Peerless Publications, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peerless Publications, Inc. (Pottstown Mercury) and Newspaper Guild of Greater Philadelphia, Local 10. Case 4-CA-6985 August 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On September 23, 1975, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's cross-exceptions.l 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, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Subsequent to the Administrative Law Judge's Decision in this case, the Board issued its Decision in The Capital Times Company, 223 NLRB 651 (1976). In that case, as here, the fundamental question involved the legality of a unilateral promulgation and implementation of a code of ethics by a newspaper enterprise. In defining the obligation to bargain in this context, the Board concluded that the code of ethics in Capital Times, supra, as a whole, did not affect "wages, hours, and other terms and conditions of employment," so as to make it a mandatory subject of bargaining, but rather represented "an attempt . . . to protect and enhance the credibility I Respondent's request for oral argument is hereby denied as the record and briefs adequately present the issues and positions of the parties. 2 In Capital Times, supra, the employer's code of ethics, in substance, prohibited the acceptance by employees from outside sources of gifts used in the performance of their duties or which came to employees by virtue of their position with the newspaper, and required employees to disclose outside activities which might constitute a conflict in interest. 3 Specifically, sec. 2 of Respondent's Code of Ethics provides: Secondary employment, political involvement, holding public office, and service in community organizations should be avoided if it compromises the integrity of newspaper people and their employers. Newspaper people and their employers should conduct their personal lives in a manner which protects them from conflict of interest, real or apparent. Their responsibilities to the public are paramount. That is the nature of their profession. [Emphasis supplied.] We view this provision of the Code of Ethics, including the secondary employment aspect thereof, as a legitimate attempt by Respondent to protect and preserve the credibility of its newspaper, and thus in itself is beyond the scope of mandatory bargaining. Our dissenting colleague erroneously argues that this conclusion is inconsistent with Capital Times, 231 NLRB No. 15 and quality" of the newspaper and, therefore, was outside the scope of mandatory bargaining. 2 The Board, however, further concluded that, although respondent therein was under no duty to bargain over its code of ethics as a whole, the disciplinary provisions of that code, in themselves, directly affected employment security and, therefore, such provisions constituted a mandatory subject of bar- gaining. Applying these considerations to the instant case, we find as follows: 1. The Administrative Law Judge concluded that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating its "Code of Ethics" on April 15, 1974, and by refusing to honor the Union's June 4, 1974, request for bargaining over the code. In so doing, the Administrative Law Judge found that Respondent, in promulgating the code, incorporated it into its preexisting "General Office Rules" and, considering the two documents to constitute a single set of rules, concluded that it was unnecessary to pass on the "bargainability" of each of the provisions of the respective documents. He further concluded that the General Office Rules, as supplemented by the code, embodied terms and conditions of employment within the scope of mandatory bargaining, particularly in light of the penalty provisions thereof. We agree, only in part, with the Administrative Law Judge's conclusion. An examination of the Code of Ethics demon- strates that the rules set forth therein relate primarily to standards of ethics designed to protect and enhance the credibility and quality of Respondent's newspaper. Thus, in order to ensure that its employ- ees are free from obligation to any interest other than the "public's right to know the truth," the code prohibits the acceptance of gifts and favors and states that secondary employment should be avoided if it compromises the integrity of the newspaper; 3 establishes certain standards of accuracy and objec- supra. In that former case, we specifically pointed out that the respondent there had agreed it was obligated to bargain over the outside employment aspect of its code of ethics. Here, however, Respondent has not agreed that the secondary employment aspect of its Code of Ethics is a mandatory subject of bargaining. Furthermore, although we noted in Capital Times that the provision therein merely required the reporting of outside activities and did not ban such activities outright, our colleague's attempt to equate sec. 2 here with a "total prohibition" of such activities does not withstand scrutiny. Thus, the literal language of sec. 2 states that such activities "should be avoided if it compromises the integrity of newspaper people and their employers." A fair reading of this language clearly shows that it does not amount to a blanket requirement that employees must refrain from all such activities, but rather merely emphasizes to the employees the desirability of avoiding only such activities which, in fact, compromise the integrity of the newspaper. This provision, as are the other substantive portions of the code, is based strictly on ethical considerations and is grounded on Respondent's legitimate concern for the integrity and credibility of its newspaper. And, in concluding, therefore, that Respondent is not obligated to bargain over this provision of the code, we stress, as stated infra, that the penalty provision of the code, in contrast to the substance of the code itself, is a mandatory subject of bargaining. It is this latter finding which our colleague 244 PEERLESS PUBLICATIONS tivity in reporting; and sets forth certain standards of "fair play" with respect to individuals encountered in the course of gathering and presenting the news. Consistent with our decision in Capital Times, we conclude that Respondent's Code of Ethics, as a whole, does not affect terms and conditions of employment so as to constitute a mandatory subject of bargaining. The code, however, also provides that employees "shall adhere" to the rules set forth therein "under penalty of discipline." Thus, as in Capital Times, we find that this penalty provision, in and of itself, directly affects employment security and, therefore, is a mandatory subject of bargaining. Accordingly, we conclude that Respondent's unilateral promulga- tion of its Code of Ethics, to the extent that the code contained a penalty provision, was violative of Section 8(a)(5) and (1) of the Act. We further conclude that since the penalty provision is a constituent part of the code, Respondent's refusal to discuss the code upon demand constituted an effective refusal to bargain about the penalty provision and was thus a separate violation of Section 8(a)(5) and (1). 2. The Administrative Law Judge found, and we agree, that Section 10(b) of the Act precludes any unfair labor practice finding based upon Respon- dent's unilateral promulgation of its General Office Rules on July I, 1968, and its republication of such rules, as revised, on May 10, 1972. The Administrative Law Judge nevertheless further concluded that Respondent violated Section 8(a)(5) and (I) by its refusal to honor the Union's August 16, 1974, demand for bargaining over the General Office Rules. In this regard, without passing on each of the rules set forth therein, the Administrative Law Judge found that the General Office Rules, including the penalty provisions thereof, constituted a mandatory subject of bargaining. The General Office Rules, in contrast to Respon- dent's Code of Ethics, establish rules with respect to such matters as employee intoxication, violent or disorderly conduct, use of equipment for private purposes, and various reporting and recordkeeping procedures which, in our view, directly affect terms and conditions of employment. We, therefore, find that Respondent was obligated to bargain over such rules upon the Union's request and that its refusal to do so was violative of Section 8(a)(5) and (1) of the Act. conveniently ignores in suggesting that our decision will result in the unilateral and arbitrary disciplining of employees by Respondent. Finally, our colleague suggests that our conclusion herein rests on a finding that Respondent, as a newspaper, possesses a first amendment exemption from bargaining. That, simply, is neither the express nor implied basis for our conclusion. Rather, in view of our finding that sec. 2 does not However, we shall specifically except from our Order requiring Respondent to bargain over the General Office Rules the following portions of General Office Rule 11: All copy and proof, both news and advertising matter, must be treated as confidential. No information obtained by any employee by reason of his employment shall be made use of for himself or given out, or in any way made known prior to publication.... Employees must so conduct themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage. In our view, these cited portions of General Office Rule 11, like the substantive provisions of Respon- dent's Code of Ethics, are essentially based on ethical considerations designed to enhance the credibility of Respondent's newspaper. We make it clear, however, that this finding is not to be construed as relieving Respondent from its obligation to bargain over any penalty provision for employee violations of such rules. 3. The Administrative Law Judge concluded that the May 16, 1974, warning letters issued to employ- ees Dougherty and Smith are time-barred under the Act. We disagree. In our view, the warning letters, which closely followed Respondent's unilateral pro- mulgation of the Code of Ethics, which we have herein found violated Section 8(a)(5) and (1), represented attempts to implement the penalty provisions of that code. The Bryan case,4 cited by the Administrative Law Judge, does not in our view compel a different result. In Bryan, the union and employer signed a collective-bargaining agreement when the union represented only a minority of the unit employees. Charges were filed with the Board some 10 and 12 months later. The Court, reversing the Board and the court of appeals, held (362 U.S. at 415) that "since a complaint based upon [the original execution of the agreement was time-barred], that event itself could not be utilized to infuse with illegality the otherwise legal union-security clause or its enforcement." Here, however, Respondent's unlawful promulga- tion of the code's penalty provision itself occurred within the 10(b) period. Thus, this is not a situation where conduct occurring within the limitations constitute an outright ban on outside activities, we find it unnecessary to consider the ramifications, if any. the first amendment may have to the issue before us; namely, whether or not certain ethical standards promulgated by Respondent are mandatory subjects of collective bargaining. 4 Local Lodge No. 1424, International Association of Machinists, AFL- ClO [Bryan Mfg. Co.] v. N LR. B., 362 U.S. 411 (1960). 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period "can be charged to be an unfair labor practice only through reliance on"5 an earlier unfair labor practice occurring outside the 10(b) period. Inasmuch as we find the issuance of the May 16 warning letters to be in violation of Section 8(a)(5) and (1) of the Act, we shall order Respondent to rescind the letters to employees Dougherty and Smith, and to remove the letters and any references thereto from their personnel files. The Remedy Having found that Respondent has violated the Act in certain respects, we shall order that Respon- dent cease and desist from such conduct and take certain affirmative action necessary to effectuate the policies of the Act. Such affirmative action shall include an order that Respondent rescind in writing the penalty provision of the Code of Ethics and, upon request, bargain with the Union concerning the General Office Rules, other than those portions of General Office Rule II and the Code of Ethics specifically excepted herein. However, we shall order Respondent to bargain, upon request, with the Union concerning the penalty provision of the General Office Rules as it may apply to the aforesaid portions of General Office Rule 11 and the penalty provision of the Code of Ethics. We further shall order Respondent to rescind and withdraw from personnel files, or other files maintained by it, copies of, or references to, the warning letters issued to employees Dougherty and Smith, dated May 16, 1974, to rescind any other disciplinary actions which resulted from enforcement of such penalty provision, and to make the employees whole for any losses they may have suffered by reason of any enforcement of such penalty provision, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950). We shall also order Respondent to post appropriate notices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Peerless Publications, Inc. (Pottstown Mercury), Pottstown, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Newspaper Guild of Greater Philadelphia, Local 10 (herein called the Union), upon request, about terms and conditions of employment embodied in Respon- dent's General Office Rules, except the Code of Ethics and those portions of Rule 11 herein excepted. (b) Refusing to bargain collectively with the Union, upon request, about the penalty provision of the Code of Ethics and the penalty provisions of the General Office Rules insofar as it might apply to those portions of General Office Rule 11 set out in this Decision which constitute a "code of ethics." (c) Unilaterally promulgating rules or penalty provisions affecting wages or terms and conditions of employment, or enforcing such unilaterally promul- gated rules or penalty provisions, without giving the Union notice and the opportunity to bargain. (d) Unilaterally implementing the penalty provi- sions of the Code of Ethics by warning letters. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, or interfering with the Union's efforts to bargain collectively with it with respect to the following appropriate unit: All Editorial, Circulation, Maintenance, Tele- phone Operator and Advertising Departments, but excluding the managing editor, city editor, circulation manager, confidential secretary to the Publisher, county string correspondents, commis- sion advertising salesmen, and the national, display and classified advertising managers. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind in writing the penalty provision of the Code of Ethics. (b) Rescind in writing the General Office Rules except those portions of Rule I I specified herein. (c) Upon request, bargain with the Union about the penalty provision of the Code of Ethics and, if an agreement is reached, embody it in a signed agreement. (d) Upon request, bargain with the Union concern- ing terms and conditions of employment contained in the General Office Rules (except those portions of Rule 11 specified herein), including any penalty provision which might apply to the aforesaid por- tions of Rule 11, and, if an agreement is reached, embody it in a signed agreement. (e) Rescind and withdraw from personnel or other files maintained by Respondent copies of or refer- ences to, the warning letters issued to employees Dougherty and Smith dated May 16, 1974, and rescind any other disciplinary actions which resulted from enforcement of this penalty provision and make s 362 U.S. at 417, emphasis supplied. 246 PEERLESS PUBLICATIONS the employees whole for any losses they may have suffered by reason of the enforcement of these penalty provisions in the manner set forth in the remedy section of this Decision. (f) 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 necessary or useful under the terms of this Order. (g) Post at its place of business in Pottstown, Pennsylvania, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN FANNING, dissenting in part: I agree with my colleagues' finding that Respon- dent violated Section 8(a)(5) and (1) of the Act by issuing warning letters to employees Dougherty and Smith, and by refusing to bargain with the Union upon request about Respondent's General Office Rules. Unlike my colleagues, however, I would not exempt from mandatory bargaining certain portions of Respondent's rules merely by dubbing them "ethics," nor would I separate those rules from the attached penalty provisions imposed by Respondent for violation of the rules, and require bargaining only as to the penalties. For the reasons more fully set forth in my dissenting opinion in Capital Times, supra, I believe that rules and their constituent penalties (which is what makes them rules rather than merely opinion) cannot be artificially severed from each other for the purposes or requirements of collective bargaining. I am supported in this view by Respondent in the instant case. Respondent con- cedes-in fact argues-that the law on discipline for I 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 7 See, e.g.. the Administrative Law Judge's discussion at 223 NLRB 666 and fns. 23,50,51, and 113. 1 This statement by the majority misses the point. The test of whether a matter is subject to mandatory bargaining is not a respondent's alleged rule violation "is identical with the law on rule promulgation," which in turn is the same as the law with respect to implementation. Moreover, Respon- dent filed no additional papers with this Board after issuance of the Board's decision in Capital Times, apparently because it was convinced that its state- ment of logic and law already filed was correct. I agree that it is correct, and I dissent from my colleagues' failure to so find. My colleagues and I agree that the warning letters issued to employees Dougherty and Smith must be rescinded. Respondent issued those letters in imple- mentation of its work rules. Yet the majority finds that Respondent was not required to bargain about promulgating that very work rule. The majority attempt at separation of cause and effect in this regard baffles me. As I observed in footnote 7 of my dissent in Capital Times, 223 NLRB at 656, "If rules and their enforcement are severable, then we can never find a violation with respect to a rule. To do so would be contrary to both the Constitution and Sec. 8(c). Without meaning to impinge on theology, I suggest that where there is no effect there can be no cause. If there is no requirement that the rule be observed, it cannot affect, or be, a term or condition of employment. Conversely, rules with penalties, expressed or implied, are conditions of employment: cause and effect." I further disagree with my colleagues' departure from and extension here of the decision in Capital Times. In Capital Times, the Administrative Law Judge found that respondent had conceded that outside employment is a mandatory subject of bargaining.7 The respondent challenged that asser- tion before the Board, but the Board affirmed the Administrative Law Judge. This Respondent does not agree that it is required to bargain about rules pertaining to outside activities, including secondary employment. The majority, citing Respondent's code as a "legitimate attempt . . . to protect and enhance the credibility of its newspaper," finds that Respon- dent is not required to bargain about such outside activities, including secondary employment.8 Here, the rule requires avoidance of such activities and requires that employees conduct themselves outside of office hours so as "not to reflect adversely on the newspaper or cause loss of business or patronage." Thus, if an employee of Respondent accepts second- motive for setting forth such a rule, nor is it the subject matter of the rule alone. Rather, it is the rule's effect on emplovees which determines whether or not it is a term and condition of employment. See The Timken Roller Bearing Company, 70 NLRB 500, 502 (1946); Fibreboard Paper Products Corp, v. N.LR.B., 379 U.S. 203, 213 (1964). Thus. except where certain recognized exceptions exist (such as, e.g., intoxication while on the job) it is the impact of the rule itself that mandates bargaining, not the reason behind inception of the rule. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary employment or, for example, local political office, and votes or take a position on a matter which displeases one of Respondent's advertisers so that the advertiser cancels an ad with Respondent, then the employee may be discharged. I suggest to my colleagues that discipline in such an instance by Respondent cannot in fact "enhance the credibility" of Respondent and could not be viewed as a "legitimate" attempt to do so. First, if the discipline were not known to the public, then it could have no effect with respect to enhancing Respondent's credibility. Second, if such circumstances were known to the public, Respondent would be viewed as either arbitrarily punitive or alternatively as forcing its employees to agree with its advertisers' ideas; i.e., an "official line," which hardly seems conducive to "enhancing credibility." Yet this appears to be my colleagues' sole basis for finding that Respondent is not obligated to bargain about such a rule.9 Furthermore, the majority holding here appears to me to be inconsistent with their own rationale in Capital Times. Discussing the outside activities aspect of the respondent's code in that case, the majority pointed out at 653: "Moreover, it is important to note that the code [merely] requires the reporting of outside activities which might involve a conflict of interest, and does not ban such activities outright." (Emphasis supplied.) The rule in the instant case however does ban such activities. Thus, the very distinction between requiring only reporting and actually banning relied upon in Capital Times is not present here. Yet the majority w;thout discussion or explanation apparently either ignores or fails to recognize the difference. And the exception has become the rule. Whereas the lesser requirement of reporting outside employment was "concededly a mandatory subject" in Capital Times, the total prohibition of such activities becomes in this case 9 Except in certain circumstances, of course, but more about that infra. '0 The Administrative Law Judge in Capital Times at 681, fn. 73, correctly forecast difficulties inherent in a holding such as that of the majority here. She noted: "Additional problems would arise where the employer seeks toforbid unit employees to exercise a constitutional right but the prohibition is arguably job-related-for example, if an employing newspaper seeks to forbid or require political reporters to join a political party. Such legal problems would be inescapable if Respondent here had adopted [rules] requiring employees to refrain from. rather than merely to report, activities presenting a possible conflict of interest. Understandably. all parties have declined my invitation to discuss [this issue ." (Emphasis supplied.) In my view, the "inescapable" legal problems have been squarely presented by the majority's holding here, but have still received no meaningful discussion. " Respondent's General Office Rules, as published on May 10, 1972. state: For all Employees of the Pottstown Mercury These rules include, but are not limited, to all of the office rules for your department. Your department head may add to these rules more specific rules which apply to your department. Violation of office rules may be deemed cause for discharge except in the case of those rules where discharge is automatic: bargainable only if the newspaper is willing.10 Thus, my colleagues apparently have concluded that a newspaper, and only a newspaper, does not have to bargain about prohibitions on secondary employ- ment or other outside activities. Their rationale for such a change in the law is conspicuous by its absence. As noted above, the change is not in fact likely to enhance Respondent's "credibility." Re- spondent argues that it does not have to bargain, solely because it is a newspaper, and therefore possesses certain first amendment exemptions from bargaining. That argument was properly rejected by the Administrative Law Judge here, as it was by the Board in Capital Times. Yet if status as a newspaper is not the unarticulated rationale, what is the basis? The difficulties inherent in the majority position it seems to me are perhaps best highlighted by their inconsistent treatment of General Office Rule 11, partially quoted supra. (See full text below."T ) It used to be, to paraphrase Gertrude Stein, that a rule is a rule is a rule. No longer. Rule 11 clearly affects employee conduct and terms and conditions of employment, and my colleagues properly conclude that as a whole it is a mandatory subject of bargaining. However, they also conclude that certain portions of Rule 11 are "related" to ethics and are therefore not subject to bargaining by Respondent, at least as applies to employees in this unit.12 Yet enforcement of the "non-rule" aspects of Rule 11 as to these very same employees is found a violation. By their treatment of Rule 11 my colleagues would exempt from the newspaper's duty to bargain such subjects as the confidentiality of copy or informa- tion-whether Respondent decides to publish it or not 13 -and employee conduct outside of office hours which Respondent may interpret as adversely reflecting upon it.14 At the same time they properly concede Respondent's duty to bargain about such II. All copy and proof, both news and advertising matter, must be treated as confidential. No information obtained by any employee by reason of his employment shall be made use of for himself or given out, or in any way made known prior to publication. Employees must not deface property of the Company by posting circulars anywhere except on the bulletin board provided for that purpose. Employees are prohibited from writing upon, cutting, scratching or otherwise damag- ing buildings, walls, floors, furniture, machinery or other equipment or defacing an office sign, or notice, or changing the wording in any way. Wanton destruction of property, material or finished work is forbidden. Employees must so conduct themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage. Prompt and satisfactory cooperation with fellow workers and other members of this organization is required. 12 Thus the following paradox: A rule is a rule is a rule-is not a rule. And the difference, of course, is obvious? 13 In this connection see fn. 17 of my dissenting opinion in Capital Times, 223 NLRB at 657, suggesting a gray area, or room for honest disagreement, inherent in the ethics problem: e.g., is it ethical to report the contents of stolen documents? 14 My colleagues suggest at fn. 3 that Respondent's rule curtailing the 248 PEERLESS PUBLICATIONS matters as the posting of circulars (whether "ethical" in nature or not), defacing company property, changing the wording of a company sign, and "satisfactory cooperation" with fellow workers. Their logic in this regard escapes me. Are these employees not entitled to the same protections under our Act as employees of other employers or in other units? With all due respect, I submit that the anomalous results reached here by my colleagues represent neither good logic nor good labor law. Without discussion of any of the significant problems, the majority now finds that for newspa- pers-and apparently only for newspapers-second- ary employment and other outside activities, far from being "concededly a mandatory subject," are inexpli- cably not bargainable at all.15 Finally, I suggest that my colleagues place the Union in an untenable position both for bargaining and for representation purposes in this and other units. For example: If a grievance is filed, should the Union pursue it? Would it violate its obligation to employees in other units if it does pursue it-or does not? If this Union, in another unit, insists to impasse with respect to bargaining about work rules, does it violate the Act? Does the majority mean to invite exclusions from the bargaining obligation in non- newspaper units? As in Capital Times, I would not artificially sever any of these rules or "ethics" from their constituent penalties. Nor would I treat as "ethics" what Respondent itself promulgated as rules. Nor would I grant a "newspaper exception" to the requirement that an employer bargain about secondary employ- ment, or about other, constitutionally protected, outside activities of employees. I therefore dissent from those portions of the majority opinion. outside activities of its employees is not a "prohibition." However, Rule II specifically states that employees must conduct themselves outside of office hours so as not to cause adverse reflection on or loss of patronage to Respondent. This part of Rule Ii, that both Respondent and my colleagues equate with Sec. 2 of the Code of Ethics, is phrased in the imperative. To argue that it is not a prohibition ignores the reality, to wit: Respondent takes the position that it alone is the sole arbiter-after the fact-of what will constitute a conflict with its own interests. On the ground that it is unwilling to allow "some arbiter" to "write our rules for us" it has refused to specify the rule involved when it has objected to conduct. For those employees not gifted with extrasensory perception, Respondent's wording-already ap- plied in an ex post facto manner as we see in this case-necessarily has the intended effect of a prohibition. Also, my colleagues aver that their conclusion, not being an "outright ban" on outside activities, requires no discussion of the possible first amendment ramifications concerning their duty to bargain. But there are obvious ramifications with respect to employee first amendment rights as well. An "iffy" ban on outside activities can only hang like a sword over the heads of employees. It is difficult to understand, therefore, how my colleagues are willing to approve the less-than-outright-ban interpretation without at least, as a safeguard, requiring that it be bargainable. ,5 Obviously an employee's personal activity, outside working hours, on behalf of the NAACP, or a political candidate, or even the United Fund, might cause the Respondent to lose patronage from a disgruntled advertiser. The wording of Rule II is conveniently broad for application by Respondent to such situations. The Administrative Law Judge in Capital Times alluded (223 NLRB at 680, fn. 73) to problems which might arise in this connection. She noted: Existing precedent indicates that the statutory bargaining represen- tative's duty of fair representation not only forbids it to seek arbitrary and invidious treatment of unit employees, but also forbids an employer to agree to such a union demand or to seek the union's agreement to such an employer demand and requires the union to seek correction of certain kinds of arbitrary and invidious employer treatment of employees. lEmphasis supplied.] She went on to note that a choice might therefore be required between the conclusion that an employer may impose at least certain types of arbitrary conditions of employment without bargaining (because such a bargaining proposal would be unlawful) and the conclusion that they cannot be lawfully imposed at all. I believe that the latter conclusion is correct. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity 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 of the Board and abide by the following: WE WILL NOT refuse to bargain collectively with the Newspaper Guild of Greater Philadelphia, Local 10 (herein called the Union), upon request, about terms and conditions of employment embodied in the General Office Rules. WE WILL NOT refuse to bargain collectively with the Union, upon request, about the penalty provision of the Code of Ethics, and any penalty provision of the General Office Rules as it may apply to the "code of ethics" provision therein. WE WILL NOT unilaterally promulgate rules or penalty provisions affecting wages or terms and conditions of employment, or enforce such unilaterally promulgated rules or penalty provi- sions, without giving the Union notice and the opportunity to bargain. WE WILL NOT unilaterally implement the penalty provisions of the Code of Ethics by warning letters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, or interfere with the Union's efforts to bargain collectively with us with respect to the following appropriate unit: All Editorial, Circulation, Maintenance, Telephone Operator, and Advertising De- partments, but excluding the managing editor, city editor, circulation manager, confidential secretary to the Publisher, 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD county string correspondents, commission advertising salesmen, and the national, display and classified advertising managers. WE WILL rescind in writing the penalty provi- sion of the Code of Ethics. WE WILL rescind in writing the General Office Rules except those portions of Rule 11 which constitute a "code of ethics." WE WILL, upon request, bargain with the Union about the penalty provision of the Code of Ethics and, if an agreement is reached, embody it in a signed agreement. WE WILL, upon request, bargain with the Union concerning terms and conditions of employment contained in the General Office Rules (except those portions of Rule 11 which constitute a "code of ethics"), including any penalty provision which might apply to the aforesaid "code of ethics," and, if an agreement is reached, embody it in a signed agreement. WE WILL rescind and withdraw from personnel or other files copies of, or references to, the warning letters issued to employees Dougherty and Smith, dated May 16, 1974, and any other disciplinary actions which resulted from our enforcement of this penalty provision. WE WILL make the employees whole for any losses they may have suffered by reason of any enforcement of such penalty provision, with interest at the rate of 6 percent per annum. PEERLESS PUBLICATION, INC. (POTTSTOWN MERCURY) DECISION SAMUEL M. SINGER, Administrative Law Judge: This case was heard before me in Philadelphia and Pottstown, Pennsylvania, between February 18 and June 3, 1975,1 pursuant to charges filed August 28 and complaint issued on November 29, 1974. In general, the complaint alleges that Respondent violated Section 8(aXl1) and (5) of the Act by unilaterally formulating, promulgating, or implementing a "Code of Ethics" and "Office Rules" without prior negotiations with Charging Party (the exclusive representa- tive of its employees in an appropriate unit); by rejecting Charging Party's requests to meet and bargain respecting those matters; and by issuing warning notices to two employees for alleged violation of the unilaterally promul- gated Code of Ethics. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Briefs from all parties were received I On Apnl 8, 1975, 1 granted Charging Party's motion to reopen the hearing, closed on March 18, 1975, to receive additional evidence. The resumed hearing was held on June 3, 1975. 2 Although, as hereafter appears, I reject Respondent's basic contentions by July 18, 1975.2 Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED Respondent, a Pennsylvania corporation, with principal office and place of business in Pottstown, Pennsylvania, publishes The Pottstown Mercury, a daily newspaper. During the past 12 months, a representative period, it derived from that business revenues in excess of $500,000; and received at that place in interstate commerce goods and materials valued in excess of $50,000. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act and that assertion ofjurisdiction here is proper. Newspaper Guild of Greater Philadelphia, Local 10 ("Guild" or "Union"), is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Pottstown Mercury ("Mercury"), acquired by Respondent Peerless in December 1966, has a 28-30,000 daily circulation covering three counties in Pennsylvania (Chester, Montgomery, and Berks). It "attempts to present a balance of local and national news," utilizing services of the Associated Press and of United Press International. Ellis Rietzel, publisher and vice president, has been with the Mercury 8 years. During the material period here involved Robert J. Boyle was editor, Robert Urban, city editor, Charles Hewitt, managing editor, and Robert Kurtz, business manager. Contractual relations between Respondent and the Guild date back to 1966, when the Union was certified as exclusive bargaining representative of certain classifica- tions of employees at the Mercury. 3 The first collective agreement covering the period September 1966-September 1968 was followed by three others-the last covering September 1973-September 1976. Approximately 58 em- ployees were in the bargaining unit at the time of the hearing-among them about 15 in the editorial or news department, 10 in display advertising, and 10 in classified advertising. and positions, the meticulous and comprehensive treatment of the issues in its 140-page brief and 18 appendixes have been helpful. 3 The Mercury unit is one of five units comprising Philadelphia Local 10; the other four cover other publications in the Local's territorial jurisdiction. 250 PEERLESS PUBLICATIONS B. Office Rules 1. Origin and publication On July 1, 1968, Respondent posted on all of its bulletin boards "General Office Rules," written and prepared by Publisher Rietzel.4 These rules cover a variety of subjects- some dealing with routine and ministerial matters 5 and others with more substantive working conditions. The preamble to the Rules reads: These rules include, but are not limited to, all of the office rules for your department. Your department head may add to these rules more specific rules which apply to your department. Violation of office rules may be deemed cause for discharge except in the case of those rules where discharge is automatic. Among the more substantive "rules" are those dealing with "false or misleading employment record information," 6 intoxication or drinking on company property, gambling on premises, complaints from creditors, loitering, and visiting employees, use of profanity or "indecent lan- guage," work stoppages and slow-downs, 7 "carelessness or neglect of duty in carrying out assignments or instruc- tions," insubordination, confidentiality of information prior to publication, conduct outside of office hours so "as not to reflect adversely on the newspaper or cause loss of business or patronage," "personal use" of company equipment and machines, "privately owned goods" left on premises without permission, use of radios and television for other than news business, wage assignments and garnishments, funds solicitation, and access to premises by nonemployees. 2. Implementation and enforcement The record contains documentary evidence, including warning letters and memoranda to employees, which, Respondent contends, establishes that it has implemented and enforced the "General Office Rules" s8 since their inception in 1968. In general, these describe the inci- dents(s) in which the employee was involved and charac- terize the alleged offense in broad terms (such as "neglect of duty")-rarely referring to the "office rules" and never specifying the particular office rule allegedly breached. Publisher Rietzel testified that although in each case he "intend[ed] to rely on the office rules," he deliberately avoided identifying the rule number "because we [did] not want to get into a position where an arbitrator would be formulating our own rules." The earliest letter relied on by Respondent is an August 1, 1968, memorandum from Rietzel to Smetaniuk (a union steward) in which Rietzel warned the employee that his unauthorized absence to attend a union meeting consti- tuted a "neglect of duty." Also on that date (August 1) Rietzel formally warned Keller, an advertising salesman, 4 According to Rietzel, copies of the "Rules" were also handed to employees on July 1, 1968, "or the nearest payday" and to "new" employees after "some point in '69 or '70." 5 E.g.. notifying changes in addresses and telephone numbers, deface- ment of company property, reporting injuries and accidents, use of company telephones for nonbusiness purposes, turning off motors and lights, that his "personal unauthorized use" of a Company vehicle during which he had an automobile accident constituted "neglect of duty." The next day (August 2, 1968), Rietzel informed Keller that his failure to note the time spent on personal business on the timecard on the previous day constitutes a "violation of office rules prohibiting the falsifying of timecards." A grievance objecting to a 3-day suspension of Keller was ultimately disposed of during the 1968 contract negotiations. On November 17, 1968, City Editor Urban formally warned employee Rose Mullaney that she would lose 40 minutes pay because of unexcused tardiness and that "further tardiness . . . will demand more severe action." The 1969 episodes include incidents again involving Keller and Mullaney and a third employee (Gottshall). Based on a claim that Keller did not properly place an advertisement for a customer, Rietzel on April 21 warned Keller about abiding "by rate cards, contracts, and other office rules," invited his resignation, and warned of the possibility of discharge "through a neglect of duty"; a grievance later filed by the Union on behalf of Keller was ultimately resolved and the Union withdrew its request for arbitration of the dispute. As to Mullaney, Editor Boyle warned her on June 9 that her absences, without reporting in illness, justified the assumption that she "abandoned" her position with the Mercury; several days later Rietzel transmitted her terminal pay. On November 12, the Union withdrew a grievance filed on her behalf "without prejudice to the Guild's contentions." The Gottshall incident involved a January 10, 1969, warning to an advertising salesman concerning his failure to notify two customers about rate changes (later necessitating making rebates); Gottshall was told that "one more neglect of duty charge will result in your discharge." Finally, on October 14, 1971, Walters, a maintenance employee, was requested to resign because he was involved in a "fight" with another employee. According to Charles Meyers (now a company supervisor but a Local official in 1971), Walters was told that he was in violation of "office rules," but Meyers could not "recall the number of the rule." On May 10, 1972, the General Office Rules were "updated" with "very slight revisions" and again posted. Respondent alleges that the following instances evidence their implementation and enforcement: A warning letter dated September 8, 1972, to employee Albright charging him for the second time with "neglect in the handling of advertising accounts." A November 10, 1972, warning letter to employee Trexler for "neglecting to make regular ... sales calls on many of [his] accounts" and threatening him with discharge unless he improved. A March 28, 1973, warning letter to Sassman that he was not fulfilling his "primary responsibilities" as circulation supervisor. compliance with Governmental regulations, maintenance of cleanliness, reporting machinery breakdowns, and submission of physician's statements for sick leave. 6 Specifically named as a dischargeable offense. 7 Supra, fn. 6. R Hereafter referred to as "Office Rules" or "Rules." 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A September 28, 1973, letter to John Everts, an advertising salesman, enumerating his "neglects of duty" and giving Everts "final warning" of termination unless he improved. Everts' October 23, 1973 discharge resulted in the filing of a grievance and an arbitration proceeding still in progress at the time of the instant trial. A March 11, 1974, warning letter to Kirk, a circulation department employee, for failure to properly perform. After adverting to several "mistakes" Kirk had allegedly made in the past several weeks, Circulation Manager Boyer threatened to "replace" him. A March 26, 1974, letter to Peter Smetaniuk from Advertising Manager Shock, itemizing instances of "infrac- tions . . . which could result in . .. dismissal from the Mercury" and warning that any "further infraction of the contract and/or office rules will be considered grounds for . . . dismissal." This matter was the subject of discussion at a grievance meeting between Respondent and the Union on April 4, 1974.9 A May 17, 1974, verbal warning to Gottshall, an advertising salesman, concerning an error in handling an advertisement. On April 3, 1974, all employees were given a "Notice" with their paychecks, stating that "the published and posted office rules are, and always have been, in force ... and will be enforced." 3. Collective bargaining over Office Rules and management-rights clauses authorizing Company to alter rules Respondent concedes that it unilaterally promulgated and put into effect the Office Rules in 1968 and that it reissued them in revised form in 1972 without prior notice to or consultation with the Guild. It is also clear that the Union made no request to bargain with respect to those rules until August 16, 1974 (infra, sec. C, 4). However, the record shows that the Union nonetheless objected to the Rules and their enforcement during the 1968 bargaining negotiations-shortly after they were first promulgated. Thus, Respondent's witness Boyer'o recalled Union Offi- cial Schick (the Union's administrative officer) "talking about the office rules" during the August 8, 1968, bargaining session; and the union minutes on that meeting (for which Boyer vouched) quote Rietzel as having "refused to do anything" about the rules (and also about warning letters to employee Keller based on the Office 9 The warning letter to Smetaniuk, Guild unit chairman at Mercury, was alleged to be intimidatory and to interfere with protected concerted activity in the unfair labor practice charge filed in this proceeding, but the union later withdrew this portion of the charge. '0 Now Mercury's circulation manager-but Guild vice chairman in 1968. i" This finding is based on credited testimony of General Counsel witness Smetaniuk who described how the nullifying words came to be placed on the letters. 12 I do not credit the testimony of Rietzel and Meyers (Company maintenance supervisor at the time of the hearing and chairman of the Guild's Mercury unit in 1968) to the extent that their testimony conflicts with that of Smetaniuk (supra, fn. II). Rietzel's recollection of the events leading to his signing the letters is vague and hazy. While acknowledging his signature on the letters, he at first testified that he could not recall "under what circumstances all of these documents were signed." After refreshing his recollection the next day, he testified that his lawyer (who participated in the Rules), insisting that "they stand." The Union's minutes for another (October 8, 1968) meeting are even more specific, reading: The guild does not recognize the validity or agree or join in any recognizition (sic) of company rules posted by them, particularly those that will be grounds for dismissal which are nonsencial (sic). Rietzel conceded at the hearing that the Guild during those negotiations "was refusing to recognize the office rules." He also conceded that the Guild "tore ... off and threw ... away dramatically" a "transmittal" letter to a company contract proposal (sent to the Union at the outset of the negotiations) seeking to incorporate a broad management clause, including a provision reserving to the Company the right "to make or change rules .... " Finally, the record establishes that on October 19, 1968, in response to Guild strike pressure (and as part of the contract-bargaining and strike settlement) Respondent (through Rietzel) agreed to nullify warning letters previous- ly issued to employees based on the 1968 Office Rules.' Seven of these letters (G.C. Exhs. 31-36, 38) had the words "Void And Withdrawn" lettered across them with the signature "Ellis Rietzel" and the date "10/19/68" at the bottom. The eighth letter (G.C. Exh. 37), signed by Rietzel, declared the "conditional discharge" of Keller and Gotts- hall to be "voided and withdrawn." 12 The record shows that at the beginning of their second contract negotiations (the 1970 agreement) Rietzel, as in 1968, transmitted to the Guild a letter including a proposed management rights clause incorporating, among other things, a provision authorizing the Company "to make or change rules." After the conclusion of the negotiations, Rietzel attempted to attach this letter to a signed copy of the final agreement. Rejecting this attempt, the Union wrote that inasmuch as the Company was "unsuccessful" in obtaining such clause in the negotiations, the clause was "never [made] part of the final Agreement." During the last (1973) contract negotiations the Union rejected for the third time Rietzel's attempt to include the above-described management rights clause. Before signing the final draft, the Union on October 1, 1973, wrote Respondent, protesting the Company's refusal to honor its pledge during the negotiations to withdraw the manage- ment proposal. The Union also indicated that it would not contract negotiations) "may have said get these letters and have me sign them," indicating that he believed that all of the writing on one letter (Resp. Exh. 37) and the words "void and withdrawn" on the rest were in his lawyer's handwriting. He then testified that he "believe(d]" and soon afterwards definitively asserted that the words "void and withdrawn" were not on the letters when he affixed his signature. Finally, he acknowledged, "I don't really know what happened." It stretches credulity to suppose that Rietzel, a highly sophisticated and knowledgeable individual, would have signed these letters without ascertaining the purpose and effect of his signature-i.e., nullification of warnings previously directed to employees. Indeed, at one point-in response to questioning concerning Respondent Exhibit 37-Rietzel in exasperation exclaimed, "I don't think [the company attorney ] would ask me to sign a blank piece of paper." Furthermore, at least as to one warning or reprimand-a 3-day suspension to employee Keller-Rietzel testified: "The matter of suspension for three days was bargained out at the next [September 19681 contract negotiations." 252 recognize the Company's "purely . ..unilateral declara- tion" on management rights.13 C. The "Code of Ethics" 1. Origin and publication Publisher Rietzel testified that on April 15, 1974, the Company published a "Code of Ethics" as an amplification ("integral part") of its posted Office Rules to spell out company standards of integrity, objectivity and fairness in news-gathering and news-reporting. According to Rietzel, the Code was promulgated because "in today's atmosphere of deteriorating integrity in various sections of the country, including Watergate and other things, and other newspa- pers, we felt that it was time that we set up some goals for ourselves." Also according to Rietzel, he formulated the Code on the basis of an Ethics Code adopted by a society of professional journalists (Sigma Delta Chi) in November 1973. Respondent's Code was admittedly promulgated without prior notice to and consultation with the Guild. Rietzel testified that although he was aware that the Union "might object" to the unilateral action, he "nonetheless proceeded" to issue the Code because he felt "it was management's prerogative to set its own ethics, its own ethical standards. This was part of the quality of the newspaper .... " Respondent's Ethics Code, distributed to the employees with their paychecks on April 15, 1974, recites at the very outset that it "concerns all employees, who are newspaper people"; and that they are "a part of the posted office rules for all employees who shall adhere to them under penalty of discipline." There then follow statements of general principles on matters such as the role of newspapermen "to seek the truth as part of the public right to know the truth"; the responsibility of "newspaper people to perform with intelligence, objectivity, accuracy, and fairness"; and the principles of freedom of speech. The Code is divided into four sections-of which two, entitled "Ethics" and "Accu- racy and Objectivity," appear to be directly relevant. 4 The Ethics section (divided into five paragraphs) provides among other things, that "[n othing of value should be accepted"-gifts, favors, free travel; that "[s econdary employment . . . holding public office, and service in community organizations should be avoided if it comprom- ises the integrity of newspaper people and their employ- ers"; that newspersons "should conduct their personal lives in a manner which protects them from conflict of interest, real or apparent"; that "news communications from private sources should not be published or broadcast without substantiation of their claims to news value"; that newspersons "seek news that serves the public interest, despite the obstacles"; and that newspaper people "ac- knowledge the newsman's ethic of protecting confidential sources of information." 11 Alluding to this matter at the hearing. Rietzel testified, "There might have been some conversation as usual that the Guild wouldn't recognize it [the management rights claim] and I said, 'Well, we didn't care' . . . this was our position." 14 The other sections are "Fair Play" and "Pledge," which, like the introductory paragraphs, involve general principles and platitudes. Is "Moonlighting" was not uncommon among employees at the PEERLESS PUBLICATIONS The Accuracy and Objectivity section stresses the desirability and goal of truthful, thorough, and fair reporting in news reports, headlines, photographs, etc.; emphasizes that "[n]ews reports should be free of opinion or bias and represent all sides of an issue"; admonishes against "[p]artisanship in editorial comment which know- ingly departs from the truth"; points out the "responsibili- ty" of newspaper people to present analyses and comments on public events through competent and qualified indivi- duals; and reminds that "[s]pecial articles and presenta- tions devoted to advocacy or writer's own conclusions and interpretations should be labeled as such." 2. Alleged implementation and enforcement; warning letters to employees Dougherty and Smith On May 16, 1974, Publisher Rietzel wrote Dougherty (a reporter) and Dolores Smith (copyreader) warning letters about their "outside activities involving conflicts of interest with your employment" as partners in Dateline Communi- cations, an advertising and public relations agency. Rietzel testified that he did not object to this activity 5 until he learned that Dateline had provided a Mr. Calhoun (Pottstown Industrial Park developer) with advertising rate data from newspapers circulating in the Pottstown area, without including the Mercury; and that he then instructed Editor Boyle to warn the two employees "to cease and desist [from] this action." Dougherty and Smith testified to the effect that Boyle talked to them twice about their Dateline activity; that in one of these (Dougherty recalled it as the first conversation while Smith thought it was the second) Boyle quoted Rietzel as saying that their activity violated the Code of Ethics; and that Boyle advised them in the second conversation (May 16) to "forget it" and not to "worry about it," indicating that he had discussed the Dateline episode with Rietzel and "it will blow over." Respondent contends that the warning letters imple- mented not the Code of Ethics (as indicated by the testimony of Dougherty and Smith) but the Office Rules- specifically Rule II thereof providing that employees "must so conduct themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage." The letters themselves refer neither to Code nor Office Rules and Boyle, who according to Dougherty and Smith adverted to the Code in the warning conversation, did not testify.' 6 Rietzel testified that he did not "think" that "there was any indication [in his instructions to Boyle] of any rule that we were trying to enforce"-adding that "[i]t was the situation itself' with which he was concerned. He indicated, however, that he had "in mind" Office Rule 11 rather than the Ethics Code (paragraph 2 dealing with "secondary employment") when Mercury, Rietzel himself citing as examples one employee doing public relations for a college and another working in a clothing store. 16 Boyle furnished a medical statement to the effect that he was unable to testify at the hearing Prior to presentation of that statement, Respondent explained its failure to call Boyle as its witness on the ground that Boyle, fired by Respondent prior to the hearing (February 1975), would be biased. 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he instructed Boyle to give the warning letters to the two employees.17 Be that as it may, I agree with Respondent that "in final analysis it is really unimportant whether Rietzel's May 16 warning letters implemented the Office Rules or the Ethics Code" and, hence, it is unnecessary to resolve this issue here. As Respondent points out, there is a "manifest similarity" between Office Rule 11 and Ethics Code paragraph 2-bringing the warning letters easily within the ambit of one as within the ambit of the other- so that the "ultimate consequence, for all purposes of this case, is in law the same."' 8 3. "Freebies" As indicated, Respondent's Ethics Code prohibits accep- tance of gifts and favors "of value" or of that which "can compromise the integrity of newspaper people and their employers." The Code does not define what constitutes a gift "of value," but Publisher Rietzel testified that he had barred an advertiser from distributing four or five bottles of whiskey to Mercury employees during the Christmas season because one bottle was to go to the makeup man who is in a position to place an advertisement in a "better position" in the newspaper. Business Manager Kurtz testified that he was "not aware of a written policy or even oral policy" with respect to acceptance of "freebies" prior to the (April 15, 1974) posting of the Code of Ethics and Rietzel indicated that no "formal policy" had existed. The record shows that before posting of the Ethics Code, employees were permitted free admissions to banquets, baseball games, charity balls, circuses, "flea" markets, golf tournaments, home shows, lectures, "Miss America" contests, race tracks, sport arenas and travel. In fact, in most cases tickets for these admissions would come unsolicited to "The Mercury" and were distributed to employees by the Editor. While some freebies were of recurring nature (tickets for baseball, circuses, home shows, race tracks, etc.), others were not. And while the source of tickets could be advertisers (e.g., race tracks, circuses), others were not (e.g., Philadelphia Phillies baseball tickets supplied as "courtesy" passes). Furthermore, some freebies were work-connected (i.e., usable in connection with news coverage such as tickets to cover a sports event or charity ball) while others were not. Reporters and photographers had also gained free admittance to different events by displaying press cards or by simply showing up at the door and identifying their press status. In at least one case, a "Mercury" reporter (Dougherty) received a complimentary membership in a fraternal organization (Maria Asunta Lodge)-which membership, according to the reporter, has helped him in getting "leads" for news stories. Despite the ability of reporters and photographers to gain access to events by virtue of their press status, it is clear that they could, if they wished, pay the admission fees and request reimbursement for the fees as well as other 1? Paragraph 2 of the Code states that "Newspaper people ... should conduct their personal lives in a manner which protects them from conflict of interest, real or apparent." Is As hereafter found (sec. D, 6), the outside activities provision of the Ethics Code is in effect a restatement or particularization of the comparable provision (in Rule I I) of the Office Code. "I Sec. 6.1 of the governing collective agreement provides: "The Employer will pay all authorized necessary expenses incurred in the service "necessary expenses incurred in the service of the Compa- ny." 9 However, Business Manager Kurtz testified that except in unusual situations ("where a reporter may see an event happening" such as a fire), the Company is "only obligated to reimburse people who are covering a specific assignment" given the individual in advance. He stated that "if they are going to have an expense they would clear it in advance with management." And no reporter could be reimbursed for expenses incurred in pursuing a story on his own time. According to Kurtz, even if the reporter is later authorized to follow up a story he initiated on his own, his expenses would be reimbursed only from the time he obtained authorization. Records for the 30-month period commencing with September 1972 produced by Kurtz, show that only 35 to 40 expense vouchers totalling $250 were submitted by and processed for employees during that period, mostly for gasoline purchases by salesmen.20 According to Kurtz, none involved advances to employees. 2' Kurtz testified that employees were reimbursed promptly after approval of the voucher by a supervisor-in no event more than a day after submission. 4. Collective bargaining over Ethics Code As in the case of the Office Rules, Respondent concedes that it unilaterally formulated and promulgated the Ethics Code, without prior consultation and bargaining with the Guild. The record shows, however, that some aspects or areas covered by the Ethics Code were discussed in the 1973 bargaining negotiations and ultimately disposed of in the 1973-76 collective agreement. Thus, during the negotia- tions the Guild offered an "Employee Integrity" proposal providing, among other things, that an employee "shall not be required to perform, over his protest, any practice which in his judgment compromises his integrity"-specifically citing practices relating to the use of an employee "byline or credit line," preparation of materials without distortion of facts, and issuance of corrections and retractions on previously published matter. (Resp. Exh. 45(a), sec. 25.3.) Although Respondent strongly objected to this union proposal, it ultimately agreed to include an "Employee Integrity" clause in the collective agreement (sec. 26.1) which states that: The Guild and Employer agree that news stories and feature articles will be presented in accordance with sound journalistic practice without distortion of any facts, without malice, and without creating false impressions. If a question arises as to the accuracy of the printed material, the employee concerned will be consulted prior to any retraction of the material involved. of the company and will furnish all necessary and authorized transporta- tion." 20 Others covered luncheon expenses incurred by advertisement sales- men in entertaining accounts. None covered admissions to sports and social events. The record shows that employees also use Company cars for transportation. 21 The vouchers that did cover advances were mainly for travel by supervisors. 254 PEERLESS PUBLICATIONS Another provision to which the parties agreed, the "privilege against disclosure" clause, deals with the Employer's obligation to provide legal protection to an employee who, on advice of company counsel, withholds from governmental bodies the source of information or materials gathered by the employee in the course of his employment (sec. 26.2). The record indicates that similar "employee integrity and privilege against disclosure" clauses had been negotiated by and incorporated in contracts between Guild and other employers. On June 4, 1974, the Guild wrote Respondent that its "Code of Ethics" involved "unilateral changes in terms and conditions of employment," that the Union regarded the publication of the Code as an unfair labor practice, and that it should withdraw the Code and engage "in collective bargaining about it." On August 16, the Guild's attorney complained to company counsel that Respondent "has never responded" to the Guild's June 4 letter and he requested bargaining with respect to the Company's prior unilaterally published Office Rules as well as the Code of Ethics. D. Conclusions 1. Introduction; the basic issue As Respondent recognizes, although "the extensive record presents numerous apparent issues," the basic and paramount question here is whether the unilateral promul- gation and implementation of rules of employee conduct, in the form of Office Rules and Code of Ethics, is unlawful. According to Respondent, its Code of Ethics "does no more than define, for employee and public alike, the standards Peerless considers vital and indispensable to the quality of its product-The Mercury"-a purely manageri- al decision. General Counsel and the Guild, on the other hand, contend that irrespective of Respondent's character- ization of its rules, their publication and enforcement are mandatory subjects of collective bargaining since they affect conditions of employment. For reasons to be stated, I find that the Rules and Code promulgated and implemented by Respondent constitute mandatory bargaining matters. It must be stressed, how- ever, that this does not mean that the Union's consent was a sine qua non for putting them into effect. All that the statute requires is that a union, as statutory representative of the employees in the bargaining unit, be afforded a meaningful opportunity to discuss and negotiate concern- ing matters of vital concern to employees on the theory that joint participation through mutual consent may, in conformity with the overall statutory purpose, remove possible industrial strife. As stated by Circuit Judge (now Chief Justice) Burger in East Bay Union of Machinists, Local 1304 [Fibreboard Paper Products Corporation] v. N.L.R.B., 322 F.2d 411, 414 (C.A.D.C., 1963), affd. 379 U.S. 203, 211 (1964), "By guaranteeing employee participa- 22 See Administrative Law Judge Nancy M. Sherman's Decision in The Capital Times Company, issued January 14, 1975 (Case 30-CA-2746), now pending before the Board. where she concluded that rules of conduct comparable to some in Respondent's Code of Ethics constitute mandatory bargaining subjects. In its brief, Respondent concedes that "restriction of outside activity. as such, would probably be a mandatory bargaining subject," but argues that it "definitely" would not be in certain circumstanc- tion in decisions relating to wages, hours, terms and conditions of employment, Congress made a determination that this would create an environment conducive to industrial harmony and elminate costly industrial strife which interrupts commerce." 2. The Office Rules and Code of Ethics as mandatory subjects of collective bargaining In Miller Brewing Company, 166 NLRB 831, 832 (1967), enfd. 408 F.2d 12 (C.A. 9, 1969), the Board noted that "it is not likely that there is any plant with more than a few employees which does not have requirements that employ- ees conform to some standards of deportment in the plant society .... But this truism does not end the matter, for the question remains whether [the employer] must bargain with employee representatives about making such [determi- nations] .... [A] bargaining representative is empowered to deal with an employer 'in respect to rates of pay, wages, . . . or other conditions of employment.' " Here, the Office Rules and Ethics Code cover a wide variety of subjects. Some are routine and normally do not require bargaining-e.g., notification of address changes, turning off motors and lights, maintenance of cleanliness. Others proscribe conduct (intoxication or drinking at work, defacement of company property, etc.) no rational person would quarrel with, or regarding which any bargaining would perhaps be only to satisfy form. As to still others, such as restrictions on accepting gifts and favors imposed by the Ethics Code, it may well be that these do not require bargaining if an appropriate alternative is offered (e.g., advance payment of admissions to sports events). Finally, others, such as restrictions on secondary or outside employment or activities (by both Office Rules and Code) seem to fall squarely within the area of compulsory bargaining since these limitations could adversely affect earnings and employment conditions.2 2 Be that as it may, it is unnecessary to determine which particular portions of the Office Rules and Ethics Code constitute mandatory bargaining matters. "The fact that penalties were pre- scribed for breaches thereof sufficiently affected the conditions of employment to make them mandatory subjects of bargaining." Tiidee Products, Inc., 176 NLRB 969, 976 (1969), enfd. 440 F.2d 298 (C.A.D.C., 1970).23 The Office Rules expressly warn employees that "Violation ... may be deemed cause for discharge except in case of those rules [e.g., the false or misleading employment record information rule] where discharge is automatic." And the Ethics Code threatens "penalty of discipline" to those failing to "adhere" to it. It goes without saying that such threats to employee tenure and job security are of direct and intense concern to employees. Donna Lee Sportswear, 174 NLRB 318, 337 (1969), enfd. 435 F.2d 559 (C.A. 3, 1971). Cf. Fibreboard Paper Products, supra, 379 U.S. at 223. Since they go to the very roots of the employment es-as when the outside activity "could reasonably conflict with the employee's obligations to the employer, or generate an appearance of such conflict." Such qualificatory equivocations serve to fortify the conclusion that outside activity and employment are subject to bargaining. 23 See also The Murphy Diesel Company, 184 NLRB 757. 762 (1970). enfd. 454 F.2d 303 (C.A. 7, 1971); General Electric Company, 192 NLRB 68, 72 (1971). enfd. 466 F.2d 1177 (C.A. 6, 1972). 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relationship, it is only natural and reasonable that the collective-bargaining agent be afforded opportunity to be consulted in order to enable it fairly to discharge its statutory representative functions. Among the matters appropriate for discussion in negotiations on rules of this sort are the mechanism for regulating them, the severity of the discipline to be meted out for a breach, and the question whether a particular rule be issued at all. Moreover, if an employer could properly issue "rules" of the scope here involved in the presence of a collective agreement, he could override and supersede the collective agreement itself by his unilateral action. Accordingly, without passing upon the bargainability of each and every regulation or rule of conduct in the Office Rules and Ethics Code, I conclude that they embody terms and conditions of employment within the scope of mandatory bargaining.24 3. Respondent's contention that formulation and promulgation of the Ethics Code is a purely managerial prerogative As already noted, Respondent's basic contention is that the Ethics Code "does no more than define, for employee and public alike, the standards Peerless considers vital and indispensable to the quality of its product-The Mercury." Respondent argues that a newspaper, unlike a convention- al product, reflects "intangibles" (objectivity, integrity, courage, conscience, imagination, judgment, etc.) as well as "tangibles" (paper, ink, type, printing and photographic equipment, etc.); and that to avoid "deficiencies in the intangibles" it must retain "unfettered publishingjudgment .. . to determine the ultimate intellectual quality of its product" free from "intrusion of the inevitably-hampering process called 'collective bargainii.g.' " Respondent urges that to require it to bargain collectively concerning the Ethics Code would constitute encroachment on managerial decisions which lie "at the core of entrepreneurial control." While these contentions are not without some appeal, I must reject them. To begin with, the mere fact that an activity is largely managerial in character does not immunize it from the statutory bargaining requirement. If the activity is of vital concern to employees vis-a-vis the employment relationship it may also qualify as a mandato- ry bargaining subject. See Fibreboard Paper Products, supra, 397 U.S. at 211; Allied Chemical & Alkali Workers of America, Local Union No. I (Pittsburgh Plate Glass Co., Chemical Division, et al.) v. N.LR.B., 404 U.S. 157, 179. "Many matters which [at one time] might have been 24 Insofar as Respondent's brief may be construed as contending that the Office Rules, first promulgated in 1968, are nonmandatory ("permissive") bargaining subjects because they were mere statements or codifications of preexisting rules, the contention is rejected as without support in the record. Publisher Rietzel's testimony that he wrote and devised the Rules in 1968 because similar rules were in existence at other newspapers and he felt (after 48 years in the newspaper industry) that "The Mercury" would benefit from having office rules indicates that at least some of the matters embodied in the written Office Rules were new. Similarly Rietzel's testimony that because "in today's atmosphere of deteriorating integrity ... including Watergate ... we felt it was time that we set up some goals for ourselves" suggests that the Ethics Code reflects much more than preexisting policy, enforced or relaxed. Moreover, Rietzel conceded that no "formal policy" existed, and Business Manager Kurtz conceded that he was "not aware of a written policy or even oral policy" with respect to acceptance of "freebies" thought to be the sole concern of management are now dealt with as compulsory bargaining topics." N. LR B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 353 (1958).25 In Fibreboard supra, upon which Respondent heavily relies, the Supreme Court upheld the Board's holding (138 NLRB 550, 551) that subcontracting, although an inherent management function, was nevertheless a mandatory subject of bargaining if it has a significant adverse impact on unit employees. As in other cases in the field of labor relations, the problem is one of accommodat- ing conflicting interests. "In such cases it is the function of the Board to weigh the conflicts which arise from time to time out of the exercise of [the employees' statutory] rights and to determine in each case whether the interest of the employees or the interest of the employers should be held paramount." N.LR.B. v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7, 1946). See also Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, 797-798 (1945). "Inconvenience, or even some dislocation of property rights may be necessary in order to safeguard the right of collective bargaining." N.L.R.B. v. Stowe Spinning Company, 336 U.S. 226, 232 (1949). It follows, therefore, that employer action designed to maintain or protect the "integrity" of a product does not take the action outside the scope of mandatory bargaining if it has a significant effect on working conditions. Contrary to Respondent's suggestion, the newspaper industry is not the only one in which product "integrity" plays a major role. Integrity is no less an ingredient, for example, in the work product, such as a report or survey, of a detective agency or of an insurance claims adjuster. Even a waiter in a night club may be influenced by a gift such as a bottle of whiskey-an article Publisher Rietzel confiscat- ed upon discovering that it was intended for an advertising salesman placing "ads" in the Mercury. In any event, integrity of a product is not the exclusive managerial interest of a newspaper "manufacturer." Respondent's reporters, too, have an interest in objectivity, accuracy, judgment, imagination, and other "intangibles" going into the articles they prepare and write for publication in the Mercury. As my colleague, Administrative Law Judge Sherman, aptly put it in Capital Times, (Decision, pp. 74- 75, supra, fn. 22): Their [the newspersons'] own "credibility" is a substan- tial if not overriding factor in their own ability to do their job well, their own ability to progress on the job, and their own ability to obtain work elsewhere. Likewise, the writer of allegedly defamatory matter has prior to promulgation of the Code. In any event, there is no claim that any preexisting rule or policy embodied the hazard of disciplinary action (including outright discharge) in the event of a breach-as do the Office Rules and Ethics Code. See Miller Brewing Co., supra, 166 NLRB at 832. 25 See e.g., N.LRB. v. J.H. Allison & Company, 165 F.2d 766 (C.A. 6, 1948) (merit wage increases); Inland Steel Company v. N.LR.B., 170 F.2d 247, 251-255 (C.A. 7, 1948) (pension and retirement plans); N.L.R.B. v. East Texas Steel Castings Company, Inc., 211 F.2d 813, 819-820 (C.A. 5, 1954) (incentive programs); N.LRB. v. Black-Clawson Conpany, 210 F.2d 523, 524 (C.A. 6, 1954) (profit sharing); N.LRB. v. General Motors Corporation, 179 F.2d 221 (C.A. 2, 1950) (group health insurance); Richfield Oil Corporation, 231 F.2d 717 (C.A.D.C., 1956) (employee stock purchase plan); Fibreboard Paper Products Corp., supra, 379 U.S. 203 (subcontracting); Justensens's Food Stores, Inc., et al. 160 NLRB 687, 693 (1966) (automation). 256 PEERLESS PUBLICATIONS an interest in common with the publisher's in avoiding libel proceedings, because both will be answerable therefor. Particularly because these employee interests are closely analogous to the employer interests assert- edly protected by its managerial prerogative, I conclude that Respondent's interest in the subject matter of the rules does not outweigh the employees' interest. [Fns. omitted.] Indeed, Respondent's Code of Ethics states in its preamble that it "concerns all newspaper people." And in its brief, Respondent concedes that the Code was designed to "advise the employee what Peerless expects from him in their [employer and employee ] common pursuit of honesty, accuracy and objectivity for The Mercury." As if to emphasize the impact of noncompliance on employee job security, Respondent further states "it [the Code of Ethics] establishes valid bases by which to determine his [the newsperson's] retention." These considerations in them- selves refute Respondent's contention that the Code "is not an employee code." Certainly, the employees' interest in the Code is sufficiently direct to constitute the Code a compulsory bargaining topic. And the incorporation of an "Employee Integrity" clause in the current collective agreement (supra, sec. C, 4) dealing with some aspects of the Ethics Code (e.g., submission of news stories "without distortion of any facts, without malice and without creating impressions," procedure for "retraction" of materials, "privilege against disclosure" of source of information) is at least some evidence that Respondent also thought so. Nor, as previously indicated (sec. D, 1), does the obligation to bargain about a Code of Ethics mean an obligation to agree upon it. "[l ]t is a mistake to assume that where there has been [collective] discussion and fair notice of the employer's intended action, it is a violation of the law to institute such changes without securing the agree- ment of the Union." N.L.R.B. v. Tex-Tan, Inc., 318 F.2d 472, 481 (C.A. 5, 1963). Cf. Taft Broadcasting Co., WDAF, AM-FM TV, 163 NLRB 475 (1967), affd. 395 F.2d 622 (C.A.D.C., 1968). And such discussion need not turn into the "hampering process" Respondent fears. "[T]he Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position." Fibreboard Paper Products, supra, 379 U.S. at 214, quoting from N.LR.B. v. American National Insurance Co., 343 U.S. 395, 404 (1952).26 Finally, compliance with the statutory bargaining obliga- tion need not impair or interfere with the integrity, objectivity or quality of Respondent's "product" because nothing in the statute "require[s] that [a newspaper] retain in its employ . . . one who fails faithfully to edit the news to reflect the facts without bias or prejudice .... [Respondent] is at liberty, whenever occasion may arise, to exercise its undoubted right to sever his relationship for any cause that seems to it proper save only as punishment 25 Respondent's concern for the time factor sounds hollow when it is recalled that Publisher Rietzel did not publish the Ethics Code until April 15. 1974, although derived with "insignificant modifications" from a professional journalists code adopted on November 16, 1973, and circular- ized in December 1973. As to the Office Rules, Rietzel testified that he started checking on rules of other newspapers as far back as May 1967 and "eventually drew them up and finally got them posted on July Ist 11968 1." for, or discouragement of, such activities as the Act declares permissible." Associated Press v. N.LR.B., 301 U.S. 103, 132 (1937). I conclude that there is no substance to Respondent's contention that the formulation and promulgation of the Ethics Code is a purely "managerial prerogative" exempt from the bargaining obligation. 4. The contention that Respondent satisfied "any bargaining obligation it may have had" by its willingness to resolve disputes arising under the Office Rules and Ethics Code through the contractual grievance-arbitration machinery Respondent contends that even if the Office Rules and Ethics Code were mandatory bargaining subjects, it satisfied "any bargaining obligation it may have had" because (a) it had in the past "participated" in resolving disputes arising under the Rules; and (b), as it "unequivo- cally" stated at the hearing, it stands ready to do the same as to disputes arising under the Code. Respondent urges that the contractual grievance-arbitration machinery may be utilized to process sundry disputes, such as "whether a Rule or Code provision conflicts or is inconsistent with the collective bargaining agreement or applicable law," wheth- er any such provision "is properly applied to the employee or situation involved," and whether a penalty imposed against an employee "should be remitted or reduced." Relying on court and Board cases,27 Respondent points to the wide acceptance of grievance-arbitration as a preferred means for settling labor disputes; the "quick and fair means for resolution" (Collyer, supra, 192 NLRB at 839) of such disputes through that process; the development of arbitration as "the central institution in the administration of collective bargaining contracts" (Boy's Markets, supra, 398 U.S. at 250); and the acceptability of arbitration as "a bargaining process" (Timken Roller, supra, 161 F.2d at 954). I find no merit in Respondent's contentions. To be sure, the Board has given "hospitable acceptance to the arbitral process" where disputed rights have turned on interpreta- tion, construction, or application of collective agreements. As the Board stated in Collyer, supra, 192 NLRB at 839, "disputes such as these can better be resolved by arbitra- tors with special skill and experience" in contract construc- tion. Moreover, the contract in such cases can afford "a fully effective remedy for any breach of contract which occurred." (Ibid.) The basic and central dispute here, however, turns not on the interpretation or meaning of the collective agreement between Guild and Peerless-i.e., whether or not the Office Rules and Ethics Code are consistent with it, whether the contract was properly applied, etc.-but on the construction of the statute, namely, whether formulation, promulgation, or enforce- ment of the Rules and Code are mandatory subjects of 27 E.g., United Steelworkers ofAmerica v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Boy's Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970); Timken Roller Bearing Company v. N.LR.B., 161 F.2d 949 (C.A. 6, 1947); Spielberg Manufacturing Company, 112 NLRB 1080 (1955); and Collyer Insulated Wire, A Gulf and Western Systerms Co., 192 NLRB 837 (1971). 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining. More specifically, the issue is whether Respon- dent's "[u]nilateral action ... without prior discussion with the Union . . . amount[ed] to a refusal to negotiate about the affected conditions of employment," thereby "obstruct[ing] bargaining contrary to Congressional poli- cy." N.L.R.B. v. Katz, 369 U.S. 736, 747. Congress in Section 10(a) of the Act mandated determination of such issues to the Board and not to an arbitrator whose realm of "special skill and experience" is in contract interpretation. "Should the Board disagree with the arbiter . . the Board's ruling would, of course, take precedence." Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). Nor is the collective-bargaining requirement of the Act satisfied by a substitution of the contract grievance procedure for the obligation to bargain. Cf. Hekman Furniture Company, 101 NLRB 631, 632 (1952), enfd. 207 F.2d 561 (C.A. 6, 1953); J. I. Case Co. v. N.LR.B., 149 F.2d 154 (C.A. 7). There surely is a difference between collective bargaining and receiving and processing a grievance. Cf. N.LR.B. v. Tanner Motor Livery Ltd., 349 F.2d 1, 5 (C.A. 9, 1965). Bargaining presupposes discus- sions with the view of formulating a collective agreement- in effect a charter fixing the rights and obligations of employer, union, and employees. On the other hand, "[t ]he processing of disputes through the grievance machinery is . . a vehicle by which meaning and content is given to the collective bargaining agreement." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). Certainly the grievance procedure is not the same as the collective-bargaining process. Furthermore, an arbitrator's remedy in a given grievance case involving, for example, application of the Office Rules and Ethics Code is totally inadequate for preventing future repetition of unilateral changes in Rules and Code,28 or to establish a general standard for all employees. See Scam Instrument Corporation, 163 NLRB 284, 289 (1967), enfd. 394 F.2d 884 (C.A. 7, 1968). I conclude that Respondent has not satisfied its bargain- ing obligation by a willingness to resolve disputes arising under Office Rules and Ethics Code through the contrac- tual grievance-arbitration procedure. 5. The contention that the Union waived its right to bargain about the Office Rules Respondent contends that the Guild "waived whatever right it might have had to bargain any aspect of the General Office Rules" because it did not object to them (through a grievance, or unfair labor practice charge or otherwise) when unilaterally promulgated, did not invite or demand bargaining thereon until August 1974, and actively participated in grievance-arbitration proceedings-thereby working within the framework established by the Rules and acquiescing in their promulgation. It is quite true, as Respondent stresses, that a union may relinquish or waive a statutory right, such as the right here involved to be consulted on a mandatory or bargainable 25 The Office Rules specifically state that "Your department head may add to these rules more specific rules which apply to your department." 29 As previously noted (sec. B, 2), Rietzel testified that he intentionally refrained from specifying the office rule number in order to avoid litigating the rule in an arbitration proceeding. subject. However, the law is settled that the waiver must be clear and unmistakable and will not readily be implied. Armstrong Cork Company v. N.LR.B., 211 F.2d 843, 848 (C.A. 5, 1954); The Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746, 751 (C.A. 6, 1963). Moreover, it has been held that even past failure by a union to assert a statutory right does not estop subsequent assertion. N.LR.B. v. Southeastern Rubber Mfg. Co., Inc., 213 F.2d 11, 15 (C.A. 5); Pacific Coast Association v. N.LR.B., 304 F.2d 760, 763-765 (C.A. 9, 1954); Timken Roller, supra, Murphy Diesel Company, 184 NLRB 757, 763 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971). Furthermore, the union must have "knowingly waived" its interest in the matter. N.LR.B. v. Gulf Atlantic Warehouse Comnpany, 291 F.2d 475, 477 (C.A. 5, 1961). The record shows that although the Guild did not protest the Rules when Publisher Rietzel posted them in July 1968, it vigorously attacked them in the shortly thereafter ensuing 1968 negotiations-at least in the August 8 and October 8 bargaining sessions, informing the Company that it did not "recognize" their validity. Indeed, the Union ultimately (just before the negotiations were concluded) prevailed on Respondent to withdraw or cancel the warning letters issued under them. Respondent correctly states, however, that the Union did not voice any objections to the Rules thereafter until 1974-i.e., until after the May 16, 1974, warnings to employees Smetaniuk and Smith-even though the Company had continued issuing written reprimands to employees for breaching the rules. But, insofar as appears (supra, sec. B, 2), these reprimands were comparatively few (four in 1968, three in 1969, one in 1971, two in 1972 and 1973, and three in 1974) and refer to "office rules" generally-and even so only four times and never to the particular rule breached.29 More- over, as the union contends, the Guild in the 1970 and 1973 negotiations did reject management rights proposals affording the Company the right to "make or change rules" unilaterally (supra, sec. B, 3). Notwithstanding the foregoing and assuming, without deciding, that the Guild waived or acquiesced in the implementation of the Office Rules before 1974, I find that such prior waiver or acquiescence was nullified or with- drawn when the Union protested Respondent's April 15, 1974, promulgation and posting of the Code of Ethics.3 The Code on its face states that "[b]y this posting as of this date the Code of Ethics becomes a part of the posted office rules." As Publisher Rietzel testified, the Code is "an integral part" of the Office Rules. And Respondent in its brief asserts that the Code is but an "amplification of its then posted 1968 General Office Rules." It has already been noted (supra, sec. C, I and fn. 24), that the Ethics Code wrought substantial changes in the existing Office Rules-including restrictions against acceptance of "free- bies" and formal standards of behavior and conduct in connection with the performance of duties (gathering and composition of news stories, etc.)-all "under penalty of discipline" in the event of noncompliance. Accordingly, 30 As noted (sec. C, 4), the Guild on June 4, 1974, wrote Respondent that the Ethics Code involved "unilateral changes in terms and conditions of employment," that the Union regarded its publication as an unfair labor practice, and that Respondent should withdraw the Code and engage "in collective bargaining about it." 258 PEERLESS PUBLICATIONS "[e]ven if the Union had indicated acquiescence by silence when Respondent posted rules or disciplined employees in this area in the past, there would be no waiver in the circumstances of this case, not only because the [April 15, 1974] posting [of the Code] made sufficient changes in Respondent's rules and practices to require bargaining about them, but also because a right once waived is not necessarily lost forever." Murphy Diesel Company, 184 NLRB 757, 763 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971). I conclude that even if the Union waived its right to bargain about the Office Rules prior to the April 15, 1974, publication of the Ethics Code, Respondent on request was thereafter legally obligated to bargain about the Rules, as supplemented by the Ethics Code. 3' The Union made such requests on June 4 and August 16, 1974. 6. The contention as to the applicability of the Section 10(b) 6-month statute of limitations Section 10(b) of the Act precludes issuance of a complaint "based upon any unfair labor practice occurring more than six months" prior to the filing and service of the charge. Since the charge in this proceeding was filed and served on August 28, 1974, no unfair labor practice finding can lawfully be based on conduct occurring before February 28, 1974. Accordingly, promulgation of the Office Rules on July 1, 1968, and their republication (as revised) on May 10, 1972, are time-barred by Section 10(b) of the Act. Still to be considered is whether enforcement of the Office Rules within the 6-month statutory period (warning letters to three employees after February 28, 1974-supra, sec. B, 2) is time-barred. Respondent correctly states that under the Supreme Court's Bryan case 32 although the Board may consider evidence (such as motive or intent) in determining whether an unfair labor practice occurred during the 6-month period, even though that evidence is older than 6 months, where the unfair labor practice depends on a finding of unlawful conduct in the pre-6- month period, Section 10(b) bars that finding. In Bryan, where the union and employer signed a collective agree- ment when the union represented only a minority of the unit employees, Section 10(b) barred a finding that the continued enforcement of the agreement (within the six- month period) was unlawful. The Court held that "the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered." 362 U.S. at 423 (1960). Since the Office Rules here, like the contract in Bryan, are lawful on their face and there is no showing that any individual application thereof was illegal (i.e., motivated by any factor other than enforcement of the Rules), I find that implementation of the Rules, as well as their publication and republication, is time-barred. See Wald Manufacturing Company, Inc., 176 NLRB 839, 841 (1969), enfd. 426 F.2d 1328 (C.A. 6, 1970); Durfee's 11 I.e.. the entire Rules as a set of rules. See Miller Brewing Co., supra, 166 NLRB 831. 52 Local Lodge 1424, International Association of Machinists, AFL-CIO v. N.L.R.B., 362 U.S. 411 (1960). 31 Under Rule II of the Office Rules, employees "must so conduct Television Cable Company, 174 NLRB 611, 613-614 (1969). Cf. Nu-Car Carriers, Inc., 187 NLRB 850, 862-863 (1971), enfd. sub nom R. W. Rosen v. N. LR.B., 455 F.2d 615 (C.A. 3, 1972). As to the Ethics Code, General Counsel relies only on one incident of implementation-Respondent's May 16, 1974, warning letters to employees Dougherty and Smith for "outside activities involving conflict of interests with [their] employment." It will be recalled (sec. C, 2) that the reprimands were based on Publisher Rietzel's belief that as partners in a public relations agency they failed to furnish to a client the "Mercury" advertising rates while furnishing those of other area newspapers. In dispute here is whether the reprimands constituted implementation of the Code (as claimed by General Counsel and Guild) or of the Office Rules (as claimed by the Employer)-the letters on their face naming neither. As already noted (sec. C, 2), both Office Rules (Rule 11) and Ethics Code (paragraph 2) deal with outside activities, including outside employment, and the warning letters fall as readily within the ambit of one as within the ambit of the other.3 3 Since as a practical matter this aspect of the Code is a mere restatement, particulariza- tion, or reemphasis of the Office Rules outside activities provision, it follows that the May 16, 1974, warnings to Dougherty and Smith are time-barred whether issued in implementation of Code or Office Rules. Cf. Murphy Diesel Company, 184 NLRB 757, 759, 762 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971); Mason & Hughes, Inc., 86 NLRB 848, 850 (1949). I conclude that Section 10(b) of the Act bars a finding of unfair labor practices based upon the May 16, 1974, warning letters, as well as upon other warning letters issued under the Office Rules. This does not, of course, mean that Respondent was absolved from bargaining with the Union on the unilaterally imposed Rules and Code, in futuro, as requested in the Guild's June 4 and August 16, 1974, letters (within the 6-month statutory period). See Miller Brewing Co., supra, 166 NLRB 831, 832. The fact that Respondent's prelimitation unilateral conduct cannot be found to be unfair labor practices redressable by the Board does not put the conduct in perpetuity beyond the reach of the statute. 7. The contention that the requirement to bargain over the Ethics Code impinges Respondent's First Amendment rights Relying on the Constitutional restriction that "Congress shall make no law . . . abridging the freedom . . . of press," Respondent contends that a determination that the Code is a mandatory bargaining subject "would certainly infringe on Peerless' freedom to determine the quality of its news and editorial content, and, depending entirely on the Guild, could easily destroy that freedom altogether." To begin with, I must assume that the duty to negotiate about mandatory bargaining subjects is no less constitutional when imposed on newspapers as on others. "The business themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage." The Ethics Code (par. 2) states that "Newspaper people ... should conduct their personal lives in a manner which protects them from conflict of interest, real or apparent." 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the newspaper is not immune from the Act's coverage merely because it is an agency of the press. Associated Press v. N.L.R.B. [301 U.S. 103]." Wichita Eagle & Beacon Publishing Co., Inc. v. N.LR.B., 480 F.2d 52, 56 (C.A. 10, 1973). In any event, Respondent's contention misconceives its obligation under the statute. Contrary to its assumption, its duty to bargain about a code of conduct affecting employee working conditions need not interfere with the managerial operation of its business, including determina- tion of the quality of its news and editorial content. Cf. Associated Press, supra, 301 U.S. at 131-132. As already stressed (supra, sec. D, I, and 3), the obligation to bargain is not an obligation to agree. To be sure, consultation and bargaining with the employees' statutory bargaining representative prior to promulgating a code of the type Respondent unilaterally instituted could cause some delay in putting it into effect over the union's objections,34 but this is only a small price to pay for promoting "industrial harmony and eliminate costly industrial strife" by "consen- sual agreement between management and employees." (Fibreboard Paper Products, supra, 322 F.2d at 414 per Judge-now Justice-Burger.) As stated by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 682-683 (1972), It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed." I conclude that the requirement imposed on Respondent to bargain over the Ethics Code does not impinge its Constitutional right to freedom of press. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Newspaper Guild of Greater Philadelphia, Local 10, is a labor organization within the meaning of Section 2(5) of the Act. 34 But see supra, fn. 26. 35 As described in the collective agreement between the Guild and Respondent and as stipulated at the hearing. Excluded, of course, are guards, professional employees, and supervisors as defined in the Act. 36 This provision is "in accord with the established Board policy of 3. At all times material, the above-named labor organization has been and is the exclusive representative of all employees in the following appropriate bargaining unit 35 within the meaning of Section 9(a) of the Act: All of Respondent's Editorial, Circulation, Mainte- nance, Telephone Operator and Advertising Depart- ments, but excluding the managing editor, city editor, circulation manager, confidential secretary to the Publisher, county string correspondents, commission advertising salesmen, and the national, display and classified advertising managers. 4. By unilaterally, and without prior consultation and bargaining with the Union, promulgating the Code of Ethics on April 15, 1974, thereby incorporating into its Office Rules, new and additional rules of employee conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. Respondent has not violated Section 8(aX5) and (1) by implementing or enforcing its Office Rules or Code of Ethics--findings of such violations being barred by the 6- month statutory limitation of Section 10(b) of the Act. 6. By refusing to honor the Union's June 4 and August 16, 1974, demands to bargain about the Office Rules and Code of Ethics, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 7. The unfair labor practices described in paragraphs (4) and (6) above affect commerce within the meaning of Section 2(6) and (7) of the Act. THi REMEDY Respondent having engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act, should be required to cease and desist therefrom and take certain affirmative action. Such affirmative action will include a requirement that Respondent rescind the Code of Ethics it unilaterally promulgated on April 15, 1975; and a further requirement that Respondent, on request by the Union, bargain with it about terms and conditions of employment as embodied in said Code and in its Office Rules.3a [Recommended Order omitted from publication.] restoring working conditions unilaterally changed" (Dickten & Masch Mfg. Company, 129 NLRB 112, 113 (1960)) and reestablishing "the prior situation . . .until legally changed." Kinard Trucking Company, Inc., 152 NLRB 449, 452 (1965). 260