Leavenworth Times

THE LEAVENWORTH TIMES The Leavenworth Times, A Division of Thomson Newspapers, Inc. and Leavenworth Typographical Union, Local No. 45, affiliated with International Typographical Union, AFL-CIO. Cases 17-CA- 7077 and 17-CA-7100 February 3, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On March 14, 1977, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, The Leavenworth Times, a Division of Thom- son Newspapers, Inc., Leavenworth, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(b): "(b) Reinstitute the wages and salary review and/or merit increase program formerly in effect and apply it retroactively from on or about January 1, 1976. Further make the employees in the bargaining unit whole by paying to them the difference, if any, between their actual wages and salaries and the wages and salaries they would have received had the I We note, however, that Respondent is correct that the decertification petition was filed on April 2, 1976, rather than April 22, 1976, as the Administrative Law Judge stated. 2 Contrary to our dissenting colleague, we do not find merit in the General Counsel's exceptions to the failure of the Administrative Law Judge to order the extraordinary remedies requested by the General Counsel in the instant case and thus decline to grant the same for the reasons set forth in Crystal Springs Shirt Corporation, 229 NLRB 4 (1977). Therein, the majority reaffirmed their adherence to the principle expressed in Tiidee Products, Inc., 194 NLRB 1234, 1236 (1972), that the Board, in appropriate circumstances, is capable of providing other than the usual remedial relief in order to rectify particular unfair labor practices. However, we do not find that the facts of the instant case warrant any of the extraordinary remedies the General 234 NLRB No. 99 wage and salary review merit increase program not been suspended during the above period, together with interest as prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER MURPHY, dissenting in part: I agree with my colleagues' adoption of the Administrative Law Judge's findings and conclusions that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union; by engaging in a course of surface bargaining with a fixed intent to avoid reaching agreement with the Union; by unilaterally abandoning its established practice of granting semiannual wage reviews and wage increases to unit employees; and by refusing to furnish the Union with requested information con- cerning its sick leave policy covering the bargaining unit employees. Unlike my colleagues, however, who merely adopt without comment the Administrative Law Judge's recommended standard Order, I agree with the General Counsel's contention that an extraordinary remedy is warranted here to correct the egregious violations committed by Respondent. In so finding, I rely not only on Respondent's outrageous conduct at the bargaining table here, but also on the fact that Respondent's parent corpora- tion, Thomson Newspapers, Inc., which guides its labor relations, has demonstrated a proclivity to violate Section 8(a)(5) of the Act, as evidenced by two relatively recent Board decisions finding that two other subsidiaries of Thomson Newspapers had committed violations similar to those herein.4 The Administrative Law Judge, in his findings adopted herein, concluded that Respondent entered the bargaining sessions without any intention of reaching an accord with the Union. Rather, he found that Respondent's conduct and concept of bargain- ing evidenced a strong inclination to frustrate the Union and to avoid reaching agreement with it. Thus, at the very outset of the negotiations, shortly after the Union was certified, Respondent's general manager and publisher, J. H. Johnston III, made it clear to the Union that Respondent intended to Counsel requests; therefore, we adopt the remedy recommended by the Administrative Law Judge. As in Crystal Springs, while Respondent's conduct was ultimately determined to have been in bad faith, we do not feel, on the facts as presented, that its behavior was so egregious, nor its defenses so frivolous, that the usual remedies provided by the Administrative Law Judge are inadequate or will fail to remedy entirely the unfair labor practices found. 3 Interest will be calculated according to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. We shal modify the recommended Order and notice accordingly. 4 Dothan Eagle, Inc., a subsidary of Thomnon Newspapers, 174 NLRB 804 (1969), enfd. 434 F.2d 93 (C.A. 5, 1970); The Adrian Daily Telegram, a Division of Thomson Newspapers, Inc., 214 NLRB 1103 (1974). 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue to operate its business with the fewest possible restraints on its management prerogatives. Respondent's conduct during the ensuing 20 bargain- ing sessions between October 29, 1974, and March 22, 1976, was aimed at implementing this objective and, as the Administrative Law Judge found, verged on a demand that the Union virtually abdicate its role as the employees' exclusive bargaining represen- tative. Respondent's posturing and charading at the bargaining table are fully documented by the record and recounted in the Administrative Law Judge's Decision which we adopt. Thus, for example, Re- spondent engaged in protracted haggling over the recognition clause and sought even to limit the scope of the bargaining unit in which the Union was certified. Respondent adamantly declined to discuss the important economic issues until all nonmonetary matters were disposed of, thereby eliminating areas in which compromises could have been reached. With respect to economic matters, Respondent insisted on sole discretion in such areas as the amount of scheduling of vacations, sick leave, com- pensation for business expenses, leaves of absence, etc. Respondent's only substantive proposal with respect to wages came after 19 bargaining sessions and was silent on such matters as sick leave, pensions, life insurance, or hospital benefits. Respon- dent's proposal provided, in effect, that the employ- ees continue to receive what they had been getting in terms of wages and benefits, and that any increases beyond that would be subject to the Employer's own review and discretion. In addition, Respondent's contract proposal contained a zipper clause and a broad management rights clause which, when viewed against Respondent's proposed elimination from the contract of many of the benefits which the employees presently enjoyed, offered little or no assurance to employees as to their basic conditions of employ- ment and effectively excluded the Union from bargaining about such conditions. Thus, it is evident that Respondent intended to continue to operate as it had before the employees selected the Union to represent them. Further indicative of Respondent's hostile attitude toward bargaining was its unilateral withholding from unit employees of their semiannual wage reviews and merit increases in January 1976, a time when Respondent adamantly refused even to discuss wages with the Union. Respondent defends this action as a justifiable use of economic power, which was admittedly undertaken as a tactical bargaining tool in order to expedite agreement upon a contract, particularly with respect to wages and salaries. How 5 See fn. 4, supra. 6 International Union of Electrical, Radio and Machine Workers, AFL- CIO [Tiidee Products, Inc.] v. N.LR.B., 426 F.2d 1243, 1249 (C.A.D.C., 1970). Respondent could lawfully expedite a contract over items it had refused even to discuss is beyond my ken. Also indicative of Respondent's bad faith was its refusal to furnish the Union with information regarding its sick leave policy, a subject over which Respondent also insisted on sole discretion. Indeed, while stating that certain criteria were utilized in its past sick leave policy, it declined to furnish the Union with information concerning such criteria assertedly on the ground that no such information was available. The Administrative Law Judge prop- erly characterized Respondent's conduct in this respect as constituting gamesmanship. In view of all of the foregoing, the conclusion reached by the Administrative Law Judge and adopted herein is inescapable that Respondent delib- erately undertook a course of conduct aimed at frustrating the bargaining process and at avoiding agreement with the Union while, at the same time, giving the impression of bargaining. That the forego- ing conduct was not the result of Respondent's innocence or inexperience with the requirements of Section 8(a)(5) and 8(d) of the Act is amply demon- strated by the fact that Respondent has engaged in substantially similar conduct, with substantially simi- lar consequences, in the relatively recent past.5 Indeed, in the early stages of bargaining here, Respondent was represented at the bargaining table by the same person, James Baysinger, who represent- ed it in Dothan Eagle, supra. Although my colleagues adopt all of the findings and conclusions made by the Administrative Law Judge, they decline to provide a meaningful affirma- tive remedy and, in so doing, abdicate their responsi- bility under Section 10(c) of the Act. Simply to return the parties to the bargaining table, without more, as my colleagues do, not only allows Respondent to continue the farcical charade in which it has become adept, but also allows Respondent to reap the benefits of its gross misconduct. It is well settled that the obligation of collective bargaining is at the core of the Act and is the primary means fashioned by Congress for securing industrial peace. 6 In Section 10(c) of the Act, Congress "charg- e[d] the Board with the task of devising remedies to effectuate" this policy objective.s The Board's "affir- mative action" remedies are designed "to restrain violations and as a means of removing or avoiding the consequences of violations where those conse- T N.LR.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, 346 (1953). 650 THE LEAVENWORTH TIMES quences are of a kind to thwart the purposes of the Act."8 By removing the gains and compensating the losses that result from the unfair labor practice, the Board seeks "restoration of the situation, as nearly as possible, to that which would have obtained but for" the unlawful conduct.9 Such a restorative remedy may properly exert a deterrent or restraining influ- ence on further violations.10 In enacting Section 10(c) Congress clearly could not "define the whole gamut of remedies to effectuate these [statutory] policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adapta- tion of means to end to the empiric process of administration."1 In fashioning specific remedies to fit specific wrongs "the Board must draw on enlight- enment gained from experience." 12 My colleagues here, and in like situations,' 3 have ignored the foregoing basic principles. I believe that an appropriate affirmative remedy here must not only direct the parties back to the bargaining table with a mandate to bargain in good faith, but must attempt to restore the status quo ante as much as possible and act as a deterrent against future viola- tions of a similar kind. Thus, I would require that Respondent reimburse the Union for all of its bargaining expenses incurred during Respondent's duplicitous bargaining charade. For such masquer- ading at the bargaining table as occurred here is possibly even more destructive of the employees' rights under the Act than an employer's outright refusal to bargain as occurred in Tiidee Products Inc., 194 NLRB 1234 (1972). By engaging in such con- duct, Respondent not only demoralized the employ- ees and weakened the Union's strength by undermin- ing it in the eyes of the employees, but it also depleted the Union's treasury. For the same reason, I would require Respondent to reimburse the Union and the Board for all litigation expenses incurred as a result of its blatant unfair labor practices. Such a remedy, in my experience, will serve as a substantial deterrent against future violations and, in my judg- ment, is consistent with the Supreme Court's pro- nouncements as to the extent and meaning of the Board's obligation under Section 10(c) of the Act. Additionally, in order to assure that our bargaining order is carried out, I would require that such bargaining begin promptly upon the Union's request; that, at the Union's request, Respondent meet for a minimum of 15 hours per week until agreement is reached or a lawful impasse is reached; that Respon- dent consent to the presence of a representative from the Federal Mediation and Conciliation Service if the Union so requests; and that Respondent prepare written bargaining progress reports every 15 days and submit them to the Regional Director for Region 17, with true copies thereof to the Union. Considering the nature and extent of the violations found here and their devastating effect on the employees, as well as Respondent's past commission of similar violations, I think the foregoing remedy is fully justified. 8 Consolidated Edison Co. v. N. LR.B., 305 U.S. 197, 236 (1938). See also Fibreboard Paper Products Corp. v. N.LRB., 379 U.S. 203, 215-217 (1964); Virginia Electric Power Co. v. N.LR.B., 319 U.S. 533, 539-540, 543-544 (1943). 9 Phelps Dodge Corp. v. N.LRB., 313 U.S. 177, 194(1941). 10 N.LR.B. v. J. H. Rutter-Rex Manufacturing Conpany, Inc., 396 U.S. 258, 265 (1969). " Phelps Dodge Corp. supra at 194. 12 Seven-Up Bottling Co., supra at 346. 13 See, e.g., Betra Manufacturing Company, 233 NLRB 1126 (1977). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportu- nity to present their evidence it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order and abide by the following: WE WILL NOT refuse to bargain with Leaven- worth Typographical Union, Local No. 45, affili- ated with International Typographical Union, AFL-CIO, by refusing to give the Union informa- tion concerning the names of employees in the unit below who have received paid or unpaid sick leave, the dates and duration of said sick leave for the period of 2 years prior to March 22, 1976, and WE WILL provide said information. WE WILL NOT refuse to bargain with the above- named Union by unilaterally discontinuing the merit and salary wage review and/or merit increases for the employees in the unit below, without prior notice to, or bargaining with, the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively concerning rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment with Leavenworth Typographical Union, Local No. 45, affiliated with International Typo- graphical Union, AFL-CIO, as the exclusive representative of all the employees in the appro- priate unit described below and, if an agreement is reached, embody in it a signed contract. The appropriate unit is as follows: 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time news- room department employees employed at the Employer's 418-26 Seneca Street, Leav- enworth, Kansas, facility, including editors, reporters, staff writers and photographers, but excluding the general manager, manag- ing editor, office clerical employees, and guards, professional employees and supervi- sors as defined in the Act, and all other employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. WE WILL reinstitute the merit wage and salary review and/or merit increase program formerly in effect and apply it retroactively from on/or about January 1, 1976, by paying the employees in the above-described unit the differences, if any, be- tween their actual wages and salaries and the wages and salaries they would have received during the above period, together with interest. THE LEAVENWORTH TIMES, A DIVISION OF THOMSON NEWSPAPERS, INC. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge: This case was heard on August 30 and 31 and September 1, 2, 27, and 29, 1976, in Kansas City, Kansas, pursuant to charges duly filed and served and a complaint which issued in Case 17-CA-7100 on June 4, 1976, a complaint which issued in Case 17-CA-7077 on July 16, 1976, and an order consoli- dating cases which issued on July 19, 1976. The consolidat- ed complaint presents questions as to whether Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. In its answer Respondent conceded certain facts with respect to its business opera- tions but denied all allegations that it committed any unfair labor practices. At a hearing, all parties were represented by counsel. All were given full opportunity to examine and cross-examine witnesses and to file briefs. On November 29 and Decem- ber 1, 1976, all parties submitted briefs. Respondent's unopposed motion of December 1, 1976, to correct the transcript is hereby granted. Upon the entire record in the case, including the briefs of counsel, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a corporation engaged in the operation of a newspaper business at its Leavenworth, Kansas, facility. In the course and conduct of its business at that facility Respondent has an annual gross volume of business in excess of $200,000, and subscribes to interstate news services, runs nationally syndicated features, and advertises nationally sold products. Respondent concedes and I find that The Leavenworth Times, a Division of Thomson Newspapers, Inc.,l herein called Respondent, is engaged in commerce within the meaning of the Act. II1. THE LABOR ORGANIZATION INVOLVED Leavenworth Typographical Union, Local No. 45, affili- ated with International Typographical Union, AFL-CIO, herein the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequences of Events- Case 17-CA-7077 The Leavenworth Times was acquired by Thomson Newspapers, Inc., in 1967 and since that date has operated as a division thereof. The general manager and publisher of Respondent is J. H. Johnston III. The Union and Respon- dent have maintained a collective-bargaining relationship for many years with respect to the terms and conditions of employment of Respondent's pressroom and composing room employees. On August 13, 1974, the Board, in Case 17-RC-7472, issued a Decision and Certification of Repre- sentative wherein the Union was designated as exclusive bargaining representative of the following appropriate unit: All full-time and regular part-time newsroom depart- ment employees employed at the Employer's 418-26 Seneca Street, Leavenworth, Kansas, facility, including editors, reporters, staff writers and photographers, but excluding the general manager, managing editor, office clerical employees, and guards, professional employees and supervisors as defined in the Act, and all other employees. The parties engaged in collective-bargaining meetings commencing in October 1974 and carried on intermittently through March 22, 1976. On April 22, 1976, a decertifica- tion petition was filed by Stephen L. Sigafoose, an individual, in Case 17-RD-608. On April 6, 1976, the Regional Director for Region 17 issued a notice of a representation hearing to be held on April 15, 1976. On April 14, 1976, the Regional Director issued a telegraphic order postponing the hearing in Case 17-RD-608 indefi- nitely. On August 26, 1976, the Regional Director dis- I Respondent's name appears as corrected at the hearing. 652 THE LEAVENWORTH TIMES missed Case 17-RD-608 inasmuch as he had issued the complaint herein. The complaint in Case 17-CA-7077 alleges that Respondent violated its obligation under the Act to bargain in good faith with the Union by (a) engaging in a course of surface bargaining since October 12, 1975, (b), commencing on or about October 12, 1975, and particularly on November 6, 1975, and February 26, 1976, failing and refusing to furnish the Union with information concerning the sick leave policy covering employees in the unit set forth above (herein the newsroom unit), and (c) by unilaterally limiting its semiannual granting of wage reviews and wage increases to nonunit employees on or about January 1, 1976, thereby withhold- ing wage increases from those employees represented by the Union in the newsroom unit which they would otherwise have received under an established practice of the employer. B. Bargaining History Preceding the 10(b) Period of October 12, 1975 During the period preceding October 12, 1975, 13 collective-bargaining sessions were held on the following dates: October 29, 1974; November 21, 1974; December 14, 1974 April 14 and 15, 1975; May 27 and 28, 1975; June 25 and 26, 1975; July 31, 1975; August 13 and 14, 1975; and October 9, 1975. At the time that the Union was certified as collective- bargaining agent for the newsroom unit on August 13, 1974, the parties were engaged in negotiations of a new composing-pressroom contract.2 Paul French, the presi- dent of Local 45 since 1965, was a participant on behalf of the Union in the composing room negotiations. In late August or early September 1974, he had prepared the initial union proposal with respect to the newsroom unit and had submitted that proposal to Johnston at one of the mechanical unit bargaining sessions. This was done with- out comment and French conceded that he was preoccu- pied with the mechanical unit negotiations, but that he did write to the International headquarters of the Union and requested a representative to assist the Local Union in the bargaining of the initial newsroom contract. Bargaining continued on the mechanical unit contract until agreement was achieved on October 25, 1974. Subsequently, three meetings were held pursuant to a mutual agreement of both the Union and Respondent on October 29, November 12, and December 4, 1974. James Baysinger, industrial rela- tions representative for the Thomson papers who partici- pated in the mechanical unit negotiations, suggested to French that negotiations for the newsroom unit should be initiated by the local representatives of the parties. Accord- ingly, with French's agreement, the first three meetings were negotiated in the absence of a representative either from the International Union or from the Thomson papers. The union negotiating team was headed by French who had no experience in negotiations with respect to a newsroom unit. He was assisted by employee Bordon, a member of the mechanical unit, and employees Williams 2 Otherwise referred to as the mechanical contract. 3 The concept of priority was never fully defined by any representative of the Union, however. French testified that priority constitutes that "length of time which an employee serves in a specific situation, i.e., that he lays and McGrath, members of the newsroom unit. The Employer was represented by Johnston with the assistance of Ted Anderson, the managing editor. French viewed these meetings as a "familiarization," that is, the parties reviewed the Union's proposals and French attempted to explain the Union's proposals. French testified that no "in- depth" discussions took place. French conceded that questions were put to him by Johnston and that he was not able to give immediate explanations, but that he deferred to later dates for further explanation. French conceded that at least in one instance he did not understand the language of the union contract. He had, however, sometime before December 9, contacted International Representative James Wood by telephone for guidance. Johnston suggested that pursuant to the procedure followed in negotiating the mechanical contract the parties would not discuss econom- ics until they had discussed the noneconomic aspects of the contract. French agreed. He stated that in any event it would take "quite a while to get through the written language." At no time during these meetings did French ask for any counterproposal from Respondent. The union proposal was derived from language used in other con- tracts including nonnewsroom contracts. It is Johnston's credible and uncontradicted testimony that when each section of the union proposal was reviewed, he (Johnston) indicated the problems that Respondent had with the Union's proposals. Particularly, Johnston was concerned about the impact of the proposal, which he considered to be inappropriate for a small newspaper. There are only seven employees in the appropriate unit. Thus, Johnston expressed his opposition to the dues-checkoff proposal. Dues checkoff was not contained in the mechanical contract. He objected to the proposal that a 120-day notice be required before installation of new equipment, which he considered to be too restrictive; to the proposals with respect to the photoengraving and advertising deadlines, which he considered to be not within the purview of the certified unit; to the proposal that someone other than the photographer develop their photographs; to the overtime proposals, which he considered to be restrictive on man- agement prerogatives; to the contractual reference to "priority"; 3 to the shift concept set forth in the union contract, which he considered unrealistic in light of the unscheduled nature of news events; to the lunch period concept, which he considered inflexible in light of the contingencies of the newsroom operation; to the nondiscri- mination clause, which he viewed as an aspersion of his integrity; to the proposal regarding the joint standing committee in determining "competency," inasmuch as he contended that mechanical unit members were not able to judge the competency of a newsroom employee; to the reinstatement provisos, which he considered not applicable in a small paper where employees who have left the employment of a paper usually leave town to find employ- ment elsewhere; to the nondiscrimination with respect to sex proviso, which he felt would be inappropriate because certain positions, such as the editor of the woman's page, competency, to which gives certain rights to his length of service in that particular job." It is not defined in the contract, and it is not seniority. French admitted on cross-examination that priority is whatever Local 45 determines it to be. 653 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be filled by a male; to the physical exam proviso, wherein he contended that management should have the option of making such a requisite; to the proviso on training, wherein he envisioned difficulty in the obtaining of an available substitute; to the proviso on bylines, wherein he felt it was necessary that management should retain discretion as to whether an employee was entitled to a byline; and to the proviso on letters of criticism, wherein Johnston was opposed to permitting an employee the option of vetoing the publication of reader's letters of criticism of that employee, and also with respect to the employee's ability to respond to the letters of criticism with a published letter of his own. Johnston felt that the Union should have no part in the decision of management as to whether a letter was to be run or whether it was to be rebutted. He also objected to the proviso dealing with the resale of a work product of a reporter-photographer, which, he felt, might impinge upon the paper's contract with a rational news service. French engaged in no extended responses to Johnston's objections, but, according to Johnston, expressed his interest and appreciation of John- ston's views. On January 3, French asked Johnston for a company counterproposal, and was told that Johnston would try to give him a company proposal before he was scheduled to leave town on January 9. The proposal was not submitted to French until February 3, 1975. Prior to the next meeting, Johnston and French agreed that it was time to call the representatives of the Thomson papers and the Interna- tional Union to participate in negotiations; i.e., Interna- tional Union Representatives Wood and James Gunder- son, the sucessor to Baysinger who left the employ of Respondent at or about that period of time. The next meeting was scheduled pursuant to the availability of both Gunderson and Wood and was set for April 9, 1975. Although French received Respondent's proposal on February 3, it wasn't until February 22 that he placed the call to Wood to attempt to arrange a meeting. The first dates that Wood had available were in late March or not until April. Wood thereafter participated in 17 remaining bargaining sessions and though he characterized himself as assisting the local committee he clearly appeared to be the spokesman of the Union at the bargaining table. A meeting was set for April 9 and 10 but was canceled at the request of Wood and rescheduled for April 14 and 15. Between April 14 and October 12, 1975, 10 collective-bargaining sessions took place. They commenced generally at or about 4 p.m. and terminated anywhere from 8 until 11 p.m. They were arranged by mutual agreement as were all collective- bargaining sessions. No evidence was submitted that the Union made any objection to the spacing of the meetings, or that the Union sought to accelerate the meetings, or that the Union requested consecutive bargaining sessions. The union team remained essentially the same except on occasions one employee representative would replace another employee representative. The employer's team consisted of Johnston, Anderson, and Gunderson. Al- though Gunderson characterized himself as only an advi- sor, it is clear that he was a major spokesman if not the chief spokesman for Respondent's team. There were instances of temper tantrums and name calling but these situations were of negligible import and had no appreciable impact on the speed of negotiations. Neither the Charging Party nor the General Counsel either at the hearing or in their briefs alluded to these rather minor incidents as evidence of Respondent's bad faith. Accordingly, I will not belabor this Decision with the recitation of these occur- rences. With respect to the flow of the meetings there is insufficient evidence that Respondent purposely sought to delay or cut short any of the meetings that would reflect a pattern of conduct or an intent not to meet and negotiate with the Union. There are one or more instances when meetings were cut short, however, the Union itself was in part responsible for one or more instances of a canceled or delayed meeting. No party seriously suggests that refusing to meet, canceling meetings, or restricting the duration of any meeting is a significant factor in this case. Accordingly, it is unnecessary to belabor this Decision with the descrip- tion of the duration of the meetings, the number of caucuses taken by both parties nor any of the interruptions that resulted in short caucuses and recesses taken by Respondent. If anything, disruptions were caused on several occasions by the desire of the union negotiating team to discuss matters not relevant to bargaining; e.g., problems of grievances relating to the composing room contract. Furthermore, the Union made no serious effort to request meetings of longer duration. After 13 bargaining sessions, up to the date of October 12, 1975, the parties had achieved agreement in the following areas: 1. Preamble. Which was agreed to on April 14, 1975. The agreement ran through the first paragraph of Respon- dent's original proposal. 2. Discharge notice. Agreement was reached on May 27, 1975, on the Union's original section 9-06 agreement except that the reference "managing editor" was replaced by the word "employer." 3. Pro rata vacation pay. An agreement was reached on May 28 upon acceptance of Respondent's original proposal contained in section 4-02 of its first contract proposal. 4. Promotions. Agreement was reached on June 26, 1975, on the following language: "No employee shall be required to accept a permanent promotion in the news- room except by mutual consent." 5. Grievance procedure. On June 26, 1975, the parties agreed to the first two sentences contained in Respondent's original proposal as reflected in section 2-01 and the Union's June 25, 1975, counterproposal which is identical. The language is merely prefactory. 6. Nondiscrimination. Agreement was reached on Au- gust 14, 1975. 7. Grounds for discharge. Agreement was reached on August 14, 1975, embodying essentially Respondent's original proposal. 8. Accrued benefits to the estate of deceased employee. As set forth in the mechanical contract, agreed to on October 9, 1975. The following is a highlight of the area of discussion by topic matter as it progressed throughout these 10 meetings. Request for information: At the fourth meeting on April 14, 1975, the Union made a request for information 654 THE LEAVENWORTH TIMES concerning names of employees, classifications, dates of hire, and rates of pay, as well as what fringe benefits they enjoyed. At the fifth meeting held on April 15, the following day, Respondent supplied the data contained in General Counsel's Exhibit 5 consisting of the names of employees, their classifications, dates of hire and salaries as of April 14, 1975, as well as a statement to the effect that the Employer supplied employees with a combination medical-insurance-annuity program "as outlined in the accompanying booklets," and that they enjoyed certain enumerated holidays and bereavement leave "as set forth in the Company's agreement with Local 45, ITU." Gunder- son testified that the booklets referred to were attached to the document which was submitted to the Union at that meeting. He was corroborated by Johnston. Wood testified that the Union did receive data on wages, dates of hire, and fringe benefits, but that the information did not include existing fringe benefit data such as the life insurance, vacations, or sick leave. However, General Counsel's Exhibit 5 which was stipulated to by all parties as the information that was submitted to the Union on or about April 15 in response to its request of April 14, as noted above, clearly indicates that the employer offers a medical- insurance-annuity program and refers to an accompanying booklet. In view of Wood's lack of certitude and apparent confusion in his demeanor, as well as his statement that he has no independent recollection of any of these bargaining sessions aside from what is summarized in his notes, I credit the testimony of Johnston and Gunderson which is precise and specific. Moreover, it would appear that had the benefit booklet not been attached to the document given to Wood on April 14, he surely would have made a specific reference to the lack of its attachment which apparently he did not do according to his somewhat cryptic testimony. It should be noted that Respondent's contract proposal submitted to the Union on February 3 remained in large part unmodified throughout the entire course of negotiations. It contained no proposal with respect to sick leave, pensions, life insurance, or hospitalization. Gunder- son testified that Respondent did not specifically suggest that present benefits be eliminated. He retracted earlier testimony intimating that the Company was offering a continuation of present benefits in light of the submission to the Union of General Counsel's Exhibit 5 on April 14 by testifying upon cross-examination that no Respondent representative at any time expressed to the Union in negotiations that the April 15 list of benefits was a proposal on the bargaining table to maintain the benefits mentioned therein. The recognition clause: Basically, the Union started out with a proposal which reflected recognition of the news- room unit by specific delineation of the certified unit. Respondent's proposal reflected a more cursory recogni- tion of a unit "duly certified" or "as certified in Case 7- RC-7472." Discussion ensued throughout these meetings over the verbiage concerning the recognition clause. On July 31, the Union presented a counterproposal with respect to "Recognition & Jurisdiction" citing the certifica- tion in Case 17-RC-7472, and setting forth a full quotation thereof, but ending with the language: "The jurisdiction of the Union shall consist of those functions presently performed by employees described in the above unit." Gunderson testified that the employer objected in part to that inclusion of jurisdictional language because the Em- ployer insisted on its right to remain free of restrictions implicit therein. That is, the Employer desired to retain the right to be able to assign the duties and work functions of employees within the appropriate unit to persons outside of the appropriate unit, as for example, the managers, their spouses, and "others." Related to the discussion of the recognition clause is the proposal in the Employer's original contract proposal that would exclude "part-time employees" from the unit. The Union had argued that the exclusion of part-time employ- ees would derogate from the certified unit which included "regular part-time employees." A good deal of discussion was consumed wherein the Employer kept reiterating its position that exclusion of part-time employees did not subsume the exclusion of regular part-time employees. Arguments over those semantics were not resolved. The Union did agree that "stringers" and other casual employ- ees would be excluded but that was never really in issue. The Union expressed its concern at the bargaining table that the Employer's insistence upon discretion with respect to the assignment of work was a threat to the integrity of the bargaining unit in that the Employer would be in a position to transfer all the work outside of the bargaining unit to nonunit employees, and thus destroy the unit. Thus, the failure to resolve this "jurisdiction" problem became a key impediment to the failure to even agree to a recogni- tion clause. Zipper clause: The second paragraph to the preamble in the Employer's contractural proposal contained the follow- ing proviso: Both parties agree that their respective rights and obligations under this contract would have been afford- ed by the performance and fulfillment of the terms and conditions thereof and that the complete obligation to each other is expressed herein. Commencing at the April 14 meeting, the Union object- ed to the "zipper clause" as it characterized it, or the "fully bargained clause" as Gunderson characterized it, later adopting the Woods characterization. Wood took the position that the Union could not agree to that language unless every benefit presently enjoyed by unit members was incorporated explicitly into the contract. Wood reiter- ated his argument at the 10th meeting held on July 31, and specifically pointed out that specific benefits such as life insurance and sick leave were not contained in any Respondent proposal. Wood testified that Gunderson merely responded that "It's in the contract under law," whereupon Wood responded that the law does not provide employees with sick leave. No agreement was reached. Lunch periods: Various proposals and counterproposals were submitted with respect to the Union's request for specific language regarding the assurance to an employee of an unpaid 30-minute lunch period. The Employer's concern, as expressed throughout the negotiations, was that the newsroom operation was quite different from the composing room unit and that it did not operate "within the four walls." Furthermore, there were deadlines which 655 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were dissimilar from deadlines under which composing room and pressroom employees operated. Reporters worked odd hours and an erratic schedule. The Employer initially suggested that no lunch period language be inserted into the contract. The Union essentially was arguing for some language that would assure a lunch period of one-half hour of unpaid time to be granted to an employee upon condition that he worked a specified number of hours, and to be given, wherever possible, near the middle of his shift. Grievance procedures: Extensive discussion was held between the parties not with respect to whether there should be a grievance procedure, indeed, as such was proposed by the Employer. However, the parties engaged in prolonged discourse as to the timeframes suggested by either party; the number of persons to serve on the arbitration panel, i.e., a five-member, three-member, or one-member panel, and, if indeed a five-member panel, how the fifth member should be selected; and, finally, whether a party not ordering a transcript ought to be entitled to access to a transcript. The Union refused to acquiesce to the Employer's language which required that the grievance as submitted ought to cite the specific portion of the contract which the grievance claimed was violated. The Union expressed fears that such requirement would defeat a grievance because of a technical miscitation. With respect to timeframes, the Union thought more time ought to be allowed to the small Local Union as to whether or not a decision would be made to go to arbitration so as to enable the Union to consider means of raising funds to support a grievance arbitration undertaking. Originally, the Employer proposed a five-man panel but as of July 31 suggested a three-man arbitration panel to avoid a problem earlier raised as to how two panel members appointed by each party would select the fifth panel member. At one point in his testimony, Wood appeared to be stating that Respondent refused to define whether the word "days" in Respondent's proposals was to be defined as calendar days or workdays. However, on cross-examination he retracted that position but finally testified that he "didn't recall." The Union's position with respect to the composition of the arbitration panel was that there should either be five members or a single member, but not three. The Union then took a position that it did not wish a fifth member to be chosen by the four selected. Respondent's counterpro- posal of October 9, 1975, proposed a grievance panel of three persons, one appointed by each party and the two would appoint a third party. In the event of nonagreement within a certain period of time, the third person was to be selected by the American Arbitration Association. It should be noted that the Union's original contract proposal did in fact provide for a five-man arbitration panel. Although the Employer acquiesced to a reduction of time of a timeframe in the earlier stage of the grievance procedure pursuant to the Union's request that the thresh- old entrance be made more quickly, Respondent still set forth a time limit of 10 days for the submission of the grievance to arbitration and still insisted upon a recitation in the grievance of the specific portion of the contract claimed to be violated. Outside activities: Respondent proposed, in section 10-01 of its contract, language which would have the effect of restricting the activity of the unit employees in regard to employment by other employees. That is, such employment must be precluded unless "such activities do not consist of service performed in direct competition with the employer, do not result in any conflict of interest with respect to the employees' duties with the newspaper and do not diminish the employees' reputation and standing in the community." Gunderson testified without contradiction that Wood characterized that priviso as an "ethics clause," and that Gunderson denied that it was an ethics clause. In any event this clause was discussed at the April 14, April 15, May 27, July 31, and October 9 meetings. By the October 9 meeting the Union offered a counterproposal which stated: "Em- ployees shall be free to engage in any activities outside of working hours, provided such activities do not consist of service performed in direct competition with the employer, do not result in any conflict of interest with respect to the employees' duties with the newspaper, and do not diminish the employer's reputation and standing in the community." The critical difference between the two proposals, of course, is the Employer's contention that the outside employment activity not impact employee's credibility, etc. It is argued that it was necessary in order to prevent its news sources from drying up. Gunderson's testimony that the union committee "simply felt" that the company explanation was "not satisfactory" was unrebutted. How- ever, Gunderson also testified that when a member of the union committee asserted that the Union would not be able to grieve the Employer's action in this regard, that contention was not responded to by any member of Respondent's bargaining committee. Checkoff: The Union included a provision for a dues- checkoff procedure which was not included in the mechan- ical contract. Respondent conceded that it did not wish to be a collector for union dues inasmuch as it was a small newspaper. An agreement was never reached. Other topics: A multitude of other topics were discussed wherein no agreement was reached such as the Union's proposal 3-01, "struck work"; the Union's proposal 4-01, "picket line activity"; the scheduling of vacations which Respondent resisted because contractual incorporation would restrict its flexibility in the operation of a small newspaper (Johnston had stated at the April 15 meeting that the vacation benefits were the same as the composing and pressroom unit, but when the Union offered to include the same contract language as found therein, no agreement was reached); the Union's proposal 18-17, "allowance for use of employee of his photography equipment; mileage allowances; the management rights clause as proposed by the Employer which the Union contended at the June 26 meeting that it negated proposals already agreed to, i.e., the clause which permitted the employee a right to refuse a promotion; the Union's request for a bulletin board which had several times been discussed but no agreement had been given by the Employer; sanitary regulations which were discussed on July 31 but were rejected entirely by Respondent as not applicable to a newsroom operation; and the Union's proposal with respect to letters to the editor critical of employees within the unit to which 656 THE LEAVENWORTH TIMES Johnston wanted no contractual reference. With respect to the discussion of expenses of employees at the August 13 meeting, Gunderson stated that that "was something that could not be put into a contract." Leaves of absence were discussed as late as August 13, and at the July 31 meeting Johnston stated that it was not practical to have that kind of language in a contract. Further discussion took place as to the protection of employees' "priority" when an employ- ee is ill or on leave; bereavement leave; the proposal of the Union that employees be permitted to carry over from one year to the next earned vacation pay to which Wood testified without contradiction that "Gunderson told us to trust them, that we did not need that in a contract." With respect to bereavement leave there had been an agreement reached on October 9, 1975, but Respondent had with- drawn from that agreement when it became apparent that a dispute existed over whether an employee on vacation would be entitled to tack on bereavement leave during vacation time. The Employer contended that he should not be so entitled and, therefore, withdrew from its agreement on bereavement leave in view of this discrepancy. At the meeting of October 9, 1975, the subject of sick leave was discussed. The Union had proposed a provision for sick leave in the collective-bargaining agreement. Wood requested the Company to specify what the sick leave policy was in its present terms. Johnston responded that sick leave was a matter of employer discretion and that whether an employee was to be given sick leave was a matter to be determined on a case-by-case basis. Wood asked for employer information to be gleaned from its records which would indicate when and to whom sick leave was granted. The Union requested that such information be made available by the next meeting which was sched- uled to be held on November 6. During this discussion, however, Respondent made clear that it wanted to con- tinue its present policy of discretionary sick leave and was opposed to the inclusion of a specific sick leave provision in the contract other than a mere recitation that sick leave was at the Employer's discretion. Economic issues: Wood testified that at the meeting held on May 27, 1975, he "vigorously" asked for a wage proposal from the Employer "since the company was not willing to put economics in other areas [and] we wanted to see what they would put into wages." This request was made at the tail end of a session which had commenced about 3:50 p.m. and ended at 11:15 p.m. To this request Gunderson responded that perhaps the meeting ought to adjourn, since it was near I 1: 15 p.m. Wood testified that he then offered to clarify the Union's position with respect to "stringers" and the meeting adjourned. Wood's version was not controverted. However, at no time prior to the 10(b) period which commenced on October 12, 1975, did Wood again raise the subject of a wage proposal by the Employer. The original contract proposal submitted by the Employer on February 3 did not include a wage proposal. Thus, the situation with respect to wages up to October 21, 1975, was that French had agreed with Johnston to discuss noneco- nomics first before discussing economics and that pattern continued, and the only objection to it was raised at the tail end of the May 27 meeting to which Respondent remained silent. From May 27 to the last meeting held outside the 10(b) period on October 9, 1975, the Union acquiesced without any further objection to a continued discussion of the areas enumerated above. Bargaining Relationship as it Transpired During the 10(b) Period Commencing on October 12, 1975 Subsequent to the last meeting in the 10(b) period on October 9, 1975, seven more collective-bargaining meetings were held until a point in time when a decertification petition was filed by employee Stephen Sigafoose. Meet- ings were held on November 6 and December 16 and 17, 1975, and January 27, February 26, and March 22, 1976. Meeting 14, November 6, 1975: This meeting commenced about 4 p.m. The bargaining team personnel remained the same with the exception of the addition of employee Johnston to the union team. At this meeting Respondent withdrew its agreement on bereavement leave and offered a counterproposal. The Union objected on the grounds of a prior agreement but Respondent's position, as stated at the meeting, was that there was an apparent disagreement as to whether the parties intended to add on bereavement leave to vacation leave in a situation wherein a death occurred while an employee was on vacation. Thus, that topic was opened for further discussion but no agreement was reached. The counteroffer made by the Employer with respect to bereavement leave appended the following sentence which precluded agreement: "If any of the above days fall on an employee off day or vacation such employee will not be paid for those days" (G.C. Exh. 46). Three counterproposals relating to outside activities, holidays, and vacation pay were characterized by Wood as containing a mere change of verbiage but did not differ in substance from the Employer's previous position as set forth in prior negotiating sessions. Indeed, section 10-01 of the Employer's counterproposal (G.C. Exh. 47) essentially set forth the same language and again put the emphasis upon the prohibition of all outside activities which under- mined the employees' reputation and standing in the community in "such a manner as to impair the employees' effectiveness or credibility in his or her duties." Wood did not testify as to what arguments he advanced in the negotiating meeting to counter the Employer's position on off-time activities, vacation, and holidays. From prior meetings it would appear that the difference between the parties with respect to vacations included in particular the amount of discretion the employer desired to retain in scheduling vacations. As Gunderson testified, Respon- dent's position was that it desired to retain discretion with respect to the scheduling of vacations and Johnston stated at the negotiating meetings that all news personnel would take vacations in June, July, and August because of the availability of a summer intern, but Wood was arguing on behalf of a vacation option of the employee for January and February. Other areas of disagreement discussed relate to the carrying over of vacation time to the next calendar year. The Union's concern as expressed earlier at the May 28, 1975, meeting was that an employee who had not taken vacation and who was ill at the end of the year might lose his vacation time. At that meeting, it is Wood's uncontrad- icted testimony that Gunderson responded "trust us." The Employer's original position on vacation time in section 4- 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 03 provided that: "Vacation time or vacation credit shall not be carried over from one calendar year to another. Vacation pay shall be calculated on the individual regular straight time rate of pay." Furthermore, section 4)04 provided: "The vacation schedule shall be arranged by the employer with due consideration of work load, seniority, and the convenience of the employees, but the employer reserves the right to determine the number of employees who may be on vacation at any one time." With respect to the carrying over of vacation from one calendar year to another, at the November 9 meeting, the Union attempted to add a caveat to the employee's right to carry its vacation from one year to the next by "conditioning it upon mutual agreement" between the Employer and the employee. However, Respondent refused to agree. According to Wood's uncontradicted testimony he attempted to obtain a delineation from Respondent as to under what circum- stances the Employer might be willing to carry over vacation time. Somehow the conversation, however, turned to the circumstance of an employee whose day off fell on a holiday. The Employer then agreed that if a holiday fell during an employee's vacation time, the employee could take that day off on another occasion upon "mutual agreement" of the Employer and employee. Thus, by the meeting of November 6, no substantial advancement was made with respect to the areas of outside activities, holidays, and vacations. 4 At the November 6 meeting, the parties then discussed at length the Union's proposal on sick leave which it submit- ted to the Employer on October 9 (secs. 18-04 through 18- 06, G.C. Exh. 35). Wood made specific reference to the proposal he had submitted to Respondent on October 9, which at that time Gunderson had promised to study and make a response. Also, it should be noted that at the October 9 meeting, Wood had requested Respondent to check its records for any sick leave that exceeded I day and Gunderson had responded that the Union would receive what information it was "legally entitled." At the Novem- ber 6 meeting, Johnston responded to Wood's reference to the sick leave proposal by stating that sick leave and the amount of sick leave to be given to an employee was discretionary with the Employer. He responded that there were no records available that would reveal the time that an employee was out on sick leave. According to Wood, Johnston stated that if reference to sick leave is put into a contract it might restrict the amount of sick leave employ- ees would actually receive, and thus, it would be better to leave the matter flexible and to operate under the present practice. 5 Wood testified that he argued that if there were a problem with respect to delineating the sick leave practice then the parties ought to identify it and cover it in the contract. Wood suggested a caveat to the effect that sick leave beyond a certain amount set forth as a minimum in the contract will be granted at the discretion of the Employer. Respondent took a caucus and, according to Wood, Johnston returned and stated: "It was not in the manage- ment's best interest to agree to language that would hinder producing a newspaper in Leavenworth, Kansas. We are 4 There is little or no testimony by any of the parties with respect to the arguments exchanged in negotiations relative to the various holiday proposals. under a 10,000 circulation." Wood testified that he specifi- cally asked for the criteria under which sick leave was granted and Johnston simply responded that it was discretionary. Furthermore, Johnston stated that there was no employer information indicative of what amount of sick leave was given to any particular employee in the past. At that meeting, an employee member of the union bargaining committee, Jean Williams, volunteered that she was sick for I week and was paid for it. Wood conceded on cross- examination that Johnston did refer to certain factors upon which he determined the amount of sick leave allowed, but Wood could not recall any of the factors except perhaps longevity. Wood conceded that he did not ask for any specific records but only for information. Johnston testified that at the November 6 meeting, he was "reluctant" to reduce sick leave language to a written agreement other than to set forth in the contract that sick leave was "discretionary with the employer." He stated that in response to Wood's request for his criteria he answered that he based his decision as to whether he would grant sick leave on the employee's length of employment, faithfulness, loyalty, and the nature of the illness. Johnston testified that there were no two identical situations and this is what he told the Union. Gunderson testified that Johnston offered to insert in the contract language that sick leave was discretionary and that he had told Wood he had searched his records but that those records did not indicate whether employees were paid for hours worked or hours on sick leave. Further, Gunderson testified that Johnston argued that since there was no past abuse of sick leave by newsroom employees, there was no need to put a sick leave provision into the newsroom contract. Respondent did not put its position with respect to sick leave into a written format or counterproposal. Wood testified on cross-exami- nation that Johnston refused to even insert language into the contract which set forth that sick leave would be discretionary with the Employer. This is much stronger than his testimony on direct-examination and I find to be an exaggeration much as his testimony with respect to the allegation that Respondent refused to define the term "days" with respect to the grievance procedure discussion. As noted before, Wood had an admittedly negligible independent recollection of what took place at the bargain- ing table and his recollection was far inferior to that of Johnston and Gunderson. I therefore conclude that Re- spondent did not refuse to put any reference to sick leave into the agreed-upon contract. The parties then discussed the relative merits of a five- man arbitration panel versus a three-man panel. No agreement was reached. The Union again insisted that either a five-man or a one-man concept was appropriate but not a three-man concept. However, since the Union was opposed to the concept of the fifth member being selected by the four members appointed by the parties, the Union, in effect, was arguing on behalf of a single arbitrator. Gunderson testified that Respondent had changed its position from originally proposing a five-man panel to a three-man panel for economic reasons. Although he conceded that it was more economical to have a single s Wood was not specifically contradicted on this point. 658 THE LEAVENWORTH TIMES arbitrator, Respondent did not agree to that suggestion because it placed a value upon having some input into the arbitration panel which overrides arguments on economics. Wood requested Respondent's panel to discuss the recognition language but Gunderson had replied that he had not studied the situation. Recognition had been discussed, as noted earlier, throughout the 16 bargaining sessions preceding the 10(b) period and was, as we shall see, still on the bargaining table well into 1976. Prior to concluding the meeting the Union submitted its proposal on holidays and vacations (G.C. Exh. 48) and Respondent presented the Union with a counterproposal on bereavement pay (G.C. Exh. 46). Respondent's counter- proposal still contained a provision that would prevent the employee who was on the vacation from tacking on bereavement leave to his vacation time. The parties were apart as to the extent of the vacation time to be taken, and as to the issue of vacation carryover. Also, they remained apart as to the scheduling of vacation time. Toward the end of the meeting, Wood stated that up to this point the Union had received no employer proposal with respect to wages. He pointed out that the original employer proposal contained no monetary figures, and that it merely set forth employer discretion with respect to wage rates. Therefore, Wood asked for a company wage propos- al. Section 8-01, "salaries," of the Employer's proposal of February 3 set forth;" "the policy of review and adjust- ments of any individual salaries at the discretion of the employer shall continue, and salary determination shall be based on length of service, proficiency, and demonstrated professional ability." An adjournment was then taken from 7:30 to 8:30 p.m. for dinner, but, at 8:30 p.m., Gunderson returned and stated that because he was ill he was requesting that the parties not meet any further that evening. Before departing Gunderson asked the Union if they had any proposals to submit. Wood then submitted to him the Union's proposal on sick leave. (G.C. Exh. 50). That counterproposal provided as follows: Employees who have held situations during the 12 months ending December 31, shall be entitled to 21 days sick leave with pay at the individual straight time rate. Sick days shall be accumulative from year to year. Other employees shall be entitled to I day [of] benefit for each 20-1 (21) days worked. Where the employer has reason to believe the employee is violating the purpose of sick leave, he may require a doctor's certificate to support the sick leave claim. Wood then remonstrated that the parties should come to some kind of agreement on things like vacation language. The parties mutually agreed to meet on December 16 and 17. The meeting was adjourned at 8:45 p.m. Gunderson testified that at the negotiations of November 6, he objected to the Union that instead of resolving what Gunderson considered "gut issues," i.e., the noneconomic issues, the Union was attempting to get into economic issues which was contrary to Gunderson's experience. At the meeting, Gunderson stated that in his opinion, the parties were going around "the mullberry bush"; i.e., by attempting to discuss economics instead of resolving other matters first. Thus, Wood's 11th hour attempt at the November 6 meeting to prompt Respondent into a discus- sion of economics was thwarted by Gunderson, and the final topic touched upon before departure was a noneco- nomic matter. Meetings 15 and 16, December 16 and 17, 1975: The meeting on December 16 commenced at 4:30 and ended at 6:50 p.m. Johnston presented Respondent's proposal on recognition, section 1-01. (G.C. Exh. 51). Respondent's proposal read as follows: The employer hereby recognizes that the Union has been duly certified and is the exclusive representative for the purposes of collective-bargaining for those employees of the newsroom constituting the bargaining unit defined in the NLRB Case No. 17-RC-7472 dated August 13, 1974. Wood testified that the Union rejected that proposed clause because the Respondent refused to insert into the contract a proviso on "jurisdiction" of the Union; that is, the Union wanted a contractual provision which limited the transfer of unit work to nonunit employees. Wood testified that at that point he asked Gunderson whether Gunderson expected the Union to assign work to other people and thus eliminate the bargaining unit and that Gunderson responded: "Yes, we expect that." Wood also testified that Gunderson further stated that the Union represented "people and not work." Gunderson's and Johnston's testimony, which appeared to be more assured, detailed, and based upon independent recollection, indicat- ed that Wood indeed asked the question but that Gunder- son started to answer at a midpoint in Wood's question as to whether Respondent expected to retain the right to assign work and his answer was given before Wood finished the question with respect to the elimination of the bargaining unit. I credit Gunderson's and Johnston's version of that statement and conclude that Gunderson did not boldly tell the Union that it expected to gut the bargaining unit. However, the positions were fairly clear that the Union would not agree to recognition language proposed by the Employer on the grounds that Respondent was seeking the right to retain discretion with respect to the assignment of unit functions to nonunit employees, includ- ing managers, wives of managers, and any other person. A good portion of the meeting, however, was consumed in a heated debate between Wood and Gunderson over what actually was said by Gunderson in response to Wood's question. Further discussion was held between the parties with respect to the Union's dues-checkoff proviso to which Gunderson had raised a question of legality. After a short caucus between 5:31 and 5:52 p.m., Wood complained about the lack of progress and the failure of Respondent to explain, as requested in prior meetings, its lunch period language, i.e., that the lunch period was to be taken after 6 continuous hours, but as near to the middle of the shift as possible. Wood testified that the Union withdrew the last two paragraphs of section 9-10, relating to the reinstate- ment right of a terminated employee and the amount of salary that such employee would be entitled. However, the Union was retaining its first paragraph which provided that an employee who was designated for an economic layoff 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retained the option of transferring to a previous depart- ment or job from which he had transferred in the past rather than to be laid off. The discussion was turned, however, to the Union's dues-checkoff language and Gunderson raised a particular question, according to Wood, as to the word "assessment" and further Gunderson stated in regard to the Union's recognition and jurisdiction proposals: "You have a lot of gall to even ask us to respond to those proposals." Wood's testimony was undenied. The parties again met the following day from 4:15 to 9:48 p.m. At the meeting Respondent addressed itself to the subject of leave of absence and management rights by giving the Union written proposals (G.C. Exhs. 52 and 53). With respect to leave of absence, Respondent's proposal set forth that the: Employer may, at its sole discretion, grant employees who apply in writing, an unpaid leave of absence not to exceed 30 days duration; provided however, that such leave may be extended by mutual agreement between the employer and the employee involved. All condi- tions of the leave and return to work must be in writing and agreed to by both the employer and the employee before leave is effective. Time on leave of absence does not count toward pension or other benefits, but such leave will not constitute a break in service. Wood responded that the proposal should specifically exclude sick leave and maternity leave from the 30-day maximum limitation set forth therein. The Union offered its counterproposal during the course of the meeting as to leave of absence incorporating, inter alia, a proviso that maternity leave and sick leave will not be limited by the 30- day maximum, and that the employee may continue his insurance coverage by paying the entire cost of the insurance for the term of the leave of absence. Respondent spent some time discussing this counterproposal but ulti- mately did not agree because of the language excluding employees on sick leave and maternity leave from the time limit in the leave-of-absence clause. Ultimately, by the last meeting of March 22, Respondent did agree to exclude sick leave and maternity leave from the proviso. Gunderson testified that during the negotiations he was "apprehensive about putting something in writing regarding maternity leave" because of its being the subject matter of litigation "in the courts." He testified that he did not want to exclude reference to maternity leave in the contract entirely. Respondent's management-rights clause proposal, sec- tion 1-04, read as follows: The Union acknowledges that [it] is the exclusive function of the Employer, unless otherwise expressly modified in this agreement, to: (a) Maintain order, discipline and efficiency; (b) Hire, discharge, classify, direct, transfer, layoff, promote and discipline for cause; (c) Make and alter from time to time rules and regulations to be observed by the employees, and generally to manage the enterprise in which the em- 6 In regard to the G.C. Exh. 54, i.e., the Union's proposal on grievance procedure, Gunderson testified that in December 1975 the same language ployer is engaged and to determine the methods and equipment to be used. After Wood objected to the management rights clause a discussion of Respondent's "chain of command" ensued and Wood testified without contradiction that at that point Gunderson stated: "Why don't you let the Company take care of it in any manner it deems proper?" After some discussion a caucus ensued at the request of Respondent. Neither Johnston nor Gunderson denied this aspect of Wood's testimony and I therefore credit Wood. The Union offered its counterproposal on grievance procedure (G.C. Exh. 54); recognition-jurisdiction (G.C. Exh. 55); and lunch periods (G.C. Exh. 56). Wood testified that Gunderson's reaction was that Respondent wanted to exclude part-time employees and insisted on the right to bargain over the exclusion of part-time employees. Fur- thermore, Gunderson refused to accept the suggestion of the Union to incorporate the language from the mechanical unit, i.e., the composing room-pressroom contract as being too "tortured" with respect to grievance procedure. Ap- pended to the counterproposal with respect to recognition in lieu of a jurisdiction clause, the Union set forth language which provided that the Union recognize the Employer's past practice of hiring stringers and correspondents, and that pursuant to past practice their hire will continue and they will not be covered by the terms of the agreement. It also provided for the employment of temporary employees during the vacation season for a period not to exceed 90 days; and further that "the Union recognizes that there has been a past practice of supervisors from time to time performing bargaining unit work. This practice may con- tinue to the extent of the past practice." Finally, "stringers, correspondents and temporary employees shall not be employed on work normally performed by regular employ- ees except as vacation replacements. Bargaining unit work will not be performed by supervisors to the extent it would eliminate or displace a regular employee." (G.C. Exh. 55).6 Respondent offered a counterproposal with respect to recognition (G.C. Exh. 57) which again simply stated: The employer hereby recognizes that the Union has been duly certified and is the exclusive representative for the purposes of collective-bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment for those employees in the newsroom constituting the bargaining unit defined in NLRB Case 17-RC-7472 dated October 13, 1974. No offer was made to assuage the Union's fears with respect to the dissipation of unit work by assignment to nonunit employees. Nor did Respondent meet the modi- fied language of the Union's counterproposal with recogni- tion of the Employer's past practice of assigning nonunit work. Wood testified that Gunderson again also refused recognition of part-time employees and that he, Wood, insisted on the certification language. Gunderson testified that Respondent did not object to the Union's desire to quote "directly the certified unit" but was objecting to the Union's insistence on a jurisdictional clause. According to was the source of confusion in the mechanical unit contract. He was uncontradicted. 660 THE LEAVENWORTH TIMES Gunderson, supervisors performed work in the past and Respondent did not want the restriction of a jurisdictional clause. As for example, an ad manager might be the Company's main representative at a rotary club function and therefore might bring back notes and compose a story instead of a reporter. Neither Johnston nor Gunderson explained at the meeting nor at the hearing what was specifically objectionable about the Union's concession to recognize a continuation of past practice. Disagreement further persisted with respect to the Union's desire for the actual certified unit language rather than the Company's insistence upon referral to the case number, an indirect incorporation, because of Union's insistence upon some protective jurisdictional language. The Union made no further written proposals with respect to recognition after the December 17 meeting. The union proposal of December 17 with respect to recognition was characterized by Gunderson on cross- examination as a "double recognition language which borders on a jurisdictional type of approach." Gunderson conceded that Wood did agree to accept the Company's proposal with respect to recognition in its section 1-01 if the Company would agree to drop the phrase "has been duly certified" but that the Company did not agree to drop that phrase. Wood conceded on cross-examination that Gunderson indicated during negotiations that he was willing to abide by the Board's certification as to the unit and that the Union is certified as bargaining agent on behalf of regular part-time employees. However, Wood interpreted the employer's proposal of exclusion of part- time employees to exclude in effect "all" part-time employ- ees. He conceded on cross-examination he could not recall when or where or under what circumstances Gunderson specifically wanted to exclude "all" part-time employees, but that was his conclusion. I cannot find on the basis of Wood's demonstrably poor powers of recollection that Gunderson specifically made a demand to exclude all part- time employees meaning "regular" and casual part-time employees. However, it is fairly clear that the Employer at no time made an effort to put the Union's anxiety to rest by specifically setting forth language to assure them that regular part-time employees would be included in the unit other than incorporation of the unit description. The anxiety of the Union of course was based upon the Employer's original section 9-01 proposal which read "The parties agree that all part-time and temporary employees shall be exempt from the provisions of this agreement." With respect to the matter of assignment of work, Wood's testimony was unrebutted that Gunderson stated in negoti- ations that the right of assignment was necessary in managing a small newspaper and the Employer wanted freedom to operate in the most efficient or economical fashion. As a matter of practice, Respondent, except for a negligible period of time, employed no regular part-time employees. The final subject which involved a great deal of discus- sion related to the lunch period proposal and the Union's counterproposal tendered during the meeting (G.C. Exh. 56). The Union's proposal read as follows: A lunch period of at least thirty (30) minutes shall be allowed and shall be unpaid time. The lunch period shall be scheduled as near the middle of the employee's work period as the work load allows, except the lunch period on the Saturday night shift may be taken at the convenience of the work load. Should the Saturday night shift consists of less than six (6) hours the lunch period may be waived by mutual agreement. The Employer's last written counterproposal on lunch periods was tendered at a meeting on August 14, 1975, wherein it was provided: A lunch period of at least 30 minutes shall be allowed [for] employees who work continuously 6 hours or more [and ] shall be unpaid time. The lunch period shall be scheduled as near the middle of the employee's work period as the work load allows, except the lunch period on Saturday night may be taken at the convenience of the office. [G.C. Exh. 28.] Gunderson testified that the chief problem which caused failure of agreement between the parties as to lunch periods was the Union's failure, in his words, "to comprehend the Respondent's problems with respect to deadlines." That is to say the newsroom operation operated under a fluctuat- ing deadline system and ran on a nonshift concept by employees who did not work an 8-hour day. According to Respondent the Union was bargaining along the lines of a lunch period proviso as set forth in the mechanical contract. However, the type of deadlines in the composing room were quite foreign to the deadlines encountered in the newsroom operation. Again the key note of Respon- dent's position on this point was the widest latitude of discretion for the Employer. After a brief flareup of tempers during this meeting, a brief caucus was called by the Employer in order to let Johnston calm down a bit; and, upon the return of the Employer, Gunderson asked for a union counterproposal on leave of absence in response to which the Union submitted to the Employer its counterproposal of Decem- ber 17 regarding leave of absence. (G.C. Exh. 58). Materni- ty and sick leave were again excluded. Gunderson suggest- ed adjourning the meeting that evening at 9:48 p.m., in view of the unpleasantries that were exhibited by both Wood and Johnston toward one another. However, before adjourning Wood requested that Respondent check its records with respect to the employment of a summer intern and in particular as to how many days the intern worked during the course of the year, and also whether the amount of days exceeded 90 days for the last two summers. Meeting 17, January 27, 1976: This meeting lasted from 4:15 to 10:39 p.m. and essentially the same parties were in attendance with the exception of the addition of Donald Berg, an attorney and industrial relations consultant employed by Thomson Newspapers. Berg attended chiefly as an observer at the request of Gunderson. The following subject matters were again discussed without agreement: Leave of absence; management rights; section 20-01 of the union proposal which set forth that the only parties to the contract were the Employer and the Union and that approval of the agreement by the International Union did not render it a party thereto; and section 20-02 relating to the possible nullification of any section of the agreement 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by "any Federal law, rule or regulation pursuant thereto." Wood testified without contradiction that he again, futiley, asked Respondent for an explanation of the meaning of its lunch period proposal in regard to the 6-hour requirement vis-a-vis the middle of the shift allowance. Specifically, Wood testified without contradiction that Gunderson suggested that lunch periods not be included in the contract. The Union presented a proposal on struck work and a proviso setting forth the employee's right to honor a picket line of nonunit employees (G.C. Exh. 60), which is essentially the same provision as found in the mechanical contract, but no agreement was reached. The Union also submitted counterproposals with respect to sections 9-01 through 9-04 and 9-06 through 9-08 of the Union's original proposal. Section 9-06 had already been agreed to, i.e., notice time for discharge, and 9-08 was in effect withdrawn; i.e., a limitation on the authority of the managing editor to appoint heads of departments from outside the department. Section 9-01 dealt with the authority and control of the newsroom as it was vested in the Employer and his designated supervisor, with a caveat, however, that all employees must be advised as to the identity of the supervisors. Section 9-02 set forth that the authority of the Employer or his supervisor shall be exercised in a nondiscriminatory manner "under the law and this agreement"; section 9-03 set forth that "all employees shall perform such work as the Employer or his designated supervisor may direct"; and section 9-04 set forth that "the employer or his designated supervisor shall be the judge of an employee's competency. However, the fairness of this judgment may be subject to the grievance procedure set forth elsewhere in this agreement." Also discussed without agreement was the Union's proviso in its contract relative to protection of "priority" of employees; specifically, whether employees' priority would be protect- ed in situations of illness, attendance at an ITU seminar, school, or during residency at the ITU Convalescent Printers Home. In this regard, Johnston took the position that such language was not necessary because the eventual- ity was unlikely to occur and that the Union was just "garbaging up" the negotiations. At this point Wood stated: "We have our proposals on the table and we will negotiate each, item by item." Gunderson responded: "Let's negotiate item by item and start with number one and go straight through." Wood thereupon stated: "That is not the way to do things. You do not go item by item, you move around in the contract and try to find places to move." With respect to the lunch period again the Employer was opting for the greatest flexibility and was contending that the Union was refusing to abandon its shift concept of operations. Thus, Respondent took the position that a split shift created a problem and that there would be no need for a lunch period whereas the Union's proposal might result in a lunch period at 10 a.m. or 8 p.m. Respondent again refused to agree to recognition because it contended that the Union was insisting on jurisdictional language which 7 With respect to the January 27 meeting, Berg testified on cross- examination that Johnston stated orally that the Employer's wage proposal implied the current wages received by the newsroom employees. The Union's original proposal calls for a wage increase of 50 percent above the highest paid employee in the unit and apparently 100 percent above the would be a hindrance upon its flexibility of operation. As to the picket line clause the Employer took the position that there is no need for language of such in the contract inasmuch as those honoring the picket line would be "in the same shoes" as the original strikers under the law. Also raised at this meeting was the issue of an annual wage review and merit salary increase for full-time employ- ees. Since 1971, the Employer has engaged in a wage and salary review of employees outside of the composing room and pressroom, which is covered by a collective-bargaining agreement, for individual employees employed on a full- time basis, and as a result has granted certain merit wage and salary increases to those employees usually in January and July of each year. This was done during the preceding January and July with the express waiver of the Union of any objections to the continuation of that practice. At the January 27 meeting, Wood raised the question that inasmuch as it was the end of January why had no merit raises been given to employees in the newsroom unit whereas in fact other employees not covered by the mechanical unit had been given their periodic merit wage and salary increases pursuant to the periodic wage and salary review. Wood reminded Respondent of that policy and stated that the Union expected the policy to continue. Wood testified that Johnston responded that the Employer had a proposal on the table in relation to wages and that it was within the Employer's discretion whether to review wages. Wood stated that he then insisted upon negotiation on wages. Wood's request then led to a discussion of management rights and company rules. Wood testified that it was the Union's demand to negotiate on all rules that may affect the working conditions of employees. Gunder- son, whom I credit, testified that indeed Johnston's response was that the Company had a wage proposal on the table "that implied current salaries," to which Wood responded, "We reject that." Apparently, at that point Wood did not ask Johnston what he meant by his statement that the Company had a proposal on wages on the table. The meeting was adjourned at the suggestion of Gunderson about 10:39 p.m.7 Meeting 18, January 28, 1976: The following day, January 28, negotiations recommenced at 4 p.m. and lasted until 10:36 p.m. Wood testified that he gave Respondent a letter consisting of the Union's statement of nonobjection to the continuation and implementation of the Employer's practice of wage and salary reviews and the granting of merit wage increases to all full-time employees in the newsroom unit (G.C. Exh. 61). Wood testified that he asked Johnston if there were any problem but got no response. Neither Berg, who testified as to the meeting on behalf of Respondent, nor Johnston rebutted this testimo- ny.8 Bereavement leave was again discussed and Gunderson again took the position that he couldn't abide by the earlier tentative agreement in view of the Union's interpretation that an employee on vacation would be entitled to tack on bereavement leave to his vacation time if a death occurred highest paid reporter. Wood testified that he was unaware of what the wage rates were of the newsroom employees. 8 Objections to cumulative testimony, particularly as to matters not in issue, were sustained by the Administrative Law Judge but as to this point no testimony was offered by Respondent. 662 THE LEAVENWORTH TIMES therein. The lunch proposal was again discussed. Berg testified without contradiction that Wood expressed a failure to understand the Employer's position with respect to the requirement of 6 continuous hours prerequisite for a lunch period. The Union's proposal under section 15-06 was discussed. That proposal's proviso read: "Any new benefits offered to employees of the Leavenworth Times or Thomson News- papers shall be granted to newsroom employees, with consent by the union membership." The Employer op- posed any reference to parties other than Leavenworth Times and Local 45. Berg testified that Wood told an unrelated story about his experience at Petersburg, Virgin- ia, with respect to the inability to obtain a better insurance carrier because of alleged intermingling of directors of the newspaper and the insurance company. Wood testified that he pointed out that section 15-06 provided for its incorpo- ration into the employees' insurance plan and any im- provement contained in the Thomson master plan and was necessary because of the proposed zipper clause. Again because of Wood's earlier noted deficiencies as a witness and in view of Berg's much more precise recollection and certainty of demeanor, I credit Berg's recollection as opposed to Wood. According to Berg, at that point in the discussion Wood's narrative of his Petersburg, Virginia, experience led to an argument wherein Wood called Gunderson a liar and French told Johnston to "shut up," which resulted in the suggestion of a caucus by Johnston in order to evaluate the Union's proposal on bereavement. The parties returned after the caucus but continued to talk in whispered tones about travel experiences. Wood in particular narrated the difficulties and vicissitudes of traveling. During the course of the meeting Wood again suggested language excluding maternity leave from the proviso of Respondent relating to the limitation of leave of absence, but Gunderson stated that the issue of maternity leave was in the courts and in a "state of flux," whereupon Wood suggested using language which set forth that maternity leave and illness were not covered by the agreement. Gunderson then responded that he would entertain a counterproposal. Before the meeting ended, Wood submit- ted to the Respondent a letter requesting information on summer intern Bryant Biggs (G.C. Exh. 63). Johnston took the position that Biggs was a summer intern and excluded from the unit and the information requested was not relevant. Biggs had worked two summers in 1974 and 1975. Wood asked if Biggs would again work in 1976, and Johnston responded that no decision had been made. Wood reduced his request to a letter (G.C. Exh. 63) wherein Wood indicated that it was necessary in relation to the Union's proposal "for this employment period not to exceed 90 days and your position that 90 days is not long enough." The information requested was the period of employment of Biggs during the previous two summers. Johnston responded by letter dated January 28 given during the course of that meeting, wherein it was recited that Biggs was a full-time student and that Biggs was not, therefore, within the bargaining unit inasmuch as "students do not have the substantial and continuing intent in the employment condition." Finally, the vacation proposals were discussed and the Union suggested incorporation of the mechanical contract language, but Gunderson refused, contending that the Employer was not willing to reduce "everything to writing" and stated "when you reduce it to contract language it is much more difficult." Gunderson admitted stating during the course of the meeting: "When you organize a small newspaper or a small unit the employer is unwilling to reduce everything to contract." During the course of the meeting other areas were discussed with no agreement such as the savings clause and the impact of nullifying legislation, the Employer counter- proposal on leave of absence, and the protection of "priority" in different situations, such as when an employee is on union business or military leave. Meeting 19, February 26, 1976: The parties at this meeting remained essentially the same with the exception of an augmentation of the Union's bargaining team by the presence of a mechanical unit employee, Gardner, and International Union Representative Jack Boris. Respondent commenced the meeting by submitting a written counterproposal covering certain areas (G.C. Exh. 70). The written counterproposal with respect to the savings clause was directed to proposals and counterpropo- sals of the parties submitted at the meeting of January 28. It set forth as follows: "In the event that any section or sections are held to be in violation of the law, then such section or sections shall become null and void to the extent provided by law consistent with the rights of the parties." Boris objected to the clause and complained about the phrase "consistent with the rights of the parties." Boris stated that he did not know the meaning of that phrase since the Employer "has all the rights." It is not clear whether Respondent gave any explanation in response. The second aspect of Respondent's counterproposal dealt with section 11-01, "holidays," of the Union's original proposal. It offered consideration for the with- drawal of the Union's sections 18-03 through 18-05 and section 18-24 (first seven paragraphs). These sections again referred to the protection of loss of "situation or priority standing" under certain situations such as, for example, attendance at the ITU training center in Colorado, illness, activity on behalf of the ITU, and admission into the ITU printers home (convalescent home). Also it related to the proposal that employees be granted leave of absence upon request and reinstatement upon termination of leave of absence. In return for the withdrawal of certain union reproposals, Respondent offered to modify its previous position with respect to priority protection by adding the following language: "Sick leave shall not be covered by this provision; maternity leave shall be covered by statutory law." Respondent's earlier position, as set forth in its counterproposal of January 28, was that in return for withdrawal of the 18 series cited above Respondent would offer section 11-01, which again incorporated an earlier "leave of absence" proposal of December 17 with an additional language to the effect that: "The employer may continue group insurance coverage by paying the entire 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cost of the insurance for the term of the leave of absence subject to insurance carrier conditions." 9 The third portion of Respondent's counterproposal of February 26 dealt with the distribution of cost of an arbitration transcript. It set forth that if either party desires not to share in the cost of the transcript then that party shall not have access to the transcript without written permission of the other party. In addition to Boris' objection to the savings clause, the Union pointed out that its proposal provided that nullify- ing legislation only affect the particular portion of the section of the contract, whereas the Employer's clause regarding legislative impact would affect the entire section. With respect to transcription cost, the Union submitted a counterproposal which stated: "The employer and the Union should share equally in the cost, fees and expenses of an arbitrator. If either party desires a copy of the transcript, such party shall pay for their own copy" (G.C. Exh. 74). Wood simply testified that there was no agree- ment, although this matter was discussed. According to Berg's uncontradicted testimony, Boris appeared to have been taking a position that if the arbitrator had possessed a copy of the transcript then, in effect, both parties would have assumed the cost of the arbitrator's copy, and therefore, either party would have the right to inspect the arbitrator's copy. According to Berg, Gunderson replied that that was not the issue but rather the issue was "whether or not a party had the right to inspect the copy of the transcript where only the other party paid the entire cost of the transcript." A caucus was taken and a confusing discussion ensued over interpretation of the American Arbitration Association's rules. No agreement was reached. At this point, according to Berg's uncontradicted testimony, Wood again referred to the meeting in January and accused the Company of accusing the Union of "garbaging up" the negotiations. Johnston tried to explain that he used the word as a verb such as to "clutter." At that point, Wood stated that the Company was proposing its language with respect to the cost of distribution of the arbitration transcript so that it could hide any change it might desire in the transcript. Gunderson did not respond to that accusation. Wood testified very cryptically that on February 26 the grievance procedure was again discussed, but no agreement was reached. No testimony was offered by Respondent as to what was discussed with respect to the substance of the grievance procedure. The topic of Respondent's sick leave policy occupied a good deal of discussion at this meeting. Boris asked Respondent to define its policy. According to Berg, Gunderson responded that it was "discretionary" where- upon Boris objected that there was no standard. Again, according to Boris, Gunderson responded that there were standards and at that point Johnston enumerated them. According to Berg, Johnston stated that the criteria that the Employer used in the past were seniority, length of service, ability, and past history of sick leave and how much pay was granted. At that point, according to Berg, Boris 9 With respect to the reference in the counterproposals regarding insurance, it should be noted that as of January 28 there was no counterproposal by the Company on the substance of an insurance program objected and Gunderson attempted to explain that Re- spondent effectuates its sick leave policy on an ad hoc basis. Boris' answer to that was "we're going to have it." Wood testified that Gunderson refused to reduce its sick leave policy to writing, and stated that "until you under- stand that, we're going to have problems." This statement, which I credit, is in accord with Respondent's stand throughout negotiations that at most it would set forth in the contract that sick leave was to be accorded pursuant to the discretion of the Employer, but that anything beyond that was too difficult to reduce to writing because of the nebulous nature of its ad hoc decision making process. At this meeting, Wood reduced to writing, in the form of a written letter to Johnston, the following request: "We hereby request your duration of sick [sic ] leave with pay for each employee over the past 2 years and the amount of time lost without pay during this time. We wish to know the reasons for granting pay or not granting pay" (G.C. Exh. 71). Another topic discussed at length was the Union's proposal with respect to lunch periods. After the discus- sion, Respondent took a caucus and returned and submit- ted a counterproposal on lunch periods (G.C. Exh. 72). It set forth as follows: A lunch period of at least 30 minutes shall be allowed an employee who works continuously 4 hours or more and shall be unpaid time. The lunch period shall be taken as the work load allows especially on Saturday night." The Union submitted a counterproposal (G.C. Exh. 73). It set forth as follows: A lunch period of at least (30) minutes shall be allowed and shall be unpaid time. The lunch period shall be scheduled as near the middle of the employer's work schedule as the work load allowis]; provided an employee who works 4 hours or less on a particular day shall receive no lunch period by mutual agreement." The record is not clear why an agreement was not reached. Presumably, the Union's position was that it objected to the word "continuously" as it had in the past and that its position was that an employee was entitled to a lunch hour as long as he worked 5 or more hours. Thus, a lunch could be taken in the middle of a 5-hour shift, that is, after 2-1/2 hours. Respondent's position apparently was that an employee must work continuously for 4 hours before he shall be granted a lunch period. In the past meetings, Wood had testified that he had difficulty in obtaining a definition from Respondent as to the word "continuously" and, indeed, this is what prompted the current exchange of counterproposals. Wood's testimony is not clear, however, that at this meeting Respondent refused to explain the meaning of its current counterproposal. In any event, no agreement was reached. Prior to taking a dinner break at 7:45 p.m., the Union submitted its written letter regarding nonobjection to a or pension plan. Also, there was no new union proposal on January 27 or January 28 with respect to a pension plan or insurance. 664 THE LEAVENWORTH TIMES wage increase to Respondent (G.C. Exh. 75). This letter referred to the past written request of January 28, wherein it waived objections to the implementation of a wage increase for all full-time newsroom employees. The letter also reflected that wages had been put into effect every 6 months for several years, and that the latest increase was due "in early January." The letter concluded by stating "should the company continue to withhold this increase, the Union will have no alternative but to view it as unfair labor practice." It is conceded by Respondent that a wage review was made in January of all employees not covered by the mechanical contract, and that there were granted selective merit wage increases. Furthermore, there is no issue that employees in the newsroom would have been granted merit increases on a selective basis had it not been for the negotiations. After the dinner break the parties resumed bargaining about 8:30 p.m., and discussed the distribution of transcript cost as referred to above. They also discussed the topic of sick leave in relation to vacation; i.e., the Union took the position that an employ- ee on vacation who becomes ill should be able to tack onto his vacation pay, sick leave pay. The Respondent refused. Johnston stated "an employee cannot come off vacation and go on sick leave." Wood then turned to the topic of the December 17 union proposal on recognition and asked specifically, what the problem was, if any, with respect to excluding stringers and correspondents from the coverage of the contract. According to Wood, Gunderson responded that they were already excluded and Wood stated that the Board's certification was silent as to stringers and correspondents. Gunderson, however, repeated that there was no need to refer to their exclusion. Gunderson then referred to the section 9-01 with respect to the exclusion of part-time employees, and Wood stated that he responded to Gunder- son by stating that the Union had already rejected the Employer's proposal to exclude part-time employees. A short caucus was taken by Respondent and upon their return, Wood requested information on Bryant Biggs. Johnston responded that information as to Biggs was not pertinent because Biggs was not in the unit whereupon the parties agreed to adjourn and to meet on March 22. Meeting 20, March 22, 1976: Essentially, the same parties were present except for the absence of Gardner and Boris. The meeting lasted from 4 until 11:10 p.m. The meeting commenced with a presentation by Johnston to Wood of a written response to Wood's February 26 letter requesting sick leave information (G.C. Exh. 76). Therein Johnston responded: "As stated at the bargaining table previously there is no distinction between hours worked and sick leave payments on company payroll records, so as to answer your inquiry." Wood asked whether anyone at the bargain- ing table recalled ever being off on sick leave, and Mrs. Williams, a member of the union team, indicated that she had been off at one time for an entire week because of illness and did receive pay. At one time Johnston had indicated that there were instances of individuals being paid for I-day absences because of illness but as to anything beyond that he had no recollection. Apparently, Mrs. Williams' absence occurred 5 to 6 years earlier. Johnston recalled that there were two instances where employees were on extended sick leave, one of which involved Mary Combs, but he was not certain. Wood asked Johnston to check his records as to the interruption of employment of Combs to determine whether that interrup- tion correlated in time to her illness. Johnston agreed to do so. He had said that Combs had been employed 10 years and the search might have to encompass 10 years. Wood, however, asked Johnston to go back 2 years from that point. It should be noted that the Union never asked for specific records but only information. Johnston agreed to search his records to see if there was any interruption in Combs' work record and to see if during a period of time she did not receive compensation which might correlate to the time of her illness. However, Johnston still reminded Wood that despite what the records would indicate, the Employer's policy was still the same; that is, to look at each situation from a discretionary aspect and it was not likely that any two situations would be the same. Johnston testified that subsequently he did make a search of records going back 6 years and that he had assembled records preparatory to a meeting that was to be held on April 6 but was subsequently canceled. Johnston testified that he researched the "payroll sheet" which does not reveal whether or not an employee was out on sick leave during the period in which he or she was compensated. However, he conceded on cross-examination that he did not research the timecards because "I had no reason to believe they were marked sick." The timecards had not been in use prior to March 1975. Therefore, whatever data was revealed on the timecards could only reflect a period of about I year prior to the March 22 meeting. However, Johnston was completely ignorant of what information could be obtained from timecards and he merely assumed that they would not reflect whether an employee was compensated while they were out on sick leave. According to Berg, Gunderson reiterated the Employer's discretionary sick leave policy and stated that it was only a problem with respect to inserting it into the contract because of the difficulty of reducing to contract language standards which were relied upon by the Employer, and which varied and were determined on a case-to-case basis. Thus, up to this point the Employer offered no counterpro- posals which made any attempt to reduce the criteria to writing. Wood asked Respondent as to what its intentions were with respect to the selective wage increases which were due to newsroom employees in early January. He received the response that to acquiesce to merit wage increases would have the effect of altering the Company's wage proposal; i.e., the current wages being paid. Respondent then requested a caucus at 4:48 p.m., returned at 6:02 p.m., and presented a "wage proposal" (G.C. Exh. 77). Its wage proposal, section 8-01, read as follows: The policy of review and the adjustments of individual salaries at the discretion of the employer shall continue, and salary determination will be based on length of service, proficiency, and demonstrated professional ability, provided that no full-time employee including new hires recognized as included in the bargain unit as defined [in] NLRB Case No. 17-RC-7472, dated 665 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 13, 1974, shall receive less than a weekly wage specified in the following categories: News/Editor Editor/Reporter ----- Editor/Compiler ----- Photographer/Reporter - ---- Reporter ----- Compiler/Reporter ----- News Assistant ----- Any change in the wage category for each employee shall be determined by the employer based on the most suitable category as reflected by the employee's assign- ments over the preceding 6 months. Wood raised several questions concerning this "wage proposal," particularly as to whether each category was meant to encompass each one of the then seven employees in the newsroom unit. Johnston explained that the number of categories set forth was merely coincidence and that some categories would not necessarily have been extant at that point, as for example, "news assistant." As Berg testified, Johnston explained that these categories were to be used as a way of "moving toward the establishment of framework from a salary or a wage proposal." Berg further testified that, in response to Wood's questions concerning who would be classified as a reporter, Johnston responded: "Slotting individuals is judgmental by the employer" and that he, Johnston, would have to consult Anderson as to who would be placed in that category. According to Berg, Wood asked Johnston what was meant by the blanks following each classification, and Johnston responded that they were initial steps to a framework and conceivably to be steps based on length of service. According to Berg, Wood also asked about the variations of pay between the senior employee versus the new employee, and Johnston responded that "this would provide for steps to be "negotiated" and that the proposal implied the "current wage scales [then] in effect at the Leavenworth Times." The discussion terminated. Berg was corroborated by Gunderson, who testified that Johnston explained that the Company's proposal on the table was the "current wage scale" which was implied therein, and that Johnston stated that wages and fringe benefits were to be the subject of bargaining. According to Berg, Johnston stated that he had moved by effecting two wage and salary reviews and selective merit increases in 1975, but that the Union remained at the same wage proposal as contained in the original contract proposal. On the other hand, Wood's recollection was that when presented with the March 22 "wage proposal" he objected that the language of the proposal left wages at the discretion of the Employer, particularly in view of the blanks following each of the job classifications. Wood testified that in response to his objection, Johnston stated that salaries were to be deter- mined at the discretion of the Employer. Wood testified that he asked Johnston to fill in the blanks and also to implement the periodic wage and salary review and merit increases, and that Johnston responded: "The fact that we to Subsequently, in June 1976, Respondent notified the Union of a proposed wage increase which did go into effect with the July 1976 payroll. are bargaining has [preempted] our willingness to become compassionate with the people ... what you are counting on is that we are going to keep sweetening the kitty, and when we get down to the end you're are going to want us to [sweeten ] it some more." Wood further testified that when he asked for a direct answer as to whether the wage and salary review and merit increases were going to be put into effect, he received no answer except that Gunderson feft the room upon a short recess and returned and gave no further answer. I do not credit Wood's testimony that Johnston insisted that wages would be left to the discretion of the Employer. The proposal on its face clearly indicates a specification for a minimum weekly wage for each specific category. However, what the proposal clearly does indicate is that the Employer shall have discretion to review and institute wage increases beyond that minimum. Therefore, I credit Berg and Gunderson that Respondent was not taking a position that the minimum rates were to be left blank only to be filled in at the discretion of Respondent. However, it is conceded that, with respect to the implementation of the January wage review, which in fact had been performed by Johnston earlier in January, and specific figures for selective merit wage increases for full-time employees which had been reached, they would not be implemented so as not to "[sweeten] the pot," and, further, Wood conceded that Johnston did state that "the fact that we are bargaining has [preempted] our willingness to be compassionate." It is Berg's uncontradicted testimo- ny that at the March 22 meeting Johnston stated that Respondent's total dollar package would include wages and fringe benefits, that they were all tied together and would be considered "economic," that Johnston reminded the Union at the March 22 meeting that the Union still bad on the table its original 1974 wage proposal, and that subsequent to that wage proposal Respondent had put into effect two merit wage increases.' 0 Prior to this March 22, 1976, meeting, Johnston had consulted with Berg with respect to the implementation of the two earlier wage increases. Johnston also wanted to put in effect the January 1976 wage review and merit increases and he again consulted with Berg as to whether or not he should do so. However, Berg advised him not to put in effect the January 1976 wage increases for the newsroom employees, and instead advised that Respondent make its wage proposal "to stay at the current level and see if this would push the negotiations forward." Berg testified that this advice was based on the fact that he wanted to see the parties "move forward and end up with a meaningful collective-bargain- ing agreement," and that he thought that this was one way which would put some impetus toward that goal. The discussion turned to other matters. Gunderson noted that the Union's dues-checkoff provision was still on the table. Wood responded affirmatively, but apparently no agreement was reached, although it appears that Gunder- son withdrew his doubts as to the legality of the clause. Respondent presented a counterproposal on lunches and leave of absence (G.C. Exh. 78). It provided in part that an employee would not be required to work continuously for 6 hours without a lunch period. It also provided in part for 666 THE LEAVENWORTH TIMES the exclusion of sick leave and maternity leave from the provisions of the contract with respect to leave of absence, thus not limiting sick leave and maternity leave to the 30- day maximum. With respect to the lunch period several more proposals and counterproposals were entertained and the Union finally accepted Respondent's last counterpro- posal (G.C. Exh. 81). That proposal provides "30 minutes of unpaid time for an employee who works continuously for 4 hours or more whereas an employee who works less than 4 hours shall receive a lunch period at request only upon approval by the employer," and finally that "the lunch period would be taken as the workload allows but [in] no instance shall an employee be required to work for 6 hours without a lunch period." With respect to the leave- of-absence clause, Respondent agreed to accept the Union's counterproposal on leave of absence and to bargain later with respect to the 18-03 through 18-05 series. The previous discussion relative to the distribution of transcript cost was repeated and no agreement was reached. The parties mutually agreed to meet again on April 6, 1976. Thus, during the 10(b) period the only agreement achieved by the parties were those on March 22, relative to the lunch period and the leave-of-absence clause. On April 2, 1976, in Case 17-RD-608, employee Stephen L. Siga- foose filed a petition for decertification with the Regional Director. Accordingly, Respondent canceled the scheduled meeting for April 6 and refused to meet thereafter. Willets Conversations William G. Willets was employed at the Leavenworth Times in October 1974 in the newsroom unit. When he was hired he was told by Managing Editor Anderson that merit raises were due the following January. Therefore, he expected a raise in January. In January 1975, he spoke to Anderson and asked him if he were to receive a merit wage increase and was told that wage increases were tied up in union negotiations. In January 1976, he received no wage increase, and therefore, he approached Anderson and asked him why he did not get a wage increase that January. Anderson told him, according to his unrebutted testimony, that salary and wage increases were not given to the newsroom unit employees at that time because Respondent was engaged in negotiations for a contract with the Union and wages were a topic for negotiations. Furthermore, Anderson told him that any raises given to employees would be a starting point for the Union in negotiations for the ultimate contract that was to be signed, and that the Union up to that point had failed to make "any movement in economics." There was no mention at that time of voting out the Union. In February, Willets engaged in another conversation with Anderson in regard to his salary. His memory was admittedly "foggy" but he did testify that he had been promised a wage increase in October to be given around the first of the year if he did a good job, but that in February Anderson told him that he would not get a merit increase because of the union negotiations. Willets again approached Anderson in April 1976. This occurred subse- quent to the filing of the decertification petition. Both Willets and Anderson stated in the conversation that they would both be glad when the election was over with "one way or the other," The conversation also occurred after the filing of the unfair labor practice charge in Case 17-CA- 7077. On direct examination, Willets testified that Ander- son stated that he was aware of the decertification petition, that Anderson expected that a vote would be taken on whether or not to have the Union as a bargaining agent, and that he expected that the Union would be defeated. Willets then testified that the two of them discussed salaries and that Anderson stated that when he had the opportunity he would be giving salary increases "to me and Steve Sigafoose, the largest on the staff." On cross-examination Willets testified that he stated to Anderson that he, Willets, would be glad when the decertification petition was "over with" so he could negotiate directly with Anderson about raises, whereupon Anderson stated that it was improper for him, Anderson, to talk about raises with Willets because that could be construed as an unfair labor practice. Willets then clarified his testimony on direct examination by stating that at that point Anderson told him that he and Sigafoose would "probably be getting increases if and when any were granted 'based on job performance.' " Thereupon Willets asked how large the increases would be and Anderson responded that it would "not be proper for the managing editor to talk to employees about how big a raise they would get." Willets conceded he never asked when he would receive a wage increase but stated that "it was implied" that they would be received "after the election if the Union was defeated." On further questioning he changed his testimony to state that it was "implied" that raises would be given after the "Union negotiations" were completed and "not necessarily after an election." This is the extent of testimony that the General Counsel has submitted in support of its contention that Respondent "solicited" and "encouraged" the decertification petition. This contention, however, was not alleged as a violation in the complaint. It was, however, argued by General Counsel to be evidence of the Employer's state of mind with respect to collective bargaining and, therefore, evidence of surface bargaining. Case 17-CA-7100 Factual Background The complaint alleges that on or about March 13, 1976, at his home, Johnston did inform an employee that his starting wages might be higher if he did not join the Union, and further that he did tell an employee that if he did not join the Union he would be subject to harassment from other employees. This allegation relates to a conversation in the home of Mr. Johnston with an applicant for a position as a pressroom employee at The Leavenworth Times. The pressroom employees have been represented for a period of many years and covered by successive contracts, the current one of which does not expire until 1977. Respondent moved to sever this complaint on the grounds that it related to a unit other than the newsroom unit. General Counsel, however, has taken the position that although it relates to an employee in a unit other than the newsroom unit it is indicative of Respondent's mental status vis-a-vis the Union and, therefore, it is material to the 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolution of the bad-faith bargaining allegations in the companion case. Respondent's motion to sever was denied. Employee Mika Fowler testified that he entered on duty on March 15, 1976, as a pressroom apprentice. Prior to his entering on duty he engaged in a conversation with Johnston on Saturday, March 13, at Johnston's home upon invitation. The conversation was characterized without contradiction as one of Johnston's giving the new applicant fatherly advice. It lasted for approximately 45 minutes and covered a description of the job for which the applicant was hired, the amount of salary he would be paid, and the insurance coverage. Fowler testified that Johnston told him that Kansas was a "right to work state" and that he was not required to join the Union. However, Johnston did tell him that the employees in the pressroom were union members and had boasted that if any employee refused to join the Union he would not last more than a week. Therefore, he told Fowler that he could expect to be subjected to verbal harassment by fellow employees should he decide not to join the Union. Johnston further told Fowler that The Leavenworth Times had recently converted to the coldtype process. Inasmuch as Fowler had had experience in that process which exceeded the experience of the journeymen-press- men then employed at Leavenworth Times, some tact would be required by Fowler in his relations with fellow employees; that is, Fowler was told not to "come on too strong." Furthermore, Johnston told Fowler that there had been some opposition by the Union to his being hired; that is, the Union had been suggesting that Respondent transfer a composing room employee to fill the opening which was caused by the retirement of a pressman. Fowler testified that he was advised by Johnston that under the composing room and pressroom contract he would start off in the first year of a 4-year apprenticeship program whereunder he would get 60 percent of the journeymen's rate, and that the only acceleration under the contract would be dependent upon a recommendation of the joint apprenticeship com- mittee pursuant to provisions in the composing room- pressroom contract. However, Fowler also testified that Johnston told him that if he did not join the Union that it was possible that he could receive a raise in 2 weeks' time if Johnston liked the nature of his work. He further testified that Johnston told him about the existence of the Metro- politan Insurance coverage of nonunion employees, but did not mention the Blue Cross coverage of union employ- ees. Ultimately, Fowler did not subscribe to either pro- gram. As a matter of fact he was not eligible for the Metropolitan Insurance program but he testified that he was not made aware of his ineligibility. Johnston testified that he indeed had such a conversation with Fowler but that he did not suggest to Fowler that he could receive a raise in 2 weeks if he did not join the Union. Furthermore, Johnston testified that he told Fowler that Respondent maintained two hospitalization insurance programs. Employees not represented by union contract were eligible for the Metropolitan Insurance program, and Blue Cross and Blue Shield extended to employees covered by the union contract. Johnston testified that he specifical- ly told Fowler that he would be under the jurisdiction of the Union. Further, he admitted telling him that his advancement was subject to review by the joint apprentice- ship committee but denied telling him that he could advance I or 2 weeks if he did not join the Union. Johnston denied telling Fowler that he had an option for insurance plans. Johnston explained that the reason that he discussed the existence of two insurance plans was that Fowler's brother had been employed and was eligible for the Metropolitan Insurance plan and, therefore, he wanted to make certain that Fowler was aware that the insurance coverage that his brother had would not be applicable to him so that there would be no confusion on his part as to which insurance plan he was eligible for. As a matter of fact Fowler subsequently joined the Union but testified that he was subject to no harassment. The resolution of credibility in this particular conversa- tion becomes quite thorny. Fowler had no direct interest in these proceedings and no apparent motive to misrepresent his conversation with Johnston. Johnston had gone out of his way to provide Fowler with an opportunity t9 return to his hometown from an employment situation in another city. On the other hand, it would be illogical for Johnston to have warned Fowler of the possible harassment he might receive from fellow employees if he refused to join the Union, and then attempt to discourage bim from joining the Union and incurring the wrath of his fellow employees and their harassment by offering him the possibility of an accelerated advancement which would contravene pre- scribed contractual procedures covering all unit employees. Surely, Johnston was aware that Fowler would be covered by the contract. He was no novice, having held his supervisory position for several years, and was well aware of the bargaining relationship between Respondent and the Union over the years. He was well aware of the terms of the contract. What good would it have been to Johnston had he wished to discourage Fowler from joining the Union if in fact Fowler did not join the Union only to discover that he was not eligible for Metropolitan Life Insurance coverage and that any acceleration would run afoul of the union contract. Such a development would only accelerate Fowler's eventual union membership. Moreover, John- ston's demeanor as exhibited throughout many hours of examination and cross-examination impressed me as that of a sincere, honest witness who made no attempt to exaggerate, refurbish, modify, or explain away testimony. He impressed me as being fairly forthright and sincere. Fowler, on the other hand, although he had no apparent motive to tell anything other than the truth, impressed me as having for some unknown reason a deep-seated antago- nism. I can only conclude that whatever the basis of this antagonism it obscured his recollection, and that he misunderstood the purpose of Johnston's reference to the Metropolitan Insurance coverage and somehow implied an alternative course of advancement when Johnston ex- plained the advancement procedures set forth in the composing room-pressroom contract. I therefore credit Johnston's version of this conversation. 668 THE LEAVENWORTH TIMES Analysis-Case 17-CA-7077 The Bargaining Relationship Section 8(d) of the Act mandates the parties in a bargaining relationship "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement." The Board has stated on numerous occa- sions that "the obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession." Tomco Communications Inc., 220 NLRB 636, 637 (1975). The Board may consider the totality of the employer's conduct in arriving at a determi- nation as to whether that employer was engaging in hard bargaining or merely surface bargaining, with no sincere intent of reaching an agreement. N. LR.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 138-139 (C.A. 1, 1953), cert. denied 346 U.S. 887. A review of the Employ- er's conduct in this case fails to reveal that Respondent sought to evade agreement on a contract by means of refusing to meet and bargain, or by refusing to schedule more frequent meetings, or by refusing to meet in extensive bargaining sessions. Clearly, Respondent was willing to sit and talk at length with the Union in some 20 bargaining sessions. General Counsel and the Charging Party argue that we must look to the conduct of the Employer away from the bargaining table to help shed light upon its attitude in negotiations. However, the argument that Respondent solicited or encouraged the decertification petition is based upon meager evidence in the form of testimony of employee William Willets with respect to conversations with Managing Editor Anderson. His testi- mony was far from consistent as to precisely what was said and his recollection as to when the conversations occurred was extremely unsure. The decertification petition and unfair labor practice charge had been filed at the time of his most recent conversations with Anderson. In the final analysis, after cross-examination, his testimony recited a statement by Anderson that merit increases would not be given until after "union negotiations" were completed. It is a far cry from evidence that the Employer advised its employees that .hey would receive a wage increase if they voted against the Union. At most, Anderson's statement is reflective of Respondent's announced position at the bargaining table that it would suspend the semiannual merit increase for employees in the newsroom unit. The validity of that conduct will be discussed, infra. A determi- nation of that unilateral action violative of Section 8(aX5) need not depend upon its propagation to employees. If Respondent engaged in conduct violative of Section 8(aX5) of the Act, the necessarily resulting erosion of the Union's support among the employees in any event makes the conducting of a decertification election untenable. There- fore, I find little value in the testimony regarding Ander- son's conversation with Willets. In short, it is subsumed in the issue of whether or not Respondent unilaterally and in violation of Section 8(aX5) withheld the semiannual merit increases to the unit employees. General Counsel and Charging Party allude to Respon- dent's conduct in the companion case as further indicia of bad faith. This conduct related to the hiring of an employee in a unit separate and distinct from the newsroom unit. The employer had for many years a collective-bargaining relationship and had executed successive contracts with the Union. All employees in the mechanical unit were mem- bers of the Union. As indicated above, I do not conclude that Johnston attempted to dissuade a prospective employ- ee from joining the Union. The only factual element remaining in that case is that Respondent advised an employee of rumors that if he refused to join the Union he would be subject to harassment from fellow employees. I fail to see any relevance of that conduct, which if anything encourages an employee to join the Union, to the issue of the Employer's good faith at the bargaining table in the newsroom unit. Therefore, I must necessarily have recourse to an evaluation of the conduct of the Employer at the bargaining table. The Charging Party places great emphasis in its brief upon the alleged tardy submission of Respondent of its contract proposals to the Union on February 3, many months after the August 1974 certification. It further stresses the lack of progress in the first three meetings. However, this is an untenable position in view of Local President French's casual approach to these meetings which he characterized as a mere "familiarization" process. He quite agreeably spent three whole bargaining sessions reciting the Union's position which he himself did not totally understand. He did not make a demand for any company proposal until well into negotiations and admit- ted that his explanation of the union proposals would take "quite some time" anyway. Though he received a proposal from the Employer on February 3, he made no effort to obtain meaningful assistance from the International Union until he called Wood on February 22. It is next argued that Respondent engaged in conduct at the bargaining table which is violative of the Act by reneging on contractual provisions upon which there had been previous agreement. There is some rather mild testimony in the record that at the point when Wood entered negotiations he had understood that there had been some prior agreement. However, this is clearly inconsistent with French's testimony that the meetings were merely a "familiarization" at which no in-depth conversation took place. Therefore, Johnston's testimony is credited wherein he set forth that although he nodded his head and indicated that there may not be problems on some language, or that he understood the Union's position, there was no agreement as to any contractual provision prior to Wood's entrance on the bargaining scene. More specifically, the General Counsel and the Charging Party argue that Respondent engaged in bad faith when it reneged on its previous agreement with respect to bereave- ment leave. Certainly it is as General Counsel argues well- settled Board law that withdrawal from a previous agree- ment "without good cause" demonstrates a lack of good faith on a part of an employer. However, Respondent herein did not frivolously withdraw his tentative agreement on bereavement leave. A genuine disagreement arose over whether bereavement leave accrued to an employee while on vacation. Thus, Respondent, in order to clear up a misunderstanding as to the scope and extent of bereave- ment leave, withdrew its prior agreement. Under such 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances I do not find that such conduct is indicative of bad faith. Cf. Holmes Typography, Inc., 218 NLRB 518, 524 (1975). An evaluation, therefore, must be made of the totality of the Employer's conduct at the bargaining table including its contract proposal, its posture with respect to the proposals of the Union, its willingness to make concessions or not to make concessions, its willingness to negotiate with respect to the basic elements of the collective-bargaining agreement, and its statements at the bargaining table indicative of its attitude. To do so, it is necessary, therefore, to delve in great part into the pre-10(b) period in order to evaluate Respondent's subsequent bargaining stance. Wal- Lite Division of United States Gypsum Co., 200 NLRB 1098 (1972). From the outset of negotiations Johnston himself made clear that Respondent as a smalltime newspaper operation could only operate effectively with the fewest possible limitations upon its management prerogatives. Although Respondent was willing to sit and negotiate meeting after meeting for 20 meetings with the Union, and avowed an express intent to reach collective-bargaining agreement, its concept of a satisfactory collective-bargain- ing agreement and its determination to avoid as many restraints upon its descretion as possible were of such a nature as to render any possible agreement with the Union as extremely remote. Undoubtedly, Johnston was con- cerned about the impact upon the efficiency of running this small newspaper with a circulation of only 10,000 and a newsroom complement of only seven employees. Certainly, it is a valid and legally viable basis for an employer to negotiate as best he can the most advantageous contract for himself. The problems of running a small newspaper are indeed unique problems. Clearly, it was an endeavor which differed from the negotiations of a mechanical room contract to which the union negotiators had expertise. However, Respondent's insistence upon the highest degree of discretion in the operation of its business came nearly to the point of a demand that the collective-bargaining representative of the employees in that appropriate unit have little or no impact upon some extremely basic conditions of employment. This is evidenced by the numerous occasions where either Gunderson or Johnston resisted contractual references to vacation scheduling, vacation carryover, sick leave, compensation for business expenses, leave of absence, etc. The keynote was that the Employer wanted to retain its discretion in these areas. Thus, although Gunderson testified that Respondent never asked for a reduction of present benefits of employees, he did not specifically rebut Wood's testimony that on November 6, 1975, "Mr. Johnston told [the Union] at this point that if we insisted on sick leave [in] the contract, it might restrict the amount of the sick leave that people in the bargaining union would receive." And further during a discussion on vacation proposals on January 28, 1976, "Mr. Gunderson said that when a union organizes a small newspaper like this, the employer is not willing to reduce everything to contract. He emphasized it by repeating that statement, saying, 'Yes, the employer is not willing to reduce everything to writing.' He said, 'When you reduce it to contract language, it is much more difficult.' " Thus, the key message to the Union was that the employees should "trust us." However, the very concept of collective-bar- gaining involves the objective of a collective-bargaining agreement which sets forth to employees certain definitive assurances as to their terms and conditions of employment. Further evidence of the employer's determination to remain unfettered by the restrictions of a collective-bar- gaining agreement is its very contract proposal which contained no reference to sick leave, pensions, life insur- ance, or hospitalization benefits despite the fact that the employees in the newsroom unit were the recipients of those benefits. Gunderson made a rather specious effort to characterize the information relating to presently enjoyed benefits submitted to the Union early in negotiations as an "offer," or as a "commitment," but he finally conceded that Respondent never at any time made a specific offer to put those benefits into the contract. Respondent's contract proposed and contained a zipper clause and a broad managements rights clause which, in view of Respondent's position with respect to eliminating from the contract reference to numerous benefits of employees, was actually a contract proposal offering little or no assurances to employees as to their basic conditions of employment. Respondent's offer with respect to wages and salaries, when it finally came extremely late in negotiations, was in effect an offer that the employees continue to get what they had been getting in the past, and that any increases beyond that would be subject to the Employer's own review and discretion. With respect to wages, Gunderson had persisted in evading or diverting the negotiations away from that subject toward what he considered "the gut issues" of the noneconomic area. However, it was clear that very little progress was being made on those so called gut issues such as sick leave, where the Employer adamantly insisted on complete discretion; jurisdiction, where Respondent adam- antly insisted on the right to assign unit work to whomever it wished; leave of absence; vacations; etc. Prolonged, agonized discussion took place over the semantics of a recognition clause, the verbiage involved in an outside activities clause, and a lunch period proviso despite efforts by the Union to accommodate the Employer's production problems. Respondent's first proposal of any substance with respect to wages occurred at the March 22 meeting. This occurred after 19 previous bargaining sessions. Its proposal encompassed a breakdown of a minimum rate of pay which it stated was "implied" as the current salary for classifications that were not yet in existence. The attempt to categorize job functions indeed was a peculiar stand for an employer who had been arguing against artificial restraints and limitations embodied in a collective-bargain- ing agreement unsuitable to a small newspaper operation. In any event its refusal to get into negotiation of economic matters up to that point ran contrary to the concepts of good-faith bargaining. The Adrian Daily Telegram, a Division of Thompson Newspaper, Inc., 214 NLRB 1103 (1974). Also revealing of Respondent's attitude toward bargain- ing is the admitted suspension of the semiannual practice of evaluating and implementing selective merit wage increases for full-time newsroom employees on or about January 1, 1976. Respondent argues in its brief that the action was not unilateral and in any event was a justifiable 670 THE LEAVENWORTH TIMES use of economic power and a tactical bargaining tool in order to expedite agreement on a contract, and in particu- lar wages and salaries. Clearly, the action was unilaterally conceived. There is no question that the Employer did maintain such a practice of salary and wage reviews and merit increases. The January review was made and figures were arrived at but employees in the newsroom unit were not granted a wage increase in January. The question was first raised by Wood at the January 28 meeting. It wasn't made clear until thereafter that Respondent did not intend to implement those wage increases. Clearly, there had been no bargaining up to this point with respect to the suspension of the Employer's practice of granting a merit wage increase to full-time newsroom unit employees. The Union was faced with afail accompli. Under such circum- stances any subsequent meaningful bargaining must, there- fore, have necessarily been obstructed. Allied Products Corporation, Richard Brothers Division, 218 NLRB 1246 (1975); enforcement granted in part and denied in part 548 F.2d 644 (C.A. 6, 1977). Respondent was very careful to adduce testimony that up to that point in time the Union had on the bargaining table its original economic offer encompassing a wage increase of anywhere from 50 to 100 percent above the highest paid reporter or employee. Thus, it is true, as Respondent suggests, that the Union had not made any subsequent wage counterproposals. However, because Gunderson had refused to negotiate concerning wages no meaningful discussions had ever taken place regarding a wage proposal. The manifest effect of such unilateral action was to signal to the employees in the unit that they were worse off with a union than they would have been without a union. The March 22 proposal containing blank spaces which "implied" current wages minus what employees would have received early in January hardly rose to the dignity of the meaningful wage bargaining stance. Accordingly, I conclude that Respondent violated the mandates of good-faith bargaining by its unilateral action of withholding merit increases from the newsroom employees on or about January 1, 1976, and that such action also is indicative of its total attitude toward bargaining.1 The final allegation in the complaint deals with Respon- dent's failure to provide information regarding its sick leave policy. Respondent consistently took a position that it desired not to have any reference to sick leave in the contract but that at most it would recite therein that sick leave was discretionary. It did not embody such willingness in any written counterproposal. It refused, however, to put into any viable form the statement of criteria upon which it relied in the past. It stated that certain criteria was in fact utilized. The Union, in attempting to meet the position of the Employer as to the difficulty of embodying in a written format some criteria, requested information as to what sick leave employees had been granted in the past and for what period of time. Respondent took the position that no such information existed. The name of an employee was offered to Respondent and Johnston agreed to check her records. He indicated that the records revealed no such informa- " For a similarity with respect to the unilateral action as well as Respondent's bargaining stance see Dotrhan Eagle, Inc., a subsidiary of Thompson Newspapers, 174 NLRB 804 (1969); enfd. 434 F.2d 93 (C.A. 5, tion. However, this position flies in the face of the testimony of Berg. It should be recalled that Berg testified that at the February 26 meeting, when International Representative Boris interrogated the Employer as to his policy and specifically what his standards were, Johnston responded with an enumeration of criteria including the past history of sick leave and the extent of such. If no data existed how could the Employer apply such criteria even on an ad hoc basis? Moreover, Johnston admitted after prolonged cross-examination that he did not even inspect the timecards which had been in existence for at least a year prior to the request, and which may or may not have indicated the amount of time an employee may have utilized in sick leave. The inescapable conclusion is that Respondent was engaged in gamesmanship with respect to negotiation of the sick leave proposal of the Union and made no serious effort to obtain relevant information requested by the Union. Its conduct with respect to sick leave is in accord with its prior refusals to submit information with respect to the employment experience of the summer intern, Bryant Biggs. Respondent's sole basis for refusing information was that Biggs was not encom- passed in the bargaining unit. However, the Union suggest- ed such information to make a determination whether Biggs was in or out of the unit and furthermore what impact his employment might make upon unit employees as for example in the scheduling of vacation leave. The refusal to grant information on Biggs, however, was not alleged in the complaint and was adduced as evidence of Respondent's attitude toward bargaining. However, I conclude that Respondent breached its bargaining obliga- tion by refusing to provide meaningful information to the Union concerning past sick leave allowances, and that such conduct together with the totality of its conduct is sufficient to warrant a conclusion that Respondent en- gaged in surface bargaining from October 2, 1975, to March 22, 1976. Analysis - Case 17-CA-7100 Having found that Respondent, by its agent and general manager, J. H. Johnston III, did not inform an employee that his starting wages would be higher if he did not join the Union, there is left to this aspect of the complaint only the allegation that Respondent violated the Act by the conduct of Johnston in telling an employee that if he did not join the Union, he might be subject to harassment from fellow employees. The prospective employee was hired against a background wherein the Union had been advo- cating the transfer of an employee from the mechanical unit into the newsroom. Johnston had testified that he had been aware of rumors that employees had taken a poll and boasted that no nonunion employee would last longer than a certain period of time. He advised the prospective employee of his right to join or not join a union but warned him of the existence of such boasting. I find the action of the Employer to constitute no more than a prediction and an opinion of what might happen within such context. This is quite different from a statement of the Employer that he 1970). In that case the chief negotiator for Respondent therein was James Baysinger, the predecessor of James Gunderson herein. 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will be responsible for or adopt the harassment of an employee by his supervisors or by other employees. Accordingly, I conclude that such conduct of the Employer does not violate the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW I. Respondent, The Leavenworth Times, a Division of Thomson Newspapers, Inc., is an employer engaged in commerce within the meaning of the Act. 2. Leavenworth Typographical Union, Local No. 45, affiliated with International Typographical Union, AFL- CIO, is a labor organization within the meaning of the Act. 3. All full-time and regular part-time newsroom depart- ment employees employed at the Employer's 418-26 Seneca Street, Leavenworth, Kansas, facility, including editors, reporters, staff writers and photographers, but excluding the general manager, managing editor, office clerical employees, and guards, professional employees and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for collective-bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein Leavenworth Typo- graphical Union, Local No. 45, affiliated with Internation- al Typographical Union, AFL-CIO, has been the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act for all of Respondent's employees employed in the unit described above in Conclusions of Law 3. 5. Since on or about October 12, 1975, Respondent has refused and continues to refuse to bargain collectively in good faith with the Union herein as the exclusive bargain- ing representative of its employees in the unit described above in Conclusions of Law 3, by engaging in a course of surface bargaining with a fixed intent to avoid reaching agreement; by unilaterally limiting on January 1, 1976, its semiannual granting of wage reviews and wage increases to nonunit employees thereby withholding all wage increases under its established practice from those employees repre- sented by the Union in the unit described above in Conclusions of Law 3; and by refusing on November 6, 1975, and February 26, 1976, to furnish the Union with information concerning the sick leave policy covering employees in the unit described above in Conclusions of Law 3. 6. Respondent has not violated the Act by telling an employee that if he did not join the Union he would be subject to harassment from other employees in the press- room, or that he would be granted an accelerated promo- tion. 7. The unfair labor practices recited above have a close, intimate, and substantial effect on the free flow of com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The General Counsel and the Charging Party seek in addition to a bargaining order, the extraordinary relief prayed for in paragraph 9 of the complaint in Case 17-CA- 7077, which petitions that Respondent shall be ordered to: (a) Bargain with the Charging Union upon request and within 15 days of the Board's Order to issue herein. (b) Meet in bargaining upon request either on consecutive days or, alternatively, for a minimum of 15 hours per week until agreement or a lawful impasse is reached. (c) Consent to a union request that a Federal Mediation and Concilia- tion Service representative be present at negotiations. (d) Prepare written bargaining progress reports every 15 days and submit them to the Regional Director for Region 17 of the Board and also serve true copies of such reports on the Union to provide the latter an opportunity to reply. (e) Reimburse the Union for its past and future bargaining committee expenses, including union representatives' sala- ries and any employees' wages paid by the Union during bargaining sessions and also lodging, mileage, or other traveling expenses and any clerical expenses, until either agreement or a lawful impasse is reached. (f) Reimburse the Union for past and future fees and/or other money paid to an attorney in connection with said attorney's bargaining role, until either agreement or a lawful impasse is reached. Additionally, the Charging Party requested reimburse- ment of litigation expenses and costs incurred by the Charging Party in pursuing the instant charges. The General Counsel and the Charging Party conceded the extraordinary nature of the relief prayed for. Charging Party and General Counsel cite the Board's decision in Heck's Inc., 215 NLRB 765 (1974), in support of the argument that the litigation expenses should be awarded. The General Counsel also cites that case in support of its argument that the Union be compensated for expenses incurred during negotiations. In Heck's Inc., the Board reviewed and considered the question of awarding litiga- tion expenses and costs and reaffirmed the position as previously expressed in Tiidee Products, Inc., 194 NLRB 1234 (1972), that the award of litigation expenses except in extraordinary circumstances involving frivolous defenses would discourage a respondent from gaining access to the aFpropriate forum in order to fully litigate debatable defenses. As observed by the Board in Kings Terrace Nursing Home and Health Facility, 227 NLRB 251 (1976): "In Tiidee Products, Inc., supra, wherein litigation expenses were assessed against a respondent, the respondent had engaged in numerous violations of the Act, reflecting a hostile attitude toward collective bargaining. The Board emphasized that the remedy was justified because of the "patently frivolous" nature of the defense offered by the respondent. Where the defenses raised by the respondent are "debatable," rather than frivolous, the remedy has been found to be unwarranted, even where the employer has "engaged in 'clearly aggravated and pervasive misconduct' or in the 'flagrant repetition of conduct previously found unlaw- ful' " [Citing the Heck's case, supra]. In the instant case, the General Counsel argues that Respondent's conduct is similar to that of the respondent in the Dothan Eagle case, supra, and thus repetitious. However, the Dothan Eagle case involved a different newspaper, a different geographical location, and a differ- 672 THE LEAVENWORTH TIMES .,t unit. Although there is a great deal of similarity in the overall bargaining posture of the respondent in the two cases, the unilateral action of the respondent in the Dothan Eagle case occurred at the onset of negotiations. In the instant case, Respondent effectuated two semiannual wage increases during the first year of negotiations. In a misconstruction of its right to use raw economic power to suspend its practice it did not give wage increases in January 1976, but it did do so in June 1976. It is also noted that Respondent herein has maintained a contractual relationship with the Union in the mechanical unit. It is thus not an employer in the posture of being totally hostile to the collective-bargaining process. Thus, although I have found that its bargaining posture in the instant case contravenes the concepts of good-faith bargaining, I cannot conclude that its position was patently frivolous. Certainly, it was not patently frivolous with respect to the companion complaint in Case 17-CA-7100. Moreover, at the outset of the hearing herein, General Counsel in its opening remarks indicated that bad faith would be con- cealed by dilatory tactics of Respondent and also by conduct away from the bargaining table consisting of an encouragement and solicitation of the decertification peti- tion. As concluded above, counsel for the General Counsel did not sustain his point before the close of the hearing and did not resurrect it in his brief. Although, in fact, there have been 20 bargaining sessions over a lengthy period of time, I cannot conclude based upon the evidence in the record that Respondent was in any sense dilatory with respect to approaching the bargaining table. Although I have found that Respondent did engage in surface bargain- ing, the Charging Party Union was not exceptionally noteworthy for its diligence with respect to more frequent or lengthy meetings. Additionally, the Charging Party Union itself inserted irrelevant topics of discussion during the course of the meetings and diverted negotiations from the topic of the newsroom contract to discussion of grievances and matters relating to the mechanical unit. Although Wood did make an effort to direct the negotia- tions to economic areas in May of 1975, he was easily deflected by Gunderson to other noneconomic matters. It really was not until the November 6, 1975, meeting that Wood pressed the issue, thus causing Gunderson to come out unequivocally against negotiation of noneconomic matters. The very outset of negotiations was approached with somewhat of a casual attitude by Local President French as noted above. Although this lack of diligence by the Union did not excuse Respondent from its obligation to bargain in good faith, I feel that there is a lack of warrant to conclude that Respondent's defenses were completely frivolous. Furthermore, it would seem inappro- priate under these circumstances, where the Union had never requested a Federal Mediation and Conciliation Service representative to be present, to now order Respon- dent to consent to such. Also it would be inappropriate to now dictate to Respondent that it should meet on consecu- tive days or a minimum number of hours per week when the Union made no effort during the entire course of '2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. negotiations to obtain such an objective. For the same reasons, I feel that the balance of the extraordinary remedies prayed for by the General Counsel and the Charging Party is unwarranted. Accordingly, I shall recom- mend that Respondent be ordered to cease and desist from engaging in the unfair labor practices found above and to recognize and bargain with the Union and to remedy the effects of its unilateral actions. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 12 The Respondent, The Leavenworth Times, a Division of Thomson Newspapers, Inc., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain in good faith with Leavenworth Typographical Union, Local No. 45, affiliated with Inter- national Typographical Union, AFL-CIO, as the duly designated exclusive bargaining representative of the em- ployees in unit found appropriate herein. (b) Refusing to bargain collectively with the above- named Union by refusing to furnish the above-named Union with information concerning the sick leave policy covering employees in the unit found appropriate herein. (c) Unilaterally discontinuing merit wages and salary reviews and/or merit increases for the employees in the unit found appropriate herein without prior notice to or bargaining with the Union. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Leavenworth Typographical Union, Local No. 45, affiliated with Inter- national Typographical Union, AFL CIO, as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate unit is as follows: All full-time and regular part-time newsroom depart- ment employees employed at the Employer's 418-26 Seneca Street, Leavenworth, Kansas, facility, including editors, reporters, staff writers and photographers, but excluding the general manager, managing editor, office clerical employees, and guards, professional employees and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. (b) Reinstitute the wage and salary review and/or merit increase program formerly in effect and apply it retroac- tively from on or about January 1, 1976. Further, make the employees in the bargaining unit whole by paying to them 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. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the difference, if any, between their actual wages and salaries and the wages and salaries they would have received had the wage and salary review merit increase program not been suspended during the above period, together with interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Supply the Union with all information as to the names of employees who have received paid or unpaid sick leave, the dates and duration of said sick leave in the 2-year period preceding March 22, 1976. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its premises in Leavenworth, Kansas, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by it 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 674