TIME INC.

National Labor Relations Board - Administrative Judge Opinions

Aug 9, 2016

02-CA-134835 (N.L.R.B. Aug. 9, 2016)

JD(NY)-30-16
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
TIME INC.
and Case Nos. 02–CA–134835
02–CA–139331
THE NEWSGUILD OF NEW YORK, 02–CA–141216
CWA, LOCAL 31003 02–CA–142739
02–CA–152002
Miriah Berger Esq., for the
General Counsel.
Jonathan L. Sulds Esq. and
Justin F. Keith Esq., for the
Respondent.
Hanan B. Kolko Esq., for the
Charging Party.
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in New York on various
dates in 2016. The charges and the amended charges were filed on August 15 and 27, October
22, November 19, December 12, 2014, and January 29, and May 1, 2015. The complaint was
issued on August 31, 2015, and amended on October 15, 2015. In substance, the complaint, as
amended, alleged as follows.
1. That the Respondent for many years has recognized the Union as the collective-
bargaining representative of certain of its employees.
2. That the Respondent bypassed the Union and dealt directly with employees by
negotiating individual separation agreements with them. It is contended that agreements were
made with the following employees on the following dates:
Allen Sloan 12/10/14
Rebecca Shore 1/26/15
George Dohrmann 1/26/15
Valerie Georgoulakos 3/31/15
Jennifer Broughel 3/31/15 and 4/9/15
3. That since on or about August 8, 2014, the Respondent refused to furnish to the
Union the following information that had previously been requested.
JD(NY)-30-16
2
(a) A list of all individuals performing work for Time Inc. under the YOH contract,
including names of individuals, salaries, number of hours worked, work assignments,
and names of the manager assigning work to each individual covered under YOH
contract.
5
(b) Payroll and other documents reflecting salaries and/or wages paid to all non-
bargaining unit employees, [performing same or similar work to the employees in the
bargaining unit described above] as of December 31, 2011 to the present (including
salaries and/or wages paid to all non-bargaining unit employees for the years 2012,
2013 and 2014), including increases and the dates any increase was effective during 10
those years, up to and including the present date.
4. That by memoranda dated April 11, May 16, June 25, and August 22, 2014, the
Respondent announced unilateral changes to the 401(k) investment options and fees without
following the notification and discussion requirements contained at article XIV, section 2 and 15
article XV, section 11 of the collective-bargaining agreement. (The agreement expired on
August 27, 2014.)
5. That the aforesaid changes were made unilaterally by the Respondent without the
Union’s consent and in the absence of an overall impasse in bargaining. 20
6. That on November 20, 2014, the Respondent implemented the terms and condition of
its “last, best and final offer.” The complaint alleges that these changes were made in the
absence of an overall good-faith bargaining impasse and modified the terms and conditions of
the expired contract as to the following items: 25
Tentative agreements
Subcontracting
Temporary employees
Early retiree medical benefits30
Elimination of the volunteer layoff provision
Elimination of rehire provision
Severance Pay
Minimum vacation schedule
Multiple classification pay35
Inclusion of hourly rates in the collective bargaining agreement
Part-time employee eligibility
Certain project employees.
7. That on November 17, 2014 (after the contract had expired), the Respondent, 40
unilaterally and without bargaining to impasse and without the Union’s consent, implemented its
subcontracting proposal which among other things, reserved to the Respondent the sole
discretion to subcontract.
8. That as a consequence of its unilateral change of the subcontracting provision in the 45
expired contact, the Respondent subcontracted certain work to an agency and without
bargaining with the Union, laid off the following employees on the dates listed below.
Robert Beck 5/23/15
Simon Bruty 5/23/1550
William Frakes 5/23/15
JD(NY)-30-16
3
David Klutho 5/23/15
John McDonough 5/23/15
Albert Tielemans 5/23/15
Anna Druzcz 6/26/15
Neal Clayton 7/17/155
Charlotte Coco 7/17/15
Brian Luckey 7/17/15
Po Fung Ng 7/17/15
Barry Pribula 7/17/15
Peter Nora 10/16/1510
Hai Tan 10/16/15
Vuane Trachtman 10/16/15
9. That on January 1, 2015, the Respondent, unilaterally and without bargaining to
impasse, implemented a new health insurance plan for bargaining unit employees. 15
10. That on November 20, 2014, the Respondent, in the absence of an impasse and
without the consent of the Union, implemented its temporary employee proposal and thereby
altered the bargaining unit by eliminating a job classification.
20
11. Alternatively, by insisting to impasse on eliminating the temporary employee
classification in the unit description, the Respondent insisted as a condition of reaching an
agreement, on a “permissive subject of bargaining.”
12. That on November 20, 2014, the Respondent unilaterally and in the absence of a 25
lawful impasse and consent of the Union, eliminated the volunteer layoff provision contained in
article XXI, section 6(a) of the expired contract.
13. That as a consequence of the foregoing, the Respondent laid off the employees
listed below without adhering to the layoff provisions of the expired contract. 30
Patrick Yang 12/5/14
Margery Frohlinger 12/5/14
Erica Fahr Campbell 2/13/15
Duane Pyous 4/3/1535
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
Findings and Conclusions40
I. Jurisdiction
The Respondent admits and I find that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act. It also is admitted and I find that the 45
Union is a labor organization within the meaning of Section 2(5) of the Act.
50
JD(NY)-30-16
4
II. Alleged Unfair Labor Practices
1. History
The facts in this case are essentially undisputed. Both sides took copious notes of the 5
bargaining sessions and these were received into evidenced by stipulation. To the extent that
witnesses testified about the bargaining or other facets of the case, this was mainly to explain in
more detail some of the respective positions that were taken or how the respective positions
affected unit employees or past history.
10
As a result of a corporate merger, Time Inc. became part of Time-Warner until 2014. On
June 6, 2014, the enterprise was split into two parts, with Time Inc., becoming a separate
corporate entity with separate management. Time Inc., after the split, essentially operated as a
publisher of magazines either in print or in on-line formats.
15
The Guild was originally certified by the Board in separate magazine wide bargaining
units back in the 1940s. The magazines where bargaining occurred were Time, Life, Fortune,
Sports Illustrated, Money, People, and Fortune Small Business. The certifications in 02–RC–
015662, 02–RC–15808, 02–RC–16968, and 02–RC–16825 are no longer available.
20
Subsequent to the original certifications, the publisher produced other magazines, each
with their own staffs and which were nonunion. One example is Real Simple. In this regard, the
staffs of the magazines covered by the collective-bargaining agreement and those not covered
by the contract worked in the same building and did essentially the same or at least
substantially overlapping work. Writers write, copy editors edit, photographers take pictures and 25
photo editors edit photographs. Thus, at the primary work location, there were two groups of
employees doing essentially the same type of work; one set that worked for magazines covered
by a bargaining agreement and the other set doing work for magazines that had no contract with
the Union.
30
At the time of the events described, the Guild represented between 280 to 300
employees. Of this number, there were about 180 full-time employees, about 15 to 20 regular
part-time employees plus about 100 temporary employees.1 In this regard, temporary
employees were utilized when needed and although covered by the collective-bargaining
agreement, they were not entitled to the full panalopy of benefits available to other unit 35
employees. The group represented by the Guild was a small part of the employer’s entire work
force which consisted of over 5000 employees.
In more recent times, and with the advent of the Internet, the company has established
and set up magazine web sites that have their own staffs. For example there is Time Magazine 40
where the staff is unionized and then there is Time.com where the staff is nonunion. The
employees of Time.com did basically the same work, out of the same offices, as the unionized
workers at Time magazine. Because of this overlap of employee functions, the Union has, at
various times, proposed that the workers employed at the website magazines be accreted to the
existing bargaining unit. The employer has rejected those demands, citing Section 7 of the Act. 45
In any event, the General Counsel is not alleging that any of these uncovered workers are
accretions to the existing unit.

1
There also was a small number of people who were called project employees. As the name implies,
these were individuals assigned to projects of varying duration. During negotiations the employer and the
Union agreed that 4 persons in this category should be reclassified as regular employees.
JD(NY)-30-16
5
The most recent contract was set to expire on February 1, 2013. During the time that this
contract was in effect, the parties to the contract were the Union and Time Inc. as a division of
Time Warner. It should be noted that toward the end of the contract term, Time Warner’s
management was contemplating either selling the publications of Time Inc. or severing that
enterprise from the corporate home. It is also noteworthy that the collective-bargaining 5
agreement provided the unit employees of Time Inc. with the same coverage as all other Time
Warner employees. Looking forward for the moment, this meant that when Time Inc., was
actually severed from Time Warner, the new company no longer was a party to the preexisting
health care or 401k programs and had to negotiate with outside vendors for new plans.
10
The first bargaining session took place on January 23, 2013. Thereafter, the parties had
30 bargaining sessions over a period of 22 months. On November 20, 2014, the Respondent
announced that it was putting into effect its last offer. It should be noted that although the
contract had expired on February 1, 2013, the company agreed to numerous union requests to
extend its terms. After many extensions, the company finally refused to extend it any further and 15
the contract expired on August 27, 2014.
The principle negotiator for the company was attorney, Jonathan Sulds. Other members
of the employer’s bargaining team were Joanna Helferich, Michelle Goldstein, and Roxanne
Flores. 20
Anthony Napoli was the chief negotiator for the Union. Also on that side of the table were
attorney Richard Corenthal, Dan Neuburger and employees Jill Jaroff, John Shostrum, Judith
Fedbel Watson. Also assisting were retirees, Edith Fried and Alan Levine.
25
In June 2014, after negotiations had already commenced, Time Inc. was spun off from
Time-Warner and became a separate entity. I assume that the company’s negotiators were
aware of this possibility when negotiations commenced on January 23, 2013, and I am certain
that this change in the enterprise’s structure had a significant impact on the company’s
negotiating strategy. As will become evident as we discuss the progress of the negotiations, the 30
new company was seeking to obtain substantial concessions from the Union in terms of both
economic and contractual language provisions. Also, as noted above, when Time Inc. was
spun off from Time-Warner, it no longer was a party to the preexisting health insurance plan and
it needed to create its own plan for its employees. The same was true for the 401(k) plan.
35
For its part, the evidence shows that the Union essentially had a defensive strategy;
seeking to prevent substantial detrimental changes to the terms of the expired contract. And in
my opinion, its strategy was to stretch out the negotiations for as long as possible in order to
preclude the company from effectuating any changes in the terms and conditions of
employment for the unit employees.240
In this regard, I have no qualms with such a strategy, although I must say that I don’t
think the law would allow it to be carried out to its logical conclusion. That is, as a practical
application of one of Zeno’s paradoxes, it would theoretically be possible for a union, seeking to

2
A part of the reason for this strategy may have been that at one bargaining session, the Union’s
representative conceded that only about 30 percent of the bargaining unit employees were union
members. In any event, it seems to me that the Union was not interested in pressing its demands via any
kind of strike action. And by the same token, it seems to me that the company was not willing to engage
in a lockout to press its demands.
JD(NY)-30-16
6
avoid an impasse over an employer’s demands for concessions, to postpone it in perpetuity,
simply by making tiny concessions every time an impasse approached. 3
In order to make sense of the negotiations, we need to look at some of the terms of the
expired collective-bargaining agreement. Some of the relevant provisions were as follows: 5
Article III definitions.
Covered employees are “employees” who work for the specific magazines covered who
are in the editorial department. Also covered are part-time employees, meaning those 10
who work each week less than the normal weekly hours. Finally, included are
“Temporary employees” who perform temporary or seasonal work or who work as
substitutes. Temporary employees can become a regular employee or a project
employee if they work a specified number of hours in a given period of time. Project
employees are also covered if they work for one of the covered magazines and these 15
are defined as persons who are hired to work a specific project.
Article XIV Benefits
Section 2(a) If during the term of this Agreement, the publisher desires to amend or 20
change present benefit plans or initiate new benefit plans, insofar as such plans apply to
the employees… the publisher will give the Guild advance notice of at least 60 days
before any open enrollment period for a benefit plan, where the result would be a
decrease in a benefit plan and will discuss with the Guild the reasons for such changes
or amendment before making such amendments or changes… 25
Section 2(b) If during the term of this Agreement, the publisher desires to amend or
change present benefit plans in a manner which does not decrease benefits, the
publisher shall give at least 20 days’ notice to the Guild before any open enrollment
period … and will, if requested discuss with the Guild the reasons for such changes or 30
amendments before any open enrollment period…
Section 6(a) Part time employees hired on or after October 1, 2007 whose guaranteed
schedule of work is less than 17½ hours a week shall not be eligible for hospital-medical
benefits…35
Article XXI Job security; Reduction in force.
Section 6(a). When a function within a geographic location, department and division
shall be reduced for any reason, (including automation and/or economic), the publisher 40
shall offer to employees performing such function the opportunity to resign and shall
make every reasonable effort to accept as many volunteers as possible. The Publisher
shall, however, accept resignations of 90% of the eligible volunteers or 90% of the jobs
to be eliminated whichever is smaller.
45

3
The dichotomy paradox is as follows: Suppose one wants to walk to the end of a path. Before he can
get there, he must get halfway there. Before he can get halfway there, he must get a quarter of the way
there. Before traveling a quarter, he must travel one-eighth; before an eighth, one-sixteenth; and so on.
This description requires one to complete an infinite number of tasks, which Zeno maintains is impossible.
See Wikipedia entry on Zeno’s paradoxes.
JD(NY)-30-16
7
Article XXII. This is a standard type of grievance/arbitration procedure.
Side letter 5.
No Guild covered employee shall be required to write for or perform work of any kind for 5
operations of the publisher that the publisher does not recognize as covered by Guild
jurisdiction.
Services for the publisher’s additional operations may be voluntarily provided by Guild
covered employees provided that when doing so, the employees shall continue to be 10
covered by and subject to all of the terms and conditions of the collective bargaining
agreement in effect between the guild and the publisher.
When providing services for additional operations, a Guild covered employee’s workload
shall be adjusted to permit such additional service with the employee’s existing work 15
time.
No employee will be negatively impacted with respect to their job evaluation in any way
for failing or refusing to work for additional operations.
20
Any employee hired or employed by additional operations of the publisher routinely or
regularly performing any work or services for any entity covered by the collective
bargaining agreement… shall be considered a guild covered employee and shall be
subject to all of the terms and conditions of said agreement.
25
The parties … agree that when guild covered employees perform non-bargaining unit
work … the terms and conditions of their employment shall be governed by the CBA.
Neither the performance of such non-bargaining unit work by guild covered employees
nor anything else … shall change, vary or modify the work jurisdiction of the Guild as set
for in the CBA. 30
It should also be noted that the expired collective-bargaining agreement contained no
provisions about subcontracting.
Insofar as wages, the collective-bargaining agreement sets forth minimum rates for each 35
of a dozen job classifications. Under the terms of the contract, employees were free to
negotiate for more money directly with the company on their own behalf. Thus, there were
writers, editors, photographers and other employees who earned a good deal more than the
contract minimums.
40
2. The Negotiations
As noted above, the first bargaining session took place on January 23, 2013. At this time
the Union was not notified that there was a possibility that Time Inc. might be split off from Time-
Warner. 45
At this meeting, the company made a set of proposals; the major ones relating to a
flexibility/multiplatform; subcontracting; and the elimination of the provision requiring volunteers
when layoffs were necessary.
50
JD(NY)-30-16
8
As to the flexibility/multiplatform proposal, the company was asking for contractual
language whereby it would be free to assign bargaining unit members who worked on
magazines within the Guild’s jurisdiction to either the online versions of those magazines or to
other magazines; none of which were covered by the collective-bargaining agreement.
5
With respect to subcontracting, the company proposed a provision that would allow it to
subcontract out the work done by temporary employees. In this regard, temporary employees,
under the terms of the existing contract, were covered by the agreement provided that they
worked for one of the magazines encompassed by the labor agreement. At this time, the
company utilized a substantial number of temporary employees and this class of employees 10
comprised a significant, albeit less than half of the unit.
The issue relating to volunteers was that under the existing agreement, if layoffs were
deemed necessary, the employer was required to ask for volunteers to be laid off and to accept
90% of the volunteers. As to this issue, the company expressed its desire to change this 15
situation because it meant that the company would have less control over which employees it
wished to retain if and when layoffs occurred.
On January 25, 2013, the company sent the Union a written set of proposals relating to
these and other issues. In pertinent part these were: 20
1. Multi-platform Personnel Assignment and Utilization
At the publisher’s discretion, employees may be assigned either temporarily or
permanently to any job in any of the publisher’s operations for which an employee is 25
determined by the publisher to be qualified, regardless whether such operation … is
within Guild jurisdiction….
No assignment of an employee to an operation… which is not within the jurisdiction of
the Guild, shall expand, alter, modify or change the jurisdiction of the Guild, which shall 30
continue as before as set forth in Article III, Section 1.
In the event the publisher shall assign an employee to a job in an operation which is not
within the jurisdiction of the Guild, the terms and conditions of such employee’s
employment shall be governed by the collective bargaining agreement. No employee 35
shall suffer a reduction in pay or benefits as result of an assignment to a job not within
the jurisdiction of the Guild.
Only those individuals initially hired into jobs within the jurisdiction of the Guild, and
those individuals who routinely and regularly perform work within the editorial 40
departments specified in Article III, Section 1, regardless of the job for which hired, are
employees within the meaning of the collective bargaining agreement. Individuals who
are not initially hired into jobs within the jurisdiction of the Guild or who do not routinely
and regularly perform work within the editorial departments specified in Article III,
Section 1 are not within the jurisdiction of the Guild and the terms and conditions of such 45
individual’s employment are not… governed by the collective bargaining agreement.
2. Job Eliminations
Eliminate current volunteer process. Eliminate rehire rights, seniority to be factor only by 50
comparison between bands of experience (e.g. 0-3 years; 3-10 years; 10 + years).
JD(NY)-30-16
9
In the event of a layoff, in order to preserve benefit entitlements and work opportunities
for employees, the publisher may reduce hours of work for employees in lieu of fully
eliminating a position or positions.
3. Subcontracting. 5
Upon 30 days’ notice to the Guild, the publisher may subcontract a job, jobs or a part or
parts of its operations. Such notice shall set forth the publisher’s plan for subcontracting
including what job or jobs, operation or operations is or are to be subcontracted, the
identity of the subcontractors, and the publisher’s reasons for such subcontracting. The 10
publisher shall confer with the Guild, following such notice with respect to the decision to
subcontract and the effects of such subcontracting and shall supply such information
concerning such subcontracting as the Guild may reasonably request.
Without limiting the foregoing… the publisher shall have the right to subcontract any 15
current temporary position. Confirming present practices, the publisher may engage
freelancers to fill temporary personnel need.4
A second meeting was held on February 20, 2013. The Guild asked if the rumors of a
sale were true and stated that they could not make counter proposals until they knew what was 20
going on. Sulds stated that the press reports about a sale were rumors and he couldn’t
comment on them. The Union requested information about any proposed sale and the parties
disagreed as to whether the company had an obligation to provide such information. 5
A meeting scheduled for February 21 was cancelled. 25
On March 11, 2013, the company forwarded to the Union a comprehensive collective-
bargaining agreement that was drafted so as to retain those provisions of the expiring contract
that it was willing to retain, plus elimination of those provisions that the company was proposing
to eliminate, plus additional language representing new proposals that the company wished to 30
incorporate into a new contract.
Among the proposals were the following:
1. That the minimum wage rates remain the same. 35
2. Regarding benefits, the company proposed to delete language stating that it shall
continue in effect, during the term of the agreement, the various benefit plans such as health
insurance, life insurance, long term disability, early retirement, pension, savings plan, dental
benefits etc . . . . The proposal adds a provision to allow the employer, in its sole discretion and 40
without any obligation to bargain, upon reasonable notice, to implement any change,

4
As we go through the course of the negotiations, it should be kept in mind that the company had two
separate proposals relating to subcontracting. One related to the subcontracting of work done by full-time
or regular part-time bargaining unit employees. The second related to the subcontracting of work done by
employees who were hired on a temporary basis at magazines covered by the collective-bargaining
agreement.
5
Subsequent to this meeting, there was an exchange of correspondence regarding information about a
prospective sale. The company refused to provide such information and no charge was ever filed on this
issue.
JD(NY)-30-16
10
amendment, elimination, or modification to any benefit plan, provided the change applies to all
eligible employees of the publisher. It provides for 30 days of notice unless not feasible.
3. The company’s proposal included the proposals set forth on January 25 regarding the
multiplatform/flexibility issue; the subcontracting issue vis a vis temporary workers; and the 5
volunteer issue.
4. Additionally, the company proposed to eliminate side letter No. 5 so as to permit the
employer to assign a bargaining unit employee to a different job outside the Guild’s jurisdiction.
10
On April 18, 2013, the company notified the Guild that it willing to extend the contract to
May 31, 2013. It also notified the Union that Time Warner intended to spin off Time Inc. as a
separate corporation.
After a hiatus of about 4 months, the third meeting was held on June 6, 2013. At this 15
meeting, the parties discussed the company’s proposed contract in detail. The Union made no
counter proposals but asked the company to recognize it as the representative of the
employees who worked at the internet versions of the various magazines covered by the
agreement. For example, as the Guild represented the employees of Fortune magazine, it
wanted to have its contract extended to the employees of Fortune.com. The employer refused 20
and the Union suggested that the existing contract be extended for 12 to 18 months.
The Union made its initial contract proposals at the 4th meeting held on June 27, 2013.
This did not include any proposals on wages or minimum salaries. The company’s
representative said that they would like the Union to submit a comprehensive list of proposals 25
so as to not elongate the process. There was a discussion of the employer’s
multiplatform/flexibility proposal and the Union indicated that it could agree to the employer
having the right to assign unit employees within a brand. (i.e. employees working for Time
magazine could be assigned to Time.com).
30
The 5th meeting was held on October 31, 2013. The company agreed to extend the
contract to December 31, 2013, but stated that it wanted to set up a series of dates and that it
was “time to put our shoulders to the wheel to reach a collective-bargaining agreement.” The
meeting substantially dealt with the employer’s multiplatform proposal. The Union’s
representatives asked a lot of questions as to how the proposal would work in practice such as 35
who would have the authority to assign employee. The Union’s representatives stated that they
were seeking to protect employees who might be affected by the company’s proposal. Among
the things suggested by the Union were ideas for training and for protections from adverse
evaluations, layoffs, or discharges in the event that a unit employee was assigned to a dot.com
entity and had difficulty adjusting. At this stage, the Union’s representatives stated that they 40
would prepare proposals.
For reasons that are not relevant, the parties could not meet again until March 4, 2014.
In this interregnum, the company agreed to extend the contract until May 31, 2014.
45
The 6th meeting was held on March 4, 2014. At the outset of the meeting, the company
asked for dates in March, April and May and stated that it viewed the May 31 expiration date as
a “real” date by which time a contract needed to be reached. The employer tendered a
proposed contract consisting of a marked up version of the old contract showing where it
proposed to eliminate provisions and where it proposed to add provisions. Sulds asked that the 50
Union prepare and submit a comprehensive contract offer in response.
JD(NY)-30-16
11
At this meeting, the parties discussed the employer’s multiplatform/flexibility proposal
and the Union’s position was that this could be agreed to if the company recognized the Union
for the employees of the dot.com versions of the magazines. The company’s position essentially
was that it needed flexibility to assign employees to its various platforms and not be restricted to
having employees working only at a single magazine. The Union’s position essentially was that 5
the company’s proposal presented the unit employees with an undue risk of having jobs
eliminated.
The parties went through all or most of the company’s contract proposal and Sulds
emphasized certain other proposals that were particularly important. These were, (a) that 10
severance pay should offset any payments that would be required under the WARN act; (b) that
the volunteer program be eliminated; (c) that part time employees would only receive contract
benefits after working 20 hours per week instead of 17.5 hours per week; and (d) the elimination
of rehire rights after employees had been permanently laid off.
15
In addition to the above, there was a discussion about the company’s proposed to allow
it to subcontract out the work of temporary employees without restriction.
The next scheduled meeting was cancelled so as to give the Union the opportunity to
review the company’s contract offer and to prepare a counter proposal. 20
On March 21, 2014, the parties held their 7th meeting. Although presenting a written
counter proposal, the Union’s offer did not contain any specific wage demands. Nor did it
contain any proposals relating to medical or retirement benefits. Among the items proposed
were the following;25
1. The Union proposed to add union-security and dues-checkoff clauses.
2. The Union proposed to increase the minimum rates of pay.
30
3. The Union proposed that overtime be paid after 35 hours instead of the current 40
hours per week.
4. The Union proposed that seniority be the sole basis for layoffs and to eliminate the
use of skills and abilities as a factor in layoff decisions. 35
5. The Union made an alternative proposal that would retain the volunteer process when
layoffs were needed.
The 8th meeting was held on April 11, 2014. Sulds asked the Union if it had a 40
comprehensive contract proposal and the Union’s representatives stated that they wanted the
Company to first respond to their March 21 proposals. The employer’s representatives
responded that it did not have any further proposals. After a caucus, the company rejected the
Union’s volunteer proposal, which union representative Napoli characterized as a “core area” of
disagreement. With respect to the flexibility issue, the Union made a proposal that included that 45
that there would be a 5-year period in which there could be no layoffs of unit employees by way
JD(NY)-30-16
12
of a reduction in force. The Union’s proposal on this issue also contained a number of other
conditions, which can be read at Respondent Exhibit 21.6
Also, on April 11, the company notified its employees that there was a change in one of
the many fund options offered in the 401(k) program. The 401(k) was available to all of its 5
employees including Guild represented employees. The change involved the substitution of the
Capital Preservation Fund by the Morley Stable Value Fund. Any money an employee had in
the former would be transferred to the latter. Both funds apparently had substantially similar
investment goals and this change was unlikely to have any measurable impact on unit
employees. 10
The 9th meeting was held on April 17. At this meeting, the Union stated that
subcontracting was an important issue because there were a lot of temporary employees. In
response to the Union’s flexibility counter proposal, the company stated that it could not commit
itself to not lay off anyone for 5 years. The Union again took the position that if the employer 15
was allowed to reassign employees from a covered magazine to its digital version, then those
jobs should be covered by the Union’s contract. The employer responded that if the Union
wanted to represent the dot.com employees then it should file a representation petition. The
Union repeated its concern that an employee transferred from a covered magazine to the digital
version could be affected because he or she may be adversely evaluated after not having 20
received the proper training. In this respect, the Union noted the experience of a writer from
Sports Illustrated who voluntarily transferred to Sports Illustrated.com.
On May 7, the parties held their 10th meeting. The bulk of this meeting was taken up
with a discussion of the mechanics of how the company’s multiplatform/flexibility proposal would 25
work. At this meeting no new proposals were made by either side.
The parties resumed negotiations on the following day (The 11th meeting). The
company agreed to extend the contract until July 31, 2014, but stated that this should be the last
time for an extension. Much of the discussion dealt with proposed changes to the investment 30
options in the 401(k) plan. The company stated that it was going to change its match from 7 to 5
percent. This, would if implemented, be a significant change to the employee’s wages and
benefits. In this respect, the evidence is that the employees of Time Inc. including the
represented employees had been covered by the Time-Warner 401(k) plan. Therefore, when
Time Inc. was to be spun off from Time-Warner, it no longer could participate in the latter’s 35
401(k) program and had to arrange for new investment options and devise a new plan. The
evidence shows that in November or December 2013, the Union was notified that there were
going to be changes in the 401(k) plan and that some time later, it was notified the company
intended to reduce its match from 7 to 5 percent. So this came as no surprise when it was
discussed at the May 8, 2014 meeting.740
In addition to discussing proposed 401(k) changes, the Union’s representative stated
that it was not interested in the company’s proposal for subcontracting of temporary work.

6
It is important to note that I make no judgment as to the merits of either the company’s or the union’s
contract proposals insofar as they relate to mandatory subjects of bargaining. Whether they are good,
bad, or indifferent ideas, is beyond the scope of my inquiry.
7
After this meeting, the employer, on May 9, forwarded information to the Union regarding the 401(k)
plan.
JD(NY)-30-16
13
On May 15, the Union sent an email requesting information for the purpose of
developing a medical plan.
On May 16, the company sent out a memo to its employees stating that the split would
take place on June 6, 2014. It also stated that the Time Warner Stock Fund would be changed 5
to the Time Inc., Stock Fund and that employees who had invested in the former would receive
a one-time dividend in the form of Time Inc. common stock.
The 12th meeting was held on May 16, 2014. This meeting involved discussion by the
parties of the 401(k) changes and whether the Union should have a role in choosing investment 10
vehicles. Also, there was more fruitless discussion of the company’s multiplatform/flexibility
proposal.
Following the meeting on May 16, 2014, representatives of the Union and the company
had phone conversations and exchanges of emails on various issues. Among other things, the 15
company sent additional 401(k) plan information that was relevant to the upcoming spin off.
On June 5, the parties held their 13th meeting. At this meeting there was further
discussion of the 401(k) plan and how it would be impacted by the fact that Time Inc. was to be
spun off from Time Warner on June 6. 20
The 14th meeting was held on June 11, 2014. The company made a response to the
Union’s March 21 proposal on flexibility. In substance, the company proposed that it should
have the right to assign unit employees across brands and platforms. The company made a
proposal that would offer employees involuntarily reassigned, a training period and a 3-month 25
period during which they could not be adversely evaluated. In response, the Union asked that
the company recognize it insofar as those people employed by the dot.com versions of the
magazines covered by the collective-bargaining agreement.
The 15th meeting was held on June 13, 2014. Much of the discussion related to the 30
multiplatform/flexibility issue. In substance, the Union stated that it would agree that writers and
photographers could be involuntarily assigned from their magazine to the digital version of the
magazine or to any other brand even if not covered by the collective-bargaining agreement. The
Union’s position was that this would only apply to these two categories of employees. Also, the
Union’s proposal contained a host of job protection rules including a provision that job 35
evaluations in a new job could not be used against any reassigned individual for a 12-month
period. The Union’s proposal was that if a bargaining unit employee was involuntarily assigned
away from his magazine to an unrepresented entity, he or she would nevertheless be covered
by the terms of the collective-bargaining agreement.
40
In addition, the Union asked for a guarantee that subcontracting would not affect any
bargaining unit employees. The employer rejected this, but offered to notify and consult with the
Union before any subcontracting decision was made. During this discussion, the Union referred
to an entity called YOH and the employer’s representative stated that although the company
was using this company as a temporary sourcing agency, he was not aware of any Guild jobs 45
having been subcontracted to YOH.
On June 18, the company tendered another proposal regarding the
multiplatform/flexibility issue. In substance, this gave the employer the unlimited right to assign
unit employees across brands and platforms. The company agreed to a 4-month training period 50
for involuntarily reassigned employees and it also agreed that such employees would be
JD(NY)-30-16
14
insulated from layoffs for a period of 4 months after a permanent reassignment. The company’s
proposal included provisions that if a bargaining unit employee was reassigned outside of the
unit; he or she would not suffer any reduction in pay and would be covered by the collective-
bargaining agreement. However, if a unit employee volunteered for a reassignment to an entity
not covered by the contract, then he or she would not be covered by the labor agreement. 5
Also on June 18, 2014, the Guild made a request for information. This was sent to the
employer and read as follows:
The Guild has leaned that some temps performing work in Guild jurisdiction have 10
been placed on the payroll of YOH, a temp agency Time has contacted with to
provide temporary employees. Since Time Inc. has a proposal seeking the right
to subcontract work within Guild jurisdiction this development is very disturbing
and the Guild requests the following information so we may investigate the issue
to determine the extent of the issue. Please provide the Guild with the following 15
information
A complete list of all temporary employees employed since January 1, 2014 to
present, including mailing address, email address and phone numbers.
The date of hire for each temporary employee20
The job title of each temporary employee
The hourly salary of each temporary employee
The product (magazine, website, etc.) each temporary employee was hired by.
The name of the manager or direct supervisor of each temporary employee
A copy of any contract between Time and YOH25
A copy of any contract between YOH and any temporary employee
Payroll records from January 1, 2014 to present for all temporary employees
working for Time and/or YOH including the number of hours worked and he
wages earned for such hours.
A complete list of any benefits offered by YOH to temporary employees 30
including but not limited to medical, pension, 401(k), sick time, vacation, etc…
The 16th meeting took place on June 19. Not much progress was made on any major
issue. There was discussion about subcontracting and the flexibility issues. Also, the company
withdrew one of its original proposals that would have allowed it to implement company-wide 35
policies that would also apply to unit employees.
The next and 17th meeting did not occur until July 16, 2014. The Union made a counter
proposal on subcontracting that would, in effect, limit the amount of subcontracting and insulate
employees from the effects of subcontracting should that occur. Among other things, the Union 40
proposed that subcontracting be limited to 10 percent of employees in a job category or
department. It proposed enhanced severance pay in the event that employees lost jobs as a
result of subcontracting. The Union proposed that employees whose positions were affected by
subcontracting should have the right to be transferred to any open positions elsewhere, subject
to subsequent termination if that individual was unable to perform the job. 45
In addition, the Union proposed that the company adopt for the unit employees, the
medical plan offered by another union called the United Furniture Workers. This was a medical
plan for a different industry and among other things would have required the employer to permit
the plan’s trustees to increase contributions as they saw fit. 50
JD(NY)-30-16
15
For its part, the company reiterated its demand to eliminate the volunteer process when
layoffs were required. As noted above, under the expiring contract, if there were layoffs, the
company had to ask for volunteers and accept 90 percent of those who volunteered. The
company explained that this process impinged on its ability to pick and choose whom to retain
when layoffs occurred.5
As to the multiplatform/flexibility issue, the Union reiterated its position that in exchange
for allowing the company to assign employees from covered magazines to the dot.com versions
of the magazines, it wanted the company to extend recognition to the union for the
unrepresented employees. 10
The 18th meeting took place on July 17, 2014. The company made a revised
multiplatform/flexibility proposal. It still contained the right to assign across brands and
platforms. However, the company agreed to a training program for anyone involuntarily
reassigned and that for a 4-month period, that employee could not be laid off or adversely 15
evaluated. The company’s proposal was that any person involuntary reassigned would not
suffer a reduction in pay and would work under the same terms and conditions as contained in
the collective-bargaining agreement. However, a person who voluntarily transferred out of the
bargaining unit would not be covered by the collective-bargaining agreement.
20
In response, the Union made a new counter proposal. It agreed to allow the company to
assign unit employees to any product, platform, or brand as long as the employees worked
within their original job titles and the work was assigned by an employee’s direct supervisor. The
Union’s proposal was that employees would not be evaluated in the new job for 8 months and
that, with some exceptions, they would be immune from layoffs for a period of 12 months. 25
Also at this meeting, the company reiterated its rejection of the Union’s proposal that it
be recognized for the employees of the internet based magazines.
Finally, the company rejected the Union’s proposal that the employer adopt the Furniture 30
Workers Health plan for the bargaining unit employees. It stated that its intention was to provide
a health care plan that would provide all of its employees with multiple options.
The 19th meeting occurred on July 21, 2014. The company made concessions on its
proposals concerning salary bands and withdrew its proposal to eliminate a bonus for night 35
work. The employer then made a new subcontracting proposal which by its terms, would
protect any transferred employee from layoff for 4 months; would require a 60 day notice and
consultation period before any decision was made to subcontract; would provide for enhanced
severance pay for individuals who lost their jobs as a result of subcontracting; and would limit
the number of full-time positions affected so that the number of full time positions could not fall 40
below 35 percent.
The company also withdrew a couple of its other proposals relating to overtime eligibility
and the waiting time for benefits for new hires.
45
During this meeting, the company made an offer that employees would receive a lump
sum of $500 at the time of ratification and an additional payment of $500 on each anniversary
date thereafter. The Union rejected this wage offer and Napoli stated that no one was signing
an agreement for $1000.
50
JD(NY)-30-16
16
Further fruitless discussions also took place regarding the company’s
multiplatform/flexibility proposal and the Union’s voluntary recognition proposal.
The 20th session took place on July 22, 2014. The Union tendered a comprehensive
contract proposal, which for the first time, included economic terms such as a proposal for 5
raising the minimum pay rates. As part of this package, the Union amended its counter proposal
regarding subcontracting by increasing the proposed limit on the number of jobs subcontracted
from 10 to 15 percent. As to this issue, the company countered with a proposal to limit
subcontracting to 40 percent of the work force. (It should be noted that this is a proposal on
general subcontracting that could affect regular and not temporary employees. The company 10
maintained its position that it should be allowed to subcontract temporary work without
limitation).
At this meeting, the Union’s representative repeated its opposition to the company
proposal to eliminate the volunteer process, stating that they were not moving on this issue. For 15
its part, the company continued to assert, as it had from the start of negotiations, its desire to
eliminate the volunteer process. The Union proposed that unit employees receive a 6 percent
raise for each year of the contact and that the minimum wage rates be increased.
The 21st meeting took place on July 23, 2014. The company’s representatives explained 20
that they wanted to offer multiple options to employees regarding medical benefits and that the
prospective plans had not yet been finalized. (As noted above, when Time Inc. was spun off
from Time Warner, it no longer was a participant in Time Warner’s benefit plans. It therefore had
to establish new plans including a new health insurance plan and a new 401(k) plan for all of its
employees, of which the bargaining unit employees were a small minority). At this meeting, the 25
Union was told that when the company finally promulgates the new health plan, there would be
one option that would provide the same level of benefits at the same cost level for the union
represented employees. (By cost, this meant the cost to the employees and not the cost to the
company). In addition, the company increased its offer of making a lump-sum payment, in lieu of
a pay raise from $500 to $1000. Finally, the Union reiterated its demand to be recognized as the 30
representative of the dot.com employees who worked for magazines that are covered by the
collective-bargaining agreement.
The 22nd meeting took place on July 24, 2014. (The previously extended contract was
set to expire on July 31). The parties reviewed a list of tentative agreements and then turned to 35
the issue of flexibility. Consistent with its position all along, the Union linked any agreement on
this issue to an agreement by the company to recognize the Union for employees who were
outside the bargaining unit. After a caucus, the company presented a document that it described
as an offer of settlement; stating that it was not a last offer. The company’s offer included a
proposal for a for a card check process to determine the wishes of the unrepresented 40
employees.
The company’s offer of settlement continued its proposal relating to the elimination of the
volunteer process and continued its proposals relating to subcontracting of work done by regular
employees and subcontracting of temporary employees. The company maintained its position 45
on eliminating rehire rights, elimination of medical benefits for retirees, and on a number of other
issues.
On the other hand, the company’s offer did increase its previous wage proposals. The
new proposal was for a $1250 upon ratification; a 1 percent increase on the first anniversary; 50
JD(NY)-30-16
17
and a 1 percent increase in the third year contingent on other nonunit employees receiving a
wage increase.
In response to the company’s offer of a third year wage increase contingent on what
other nonunit employees received, the Union asked for salary information for the nonunit 5
employees.
At the conclusion of this session, the meeting for the following day was cancelled
because the Union wanted to study the offer. Also, the company agreed to extend the contract
to August 18. Bargaining sessions were scheduled for August 15 and 18. 10
On July 25, 2014, the Union made a written request for information. To the extent that
the complaint alleges a violation of Section 8(a)(5), the allegation is that the company refused to
furnish the information listed in paragraphs numbered 4 through 7 of the letter. In pertinent part,
this states:15
In connection with the current contract negotiations please provide copies of the
following information:
* * * *20
4. All contract(s) between Time Inc. and YOH.
5. A list of all individuals performing work for Time Inc. under the YOH
contract, including names of individuals, salaries, number of hours worked, 25
work assignments, and names of the manager assigning work to each
individual covered under YOH contract.
6. A list of all individuals working for YOH who were previously employed by
Time prior to working for YOH. 30
7. Payroll and other documents reflecting salaries and/or wages paid to all
non-bargaining unit employees as of December 31, 2011 to the present…
including increases and the dates of any increase was effective during those
years, up to an including the present date. 35
As pointed out by the employer, neither at the meeting on July 24 nor in this letter, did
the Union make any linkage between the relevancy of this information and the
multiplatform/flexibility proposal that had been made by the company from the inception of
bargaining 22 sessions ago. 40
It should also be noted that the complaint’s allegations only assert that the company
failed to furnish information encompassed by this particular request. The July 25 request
overlapped the earlier information request made on June 18, 2014, insofar as certain
information is sought regarding employees referred by a subcontractor named YOH. 45
On August 1, 2014, the parties exchanged a series of email messages reading as
follows:
JD(NY)-30-16
18
From Napoli to Sulds: Do you know the status of response on our information
request? Also any idea when I will get the “settlement offer” in writing along with
tentative agreement language and a list of withdrawn proposals.
From Sulds to Napoli: As discussed, they are working on gathering relevant 5
responsive information and it will be provided shortly, as available. In connection
with your request 7, as you know we await a statement of relevance along with
any supporting authority. The information requested here is not typically subject
to production as it does not relate to terms and conditions of employment for
bargaining unit employees. We will evaluate the request in light of your response 10
promptly.
From Napoli to Sulds: With regards to request 7, information on non-bargaining
unit employees’ salaries and increases, the relevance is your “settlement offer”
tied bargaining unit employees’ future increases to the increases non-bargaining15
unit employees may or may not receive in future years. I think we are entitled to
the information so we may determine if that proposal is a viable option for our
members. We mentioned to you across the table at our last session on July 24th
when you put your settlement offer on the table, that in order to assess the wage
proposal, we would need this information. 20
On August 8, the company sent a memorandum to the Union with attachments that
provided much of the information that the Union had requested on July 25. . Among other
things, the company stated that it was now offering a set of guaranteed wage increase with
none being tied to raises given to nonunit employees. That being the case, the employer argued 25
that the basis for the Union’s request for wage and salary information for nonunit employees
was no longer operative. As to the other aspects of the Union’s July 25 information request, the
employer did furnish information regarding subcontracting to YOH insofar as it may have
involved work done by bargaining unit personnel.
30
On August 14, 2014, the employer sent over to the Union another large batch of
information.
The 23rd bargaining session took place on August 15, 2014. At this meeting, the
employer made a number of concessions and stated that it was close to its bottom line. Also,35
there was a dispute regarding the relevance of the information requested in item 7 of the July 25
letter relating to nonunit wages. The Union reduced its wage increase demand to 4.5 percent for
the first year and 5 percent for the next 2 years. Although the contract was about to expire on
August 18, the Union asked that the negotiations cease for the day because they needed time
to evaluate the company’s changed offer. The expiration date was therefore reset to August 27. 40
Also on August 15, the company sent to the Union a spread sheet comparing the
contributions made to the 401(k) plan for employees when they were under the Time Warner
Plan and what they were under the newly promulgated Time Inc. plan, This stated, inter alia,
that employer contributions were now at a maximum of 5 percent of pay instead of the 7 percent45
that had been the case under the Time Warner plan. With respect to this change in the
employer matches, it seems that this was first announced to employees back in January 2014.
The August 18 meeting was rescheduled to August 27.
50
On August 20, Sulds sent an email to Napoli that stated:
JD(NY)-30-16
19
When we met on the 15th I asked if the Guild had all the requested
information needed to bargain (except those requests where the parties
have legal differences) and you said you would check. Not having heard
anything further from you I wanted to check back and close the loop. My
assumption is that the answer is yes…. If that is incorrect please let me 5
know right away so we can address the issue ahead of the 27th….
On August 22, 2014, the company distributed a memorandum to employees to the effect
that it was substituting in the 401(k) plan one Blackrock index fund for another Blackrock index
fund. (Fund M for Fund C). Both are foreign large blend funds and each had an expense ratio 10
of .11 percent. Unlike the change in the employer contribution match from 7 to 5 percent, this
change was inconsequential.
On August 25, the Union responded with an email regarding the information request.
This now raised a completely different rationale for seeking salary and wage information for 15
non-bargaining unit employees. (Item 7) This stated inter alia;
Salary information is relevant to wage proposals, particularly in light of integration
of work between bargaining unit and non-bargaining unit employees and Time
Inc., proposal on flexibility allowing management to assign bargaining unit 20
employees work for any publication or products the Publisher chooses.
On August 26, Sulds emailed a response. Insofar as Item 7, he noted that the Union had
changed its rationale for the information and stated his belief that it “flies in the face of settled
law.” 25
The 24th bargaining session took place on August 27, 2014. The Guild presented a
written comprehensive contract proposal plus a separate document, which was its response to
the company’s multi-platform/flexibility proposal. In essence, the Union’s asked for an increase
in the minimum pay rates and rejected a number of the employer’s proposals including the 30
company’s demand to eliminate the volunteer process; the employer’s position on eliminating
rehire rights; the proposal to offset severance pay if WARN payments were required; and the
company’s proposal regarding the ability to subcontract the work of temporary employees.
In its proposal relating to the multiplatform/flexibility issue, the Union conceded the 35
employer’s right to assign not only within a brand to its digital version but also within all brands.
The Union proposed giving employee reassigned, the necessary training and insulation from
bad evaluations and layoffs for 6 and 10 months respectively. Its proposal was that the terms of
the collective-bargaining agreement would follow an employee involuntarily reassigned, but that
it would not if an employee voluntarily applies for a job outside of the Guild’s jurisdiction.40
The Union offered to increase the cap on subcontracting to 25 percent of the regular (not
temporary) work force within a department or classification and tied it to a demand for enhanced
severance pay and transfer rights in the event that regular employees were affected by
subcontracting. 45
The company for its part increased its wage offer to 2 percent upon ratification; 2 percent
on the first anniversary; and 1 percent in the final year. The company also reduced its position
on subcontracting of regular employees by offering to place a cap at 100 full-time jobs and by
increasing the amount of enhanced severance pay.50
JD(NY)-30-16
20
At the meeting on August 27, the Union reiterated its request for information regarding
salary/wage information of nonunit employees who were employed by Time Inc. in the dot.com
entities and for information as to all employees who were now employed by YOH. In both cases,
the company’s position was that these were requests for information about nonunit employees
and were not relevant. And as to the YOH request, the evidence was that the company had 5
provided its contract with YOH plus information as to the employees who were referred by YOH
who had previously been employed at a magazine that was covered by the collective bargaining
agreement.
When asked to explain the relevance of wage and salary information for nonunit 10
employees, the Union’s representative stated that if it agreed to a card check, and it turned out
that employees in the related dot.com entities earned more than employees who were
transferred to those entities from bargaining unit jobs, then any nonunion employee who was
paid more would not likely sign a union authorization card. Thus, the reason posited by the
Union for this information was not actually related to the wages of its represented employees; 15
but rather to the likelihood of success it might have in organizing the unrepresented employees.
Indeed, I don’t see why a request for past wage/salary information for these nonunit
employees would be relevant to the negotiations covering the unit employees even if both sets
did the same or equivalent work at the print magazines or the digital platforms to which 20
bargaining unit employees might be assigned in the future. The company did not propose that if
those assignments were made on a nonvoluntary basis, the unit employees would lose any of
their pay or benefits as contained in the collective-bargaining agreement. That is, it agreed that
the contract would follow them to any new assignments. What the nonunit employees earned
is, to my mind, of little or no concern. And if the Union was so worried that nonunit employees25
might, in some cases, be paid more than unit employees, it could have proposed a provision
requiring parity in the event that a bargaining unit employee is involuntarily assigned to a job
working side by side with and doing comparable work to a nonbargaining unit person. Of
course, the company could have rejected such a proposal. (It should be kept in mind that the
old collective-bargaining agreement only called for minimum rates of pay and allowed for 30
individual bargaining over that issue.)
Near the end of the meeting, the Union’s representative stated that in order to develop
additional responses to the company’s proposal, it needed to have the information that had
been requested and that it would be making additional information requests. In this regard, it 35
should be noted that the parties had been engaged in bargaining since January 13, 2013 (19
months ago); that a very large amount of data had already been furnished to the Union on
various subjects; that the employer had made it plain that it was not going to furnish information
as to nonunit employees without a convincing explanation as to relevance; and that the contract,
which had been extended on multiple occasions, was to expire on August 27, 2014. In my 40
opinion, to assert at this late stage of the game that the Union needed more information in order
to bargain effectively is highly suspect. More likely, the Union was not really seeking
information that would be useful for bargaining but instead was demanding information in order
to delay the possibility of an impasse.
45
The contract expired on August 27 and was not extended. Nevertheless, the parties
continued to operate under the terms of the now expired contract until after the company made
its ultimate final offer and implemented the terms of that offer. It should be noted that at this
time, the company, in conjunction with its consulting firm, Towers Watson, had not yet finalized
the health plan that was to replace the one that existed under Time-Warner. 50
JD(NY)-30-16
21
On August 28, Sulds sent an email reiterating the company’s objections to the July 25
information requests insofar as they related to nonunit employees. The following day, Napoli
sent an email to Sulds asking him to set forth any legal authority for his position. On September
5, Sulds responded to Napoli’s response of August 29.
5
The parties met again for the 25th time on September 10, 2014. At this meeting, the
Union modified its wage demand to 4½ percent for each year with retroactivity. On minimums, it
reduced its demand by $25 across all categories. The Union stated that it could unlink the
subcontracting issues from its demand for an extension of jurisdiction to the dot.com
employees. The Union’s representatives also indicated that the Union wanted to have more 10
protection for its members. More specifically, the Union’s proposals were:
1. That no regular or full-time or part-time employees would be laid off if
an intern or temporary employees was working the same or equivalent
job or function in any brand. 15
2. That no Guild employee would be laid off if there were any available
positions at any brand, product or platform.
3. That no Guild employee would be laid off if any non-guild employee 20
was performing guild work.
4. That the company would not hire any intern, temporary employee or
subcontracted employee in any brand, product or platform in the same
or equivalent job or to perform the same or similar work. 25
5. That laid off employees would have recall rights for 52 weeks to any
available position at any brand, product or platform anywhere in the
company.
30
The employer asked if the Union had any additional proposals and the Union’s
representative said that they did not. The employer’s representative asked if the Union had any
flexibility on the volunteer process proposal and the union representative responded; “I don’t
think we have anything on eliminating the volunteer process and we are not in a mind to do
that.” As to the employer’s proposal to eliminate rehire rights, Napoli agreed that the parties 35
had a “conceptual gulf.” The parties also continued to disagree on the employer’s severance
pay/WARN proposal and a couple of other issues.
With respect to the Union’s protection proposals cited above, the company stated that it
was not interested in increasing restrictions on layoffs and would not agree to guarantee 40
employees who were laid off a right to similar or equivalent jobs elsewhere in the company.
Instead, it offered a process whereby laid off employees would be given the opportunity, in
conjunction with the company’s human resource department, to apply for jobs that suited their
skills as jobs became available. At the end of the meeting, the parties agreed to meet again on
September 17. 45
The 26th meeting took place on September 17, 2014. At the outset, the company asked
if the Union had any change in its subcontracting position and the Union replied that it did not.
After the parties caucused, the employer presented a document that it described as its Last,
Best and Final Offer. It is not my intention to describe the entire offer, but to the extent relevant,50
this provided the following:
JD(NY)-30-16
22
1. A card check with limitations.
(a) No organizing for 18 months after ratification.
(b) A list of names and addresses to be provided by the company
(c) An arbitrator to check the cards5
(d) That the card check occur 60 days after the start of organizing.
(e) That the company can campaign
2. Wage increase: 2½%, 2%, and 1%.
10
3. Ratification bonuses
4. The multi-platform/flexibility proposal
5. Elimination of the volunteer process15
6. Elimination of the rehire provision
7. Subcontracting as described in an exhibit attached to the offer. 8
20
8. WARN offset against severance pay
9. Severance capped at 52 weeks, etc.
10. The conversion of 4 project employees to regular employees.25
11. The increase of the threshold for benefit eligibility for part-timers from 17.5 hours to
20 hours per week
Upon receiving this document, the Union’s representatives stated that they believed that 30
there still were key issues that needed to be worked on and that the information requests were
still outstanding. They described the final offer as being premature. The Union asked the
employer to provide a document showing the changes that were proposed in relation to the
expired contract. (The parties refer to this as a red-lined document). The employer agreed to do
so and it did. The Union reminded the employer that it not seen anything on health care plans 35
and the company responded that “we don’t have anything.”
On the same day, Sulds sent an email to Napoli and the Union’s attorney, asserting that
because they had left the meeting, the employer considered that the parties were at an
impasse. 40

8
This stated that if the employer intended to subcontract work done by regular employees it would give
the Union 60 days’ notice; information related to the subcontracting and that it would agree to an
discussion to seek alternative. It proposed that any employee affected by subcontracting would receive a
50 percent increase in severance pay and that the employer will attempt to transfer affected employees to
other vacant jobs. However, the proposal was that the employer would guarantee only an interview.
Additionally, the offer was that if an employee was transferred and chose within 3 months to leave, then
he or she would get increased severance. Finally, the employer’s offer was that no more than 60 full-time
equivalent unit positions would be subcontracted within the term of the agreement. As to temporary
employees, the employer continued to insist on its proposal that it have the unlimited right to subcontract.
JD(NY)-30-16
23
The Union responded:
We do not agree that we’re at an impasse and there are outstanding
unresolved issues … We are prepared to bargain today but instead received
your “last, best, final” offer which, as you know, contained new terms for the 5
first time. Now you’re saying that unless we … immediately agree to your last,
best, final offer, which contains new terms not previously proposed, that you
will consider it a rejection and an impasse. We said repeatedly that we would
consider the company’s last best final offer which is why we requested a
document which sets forth the co-pay’s offer with specific language which he 10
negotiating committee can review….
On September 19, the Union sent the following message to the company. In somewhat
summarized form, this stated:
15
[Y]our repeated threat that unless the Guild…. approves the Publisher’s “last,
best, final offer” … you would consider it rejected and declare impasse, is an
obvious attempt to foreclose bargaining and manufacture an impasse when it
doesn’t exist … You acknowledged that the Publisher’s medical benefits
proposal was incomplete and that you were still waiting for information 20
regarding the proposal from your client. You have never responded to the
Guild’s 401(k) proposal and the approximate $400,000 in unpaid contribution.
Your claim that the $1250 ratification signing bonus addresses the 401(k)
monies and retro payments is not credible or an appropriate response. The
$1250 payment is described as a ratification bonus and not compensation for 25
retroactive wages or unpaid 401(k) contributions. The publisher’s … offer also
contains proposals covering permissive non-mandatory subjects …. The
Guild… has neither accepted nor rejected the last, best and final offer….You
have ignored the Guild’s outstanding information requests and pending unfair
labor practice charges. It should also be pointed out that the Publisher’s… offer 30
does not accurately reflect all of the tentative agreements between the parties,
contains a significant change in the Publisher’s position on subcontracting …
and puts at least one proposal (multiplatform) in a side letter that was never
discussed. It would have been much more constructive for you not to make
your new proposals particularly your new subcontracting proposal (which 35
significantly reduced the number of possible subcontracting layoffs from 100 to
60 FTE’s [full time employees] which is much closer to our 25% proposal in the
context of a “last best final offer” so that we would have the opportunity to
respond. Instead, you effectively put a gun to the Committee’s head and
threatened an impasse if it was not recommended. Since we have not reached 40
an impasse, are considering your last proposal and have not exhausted
negotiations, we strongly urge the Publisher to withdraw its “last best final offer”
and return to the bargaining table.
On September 19, Sulds responded and stated that there had been 25 bargaining 45
sessions over 18 months.
On September 22, there was an email chain between Napoli and Sulds. This was as
follows:
50
JD(NY)-30-16
24
From Sulds: The committee members will be released as requested. However,
your request for committee members to take time to “give the offer proper
consideration” emphasizes that such consideration has not yet been given
notwithstanding the presentation of the Last… offer on September 17… As
previously stated, it is now abundantly clear that the Guild has been engaged in 5
delay tactics which amount to surface bargaining…
From Napoli: [T]he committee is meeting to discuss the offer and ensure all of
the tentative agreements you incorporated into the document are accurate and
language we agreed upon ... I can tell you that I know of at least one tentative 10
agreement that contains errors which I discovered and the committee members
have indicated there are others in the document. The voluntary dues check off
letter is incorrect and Section 5 of that article is also incorrect…. The Guild has
not delayed during these negotiations. If there have been any delays, it has
been on the part of the publisher. The guild presented a very detailed medical 15
proposal, you asked for additional information on that proposal and the Guild
responded with answers to those requests, both after a caucus with some
answers, and the very next day provided you answers to the remainder of those
outstanding requests. In contrast, the Guild has asked for specific information
on the Publisher’s medical plans for 2015. To date you have not provided one 20
piece of information on the plans that will be offered to our members; instead
you keep telling us you have no information. You expect the Guild to settle a
contract and just trust the Publisher will provide for our people.
That has not worked out so well for them in the past as evidenced by the so25
called “mirrored” 401(k) plan which has turned out to be anything but. The Guild
has a right and obligation to our members to ensure the document provided,
accurately reflects the tentative agreements we have reached. This is not a
delay tactic, just prudent and doing my job….
30
On September 24, 2014, Sulds replied as follows:
At no time did the Publisher ever acknowledge that its medical proposal was
incomplete. Indeed, that proposal is to continue in effect language which has
been in the parties’ agreement for at least a decade. In a nutshell, it calls for the 35
Guild unit to receive the same medical insurance as other employees at Time.
What we told you is that the Publisher did not yet have definitive information
with respect to what that medical insurance, with all choices available, will look
like for 2015; importantly however, the last, best and final offer also promises
for 2015 that there will be at least one medical benefit option at the same level 40
of coverage and the employee contribution as the medical coverage provided in
2014.
Second, it is inaccurate to say the Publisher never responded to the Guild’s
401(k) demand … [I]n early August, it told the Guild that all Guild proposals 45
which were not then TA’d were rejected. Further, at frequent grievance sessions,
the Publisher has repeatedly rejected the Guild’s claim because there is no
contractual or legal basis for it. And asserting that there was no response to the
401(k) proposal ignores that the Guild’s insistence on it now is regressive
bargaining. As I previously wrote to Anthony …. on August 28, at that time, in 50
presenting a proposal on which the Publisher relied to make significant moves in
JD(NY)-30-16
25
its own bargaining position, the Guild made no mention of any 401(k) proposal.
Only later, when this was pointed out, did the Guild say that its failure to mention
the issue was “inadvertent.” That’s not inadvertence; it is bad faith bargaining.
Now to the surface bargaining in which the Guild has engaged by failing … to 5
respond to the last, best and final offer. That offer made changes to wages,
added a ratification bonus and modified the ceiling for subcontracting as well
as the severance. Those changes were … a logical outgrowth of the
Publisher’s prior position. Yet the Guild did not respond on September 17 and
simply abandoned the bargaining table. To date, for all your writings, the Guild 10
has … refused to respond….
You say there are errors in the redline and that all TA’s [tentative agreements] are
not accurately set forth … We specifically told you that if we have not captured the
TA’s accurately, we would include anything missing…. And significantly, the Guild 15
has had a statement of TA’s since early August and has never once said that what
was included there was inaccurate.
That said … if there are inaccuracies in the TA list, they will be corrected.
And if you think there are errors in the redline, you are free to call them to 20
our attention….
Now as to the Guild’s feigned surprise at receiving a last best and final offer.
Since early August, the publisher has been telling you that it is close to such
an offer. With each change of position over the 6 weeks preceding 25
September 17, the Publisher told the Guild that it is almost at that stage….
Are the parties at an impasse? You both say no, but point to no specifics.
Will the Guild agree to the Publisher’s subcontracting proposal? Will it agree
to the proposal to eliminate the volunteer process? Will it agree to the 30
proposals to eliminate rehire rights, or for WARN offsets to severance, or the
Publisher’s proposal to continue medical benefits language, or to new hire
schedule for vacations, or as to temporaries outsourcing, or any of the other
aspects of the last… offer? Those are yes/no questions which the Guild’s
regressive bargaining, persistent surface bargaining and delay cannot 35
eliminate. At no point in these negotiations has the Guild said, or indicated…
that its answer to any would be yes. At no point in these negotiations has the
Guild deviated from its diametrically opposite position, that it will not agree to
the Publisher’s proposals in these areas.
40
Rich’s letter says that the last, best and final offer contains permissive
subjects of bargaining. If what that means is that you refuse to bargain over
some matter, then please identify it specifically and state that you have
refused to bargain about it.
45
On September 26, 2014, the Union’s counsel sent a letter to Sulds which stated in
pertinent part:
We strongly disagree with the factual assertions and legal positions that you
have taken …. I have previously indicated that your inclusion of permissive 50
subjects in the “last, best and final offer” precludes an impasse. … We
JD(NY)-30-16
26
expressly reject and object to the publisher’s inclusion of permissive subjects
in what you have described as its “last best and final offer.” Specifically, we
reject and refuse to bargain over permissive proposals… including the
following:
5
Article III, Section 1. Deletion of last sentence regarding scope of Guild’s
representation.
Multiplatform personal assignment and utilization proposal in proposed side
letter No. 5. 10
Card check proposal in proposed side letter No. 6.
Article XVI addition of language in Section 9 refusing to negotiate and accept
any suggestions of Guild representatives regarding office space planning in 15
new location at 2 Brookfield Place….
WARN Act set off proposal in Article XXI, Section 2(e).
On September 26, 2014, Sulds sent Napoli an email with attached slides describing the20
company’s newly adopted health insurance plan. This stated:
Attached are slides describing the Time Group Health Insurance Plan. As you
will see, the new health and wellness plan is overall, an enhancement from
the 2014 plan – with more choice and more purchasing power to give the 25
employees the flexibility to purchase the plan that best meets their needs and
budget. Because the Publisher and the Guild have not concluded a new CBA,
the Publisher is bound under the Act, by the terms of the expired CBA.
Accordingly, this constitutes notice pursuant to the terms of Article XIV of the
now expired CBA. In all events … the Publisher is prepared to discuss the 30
changes and the reasons for them with the Guild before making any such
changes and before the scheduled open enrollment period applicable to the
bargaining unit.
In order to allow the Guild to review this information, this is to notify you of two 35
things. First, although the open enrollment period for Time employees not in
the bargaining unit is scheduled to commence on November 6, for those
represented… it will be scheduled to commence 60 days following today, on
November 23. The Publisher believes that under the terms of Article XIV, its
notice obligation is only 20 days because of the enhanced terms of the plan, 40
but will provide the 60 days’ notice, without prejudice so that even if the Guild
were incorrectly to take the position that the terms of Article XIV(2) (a) apply,
the provisions of that section would be satisfied. However, if the Guild desires
that Guild represented employees be included in the November 6 start for
open enrollment, Pease so notify the Publisher. 45
Second… in order for the Guild to have additional time to review these
materials for the purposes of collective bargaining, the Publisher hereby
amends its last, best and final offer such that the ratification bonus will be
available, if and when the Guild ratifies [it] no later than October 15.50
JD(NY)-30-16
27
On September 29, 2014, the parties held their 27th meeting. The employer increased its
wage offer to 2.5 percent upon ratification, 2.5 percent at the first anniversary and 1 percent at
the second anniversary. Also, the employer withdrew its proposal linking severance pay to
potential WARN payments. More importantly, the employer withdrew its multiplatform/flexibility
proposal. 5
What a surprise.
The multiplatform/flexibility proposal was one of the company’s core issues from the very
start of the negotiations. No explanation was offered and one can only speculate. In any event, 10
by withdrawing this proposal, the amended reason for the Union’s information request (item 7)
relating to nonunit employees was no longer operative. Additionally, since the information
would no longer be relevant (if ever relevant), it therefore can no longer be asserted that a
declaration of impasse would be invalid because of a failure to provide this information.
15
At the September 29 meeting, the Union made a counter proposal to the employer’s
offer to cap the number of regular jobs that could be subcontracted. The Union proposed that
full-time or part-time employees with 5 plus years of service could not be dismissed or suffer a
reduction in classification as result of decision to subcontract. It also proposed a cap on
subcontracting of 50 full-time jobs over the contract term with no more than 15 during the first 20
two years and no more than 20 in the final year. Additionally, the Union reduced its wage
demand to 3 percent per year. The Union rejected the employer’s proposal on rehire rights.
On October 9, 2014, the company filed an unfair labor practice charge against the Union
alleging that the Union was engaged in bad-faith bargaining. That charge was ultimately settled 25
with a nonadmission clause on August 15, 2015. The Union agreed that it would not “refuse to
bargain collectively with Time Inc. over subjects of bargaining that are inextricably intertwined
with mandatory subjects of bargaining.”
On October 10, the Union held a ratification vote and the company’s final offer was 30
rejected.
The 28th meeting was held on October 20, 2014. When this meeting opened, the
Union’s representative stated that it had no new counterproposals. At this point, the company’s
representative went through the Union’s September 29 proposals and stated why the company 35
would not accept them. On the major issues to date, the company rejected the Union’s idea that
if an employee lost his or her job as a result of subcontracting, that person would have a
guarantee of being placed in any open similar job anywhere in the company. The company
continued to insist on eliminating the volunteer process when layoffs were needed. Also, the
company continued its proposal giving it the absolute right to subcontract out temporary jobs. 40
At one point the company’s representative asked what it would take for the Union to
accept its final offer. The Union’s representative responded that it could do so if the company
agreed to the following conditions. The Union proposed a guarantee of transfer rights to
employees affected by subcontracting. It proposed an increase in the minimum pay rates. In 45
exchange for giving up rehire rights for new employees and the elimination of the volunteer
process, the Union proposed enhanced severance pay and the retention of rehire rights for
current employees. At this point, Sulds said that this was not acceptable and stated, “it’s pretty
clear we’re at impasse.” In response, the Union’s representative stated that the Union had
communicated a willingness to make movement and suggested that there was an “ideological 50
divide.” The Union proposed mediation and the company stated that it was not interested in
JD(NY)-30-16
28
mediation although it recognized that the Union had the right to involve the FMCS. Near the end
of the meeting, the employer stated that it had reached its final offer and the Union’s
representative stated “we’re waiting to see if there is something new. We have no specifics.”
In a series of additional self-serving messages, the attorneys for the Union and the 5
Company set forth their respective positions regarding the status of the negotiations. It would
not be surprising to me that each side was now seeking to lay its respective foundation for
future litigation.
On October 21, the company wrote to the Union. In somewhat abbreviated form, this 10
read as follows:
I write to confirm that the parties are at an impasse. Yesterday afternoon, the
Guild’s counsel stated that there was a logjam… The publisher must have the
ability to position itself for growth and success – not just for the 200 members 15
of the Guild, but for all Time Inc. employees worldwide. From the outset, the
publisher has been committed to …. bargaining as evidenced by more than 25
meetings over the course of 18 months and the numerous agreements to
extend the current collective bargaining agreement. Over the past several
months, the Publisher has repeatedly enhanced its wage offer and dropped 20
proposals of significant importance … While the Publisher has been stating
for months the need to move forward … the Guild has not shown any flexibility
to compromise on key issues, repeatedly rejecting the Publisher’s proposals.
Almost three weeks ago, the Publisher provided the Guild with a Revised 25
Last Best and Final Offer. The Guild submitted that to a ratification vote on
… October 10 and it was voted down….
As yesterday’s meeting opened, the Guild informed the Publisher that it did
not have “anything new” in the way of proposals and maintained that the 30
Publisher had not discussed the Guild’s proposal of September 29, 2014.
That statement is not accurate. After a caucus, the Publisher reiterated that it
had in fact discussed and provided the Guild with its position on the
September 29th proposal … but would respond to it again. The Publisher
then went through the Guild’s September 29th proposal, point by point, in 35
each case reminding the Guild of the specific reasons that the proposal was
not acceptable.
Subcontracting …The publisher explained to the Guild that the Guild’s
proposal was not acceptable because of the caps (overall and annual) which 40
are insufficient to meet the Publisher’s needs and the requirement in the
Guild proposal that employees who are impacted by subcontracted be
guaranteed a transfer to an open position (whether within Guild jurisdiction
or not), because the Publisher is not in a position to guarantee jobs. We
expressed … that we needed to reserve the right to consider the best 45
candidates for the role, (which may, but may not be a Guild member
impacted by subcontracting). We noted that the Publisher’s proposal
already contains items to mitigate the impact of subcontracting, including
guaranteed internal interviews … and the ability to transfer to a job within
Time Inc. under the described conditions. It is of further note that we have 50
discussed the Publisher’s position on these points numerous times
JD(NY)-30-16
29
throughout the negotiations because the substance of the September 29
proposal was outlined by the Guild months ago. Also related to
subcontracting is the Publisher’s proposal to subcontract temporary workers.
Here we reiterated that if a proposal did not provide for subcontracting of
temporaries so that the Publisher could obtain temporary employees from a 5
temporary agency rather than hiring them directly, it would not meet the
Publisher’s need.
Volunteer Process and Layoffs. The Guild’s proposal with its additional
notice periods and increased severance, do not work for the Publisher 10
because it does not solve the problem because it creates operational
obstacles as well as additional cost. The Publisher also rejected the Guild’s
proposal that would limit layoffs when there were open positions at Time to
which an impacted employee might theoretically transfer because this too
seeks a guaranteed transfer which the Publisher has rejected. 15
New Hire Vacation Schedule. The publisher pointed out that the new hire
vacation schedule the Guild proposed was different from and more
expensive than that in the revised Last, Best and Final offer and it was
therefore rejected.20
Minimum Pay. Finally, the publisher explained that an increase in minimums
was not supported by market conditions …. Thus, as it had on September
29th, the Publisher rejected the proposal.
25
The publisher asked the Guild whether there were any circumstances under
which the Guild could agree to the Last, Best and Final offer. After a caucus,
the Guild responded that it could do so provided that the following elements
in the Guild’s subcontracting proposal that had been rejected by the
Publisher and discussed immediately before the cause were part of the 30
package:
1 Guaranteed transfers.
2. Increase in the minimums. 35
3. Increased costs related to wages, retroactivity, financial considerations to
the unit for elimination of rehire rights and severance increases for
elimination of the volunteer process.
40
The Guild also told the publisher that under no circumstances would the
Guild agree to the Publisher’s multiple classification proposal or accede to
the actions taken by Time Warner with respect to retiree medical benefits
provided to the Publisher’s employees.
45
* * * *
As your counsel stated, there is a logjam. The parties are separated by
significant conceptual differences on guaranteed transfers, increases in
minimums and overall costs. Plainly stated, if there is no way that the Guild 50
can agree to the Publisher’s Last, Best and Final offer except by proposing
JD(NY)-30-16
30
that the Publisher undertake what it has already advised that it cannot do,
that really is a log jam which is why an impasse exists.
The Guild advised … that it had no new proposals to offer but suggested the
parties retain a … mediator…. The issue is not communication. The issue is 5
that the parties just do not agree.
The Guild has had the revised Last, Best and Final Offer for almost three
weeks in which time it has voted against ratification. The Guild could have
proposed mediation at any time. … The Guild did not consider using 10
mediation until the parties reached an impasse. That said, as we told you
yesterday, the Guild is free to do what it chooses in terms of contacting
FMCS….
On October 22, 2014, the Union responded as follows:15
Your repeated claim of impasse … does not make it so …. As previously
stated, there is no impasse since the Publisher has failed to bargain [on]
numerous subjects … including the Guilds’ pension proposal, has failed to
respond to information requests, has failed to respond to numerous Guild 20
proposal other than to say they don’t meet the Publisher’s interest and has
prematurely made a “last best final” offer which included proposals for the
first time which the Publisher had incorrectly labeled as tentative
agreements. You claim that the Publisher has been bargaining for 15 months
when in reality the Publisher only recently made a number of proposals 25
including a wage offer ( i.e. end of July).
During this past Monday’s bargaining session, we took you up on your offer
to describe “circumstances under which the Guild could accept the last, best
and final offer. The Guild went through the … offer and outlined 30
“circumstances including economic terms and job protections.” In response,
you stated that the Publisher was not interested in anything we had to say
and was sticking to its last, best and final offer unchanged. You also failed
to respond to any of the Guild’s outstanding proposals and counter-
proposals, which are still on the table. The parties had a discussion about 35
subcontracting and your misleading characterization of the Guild’s
subcontracting counter proposal as seeking a “guarantee” of work. We tried
to dissuade you of this misleading characterization but you would not move
off of it. I proposed mediation … I suggested that a meditator could assist us
in breaking the “logjam”… and believe I gave the subcontracting proposal as 40
an example where a mediator could make some procedural suggestions for
us to move past what appears to be the Publisher’s incorrect view that the
Guild is seeking job guarantees…. Again, you rejected my mediation offer
out of hand and indicted that an FMCS mediator had already been appointed
to our negotiations. I find it amusing that you’ve repeatedly attempted to 45
seize on my reference to “logjam” on Monday as some kind of admission of
an impasse. There is no impasse when the Publisher has refused to bargain
in good faith and has failed to even discuss many of the Guild’s proposals
and counter proposals other than to say it is not interested….
50
JD(NY)-30-16
31
On October 23. 2014, there was an email from Sulds to Napoli with attachments. This
stated in substance that the attachments were further information with respect to the health
plans. It stated; “I will shortly forward similar materials for 2 additional plan providers. Please
note that in addition to the materials on the plans in this package, you will find a chart
summarizing 2015 monthly contributions for guild members per salary band and location, on a 5
plan by plan basis. Let me know if there any questions.”
Also on October 23, the company sent to the Union materials related to the various
health plan options that would be made available to employees. This was sent before they were
announced to the employee. It is noted that at this time, the company had about 5000 10
employees, of which about 300 were represented by the Union. The documents described the
insurance carriers for each plan, the options available (Gold, Silver, Bronze, and Safety net),
plus copays, deductibles, premiums etc. At this time, plan summaries were not yet available.
On October 24, the parties exchanged emails and telephone calls regarding the health 15
plans.
The 29th meeting was held on October 28, 2014. Also attending this meeting was a
federal mediator. The Union asked the company what the company’s costs were in providing
the health plans and as far as I can see, the company rejected this. There does not appear to 20
have been any movement by either side at this meeting, and the Union made no proposals of its
own.
With respect to various information requests relating to health plans, I note that the
complaint does not allege that the company violated the Act by failing to provide such 25
information. Also, I don’t see why information relating to the company’s cost in providing health
care benefits is at all relevant. The company had already offered a contract proposal whereby it
agreed to include in any health program adopted, that the union represented employees would
be given an option that would provide the same benefits at the same cost to employees as they
had under the former Time-Warner plan. As far as the employees were concerned, what was 30
relevant was the benefits they would be offered and what their costs would be.
For better or worse, the fact is that Time Inc. was required to come up with a new health
program after it was spun off from Time-Warner. This took time. The new plan that was devised
with the assistance of an outside consulting firm, was designed to cover all of the company’s 35
5000 plus employees, including the 300 bargaining unit employees. It was perhaps unfortunate
that the health benefit program was being designed at the same time that bargaining was taking
place. And this, no doubt, placed the Union in the position that it could not know the makeup of
the program until it was finalized. Nevertheless, the parties did manage to bargain about this
subject, with the Union proposing another union’s health plan to cover the bargaining unit and 40
the company proposing that whatever plans were adopted, they would include an option by
which unit employees could choose one with the same benefits at the same cost as they had
under the previous Time-Warner plan. 9
On October 29, Sulds sent an email to Napoli that essentially accused the Union of 45
engaging in unlawful surface bargaining. He also stated that inasmuch as the Union had no new
proposals, “it is plain that the impasse continues.”

9
Had the Union accepted the company’s contract offer, it could have filed a grievance and sought
arbitration if the option offered to the bargaining unit employees did not, in fact, offer the same medical
benefits and/or the same employee costs as they had under the Time Warner plan.
JD(NY)-30-16
32
The Union immediately responded by an email that stated inter alia;
Time Inc. delayed sending information on the medical plan for several weeks if
not months, claiming the documents were not ready…. The Guild did have
some initial questions on Friday, which were answered but there is no way we 5
could analyze 16 different plans in less than 24 hours. Even now we are still
analyzing the information and may have additional questions with regard to
the plans …. Once you provide the answers to our questions from yesterday
we may have additional questions based on those responses...
10
Item number 14 of your last, best and final offer, dated September 29, 2014,
stated; “With respect to medical coverage, continue current contractual
provisions. Publisher will provide for 2015, at least one medical benefit option
at the same level of coverage and the same cost as the medical coverage that
is offered by Time Inc.” The Guild informed you yesterday that none of the 15
plans being offered for 2015 are of the same level of coverage and the same
cost. All plans being offered for 2015 have increased deductibles and
increased out of pocket expenses…. The Guild hereby requests all
documentation you are relying on as proof the Gold and Silver Plans are of
the same coverage and cost to our members as the current 2014 medical 20
plan. Pease provide that documentation along with the answers to our other
questions before our next scheduled session on Monday November 3, 2014.
The 30th meeting was held with the mediator on November 3, 2014. This was now a
little more than 2 months short of 2 years since bargaining commenced. The Union made a 25
proposal relating to subcontracting of regular as opposed to temporary employees. Basically,
the Union proposed a cap of 50 on the total number of full-time jobs that could be subcontracted
during the term of the agreement, if the employer would agree to retain the volunteer process
for layoff and also retain rehire rights. This was rejected by the company’s representative who
stated that it was still insisting on eliminating both the volunteer program and rehire rights. 30
There was some more talk about medical benefits and the Union sought to obtain
information as to how much the plans would cost the employer. The company demurred, stating
that its cost had been developed by a consultant and that the total cost numbers were
proprietary. The Union claimed that the benefits being offered to the unit employees were not 35
equal to those offered by the Time Warner program.
Sulds stated; “We are at the bottom line position. We are here to answer any questions
about the offer [and] to listen to any new offers you make . . . But this proposal does not move
us forward and we are still at an impasse . . . so I will ask if you have anything more you have 40
to offer.”
The Union’s representative stated: “To say last, best, and final and not let us negotiate it
is classic bad faith bargaining. You can’t keep saying last best and final. It is premature. We
have not bargained on many subjects here. You keep saying it. We tried to talk with you on 45
medical or the proposal on subcontracting and you reject it. We are trying to come up with
different avenues to make this work and you repeatedly reject it out of hand without negotiating,
saying last best and final.” That is not negotiation.
There then ensued the following dialogue:50
JD(NY)-30-16
33
Company: We did not come back with anything because we made a last best
and final. If there was some proposal you could put forward that you thought
would change our mind we would look at it …. You have proposals you have
made. We have considered them…. What I am asking is, is there anything new
you want to us to consider or do we understand the proposals you have on the 5
table continue to be the same.
Union: We are not negotiating against ourselves.
Company: I need an answer. 10
Union: I answered. We are not negotiating against ourselves.
Company: Do you have any new proposals for us?
15
Union: We gave you subcontracting.
Company: Do you have anything else?
Union: Everything is on the table.20
Company: Anything new to propose?
Union: You have your answer.
25
Company: I don’t think I do. If there is, you can tell us. If there is not, you can tell us.
Union: We are waiting until we have all the information requested so we can respond.
Right now you don’t have all that information. So until we get all the information… we
want a full response to our informational request. 30
Company: We are intending to, consistent with the agreement and the notice we
gave 10 you to open enrolment on November 27.
On November 12, 2014, the company sent an email with attachments to the Union that 35
contained information relating to the health care plans for 2015. These are contained in
Respondent exhibits 93 through 96.
On November 20, 2014 the company sent a letter to the Union stating that it intended to
implement its last offer effective on that date. This last offer is set forth in General Counsel 40
Exhibit 80 and a summary of some of its terms is as follows:
1. Implementation of the health program that had been developed in
conjunction with the consulting firm, Tower-Watson. This contained a provision
that the bargaining unit employees would have an option to select a plan that 45
would provide the same benefits, at the same cost to them that they had under

10
The letter sent to the Union contained exhibits which detailed the employer’s proposed contract
proposals relating to temporary employees, subcontracting, and the retiree benefit change of which the
Union had been notified back in September 2013.
JD(NY)-30-16
34
the Time Warner plan. The unit employees were required to enroll in the new
plan by November 27, 2014. 11
2. Agreement to a list of tentative agreements that had been made during negotiations.
5
3. A wage increases of 2 ½ %, retroactive to October 1, 2014.
4. Elimination of the volunteer process for layoffs.
5. Elimination of the rehire provision.10
6. Subcontracting:
(a) The employer has the right to subcontract regular jobs with a cap of 60,
coupled with a severance pay proposal.
(b) The employer has the right to subcontract, without limitation, temporary jobs. 15
7. Changes to retiree health benefits as had been implemented by Time Warner in 2013.
8. New vacation entitlements for old and new employees.
20
9. A proposal for multi-classification pay.
10. A change in the number of hours needed by part-time employees for
entitlement to medical and tuition benefits.
25
As in the prior last offer, this did not contain any proposal relating to the
multiplatform/flexibility issue. I also note that some of the items listed above, although not
referred to in my previous recitation of the facts, nevertheless had been discussed during the
negotiation process. But these were not, in my opinion, as significant as those issues relating to
the two categories of subcontracting and the employer’s desire to eliminate rehire rights and the 30
volunteer process. As to wages, once the parties started to talk about this subject, they altered
their respective positions in a manner characteristic of normal bargaining. I can’t say whether or
not there might have been more movement on wages by either side had the parties come to an
agreement on what I consider to be the core issues that remained intractable.
35
3. Events Occurring after the Declaration of Impasse
After the announcement on November 20, 2014, that the company was implementing its
last offer, a number of employees were laid off by way of reductions in force. In doing so, the
company did not first ask for volunteers; instead selecting those bargaining unit employees it 40
wanted to be rid of. On December 5, 2014, the company laid off Margery Frohlinger and Patrick
Yang. On various dates in 2015, Erica Campbell, Duane Pyuos, Thomas Lake, and Brian
Cazenueve, were also let go without there first being an effort by the company to solicit
volunteers.
45

11
Obviously, the company could not be expected to hold off implementing the new health care program
for the 5000 plus nonunit employees who no longer would have medical coverage after Time Inc. split off
from Time Warner. As in the past, the unit employees were, by the terms of the contracts, included in the
plans that were offered to the nonunit employees.
JD(NY)-30-16
35
Also, in conjunction with these force reductions, the company informed the Union that it
would accept voluntary resignations and there was at least one instance where a bargaining unit
employee volunteered to be laid off in exchange for additional severance pay. Allan Sloan
expressed an interest in resigning in exchange for a severance package. And the company,
after drafting a severance agreement for him, forwarded it to the Union. In a conversation with 5
Roxanne Flores from human resources, Napoli asked if by accepting Sloan’s voluntary
resignation, the company could retain either Frohlinger or Yang. The response was negative
and the company asserted that the volunteer process had been eliminated. When the
agreement between Sloan and the company was executed and sent to Napoli, he refused to
sign it stating that this was not in accordance with the expired contract’s volunteer process. 10
In January 2015, the company notified the Union that there would be some positions at
Sport Illustrated that would be eliminated by subcontracting. The Union was also notified at
various times that a number of unit employees had volunteered to resign in exchange for
severance packages. With respect to Rebecca Shore, the Union was notified that she had 15
volunteered to resign. Napoli then told the company’s representatives that the Union would not
agree to the company accepting her as a volunteer because the company had eliminated the
volunteer process. Subsequently, the company representative had discussions with Shore
regarding the terms of an offered severance package and this was ultimately agreed to by her
without the involvement of the Union in this process. Similarly, in the cases of George 20
Dohrmann, Valerie Georgoulakos, and Jennifer Broughel, all of whom volunteered to resign, the
company discussed with them and ultimately offered them severance packages without the
involvement of the Union.
On January 21, 2015, the company notified the Union that it had decided to subcontract 25
out all photographer positions at Sports Illustrated. This affected the jobs of Robert Beck, Simon
Bruty, William Frakes, David Klutho, John McDonough, and Albert Tielemans. Napoli asked the
company to provide documents relating to the company’s decision to subcontract the work of
the staff photographers. The company rejected this request and notified the Union that from
hence forth, the photography work would be handled by freelancers. It is noted that the 30
complaint does not allege that the refusal to furnish this information was a violation of the Act.
The allegation is that the company violated the Act by unilaterally implemented its final offer
provisions relating to subcontracting in the absence of a valid impasse.
In April 2015, the Union was notified of two other subcontracting decisions that affected 35
two unit employees, Anna Druzcz and Michael Korte. Thereafter in May, 2015, the Union was
notified that there would be additional subcontracting in the premedia department. This affected
Neil Clayton, Charlotte Coco, Brian Luckey, Po Fung Ng, Peter Nora, Barry Pribula, Hai Tan,
and Vuane Trachtman. As in the prior instances of subcontracting regular unit employees, the
company did not first seek volunteers as it would have done under the expired collective-40
bargaining agreement.
On October 20, 2015, the company sent a memorandum to all of its employees notifying
them of changes to the health plans for 2016. Among other things, one change was that starting
in 2016, employees who enrolled their spouses or domestic partners, were required to pay a 45
surcharge if the spouse or partner was able to obtain health insurance through his or her own
employer.
The Union responded on the same day. Its email stated:
50
JD(NY)-30-16
36
The Guild objected to changes to the imposed medical plan … [S]pecifically
we object to the introduction of a monthly surcharge to our members if a
spouse or domestic partner fails to enroll in the plan of another employer
should he/she be eligible. The Guild is not interested in following “common
marketplace trends” that will increase the members’ out of pocket expenses 5
or seek to encourage our members to remove a spouse or domestic partner
from the current coverage.
As you know the Guild did not agree to this plan as a result of a negotiated
collective bargaining agreement. It was implemented after the company 10
declared impasse illegally. It is the Guild’s belief that Time doesn’t have the
right to make any unilateral changes to the implemented working conditions,
including but not limited to changes to the medical plan which became
effective on January 1, 2015. Please provide me with written confirmation
that the changes described in the email bellow will not be applicable to 15
employees working in Guild jurisdiction…
On October 29, 2015, the company responded as follows:
Since the collective-bargaining agreement expired, the parties are bound to 20
continue to operate according to its terms. Article XIV requires the company to
provide 60 days’ notice prior to open enrollment of any terms with the result
would be a decrease in a benefit plan…. We provided such notice and are
available to discuss with you the reasons for any of the changes we are
making to the plans. Similarly, the 2015 plan changes were rolled out after the 25
required notice under the expired agreement. Accordingly, the changes that
have been communicated to you will be rolled out following the status quo
procedures. Please let me know if you would like to schedule discussions.
III. Analysis30
1. The Subcontracting Issue
The last contract between the employer and the Union did not contain any provisions
covering the subject of subcontracting. Nevertheless, sometime in 2013, the company began to 35
utilize an outsourcing company called YOH to furnish temporary employees. I believe that YOH
mainly provided temps for magazines and internet based publications that were not covered by
the collective-bargaining agreement. The record is not clear to me as to what extent, if any,
YOH provided temporary employees to magazines that were under the purview of the collective-
bargaining agreement. 40
From the very beginning of negotiations, the company proposed two different contract
provisions relating to subcontracting. The first dealt with the right to subcontract out work done
by the company’s full-time and regular part-time employees. This generated a great deal of
discussion over almost 2 years. The parties proposed and counter-proposed a variety of ways 45
for the company to subcontract, while at the same time, protecting to an extent, the jobs of the
regular employee. In the end, the parties could not agree on this issue, and the company
implemented its last offer, which, among other things, gave it the right to subcontract up to 60
regular unit jobs during the term of the agreement.
50
JD(NY)-30-16
37
The other subcontracting proposal was one in which the company would retain the
absolute right to subcontract, without any limitation, the work that was normally assigned to
temporary employees. At the time of the negotiations, there were approximately 100 temporary
people working at magazines that were under the jurisdiction of the collective-bargaining
agreement. There were also about another 200 employees who worked as full-time or regular 5
part-time employees. In effect, the company was demanding that the Union waive its right to
bargaining over any subcontracting decisions that affected temporary employees. Unlike the
subcontracting proposals that related to full-time and regular part-time employees, there was not
much discussion over this proposal. From the beginning, the employer insisted on a provision
that would give it the right to subcontract temporary jobs and that position remained unchanged 10
throughout the negotiations. The Union did not have much to say on this proposal except to
finally assert, toward the end of the negotiations, that this was a nonmandatory subject of
bargaining. The Union did not, as far as I can see, make any proposals to limit this type of
contracting to companies that would pay its employees similar or equivalent amounts to what
the temporary employees made when employed by the Respondent. 15
The General Counsel and the Charging Party assert that the Respondent violated
Section 8(a)(5) by insisting, during negotiations, on a provision that would give it the right to
subcontract work that was normally assigned to temporary employees. The argument is that
this was a nonmandatory subject of bargaining because it could theoretically eliminate, via 20
subcontracting, one category of employees that constituted about a third of the bargaining unit.
The other categories are the full-time and regular part-time employees who would not be
affected by this proposal. If I understand their position correctly, the logical extension of this
position would be that the subject of subcontracting could no longer be considered a mandatory
subject of bargaining, at least when an employer makes a proposal that would permit it to 25
engage in subcontracting. I wonder if the General Counsel would take an equivalent position to
the effect that when an employer, having a contract with a union, makes a decision to
subcontract out bargaining unit work, it does not have an obligation to bargain. Would the legal
obligation to bargain depend upon the number of employees affected?
30
In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964), the Supreme Court
held that a decision to subcontract out work previously performed by bargaining unit employees,
constituted a mandatory subject of bargaining. In that case, the employer had subcontracted
out maintenance work for legitimate and nondiscriminatory reasons. Thus, the employer’s
rationale for the subcontracting decision was not relevant to the issue of whether it had an 35
obligation to bargain about the decision.
After the Fibreboard decision, the issue of subcontracting was obliquely revisited by the
Supreme Court in First National Maintenance Corp. v. NLRB 452 U.S. 666 (1981). There the
issue involved the employer’s partial closing of its business. The Court held that certain types of 40
managerial decisions could be made without bargaining, if the decision involved a change in the
scope and direction of the enterprise, even if it had a direct effect on employment. The Court
attempted to define a test which balanced an “employer’s need for unencumbered decision
making with the benefit of collective bargaining for labor management relations.” At footnote 22,
the Court noted, “we of course intimate no view as to other types of management decisions 45
such as plant relocations, sales, other kinds of subcontracting, automation etc., which are to be
considered on the particular facts.”
In Torrington Industries, 307 NLRB 809 (1992), the employer subcontracted work that
resulted in the layoff of bargaining unit employees who were replaced by independent 50
contractors. The Board concluded that subcontracting decisions similar to those in Fibreboard
JD(NY)-30-16
38
were mandatory subjects of bargaining and did not require the burden shifting test utilized in
Dubuque Packing Co., 303 NLRB 386 (1991), even if the decision was not motivated by labor
costs. That is, the Board concluded that based on the Supreme Court’s decision in First
National Maintenance, supra, the Court had already struck the balance in favor of finding that
decisions to subcontract required bargaining. Nevertheless, the Board did qualify its decision 5
and stated;
We agree that there may be cases in which the non-labor cost reason for
subcontracting may provide a basis for concluding that the decision to
subcontract is not a mandatory subject of bargaining. We do not reach that 10
issue here, however, because the Respondent’s reasons had nothing to do
with a change in the “scope and direction” of its business. Those reasons
thus were not matters of core entrepreneurial concern and outside the scope
of bargaining.
15
In WCCO-TV, 362 NLRB No. 101 (2015), the Board was asked to decide if an
employer’s proposal was a permissive or mandatory subject of bargaining. The Board stated:
It is well established that the assignment of work is a mandatory subject of
bargaining. Accordingly, a party may insist to impasse upon the inclusion in a 20
collective-bargaining agreement of a proposal dealing with assignment of
work. That is so even if the work is currently assigned to employees outside
the unit because such an assignment affects the bargaining-unit employees’
terms and conditions of employment by reducing the amount of unit work.
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215 (1964) (finding 25
that subcontracting is a mandatory subject of bargaining)…. It is equally well
established that “[u]nit scope is not a mandatory bargaining subject.”
Bozzuto’s, Inc., 277 NLRB 977, 977 (1985). Thus, a party to a collective-
bargaining agreement may propose to bargain over the scope of the unit, but
may not insist to impasse on that subject. Taft Broadcasting Co., 274 NLRB 30
260, 261 (1985).
In Antelope Valley, supra, the Board recognized that in a situation where the
unit is defined in terms of the work performed, a contract proposal concerning
work assignment might well have ramifications for the scope of the unit, and 35
vice versa, and that determining whether such a proposal is mandatory or
permissive can present difficulties. 311 NLRB at 461. Therefore, the Board
adopted a two-part test to deal with this situation. The Board first looks at
whether the employer has insisted on a change in unit description. If so, then
the proposal is a permissive subject. If the employer’s proposal does not 40
purport to change the description of the unit, the Board considers whether the
proposal nevertheless deprives the union of the right to contend that the
persons performing the work after the transfer are to be included in the
bargaining unit. If so, then the proposal is a permissive subject. A proposal
that does neither of the above, and instead grants the employer the right to 45
transfer work out of the unit, is a mandatory subject of bargaining and the
employer’s insistence on it to impasse is lawful.
The General Counsel and the Charging Party rely on the Board’s decision in McClatchy
Newspapers, 321 NLRB 1386 (1996), and Colorado UTE, 295 NLRB 607 (1989). But neither of 50
those cases involved subcontracting proposals. The facts in both of those cases involved
JD(NY)-30-16
39
situations, unlike here, where the employer proposed contracts in which it retained total control
over their wage systems. In that sense, those contract proposals were tantamount to offers of
illusory contracts, at least insofar as wages were concerned.
It seems to me that the employer in the present case was seeking discretion to 5
subcontract work done by temporary employees. It did not offer a proposal that would, by its
terms, change the scope of the bargaining unit. Although it may be said that if an employer
exercised a contractual right to subcontract temporary work during the contract’s term, this
could ultimately affect the composition of the bargaining unit. But this is not, in my opinion,
tantamount to a demand that the scope of the bargaining unit be changed. Given that Court and 10
Board decisions have consistently defined subcontracting as a mandatory subject of bargaining,
I have difficulty seeing why it should be different here.
It is also asserted that even if the company’s subcontracting proposals are held to be
mandatory subjects of bargaining, the employer should nevertheless be precluded from 15
implementing those proposals even in the event that there is a valid impasse. The General
Counsel contends that this would apply not only to the employer’s subcontracting proposal
relating to temporary employees but also to its proposals regarding full-time and regular part-
time employees.
20
The expired contract did not contain any provisions relating to subcontracting. Therefore,
any decisions to subcontract unit work would have required the company to give the Union
advance notice of such a decision and an opportunity to bargain about that decision. For better
or worse, the company chose to avoid that process by demanding that it have the right, with
limitations, to subcontract out the work of its regular employees. It also demanded the unlimited 25
right to subcontract out work done by temporary employees.
Both of the employer’s subcontracting proposals were on the table from the start of
negotiations. And at least with respect to the proposal dealing with regular employees, the issue
was the subject of much debate and multiple concessions by each side. In the end, the 30
employer’s final offer was for a provision that would allow it to subcontract work of full-time and
regular part-time employees with a cap on the number of jobs that could be subcontracted;
provisions for enhanced severance pay; and provisions requiring notice to the Union. As to the
employer’s insistence on the right to subcontract out the work of temporary employees, the
record indicates that there was not as much discussion on this issue. Nevertheless, this 35
proposal was on the table for almost 2 years. The Union clearly had an ample opportunity to
bargain over this proposal.
I have concluded that the subject of subcontracting is a mandatory subject of bargaining.
This means, a fortiori, that either party is entitled to insist on its position to the point of impasse 40
or as a condition of reaching an agreement. If one were to conclude that contract proposals
dealing with subcontracting could not be implemented upon an impasse, then what would be the
point of having any discussions at all? The paradox would be that even though a company
would be entitled to insist to impasse on a subcontracting proposal as a mandatory subject of
bargaining, it could not implement that proposal in the event that there was an impasse. In my 45
opinion, that is a result, which contradicts itself. The whole point of trying to obtain an
agreement that deals with subcontracting is so that the company need not engage in prolonged
bargaining (with multiple information requests), every time, during the term of the collective-
bargaining agreement, it decides that it wants to subcontract out work done by unit employees.
50
JD(NY)-30-16
40
I note that it is not within the Board’s purview to decide whether a proposal made by
either a company or a union is fair or unfair. There are to be sure, a small number of contract
provisions that even if agreed to by both parties, are illegal. These would include hot cargo
agreements, closed shop agreements, or clauses containing impermissible union-security
clauses. And as to those types of contract proposals, a party that does not agree can insist that 5
the other party drop its proposal. There are also a group of proposals that have been defined
as permissive subjects of bargaining and as to these, the proponent may not insist on its
proposal to the point of impasse or as a condition of reaching an agreement. Borg-Warner Corp.
v. NLRB, 356 342 (1958). But except for these limited exceptions, it simply is not within the
Board’s jurisdiction to determine the merits or fairness of contract proposals made by either 10
party to a negotiation. The Board is not empowered to engage in the equivalent of interest
arbitration.
2. The Information Requests
15
The complaint’s allegations are only that the company failed to provide certain of the
information that was requested in the Union’s letter dated July 25, 2014. The record in this case
shows that there were other multiple requests for a variety of information, some of which was
given and some not. But except for the information requested on July 25, the others are not
alleged as violations of the Act. 20
To review, the Union’s July 25 letter read, in pertinent part, as follows:
In connection with the current contract negotiations please provide copies of the
following information:25
* * * *
4. All contract(s) between Time Inc. and YOH
30
5. A list of all individuals performing work for Time Inc. under the YOH
contract, including names of individuals, salaries, number of hours worked,
work assignments, and names of the manager assigning work to each
individual covered under YOH contract.
35
6. A list of all individuals working for YOH who were previously employed by
Time prior to working for YOH.
7. Payroll and other documents reflecting salaries and/or wages paid to all
non-bargaining unit employees as of December 31, 2011 to the present… 40
including increases and the dates of any increase was effective during those
years, up to an including the present date.
This information request covers two different issues and both ask for information about
nonunit employees. And in that respect, the Board has held that information requests relating to 45
nonunit employees are not presumptively relevant; that the requesting party has the burden of
establishing that the information sought is relevant to a legitimate issue of bargaining.
Disneyland Park, 350 NLRB 1256, 1258, fn. 5 (2007); Hertz Corp., 319 NLRB 597, 599 (1995).
Items 4 to 6 relate to the company’s demand to have the unlimited right to subcontract 50
out work done by temporary employees. (At the time, the respondent was using a company
JD(NY)-30-16
41
called YOH to provide temporary workers). The information requested on this issue, to an
extent, asked for information, not only about nonunit employees, but also about people who are
not employed by the Respondent.
Item 7 of the information request deals with wages since the company’s July 24th wage 5
proposal was that during the 3rd year of the contract, the unit employees would be paid the
same percentage wage increase given to nonunit employees.
With respect to the request concerning YOH and the use of temporary employees, the
following information was provided. The contract between Time Inc. and YOH; a list of the 10
people who worked for YOH who had previously been employed by Time Inc.; the division to
which those employees were assigned; payroll information; and a summary of benefits that
YOH provided to its employees. The Respondent did not furnish information relating to YOH
referred employees if they were not assigned to magazines or platforms not covered by the
collective-bargaining agreement. 15
In support of the request for information, Napoli asserted that the reason the Union
needed this information was because it had learned that some temporary employees who had
worked on magazines covered by the contract had been hired by YOH and had been assigned
to Time Inc. Napoli’s position was that since the company was proposing that it should have the 20
right to subcontract all temporary work, this information was necessary for the Union to develop
meaningful counterproposals. After being furnished with the information described above, the
Union repeated its request for the remaining information insofar as it would relate to utilization of
YOH to provide temporary employees to magazines covered by the collective-bargaining
agreement. 25
To say that information is relevant because it could be useful for making meaningful
counters to the company’s subcontracting proposal doesn’t say anything at all. In what way
would this type of information be meaningful? The issue on the table was a proposal that would
give the company an unlimited right to subcontract work done by temporary employees. I don’t 30
understand how knowing how much a contracting company pays its employees will be used by
the Union in its negotiations with employees of Time Inc. There was no assertion by the
company that it would be cheaper to utilize an outside contractor to do this work or that it
otherwise would save money on labor costs. There also was no contention or evidence to
suggest that Time Inc. and YOH constituted a single or joint employer. Indeed, there was not 35
much talk about this company proposal be either side.
Presumably the Union could have, without any information at all, made a proposal that
Time Inc. require any contractor pay temporary employees used by Time Inc. similar wages and
benefits as are paid to Time Inc.’s own employees doing similar work, so long as such a 40
provision did not require the contractor to adopt the collective-bargaining agreement or adopt
the identical terms and conditions of that agreement. That is, the Union could have proposed
and the company could have agreed to (or rejected) a proposal that would mitigate against the
comparative labor costs of subcontracting so long as it did not go so far as to be a violation of
the hot cargo provisions of Section 8(e) of the Act.1245
But this was not proposed and there was a singular lack of discussion of any potential
alternatives to the company’s subcontracting proposal relating to temporary employees.

12
See Laborers Local 25 (RWKS Comstock), 344 NLRB 751 (2005), for a discussion of the difference, in
the context of Sec. 8(e), between union signatory clauses and preservation of unit work clauses.
JD(NY)-30-16
42
In my opinion, the General Counsel’s reliance on Comar Inc., 349 NLRB 342 (2007), is
inapposite. In that case, the employer proposed to transfer a group of bargaining unit
employees to another of its own facilities where the employees were not covered by the labor
agreement. The Union requested information during bargaining over the effects of the transfer
for the wages, job and other information relating to the employees who might be transferred 5
from the unionized plant and also as to the employees not covered by the contract. This
information was requested and deemed relevant because it could be used by the Union to
advise its represented employees as to the wages and benefits at the nonunion plant and give
employees information that could be used to decide whether or not to accept a transfer. This is
plainly not the case here. In our case, the company’s proposal is not about transferring unit 10
employees to another position within the company. Rather, it is a proposal that permits it to
subcontract the work of Guild represented employees to an outside company, which may or
may not hire some or all of the employees who had previously worked for Time Inc. at a
magazine covered by the collective-bargaining agreement.
15
As noted above, the Union’s July 25 letter requested, at item 7, wage and other
information about nonunit employees. The initial request was made immediately after the
company made a wage proposal that offered a 3rd year wage increase that would be contingent
on any wage increase given to nonunit employees. Thus, this proposal linked unit and nonunit
employee wage increases 2 years hence. As such, I don’t see how the past history of wages 20
and benefits for nonunit employees would be relevant to this issue. Nevertheless, even
assuming that there might be some argument for relevance, the company immediately withdrew
that proposal and substituted a fixed wage increase proposal that was not linked to nonunit
employees.
25
When the company changed its wage proposal, the Union changed its reason for
wanting this information. Now it claimed that the information was relevant in relation to the
company’s multiplatform/flexibility proposal. In this regard, the company from the start of the
negotiations, wanted a contract that allowed it to assign bargaining unit employees who worked
at magazines covered by the contract, to other magazines that were nonunion or to internet 30
entities such as Sportsillustrated.com that were also not covered by the collective-bargaining
agreement. The Union’s rationale for wanting wage and other information for the nonunit
employees was asserted as being based on the fact that if it agreed to the company’s
multiplatform proposal, then unit employees would be working side by side with nonunit
employees doing the same or substantially similar work. 35
Since the Union does not represent the nonunit employees and is not authorized to
bargain on their behalf, it is difficult for me to understand how information regarding those
employees would be relevant to bargaining on behalf of the unit employees. So what if they are
working side by side? The Union was bargaining for the employees in the unit; it was not 40
authorized to bargain for employees outside of the unit. At all times, the company agreed that if
a multiplatform clause was put into place, those unit employees who might involuntarily be
assigned to work at nonunion magazines and/or platforms would continue to be paid the same
and continue to be covered by the terms of any contract negotiated by the Union. That is, any
unit employee who received a compulsory assignment to an entity outside of the Guild’s 45
jurisdiction would continue to be covered by the collective-bargaining agreement.
I also doubt that this asserted reason was genuine. For one thing the parties had been
bargaining over this issue for over a year and no one from the Union ever thought to ask for this
information before. Indeed, when later pressed to explain why the Union was seeking this 50
information about nonunit employees, the Union’s representative stated, in substance, that it
JD(NY)-30-16
43
was being sought to determine what chance the Guild would have in being able to solicit nonunit
employees to sign cards authorizing the Union to represent them. That is, the real reason was
not for the purpose of bargaining; rather it was for the purpose of organizing.
In any event, when push came to shove, the company ultimately withdrew its 5
multiplatform/flexibility proposals. Therefore, whatever rationale that may have existed for
demanding this information in the first place, no longer existed. And it therefore cannot be said
that the company’s refusal to furnish any of this information could possibly have stood in the
way of there being a valid impasse.
10
3. The Impasse issue
I suppose the fundamental question here is when is enough, enough?
Bargaining in this case commenced on January 23, 2013, and continued until the 15
company declared an impasse on November 20, 2014. Until that point, there was a total of 30
meetings plus many communications over a period of 22 months. And while there were
significant time breaks in the bargaining, there is no contention that these were caused by an
effort by the company to delay negotiations. If anything, the record indicates that because the
company was asking for substantial givebacks, and the Union was unwilling or unable to 20
engage in a strike or other economic activity, it was the Union that was trying to extend
bargaining for as long as possible so that it could avoid changes in its most recent collective-
bargaining agreement.13

13
In Atlantic Queens Bus Corp., 362 NLRB No. 65 (2015), at slip op., p. 14, I made the following
observations about the use of time as a bargaining tactic:
The role of time in negotiations cannot be underestimated and he who can control or manipulate
the timing of negotiations can obtain a significant advantage. For example, in first contract
negotiations after a union has recently been certified following an election, it may be to the
employer’s advantage to delay negotiations in the expectation that its employees may be
reluctant to strike and that the union will lose its leverage over time. And during that period of
delay, the employer will retain its existing wage and benefits costs. In this scenario, so long as an
employer does not unduly delay negotiations, the fact that it can legally agree to meet on fewer
dates over a longer period of time, provides it with substantial bargaining leverage.
On the other hand, where an employer is seeking cut backs which are, at least to some
extent economically necessary, or where a union perceives that an employer is not
bluffing and is willing to suffer a strike in order to obtain cutbacks, it would be in the
union’s interest to stretch out bargaining for as long as possible. In that scenario,
because the employer is legally bound to continue the existing wages and terms of
employment contained in an expired contract, it is to the union’s advantage to retain
those wages and benefits by bargaining slowly while avoiding an impasse. Under this
kind of scenario, the union’s interest would be to meet on fewer occasions and to
grudgingly make small concessions in an effort to extend the bargaining process while
avoiding an impasse. Just like the first scenario where it is in the interest of an employer
to slow down the bargaining process, this second scenario depends on the union meeting
the statutory legal obligation to meet at reasonable times and places and to bargain in
good faith. But as these terms allow for a good deal of leeway, both unions and
employers are, within the limit of “reasonableness,” within their legal rights to try to
control the tempo of negotiations to their own advantage.
JD(NY)-30-16
44
I also note that from the start of bargaining, the company was insistent on a number of
contract proposals to change the terms of the expiring contract and it continued these demands
until the day that the impasse was declared. These included the company’s insistence on
inserting a provision in the contract that would allow it to subcontract out unit work of regular
employees subject to certain limitations plus a provision that would allow it to unilaterally 5
subcontract out the work of temporary employees. The company, throughout bargaining,
insisted on a provision that would eliminate the old contract’s provision that required it to first
seek and accept volunteers before implementing a layoff. Additionally, the company proposed a
clause that would nullify the old contract’s provision granting a right of recall in the event that
employees were laid off in a reduction in force.14 After the Union held a ratification vote where 10
the company’s last offer was rejected, the parties went back to the bargaining table with the
participation of a Federal Mediator. But no progress was made on any of these core issues over
the next three bargaining sessions. Instead, the Union mainly gave its reasons for rejecting the
company’s proposals or called for the production of information.
15
At the 30th meeting held on November 3, 2014, the Union made a counterproposal
regarding subcontracting, but conditioned it on the employer’s agreement to retain the voluntary
process for layoffs and to keep employee rehire rights. This was rejected by the company’s
representative who said that these were considered to be core issues from the very start of the
negotiations. The company’s representative stated that the employer was at its bottom line and 20
asserted that the parties were at an impasse. The Union’s representative asserted that the last
offer was premature and that there was no impasse. The company’s representative then asked
if the Union had any new proposals. The Union’s response was that “we are not negotiating
against ourselves.”
25
I have already determined that the company’s proposals regarding subcontracting were
mandatory subjects of bargaining and this means that it could insist on its proposals to the point
of impasse or as a condition of reaching an agreement. I have further determined that the
company did not violate the Act by failing or refusing to furnish to the Union, certain information
about nonunit employees. Also, I conclude that there is no evidence to show that the alleged 30
failure to furnish information could reasonably be said to have impeded the parties from
reaching an agreement.
Section 8(d) of the Act requires, among other things, that both parties to a collective-
bargaining relationship meet at reasonable times and places and bargain in good faith. The 35
definition of good faith is that the parties must negotiate with an intention of reaching an
agreement. Nevertheless, the law “does not compel either party to agree to a proposal or
require the making of a concession.” For this reason, a party is not required “to engage in
fruitless marathon discussions at the expense of frank statement and support” of one’s position.
NLRB v. American Nat’l Ins. Co., 343 U.S. 395, 404 (1952).40
In determining if there is an impasse, the Board has considered a number of factors,
including (a) the bargaining history; (b) whether the parties have negotiated in good faith; (c) the
length of the negotiations; (d) the importance of the issue(s) over which there is disagreement;
and (e) the contemporaneous understanding of the parties regarding the status of the 45
negotiations. Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Television
Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).

14
As previously noted, the company on September 29, 2014, withdrew its multiplatform/flexibility proposal
as well as a number of other proposals that the Union claimed were permissive subjects of bargaining.
JD(NY)-30-16
45
In the present case, the parties have had a long history of collective bargaining. As far
as I know, there have been no prior findings by this agency demonstrating that the company
had any level of hostility towards the Union. Moreover, there is no contention that the
Respondent engaged in bargaining with the intent of avoiding an agreement. On the contrary,
the record shows that the employer was eager to reach an agreement; albeit one on its own 5
terms. The fact is that there were 30 bargaining sessions over a period of 22 months. Also, at
various points during negotiations, the employer acceded to union’s requests to extend the
existing agreement. And when the company no longer was willing to extend the contract any
further, it continued to meet with the Union and to make concessions.
10
The record shows that with respect to 4 core issues, the employer had insisted on these
from the very outset of bargaining and that there was a fundamental disagreement that could
not be bridged. These were the employer’s insistence on (a) the right, within certain defined
limits, to subcontract out work done by full-time and regular part-time employees; (b) the right to
subcontract out the work done by temporary employees without limitation; (c) the elimination of 15
the volunteer process for layoffs; 15 and (d) the elimination of the old contract’s rehire rights.
The Union notified the company that in its opinion, the tender of a last offer was
premature and that the employer’s declaration of impasse was not valid. Its representative
asserted that there were many issues that remained to be discussed. Nevertheless, after the 20
company’s final offer was rejected at a ratification vote, no further progress was made. At the
30th meeting held on November 3, 2014, the Union’s representative, when asked if it had
anything else to propose, responded that the Union was not going to negotiate against itself.
It is asserted that because the Union expressed its willingness to be flexible, it cannot be 25
said that both parties assumed that further bargaining would be futile. But in my opinion, this
cannot be the single criteria to measure if an impasse existed. As noted previously, the Union
found itself in a situation where the company was demanding “give-backs” and the Union
neither had the will nor ability to engage in an economic strike. It therefore, and quite
understandably, invoked a defensive strategy designed to delay bargaining as long as possible 30
so as to preserve the various existing terms and conditions of the last collective-bargaining
agreement. If the test is that no impasse can exist if one of the parties expresses an opinion that
there is no impasse and that it is ready to make concessions, then theoretically that party can
forestall an impasse forever. This would simply be a matter of making tiny incremental changes
in its position whenever the other side brought up, or hinted that an impasse was imminent. 35
In my opinion, the Board’s decision in National Gypsum Co., 359 NLRB No. 116 (2013),
is controlling. In that case the judge found that the parties reached a lawful impasse caused by
their deadlock over the employer’s proposal to replace the defined benefit pension with a
defined contribution plan and a proposal to permit the employer to unilaterally suspend 40
matching contributions to a 401(k) plan. The Board stated:
In adopting the judge’s finding, we highlight two significant sets of
circumstances that support his conclusion. First, the Charging Parties (the
Union) attempted to induce the Respondent to withdraw its economic 45
proposals by offering several economic concessions in its March 28
contingent proposal. The Respondent flatly rejected that proposal and gave no

15
To review, the expired contract required the employer, when layoffs were to occur, to first seek
volunteers and to accept 90 percent of those volunteers. The consequence of this provision, as far as the
employer was concerned, was that it could not pick and choose those employees that it wanted to let go.
JD(NY)-30-16
46
indication that it would accept any concessions in return for withdrawing its
401(k) and defined contribution proposals. Second, at the September 2
meeting, the Union brought in Jim Robinson, an international union
representative and director of its Illinois/Indiana district, to speak against the
Respondent’s retirement proposals. Robinson spoke at length about the two 5
proposals, stating that the Union would not accept them and that such
proposals were “wrong,” “shortsighted,” “self- destructive,” and “an attack on
the middle class.” When the Respondent’s chief negotiator responded that the
Union had accepted the same proposals at four other facilities, Robinson said
that they should not have been accepted and that the Steelworkers Union was 10
going to do everything it could to “reverse the trend . . . .” Robinson left shortly
thereafter, and Union Negotiator Chris Bolte advised the Respondent that
Robinson’s statements represented the Union’s position on the Respondent’s
proposals.
15
These two events, taken together with the judge’s analysis of the Taft factors,
show that the Respondent lawfully declared impasse on September 2. The
Respondent had steadfastly held to its two proposals and made clear that it
was unwilling to accept concessions on other issues in return for dropping
them. The Union, in turn, made it clear on September 2 that it would not accept 20
the two proposals and that it was intent on “revers[ing] the trend” toward
defined-contribution retirement plans. The Acting General Counsel and the
Union contend that the Union’s negotiator was Bolte, not Robinson, but Bolte’s
statement that Robinson spoke for the Union on those issues justified the
Respondent’s reliance on Robinson’s words. Therefore, we adopt the judge’s 25
finding that the parties were at impasse on September 2, and we further adopt
his dismissal of the refusal-to-bargain and unlawful-impasse allegations.16
In light of the above, I find that the parties were at an impasse as of November 20, 2014.
Accordingly I find that when the employer implemented its last, best, and final offer on that date,30
it did not violate the Act. I therefore, conclude that the employer did not violate the Act when it
implemented its final offer, by among other things, subsequently subcontracting out work; by
eliminating the volunteer process for layoffs; and by eliminating the rehire rights in the expired
contract.
35
4. The New Health Care Program
Because the company was split off from Time Warner, it was required to devise a new
health program for all of its employees, of which the union represented about 7 percent.
Historically, bargaining unit employees were covered by the same health program that was 40
offered to the unrepresented employees.
For better or worse, the process of devising a new health care program occurred during
the same period of time that bargaining was going on with the Union. And it was not completed
until well in the 2nd year of the negotiations. During bargaining, the Union proposed its own 45
health plan that was rejected by the employer. At various points during the negotiations, the
employer offered a contract proposal to the effect that the union employees would be offered, as
part of any new health plan, one option that would provide the same benefits at the same cost to
them as they enjoyed under the Time Warner plan. This proposal was also contained in the

16
See also, WCCO-TV, 362 NLRB No. 101 (2015).
JD(NY)-30-16
47
company’s final offer and if accepted, would have legally bound the employer to make good on
that promise as it would have been enforceable through the grievance/arbitration provisions of
the proffered collective-bargaining agreement.
The complaint’s allegation is that on January 1, 2015, the Respondent unilaterally and 5
without bargaining to impasse, implemented a new health insurance plan for the bargaining unit
employees. In my opinion, this is clearly incorrect. There had been a good deal of bargaining
about health care plans prior to the final offer, which admittedly was impeded by the fact that the
company’s new health program was not finalized until late in the day. Nevertheless, I have
concluded that the parties reached an impasse by November 20, 2014, and this means that the 10
employer had the right to implement, in all or part, its final offer. And this included its contract
proposal relating to health care. In this respect, once an impasse has been reached, the law
does not require that there be an impasse on every single item in the company’s last offer
before a particular item can implemented.
15
5. The 401(k) Plan
As I read the General Counsel’s Brief, she contends that the Respondent violated the
Act by failing to comply with the requirement in the old agreement that the Guild be given notice
and an opportunity to be involved in investment option decisions relating to the 401(k) plan. In 20
this regard, she cites the provision in the expired contract that requires advance notice before
the company can amend or change a benefit plan. She also cites a provision that calls for the
Respondent and the Guild to designate a joint committee to discuss possible recommendations
with respect to 401(k) investment options.
25
As with the health plan, the employees in the unit were covered by the Time Warner
401(k) plan when Time Inc. was part of that company. And in the same manner as the health
plan, the Respondent was required to come up with its own 401(k) plan when it was to be split
off from the parent corporation. (I would imagine that creating a new 401(k) plan, would be a lot
simpler than creating a new set of health care plans). 30
Towards the end of 2013 Time Inc. notified the Union that matching contributions to the
employees’ accounts would be reduced from 7 to 5 percent. This notification was made when
Time Inc. was still a part of Time Warner. In any event, the Union did not file an unfair labor
practice charge as to this change. Also, it did not initiate any contract grievance over this 35
change. In this respect, a reduction of this magnitude in the employer’s match would have been
quite substantial for those employees who participated in the 401(k) plan.
Before Time Inc. was split off from Time Warner, the employees were notified on April
11, 2014, that there was a change in one of the many fund options offered in the 401(k) 40
program. The change involved the substitution of the Capital Preservation Fund by the Morley
Stable Value Fund. Employees were told that any money they had in the former would be
transferred to the latter.
At this point, the parties were involved in contract negotiations to replace the contract 45
that would have expired in February 2013 but for the agreement of the parties to extend it.
At the meeting on May 8, 2014, there was a discussion about the proposed changes to
the investment options in the 401(k) plan. The company stated that it was going to change its
match from 7 to 5 percent. Previously, in December 2013 or January 2014, the Union had been50
notified that there were going to be changes in the 401(k) plan and that the company intended
JD(NY)-30-16
48
to reduce its match from 7 to 5 percent. So this came as no surprise when it was discussed at
the May 8, 2014 meeting.
At the May 16, 2014 bargaining session, the parties had a discussion of the 401(k)
changes and whether the Union should have a role in choosing investment vehicles.5
On June 5, the parties held their 13th meeting, wherein there was a discussion of the
401(k) plan and how it would be impacted by the fact that Time Inc. was about to be spun off
from Time Warner on June 6, 2014.
10
On August 15, the company sent the Union a spread-sheet comparing the contributions
made to the 401(k) plan for employees when they were under the Time Warner Plan and what
they were under the newly promulgated Time Inc. plan, This stated, inter alia, that contributions
were now at a maximum of 5 percent of pay instead of the 7 percent that had been the case
under the Time Warner plan. 15
On August 22, 2014, the company distributed a memorandum to employees to the effect
that it was substituting in the 401(k) plan, one Blackrock index fund for another Blackrock index
fund. (Fund M for Fund C). Both are foreign large blend funds and each had an expense ratio
of .11 percent.20
The complaint does not allege and there is no argument that the change in the
company’s match to the 401(k) plan constituted a violation of the Act. (From 7 percent to 5
percent). This change was announced back in late 2013 when Time Inc. was still a part of
Time Warner. Also, this change was announced more than 6 months before the first charge 25
was filed in this case. Therefore, Section 10(b) would bar an allegation that the change in the
company’s match percentage was a violation of the Act.
Apart from the change in the amount of the employer’s match, there were only two
changes to investment options. One involved the substitution of the Capital Preservation Fund 30
by the Morley Stable Value Fund as one among many investment options. The other involved
changing one Blackrock index fund for another Blackrock index fund. (Fund M for Fund C).
Both of those are foreign large blend funds and each had an expense ratio of .11 percent.
In my opinion, these two changes to the investment options available to 401(k) 35
participants were minimal and had little or no impact on unit employees. Thus, whether or not
the Union, under the terms of the collective-bargaining agreement, should have been given the
opportunity to discuss these changes, the result was of little or no consequence to unit
employees. If this was a breach of contract, I deem it to be de minimus.
40
6. The Direct Dealing Allegation
The complaint alleges that the Respondent, in December 2014 and on various dates in
2015, bypassed the Union and dealt directly with employees by negotiating individual separation
agreements. 45
The record shows that when employees were scheduled for layoffs, they were, in
accordance with past practice, offered severance packages that were prepared by the company
and given to the affected employee with a copy to the Union. Assuming that there was some
give and take between the employee and the company regarding the terms of the severance 50
package, there was nothing to prevent the Union from becoming involved if it wished to do so.
JD(NY)-30-16
49
The proviso to Section 9(a) states:
[A]ny individual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining representative, as long as 5
the adjustment is not inconsistent with the terms of the collective-bargaining
contract or agreement then in effect: Provided further, that the bargaining
representative has been given opportunity to be present at such adjustment.
To an extent, a negotiation between an employee and the employer regarding the terms 10
of a severance settlement is analogous to the adjustment of a grievance. Inasmuch as the
Union was notified of these severance packages and did not choose to get involved in the
process, I don’t think that these transactions rose to the level of direct dealing. I therefore shall
recommend that this allegation be dismissed.
15
Conclusion
Based on all of the above, it is my opinion that the Respondent has not violated the Act
in any manner encompassed by the complaint. Therefore I recommend that the complaint be
dismissed. 20
Dated: Washington, D.C., August 9, 2016
25