The Herald Statesman

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