May 6, only 11 days
before issuance of the complaint, South said nothing
about the Company having refused to include matters
subject to mandatory bargaining in a collective-bargaining
agreement. All of the foregoing caused counsel for the
Respondent to state at the hearing, not without some
plausible justification: ". . . there has been a dismissal of
any predetermination on the part of the company with
regard to bargaining in bad faith."
I can only read these "pleadings" in their totality, plus
the statements of position in support of the complaint, as
intended to charge that the Respondent showed its bad
faith by refusing to incorporate in a signed contract the
parties' agreement on conditions of employment which are
mandatory subjects of collective bargaining. For the rest,
there is such inconsistency between the Regional
Director's dismissal letter and the complaint, as to
preclude consideration now of any other theory of
illegality or factual allegation of wrongdoing, however
phrased, either in the complaint or in the briefs of the
Union and General Counsel. Clearly the investigation
satisfied the Government that the Respondent considered
all the Union's proposals and offered its own
counterproposals for improvements. The further
statement, in the dismissal letter, that the Company "was
willing to negotiate with respect to those subjects," is a
conclusion that the Respondent in fact discussed all
matters brought up by the Union in the bargaining
conferences. With this, the complaint allegation that the
Company "foreclosed any bargaining with respect" to
eight subjects - plus --- is simply another way of saying
that it did not bargain, an attempt to avoid the contrary
finding made before issuance of the complaint. And the
same is true of the phrase, repeated again and again
throughout the Union's brief, that the Respondent
"foreclosed meaningful negotiation."
While counsel for the Union was present at the hearing,
he participated little in the examination of witnesses, and
refrained from articulating statements of position. The
witnesses, however, were representatives of the Union.
Much of their testimony, as well as the major burden of
the Union's brief, appear as reiteration of factual
assertions and arguments of law already found without
merit by the Regional Director and removed from the
case.
In consequence of all this, the issue to be decided is a
very narrow one. Did the Respondent refuse to
incorporate into the contract being negotiated -- or in any
contract - whatever agreement might be reached
concerning certain conditions of employment, those
enumerated in the complaint? And the question is not
whether it proposed that certain things be left out of the
contract, or that they be left to the employer's unilateral
determination during the life of the agreement. This being
the case, two rules of law are applicable. Refusal to
reduce to writing all terms and conditions of employment
duly negotiated and agreed upon constitutes an unfair
labor practice as of old. Heinz v. N.L.R.B., 311 U.S. 514
This principle necessarily includes similar refusal to
embody in the contract only some, although not all the
conditions of employment involved. Together with this
case must be considered N.L.R.B. v Wooster Division of
Borg-Warner, 356 U.S. 342, where the employer insisted,
before agreeing to sign any contract, upon inclusion of a
clause which did not deal with subjects of collective
bargaining, i.e., an employee ratification vote The two
cases are complementary. An employer may not refuse to
sign a contract covering conditions of employment; an
employer may not refuse to sign a contract because the
union will not agree to incorporate a matter which is not
a condition of employment. A critical element of the
unfair labor practice found in both cases was that in
demanding its terms be accepted, the employer insisted to
the point of impasse. It is not enough that an employer
suggests, requests or proposes that there first be a
ratification vote; it is not enough that an employer
proposes or requests that particular employee benefits,
even if agreed upon, be kept to oral understanding, or
even to later unilateral change by the Company. In either
case it would not be illegal for the union to consent, and,
if, in consequence of open discussion and negotiation, it
voluntarily went along with such company proposals, to
establish the collective-bargaining relationship on that
basis.
The Facts of this Case
Dismissal of the Complaint
Following the election in the circulation department,
the Union was certified by the Board on June 6, 1967.
The first bargaining session took place the same day. At
intervals of about 1 week, there followed a total of 22
meetings, the last on December 27. Three or four persons
appeared for each side every time. At the first session, and
through July 26, Union Representative Fisdell was a
principal spokesman, while Lawyer John Donovan led for
WESTCHESTER ROCKLAND NEWSPAPERS
the Company. Thereafter Representative South led the
discussion for the Union, and Attorney Dignan for the
Company. On June 14, the Union gave the Company a
very comprehensive set of proposals, 34 pages long. Two
meetings later the Company presented 4 pages of
typewritten proposals with 8 articles and at the next week
4 more pages with 12 further contract articles. There was
continuous discussion of all subjects, each side arguing its
position repeatedly. Bargaining was hard, on both sides.
The Company held firm, on both freedom to manage the
business with a minimum of control by the Union, and
unwillingness to grant economic improvements, although
it did make some concessions, small as they may have
appeared to the Union. The Union pressed doggedly
throughout for increases in bonus and incentive pay plus
an across-the-board wage raise. The talking went on
continuously after South took over for the Union on
August 1. As time went on each side submitted written
revisions of certain of its contract proposals. South
testified that from the moment he came on the scene he
accused the Company of bad faith, but it is clear he
equated what he viewed as an unyielding refusal to give,
with an unlawful refusal to negotiate.
The Union submitted a schedule of minimum wages at
the start, substantially higher than the existing one, plus a
demand for a 20 percent general wage increase. The
Company made its first wage offer on September 28,
limited to an increase in minimum wage rates for the
various classifications. At the next meeting the Union
came back with a revised wage demand lower than its
original one. Talking continued, and, after a dinner recess,
the Union lowered its across-the-board wage increase
demand for 20 percent to 15 percent. Now Dignan, for the
Company, suggested increasing starting pay by $2.50 per
week. The Union felt this was so little it retracted its last
wage suggestion.
Apace with these discussions about minimum pay, there
was much talk of the incentive pay involved. While
South's running comments at the hearing do show there
was some give and take on this aspect of compensation,
his testimony is not clear as to precisely how the various
proposals would affect the earnings. Indeed he referred to
incentive and bonus at times separately, and at times as
though the two were one in the same.
The Trial Examiner asked him to explain precisely
what all this meant, and he answered only: "I think you
better have the circulation director explain it to you. It's a
very complicated system." No one else bothered to clarify
the record on what is now said to be a very important
part of the case in support of the complaint; the
Respondent called no witnesses concerning the bargaining
at all. In any event, with the General Counsel conceding
the Company considered all proposals and even suggested
its own improvements, the question is not really
important.
Talk about money became the principal subject in the
ensuing sessions. At the last one, on December 27, in a
desperate effort to reach agreement, South suggested, as
he said, $130 base rate plus $6 per 100 of increased sales
back to May of 1967, whatever this meant, and even
proposed doing away entirely with the bonus plan. He
went on to say that the Company proposed $150 incentive
ceiling and only $3.50 per 100 of increased sales back only
to July of 1967, and that this represented an increase in
existing pay. The meeting ended when South announced
that in his judgment an impasse had been reached and
taiat no purpose would be served by further talk. His
critical testimony on this point follows:
375
Well, I stated at this time that it seemed to me that
management was not really serious in trying to reach
an agreement with the Guild, since they were offering
us in many cases things that were below what was
present company practice.
They offered us an incentive plan that had been in
effect for approximately 6 months, and now I recall I
mentioned the fact that we had probably reached an
impasse and we could probably make better progress if
we recessed and just went back and talked things over
amongst ourselves and wait until something developed
before scheduling another meeting; words to that effect.
It is to be noted that, as this testimony by South
himself shows, what kept the parties from reaching
agreement, what constituted the basis of the impasse
reached, was the Company's refusal to make economic
concessions satisfactory to the Union. The Union never
again requested a meeting, and none has been held.
Among the fringe benefits the Union wanted to talk
about, and as to which it made specific proposals, were
life insurance, pensions, hospitalization insurance and
dismissal and severance pay. One of the concerns voiced
by the Company on these items, especially those involving
insurance policies, stemmed from the fact The Herald
Statesman, the separate company doing the bargaining, is
an integral part of what is called the Westchester
Rockland Newspapers Inc., and which in turn is embraced
within the Gannet Chain, a still broader organization of
newspapers. Dignan expressed the thought that this aspect
of compensation followed company policy on the broader
basis, and therefore could not easily be varied for a small
segment of the larger group, especially where insurance is
involved, with its lesser premium cost and higher benefits
resulting from greater coverage. These are the conditions
of employment which, according to the complaint, the
Respondent refused to include in any contract that might
be negotiated, and these were the pin-pointed refusals
which, as the entire case was narrowed, constituted the
"independent unfair labor practices."
In his extended testimony South quoted Dignan as best
he could, admitting he did not recall the words used. All
he had to refresh his memory were very brief and sketchy
notes of the meetings. A reading of his total testimony
shows clearly, however, that whether with deliberate intent
or not, time and again he merged three ideas in his recital
- refusal to discuss, refusal to grant and refusal to
include in a written contract. If his words - purportedly
quoting Dignan - be taken out of context, simply lifted
from the transcript pages, it will appear that more than
once Dignan did say that the Company's policy on some
of these matters, or even whatever he might agree upon
with South for changes, he would not agree to incorporate
in the agreement later. But if every word spoken by South
as a witness be considered, there arises a considerable
doubt whether the lawyer really flatly stated, with
irrevocable finality, such anticipatory refusals, certainly
with respect to some of these items. The real flavor of
South's testimony can best be appreciated by a reading of
all his recital, but a decision of this kind can hardly
restate the record testimony in its entirety. A sampling of
the more pertinent phrases South used must suffice.
On severance and dismissal pay: "You [Dignan] said at
that time [September 20] this was company policy but you
were not going to put it in the contract."
Q. At no time did I refuse to discuss with you
anything with regard to severance or dismissal pay,
isn't that true?
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, and it is true to the extent that you always
concluded that there will be no severance pay, there will
be no severance pay in the contract.
You made it plain on other occasions that we will
talk about it forever.
* * * *
Q. Isn't it true that I gave you the reasons why we
didn't want to include the severance pay, even back in
July and August meetings, myself or Mr. Dastyck gave
you the reasons, and Mr Fisdell?
TRIAL EXAMINER: Why you didn't want to include it
where?
MR. DIGNAN: Why we didn't want to grant severance
pay. Why we didn't want to grant the proposal.
A. You stated that you had found from past
experience that it was a liability This is why you didn't
want to go along with it. Of course, our contention was
why should people in Yonkers be any different from the
people in the Gannett chain who got severance pay.
Q. And we said we didn't want to have any increased
costs, isn't that correct.
A. That's correct.
Q. So we never refused to discuss severance pay?
A. You refused to the extent you said we will talk
about it forever, but you will never get it.
On incentive plan pay: "My notes also show me
[December 15 meeting] that on the question of the
incentive plan management was not going to write this
into the contract, ..."
Q.... What did anybody say about a contract?
THE WITNESS: That they would not include it in a
contract.
TRIAL EXAMINER: Who said that?
THE WITNESS: Mr. Dignan
* * * * *
On cross-examination, still speaking of the December
15 meeting:
Q. During those two meetings there was no refusal to
discuss anything with regard to wages and to benefits,
is that correct?
A. Well, there was no denial on management's part
to discuss them. There was a refusal, I thought, to
incorporate them into the terms of the contract and
come to an agreement."
On wage increases: "He said he would not write a
general wage increase into the contract." Later: "My
notes are vague on the question of wages. However, I do
have a note here where management stated that they were
not opposed to wages in the contract." Again: "No, you
did not say you were going to give a wage increase. You
said there would be no wage increase other than the
proposed incentive plan."
These references, in South's testimony, some direct and
some tangential, to the Company's expressed concern
about economic cost and refusing to yield to the substance
to the union demands, greatly weaken the contention that
the Respondent insisted upon already established broad
company policies, or upon exclusion from any contract of
all reference to these matters.
There is like confusion in South's recollection of the
talk about pensions, and life and hospitalization insurance.
"We next discussed the question of pensions and
management referred to the fact that there is a company
policy on pensions and it is more or less subject to the
individual involved. It is not a set plan. It is not a funded
plan, but they have retired people under company policy. I
again suggested whether the company policy could be
reduced to language and included in the contract. I was
told no, that the company policy could not be included in
the contract." On hospitalization: "I recall [also
November 20] there that on the question of hospitalization
management said that they had a group policy that
covered all employees within the Westchester Rockland
group, and if they didn't want to separate any of the
employees from that group since the larger of the group,
of course, the better coverage and the advantage of a
better premimum was involved." Also: "Well, he alluded
to the fact that all these policies were not actually
company policies but chainwide policies. That they applied
to all the properties of the Rockland Westchester group,
and that he could not see - he could not agree, for
instance, that the possibility that this small group of
people in the circulation department of The Herald
Statesman would be negotiating benefits for the whole
chain " These quotations are from South's direct
testimony.
On cross-examination he injected another element in his
story, and then it seemed he was saying what the
Company wanted was not to change things for the small
group of employees, that it preferred treating the
circulation department of The Herald Statesman
even-handedly with any other of its workmen. "
whatever subject we were discussing, you [Dignan]
referred to that we could not agree to the Guild proposals
on issues that were chainwide." Again, he quoted Dignan
. that we could not negotiate increases or any type of
benefits with you because we had to do it for the whole
Westchester Rockland? A Because the whole Westchester
Rockland group were covered by these plans. That's the
way you put it."
As stated above, all of the foregoing excerpts from the
testimony transcript are but examples of South's story.
There is more of vacilation and indirection in many other
portions of his recital, particularly with respect to the
items which, according to the complaint, the Company
wanted to exclude from the contract. Nevertheless,
however Dignan may have argued, again and again, that
the Company would not make changes in these benefits,
would not agree to the improvements sought by the
Union, I think the record as a whole does warrant a
finding that on a number of occasions he also said he did
not want to include some of these matters in a written
agreement. Severance pay, also called "notice" pay, seems
to be a benefit the Company gives to some employees who
leave and not to others. He did say the Company decided
this according to the individual involved, and I do believe
he wanted to retain the privilege of a freehand for the
future. And as to benefits made available to employees via
insurance policies, such as hospitalization and life
insurance, it is to be expected that the Company would
want to retain a uniform coverage over as large a group
of employees as possible so that the employees themselves
might enjoy better conditions. There is no question but
that all these matters - pensions, medical payments,
maternity, military and sick leave, severance pay, etc., -
are conditions of employment, and that the employer is
obligated under the Statute to bargain about them on
demand. It is also well established that where agreement
is reached on any of these subjects, the employer must, by
virtue of Section 8(a)(5) of the Act, consent to their
inclusion in a signed contract if the union insists. And, as
the Union here argues extensively in its brief, in neither
case - refusal to bargain or refusal to incorporate into
WESTCHESTER ROCKLAND NEWSPAPERS
the contract - could the Employer successfully defend on
the ground that other of its employees, not represented by
the Union, might be affected.
But the real problem in this case is to distinguish
between a company's request that the union agree to leave
certain matters to the employer's discretion, as against
what can be characterized as adamant insistence that
come what may, no matter what else might be agreed,
never would the company yield its absolute freedom for
independent action, contract or no contract. A negotiator
will often say, in the heat of discussion "I will not give
you a raise," or "I will never yield on this point," and yet
in the end compromise the position. In evaluating the
totality of these extended discussions, it must be
remembered that this Union might well have agreed,
perhaps as a quid pro quo for an immediate 15 percent
across-the-board general wage increase, to leave some
fringe benefits - especially those covered by blanket
insurance policies or those that only occasionally arise,
like severance pay - as management prerogatives.' Had
Dignan managed to satisfy the Union's direct money
demands, and won agreement to leave severance pay,
pensions and insurance benefits outside the contract, no
fault would be found with him today.
It is for this reason that both the Board and Court have
pinpointed the critical test of illegality in situations of this
kind as whether or not the employer's demands were
insisted upon to the point of impasse
In Borg-Warner, supra, the Board stated the
determinative factual situation as follows:
It is abundantly clear to us from the record as a whole
that the Respondent was not merely proposing its
recognition and employee - ballot clauses as matters
which the Union could voluntarily accept or reject. On
the contrary, it appears that the Respondent was
adamantly insisting on the inclusion of these two clauses
as a condition precedent to the execution of any
agreement. This conclusion is well supported by the fact
that, notwithstanding the Union's rejection of these
clauses at the outset, the Respondent nevertheless
utilized the bargaining process to require continued
bargaining and capitulation as the price for the contract
eventually made with Local . . . we recognize that the
Respondent could make these proposals or any other
proposal not in conflict with the provisions of the Act.
The Board also said " . . we do not hold that the
Respondent had no right to put these proposals on the
bargaining table," and then found a violation of Section
8(a)(5) because the employer had "adamantly insisted"
upon its proposals.
In enforcing the Board's order the Supreme Court
emphasized the fact that "The company's representatives
made it equally clear that no agreement would be entered
into by it unless the agreement contained both clauses,"
'Always, when extended negotiations of this kind are reviewed after the
event, it is futile to speculate on what might have been. The Union
bargained as hard as did the Respondent. Indeed, while now finding fault
with the Company for thinking of its other employees in distant locations
when bargaining for the limited group in Yonkers, there is much evidence
that the union spokesman repeatedly stressed the importance to it of
establishing working conditions in Yonkers that would parrallel those of its
members in New York City. That a more reasonable attitude on both sides
might have led to overall agreement is also indicated by the many points
on which the parties did reach agreement . Among these were a section of
the preamble , probationary period, temporary employees , outside work
clause, duration of the contract, successors and assigns clause, information
clause, vacation of part-timers , leave of absence , rehiring period, grievance
procedures language
377
and that in the end ". . . the unions asked the company
whether the latter would withdraw its demand for the
`ballot' and `recognition' clauses if the unions accepted all
of the pending requirements of the company. The
company declined ...."
The burden upon the General Counsel is to prove the
commission of an unfair labor practice by a
preponderance of the substantial evidence on the record as
a whole. I cannot find that this burden has been carried in
this case, regardless of whether it be a matter of bad faith
or independent illegal acts that are alleged. With the
Regional Director having refused to issue any complaint
that the Respondent refused to negotiate on any subject
whatsoever, it means that the Company in fact did
bargain about anything it was asked to discuss, and with
this there is the necessary implication that it did so in
good faith. The question of good or bad faith so
effectively removed from the case, both the General
Counsel and the Union now rely upon the Supreme Court
decision in N.L.R.B v. Katz, 369 U S. 736, because there
it was held that there can be a finding of violation of
Section 8(a)(5) even without the subsidiary finding of
"subjective bad faith." The precedent is inapposite.
The issue in Katz was very precisely stated by the
Court itself: "Is it a violation of the duty `to bargain
collectively' imposed by 8(a)(5) of the National Labor
Relations Act for an employer without first consulting a
union with which it is carrying on bona fide contract
negotiations, to institute changes regarding matters which
are subjects of mandatory bargaining under 8(d) and
which are in fact under discussion?" Nothing like that
happened here, and no such thing is alleged. In Katz the
employer granted a unilateral raise, independently and in
the teeth of the negotiations going on. The court equated
such conduct with literal refusal to meet and confer: ".. .
there is no occasion to consider the issue of good faith if a
party has refused even to negotiate in fact - `to meet .. .
and confer' - about any of the mandatory subjects."
[Emphasis in original ] Dignan, for The Herald
Statesman, did meet and confer, did consider and
counteroffer, did negotiate.
Dignan did say more than once that he would not put
certain things in the contract, but there is very little, if
anything, in South's testimony indicating protest by him
against this position. More important, nothing was said
during the extended last meeting on December 27 about
these fringe matters - pensions, insurance, sick leave,
dismissal pay; - the talk was all bread and butter -
offer and counteroffer on wages, bonuses, incentive
ceilings, and such. And even when South filed his charge
and amended charge, there was no mention of refusals to
put things in the contract as particular bones of
contention. Had this been a real source of irritation, had
this been at least a contributing factor in the eventual
impasse, surely South, an experienced negotiator, would
have relied upon it to strengthen the charge. He said
nothing then. And finally, all doubt on the question is
quieted by South's explanation of what brought about the
impasse. He said he decided against further meetings
because "they were offering us in many cases things that
were below what was present company practice." This is
virtual admission that it was the failure of the Respondent
to satisfy the Union's economic demands that ended the
bargaining, and not what should or should not go into a
contract.
The evidence does not suffice to prove the requisite
subsidiary assertion that the Respondent adamantly
insisted to impasse upon its demands that certain
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment be excluded from the contract. RECOMMENDED ORDER
I shall therefore recommend dismissal of the complaint.'
'Mr. Stephen Weiss, a practicing attorney , testified that at the time of
the Board election in flay he appeared on behalf of the Union and had a
private corridor conversation with Mr. Richard Hickey , another lawyer,
who then represented the Company . According to Weiss, out of anyone
else's hearing , Hickey told him "Well, you won the first round but you will
It is hereby recommended that the complaint against
Westchester Rockland Newspapers, Inc., d/b/a The
Herald Statesman, be, and it hereby is, dismissed.
never get a contract " Weiss gave no other testimony Hickey appeared the
next day at the hearing only to deny the statement . I do not have sufficient
reason to believe Mr Weiss in this matter.