Allbritton Communications

ALLBRITTON COMMUNICATIONS Allbritton Communications, Inc., and its wholly owned subsidiaries, The News Printing Compa- ny, Inc. and The Hudson Dispatch and Newark Typographical Union No. 103, International Ty- pographical Union, AFL-CIO and Newspaper and MaiI Deliverers Union of New York and Vicinity and Steven Thompson and T & T News Company, Inc., Party in Interest. Cases 22- CA-10386, 22-CA-10645, 22-CA-10647, 22- CA-10682, 22-CA-11014, 22-CA-11045, 22- CA-11307, 22-CA-11338, 22-CA-10639, 22- CA-11212, and 22-CA-11313 13 July 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 24 September 1982 Administrative Law Judge James F. Morton issued the attached deci- sion. The Respondents filed exceptions, a support- ing brief, a motion to reopen the record, and a re- quest for oral argument; the General Counsel filed exceptions, a supporting brief, an answering brief to the Respondents' exceptions, a motion to strike portions of the Respondents' brief in support of their exceptions, and an opposition to the Respond- ents' motion to reopen the record; Newspaper and Mail Deliverers Union of New York and Vicinity (NMDU) filed exceptions and a supporting brief; the Respondents filed an answering brief to the General Counsel's and NMDU's exceptions, cross- exceptions, and a supporting brief; and the General Counsel filed an answering brief to the Respond- ents' cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, briefs, and mo- tions' and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent con- sistent with this Decision and Order. I The Respondents have requested oral argument. This request is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. The Respondents' motion to reopen the record is denied as the prof- fered evidence either was excluded by the judge, has not been shown to be previously unavailable or newly discovered, or is irrelevant. The General Counsel's motion to strike portions of the Respondents' brief in support of their exceptions is granted as the Respondents' brief recites facts which are not of record in this case. Accordingly, we strike from the Respondents' brief in support of its exceptions all references to facts not of record. I The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. 271 NLRB No. 39 We agree with the judge that the three Respond- ents, Allbritton Communications, Inc. (Allbritton) and its wholly owned subsidiaries, The News Print- ing Company, Inc. (News) and The Hudson Dis- patch (Dispatch), constitute a single employer. We do not read the Respondents' exceptions and briefs as contesting the finding that News and Dispatch are a single employer, and the judge's finding in this regard is amply supported. News and Dispatch each publishes a daily newspaper bearing its name and, except for Dispatch's pressroom located 16 miles away, operates out of the same Paterson, New Jersey facility where the employees are gov- erned by common supervision and labor relations policies. These labor relations policies are formulat- ed and effectuated principally by W. Dean Single- ton through his News and Dispatch subordinates. Singleton is the executive vice president of Allbrit- ton, president of Allbritton's newspaper division, and president of both News and Dispatch. Single- ton's duties as president of Allbritton's newspaper division also give him managerial responsibility for overseeing the operations of other newspapers pub- lished by the Allbritton chain. Singleton was in- strumental in many of the labor relations activities on which the instant case revolves as discussed below. Joe L. Allbritton, owner, president, and chairman of the board of Allbritton, is also chair- man of the board of News and Dispatch. On these facts as well as the reasons set forth by the judge all three Respondents clearly constitute a single en- terprise or employer. We shall proceed with an analysis of the events occurring among the mail- room employees/drivers, the editorial employees, and the composing room employees. The Mailroom Employees/Drivers The allegations regarding the Respondents' con- duct with respect to these employees center around the employees' being expelled from and replaced in their jobs, an occurrence which coincided with the Respondents' repudiation of any bargaining rela- tionship with the Union that represented them. The preliminary but crucial question is whether these were the Respondents' employees. As set forth in more detail in the judge's decision the nominal employer of the mailroom employ- ees/drivers (who take the News newspapers from the conveyor belt in the Respondents' Paterson fa- cility, prepare them for delivery, and drive the de- livery trucks) is T & T News Company, Inc. (T & T). T & T is owned and operated by the Trombina family under the active daily control of Peter Trombina, a former employee of the company that performed the delivery functions before T & T. T & T came into existence when the former manage- 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of News offered Peter Trombina and his father, a foreman with T & T's predecessor, the opportunity to form a company which would employ the former distributing company's employ- ees and work exclusively for News to perform the same functions. T & T had little or no capital in- vestment. It operated within the newspaper's facili- ty using office space, equipment, materials, machin- ery, and trucks provided by the newspaper. The trucks displayed the newspaper's logo, not T & T's. T & T began operating under contract with News in 1966. When Allbritton purchased News in 1977 it assumed the existing (1976-1982) contract under which T & T received a fixed weekly amount with which to pay the employees and its business expenses and retain a profit. The contract contemplated an increase in the weekly payment to reflect any increases in labor costs effectuated by collective-bargaining negotiations between T & T and the union representing its employees. That Union at all relevant times has been the Newspaper and Mail Deliverers Union of New York and Vi- cinity (NMDU).3 T & T's 1976-1982 contract with News provided for the number of employees to be employed on each shift and gave News the right to require T & T to hire additional temporary employees. T & T's supervisors and assistant foremen had to be ap- proved by News which had the right to order the discharge of any driver it considered unsafe and to approve that driver's replacement. T & T was to maintain the payroll, pay the employees, and secure workmen's compensation coverage for them. Route scheduling including the sequence of stops was News' responsibility. The daily starting times for the employees and the delivery times for each edition of the newspaper were set forth in the contract. Any changes in the routine were dictated to Trombina through daily conferences with News' circulation director. The credited evidence establishes that, in negoti- ating for a new collective-bargaining agreement with NMDU in 1979, T & T's Peter Trombina, consistent with past practice, sought and obtained the approval of News before responding to the Union's demands. Trombina relayed the Respond- ents' positions to the Union and reviewed with the Respondents' representatives, including Singleton, a memorandum of understanding summarizing the terms of the tentative agreement reached. On re- ceiving the Respondents' approval Trombina told 3 A separate provision of the T & T-News contract required T & T to have "a signed contract with the Driver's Union which will insure unin- terrupted delivery service." In context with other provisions referring to the Union "which represents [T & T's] employees" there can be little doubt that the term "Driver's Union" acknowledges the status of NMDU as bargaining representative. the Union it could seek membership ratification and have the final contract printed. This was ac- complished. Employee grievances pursued under the collective-bargaining agreements typically in- volved the condition of the mailroom or the trucks and, although taken up with T & T, could be re- solved only by the action of the Respondents. Based on these and other facts set forth in the judge's decision, the General Counsel has taken the position that T & T and the Respondents were joint employers of the mailroom employees/drivers or in the alternative that T & T (which has not been charged with any unfair labor practices) was the Respondents' agent in performing the functions of the employer of these employees. The judge made a contingent finding that T & T and the Respondents were joint employers. 4 He re- garded the principal-agent theory as inapplicable and as adding nothing to the General Counsel's "joint employer" contention. We disagree. Joint employer status usually assumes that the business entities are independent and separate for other than labor relations purposes. NLRB v. Browning-Ferris 4 This finding was contingent in the sense that the judge earlier had concluded that he was bound under the principle of collateral estoppel, by a U. S. district judge's finding that T & T and Respondent News were not joint employers. The administrative law judge's conclusion was erro- neous, as the district court later determined that it improperly asserted removal jurisdiction. NMDU had initially obtained removal on the basis of a counterclaim asserted in a state court action instituted by Respond- ent News against it alleging picket line misconduct. As the district court lacked jurisdiction over the Union's cause of action which alleged the joint employer status, the court properly vacated the finding regarding that status and remanded the case to the state court. See Billy Jack For Her, Inc. v. Ladies Garment Workers Local 1-35, 511 F.Supp. 1180, 1184 (S.D. N.Y. 1981), and authorities cited. We note also that in making the vacated findings the district judge relied on cases decided on principles applicable to the issue of "single employer" status rather than those applicable to "joint employer" issues. The district judge's failure to make this distinction may have been cru- cial. See NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982), enfg. 259 NLRB 148 (1981). Finally, we decide the question of the Respondents' employer status as to these employees on grounds other than the standard "joint" or "single" employer analysis and therefore have no need to consider whether, if called upon to decide the same issue previously decided by the district judge, we should in the absence of col- lateral estoppel give any deference to his findings. For all these reasons we also leave for another day exploration of the questions raised by the administrative law judge's conclusion that the Board may be precluded from deciding an issue previously decided in a private action brought under Sec. 301 of the Act. The general rule is that the Government, not having been a party to the prior litigation, is not barred from litigating an issue involving enforcement of Federal law which a private plaintiff has litigated unsuccessfully. United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5th Cir. 1979); Restatement 2d, Judgment § 41, Reporter's note at 402 (1982); 18 Wright, Miller & Cooper, Federal.Prac- tice and Procedure: Jurisdiction, § 4458 at 520-521 (1981). The courts have given uncertain guidance as to whether that rule is eroded when a liti- gant in the earlier Federal court proceeding becomes a charging party before the Board. Compare NLRB v. Heyman, 541 F.2d 796, 800 (9th Cir. 1976) (Board precluded) with Bay Area Sealers, 251 NLRB 89, 102- III (1980), enfd. 665 F.2d 970 (9th Cir. 1982) (with no mention of Board's rejection of collateral estoppel contentions), and Newport News Shipbuilding, 253 NLRB 721, 726-729 (1980), enfd. 663 F.2d 488 (4th Cir. 1981) (Board's primary jurisdiction unaffected by prior court determina- tion). 202 ALLBRITTON COMMUNICATIONS Industries, supra. This also connotes, where the issue is whether one is acting for the other, that the actor is an independent contractor. The General Counsel's alternative contention, in which we find merit, is that, in performing the role of employer to the mailroom employees/drivers, T & T was not an independent contractor but the agent of the Re- spondents. Stated otherwise, we have concluded that T & T was little more than an administrative arm of the Respondents; the Trombinas were man- agers employed by the Respondents to operate the delivery system to the Respondents' specifications. The "right to control" test used to determine whether a person is an independent contractor is the same whether independent contractor status is urged as alternative to employee status or to agent status. See, e.g., Packing House & Industrial Services v. NLRB, 590 F.2d 688, 698-699 (8th Cir. 1978), enfg. 231 NLRB 735 (1977). The relationship be- tween the Respondents and T & T exhibited strongly most of the factors commonly associated with agency or employee status. T & T performed functions which were an essential part of the news- paper's operation, had a long-term exclusive work- ing arrangement with the newspaper, carried the newpaper's product in trucks bearing the newspa- per's name, conducted its operation under daily guidance from newspaper personnel and subject to unilateral changes dictated by the newspaper, had no proprietary interest in the work or the premises and equipment used to perform it, and had no op- portunity to take entrepreneurial risks. See News- Journal Co. v. NLRB, 447 F.2d 65 (3d Cir. 1971), cert. denied 404 U.S. 1016 (1972). Weighed against these factors and the Respondents' direct and indi- rect participation in labor relations matters, T & T's conduct of the lower-level functions of employ- ee management and dealing with the Union was more akin to the role performed by supervisors than that characteristic of independent contractors. Better Building Supply Corp., 259 NLRB 469 (1981), enfd. mem. 707 F.2d 518 (9th Cir. 1983). We there- fore find that the Respondents were at all pertinent times the employer within the meaning of the Act of the mailroom employees/drivers and were sub- ject to all the duties and obligations accompanying that status. 5 5 The Respondents' actions in changing and eventually severing their relationship with T & T form the background and substance of the unfair labor practices alleged here and therefore cannot serve to insulate the Respondents from their employer-employee relationship. Our rejection of T & T's independent contractor status makes it unnec- essary to pass on the Respondents' status as a joint employer. Our finding does connote a "single employer." However T & T's agency status makes it unnecessary to analyze this issue in terms of commonality of owner- ship, management, and control of labor relations policies as in traditional "single employer" determinations. Rather than being held in common. As described more fully by the judge, the Re- spondents set out to effect a major layoff of mail- room employees/drivers, first through the proce- dures provided in the collective-bargaining agree- ment it permitted T & T to negotiate with NMDU. When those procedures culminated in an arbitra- tion award they deemed unsatisfactory, the Re- spondents repudiated the agreement and the Union's representative status and engineered a con- frontation that gave them a pretext to lock the em- ployees out.6 The Respondents in effect discharged these employees in violation of Section 8(a)(3) and (1) for supporting NMDU in seeking the benefits of their collective-bargaining agreement. Further, acting as though they were strangers to the bar- gaining relationship nominally between T & T and NMDU, the Respondents repudiated their obliga- tion to bargain with the Union. Therefore we agree with the judge's contingent finding that the Re- spondents also violated Section 8(a)(5) as alleged with respect to the mailroom employees/drivers. Editorial Employees The judge found that the Respondents unlawful- ly threatened and laid off editorial employees to discourage them from seeking union representation. We find that certain unlawful threats have been es- tablished but that the alleged unlawfulness of the layoffs has not.7 For many years the composing room employees who worked for News and Dispatch were repre- sented by Newark Typographical Union No. 103, International Typographical Union, AFL-CIO (ITU or Local 103). In 1980 some of the newspa- pers' unrepresented editorial employees began to organize their colleagues for representation by ITU. In September and October of that year, when the organizational efforts accelerated and became a topic of conversation among the reporters in the newsroom, the associate editor of News, an admit- ted supervisor, warned reporters to stop talking these attributes of the employing enterprise all belong to the Respond- ents. 6 The Respondents created the confrontation resulting in the lockout by surprising the employees as they arrived for work one evening with the presence of security personnel hired ostensibly to insert advertising supplements into the newspapers, thereby changing the existing mode of operation and eliminating a procedure called "topping" for which the employees had received extra pay. The Respondents did not consult the Union. When the employees, with no more than reasonable forcefulness. resisted this tactic, the Respondents expelled them from the premises and proceeded immediately with their well-prepared plan to have the guards take over all the mailroom duties including driving the delivery trucks. I The dissent correctly states that we have analyzed each of the three units separately However, we have not ignored the relationship between the Respondents' actions affecting one unit and those affecting the others. To the contrary we have throughout this decision given careful consider- ation to all the facts in analyzing the Respondents' actions, lawful and unla, rul. 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about "that sort of thing" and warned a composing room employee who was the chapel chairman for Local 103 that he should be more discreet in solic- iting editorial employees to sign authorization cards. The editor punctuated the last warning by asking rhetorically what would happen when somebody lost his job. News' city editor, also a su- pervisor, told reporters that his superiors kept call- ing him to ask which employees should be dis- charged to block Local 103 and had instructed him to warn certain known union supporters they would be fired if necessary. We agree with the judge that these warnings and threats violated Sec- tion 8(a)(l). 8 Between 24 and 26 October 1980 the Respond- ents laid off eight editorial employees in what the judge found to be an action unlawfully motivated by a desire to discourage support for ITU. We find the judge's conclusion to be unwarranted. The two newspapers were suffering operating losses. Ac- knowledging this the judge nevertheless rejected the Respondents' showing that the layoffs were economically motivated. As the Respondents' wit- nesses testified, Allbritton's determination to make News and Dispatch self-sufficient caused Singleton in the summer of 1980 to instruct Executive Editor Vezza to trim the editorial staffs down to a level which conformed to industry guidelines. At first this was to be accomplished through attrition. Vezza apparently underestimated the urgency of this policy and hired some replacements for report- ers who left. In October, Singleton decided that the reduction in force was not being accomplished and told Vezza to lay off 10 people to be selected by Vezza. Vezza delegated this selection to his managing editor. Of the 10 layoffs 2 were rescind- ed immediately and only 8 were alleged as dis- criminatory. The judge's reasons for rejecting this explanation involve both the overall economic justification and the results of the selection process. In his analysis he intruded more than slightly into an area of man- agerial authority reserved to the Respondents and not intended to be subject to second-guessing by the Board. See Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1265 (7th Cir. 1980). The judge did not purport to deny that a layoff was economically justified.9 In fact he acknowledged that postlayoff s Chairman Dotson would not find the associate editor's conversation with the chapel chairman to be unlawful. The chapel chairman, who pro- vided the only evidence of this conversation, described it as occurring in a "joking" atmosphere. Furthermore, the absence of evidence that the as- sociate editor exhibited any hostility or antiunion attitude reinforces the friendly and casual context of this conversation. a The dissent's characterization of this statement as "incorrect" con- fuses the judge's ultimate conclusion-that the economic justification was pretextual-with his acknowledgement that the Respondents' News and Dispatch both were suffering operating losses, The judge also states "that hiring was principally to replace employees who left after the layoffs. Thus the newspapers contin- ued functioning for several months at the staff level established by the layoff.'0 While giving too little weight to that significant economic fact the judge placed far too much emphasis on an artificial issue concerning the details of the Respondents' final ap- proval of the newspapers' budget for the fiscal year beginning October 1980. Newspaper officials had proposed a budget which continued existing staff- ing levels. However Singleton testified that he took no final action on the budget until the decision was reached to reduce it by laying off the excess edito- rial employees, and nothing was presented which contradicts that testimony." It is not our function to judge the reasonableness of this decision or of the Respondents' failure to reach a decision earlier. Moreover the evidence suggesting to the judge that selection of the employees for layoff was dis- criminatory is unconvincing. There is no evidence that more than three of the eight alleged discrimin- atees were known to the Respondents as active union supporters or that most of them were known as union supporters at all. The judge found the rea- sons assigned for some of the selections to be un- satisfactory, but there is no proof either that the Respondents deviated from past practice in their criteria for layoff or that they retained employees who were inferior to those selected for layoff under their announced criteria. For these reasons we find that the evidence of the Respondents' union animus and the suspicious coincidence between the Respondents' actions and the ITU's organizational campaign do not establish that the latter was a motivating factor for the former. See Mini-Industries, 255 NLRB 995 fn. 2 (1981). The record taken as a whole gives us insuf- ficient basis to choose the unlawful motive over the economic facts . . . support strongly Respondent's demand for give- backs" in the composing room unit. The last statement is based on the judge's finding that in the fall of 1980 the Respondents were "continuing to experience financial losses," clearly a justification for cost-cutting measures. "' Three months after the layoffs the Respondents had yet to fill a va- cancy occurring in the middle of that period. After that, the Respondents began gradually to increase the staff to prelayoff levels. The first new hire in excess of postlayoff vacancies was made nearly 4 months after the layoff. The nine new hires within 5 months resulted in a net increase of only four. I' The dissent's restatement of the credited testimony regarding the se- quence of events leading to Singleton's rejection of the budget is some- what misleading. Executive Editor Vezza testified that Singleton instruct- ed him in the summer of 1980 to reduce the editorial staff by attrition if possible. Vezza hired five replacements over the next few months in spite of these instructions. There is no indication that the fact that employees were replaced was reflected in the proposed budget Vezza submitted to Singleton. Vezza testified that he did not know whether Singleton was aware of it and there is no other evidence regarding Singleton's knowl- edge. Thus the dissent's statement that the replacements were hired "under the budget" signifies little if anything. 204 ALLBRITTON COMMUNICATIONS the lawful one. Id. at 1006.12 And even assuming the General Counsel had proved a prima facie case we find that the Respondents' economic explana- tion was sufficient to rebut it and was not shown to be pretextual. Cf. Ja-Wex Sportswear, 260 NLRB 1229, 1234-1235 (1982). We therefore reverse the judge's finding regarding the October 1980 layoffs and dismiss the corresponding allegations of the complaint. We agree with the judge that the Respondents unlawfully discharged editorial employee Dale Rim in February 1981 for refusal to perform the work of the striking composing room employees. Rim's supervisor had assured him that he would not have to do struck work if he crossed their picket line. There is no support for the Respondents' conten- tion that the judge erred in finding that the work involved was struck work. The Respondents made no effort to show that Rim's refusal to perform struck work eliminated the need for his editorial services, nor did they treat him as a striker. Rim's discharge unjustifiably interfered with his right to engage in the protected concerted activity of sup- porting the strike of his fellow employees and thus violated Section 8(a)(l). General Tire & Rubber Co., 190 NLRB 227 (1971), enfd. 451 F.2d 257 (Ist Cir. 1971). As Rim's activity was also in support of the action of Local 103 in calling the strike of the com- posing room employees and especially as Local 103 had been attempting to organize the editorial em- ployees, the judge was correct in finding that Rim's discharge also violated Section 8(a)(3). Having found that the extent of the Respondents' unfair labor practices in the editorial employees' unit consisted of some warnings and threats of dis- charge in September and October and an indirectly related discharge several months later, we decline to adopt the judge's recommended bargaining order. The judge based his recommendation largely 12 In addition to the unlawful threats we have found above, the judge relied on a statement attributed to Singleton which was not alleged as a violation but which the judge found relevant to the question of union animus. The judge found that Singleton had told a supervisor that the Respondents would punish ITU for trying to organize the editorial em- ployees and would not give the composing room employees whom ITU already represented a raise This finding was based on an employee's tes- timony that the supervisor had told the employee Singleton had made such a statement. The Respondents objected to the admission of the em- ployee's testimony as "double hearsay." The judge admitted it as an ad- mission against interest which is not hearsay even if offered by way of a nonwitness third person's quotation. Singleton denied making such a statement and the supervisor did not testify. The judge credited the em- ployee and discredited Singleton's denial. We do not accept the employee's testimony in these circumstances to prove the truthfulness of the supervisor's alleged admission that he heard the statement from Singleton. While the employee's testimony would have been admissible for the purpose of proving a threat conveyed by the supervisor, we are unwilling to find that it was properly admitted to prove the fact that Singleton made the statement to the supervisor In any event we would not credit it for that purpose in light of Singleton's in-court denial. on his finding that the Respondents had perpetrat- ed a discriminatory layoff just as ITU had obtained a majority of authorization cards. We have rejected his finding that the layoff was unlawful. As we also reverse, infra, his findings with regard to much of the alleged unlawful conduct affecting the compos- ing room employees, we need not pass on the "fall- out" effect within the editorial unit that the judge attributed to such conduct. We are left with the earlier threats which apparently did not hinder ITU from obtaining a card majority, the discharge of Rim which was remote both in time and focus, the lockout of the mailroom employees/drivers which would not necessarily have portended any- thing for the editorial employees, and only isolated other conduct which arguably impinged on ITU's organizing of the editorial employees but which was not alleged as unlawful. It would be presump- tuous for us to hold that this conduct makes the possibility of holding a fair election in the editorial unit so unlikely as to warrant a bargaining order. The Composing Room Employees A. The 8(a)(5) Allegations The primary issue concerning the composing room employees is whether the Respondents' col- lective-bargaining negotiations with ITU were con- ducted in bad faith. The judge found that the Re- spondents' overall bargaining strategy, evidenced by their conduct throughout the yearlong negotia- tions, was an intent not to engage in genuine bar- gaining. We find otherwise. The Respondents met with ITU at reasonable times and places and even urged the presence of ITU's International representative to facilitate bar- gaining and soliciting the aid of a Federal media- tor. The Respondents offered proposals and coun- terproposals, offered to substantiate the claim of operating losses that underlay its demand for wage reductions, and otherwise met its procedural obli- gations. The judge did not find that the Respond- ents' substantive proposals were so harsh, vindic- tive, or otherwise unreasonable as to warrant the conclusion that they were offered in bad faith. See Chevron Chemical Co., 261 NLRB 44, 46 (19 8 2).'3 Rather, the judge concluded that the Respondents' bargaining approach was improperly influenced by its dispute with NMDU concerning the mailroom employees/drivers. While he does not spell out precisely the presumed connection between the Re- spondents' bargaining tactics with ITU and the lockout of the mailroom employees, the judge as- "a Chairman Dotson would not in any event attempt to evaluate the reasonableness of a party's bargaining proposals. Struthers Wells Corp. v NLRB, 721 F.2d 465, 470 (3d Cir. 1983). 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serts that the two are "very much bound up" with another. Thus he appears to suggest either that (1) the Respondents had determined to extract a wage concession from the composing room employees in order to finance the expenses of replacing the locked-out mailroom employees with guards or that (2) the Respondents provoked ITU into a strike to cause the mailroom employees to honor its picket line and stay out after the lockout. How- ever this imputation to the Respondents of some- thing akin to a secondary boycott-use of its ITU negotiations to achieve its objectives elsewhere-is speculative to the extent it is not irrelevant. It is ir- relevant to the extent that it would have the Board examine why an employer wants to save on labor costs; it is speculative to the extent that it attributes to the respondents an almost clairvoyant ability to foretell a tangled sequence of events that did in fact culminate in the mailroom employees' refusing to cross an ITU picket line. 1'4 Without the aid of this underlying thesis, the judge's conclusion of overall bad faith rests on statements by management negotiators indicating the toughness of the Respondents' bargaining stance.1 5 Some statements by negotiating parties may indeed betray an intention to refuse to bargain in good faith. But the Board must be especially wary of throwing back in a party's face nonsub- stantive remarks he makes in the give-and-take at- mosphere of collective bargaining. To lend too close an ear to the bluster and banter of negotia- tions would frustrate the Act's strong policy of fos- tering free and open communications between the parties. See Carpenter Sprinkler Corp., 238 NLRB 974, 975 (1978), enfd. in relevant part 605 F.2d 60 (2d Cir. 1979). Here none of the statements made at negotiating meetings went so far as to belie the hard but real bargaining that accompanied them. Cf. Preterm, Inc., 240 NLRB 654, 655 (1979). As for other statements noted by the judge which were made outside of negotiating meetings, they were in isolated instances improvident, but nothing said or done casts more than a suspicion on what otherwise was straightforward bargaining. 6 1' Shortly after the lockout the Respondents complied with a Federal court's temporary restraining order requiring them to allow the mailroom employees back to work. It was then that they honored the ITU picket line. Ia The judge inadvertently changed the sense of one of the statements which he used to support his bad-faith finding. Singleton was quoted in the record as saying, to emphasize his determination to get wage conces- sions, that "any printer, driver, or pressman who gets in my way, I'll roll right over him." The judge recast this into a threat to "roll right over Local 103 if it did not accede to his demands." Such a threat, itself of very limited probative value, is much more specific than the one actually uttered. We note among other things that Local 103 (ITU) represented neither the drivers nor the pressmen. 16 Among the statements away from the bargaining table on which the judge relied was the quotation attributed to Singleton about punishing We find unlawful other conduct of the Respond- ents, discussed elsewhere in this decision. Crucial to our determination of overall good or bad faith however are the events of October 1980 to the first 2 weeks of February 1981. The events after ITU's 13 February strike (described in the judge's deci- sion and discussed to some extent below) neither form the core of the bad-faith contentions nor shed much light on the Respondents' overall bargaining design. Our analysis of the events of that crucial period leads us to conclude that the General Coun- sel has failed to prove that the Respondents bar- gained in bad faith. The General Counsel urges as an additional or alternative violation that the Respondents unilater- ally effectuated its demanded $35-per-week wage reduction without bargaining to impasse with ITU. We find no violation because the Respondents had bargained in good faith for 2 months for a wage concession and had presented $35 as its "bottom line" proposal at least 3 weeks before its implemen- tation. 7 As there had been no progress on this, the central issue dividing the parties, and as ITU had given no indication that it would agree to any wage concession, there was an impasse and the Re- spondents were justified in implementing the pro- posal it had submitted and ITU had rejected. E. I. du Pont & Co., 268 NLRB 1075 (1984). See also As- sociated Grocers, 253 NLRB 31, 56 (1980).'8 Although we find that the Respondents' bargain- ing tactics were otherwise lawful, we adopt the judge's finding that the Respondents violated Sec- tion 8(a)(5) and (1) by refusing to negotiate with ITU's bargaining committee with an official of NMDU present. The Respondents did not establish any justification for disbelieving ITU's representa- tion that the NMDU official was there merely as a temporary addition to ITU's bargaining committee. Nor did they otherwise meet the burden of a party who objects to the representatives selected by the other party. The Respondents simply refused to meet with the ITU bargaining committee as then constituted. The Board and the courts have long held that this is not permissible. General Electric ITU for attempting to organize the editorial employees. As discussed at fn. 12, supra, we do not accept the finding that Singleton said that. The judge noted that the layoff of editorial employees underscored the state- ment, but we have found that the layoff was a lawful act. 1" Three months before implementation Singleton had informed Local 103's president in an informal prenegotiating meeting that the Respond- ents needed a wage concession equivalent to $35 per week per employee. 18 The judge had determined that, consistent with his view that there was overall bad-faith bargaining, he should not consider the unilateral change allegation separately. Because the 6 February 1981 notice to em- ployees essentially implemented the unilateral change and was incidental to it, we cannot agree with the our dissenting colleague that its posting constituted an independent 8(a)(l) violation. To the extent that the notice required employees to signify acceptance of the lower wage rates it was a necessary precaution against claims for the preexisting rates. 206 ALLBRITTON COMMUNICATIONS Co., 173 NLRB 253 (1968), enfd. in relevant part 412 F.2d 512 (2d Cir. 1969); Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 976-977 (4th Cir. 1981). B. Status of Strikers At a meeting of composing room employees on 13 February 1981 ITU's representatives described the Respondents' bargaining conduct and held a strike vote. A strike ensued. The judge found that the employees were protesting the Respondents' bad-faith bargaining and therefore found them to be unfair labor practice strikers. As we have found that the Respondents' bargaining conduct was lawful up to that point, we reverse that finding. Moreover, as there is no evidence that the Re- spondents' refusal to meet in the presence of NMDU officials or any other unlawful conduct prolonged the strike, we find that the striking em- ployees remained economic strikers until they un- conditionally applied to return to work on 25 June 1981. We agree with the judge that their offer was unconditional, that the Respondents had no valid basis for their asserted doubt that the offer was un- conditional, and that the Respondents' refusal to treat the offer as unconditional and to accord the strikers the rights to which their offer entitled them violated Section 8(a)(3) and (l).'1 Therefore on 25 June 1981 they ceased to be economic strikers and became discriminatees whose rights are governed by Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). C. Other 8(a)(1) and (3) Allegations The judge dismissed the General Counsel's alle- gation that the Respondents unlawfully coerced composing room employees by "displaying" guards hired to replace locked-out or striking employees. It is alleged that this conduct demonstrated to the composing room employees the futility of bargain- ing. We do not adopt the judge's theory that this conduct was lawful because the Respondents law- fully replaced the mailroom employees with these guards. See our finding to the contrary, above. However, assuming the unlawfulness of the lockout there is simply insufficient evidence that the pres- ence of potential replacements had the requisite tendency to chill the protected activity of the com- posing room employees. We therefore dismiss this allegation. 19 ITU offered on behalf of the strikers to return to work under any conditions prescribed by the Respondents. Having done so, they did not also have to waive the right to collective bargaining over the wage pro- visions of a new contract which, the record shows, was the interpretation the Respondents sought to put on "unconditional offer." We adopt the judge's finding that Singleton vio- lated Section 8(a)(l) by threatening to break off ne- gotiations with ITU if the composing room em- ployees honored the NMDU's picket line. Never- theless, for the reasons stated in connection with the bad-faith bargaining allegation, we cannot adopt his finding that Singleton's bargaining-meet- ing remark that, unless ITU acceded to his bargain- ing demands, the composing room employees "don't work here anymore" was unlawful. The judge found that the Respondents unlawful- ly resisted arbitration of a contract dispute over pay for unused vacation and personal days. He concluded that the Respondents' claim, in asserting that the matter was one to be resolved through bargaining rather than arbitration, was discrimina- tory because the Respondents were simultaneously failing to bargain in good faith. He also concluded that delay of the grievance-arbitration proceeding was in derogation of the Respondents' duty to bar- gain. We find the judge's 8(a)(3) theory inapposite because we disagree with his underlying finding that the Respondents were bargaining in bad faith. But regardless of this we find nothing improper about the Respondents' assertion of their legal posi- tion regarding their contractual obligation and the arbitrability of the dispute. The Respondents ulti- mately did go to arbitration. Granted that the issue of arbitration is ordinarily to be raised before the arbitrator, we have not been shown that the Re- spondents' initial resistance was groundless. 2 0 We therefore do not find that their motive was unlaw- ful. Were this a case involving prearbitration defer- ence to the grievance-arbitration procedure we would not hesitate to defer. Roy Robinson Chevro- let, 228 NLRB 828 (1977). See also United Technol- ogies Corp., 268 NLRB 557 (1984). Of course if the Respondents were continuing to assert that the claims were not arbitrable we would be faced with the issue of whether such conduct constituted a re- pudiation of the bargaining obligation. Cf. Commu- nity Convalescent Hospital, 206 NLRB 962 (1973). But as the matter stands, the conduct complained of reduces to a skirmish over contractual rights and the proper forum for their resolution. These ques- tions presumably have been resolved by the arbitra- tor and his award or other disposition has not been challenged before us as wanting under Spielberg2' 20 Although the contract had expired before the claimed benefits ac- crued, the Respondents did not assert expiration as a defense to the claim. The Respondents did assert that the claim for personal days was prema- ture under the contract terms, thus reaffirming their intention to adhere to the contract. 21 Spielberg Mfg. Co., 112 NLRB 1080 (1955). See Olin Corp., 268 NLRB 573 (1984). 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standards. There remains no substantial issue of em- ployee rights under the Act. The penultimate unfair labor practice allegation for our consideration involves a conspiracy suit filed in state court by Respondent News against 51 striking composing room employees who had filed identical workmen's compensation claims against News. 2 2 News erroneously included as defendants in its original complaint some strikers who had not filed claims against it but promptly amended its complaint to drop them as defendants. The General Counsel alleged and the judge found that News filed this suit to discourage the employees from pursuing their workmen's compensation claims and thereby interfered with their Section 7 rights. We disagree. Whether or not a Section 7 right was in- volved-a question we need not reach-News' legal action was on its face a response to a per- ceived harassment by the strikers. That response does not appear to us so unreasonable as to warrant the inference that the suit had an ulterior motiva- tion such as to discourage employees from filing le- gitimate claims or to penalize them for doing so. Power Systems, 239 NLRB 445, 449-450 (1978).23 Therefore we reverse the judge's finding and dis- miss the allegations.2 4 Finally we adopt the judge's finding that Super- visor Brocklesby's statement to composing room employee Thompson, that if Thompson circulated and filed a successful decertification petition to get rid of ITU the employees could receive benefits, violated Section 8(a)(1).2 5 CONCLUSIONS OF LAW I. Respondent News, Respondent Dispatch, and Respondent Allbritton are each an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent News, Respondent Dispatch, and Respondent Allbritton constitute a single employer within the meaning of the Act and all three are liable for the unfair labor practices found in this case. 22 The strikers' claims were all filed on the same day and each conced- ed that the claimant had received no medical treatment for the alleged disability. 23 As the lawsuit now appears to have been dismissed in its entirety, we are not restricted under Bill Johnson's Restaurant v. NLRB, 103 S.Ct. 2161 (1983), from applying appropriate remedies for its misuse. However, we find no improper motivation. 24 The General Counsel contends that the lawsuit also violated Sec. 8(aX3). For the reasons stated above, we find no merit in that contention. as Chairman Dotson would not find a violation. The conversation was initiated by Thompson, who raised the question of whether he was cov- ered by the already expired ITU contract. Brocklesby, Thompson's im- mediate supervisor, improvised a response which was not only totally un- authorized but was plainly unpremeditated. Significantly there was no followup on Brocklesby's recommendation or any indication that it was other than the casual remark that its circumstances suggest. 3. Local 103 and NMDU are each a labor orga- nization as defined in Section 2(5) of the Act. 4. The Respondents are the employer of the mailroom employees/drivers represented by NMDU. 5. All employees of the Respondents performing the following operations: driving of trucks; loading of trucks; making foot deliveries to dealers, agents, and carriers; making truck deliveries; tying and bundling papers; wrapping mail; shuffling papers; related operations; and manning of return room, if any, at the Paterson plant, excluding all other em- ployees, guards and supervisors, constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act. 6. By unilaterally changing the assignment of work and the method and procedure by which newspapers were "topped" by their mailroom employees/drivers without notice to or bargaining with the NMDU; by locking out and replacing the mailroom employees/drivers because they were members of, or gave assistance or support to, NMDU; and by failing and refusing to bargain col- lectively with NMDU as the exclusive representa- tive of their mailroom employees/drivers, the Re- spondents violated Section 8(a)(1), (3), and (5) of the Act. 7. By the warnings given by Laciura, by the threats of discharge by Laura, and by the promises made by Brocklesby to induce an employee to act to decertify Local 103, the Respondents interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, their employees as to their rights under Section 7 of the Act and thereby have violated Section 8(a)(1) of the Act. 8. The Respondents discharged employee Dale Rim because he refused to perform work normally done by Local 103 members on strike and the Re- spondents thereby interfered with, restrained, and coerced him with respect to his right under Section 7 of the Act to refuse to perform such work and the Respondents thus violated Section 8(a)(1) of the Act and, because the Respondents' action also discouraged membership in and support of Local 103, they thereby violated Section 8(a)(3) of the Act. 9. The Respondents did not, by their discharge of Charles Macaluso, violate Section 8(a)(1), (3), (4), or (5) of the Act. 10. The Respondents did not, by displaying strike replacements to its employees, violate Sec- tion 8(a)(1) of the Act. 11. From 13 February 1981 to 25 June 1981 the composing room employees employed by the Re- spondents were engaged in an economic strike. 208 ALLBRITTON COMMUNICATIONS 12. Local 103 has on and since 25 June 1981 un- conditionally requested the Respondents to rein- state to employment the striking composing room employees and, by the Respondents' failure and re- fusal since 25 June 1981 to honor those requests, they have discriminated against those employees in order to discourage them from continuing to sup- port Local 103 and thereby have violated Section 8(a)(3) and (1) of the Act. 13. The Respondents did not violate Section 8(a)(3), (5), or (1) of the Act by laying off eight editorial employees. 14. The Respondents did not violate Section 8(a)(3) and (5) of the Act by failing and refusing to honor Local 103's claims for vacation pay and wages for personal days allegedly due the compos- ing room employees or by delaying the processing of Local 103's grievances as to such claims. 15. By threatening to refuse to continue bargain- ing if the composing room employees honored the NMDU picket line, the Respondents violated Sec- tion 8(a)(l) of the Act. 16. The Respondents did not violate Section 8(a)(1) by Singleton's statement that composing room employees would not work there anymore unless Local 103 acceded to his bargaining de- mands. 17. The Respondents did not violate Section 8(a)(3) or (5) by instituting and prosecuting a civil action against its composing room employees. 18. All composing room employees, including data processing and technical service employees employed by Respondents at their Paterson, New Jersey plant, but excluding all other employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for purposes of collective bargaining under the Act. 19. By failing and refusing to bargain collectively with individuals designated by Local 103, the ex- clusive representative of the composing room em- ployees, as members of its bargaining committee, the Respondents violated Section 8(a)(5) and (1) of the Act. 20. The Respondents have not otherwise violated Section 8(a)(5) by failing or refusing to bargain col- lectively with Local 103 as the exclusive represent- ative of the Respondents' composing room employ- ees. 21. The unfair labor practices above, whereby the Respondents have been found to have violated Section 8(a)(1), (3), and (5) of the Act, affect com- merce within the meaning of Section 2(6) and (7) of the Act. AMENDED REMEDY Having found that the Respondents have en- gaged in unfair labor practices respecting the mail- room employees/drivers, we shall order them to cease and desist therefrom and to take certain af- firmative action to effectuate the policies of the Act. Specifically, we shall order that the Respondents reinstate the method and procedure by which newspapers were "topped" prior to their unilateral change on 9 February 1981, that they recognize and bargain collectively with NMDU as the exclu- sive bargaining representative of the mailroom employees/drivers, and that they offer the locked- out mailroom employees/drivers immediate and full reinstatement to the jobs they held immediately before 9 February 1981 or, if those jobs no longer exist, to substantially equivalent jobs without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, discharging if necessary any replacements hired in their places, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest as provided in the section of the judge's decision entitled "Remedy."2 6 Having found that the Respondents unlawfully rejected the striking composing room employees' unconditional offer to return to work 25 June 1981, we shall order that all striking composing room employees who were not permanently replaced before that date be reinstated to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights or privileges previously en- joyed, discharging, if necessary, any replacements hired after 25 June 1981, and that they make whole such employees for any loss of earnings resulting from their failure to reinstate them with interest thereon to be computed in accordance with the judge's "Remedy." 2 7 Such employees for whom no employment is immediately available shall be placed on a preferential hiring list for employment as positions become available and before other per- sons are hired for such work. Priority for replace- ment on such list is to be determined by seniority or some other nondiscriminatory test.2 8 a6 We recognize that for some period of time the locked-out employ- ees remained out of work while honoring a picket line of composing room employees. The Respondents' reinstatement obligation and backpay liability may be limited, however. In the compliance stages of this pro- ceeding, the parties may litigate the question of responsibility for the em- ployees' absence from work. 2' As the Respondents rejected the strikers' unconditional offer to return to work, the 5-day grace period following their offer is inapplica- ble. Whisper Soft Mills, 267 NLRB 813 (1983). 2s Ibid. 209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall also order that the notice to employees be mailed to each striker as provided in the judge's "Remedy," and likewise to the locked-out employ- ees. As the unfair labor practices we have found do not warrant a broad cease-and-desist order, we shall substitute a narrow order. In all other respects we adopt the judge's "Remedy" where applicable to the unfair labor practice findings we have adopted. ORDER The National Labor Relations Board orders that the Respondent, Allbritton Communications, Inc., and its wholly owned subsidiaries, The News Print- ing Company, Inc. and the Hudson Dispatch, Pa- terson and Union City, New Jersey, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing the assignment of work and the method and procedure by which newspa- pers are "topped" by the mailroom employ- ees/drivers without notice to or bargaining with the Newspaper and Mail Deliverers Union of New York and Vicinity (NMDU). (b) Locking out and replacing the mailroom employees/drivers because they are members of, or give assistance or support to, NMDU. (c) Warning employees against discussing, or signing authorization cards for, Newark Typo- graphical Union No. 103, International Typo- graphical Union, AFL-CIO (Local 103). (d) Threatening to discharge employees if they support Local 103. (e) Threatening to refuse to bargain with Local 103 to discourage employees from honoring a lawful picket line. (f) Promising benefits to encourage employees to solicit other employees in order to have Local 103 removed as bargaining agent of the Respondents' composing room employees. (g) Discharging employees because they support Local 103 by having refused to perform work nor- mally done by striking composing room employees. (h) Refusing to accept strikers' unconditional offer to return to work. (i) Failing and refusing to bargain collectively with NMDU as the exclusive representative of the unit of employees described as follows: All employees of the Respondents perform- ing the following operations: driving of trucks; loading of trucks; making foot deliveries to dealers, agents, and carriers; making truck de- liveries; tying and bundling papers; wrapping mail; shuffling papers; related operations; and manning of return room, if any, at the Pater- son plant; excluding all other employees, guards and supervisors as defined in the Act. (j) Failing and refusing to deal with individuals designated by Local 103 as its agents for purposes of collective bargaining for the employees in the unit of employees described as follows: All composing room employees, including data processing and technical service employ- ees employed by Respondent at its Paterson, New Jersey plant, but excluding all other em- ployees, guards and supervisors as defined in the Act. (k) In any like or related manner intefering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Reinstate the method and procedure by which newspapers were "topped" prior to its uni- lateral change on 9 February 1981. (b) Recognize and, on request, bargain collec- tively and in good faith with NMDU as the exclu- sive representative of the employees in the drivers/mailroom unit described above with re- spect to rates of pay, wages, hours, and other terms and conditions of employment. (c) Offer all locked-out mailroom employ- ees/drivers immediate and full reinstatement to the jobs they held immediately before 9 February 1981 or, if those jobs no longer exist, to substantially equivalent jobs without prejudice to their seniority or any other rights or privileges previously en- joyed, discharging if necessary any replacements hired in their places while they were locked out, and make them whole for any loss of earnings they suffered by reason of the discrimination against them, in the manner provided for in the "Amended Remedy" section, above. (d) Offer Dale Rim immediate and full reinstate- ment to his former job or, if it no longer exists, to substantially equivalent employment without preju- dice to seniority, or other rights or privileges, and make him whole for any lost earnings he suffered, in the manner provided for in the section of the judge's decision entitled "Remedy." (e) Offer to the composing room employee strik- ers immediate and full reinstatement to their former or substantially equivalent positions and make them whole in the manner provided in the "Amended Remedy" section, above. (f) Meet and bargain, on request of Local 103, with the bargaining committee selected by Local 103, including any representative of other unions whom Local 103 has invited or designated to 210 ALLBRITTON COMMUNICATIONS attend the negotiations for the purpose of partici- pating in the discussions and advising and consult- ing with Local 103. (g) Remove from their records all references to their discharge of Dale Rim as a disciplinary action and notify him in writing thereof. (h) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (i) Post at its Paterson and Union City, New Jersey facilities copies of the attached notice marked "Appendix." 29 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (j) Mail a signed copy of the notice to each of the striking composing room employees and the locked-out mailroom employees/drivers at the ad- dress for each employee given the Respondents by the Regional Director for Region 22. (k) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. MEMBER ZIMMERMAN, concurring in part and dis- senting in part. Contrary to my colleagues, I would affirm the judge's findings that the Respondent's layoff of eight editorial employees was unlawfully motivat- ed, that a Gissel bargaining order is warranted for the editorial unit, that the Respondent engaged in unlawful bad-faith bargaining with respect to the composing room unit, and that the composing room employees' strike was caused and prolonged by the Respondent's unfair labor practices. Accord- ingly, I join the majority opinion only insofar as it concerns the mailroom employees/drivers unit and finds certain violations in connection with the edi- 29 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." torial and composing room employees. I depart from my colleagues' decision, however, in almost all substantial respects concerning the editorial and composing room employees. Although my colleagues choose to analyze each of the three units separately, it is clear that the Re- spondent's actions as to each group were not isolat- ed. Rather they were parts of the Respondent's co- ordinated course of conduct designed to evade what it perceived as the increased costs of collec- tive bargaining. Those actions were taken primarily by or at the direction of one individual-Dean Sin- gleton-during a period of several months at the end of 1980 and beginning of 1981. Turning first to the editorial employees, I find no basis for reversing the judge's conclusion that eight reporters were discharged in October 1980 in order to thwart the organizing campaign then being con- ducted by ITU Local 103, which had represented the Respondent's composing room employees since 1965. From the outset of the campaign, supervisors warned editorial employees not to discuss unioniza- tion and reminded them that soliciting for authori- zation cards could cause someone to lose his job. Further, an employee was told by a supervisor that he received calls every day from his managing editor and the executive editor asking which em- ployees should be fired in order to block Local 103. My colleagues correctly have decided to adopt the judge's finding of various 8(a)(1) violations in the warnings and threats of discharge directed at editorial employees. 2 Despite these violations, however, the majority has determined that the judge erred in finding unlawful the summary dis- charge at the peak of union activity of eight report- ers, seven of whom had signed Local 103 authori- zation cards. I see no need to repeat in detail the judge's thorough and lengthy discussion of the evi- dence regarding the layoffs or his well-reasoned application of the law to that evidence. My col- leagues' cursory treatment of the layoff issue, how- ever, calls for a summary of the General Counsel's strong prima facie case of discrimination and the ample evidence supporting the rejection of the Re- spondent's economic defense. On 23 October 1980, Local 103 filed a petition for an election covering the editorial unit. On 24 October, seven editorial employees were laid off. I Thus, I join them in finding that as to the mailroom employ- ees/drivers unit the Respondent unlawfully: (1) unilaterally changed the work assignment; (2) effectively discharged the employees by locking them out; and (3) withdrew recognition from their bargaining representa- tive, Newspaper and Mail Deliverers Union of New York and Vicinity 2 I join in finding that the Respondent unlawfully discharged editorial employee Dale Rim for refusing to pertorn fitrucLk ,rrk. 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Six of those seven had signed Local 103 authoriza- tion cards,3 and three of them comprised half of the editorial department's in-plant organizing com- mittee. During the next few days three more edito- rial employees were laid off, two of whom had signed Local 103 cards. 4 According to the credited testimony, employees were told by supervisors at the time that the Respondent was laying off people it felt were "not happy" there, and one supervisor told an employee that the layoffs were "union bust- ing." No advance notice was given to any of the employees that they were to be laid off. One of them had received a merit pay raise 2 weeks before his layoff, and another was told shortly before her layoff that she was making excellent progress in her probationary period. My colleagues apparently do not find that the General Counsel made out a prima facie case that the layoffs were discriminatorily motivated. 5 They do so despite the animus evidenced by the found 8(a)(1) warnings and threats, the clear proof of the Respondent's knowledge of the employees' union activity,6 the summary nature of the layoffs and their proximity to Local 103's petition for an elec- tion, the "not happy" and "union busting" state- ments made in explanation of the layoffs by certain supervisors, the hiring of replacements for the laid- off employees only 3 months after the layoffs, 7 and the refusal to recall any of the laid-off employees until "the suit is settled." s It would take an admis- sion of guilt to make out a stronger prima facie case than that established by these circumstances and events. The Respondent contended that the October 1980 layoffs were for purely economic reasons, and it offered evidence establishing that the two news- papers in question here had suffered operating losses for a number of years. The judge acknowl- 3 The nonsigner, Goldensohn, was recalled in February 1981 and is now a city editor. 4 One of these employees-Neustadt-was recalled after he had told Managing Editor Smith that it was ironic he was laid off inasmuch as he had not been too active in the union drive. I Thus, the majority states that "[Alnd even assuming the General Counsel had proved a prima facie case .... " 6 In addition to the filing of the petition, the Respondent knew the identity of the members of the in-plant organizing committee (on which three of the laid-off employees served), issued 8(a)(l) warnings about union activity directed toward one of the laid-off employees who was not on the in-plant committee, and certain of the 8(a)(1) warnings and threats indicate that card solicitation was done openly in the presence of supervi- sors. I The Respondent hired new reporters 25 January, 3, 9, 16, and 22 February 1981. During the same time the Respondent failed to recall any of the eight alleged discriminatees laid off in late October. In fact, within about 5 months after the layoffs the Respondent had hired nine new re- porters. There is no indication that the economic conditions that existed in October had changed in the interim. s This quoted remark was made by Executive Editor Vezza to laid-off reporter Vogel when the latter called the former in January 1981 to ask for her job back. edged that the papers were in poor financial condi- tion, but he concluded that the economic defense was a pretext in view of the "unsupported, incon- sistent, shifting, contradictory and patently improb- able reasons proffered" as to both the decision to effect a layoff between 24 and 27 October and as to the basis for the selection of those laid off.9 The judge's detailed discussion substantiates the accura- cy of his characterization of the Respondent's de- fense. My colleagues make no attempt to cite evidence supporting the Respondent's economic defense, for there is none. ° Instead, they offer only the general declaration that the judge's analysis of that defense "intruded more than slightly into an area of mana- gerial authority reserved to the Respondents not intended to be subject to second-guessing by the Board." In other words, according to the majority the mere assertion of an economic defense makes it so. It is fundamental that whenever, as here, it is necessary to determine the motive for a respond- ent's actions, the allegedly legitimate reasons ad- vanced for such actions must be examined. That is just what the judge did in this case. His examina- tion did not entail-as suggested by the majority- an improper substitution of the Board's business 9 For example, during the hearing the Respondent took the position that McDonnell-a member of the in-plant organizing committee-was selected for layoff because he had signed an undated letter critical of John Buzzeta, the publisher of the Paterson News, which had been sent to Joseph Allbritton. McDonnell testified without contradiction that the letter was sent several months before the layoff and that Buzzetta had met in the summer of 1980 with the reporters who signed it to assure them that there would be no reprisals against any of them. Twenty-four reporters signed the letter, including at least two who later were promot- ed to the supervisory level. In addition, the Respondent claimed at the hearing that McDonnell's layoff also was based on his having written a story which led to a libel suit. No reference was made to any such story when he was laid off. McDonnell acknowledged that he had heard that the Respondent had settled a libel claim arising from a story he had writ- ten several months before his layoff and which had been edited and ap- proved by his supervisors prior to publication. Further, the Respondent asserted at the hearing that another possible reason for McDonnell's se- lection for layoff was that he was looking for employment elsewhere. The Respondent, however, offered no support for this assertion. As to Fischer-another member of the in-plant organizing committee-the Re- spondent contended that he was selected for layoff because he had em- barrassed the paper by his inept coverage of a traffic-related story during the summer of 1980. Fischer, however, was one of several reporters sub- sequently assigned to cover the Democratic national convention, and the Respondent conceded that it wanted its most qualified reporters to cover that event. McDonnell also was selected to cover the convention, and he received a merit pay raise 2 weeks before his layoff. 'o The majority's statement that "[T]he judge did not purport to deny that a layoff was economically justified" is simply incorrect. On the con- trary, the judge expressly found that the operating losses being suffered by the Respondent at the time of the layoffs were no different from those it had suffered for many years. Thus, he determined that the only new factor in the Respondent's operations which could have caused the un- precedented layoff of editorial employees was Local 103's organizing effort. He therefore concluded that the Respondent's economic justifica- tion was pretextual. Assuming, as the judge stated, that the economic facts supported the Respondent's demand for give-backs in the composing room negotiations, the judge found no such facts supporting the layoffs in the editorial unit. 212 ALLBRITTON COMMUNICATIONS judgment for that of the Respondent. Instead, the judge merely engaged in an independent evaluation of all the facts and circumstances surrounding the layoffs in order to ascertain the actual reasons for them. One aspect of the judge's evaluation which my colleagues single out for criticism is his refusal to accept Singleton's claim that the layoffs were man- dated by the rejection of the editorial department's budget. The majority charges that the judge placed "far too much emphasis" on details of the budget approval process, which my colleagues call an "ar- tificial issue." But my colleagues' assertion ignores that the Respondent itself made the alleged rejec- tion of the budget a central element of its economic defense. Given the Respondent's contention that the rejection of the budget triggered the layoffs, the judge properly considered whether the evi- dence demonstrated that that contention was true. He placed no more emphasis on the details of the budget approval process than was warranted by the Respondent's argument that the budget re- quired the layoffs. The credited testimony as to this matter shows the following: In June or July 1980, Singleton instructed Richard Vezza, the two news- papers' executive editor, to prepare the editorial departments' budget for the fiscal year beginning I October 1980. Vezza asked Singleton if he could hire employees and was told that he could not but that he could provide for a very modest wage in- crease for the editorial employees. Vezza asked if he could, by cutting costs elsewhere, provide for more substantial wage increases. Singleton replied that that sounded fine and that he should work it out and submit the budget. In late August or early September 1980, Singleton accepted the budget Vezza prepared and did not ask him to revise it. Under this budget, Vezza hired five reporters as re- placements in September and early October and granted wage increases." On 24 October, Single- ton told Vezza that the editorial staffs of the two newspapers had to be cut that evening. Vezza never received a revised budget, but worked from the one he had given Singleton 2 months earlier. Fred Antoniotti, the vice president in charge of finance for the newspapers, testified that during the normal review of the budget prior to the beginning of the fiscal year I October Vezza's payroll for the editorial departments was "shaved down a little." The budget Vezza prepared then was accepted, and Antoniotti incorporated it into the final draft. " Including, as mentioned earlier, a merit raise to reporter McDonnell 2 weeks before he was laid off. As the judge noted, it is difficult to accept the Respondent's economic defense to the layoffs in the face of the Respondent's hiring five new reporters and giving other reporters wage increases. He stated that no changes were made in the budget after that. The judge found that the evidence controverted Singleton's testimony-relied on by the majority- that the editorial department budget was rejected 24 October. In addition, the Respondent submitted no independent evidence or documentary material to establish that it was essential to its economic sur- vival that 10 employees be laid off that very day.' 2 Further, the Respondent presented no evidence that the selection of reporters for layoff was based on seniority, job performance, or any other objec- tive criteria. In these circumstances, the Respond- ent's asserted economic defense cannot withstand scrutiny in the face of the overwhelming evidence that the layoffs were discriminatorily motivated. Just as I agree with the judge's findings concern- ing the unlawful warnings, threats, and layoffs in the editorial unit, I agree with his recommendation that a Gissel bargaining order is warranted to remedy these unfair labor practices.' 3 In this regard, the judge stated: I have found that eight editorial employees were permanently laid off at the height of Local 103's campaign and that they were put out of Respondent's premises immediately on Respondent's orders. When one sought to return after learning that Respondent was hiring new employees in its editorial unit, she was told that she would not be hired as long as this case is open. Another employee was told that Respondent would use the judicial system itself to frustrate Local 103's effort to represent the editorial employees. Another was told that Respondent would punish Local 103 for attempting to organize the editorial em- ployees. When the employeees in the sports section of Respondent Dispatch crossed the Local 103 composing room picket line, virtual- ly all were given unexpected raises. In view of the foregoing and the other unfair labor prac- tices found above, I find that the possibility of erasing the effects of that conduct and of hold- ing a fair election by the use of traditional remedies is slight and that the expression of the wishes of the majority of the unit employ- ees, as evidenced by the authorization cards they signed, would be, on balance, better pro- tected by a bargaining order. That finding is "1 The judge rejected the Respondent's contention that it took into ac- count "industry guidelines" in deciding to reduce its editorial staff by 10 reporters. The Respondent offered nothing more than vague correlations between staff size and circulation. is On 24 October 1980-the day the layoffs began-a majority of the editorial unit employees had designated Local 103 as its bargaining repre- sentative. 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD buttressed separately by the unlawful conduct Respondent evidenced towards employees in the composing room unit . . .; the "fallout" from those other unfair labor practices had to have reached into the editorial unit, especially as the same labor organization was involved. I also dissent from my colleagues' reversal of the judge's finding that the Respondent violated Sec- tion 8(a)(5) by refusing to bargain in good faith with Local 103 over a new contract covering the composing room employees. 14 The judge found that the Respondent negotiated with Local 103 with a fixed intent to force the Union to give back $35 in weekly wages per employee, and that it never seriously considered any alternative. My col- leagues place undue weight on the mechanics of bargaining, and fail to consider the totality of the circumstances surrounding the negotiations. Those circumstances clearly show that the Respondent never intended to engage in the give-and-take of collective bargaining, but rather was predisposed to a course of conduct designed to preclude the reaching of an agreement and, in fact, threatened to fire all the composing room employees if they and their Union did not agree to the Respondent's demands. As discussed above, in October 1980 Local 103 notified the Respondent that it had organized the editorial employees and that it was requesting bar- gaining on the basis of a card majority. At the same time, the Respondent and Local 103 were preparing to negotiate a new contract for the com- posing room unit, which the Union had represented for a number of years. The parties faced a 25 Janu- ary 1981 contract expiration date. In late Octo- ber-prior to the start of negotiations-Singleton told the director of operations at the Paterson News that Singleton would "punish" Local 103 for trying to organize the editorial employees and would not give the composing room employees a raise. ' 5 1' I join the majority in affirming the judge's findings that the Re- spondent violated Sec. 8(a)(5) and (1) by refusing to bargain with Local 103 with an NMDU official present, violated Sec. 8(aX)(1) by threatening to break off negotiations with Local 103 if the composing room employ- ees honored the NMDU's picket line, violated Sec. 8(aX3) and (1) by re- jecting Local 103's unconditional offer to return to work 25 June 1981, and violated Sec. 8(a)(1) by promising benefits to induce employees to seek Local 103's decertification. '" The judge's finding that Singleton made these statements was based on an employee's testimony concerning what he had been told by the di- rector of operations. The employee's credited testimony constitutes prima facie proof that Singleton made the statements, either because it is a non- hearsay admission made by the director of operations as the Respondent's agent (Fed.R.Evid. 801(dX2) or it is hearsay that is admissible because of its reliability. See Roofers Local 135 (Advanced Coatings), 266 NLRB 321 (1983). As set forth in more detail by the judge, from the first negotiating meeting on, the Respondent in- sisted that it had to save $35 weekly per employee in wages in order to continue operating the news- papers and it did so in a manner which left open no room for compromise. For example, at the second bargaining session, the Respondent's chief negotia- tor stated that the Respondent would stick to the wage give-back proposal "no matter what." At this meeting, the Respondent rejected the Union's sug- gestion that the parties discuss vacations and other fringe benefit matters as a possible way to cut costs in the composing room. At the fourth bargaining session, Singleton declared that his "bottom line" demand was the $35 wage give-back, and he set a deadline of 10 February for the Union's acceptance of this demand. On 29 January, at the next meet- ing, Singleton told Local 103's president that he better tell his people that Singleton wanted that $35 back "no ifs, ands or buts," and that if he did not get the $35 back, "the Local 103 people do not work for" the Respondent any more. Singleton then said, "I don't give a damn about people any- more. I only care about my paper. Any printer, driver, or pressman who gets in my way, I'll roll right over him." At the next bargaining meeting 6 February, the Respondent offered its "final propos- al," specifically the $35 wage give-back. When Local 103's president stated that the Union could not accept the pay cut, Singleton handed him a piece of paper containing the terms under which the Respondent would employ the composing room employees as of 10 February. Later that day, the Respondent posted a notice in the composing room which stated that effective 10 February there would be a $35 decrease in the weekly wage rate of the employees and that the expired contract would in all other respects continue in effect until a new contract could be agreed upon. The notice further required that the employees give written acceptance of these conditions by 10 February or be replaced. So much for what my colleagues eu- phemistically call "straightforward bargaining." In finding no bad-faith bargaining, the majority characterizes the statements by the Respondent's negotiators as "nonsubstantive remarks" and "blus- ter and banter." It simply is disingenuous to refer to the Respondent's repeated demands for a sub- stantial wage reduction as being "nonsubstantive" or to label as "bluster and banter" Singleton's threat that unless he got the $35-a-week wage con- cession the union-represented composing room em- ployees would no longer work for the Respondent. Similarly, the Respondent's announcements early in the negotiations that it would stick to the wage cut demand "no matter what," that it would get the 214 ALLBRITTON COMMUNICATIONS $35 back without any "ifs, ands or buts," and that the wage cut was its "bottom-line" demand, all evi- dence much more than "hard bargaining." On the contrary, the Respondent's conduct at the bargain- ing table evidences a rejection of the concept of good-faith collective bargaining, and instead shows a "take it or leave it" attitude calculated to produce no agreement. An employer may quite properly declare during negotiations that a $35- wage reduction is economically necessary; but it is quite another thing for an employer-such as the Respondent-to state that employees will be fired and replaced if they do not make such a conces- sion. Here, the Respondent's announcement that employees who did not accept its posted 10 Febru- ary conditions would be replaced is totally at odds with good-faith collective bargaining.1 6 Indeed, that posting constituted direct dealing with the em- ployees in derogation of their exclusive collective- bargaining representative. In addition to the statements during bargaining, the Respondent's away-from-the-table conduct demonstrates an intent not to reach an agreement with Local 103. Thus, in January 1981, one of the Respondent's managers told a composing room em- ployee that the Company intended to post new working conditions for the composing room em- ployees and that "if the Union doesn't go along with these working conditions, there is no amount of money Allbritton wouldn't spend to see to it that you never have a union in here again." Fur- ther, the fact that during the negotiations the Re- spondent prepared 150 copies of a training manual to be used by new employees in the composing room strongly suggests that the Respondent never intended to reach an agreement covering its then current complement of composing room employ- ees-an inference that is given additional credence by Singleton's threats to discharge employees who did not accept the decrease in pay. And, as my col- leagues have found, Singleton unlawfully stated on 9 February that he would break off negotiations with Local 103 and that there would be no more bargaining if the composing room employees hon- ored the picket line established by the unlawfully discharged mailroom employees/drivers. "' Contrary to my colleagues, I would find that Singleton's statement that the employees would no longer work for the Respondent constituted an independent violation of Sec. 8(a)(l). Similarly, a statement to the same effect in the 10 February notice to employees also violated that sec- tion of the Act. See Admiral Merchants Motor Freight, 265 NLRB 134 (1982), and 264 NLRB 54 (1982). These statements indicate an intent to discharge. They have no relevance to lawful bargaining. In particular, and contrary to my colleagues' assertion, the notice did more than re- quire employees to signify acceptance of lower wage rates as a "precau- tion" for the Respondent. It informed them that they would be fired if they did not agree to a bargaining demand that their Union had resisted. In evaluating the Respondent's bargaining tac- tics, the judge properly considered the connection between the composing room negotiations, the un- lawful lockout of the mailroom employees, and the unlawful threats and discharges in the editorial em- ployees unit. To have done otherwise would have been to ignore the context in which that bargaining occurred. My colleagues have fundamentally mis- construed the judge's reference to, and reliance on, that context. In belittling that aspect of the judge's decision, the majority has failed to alter the fact that the judge did nothing more than correctly point out the consistency between the Respondent's conduct at and away from the bargaining table.17 The Respondent's approach to collective bargain- ing was clearly shown by its aforementioned state- ments at the bargaining table, and it also was re- vealed by its other conduct with respect to the composing room employees, mailroom employees, and editorial employees. That conduct cannot so easily be ignored. The judge also properly found that the Respond- ent's actions after the start of the Local 103 strike on 13 February-taken to protest the Respondent's bad-faith bargaining-underscored the Respond- ent's rejection of collective bargaining. 8 In this regard, the Respondent unlawfully refused to bar- gain with Local 103 because its negotiating team included NMDU's president; Singleton told Local 103 representatives that he did not care if Local 103 stayed out forever as "they are never coming back to work" and he is "not meeting with them"; the Respondent unlawfully rejected Local 103's un- conditional offer to return to work 25 June 1981; and the Respondent unlawfully promised benefits to induce composing room employees to attempt to have Local 103 decertified. Unlike my colleagues, I would also-for the rea- sons set forth by the judge-find that the Respond- ent unlawfully resisted arbitration of a contract dis- pute over the payment of unused vacation and per- sonal days and acted unlawfully in bringing a con- spiracy suit in state court against every striking composing room employee for pursuing workers' compensation claims. As to the former issue, the General Counsel al- leged that the Respondent unlawfully refused to agree to arbitrate Local 103 grievances involving t1 Contrary to my colleagues' assertion, it required no clairvoyance on the Respondent's part to recognize that the composing room employees probably would honor a picket line established by the unlawfully locked- out mailroom employees, and thus present the Respondent with a con- venient excuse to cut off bargaining and replace the composing room em- ployees. In fact, that is precisely what happened. "B As mentioned previously, I would affirm the judge's finding that this strike was an unfair labor practice strike from its inception because it was caused and prolonged by the Respondent's bad-faith bargaining. 215 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claims for striking employees' accrued vacation and personal leave pay. The Respondent contended that these claims were matters for contract negotia- tions, not for the grievance-arbitration procedure of the expired contract. The judge concluded that the Respondent could not argue that the matter should be resolved through bargaining, when at the same time it was engaged in bad-faith bargaining with Local 103. I agree. This is another instance in which the Respondent penalized its employees for supporting Local 103, and the unlawful nature of that conduct is not erased by the Respondent's ulti- mate arbitration of the claims. With regard to the second issue, the Respond- ent's state court action alleged that the workers' compensation claims were filed to harass it. The Board has long held that the filing of workers' compensation petitions is an activity protected by Section 7. The judge correctly found that, in the circumstances here, the Respondent's lawsuit had the potential for chilling the exercise of protected rights, and that the Respondent's unlawful motiva- tion was demonstrated by the fact that it filed suit against all striking employees, and not merely those who had filed claims. In sum, I would affirm the well-reasoned find- ings and conclusions of the judge concerning the issues arising in the editorial and composing room units. In reversing those findings and conclusions, the majority has taken positions that conflict with the great weight of the evidence and have in large part excused the Respondent's egregious attack on the concept of collective bargaining and on indi- vidual employee rights. I therefore dissent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT unilaterally change the assign- ments of work and the method and procedure by which newspapers are "topped" by the mailroom employees/drivers without notice to or bargaining with Newspaper and Mail Deliverers Union of New York and Vicinity (NMDU). WE WILL NOT lock out and replace the mail- room employees/drivers because they are members of, or give assistance or support to, NMDU. WE WILL NOT warn our employees against dis- cussing, or signing authorization cards for, Newark Typographical Union No. 103, International Typo- graphical Union, AFL-CIO (Local 103). WE WILL NOT threaten to discharge our employ- ees if they support Local 103. WE WILL NOT threaten to refuse to bargain with Local 103 to discourage our employees from hon- oring a lawful picket line. WE WILL NOT promise benefits to encourage our employees to solicit other employees in order to have Local 103 removed as bargaining agent of our composing room employees. WE WILL NOT discharge employees because they support Local 103 by having refused to perform work normally done by striking composing room employees. WE WILL NOT refuse to accept strikers' uncondi- tional offer to return to work. WE WILL NOT fail and refuse to bargain collec- tively with NMDU as the exclusive representative of the unit of employees described as follows: All employees of the Employer performing the following operations: driving of trucks; loading of trucks; making foot deliveries to dealers, agents, and carriers; making truck de- liveries; tying and bundling papers; wrapping mail; shuffling papers; related operations; and manning of return room, if any, at the Pater- son plant; excluding all other employees, guards and supervisors as defined in the Act. WE WILL NOT fail or refuse to deal with individ- uals designated by Local 103 as its agents for pur- poses of collective bargaining for the employees in the composing room. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL reinstate the method and procedure by which newspapers were "topped" prior to our uni- lateral change on 9 February 1981. WE WILL recognize and, on request, bargain col- lectively and in good faith with NMDU as the ex- clusive representative of the employees in the drivers/mailroom unit described above with re- spect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL offer all locked-out mailroom em- ployees/drivers immediate and full reinstatement to the jobs they held immediately before 9 February 1981 or, if those jobs no longer exist, to substantial- ly equivalent jobs without prejudice to their senior- ity or any other rights or privileges previously en- joyed, discharging if necessary any replacements hired while they were locked out, and WE WILL make them whole for any loss of earnings they suf- 216 ALLBRITTON COMMUNICATIONS fered by reason of our discrimination against them, with interest. WE WILL offer Dale Rim immediate and full re- instatement to his former job or, if it no longer exists, to substantially equivalent employment with- out prejudice to seniority or other rights or privi- leges, and make him whole for any lost earnings he suffered, with interest. WE WILL offer to the composing room employee strikers immediate and full reinstatement to their former or substantially equivalent positions and make them whole for any lost earnings they suf- fered by reason of our discrimination against them, with interest. WE WILL meet and bargain, on Local 103's re- quest, with the bargaining committee selected by Local 103, including any representatives of other unions whom Local 103 has invited or designated to attend the negotiations for the purpose of par- ticipating in the discussions and advising and con- sulting with Local 103. WE WILL notify Dale Rim that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. ALLBRITrON COMMUNICATIONS, INC., AND ITS WHOLLY OWNED SUBSIDIAR- IES, THE NEWS PRINTING COMPANY, INC. AND THE HUDSON DISPATCH DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. I heard this case on 33 days between February I and June 6, 1982. The issues relate to the operations of two daily newspapers, the News published in Paterson, New Jersey, by the News Printing Company, Inc. (Respond- ent News) and the Dispatch, published in Union City, New Jersey, by the Hudson Dispatch (Respondent Dis- patch). Respondent News and Respondent Dispatch are wholly owned subsidiaries of Allbritton Communica- tions, Inc. (Respondent Allbritton). The complaint, as amended, alleges that Respondent News, Respondent Dispatch, and Respondent Allbritton are a single em- ployer and refers to all three jointly as Respondent; that allegation is denied in the answer. The issues in this case pertain also to three separate groups of employees-mailroom employees/drivers; edi- torial employees; and composing room employees. Some of the issues relating to the first group, the mailroom employees/drivers, are whether or not Respondent (1) is their employer jointly with T & T News Company Inc. (T & T), (2) unilaterally changed their terms of employ- ment, (3) unlawfully locked them out, (4) unlawfully re- fused to reinstate 30 striking mailroom employ- ees/drivers on their unconditional application to return to work, and (5) unlawfully withdrew recognition from their collective-bargaining representative, Newspaper and Mail Deliverers Union of New York and Vicinity (NMDU). Some of the issues affecting the second group of em- ployees, the editorial department employees, are (1) whether Respondent discharged 10 of them because they supported Newark Typographical Union No. 103, Inter- national Typographical Union, AFL-CIO (Local 103), (2) whether a majority of the editorial employees signed Local 103 cards, and (3) whether a Gissel bargaining order remedy is appropriate. Some of the issues pertaining to the last group of em- ployees, i.e., the composing room employees, are wheth- er Respondent (1) engaged in surface bargaining with Local 103 as their representative, (2) unilaterally changed their wage rates and working hours, (3) unlaw- fully failed to reinstate approximately 50 striking com- posing room employees on their allegatedly uncondition- al application to return to work, (4) unlawfully sued the striking employees in a civil action in a state court, (5) promised benefits to induce one of them to file a petition to decertify Local 103, and (6) unlawfully withheld ac- crued benefits due striking employees and refused to ar- bitrate that matter. The pleadings, as amended, also place in issue allega- tions that Respondent threatened employees with dis- charge and engaged in other coercive conduct in viola- tion of Section 8(aXl1) of the National Labor Relations Act (the Act). These and other issues will be set forth as they arise in the discussion that follows. All of the above-captioned cases were consolidated by order issued on January 18, 1982. On that date, the third amended complaint also issued. ' On the entire record, including my observation of the demeanor of the witnesses, and on consideration of the briefs filed with me by the General Counsel and by counsel for Respondent, I make the following FINDINGS I. JURISDICTION Based on the pleadings as amended, I find that Re- spondent Allbritton, Respondent News, and Respondent Dispatch are each an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Counsel for Respondent Allbritton, Respondent News, and Respondent Dispatch declined to stipulate that Local 103 and NMDU are labor organizations within the meaning of the Act. As is readily evident from the uncontroverted facts set out and detailed below in this decision, Local 103 and the NMDU each meet the definition of a labor organization as set forth in Section 2(5) of the Act and I therefore find that they are labor organizations within the meaning of the Act. The original complaint had issued on December 21, 1980, it was amended on June 24. 1981; again on December 10, 1981, and also during the hearing. 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. WHETHER RESPONDENT ALLBRITTON, RESPONDENT NEWS, AND RESPONDENT DISPATCH CONSTITUTE A SINGLE EMPLOYER As noted before, the allegation that Respondent All- britton, Respondent News, and Respondent Dispatch comprise a single employer within the meaning of the Act is in issue. The record in the instant case discloses the following relevant facts as to that issue. On October 23, 1980, Local 103 filed a petition with the Regional Office of the Board in Newark whereby Local 103 sought an election among the approximately 80 editorial department employees employed by Re- spondent News at its facility in Paterson, New Jersey. A hearing was held in that case, Case 22-RC-8359, at which Local 103 had contended that Respondent News and Respondent Dispatch constitute a single employer. Extensive testimony on that contention was taken at that hearing. The Regional Director issued a Decision and Direction of Election in which he found that Respondent News and Respondent Dispatch constituted a single em- ployer under the Act. A request for review was filed with the Board. That request was denied insofar as it pertained to the finding of single employer. The only new testimony that was offered in the hear- ing before me, respecting the interrelationship of Re- spondent News and Respondent Dispatch, was the testi- mony offered by the General Counsel through the indi- vidual in charge of the sports copy desk at Respondent Dispatch. The testimony he offered, in my view, was a restatement of testimony already received and considered in the earlier representation proceeding. No issue had been raised at the earlier representation proceeding respecting whether or not Respondent All- britton was a single employer along with Respondent News and Respondent Dispatch. Nevertheless, extensive testimony which bears on that matter had been taken in the course of that representation case hearing. The prin- cipal witnesses in the hearing before me had testified ex- haustively on substantially the same points during the representation case hearing. Those individuals are Dean Singleton, executive vice president of Respondent All- britton who is also president of its newspaper division and, in addition, president of Respondent News and president of Respondent Dispatch; John Buzzetta, vice president of the newspaper division of Respondent All- britton and also publisher of Respondent News; and Richard Vezza, executive editor of both Respondent News and Respondent Dispatch during 1980 and 1981. There have been some minor changes in the intercor- porate structure since the close of the representation case hearing. Thus, Singleton testified before me that, since the close of the representation case hearing, Respondent Allbritton has purchased the outstanding preferred stock of Respondent News and that Respondent Allbritton now owns all of the corporate stock of Respondent News. Singleton also testified before me that, in mid- 1980 at a time when he was not an officer of Respondent News and when he was an official of Respondent All- britton, he interrupted a business trip to return to the Pa- terson facility of Respondent News to work with the then president of Respondent News to resolve a work stoppage by employees represented by the NMDU. That matter was completed within a few days. The then presi- dent of Respondent News resigned and Singleton there- upon assumed his office. The record in the instant case shows also that Singleton actively participated in collec- tive bargaining with Local 103 for a renewal contract of the composing room employees located at the Paterson facility. In addition, there is testimony in the representa- tion case proceeding that Singleton, as executive vice president of Respondent Allbritton, approved departmen- tal budgets prepared by the respective departmental su- pervisors of Respondent News and Respondent Dis- patch. At the hearing before me, Singleton testified that he approved those budgets also in his capacity as presi- dent of Respondent News and Respondent Dispatch re- spectively. In any event, he testified that those budgets were forwarded to the Washington office of Respondent Allbritton. Further, income tax returns and related schedules for Respondent News and Respondent Dis- patch were prepared by the vice president in charge of finance for Respondent News and Respondent Dispatch; he then transmitted those documents to Respondent All- britton in Washington for further processing. Based on the record in the instant case, together with that made in the earlier representation case which has been incorporated into the instant case, I find that Re- spondent Allbritton, Respondent News, and Respondent Dispatch are commonly owned, have integrated oper- ations, and share common management and that officials of Respondent Allbritton exercise centralized control of the labor relations policies governing employees of Re- spondent News and Respondent Dispatch. Accordingly, they constitute a single employer.2 111. THE MAILROOM EMPLOYEES/DRIVERS A. The Formation of T & T As noted above, the issues in this case pertain to three employee groups. The first group to be discussed is com- prised of about 30 men who worked in the mailroom of Respondent News and who also drove trucks to deliver its newspapers to retail stores and to locations where they dropped off newspaper bundles to newsboys for home delivery. These mailroom employees/drivers were paid by checks issued by T & T. The General Counsel and the NMDU contend that Respondent News and T & T were the joint employer of that group of mailroom employees/drivers. Respondent denies that it is their joint employer. The General Counsel further contends, and Respondent denies, that Respondent unlawfully locked those employees out on February 9, 1981, and en- gaged in other unlawful conduct toward them. A brief background discussion will help put the issues in focus. Respondent News had published the News for many decades before Respondent Allbritton purchased it in 1977. About 1935, Respondent News had contracted with a company apparently now defunct, Silk City Dis- tributing Company Inc., to perform the mailroom and delivery operations. Peter Trombina worked as a mail- 2 Malcolm Boring Co., 259 NLRB 597 (1981); Royal Typewriter Co., 209 NLRB 1006 (1974), enfd. 533 F.2d 1030 (8th Cir. 1976). 218 ALLBRITTON COMMUNICATIONS room employee/driver in 1965 at Respondent News' plant in Paterson; his father, Louis Trombina, was then a foreman on the Silk City payroll working also in that mailroom. Both Louis and Peter Trombina were mem- bers of the NMDU which represented the mailroom employees/drivers there. The News' circulation manager asked them if they were interested in forming their own company to replace Silk City. They were told then by the circulation manager that they would have to hire all the mailroom employees/drivers then on the Silk City payroll and that they would work exclusively for Re- spondent News. They accepted and formed T & T as a family corporation. Louis Trombina is president; Peter is vice president. In recent years Peter has overseen the day-to-day activities in the mailroom which include hiring; Louis has played a less active role. In 1965 and until 1977 the T & T office consisted of a few desks and filing cabinets in the circulation depart- ment of Respondent News. In 1977, after Respondent News was purchased by Respondent Allbritton, an office was built for T & T in the mailroom, adjacent to the cir- culation manager's office. Respondent News furnished that office and provided air-conditioning, telephone serv- ice, and other amenities to T & T without cost. In Janu- ary 1981, that all changed, as discussed further below. B. The Duties of the Mailroom Employees/Drivers The mailroom at the Paterson facility is a large room with a conveyor belt leading from it up through a wall opening into the adjacent pressroom. At the opposite end is a loading dock. About 11:15 each night until February 1981, Peter Trombina and his two foremen (who are apparently re- ferred to as "assistant foremen" in the contract between Respondent News and T & T, discussed in more detail below) reported to the mailroom. They discussed with the circulation manager of Respondent News any changes in locations where newspapers were to be dropped off and other routine matters pertinent to the daily functioning of a newspaper mailroom. About 11:45 p.m., the mailroom employee/driver reported for work. The pressrun began a few minutes later. It appears that Peter Trombina and his two foremen assigned the mail- room employees/drivers to the various tasks which were required to get the papers from the conveyor belt into the delivery trucks. One of these jobs is referred to as "flying the shute"; it called for an employee to position every 25th newspaper on the conveyor belt in such a way that other employees could easily remove 25 news- papers at a time from the conveyor belt. Still other mail- room employees/drivers tied those separate bundles of newspapers, using machines located in the mailroom. The conveyor belt, the machinery used to tie the bun- dles, and the other equipment used in the mailroom, e.g., handtrucks, are owned by Respondent News. Each of the mailroom employees/drivers took the bun- dles and placed them in wrappers furnished by Respond- ent News' circulation department; printed on those wrap- pers were the names and addresses of the retail custom- ers and stop locations. The bundles, so wrapped, were placed in trucks leased by Respondent News from truck rental companies not otherwise involved in this case. No other employees were present in the mailroom when the mailroom employees/drivers were at work there. The trucks they operated carried the newspaper's insignia; there was no insignia on those trucks which showed that T & T was involved in their operation. The mailroom employees/drivers drove those trucks over long established routes, of which there were 25 in 1980. These employees dropped the bundles of newspa- pers at retail stores and at points designated by the circu- lation manager of Respondent News for pickup by news- boys making home deliveries. At one point, because newspapers were being stolen, the bundles normally left at stops to be picked up by newsboys were instead dropped off at the homes of district managers who are employees of Respondent News in its circulation depart- ment. Those district managers then brought the bundles to the newsboys for home deliveries. The district manag- ers have driven the delivery trucks and otherwise per- formed work normally done by mailroom employees/- drivers. For example, they service honor boxes, i.e., newspaper vending machines, and they make collections from retail accounts on behalf of Respondent News. The mailroom employees/drivers had performed that work; their union, NMDU, had agreed to give it up. However, that agreement is subject to a written guarantee by Re- spondent News that collection work, honor box work, and similar functions will revert to the mailroom employees/drivers before any of them can be laid off. There is one other area pertaining to the functions of the mailroom employees/drivers which warrants discus- sion as it sets the background for the events of February 9, 1981, discussed below. That area concerned what the parties have, at various points, termed "topping" bun- dles. In recent years, major retail concerns have reduced purchases of newspaper space for advertising and, in- stead, have had advertising circulars printed by outside firms, for ultimate insertion in the newspaper. Those cir- culars have been delivered in bulk to Respondent News' department. Those circulars are also called at times "in- serts" or "supplements." Each time a shipment of circu- lars was received, Respondent News' circulation manag- er notified Peter Trombina and several members of the circulation department of the date those circulars were to be distributed. When that day came, maintenance men on the payroll of Respondent News brought the circulars into the mailroom on skids; Peter Trombina showed them where the skids were to be placed for later han- dling. When the mailroom employees/drivers later re- moved the newspapers from the conveyor belt 25 at a time as described before, they also placed 25 circulars on top of each set of newspapers. The 25 newspapers, topped by the circulars, were then tied, wrapped, and stacked for delivery. That operation is termed "top- ping."s Each time a bulk shipment of circulars was so s The parties were at odds as to the meaning of the word "stuffing" which at times can mean "topping," at other times it can refer to putting the newspapers in wrappers, and at still other times refers to the practice of inserting a circular inside a newspaper. For purposes of clarity, I will use the term "topping," not "stuffing." 21u DECISIONS OF NATIONAL LABOR RELATIONS BOARD handled, each mailroom employee/driver was paid $5 over his regular daily wage rate. T & T was reimbursed on a cost-plus basis by Respondent News. When the bun- dles as topped were dropped off a retail stores or to the newsboys, the store owners and the newsboys then in- serted the circulars into the newspapers, prior to sale or home delivery. C. The Contract Between Respondent News and T & T, Their Dealings with NMDU T & T's relationship with Respondent News is spelled out in detail in their contract, effective from September 1976 to September 1982-the relevant provisions of which are summarized as follows: 1. Respondent News agrees to pay each week a designated amount of money to T & T. That amount approximated $21,000 in late 1980. It was used to pay the wages and fringe benefits to the drivers under the NMDU contract and also to pro- vide Louis and Peter Trombina with earnings of $80,000 a year each. Apparently all of the income received by T & T is so distributed and, under the tax laws, it has no dividends to declare or profits to report. Parenthetically, it should be noted that the monies so earned by Lewis and Peter Trombina exceed substantially the amounts of the salaries listed on corporate tax returns for the officers of Respondent News, even when it is taken into ac- count that those officers' salaries are not all derived from services rendered by them to Respondent News. 2. Respondent News agrees to pay T & T, in ad- dition to the weekly designated sum, such other in- creases and costs, compensation of employees, fringe benefits and otherwise which T & T would be required to pay under its contract with the NMDU, including cost of living adjustments as set out in the contract between T & T and the NMDU. 3. T & T agrees to deliver the newspaper pub- lished by Respondent News. 4. Respondent News agrees to furnish all trucks to deliver the newspaper and pay for gasoline, oil and all other expenses. 5. T & T agrees to employ and pay wages of 13 men for the morning edition of the paper and 23 men for the evening edition. 6. All such men shall have the necessary wrap- pers prepared so that when the presses start there will be no delay in getting the bundles tied and placed on the trucks. 7. At the start of the second edition there must be a sufficient number of men left on the floor to com- plete the day's work without delay. T & T is to have a competent supervisor in the delivery room who shall be satisfactory to Respondent News and who will be on hand until the last truck returns from covering its route. 8. T & T will employ and furnish duly qualified and licensed drivers for the operation of all trucks furnished by Respondent News. T & T must report all accidents to Respondent News within 24 hours. T & T agrees that if and when Respondent News informs it that, in the opinion of Respondent News, a driver is not a qualified safe driver, T & T agrees to replace that driver with another driver accepta- ble to Respondent News. 9. T & T will wrap mail subscriptions and trans- port them to the post office no later than 5:00 p.m. daily. 10. T & T will deliver all papers to wherever Re- spondent News directs within a distance of 50 miles of the plant in Paterson. 11. In the event a driver exceeds a normal day's work because of hardship, Respondent News will pay the necessary compensation. 12. Respondent News agrees that there will be no layoffs of any drivers in T & T's employ. 13. T & T shall obtain a comprehensive insurance policy to protect Respondent News. T & T agrees to provide workmen's comprehensive insurance for its drivers and to furnish Respondent News with proof thereof. 14. T & T agrees to have a signed contract with NMDU to insure uninterrupted delivery service. T & T shall prepare and maintain in the circulation office of Respondent News a complete and proper bookkeeping system. 15. All assistant foremen of T & T must be ap- proved by Respondent News. 16. T & T is responsible to Respondent News for any shortages of missing newspaper bundles. 17. Respondent News at its own cost and expense shall furnish T & T with all necessary wrappers. 18. T & T will furnish at its own cost and ex- pense ledgers and any other items to properly keep a bookkeeping system. 19. All route schedules are to be made out by Re- spondent News and cannot be changed without its permission. 20. All deliveries for the morning edition must be completed before 6:00 a.m. and all deliveries for the afternoon edition must be completed prior to 4:00 p.m. As the agreement between Respondent News and T & T required Respondent News to reimburse T & T for any additional expenses incurred by T & T by reason of the provisions of any collective-bargaining agreement be- tween T & T and the NMDU, it was customary for Peter Trombina to keep the officials of Respondent News informed as to NMDU's negotiating demands. The chapel chairman of the mailroom employees/drivers ne- gotiated with T & T Vice President Peter Trombina as to those demands. Peter Trombina testified that he always reviewed those demands with representatives of Respondent News and relayed their views to the NMDU. He testified also that, prior to the purchase of Respondent News by Respondent Allbritton in 1977, he and officials of Respondent News considered which of the NMDU demands were "strike subjects," i.e., those about which the NMDU would strike to obtain. The former owners of Respondent News (one of whom is now the publisher of Respondent Dispatch) testified for 220 ALLBRITTON COMMUNICATIONS Respondent in substance that Respondent News never got involved in the NMDU negotiations. The General Counsel placed in evidence, to rebut that assertion, a letter dated March 29, 1976, from the president of T & T to one of the former owners listing 7 NMDU contract demands and 13 Local demands by the T & T chapel chairman. I credit Trombina's testimony as the documen- tary evidence received at the hearing corroborates his account. In practice, it appears that the NMDU and Re- spondent News routinely accepted the wage and fringe package negotiated between the NMDU and the major New York City newspapers. When T & T concluded its negotiations with the NMDU, the weekly payment to be made to T & T would be increased by a certain sum. On one occasion, Respondent News questioned that figure; T & T there- upon reduced it to an amount acceptable to Respondent News. On occasion, Respondent News had asked T & T to furnish it with a detailed breakdown of the costs con- tained in that figure. T & T's response in essence was that it was not obligated to do so under its contract with Respondent News. In that regard, it is noted that the first contract negotiated between T & T and Respondent News in 1964 provided that T & T would furnish Re- spondent News such a breakdown on request. However, Respondent News did not insist on such a provision in succeeding contracts. The NMDU steward of the mailroom employ- ees/drivers in this case testified that the only grievances that the NMDU ever pursued were those that could be resolved only by Respondent News. One of those griev- ances had to do with the fact that on one occasion pipes in the mailroom were leaking; as the owner of the build- ing, Respondent News of course was the party who could and did correct that situation. Another grievance pursued by the NMDU had to do with the condition of the delivery trucks. As noted earlier, those trucks were furnished by Respondent News and thus only Respond- ent News could effectively satisfy that grievance. As dis- cussed in greater detail below, a critical dispute devel- oped when Respondent took the initiative in pressing T & T to obtain agreement from NMDU to the proposals of Respondent News to reduce the number of delivery routes from 25 to 14 with a consequent reduction in the number of drivers from about 36 to about 18. The General Counsel offered uncontroverted evidence that, shortly after Respondent Allbritton purchased the assets of Respondent News, Dean Singleton, the execu- tive vice president of Respondent Allbritton, had occa- sion to write a departmental memorandum to the T & T drivers during which he and Respondent News' circula- tion manager expressed their appreciation for the work being done by those drivers. On another occasion, Sin- gleton had a meeting with those drivers, in the course of which he told them that they and all the other people working at the Paterson facility were part of "the same team." In 1974, Respondent News wrote T & T to demand that a driver be discharged for having operated its truck while under the influence of narcotics and T & T dis- charged that driver. D. Respondent News' Efforts in 1980 to Reduce the Number of Routes and of Mailroom Employees/Drivers Respondent News had, for some years prior to its being purchased by Respondent Allbritton in 1977, lost a great deal of money. In 1980, it continued to suffer oper- ating losses and Respondent Allbritton lent it a consider- able amount of money. On April 30, 1980, Respondent's attorney at that time wrote the NMDU to request a meeting to discuss the drastic changes it said it had to make because of its oper- ating losses. NMDU's counsel responded by letter of May 2, 1980, that it would not be appropriate for NMDU to circumvent T & T with whom it has a con- tract. About that time, rumors began to circulate that Re- spondent News, which then published a morning edition and an afternoon edition of The News, would discontin- ue the afternoon edition. The NMDU secured a "re- straining order" as provided for in its contract with T & T whereby T & T was directed not to change the status quo. Trombina informed Respondent News of the provi- sions of the restraining order. On June 9, 1980, Respond- ent News discontinued the afternoon edition. The NMDU then ordered the mailroom employees/drivers not to handle the morning edition as it considered that the procedures followed by Respondent, insofar as they affected the employees represented by the NMDU, were in violation of the restraining order the NMDU had se- cured. The president of Respondent News then asked Trombina to try to get the NMDU to accept Respondent News' plan to have but one pressrun during which the morning and afternoon editions were to be printed. Agreement was reached whereby three employees were to be hired by Trombina, placed on T & T's payroll, and assigned to the job of stacking the afternoon edition for later handling and delivery by the mailroom employees/- drivers. Previously, the mailroom employees/drivers had handled the removal of papers from the conveyor belt and performed related duties during the second pressrun. In August 1980 Respondent's official Dean Singleton told Trombina that at least 18 mailroom employ- ees/drivers would have to be laid off. Trombina met with Respondent News' circulation manager and also with a consultant engaged by Respondent to plan new route schedules. They worked out 12 proposed routes in- stead of the existing 25, and thereby hoped to reduce the number of mailroom employees/drivers from 36 to 14. Respondent News and T & T then undertook the matter of following formal procedures toward getting relief from the expenses of the NMDU contract. On October 2, 1980, Respondent entered into an agree- ment with T & T whereby it continued in effect the con- tract that it had executed with T & T on September 17, 1976. In addition, T & T agreed on October 2, 1980, that it would immediately apply for, on behalf of Respondent, the maximum possible reduction of manpower with re- spect to the mailroom employees/drivers under the NMDU contract then in force. Respondent agreed to re- imburse T & T for all contractual severance pay for any mailroom employee/driver laid off, and to be responsible 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for all legal fees incurred by T & T in furtherance of the effort to obtain the manpower reduction. Respondent further agreed to be responsible for all fees and expenses related to any arbitration proceeding necessary to ac- complish that end. It wound up paying a $25,000 legal fee to the attorney used by T & T in the arbitration pro- ceeding, discussed below. In the October 2, 1980 letter of agreement, Respondent also assured T & T that its profit would remain unchanged and that its payments to T & T will be reduced "only by the cost of the drivers laid off." T & T then met with the NMDU and conveyed to it the desire of Respondent to reduce the number of the routes from 25 to 12 and the related number of mailroom employees/drivers reduced from 36 to about 14. NMDU resisted and T & T sought arbitration. The attorney for T & T met with representatives of Respondent to discuss prospective arbitration proceedings. They reviewed the qualifications of the individuals in the group from which the arbitrator was to be selected and discussed tactics and arguments to be used at arbitration hearing. The ar- bitration proceeding was held on November 27, 1980, and on January 7, 1981, in New York City. On the second and last day of that hearing, the publisher of Re- spondent News John Buzzetta was present and he sup- plied the T & T attorney with financial records in order to enable T & T to argue that there was a sound eco- nomic basis for the number of routes to be reduced. However, Buzzetta refused to testify thereon and the ar- bitrator declined to consider the financial documents on the ground that there was no foundation for the receipt of those documents into evidence. On January 11, 1981, the arbitrator issued his award, finding that T & T could lay off only five drivers. Trombina testified that he was with Dean Singleton, executive vice president of Re- spondent Allbritton, about that time and Singleton asked him if he had heard anything further about the arbitra- tion. According to Trombina, he then telephoned his at- torney who informed him of the results of the award. Trombina testified that he then told Singleton of the award and that Singleton looked annoyed and took the phone from him. When the call ended, according to Trombina, he asked Singleton if he wanted a copy of the award and Singleton told him that he could take the copy of the award "and stick it up [his] ass or burn it." The General Counsel called three witnesses to testify respecting conversations they asserted they had with Dean Singleton about the time that award issued. James Sherlock, president of the Pressmen's local which represented pressmen employed by Respondent News and who had also been employed by it until his layoff in mid-1980, testified as follows. He talked with Singleton in mid-January 1981 about the above arbitra- tion award. Singleton told him that Singleton could not live with that award, that he would "take the drivers on," and that "they'll be out in the street hollering for about a year." James Garvey, president of the Pressmen's local at Re- spondent Dispatch, testified that Singleton, at a negotiat- ing session, asked him what would the drivers who de- liver the Dispatch do if there was any trouble in Pater- son in the mailroom. Peter Gambatese, a mailroom employee/driver at Pa- terson, testified that in mid-January 1981 he had a discus- sion with Singleton in the lobby of the building in Pater- son, during which Singleton told him that Trombina and the drivers would be out of the building in 3 weeks, that that was the way things are done in Texas, and that is the way they would be done in Paterson. Singleton did not controvert the accounts of Sherlock and Garvey. I credit those accounts. Singleton, however, testified that the discussion he had with Gambatese in the lobby had to do with an effort by Gambatese to ar- range a meeting between Singleton and the NMDU which Singleton said he rejected because Respondent had no dispute with the NMDU. I credit Gambatese's account as the remarks he attributed to Singleton were essentially restatements of the uncontroverted credited testimony of Sherlock and Garvey, and as Gambatese's account was borne out, i.e., Trombina was put out of the building by formal notice in late January, as discussed below. On January 14, 1981, Respondent wrote T & T that it would have to move its office out of Respondent News' building. In the latter part of January 1981, T & T's corporate office was relocated. Peter Trombina continued to report to the mailroom as did his two foremen and the mail- room employees/drivers. Trombina received a notice, as was customary, that in early February 1981 an advertis- ing supplement would go out with the newspaper on February 10, 1981. He had, however, no advance infor- mation that February 9, 1981, would be any different from any other evening's work. About this same time, the collective-bargaining agree- ments Respondent News had respectively with Local 103 for the composing room employees and with a Press- man's local for the pressroom employees were on the verge of expiring. Prospects were dim then that they would be renewed amicably. The Local 103 chapel chairman for the composing room employees testified without contradiction that, about the first week of February 1981, he asked one of Respondent's supervisors, Fred Temby, why Respondent was parading armed guards through the building and that Temby told him that Respondent "intends to get rid of the mailer drivers no matter what the courts say or what happens in court." One of Respondent News' re- porters testified that, shortly after the picketing began as described below, he overheard Singleton and Buzzetta joking about "how the union [was] outside" and he told them that the legal proceedings were far from over. Sin- gleton answered that Respondent would "appeal to the Supreme Court if necessary to keep the union outside." E. The Alleged Lockout on February 9, 1981 Trombina arrived at the mailroom about 11:15 p.m. on February 9, one-half hour before his crew was due to arrive and about three-fourths of an hour before the pressrun was scheduled to start. He found 25 strangers in the mailroom who were removing newspapers from the conveyor belt. The pressrun had started an hour earlier. Trombina had not been told of that. The 25 strangers 222 ALLBRITTON COMMUNICATIONS were inserting advertising circulars in the newspapers. Trombina had not received the customary advance notice that circulars would be distributed with the news- paper on February 9. Trombina saw Singleton there, to- gether with the publisher of Respondent News (John Buzzetta), its former publisher (Harry Haines), and an in- dividual later identified as Respondent's labor attorney. Trombina asked Haines what was going on and was told that Haines could not say as it was too early. NMDU of- ficials arrived about the same time the mailroom employees/drivers arrived to report for work. The NMDU officials voiced their objection to the fact that the 25 strangers were working on the conveyor belt. Re- spondent's circulation manager directed Trombina to let the strangers handle the newspaper. Trombina protested that Respondent was forcing him to violate his contract with NMDU. Buzzetta ordered the strangers to continue to handle the newspapers. About that point, a sergeant of the Paterson police sought to mediate the discussion. After caucuses and other confrontations, Buzzetta or- dered Trombina and the mailroom employees/drivers out of the mailroom. He asserted that the NMDU offi- cials had engaged in physical coercion. I find that their acts were little more than symbolic, i.e., placing their hands on the newspapers and holding onto the newspa- pers when one of the strangers sought to take those newspapers off the conveyor belt. It is unlikely, in my view, that the confrontation got out of hand, from a physical aspect, inasmuch as the Paterson police were present and had the situation well under control. The mailroom employees/drivers left the building and set up a NMDU picket line outside the building about 12:30 a.m. on February 10, 1980. At least one of the "strangers" present on the night of February 9 turned up as a guard at the premises of Re- spondent News on the following day. He then wore a uniform with a "Boyd Security" label. Respondent's offi- cial Buzzetta testified that Respondent had obtained about 12 drivers from Boyd Security 2 weeks previously, and that it had taught them the routes used by T & T. The General Counsel offered uncontroverted evidence which established that the "strangers" in the mailroom on the night of February 9 drove the delivery trucks later that night, that a week or two later a number of those "strangers" performed guard duty for Boyd Secu- rity at the Paterson facility of Respondent News, that about February 18, 1981, a new crew of mailroom employees/drivers began working in the mailroom, and that Respondent paid that crew $35,000 in cash each week and also paid their hotel expenses. Peter Trombina testified without contradiction that there were about five nights from February 9 to April 1, 1981, when circulars were delivered to the mailroom for insertion into the newspaper and that, on three of those nights, those circulars were tied on top of the newspa- pers, as had been done prior to February 9 and, on the other two nights, the circulars were inserted into the newspapers prior to handling. Trombina further testified without contradiction that in 1978 the publisher of Respondent News asked him to get NMDU's position as to whether it would object to the use by Respondent News of nonunion employees to do insert work in the mailroom. Trombina testified that the NMDU chapel chairman told him then that there was "no way" the NMDU would let others do their work. Trombina then reported that response to the then publisher of Respondent News and was told that no changes would be made as to the "topping" procedures. Evidence was adduced respecting the delivery proce- dures used by Respondent Dispatch at its facility in Union City, about 12 miles from Paterson. There, a "wholesaler," Hudson County News Company, picks up the newspaper bundles and delivers them along with other newspapers, using its own trucks which operate on routes it has set up. Respondent Dispatch has agreed to "subsidize" any wage increases Hudson News must pay as required under its NMDU contract but Respondent Dispatch does not guarantee that Hudson County News will enjoy a "profit." F. The Proceedings in the U.S. District Court for the District of New Jersey; the Alleged Refusal to Reinstate the NMDU Strikers Respondent News sought an injunction in the Superor Court of New Jersey against alleged picket line miscon- duct by the NMDU. That matter was removed to the U.S. District Court for the District of New Jersey. NMDU filed a counterclaim alleging that Respondent News, as a joint employer with T & T of the mailroom employees/drivers, had locked out those employees in violation of the provisions of the NMDU contract. Re- spondent News withdrew its complaint and moved for dismissal of the counterclaim on the grounds that it was not a joint employer of the mailroom employees/drivers so that the court had no jurisdiction to hear the contract claim. On February 13, 1981, Peter Trombina testified at length in that proceeding, conducted before Honorable H. Lee Sarokin, U.S.D.C. judge. Judge Sarokin issued a temporary restraining order that day directing Respond- ent not to prevent the mailroom employees/drivers from working in the mailroom. Judge Sarokin noted, inter alia, that the "real cause of the lockout" was Respondent's use of 25 persons as inserters. When the mailroom employees/drivers arrived at the Paterson facility shortly before midnight on February 13 in order to enter the mailroom, they found that Local 103 had set up a picket line of composing room employ- ees. The mailroom employees/drivers honored the Local 103 picket line, just as the composing room employees had honored the NMDU picket line on February 10. The basis for the Local 103 picket line is discussed else- where in their decision. The trial before Judge Sarokin was adjourned on Feb- ruary 13. On February 26, prior to its resumption, NMDU's president Schwartz attended a meeting with Dean Singleton of Respondent at which other represent- atives of NMDU were present, along with officials of the Pressmen's union. Singleton testified before me that Schwartz told him at that meeting that Respondent was not the employer of the mailroom employees/drivers. Schwartz denied making any such statement. I credit Schwartz' denial as it is most unlikely that he would 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make such a statement to Singleton when NMDU was vigorously urging to Judge Sarokin that Respondent was a joint employer of those very employees. The case before Judge Sarokin resumed on March 12, 1981. Counsel for Respondent urged then that Respond- ent should be relieved of the restraints imposed by the TRO that had issued on February 13. He argued that the circumstances existing on February 13 had been material- ly altered by the Local 103 strike and particularly by the fact that the mailroom employees/drivers were honoring the Local 103 picket line. Testimony was adduced before Judge Sarokin on March 12 and again on March 13 from Respondent's officials, including Singleton, Buzzetta, and its circulation manager Monaghan. Judge Sarokin re- cessed the trial and it resumed on May 7, 1981. On that day, he read his opinion into the record. He recited his findings of fact as to the corporate structures, the ab- sence of common ownership, the provisions of the con- tract between Respondent and T & T (he noted that it was a "cost plus contract"), the daily contacts the mail- room employees/drivers had with employees on Re- spondent's payroll in connection with the delivery oper- ations, the involvement of Respondent in the arbitration case, and other aspects of the testimony presented to him. He then reviewed the procedural history of the case before him and observed that Federal courts have, under 29 U.S.C. Section 185, jurisdiction of a violation of a col- lective-bargaining agreement, and that he would have ju- risdiction only if Respondent were held to be a joint em- ployer with T & T, the party to the NMDU contract. Judge Sarokin then set out his analysis as conclusions of law. He reviewed applicable Board decisions and court cases and determined that the essential facts paralleled those in Pulitzer Publishing Co. v. NLRB, 618 F.2d (8th Cir. 1980), and those in Russom v. Sears, Roebuck & Co., 558 F.2d 439 (8th Cir. 1977), cert. denied 443 U.S. 955 (1979). His opinion relates that he applied the criteria in the cases he reviewed and in other cases he cited, includ- ing Board decisions, and he concluded that there is no joint employer relationship between Respondent and T & T. In so concluding, he noted: The News has no ownership interest in T & T. There are no common directors or officers. Bank accounts and books are kept and were kept sepa- rately and there is no movement of money indicat- ing financial dependence or control other than the debt obligations incurred in the normal course of business arising out of the contract between the par- ties. No personnel of the News negotiates with the union, meet with union officials or are involved in labor relations. T & T hires, fires, and handles all personnel problems and grievances with a minor provision al- ready set forth in respect to the contract: recogniz- ing that the trucks used by T & T are leased by the News, nevertheless T & T pays its own general li- ability insurance, Workers Compensation Insurance and other business insurance. T & T pays the drivers on its own checks and takes out withholding and remits that to the appro- priate agency. T & T is responsible for the direction of its drivers and assignments of particular routes, although the routes are determined by the News. T & T has input into their determination. A letter from the union corporate counsel indicates that the union recognizes T & T and not the News as the party to its contract; Exhibit P-2. Regarding discussions between the News and T & T, the union counsel noted that, "Only if those discussions directly affect contractual obligations of the wholesaler"-T & T in this case-"would the union become involved, and in that event its discus- sions would be limited to the wholesaler." Based upon the foregoing findings of fact and conclusions of law the Court concludes that T & T and the News do not have a joint employer rela- tionship, and therefore, the Court lacks jurisdiction on that basis. Judge Sarokin then considered whether or not he had jurisdiction to decide the second claim advanced by NMDU against Respondent based on asserted tortious in- terference by it with the contractual relationship be- tween NMDU and T & T. Counsel for Respondent then stated, as to that point, that "the National Labor Rela- tions Act is the statutory forum of original jurisdiction on Section 7 rights" and he contended that it would thus be unjust to continue in effect the restraining order against Respondent that had previously issued. Judge Sarokin then noted that the circumstances before him at that time were substantially different from those which first prompted the issuance of the restraining order. He pointed out that, when he first got the case, the NMDU employees had been in effect locked out by Respondent but that later the NMDU elected not to cross another union's picket line. He dissolved the restraint with a warning to all that "whatever they do they do so at their own peril" and that "if there is any change in the cir- cumstances; such as. . . a desire . . . of [NMDU] mem- bers . . . to get . . . back to work," an application can then be made to him "or the Board." He observed that he would leave that decision "to the experts in the field." Judge Sarokin then addressed himself to procedural mat- ters and recessed the hearing. On May 15, 1981, during the recess period, NMDU applied to Respondent on behalf of the mailroom employees/drivers for unconditional reinstatement to their former jobs. Respondent rejected the offer on the ground that it did not employ the mailroom employ- ees/drivers. NMDU repeated that offer to Respondent later in the year and it was rejected again on the ground that Respondent was not the employer of the mailroom employees/drivers. The case that Judge Sarokin had been hearing was transferred to the Honorable Herbert J. Stern who ruled on July 7, 1981, that Judge Sarokin's decision on the joint employer issue had disposed of the Section 301 claim and that, as the matter no longer involved a Feder- al question, the remaining counterclaim, pertaining to a tort issue, was cognizable under state law. He vacated the order whereby the civil action originally filed in the Superior Court of New Jersey had been transferred to the U.S. district court, as related above. Judge Stern ob- 224 ALLBRITTON COMMUNICATIONS served on July 7 that, as the U.S. district court had no jurisdiction of the subject matter "everything is void, nothing can be done. It is all wiped away like a wet cloth going over a blackboard" and that "everything . . . done [in the Federal court] is [a] total nullity." Subsequently NMDU filed an original complaint in the United States District Court for the District of New Jersey (Civil No. 81-2423) in which it named T & T as defendant-and in which Respondent was named as third party defendant. On October 2, 1981, Judge Stern asked the NMDU's counsel in a session before him how he could have jurisdiction over Respondent in view of Judge Sarokin's determination that it was not a joint em- ployer with T & T. Counsel for NMDU responded that the definition of "employer" under the Act is very broad and he noted that the Regional Office of the Board had issued a complaint (apparently a reference to the admin- istrative complaint that later came before me) on alterna- tive theories-joint employer and principal agent. Judge Stern asked for briefs on that aspect and also as to whether he could or should hold the case in abeyance until the Board "has acted." On November 9, 1981, Judge Stern advised the parties that he would stay the proceedings before him "until fur- ther action by the N.L.R.B." G. Analysis In their respective briefs, the General Counsel and Re- spondent note that, in determining whether two or more employers "possess sufficient control over the work of employees" to be considered a joint employer, an essen- tially factual issue is presented.4 Respondent contends that the General Counsel is collateral estoppel from ar- guing that Respondent is a joint employer with T & T of the mailroom employees/drivers as Judge Sarokin found on May 7, 1981, that it was not8 and as the Section 301 counterclaim was then discussed. After that case was transferred to Judge Stern, he vacated the removal order so that the remaining tort claim, apparently cognizable under state law, could be returned to the Superior Court of New Jersey. Later, NMDU instituted a suit against T & T under Section 301 and named Respondent as third- party defendant. Judge Stern closely questioned the par- ties as to why Judge Sarokin's determination as to the joint employer question should not stand as the "law of the case" insofar as the status of Respondent as third- party defendant was concerned. There was extensive dis- cussion on that point. Judge Stern deferred his ruling in- definitely and observed that, as Judge Sarokin deter- mined that he had no jurisdiction under Section 301, his determination in that proceeding was a "nullity." In the General Counsel's brief, that observation of Judge Stern is set forth, together with a note that the record made 4 Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964). a Respondent cited NLRB v. Stanwood Thriftmart, 541 F.2d 796 (9th Cir. 1976) in support of that proposition. I would be bound however, by the underlying decision of the Board in that case, reported at 216 NLRB 852 (1975). The holding there was on the merits of a purely legal issue, as to whether an unfair labor practice was committed. That is clearly a matter as to which the Board has primary jurisdiction. See Kaiser Steel Corp. v. Mullen, 102 S.Ct. 851 (1982). The question before me now, the joint employer question, is a factual issue. Heyman is inapposite. before Judge Sarokin was incomplete and, on some points, inexact. The issue raised by Respondent as to the applicability of the principle of collateral estoppel has been said to be one which pertains to "an area of conflict under Federal labor policy which has yet to be clarified."6 NMDU had contended, in its counterclaim, before Judge Sarokin, that the employees it represented were locked out by Respondent in violation of the express lan- guage of the contract NMDU had with T & T and Re- spondent News, as a joint employer. Notwithstanding that that claim, as fully explicated by the NMDU, is one that would constitute an unfair labor practice, the Board's jurisdiction does not displace that of the court to adjudicate a contract claim under Section 301.7 Yet, the power of the Federal courts to enforce the terms of pri- vate agreements "is at all times exercised subject to the restrictions and limitations of the public policy as mani- fested in . . . federal statutes."8 The Board has primary jurisdiction to determine what is or what is not an unfair labor practice.9 Very recently, the Board had occasion to consider whether a determination in a related Federal court suit precluded the Board, under the principles of res judicata or collateral estoppel, from determining the merits of a case.10 At first reading, the Board's decision in that case would appear to require me to reject Respondent's con- tention that the General Counsel is barred, under the doctrine of collateral estoppel, from urging that Re- spondent and T & T are a joint employer in view of Judge Sarokin's finding. Thus, in Penntech Papers, the Board noted that it was not precluded, by the determina- tion in a related Section 301 action, and the principles of res judicata or collateral estoppel, from finding that the three companies named as respondents in that case were a single employer. An analysis of that decision, however, discloses that the Board may well apply the doctrine of collateral estoppel in the instant case. A brief discussion of the procedural history of the Penntech Papers case is warranted to put the Board's holding in proper focus. In that case there were three named respondents-Kenne- bec Paper Mill, TP, and Penntech Papers. Kennebec Paper Mill had a contract with the Paper- workers Union. Penntech, through its subsidiary TP, bought Kennebec Paper Mill. The papermill closed down and the union there sued all three companies under Section 301 of the Act to compel them to arbitrate "cer- tain provisions" of its contract with Kennebec Paper Mill. Penntech Papers sought dismissal of that suit on the grounds that it was not a signatory to that contract. The U.S. district court found that the three companies were alter egos of each other." However, it held that, under 6 Newport News Shipbuilding & Dry Dock Co., 253 NLRB 721, 726-727 (1980). Smith v. Evening News Assn., 371 U.S. 195 (1962). 9 Hurd v. Hodge, 334 U.S. 24, 34-35 (1948), quoted in Kaiser Steel Corp. v. Mullins, supra. g Kaiser Steel Corp. v. Mullins, supra. 'o Penntech Papers, 263 NLRB 264 (1982). I" Paperworkers Union v. Penntech Papers, 439 F.Supp. 610 (D.C. Me. 1977), affd. 583 F.2d 22 (Ist Cir. 1978). 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicable principles of state law encompassed in the Federal common labor law,12 the corporate veil should not be pierced to require Penntech Papers to arbitrate. The Paperworkers Union had also filed an unfair labor practice charge against Penntech Papers, TP, and Ken- nebec Paper Mill. The complaint which issued alleged that they, as a single employer, had violated Section 8(a)(5) of the Act by having failed to bargain as to the effects of closing the papermill. Penntech contended that, under the principles of res judicata or collateral estoppel, the Board was precluded from finding that it was a single employer with Kennebec Paper Mill. I fail to see how it could seriously raise that issue in view of the finding of the U.S. district court that they were alter egos and the observation of the U.S. court of appeals that Pennetech Papers, TP, and Kennebec Paper Mill "were so intertwined as to be most indistinguishable." In any event, the Board rejected Penntech's contention on the grounds that the cause of action and the respective issues involved lacked identity. Significantly for my pur- poses, the Board also observed that the U.S. district court did not examine into the usual criteria used to de- termine whether "several nominally separate business en- terprises [constitute] a single employer," referring to the "controlling criteria ... interrelation of operations, common management, centralized control of labor rela- tions and common ownership." That same observation could not be made of Judge Sarokin's determination, in the related Section 301 suit involving NMDU, T & T, and Respondent, that Respondent was not a joint em- ployer with T & T. Judge Sarokin reviewed Board deci- sions and court cases which considered the relevant cri- teria in determining the joint employer question. His de- termination thereon went to the very jurisdiction of his court. That determination was reached after days of tes- timony, extensive arguments, and briefs. There seems to be no valid reason why preclusive effect should not be given to it.'3 The fact that I personally disagree, as dis- cussed below, with that finding is not a sufficient reason to ignore the principle of collateral estoppel. Rather, it is all the more reason for following that principle as it is aimed at avoiding contradictory results. I find it control- ling. The General Counsel has urged a separate legal theory on which it is contended that Respondent violated the Act by locking out the mailroom employees/drivers on '2 The Court discussed John Wiley d Sons v. Livingston, 376 U.S. 543 (1964), and progeny. t3 I recognize that Judge Sarokin and Judge Stern subsequently made comments suggesting that the Board may have primary jurisdiction in this area. Primary jurisdiction pertains to conflicting legal principles, not findings of fact. As noted earlier, the U.S. Supreme Court has held the joint employer issue is a factual one. Yet, the Board may want to consid- er whether the concept of primary jurisdiction would apply to a determi- nation as to what constitutes a joint employer under the Act. The factors relevant to that determination, or the emphasis given to certain of them, suggest that the concept of joint employer is different under the Act than in other areas of law. Thus, in a tort suit, Respondent may well be held liable for the negligence of a mailroom employee/driver on T & T's pay- roll when making a delivery of newspapers even though, as Judge Saro- kin found, Respondent is not the employer of these employees under Sec. 301 of the Act. While the Board is free to explore whether or not it has primary jurisdiction to decide that issue, I am bound by principles al- ready set-in this case, collateral estoppel. February 9, 1981. The General Counsel asserts that T & T was the agent of Respondent such that when NMDU dealt with T & T, it was in reality dealing through T & T with its principal, i.e., Respondent. However, the au- thority relied on by the General Counsel rests on the concept of respondeat superior whereby a principal was held liable for the wrong of the agent when done in the course of the agency. 4 No one is suggesting that T & T violated the Act in its dealings with the NMDU. The principal agent theory has no relevance to the issues in this case or is but a strained effort to resubmit for consid- eration the determination made by Judge Sarokin as to the merits of the joint employer question. 15 In the event the Board finds, upon appropriate excep- tions, that the principle of collateral estoppel should not be applied in this case, the following is submitted for its further consideration. I would find that Respondent and T & T were joint employers of the mailroom employ- ees/drivers as there was a most significant interrelation of operations between them and as Respondent's control of working conditions inevitably involved it in labor re- lations matters affecting those employees.' 8 All of the following factors and others, to my mind, compel a find- ing that Respondent and T & T were joint employers of those employees-Respondent undertook a concerted effort to lay off 18 of them and paid a $25,000 legal fee as part of that effort; it unilaterally changed long-estab- lished work rules to have an excuse to lock out those employees; the mailroom employees/drivers worked in Respondent's building, used its machinery to place the bundles in wrappers it furnished, and drove its trucks with its logo on them to carry its newspapers to loca- tions designated on Respondent's galleys on routes set by Respondent for delivery at times regulated by Respond- ent; Respondent resolved the only grievances filed by those employees; and Respondent told them they were part of the "same team." I would not place as much weight on the differences in the corporate structures and the related differences in their respective internal audit- ing procedures as those factors are not essential. 1 7 Respondent asserts, in the alternative, that even were it a joint employer it did not violate the Act by assigning the inserting work to the 25 "strangers" on February 9, 1981, or by locking out the mailroom employees/drivers that night or by having permanently replaced them "before they made an unconditional offer to return to work." These alternative arguments are premised on as- sertions which are either factually inaccurate or based only on hypothesis. They overlook the obvious, that Re- spondent intentionally set about the task of creating a i4 Mason City Dressed Beef, 231 NLRB 735 (1977). 1S Judge Stern had made that same observation on July 7, 1981. His later statement that the finding that his court lacked jurisdiction rendered the proceedings before him a "nullity" obviously did not negate the fac- tual basis on which that determination was predicated. '6 B. F Goodrich Co., 250 NLRB 1139 (1980), enfd. 657 F.2d 226 (8th Cir. 1981). Pulitzer Publishing Co., 242 NLRB 35 (1979), enf. denied 618 F.2d 1275 (8th Cir. 1980). Incidentally, the Eighth Circuit in Goodrich distinguished Pulitzer and the distinctions it drew are applicable to the facts in the instant case. See also United Dairy Farmers, 202 NLRB 23 (1973), and U.S. Pipe & Foundry Co., 247 NLRB 139 (1980). '7 US. Pipe d Foundry, supra at 141. 226 ALLBRITTON COMMUNICATIONS confrontation with the NMDU on February 9 and pre- pared itself that night by having present not only its ex- ecutives but also its labor counsel and by having spent the preceding 2 weeks paying for and training replace- ments for the mailroom employees/drivers. In that con- text and in view of the long-established "topping" proce- dures followed in the mailroom with respect to the cir- culars, I would have a great deal of trouble finding merit to Respondent's claim that no change in work assign- ments occurred that night. I would have equal difficulty in accepting its arguments that there was no lockout or that, if there was, NMDU was responsible for it or that, if Respondent had conceded that it was the employer of the mailroom employees/drivers, it would still not have reinstated any of them as it likely would have asserted then that it had lawfully hired permanent replacements. Much more to the point, it seems clear to me that, were Respondent the employer, it evidenced on and since February 9, 1981, a total repudiation of that relationship as to the mailroom employees/drivers and their bargain- ing agent NMDU. In that view, its actions established that it thereby withdrew recognition from NMDU and discharged those employees. I would attach little signifi- cance to the fact that it was prepared to comply with the temporary restraining order Judge Sarokin issued. At best, that consideration would be one to be weighed in a backpay proceeding. In sum, were it not for my finding above as to the application in this case of the principle of collateral estoppel, I would find that Respondent violat- ed Section 8(a)(1), (3), and (5) as alleged in the amended complaint, insofar as the mailroom employees/drivers are concerned. 1 IV, THE EDITORIAL EMPLOYEES A. The Relevant Pleadings The complaint in this case alleges, and Respondent's answer denies, that the editorial employees employed by Respondent News and Respondent Dispatch comprise an appropriate unit; that about October 22, 1980, a majority of those employees had selected Local 103 to represent them for purposes of collective bargaining; that in Octo- ber 1980 Respondent's agents (admitted Supervisors La- ciura and Laura) had warned and threatened these em- ployees to discourage their activities on behalf of Local 103; that Respondent had discharged and has failed to re- instate eight named editorial employees in October 1980 because of their activities on behalf of Local 103; that Respondent discharged another employee, Dale Rim, on February 21, 1981, because he refused to perform struck work; and that Respondent had discharged a 10th edito- rial department employee, Charles Macaluso, on Febru- ary 27, 1981, because of his activities on behalf of Local 103 and because he had given testimony under the Act. The complaint further alleges, and Respondent's answer denies, that, on October 22, Local 103 requested Re- spondent to recognize it as bargaining agent of these em- ployees; that Respondent's unlawful conduct precluded 9 NVLRB v. Katz, 369 U.S. 736 (1962); Sun-Maid Growers of California, 239 NLRB 346 (1978), enfd. 618 F.2d 56 (9th Cir. 1980); Syufy Enter- prises, 220 NLRB 738 (1975). the holding of a fair election; and that, since October 24, 1980, Respondent has unlawfully failed to bargain with Local 103 as the exclusive representative of the employ- ees in the editorial unit. B. Background and Local 103's Organizing Activities Local 103 had represented the composing room em- ployees of Respondent since about 1965 but had made no effort to organize the editorial department employees of Respondent until early 1980. Several editorial employees signed Local 103 cards then. During the latter part of August 1980, a significant number of editorial department employees indicated sup- port for Local 103. Nine editorial department employees signed Local 103 cards in late August 1980; 7 more signed in September and 19 in October 1980. C. Alleged Warnings and Threats In September 1980, according to the uncontroverted account of editorial employee David Stieffel, he and sev- eral other reporters were at work talking among them- selves about signing authorization cards for Local 103 when the associate editor for Respondent News and an admitted supervisor, Phil Laciura, told him not to talk so loud and to stop talking about "that kind of thing." The composing room chapel chairman for Local 103, Joseph Alessi, testified without contradiction that, some- time before the layoff on October 24, 1980 (discussed below), Laciura told him, when he was getting Local 103 authorization cards signed by editorial employees, that he should be doing that more discreetly and asked Alessi what was going to happen when someone loses his job. One of the editorial department employees, Jeff Kisse- loff, testified without contradiction that, in mid-October 1980, admitted supervisor city editor Joseph Laura dis- cussed with him a problem that Laura had with another employee. In that discussion, Laura referred to Local 103 and told Kisseloff that he wanted him to tell the other reporters that he was not against Local 103 but that Managing Editor David Smith and Executive Editor Richard Vezza were against Local 103 and were calling him on the phone every day asking what employees should be discharged in order to block Local 103. Laura told Kisseloff also that Managing Editor Smith had been very upset with the fact that Kisseloff had phone conver- sations with coworker Jack Fischer; Laura quoted Smith as having said that Kisseloff and Fischer must be talking about "the union" and that he wanted Laura to warn people like Fischer, McDonnell, Duhl, and Chang that he would fire them if he had to as he did not want anyone to get in his way. Kisseloff related that Laura told him further that Smith did not want Local 103 be- cause he felt that it would be a threat to his control. Laura did not testify at the hearing. Neither did Laciura or Smith. Executive Editor Vezza did testify. He did not refer directly to the substance of Laura's remarks, as re- counted by Kisseloff. He did testify that, after Local 103 filed a petition for an election, as discussed below, he talked in general terms about that petition during infor- mal discussions among some of the editors. In its brief, 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has urged that Kisseloffs testimony should be discredited on the ground that it is replete with asser- tions of memory lapses and with internal inconsistencies. I do not agree with that characterization of his account. When he was unable to recall a detail, he said so. He im- pressed me as forthright. I credit his account. Fischer testified without contradiction that Laciura told him on October 22, 1980, to be careful with his union activity and to relay that warning to other report- ers. D. The Layoffs in October 1980 1. The General Counsel's case-in-chief At the Local 103 meeting in late September 1980, an in-plant organizing committee for the editorial depart- ment was formed. It consisted of Richard Maddock, Ron Duhl, Jack Fischer, Patrick McDonnell, Ray Alvarez- torres, and Diane Curcio. On October 21, Local 103 wrote Respondent to advise that it was in the process of organizing the editorial department employees and warned Respondent against engaging in any conduct de- signed to interfere with the rights of those employees to select Local 103. That letter was sent by certified mail and was received by Respondent on October 28. On October 23, Local 103 filed the petition in Case 22-RC-8359 received by Respondent on October 28. On October 24, seven editorial department employees were laid off. These were Jack Fischer, Ron Duhl, Patrick McDonnell, David Stieffel, Lisa Rubin, Richard Golden- sohn, and John Ensslin. All but Goldensohn had signed Local 103 cards. On October 26, Respondent laid off another reporter, Margaret Vogel, and on the following day it laid off David Neustadt. Both of those employees had signed Local 103 cards. Vogel testified that in January 1981 she had heard that there were openings in the editorial de- partment and she telephoned Executive Editor Vezza then to ask for her job back. She testified that Vezza told her that it was against company policy to hire back any of the employees laid off in October. until "the suit is set- tled." The quoted remark obviously would be a refer- ence to the unfair labor practice charge filed concerning the alleged unlawful layoffs of the reporters in October 1980. Vezza testified that Vogel spoke either to him or to one of the editors under him and that she wanted her job back. Vezza testified that she was told that there were no job openings then. He denied discussing "the court proceedings" with her. He testified he told her that Respondent was not hiring reporters. I credit Vogel's ac- count as Respondent's payroll records show that report- ers were in fact hired and as Vezza's direct testimony in significant areas was developed by way of leading ques- tions. Neustadt testified that he was told on October 27 by Managing Editor Smith that he was laid off and that Smith expressed his regret. Neustadt testified that he then told Smith that "people are organizing a union" and that "it sure looks like that's what this was about." He stated that Smith responded that there are good unions and bad unions. At that point, according to Neustadt, he told Smith that it was ironic that he was getting laid off as he had not been too active in the union drive. Two months later, Neustadt was recalled to work by Re- spondent and, as of the hearing before me, he was on a leave of absence. Goldensohn, the only employee in Oc- tober 1980 who had not signed a Local 103 card, was re- called in February 1981 and is now a city editor. David Stieffel testified that he was told on October 26, 1980, that he was laid off; 2 hours later he was told that that was a mistake. Apparently Stieffel and another indi- vidual not named on the complaint were the other 2 of the 10 employees Respondent laid off in October 1980. All of the employees laid off had had no advance notice that they were to be laid off. One of them, McDonnell, had received a merit increase 2 weeks before his layoff. McDonnell testified that Executive Editor Vezza told him on October 24 that Respondent was "laying off people (it] didn't feel were happy here" and that its publisher John Buzzetta had a strong prefer- ence "in deciding who would be laid off." Another of the employees laid off in October 1980, David Stieffel also testified for the General Counsel that, when he was laid off, he was told that Respondent was laying off em- ployees who were not happy with it. Another laid-off employee, Lisa Rubin, testified that she had been placed on probation a month prior to her layoff but had been told, shortly before her layoff, that she was making excellent progress in her probation. The General Counsel offered testimony, which was corrobo- rated by Respondent's records, which established that 19 editorial department employees were hired after the Oc- tober layoffs and by September 30, 1981, principally as replacements for editorial department employees who had resigned. The uncontroverted testimony of Jeff Kisseloff, which I credit, established that City Editor Laura called the layoffs in October 1980 "union busting." In addition, the General Counsel proffered evidence that wage increases were given to editorial department employees before and after the layoffs in October. 2. Respondent's case in rebuttal Respondent offered the testimony of Dean Singleton, John Buzzetta, Richard Vezza, and Fred Antoniotti to support its contention that it laid off reporters in October 1980 purely for economic reasons. Singleton is president of Respondent News and Respondent Dispatch and also executive vice president of Respondent Allbritton; Buz- zetta is the publisher of Respondent News; Vezza had been executive editor for Respondent News and Re- spondent Dispatch; and Fred Antoniotti is vice president in charge of finance of Respondent News and Respond- ent Dispatch. Singleton testified as follows respecting Respondent's decision to lay off reporters in October 1980. He had dis- cussed the economic condition of Respondent News on July 12, 1980, with Joe Allbritton, chairman of Respond- ent's board of directors and afterwards they began to plan the closedown of that paper on August 1, 1980. Sin- gleton pleaded for one more try at saving it and was given that opportunity. He began in August 1980 having discussions with each department head to effect further 228 ALLBRITTON COMMUNICATIONS savings and he discussed with Buzzetta and Vezza then the layoffs of people in the newsroom. They decided to reduce the editorial staff by attrition and realized that at least 10 employees would have to go, 6 from the staff of Respondent News and 4 from that of Respondent Dis- patch. All through September 1980 they discussed that matter. On October 24, 1980, Singleton received a tele- phone call from Wilmot Lewis, a consultant for Re- spondent Allbritton and Singleton's predecessor, who told him that Local 103 was trying to organize the edi- torial department employees. On that same date, October 24, Singleton called Vezza to his office and told him that the budget for the editorial department had been disap- proved and that he had to lay off a specific number of people that night. Vezza's testimony as to the layoffs is as follows: In June or July 1980, Singleton told him to prepare the edi- torial department's budget for the fiscal year beginning on October 1, 1980. He asked Singleton if he could hire employees and was told he could not but that he could provide for a very modest wage increase for the employ- ees in his department. He was then preparing a budget for the editorial department of Respondent News and also for the editorial department of Respondent Dis- patch. He asked Singleton if he could, by cutting costs elsewhere, provide for more substantial wage increases and was told that that sounded fine and that he should work it out and submit the budget. He prepared the budget along those lines and submitted it to Singleton in late August or early September 1980. Singleton told him then that he had too many people in these departments, that he was "out of line with industry guidelines," and that he should make some effort to cut the number of employees through attrition. He was not given a time frame in which that was to be done. Instead of reducing his staff by attrition, however, Vezza hired five reporters as replacements in September and early October, and also granted wage increases. Singleton accepted the budget Vezza prepared and did not ask him to revise it. Vezza thus assumed that the budget he submitted was to be followed. On October 24, 1980, he was called to Sing- leton's office and was told then by Singleton, in Buzzet- ta's presence, that the size of the editorial staff at Re- spondent News must be about 44 and that a proportion- ate reduction was also to be made in the editorial staff of Respondent Dispatch. The layoffs were to be effected that very evening. He never had received a revised budget but worked from the one he had given Singleton 2 months previously. (The testimony of Jeff Kisseloff is that Vezza met with the editorial employees after the layoffs in October and told them that he had received a new budget and that the layoffs were based on attitudes generally.) Buzzetta testified that he discussed the October layoffs with Singleton and later told Vezza that he would have to decrease his staff by six people at Respondent News. Buzzetta further testified that he had, for several months prior to that last discussion with Vezza, been discussing with Vezza the need to reduce the size of Vezza's work force by attrition and Vezza's lack of success thereon. Antoniotti testified for Respondent as follows: As fi- nancial vice president, he assists department heads in pre- paring their departmental budgets each year. The fiscal year begins October 1 and ends September 30. He was present when Singleton, Buzzetta, and Vezza discussed the budget for the year beginning October 1, 1980. The "normal review" took place at that meeting. A question was raised then about Vezza's payroll being too high and it was "shaved down a little" at that meeting. The budget that Vezza prepared was then accepted. Anton- iotti then incorporated it in the final draft. No changes were made in the budget after that. Respecting the carrying out of the decision to lay off reporters on October 24, 1980, Vezza testified that he handled that matter for Respondent News and delegated to the managing editor of Respondent Dispatch, David Smith, the responsibility for selecting the reporters to be laid off at that paper. Vezza testified that he suggested to Smith that Lisa Rubin and David Neustadt should be laid off as they were then on probation or very close to it. Vezza testified that he and Smith later discussed the selections Smith made and his reasons for doing so. Smith did not testify before me. In the course of the General Counsel's case, Respond- ent took the position that McDonnell had been selected for layoff on October 24 because he and a large number of other reporters had signed an undated letter which had been sent to Joseph Allbritton and which was criti- cal of John Buzzetta, the publisher of Respondent News. McDonnell, however, testified without contradiction that that letter had been sent several months before the Octo- ber 24, 1980 layoff and that Buzzetta had in the summer of 1980 met with the reporters who signed it to assure them that there would be no reprisals against any of them for having signed that letter. Further, McDonnell testified that he had received a merit raise 2 weeks before he was laid off in October 1980. Twenty four re- porters signed that letter, including at least two who were later promoted to the supervisory level. Respondent further stated at the hearing that McDon- nell's selection for layoff was also based on his having written a story which led to a libel suit. Vezza did not refer in his testimony to any such story as the basis for McDonnell's layoff. Admittedly, no reference to any such story was made when McDonnell was told by Re- spondent of his layoff. McDonnell acknowledged that several months before his layoff, he wrote a story which was edited and approved by his supervisors prior to pub- lication and that he had heard that Respondent had set- tled a libel claim based on that story. Respondent also asserted at the hearing that another possible reason for McDonnell's being selected for layoff was that he was looking for employment elsewhere. However, that contention was not pressed. Vezza testified for Respondent that Fischer's selection for layoff was justified as he had "recently" (i.e., in rela- tion to the October 24 layoff) embarrassed the paper by his inept coverage of a story about a propane gas truck blocking traffic on the George Washington Bridge. That story was written, however, during the summer of 1980 and Fischer was one of several reporters later assigned to cover the Democratic national convention in New York City. Vezza acknowledged that he had wanted his 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most qualified reporters to cover that event. McDonnell was one of those reporters also. Respondent offered evidence, essentially uncontrovert- ed, that established that, for years, it has suffered operat- ing losses at Respondent News and Respondent Dis- patch. The losses at Respondent Dispatch were not nearly as large as those at Respondent News and were offset in 1980 by the sale of its building. The General Counsel adduced evidence that Respondent incurred huge expenses in early 1981 in hiring and training re- placements for mailroom employers/drivers, as discussed above; that evidence was offered, inter alia, to discount the economic defense asserted by Respondent. E. Analysis: Alleged Warnings and Threats, Alleged Discriminatory Layoffs The uncontroverted evidence establishes that, in Sep- tember 1980, Respondent through its associate editor Philip Laciura told reporter David Stieffel and other em- ployees not to talk so loud about "that kind of thing" when they had been discussing the subject of signing au- thorization cards for Local 103. That warning by La- ciura tended to discourage the reporters in exercising their rights under Section 7 of the Act, even more so as it came from a friendly supervisor. '9 For the same reason I find that Laciura's warning to Alessi in the fall of 1980 against his continuing to solicit cards for Local 103 interfered with employees' Section 7 rights, as did his warning on October 22, 1980, to Fisch- er and other reporters. The uncontroverted, credited evidence also established that Respondent, by its City Editor Laura, in his state- ment to employee Kisseloff in October 1980, threatened employees with discharge to discourage them from sup- porting Local 103. Although not alleged as a violation but relevant to the question of union animus is the uncontroverted, credited testimony, discussed below, of James Scofield that Re- spondent's pressroom supervisor Andrew Brown told him in October 1980 that Singleton would punish Local 103 for trying to organize the reporters. The amended complaint alleges that eight named em- ployees were discriminatorily laid off by Respondent in late October 1980. The legal principles applicable to de- ciding the merits, or lack thereof, of that allegation are clear. The General Counsel and Respondent have pro- pounded them in their respective briefs. I will summa- rize, without citation, those principles. It is well settled that the General Counsel must show by a preponderance of the credible evidence that those employees were laid off by Respondent to discourage support for Local 103. The determination as to whether or not they were so laid off requires the weighing of all relevant evidence and the drawing of appropriate infer- ence from the credited accounts. It is not essential that the General Counsel show an express admission by Re- spondent's principal official that it was motivated by an unlawful intent. An employer may discharge an employ- ee for a good reason, a poor reason, or none at all so long as it does not violate the Act. Relevant factors in '9 Caster Mold d Machine Co., 148 NLRB 1614 (1964). deciding the issue include admissions thereon, the extent of the union activity, an employer's knowledge or lack thereof as to that activity, the timing and manner of the alleged discriminatory conduct relevant to that activity, evidence of separate acts of union animus, the validity of the reasons given by an employer for its acts or the lack thereof as may be evidenced by shifting or unsupported reasons, or the like. The relevant testimony respecting the alleged discrimi- natory discharges on October 24, 26, and 27, 1980, dis- closes the following: All of the alleged discriminatorees were active for Local 103. All but Goldensohn had signed Local 103 cards. McDonnell, Fischer, and Duhl were known to Respondent as active supporters of Local 103. None of the alleged discriminatees had any advance notice from Respondent that they would be laid off. Respondent's of- ficials had on various occasions warned employees and threatened to discharge them for engaging in activities in support of Local 103. Singleton testified that, based on purely economic con- siderations, a decision was reached on October 24 to lay off 10 reporters and he directed that they all were to be laid off by the end of that workday. According to his ac- count, it had to be but an extraordinary coincidence that he learned that same day, from Respondent's consultant, of Local 103's interest and also a coincidence that Local 103's drive had culminated in the filing of a petition for an election. Were that so, I must infer too that two of his senior officials, Vezza and Smith, kept him in the dark as to Local 103's interest. Singleton testified that he based his decision to lay off the 10 reporters on his further assertion that the budget had been rejected. It would appear from the overall record, including the transcript of the earlier representa- tion case, that Singleton is the one who has the authority to reject the budget. No independent evidence or docu- mentary material was submitted to support his testimony that the editorial department budget was rejected that day or to establish that it was essential to the economic survival of Respondent that 10 employees be laid off that very day. Rather, the evidence in the record controverts that testimony by Singleton. Vezza and Antoniotti testi- fied that the original budget was always used. Buzzetta's account avoided a reference to that matter. I credit the accounts of McDonnell and others that they were told, when laid off, that it was because they were not happy-a not too subtle reference in the cir- cumstances to their interest in Local 103. I also note that 90 percent of the laid-off employees signed Local 103 cards; Local 103's card majority, as recounted below, was considerably smaller. Respondent's efforts to establish an economic defense were not very successful. Singleton's effort to show that he was given one last chance by Joseph Allbritton to save Respondent News was undercut by the facts. He testified he told Vezza that it was critical to reduce the work force by Allbritton. I am asked to accept also that Vezza nevertheless hired five reporters and gave out wage increases. 230 ALLBRITTON COMMUNICATIONS Respondent's further efforts to establish that McDon- nell, Fischer, and the others were selected on the basis or nondiscriminatory factors are also unconvincing. Overall, the unsupported, inconsistent, shifting, contra- dictory, and patently improbable reasons proffered as to both the decision to effect a layoff of 10 reporters and as to the basis for the selection of those laid off compel me to reject the defense offered by Respondent and to find that the pretextual nature of those asserted reasons sup- port instead the General Counsel's contention.2 0 Re- spondent urges too that weight should be given to the fact that several of the alleged discriminatees have been called back to work. I must also note that one of them was the only one who had not signed a Local 103 card and that another, Neustadt, had informed Smith that his activities for Local 103 were minimal. In any event, I view Respondent's actions in recalling those reporters as purely remedial and clearly inadequate to offset the overall evidence supporting the General Counsel's con- tentions.2 Respondent contended also that it took into account "industry guidelines" in deciding to reduce its editorial staff by 10 reporters. To my mind, that very concept conveys the pursuit of a deliberate program by top man- agement over an extended period to achieve parity. It does not suggest to me the summary execution of a major personnel cutback without advance notice to vir- tually anyone. For that matter, Vezza's testimony was not convincing as to exactly how those guidelines were met. He drew vague correlations between staff size and circulation. I was left with the impression that he had never made a precise analysis of the ratio of departmen- tal personnel to the paper's circulation figures. His later statement to Vogel that she could not come back until this case is over shows that industry guidelines were never a real factor. The credited testimony establishes that all of the em- ployees laid off in late October 1980 were active for Local 103, that Respondent was aware of that activity, that Respondent separately exhibited hostility to that ac- tivity, that Respondent acted in a summary manner at the virtual peak of that activity to lay off those employ- ees because they were "not happy," and that Respondent then proffered obviously pretextual reasons respecting both the decision to lay them off and the selection of those laid off. Based on those considerations and the to- tality of the evidence, I find that the General Counsel has shown by a preponderance of the credible evidence that those employees had been discharged in order to discourage support for Local 103.22 F. The Discharge of Dale Rim The General Counsel contends that Dale Rim was dis- charged because he refused to perform struck work. Re- spondent asserts that the work Rim refused to do was not struck work and thus urges that he was lawfully dis- charged for insubordination. 20 Traverse City Osteopathic Hospital, 260 NLRB 1061 (1982). 21 Cf. Chandler Motors, 236 NLRB 1565 fn. 4 (1978). 21 Corn Bros. Inc., 262 NLRB 320 (1982). D.M. Rotary Press, 208 NLRB 366 (1974). Dale Rim worked for Respondent Dispatch as a sports writer under Executive Sports Editor Robert O'Conner. In February 1981, as discussed in more detail below, Local 103 called a strike of the composing room employ- ees. Rim was told by O'Conner then that he would not have to do struck work. On February 16, 1981, O'Con- ner told him to typeset the results of the trotting races at Freehold, New Jersey. He declined citing the guarantee he was given against doing struck work. O'Conner told him to leave the building and he did. He returned to work the following day. Executive Editor Vezza in- formed him then that he had been discharged the previ- ous day for insubordination. Rim testified that no one from the sports department ever set the summary results of the Freehold and that that job was always done by composing room employ- ees, represented by Local 103. The job consists of typing information into a video display terminal in a manner similar to the method used by sports writers in entering the more complex racing data for other tracks, e.g., charts, predictions, post positions. Jack Alessi, chapel chairman of the composing room employees for Local 103, testified without contradiction that, in 1977 or 1978, he attended a grievance meeting with the publisher then as to the setting of the Freehold results and, when he explained Local 103's claim to the publisher, the publisher informed him that that work be- longed to Local 103's jurisdiction and that he would in- struct the editorial employees to stop setting it. Alessi testified that, since then, there has been no dispute over the work as composing room employees always did it. Executive Sports Editor O'Conner testified that in most instances the composing room employees set the Freehold results but that, on occasion, an editorial de- partment employee did. In a prehearing affidavit, he stated that the editorial employees set the Freehold re- sults on one or two occasions over the previous 4 years. Editorial employees have performed the Freehold work since the start of the Local 103 strike. O'Conner's testi- mony suggests that Rim had typeset the Freehold results once on a prior occasion. Insofar as any credibility issue thereon may exist, I would credit Rim's testimony which in essence is that he refused to perform the Freehold work on the first occasion that O'Conner assigned him to it. As the evidence discloses that the setting of the Free- hold results was work that had virtually always been done by the striking composing room employees as of February 16, 1981, and as Respondent's publisher had conceded Local 103's claim thereon, I find that O'Con- ner sought to assign Rim to struck work on that date and that Rim was discharged therefor. Respondent thereby interfered with Rim's rights under Section 7 of the Act.2 s Respondent asserts that Rim was engaged in a partial strike on February 16 and that it had the right to lay him off for the duration of the Local 103 strike. Both asser- tions assume facts which do not exist. Rim did his normal job; he was discharged, not laid off. 23 Cooper Thermometer Co.. 154 NLRB 502 (1965). 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Discharge of Charles Macaluso The General Counsel contends that Macaluso was dis- charged by Respondent because he supported Local 103 and because he testified in the hearing held in Case 22- RC-8359. Respondent asserts that he was discharged for having abused his sick leave. Macaluso worked for Respondent News as its racing editor from November 1979 until his discharge on Febru- ary 27, 1981. He signed a Local 103 authorization card in March 1980, attended Local 103 organizational meetings, was a member of its organizing committee, and testified in Local 103's behalf at the representation case hearing. The composing room employees represented by Local 103 struck in February 1981, as discussed in a separate section below. A day or so later, Macaluso called in sick and was placed on sick leave. He was treated for pleuri- sy and kept Executive Sports Editor Robert O'Conner advised of his condition. His sick leave was extended to March 1, 1981. Macaluso testified that, as he was begin- ning to get better, he informed O'Conner that his doctor told him he could go out of his house for brief periods. O'Conner's testimony is simply that Macaluso told him he could not come back until March 1, 1981. I credit O'Conner as he impressed me as one who would expect an employee to come to the office as soon as he was able and, if Macaluso had told him that he could go out in the cold of winter despite a pleurisy attack, O'Conner would likely have suggested that he spend any such time in the office. On Thursday evening, February 26, Macaluso went to a tavern near his house to talk with a few coworkers. He sipped one beer until 2:30 a.m. on Friday, February 27. As he left the tavern, he was observed by Respondent's executive editor Vezza; Vezza was driving home from a similar gathering and almost hit Macaluso with his car as Macaluso left that tavern. Macaluso was discharged the next day. He was told he made Vezza and the others look like fools as they were "busting their butts" while Macaluso was on sick leave. Macaluso testified that Vezza referred to the fact that an employee named Fistel was told not to show up at the tavern where Macaluso was on the preceding night and Macaluso disclaimed any knowledge of that matter. Ma- caluso testified that he learned after his discharge that Fistel was not invited because his coworkers believed he relayed information to Vezza. No evidence of disparate treatment was offered. There is little to show that the reason given by Respondent for discharging Macaluso was a pretext. He was on extended sick leave, reportedly for a serious chest infection, and yet was able to go out for several hours in midwinter to have a beer in a tavern. I find that the evidence is insuffi- cient to establish that Macaluso was discharged because of his activities for Local 103 or for having given testi- mony under the Act.2 4 H. Alleged Majority Status of Local 103 The General Counsel contends that a majority of the editorial employees had designated Local 103 as their 24 Alcar Industries, 260 NLRB 677 (1982). collective-bargaining representative by late October 1980 and that an appropriate remedy for the violations of the Act commuted by Respondent is that it be required to bargain collectively with Local 103 respecting that unit. Respondent's answer places in issue the allegations as to the appropriate unit, Local 103's majority status therein, and as a result the remedy sought. In the Decision and Direction of Election issued in Case 22-RC-8359 on July 7, 1981, it had been deter- mined that a unit comprised of all editorial department employees employed by Respondent News and Respond- ent Dispatch was appropriate. Respondent's request for review of that Decision and Direction of Election was denied insofar as it pertained to the matter of the appro- priateness of the unit. I have reviewed the entire tran- script of the hearing in that representation case and the exhibits received at it and have considered also the testi- mony offered at the hearing before me. No new factual issues were raised before me. Respondent's payroll records list the names of 85 indi- viduals as employees" in that unit as of October 24, 1980, the date of the discriminatorily motivated dis- charges found above. Of those 85 individuals 48 had signed Local 103 cards by then.2 6 Respondent asserts that some of those 48 signed cards should not be counted toward Local 103's majority status on the ground that they were not properly authen- ticated. In particular, it challenged the cards bearing the signatures of William Boyer and Charles Zoeller'7 which were received in evidence based on the testimony of Jeffrey Kisseloff who related that he gave those indi- viduals and others Local 103 cards which were later re- turned to him by those individuals, with the cards signed and dated. Respondent challenged other cards which were authenticated by the testimony of David Stieffel. Respondent urges me, in essence, to take a response by Stieffel out of context. Respondent further contested the validity of the signatures of employees Nicholas Romei and Rachelle Cantlupe on cards which the General Counsel's witness, Ramon Alvareztorres, testified were given by them to him. I have considered those objections and am satisfied that those cards had been properly au- thenticated. Respondent, in its brief, asserts that the card signed by Catherine Ward was not authenticated. It was, but had been incorrectly designated as General Counsel's Exhibit 3(bbb) instead of 3(ddd). I thus conclude that, on October 24, Local 103 had been designated, via signed authorization cards, by a ma- 22 The General Counsel would exclude two of them, namely, Michael Fistel and Craig Meyer, as supervisors. While their unit placement would not offset Local 103's majority status, I would exclude them from the unit as supervisors, for the sake of clarity, as they possessed and exercised the authority to responsibly direct employees under them. se The General Counsel submitted eight other signed cards. Three were dated October 30, 1980; one was dated November 4, 190;, one other was dated November 24, 1980; two others were signed by individ- uals whose names were apparently inadvertently crossed off Respond- ent's payroll roster (i.e., Richard Maddoch and John Rudolph Dicks); and another card was signed by an individual Joseph Ruds, whom the General Counsel would exclude as a supervisor. In all, 56 were placed in evidence. 27 It also challenged a card dated November 4, 1980, not I of the 48. 232 ALLBRITTON COMMUNICATIONS jority of the employees in the editorial unit to represent them for the purpose of collective bargaining with Re- spondent. I. Whether a Gissel Bargaining Order Is Appropriate The U.S. Supreme Court has held that an employer may be ordered to bargain with a minority union if it has committed such outrageous and pervasive unfair labor practices as to have eliminated the possibility of holding a fair election.28 The General Counsel has urged in his brief that Respondent committed such unfair labor prac- tices but does not state that the possibility of holding a fair election has been thereby eliminated. I doubt that the General Counsel is seeking a minority bargaining order but, to put the matter in perspective, I find that Re- spondent's unlawful acts were not such as to warrant the issuance of a bargaining order were Local 103 a minority union." In Gissel, supra, the U.S. Supreme Court further held that, where a union has been designated by a majority of the employees to represent them, a bargaining order may issue in less extraordinary cases marked by less pervasive unfair labor practices which tended to undermine the union's majority strength and to impede the election processes. Respondent asserts that the layoffs of 10 em- ployees cannot be found to be pervasive as that conduct affected but 10 percent of the employees in the unit. I do not view those layoffs or the Gissel remedy that me- chanically. I have found that eight editorial employees were permanently laid off at the height of Local 103's campaign and that they were put out of Respondent's premises immediately on Respondent's orders. When one sought to return after learning that Respondent was hiring new employees in its editorial unit, she was told that she would not be hired as long as this case is open. Another employee was told that Respondent would use the judicial system itself to frustrate Local 103's effort to represent the editorial employees. Another was told that Respondent would punish Local 103 for attempting to organize the editorial employees. When the employees in the sports section of Respondent Dispatch crossed the Local 103 composing room picket line, virtually all were given unexpected raises. °0 In view of the foregoing and the other unfair labor practices found above, I find that the possibility of erasing the effects of that conduct and of holding a fair election by the use of traditional reme- dies is slight and that the expression of the wishes of the majority of the unit employees, as evidenced by the au- thorization cards they signed, would be, on balance, better protected by a bargaining order.3 1 That finding is " NLRB v. Gael Packing Co., 395 U.S. 575 (1969). 9 Cf. Conalr Corp., 261 NLRB 1189 (1982); United Supermarkets, 261 NLRB 1291 (1982). sO Dale Rim testified all employees in its sports department got raises; O'Conner testified for Respondent that only five or six did. The payroll records in evidence indicate that there were about seven employees in that department. Si Granite City Journal, 262 NLRB 1153 (1982). The bargaining order shall be effective from October 24, 1980, when the discriminatory layoffs occurred and Local 103 represented a unit majority. See Ja-Wex Sports- wear Ltd., 260 NLRB 1229 (1982). buttressed separately by the unlawful conduct Respond- ent evidenced toward employees in the composing room unit, discussed separately below; the "fallout" from those other unfair labor practices had to have reached into the editorial unit, especially as the same labor organization was involved. Respondent's failure and refusal to honor Local 103's bargaining demand respecting the editorial unit was vio- lative of Section 8(a)(5) of the Act. 32 V. THE COMPOSING ROOM EMPLOYEES A. Background and Contentions As set out in the Decision and Direction of Election issued on July 7, 1981, in Case 22-RC-8359, Respondent News and Respondent Dispatch had, prior to 1979, sepa- rate composing rooms. Paterson International Typo- graphical Union Local No. 9004 represented the compos- ing room employees of Respondent News then; Hoboken Typographical Union Local No. 323 represented the composing employees of Respondent Dispatch. In 1979, the composing room operations of Respondent News and Respondent Dispatch were consolidated at the Respond- ent News plant in Paterson. The two locals which had separately represented the respective units of composing room employees merged with Local 103. Local 103 has since 1979 represented the combined unit of composing room employees employed at the Paterson facility. In 1977, when Respondent Allbritton purchased Re- spondent News and Respondent Dispatch, there was a total of about 125 employees in the composing rooms at Respondent News and at Respondent Dispatch. By switching from "hot type" to "cold type" and by making other changes agreed to by Local 103, the employee complement in the composing room had been reduced to approximately 50 employees by late 1980. In late October 1980 as related above, Local 103 had written Respondent that it was engaged in a campaign to organize the editorial department employees of Respond- ent, who were unrepresented. A few days later Local 103 wrote Respondent that a majority of those employ- ees had selected Local 103 as their bargaining agent and Local 103 requested Respondent to negotiate with it as their representative. About this same time, as discussed further below, Local 103 was getting ready to meet with Respondent to negotiate a new collective-bargaining agreement with Respondent, covering the composing room employees, to become effective on the expiration of the contract in January 1981. It is against this background that the General Counsel and Respondent presented evidence as to the issues per- taining to the composing room employees in this case. In broad terms, the General Counsel contends, and Re- spondent denies, that Respondent engaged in bad-faith bargaining with Local 103 since December 2, 1980, with respect to the composing room unit. The General Coun- sel urges that Respondent demonstrated its bad faith in these ways: (1) by having engaged in surface bargaining, (2) by having unilaterally changed the wages and the II Precision Graphics, 256 NLRB 381 (1981). 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of the composing room employees during the course of negotiations despite the fact that no bargaining impasse had been reached, and (3) by having refused to negotiate with Local 103's designated representatives which included the president of NMDU. Other issues for resolution include: (1) whether the strike by the composing room employees was caused or prolonged by unfair labor practices of Respondent, (2) whether Local 103's request that Respondent reinstate those striking employees was unconditional, (3) whether Respondent promised benefits to induce an employee to enlist coworkers to decertify Local 103 as the exclusive representative of the composing room unit, (4) whether Respondent unlawfully sued each of the striking employ- ees for damages in a state court civil action, (5) whether Respondent unlawfully failed to pay (or to arbitrate a claim as to) moneys allegedly due composing room em- ployees for accrued vacation benefits and personal days, and (6) whether Respondent engaged in other acts de- signed to interfere with the Section 7 rights of the com- posing room employees. B. Scofield's Testimony James Scofield testified for the General Counsel. He is president of Newark Newspaper Printing Pressmen's Union Local No. 8 which represents the press employees employed by Respondent News and Respondent Dis- patch at their respective pressrooms in Paterson and Union City, New Jersey. He testified that, in October 1980, he had been working in the pressroom at Paterson and had gone there to pick up a paycheck when he had the following discussion with Andrew Brown, the direc- tor of operations for Respondent at the Paterson facility. According to Scofield, he and Brown referred to Local 103's effort to organize editorial employees when Brown stated that Respondent's president Dean Singleton would punish Local 103 for trying to organize the reporters and that Singleton would not give the composing room em- ployees a raise. The pleadings establish that Brown is a supervisor of Respondent. Brown did not testify at the hearing before me. Singleton denied that he had ever told anyone that he would punish Local 103 for seeking to represent the editorial employees. 3 3 It is most unlikely that Brown invented the remarks quoted by Scofield. It is more probable that he was stating what he had heard Singleton say. I do not credit Singleton's testimony. I credit Scofield's account as he impressed me as candid and as it was not controverted by Brown. 3s Respondent asserts that Scofield's testimony is inadmissible as double hearsay. Rather, it discloses an admission against interest which, by definition, is not hearsay. That the admission is by way of a quote does not render it inadmissible. Rule 805 of the Federal Rules of Evi- dence provides that hearsay within hearsay is admissible if both meet ap- propriate exceptions to the hearsay rule. Perforce, an admission against interest within an admission against interest would be admissible. C. The Negotiations Between Respondent and Local 103- The Strike by Composing Room Employees- Their Offer to Return; Related Matters 1. The start of negotiations for a renewal contract As noted earlier, the contract for the composing room employees had been scheduled to expire on January 25, 1981. On October 30, 1980, John Buzzetta, publisher of Respondent News, wrote Local 103's president Thomas Callahan to inform him that the contract between Re- spondent News and Local 103 was about to expire and that Respondent News desired to begin negotiating for a new contract. Dean Singleton, Respondent's president, met with Callahan on November 13, 1980, and told Cal- lahan then that Respondent had put together an econom- ic recovery plan for the newspaper in which every de- partment was going to have to give something. Singleton told Callahan that Respondent would have to save the equivalent of $35 per man or a total of $91,000 in the composing room. David Winkworth, a labor consultant who has negoti- ated contracts on behalf of Respondent News and other newspapers for many years, telephoned Callahan in No- vember 1980 and they then scheduled the first bargaining session for a renewal contract for December 2, 1980. 2. The December 2 meeting Joseph Alessi, chapel chairman of the composing room employees of Respondent, testified for the General Counsel that at the December 2 meeting Local 103 pre- sented its demands to Respondent and that the parties then reviewed the "non-economic" terms of the contract then in effect. According to Alessi, agreement was reached to keep those "non-economic" items unchanged and, on that basis, he noted "OK" alongside each non- economic clause as it appeared on his copy of that con- tract. Winkworth, who testified for Respondent, essen- tially corroborated Alessi's testimony thereon. In the bar- gaining notes taken by Alessi as to that meeting, he noted that "the company gave tentative agreement [to the noneconomic items] with the option to discuss [them] further if necessary." John Buzzetta, publisher of Re- spondent News, testified that, at that first meeting, the parties "went through the contract and decided to leave the noneconomic issues until after we reached agreement on the [economic] issues." He also testified that the par- ties agreed to leave the noneconomic issues as the last of the matters to be negotiated. Buzzetta told the Local 103 representatives that Re- spondent News had lost $480,000 in its fiscal year which ended September 30, 1980. He informed them also of a decline in the circulation of the newspaper published by Respondent News and of its advertising revenue. Wink- worth gave Callahan Respondent's typewritten counter- proposals which read as follows: 1. A 15 percent pay cut for all employees repre- sented by the contract. 2. A change to a 40 hour work week for any shift. 234 ALLBRITTON COMMUNICATIONS 3. A change to 5 personal days per year from the present 10. 4. The option at a later date to separate the com- posing room between Hudson Dispatch and News Printing Co., Inc. Buzzetta testified that he had brought to that meeting the financial statement for Respondent News' last fiscal year and that it was available then for inspection by Local 103. Winkworth testified that Buzzetta indicated to Local 103 that it could verify his statements respect- ing the losses suffered by Respondent News. Alessi's ac- count substantially corroborates that testimony. Local 103 did not seek such verification then. The meeting ended when the parties agreed to meet again on December 11, 1980. 3. The December 11 meeting Alessi testified as follows respecting the December 11 meeting. Winkworth told Local 103 that Respondent had looked over Local 103's demands and that everything in those demands added costs to the contract then in effect. Buzzetta said that Respondent cannot add any costs but would stick to the proposals it made, no matter what. Local 103's president Callahan said that everything is ne- gotiable. Winkworth testified as follows as to that meeting. Buz- zetta explained that Respondent News had suffered a loss in November 1980 and that that was unusual as Novem- ber was normally a very good month for newspapers. Buzzetta stated that it was critical that some kind of ar- rangement be worked out which would result in a reduc- tion of the composing room costs. Winkworth and Calla- han then began to discuss the possibility of continuing the contract then in effect but without a wage increase. Buzzetta interrupted their conversation and said that such a continuation would not be satisfactory but that a decrease in the total cost was required. Callahan then suggested that the parties discuss vacations and other fringe benefit matters. Winkworth replied that the parties should not be "fussing around" with the "side issues" and that they should all try to solve the basic problem which pertained to the wage section of the contract. The meeting ended, with Callahan's advising that he would review the matters with Local 103's members. Buzzetta testified that on December 11 he kept press- ing for the relief he felt was needed and that Callahan kept saying that he was understanding but that he did not think there was much that he could do about it. Buz- zetta testified that they agreed to tackle the wage prob- lem first and leave everything else for last. I credit Alessi's account that Buzzetta stated at that session that Respondent would stick to its demands no matter what. His testimony thereon was not directly con- troverted but was in fact indirectly confirmed. 4. The December 17 meeting At the next meeting, December 17, 1980, according to Alessi's testimony, Callahan informed Respondent that the chapel had unanimously rejected Respondent's de- mands. Alessi recounted that Buzzetta then gave figures as to losses sustained by Respondent and advised that Respondent had to have "givebacks." According to Alessi, Callahan then responded that, whenever there had been economic problems in the past, all of the unions had gotten together with Respondent in joint ne- gotiations so that "everybody could give a little." Buz- zetta responded, according to Alessi, that he would not have joint negotiations. Alessi testified further that Calla- han stated that Respondent should get together with the other unions to see where they are going and to get back to Local 103 after the holidays. The minutes of the meet- ing which were kept by Alessi correspond to the testi- mony he gave at the hearing. Winkworth testified for Respondent that the same issues were discussed on December 17 as had been dis- cussed on December 11 and in particular that Buzzetta advised that the loss he had reported in revenue at the last meeting had since been confirmed and that it was in the neighborhood of $28,000 for the month of November 1980. Buzzetta testified that, at the December 11 meeting, he had the exact figures showing a loss of $28,000 for No- vember and he stated he told Local 103 that if Respond- ent cannot make money in November, there is no way that it can stay in business. Buzzetta testified that he asked Callahan to bring in a representative from his International in order to get things moving but that Cal- lahan responded that he thought it was too early to do that and advised instead that the earliest the next meeting could be held was on January 14, 1981. 5. The January 14 meeting Singleton, Respondent's president, testified that, on January 12, 1981 (2 days before the scheduled resump- tion of the negotiations), he had lunch with Local 103's president Callahan in order to assess the problems they were facing. Singleton testified that Callahan told him that he felt that Singleton should lay out, at the bargain- ing session on January 14, what Singleton's bottom line proposals were and that Callahan gave him assurance that Local 103 would cooperate in trying to reach an agreement. Callahan did not testify before me. Alessi testified as follows as to the January 14 meeting. Callahan asked Singleton if Respondent News was going to be shut down. It appears that there was a rumor being circulated to that effect. Callahan also asked Singleton why he was offering the Pressmen's local a "$88 package deal over 3 years" while offering Local 103 "a one-year contract with givebacks." Singleton answered by stating that Respondent News had lost $400,000 in its last finan- cial period and that its parent company was reluctant to advance any more money unless it got concessions from all unions. Singleton stated that, if Respondent got con- cessions and had a profit at the end of the year, employ- ees in the composing room would get a raise. Singleton then stated that he was giving up his negotiating stance by putting his bottom line on the table. He said that he wanted to have the last raise given to Local 103 employ- ees, a $35 raise, returned. Singleton advised that, if he got that back, the paper would continue to operate for at least one more year. Singleton stated that he would leave it up to Local 103 to advise how the cut should be taken, 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether in wages or in personal days or in holidays or in any combination, as long as it added up to $35 apiece. Local 103 representatives then caucused and returned to advise Singleton that they were going to send for an International representative. Singleton responded that he was happy to hear that. The next bargaining session was set for January 29. Winkworth testified as follows for Respondent as to the January 14 meeting. Essentially the same matters were reviewed on January 14 as had been talked about in the earlier sessions with the exception that Singleton had joined the Respondent's negotiating committee and "invited" Local 103 to come up with a solution whereby Respondent could save $35 per man per week. Local 103 responded that it could not see how it could do this and it had no ideas for effecting that kind of saving. Single- ton said that he was ready to meet around the clock 7 days a week to get things resolved before the deadline which he placed at February 10. Singleton advised that he had to have things resolved because he could not continue carrying the deficit the paper was incurring. Singleton's testimony respecting the January 14 meet- ing is as follows. He attended because the publisher and the other management officials requested him to attend. At the meeting, he reviewed the earlier proposals with Local 103 representatives. At that point, Callahan asked him what was the "bottom line." Singleton advised him that the bottom line is $35 per person. Singleton stated that one of the other Local 103 representatives then asked, if Local 103 made those concessions, whether the paper would be sold. He responded by stating that, if he got the concessions that he was looking for, the paper would definitely be kept open for another year. The testimony of Publisher John Buzzetta essentially corroborated Singleton's account as to the events of the January 14, 1981 meeting. 6. The January 29, 1981 meeting Alessi, the chapel chairman for Local 103, testified as follows respecting the events of January 29. Singleton led off the meeting by stating that he was giving Local 103 until February 10 to reach an agreement with Re- spondent on a new contract. Callahan responded that Local 103 intended to submit Respondent's proposal on the $35 pay cut to the unit employees at a chapel meet- ing scheduled for that coming Saturday. Callahan also told Singleton that the International representative who had been assigned to come in to assist in the contract ne- gotiations, Tom McGrath, had had a heart attack and that the only other International representative available was Allen Heritage who could not get into the area until around February 10. Singleton responded that that was not acceptable, that it was nothing but a stall, and that he wanted someone there quicker than that. Singleton stated that Callahan better tell his people at the chapel meeting that Singleton wanted that $35 back, no if, ands, or buts and that, if he did not get that $35 back, the Local 103 people "do not work" for Respondent any- more. He quoted Singleton as saying, "I don't give a damn about people anymore. I only care about my paper. And any printer, driver or pressmen who gets in my way, I'll roll right over him." Singleton stated that he felt that he was going to reach an impasse with the pressmen in negotiations which were scheduled for Feb- ruary 5. Singleton also stated that he felt he had already reached an impasse with Local 103. Callahan responded that he had reached no impasse with Local 103 but all he had done was demand, threaten, and yell. At that point Fred Temby, Respondent's director of new processes, stated to Callahan, "You guys are full of crap. Your people are a bunch of pussycats. They wouldn't follow you out of the building even if the building was on fire." Alessi's bargaining minute notes, which Respondent placed in evidence, essentially corroborate Alessi's ac- count given above as to the events on January 29. David Winkworth, Respondent's labor consultant, tes- tified as follows concerning the negotiations on January 29, 1981. The "whole issue was discussed in great detail." Local 103 advised that it was not ready to accept the conditions suggested by Singleton. Singleton then stated that he was serious about the February 10 dead- line and that if Local 103 did not agree to the conditions presented to them, it would be necessary to replace the composing room employees. Singleton testified as follows respecting that meeting. There were heated comments from both sides. Fred Temby made a presentation on behalf of Respondent as to ways it could save $91,000 in operating the composing room. One of the Local 103 representatives stated that there was just no way Local 103 was going to give up anything for which it bargained for years. Local 103 rep- resentatives stated that they had given up so much for so long and they noted that they had fewer people working now than they ever had before. They felt they had given up everything that they can give and that there was nothing else that they were willing to give. At that point, Singleton stated that he had gotten to the point where he was not really concerned about any of the people anymore but concerned only with saving the newspaper. Buzzetta's account of the January 29 meeting is as fol- lows. Fred Temby attended on behalf of Respondent and explained several ways in which savings of $91,000 a year could be effected. There was no movement by Local 103 thereon. Callahan stated that an International representative was supposed to be in attendance at that meeting but had had an heart attack and could not come. Callahan stated that he could not get another Interna- tional representative to attend. I credit Alessi's testimony that Singleton stated at the January 29 session that if Local 103 did not give back the $35 raise, the composing room employees would not work for Respondent anymore. Winkworth's account was that Singleton said he would replace them. More likely, in my view, Singleton used the more forceful lan- guage attributed to him by Alessi's account. 7. Singleton's telephone conversations with Local 103's International representatives Allen Heritage, vice president of the ITU, Local 103's International, testified that on February 3, 1981, Joe Bingel, ITU's president, told him that Bingel had re- ceived a telephone call from a consultant for Respond- 236 ALLBRITTON COMMUNICATIONS ent, Bin Lewis, who had at one time been an official of Respondent and that Lewis had discussed the problems developing at "the Paterson News." One of them appar- ently involved a report that was circulating to the effect that Respondent intended to post working conditions under which the composing room employees, would be required to work. (In that regard, I note that Walter Ulinski, a composing room employee, testified without contradiction that in January 1981 he asked Respondent's director of new processes Fred Temby if there was any truth to the rumor that the Company intended to post conditions for its composing room employees, and that Temby replied that the rumor was true and also that if Local 103 did not go along with them, there was no amount of money Respondent would not spend to see that the composing room employees would never have a union again.) Heritage testified he called Singleton on February 3, 1981, who told him that Respondent was going to post conditions for the Pressmen on February 5 and for the composing room on February 6, with the conditions to take effect on February 10. On February 4, according to Heritage, he and Bingel attempted to per- suade Singleton to postpone the posting of any such con- ditions until Heritage could meet with him. Heritage tes- tified that Singleton declined to do so but agreed to meet with him on February 12. Singleton testified at length re- specting telephone conversations he had in late January 1981 with Heritage and Bingel. He did not deny discuss- ing the subject of posting conditions. 8. The February 6 session Alessi testified as follows respecting the next negotiat- ing session held. He learned of it when Local 103 re- ceived a mailgram from "federal mediator" John Bello advising that a bargaining session was scheduled for the following day, February 6. After Bello introduced him- self at the February 6 meeting, Singleton stated that he had a lot of legal problems out of the way and that he could now offer Local 103 a 3-year contract, the same as he had offered the other unions. Singleton advised that Local 103 would still have to give back $35 in the first year of the contract but that in the second year it would get that $35 back and in the third year Local 103 em- ployees would receive a $29.50 raise. Singleton gave Local 103 a typewritten copy of Respondent's "final pro- posal" setting out that offer. Local 103 then caucused and returned. Callahan advised that it was fine that Re- spondent had made a 3-year proposal but that Local 103 still could not accept the pay cut. Callahan suggested that they start negotiations from the standpoint of a 3- year contract. Callahan noted that the International rep- resentative assigned to participate in negotiations, Allen Heritage, would be in the area around February 10 or 11 and that Local 103 could negotiate thereon after that point. Singleton wanted to know why the International representative could not come in any earlier and Single- ton and Callahan "went into the same old hassle" on that matter. Right after that, Singleton handed Callahan a paper on which was contained the terms under which Respondent would employ the composing room employ- ees as of February 10, 1981. Local 103 representatives caucused and determined that there was nothing they could do at that point. Its representatives returned to the bargaining table and discussed with Respondent how they would notify it as to whether the employees would or would not work under those conditions. The meeting thereupon adjourned. Alessi's minutes of the February 6 meeting were received into evidence as an exhibit by Re- spondent and they substantially comport with the testi- mony he gave at the hearing. Winkworth testified for Respondent simply that he was present at the February 6 meeting and that, around the time of that meeting, there were conditions posted which were to become effective on February 10. Singleton testified respecting the February 6 meeting itself as follows. It was called by a Federal mediator at Respondent's request. Local 103 was advised of the ur- gency of the situation. Then Local 103 expressed con- cern that the contract offered them was only for I year. Respondent caucused and amended its proposals to offer a 3-year contract instead of one. Local 103 caucused and the mediator then informed Singleton that he felt there was an impasse and that the parties could make no fur- ther progress. At that point, Respondent issued its condi- tions on which it would employ the composing room employees and it informed Local 103 that those condi- tions would be posted the following week. Buzzetta's account is as follows. Respondent had asked the Federal mediator to schedule the meeting. Respond- ent proposed a 3-year contract as Local 103 had com- plained at a previous meeting that the pressmen had been offered a 3-year package whereas Local 103 had been of- fered only a I-year contract. Local 103 after a caucus re- ported that they would have to take the matter up with their membership. At that point, Respondent advised Local 103 that it would be posting conditions as of Feb- ruary 10 in the composing room if agreement was not reached by that date. Buzzetta showed to the Local 103 representative a paper listing those conditions. As related earlier, Singleton had agreed to meet with ITU Vice President Allen Heritage on February 12, 1981. 9. Events between February 6 and 12, 1981 On February 6, 1981, Respondent posted a notice in the composing room which stated that the terms set out therein would become effective in the composing room on February 10. The terms, as set out in that notice, were that there would be a $35 decrease in the weekly wage rate of the composing room employees as of 7 a.m. on Tuesday, February 10, and that all other conditions in the expired contract would continue in effect until reso- lution of a successor contract. The notice further provid- ed that Respondent required acceptance of those work- ing conditions in writing by the affected employees no later than 1 a.m. on Tuesday, February 10, 1981. It ad- vised that if written acceptance was not received by that time, Respondent will replace the affected workers for the duration of the dispute. A similar notice had been posted in the pressroom, presumably listing the conditions under which the press- men would be expected to work on and after February 10, 1981. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this same period, Respondent was training guards employed by Boyd Security to take over the work of the mailroom employees/drivers in anticipation of the con- frontation that would take place on February 9, as de- scribed previously. Those guards walked as a group through the composing room repeatedly. Another group of men, fewer in number, were wearing western clothes and they regularly walked through the composing room. Singleton referred to the latter group as pressmen in the course of his testimony. About this same time, also as noted previously, Re- spondent had directed T & T to relocate its office out- side of the Paterson facility. Judge Sarokin alluded to that directive as a forerunner of the things to come. The General Counsel offered uncontroverted testimo- ny that Respondent was preparing 150 copies of a manual, which was essentially a training manual to be used by new employees in the composing room. On February 5, 1981, an unusually large number of police officers of the city of Paterson were stationed out- side the Paterson facility of Respondent. Those police of- ficers were wearing helmets and carrying nightsticks. It is apparent now that Respondent was then prepared to "take on the drivers" and also intent on defining the terms of employment of the composing room employees, and apparently those of the pressmen as well. On the afternoon of February 9, Local 103's president Callahan sent the following mailgram to Singleton: I am using this means of communications to inform [you] as president of [Local 103] that our members will continue to work in the composing room. We will continue to negotiate in an attempt to reach agreement for a new contract unless authorized oth- erwise. This letter is an answer to the communica- tions mailed to our members by registered mail. The reference in Callahan's mailgram to communica- tions mailed to Local 103 members was to a letter sent by Respondent to each of the composing room employ- ees by registered mail on February 6. That letter listed the conditions contained in the notice posted in Respond- ent's composing room at Paterson on February 6, as re- lated above. On the night of February 9, as related at length above, in the section dealing with T & T, the mailroom employees/drivers were ordered out of the building in Paterson. They began to picket and carried NMDU plac- ards. When the composing room employees arrived at the Paterson facility in order to report for work, they observed that the NMDU picket line was up and all of the composing room employees honored it. About 10:30 a.m. on February 10, Alessi was at Local 103's office. Singleton telephoned him there and asked why the composing room employees were not at work. Alessi told him that they were afraid to cross the picket line. Singleton stated that he had a 48-page paper to get out and that, if the Local 103 people were not back by shortly after lunch, they would all be permanently re- placed and they would not be allowed back in the build- ing again. Alessi testified that Singleton further stated that he would break off negotiations with Local 103 and that there would be no more negotiating. Alessi testified that, later that day, he received a telegram which stated that, if he did not return to work by February 11, he would be permanently replaced. 10. The February 12 meeting Alessi testified as follows as to that meeting. It had been scheduled at the office of the Federal Mediation and Conciliation Service. Local 103's representatives ar- rived on time but no one from Respondent appeared. The Federal mediator made a telephone call and then told the Local 103 representatives that he had called Re- spondent and had spoken to John Buzzetta who stated that he thought the meeting had been canceled. Single- ton arrived 2 hours later and said that he was in no mood to bargain that night at all. Singleton said he had a paper to get out, that he had a strike on his hands, that he was going to be very busy, and that he would be available to bargain a week from that date. Singleton said that he had also hired some permanent replacements. When Heritage asked why Singleton did that, as Local 103 was not even on strike, Singleton responded that he was going to do what he had to do and that Local 103 can do what it has to do. Heritage's account was substantially the same as Ales- si's. Heritage also related that, before Singleton left, the mediator talked to him and that Singleton then conferred with Heritage. They agreed to meet on February 21, 1981. Respecting the February 12 meeting, Singleton testi- fied as follows. Because of the NMDU picket line and the fact that the composing room employees were hon- oring it, Singleton was not sure whether the meeting would go on as scheduled. He made telephone calls to various locations trying to reach Heritage but without success. His secretary called the Federal mediation office on February 12 but there was no answer. Singleton as- sumed that at that point there would be no meeting. About 9:30 that evening, he received a telephone call from his attorney who advised that the mediator had called and wanted to know where Respondent was. Then Singleton told his attorney that he could not come to negotiate at that hour as he was in the process of get- ting the paper out. His attorney called back later and urged him to go to the mediation office. Singleton agreed and got to the mediation office about 10:30 that night. He told Heritage there that, because he had not slept in 3 days, he was in no condition to bargain. Herit- age asked if he would take the employees back if they decided to return to work the following day. When he told Heritage that he would, Heritage asked what he would do with the replacements. Singleton responded that he did not know but he assumed that they would be let go. At that point there were only five replacements hired. Singleton stated that he would be available to bar- gain with Local 103 anytime the following week. Herit- age advised that he could not meet Monday, Tuesday, or Wednesday as he had other commitments. The mediator reported that he could not be available on Thursday or Friday. A date of Saturday, February 22, was set for the next meeting. 238 ALLBRITTON COMMUNICATIONS It is unlikely that Heritage inquired as to whether Re- spondent would take back the composing room employ- ees, as Singleton's testimony would have it. Those em- ployees were honoring the NMDU picket line and were scheduled to meet the next night to consider whether to call a strike themselves. I credit Alessi's account. Heritage left the FMCS office on February 12 with the Local 103 representatives and went to a diner in Pa- terson for a meeting with officials of the NMDU and of the Pressmen's local. They exchanged notes of their re- spective bargaining sessions and agreed to keep each other abreast of all future negotiations. On February 13, 1981, as related earlier, NMDU ob- tained from the U.S. District Court for the District of New Jersey a temporary restraining order directing Re- spondent to permit the mailroom employees/drivers rep- resented by the NMDU to work in the mailroom. It then appeared that those employees would return to work that evening at their normal starting time, i.e., about 11:30 p.m. Local 103 had scheduled a chapel meeting for 9:30 p.m. that night. 11. The February 13 chapel meeting of the composing room employees Alessi's account of that meeting is as follows. Heritage reported to the composing room employees present as to the negotiations on the evening of February 12 and he informed them that he did not think that Respondent was going to try to negotiate a contract with Local 103. Local 103's president Callahan then spoke. Many of the employees present wanted to know why Callahan had only been discussing the demand by Respondent for givebacks and why no one had ever talked about the proposals put forth by Local 103. Callahan told them that he felt that Respondent would never discuss Local 103's proposals, that it would never negotiate a contract with Local 103, and that all it was attempting to do was to threaten Local 103 and force it to give back contract gains. Alessi then conducted a strike vote; the decision to go on strike was unanimous. 12. The Local 103 picket line and Local 103's designation of NMDU officials as agents for Local 103 Local 103's members set up a picket line outside the Paterson plant of Respondent News right after the chapel meeting ended. When the NMDU officials ar- rived later to see to it that the mailroom employ- ees/drivers were allowed by Respondent to work in the mailroom, they observed the Local 103 picket line and, on inquiring, were told by Heritage that he had been unable to reach Singleton to tell him that Local 103 would not picket if Respondent rescinded the conditions set out in its notice of February 6. Alessi and Heritage testified as follows as to the next development. Heritage appointed Murray Schwartz, president of NMDU, Joseph Miraglia, New York busi- ness agent of the NMDU, and Marshal Lippman, the at- torney for the NMDU, as spokemen for Local 103 and asked them to go into Respondent's building to negotiate for Local 103. That arrangement was made "since Sin- gleton wouldn't answer his phone calls" and to tell him that, if the posted conditions were taken down and the permanent replacements let go, the Local 103 strike would end and that Local 103 would continue to negoti- ate for a contract. Schwartz testified that he, Lippman, and Miraglia went into the building and met with Singleton. Schwartz' account of that meeting is as follows. Lipp- man told Singleton that they were authorized by Local 103 to state that it would end its strike if Singleton would take down the posted conditions. According to Schwartz, Singleton said he could not negotiate with Lippman as the Local 103 representative and said also that he did not care if Local 103 stayed out forever as "they are never coming back to work" and that he was "not meeting with them." Peter Trombina, vice president of T & T, testified that he briefly observed that meeting and overheard Lippman offering to get for Singleton a written authorization from Local 103 whereby Lippman would be designated as a Local 103 spokesman. Singleton's account of that incident is as follows. Sometime around 11:30 p.m., he was told that Marshal Lippman, Murray Schwartz, and other officials from the NMDU were there to talk with him. He met with them. Lippman told him that the drivers would not cross the Local 103 picket line and that Local 103 would take the picket line down if Respondent would restore the status quo for the Local 103 unit. Singleton informed Lippman that Lippman was not the Local 103 negotiator and that Singleton would be very happy to sit down and talk with Heritage or Callahan. Callahan and Heritage had refused to meet with Singleton that night. Singleton told Lippman that he did not understand why Lippman was there and asked why Heritage and Callahan had not come in to talk with him as he heard that they were out- side. Singleton told Lippman that he would love to talk to Heritage and Callahan to resolve the matter. I credit Schwartz' account. Singleton's account asks me to accept the unlikely premise that Heritage on the one hand was avoiding direct discussions with Singleton and yet that he concocted an elaborate method whereby NMDU officials and its attorney were sent to see Single- ton as Local 103's emissaries. There does not seem to be any reason Heritage would act in so devious a manner. After Schwartz, Lippman, and Miraglia left Respond- ent's plant, 20 minutes or so after they had entered, they told Heritage of the discussion they had just concluded with Singleton. Local 103 has been picketing Respond- ent's facility since then. In the early morning hours of February 14, 1981, Her- itage returned to his motel. Singleton called him there. In the ensuing discussion, Heritage told Singleton that Local 103 would end its strike if Respondent would take down the posted conditions. Singleton said that he would not do that. 13. The February 21 meeting with NMDU and Pressmen officials present Alessi testified as follows respecting the negotiations on February 21. The meeting was held at the FMCS 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. Appearing on behalf of Respondent were its attor- ney, the publisher of Respondent News, John Buzzetta, and its director of new processes Fred Temby. Local 103's negotiating committee was comprised of Allen Heritage, Tom Callahan, Alessi, other Local 103 mem- bers, and also James Scofield, president of Local 8, Pressmen and Murray Schwartz, president of the NMDU, and Joseph Miraglia, the NMDU business agent for New Jersey. Respondent's attorney objected to the presence of the NMDU officers on the ground that Re- spondent had a court case pending with the NMDU and did not want to prejudice its position in that matter by giving any recognition to the NMDU. Buzzetta objected to the presence also of the president of Local 8, Press- men, James Scofield. Heritage stated that the Local 103 group was a duly constituted committee and was there to negotiate a contract for Local 103 members. As a result, there were no negotiations. Murray Schwartz testified as follows respecting the February 21 meeting. The representatives of Local 103 sat at the table in the conference room. Schwartz, Mirag- lia, and Scofield sat with them. They waited for Re- spondent's representatives to appear. When Buzzetta walked in the room, he asked what Scofield, Miraglia, and Schwartz were doing there. Heritage answered that they were part of the Local 103 negotiating committee and that Local 103 has a right to appoint to that commit- tee anyone it chooses. Buzzetta and his attorney walked out of the room for a caucus. They returned after a short while. Respondent's attorney stated that Scofield could stay but that Schwartz and Miraglia would have to leave. Buzzetta stated that he did not agree to have the Pressmen in the room either. Heritage objected to those comments and said that Local 103 had a right to have, as members of its committee, anyone it wanted. The media- tor ended the meeting when the matter could not be re- solved. Scofield testified at the hearing before me but did not make a reference to the February 21 negotiations. Buzzetta testified for Respondent as follows respecting the February 21 meeting. He objected at the outset to the presence of the NMDU officials as Respondent was then in a dispute with the NMDU before Judge Sarokin in the U.S. district court. Buzzetta voiced objections ini- tially over the presence of Scofield but later on dropped those objections. Heritage took the position that he was there with his committee and if Respondent did not want to negotiate with that committee, then Local 103 was not negotiating. Buzzetta stated that he could not negoti- ate with the NMDU people present. The minutes prepared by Alessi of the February 21 meeting show that it was conducted by a Federal media- tor and they recite that "'for [Local 3]-were Heritage, Callahan, Alessi, Angiuoli, Winterstain,' 'For Pressmen- Jim Scofield, president,' 'For New York Mailers and Drivers, Murray Schwartz [president], Joe Miraglia [vice president],' and 'For Management-Ken Weisert [attor- ney], Fred Temby, John Buzzetta."' The minutes further recite that, when Respondent's representatives objected to the presence of the officials of the NMDU and the Pressmen, Heritage stated that Local 103 would not be properly representing its people if it did not have other interested unions present. The rest of Alessi's minutes contain statements which are in general accord with his testimony. NMDU's president Schwartz testified, on cross-exami- nation, that he attended the meeting on February 21 under the following circumstances. He had, on February 13, expressed to Allen Heritage that he was upset with the fact that Local 103 had a picket line there that day inasmuch as the NMDU drivers had been expected to return to work on February 13. Instead they honored the 103 picket line. Heritage told him then that he wanted Schwartz to know what was going on and to see what was happening and to see how Respondent bargained in bad faith. Heritage told him that, at the next meeting, Schwartz would be invited. Shortly afterwards, he re- ceived a call from the president of Local 8 of the Press- men's Union and was advised that the meeting was set up for February 21. Another negotiating session, set for March 6, 1981, was canceled by the mediator. 14. The April 28 meeting The next bargaining session took place on April 28, 1981. The accounts of Local 103's chapel chairman Joe Alessi, of Respondent's attorney William D. Toney, and of John Buzzetta, publisher of Respondent News, re- specting the developments at the session are in substan- tial agreement. The mediator asked Local 103 to review the bargaining situation up to that date. Its representa- tives summarized the prior negotiations. They indicated that, as Respondent earlier had expressed concern as to the size of the work force, Local 103 had a proposal based on a 4-day workweek which would enable Re- spondent to keep the same work force but at a substan- tial savings of money. Thereupon, Respondent's attorney Toney spoke. He reviewed Respondent's proposals and then was given Local 103's proposals for a 4-day work- week. Respondent then caucused to review these propos- als which were contained in a typewritten document. When the parties reconvened, Toney indicated that he did not feel that job guarantees could go on in perpetui- ty. Local 103's representative McGrath stated his dis- agreement with that observation. Toney stated that, under the new proposal by Local 103, Respondent would have to hire 15 additional people. Thereupon Toney said that, since Local 103 had rejected Respond- ent's final proposal, its first proposal would be put back on the bargaining table. This provided that the unit em- ployees would be reduced in pay 15 percent, would work a 40-hour week instead of a 35-hour week, and would lose 5 personal days. Toney said he had one addi- tional proposal; it provided that the contractual wording as to the inclusion of foremen in the bargaining unit would be deleted as they are supervisors under the Na- tional Labor Relations Act. After a I-hour caucus, there was discussion about foremen being in the unit and as to the type of work they could perform. There was further discussion of Local 103's proposal with Respondent's in- dicating that it was too costly a package. Alessi asked about reports that the Pressmen had given "tremendous givebacks" and wanted to know what they were. There was a caucus and Toney, on his return, explained how 240 ALLBRITTON COMMUNICATIONS the savings were effected in the Pressmen's contract. The meeting was recessed at that point. The mediator called Respondent in May 1981 to advise that a negotiating session set during that month was canceled. 15. The June 25 session: The alleged unconditional offer to return to work and related correspondence The next bargaining session was held on June 25, 1981, at the office of the Federal Mediation and Conciliation Service. The testimony given by the General Counsel's witnesses thereon, through Joseph Alessi and Thomas McGrath, chapel chairman and ITU vice president, re- spectively, together with Local 103's bargaining notes, correspond in substance with the testimony given by Re- spondent's witness William Toney and its bargaining minutes. At the outset of that meeting, an official of Local 103's International gave Toney a letter dated that same day which was addressed to Dean Singleton. That letter stated that Local 103 was making an unconditional offer on behalf of all of the composing room employees to return to work immediately and it asked Respondent to advise Local 103 as to arrangements for its members to return to work. Toney stated that he needed to ask some questions to determine whether the offer was really unconditional. He asked Local 103 officials whether it was giving in to Respondent's proposals made at the April 28, 1981 session in which Respondent had sought a 40-hour workweek, a $35-a-week reduction in pay, a re- duction of 5 personal days, and a concession that super- visors should be excluded from the bargaining unit. ITU Vice President McGrath replied that the Local 103 letter of June 25 "speaks for itself" and stated that Local 103 was making an unconditional offer to return to work. Toney stated that he wanted to know whether the pick- eting would cease. McGrath responded that Local 103 had no conditions and that, if Respondent insisted, it could reinstate the Local 103 members on the basis of Respondent's proposal on April 28. McGrath stated that, in that event, Local 103 members would still return to work and Local 103 would expect that negotiations would continue. Toney pointed out that replacements had been hired for the strikers and that the strikers would be placed on a preferential hiring list. Toney stated that he was still trying to determine whether Local 103's offer to return was in fact an unconditional offer and asked if the strike would end if in fact there were no vacancies. McGrath's response was that Local 103's offer was unconditional. McGrath's testimony is that, about that point, he had become angry. Toney characterized McGrath's demeanor as "irate." In any event, Toney asked McGrath if the picketing would stop if there were no vacancies for all the striking employees. A caucus was held. McGrath stated on behalf of Local 103 that Local 103 was not accepting Respondent's last contract proposal. McGrath added that the striking em- ployees were offering to come back to work without a contract and to continue to negotiate. Toney asked McGrath whether Local 103 was willing to come back to work under the terms of Respondent's last offer on the bargaining table. At this point in the discussion, the exchanges were hardly cordial. McGrath asked Toney to set out Respondent's proposals in writing so that nothing was misquoted. McGrath advised that the employees on strike would be willing to go back to work under any conditions. Toney pressed McGrath as to whether the picketing would cease if none of the employees was rein- stated. McGrath responded that, if all of the employees were taken back, the strike would be ended but that the picket line would stay up if some were not taken back. Toney then asked whether Local 103 was accepting Re- spondent's last proposals respecting wages, hours, and the removal of the supervisors from the unit and if it would then be willing to bargain on the other unresolved contractual matters. McGrath stated that he thought there was agreement on all other items. McGrath stated that Local 103's position was that the striking employees were offering to go back to work unconditionally, that Local 103 was still requesting Respondent to continue to bargain for a renewal contract, that its picketing would cease when all the strikers have been returned to work, and that Local 103 does not agree to accept Respond- ent's last contract proposal. At that point, the parties dis- cussed Local 103's demand for information which was set out in a separate letter. Toney indicated that he would furnish Local 103 with whatever information it was entitled to receive and advised that he would meet sometime to look into that matter. It was agreed that Local 103 would await his reply thereon before the next negotiating session would be held. 16. Subsequent letters as to the offer to return On June 29, 1981, Toney wrote Local 103 to state that Local 103's letter of June 25 in which it stated that it was making an offer to return the striking composing room employees to work was not unconditional as re- quired by law in view of the explanatory comments made by McGrath on that date. On July 7, 1981, Local 103 wrote Toney that its members were prepared uncon- ditionally to return to work on the basis of his final pro- posal of February 6, 1981. Local 103 sent Toney a mail- gram on July 10 which stated that the July 7 letter inad- vertently left out several words and it was corrected to read as follows: Our members are prepared unconditionally to return to work. You are advised that such work would be on the basis of your final proposal of 2/6/81 copy of which is attached hereto. As discussed above, Toney had told Local 103 that Respondent was putting back on the bargaining table its initial proposals made in December 1980 with a further demand that foremen be excluded from the unit. Toney then wrote Local 103 on July 17, 1981, that its offer was not unconditional as it was based on Respondent's rein- stating the February 6 proposal. On July 31, 1981, Local 103 wrote Toney and stated that he had conditioned the employees' offer to return to work by requiring Local 103 to accept Respondent's last offer of a $35-per-week reduction in wages and a 40-hour workweek. Local 103's letter of June 31, 1981, to Toney further recited that it had placed no conditions regarding the offer to return to work. Local 103 further advised 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, with regard to the picketing, it would be continued only by those not permitted to return to work or during nonworking hours. On August 3, 1981, Toney wrote Local 103 and stated that its offer had never been "un- conditional" because Local 103 continued to insist that the strikers return to work on the basis of Respondent's offer dated February 6, 1981. Both sides apparently agree that Toney had stated at the June 25 negotiating session that Local 103's offer to return was tantamount to its accepting Respondent's pro- posals that there would be a $35 reduction in weekly wages and a 40-hour workweek. The bargaining minutes of Respondent and those of Local 103 both reflect that Toney made that comment. Uncontroverted evidence presented by the General Counsel established that, at the times Local 103 made its offer of reinstatement on behalf of its striking members, Respondent was advertising for composing room unit employees and that it has, since then, hired a number of replacements for the striking employees. Respondent's negotiator Toney testified during his cross-examination that he told Local 103 on June 25, 1981, that he had con- cluded and determined that there were no vacancies in the composing room then. 17. The last negotiation session-November 17, 1981 It appears that a mediator had scheduled a meeting in October 17, 1981. Local 103 canceled it because one of the subjects on the agenda for that meeting was a matter that Local 103 felt was one to be resolved pursuant to the grievance-arbitration proceeding of the contract, and not by collective bargaining. That matter involved Local 103's claims for vacation money and wages for personal days allegedly due employees under the terms of the ex- pired contract. Those claims are discussed in a separate section. On November 17, 1981, the last meeting was held at the office of the Federal Mediation and Conciliation Service. Respondent's chief spokesman William Toney began it by stating that Respondent would restore the $35 wage cut for the second year of the contract and offer a $29.20 wage increase for the third year. He then stated he wished to set forth Respondent's proposals re- specting the other areas of the contract which had not been agreed upon. He stated further that he had not had time to have a typewritten document prepared but would read to them the proposed changes from various notes he had just made. When he began to read from his notes, a discussion took place as to whether or not agree- ment had been already reached on points referred to by Toney. After a caucus, Toney proceeded to read from notes which, according to the General Counsel's wit- nesses, were scattered "all over the table." During Toney's presentation, the publisher of Respondent News, John Buzzetta, interjected comments. When Toney re- ferred to the section of the contract pertaining to job guarantees, he said, "Pass." McGrath interrupted and in- sisted that Toney take a position on that point. Toney re- plied, "Pass." When Toney finished his presentation, McGrath asked how could he possibly respond to it when he was not sure that the notes he wrote down re- flected precisely the comments of Toney and Buzzetta. Toney responded that there was no legal requirement for him to give Local 103 a written proposal. McGrath stated that he was not going to be able to work out any- thing with Toney, and then changed the subject. He of- fered to supply Respondent with a "crew" of composing room employees for the night shift for that night. There was a heated exchange. Toney stated that there were no openings but that he would be willing to work out a preferential rehiring list pursuant to a strike settlement agreement which would be for 6 months with the provi- sion that the employees on the list would have to notify Respondent once a month by registered mail that they were available to work. The agreement would further provide, according to Toney's proposal, that at the end of 6 months, if the striking employees were not back to work it was "all over." McGrath asked Toney to put that in writing for him and Toney responded he would consider that request. The parties separated. McGrath told the mediator that he needed everything in writing. The mediator informed McGrath, when McGrath said he needed Respondent's position respecting the guaran- teed job clause in the contract, that Toney would consid- er agreeing to that clause if Local 103 would agree to the rest of the contract. The mediator left the room and returned. He then advised McGrath that Toney would put all the contract changes in his proposal in writing as soon as he got back to his office and that he would in- clude three dates for future bargaining. The meeting ended. Local 103 has heard nothing from Respondent since respecting negotiating for a renewal contract. D. Analysis-Alleged Bad-Faith Bargaining Respondent and Local 103 had worked together har- moniously for many years in modernizing the composing room operations with a view toward accommodating the interests of the unit employees. In the fall of 1980, Local 103 pushed forward with its campaign to organize Re- spondent's editorial employees, at a time when Respond- ent was continuing to experience financial losses in its operation, especially those of Respondent News. The credited evidence is that Singleton then said he intended to punish Local 103 for that effort and that the compos- ing room employees would get no raises. The discrimina- tory discharges of eight reporters in October 1980, as found above, underscores that statement. Respondent initiated the discussions for a renewal con- tract. There is no question but that it fulfilled its obliga- tion to meet with Local 103 at reasonable times and to discuss with it relevant contract matters. What stands out to me is that, in the negotiations from December 2, 1980, to February 6, 1981, Respondent aimed at one goal-a substantial giveback by the employees represented by Local 103. When asked for its "bottom line" it modified that demand but made it clear that it wanted a $35-per- week-per-unit employee giveback. There is no question in my mind that Respondent was willing to enter into a renewal contract on the basis of its proposal. It pressed Local 103 to get an International representative to the bargaining table for that purpose. Were that all there was 242 ALLBRITTON COMMUNICATIONS to this case, I would conclude that Respondent met with Local 103 at reasonable times and places, discussed its proposals, offered counterproposals, properly claimed it was losing money, and indicated it would substantiate that claim but was not asked to do so, and otherwise dis- charged its obligation to bargain collectively. However, I do not think those matters should be viewed in isola- tion. A significant point for consideration is Singleton's threat that he would roll right over Local 103 if it did not accede to his demands. I also attach weight to the credited testimony that he wanted the $35 giveback without any ifs, ands, or buts. Buzzetta, too, had earlier stated that Respondent would stick to its proposals, no matter what. Very significant for me also is the credited testimony that Singleton had said that, if he did not get his way on the givebacks, the composing room employ- ees would no longer work for Respondent. The discussions between Respondent and Local 103 were not conducted in the abstract. It must be remem- bered that Singleton had, since the early fall of 1980, been in the process of "taking on" the mailroom employees/drivers and when the adverse arbitration award came down in mid-January 1981 he voiced that very sentiment. He did take them on. Just 3 days after that award issued, he gave Local 103 Respondent's bottom line, a $35 weekly wage giveback to achieve a $91,000 savings in composing room operating costs-by itself, an obviously permissible bargaining goal. The General Counsel sets out two concepts on which I am urged to find that Respondent engaged in bad-faith bargaining. First, it is contended that Respondent entered into the bargaining and pursued it with a fixed intent to go through all the motions but with no real intent to reach agreement except on its own terms. Secondly, it is urged that, even if surface bargaining were not shown, Respondent cannot have given Local 103 a fair chance to bargain before it unilaterally imposed the $35 give- back. I am not sure that the bad-faith bargaining issue in this case can be resolved on such a bifurcated approach. It would be simplistic to decide the merits on the basis of whether or not an impasse was reached before a contract change was implemented. I cannot see how I can consid- er that matter apart from the General Counsel's basic contention that, from the outset, Respondent's mind was unalterably fixed. If so, the impasse was reached and evi- denced at the second bargaining session when Buzzetta brushed aside Local 103's demands and disclosed that Respondent was set on its giveback goals. It would be equally simplistic too to decide the merits on the basis urged by Respondent as that approach puts too much emphasis on the mechanical aspects of bargain- ing. There is no real question in my mind that Respond- ent suffered operating losses as to the News and the Dis- patch, that Local 103 could have easily verified that fact if it wanted to do so, or that Respondent wanted a prompt resolution on its demands whereas Local 103 was maneuvering to avoid or to delay the giveback sought by Respondent. To write finis to the General Counsel's case on the basis of those observations misses the issue. There is on the one hand, as noted before, clear evi- dence of animus by Respondent, in and about the bar- gaining. There are, on the other, the economic facts which support strongly Respondent's demand for give- backs and the open efforts it has made to reach an agree- ment with Local 103. What I find significant are factors that motivated Respondent in its bargaining that should not have been there. Very simply, Respondent's bargain- ing approach with Local 103 appears to have been mate- rially influenced by its intent to "take on" the NMDU. Respondent spent far more than the giveback it wanted from Local 103 in preparing to take on the NMDU and in doing so. Maybe it was entitled to do so but the ex- penditure of such large sums does not lend credence to Respondent's assertion that it needed the $91,000 give- back from Local 103 to keep the paper going for I more year. The sudden demand by Respondent on February 6 that the Local 103 members advise it in writing by Feb- ruary 10 as to whether they would work under the posted conditions is, in my view, very much bound up with Respondent's actions vis-a-vis the mailroom employees/drivers the night of February 9, as recounted in detail above. Respondent had a meeting set with a key ITU official for February 12 but did not wait for him. Rather, it was incurring large expenses in housing and training the Boyd Security guards. Strangely, it seems that Respondent's varying proposals to Local 103 indi- cate that its bargaining was not genuine good faith. On February 6, it gave Local 103 two typewritten proposals. The first was a 3-year proposal with a raise in the third year. When Local 103 said it would consider it, it was given the second-providing for the $35 giveback and a requirement that the employees provide written assur- ances that they will work on that basis. I find from the totality of the relevant evidence that it is more probable that Respondent negotiated with Local 103 with a fixed intent to force Local 103 to give back $35 in wages and that it never seriously considered any alternative. I thus find that the General Counsel has es- tablished by a preponderance of the evidence that Re- spondent did not bargain in good faith with Local 103. 34 I further find that Respondent's conduct after the start of the Local 103 strike underscored the fact that Respond- ent rejected the principle of collective bargaining. Then, Singleton told Schwartz on February 13 that Local 103 members on strike "are never coming back to work"; Toney professed on April 28 to be unable to understand the words "unconditional offer"; and as found below, Respondent unlawfully sought to have Local 103 decer- tified. E. Analysis as to Alleged Unlawful Refusal to Reinstate the Striking Composing Room Employees As the composing room employees voted to strike be- cause of Respondent's bargaining tactics and as I have found that that bargaining was conducted in bad faith by Respondent, I further find that the strike by the compos- ing room employees on and since February 13, 1981, was caused and prolonged by Respondent's unfair labor prac- tices. 3 5 34 United States Gypsum Co., 200 NLRB 1098 (1972). 3" Billion Oldsmobile-Toyota, 260 NLRB 745 (1982). 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence is also quite clear that Local 103 made repeated offers on behalf of those employees since June 25, 1981, to return to work. Respondent urges that those offers were not unconditional as Local 103's mailgram in July indicated that the employees would return on the basis of the conditions on February 6, 1981. Local 103's subsequent dealings thereon with Respondent made it un- equivocally clear that its offer to return was uncondition- al; yet Respondent insisted that Local 103's offer was based on the terms of the notice posted by Respondent, which they had rescinded as a contract proposal on April 28, 1981. I note that Respondent offered no evi- dence to show that the replacements were working under terms other than those set out in the February 6 notice. I find that Toney's persistent requests to "clarify" the stated unconditional offer were undertaken to find some reason to reject it. If there were any real doubt that the offer was not unconditional, Respondent could have tested it by calling some of the strikers back as there were openings. It chose brinksmanship. At that, it was consistent with its announced determination that those striking employees would "never [be] coming back to work," that they "would be out there [on strike] a long time because they are never coming back" and that Re- spondent "would appeal all the way to the Supreme Court to keep [Local 103] out." I therefore find that Respondent's refusal to honor Local 103's unconditional requests on behalf of the strik- ing composing room employees to return to work on and since June 25, 1981, was discriminatorily motivated.38 F. Analysis: Alleged Unlawful Refusal of Respondent to Negotiate with Local 103 Based on the Composition of its Negotiating Committee Local 103 designated NMDU President Schwartz as one of its representatives on February 13 and again on February 21, 1981. On both occasions Respondent re- fused to negotiate because Schwartz was not an official of Local 103. Respondent asserts that it was privileged to do so in view of its assertions that Schwartz had en- gaged in misconduct on February 9, 1981. That is obvi- ously an afterthought as that reason was never given on either February 13 or 21. Respondent contends that it also could not sit down with Local 103 in Schwartz' presence as it would thereby be according recognition to NMDU's claim in the U.S. district court proceeding then that Respondent was the employer of the mailroom employees/drivers represented by NMDU. That reason is also without merit as Singleton met directly with Schwartz on February 26, 1982, about that group. Respondent's refusal to negotiate with Local 103 be- cause Schwartz was on its negotiating committee, in the circumstances of this case, improperly impinged on Local 103's right to bargain collectively with Respond- E6 Billion Oldsmobile-Toyota, supra. Even were the strike by those em- ployees not caused or prolonged by Respondent's unfair labor practices, I would make the same finding as there were job openings and as in any event Respondent rejected the offer on a frivolous, pretextual basis. ent and constituted a violation of Respondent's duty to bargain in good faith.3 7 G. Analysis: Alleged Unlawful Threats and Warnings The General Counsel contends that Respondent "dis- played" strike replacements in late January and early February 1981 and thereby unlawfully warned the com- posing room employees of the futility of the attempts of Local 103 to bargain collectively with Respondent. Those individuals so "displayed" were for the most part Boyd Security guards being trained by Respondent to re- place the mailroom employees/drivers who, as found above, were not Respondent's employees. As Respond- ent could sever its contract with T & T without violat- ing the Act, its training of those guards to that end would necessarily be in furtherance of a lawful aim. The possibility that some of Respondent's employees may in- cidentally have been influenced by that act does not thereby violate their rights under Section 7.38 The threats by Singleton to discharge employees or to replace them if Local 103 did not accede to his demands and his threat to refuse to continue bargaining if the composing room employees honored the NMDU picket line were not incidental matters but direct impairments of employee Section 7 rights. Incidentally, the complaint alleges, as independent vio- lations of Section 8(a)(5), the October 22, 1981 warning by Laciura, the threat of discharge by Laura, the layoff of eight reporters in October 1981, the discharge of Rim and Macaluso, the refusal to reinstate the composing room employees on strike, and the lawsuit against those strikers as discussed below. As parties cannot be required to bargain collectively about unlawful acts, I fail to see how those warnings etc. separately can violate Section 8(a)(5). H. Alleged Unlawful Refusal to Honor Local 103's Claims for Striking Employees' Accrued Vacation Pay and Accrued Wagesfor Unused Personal Days The General Counsel contends that Respondent has unlawfully withheld from striking employees their vaca- tion moneys and wages for personal days accrued under the expired contract. The General Counsel separately contends that Respondent unlawfully has failed and re- fused to agree to arbitrate Local 103's grievances re- specting those claims. Respondent asserts that the amounts of moneys due employees for accrued vacation pay and for personal days are payable at the end of each year and depend on their rate of pay as of the time they are paid and not in accordance with the amount of their wages in the last year of the expired contract. Thus, Re- spondent asserts that Local 103's claims for vacation pay and personal days were premature and were matters for contract negotiations, not for the grievance arbitration procedure under the expired contract. On August 10, 1981, Local 103's president Callahan wrote to Respondent asking that it pay moneys owed its members for vacation pay and that such moneys should 3S Harley Davidson Motor Co., 214 NLRB 433, 437 (1974). as Cf. Trash Removers, 257 NLRB 945 (1981). 244 ALLBRITTON COMMUNICATIONS be paid in accordance with the agreement under which Local 103 members worked until February 10, 1981. On August 12, 1981, Callahan wrote essentially the same type letter to Respondent for payment of unused person- al days due Local 103 members pursuant to the contract in force at the time of the strike. The contract between Local 103 and Respondent News effective January 25, 1976, to January 24, 1981, provided for various vacation benefits, depending on length of service. Article II, section 22, of that agree- ment provides that pay for vacation shall be at the rate the employee is receiving at the time the vacation is taken. Article II, section 27, provides that each unit em- ployee shall receive 10 personal days each year and that days not used shall be paid for at the rate of scale of the shift of the employee by no later than December 31 of the following year. On September 10, 1981, William D. Toney, then chief spokesman for Respondent, answered those letters of August 10 and 12 and stated that Respondent has no way to determine what rate of pay should be used to satisfy those claims. He asserted too that the claims were pre- mature as payment, in his view, was not due until the end of 1981. Toney observed that, as Respondent and Local 103 have not reached agreement respecting the wages of the unit employees' wages, Respondent must deny the claims. On October 2, 1981, Callahan wrote Toney and asked a series of questions of him, eight in number. On October 13, Toney responded and in effect stated that Local 103 was evading the issues. He noted that Local 103's letter of October 2 referred to sick days' payments and that that claim had never been raised. By letter of October 15, 1981, Callahan wrote Respondent for a meeting of the "joint standing committee" as pro- vided for in the expired agreement to handle the unre- solved questions of payment of vacation pay and person- al days. Toney responded to that letter by writing Local 103 on October 21 to reiterate that the matters of vaca- tion pay and personal days are properly ones for collec- tive bargaining, not for grievance-arbitration. Toney also noted, under the terms of the expired agreement, payment for personal days does not accrue until Decem- ber 31, 1981, and, on that basis, he observed that Local 103's request for payment of personal days was prema- ture. On November 4, 1981, Local 103's attorney wrote Toney to advise that Local 103 would be present at the Federal mediation office on November 17 to conduct the joint standing committee meeting before getting into ne- gotiations on that date. Toney responded by telegram to advise that the November 17 date had been reserved for contract negotiations and not for a joint standing com- mittee meeting. On November 17, Toney and Local 103's representative agreed to handle the contract negoti- ations on that day and to defer the discussion as to Local 103's claim for vacation moneys and personal days. On November 25, Local 103's attorney wrote the American Arbitration Association requesting that it send a list of arbitrators, from whom the parties could select one to resolve the issues arising out of Local 103's claims for vacation pay and personal days pay. By letter dated De- cember 1, 1981, Toney wrote the American Arbitration Association to oppose Local 103's request for arbitration on the ground that the expired contract does not provide for arbitration of the bargainable items. By letter dated December 11, 1981, Local 103's attorney wrote the American Arbitration Association to advise that the issue Respondent raised is one that itself is arbitrable and which Respondent can raise before the designated arbi- trator. Testimony was offered before me that the parties were arbitrating those matters. 39 Implicit in the General Counsel's first contention, i.e.,-that Respondent unlawfully failed to pay accrued benefits, is that the calculation of the amounts due and the date that payment thereof is to be made are both matters that involve essentially contract interpretation, which in my view is best left to the arbitral process. 40 I find persuasive the General Counsel's alternate conten- tion that Respondent cannot lawfully resist arbitration on the ground that the wage rates involved are subject to bargaining while it was simultaneously failing to bargain thereon in good faith. Respondent thereby penalized its employees because they supported Local 103's aims. 4' I. Alleged Unlawful Suit by Respondent Against Striking Employees The essential facts are not in dispute. In March 1981 the composing room employees on strike discussed among themselves the fact that, in prior years, various employees of Respondent had obtained awards in worker compensation cases based on lung and chest ailments traceable to exposure at work over the years to asbestos, lead, and noxious fumes. Many of those striking employees met, in groups of three or more, with Local 103's attorney to consider whether they should pursue similar claims. Fifty-one of them elected to do so and each signed his own workers' compensation petition alleging that he incurred a permanent, partial disability based on longtime exposure at work to lead, etc. The publisher of Respondent News, John Buzzetta, testified that the moment he learned of those petitions he called a local attorney to have a suit started. On November 25, 1981, Respondent filed a complaint to institute a civil action in the Superior Court of the State of New Jersey. Each of the striking composing room employees was named as a defendant in that suit. Each was alleged therein to have conspired to file the workers' compensation claim to harass Respondent and, based on various counts alleging civil conspiracy, abuse of process and fraud, Respondent sought from each strik- ing employee compensatory and punitive damages and attorney's fees and costs. On December 10, 1981, Respondent amended that complaint to delete the names of those striking employ- s9 In its brief Respondent stated that the award issued in that proceed- ing. It is not appropriate for me to accept that representation or to con- sider the other comments in Respondent's brief as to such an award. 40 Cf. Collyer Insulated Wire, 192 NLRB 837 (1971). "t Cf. Vesuvius Crucible Co., 252 NLRB 1279 (1980). As discussed in the remedy section, no affirmative relief is provided in view of the ongo- ing arbitration proceeding. Were that proceeding not undertaken, the Board would have the ancillary power to interpret the contract to adju- dicate in full the unfair labor practice issue. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees who had not filed any worker's compensation peti- tion. Local 103's attorney filed answers on behalf of each of the defendants. As of the hearing in the instant case, that suit was in its pretrial stage. 42 The General Counsel asserts that the employees who filed workers compensation petitions in 1981 were there- by engaged in a concerted activity protected by Section 7 of the Act and that Respondent's suit against them un- lawfully interfered with the exercise of that right. Fur- ther, the General Counsel asserts that Respondent did not act in good faith in bringing that suit as it initially sued all the strikers and not just those who had filed workers' compensation petitions. Respondent asserts that en masse filing of such peti- tions where no objective medical data was offered to support them constituted a prima facie tort and that Re- spondent pursued that claim in good faith. The Board has held that the filing of workers' com- pensation petitions is an activity protected by Section 7 of the Act.4 3 It would seem that the lawsuit against the employees who filed workers' compensation petitions in the instant case had to interfere with and restrain them in the exercise of that right. The Board's approach is to nevertheless permit such interference with that right, in view of the "right to all persons to litigate their claims in court."4 4 In proper cases, however, the Board may act to curb a suit which has the potential for chilling pro- tected rights.4 5 The General Counsel urges that the in- stant case is one where the Board should act. I agree. The institution of the civil action initially against all striking employees and not just those who filed worker compensation petitions discloses Respondent's real moti- vation and that was underlined, in my view, by the fact that Respondent directed the filing of such an action im- mediately upon the filing of the petitions. In making that determination, I also have taken into account the oft- stated remarks by Respondent demonstrating its intent to penalize Local 103 for its activities among Respondent's employees. J. Alleged Promises to Encourage Local 103's Decertification The General Counsel contends that, about July 1, 1981, Respondent, by its Supervisor Lawrence Brock- lesby, promised benefits to employees to induce them to decertify Local 103 as their bargaining representative. In support of that allegation, the General Counsel called as a witness Steven Thompson. He testified as follows. He had been hired as a composing room employee in Febru- ary 1981 on a permanent basis. In June 1981 he had three 42 In its brief, Respondent made a statement as to developments in that case since the hearing closed in the instant case. Counsel for Local 103 then filed a motion seeking to place in evidence certain papers in that lawsuit which he asserted reflected more accurately the status of that case. Counsel for Respondent filed a response. As best as I can ascertain. certain counts of the complaint in the superior court civil action were dismissed and others were held to be sufficient under New Jersey law to warrant further proceedings. 43 Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979), enf. denied 635 F.2d 304 fn. 4 (4th Cir. 1980). 44 Clyde Taylor Co., 127 NLRB 103 (1960). 4* Bill Johnson's Restaurant, 249 NLRB 155, 164 (1980). conversations with his Supervisor Lawrence Brocklesby. Those conversations took place in Brocklesby's office and no one else was present at any of them. In the first conversation, he asked about raises, seniority, and other benefits and Brocklesby informed him that he would get back to him. At the second conversation, he asked again about those benefits and was told once again that Brock- lesby would get back to him. Several days later he again spoke to Brocklesby and asked if he was covered by the Local 103 contract. During that discussion, Brocklesby told him that, if Thompson would file a petition to de- certify Local 103, Respondent could get rid of it before the latter came to court sometime in January. During that discussion, Brocklesby told him that Thompson had to get more than half the people that he worked with to do away with Local 103 and that Respondent could then give employees pay raises and benefits and a better working environment. Thompson was discharged by Respondent in late August 1981. On November 25, 1981, he gave an affida- vit to an agent of the Newark office of the National Labor Relations Board and on November 30, 1981, filed the charge in Case 22-CA-11313. That charge gave rise to the allegation in the complaint before me respecting the alleged promise of benefit by Supervisor Brocklesby. Thompson had filed another charge with the Newark office of the National Labor Relations Board alleging that his discharge in late August 1981 was unlawful. He signed an affidavit respecting that matter on January 16, 1982, which revealed that in his work history he had been fired and reinstated on four previous occasions by Respondent before his final termination in August 1981. That charge had been dismissed by the Regional Office for insufficient evidence. On cross-examination, Thompson gave testimony which was confused about dates on which he had filed unfair labor practice charges. At one point, he indicated that he believed he had filed his first charge in August 1981 and as it turned out he was partially right. He had signed an unfair labor practice charge which was date stamped in August 1981 but, for some reason, it had not been docketed; instead, it was incorporated in another case file in the Board's Regional Office. Respondent called Lawrence Brocklesby to testify re- specting this allegation. Brocklesby related that he had had many discussions with Thompson pertaining to Thompson's work deficiencies. He said that Thompson had not really "made any complaints other than to say he wanted more money and did not like the idea of working Sundays." He was asked on direct examination whether he had any conversations with Thompson about the decertification of Local 103 and responded "never." On cross-examination he stated initially that he did not recall any conversation with Thompson where the issue of the Local 103 contract with Respondent News was brought up. When the matter was pursued, he testified that he took the Local 103 contract from Thompson in June 1981, put it in his desk without reading it, and told Thompson that he would have to talk with Respondent's lawyers or with Buzzetta, the publisher of Respondent News. He acknowledged further that Thompson had 246 ALLBRITTON COMMUNICATIONS asked him whether the employees under Brocklesby were covered by that contract and he told Thompson that he did not know and that Thompson would have to talk with the "lawyers and Mr. Buzzetta." He stated fur- ther that he did not remember whether he glimpsed at the first page of that contract and then stated he might have glanced at it and then thought he remembered that it was a Local 103 contract. Later on, he stated that Thompson threw that contract at him and that was why he did not read it. Then Brocklesby stated that Thomp- son threw the contract on the desk. I credit Thompson's account. He testified in a straight- forward manner as to the remarks made by Brocklesby to him in June 1981 about having Local 103 decertified. Brocklesby on the other hand testified on direct examina- tion that the only discussion he had with Thompson was about Thompson's work deficiencies, about getting more money and about not working on Sundays. On cross-ex- amination however he testified that Thompson tried to provoke an argument with him by throwing the Local 103 contract at him. Significantly too, the testimony ad- duced from Brocklesby on cross-examination respecting discussions about the Local 103 contract corroborated Thompson's testimony. In view of the foregoing, and as it appears that Brocklesby's testimony respecting his dis- cussions with Thompson on the Local 103 contract con- tradicted his initial denial respecting any such conversa- tions, I do not credit Brocklesby's summary denial when he was asked whether he had any conversations with Thompson about decertifying Local 103. Based on the foregoing credibility resolution, I find that Respondent, by Brocklesby, promised benefits to its employees to induce them to decertify Local 103 as bar- gaining agent of the composing room unit. CONCLUSIONS OF LAW 1. Respondent News, Respondent Dispatch, Respond- ent Allbritton, and T & T are each an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent News, Respondent Dispatch, and Re- spondent Allbritton (herein jointly called Respondent) constitute a single employer within the meaning of the Act and all three are liable for the unfair labor practices found in this case. 3. Local 103 and NMDU are each a labor organization as defined in Section 2(5) of the Act. 4. Respondent is not a joint employer with T & T of the mailroom employees/drivers in this case and thus did not unlawfully fail or refuse to bargain collectively with their representative, NMDU, or unlawfully lock them out, or unlawfully permanently replace them, or unlaw- fully refuse to reinstate them, or unlawfully withdraw recognition from NMDU or violate Section 8(a)(1), (3), or (5) of the Act respecting the mailroom employ- ees/drivers. 5. Respondent, by the warning given by Laciura, by the threats of discharge by Laura and Singleton, by the promises made by Brocklesby to induce an employee to act to decertify Local 103, and by the violations found below respecting Section 8(a)(3) and (5) of the Act, interfered with, restrained, and coerced, and is interfer- ing, restraining, and coercing, its employees as to their rights under Section 7 of the Act and thereby has violat- ed Section 8(a)(l) of the Act. 6. Respondent discharged its employee Dale Rim be- cause he refused to perform work normally done by Local 103 members on strike and Respondent thereby interfered with, restrained, and coerced him with respect to his right under Section 7 of the Act to refuse to per- form such work and Respondent thus violated Section 8(a)(1) of the Act; and because Respondent sought to discourage membership in Local 103, it thereby violated Section 8(a)(3) of the Act. 7. Respondent did not, by its discharge of Charles Ma- caluso from its employ, violate Section 8(a)(1), (3), (4), or (5) of the Act. 8. Respondent did not unlawfully parade or display striker replacements to signal to Local 103 members that any strike activity on their part or any further bargaining efforts by Local 103 would be futile and the complaint allegation thereon must be dismissed. 9. The composing room employees employed by Re- spondent have been engaged in a strike since February 13, 1981, which has been caused and prolonged by unfair labor practices committed by Respondent. 10. Local 103 has, on and since June 25, 1981, uncon- ditionally requested Respondent to reinstate to employ- ment the striking composing room employees and Re- spondent's failure and refusal since June 25, 1981, to honor those requests have discriminated against those employees in order to discourage them from continuing to support Local 103 and Respondent thereby violated Section 8(a)(3) of the Act. 11. Respondent laid off eight reporters in October 1980 and has failed to reinstate six of them in order to discourage its employees from joining or supporting Local 103 and Respondent thereby has violated Section 8(a)(3) of the Act. 12. (a) Respondent violated Section 8(a)( 3) and (5) of the Act by having delayed unduly the processing of Local 103's grievances as to vacation pay and wages for personal days it claims are due to composing room em- ployees as such delay was aimed at discouraging its em- ployees from supporting Local 103 and as it was in dero- gation of Respondent's duty to bargain collectively with Local 103. (b) Respondent did not unlawfully fail or refuse to honor those claims when presented as the amounts due and the due dates were best left to the arbitral process. 13. Respondent instituted and has prosecuted a civil action against its composing room employees because they supported Local 103 and to discourage them from pursuing their respective claims under the Workers Com- pensation Act and Respondent thereby has interfered with, restrained, and coerced its employees respecting their rights under Section 7 of the Act and in violation of Section 8(a)(1) of the Act. However, as Respondent and Local 103 were under no duty to bargain them, Re- spondent did not thereby violate Section 8(a)(5) of the Act. 14. All composing room employees, including data processing and technical service employees employed by 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent at its Paterson, New Jersey plant but exclud- ing all other employees, guards, and supervisors as de- fined in the Act constitute a unit appropriate for pur- poses of collective bargaining under the Act. 15. Respondent has failed and refused to bargain col- lectively, as defined in Section 8(d) of the Act, with Local 103 as the exclusive representative of Respondent's composing room employees and thereby violated Section 8(aX5) of the Act. 16. All full-time and regular part-time editorial em- ployees employed by Respondent at its Paterson and Union City plants, including editors, reporters, writers, chief photographer (Dispatch), photographers, librarians, desk assistants, typists and rewrite persons but excluding the executive editor, managing editor, associate editor, city editor, metropolitan editor, executive sports editor, sports editor emeritus, contract service for racing, Span- ish editor, photo editor, office clerical employees, confi- dential employees, including the secretary to the execu- tive editor, professional employees, guards and supervi- sors as defined in the Act and all other employees consti- tute a unit appropriate for collective bargaining within the meaning of the Act. 17. (a) It is appropriate that Respondent bargain col- lectively from October 24, 1980, with Local 103 as the exclusive representative, for purposes of collective bar- gaining, of the employees in the unit described above in paragraph 16. (b) Respondent has failed to bargain collectively with Local 103 since on and after it received Local 103's demand and thereby violated Section 8(a)(5) of the Act. 18. It is also appropriate for reasons discussed under the remedy section to issue a broad remedial order against Respondent. 19. Respondent did not violate Section 8(a)(1) of the Act by the allegedly unlawful display of strike replace- ments or its allegedly unlawful threat to replace employ- ees if they engaged in a strike or its allegedly unlawful threat to refuse to bargain with Local 103. 20. Respondent did not violate Section 8(a)(5) of the Act by discharging eight reporters in October 1981, by discharging Dale Rim or Charles Macaluso, by warning or threatening employees, by its failure to reinstate unfair labor practice strikers on their unconditional application therefor, by its refusal to pay claims for vacation pay and for pay for unused personal days, or by having instituted and prosecuted a lawsuit against striking composing room employees as Respondent and Local 103 had no obligation to bargain as to such threats, discriminatory discharges, and so on. 21. Respondent, as it is not a joint employer with T & T of the mailroom employees drivers, did not violate Section 8(aX1), (3), or (5) of the Act as alleged in para- graphs 32, 35, 36, or 38 of the amended complaint. 22. The unfair labor practices above whereby Re- spondent was found to have violated Section 8(aX)(1), (3), or (5) of the Act affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. Respondent shall be required to offer to the six report- ers laid off in October 1980, who have not been recalled, immediate and full reinstatement to their former position or, if those positions no longer exist, to substantially equivalent positions without prejudice to seniority or any other rights and privileges and Respondent shall make all eight reporters whole for any loss of earnings they may have suffered as a result of their having been laid off by payment to each of them of a sum of money equal to which each, respectively, would have earned but for being laid off, less net earnings, to be computed on a quarterly basis in the manner set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950), and with interest there- on computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).46 Respondent shall offer reinstatement to Dale Rim on the same basis and similarly make him whole and Re- spondent shall expunge any reference to his discharge from its personnel file and so notify him.4 7 Respondent shall offer to each of the employees who began a strike on February 13, 1981, immediate and full reinstatement to the jobs they held immediately before February 13, 1981, or if those jobs no longer exist to sub- stantially equivalent jobs without prejudice to their se- niority or any other rights or privileges previously en- joyed, discharging, if necessary any replacements hired in their places, and make the striking employees whole for any loss of earnings they may have suffered by reason of the discrimination against them by paying them backpay from and after the date they unconditionally of- fered to return to work, computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest thereon computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977)."4 Respondent shall, on Local 103's request, cancel any change in the rates of pay, hours, wages, or other terms or conditions of employment of its composing room em- ployees made on or after February 10, 1981, and shall re- instate such rates or pay, hours, wages, and other terms and conditions of their employment as existed prior to that date but this shall not be construed as requiring Re- spondent to reduce any rates of pay, wages, or any bene- fit without a request thereon from Local 103.'49 As discussed earlier in this decision, a Gissel bargaining order shall issue to Local 103, effective October 24, 1980, as representative of the editorial employees of Re- spondent. Respondent shall be ordered to withdraw the com- plaint, and amendments thereto, that it filed with the Su- perior Court of New Jersey against the composing room employees and shall reinburse them for all legal fees, ex- penses, and costs they incurred in defending that matter. 45 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 47 Sterling Sugars, 261 NLRB 472 (1982). " Isis Plumbing Co., supra. As Respondent rejected the offer, backpay shall be calculated from the date of the offer, June 25, 1981. See Interno- tional Business Systems, 258 NLRB 181 (1981). 4" See Alondra Nursing Home, 242 NLRB 595 (1979). 248 ALLBRITTON COMMUNICATIONS 249 To insure that all affected employees are made aware employees the provisions of the attached notice, is of their rights, Respondent shall mail to each of its em- denied as unduly cumulative. ployees on strike a copy of the notice to employees at- However, Respondent's proclivity to violate the Act tached hereto, in addition to posting copies of that and the fact that it demonstrated a general disregard for notice, as provided for herein. employees' fundamental statutory rights warrant broad The General Counsel's request for extraordinary relief, injunctive relief. s0 including a request that Respondent's official read to the 'O Hickmott Foods, 242 NLRB 1357 (1979).