Times-Herald, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 13 (N.L.R.B. 1980)

TIMES-HERALD, INC. 13
Times-Herald, Inc. and Bay Area Typographical
Union No. 21, International Typographical
Union. Case 20-CA-14195
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
TRUESDALE AND JENKINS
On October 19, 1979, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this preceding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed an answering
brief to the exceptions of the General Counsel and
Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, concurring:
The theory of paragraph 8(a) of the complaint is
that Respondent insisted to impasse on a nonman-
datory subject of bargaining. The Administrative
Law Judge appears to assume that the parties were
dealing with a nonmandatory subject-a union rec-
ognition clause-and dismisses this allegation of the
complaint by finding that Respondent did not insist
on its position to impasse. It seems plain to me,
however, that the subject at issue was not the rec-
ognition clause in isolation but the issue of work
preservation in light of Respondent's switching
from a hot type to a cold type of printing process
in its composing room. It was the naming in the
recognition clause of jobs affected by this change
which created the dispute-the Union was attempt-
The General Counsel and Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
249 NLRB No. 4
ing to use this clause to preserve those jobs. The
parties bargained over this at length and made
some real progress. That this bargaining did not
center on the wording of the recognition clause
makes no difference where, as here, the only objec-
tion the Union had to Respondent's proposed rec-
ognition clause was its potential threat to the job
security about which the parties were already bar-
gaining. As the dispute was over work preserva-
tion, a mandatory subject of bargaining, I would
dismiss paragraph 8(a) of the complaint on the
ground that Respondent bargained over it, and
would not reach the question of whether it bar-
gained to impasse over the recognition clause.
DECISION
ROGER B. HOLMES, Administrative Law Judge: The
unfair labor practice charge in this proceeding was filed
on November 13, 1978, by Bay Area Typographical
Union No. 21, International Typographical Union, herein
called the Union.
The Regional Director for Region 20 of the National
Labor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the
Board, issued on February 22, 1979, a complaint and
notice of hearing against Times-Herald, Inc., herein
called the Respondent.
The General Counsel's complaint alleges that the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein called the Act. The
General Counsel's complaint is specifically drafted in al-
leging in subparagraphs 8(a) and (b) the particular acts
and conduct of the Respondent which the General
Counsel contends constituted the violations of Section
8(a)(l) and (5) of the Act. In paragraph 8 of the com-
plaint, the General Counsel alleges:
8. Since on or about May 13, 1978 and continuing
to date, Respondent has refused, and continues to
refuse, to bargain collectively in good faith with the
Union as the exclusive representative of all the em-
ployees in the unit described in paragraph 5(b) by
the following acts and conduct:
(a) At all times since January 31, 1977, and con-
tinuing to date, Respondent has insisted as a condi-
tion of agreement, and/or has insisted to impasse,
that the Union agree upon a modification of the
unit-jurisdiction clause of the collective bargaining
agreement described above in paragraph 5(a).
(b) On or about October 26, 1978, Respondent
withdrew proposals under discussion and offered
significantly less favorable proposals, which were
calculated to prevent agreement between Respond-
ent and the Union.
In addition to those two specific allegations of unfair
labor practices, the Gcneral Counsel further alleges that
certain employees of the Respondent went on strike in
protest of the Respondent's conduct. In paragraph 9 of
the complaint, the General Counsel alleges:
TIMES-HERALD, INC.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Commencing on or about June 20, 1978, cer-
tain employees employed by Respondent in the unit
described above in paragraph 5(b) engaged in an
unfair labor practice strike in protest of Respond-
ent's conduct described above in paragraph 8.
The Respondent filed on March 6, 1979, its original
answer to the General Counsel's complaint. The Re-
spondent denied the commission of the alleged unfair
labor practices and, inter alia, raised several affirmative
defenses. (See G.C. Exh. I(e).)
On Marc', 26, 1979, the counsel for the General Coun-
sel filed a pretrial document entitled, "Motion to Strike
Portions of Respondent's Answer to Complaint." (See
G.C. Exh. (f).) That motion pertained to the affirmative
defenses set forth in paragraphs XI, XII, XV, and XVI
of the Respondent's original answer.
Deputy Chief Administrative Law Judge James T.
Barker issued an order on April 10, 1979, in which he
granted the General Counsel's motion to strike para-
graphs XV and XVI from the Respondent's original
answer. Insofar as the General Counsel's motion related
to paragraphs XI and XII of the Respondent's original
answer, that part of the motion was referred to the Ad-
ministrative Law Judge to be designated to preside at the
hearing.
On April 12, 1979, the Respondent filed its amended
answer to the General Counsel's complaint. (See G.C.
Exh. l(j).) In the Respondent's amended answer, the Re-
spondent again denied the commission of the alleged
unfair labor practices and, inter alia, raised certain affirm-
ative defenses.
On May 8, 1979, the counsel for the General Counsel
filed another pretrial document entitled "Motion to
Strike Portions of Respondent's Amended Answer to
Complaint." (See G.C. Exh. (k).) That motion pertained
to the affirmative defenses raised in paragraphs XVI,
XVIII, XIX, and XX of the Respondent's amended
answer.
By order dated May 10, 1979, Deputy Chief Adminis-
trative Law Judge Barker referred the General Counsel's
motion to the Administrative Law Judge designated to
conduct the hearing. (See G.C. Exh. 1(1-1).)
The hearing was held before me on May 15, 16, 17,
and 18, 1979, at San Francisco, California. At the outset
of the hearing, the attorneys for the Respondent filed
three documents which set forth the Respondent's posi-
tion on both of the General Counsel's pretrial motions.
(See G.C. Exhs. I(o), (p), and (q).) After considering
those matters, I granted the General Counsel's second
motion to strike insofar as it pertained to the affirmative
defense set out in paragraph XIX of the Respondent's
amended answer. Although I indicated that there were
some factual differences in two earlier cases before me, I
relied on the underlying rationale and legal principles of
the Board's Decisions in Finally, Inc., d/b/a Palace Club,
229 NLRB 1128, fn. 3 (1977), and Laborers' International
Union of North America, Local 300, AFL-CIO (Memorial
Park Development Association, Inc.), 235 NLRB 334
(1978).
The remaining affirmative defenses urged by the Re-
spondent are set forth in paragraphs XI, XII, XIII, XIV,
XV, XVI, XVII, XVIII, and XX of its amended answer.
(See G.C. Exh. 1(j).)
The time for filing briefs was extended to July 6, 1979.
Persuasive briefs have been received from the counsel
for the General Counsel, the attorney for the Charging
Party, and the attorneys for the Respondent.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with a
place of business located in Vallejo, California, where it
is engaged in the business of selling newspapers and ad-
vertisements.
During the year 1978, the Respondent had gross rev-
enues in excess of $200,000, and the Respondent sub-
scribed to interstate news services and advertised nation-
al brand products for which the Respondent also re-
ceived revenues in excess of $200,000.
Upon the foregoing facts, and the entire record herein,
I find that the Respondent has been, at all times material
herein, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that the Union has
been, at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act. Based
upon the foregoing, and the entire record in this case, I
find that fact to be so.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Witnesses
In alphabetical order by their last names, the following
six persons appeared as witnesses at the hearing in this
proceeding:
Donald Abrams is a representative of the Local Union.
Melvin P. Anderson is a staff member of the Western
Newspaper Industrial Relations Bureau, where he has
been employed for the past 7 years.
Duane Langeliers has been the business manager of the
Respondent for about 3 years.
Leon Olson has been the president of the Local Union
for the past 10 years.
Kenneth N. Prairie has been an International repre-
sentative of the International Typographical Union for
the past 18 or 19 years.
James Matthew Quinn began working for the Respond-
ent on October 25, 1965. He worked as a linotype opera-
tor, floorperson, and a TTS operator. At the time of the
commencement of the strike in June 1978, Quinn held
the position of TTS operator, and he was the chapel
chairman, which is the chief shop steward position
among the composing room employees.
B. Credibility Resolutions
A substantial number of the findings of fact to be made
herein will be based on matters about which there is no
genuine controversy as to the events having occurred.
TIMES-HERALD, INC. 15
However, that is not to suggest that the parties are in
complete agreement on all the facts, because there are
some factual disputes among them. Not surprisingly, the
parties also view certain facts from different perspec-
tives, and they urge that different legal conclusions
should result from a study of the facts as they perceive
them.
Nevertheless, there is a great deal of testimony which
was not contradicted, and there is a large amount of doc-
umentary evidence, such as a prior contract between the
Union and the Respondent, various proposals from the
parties which were exchanged during negotiations for a
supplemental agreement and for a new collective-bar-
gaining agreement, and other documents, which will
form the basis for additional findings of fact.
I have based the findings of fact on portions of the tes-
timony given by each one of the witnesses who testified.
There are some minor conflicts among the witnesses, but
those minor variations in their recitals are not truly sig-
nificant in determining the issues presented in this case.
However, there is a significant difference between the
testimony given by Anderson and the testimony given by
Prairie with regard to the conversations between those
two people in June 1978.
As to choosing between the version given by Ander-
son and the version given by Prairie regarding those
events in June 1978, I have considered the demeanor of
the witnesses while they were testifying and also the cri-
teria set forth in the Board's Decision in Northridge Knit-
ting Mills, Inc., 223 NLRB 230, 235 (1976). Anderson
demonstrated on the witness stand that he had the better
recollection and the more detailed recollection of his
conversations with Prairie in June 1978. In addition, to
some extent, Anderson's version finds support in the con-
temporaneous notes which Anderson made on June 16,
1978, during his meeting with Prairie on that date.
Although Prairie denied at the hearing that he had
reached any agreement on work arrangements with An-
derson, or that he had ever said that the work arrange-
ment question was resolved, Prairie did indicate in his
testimony that Anderson had told him that the jurisdic-
tion language in the prior contract was not a problem.
During his direct examination by the counsel for the
General Counsel, the following occurred:
Q. Do you recall whether during that meeting
with Mr. Anderson on June 16th he made any con-
cessions with respect to jurisdiction language in the
contract?
A. Within the context of everything else being
resolved, we might be able to resolve that.
Q. That is what you recall him saying about that
issue?
A. Probably Mel in hurriedly going through
things said, "That isn't a problem, that shouldn't be
a problem."
I have given consideration to the fact that acceptance
of Anderson's version of his conversations with Prairie
in June 1978 would reveal that the Respondent made a
significant change from its prior bargaining position.
However, that fact must be considered in the circum-
stances which existed at that point in time; namely, that a
strike by the employees of the Respondent, who were
represented by the Union, was imminent.
After considering all of the foregoing, I have credited
Anderson's testimony.
With regard to other testimony given by Olson, and
with regard to the lengthy testimony given by Abrams, I
have considered the fact that during their testimony both
Olson and Abrams relied extensively on their respective
notes, which were made during the numerous negotiat-
ing sessions which they attended. It is understandable
that they had to utilize such notes on the witness stand in
view of: () the passage of time between the occurrence
of the events about which they testified and the time of
the hearing; (2) the numerous bargaining sessions held
between the Union's representatives and the Respond-
ent's representatives; and (3) the substantial number of
items which were discussed by the parties during those
negotiating sessions. In those circumstances, their con-
temporaneous notes provided a more reliable account of
what had transpired.
With the demeanor of the witnesses in mind, and the
criteria referred to in Northridge Knitting Mills, supra, I
will set forth the findings of fact herein which appear to
me to be reliable and credible.
C. The Negotiations in 1976
Abrams said that subordinate local unions of the Inter-
national Typographical Union have represented employ-
ees who were doing composing room work at the Times-
Herald in Vallejo for approximately 70 years. The Union
has dealt with the current owner of that newspaper since
1974.
The other unions which represented various units of
employees at the Respondent's facility were identified by
Langeliers as being: the Newspaper Guild, the Press-
men's Union, the Graphic Arts International Union, the
Mailers Union, and the Teamsters.
By letter dated May 28, 1976, the Respondent gave to
the Union 120 days' notice of the Respondent's intention
to install new equipment at its facility. (See sec. 4(f) of
the collective-bargaining agreement between the Union
and the Respondent with effective dates of January 1,
1974, through December 31, 1976, and which was intro-
duced into evidence as G.C. Exh. 13.)
The negotiations between the parties with regard to
the Respondent's installation of new equipment were
generally referred to as the negotiations for a supplemen-
tal agreement. Those negotiations began on June 16,
1976. The new equipment was not installed by the Em-
ployer until October 4, 1976. Nevertheless, the parties
continued to discuss the matter after the new equipment
was installed. Between June 16, 1976, and December 9,
1976, representatives of the Union and representatives of
the Respondent met 12 times with regard to negotiating
a supplemental agreement. The subject matter continued
to be discussed after negotiations for a new collective-
bargaining agreement had commenced between the par-
ties in January 1977. After the bargaining began for a
new collective-bargaining agreement, the parties would
intermittently discuss the issues which pertain to the sup-
plemental agreement. Eventually, the negotiations with
TIMES-HERALD, [NC IS
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to a supplemental agreement and a new collec-
tive-bargaining agreement intertwined. In this connec-
tion, see G.C. Exh. 29 with regard to the Union's pro-
posals dated June 28, 1976; G.C. Exh. 21 with regard to
Respondent's initial proposals on July 21, 1976; G.C.
Exh. 31 with regard to the Union's revised proposals
dated October 11, 1976; G.C. Exh. 30 with regard to the
Union's proposals dated October 26, 1976; G.C. Exh. 22
with regard to Respondent's proposals on November 4,
1976; and G.C. Exh. 24 with regard to Respondent's pro-
posals on November 19, 1976.
At the first negotiating meeting between the parties
with regard to a supplemental agreement on June 16,
1976, the Respondent advised the Union of the type of
new equipment which was going to be placed in oper-
ation by the Respondent. The Respondent also advised
the Union at that initial meeting of the type of equipment
which was considered to be obsolete, and therefore was
going to be removed.
Quinn and Langeliers described in detail the type of
work which was performed by the Respondent's com-
posing room employees both prior to, and after, the in-
troduction of the new equipment at the Respondent's fa-
cility in October 1976. For convenience in this proceed-
ing and without delving into the highly technical aspects,
the installation of the new equipment can be summarized
as the conversion from what has been called a hot type
of printing process to the newer technology of a cold
type of printing process.
D. The Arbitration Proceedings
A substantial amount of documentary evidence per-
taining to the arbitration proceedings involving the
Union and the Respondent was introduced into evidence.
Those documents have been considered, and they are
available in the record for detailed examination by those
persons who have a need to do so. I will briefly identify
them for purposes of this Decision.
On August 30, 1976, the Union filed against the Re-
spondent, in the United States District Court for the
Eastern District of California, a "Complaint To Compel
Arbitration Under Labor Agreement." (For the contents
of that complaint, see G.C. Exh. 2.) The court issued on
November 22, 1976, its order in that case, and on No-
vember 23, 1976, the court entered its judgment. The
court granted the application for an order compelling ar-
bitration. (See G.C. Exh. 3.)
Certain portions from the transcript of the first day of
the arbitration hearing on February 15, 1977, were intro-
duced into evidence in this proceeding. (With regard to
the statements made at that point in time, see G.C. Exh.
7.)
A copy of the opinion of the chairman and the interim
decision of the arbitration board, which was rendered on
September 27, 1977, was introduced into evidence as
General Counsel's Exhibit 8. The five persons who sat
on the arbitration board were: Leon Olson and Don
Abrams, as the members of the arbitration board from
the Union, and Melvin Anderson and Duane Langeliers,
as the members of the arbitration board from the Re-
spondent. William Eaton was the chairman. His ruling
on the Respondent's motion to disqualify him was issued
on January 6, 1978. That document was introduced into
evidence as General Counsel's Exhibit 9.
Prior to the issuance of that interim award, Olson re-
called a discussion of the proposed award by the five
members of the board of arbitration. He said that Eaton
had given a draft of his award to the other members of
the board, and had invited their comments and opinions.
Olson said that Anderson told Eaton that, if he came
down with that kind of an award, Eaton was guarantee-
ing that the Union would have to go on strike. Olson
said that Anderson explained that the arbitrator had no
right or authority to hand down a decision which went
beyond the expiration date of the contract. Anderson
said that the type of award, which Eaton was contem-
plating, would be the kind of award which management
would never be able to live with, and that the Union
would feel that they could not settle for less. Therefore,
Anderson said it would almost certainly lead to a strike
situation.
Introduced into evidence as General Counsel's Exhibit
10 was a copy of the opinion of the chairman and award
of the local arbitration board, which was rendered on
April 1!, 1978. Like the interim decision, the final award
was signed by the chairman and the two arbitration
board members from the Union. The dissenting opinion
of the two arbitration board members from the Respond-
ent was introduced as General Counsel's Exhibit 11. A
letter dated April 25, 1978, from the Respondent to the
Union, with regard to that dissenting opinion as being
the Respondent's position on the arbitration award, was
introduced as General Counsel's Exhibit 4.
On April 24, 1978, the Union filed against the Re-
spondent in the United States District Court for the
Eastern District of California a "Complaint for Issuance
of Decree Enforcing Arbitration Award." (See G.C.
Exh. 5.) The court's order setting a hearing date of Octo-
ber 30, 1978, on the Motions for Summary Judgment,
which had been filed by each party, and the court's
order directing the further filing of briefs by the parties
are reflected in General Counsel's Exhibits 6 and 6(b).
E. The Negotiations in 1977
1. The meeting on January 31, 1977
At the bargaining session between the Union and the
Respondent held on January 31, 1977, the parties dis-
cussed the proposals which had previously been made by
the Union and the counterproposals which had previous-
ly been made by the Respondent. The parties went
through each one of the proposals section by section in
order to compare the positions of the two parties and to
see what matters they were agreed upon.
The Respondent proposed the deletion of the succes-
sors and assigns language from the prior contract. Attor-
ney Potts explained to the Union that they were propos-
ing the deletion of that language in the event that the
Respondent chose to sell their property. The Union pro-
posed that the successors and assigns clause be retained
from the prior contract.
With regard to a midterm modification of the new
contract, the Union proposed that the language in the
prior contract be put in the new agreement. Attorney
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TIMES-HERALD, INC. 17
Potts stated that the Respondent wanted to be able to
deal with the Union on a "man-to-man basis" and be able
to obtain answers quickly. He proposed that, where the
Respondent was dealing with the Union's chapel chair-
man on a day-to-day basis, any agreement reached be-
tween the Respondent and the chapel chairman would
prevail, even if that agreement altered or changed the
contract. The Union expressed the view that the only
way the contract could be altered or amended during its
lifetime would be by ratification or amendment by the
Union.
With regard to whether to incorporate the general
laws of the International Typographical Union into the
new contract, the Respondent proposed that those gener-
al laws not be included. Attorney Potts indicated a desire
to have all of the terms of the contract covered in the
agreement itself, and not in a separate document.
With regard to including a union-security clause in the
new contract, Attorney Potts expressed the view that a
union-security clause did not exist in many ITU agree-
ments. He stated that the Respondent did not want to be
a party to allowing the Union to levy fines and disrupt
their work force. Olson replied that there was no jeop-
ardy to the Respondent because the Respondent was not
required to discharge an employee for his failure to pay
a fine.
During his direct examination by the counsel for the
General Counsel, Abrams testified as follows regarding
the discussion of a jurisdiction clause:
Q. (By Ms. Rosen) What was resaid at that first
negotiation session with respect to jurisdiction or
jurisdiction clause in the contract? Who said what?
A. Well, the company had proposed language to
the effect that all work in the composing room
would be done by composing room employees. The
union challenged that proposal by the employer re-
ferring them to what jurisdiction language we con-
sidered traditional.
Mr. Potts said the company was willing to grant
the union a jurisdiction over people, but he was not
willing to grant the union jurisdiction over work,
and he was not willing to spell out the kind of work
the people would do.
The union indicated that under that language, if
there was no work done in the composing room,
there would be no need to have composing room
employees.
Mr. Potts said, the Lord giveth and taketh away.
That's the way it is. That they wanted to have the
right to operate their composing room any damn
way they wanted to.
Q. When you say "they" is this a quote?
A. That's quote from Mr. Potts. They, apparently
meaning the company. They didn't intend to have
any restrictions granted to the union that would in-
terfere with their flexibility of the work force, and
he was explicit.
Q. Was there anything else said at that first meet-
ing that you recall, concerning employer's proposal
regarding jurisdictional language?
A. That was about it. They gave us their posi-
tion, President Olson gave him ours, and that was
it.
In addition, the parties also discussed at the January
31, 1977, bargaining session what was described as the
"tape-type operation." According to Abrams, the juris-
diction of the Union in that area had traditionally been
spelled out, but the Respondent proposed to the Union
that any reference to a job description or work that
would be done by a unit employee, other than the com-
petency level to be achieved, be deleted in the new
agreement.
With regard to the subcontracting language of a new
contract, the Respondent proposed that the language in
the former contract be deleted. Attorney Potts explained
to the Union "that they are people-oriented, they are not
work-oriented as far as the union recognition is con-
cerned." Olson asked Attorney Potts if the Respondent
intended to subcontract work, and Attorney Potts re-
plied, "not at that time."
With regard to the grievance and arbitration provi-
sions of a new contract, the Respondent proposed
changes in the way the disputes had been handled under
the prior contract. Attorney Potts explained that he felt
that the Respondent's proposal on that subject was a
simple and straightforward one, and he wanted proce-
dures which gave him an answer. The Union explained
its position that the Union had that language in contracts
with every other newspaper, and the Union proposed
that the language from the prior contract be renewed in
the new agreement.
With regard to the classifications of employees, the
Respondent proposed that the references to describing
the type of work performed by employees be deleted in
the new agreement and, instead, that the classifications
be indicated without a description of the work. Abrams
was of the opinion that the Respondent's proposal "just
completely wiped the slate clean with regard to defining
the type of work that a person would do in a given clas-
sification."
With regard to the transfer of employees, the Re-
spondent proposed that the reference to transfers be de-
leted in the new agreement. The Respondent explained
that they did not want to have any restrictions over
where employees were used, or where the Respondent
assigned any of the work in the composing room.
Another proposal of the Respondent was that the sec-
tion in the prior contract regarding the foreman being a
member of the Union be deleted from the new agree-
ment.
With regard to what was termed the "slip-board prac-
tices," the parties disagreed on subparagraph (a) of sec-
tion 19 of the prior contract. The Union proposed a
change in subparagraph (a), but the Respondent was un-
willing to agree to that change. The Respondent voiced
no objection with regard to subparagraphs (b) through
(f). The Respondent did propose that subparagraph (g),
which dealt with the foreman being a member of the
Union, be deleted. The parties agreed on the language in
subparagraphs (h) and (i) as stated in the prior contract.
TIMES-HERALD, INC. 17
IS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to the apprentices' language, which was
set forth in section 48 of the prior contract, the Respond-
ent proposed deletion of the section and, in its place, the
Respondent proposed that it be allowed to hire typists at
a lower percentage of the journeymen rate of pay and
that the typists be trained in other aspects of composing
room work within a period of 3 years. The Union pro-
posed that the language of the prior contract regarding
apprentices be retained in the new agreement.
2. The meeting on February 28, 1977
At the meeting held on February 28, 1977, the parties
agreed to language to be contained in sections 23 and 32
of the agreement.
The Respondent agreed to the Union's proposal to
change the word "discharged" to "laid off" as it appears
in section 23(a). With regard to section 23(b), the parties
agreed to the language set forth in the prior contract.
The parties further agreed to the revised language of
section 32(a), which had been agreed upon by the jo;nt
standing committee during the life of the prior agree-
ment. As to sections 32(b) and (c), the parties agreed to
the provisions of the prior agreement.
3. The meeting on March 16, 1977
At the meeting held on March 16, 1977, between the
parties, the Respondent advised the Union that they
would follow the grievance procedure through the joint
standing committee, but the Respondent would not pro-
ceed to arbitration with any grievance that had been
filed after December 31, 1976. The Respondent stated
that they would settle any such grievances in the best
manner that they saw fit, and they did not discount
going to arbitration for those grievances which were
filed prior to December 31, 1976.
The parties discussed the Respondent's objection with
regard to the interim arbitration provisions, and the
Union accepted the Respondent's proposal on modifying
the part of the grievance procedure.
In addition, the Respondent proposed the elimination
of the provision in the prior contract which was known
as the reproduction provision. The Union responded that
the Union would address that matter at the following
meeting.
4. The meeting on May 4, 1977
The parties discussed the reproduction issue at the bar-
gaining session held on May 4, 1977. The Union pro-
posed, as a package, that the ITU general laws be re-
newed in the new contract; that sections 2(b) and (c) also
be contained in the new contract, and that new language
be substituted for section 44 of the prior agreement,
which concerned the reproduction work. In the opinion
of Abrams, the Union's proposed language would have,
in effect, eliminated the reproduction work.
In addition, the Union proposed a new section provid-
ing for health and welfare payments by the Respondent
for substitutes, who showed up for work and subsequent-
ly were not hired, and a no-layoff provision. (See G.C.
Exh. 15 for the text of the proposed new language by
the Union with regard to the elimination of reproduction
work.)
The Respondent told the Union that they felt there
were two problems before the parties. One was the elimi-
nation of the reproduction work, and the other was the
provision for health and welfare payments for substitutes.
The Respondent stated that they could not see any rela-
tionship between the Union's proposal for recognition of
the ITU general laws or the local overtime laws. There-
fore, the Respondent did not agree to those two subsec-
tions.
The Union stated that, if they were going to agree to
the elimination of reproduction work, there would have
to be a safeguard against having employees laid off. The
Respondent stated that for the Union to argue against a
layoff, while agreeing to the elimination of reproduction
work, was to defeat the purpose for which the Respond-
ent wanted reproduction work eliminated. The Respond-
ent stated that it wanted to eliminate reproduction work
in order to reduce the staff.
The Union then proposed that health and welfare pay-
ments be paid for the substitutes beginning on July I of
that year, and that there be no layoffs until after July 1.
Thereafter, the Respondent would be free to lay off em-
ployees, as a result of the elimination of reproduction
work, but the health and welfare payments would be ef-
fective as of July . Ultimately, there was general agree-
ment with regard to that proposal, but there was no
agreement on the exact language pertaining to the elimi-
nation of reproduction work and the inclusion of the
ITU general laws in the new contract, and the overtime
laws. In connection with the bargaining session held on
May 4, 1977, see the Union's proposal as set forth in
G.C. Exh. 15, and see the Respondent's proposals set
forth in G.C. Exhs. 25 and 26.
5. The meeting on June 28, 1977
A substantial part of the bargaining session held on
June 28, 1977, between the parties was devoted to the
subject matter of the impact of the introduction of the
new equipment at the Respondent's facility. However,
other topics were also discussed at that meeting.
Representative Prairie brought up two areas where the
parties disagreed: The manner in which classified ads
would be handled and the manner in which display ads
would be handled. Prairie suggested to the Respondent's
representative that, if job security were no longer an
issue, it might be easier to make further progress. The
Respondent indicated to the Union that they felt that
they must reach agreement on the union-security provi-
sion and other provisions, regardless of the arbitration
issue. However, the problem was, in the Respondent's
view, that the Union expected to have a union-security
provision in the contract along the same lines as the
Union had with other newspapers, while the Respondent
had particular problems. The Respondent referred to the
fact that the Respondent had offered to the Union a sub-
stantial amount of money in the sum of $125,000, while
the Respondent at the same time was trying to make the
new propriety a profitable one.
Prairie said that the "work arrangements" would be no
problem if the Respondent could come up with more se-
TIMES-HERALD, INC. 19
curity provisions. According to Langeliers, Attorney
Potts replied, "Well, we have offered you $125,000 in
job guarantees." Langeliers said that Olson replied,
"Well, what would $125,000 buy?" Attorney Potts
stated, "Well, you characterized security. We did not."
At that point Olson inquired if Attorney Potts under-
stood what security was. Attorney Potts replied, "exact-
ly what you and Mr. Prairie have been telling us all
along, payoffs, and so forth." According to Langeliers,
Prairie then said, "That's right. That is what we primar-
ily are interested in. We realize that we are asking for
more jobs than there is work to do, but if there were
more money there, that would encourage a diminution in
the number of jobs through the early retirement incen-
tives and that type of thing."
At the end of the meeting, the Respondent brought up
the subject of the reproduction work and indicated to
the Union that the Union should give more consideration
to it. The Respondent took the position that the Union's
last proposal, which tied the elimination of the reproduc-
tion work to other things such as the ITU general laws
and the overtime laws, was unacceptable to the Re-
spondent. The Respondent asked that the Union consider
coming to an agreement on reproduction work without
tying those two subjects into it.
6. The meeting on August 17, 1977
The meeting held on August 17, 1977, between the
parties was primarily devoted to a discussion of matters
pertaining to the supplemental agreement.
The Respondent presented a revised proposal for a
supplemental agreement. (See G.C. Exh. 27, which was
in response to the Union's proposals dated July 26, 1977.
See G.C. Exh. 32.) The parties then studied the Re-
spondent's new proposal. The Union took the position
that the new proposal was "a retrogression from their
earlier position" because, among other things, the Re-
spondent proposed having 21 persons on the attrition list,
rather than 22 persons as previously proposed. In addi-
tion, the Union noted that, in order for an employee to
remain on the attrition list and have guaranteed work for
the rest of that employee's working lifetime, the employ-
ee would have had to have worked a minimum of 220
shifts in the previous year.
While the Respondent maintained its offer of $125,000,
the Respondent proposed that the money could not be
used for employees who had already retired, or for em-
ployees who were on the sick or disabled list. The Union
took the position that such persons were employed at the
time that the new equipment had been installed and,
therefore, those employees were entitled to be taken care
of even though they had retired later. The Union based
its position on its feeling that some of those employees
had retired because of the introduction of the new equip-
ment, or because the employees had subsequently been
laid off from work.
Prairie said that he had noted some slight changes in
the Respondent's "work arrangements" area. According
to Langeliers, Prairie stated to the Respondent, "We can
handle that either way." Prairie added, "What we are
primarily interested in is our security provisions."
7. The meeting on September 23, 1977
At the negotiating session on September 23, 1977, the
Union's representatives and the Respondent's reprcsenta-
tives went through each and every section and subsec-
tion to determine what matters had been agreed upon
and what matters were still unresolved.
The parties disagreed as to whether the Respondent
had agreed to subsection (i) of section 19 of the prior
contract. The Respondent took the position that the lan-
guage in that subsection was still "open," whereas the
Union took the opposite position that the Respondent
had previously agreed to the language of that subsection.
However, the Respondent maintained its position that
the particular subsection was still open, so the matter
was left that way at the meeting.
8. The meeting on October 21, 1977
The parties met once again in negotiations on October
21, 1977. At that meeting the Union presented a revised
proposal, which pertained to the issues raised by the ear-
lier introduction of the new equipment at the Respond-
ent's facility. (See G.C. Exh. 33. See also the Respond-
ent's later counterproposals set forth in G.C. Exh. 28.)
The Union explained to the Respondent what the
Union perceived to be the "major thrust of the changes"
in the Union's revised proposal. According to Abrams,
the Union agreed to the Respondent's proposal for cut-
ting off the attrition list as of December 31, 1969. The
Union was no longer asking that all persons be put on
the attrition list. The Union also reduced the maximum
amount payable to such persons to a ceiling of $10,000
per person. Since the Union had reduced its proposal re-
garding the number of persons to be on the attrition list,
the Union proposed that the supplemental agreement
provide for severance pay for those who had been laid
off, with a lump sum payment for those on disability.
While the Union had previously proposed that 29 per-
sons be included on the attrition list, the Union agreed
that 4 of those persons would not be on the attrition list,
if those 4 persons were given a lump sum payment as a
disability. Therefore, in the Union's view, the Union was
proposing to have 25 persons on the attrition list. How-
ever, the parties still differed not only on the number of
persons to be on the attrition list, but also as to who
would be included on the attrition list. The Union took
the position that the persons placed on the list should be
placed there according to their "priority," which is a
synonym for seniority in the industry. On the other
hand, the Respondent proposed that they not go strictly
by seniority, but instead that 21 persons be named on the
attrition list.
In its new proposals made at the October 21, 1977, ne-
gotiating session, the Union withdrew its proposal for
early retirement of employees at age 60 "because the
cost would go beyond the purview of the company."
Also at that meeting, the Union proposed the elimina-
tion of reproduction work.
The Union also proposed a new appendix D, which
pertained to work arrangements, and a new appendix E,
which pertained to the payment of health and welfare
benefits for substitutes.
TIMES-HERALD, INC. 19
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the Respondent's representatives caucused, they
responded to the Union's new proposals. The Respond-
ent said that they wanted to save money by the introduc-
tion of the new processes, and the Respondent felt that it
was entitled to that saving of money because of their in-
vestment. The Respondent said that they had made mis-
takes in the past, and they did not want to repeat those
mistakes. The Respondent said that they felt that their
amendments had eliminated a duplication of effort. The
Respondent further told the Union that the Respondent
had no intention of creating a typing pool, but that the
keyboarding function was not unique to the composing
room. The Respondent said that they wanted to be more
specific as to which operations related to the composing
room.
The parties then discussed classified display advertis-
ing. The Respondent took the position that ads, which
were more than two columns in width, would be defined
as classified display advertising, and such ads would be
set by the composing room. However, the Respondent
proposed that ads, which were either one or two col-
umns in width, would be set by the classified depart-
ment, which would be outside the composing room juris-
diction.
9. The meeting on October 24, 1977
At the meeting on October 24, 1977, Abrams present-
ed to the Respondent a document which he had pre-
pared to cover every section and subsection of the agree-
ment, which had been previously agreed to by the par-
ties at that point in time, and included the Union's
amended proposals. According to the computations made
by Abrams, there were still 50 unresolved issues. (See
G.C. Exh.16.)
At that time the Union withdrew its proposed changes
in sections 7, 9, 10(a), 20(b), 21(a), 30(a), and 31. There-
fore, the Union was in agreement with the Respondent's
proposal to incorporate the language from the prior con-
tract regarding those sections in the new agreement.
After a long lunch period, the parties resumed their
negotiating session that afternoon. They exchanged pro-
posals and they discussed various items. The Union in-
quired as to why the employer had deleted the sum of
$125,000 in their response to the Union's revised propos-
als. The Respondent replied that there was no longer a
proposal for $125,000 payment by the Respondent on the
table. The Respondent said that they would entertain a
proposal from the Union for a sum of money of $125,000
or $150,000 if the Union wanted to make one. The Re-
spondent said that they would consider such a proposal
but, since the Union had not proposed a lump sum, they
had no way to consider the Union's proposal.
The parties then discussed how the money would be
used. The Respondent took the position that the employ-
ees, who were retired or who were on disability, would
not be entitled to any of that money. However, after fur-
ther discussion, Abrams perceived that the Respondent
appeared to be removing their objection to the payment
of part of that lump sum money to the retirees and the
disabled or laid-off employees, so long as the amount of
the payment did not exceed the lump sum which the Re-
spondent was willing to pay. Therefore, the Union pre-
sented the Respondent with a proposal for a lump sum
payment of $150,000 but with the understanding that the
persons who were retired or who were disabled would
be included in that payment. (See G.C. Exh. 34.)
There were areas of agreement with regard to the per-
formance of certain work. Abrams explained:
What I mean by that is that the employer had in-
corporated certain provisions of the union proposal,
the operation of the phototypesetter, proofreading
and maintenance, would include concessions made
by the employer to the union position.
In exchange, the union had accepted the employ-
er's proposals in all but the classified display and
advertising display method of setting ads.
10. The meeting on November 4, 1977
Once again, the parties met on November 4, 1977. The
impact of the previous introduction of the new equip-
ment at the Respondent's facility was the primary subject
of discussion at that meeting.
The Union had made a proposal for $150,000 in a
lump sum payment by the Respondent. The Union sub-
mitted a handwritten document to the Respondent in
which the Union set forth its proposal. (A copy of that
document was introduced into evidence as G.C. Exh.
34.)
The Respondent questioned the Union with regard to
the last sentence of the Union's proposal. The Respond-
ent took the position that their $150,000 payment would
be a one-time payment for all past and future liabilities,
and that if the Union proposed that a lump sum payment
be made for those who retired early, such a payment
would have to come out of the 150,000, instead of the
Union's proposal that future benefits would be over and
above 150,000. The Union then referred to the earlier
proposal made by the Respondent on August 17, 1977,
with regard to a $125,000 lump sum payment. The Union
gave its interpretation that the Respondent's proposal at
that time concerned those who were displaced by the in-
troduction of the new equipment, but it did not cover
those who would come under the provisions of the sup-
plemental agreement in the future.
The issue remained unresolved by the parties at that
point, with each party adhering to their differing posi-
tions.
In addition, Representative Prairie asked the Respond-
ent for a response to the Union's proposals which had
been given in October 1977 with regard to a collective-
bargaining agreement. The Respondent indicated that
they were not prepared to respond to it at that time.
Abrams recalled that he had "a rather candid ex-
change" with the Respondent's representative at that
meeting. Abrams testified: "[W]hat they wanted was for
the union to give them an agreement which would allow
them to run their company any damn way they wanted
to."
The foregoing account of this meeting is based on
Union Representative Abrams' testimony. Union Presi-
dent Olson also testified regarding their meeting. Olson's
version is not inconsistent with Abrams' version, nor is it
----- - ____ ---
TIMES-HERALD, INC. 21
significantly different insofar as the issues here are con-
cerned. I have relied on Abrams' account.
11. The meeting on December 12, 1977
At the outset of that meeting, the Respondent advised
Federal Mediator Bill Sabatino of the background of the
negotiations. The Respondent referred to a meeting of
the board of arbitration which had been held on Decem-
ber 6, 1977, and stated the Respondent's feeling that the
arbitrator had decided to determine the terms and condi-
tions of the introduction of new equipment at the Re-
spondent's facility.
The Respondent stated that they were prepared to ne-
gotiate a total agreement on all questions, but it was use-
less for the parties to meet, if the Union was going to
depend on a later award made by the arbitrator. The Re-
spondent stated that they would not be bound by the
terms of an agreement which was fixed by a third party,
and the Respondent suggested that the Union and the
Respondent dismiss the arbitrator and proceed to negoti-
ate a settlement. The Respondent stated that, if the arbi-
trator issued an award that the Respondent could not
live with, the Respondent would not abide by the arbi-
trator's award and, according to Abrams, the Respond-
ent added "that there will be trouble."
Prairie summarized the Union's position at that meet-
ing with regard to his view of the major outstanding
issues for a supplemental agreement. Prairie mentioned
lifetime jobs, the attrition list, a lump sum money settle-
ment, the amount of money, and the new equipment lan-
guage which would relate to the work arrangement lan-
guage.
Prairie asked Federal Mediator Sabatino if he would
give guidance to the parties. Federal Mediator Sabatino
inquired if the parties could go through the contract on
an item-by-item basis, and then "sign off" on the matters
agreed to, or were the parties talking in terms of a total
package concept. Prairie indicated a total package con-
cept rather than an item-by-item signoff. According to
Langeliers, Prairie also stated, "We basically have no
problem with the work arrangements language, but we
are looking for jobs for our people. We are here to look
for more security than what we have been offered at this
time."
After listening to each party, Federal Mediator Saba-
tino then separated the two parties. However, the media-
tor did meet with Representative Prairie and one of the
Respondent's representatives that afternoon.
The foregoing findings of fact rest upon the versions
related by Abrams and Langeliers. The version given by
Olson differed in some respects, but I have relied exten-
sively upon the recital of Abrams regarding numerous
bargaining sessions, and I have relied upon Langeliers'
testimony concerning the sessions about which he testi-
fied. In these circumstances, I have found their accounts
to be accurate and reliable.
12. The meeting on December 13, 1977
The parties did not meet in face-to-face negotiations
on December 13, 1977. Instead, the parties were separat-
ed and the Federal mediator went back and forth be-
tween the parties.
13. The meeting on December 14, 1977
The parties remained separated by the Federal media-
tor on December 14, 1977.
Federal Mediator Sabatino reported to the Union on
the Respondent's reply to the Union's proposal with
regard to the setting of display ads. The Union told the
arbitrator that, if the Union was not going to be granted
the jurisdiction of the setting of display ads on the video
display terminals in the agreement, there had to be some
way to resolve the negotiations in the future.
The mediator indicated that the Respondent said that
they would be willing to negotiate, but the Respondent
would not be willing to arbitrate.
Olson said that would not be acceptable, and that
there would have to be some way of breaking a dead-
lock, if one should occur in those future negotiations.
F. The Negotiations in 1978
1. The meeting on January 9, 1978
The parties met for another bargaining session on Jan-
uary 9, 1978. The Union at that time asked the Respond-
ent about a response to the Union's proposals which had
been made on October 24, 1977. The Respondent replied
that they had responded to everything presented by the
Union, and the Respondent did not understand why the
Union was making such a request. The Respondent fur-
ther stated that, if the Union wanted to resolve issues,
the Union must make some movement, and if the Union
did not want to resolve issues, "we can sit here and rede-
fine positions all day long."
According to Abrams, the Respondent further stated
that, if the Union was locked into a concept of an area
settlement, the Respondent was willing to pay the wages
since they wanted to treat their employees fairly, "but
the union must make moves, some of them dramatic,
from what it has done in the past; and that the Company
realized the difficulty for the union to accept this, but
that's where it's at."
The Union then caucused with the Federal mediator.
According to Abrams, the Union drafted a message for
the Federal mediator to carry from the Union to the Re-
spondent. Abrams testified: "Let me, for the record say,
this was the wording of the proposal carried by . . . the
Mediator: Will the employer accept the master agree-
ment, as proposed by the union, plus a guarantee that the
method of production, re: display advertising, a 21-guar-
anteed position at $150,000, if the union will accept the
employer's last position regarding the supplemental
agreement."
Included in the Union's proposal was the provision
that any subject matter contained in the supplemental
agreement would prevail if there were a conflict between
the terms of the supplemental agreement and the master
agreement.
After receiving the Union's message, the Respondent
presented a new proposal to the Federal mediator. The
Respondent's new proposal was that the Respondent
would guarantee 21 named employees; that the total cost
significantly different insofar as the issues here are con-
TIMES-HERALD, INC.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the lump sum payment would not exceed $150,000;
that the arbitrator would be dismissed; that the status
quo regarding display advertising would be included in
the proposal; and that the Respondent would then pro-
ceed to negotiate all of the other provisions of a new
agreement.
In addition, the Respondent proposed that the dis-
charge-for-cause provision would include lack of compe-
tence on the part of an employee. In this connection, the
Respondent proposed that the employees, who were
guaranteed employment by the Respondent, must per-
form in all respects and in all ways at a level of compe-
tency which was equal to, or as high as, the level of
competency required of other employees. The Respond-
ent proposed that it be understood that the guarantee of
employment was not intended in any way to reduce the
effectiveness required of employees who were working
in the composing room. Finally, the Respondent pro-
posed that, in deciding whether or not an employee, who
was guaranteed employment, is competent, an arbitrator
may not give consideration to the employment guarantee
in reaching his decision.
In a separate meeting with the Federal mediator, the
Union took the position that the Respondent's position
on November 6, 1976, with regard to the Respondent's
proposals to the Union, and the Respondent's position on
November 8, 1978, were identical. The Union was of the
opinion that nowhere in that time had the Respondent
changed its position or its proposals in any way. Based
on that belief, the Union stated that they had no reason
to believe that, if the Union were to accept the Respond-
ent's proposal, there would be any meaningful negotia-
tions toward a master agreement. The Union informed
the Federal mediator that they were willing to concede
to the Respondent what purported "to be their most im-
portant thing in the world to them: the manner in which
the new equipment would be operated." The Union
stated to the Federal mediator that they would accept
the Respondent's proposal as the Respondent had written
it, if the Union could be assured that if it did so, there
would be a collective-bargaining agreement between the
Respondent and the Union with the Union's jurisdiction
spelled out in that collective-bargaining agreement.
2. The meeting on March 22, 1978
When the parties met on March 22, 1978, Federal Me-
diator Robert Wayne sat in on the negotiations.
The Union advised the Respondent of a change in the
negotiating committee. In addition to the members of the
local union's negotiating committee, there were also in
attendance on that date: Dick Munger, president of the
Pressmen's Union; Dan Perryman, who represented the
Mailers' Union, and Doug Cuthbertson who represented
the Newspaper Guild.
The Union suggested that the parties consider all of
the open issues involving the master agreement. The
Union indicated that it wanted to explore sections 2(a),
(b), and (c) and section 3(d).
The Respondent indicated that the Union already had
the Respondent's proposals on those issues. The Re-
spondent stated that its proposals were to delete the last
paragraph of section 2(a); to delete section 2(b) in its en-
tirety, to delete section 2(c) in its entirety; and to delete
section 3(d), which was the Union's security clause. The
Union inquired why the Respondent had agreed to a
union-security clause with other unions, but the Re-
spondent would not agree on the same subject matter
with this Union. Attorney Potts replied that it was not
germane to those negotiations as to what the Respondent
had agreed to with other unions. He said that the Re-
spondent had a different problem with the Union, which
did not exist with the other unions. The Union asked
what the problem was, but Attorney Potts stated that he
was unwilling to discuss the nature of the difference. In-
stead, he just said that there were many different prob-
lems that exist with the Union.
Abrams was of this opinion: "To the best of my
knowledge, the company made no change from their
original proposal to this date, in any area."
3. The meeting on May 10, 1978
When the parties met again on May 10, 1978, the par-
ties discussed section 4(f) of the prior contract. Section
4(f) had provided:
(f) Should the Employer decide to introduce any
new processes, equipment or machinery to be used
as an evolution of, or substitute for current compos-
ing room processes, equipment or machinery, the
Employer shall give the Union 120 days' notice of
such intention. Upon giving such notice the parties
shall immediately, in good faith and with all due
diligence, enter into negotiations for the purpose of
arriving at a mutual agreement concerning all ques-
tions pertaining to such new processes, equipment
or machinery. Should these negotiations fail to
result in agreement within thirty (30) days after no-
tification to the Union referred to in this section,
the matter shall be referred for settlement to the
Joint Standing Committee provided for elsewhere
in this Agreement. It is mutually agreed that in sub-
mitting any question to a fifth man he shall be gov-
erned by the Agreement of the parties that none but
journeymen, as defined in this Agreement, shall be
permitted to work on any such process, equipment
or machinery except as provided elsewhere in this
Agreement.
The provisions of interim arbitration contained in
Section 12(c) shall not be invoked for the purposes
of this section, unless there is mutual agreement be-
tween the parties to utilize such procedure.
However, in the event the Joint Standing Com-
mittee procedure is utilized as outlined above, and
no agreement has been reached or decision ren-
dered within the 120 days, the Employer can install
and operate such new processes, equipment or ma-
chinery pending final settlement through negotia-
tions or arbitration.
Anderson started out by stating that there basically
were no unknown factors, and he did not know if it
were possible that the parties could ever come to an
agreement. He said he did not even understand what the
Union had been waiting for.
-- ------ -
TIMES-HERALD, INC. 23
Prairie referred to the Union's earlier offer to agree to
the Respondent's last supplemental agreement and ob-
served that the Respondent would have an operation
which would not be "hamstrung by the collective-bar-
gaining agreement." At that point, Anderson told the
Union that section 4(f) had to go, and that the Respond-
ent could not "buy that." However, during the subse-
quent discussion, Anderson came up with a new matter
which had not been previously discussed. Anderson
stated, "We might be willing to continue to give the
Union notice of intent to introduce new equipment, fur-
ther new equipment, and to negotiate on the subject, but
if the negotiations were not to result in an agreement,
either party could then open the contract and take what-
ever action they wanted to take." Anderson insisted,
nevertheless, that under no circumstances would the Re-
spondent ever agree again to going to arbitration on the
question of new equipment.
Olson acknowledged that the Union did not make any
counterproposals with respect to the section 4(f) issue
during the bargaining session on May 10, 1978. Howev-
er, he said that there was discussion among the parties
with regard to the interrelationship between section 4(f)
and other issues, such as the question of display advertis-
ing. The union representatives perceived that the day
would come when technology in the industry would de-
velop to the point where display advertising would be
performed on video display terminals. The result of such
technology would mean that the operator of the video
display terminals could do the keyboarding function and
the pasteup function done by composing room employ-
ees.
4. The meeting on June 12, 1978
On June 12, 1978, the Union met with the Federal me-
diator, and Olson advised him that the Union was be-
coming apprehensive about the length of the negotia-
tions. He said that the Union felt that there was no real
basis for agreement with the Respondent, and the Union
was concerned about it. Olson told the mediator to
advise the Respondent that "the time was running out,
there didn't seem to be any point in going on, if no prog-
ress was going to be made."
The Union also advised the Federal mediator that the
strike situation was just a matter of days away, and that
the time was short.
The Union then caucused and developed "a nine-point,
best-offer position to be offered to the company." The
Union's proposal concluded that there would be no
change in the method of production with regard to ad-
vertising display.
With regard to section 4(f), the Union was willing to
accept the verbal proposition given by management,
which would have included the elimination of reproduc-
tion work, the elimination of the transfer clause, and
agreement to the discharge clause in the prior contract,
for the clause which the Respondent had agreed to with
the Mailers' Union.
The Union further proposed that the balance of the
noneconomic sections be the same as in the prior con-
tract, except for the provisions pertaining to discharge
and appeal, grievance procedure, and the right of substi-
tution. Abrams described the Union's position from his
viewpoint as: "Basically what we were saying then was
we wanted the jurisdiction language that we had tradi-
tionally maintained in our old agreement." The Union
further proposed a guarantee of 22 situations in priority
order. The Union also proposed that the balance of the
arbitration award would remain intact, and that the eco-
nomic sections of the agreement would be resolved on
the same basis of those agreed upon with the other
unions.
After receiving the Union's proposal, the Respondent's
representatives caucused. Following their caucus, Attor-
ney Potts told the Union that they had reviewed the
Union's proposals, and that the Respondent was interest-
ed in a continuing relationship with the Union. Attorney
Potts then gave to the Union the Respondent's proposals.
With regard to display advertising, the Respondent
proposed that they continue to perform display advertis-
ing during the course of the agreement, as they were
doing at that time.
With regard to section 4(f) the Respondent proposed
that the language of section 4(f) of the prior agreement
be eliminated from the agreement but, in the event of the
introduction of new equipment, the Union would be free
to strike.
With regard to reproduction work, the Respondent
proposed elimination of that. The Respondent proposed
that the transfer clause not only be eliminated from a
new agreement, but the Respondent wanted an affirma-
tive clause saying that the Respondent had the unlimited
right to transfer employees from one work function, or
from one classification, to another work function or clas-
sification.
With regard to the discharge section, the Respondent
continued to insist on the original proposal which the
Respondent had made on that subject.
With regard to the noneconomic issues in the agree-
ment, the Respondent said that it was willing to discuss
those issues, but the Respondent made no commitment
with regard to them.
The Respondent further proposed that there be 21
named employees in work situations, but not in priority
order.
With regard to the arbitration award, the Respondent
reiterated its previous proposal on a supplemental agree-
ment.
With regard to economic items, Attorney Potts said
that they would not treat their employees any differently
from the employees in other unions unless the Respond-
ent was forced to live up to the Eaton arbitration award,
in which case the Respondent would make a lesser eco-
nomic offer to the Union.
According to Langeliers, money was the main issue
between the parties by the time of the June 12, 1978, ne-
gotiating session. He explained that it was not a money
issue in terms of wage rates to be paid, but instead the
money issue involved: (1) lump sum severance benefits;
(2) early retirement benefits; and (3) job security provi-
sions for persons who were affected by the installation of
the new equipment.
Langeliers said that during contract negotiations be-
tween the Respondent and the Union prior to the strike
TIMES-HERALD, INC.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on June 20, 1978, the Union did not take the position
that the Respondent was attempting in any way to
change the bargaining unit.
According to Langeliers, the parties basically had
agreed on three classifications: (1) floor; (2) machinists
technician; (3) TTS, or TTS operator. Langeliers said
that both prior to and after the parties had reached
agreement on those three classifications, the Union did
not take the position that the Respondent was attempting
to change the bargaining unit.
The foregoing findings in this section are based on a
composite of the testimony given by Abrams, Olson, and
Langeliers.
5. The events between June 12 and June 16, 1978
Kenneth Prairie was one of the four memebers of the
Union's negotiating committee, and he had acted as a
spokesman when he was on that committee. The other
members of the Union's negotiating committee were
Leon Olson, Donald Abrams, and James Quinn.
According to Union Representative Abrams, Interna-
tional Representative Prairie was the spokesman at more
bargaining sessions than Local Union President Olson.
Abrams testified:
President Olson was the spokesman for the union
through many of the meetings, although those meet-
ings where the ITU representative Ken Prairie at-
tended, the ITU representative was generally the
spokesman, and on balance, I would say he was the
spokesman at more meetings than Olson served in
that role.
Melvin Anderson was one of the four members of the
Respondent's negotiating committee. The other members
of the Respondent's negotiating committee were Attor-
ney Roy Potts, Dave Caffoe, and Duane Langeliers. An-
derson had participated in all the contract negotiating
sessions prior to the strike, which occurred on June 20,
1978. Anderson missed three such negotiating meetings
subsequent to the strike. In addition, Anderson had par-
ticipated in all the board of arbitration meetings as a
member of that board. Anderson was also a member of
the joint standing committee, and he participated in all of
those meetings. On May 10, 1978, Anderson had also
participated in a subcommittee meeting which was held
among Prairie and Olson for the Union and Attorney
Potts and Anderson for the Respondent. The parties had
met with a Federal mediator on that occasion.
Between June 12 and June 16, 1978, Anderson spoke
with Prairie over the telephone with regard to a matter
unrelated to the contract negotiations between the Re-
spondent and the Union. During the course of that tele-
phone conversation, they discussed the status of the ne-
gotiations, however, and one of them suggested that it
would be a good idea if they could get together. At the
hearing, Anderson explained that he and Prairie had
worked together on quite a few other negotiations in-
volving other newspapers.
At the hearing, Anderson described the purpose of the
meeting between Prairie and him was "to find out if we
could come to an agreement, and that if we could not
come to an agreement, at least have a good understand-
ing why a strike occurred if one did occur."
Anderson told Prairie that, if they were going to have
such a meeting, Anderson would have to discuss the
matter with the Respondent and see if he would have the
authority from the Respondent to conduct a meeting of
that nature. Anderson then called Dave Caffoe, the gen-
eral manager of the Respondent, and spoke with him and
Langeliers. Anderson relayed to them the conversation
which he had with Prairie, and Anderson asked if they
would give him such authority. Subsequently, Anderson
advised Prairie that he had checked with Caffoe and
Langeliers, so that Prairie would know that Anderson
had the authority to act for the Respondent.
Langeliers confirmed at the hearing that Anderson had
the authority to speak for the Respondent in his meetings
with Prairie.
Prairie stated that he did advise Olson that he was
going to have a conversation with Anderson. However,
Prairie testified that he did not have authority to bind
the Local Union to a collective-bargaining agreement
without the approval of the Local Union.
During his examination by the counsel for the General
Counsel, Olson testified:
Mr. Prairie did tell me as an individual that he was
due to see Mel Anderson on another matter, and
did I have any objection to him exploring in a very
informal fashion what some of the issues are that
are still open, and whether there was any basis for
possibly resuming negotiations or coming to an
agreement.
I said, Well, if you are going to see him
anyway," I said, "if you think you can do in the
next two days what we haven't been able to do in
the last two years, go ahead and explore it with
him." I said, "I think it is going to be an exercise in
futility, but if you want to informally explore it
with him, go ahead."
6. The meeting on June 16, 1978
Anderson and Prairie met on Friday, June 16, 1978, in
Anderson's office. Just the two persons were present
during their meeting. They met from 9:30 a.m. until 4:30
p.m. that day.
At the outset of the meeting, Anderson told Prairie,
"This is off the record." Prairie replied, "I understand."
In addition, Anderson informed Prairie that, if no agree-
ment was reached between the two of them at their
meeting, the Respondent reserved the right to go back to
the proposals which the Respondent had given to the
Union on June 12, 1978.
Introduced into evidence as Respondent's Exhibit 2
was a copy of the notes which were made by Anderson
as he and Prairie discussed each item that day. At the
close of their meeting on June 16, 1978, Anderson gave a
copy of his notes to Prairie.
Anderson said that he gave the Respondent's position
on each item to Prairie at their meeting. Anderson did so
in accordance with his earlier discussions with General
Manager Caffoe. Anderson explained at the hearing that
Caffoe had given him certain parameters for the conduct
TIMES-HERALD, INC. 25
of those discussions. There were certain items on which
the Respondent was not willing to agree, but there were
other items on which the Respondent was willing to
make concessions.
One of those items, where the Respondent was willing
to compromise its position and to agree with the Union,
involved the jurisdiction language of the prior collective-
bargaining agreement. That item, which was section 4(a)
of the former collective-bargaining agreement, was not
listed on the items under discussion between Anderson
and Prairie on Respondent's Exhibit 2.
Anderson recalled that Prairie had indicated to him at
the meeting that the "work arrangement" language was
agreeable to the Union. Anderson testified: "I can only
tell you what Mr. Prairie told me. He said that they did
not have a problem with the work arrangement as long
as it was clear that the Company would not change its
method of doing display or classified display during the
term of the agreement."
Anderson related the discussion between Prairie and
him regarding "work arrangements." He testified:
We also had some discussions concerning work
arrangements and benefits which would accrue to
employees affected by the installation of the new
equipment on October 4th, 1976.
Mr. Prairie indicated to me that the Union did
not have a problem with the work arrangements
which had been proposed by the Company. The
only concern was that display advertising would
not be done on video display terminals. This was
not an element of the new equipment which the
Company had installed on October 4th. The Com-
pany had told the Union on countless occasions that
it did not contemplate installing that equipment that
would be able to do display advertising on display
terminals, and had proposed that during the course
of the agreement we would not install equipment
which would enable video display advertising to be
composed on video display terminals, and I told
Mr. Prairie that it really wasn't an issue, and all the
other elements of the work arrangement, I told Mr.
Prairie, and I think he recognized, he nodded, said,
"Yes, I understand" when I explained that all of the
provisions of the work arrangement that had been
negotiated so far were not dissimilar with the agree-
ments-similar agreements which had been reached
with other newspapers in the Bay Area say for that
one item of the composition of display advertising
on video display terminals.
I said the Company was not willing to mortgage
its right in the future to install that equipment in a
manner that was efficient, and that it was not an
issue in these negotiations because it was not part of
any new equipment or contemplated new equip-
ment, but that we would agree to continue to punch
display advertising as we had done in the past for
the term in the collective bargaining agreement.
And during the course of the discussions he said
that he had no problem with that. We had no fur-
ther discussions on work arrangement that day
except for those few short words on it or on the
19th.
In defining what the work arrangement proposal was,
Anderson testified: "The work arrangement proposal
[were] those elements of the supplemental agreement
which dealt with classified copy, display classified copy,
display copy, and the use of video display terminals out-
side the composing room."
According to Anderson, it was his understanding at
the meeting that the Respondent and the Union had
reached an understanding on the jurisdiction and recog-
nition provisions of a new collective-bargaining agree-
ment. During cross-examination by the counsel for the
General Counsel, Anderson further explained:
Mr. Prairie advised me, and I understood it to be
as it has been in the past, that the supplemental
agreement that they were negotiating relative to
work arrangement was a supplemental agreement to
the main agreement, and that the jurisdictional pro-
vision in the agreement would continue to apply.
However, the supplemental agreement would
contain the arrangement of how the new equipment
would be operated in the composing room so that
there would be no question between the parties as
to what the jurisdiction of the Union was in the uti-
lization of the new equipment.
Q. And as of June 16th, 1978 when you were
having this conversation with Mr. Prairie, what did
you understand to be the Employer's proposal with
respect to jurisdiction?
A. That the old contract under 4(a) would be in
the new agreement with the supplemental agree-
ment providing for the work arrangement thereun-
der.
While examining a copy of Respondent's Exhibit 2 and
a copy of the prior collective-bargaining agreement be-
tween the Respondent and the Union, Anderson testified
with regard to the Respondent's position on each item
which he and Prairie had discussed on June 16, 1978.
With regard to section (a) of the prior contract, An-
derson told Prairie that the Respondent would agree to
the provisions as set out in section (a), but the Respond-
ent strongly wanted to delete that portion which made
the contract binding upon successors of the Respondent.
With regard to section 2(a), (b), and (c), Anderson told
Prairie that the Respondent would agree to the same lan-
guage as in the prior contract.
With regard to the recognition clause in section 3(a) of
the contract, Anderson said that the Respondent would
agree to the same language as in the prior agreement.
With regard to section 3(b) of the prior contract, An-
derson said that the Respondent would agree to the same
union-security provision as set forth in the prior con-
tract.
As indicated previously, section 4(a) was not included
on the items listed in Respondent's Exhibit 2. Section
4(a) of the prior contract is under the heading, "Jurisdic-
tion" and it begins, "Jurisdiction of the Union and appro-
priate unit for collective bargaining is defined as .... "
TIMESHERALD, INC.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first subparagraph under section 4, which is listed
on Respondent's Exhibit 2, is section 4(f). Anderson told
Prairie that the Respondent would agree to the language
in the prior contract except that the Respondent wanted
to delete the language after the word "section." The op-
erative word appears in the sentence, "Should these ne-
gotiations fail to result in agreement within thirty (30)
days after notification to the Union referred to in this
section ... ." Anderson said that the Respondent would
not agree under any circumstances to arbitrate the utili-
zation of new equipment in the future as they had done
under the most recent arbitration proceeding. Prairie in-
quired whether that meant that the Union would have to
take strike action at the end of the notification period.
Anderson replied, "No," but it just meant that it was a
notification period and that the parties would negotiate
for at least 30 days. Prairie then asked if it would be all
right to extend that period of time. Anderson replied,
"Fine." Prairie then said that, if they could extend the
period by mutual agreement of the parties, that provision
might be all right. Anderson then responded that they
would state that the time may be extended by mutual
agreement. Prairie then stated, "Okay, that will be
okay."
With regard to section 4(g), Anderson told Prairie that
the Respondent would agree to the language in the prior
contract, but the benefits which had been negotiated in
the supplemental agreement would satisfy the Respond-
ent's obligations for the equipment which the Respond-
ent had installed after October 4, 1976. Therefore, sec-
tion 4(g) would have application only for future installa-
tions of new equipment.
With regard to section 4(g)(iii), Anderson proposed
the deletion of that provision from the former contract
on the basis that the provision would not have applica-
tion to employees who were to be laid off, since the Re-
spondent would not retain those employees in a situation
for 8 weeks following the scheduled layoff.
With regard to section 5, Anderson informed Prairie
that the Union's earlier proposal was agreeable to the
Respondent.
With regard to section 6, Anderson noted that the pro-
visions in the prior contract had been agreed to by the
parties on January 31, 1977.
Section 7 was stated in the prior agreement as being
"not applicable" to the Respondent's plant.
With regard to section 8(a) of the prior contract, An-
derson said the Respondent would agree to the same lan-
guage as in the old contract but, with regard to section
8(b), the Respondent would not agree to the subcontract-
ing provision of the prior contract.
With regard to section 9 of the prior contract, Ander-
son said that the Respondent would agree to the same
language as in the prior agreement.
With regard to section 10, Anderson said that the Re-
spondent would agree to the same language as in the
prior agreement.
With regard to section 11, Anderson also told Prairie
that the Respondent would agree to the same language
as in the earlier contract.
With regard to section 12(a), Anderson informed Prai-
rie that the Respondent was agreeable to the first para-
graph of that section, but the Respondent would not
agree to the status quo provisions of the second para-
graph involving the grievance procedure.
With regard to section 12(b), Anderson noted that the
Respondent had reached an agreement on that section on
March 16, 1977.
With regard to section 12(c), regarding an interim ar-
bitration provision, the Respondent had previously taken
the position that it did not want such an interim arbitra-
tion procedure in a new contract. However, at the meet-
ing between Anderson and Prairie, Anderson told Prairie
that the Respondent would agree to an interim arbitra-
tion procedure, but with a named panel of arbitrators.
Anderson and Prairie then went through a list of names
of arbitrators with whom they were familiar, and they
reached agreement on the names of the arbitrators who
are set forth on Respondent's Exhibit 2 beside Ander-
son's notes for section 12(c).
With regard to section 12(d), Anderson informed Prai-
rie that the Respondent would agree to the language of
the previous contract, but with an addition proposed by
the Respondent and paragraph (c) of Respondent's last
contract proposal. In addition, the Respondent desired
that the last paragraph of section 12(d), which pertains to
the arbitrator serving as chairman of the board of arbi-
tration and his related authority, be deleted.
With regard to section 13(a), Anderson stated that the
Respondent had wanted no reinstatement of a discharged
employee pending the resolution of the issue of his dis-
charge. However, in order to compromise, Anderson
said that the Respondent would agree to an expedited
grievance procedure in the event of the discharge of an
employee. The Respondent proposed that the fifth
member of the board of arbitration immediately render
his decision upon the presentation of the case by the par-
ties, or within 7 days from the close of the arbitration
hearing, with the exception of Saturdays, Sundays, and
holidays.
With regard to the first part of section 15 which per-
tains to the five job classifications of the slipboard, Prai-
rie told Anderson that he saw no problem with that part
of the section.
With regard to subsections 15(a) and (b), Anderson
proposed that they be deleted since the Respondent had
already introduced the cold type process, and the Re-
spondent felt that those provisions were no longer appli-
cable. Prairie expressed no problem to Anderson with
regard to that proposal.
With regard to section 16, Anderson told Prairie that
the Respondent would agree to the Union's proposal of
October 21, 1977, as it had subsequently been changed.
With regard to section 17, entitled "Claiming of Situa-
tions"; section 18, entitled "Time Work"; section 19, en-
titled "Hiring Practices"; section 20, which is untitled
but which pertains to the creation of situations; and sec-
tion 21, which is entitled "Posting of Starting Time,"
Anderson informed that the Respondent would agree to
the same language as was contained in those sections in
the former collective-bargaining agreement.
With regard to section 22, Anderson said that the par-
ties had previously agreed to changing the terminology
TIMES-HERALD, INC. 27
"extra men" to the word "extras" so as "to avoid a sexist
connotation."
With regard to section 23(a), Anderson said that the
Respondent would agree to the Union's proposal to
change the word "discharged" to "laid off."
With regard to section 23(d), Anderson told Prairie
that the Respondent would agree to the same language
as in the prior contract.
With regard to section 24(a), Anderson related that
there had been a discussion for some time between the
parties with regard to the transfer of employees. In prior
negotiating sessions, the Union had advised the Respond-
ent that the Union would agree to an unlimited transfer
right. In response to that, the Respondent had proposed
that there be a positive statement in that section that
transfers would be allowable. However, Anderson ad-
vised Prairie at their meeting that the deletion of the
transfer restrictions in any form would be agreeable to
the Respondent, and the Respondent did not require a
positive statement that transfers would be allowable.
Prairie advised Anderson that he had no problem with
that, but he just did not want to have a positive state-
ment in the section.
With regard to section 25, Anderson said that the
Company would agree to the same language as in the
prior contract.
With regard to section 26, Anderson told Prairie that
the Respondent would agree to the "MET package,"
which Anderson explained at the hearing had reference
to the money agreement negotiated between the San
Francisco Newspaper Agency, the Oakland Tribune, and
the Union. However, while Anderson told Prairie that
the Respondent would meet the MET wage package, he
said that the Respondent would pay retroactively in a
staggered period of time, such as the first half after 30
days, and the second half of the amount after 60 or 90
days.
With regard to sections 27 and 28, Anderson said that
the Respondent would agree to pay the 20-cent shift dif-
ferential which had been negotiated in the Metropolitan
agreements. Anderson said that the Respondent wanted
that 20-cent differential to become effective on ratifica-
tion of the agreement. Prairie said that it had become ef-
fective in the other negotiations on agreement of the par-
ties. Anderson then responded, "Okay, we will make it
effective on agreement."
With regard to section 29, Anderson said that the Re-
spondent would agree to the Union's proposal of Octo-
ber 21, 1977.
With regard to section 30, Anderson said that the Re-
spondent would agree to the same language as set forth
in the prior agreement.
With regard to section 31, Anderson also stated that
the Respondent would agree to the same provisions as
set forth in the prior contract.
With regard to section 32, Anderson recalled that
there was some discussion with regard to the 50-cent
shift differential, but he said it was generally agreed at
that point that section 32 would read as they had dis-
cussed.
With regard to section 33 through section 40, the Re-
spondent agreed to the language set forth in the prior
contract.
With regard to section 41, entitled "Sick Leave," An-
derson related that it was the Respondent's desire to
change the prior contract language so that only situation
holders would be eligible for sick pay. However, Ander-
son told Prairie that the Respondent would be willing to
pay situation holders, as well as employees who held pri-
ority (seniority) before December 31, 1976. As to those
employees who came to work after December 31, 1976,
the Respondent proposed that they would not be eligible
for sick pay unless those employees became situation
holders. Anderson testified "that seemed to be agreeable
with them. But it remained an item of contention be-
tween us."
With regard to section 42, entitled "Pension Plan,"
Anderson said that the Respondent agreed to the pen-
sions as proposed by the Union.
With regard to sections 43 and 44, Anderson said that
the parties had previously agreed to delete those sections
from the old contract. Anderson said that he and Prairie
just confirmed the fact that such an understanding had
been reached.
With regard to section 45, Anderson said that the lan-
guage was not in issue, and he was certain that it was the
Respondent's position that section 45 would remain in
effect.
The last page of Respondent's Exhibit 2 refers to nota-
tions made by Anderson regarding the Respondent's pro-
posal that all pending grievances would be settled by the
settlement of the collective-bargaining agreement. In par-
ticular, Anderson said that the Respondent wanted to be
withdrawn a grievance filed on March 16, 1976, relating
to the reproduction of some copy that had appeared in
the newspaper.
Anderson recalled that at lunchtime Prairie had told
him that he had to go across the street and consult with
the Union concerning what had transpired. Anderson
also recalled that at the end of their meeting on June 16,
1978, Prairie told him that he had to get back to the
union office by 4:30 p.m. because Olson was going to be
back in the office at that time, and Prairie wanted to
consult with him.
As indicated previously, Anderson gave Prairie a copy
of Anderson's notes before Prairie left the meeting. Prai-
rie suggested to Anderson that they meet again. Ander-
son said, "Fine." Prairie suggested Monday afternoon,
and Anderson again said "Fine".
Following the meeting with Anderson, Prairie went to
the union office where he told Olson that he had met
with Anderson for a period of time, and that they had
discussed the basic problems at Vallejo. Prairie asked
Olson to get some additional detailed information with
regard to the people at Vallejo. That information was
furnished in documentary form to Prairie by Olson on
June 19, 1978. A copy of that document was introduced
into evidence as Respondent's Exhibit 3.
7. The meeting on June 19, 1978
Anderson and Prairie met again on Monday, June 19,
1978. Just the two persons were present during their
TIMES-HERALD, INC.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, which began at 1:30 p.m. and lasted about an
hour and a half.
At the outset of their meeting that day, Prairie handed
a two-page document to Anderson. Prairie told Ander-
son that he thought that this was an equitable amount of
money, and how that money should be allocated to the
employees. A copy of the document was introduced into
evidence as Respondent's Exhibit 3. Under the heading
"Lump Sum Retirements" on that document, there ap-
peared 15 names. The first 14 named persons were to re-
ceive amounts of $10,000 each. The 15th person was to
receive $6,377. The total amount of money proposed for
"Lump Sum Retirements" was $146,377.
Under the heading of "Early Retirements" on Re-
spondent's Exhibit 3 there appeared three names. The
amount due for each person was $10,800. Thus, the total
amount proposed for "Early Retirements" was $32,400.
Under the heading "Severance Pay" on that docu-
ment, there appeared 12 names with various amounts due
to each person. The total amount proposed for severance
pay was $23,276.05.
The total amount of payment by the Respondent for
the above three items was $202,053.05, according to the
Union's proposal. In addition, the document proposed
$40,000 for health and welfare contributions by the Re-
spondent for the retirees or substitutes.
Anderson told Prairie that the total amount proposed
by the Union was significantly greater than the maximum
amount of cash which the Respondent had proposed.
With regard to the names under item I of Respondent's
Exhibit 3, Anderson stated that Browne and Hamilka
were deceased and, therefore, they were not affected by
the installation of the new equipment. Anderson also said
that Fitzgerald and Carnes were going to retire anyway,
so they were not affected by the installation of the new
equipment. Anderson further stated that another person
whose name appeared under item , Parker, had been
sick for 3 years, and that another person whose name
was listed under item , Stansbury, had been sick for 5
years, and they were not affected by the new equipment.
In addition, Anderson pointed out with regard to one
of the persons whose name appeared under the second
category on Respondent's Exhibit 3, Johnson, that he
had been sick for 3 years, and he was not affected by the
new equipment.
Anderson mentioned the name of another person,
Reichman, whom Anderson said Prairie had forgotten.
At the time of the hearing, Anderson could not recall
what the status of Reichman was at the time they were
discussing the document.
Anderson explained that it was the Respondent's posi-
tion that those employees who were going to retire
anyway, who had already retired, or who were sick and
had not been at the Company 4 years, should not receive
any of the money. Anderson also took the position that
Darrow was not competent in the new processes, and
the Respondent did not want to guarantee Darrow a job
or give him any money. However, subsequently during
their meeting, Anderson offered a proposal that the Re-
spondent give Darrow $5,000 if Prairie would tell An-
derson that Darrow would quit after the Respondent and
the Union signed the agreement.
Anderson said that they spent some time trying to tab-
ulate ways in which it would be possible to spend the
$150,000 proposed by the Respondent among the em-
ployees who were affected by the new equipment. An-
derson told Prairie that he would recommend to the Re-
spondent that the Respondent exceed its $150,000 maxi-
mum which the Respondent had previously proposed to
the Union, and increase the amount to $162,000 if that
amount would settle the fringe benefit aspect of the new
equipment negotiations.
Prairie told Anderson at the meeting that there were
basically eight issues open between the parties. One in-
volved the number of jobs to be guaranteed by the Re-
spondent. The Union wanted 22 such job guarantees,
whereas the Respondent said "that our 'drop dead' posi-
tion was 21."
As indicated above, a second issue involved Darrow,
whom the Union wanted to be included in the guaran-
teed employment. Anderson's response was that the Re-
spondent would not guarantee "an incompetent employ-
ee," and Anderson offered to pay Darrow $5,000 if
Darrow would submit his resignation. Anderson stated,
"The only other alternative would be to discharge the
employee for incompetency.
A third issue involved the amount of money to be paid
by the Respondent to employees who were affected by
the installation of the new equipment. The positions of
the parties with regard to the amount of money have
been set forth above concerning the discussion of Re-
spondent's Exhibit 3.
A fourth issue involved the subcontracting of work,
which the Union wanted to have deleted from the new
agreement. That provision is contained in section 8(b) of
the prior contract. (See G.C. Exh. 13.)
A fifth issue mentioned by Prairie at the June 19, 1978,
meeting involved the Union's vacation proposal. Prairie
told Anderson that the Union wanted an additional week
of vacation for the employees, so that the employees
would get 5 weeks of vacation, as had been given in the
Metropolitan agreement. Anderson pointed out that the
Union's vacation proposal had been withdrawn by the
Union in October. Anderson looked through his notes
and showed his notes on that point to Prairie. Neverthe-
less, Prairie told Anderson that it was still an area of
contention.
A sixth issue indicated by Prairie involved the pay-
ment of sick pay to substitutes. Prairie told Anderson
that the Union had real problems with the payment of
sick pay to substitutes in the manner in which Anderson
had proposed on June 16, 1978.
A seventh issue stated by Prairie involved the method
of selection of an arbitrator in the formal grievance pro-
cedure. Anderson recounted at the hearing that the Re-
spondent had previously proposed that the parties select
an arbitrator for the formal arbitration proceedings by
writing a letter to the Federal Mediation and Concilia-
tion Service and have that agency submit a panel of arbi-
trators to the parties, and the parties would select one of
them. On the other hand, the Union desired to have a
named panel of arbitrators in the agreement. Those so
named would be known to the parties and would be in
the area. Anderson had indicated that the Respondent
TIMES-HERALD, INC. 29
would agree to having a named panel of arbitrators in
the agreement for the voluntary interim arbitration pro-
ceedings. However, Anderson said that the Respondent
would not agree to having a named panel of arbitrators
for the mandatory formal arbitration proceedings. An-
derson explained that, with regard to the voluntary inter-
im arbitration proceeding, the Respondent would know
that the arbitrator would come from the predesignated
panel in the agreement, if the Respondent voluntarily
chose to invoke that procedure. However, with regard
to the mandatory formal arbitration proceedings, the Re-
spondent wanted to have an outside arbitrator who was
among a panel of arbitrators referred to the parties by
the Federal Mediation and Conciliation Service.
An eighth issue stated by Prairie at the meeting on
June 19, 1978, with Anderson involved the Respondent's
proposal with regard to the discharge of an employee.
Prairie stated that the Union could not understand why
the Respondent would agree with the Mailers Union on
a discharge provision which allowed reinstatement, but
the Respondent would not agree to that type of proce-
dure in the composing room. Prairie pointed out that the
mailers and the composing room employees of the Re-
spondent were both represented by unions which were
affiliated with the same International Union and that
they were merely subordinates of the International Ty-
pographical Union. Prairie told Anderson that the Union
could not accept a discharge provision which was differ-
ent from what they had previously had, or which was
different from the one which the Respondent had with
the Mailers Union, which provided for reinstatement.
By the conclusion of the meeting on June 19, 1978,
Anderson said that he had given to Prairie the Respond-
ent's best position on the eight remaining issues. At that
point, the Union would decide whether it would engage
in a work stoppage, and the Respondent would decide
on the basis of the eight remaining issues whether or not
to accept a work stoppage. There were no further plans
for a meeting at that time.
8. The events on June 20, 1978
Anderson was in Los Angeles on Tuesday, June 20,
1978, when he received a telephone message that Prairie
had called Anderson's office in San Francisco. At 11:30
that morning, Anderson returned the call. Prairie asked
where they were on the eight remaining issues. Anderson
replied that he had given the Respondent's best position
on those issues at their meeting, and he said, "I really
don't have anything for you, Ken, at all." Anderson then
went about his business in Los Angeles.
Later that afternoon, Anderson's supervisor, Howard
Looney, advised Anderson that Prairie had left a mes-
sage for Looney at their San Francisco office "to keep
the lines of communication open." As a result of receiv-
ing that message, Looney instructed Anderson to return
the call to Prairie. Anderson did so at 3:30 p.m. that day
at the Los Angeles International Airport. Anderson was
at the airport to catch a flight to San Francisco, which
left at 3:55 p.m.
Anderson told Prairie that he was returning Prairie's
call to Looney, and Anderson asked what was on Prai-
rie's mind. Prairie informed him that he wanted to keep
the lines of communication open, and Prairie said, "[W]e
only have about four remaining issues." Anderson was
puzzled in view of the fact that they had previously had
eight issues that morning, so Anderson asked what Prai-
rie meant about the four remaining issues. Prairie indicat-
ed that one issue was the subcontracting of work; an-
other was the amount of money which would be paid to
employees who were affected by the installation of the
new equipment, and another issue involved the method
of selection of an arbitrator under the formal arbitration
provision. Anderson was certain that Prairie mentioned a
fourth issue but, at the time of the hearing, Anderson
said that he could not recall what the fourth one was.
Anderson advised Prairie that he had to catch a plane,
and Anderson asked if he could contact Prairie when
Anderson arrived in San Francisco, and maybe they
could get together.
When Anderson arrived at the San Francisco Interna-
tional Airport, he received a page, and he spoke on the
telephone with the Respondent's general manager, Dave
Caffoe. Caffoe advised Anderson that approximately 10
minutes earlier all of the unions had gone out on strike.
Anderson explained at the hearing that under those cir-
cumstances he felt no obligation or urgency to contact
Prairie.
9. The strike
The employees of the Respondent, who were repre-
sented by the Union, went out on strike commencing on
June 20, 1978. At the time of the hearing in May 1979,
the strike was still continuing.
After the strike commenced, the Respondent contin-
ued to publish its newspaper, and the Respondent hired
permanent replacements.
10. The meeting on October 26, 1978
The first meeting for negotiations between the Union
and the Respondent, following the commencement of the
strike, took place on October 26, 1978, at Terry's Maga-
zine Street Restaurant in Vallejo. Present were Olson,
Prairie, and Abrams for the Union, but also present were
representatives from the Newspaper Guild, the Web
Pressmen's Union, the Mailers Union, and of Local 280.
The unions took the position with the Respondent that
they were negotiating for all of the unions. The Re-
spondent refused to recognize that the committee was
negotiating for any more than a single union at a time.
The Respondent contended that the negotiations on that
particular day were for the Typographical Union.
The Union made a four-point proposal which the
Union felt was a necessary part of any attempt to come
to an agreement. The first point was that all strikers have
the right to return to work for the Respondent with full
seniority rights. The second point was that all tentative
agreements, which had previously been agreed to in ne-
gotiations, would continue to be resolved as previously
agreed to. The third point was that the economic settle-
ment would be the same economic settlement for the
other newspapers in the Bay Area. The fourth point was
that any issues other than those named above would con-
tinue to be the same as in the prior contract.
TIMES-HERALD, INC.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Olson, Attorney Potts pointed out that,
when the unions went on strike, they must have contem-
plated that the Respondent would take whatever action
the Respondent felt was necessary in their own self-inter-
est. He said that the Respondent had done so by hiring
permanent replacements for the Union's members. He
said the Respondent did not intend to break the commit-
ment made to the permanent replacements when they
were hired. He said that, as a result, the Respondent
would not require that those new employees join the
Union.
Attorney Potts told the Union that, as a result of the
changed conditions due to the strike, the Respondent
was withdrawing its previous proposals on work assign-
ments. Attorney Potts stated that the Respondent had a
whole new group of employees there. Attorney Potts as-
serted that there were many changed circumstances and,
as a result, the Respondent felt that it needed to take an-
other look at all work arrangements, as they might apply
in the future.
Attorney Potts expressed the view that part of the
work arrangements which previously had been proposed
were restrictive in nature. Therefore, the Respondent
wanted to take another look at how those restrictions
might apply in light of the fact that the Respondent had
proposed guaranteed employment to 21 named persons.
He stated that those were actually more people than
were needed to produce the work in the composing
room. Attorney Potts said, as a result of that, those work
restrictions were prohibitive. (I recognize the fact that
the transcript reads "not prohibitive." However, I be-
lieve this is an error because of the context in which the
remark was made.)
Attorney Potts further said that, with replacement em-
ployees having been hired and having been offered per-
manent jobs, the Respondent was in no position to offer
guarantees to a set of other employees, the striking em-
ployees. Attorney Potts asserted that would have been
twice as many employees as the Respondent needed.
Consequently, he said the Respondent needed to recon-
sider its position.
Attorney Potts also observed that their newspaper in
Aberdeen had reached an agreement which provided for
complete flexibility for their plant, and the Respondent
expected to have the same complete flexibility at the
Times-Herald.
Subsequently, the Federal mediator at that session,
Jerry Finley, asked the Respondent if the matter of ret-
roactive wage increases was negotiable. Attorney Potts
replied, "You know that all issues are negotiable."
With regard to the arbitration award, the Respondent's
position continued to be the same as it had been previ-
ously, that is, if the Respondent was obligated to abide
by the arbitration award, the Respondent would not
make the same economic proposal to the Union, as the
Respondent was willing to make to the other unions. Ac-
cording to Olson, Attorney Potts said "that this Union
went to arbitration and found an arbitrator who would
impose the terms and conditions of the new agreement,
and, therefore, we are proposing that the effective date
of the economic settlement be the date that we agree on
it, and no retroactivity."
Olson recalled that the Respondent was not willing to
give a commitment that all agreements, which had previ-
ously been agreed to, were still agreed to at that time.
He said that Attorney Potts said he was not prepared to
respond at that time as to which items might or might
not still be agreeable.
Olson pointed out that the Respondent had never
agreed to a union-security clause in negotiations, al-
though the Respondent had agreed to it with the other
unions. Attorney Potts indicated that the Respondent did
not have to agree to anything with the Union which the
Respondent had agreed to with other unions. In addition,
Attorney Potts said that the Respondent was not going
to require the permanent replacements to join the Union.
Federal Mediator Finley, at the close of the morning
session, indicated that he would like to take up the ques-
tion of the grievance procedure following the lunch
break. After the lunch break, the parties did discuss that
subject. Attorney Potts stated that the Respondent's
main objection to the grievance procedure, as set forth in
the prior agreement, was that, when an employee was
discharged, the employee remained on the Respondent's
payroll while his appeal was pending. His second main
objection was in having a fixed panel of arbitrators,
rather than leaving the selection of an arbitrator com-
pletely open.
Olson suggested that the issues regarding the discharge
appeal procedure and the grievance procedure be taken
up separately. The Union offered to accept the grievance
procedure which the Respondent had already agreed to
with either the Mailer's Union or the Newspaper Guild.
Attorney Potts replied that proposal was not acceptable.
Olson asked, "Why not?" Attorney Potts said that the
Respondent had not had a problem with those two
unions, where the Respondent had a problem with the
Union. Olson responded that he was fairly certain that
the Respondent had probably had as many arbitrations
with the Newspaper Guild in the past as the Respondent
had with the Union. Fred Fletcher, the executive officer
of the Newspaper Guild, pointed out that their grievance
procedure did, in fact, have exactly what the Respondent
was looking for, that is, it did not have a fixed panel of
arbitrators, but instead it provided for a different method
of choosing arbitrators. Attorney Potts said that he
would have to take a look at it. The Federal mediator,
Finley, asked how long it would take for Attorney Potts
to give a response. Attorney Potts said 6 to 8 weeks.
The findings of fact in this section are based on a com-
posite of the testimony given by Olson and Langeliers.
I 11. The meeting on November 8, 1978
Federal Mediator Finley opened the bargaining session
on November 8, 1978, by indicating that the Union had
presented some proposals at the last meeting, and the Re-
spondent was to respond to them on that day.
Attorney Potts observed that the parties had discussed
at length some of the issues at the last negotiating ses-
sion. He stated that at the last session he had told the
Union that the original proposal of the Respondent for
job guarantees would cease in the event of a strike. He
also stated that the Respondent had hired permanent re-
placements, and, therefore, "it was ridiculous to talk in
TIMES-HERALD, INC. 31
terms of job security for our people who had ceased
work as a result of the strike."
With regard to work arrangements, Attorney Potts
said that he felt that the Respondent had made some
concessions previously to the Union concerning display
advertising and, at that time, their position was that they
looked at the entire question of work arrangements on
the basis of how the Respondent would want to utilize
the equipment and the greatest degree of flexibility in
utilization. Attorney Potts further stated that the Re-
spondent, therefore, looked at the jurisdiction of the
Union on the basis that the Board does; namely, the
Union as representing employees, and not as representing
work.
Attorney Potts went on to say that, if the Respondent
reduced the number of employees in the composing
room, the Respondent might, as a result, increase em-
ployment in the editorial department, advertising depart-
ment, etc., although the Respondent would expect to
have a reduction in its total employment. Olson then
asked, "Your position, then, is that you have withdrawn
all the previous proposals for a supplemental agree-
ment?" According to Olson, Attorney Potts said, "Our
proposal that we have made this morning is a substitute
for all previous proposals for supplemental agreement."
Olson asked Attorney Potts about sections which had
previously been tentatively agreed to, and Attorney
Potts replied that he would have to take a look at them,
but he added, "It is not our intent to withdraw every-
thing." Olson then asked about other sections which had
not been previously agreed to, and Attorney Potts re-
plied that without looking and referring to each individu-
al section, the Respondent's position would probably be
the same as their position was on January 1, 1977.
Olson said that the November 8, 1978, meeting be-
tween the Union and the Respondent was the last meet-
ing between the parties.
G. Conclusions
In its Decision in Taft Broadcasting Co., WDAF AM-
FM TV, 163 NLRB 475, 478 (1967), the Board has de-
scribed a bargaining impasse as follows:
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
In enforcing the Board's Order in Taft Broadcasting
sub nom. American Federation of Television and Radio Art-
ists, AFL-CIO, Kansas City Local v. N.L.R.B., 395 F.2d
622, 628-629 (1968), the United States Court of Appeals
for the District of Columbia Circuit stated:
It is indeed a fundamental tenet of the act that even
parties who seem to be in implacable conflict may,
by meeting and discussion, forge first small links
and then strong bonds of agreement. But some bar-
gaining may go on even in the presence of dead-
lock. Here the continued meetings and occasional
progress-facts by no means immaterial-were
overborne in the Board's view by the conceded im-
passe on the critical issues of staff assignment on
which the progress had been "imperceptible" and,
indeed, had led in some aspects, each party claimed,
to a widening of the gulf between them. As we see
it, the Board's finding of impasse reflects its conclu-
sion that there was no realistic possibility that con-
tinuation of discussion at that time would have been
fruitful. The Board was justified on the record in
concluding that, as of December 4, the prospects of
reaching an agreement had been exhausted, and the
Company had discharged its statutory obligation to
conduct full and fair discussions with the Union.
In a collective-bargaining agreement, a recognition
clause which does not deal with wages, hours, and other
terms and conditions of employment has been found not
to be a subject of bargaining mandated by the Act. Ac-
cordingly, bargaining to an impasse with regard to such
a nonmandatory subject of bargaining would be violative
of Section 8(a)(1) and (5) of the Act. See the Supreme
Court's opinion in N.L.R.B. v. Wooster Division of Borg-
Warner Corporation, 356 U.S. 342 (1958).
Further guidance in considering the issues raised by
the pleadings in this case is found in the Board's Deci-
sion in National Fresh Fruit & Vegetable Company and
Quality Banana Co., Inc., 227 NLRB 2014 (1977), en-
forcement denied 565 F.2d 1331 (5th Cir. 1978). The
Board, inter alia, set forth two "controlling factors" to
be considered in these circumstances. The Board stated
at 2015: "[T]he controlling factors in determining wheth-
er a party insisted unlawfully upon a subject in the
course of bargaining are () whether the demand was on
a mandatory or voluntary subject of bargaining and (2)
whether the insisting party persisted in demanding the
nonmandatory provision in the face of continuing rejec-
tion by the other party."
On another point, but a point which also is in issue in
this case, the Board held in National Fresh Fruit, supra,
at 2017: "It is well established by Board and court prece-
dent that a strike is an unfair labor practice strike if only
one cause, even if not the primary cause, was the em-
ployer's unfair labor practice, notwithstanding the pres-
ence of economic issues."
In his Decision affirmed by the Board in World Pub-
lishing Company, 220 NLRB 1065 (1975), Administrative
Law Judge Paul E. Weil stated at 1071:
The fact is the law requires that the Employer shall
bargain in good faith with an intention to reach a
contract and history has shown that the ultimate
terms of the contract normally depend on the
"muscle," which is to say the economic power, of
one party over the other. During the years that
newspapers could not publish without the expertise
of the composing room employees represented by
the Charging Party, the Charging Party was able to
get contracts that were extremely favorable to it;
contracts that, like the 1972 contract, removed from
TIMES-HERALD. INC.
32 DF.CISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer any right to determine who its em-
ployees should be and contracts that provided for
the reproduction of material which came into the
employer's hand ready for publishing. But there is
no law that says that when economic power shifts
from the Union to the employer that the employer
cannot retrieve some of the economic benefits that
it lost in the prior contracts. That is the situation
here. With the introduction of the scanner, the Em-
ployer was for the first time physically able to pub-
lish a newspaper without the expert services of the
ITU members, particularly in rnning its linotype
operation, and other hot metal processes. With the
growing automation in the newspaper industry, Re-
spondent had achieved no-strike clauses in its con-
tract with other unions which enabled it to limit the
industrial battlefield to the members of the ITU.
All of the attorneys for the parties cite in their respec-
tive briefs the Board's Decision in Columbia Tribune
Publishing Co., 201 NLRB 538 (1973). Understandably,
the attorneys view that case from different perspectives.
In that case, the Board concluded that the newspaper in-
volved therein, inter alia, had refused to incorporate a
description of the appropriate unit represented by the
union in a contract, and thereby violated Section 8(a)(5)
of the Act. In reaching that conclusion, the Board noted:
"The Administrative Law Judge has found, and we
agree, that the composing room unit is an appropriate
unit for the purposes of collective bargaining and that
the conversion by the Respondent of this operation from
a hot metal to a cold type process neither impaired the
appropriateness of the unit nor the union's representative
status."
The Board had occasion to comment on and to apply
the Columbia Tribune case in the Board's Decision in
Newspaper Printing Corporation, 232 NLRB 291 (1977).
The Board held:
In Columbia Tribune, as here, the jurisdiction-unit
clause was the major obstacle to agreement in nego-
tiations. The respondent there was found to have
precluded good-faith bargaining by refusing to in-
clude the traditional jurisdiction-unit clause of prior
contracts; both its asserted need for flexibility in
changing from hot to cold type and the fact that ju-
risdiction and unit definition were combined in one
clause 3 were rejected as defenses.
As in Columbia ltbune, we find the traditional composing
room unit as set out i fn I of the Administrative Law Judge's
)Decision to he appropriate flr the purposes of collective-bargain-
ing and further find that neither the appropriateness of the unit nor
the Union's representative status is affected by the change from hot
to cold type
The attorney for the Charging Party succinctly stated
in his brief with regard to the problems resulting from an
employer's introduction of new equipment and the legal
obligation of the parties:
Plainly, the introduction of equipment which in-
vites a crossing over of traditional jurisdiction
boundaries presents issues of a highly sensitive and
emotional nature. Bargaining unit employees and
their representative neither desire to lose jurisdic-
tion nor jobs. The employer, on the other hand,
wants the full efficiency value of his investment.
These opposing interests present problems which
under the Act are to be worked out through good
faith negotiations. Although concession is not re-
quired to achieve good faith bargaining, it is equally
true that neither party, consistent with its good faith
obligation, is free to subvert the bargaining process
by insisting to impasse that the dispute be resolved
by reserving to it the unilateral right to determine
the scope of the bargaining unit.
With those guiding Board and court precedents in
mind, I turn now to applying the legal principles to the
particular facts in this case. As indicated at the outset of
this Decision, the General Counsel's complaint is specific
in alleging the particular conduct of the Respondent,
which the General Counsel asserts constitutes unfair
labor practices. Those allegations are specifically drafted
and set forth in paragraph 8, subparagraphs (a) and (b),
of the General Counsel's complaint. Note that the Re-
spondent's refusal to bargain in good faith is specifically
alleged to be "by the following acts and conduct,"
which are then described with particularity in subpara-
graphs (a) and (b). While surrounding facts and circum-
stances are to be considered to place the issues in con-
text, it is only by the particular conduct described in sub-
paragraphs (a) and (b) that the Respondent is alleged by
the General Counsel to have violated Section 8(a)(l) and
(5) of the Act.
Without repeating here the numerous matters already
set forth in the findings of fact, it can be seen that repre-
sentatives of the Union and representatives of the Re-
spondent met many times in negotiating sessions for a
supplemental agreement and for a new collective-bar-
gaining agreement. The parties differed with respect to
many of their initial proposals and with respect to many
of their subsequent proposals, but the evidence also
showed that there were areas of agreement between the
parties.
Nevertheless, as has been set forth above, the issue
presented by the pleadings in this case is not whether the
Respondent engaged in what has been termed in earlier
Board cases to be "surface bargaining," or an overall
lack of good faith in its negotiations with the Union.
Rather, the issues here are precisely framed by the plead-
ings.
Of course, the issues have been weighed and consid-
ered in the context of the extensive findings of fact pre-
viously set forth. That has been done in order to com-
prehend the facts and circumstances surrounding the
conduct which is alleged by the General Counsel to con-
stitute unfair labor practices. Therefore, the General
Counsel's allegations have not been considered in isola-
tion but, instead, those contentions have been evaluated
in the context of the other events, which are not alleged
to be unlawful.
The meetings between Anderson and Prairie on June
16 and 19, 1978, are significant in analyzing the conten-
tions of the parties.
TIMES-HERALD, INC. 33
Anderson's authority to speak on behalf of the Re-
spondent in presenting the Respondent's proposals at
those meetings was established.
Prairie had previously attended numerous negotiating
sessions held between the Union and the Respondent. In
fact, Prairie had acted as the Union's spokesman during
many of those bargaining meetings. Note that Abrams
recalled that International Representative Prairie had
been the Union's spokesman at more bargaining sessions
than even Local Union President Olson. It cannot be
overlooked that Prairie entered into his meeting on June
16, 1978, with Anderson after having informed Olson of
his plan to do so, and after having received Olson's ac-
quiescence in Prairie's efforts.
Thus, the fact that Prairie could not have concluded a
contract without the approval of the Local Union does
not detract from the fact that Prairie was, at the very
least, an agent of the Union for receiving the Respond-
ent's proposals on June 16, 1978.
The fact that the discussions between Anderson and
Prairie were "off the record" does not preclude consid-
eration of what was said during those discussions.
In a different context, the Board found an "off the
record" conversation between an employer's labor rela-
tions manager and a union representative with regard to
a proposed reorganization plan and a reduction in force
to constitute adequate notice to the union of the contem-
plated changes even though the labor relations manager
had told the union representative that his telephone call
was "off the record." Globe-Union, Inc., 222 NLRB 1081
(1976).
Notwithstanding the positions which had been ad-
vanced during earlier bargaining sessions, the Respond-
ent made a concession on June 16, 1978, when Anderson
stated the Respondent's willingness to agree to the lan-
guage of section 4(a) from the prior contract.
In light of the Respondent's movement on that issue
and concession, can it be fairly said that the Respondent
"has insisted to impasse that the Union agree upon a
modification of the unit-jurisdiction clause of the collec-
tive bargaining agreement?" (See par. 8(a) of the General
Counsel's complaint.) The answer to that question must
be no, because the Respondent changed its position on
June 16, 1978, and offered to agree with the Union to
the language from section 4(a) of the prior contract.
In those circumstances, I conclude that a preponder-
ance of the evidence does not support the allegations
specified in paragraph 8(a) of the General Counsel's
complaint. Accordingly, I must recommend to the Board
the dismissal of those allegations.
Returning for the moment to the Decision of Adminis-
trative Law Judge Weil in World Publishing, he conclud-
ed, 220 NLRB at 1072:
I reject the General Counsel's argument and find
that Respondent at all times negotiated with the in-
tention of reaching a contract if it could, although it
surely engaged in hard bargaining in every sense of
the word. Respondent was willing to take a strike
to achieve its primary purpose of operating the
composing room according to its concepts of effi-
ciency and it is no violation of law for it to capital-
ize on its ability to restructure the activities in the
composing room to more economical standards.
In examining the allegations contained in paragraph
8(b) of the General Counsel's complaint, it is clear from
the testimony of both Union President Olson and Re-
spondent Business Manager Langeliers that the Respond-
ent withdrew on October 26, 1978, its previous proposals
regarding job guarantees and work arrangements. While
other topics were brought up at that meeting, the testi-
mony given by Olson and Langeliers establish that it was
the Respondent's prestrike proposals which were with-
drawn at that time.
The reason advanced by the Respondent was a change
in circumstances, which had resulted from the Union's
strike and the Respondent's hiring of permanent replace-
ments. It is noted that the October 26, 1978, negotiating
session was the first one held between the Union and the
Respondent subsequent to the strike which had com-
menced on June 20, 1978. It was not contested as to
whether the Respondent had, in fact, hired permanent
replacements for the striking employees.
Given these circumstances, does the evidence show
that the Respondent withdrew its prestrike proposals on
job guarantees and work arrangements in order "to pre-
vent agreement between Respondent and the Union," as
alleged in paragraph 8(b) of the General Counsel's com-
plaint? I conclude that a preponderance of the evidence
does not establish that the Respondent was so motivated.
I recognize the fact that job guarantees and work ar-
rangements were not the only issues separating the par-
ties at that time and preventing them from reaching an
agreement. More importantly, however, I conclude that:
(1) the reasons advanced by the Respondent for its with-
drawal of its prestrike proposals have a basis in fact, that
is, the occurrence of the strike and the hiring of perma-
nent replacements; (2) the evidence does not otherwise
establish that the Respondent's reasons given to the
Union were false or a sham; and (3) the evidence does
not prove that the Respondent withdrew those prestrike
proposals to prevent the parties from reaching agree-
ment.
Under the circumstances present in this case, the Re-
spondent's statements at the October meeting were not
"negotiation in reverse" as described in Harry R. Pickett
and Eva M. Pickett d/b/a F & J Wire Products Co., 174
NLRB 340 (1969).
Accordingly, I must recommend to the Board the dis-
missal of the allegations set forth in paragraph 8(b) of the
General Counsel's complaint.
Since the Respondent has not engaged in the unfair
labor practices alleged in paragraphs 8(a) and (b) of the
General Counsel's complaint, the strike which com-
menced on June 20, 1978, cannot be found to have been
either caused by, or prolonged by, those alleged unfair
labor practices. Accordingly, I conclude that a prepon-
derance of the evidence does not establish the allegations
set forth in pa.agraph 9 of the General Counsel's com-
plaint.
TIMES-HERALD, INC. 3
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices which are alleged in the General Counsel's
complaint in this proceeding for the reasons which have
been set forth above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 1
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.