Thompson Newspapers, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1974

214 N.L.R.B. 1103 (N.L.R.B. 1974)

THE ADRIAN DAILY TELEGRAM
The Adrian Daily Telegram , a Division of Thompson
Newspapers, Inc. and Newspaper Guild of Detroit,
Local 22, AFL-CIO-CLC. Case 7-CA-10699
November 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On July 19, 1974, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an opposing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, The Adrian Daily Tele-
gram, a Division of Thompson Newspapers, Inc.,
Adrian, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
CHAIRMAN MILLERS, concurring separately:
I, somewhat dubitante, concur in the result herein.
I made it clear in my dissent in Federal Mogul Corpo-
ration, 212 NLRB 950 (1974), that I do not share the
view that an employer may not pursue, with consid-
erable persistence, a course of bargaining aimed at
resolving noneconomic items before moving on to
attempt a resolution of economic items, particularly
where, as was true both there and here, the union has
initially concurred in "ground rules" to the effect
that this will be the order in which the bargaining
will take place. But after extended negotiations
wherein one party repeatedly indicates its "flexibili-
ty" on a thorny noneconomic issue and evidences a
willingness to compromise thereon if a satisfactory
economic offer is forthcoming, an adamant refusal to
advance the bargaining by exploring the economic
1103
issues, as had here been strongly recommended by a
knowledgeable mediator, is, in this context, indica-
tive of a lack of genuine desire to reach agreement. I
note that in Federal Mogul, unlike here, the respon-
dent ultimately did make a full proposal when it ap-
peared essential to do so in order to break the im-
passe. I would allow the parties broad latitude in bar-
gaining techniques and tactics but, although I regard
the issue here as not wholly free from doubt, I am
persuaded that, in light of the totality of the evidence
in this case, it is not unreasonable to conclude that
Respondent was not merely using a bargaining tech-
nique to achieve an agreement on terms favorable to
it, but instead was pursuing a course aimed at defeat-
ing the bargaining process and making any agree-
ment impossible. Accordingly, I am willing to join
my colleagues in finding the 8(a)(5) violation here.
1 We agree with the Administrative Law Judge's rejection of
Respondent's defense based on the Union's operation of the Maple City
Reporter as an interim strike weapon We adopt his rationale insofar as it
relates to the interim nature of the operation, which demonstrates that, as he
found, there was not here any "latent danger" of an ongoing competitive
entity which might lend motivation to the Union to bargain for the protec-
tion of its business interests rather than for the benefit of Respondent's
employees. In rejecting this defense, however, we do not rely on
Respondent's failure to raise objections to the publication during the negoti-
ating sessions, since we think it unsound to attribute any estoppal character-
istics to this conduct, inasmuch as Respondent had made plain its opposi-
tion to the Union's publishing activities by promptly filing and actively
pursuing unfair labor practice charges aimed specifically at this union con-
duct
DECISION
FRANK H. ITKIN, Administrative Law Judge: This case
was tried before me on March 19 and 20, 1974, at Adrian,
Michigan. The unfair labor practice charge was filed by the
Union on November 1, 1973, and the unfair labor practice
complaint issued on January 17, 1974. The complaint prin-
cipally alleges that Respondent Company, in violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act, has refused and continues to refuse to bargain in good
faith with Charging Party Union as the duly certified rep-
resentative of its employees in an appropriate unit by "re-
fusing to submit an economic proposal despite repeated
requests by the Union to do so and refusing to bargain
about any economic matters until final agreement has been
reached on all noneconomic provisions." Respondent
Company, in its answer, denies, inter alia, that it has com-
mitted unfair labor practices as alleged and, in addition,
asserts that "during the relevant period of time ... Re-
spondent had no obligation or duty to bargain with Charg-
ing Party in good faith within the meaning of the Act"
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
all counsel, I make the following findings of fact and con-
clusions of law.
214 NLRB No. 157
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. INTRODUCTION I
Respondent Company, a Delaware corporation, main-
tains an office and place of business in Adrian , Michigan,
where it is engaged in the production and distribution of a
daily newspaper , The Adrian Daily Telegram? During
1973 Respondent Company had gross revenues in excess of
$200,000 , held membership in or subscribed to interstate
news services , published nationally syndicated features, ad-
vertised nationally sold products the revenue from which
was in excess of $50 ,000, and purchased and caused news-
print and other materials valued in excess of $50,000 to be
transported to its Adrian facility directly from States other
than Michigan . I therefore find and conclude that Respon-
dent Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
It is undisputed and I find and conclude that all editori-
al, advertising, circulation, and accounting department em-
ployees employed by Respondent Company at its Adrian
facility, including sports editor and reporters , women's edi-
tor and reporters , county editor , general and home report-
ers, photoengraver , sales and display personnel , circulation
clerk , county circulation supervisor , janitors, switchboard
operator , and payroll and assistant accounting clerk, but
excluding press room , composing room , and mail room em-
ployees , wire editor , guards, and supervisors as defined in
the Act, confidential employees , and all other employees,
constitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Likewise , it is undisputed and I find and conclude that on
April 17, 1972, the Toledo Newspaper Guild, Local 43,
AFL-CIO-CLC, filed a representation petition in Board
Case 7-RC- 11158 seeking an election in the above unit.
On August 9, 1972, pursuant to a decision and direction of
election issued on July 10, 1972, by the Board 's Regional
Director , and as amended by the Board 's order on August
7, 1972, a majority of employees in the above unit selected
the Toledo Newspaper Guild, Local 43, AFL-CIO-CLC,
as their exclusive bargaining agent . Thereafter , on or about
August 17, 1972, the Regional Director certified the Toledo
Newspaper Guild, Local 43, AFL-CIO-CLC, as bargain-
ing representative of the unit employees pursuant to Sec-
tion 9(a) of the Act. Subsequently, on or about April 13,
1973, pursuant to a decision and amendment of certifica-
tion , the certification which had issued on August 17, 1972,
in Case 7-RC-11158 was amended by substituting the
Newspaper Guild of Detroit , Local 22, AFL-CIO-CLC,
the Charging Party herein , for the Toledo Newspaper
Guild, Local 43, AFL-CIO-CLC. I find and conclude that
Charging Party Union is an organization in which employ-
ees participate and which exists for the prupose , in whole
or in part , of dealing with employers concerning griev-
ances, labor disputes , wages, rates of pay , hours of employ-
1 The findings of fact and conclusions of law recited in this section are
principally based upon disputed evidence of record, admissions in the
pleadings, and stipulations of the parties
2 The Adrian Daily Telegram is, as alleged, a division of Thompson
Newspapers, Inc, which corporation also operates about 47 newspapers in
the United States and 41 newspapers in Canada
ment, or conditions of work and, consequently, is a labor
organization within the meaning of Section 2(5) of the Act.
Respondent Company and the Charging Party Union
engaged in some 20 collective-bargaining sessions com-
mencing about November 1, 1972, and ending on August
22, 1973. Willard Hatch was chief negotiator for the Union
at the sessions . James Baysinger was chief negotiator for
the Company. Also present for the Company was Edward
Porter, Respondent's general manager. I find and conclude
that Baysinger and Porter were at all times relevant to this
proceeding, agents of Respondent acting on its behalf
within the meaning of Section 2(11) of the Act.
II. THE EVENTS ATTENDING THE BARGAINING SESSIONS
Union Representative Hatch testified that during Sep-
tember 1972, following the representation proceedings as
noted above, he telephoned Company Representative Por-
ter requesting the commencement of bargaining between
the parties. Porter apprised Hatch "to put the request in
writing." The Union thereafter made a written request and
the parties held their first meeting on November 1, 1972.
The parties met on or about:
1. November 1, 1972 11. February 1
2. November 16 12. March 6
3. November 27 13. March 7
4. November 28 14. March 22
5. December 6 15. April 17
6. December 7 16. May 8
7. December 27 17. May 24
8. January 18, 1973 18. June 27
9. January 25 19. July 24
10. January 30 20. August 22
Company Representative Baysmger acknowledged that he
had received the Union's written contract proposals (G.C.
Exh. 2) on or about October 12, 1972. In the meantime, on
or about October 10, 1972, the International Typographi-
cal Union ("ITU") struck Respondent Company. Charging
Party Union "honored the ITU lines on October 12" and
also "voted to strike" Respondent. The strike has contin-
ued up through the date of this hearing.
The evidence relevant to what transpired at the various
bargaining sessions is summarized below:
A. November 1, 16, and 27, 1973
Union Representative Hatch recalled that at the first
meeting of the parties on November 1, "we did not do
much talking about the proposals, most of it was about the
strike and the Company." Hatch explained that during the
"earlier stages" of the negotiations, the parties agreed that
they would first attempt "to resolve their non-economic
differences." Company Representative Baysinger similarly
explained that during their "early meetings," the parties
reached the following "understanding":
. .. the understanding was that we would separate the
economic and noneconomic items and deal with the
THE ADRIAN DAILY TELEGRAM 1105
noneconomic items . . . once you had resolved the
framework, economics fall into place . . .
In addition, Baysinger testified that management represen-
tatives, after having examined the Union's initial propos-
als, generally apprised the union representatives that the
Union's proposals "did not suit the Adrian newspa-
per"-the Union's proposals assertedly did not "fit the
kind and size of operation" in Adrian.
During the first three bargaining sessions, as Baysinger
testified, "there was a review of all the Union's proposals
.." Baysinger testified that the Union had made clear
at these sessions "the essential nature of the Union shop
provision" contained in its proposals. (See GC. Exh. 2, art.
II-"Guild Shop" and art. III-"Dues Deduction.") And,
according to Baysinger, "Mr. Porter felt very strongly that
no one should be forced to become a member of an organi-
zation or pay dues to an organization that that individual
did not wish to loin. . . .
Hatch testified that at their second meeting on Novem-
ber 16, "basically, the Union went through its proposals"
stating its "initial positions" and the Company, in turn,
stated "its opposition." Hatch acknowledged that he stated
that the proposal for a "Guild Shop is not an issue which
the Union will streamline in any way." The Company, ac-
cording to Hatch, opposed the Union's proposal for a
Guild Shop because of inter aka, "Mr. Porter's personal
conviction that he did not believe in this type of clause
.." In addition, Hatch acknowledged that "generally,
when we came to [an] item that was considered economic,
we deferred it...." However, as Hatch recalled, Baysing-
er generally stated at the third meeting that "it was his
opinion that the final agreement would preserve present
conditions of employment with some moderate changes in
the economic area."
Hatch also recalled that at the third meeting on Novem-
ber 27, "the Union modified its position on several items,
including vacations, salaries . . . and a couple others .. .
Our [the Union's] model proposal . . . the original propos-
al, called for a four-day week, and at that time we dropped
down to a five-day week." 3 Hatch conceded that he may
have said at this meeting that the Guild Shop clause
"would stay on until the cows come home"-that he,
Hatch, made "very strong statements about the Guild Shop
in the early stages."
B. November 28
Union Representative Hatch testified that, at their
fourth meeting on November 28, there "were statements
made [by Management] that [the union] proposals were
inappropriate to Adrian, because it was not a metropolitan
area...." Hatch recalled that the parties "skipped"
around "discussing such things as the bulletin board and
.. information" clause. Agreement on the language of an
"information" clause was reached at this session.
Company Representative Baysinger asserted that the
3 During this third meeting , the parties discovered that a few pages were
missing from the Union's initial proposals (G C Exh 2 ) which previously
had been given to Respondent Respondent was then furnished with the
additional pages
Company "made an offer with regard to wages" during the
fourth session . Baysinger explained:
The nature of that proposal was that we told the
Union we have no intention of cutting benefits, we
also pointed out to them that there would be an eco-
nomic increase which would be modest . . . Virtually,
this was the status quo plus the modest increase .. .
on the wages... .
Baysinger testified in part as follows:
Q. (By Mr. Miller) Now you said you [were] pre-
pared to make a modest proposal?
A. That is correct.
JUDGE ITKIN: You're referring to an economic pro-
posal?
A. That is correct.
Q. (By Mr. Miller) How much was it?
A. I think I stated that it was within-
Q. My question was how much was it?
A. There was no dollar figure on it.
Q. Did you have any notion as to what the dollar
figure might be?
A. I stated it would be within the federal guidelines,
which at that point was 5.5 percent.
Q. You're saying now that your modest proposal
was equal to 5.5 percent?
A. No, within.
Q. How much was it?
A. We didn't know, we didn't bargain about it.
C. December 6, 7, and 27
At the fifth bargaining session on December 6, the Com-
pany submitted written counterproposals (see G.C. Exh. 3).
The Company's proposed agreement refers to the following
titles: article I-Coverage; article II-Guild Membership;
article III-Hiring; article IV-Information; article V-
Grievance Procedure; article VI-Security; article VII-
Insurance and Retirement; article VIII-Transfers; article
IX-Hours and Overtime; article X-Holidays; article
XI-Vacations; article XII-Sick Leave; article XIII-
Leaves of Absence; article XIV-Part-time Employees; ar-
ticle XV-Wages; article XVI-General Wage Provisions;
article XVII-Expenses; and article XVIII-Miscella-
neous.
The Company's proposed contract generally states under
article VII, Insurance and Retirement, that "Existing plans
for hospitalization insurance, life insurance, and employee
retirement shall remain in effect subject to change or can-
cellation `by the carrier.' " And, there are no substantive
provisions contained under the subjects of article X, Holi-
days; article XI, Vacations; article XV, Wages; article
XVI, General Wage Provisions; or article XVIII, 2, Funer-
al Leave. As for article XII, Sick Leave, the Company's
proposal generally states: "In accordance with past prac-
tice sick leave will be granted at the discretion of the Em-
ployer."
Union Representative Hatch testified that at this fifth
session there "was a discussion over several proposals, out-
side clause, the preamble . . . grievance procedures .. .
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "there were no agreements at that meeting... .
"Hatch recalled that at this meeting the Umon "modified
[its] proposal for grievance language... ." In addition,
Hatch explained that:
. .. as soon as we received the [Company's] proposal
[G.C. Exh. 3] we caucused for some 36 minutes. We
looked at them and then, at that point, actually most
of the discussion for the rest of it was based upon the
Company [proposal] rather than our own.. .
Hatch admitted that he stated at this fifth meeting, "we are
not coming back unless we get a Guild Shop...... Fur-
ther, Hatch testified with respect to the provisions of article
X, Holidays, as contained in the Company's proposed con-
tract, the Company never "fill[ed] in the blanks"; "the sta-
tus quo [was] the blanks"; the Company "never" made a
specific "written proposal." As for article XI-Vacations,
the Company also did not fill in the "blanks." And, with
reference to Article XV, Wages, or article XVI, General
Wage Provisions, Hatch similarly explained that the
"blank space" in General Counsel's Exhibit 3 was "never"
"filled in, orally or in writing."
The sixth session was held on December 7. Hatch testi-
fied that at this meeting there "was a lot of discussion
about the grievance procedure" and "there [were] some
agreements . . . with respect to "minor matters." The rec-
ord is unclear as to whether the seventh session was in fact
held on December 27, as scheduled, or on January 4, 1974.
Hatch was uncertain whether the parties in fact met on
December 27 or, instead, on January 4. In any event, as
Hatch testified, the parties discussed "grievance" proce-
dures on or about December 27 and/or January 4 and no
agreement was reached on that subject.
D. January 18, 25, 30 and February 1, 1974
The eighth session was held on January 18. Hatch re-
called that "grievance" procedures were discussed that
day; that an agreement was reached on the subject of
"transfers" as contained in article VIII of the Company's
proposal; that agreement was reached on the subject of
"outside activity" as contained in article XVIII of the
Company's proposal; and that the parties in part agreed on
the subject of "part-time employees" as contained in article
XIV of the Company's proposal Hatch testified that there
was a discussion on the subject of "mileage" as contained
in the Union's initial proposal; however, the Company as-
sertedly made no specific counterproposal and no agree-
ment was reached on this subject.
Hatch recalled that on or about January 18 the Union
first discussed the so-called grandfather clause modifica-
tion to its initial Union Shop or Guild Shop proposal. Bay-
singer also explained that at a meeting about midpoint in
the negotiations, the Union orally proposed a "grandfather
clause" modification to its earlier Guild Shop proposal.
Baysinger believed that under this modified proposal, as
suggested by the Union, "all employees presently a mem-
ber of a Union must remain as members of the Union in
good standing and any new employees must join the
Union." Baysinger testified that this proposed modifica-
tion by the Umon did not satisfy the Company's objection
to the Guild Shop.
. .. because, as I stated, Mr. Porter felt very strongly
that no one should be forced to join or pay dues to
any organization that they did not wish to join . . . It
did not meet that objection .4
On the ninth session, which was held on January 25, the
Union, according to Hatch, made a "number of modifica-
tions in [its] proposals" with respect to "holidays, holiday
pay, severance pay, vacations, sick leave, [and] mileage."
Hatch testified that "specific amounts" or values were giv-
en to various of the Union's proposed modifications. The
Union's "figure" for salaries was modified to "approxi-
mately 7-1/2 percent." Under this modification, as Hatch
explained, "a dollar figure for a reporter . .. with 5 years
experience" would be $233.75 per week. Weekly wages for
other positions such as, for example, secretaries, would be
calculated at a fixed percentage of the reporter's weekly
wage. In addition, as Hatch testified, "we changed our pro-
posal from the 37-1/2-hour work week to a 40-hour work
week . .." Hatch recalled that
. . . the Company' s response was that this is a mirror
of the Toledo agreement, that Adrian is not Toledo,
we [the Union] were going to have to come up with
something that was more suitable to Adrian.
The Company, as Hatch testified, did not reply with any
"dollar figures."
Hatch testified, inter alga, that Management assertedly
did not envision granting a bonus provision for terminating
employment; that Management indicated that it had a
good hospitalization program; that the Company wanted
to "continue the present benefits" including hospitaliza-
tion; and that the Company proposed eight cents per mile
for mileage expenses. Hatch also explained:
. .. We agreed to defer all economic items. We con-
sidered mileage noneconomic .. just reimbursement
for out-of-pocket expenses .
Hatch recalled that the subject of the Union or Guild Shop
clause was discussed at virtually every session.
The parties met again on January 30, the tenth session.
Hatch testified that there were no counterproposals made
by the Company "in figures" with respect to any of the
"subjects" which had been discussed at the prior meeting.
Hatch was uncertain whether the parties reached agree-
ment at this or the next session with respect to "how many
hours" an employee "had to work to qualify to be full-time
... ." Hatch was uncertain whether the Company made a
I note that the record is somewhat unclear as to whether the Union's
proposed modification of its Union Shop clause in fact first occurred later
than January 18 1 find that this proposed modification first occurred on
January 18 Baysinger, with the assistance of his notes, agreed that "Mr
Hatch had already, at least by March 6, offered a so-called grandfather
clause " (Emphasis supplied )
THE ADRIAN DAILY TELEGRAM 1107
proposal at this meeting or at a later one to the effect that
management "would give us checkoff" if "revokable on
demand" by the employees.
On February 1 the parties conducted their 11th session.
Hatch testified:
. .. we reviewed the progress we had made [up] to
that time. That included agreement [on a ] hiring
clause, information clause, grievance clause, job secur-
ity clause, transfer clause, hours and overtime provi-
sions, description and rates of part-time and tempo-
rary employees . . . expense minus the mileage figure
... outside activity clause, savings clause . . . Those
were the agreements we had reached at that time .. .
Hatch further testified that, with perhaps "one or two mi-
nor exceptions," no significant agreements were subse-
quently reached by the parties. And, as Hatch recalled:
... we reviewed . . . things that remained unre-
solved, they included the coverage, Guild shop, dues
deduction, severance, retirement, insurance, holidays,
vacations, sick leave, leave of absence . . scales [and]
general wage provisions . . . funeral leaves
Hatch admittedly stated that he "had promised ... the
people to get Union security ..." and that he was "going
to get it or [there] will be no contract. . " Likewise,
Hatch acknowledged stating that he "would not sign with-
out a Union Shop.. .." Hatch admittedly stated- "we are
at a very legal or real impasse" and that he was "not inter-
ested in a contract without Union Shop." Hatch testified
that Baysinger had stated that he, Baysinger, "was not hap-
py with [the] things left on the table. .. ." Hatch admit-
tedly replied that these were "only essentials left" and "we
have no where to go."
E. March 6 and 7
At the 12th session on March 6, no agreements were
reached by the parties. Hatch recalled that the Union's
proposed Guild Shop and Security clause was discussed
again . Hatch testified:
... our position was that it was important to have a
Union Security clause. We had stressed that we had
offered [a "grandfather" clause] to meet their [the
Company's] objection about present employees. We
point[ed] out that it was a Guild Shop clause that was
in the contract at [a] Canton [operation], . . . if they
[the Employer] had agreed at Canton, we couldn't see
why we couldn' t agree to it at Adrian .. .
Hatch added that the Company's opposition to the pro-
posed Guild Shop continued throughout the remaining ses-
sions. As Hatch explained: "Their [the Company's] posi-
tion was that we [the Union] were forcing people to join the
Union, . . . Mr. Porter was particularly opposed to it
... " Hatch acknowledged that he stated that "the Guild
Shop clause would be a strike issue," "if we went back to
our people without this clause, they would run us right out
of town... .
At the 13th session on March 7, according to Hatch, the
Union proposed that a Federal mediator be brought in and
that this be done by a "joint request" of the parties. The
Company refused tojoin in the request, asserting that "the
federal mediator would do no good." Hatch admittedly
had stated at this meeting: "we are getting nowhere, appar-
ently you [management] have nothing to offer and I am
reluctant to admit it but we have nothing new to offer
either...." Baysinger, according to Hatch, responded-
"we [the Company] are willing to sit here and go through
each item again...." Baysinger asserted that "if we [the
parties] could not settle it among ourselves, a third party
[the mediator] was [not] going to help." Baysinger testified
that he stated at the session that he did not see a "need for"
a Federal mediator.
F. March 22, April 17, and May 8
A Federal mediator, Harry Webber, was present at the
14th session on March 22. According to Hatch, at that
meeting "Baysinger reviewed the outstanding issues" and
both parties adhered to their previously stated positions.
Baysinger acknowledged that, at the outset of the meeting,
Hatch emphasized that "the Guild had modified its Union
Security clause by the granddaddy clause... ." Either at
this 14th session on March 22, or possibly at the 15th ses-
sion on April 17, the mediator, according to Hatch, "sug-
gested [that] the parties bring forth full economic propos-
als." 5 Hatch also explained that during the earlier stages of
the negotiations, the parties had agreed that they would
first try to resolve their noneconomic issues; that there was,
however, a "turning point" or shift to economic issues
which was "stimulated" by the "appearance and subse-
quent suggestion of the federal mediator"; that the media-
tor had "proposed [that] this was the way [to] ... better
resolve the issues by getting them all on the table"; and
that the mediator therefore proposed "that both sides pre-
sent complete packages including all economics." As
Hatch testified, the Union "responded affirmatively." As
for the Company's response, Hatch recalled.
The initial response [of the Company] was to ask what
the date of this meeting would be, which the federal
mediator described . . . for the purpose of discussing
... economics.
Hatch testified in part as follows:
Q. [By Mr. Miller] Was Mr. Baysinger refusing to
make a proposal at that time?
A. No.
Q. Did he argue at the mediator [the] question of
proposal?
A. Not a word.
Q. Did you [Hatch] state in his [Baysinger's] pres-
ence that you'd be prepared to make such a proposal?
5 I note that the Union, in its brief, indicates that this suggestion by the
mediator was made on April 17 The record is not entirely clear, however, I
am persuaded that the mediator 's suggestion was in fact first made on
March 22
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I did indeed.
Q. Did he argue with you that you should not make
a proposal?
A. He did not.
Q. Did he suggest to you at that time that at the
next meeting the only matter [that] would be discussed
would be noneconomic matters?
A. No, certainly not.
Q. The meeting that you are making reference to
.. . what approximate day would that be?
A. That would have been March 22, 1973 meeting.
Hatch recalled that the next session, the 15th session,
was scheduled for April 17. In the meantime, according to
Hatch, the Union had prepared "to make a full economic
proposal." Likewise, the Union believed that it would, in
turn, receive a full economic proposal from the Company.
Hatch testified that the Union was prepared, when it came
to this session, to make changes or alterations in its non-
economic proposals-"we [the Union] wanted to get a con-
tract and we realized that we certainly weren't going to get
it . . . without making concessions." Consequently, at the
15th session on April 17, or possibly at the 16th session on
May 8, the Union presented an economic proposal as sug-
gested by the Federal mediator.' The Company, as Hatch
testified, made no new proposal. Thus, at this 15th or 16th
session, as Hatch testified, the Union modified its initial
proposals on, inter alia, wages and vacations. As Hatch
stated, "we laid out a full economic package." The Compa-
ny, as stated, did not specifically respond to the proposal
or have an economic proposal. Hatch testified:
I [Hatch] said, when the mediator said let's set a
meeting . . . both sides come up with a proposal, the
Company nodded and asked a date . . . [We] assumed
that they were agreeing with the mediator's request
that they would have a proposal... .
Baysinger's response at the meeting, according to Hatch,
was:
... at least we [the Company] know what their [the
Union's] thinking is, but he [Baysfnger] said I don't see
how we can come to an agreement on the economics
while [the noneconomic] issues are still facing [us]. He
[Baysinger] quoted us as saying . . . that there would
be no agreement at all... .
The Company, however, questioned the Union about
certain job "classifications" which it had used. The Com-
pany, according to Hatch, claimed that "they [manage-
ment] did not understand what we [the Union] meant by
these classifications." The Union quickly called a caucus,
contacted its research department and provided the Com-
pany with this requested information. Hatch explained
6 I note that the Union, in its brief, states that it presented its proposal on
May 8 The record, although not entirely clear, indicates that this presenta-
tion was made on April 17 Resolution of this ambiguity in dates and related
questions concerning on which of two sessions certain statements were
made is not crucial to a resolution of the substantive issues before me See
Discussion, infra
that, in response , "Mr. Baysinger said, fine , we know what
you [the Union] are thinking about, we still don't have a
proposal." Hatch testified that the Employer has never giv-
en the Union an economic counterproposal or bargained
with the Union following its economic presentation of
April 17 or May 8 with respect to any of the items which
were proposed by the Union. As Hatch explained: "The
only comment was that [they] were inappropriate to Adri-
an . . . there were certainly no other discussions." Baysing-
er assertedly said: "we should dispose of noneconomic
items first." Baysinger specifically referred to the "Guild
Shop clause" and the fact that since February i "we had
not made any progress" on this and related noneconomic
issues 7
Hatch testified that at the April 17 or May 8 session:
I believe it is about this time at this meeting possibly,
maybe the meeting before [April 17 or May 8], where
I started hinting that our position was not as flexible
[sic] on the issues. As I read [my bargaining notes],
that certainly doesn't show that I said we wouldn't
have a contract without Guild shop.. .
Hatch stated at the meeting: "regardless of those other
items, it is beneficial to have the whole thing on the table to
see what we are talking about. ..." And, Baysinger testi-
fied in part as follows:
Q. (By Mr. Lewis) On the same day, May 8, didn't
Mr. Hatch ask if a full proposal could be ready for the
Company by the next meeting?
A. He asked that.
Q. Didn't you tell him that you would try or words
to that effect?
A. A little bit more than words to that effect.
JUDGE ITKIN: Tell us what you said.
A. We said that we would try, but we had a number
of problems which we were facing. Among those were
the structure of the operation as it stood, but in addi-
tion to that, we also had a problem, as to the number
of non-economic items which stood before us. One of
them was that, regardless of what we reached on eco-
nomics, we would still be faced with no contract... .
Baysinger acknowledged that, although Federal Mediator
Webber on April 17 had "strongly suggested that the par-
ties might both bring full proposals," the Company
"brought nothing new to the following meeting on [May] 8
In addition, Baysinger testified in part as follows:
Q. (By Mr. Miller) Can you find in the minutes of
April 17th [when] the mediator requested that you
7 There was, according to Hatch, some discussion on the Union's pro-
posed Security clause Baysinger reiterated that "Mr Porter had a personal
conviction against it" and "that there would be no settlement without us
[the Union] giving up our position on the Guild Shop proposal" Hatch
acknowledged that there was "some discussion of such items as noncontri-
butory pension plan , holidays, holiday pay", that the Union stated that it
was "sticking with its January 25 response", that the Union was, in effect.
"restating [ its] position as stated January 25", and that Baysinger responded
to various items by saying, in part, "we're sticking to the present practice"
Thus, for example , sick leave would be "covered by past practice " The
Company's position was the same for hospitalization and retirement, the
Company assertedly wanted "to maintain the status quo"
THE ADRIAN DAILY TELEGRAM
come up with joint proposal, that each side come up
with a total package?
A. Meeting number 17?
Q. Yes.
A. No I doubt it, you mean April 17th?
Q. Yes, pardon me April 17th, do you find any ref-
erence in those minutes where the mediator requested
both parties to come up with comprehensive economic
agreements , let me have you by pointing there?
A. Yes.
Q. Read that out loud please?
A. There's an attention [sic] to get to an agreement,
and I think both parties should have a prior proposal
to look after this length of time, it should be a total
proposal on positions whether they could go outside is
not a question.
Q. Now is there anything from that point on until
the end of the meetings of that meeting which indi-
cates a response by you?
A. No.
Q. Is there anything from that point on which indi-
cates in a recording of a statement which you said that
you made in these proceedings?
A. No.
Q. Is there anything that indicates a response by
Mr. Hatch?
A. Yes there is.
Q. Does it indicate that he said that he would be
willing to comply?
A. He said I am certainly willing to try anything
that would unhook us.
G. May 24
At the 17th session on May 24, as Hatch testified, the
Company again asserted that the parties "should dispose of
non-economic items first" in response to the Union's re-
newed request for an "economic counter-proposal." Hatch
testified:
I made a very strong answer to that. I said that I
felt we had been deceived. We had been led to believe
that the Company was going to have an economic re-
sponse ... .
Hatch explained: "We [the Union] pointed out that we
expected this proposal two meetings ago"; and "We object-
ed very strenuously to the fact that they [the Company]
refused to come up with an economic offer."
Baysinger testified in part as follows:
Q. (By Mr. Lewis) Returning to the meeting of May
24th, which appears to be the next one . . were you
not asked again on May 24th for an economic propos-
al, asked by Mr. Hatch?
A. That's possible.
Q. Didn't you state on that date that "I see no pur-
pose to it unless we resolve the sticky issues?"
A. That would be my response, yes.
Q. I take it by sticky issues, you were referring to
non economic issues?
A. The non economic issues were, we were still fac-
1109
ing it, which were guild shop jurisdiction, check off.
Q. Isn't it true that Mr. Hatch then said in that
meeting, there was nothing that he could see that
would change the union's need for guild shop, but that
anything he supposed was possible?
A. He might have said that, yes.
H. June 27 and July 24
The 18th session was held on June 27. The Union, as
Hatch testified, "requested payroll information" because
of changes which the Company assertedly had made in its
operations or job classifications since the commencement
of the strike. The Union "wanted information on what the
changes were . . . so we [the Union] could bargain on the
changes." The Company, in response, would not tell the
Union "what changes" it in fact had made. The Company
asserted that it would take the Union's request "under ad-
visement and . . get back to it later." The payroll infor-
mation pertained to new job classifications .8 Hatch also re-
called referring to the proposed Union Guild Shop and
Security clause at this session. Hatch admittedly said, inter
alia, "I wonder if you think the [Company's] objections
... were enough to prolong the strike indefinitely"; "this
has been a major item"; . .. the Union could or would
insist on its right to Guild Shop "until hell freezes over";
"there is no point in trying to settle everything else until
this [i.e., "Union Shop"] is out of the way; ..." "we can't
get around Union Security"; and "we cannot give up
Union Security." Hatch also said, inter aha, "we were will-
ing to work concessions . . . the Company doesn't seem to
be....
Baysinger, in his testimony, recalled that the Union had
requested "certain payroll information" and that the Com-
pany "never" furnished this "information."
At the 19th session on July 24, the Union renewed its
request for the payroll information and the Company re-
fused. According to Hatch,
We pointed out . . . we wanted information on what
the changes were. In addition to the payroll informa-
tion . . . tell us what change you would make so we
could bargain on the changes. That is the request that
was made.
Hatch further testified that, in answer to the Union's re-
quest,
Baysinger said that inasmuch as [they are] still making
job assignments, and so forth, they don't think it's ap-
propriate at this time. So we must resolve some of the
other issues before we can get to economics.
Hatch asserted at this session: ". . . in order to bargain
intelligently, we had to know what the unit, description of
the unit, what we were bargaining for. ..." In sum, Hatch
8 Hatch explained that during the earlier bargaining sessions, the Compa-
ny claimed that it had made certain changes in job classifications The
Union requested this and related information "in order to bargain intelli-
gently We had to know what the changes were
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressed the Company to produce "job titles and descrip-
tion" and the Company persisted in its refusal to disclose
the requested information. The Company wanted the non-
economic issues resolved before discussing economic mat-
ters. Hatch, however, acknowledged stating at this session
to Baysinger that, with respect to the Guild Shop issue, "I
think I'm safe in saying we don't have one individual who
would suggest that we abandon that issue to get a settle-
ment. I would hope you recognize how firm we are on that
point...." Hatch acknowledged stating, inter aha, "we
are not going to agree to an open shop"; and "we seem to
have reach[ed] our usual impasse."
I. August 22
The last session was held on August 22. Hatch, as he
testified, "virtually pleaded for the Company to come up
with an economic offer." The Company responded that
unless the Union "is prepared to change its position" the
Company would not make "an economic offer" and "they
didn't see any point in meeting." The Company "terminat-
ed the meeting" and refused "to meet with [the Union]
again unless [the Union] changed its position"; unless the
Union had "something new to offer." Hatch testified in
part:
I [Hatch] said that we seem to be deadlocked. I think
we should nevertheless attempt to break the deadlock.
I dropped what I thought were rather broad hints in
there, I was certainly flexible, that we were flexible on
every issue on the table. I said it about [the] Guild
Shop clause.. . .
The Company claimed that, in effect, there "is no point in
going on unless [the Union] changed [its] position." Hatch
claimed that "we [the Union] were willing to change but
we've got to find some common ground"; "we did state
that if they could move we also could move."
Baysinger acknowledged that the Company's position on
August 22 was "when and if either party had anything new
to relate or to propose to talk about, that each would know
the other's phone number; each would get in contact... .
Baysinger asserted that Hatch "agreed." However, Bay-
singer also testified in part as follows:
Q. (By Mr. Lewis) Now on August 22, 1973, did
Mr. Hatch ask you in the lobby after the meeting if
you would reconsider your decision?
A. Certainly, yes he did
Q. He was referring to the decision not to set a defi-
nite date for further negotiations?
A. That is correct.
Baysinger also testified:
Q. (By Mr. Lewis) Do you recall asking during that
meeting what the point was in going into the economic
issues in resolving them possibly, but still having to
come back to the guild shop?
JUIXIE ITKIN' Did you ask that?
THE WITNESS: Yes.
s
Q. (By Mr. Lewis) Didn't Mr. Hatch say later in
that meeting that he did not want to raise smoke
screens in negotiations, but thought possibly . . . eco-
nomic proposals might eliminate some of the issues,
seeing that the parties were closer to settlement?
A. He said that.
Q. When you saw Mr. Hatch, in the lobby of the
motel later that day, didn't he state that he had the
whole month of September open?
A. Yes he said that.
The Company has not contacted the Union since August
22. About December, after charges were filed in this pro-
ceeding, union representatives contacted the Company's
representatives in an effort to set a bargaining date and
were, instead, referred to the Company's attorneys. No fur-
ther meetings have been scheduled.'
III. DISCUSSION
Section 8(a)(5) of the National Labor Relations Act
makes it an unfair labor practice for an employer "to re-
fuse to bargain collectively with the representatives of his
employees...." Section 8(d) provides that "to bargain
collectively is the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of
employment.. . ." In N L.R.B v. Insurance Agents' Union,
361 U.S. 477, 485, 486 (1960), the Supreme Court recog-
nized that "[c]ollective bargaining . . is not simply an
occasion for purely formal meetings between management
and labor, while each maintains an attitude of `take it or
leave it'; it presupposes a desire to reach ultimate agree-
ment, to enter into a collective bargaining contract";
though "the parties need not contract on any specific terms
... they are bound to deal with each other in a serious
attempt to resolve differences and reach a common
ground." And see, Cox, The Duty To Bargain In Good
Faith, 71 Harv. L. Rev. 1401, 1411 (1958). Similarly, in
N.L.R.B. v. Katz, 369 U.S. 736, 747 (1962), the Supreme
Court held that the parties must refrain not only from be-
havior "which reflects a cast of mind against reaching
agreement," but from behavior "which is in effect a refusal
to negotiate, or which directly obstructs or inhibits the ac-
tual process of discussion." In sum, as the court of appeals
stated in N.L.R B. v. General Electric Company, 418 F.2d
736, 762 (C.A. 2, 1969), cert. denied 397 U.S. 965, enfg. 150
NLRB 192 (1964):
[T]he statute clearly contemplates that to the end of
encouraging productive bargaining, the parties must
91 credit the testimony of Hatch as summarized above His testimony as
stated above is substantiated in large part by the testimony of Baysinger
And, upon the entire record before me including the demeanor of the wit-
nesses, I find Hatch's testimony to be trustworthy and credible Insofar as
the testimony of Hatch and Baysinger as stated above differ, I am persuad-
ed that the testimony of Hatch is more complete, trustworthy, and accurate
Respondent's motion to correct the transcript (dated May 10, 1974) and
Charging Party's motion to correct the transcript (dated May 24, 1974) are
granted except with respect to a dispute between the two parties pertaining
to p 51, 15 I am persuaded from my notes and the record that Charging
Party's proposed correction in this respect, as stated in its motion, is correct
and, therefore, should be granted
THE ADRIAN DAILY TELEGRAM 1111
make "a serious attempt to resolve differences and
reach a common ground ," N.L.R.B. v. Insurance
Agents'Int 'l Union, 361 U.S. 477, 486, 487, 488 ( 1960),
an effort inconsistent with a "predetermined resolve
not to budge from an initial position ." N.L.R.B. v.
Truitt Mfg Co, 351 U.S. 149, 154-155 (1956) (Frank-
furter , J., concurring).
A pattern of conduct by which one party makes it
virtually impossible for him to respond to the other-
knowing that he is doing so deliberately-should be
condemned by the same rationale that prohibits
"going through the motions" with a "predetermined
resolve not to budge from an initial decision." See
N.L.R.B v. Truitt Mfg. Co, supra (concurring opin-
ion).
Applying these principles here , I find and conclude that
Respondent Company violated Section 8(a)(5) and (1) of
the Act by refusing to submit any specific economic coun-
terproposal to the Union despite repeated requests by the
Union , as well as the Federal mediator , and, in addition,
by refusing to bargain with respect any economic matters
until final agreement had been reached on all noneconom-
ic issues . Thus, as detailed above, the Union initially sub-
mitted its written contract proposals (see G .C. Exh. 2) to
the Company about October 12, 1972. The first bargaining
session was held on November 1. It was not until Decem-
ber 6 , the fifth bargaining session , when the Company first
submitted written counterproposals (G C Exh. 3). The
Company's counterproposals contain no substantive pro-
visions under the economic subjects of holidays, vacations,
wages, and funeral leave . The Company' s counterproposals
generally recite, inter alia, "Existing plans for hospitaliza-
tion insurance , life insurance , and employee retirement
shall remain in effect subject to change or cancellation `by
the carrier ' " and "in accordance with past practice sick
leave will be granted at the discretion of the Employer."
Union Representative Hatch credibly testified that the
Company never "fill[ed] in the blanks" as contained the
above counterproposals ; "the status quo [was] the blanks"
with respect to holidays and vacations And, although
Company Representative Baysinger generally stated at the
bargaining sessions that "there would be an economic in-
crease which would be modest. . [i a ,] the status quo plus
the modest increase . . . on wages ," Baysinger also ac-
knowledged that he in fact never made a specific economic
counterproposal-"There was no dollar figure on it"; "we
didn ' t bargain about it.,,
It is true , as recited supra, that the parties had agreed
during the earlier stages of bargaining that they would dis-
cuss noneconomic issues first. There was, however , no time
limitation associated with this procedural arrangement.
And, the Federal mediator , when he joined the negotia-
tions about the 14th or 15th sessions on March 22 or April
17, "suggested [that] the parties bring forth full economic
proposals"; that "both sides present complete packages
including all economics"; and that "this was the way .. .
[to] better resolve the issues , by getting them on the table.
11 The Union agreed . The Company was silent . There-
after , at the 15th or 16th sessions on April 17 or May 8, the
Union again presented a full proposal . As Hatch credibly
testified , "we laid out a full economic package ." The Com-
pany made no specific economic counterproposal . And, in
response to a request by Union Representative Hatch for a
"full proposal by the next meeting," Baysinger admittedly
said that "we [the Company ] would try." The Company,
however , never submitted a specific written counterpropo-
sal on the economic issues despite repeated requests by the
Union . Instead , on August 22, the Company terminated
negotiations. Baysinger acknowledged stating at the 17th
session on May 24, in answer to a request by Hatch for an
economic proposal,
I [Baysinger] see no purpose to it unless we resolve the
sticky issues , [that is,] the noneconomic issues . . . we
were still facing . . . , which were Guild Shop jurisdic-
tion [and] checkoff... .
The record indicates that Hatch , during the various ne-
gotiation sessions , stated the Union 's strong insistence
upon Guild Shop and Dues Deduction as proposed in its
contract (see G.C. Exh . 2, supra). Thus, Hatch admittedly
stated , inter alia, "we are not coming back unless we get a
Guild Shop"; he "had promised . . the people to get
Union Security"-"that he was going to get it or [there]
will be no contract"; he "would not sign without a Union
Shop"; "we are at a very legal impasse", he was "not inter-
ested in a contract without Union Shop"; "the Guild Shop
clause would be a strike issue "; " if we went back to our
people without this clause, they would run us right out of
town"; the Union could or would insist on its right to
Guild Shop "until hell freezes over"; "there is no point in
trying to settle everything else until this [Union Shop] is out
of the way"; "we can 't get around Union Security"; and
"we cannot give up Union Security ." In turn , as recited
above, the Company was "strongly" opposed to the Guild
or Union Shop provisions as contained in the Union's pro-
posals. Nevertheless , the record shows that Union Repre-
sentative Hatch attempted to modify the Union's proposed
Guild Shop clause with a "grandfather provision ." Further,
as Hatch credibly testified, after the participation by the
Federal mediator the Union was prepared to make changes
in its noneconomic proposals-"we [the Union ] wanted to
get a contract and we realized that we certainly weren't
going to get it . . . without making concessions ." Hatch
credibly testified that he "virtually pleaded for the Compa-
ny to come up with an economic offer" during the latter
sessions. Hatch testified in part:
I said that we seem to be deadlocked . I think we
should nevertheless attempt to break the deadlock. I
dropped what I thought were rather broad hints in
there, I was certainly flexible , that we were flexible on
every issue on the table . I said it about the Guild Shop
clause. . . .
Baysinger conceded that Hatch had said during their last
meeting or meetings "that he [Hatch] did not want to raise
smoke screens in negotiations , but [he] thought possibly
... economic proposals might eliminate some of the is-
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sues, seeing that the parties were closer to settlement."
Baysinger acknowledged that Hatch had stated "in the lob-
by," after negotiations were terminated on August 22, that
he, Hatch, "had the whole month of September open."
And, as Hatch stated, "we [the Union] were willing to
change but we've got to find some common ground"; "we
[the Union] did state that if they [the Company] could
move, we also could move." The Company nevertheless
terminated the negotiations on August 22. The Company,
without making a detailed economic counterproposal or
without ever having filled in the "blanks" in its initial pro-
posal , claimed that, in effect , there "is no point in going on
unless [the Union] changed [its] position."
I find and conclude that, on this record, the Company's
refusal and failure to submit to the Union a full economic
counterproposal or discuss economics until there was
agreement on noneconomic matters is contrary to the man-
date of Section 8(a)(5) and 8(d) of the Act. Thus, as recited
above, the Union submitted initial proposals at the outset
of the bargaining sessions . It subsequently modified its ini-
tial proposals. Thereafter, at the suggestion of the Federal
mediator, the Union submitted a full economic package.
The Company, relying principally on the existing differ-
ences between the parties over the proposed Guild Shop
and Dues Deduction clauses, refused to submit a specific
economic counterproposal despite the Union's, as well as
the mediator's, requests for such proposals accompanied
by "broad hints" by the Union that the Union was "flexi-
ble on every issue on the table" including the Guild Shop
clause. I find and conclude that, under the circumstances
present here, Respondent Company was not dealing with
the Union "in a serious attempt to resolve [their] differ-
ences and reach a common ground." N.L.R.B. v. Insurance
Agents' Union, supra. Rather, the Company's conduct dur-
ing the latter sessions culminating in its termination of bar-
gaining on August 22, 1973, "reflects a cast of mind against
reaching agreement ." N.L.R.B. v. General Electric Compa-
ny, supra. The parties, of course, "need not contract on any
specific terms" including the Union's proposed Guild Shop
and Dues Deduction clauses, N.L.R.B. v. Insurance Agents'
Union, supra However, I am persuaded that the Company
did not, by August 22, 1973, and at all time since, meet its
obligation "to deal ... in a serious attempt to resolve dif-
ferences and reach a common ground."
This finding of bad-faith bargaining is buttressed in part
by evidence establishing that Company Negotiator Bay-
singer refused to supply Union Negotiator Hatch with cer-
tain economic information which had been requested dur-
ing the bargaining sessions . Thus, as recited supra, during
the course of negotiations, Baysinger admittedly ques-
tioned Hatch about certain job descriptions which were
used by the Union in its proposals. Baysinger testified:
"We asked that the Union give us what they felt could be
the [intent] of their classifications." The Union promptly
complied. In addition, during the negotiations, Baysinger
admittedly asserted that "there were a number of changes
in operations during that period" because of the strike. As
Hatch credibly testified, Baysinger referred to "some
changes that he [Baysinger] says have occurred since the
strike started, there may be a change in operation." How-
ever, when the Union requested specific payroll informa-
tion , job titles , and descriptions , and in general what the
asserted changes were so that the Union "could bargain on
the changes," Baysinger refused to provide the requested
information stating , inter aha, "we must resolve some of
the other issues before we can get to economics ." Hatch
argues, without success, that "in order to bargain intelli-
gently we have to know what the unit , description of the
unit , what we are bargaining for." The Company persisted
in its refusal to provide this mformation.10 In sum, I find
and conclude upon the entire record that Respondent
Company failed and refused to fulfill its bargaining obliga-
tion , as alleged
Shortly after commencement of the strike during Octo-
ber 1972, Charging Party Union and ITU established their
own newspaper , "The Maple City Reporter ." Counsel for
Respondent argues in his posthearing brief, in part (pp
21-39):
The action of the Newspaper Guild in establishing a
business in "direct competition" with that of Respon-
dent Employer's newspaper deprives the Guild of its
"status" as a "proper" and "competent" collective
bargaining representative of Respondent's employees.
It is further submitted that the action of the Guild
clearly affected its duty to bargain in good faith within
the meaning of Section 8(b)(3) and 8(d) of the Act, in
that it may bargain, not for the benefit of its members,
but for its own financial protection , as well as the en-
hancement of its own business interests . Such "duali-
ty" of function and interest is in direct contravention
to the purposes and policies of the Act, as noted by
the Board in its seminal decision in Bausch & Lomb,
[108 NLRB 1555 (1954) ].
10 Counsel for General Counsel declined at the close of the hearing to
move to amend his complaint in order to allege the foregoing refusal to
provide requested information as an independent violation of Sec 8(a)(5)
and (1) of the Act I have, nevertheless, considered such conduct , together
with the other evidence of record , in determining the issue before me as
raised in the pleadings At the close of the hearing, counsel for Charging
Party moved to amend the complaint to include this failure to provide re-
quested payroll data , job descriptions , and related information as a separate
violation of Sec 8(a)(5) and (1) of the Act Counsel for General Counsel and
Respondent opposed this motion I am denying the motion of Charging
Party, coming as it did at the close of the hearing, since General Counsel
refuses to move to amend his complaint in this respect Likewise, I am
denying counsel for Charging Party's motion to amend the complaint, also
opposed by General Counsel and Respondent , to allege in some more spe-
cific manner a "surface bargaining" theory of violation
There was also testimony, which I credit, by Harriet Fields, women's
editor of Respondent newspaper, to the effect that during the fall of 1973,
Bert Gillespie , managing editor of the newspaper, stated at a panel discus-
sion "that the Telegram would never settle for a Guild Shop" and the matter
"after 13 months had gone beyond [a] local issue " There was also
testimony, which I credit, by Keith Sprunk, sports editor of the newspaper,
that he was told by Rick Burt , classified advertising manager of the newspa-
per, during the spring of 1973 that the Company, in effect, "would never
honor the strike and they would never settle with the Guild " Although I
would find that both Gillespie and Burt are supervisors of Respondent with-
in the meaning of the Act, under the circumstances , I have not relied on
these isolated and remote statements in attempting to resolve the issues
raised by the pleadings. Neither Gillespie nor Burt had any authority or
played any role in the some 20 negotiating sessions as outlined above This
conduct , offered for general or background purposes only, is not claimed to
be violative of Sec 8(a)(1) of the Act
THE ADRIAN DAILY TELEGRAM
In Bausch & Lomb Optical Co., supra, the union which had
represented the employer's employees established its own
optical business with ownership limited to union members
and control and operation in the hands of the union. The
union 's business was in direct competition with the busi-
ness of the employer and other area optical wholesalers.
Following certification of the union and commencement of
bargaining , the employer apprised the union that there
would be no further bargaining until the union divested
itself of this wholesale optical business . The employees
struck the employer. The Board held:
We conclude , therefore , that the particular circum-
stances of this case warrant exercise of its authority to
determine that while the union retains its dual status
of bargaining agent and business competitor , it is not
a proper representative of respondent 's employees for
the purposes of invoking Section 8(a)(5) of the Act.
For the foregoing reasons, we find that the
respondent's normal obligation to bargain was sus-
pended , and that it did not violate Section 8(a)(5) and
(1) of the Act by refusing to bargain while the union
was its business competitor.. .
The Board similarly applied this rationale in Bambury
Fashions, Inc., 179 NLRB 447 (1969).
I find and conclude that the principle stated by the
Board in cases such as Bausch & Lomb and Bambury Fash-
ions is not controlling here . In the instant case , the Maple
City Reporter was set up after the strike by the Charging
Party and ITU had commenced. The Maple City Reporter
was established as an interim strike weapon and not as an
ongoing competitor of the struck Daily Telegram . Further,
at no time during the some 20 bargaining sessions as de-
tailed above did Respondent raise an objection to the Ma-
ple City Reporter or demand that the Reporter cease oper-
ations before negotiations continued.
Thus, as the credible evidence of record shows," about
10 days after the strike commenced in the instant case, the
Charging Party and ITU began publishing The Maple City
Reporter. The Reporter has styled itself as, and repeatedly
apprised the public that it is , an "interim newspaper" limit-
ed to the duration of the stnke . 12 The Reporter has no
contract for news services . Its agreements are limited to
short periods. It has purchased no equipment It rents the
facilities of a local job printer in Tecumseh , Michigan, on a
ii The findings and conclusions recited herein pertaining to this asserted
defense are principally based upon the documentary evidence of record as
well as the credible testimony of Raymond Huchek and Dan E Reetz
ii The Maple City Reporter's front page masthead has made clear that
the newspaper is "An Interim Paper published As A Public Service In Co-
operation with Members of ITU and The Newspaper Guild" (See Resp
Exh 1) The Reporter 's first edition also states , in part as follows ( See C.P
Exh 4)
the purpose of our paper is to go out of business We want to settle
our differences with the Telegram And the experience of working on
this paper , suffering in its trials and believing in what we are doing,
shall go back to the Telegram when we settle
Also see the "resolutions" of the striking unions involved (C P Exhs 5 and
6)
1113
day-to-day basis . Its offices are the strike headquarters of
the Union and ITU which have been rented on a month-
to-month basis . Its ownership is presently in the hands of
Ray Huchek and Stephen Bleeker , as trustees for the Tole-
do Typographical Union No. 63, ITU and Charging Party.
Ownership and corporate positions are limited to those
who are members of the Guild or ITU. As Raymond Hu-
chek credibly testified , the Reporter was established to
"maintain" the "unit" employees and to provide them with
employment and keep them in the community. And, as
Company Representative Baysinger acknowledged:
Q. (By Mr. Miller) Now at any time during the col-
lective bargaining negotiations did *you refuse to bar-
gain with the Union because it was operating a strike
newspaper.
A. No.
On this record, I find and conclude that the particular
circumstances of this case , unlike those found in Bausch &
Lomb Optical Co., supra, do not support a determination to
suspend Respondent 's normal bargaining obligation be-
cause the Union was assertedly its "business competitor."
For, as the Board explained in Bambury Fashions, Inc., su-
pra, 179 NLRB at 451:
what disqualified a union from acting as such when it
also conducts a business enterprise in the same indus-
try, is the latent danger that it may bargain , not for the
benefit of the unit employees , but for the protection
and enhancement of its business interests which are in
direct competition with those of the employer at the
other side of the bargaining table .. .
The facts of the instant case do not establish any such
apparent or "latent danger." The defense is therefore re-
jected.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act since on or
about August 22, 1973 , and at all times thereafter , by refus-
ing and continuing to refuse to bargain in good faith with
Charging Party Union in the following appropriate unit by
refusing to submit to the Union an economic proposal de-
spite repeated requests by the Union to do so and by refus-
ing to bargain about any economic matters until final
agreement is reached on all noneconomic provisions. The
appropriate bargaining unit is:
All editorial department employees, advertising de-
partment employees, circulation department employ-
ees, and accounting department employees , employed
by the Employer at its Adrian , Michigan , newspaper,
including sports editor, sports reporters , women's edi-
tor, women's reporters , county editor, general report-
ers, home reporters , photoengraver , sales personnel,
display personnel , circulation clerk , county circulation
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor , janitors, switchboard operator , and payroll
and assistant accounting clerk ; but excluding press
room employees , composing room employees, mail
room employees , wire editor , guards and supervisors
as defined in the Act , confidential employees and all
other employees
4. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
In order to remedy the foregoing unfair labor practices,
and to effectuate the purposes of the National Labor Rela-
tions Act, I will direct that Respondent cease and desist
from engaging in the unfair labor practices as found herein
and from engaging in like or related conduct in violation of
Section 8(a)(5) and (1) of the Act. Affirmatively, Respon-
dent will be directed, upon request, to bargain collectively
and in good faith with Charging Party Union as the exclu-
sive bargaining representative of the employees in the unit
described above, if an understanding is reached to embody
such understanding in an agreement; and to post appropri-
ate notices.
ORDER 13
Upon the entire record in the case and pursuant to Sec-
tion 10(c) of the National Labor Relations Act, the Re-
spondent, The Adrian Daily Telegram, A Division of
Thompson Newspapers, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from.
(a) Failing and refusing, upon request, to bargain collec-
tively and in good faith with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment with Newspaper Guild of Detroit, Local 22,
AFL-CIO-CLC, as the exclusive bargaining representative
of the employees in the unit described below, by refusing
to submit to said Union an economic counterproposal as
requested by said Union and by refusing to bargain about
any economic matters until final agreement is reached on
all noneconomic provisions. The appropriate bargaining
unit is:
All editorial department employees, advertising de-
partment employees, circulation department employ-
ees, and accounting department employees, employed
by the Employer at its Adrian, Michigan, newspaper,
including sports editor, sports reporters, women's edi-
tor, women's reporters, county editor, general report-
ers, home reporters, photoengraver, sales personnel,
display personnel, circulation clerk, county circulation
supervisor, janitors, switchboard operator, and payroll
and assistant accounting clerk, but excluding press
room employees, composing room employees, mail
room employees, wire editor, guards and supervisors
as defined in the Act, confidential employees and all
other employees.
(b) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
with said Union as the exclusive representative of its em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of work, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its facility at Adrian, Michigan, copies of the
attached notice marked "Appendix." 14 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
After a full hearing in which both sides had the opportuni-
ty to present their evidence, the National Labor Relations
Board has found that The Adrian Daily Telegram, a Divi-
sion of Thompson Newspapers, Inc., has violated the Na-
tional Labor Relations Act, and has ordered us to post this
notice. We therefore notify you that:
WE WILL NOT, upon request, fall or refuse to bargain
collectively and in good faith with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment, with Newspaper Guild
of Detroit, Local 22, AFL-CIO-CLC, as the exclusive
bargaining representative of the employees in the unit
described below, by refusing to submit to said Union
an economic counterproposal as requested by said
Union or by refusing to bargain about any economic
THE ADRIAN DAILY TELEGRAM
matters until final agreement is reached on all noneco-
nomic provisions . The appropriate bargaining unit is:
All editorial department employees , advertising de-
partment employees, circulation department em-
ployees, and accounting department employees, em-
ployed by the Employer at its Adrian , Michigan,
newspaper, including sports editor , sports reporters,
women 's editor , women 's reporters , county editor,
general reporters , home reporters , photoengraver,
sales personnel , display personnel , circulation clerk,
county circulation supervisor, janitors , switchboard
operator , and payroll and assistant accounting
clerk ; but excluding press room employees , compos-
mg room employees , mail room employees , wire ed-
itor , guards and supervisors as defined in the Act,
confidential employees and all other employees.
1115
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed them in Section 7 of the National
Labor Relations Act.
WE WILL, upon request , bargain collectively and in
good faith with said Union as the exclusive represen-
tative of our employees in the above appropriate unit
with respect to rates of pay, wages , hours of work, and
other terms and conditions of employment and if an
understanding is reached, embody such understanding
in a signed agreement.
THE ADRIAN DAILY TELE-
GRAM , A DIVISION OF THOMP-
SON NEWSPAPERS, INC.
* U S GOVERNMENT PRINTING OFFICE 1976 0-599-677