Prentice-Hall, Inc.

646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Prentice-Hall, Inc. and District 65, United Automo- bile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 22-CA- 11259 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On November 19, 1984, Administrative Law Judge Robert T. Snyder issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party filed briefs in response to the Re- spondent's 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 and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative 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 reversing the findings. The judge's decision contained several minor errors which do not affect his analysis or our decision: (I) In sec. 11,C, the judge erroneously stated that Michael Senick acted as the primary negotiator for the Union in its negotiations for a second LLSD contract. The record reflects that Bernice Krawczyk acted as the primary spokesperson in that negotiation. (2) In sec . II,D,9, the judge inadvertently identified an employer proposal as having been made on July 12 rather than August 12, as the record re- flects . (3) In sec . 11,D,10, the judge stated that the bargaining unit con- sisted of approximately 50 employees "when bargaining first began," al- though the record reflects that there were 50 employees in the bargaining unit at the time of the representation election and is silent with respect to the number in January 1981 when bargaining commenced. (4) In sec. 1I,13,13, the judge stated that the second LLSD contract had been signed "even as the CSD negotiations continued." The record reflects that the second LLSD contract was reached some 6-1/2 months after the CSD negotiations had been broken off. (5) In sec . 11,E, fn. 83, the judge inad- vertently used October 18 rather than November 18 as the date on which the Respondent filed its RM petition. 2 We disavow the judge's statement in fr,. 27 of his decision that as early as June It, 1981, the parties reached impasse on the management- rights issue, and his statement in fn. 93 that the Respondent's alleged delay in scheduling or attending bargaining meetings reflects on its moti- vation . Further, we disavow the judge 's reliance on the manner in which the Respondent's counsel conducted direct and cross-examination of wit- nesses during the hearing either as a basis for discrediting Joseph Kelly's testimony or as evidence of the Respondent's bad-faith bargaining. In addition , although we adopt the judge's finding that the Respondent had asked the Union to poll employees on the issue of the waiver of cer- tain Sec . 7 rights, we find it unnecessary , in view of our disposition of the case, to address this matter . Accordingly, we do not rely on the judge's discussion of NLRB Y. Magnavox, 415 U.S . 322 (1974), and Roma Paper Products, 220 NLRB 519 (1975), as it relates to this waiver issue. In adopting the judge's conclusion that the Re- spondent engaged in bad-faith bargaining, we have strictly applied the principles set forth in Reichhold Chemicals, 288 NLRB 69 (1988). We therefore dis- avow any reliance on the judge's reasoning to the extent that it may suggest that we will scrutinize wage offers to see if they are sufficiently generous, that we would require some substantial explanation for every concession that an employer declines to make, or that we believe that an employer is bar- gaining in bad faith if it does not offer all the bene- fits to one bargaining unit that it has offered to an- other. We agree, however, that it is reasonable to infer from the totality of the evidence that the Respond- ent had no real intent to reach a collective-bargain- ing agreement with the Union. Rather, it behaved as if it was counting on the chance that the slim majority by which the Union won the election (a fact the Respondent's negotiator commented on more than once) and the passage of the certifica- tion year without any real prospect of a contract would culminate in a sufficient expression of em- ployee dissatisfaction to permit the Respondent to do what it finally did when the certification year ended-withdraw recognition on the basis of an as- serted good-faith doubt of union majority. It is important to recognize at the outset that the employees possess, by virtue of the Union's certifi- cation, the right to strike or negotiate or both over every workplace grievance and to demand that the Employer give advance notice and a meaningful opportunity to bargain over any change it makes in the working conditions of unit employees (other than those basic shifts in the shape or direction of the business that are not mandatory subjects of bar- gaining). An employer of course may seek waivers that will eliminate or restrict the exercise of these rights during the term of a contract, but the Re- spondent's demands for sweeping waivers-viewed in the light of what it was offering in exchange- simply are not the behavior of an employer who is trying to achieve a collective-bargaining agree- ment. In this connection, we agree with the judge that the combination of the Respondent's proposals on management rights, grievance and arbitration, "sole recourse," and prohibitions against strikes rendered substantial portions of the proposed con- tract virtually unenforceable. Finally, our basis for inferring bad faith is strengthened by the Respondent's tactic of pretend- ing to concede on some matter particularly object- ed to by the Union, while retaining essentially the same provision in another clause in the Respond- ent's overall contract proposal (or transferring the provision to another clause), e.g., its deletion from 290 NLRB No. 79 PRENTICE-HALL, INC. the seniority article of disciplinary action as a ground for loss of seniority while effectively retain- ing it in the Rules and Corrective Discipline arti- cle. This method of bargaining tended to stretch out the negotiations because it produced renewed controversies over old ground. In sum, we acknowledge that the Respondent's negotiators appeared regularly at the bargaining table and that the negotiations resulted in move- ment and agreement on some subjects, but we are persuaded by the totality of the record evidence that the Respondent was not negotiating in good faith with a view to trying to reach a complete agreement with the Union. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Prentice- Hall, Inc., Englewood Cliffs, New Jersey, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. William F. Grant, Esq., for the General Counsel. James D. Madigan III and John D. Canoni, Esgs. (Town- ley & Updike), of New York, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. This case was tried before me in Newark, New Jersey, on September 13, 14, 16, 22, 23, and 28, 1982. The com- plaint, which issued on January 13, 1982 ,' alleges that Prentice-Hall, Inc. (Prentice-Hall, Company, or Re- spondent) violated and is violating Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), by nego- tiating with District 65, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union or District 65) in bad faith and with no intention of entering into any final or binding collective-bargaining agreement, and by withdrawing and withholding recog- nition from the Union. In its answers to both the original and amended complaint, Respondent denied the conclu- sionary allegations of violation of the Act. The General Counsel and Respondent each filed posthearing briefs. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the posthearing briefs filed by the parties , I make the fol- lowing i Another complaint, in Case 22-CA-I1298, with the same Charging Party and issued against the same Respondent , was first consolidated for hearing with the instant complaint by order and issuance of an amended complaint on January 25, 1982 , and then later ordered severed by the Re- gional Director on motion made by Respondent. FINDINGS OF FACT 647 1. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent is a corporation2 engaged in the publica- tion, sale, and distribution of books and other printed matter. At all times material it has maintained its princi- pal office and place of business in Englewood Cliffs, New Jersey, the only facility involved in this proceed- ing. Annually, Respondent, in the course and conduct of its business operations, publishes, sells, and distributes at the Englewood Cliffs facility books and other printed products valued in excess of $50,000, of which books and other printed products valued in excess of $50,000 are shipped from the facility in interstate commerce directly to points outside the State of New Jersey. Respondent admits, and I find, that Prentice-Hall is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits, and I find , that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Bargaining History with Prentice-Hall By the time District 65 organized the composition services department (CSD or the unit), it had already or- ganized two other units at Prentice-Hall: a small clerical unit in a subsidiary just outside Boston , and the attorney- editors in the looseleaf services division (LLSD) located in Paramus, New Jersey. The clerical unit had signed its first bargaining agreement in September 1980, and the LLSD's first contract was in effect from June 1, 1980, until May 1, 1982. Negotiations for a second LLSD con- tract began in late March or early April 1982 and, fol- lowing a brief strike immediately following the expira- tion of the first agreement, a new agreement was signed. B. The Unit The CSD was created by Prentice-Hall a decade before this case arose as an in-house alternative to pri- vate vendors for preparing manuscripts . The depart- ment's employees perform typesetting , proofreading, and pasteup tasks for which they compete with outside ven- dors. The overwhelming majority (95-96 percent ) of this work is performed by outside vendors. In September 1980, the Union filed its petition with the National Labor Relations Board (Board) to represent CSD employees. Prentice-Hall and District 65 entered into a stipulation for certification upon consent agree- ment for an election that was held on November 6, 1980. Twenty-five of the 48 employees who participated in the election3 voted in favor of representation , and on No- 2 Respondent filed two answers, one to the complaint , and another to the amended complaint . In its answer, Respondent admitted to being a corporation organized under the laws of New Jersey, and in its amended answer to being a corporation organized under the laws of Delaware. Be- cause Respondent admits jurisdiction, and I so find , I have not resolved this inconsistency. ® Apparently, the unit consisted of 50 employees at the time of the election. Later, at the time of this litigation , CSD employed only 35 em- ployees 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vember 17, 1980, the Board certified a unit consisting of all full-time and regular part-time advertising production coordinators, camera operators, compositors, pasteup art- ists, system operators, quality control personnel, control clerks, and proofreaders employed by the Employer in its CSD at its Englewood Cliffs, New Jersey facility but excluding all managerial employees, confidential employ- ees, casual employees, watchmen, guards and supervisors as defined in the Act, as appropriate for purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. C. Bargaining Participants, Procedures, and Respondent's Notes of the Sessions Throughout the negotiations each party was represent- ed by a chief negotiator accompanied by a negotiating team. Michael Senick and Joseph Kelly were the pri- mary negotiators for the Union and Respondent, respec- tively. Kelly was Respondent's vice president in charge of human resources. He had experience as both a negotiat- ing committee member and as the principal spokesperson in contract negotiations for two other employers before coming to Prentice-Hall. Prior to becoming employed by District 65, Senick, an attorney, had been an employee in Prentice-Hall's LLSD for 5-1/2 years. While still an LLSD employee he had been a member of that unit's negotiating committee for their first contract. The CSD negotiations represent the first time Senick had acted as the chief spokesperson in contract negotiations. He subsequently was the primary negotiator for the Union in its successful negotiations for a second LLSD contract.4 Kelly's committee was comprised of John Canoni, a partner at the law firm of Townley & Updike, with ex- tensive background in contract negotiations; Peter Aschoff, manager of CSD; Michael Sweet, a participant in first contract negotiations between Respondent and LLSD; and James Madigan, an associate with Townley & Updike with no previous experience in collective bar- gaining. This committee remained intact throughout the course of the negotiations, although not all members were present at all sessions. Senick's committee consisted primarily of unit employ- ees and its composition- varied from one meeting to the next. Bernice Krawczyk also attended some of the ses- sions before July 1981. She was in charge of District 65's publishing division and was Senick's supervisor at the Union. Negotiations were initiated by Senick by letter in mid- December 1980. Kelly responded to this request by send- ing a letter offering two dates in mid-January for com- mencing bargaining. The parties ultimately met on Janu- ary 22, 1981, and continued to meet at intervals until No- vember 5, 1981. ° All reference to the LLSD contract are to the first bargaining agree- ment which was in effect from June 1 , 1980, until May 31, 1982, unless otherwise noted. Early in their negotiations, the parties agreed on ground rules for conducting their meetings.5 It was also agreed that economic issues would be deferred until later in the negotiations. At the first session the Union gave Respondent's com- mittee a package of most of its proposals. Over the course of the next several sessions these were presented by various union committee members who explained the rationale behind each proposal and answered questions. Respondent later responded by delivering its own pro- posals and an explanation of its rationale for each. Over the course of their meetings, tentative6 agree- ment was reached on many issues,7 but 15 proposals re- mained unsettled when negotiation broke down. These were: management rights, no-strike rules and corrective discipline, union security, arbitration, wages, seniority, subcontracting, jury duty, medical and life insurance, complete agreement, term of agreement, successors and assigns, holidays for part-time employees, and credit union checkoff.8 During the course of negotiations, Michael Sweet, a member of Respondent's negotiations team, made notes of each bargaining session. Kelly relied on these notes to refresh his recollection of the parties' negotiations when he testified at the hearing before me. (Tr. 1118.) At the conclusion of Kelly's direct testimony, Respondent pro- duced the notes in response to the General Counsel's re- quest. The General Counsel introduced these notes into evidence and they were admitted, without limitation, as to what was said at the meetings. (G.C. Exh. 7, Tr. 1127-1130.) In its brief the General Counsel urges that the notes be relied on as an accurate representation of what occurred at the bargaining table. Respondent's counsel, Canoni, confirmed that the notes reflect what transpired at the meetings, "at least as reflected by the minutes." (Tr. 1127.) I have noted that the minutes are not necessarily complete and have relied on them only when they con- flict with or supplement the testimony given at the hear- ing. D. Areas in Dispute 1. Jury duty On February 26, the Union presented its proposal for handling employees called to jury duty: 5 These included, inter alia, recognition of full authority of Kelly to ne- gotiate and initial tentative agreements , and the requirement that Pren- tice-Hall's executive committee and a majority of unit members present on behalf of the Union approve and ratify and contract. 6 Tentative because final agreement on any single issue was clearly contingent on agreement on a contract as a whole. r Agreement was reached on 23 proposals between April 1, and No- vember 5, 1981. In the order in which they were agreed on they were: military service, savings clause (April 1); no discrimination, job posting (May 12); visitation rights, probationary period (May 27); access to records, overtime, information (June 6); recognition, leave of absence (June 11): personal days (June 24); profit sharing (July 16); bulletin board (July 23); bereavement leave (August 12); grievance procedure (Septem- ber 3); sick leave, holidays, severance pay (September 24); other benefits, vacations (October 22); union stewards, workweek (November 5). 8 A 16th proposal, proposed by the Union on February 12 and dis- cussed briefly on March 12, entitled health and safety, was never raised again by the Union. PRENTICE-HALL, INC. 649 An employee called to serve on Jury Duty or to appear as a witness in any legal proceeding shall re- ceive his or her regular weekly salary during the period of such service. Senick characterized this clause as essentially embodying the Company's current policy as expressed in YAYCO.9 Respondent's counterproposal, presented at the May 12 meeting, limited paid time off for jury duty to 10 days, permitted the Company to require verification from the clerk of the court , required 24 hours' notice to the Company, required the employee to report to work if released from duty during the workday, and was appli- cable only to persons whose 'employment exceeded 1 year. After some discussion and a union counterproposal, Respondent dropped its 1-year requirement but restricted jury duty benefits to employees who had completed their probationary periods, and substituted "prompt" notice for its 24-hour notice requirement. By September 3, conflict over this clause centered on the proposed 10-day ceiling on paid jury duty leave per calendar year. Kelly asserted that this limitation was consistent with the Company's current policy, although on cross-examination he admitted that it was not express- ly included in YAYCO. His explanation for this discrep- ancy was that YAYCO merely set forth nonbinding company policy but a contractual agreement was obliga- tory and to avoid future misunderstandings should be ex- plicit. Furthermore, Kelly asserted that CSD employees abused paid absences more than other company employ- ees, and that because the cost to the Company tied into the total economic cost of the contract as a whole, the current proposal was reasonable . Kelly also stated that he had no obligation to propose anything in YAYCO. As previously noted, before becoming a union negotia- tor, Senick had been an employee with Prentice -Hall's looseleaf editors division for 5-1/2 years. In response to Kelly's assertions, he stated that he was never aware of any time limitation on jury duty benefits during his tenure of employment , that no such limitation was im- posed under the terms of YAYCO, and that he would not accept less than what other Prentice-Hall employees enjoyed. On cross-examination, Kelly, who admitted that there was no time limit imposed on paid jury duty in the LLSD contract, reasoned that in the editors' unit 85 per- cent of the employees were attorneys and here not eligi- ble for jury duty. There was no further discussion of the jury duty clause following the October 22 meeting. 2. Successors and assigns At the March 12 meeting, Senick explained that the purpose behind the Union's proposal was to bind succes- sors and assigns to the terms of the contract and thereby avoid "being transferred into lawsuits" in the event of a transfer of CSD. In addition to binding its successors and assign under the clause, Respondent would also be re- 9 "YAYCO" is an acronym for "You and Your Company ," which is essentially the Company's benefits handbook. quired to give a 30-day notice of its intention to sell the business and, further, not to sell unless and until the pur- chaser first agreed to accept and assume in writing all terms of the agreement and to continue all existing rights of the employees. Kelly agreed to return with other lan- guage. On April 21 Kelly informed the Union that this issue was covered by the management-rights clause where the Company reserved the "sole right to discontinue tempo- rarily or permanently, in whole or in part, the operation of its business or to sell part or all of such business oper- ation." Under these terms Prentice-Hall would retain the unconditional right to sell or otherwise dispose of its business. The Union's desire to condition a sale or other transfer of CSD on the purchaser's acceptance and assumption in writing of the contractual terms established by the con- tract was in direct conflict with Respondent's desire to retain the unabridged right to dispose of this part of its business. Senick asserted that language binding succes- sors to the contract was common, and Kelly countered that it was not in every contract.10 On May 12 Kelly offered what was to be Respond- ent's final proposal on this topic. This clause obligated Respondent to notify the Union 30 days prior to the sale or other disposition of CSD, as had been proposed by the Union in its prior proposal . Unlike the Union's clause, however, it did not bind the successor to the con- tract between CSD and Prentice-Hall and Senick object- ed to it on this basis. Senick presented a new proposal on July 16: "This agreement shall inure to the benefit of and bind the par- ties and their successors and assigns ." He characterized this language as a "very simple clause that's included in most agreements." 1 1 Kelly formulated numerous hypothetical situations and inquired what the application of the clause would be in each case. It soon became clear that Senick had not an- ticipated all possible scenarios to which the clause might be applied . This discussion was soon terminated by Senick who admitted his lack of competence to respond to Kelly's questions regarding the legal consequences in specific circumstances. No new proposals on successors and assigns were ex- changed after July 16. Although it was discussed briefly on three more occasions, 12 no further substantive com- ments were made by either party. 3. Medical and life insurance Among the Union's initial proposals was a clause con- tinuing the employee's current level of benefits from the Company, and adding dental, optical, and prescription 10 At least two of a group of contracts that Respondent offered in evi- dence, in the publishing field, contain such clauses, Winthrop Publishers, Inc, a subsidiary of Respondent , and Amuo School Publication.. Inc. " The terms of the proposals in these negotiations were frequently compared with those finally agreed on in the LLSD contract. That col- lective-bargaining agreement contains no provision dealing with succes- sors and assignees. 12 July 23 and 24 and October 5. 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD coverage equal to or greater than that provided by the Union's own insurance plan (District 65-Security Plan). At the February 26 meeting, Senick defined this topic as an economic area and indicated a preference to defer further discussion of the clause until a later date. Howev- er, the Union did turn over a copy of its insurance plan, including the costs to the employer associated with it. Senick also responded to questions put to him by Kelly concerning the Union's plan dental, optical, and prescrip- tion coverage at the March 12 session. Senick also agreed to supply additional information so Kelly could compare the union plan's coverage and its cost to other plans. On July 8 Bernice Krawczyk made a presentation on the optical and dental benefits under the District 65 plan then in effect. Respondent's first proposal on this issue was given to the Union on May 12. It continued the current coverage enjoyed by the employees, but did not add any of the ad- ditional benefits sought by the Union. The Company's clause expressly excluded matters involving insurance benefits from arbitration. The Union dropped its demand for the prescription benefits from its proposal on July 8. Senick stressed the importance of dental and optical coverage. On July 16 Kelly presented a company proposal which would give CSD employees the optical and dental cov- erage under the District 65 plan only if Respondent de- cided to extend some dental and optical coverage to other company employees in Bergen County, New Jersey. Kelly would not comment on whether ther were existing plans to cover other employees and admitted that other employees could get greater coverage than that provided under the union plan , while CSD employ- ees would be limited to that plan's benefits. The entire clause as provided for by the Company was not subject to arbitration under the agreement. The Company's notes reflect that Senick pointed out at the July 16 meeting that this lack of arbitrability was pre- venting the Union from agreeing to the clause. The question of arbitrability of dispute arising under this clause was discussed further on July 21. At that meeting the Union submitted to the Respondent the same clause previously offered by Respondent, but without ex- cluding arbitration . Kelly expressed concern over the Company's becoming involved in an arbitration of ad- ministrative matters outside its control . Senick acknowl- edged the validity of this concern and expressed his will- ingness to look at a proposal excluding problems with the insurance carrier from arbitration. At the August 12 meeting Kelly reported that the Company would remain with its earlier proposal because he was unable to come up with acceptable language. However, he did invite the Union to submit a proposal for consideration. Senick responded on September 3 with language excluding insurance matters "within the sole control of the insurance carrier . . . [from] the grievance or arbitration provisions of the contract." Kelly objected to this language, saying it was "too general," but agreed to look into it. On September 24 he returned to the table, restated his position that the lan- guage proposed by Senick was too broad, and that, be- cause he too had been unable to come up with accepta- ble language, Respondent's earlier proposal continued to be its position on this clause. On October 5 the parties' positions were clearly polar- ized on the question of arbitration . Kelly was particular- ly concerned about frivolous grievances. He maintained that the entire clause should not be subject to arbitration and placed the onus on Senick to convince him other- wise. In support of his position Kelly cited the Union's history of filing frivolous grievances, t 3 and expressed an unwillingness to permit grievance and arbitration for this small segment of the employees complement when the remainder of the employees had no such coverage. At their next meeting, held November 5, Senick ex- pressed doubt that any agreement could be reached on this question unless one of the parties changed their posi- tion. Neither had and they scheduled a future meeting for November 19.' 4 4. Grievance and arbitration Grievance and arbitration were first introduced by the Union in a single clause containing a four-step process for resolving disputes. The Company's proposal, submit- ted on April 21, treated the two clauses separately. Each of these clauses was discussed on numerous occasions during the course of negotiations , and agreement was eventually reached on the grievance clause. The arbitra- tion clause remained unsettled when negotiations ended in November. When the Union's proposal for a grievance and arbi- tration clause was first presented at the bargaining table on February 12, Senick told Respondent 's negotiating team that this clause was one of particular importance to the unit because it allowed for an orderly resolution of problems arising both under the contract and in the workplace in general. Kelly objected to the absence of time limits for employees to raise grievances on the grounds that time constraints would help eliminate the frivolous grievances the Union had a history of bringing against the Company.' 5 " See discussion , sec. 1I,D,4 at fn . 15, infra, regarding the Respond- ent's claims about its excessive arbitration burden and costs in the LLSD unit 14 This meeting never took place and November 5 was the final nego- tiation session '" In the bargaining notes, Kelly refers to District 65's history of filing frivolous grievances over promotions This reference pertains to the arbi- tration proceeding between the LLSD and Prentice-Hall which had taken place on 14 days between October 31 , 1980, and January 19, 1981. The grievances, filed by 13 employees , were all dismissed by the arbitra- tor who found that Respondent had not violated the provisions of the collective-bargaining agreement when it refused to promote , upgrade, or reclassify the grievants under the terms of position description referred to but not set forth in the bargaining agreement , and that the Union was seeking to obtain, through arbitration , remedies it should have and failed to obtain in negotiations . Kelly implied that time limits would have barred these grievances on procedural grounds , thereby saving Respond- ent the time and expense of arbitration On cross-examination Kelly esti- mated the cost of these proceedings at approximately $50,000; $3000 ac- tually paid to the arbitrator, and $47,000 in costs of management's time and legal fees directly attributable to the proceedings . (Tr. 873-875 ) With this kind of history, one would have concluded that , for the succes- sor LLSD agreement, the Company would have insisted on more strict time limitations for pursuing grievances at each step of the process Yet, a close examination of the two LLSD agreements in evidence reveals that Continued PRENTICE-HALL, INC. Shortly before the April 1 negotiations, Respondent had given the Union its package of proposals . Respond- ent's initial arbitration proposal permitted either party to seek arbitration, but only after the grievance procedure had been exhausted without yielding a satisfactory reso- lution of the dispute and after notice had been given to the other party. A mutually agreed-on arbitrator would then make a decision and finding , which would be final and binding on the parties. The grievance and arbitration procedures would be the "sole and exclusive means for the settlement of all disputes that may arise between [the parties]." The substantive provisions of the proposal denied the arbitrator the authority to modify the contract and limit- ed the scope of its interpretation. The arbitrator could not construe the contractual provision in question in any way that was inconsistent with the management 's-rights clause.16 In a conflict between management rights and after the complained-of arbitration proceeding, the new (1982-1985) LLSD agreement contained more liberal time limits for processing griev- ances at steps 2 and 3 and to final and binding arbitration However, the successor agreement does contain a more detailed management -rights clause which , inter alia, specifically reserves to the Company the sole right to promulgate, revise, and change position descriptions as it deems necessary or advisable-the very subject matter to which the Union had asserted claims of breach in the unsuccessful LLSD unit arbitrations. 16 The original management-rights clause read as follows: MANAGEMENT RIGHTS 2.0 Prentice-Hall shall have the right to promulgate position de- scriptions, work rules and procedures relating to employment, and to revise and change such descriptions, rules and procedures from time to time as it deems necessary or advisable. 2.1 Prentice-Hall shall have the sole right : to conduct its business, direct and control its operations and manage its affairs as it deems necessary and/or expedient ; to hire; to discharge; to layoff, to sus- pend, to promote, to demote, to assign duties to; to transfer employ- ees; to increase or decrease the work force ; to abolish; restructure or rearrange departments, functions, and operations, to transfer equip- ment, personnel and operations to other locations ; to schedule work; to train personnel; to assign and change the work , duties, and job functions of specific employees including supervisors , to alter and/or change the type and nature of its operations ; to promote and main- tain efficiency in its operations or methods, to determine the materi- als to be produced or worked on by employees or by outside con- tractors or at other facilities; to determine the number, locations and sub-division of the department that may operate , to move the unit or any of its parts or areas to other areas or locations, to determine the schedules of production; to maintain order and efficiency at its oper- ations; to determine the qualifications of employees; to determine job content; to determine the starting and quitting time , to determine the number of hours to be worked , to introduce new equipment , machin- ery or processes; to discontinue, temporarily or permanently, in whole or in part, the operations of its business or to sell part or all of such business or operations; to decide the nature of materials, serv- ices, supplies, equipment , or machinery to be used ; to subcontract any or all of the operations, present or future ; to determine the number of employees assigned to any particular operations, to deter- mine the work place; to establish performance standards and evalu- ate employees; performance based on the standards , to establish, change, combine or abolish job classifications and the job content of any job classifications; to determine when overtime shall be worked and to require overtime, and to carry out the ordinary and custom- ary functions of management No such rights or authority shall be deemed waived or modified in whole or in part unless such waiver or modification is in writing and signed by the parties hereto. 2.2 Management shall have all other rights and prerogatives in- cluding those exercised unilaterally in the past even though not par- ticularly enumerated above 2.3 The failure of Prentice-Hall to insist upon a strict performance of any of its rights under, or of any of the terms or conditions con- 651 any article or provision of the agreement the parties agree their intent is for management rights to prevail. In addition, the arbitration proposal called for the costs of the arbitration proceeding to be paid by the loser, or, if there was no clear resolution, to be shared equally by the parties. Backpay awards would be limited to the grievant's regular compensation, less any unem- ployment or other compensation he could have received from any source during the relevant period. However, no award could date back further than the date that the cause of the grievance arose or the date before it was first reduced to a written presentation-whichever was later." Each arbitration proceeding would be limited to one grievance from one employee, unless the parties had agreed, in writing, to the contrary. Senick responded at the April 1 meeting by introduc- ing another proposal . According to the Company's bar- gaining notes, he identified several problems that the Union had with management's grievance and arbitration clauses and stated that in its new proposal the Union had attempted to address both its own and the Company's concerns.' 8 Senick noted specifically that the Union had a problem with the time limits imposed by Respondent's grievance and arbitration proposals. The newest union arbitration proposal allowed either party 20 days from the date of receiving a response to the last step of the grievance pro- cedure to submit the grievance to arbitration. The Com- pany's proposal had allowed only 10 days from the date the final step in grievance was initiated and required 2 days' notice from the Union of its intention to file with the American Arbitration Association (AAA). Senick also disagreed with Respondent's proposed lan- guage requiring that a mutually agreed-on arbitrator hear their disputes. He pointed out that this language was a modification of the voluntary rules of the AAA that the Union proposed be adopted.19 Kelly testified that his goal in .these negotiations was to settle disputes at the bargaining table and to get a con- tract that could be administered with a minimum of dis- putes and resort to costly arbitration.BO Concern was tained in, this Agreement shall not be deemed a waiver or modifica- tion of such rights or remedies nor shall it be deemed a waiver or modification of its rights to insist upon a strict performance of all the terms and conditions of the Agreement thereafter 2.4 Should the Union at anytime hereafter enter into an agreement with any publishing company or composition company operating within the Greater Metropolitan New York area or any other area served by Prentice-Hall, or should the Union in the case of any pub- lisher or composition company with which it has a contract , counte- nance a course of conduct by such company enabling it to operate under more advantageous terms and conditions than is provided for in this Agreement, Prentice-Hall, party to this Agreement, shall be privileged to adopt such advantageous terms and conditions. 17 It is obvious that, as a practical matter, the date on which the griev- ance is filed will never precede the date on which it arose On May 12, the notes show that Senick "agreed" that the award should be backdated to the date on which the grievance occurred 1" The Union's proposal on this date still addressed grievance and arbi- tration in a single article. This immediate discussion will not address the grievance provisions unless necessary to clarify any references to the ar- bitration provisions. ' S The voluntary rules were not placed in evidence by either party. 20 Again Kelly's position was grounded in the Company '% prior experi- ence with District 65's looseleaf editor 's unit described supra 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also expressed about the length of such proceedings. He also testified that there were other available means of en- forcing the contract without arbitration- for example, in the courts as a contract suit. (Tr. 871.) This testimony is directly contradicted, however, by the language of para- graph 6.1 of its arbitration proposal, maintained by Re- spondent to the very end, which provides that "It is the intent of the parties that the procedure set forth here and in Article 5, Grievances shall serve as the sole and exclu- sive means for the settlement of all disputes that may arise between them. [Emphasis added.]" Indeed, under questioning by me Kelly admitted that under paragraph 6.1 and paragraph 4.5 of Respondent's final proposal on rules and corrective discipline (the sole recourse for res- olution of disputes regarding discipline and discharge shall be the grievance procedures, with absolutely no re- course to arbitration),21 the Union could not bring a lawsuit disputing a Respondent disciplinary action and would be limited to grieving a disciplinary action, with- out any further recourse following the Company's rejec- tion of it. (Tr. 1290.) In any event, it is also interesting to note that Kelly subsequently acknowledged that court suits were more expensive than arbitration and that the Company's negotiating committee never compared the length of arbitration to that of a court suit. (Tr. 882.) On April 21, Prentice-Hall gave the Union another copy of its original article, with one very minor change. This proposal adopted the Union's language that the time limit for submitting a grievance to arbitration would begin to run from the date of the response after the final step in the grievance procedure. The limit itself remained the same (10 days) with 2 days' notice of the Union's intent to Respondent , but no reciprocal obligation on Re- spondent's part.22 The discussion again turned to the process of selecting an arbitrator. Senick again advanced the AAA selection process, arguing that it was fair and workable and pref- erable to delaying an arbitration. Kelly asserted that it was unlikely that both sides would exhaust list after list and that to argue otherwise was "simply a lack of trust." Senick moved on and noted problems with Respond- ent's proposal that the loser in an arbitration would bear the total cost unless there were no clear-cut loser. In ad- dition, he stressed the problems of having the rights out- lined in the management -rights clause supersede in the case of a conflict between it and any other contractual provision. Senick was identified in the Company' s notes as saying: "The way I read it, anytime there's a problem over a clause interpretation you say it's covered by Man- agement Rights, the Union would be out of the ballpark. It is a clause we cannot accept, because it is all consum- ing. It cuts across-the-board at all our positions." The notes do not indicate any response by Kelly. On May 12 the Union returned with a proposal that adopted some of the Company's language limiting back- pay in settlement awards and permitting extensions of the time limits only by mutual consent. Failure to meet the time constraints would be deemed a waiver or settlement of the grievance, as Respondent had proposed. The Union's proposal also reduced the proposed time period for submitting grievances to 15 days from the 20 days in its original article. The May 12 negotiation session dealt with arbitration briefly. The discussion focused primarily on the time limits imposed by Respondent's clause on initiating the arbitration proceedings. In the event the grievance procedure does not result in a satisfactory adjustment of the formal grievance in question within ten (10) working days after the Step 3 response,23 either side may submit an eligible grievance in writing to arbitration before the American Arbitration Association (AAA) pro- vided however, that 1) at least two (2) working days notice is given to Prentice-Hall prior to any filing with the AAA and 2) that such matter has been submitted to the AAA within (30) working days after it was first raised at the final step. It is agreed that only the New Jersey Office of AAA will be used. The AAA is not empowered to select any arbitrator the parties do not mutually agree on. Respondent extended the 10-day filing period in the paragraph quoted above to 15 days in its next proposal, submitted on May 27 . Senick was under the impression that this time period was a cooling off period, during which no action could be taken, and that by extending it in this context the Union effectively had even less time to file for arbitration than they had initially . Kelly clari- fied the intent of this language which was to give the Union 15 days after the step 3 grievance procedure in which to file. Respondent also modified the clause covering the cost of arbitration . The expenses under this proposal would be paid by both parties equally regardless of the outcome of the dispute. Kelly characterized this as a "major eco- nomic concession." Senick once again expressed his dissatisfaction with the language requiring mutual agreement on an arbitrator. Kelly submitted that in view of Respondent's "major economic concession" in this clause, he thought that the Union could consent to mutually agree on an arbitrator. Senick did not immediately connect an economic conces- sion with the equal liability for the cost of arbitration and did not consider this in formulating the Union's posi- tion. Kelly defined his position, noting that Respondent had never gone beyond the second panel list in selecting an arbitrator. This assertion did not persuade Senick to accept the proposed language. Regarding backpay awards, Kelly expanded on what "compensation from any other source" to be deducted from any award would encompass: "For example, unem- ployment. We should not be liable for compensation that an employee would have received but refused to. Feder- al or State subsistence would be other examples. If an 23 Step 3 is the final step in Respondent's grievance procedure. At this 81 See discussion, infra at sec II,D,6, pan 12-20. stage the grievant or Union would have 7 days to bring the grievance to 22 Kelly sated that Respondent would consider extending the same the vice president for human resources who would then have 7 days to right of notice to the Union give his response. PRENTICE-HALL, INC. employee doesn't take a position elsewhere it could have, it's the employees [sic] problem." As previously noted, backpay would only be retroac- tive to the date when the formal grievance was filed. Senick pointed out that he found this in conflict with the Respondent's proposed informal, and optional, first step in the grievance procedure. If an employee could only recover from the date of a written filing, then the Union would recommend this be done in every instance involv- ing backpay. Kelly could not "imagine a situation where the employee would be penalized as a result of this clause" which was aimed at discouraging employees from delaying in bringing out the facts. At the June 4 meeting, Senick returned with a union proposal that adopted Respondent's format of having separate clauses for grievance and arbitration . The first paragraph was substantially the same as Respondent's proposal, but was redrafted for greater clarity. The second paragraph outlined a method of selecting an arbitrator where, if after two lists there was no agree- ment on an individual, the parties would have an addi- tional 30 days to mutually decide on one, or the AAA would select one for them. Kelly found this language much closer to what the Company wanted, and agreed to come back with new language. On retroactive backpay the Union proposed that it run from the time the Company was notified of the problem, whether orally or in writing. The Union's proposal omit- ted entirely the provision giving precedence to the man- agement-rights clause over any other contract clause in a dispute, but adopted Prentice-Hall's language binding the parties to the arbitrator's decision, prohibiting the arbi- trator from modifying the terms of the agreement, and allowing only one grievance from one employee at each arbitration unless the parties agreed in writing, to the contrary. Discussion of this clause continued on June 11 when Kelly turned over Respondent's next proposal . It adopt- ed the Union's language establishing the timeframe during which an arbitration could be filed, deleted its own requirement, which had been adopted by the Union, that only the New Jersey AAA office be used, and adopted the essence of the Union's proposal for selecting an arbitrator. Regarding retroactive pay, Respondent deleted its pre- vious requirement that it begin to accrue only from the time the grievance was presented in writing, thus bring- ing it into line with the Union's proposal. Senick ques- tioned the computation of backpay based on compensa- tion the employee could have received from other sources while the dispute with the Company was being processed . He asserted that this was too speculative and that the employee's compensation should be offset only by what was actually received. Kelly objected to this proposal because it would permit an employee to refuse another job offer and still get paid by Respondent. Senick speculated that narrower language could be found to address both parties' concerns. However, Respondent's article retained the provision requiring deference to the management-rights clause in the event of a conflict between it and any other article in 653 the agreement.24 In response to Senick's objections, Kelly asserted that this clause was very important to Re- spondent, and that, if necessary, Respondent would be willing to defer agreement on arbitration until the man- agement-rights clause had been more clearly defined. Senick also expressed misgivings over Respondent's language limiting recourse for all disputes solely and ex- clusively to the grievance and arbitration clauses. He pointed out that a number of clauses were not subject to arbitration and stated that the Union required a means of enforcing the contract.25 Further discussions took place on September 24 and October 5. Senick testified that at the first of these two meetings he again raised the problem of resolving dis- putes in favor of management rights , and noted the lack of arbitration in many clauses. At the next meeting, ac- cording to the Company's notes, Senick clarified that the sole and exclusive recourse language applied to disputes that were subject to grievance and arbitration and that no action could be brought for breach of contract. He acknowledged that he could agree to this, but that he could not accept the language defering to management rights because it weighed too heavily in Respondent's favor. However, I find the attribution of this acceptance to Senick in the notes is misleading. Based on facts brought out in the course of the hearing, Senick's will- ingness to accept the grievance and arbitration proceed- ing as conclusive was based on the conjunction of the ar- bitration phase where the final determination was in the hands of a disinterested third party and not concerning those bargaining subjects only made grievable and sub- ject to final determination by the Company.26 No further substantive discussion of this clause took place after October 5.27 Concerning the separate grievance clause, the history of its negotiations illustrates some of the bargaining tac- tics employed by Respondent particularly in seeking to eliminate or severely restrict the exercise by employees of their Section 7 rights. While, as earlier noted , agree- ment on a clause was ultimately reached before negotia- tions broke down, substantial time was expended at the sessions in grappling with the Company's demands in this 24 Respondent's express intent was that if a conflict were established, then the case would be closed 25 Senick testified that at the first session after his receipt of the Re- spondent's initial set of proposals, held on April 1, he told the company representatives that "Under those circumstances, many of the clauses would be unenforceable I would have no means of resolving disputes be- tween us." 26 This finding is grounded in discussions between the parties of both the arbitration clause and of the other subjects which Respondent ex- pressly excluded from arbitration (See, e.g., Rules and Corrective Disci- pline , sec. 11,0,6, infra.) 27 During the course of this meeting Senick said he would try to bung in an acceptable proposal dealing with the deference accorded manage- ment rights in this case of conflict with another contractual provision that the Union could not accept Senick 's response at the October 22 meetings shows that the matter had slipped his mind . I conclude, howev- er, that the breach between the parties was so profound on the conclu- sive deference to be accorded management rights, each side maintaining its position as firm and unyielding and basic to its negotiating posture, that an impasse was truly reached probably as early as June 11, assuming, without deciding the matter here, that Respondent's proposal was made in good faith 654 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD area, which delayed agreement on this clause and an- other as well. Thus, the Company's first counterproposal discussed on April 1 required a prior discussion between employee and department head before a complaint could be considered a grievance-a procedure which Senick noted unduly restricts the employees' access to the Union. Similarly, Senick criticized the Company's pro- posal for a 2-day limit from incident to grievance filing with the vice president as unduly short. The Company's April 21 'proposal also providing that "the degree of discipline imposed and the reasons for dis- cipline are in the sole discretion of Prentice-Hall and shall not be subject to review under Article 6, Arbitra- tion" was totally unacceptable to Senick, who informed the Company "we couldn't agree to any kind of a just cause standard that wasn't tied to an arbitration provi- sion in some way." From the very first company proposal before April 1, until shortly before agreement was reached in Septem- ber, Respondent demanded that employees be prohibited from engaging in union activities on its premises, includ- ing union business of seeking to enforce the agreement through filing and processing of grievances. Meetings be- tween employees and with the shop steward were to be on their own time and expense during nonworking time and off premises. Senick's position was that this was to- tally unacceptable. Over time, the Company eliminated certain restrictive clauses in its grievance article, dropping on May 27 the requirement of a prior supervisor meeting, the. clause providing the Company prevailed on a failure to meet time limits by either side, and severe restrictions on the filing periods. Although the language excluding dis- charges from arbitration was dropped in the grievance proposal it was still retained in the discipline clause. As to the prohibition on union activity on company prem- ises, Senick by June 4 had proposed limiting such activi- ties to employees' nonworktime. The Company's June 11 proposal now permitted an employee to meet with a steward to discuss a grievance during nonworktime in a nonwork area, but Senick commented "we don't think we can waive [employee statutory] rights." On July 23, Senick noted the primary remaining differ- ence on the grievance article was the on-premises agree- ment (relating to nongrievance union activity). Kelly continued to seek a waiver of that right. "Faced with the realities of a miniscule unit in a large company we would like to limit the unit to unit business." Finally, on August 12 the Company removed the prohibition of union activi- ty on company premises from the grievance article but now incorporated it in a revised stewards' article. When Senick expressed anger at this tactic, Kelly assured him it would not be moved again but expressed the position that the prohibition was an extremely important clause and the Company was unwilling to remove it from the contract.28 2$ No such restriction appears in either the first or second LLSD agreement and none was sought by the Company in the second round of negotiations. The stewards' article continued the prohibition until agreement on a clause was finally reached on November 5 at the last meeting when the Company agreed to change the prohibition from Prentice-Hall's premises to "in a work area." A company demand that union stew- ards be liable in the event of a job action was retained and agreed to by the Union in the final clause which the parties initialed. 5. Management rights29 Respondent's first contract proposal included an article in which it reserved certain rights within its exclusive domain. In addition, Respondent proposed that the rights reserved under the management-rights clause would take precedence over all other terms negotiated and adopted by the parties in the event of a dispute which could be resolved under either management rights or some other clause in the agreement.30 When this article was first discussed on April 9, Senick allowed that he had no problem in theory with including this type of provision in the contract. However, he stated that he was reluctant to agree to such a lengthy and broad proposal before knowing how it would fit in with the remainder of the contract. Kelly emphasized the importance Respondent attached to this proposal which, he added, incorporated Respondent's response to many of the Union's individual proposals. A revised proposal was passed to the Union on April 21 which omitted language granting management "all other rights and perogatives including those exercised unilaterally in the past even though not particularly enu- merated above." According to Kelly, this language had been the only target of the Union's criticism that Re- spondent had noted in their previous discussion. Senick's response (according to the Company's notes) was that the Union had "other problems" with this clause. His testimony at the hearing was that the proposal was still "too overbroad." The issue of management rights came up again on July 23 when Senick questioned Respondent's inclusion of po- sition descriptions as a reserved right when they had pre- viously stated that no descriptions existed. Kelly ex- plained that Respondent wanted to preserve its right to promulgated job descriptions if it desired them at some future date. In Addition, Senick expressed the opinion that Re- spondent's clause was redundant in part; and he objected to the Company's "most favored nation" language where the Company would he entitled to adopt any more ad- vantages terms or conditions from future contracts nego- tiated by District 65 within the New York metropolitan 29 Respondent's first management-rights proposal is quoted in its en- tirety in sec. II,D,4, at fn. 16, supra. °° This result would be achieved by the language proposed by Re- spondent for the arbitration clause: It is expressly recognized that for purposes of contract interpretation by any arbitrator if any Article or provision of this agreement con- flicts in any way with Article 2, Management Rights, than the par- ties agree that their intent 's for Article 2, Management Rights to pre- vail. See discussion in sec. 11,D,4, Arbitration, supra. PRENTICE-HALL, INC. area. Kelly asserted that this was a starting position and expressed his willingness to entertain other proposals. On August 12, Senick expressed his opinion that Re- spondent's clause was complicated and redundant. He then submitted the Union's first proposal covering man- agement rights. In substance it delegated to Respondent all rights to manage the business "except as expressly modified or limited by this Agreement." This proposal bore great similarity to the one adopted in the looseleaf editors' contracts' When Kelly returned with Respondent's next proposal on September 3, he noted certain deletions from the ear- lier proposal aimed at "tightening up" the language. However, he confirmed Senick's observation that the intent of the clause remained unchanged. In response, Senick gave management a new proposal on September 24. It adopted some of Respondent's lan- guage enumerating the exact nature of the managerial rights reserved to Respondent, with the Union's modifi- cation "except as expressly modified or limited by this agreement." Senick expressly rejected the Company's "most fa- vored nation" language citing difficulty with its interpre- tation and application in practice. He also pointed out that Respondent had denied the Union's request to retain the right to have past practices continued.32 The parties were also divided over the concept of po- sition descriptions. The Union's view was that it would like to see, discuss, and agree on them in the course of negotiations. Kelly's assertion was "that position descrip- tions are the sole right of management to create , adminis- ter, modify and eliminate." On October 5, Kelly gave the union negotiators an- other copy of Respondent's earlier proposal . From the outset of the discussion he emphasized the clause in which none of the rights retained by Respondent under the agreement would be considered waived merely be- cause Respondent failed to exercise them . He explained that Respondent wanted "to prevent the Union from filing grievances based upon what's done and not done." Senick agreed to consider Respondent's desire to retain certain rights, and added that the Union would be more sympathetic regarding as yet unexercised manage- ment rights if Respondent moved on its "most favored nations clause." Kelly noted the applicability of its cur- rent proposal was limited to future contracts between District 65 and other composition and publishing compa- nies in the metropolitan area. However, its original pre- April 1 proposal had also been so limited , specifically re- ferring to like companies in the metropolitan New York area or any other area served by Prentice-Hall. The parties remained in sharp disagreement over Re- spondent's desire to reserve the unilateral right to pro- mulgate position descriptions. No mention of position de- " The management -rights clause in the looseleaf editors' contract read as follows: Except as limited by this agreement , the Employer retains all of its rights, powers, discretion and authority , including but not limited to the exclusive right to hire, lay off, promote, assign duties to, transfer, discipline and discharge employees ; to introduce new improved methods and facilities, and to carry out the ordinary and customary functions of management. 32 See discussion in sec. 11 ,D,12, Complete Agreement , infra. 655 scriptions was made in the Union's proposal because, as Senick explained, he did not want to negotiate an ab- stract proposal. Kelly pointed out that the Union's proposal seemed in- consistent because, on the one hand, it acknowledged Respondent's "sole right to conduct its business ... as it deems necessary and/or expedient, including without limitation, but on the other hand, only except as express- ly modified or limited by this agreement." Further, Senick was asked to explain why the Union omitted such rights as the right to suspend , to promote, to demote, and to schedule overtime from its proposed management- rights clause although it granted management the right to discipline and discharge employees. Senick explained that the intent behind the Union's proposal was to reach an agreement that would limit management's rights. Where a topic was covered under a separate clause, for example hours, the language of that clause would be controlling. Kelly responded that the Union's proposal failed to meet Respondent's needs, es- pecially its exclusion of job descriptions. On October 22 -the Union returned with another pro- posal that incorporated verbatim the language of Re- spondent's clause preserving management's rights to insist on strict performance of any terms and conditions in the agreement even if not previously exercised. It re- mained otherwise unchanged and, according to Senick, Respondent maintained it still did not go far enough. On November 5 Respondent came forth with another proposal. The only change was the "most favored na- tions" clause which would now give Respondent the option of adopting more favorable terms from any subse- quent agreement between District 65 and any composi- tion unit within the New York metropolitan area. Once again Kelly emphasized the importance of this clause to Respondent and pointed to the several changes that had been made in the clause as evidence of Respondent's willingness "to consider change and negotiate the specif- ic language." In response to Senick's questions regarding this change, Kelly told him that the labor pool for CSD was the greater metropolitan area. Senick appeared sati- sifed with this explanation as to the scope of the clause because later in their discussion he acknowledged that this clause was "not much of a stumbling block now." However, Senick was still not prepared to agree to the management-rights clause. He pointed out that the link between this article and the arbitration clause was unac- ceptable. Senick suggested Respondent delete the lan- guage in the arbitration proposal giving precedence to management rights in the event of a conflict and they would be much closer on both of those articles.33 Al- " Neither the first nor the second LLSD contract contained a prece- dence clause and Respondent did not propose one for inclusion in the second agreement . By November 5, Respondent had made very few changes overall in its management -rights article Compare fn. 16, supra The provisions deleted were the right to . assign duties, alter the type and nature of operations; move the unit or any of its parts or areas to other locations; maintain order and efficiency ; determine job content, and decide the nature of materials, services, supplies, equipment, and machin- ery to be used. These rights are management preogatives in any event Two other changes, made April 21 and September 3 are noted above 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD though Kelly agreed to consider it, no further negotia- tions were ever held. 6. Rules and corrective discipline Among its initial proposals the Union included one on discharge and discipline which was first discussed on February 12. During a lengthy exchange it became clear that the parties were far apart on how warnings, disci- plines, and discharge should be handled. District 65 proposed that warning letters should be de- stroyed 1 year after execution, that employees should be given 3 weeks' notice before discharge for less than gross misconduct but under no circumstances should they be discharged for less' than just cause, that employees and the Union should be given a 3-month notice before a layoff, and that disputes over discharge and layoff deci- sions should be decided by the grievance-arbitration process. Respondent objected to the provision directing Pren- tice-Hall to destroy warning and disciplinary letters after 1 year claiming that it would both encourage recidivism and deprive the Company of a full and complete employ- ment history for the individual. The Union's rationale was that an employee's lapse should not blemish his record indefinitely, and that a year was a reasonable length of time after which it should be purged. The notice provisions for discharge or layoff were also objected to by Respondent. Kelly disagreed with the concept of an employee getting both notice under this provision and severance pay under the severance pay clause. In addition, Kelly saw no basis for requiring the Company to give 3 months' notice before a layoff. He pointed out that in 66 years, Prentice-Hall had never laid off an employee and that this provision would prevent the Company from acting quickly on a business decision. Senick defended the Union's position for both notice re- quirements on the grounds that employees need a reason- able transition period when these types of changes are being imposed on them. The greatest areas of conflict in this article were the provisions concerning the applicable standard for disci- pline and discharge, review of company action under the clause by an arbitrator, and the operation of a progres- sive disciplinary provision which was proposed by Pren- tice-Hall and largely incorporated in the Union's propos- al. The Union proposed a just-cause standard for review of discharge and discipline. In the event of a disagree- ment which remained unsettled by the grievance proce- dure a final and binding determination could be made by an arbitrator. Kelly found this method of outside review totally unacceptable as illustrated by the following ex- change taken from the Company's notes: Kelly (J.K.): . . . this in effect says an arbitrator will oversee a judgement that management makes. Senick (M.S.): Arbitrator routinely look at disci- pline and discharge situations. It is consistent with the Union-Management relationship. J.K.: If an action went to arbitration, tied to the job security clause, isn't that purely a management's judgment? M.S.: No. J.K.: You don't understand. Management has found an employee has violated a rule, then an em- ployee has already been found to have violated the rule. Krawczyk (B.K.): You're saying, you are the one making judgment? J.K.: Yes. B.K.: We have a big disagreement. J.K.: You are right. Management's counterproposal gave rise to a brief but heated discussion on April 1. Among other things, its proposal included a list of 33 causes for immediate dis- charge or other disciplinary action in addition to con- tinuing in full force and effect all current rules and regu- lations and allowing Prentice-Hall to promulgate any new rules as it saw fit. Kelly's position was that the con- tract should spell everything out to avoid any future dis- agreement. Recourse for resolving disputes was to be solely through the grievance procedure, exclusive of ar- bitration. On April 9, Senick responded with another union pro- posal that deleted all references to the notice for layoff and discharge provisions that had caused earlier debate. Its proposal required just cause for discharge and disci- pline, and provided a list of examples of behavior consti- tuting just cause including "flagrant violation of reasona- ble company-wide rules and regulations set forth in writ- ing." Senick emphasized the importance of the just-cause standard and resolution of disagreements by an outside arbitrator by characterizing their absence as an obstacle, if not a complete bar, to agreement.34 During this exchange Senick implied that Respondent was treating these unit employees more harshly than em- ployees elsewhere in the Company and that, based on his own 5-1/2 years of employment with the Company, the list of rules was inconsistent with past practice. Some rules were considered too broad, particularly there was no recourse to arbitration. Especially noted as objection- able was the rule prohibiting "conduct that violates standards of decency and morality." Kelly defended his position on the basis of each situation being different and that decency and morality are a common clause and has been defined in many arbitration cases. Progressive discipline was outlined in Respondent's ar- ticle. Conceptually, progressive discipline was applauded by the Union, except that the Company had reserved to itself the right to elect not to follow the procedure. In Senick's view, reserving the sole right to discipline or terminate an employee without recourse to progressive discipline made the procedure meaningless and left the employees without protection. Kelly denied these asser- tions and the provision remained in the Company's pro- posal throughout the bargaining sessions.35 .34 Recourse to arbitration was presumed unless expressly limited by the terms of the proposed article. See text accompanying sec. 11,13,4, at fn. 21, supra. 35 The "right to discipline" included the right to determine the nature of the discipline imposed. As originally proposed it could consist of Continued PRENTICE-HALL, INC. 657 In its counterproposal on June 4,36 District 65 pro- posed language which incorporated the Company's structure of progressive discipline and made its imple- mentation mandatory except where the employee's con- duct rose to the level of gross misconduct. Senick em- phasized again the need for a just-cause standard and in- cluded language to that effect in his proposal." Kelly for Respondent returned to the negotiations on June 24 with another proposal which omitted the list of specific reasons for immediate discipline or discharge be- cause it was redundant, those rights having already been covered to his satisfaction by the remaining language in the clause. From the company notes Kelly appeared to have emphasized that his goal in this clause was "to make it clear that only work rules and regulations are adopted in the contract and not any past practices." In all other respects Respondent's proposal remained essen- tially unchanged. Senick asked for clarification of this proposal on July 8. Among other things, Kelly told him that he could not think of any situation where an employee had been de- prived of seniority as a disciplinary measure, but he wanted to retain the Company's right to do so in light of the inclusion of a seniority clause in the ultimate con- tract. The chief modification in the Union's July 23 proposal was its addition of Prentice-Hall's clause permitting the Company to adopt and enforce new rules and regula- tions, and its incorporation and ratification of all current company rules and regulations . Demands on which the Union remained firm were: just cause for discharge and discipline, mandatory use of the progressive discipline procedure in all cases except those involving gross mis- conduct, and recourse to arbitration for disputes. Senick also objected to the breadth of the Respondent 's clause permitting it the right to mete out the discipline of its choice. Kelly defended this provision as allowing man- agement to determine what was appropriate. Kelly returned with Respondent's next proposal on August 12, and enumerated the changes which had been made in this article: [W]e dropped the . . . sentence . . . which read "the union agreed to aid P-H in every way possible in enforcing these rules and regulations, etc." .. . we dropped the . . . sentence . . . which read to the effect "P-H reserves the sole right to determine the appropriate disciplinary action, including dis- charge, to be taken for violations." Also we dropped the reference to loss of seniority as it is in- "warning, loss of seniority, suspension, discharge or any other actions as This article was also discussed briefly on May 12 when Kelly an- nounced Respondent's intention to remain with its prior proposal (of April 9) until there had been further discussion . Senick testified that during the June negotiation session he asked if the Company was going to make a counterproposal , but Kelly said he was going to stand firm. 80 Just-cause language did appear in the Company 's "Grievance" clause also before the Union at this time , but a decision under the clause would still not have been subject to arbitration Furthermore , the griev- ance procedure would be the sole and exclusive recourse for resolution of disciplinary conflicts where the Union disputed the Company's Just cause for taking disciplinary action cluded in "any other action." . . . [Progressive dis- cipline] . . . now read [sic], "to achieve this result the following procedure may be followed in any case, and will be followed in all cases involving poor or unsatisfactory job performance or excessive or habitual absenteeism or lateness." So with those types of cases we have contractually agreed to follow the corrective discipline procedure. [G.C. Exh. 7.] The new proposal also omitted the Company 's right to terminate an employee without cause on payment of 2 weeks' wages and clarified that its meaning of the re- quirement that an employee sign a reprimand or warning may not be used to imply that such action was proper, but only that the employees received written notice of the action. It is clear from Kelly's presentation and the discussion that followed that many of the Company's modifications did not alter the substance of their proposal , as illustrated by the following exchange: M.S. [Senick]: I am confused regarding [progres- sive discipline] being a mandatory procedure. Wouldn't the reservation of right clause at the end of the article override this.38 J.K. [Kelly]: Yes. M.S.: Although you dropped loss of seniority it is included in the phrase "any other actions." J.K.: Yes, it would be a possibility.. . M.S.: It would [sic] be argued that this is a signif- icant regretion [sic]. Not only is there no Just Cause clause, but the Without Cause clause [which] pro- vided for two weeks notice payment is no longer there. We can not except [sic] discharge without re- course to the arbitration provisions . . . [G.C. Exh. 7.] The Union's next proposal was taken verbatim from the previous one offered by Respondent with two signifi- cant differences : progressive discipline would be the re- quired procedure in all cases except where gross miscon- duct is involved and the entire article would be subject to grievance and arbitration. By November 5, the distance between the parties had been narrowed still further . Respondent's proposal in- cluded language limiting discipline to just cause; the par- ties were still separated on the question of arbitration.39 Kelly stated that the Company would consider it but that he really did feel this area was for management's sole review. During the course of negotiations Kelly pointed out that no employee had ever been dismissed or suspended from Respondent's employ for disciplinary reasons, and that Prentice-Hall was a good place to work.40 On this as The clause referred to reads as follows: Prentice-Hall reserves the right to terminate an employee or take any other disciplinary action in appropriate cases without recourse to the provisions of [progressive discipline]. as Senick told Respondent's negotiation team that if they deleted the no-arbitration clause he would concede to agree notwithstanding his res- ervations over progressive discipline being a discretionary procedure. 40 Senick concurred with these statements. 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD basis and on the basis that discipline is management's domain, he continued to deny District 65's request for arbitration on this article. None of the other contracts on which Respondent relied for preparation of this article omits arbitration as recourse for just-cause discipline or discharge." 7. No strike-no lockout Respondent's initial no-strike proposal prohibited "strike, walk out ... or any other curtailment, restric- tion or interference with any of the operations of Pren- tice-Hall in any manner." The Union's liability would be for the actions of "its local and international represen- taives, trustees, stewards, delegates or committees." Fail- ure to abide by the terms of this article would result in liquidated damages of $250,000 to be paid to Prentice- Hall, and would also permit the Company to either sue for damages and/or injunctive relief, or seek an award through the arbitration article of the agreement. Liability would also extend to violations of this article committed by independent employees, whose actions would be deemed authorized by the Union, if the Union failed to curtail them after 24 hours' notice. A violation of this latter provision would carry $10,000 in damages for such failure and $10,000 for each day the violation continued, in addition to any liquidated, actual, or com- pensatory damages awarded under the clause described above. The Union expressed its willingness to accept a no- strike clause on April 9. However, Senick stated that the $250,000 liquidated damage penalty and the $10,000 daily fine were unacceptable; nor could the Union agree to accept liability for independent acts of employees who may or may not be union members. Senick also empha- sized, at this and at the May 27 meeting, that agreement on the no-strike clause would be tied to agreement on the arbitration article. On August 12, the Union presented a written proposal to Respondent that precluded the Union from authoriz- ing a strike or otherwise impeding Respondent's oper- ations. It also imposed a simultaneous obligation on Re- spondent to refrain from both attempting or carrying out a lockout of the employees. Senick represented that this clause would protect Prentice-Hall and that the punitive provisions in the Company's clause were superfluous. At the next meeting, held September 3, the Company presented the Union with an article which retained the tenor of the original but reduced the liquidated damages to $200,000 per violation and eliminated the $10,000 per diem fine described above. Liability for actions of stew- ards, trustees, et al., remained, regardless of whether the Union ratified their acts, and failure to terminate an em- ployee strike within 24 hours of being notified would make the Union liable for liquidated damages. This pro- proposal also included a no-lockout clause and permitted the Company to sue for damages or injunctive relief without resorting first to arbitration. 41 This observation is in direct conflict with Kelly's statement at the bargaining table on July 8 that other contracts did allow for discipline without arbitration. Senick's immediate response was that the liquidated damages clause was punitive, and that he saw problems with being bound by the unauthorized acts of individ- uals. Kelly recommend they study this article. When the parties met again on September 24, Senick described management's proposal as "absurd," specifical- ly with regard to the $200,000 damage clause. The Union's proposal on that date, in addition to its original language prohibiting it from calling a strike, also obligat- ed it to make "every reasonable effort to secure the return of strikers to work as soon as possible" in the event of an unauthorized strike. Failure by the Union to terminate a strike would entitle Respondent to discipline or discharge the individual employees. Senick also ex- pressed difficulty in accepting liability for the actions of individuals beyond that imposed by normal agency rules. Kelly's reply was that he did not find the Union's lan- guage entirely responsive to Respondent's concerns. At this and the October 5 meetings, he explained that the $200,000 was to compensate the Company for expenses incurred as a result of a strike. He asserted that most of the costs incurred would be up front and, therefore, the damages would be due the Company regardless of the length of the strike. He cited such things as security, re- placement employees, transpotation for employees cross- ing the picket line, strike replacements, interruption of shipped goods, locating shippers willing to cross the picket line, lost profits, and management's time as mone- tary losses for which the Respondent wanted to be as- sured they would be compensated. Senick objected, noting that if there were a 3- or 4-hour strike the Union would bear tremendous liability. Regarding the theory of liability that Respondent wished to impose on the Union, Kelly stated that the Union was liable for collective action even if they did not sponsor it and that he could not imagine a strike ever occurring "without union concurrence in some form." Canoni told Senick's negotiating team that he had seen liquidated damage provisions in other contracts. At the hearing the New York Times Mailers' contract was cited as an example of one such agreement. On cross-examina- tion, the General Counsel established that that unit had a history of wildcat strikes before the clause was negotiat- ed. The April 9 notes reveal that there was no history of strike or lockouts in the CSD unit. No agreement was ever reached on a clause. 8. Subcontracting Subcontracting was discussed on five different occa- sions between February 26 and October 5. During the presentation of its first proposal, the Union explained that it sought only to protect the work regularly done by CSD and the unit employees' positions, but did not seek to interfere with Respondent's ability to run its business. The language of the Union' s original proposal with its oral representation and by its terms would have prohibit- ed subcontracting "of work or the type of work that is normally, historically, or appropriately performed by bargaining unit members." Whether a layoff was caused or prolonged by the Employer was a question of fact to be resolved by an arbitrator. PRENTICE-HALL, INC. Respondent's position on subcontracting remained ex- actly the same from its introduction on April 1, until ne- gotiations terminated in November. Kelly maintained that the Company required the "absolute right to sub- contract and contract any and all work" and that as an operational decision it should not be subject to an arbi- trator's scrutiny. Kelly also asserted that he did not see the connection between layoffs and subcontracting that Senick empha- sized in the Union's proposal . He pointed out that a layoff might be the result of schedule changes, techno- logical advancements, lack of capacity in the department, its customer dissatisfaction, more competitive bids on the outside, and lack of punctuality and absenteeism among the employees. Senick's response was that the Union did not seek to prevent Respondent from continuing its historical prac- tice of subcontracting , but wanted to protect the unit employees' jobs from being lost. He acknowledged that although Respondent had not previously laid off employ- ees or prolonged a layoff by subcontracting unit work, he wanted to ensure against that contingency in the future. He emphasized repeatedly that this clause was important to the Union. Again, no agreement was reached by the time negotiations broke off on November 5. 9. Seniority On several dates between February 12 and October 22 the seniority article was discussed and various proposals were exchanged by the parties. At the February 12 meeting the Union acknowledged that "Prentice-Hall is a nice place to work" which em- ployees come back to. The Union also explained that its general intent with respect to this clause was "to design a workable seniority system that recognizes the different skills involved." It envisioned seniority as being a meas- ure of the employees' total length of accumulated service with Prentice-Hall within their individual departments. Senick explained how this system would apply in a few specific instances, and stated that it was similar to the design in the loose-leaf contract.42 Senick also stated that the length of an employee's accumulated service would not include periods of layoff, termination, dis- charge, or leave of absence. According to the company notes, Kelly specifically asked whether the clause would be subject to grievance and arbitration procedures. When Senick responded, "Absolutely," Kelly stated, "You know my answer on that clause." The Union's proposal also required Prentice-Hall to "make every reasonable effort to place affected employ- ees elsewhere in the unit" if there was a reduction in force, or failing that, to "make every reasonable attempt to place them elsewhere in the Company." Senick stated that this portion of the Union's proposal incorporated the 42 The looseleaf contract defined seniority as "total accumulated length of service by regular employees" and further provided that. Layoffs shall be by job classification and shall be determined by in- verse order of seniority where factors of competence and ability to perform available remaining work are equal 659 Company's current practice. This characterization was not challenged by management at this meeting. On February 26 this proposal was discussed again. Kelly attempted to clarify some of the exact language used in the Union's proposal, including "interruption of service." The Company's notes reflect that Senick stated that it included termination and resignation, but did not include leave of absence, layoff,43 or leave for military service, and that he had not considered whether it would include time served in a nonunit position. Regarding the phrase, "every reasonable attempt" to place an employee elsewhere in the unit and if no open- ings are available in the unit, then elsewhere in the Com- pany,44 Senick defined this language as requiring a good-faith attempt. Kelly found this language problemat- ic because it could apply in every instance. Senick agreed to discuss it with the committee and expressed his feeling that it could be worked out. In response to an- other question Kelly was also told that application of this clause would be subject to grievance and arbitration. Respondent included seniority language in its package of proposals and on April 1 its language was discussed and the Union also submitted its own response. Respond- ent's proposal defined seniority, tied seniority to vacation benefits, and listed 11 possible ways that an employee could lose seniority. The proposal was expressly ex- cluded from the grievance and arbitration procedures. The Union's proposed definition of seniority on April I was similar to Respondent's, the total accumulated length of service which would continue to accure during vacations, holidays, paid sick, and other periods during which the employee was receiving his salary, but includ- ed, in addition, leaves of absence in its definition. Under both the union and company proposals , seniority would also accrue to employees who were unit members but were transferred out of the unit for a period of time and then returned to the unit and would be measured by their entire accumulated service to Prentice-Hall. The Union specified only 3 ways an employee could lose seniority, as compared to the 11 listed in Respond- ent's article. Resignation and discharge for cause were included by both parties. The Union's third basis for loss of seniority was failure to respond within 4 weeks after receipt of written notice of recall by registered mail. Prentice-Hall included a similar cause for losing seniority but gave the employee 48 hours to respond and/or 5 working days to return to work following tender or de- livery of notice. Respondent's proposal did not include any reference to the layoff and recall of employees which, according to Senick, the Union regarded as absolutely essential. The Union's April 1 proposal required that employees be laid off and recalled in the reverse order of their seniority except when a less senior employee has greater compe- tence or ability to perform the remaining work. In addi- 4Y A change from the position Senick expressed on February 12. 44 The looseleaf contract states that "the Employer shall make every reasonable effort to place the affected employees elsewhere in the unit " There is no obligation to attempt to place employees outside the unit in that contract 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion, the laid-off employee would be offered any other position for which he might be qualified. Kelly gave Respondent's response to the Union on May 12. Two changes had been made from the original. It now included the Union's language on seniority con- tinuing to accrue during periods when the employee is receiving his salary and deleted "leave of absence with pay of more than six (6) months" as a way an employee would lose seniority. Senick stated that the proposal was unacceptable. He raised 'specific objections to many of the possible ways that an employee could lose his seniority. He specifically referred again to any breach of rules as a ground for em- ployees to lose senibrity and to the exclusion of the arti- cle from grievance and arbitration, which he termed "un- acceptable." Kelly responded that in extenuating circum- stances he could rely on the Company's right to waive strict performance of any contract provision to avoid the consequences of the loss of seniority clause. Senick characterized layoff and recall as "the heart of seniority" and noted the absence of any language in Re- spondent's article addressing that issue. He observed that Prentice-Hall concerned itself with vacation eligibility, but not with job security. Kelly pointed out that Senick had stated that Prentice-Hall is a good place to work and that the Company had no history of layoffs. At the May 27 meeting, Senick introduced a proposal that incorporated Respondent's first paragraph verbatim, thus eliminating leave of absence as time counted toward seniority. The Union had also added a clause permitting the loss of seniority for layoffs exceeding 12 consecutive months and reduced from 4 weeks to 2 weeks the length of time allowed for an employee to respond to a notice of recall. In all other respects the Union's clause re- mained unchanged. Senick repeated his request that language on layoff and recall be included in future proposals from Respond- ent. A discussion followed during which Senick attempt- ed to clarify the application of such language to hypo- thetical situations . Senick also renewed his objection to the list of ways employees could lose seniority, which he termed punitive. On June 4 Kelly gave the union bargaining team Re- spondent's newest proposal on seniority. It now had only five ways for an employee to lose seniority. Like the Union, these included resignation and discharge for cause. In addition, it included layoff of more than 4 months or the length of seniority, whichever is less;45 failure to notify Prentice-Hall of intent to return to work after a layoff within 48 hours of receipt of notice and/or failure to return to work within 5 days of such notice; and disciplinary action taken pursuant to the rules and corrective discipline article. The remainder of the senior- ity article remained unchanged, including its exclusion from the grievance and arbitration provisions. In response to the Union's request for layoff and recall language, Kelly explained that those decisions are based on a number of factors and that only management could 46 Four months represented an increase from 30 days in its earlier pro- posal. balance those factors. Furthermore, company notes re- flect that Kelly asserted: The Company has no history of layoffs, and you have no reason to suspect our motives here. It's not a compelling factor to block our agreement here. The primary objective should be to reach agree- ment. It would only add unnecessary language. This kind of language could turn into a real problem. It is only another attempt by District 65 to put in loose language so it can try to obtain to [sic] the ar- bitration process what it fails to obtain from negoti- ations. . . . Your language would lead to arbitra- tion. . . . It should be based on competence, ability and the needs of the Company. and other factors. On numerous occasions Senick had referred to the ex- clusion of this clause from grievance and arbitration by Prentice-Hall. The company notes on June 4 reflect the following discussions as having occurred immediately following Kelly's above-quoted comments: M.S. There are many other provisions where you put they were not subject to the arbitration clause. We wouldn't mind seeing language here. J.K. You are open to that? Would you seriously consider it? M.S. Yes.46 At the June 11 meeting, Kelly presented for the first time a seniority proposal that included a layoff and recall provision, which was not subject to arbitration'47 and which listed seniority as one of the factors to be consid- ered during the decision-making process. Prentice-Hall deleted the language in a separate paragraph excluding the entire article from grievance and arbitration.48 Al- though Senick testified that it was still too subjective, the company notes indicate that he initially viewed this lan- guage as a big step forward. There appeared to be little discussion of it at this meeting. After considering the proposal, Senick stated at the June 24 negotiations session that this article was really no different than the Company's earlier proposal and that without arbitration, it was meaningless . Kelly maintained that layoff was too subjective for arbitration and would lead to frivolous grievances, and that its language reflect- ed the discussion they had had at the table. Senick of- fered to return with other language. 46 It is clear that Senick's strategy was to induce Respondent to formu- late language on layoff and recall tied to seniority. However, in subse- quent discussions it became apparent that he never intended to agree to a proposal on layoff and recall which was not subject to arbitration. 41 Canoni testified that Respondent used bargaining agreements be- tween other parties as prototypes for formulating its own proposals for the CSD negotiations. Several of these contracts were introduced into evidence. In at least two of them the clause on employee recall was not subject to arbitration, and one of these also excluded recall from the grievance procedure. (See R. Exhs. 15, 16.) However, in these other agreements the order in which the employees were to be laid off was either arbitrable or negotiable to the point of impasse. 4" However, the clause permitting Respondent to take action including loss of seniority under the rules and corrective discipline article remained nonarbitrable to the end under that article notwithstanding the modifica- tion made here. PRENTICE-HALL, INC. The Union gave its next proposal to Respondent on July 8. Some of the language on layoff and recall had been modified and the clause now listed criteria for the Employer to consider in the decision-making process that were similar to those listed in Prentice -Hall's article. No discussion of this language took place on that date. Respondent made a few changes in its language that it presented on July 16. It deleted the language reducing seniority for any disciplinary action against an employee under the rules and corrective discipline clause. Howev- er, loss of seniority as a disciplinary action still existed within the rules and corrective discipline clause.49 Arbitrability of the layoff and recall decision was the focus of the balance of this day's discussion . Kelly main- tained that management's judgment on layoff and recall had to be paramount . Senick questioned the scope of the Union's recourse in the event of a management decision made in an arbitrary fashion. Kelly asserted that a regu- lar grievance "could take care of that" but offered to consider language placing the burden of proving arbi- trariness on the Union in the event of arbitration. At the July 23 bargaining session, Senick presented what would be the Union's final proposal. The chief dif- ferences remainingbo were between the parties ' layoff and recall clauses; arbitrability of the decision as applied in individual cases, and the inclusion by the Union of a requirement that the Employer attempt to reassign the affected employees either elsewhere in the unit or, failing that, elsewhere in the Company. Senick reiterated that reasonable actions would be upheld by an arbitrator. In its July 12 proposal Respondent included language regarding the placement of laid-off employees elsewhere in the unit or Company within Respondent's sole discre- tion. This language was as Kelly pointed out, similar to the clause found in both parties' proposals concerning promotions and transfers from and returns to the unit. Senick viewed this change as minimal and restated his position on arbitration. Thereafter no new proposals were -offered. On Sep- tember 24 and October 5 and 22 there were discussions on seniority of various duration but no substantive progress was made. During the October 22 meeting Senick expressed the Union's desire to have external review of Respondent's decisions and noted that such review is customary in labor relations.a' Kelly refused to make the entire clause subject to arbitration and stated that he "might entertain" language limiting the scope of arbitration. It is evident, however, from the foregoing facts that Kelly viewed layoff and recall as a decision for management only and that even though the Union had 19 See discussion sec. 11,D,9, infra. 50 The only other difference that remained was very minor. The Union would have an employee lose seniority "following a layoff of more than six months or the employee's seniority, whichever is less" while the em- ployer would have the same result after only 4 months of layoff 51 The bargaining notes for October 22 show Kelly stating that "some of '65's' contract layoff is not subject to arbitration , for instance Harper and Row " Canom testified that reliance was placed in part on the Harper and Row contract for the concept that the decision to lay off was not subject to arbitration In fact , although the Harper and Row agree- ment excluded the decision from arbitration , it also provided that the layoff procedures, including the seniority provisions requiring layoff in inverse order of seniority and recall in order of seniority were specifical- ly made subject to arbitration. 661 proposed specific criteria to guide an arbitrator on review, Respondent's position remained unchanged. 10. Wages The Union initially proposed increased starting sala- ries, on average approximately 25 percent for each job classification, an immediate 32-percent increase, a mini- mum 15-percent increase upon promotion , and a yearly cost-of-living increase.52 The Union explained that these rates were competitive with those of similar jobs in other shops in the New York-New Jersey area. Kelly respond- ed that the department was operating at a loss and that the parties were "very far apart" on wages. Senick also asked if the employees would be given the 3-percent increase received by many other company em- ployees as a result of the wage study commissioned by human resources. 53 Kelly told the Union that Respond- ent was precluded from increasing wages unilaterally, but that Respondent was willing to discuss it . However, the employees would continue to undergo annual review and to receive increases pursuant to that process. Sen- ick's view was that Respondent was unilaterally with- holding an existing benefit. On February 4 the Union filed charges with the NLRB alleging a violation of Sec- tion 8(a)(3) and (5) of the Act. These charges were sub- sequently administratively dismissed by the Region.54 Kelly acknowledged on cross-examination that CSD would have been included in the wage study had they not been represented by the Union. The Company turned over its entire economic package on May 12. The wage proposal listed starting salaries and established an annual merit review system for deter- mining if an employee would be granted an increase. This proposal was not subject to arbitration. In January the Company had provided the Union with its current wage rates for both individual employees and for each job category. (R. Exh. 4.) In both cases the wages were expressed as annual salaries . Their first wage proposal to the Union however was expressed in terms of an hourly rate, and the Union subsequently converted its proposal into an hourly rate as well. In order to get a clear idea of what the Company was proposing in response to the Union's demands as com- pared to what the employees were receiving without the Union, conversion of the annual salary into an hourly rate was deemed necessary . The results reveal that Re- spondent's initial wage proposal was somewhat less than 52 The cost-of-living component was not expressly stated in the Union's wage proposal. Rather it was raised at the bargaining table and Senick acknowledged that cost-of-living increases keep the wages at the same relative level of earning power. Cost-of -living which was never ex- pressly included was also never expressly removed from the bargaining table. According to Senick "it died on the table." However, Kelly testi- fied that he assumed it remained on the table throughout the negotiations. 55 This study was carried out by "Sibson" and was frequently referred to by that title by the parties. 64 During negotiations, sometimes with reference to the Union's claim that the Sibson increase should be applied to unit employees, Kelly as- serted that the Union had a proclivity for filing frivolous grievances even when Respondent had expressed a willingness to work the problem out. Yet, as this section reveals, the Respondent never offered to grant the 3- percent across-the-board increase to these employees in spite of its will- ingness to "discuss' it. 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the starting annual salary already paid in those positions based on a 35-hour paid workweek, 52 weeks per year.55 The difference ranged between 1 cent and 5 cents per hour less under the contract proposal. Discussion of the Employer's proposal and the Union's counterproposal occurred on June 4. The Union had de- creased the increase in starting salaries from 25 percent to 19 percent, the across-the-board increase from 32 per- cent to 25 percent, and continued the 15-percent mini- mum guaranteed increase on promotion. Kelly comment- ed that a 25-percent increase was "ridiculous," but he agreed to look at it. Senick encouraged Respondent to look at the actual salary level, not the percentage in- crease. He asserted that the Union's proposal was really "not very much money" and that the numerous employ- ees who had left Prentice-Hall in recent months to assume positions elsewhere were "making considerably more than here." On several occasions during the negotiations the par- ties discussed the decrease in the unit's employee com- plement due to employee quitting. On May 5 Respondent informed the Union that the night supervisor had re- signed and, depending on the results of its efforts to re- place him and to fill the other vacancies, Respondent was considering closing down the night shift. By the June 24 meeting Respondent had hired 3 employees for the day shift but the night shift was down to 7 or 8 em- ployees from 18 or 20. Kelly informed the Union that there had been a slippage on productivity and in schedul- ing on the night shift and that Respondent was still con- sidering the option of closing it down. On both May 5 and June 24, Senick expressed his hope that Respondent would continue to operate a night shift. In early October Respondent was still interviewing po- tential employees and by November 5 a new employee had been hired on the night shift. Respondent had been operating with 35 employees since April,56 compared to the 50 employees who had formed the unit when the bargaining first began. On June 24 Kelly turned over Respondent's next pro- posal which included two new clauses. One clause per- tained to promotions which would trigger a review and a possible wage increase not to exceed 10 percent.57 The second clause limited an employee entitled to two wage increases in the same pay period to only the greater of the two increases, not both. According to Kelly this clause was added "to deal with the problem of merit and promotion increases being given at the same time." The proposal also included some increases in the wages for some job classifications. In all other respects the proposal remained the same. A discussion concerning annual wage increases fol- lowed. Kelly stated that the fixed annual increase sought by the Union was not in Respondent's best interest at 55 A 35-hour workweek was what Respondent offered initially and I have assumed that it would not have offered a shorter workweek than it already received from the employees. 55 As noted previously, the CSD unit was comprised of 35 employees at the time of this litigation. See sec. II,B, fn . 3, supra. 51 LLSD contained a guaranteed minimum 10-percent wage increase on promotion to a higher job classification. this time.58 Senick asserted that Respondent presently had a guaranteed minimum increase and that he could not understand Respondent's reluctance to agree to con- tinue this practice with the CSD employees. Kelly as- serted that Respondent's wage system included "a merit annual review which is open-ended to favor the produc- tive employee." Senick pointed out that there was no performance appraisal system against which employees would be measured and that Respondent's proposal left any and all wage increases in the sole discretion of Pren- tice-Hall . Kelly confirmed that this was Respondent's offer. The Union presented a revised proposal on July 8. The wage increase was divided into two steps; an 8-per- cent increase on signing the contract and an additional 7 percent months later. Senick asserted that this wage re- quest was "not out of line with the way Sibson was ad- ministered elsewhere in the Company" and its implemen- tation would bring salaries up to a competitive level.59 Kelly alleged that the Union had already "tried the Sibson ploy and lost at the Board ." 6O He also maintained that Respondent's proposal was competitive. On July 16 Kelly characterized the Union's previous proposal as "a step backwards" because of the com- pounding effect of the 2-step increase. He gave the Union Respondent's counterproposal which provided a guaranteed 5-percent increase only to those employees who received any merit increase, but still did not offer a guaranteed increase across the board. It adopted the Union's language granting employees receiving promo- tions "the minimum salary for that classification or a 10- percent increase, whichever is larger." Also the prohibi- tion against pyramiding increases for merit and promo- tions within a single pay period were removed. The arti- cle was still subject only to grievance, without recourse to arbitration and the actual wage levels remained the same as those in the earlier proposal. Senick requested information relied on by Respondent in formulating its wage proposal including wage surveys used to determine wage patterns in the area, the results of the Sibson wage study with respect to the CSD unit, and information on employees performing similar work elsewhere in the Company. Respondent answered this re- quest by letter dated September 24 (R. Exh. 8). In it Kelly provided the requested information and informed the Union that the Sibson study had not included CSD.61 Senick also inquired what the total cost of Respond- ent's proposal was and whether there were current mini- mums and maximums on salary increases. Kelly respond- ed that the cost of Respondent's proposal was "[five percent overall maybe," and that there was currently "[u]nder the guidelines that did and do exist" a maximum 12-percent increase and a minimum increase "in the four 58 LLSD contained a guaranteed 5-percent annual increase in addition to any merit increase given at the Employer's discretion. 89 The Union had previously given Respondent information on wages of other companies where employees were more well paid. 60 See discussion at sec. II,B,10, supra. 11 There was no attempt at the hearing to show that there existed such a disparity between the wage levels in the information provided and those proposed in the bargaining as to evidence bad faith. PRENTICE-HALL, INC. to five percent range." This last statement by Kelly tends to contradict his earlier position that Prentice-Hall relied solely on a merit review system for its nonunion employ- ees. (See discussion from June 24, above.) On September 3 Senick gave Respondent a wage pro- posal notwithstanding his having not yet received the wage information he had requested on July 16. He later admitted that this proposal was "a shot in the dark" made in an attempt "to move things along." In substance this proposal called for an 8-percent increase on current wages from the date the contract is implemented and a 9-percent annual increase exclusive of any additional merit increases given by the Employer.62 Respondent's proposal of October 22 increased the minimum salaries in some job catagories between 10 and 25 cents an hour. Still, by Kelly's own admission at trial (Tr. 1094), only 7 of the 36 employees, who were earn- ing less than this proposed new minimum , would have received an increase. Respondent also proposed language allowing it to pay a shift differential at its own discre- tion. Senick's initial response before studying the propos- al was that the minimum on wages was looked at much closer. He also reiterated the need for across-the-board increases. After reviewing Respondent's proposal , Senick gave the Union's reaction and counterproposal on November 5. He acknowledged again that they were close on mini- mums, but apart on both initial across-the-board increases and guaranteed annual increases. Kelly asserted that the Union failed to take into ac- count the raises given to CSD employees during the course of negotiations. Senick responded that the aver- age increases given in April and July had been less than 6 percent and that from his preliminary information on October increases it appeared that those were in the same range.63 He asserted that these increases were low compared to those previously given in CSD and to those given during the last several months to nonunion em- ployees, which included some increases of 14 percent. In response to those comments , Kelly stated that the guide- lines governing CSD were those that were in effect in September 1980, while those governing other employees had changed and therefore what occurred outside the unit had no relationship to CSD. He likened Senick's at- tempt to compare CSD's salary increases to nonunion employees "to compar[ing] apples to oranges." The chief difference between the parties by this date was, as Kelly pointed out, that Prentice-Hall's wage pro- posal was a merit system and the Union wanted a guar- anteed minimum raise plus merit. Senick asserted, both at the negotiations and at the hearing , that the Union's pro- posal reflected what happened, in practice, at Prentice- Hall. Furthermore, Respondent's wage proposal was not subject to arbitration, limiting employee or union re- course to protest an arbitrary grant of a less than 5-per- cent merit increases to the filing of a grievance (Tr. 62 By this date Senick had decreased the minimum starting salaries to only a 5-percent increase over the preunion starting salaries. as These dates were for annual reviews of employees whose employ- ment anniversaries fell within those quarters. 663 1099).84 Senick testified , "I also told the company that I couldn't agree to a wage proposal that wasn't subject to arbitration because it meant that I couldn't enforce the wage proposal, which was absolutely no good to me." (Tr. 135.) Canoni offered several specific examples : he pointed out that the Brandeis University contract with nonpro- fessional library employees had no automatic wage in- crease and was not subject to grievance and arbitration. However, Canoni failed to note several other features in- cluded in that wage package and not offered by Pren- tice-Hall. Brandeis University included a review proce- dure for evaluating employees and granted employees re- ceiving less-than-satisfactory rating a second review 3 months after the first one. In addition, the contract had a performance evaluation review appeal procedure where- by employees could question their supervisor's evalua- tion by going to, in succession , their department head, the university librarian or their designee , and the dean of the faculty. Canoni also pointed to the Winthrop Publishing, Inc. agreement with District 65 which contained merit review of employees. However, also unlike the Prentice- Hall proposal, it granted a minimum 6-percent increase, or the amount necessary to achieve the minimum scale for the employee's job and experience level, whichever was greater. According to Canoni, the Boston University contract with District 65 did not include a guaranteed wage in- crease or recourse to grievance and arbitration provi- sions. Contrary to Canoni's reading of this contract, this article granted salary increases in both the first and second years of the agreement (the term if the agreement was September 6, 1979 , to June 30, 1981) with additional merit increases permitted at the Employer's discretion without recourse to grievance and arbitration. In the bargaining agreement between Allyn and Bacon, Inc. (a former subsidiary of Prentice-Hall) and Local 925, Service Employees International Union, AFL-CIO there was a merit increase system with the possibility of no merit increase and no recourse to arbi- tration. In response to my questioning, Canoni also testi- fied that there was an across-the-board increase in that agreement as well and that no similar offer was made in the CSD negotiations. It was this type of proposal that Senick repeatedly sought to have included in the CSD agreement. Finally, both LLSD unit contracts had wage articles that were subject to arbitration and Kelly did not pro- pose their exclusion in the negotiations leading to the second LLSD contract. 11. Union shop and dues checkoff When Senick introduced the union-shop clause he em- phasized its importance to the Union . He stated that the 84 Since, as earlier noted, Respondent was insisting on language in its arbitration clause making grievances the "sole and exclusive " means for the settlement of all dispute, see sec 11,D,4, par. 9, supra, Kelly's later reference on re-direct examination to the possibility of a lawsuit to assert union claims of breach of the wage article (Tr 1262) must be completely discounted. 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD committee had developed a consensus within the shop that was overwhelmingly in favor of this proposal. Union negotiation committee member Richard Piper ex- plained that the union shop would prevent favoritism and friction among the employees because "all employ- ees must be treated the same in a Union Shop." He stated further that if he paid dues, he wanted others to pay them also, and that the shop steward would be stronger and fewer disputes would go to arbitration. Senick added that all employees underwriting the cost of the Union would obviate the need for further organizing. Kelly did not perceive any advantage for Respondent to have a union shop. He asserted that "[n]either a ma- jority of the unit wants a union shop or the union." He also stated that the contract would govern all unit em- ployees regardless of whether they were union members and that the root of what the Union wanted was the em- ployees' dues. Kelly also asked a number of questions concerning the application of the article to specific cir- cumstances in an effort to ascertain "where we might agree and where we don't agree." At the June 4 meeting, Senick asked if Respondent planned an answer to the union-shop clause. Kelly re- sponded, "We have more technical objections on check- off. Our objections to the Union Shop are much more on the basis of principle." Specifically, he asserted that the Union had not obtained a majority of the employees' votes at the outset, only a majority of the employees who voted, and that there had been high turnover within the unit. Senick's argument that a union shop was what the em- ployees wanted so that they would have strength did not provide Kelly with the "compelling reason to persuade us that the union shop clause is in our best interest. 1165 No further discussions of this clause were conducted before the negotiations broke off. 12. Complete agreement (past practices and other benefits) The Union included a clause in its original proposal that would require the Company to continue all practices and policies not expressly altered by the contract. Kelly's approach was, "[I]f something is not in the contract, it doesn't exist." He saw the Union's proposal as problem- atic because it did not spell out the intent of the parties and because of the potential expense of such general lan- guage "based on District 65's past record of filing griev- ances." The Employer responded with an article entitled "Complete Agreement" whereby no past benefits or practices would extend beyond the contract execution date. The contract would be deemed to express "the full understanding of the parties as to all of the terms and conditions of employment for all employees in the bar- gaining unit." In a second paragraph (29.1) the parties waived the right to bargain for the life of the agreement as to any subject matter not specifically referred to or covered. The first looseleaf editor contract also had a complete agreement article. It incorporated by reference the "poli- cies or benefits set forth in the current issue of 'You and Your Company' [YAYCO] applicable to all regular full time P/H employees" except as modified by the bargain- ing agreement. This provision was excluded from the grievance and arbitration provisions. In addition, the clause also stated that the parties had bargained fully concerning all terms and conditions of employment. In this last respect it was similar to the language proposed in the CSD negotiations. The second looseleaf editor contract contained sepa- rate clauses entitled "Complete Agreement" and "Other Practices." The complete agreement language was simi- lar to that proposed in the CSD negotiations except that it did not include the restrictive language governing past practices, policies, and benefits. The other practices clause incorporated the provisions in YAYCO to sub- stantially the same extent as YAYCO had been incorpo- rated in the first looseleaf editor contract. Kelly expressly rejected the Union's offer of July 8 to incorporate YAYCO by reference in the CSD agree- ment . He insisted that each provision be specified if it was to be considered an employee benefit or right and again raised the Union's record of frivolous arbitration as the rationale for his position. Yet, in spite of the fact that the grievances over job description which the Union had filed in the LLSD unit resulted in arbitrations costing the Employer in excess of $50,000 (Tr. 732)-a cost which Kelly attributed in large measure to the ambiguity in lan- guage of the first LLSD agreement-the second LLSD agreement continued to incorporate the employee bene- fits in YAYCO by reference. When pressed to explain this apparent discrepancy in approach in company dealings with the attorney-editors on the one hand, as opposed to its dealings with compo- sition service employees on the other, Kelly at first was evasive and confusing, and finally relied on a union grievance filed in the LLSD unit concerning an IRA plan benefit which he later conceded was not filed until April 1982, 5 months after CSD unit negotiations had ceased (Tr. 1085-1092). On October 15, Senick presented a list of subjects the Union wanted included in the CSD contract and which were contained in the current YAYCO.66 On October 22 the Company introduced a proposal on "Other Bene- fits" that expanded on the specific benefits from YAYCO that the Union had sought to be included in the agree- ment,67 and exempted the entire article from grievance and arbitration. This article was initialed without modifi- cation. The complete agreement proposal was not discussed again, however, Senick stated on October 22 that the Union would agree to something like this, but that it would wait until the end of negotiations to see what the entire contract said before doing so. 66 No provision for union shop was included in the first LLSD con- tract, however, dues checkoff was provided for in the second LLSD agreement. 66 Respondent had supplied Senick with a revised version of YAYCO in late June. 67 These included such benefits as food and refreshment services, park- ing, check cashing , book discounts, and the like. PRENTICE-HALL, INC. 13. Credit union checkoff The Union proposed that the Employer deduct from an employee's wages an amount authorized by the em- ployee and transmit those funds directly to the District 65 credit union. When Senick first presented this clause on February 26 he explained that out -of-state members could use the credit union only if there was such an automatic deduction. He stated further that he believed this requirement was imposed by New York banking law, but Krawczyk corrected his statement on July 8 when she explained that checkoff for out -of-state em- ployees was a union rule designed to expedite enforce- ment. At the July 16 meeting , Kelly rejected the Union's proposal on the grounds that in his view the credit union was union business "properly done by the union on it[s] own time and location." He reiterated this position on October 22.68 Senick questioned Kelly's approach because there was a similar provision in the LLSD contract. Kelly respond- ed, "I don't see the relevance in that." On cross-examination Kelly testified that checkoff was an "administrative headache" to the payroll department because it had to be done manually for a limited number of employees.69 However, credit union checkoff re- mained a part of the second LLSD contract which was signed even as the CSD negotiations continued. 14. Holiday for part-time employees The Union sought to have paid holidays granted to the approximately 20 part-time unit employees on a pro rata basis. Respondent offered to pay part-time employees who had worked a minimum of 900 hours in the preced- ing calendar year for up to five holidays per year, pro- vided the employee worked "both his scheduled work day before or [sic] his scheduled work day after the holi- day, unless unavoidably absent for a reason acceptable to Prentice-Hall."70 Respondent explained that the situations of part-time employees is different from that of full -time employees. Kelly asserted that part-time employees enjoy greater scheduling flexibility , more informal working conditions, and the option to apply for full-time employment if they want full-time benefits. In addition, if they work a mini- mum number of hours, they receive the same medical in- surance coverage as full-time workers because the insur- ance carrier makes no distinction between full - and part- time employees. Kelly further explained that Respondent had a different investment in full-time employees than in part-time employees. The parties differences on this article were never rec- onciled. ea This view of what constitutes union business as distinguished from employee matters typified Kelly's view of the union-employee relation- ship. See discussion sec. II ,D,4. par. 31, supra 89 In this regard Kelly stated he considered checkoff to be an "eco- nomic item," but he never conveyed this belief to the Union (Tr. 1113). 70 This "wrap around" language was agreed on in the holiday article governing full-time employees. 665 15. Term of agreement Senick twice attempted to establish the term of the bargaining agreement being negotiated . He informed Re- spondent on September 24 and October 22 that the Union's position was that they were discussing a 12- month proposal . Kelly maintained that Respondent had not proposed any time period and that their position re- mained open. E. An Overview of the Bargaining Sessions: Their Format, Number, Frequency, Length and Pace, and the Circumstances of their Ultimate Termination The first bargaining session was held at 6 p .m.71 on January 22. This meeting was well attended with 5 per- sons representing Respondent and 14 representing the Union.7 2 After submitting the bulk of the Union's con- tract proposals, a brief caucus followed7S and the parties agreed on February 12 for their next meeting. The February 12 meeting was attended by 4 represent- atives for Respondent and 15 representatives for the Union. The meeting began at 6:22 p.m. because the Union held a caucus first. Senick stated that the purpose of this meeting was to review the union contract propos- als and to get Respondent's reaction to the various arti- cles. At 9 p.m., after discussing several articles , Senick suggested the meeting continue until 9 :30 p.m., but Ber- nice Krawczyk wanted to conclude the discussions at 9 o'clock and vetoed Senick's suggestion. Before this meeting ended Senick noted that Thursday nights were good for meeting and opined that they should "try to set dates. Many dates." Kelly agreed to "schedule a couple of sessions, but let's not get too far ahead of ourselves." Meetings were scheduled for Febru- ary 26 and March 5. The third bargaining session was held on February 26, as scheduled, and concluded at 9 p .m. at Senick's re- quest. The next session took place on March 12, the March 5 date having been canceled because of snow. Re- spondent was represented at each of these sessions by its entire five-person committee. The Union was represented by nine and eight persons at each meeting, respectively. The Union completed its presentation of proposals on March 12. Kelly suggested the next meeting be held 3 weeks hence, on April 1, to allow Respondent an oppor- tunity to draft its proposals, submit them to the Compa- ny's executive committee, and deliver copies to the Union in advance of the next meeting. On April 1 Respondent's full committee met with Senick and nine other individuals who formed the union committee. Senick stated that he had met with the em- ployees once since he received Respondent's proposals and the Union's impression was that the parties were "far apart" in their approach and on most items. Senick cau- cused with his committee for approximately 1 hour. 71 All bargaining sessions commenced at or around 6 p .m. unless other- wise noted. 72 The bargaining parties are described in greater detail in sec. li,C, supra. 79 Caucuses were held on a regular basis throughout the negotiations. The notes do not always indicate which side requested these breaks but Kelly testified that several were caused by Respondent. 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When they reconvened Senick gave Respondent several counterproposals. He also inquired about articles that were in the Union's proposed contract, but for which there were no specific articles in Respondent's proposed agreement. In response Kelly offered Respondent's view of what the contract would be. Our position is, if it's not in the contract, it doesn't exist.74 Our purpose is to avoid reliance on casual language. We would like to put the contract to bed during negotiations, not continue to argue about what we said after it's signed. If you look carefully at our proposals, you will see that many of these areas of concern have been covered. Senick noted a difference in approach between the parties to the past practices clause and some preliminary discussion of other clauses followed. Before the meeting ended the parties agreed to meet on April 9. Kelly also informed the Union that the Company was seeking em- ployees for both the day and evening shifts. Senick and his committee remained to meet among themselves after informing Respondent that its presence would not be re- quired. The meeting concluded at 7:30 p.m. The April 9 meeting was attended by Respondent's five-member committee and nine representatives for the Union. During the course of discussing the recognition clause Kelly raised the previously withdrawn unfair labor practice charge as a reason organizing activity should be limited on Prentice-Hall's premises. Senick changed the subject and turned the discussion toward the various clauses he found objectionable. A number of items were discussed before the Union called for a caucus at 7:35 p.m. At 8:45 p.m. they recon- vened until 9:10 p.m. Before the session ended Senick of- fered to meet the following evening or the following Tuesday. Neither date was convenient for Kelly who suggested they meet on April 21. Senick agreed. During the April 21 session various clauses were dis- cussed and a 5-minute caucus was held at the Union's re- quest. Toward the end of this session Senick asked about the Company's economic proposals and expressed his ea- gerness to conclude the agreement after so many months. Kelly offered to come back with language on several ar- ticles, but stated that because two or more members of Respondent's committee would be out of town for the next 2 weeks, they would not be able to meet until the week of May 11. Senick objected to this delay. He argued that as chief spokesperson only Kelly's presence was required. Kelly responded that his committee's pref- erence was not to meet without a majority of the com- mittee present. He added, "there's a lot to get done and a lot to consider, we wouldn't want to rush through." Senick reluctantly agreed to meet on May 12 and re- quested another session the following week. May 27 was agreed on. On May 12 and 27 the meetings were held as sched- uled. Respondent's entire committee met with Senick and 74 This statement had been made by Kelly on other occasions during the negotiations. several other individuals on behalf of the Union. (There were seven and four persons in addition to Senick at each meeting, respectively). Many proposals were dis- cussed and a caucus was requested by Senick during each meeting. On May 12 Respondent gave the Union its economic package. The negotiators met for the 10th and 11th times on June 4 and 11. At Senick's request the June 4 session began at 6:20 p.m. to allow time for him and his five committee members to meet. On June 11 Senick and three others represented the Union's position. A half- hour caucus was held during each of these sessions.75 Senick was accompanied by six individuals at the next two meetings, held June 24 and July 7.76 On June 24 the meeting followed the usual format of the parties' trading proposals, discussing their positions, and holding a caucus (this one at Senick's request) at some point during the evening. On July 7 Senick delayed the start of the meeting by 35 minutes in order to meet with his commit- tee. Fifteen minutes after calling for a caucus at 8 p.m., Senick went to Respondent's caucus room to deliver a proposal, to arrange for two future meetings, and to indi- cate to Respondent that there would be no need to re- convene that evening. July 16 and 23 were the 14th and 15th sessions. Re- spondent's full committee attended on both dates. Senick was accompanied by Krawczyk and two others on July 16 and by only the two other individuals on July 23.77 These sessions proceeded in the usual manner. At the end of the July 23 meeting, Senick announced that he would like to perpetuate the momentum he felt they had developed and begin wrapping up the negotia- tions. He stated, "We have significant movement in these back-to-back sessions. If we could meet regularly we could get the same accomplished in the future."78 Fur- ther meetings were scheduled before their session con- cluded at 9:10 p.m. The August 12 meeting followed the usual format. A caucus was held before the meeting ended at 8:25 p.m.79 The 17th and 18th meetings, held September 380 and 24, were attended by four of Respondent's five negotia- tors and by only Senick and one other person for the Union. Senick opened the September 3 meeting by an- nouncing that after a week in Maine he had "come back and taken a new perspective on these negotiations." This meeting ended at 6:50 p.m. when the parties broke for a caucus and agreed to meet again on September 24.81 On 's The notes do not indicate who called the caucus on June 4, and the one on June I I was held at Senick's request. 76 Among those accompanying Senick was Bernice Krawczyk. '7 The union committee remained small at successive negotiations ses- sions. Caucuses were held at each of these sessions but the notes do not indicate who called them. 18 For a summary of the progress made over the course of the negotia- tions, as evidenced by agreement on specific articles, see see. 11,D,1, fn. 8, supra. 79 The notes do not disclose who called this caucus. 80 A session had been scheduled for August 19 but was canceled by Senick (Tr. 168). b' There is no indication who called this caucus. PRENTICE-HALL, INC. September 24 a half-hour caucus was held during the course of the meeting. That session concluded at 7:40 p.m. with the scheduling of two future meeting dates. The final three negotiation sessions were held on Oc- tober 5 and 22 and November 5.82 The Union 's commit- tee was slightly larger at these sessions than it had been at the previous two. At the close of the November 5 meeting the parties scheduled another session for No- vember 19. The November 19 session never occurred . According to Kelly, Senick telephoned him on November 17 to cancel the November 19 date and reschedule the meeting for November 25. Kelly testified further that he told Senick that he would get back to him. Kelly did, in fact, send a letter to Senick dated November 18. (R. Exh. 9.) Senick testified that he received a letter from Kelly advising him that the Company had received a petition from the employees indicating that they did not want the Union, and that the Company had filed an RM petition with the NLRB Regional Office.83 I credit Senick's tes- timony over Kelly's assertion that Senick changed the date of the November 19 meeting because it is inconsist- ent with the text of the letter mailed by Kelly to Senick which concludes as follows : "Accordingly, our sched- uled meeting for Thursday, November 19th should be considered canceled." When I repeatedly pressed Kelly to account for the discrepancy, he could offer no expla- nation (Tr. 829-830), In the November 18, 1981 letter Kelly states "On the basis of [the] petition and other objective evidence,84 and yesterday's expiration of District 65's certification year, Prentice-Hall has a good-faith doubt that District 65 continues to represent a majority of the employees in that bargaining unit." Kelly then refers to the Company's filing of the RM petition and declines to bargain further. The Union's charge in this case preceded this letter by 13 days, having been filed on November 5, 1981, prior to the last meeting held between the parties the evening of that day. Prior to filing of the charge , Senick had learned of some dissatisfaction among unit employees with the Union's inability to get a contract. Regarding the frequency of meetings, a pattern devel- oped early in which the Union, by Senick, generally sought more frequent meetings than the Respondent, with Kelly as spokesman, was willing to arrange. Thus, after the second meeting held on February 12, Senick testified he sought another session the following week but that the Company would only agree to meet in 2 weeks. The notes show Kelly responding to Senick's re- 82 There is no indication who called any of the three caucuses held at each of these meetings. 83 The petition filed on October 18 in Case 22-RM-588 was acted on by the Acting Regional Director for Region 22 who dismissed the peti- tion on January 19, 1982, "without prejudice to reinstatement , if appro- priate, on the final disposition " of the unfair labor practice case at bar. A copy of the petition , introduced into evidence by Respondent (R Exh 12) contains 14 legible signatures and evidence of 5 or 6 others that are illegible. The petition states that the undersigned employees desire the de- certification of the Union . In his letter, Kelly refers to this petition as having been signed "by over 50 percent of the employees in the [CSD] bargaining unit." Since April 1981 , Respondent had been operating with a complement of 35 employees. 84 Kelly never clanfied this phrase During the course of bargaining he referred occasionally to the high turnover among unit employees. 667 quest to set many dates, "[L]et's not get too far ahead of ourselves." The problem arising at the close of the April 21 session has already been discussed, including Senick's unsuccessful request for a meeting in the week of May 19. Senick's July 23 request for more frequent meetings after "the sixth or seventh month of bargaining " as con- firmed by the notes of that session was also rejected. At the close of the October 5 session, Senick's request for a meeting the following week was not fulfilled , and the next meeting took place on October 22. Again , the Com- pany rejected a meeting the following week and met for the last time on November 5. To the extent Kelly has disputed any of the union requests or the attribution to him of negative responses during his testimony, I credit Senick, particularly in light of the discussions of this matter contained in the Respondent's bargaining notes, my discrediting of Kelly's testimony regarding the can- cellation of the November 19 session , and the corrobora- tive testimony of Mariella Signoretto, an employee- member of the Union's negotiating committee (Tr. 1290- 1292 and Tr. 1393). In contrast to the slow pace of session dictated by the Respondent for the composition services unit , bargaining for the second LLSD contract proceeded weekly in the beginning and twice a week thereafter, Kelly's denial to the contrary notwithstanding. F. Credibility In the immediately preceding section of this decision with the timing of the bargaining sessions, I discredited Kelly's denials that he was responsible for cancellation or delays in meeting. It remains to consider a more seri- ous matter involving the credibility of both Kelly and Respondent's counsel, Madigan, when the former, in tes- timony, and the latter, in cross-examination of Senick and in direct examination of Kelly, sought to establish that Senick in the course of the bargaining sessions had not objected to Respondent's proposals excluding various provisions from arbitration, refusing to make layoff and recall subject to seniority, the broad management-rights clause including the "precedence" language and no-strike clause assessing individual liability and liquidated dam- ages, or the clause making grievances the sole and exclu- sive means for the settlement of all disputes . Time after time, Senick was confronted with his pretrial affidavit which failed to discuss his objections to these matters at particular bargaining sessions. Thus, Senick was forced to agree he had not referred in his affidavit to his con- cern with the exclusion of matters from arbitration at the May 12 session (Tr. 402-403). Similarly, Kelly on direct examination denied that Senick at the April 9 session had ever stated in "words or substance" that he could not agree to corrective discipline unless it was tied to arbitra- tion (Tr. 746). These are only two examples of many in- stances where Respondent attempted to show union ac- quiescence at the bargaining table to Respondent's pro- posals which the General Counsel claimed in argument made at the hearing constitute evidence of bad-faith bar- gaining. Other examples appear at Appendix 2 to the General Counsel's brief. In each of the examples cited, as well as the others, the Respondent's bargaining notes of 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the sessions that subsequently were produced on demand and became the agreed factual, albeit incomplete, record of what transpired at the meetings,85 establishes that Senick repeatedly, and at the meetings as to which he and Kelly were questioned, raised the appropriate objec- tions. Thus, on May 12, the notes quote Senick as saying, "On 13.4 your exclusion [sic] that article [seniority] is not subject to grievance arbitration is unacceptable. Frankly, I don't see any changes." And, on April 9, Senick is quoted as follows: With regard to 4.6 [of Rules and Discipline] it is not what we want. The only adequate protection for employees is to have a just cause clause with re- course to the grievance and arbitration mechanisms. . . . With regard to 4.8, we're not interested with- out essential grievance and arbitration protection. The earlier presentation of the areas in disputes in this decision is replete with numerous references to Senick's objections to Respondent proposals severely limiting ar- bitration, precluding any means of contract enforcement for disputes subject to grievance procedures, giving pre- cedence in arbitration to management rights in conflicts with other contract clauses, and its liquidated damages and extensive individual liability in the event of a strike in violation of the no-strike clause (See, e.g., sec. II,D,3,4,6,7,9, supra). Respondent's chief witness, Kelly, as well as its coun- sel, Madigan and Canoni, who also participated in the negotiations and had reviewed Prentice-Hall's own bar- gaining notes prior to the hearing, were or should have been aware that Senick had indeed raised appropriate ob- jections to these major differences cited, among others. Thus, one may reasonably have a great degree of skepti- cism when weighing Kelly's or counsels' assertions that they could have, in good faith, sought to impugn and indeed impeach86 Senick's testimony by reliance on the theory of failure to include such matter in his affidavit or by virtue of Kelly's negative response to questions couched repeatedly in the language of whether Senick had raised objections either in word or substance. Kelly is thoroughly discredited by virtue of his firm denials to such inquiries which Respondent's own document show to be patently false, and counsel had no business assert- ing claims that they knew to be unsupported by material prepared by and in Respondent's possession and re- viewed by them prior to the hearing. (Tr. 1359.) As both counsel were active participants in the negotiation proc- ess,S7 their position in this matter may also shed light on the issue of the merits of Respondent's defense that it, indeed, sought in good faith to reach agreement and, 85 See sec. I1,D,1, in. 8, supra. 86 On the record, Canoni claimed the omissions from Senick's affidavit warranted his impeachment and buttressed Respondent's claim that the Union had not objected to the contract proposals which now formed the heart of the General Counsel's case of bargaining in bad faith (see Tr. 622, 663-664). "l Both are also named as agents of Respondent who are alleged to have negotiated with the Union in bad faith in an amendment of the com- plaint offered and received in evidence in response to Respondent's pre- trial motion for a bill of particulars (Tr. 8). thus, did not engage in a refusal to bargain in violation of the Act. One other significant credibility issue is raised by Kelly's denial, under oath at the July 16 session, that he "in words or substance" asked whether the Union was "willing to forgo the right to union activity at the Com- pany in order to reach agreement ." (Tr. 784.) Canoni also denied he heard that (Tr. 1345-1346). Senick testi- fied that at this session the parties again got into a discus- sion on the issue of union activities on the company premises. According to Senick he told Kelly he thought it was an illegal clause and that the Union could not agree to waive the employees' Section 7 rights to engage in union activities. Senick believed Kelly replied that "the employees had no absolute right to the union activi- ties and that we should ask them . . . if they were will- ing to give up those rights or not to get some agree- ment." (Tr. 153.) At the July 23 session, the notes shown Kelly agree with Senick's assertion that "the primary difference [on the grievance procedure article] is the on-premises re- quirements." Senick also stated the committee could not abridge employee statutory rights. Kelly asked if this po- sition was in the self-interest of the Union or to establish an effective grievance mechanism. Senick asserted a ma- jority of the employees wanted this and the discussion concludes. Having in mind Kelly's statement at the June 4 session that "the union did not obtain a majority of the employees in the unit," the fact that the parties were in locked positions on this issue by July and not. until the last session on November 5 did the Company finally offer to limit the prohibition of union activities to a "work area" rather than the "premises" in the union stewards article where the prohibition had, since August 12, been lodged,88 and in consideration of having gener- ally discredited Kelly as a reliable witness on certainly the confrontations involving the most serious differences between the parties expressed at the various sessions, I conclude that Kelly did insist on a poll of the unit em- ployees to seek a waiver of the exercise of a Section 7 right in order to reach agreement on the grievance arti- cle. Senick proved to be a generally reliable witness whose testimony was corroborated to a very high degree by the bargaining notes, and where, as in this instance, it does not appear in the July 16 notes but does not conflict with them, I am prepared to credit Senick that such an interchange took place as he has sworn, but that it took place at either the July 16 or 23 session. Analysis and Conclusions In Chevron Chemical Co., 261 NLRB 44, 46 (1982), the Board has described the standard governing the duty to bargain in the following language: [I]n ascertaining whether the duty to bargain in good faith has been complied with, it must be re- membered that Section 8(d) does not "compel either party to agree to a proposal or require the making of a concession . . . ... Thus, the Board does not, " See sec. II,D,4, supra. PRENTICE-HALL, INC. "either directly or indirectly, compel consessions or otherwise sit in judgment upon the substantive terms of collective-bargaining agreements." NLRB v. American National Insurance Co., 343 U.S. 395, 404 (1952).6 On the other hand, as stated by the Su- preme Court, "[T]he Board has been afforded flexi- bility to determine . . . whether a party's conduct at the bargaining table evidences a real desire to come into agreement . . . . And specifically we do not mean to question in any way the Board's powers to determine the latter questions, drawing inferences from the conduct of the parties as a whole." NLRB Y. Insurance Agents' International Union, AFL-CIO [Prudential Insurance Co.], 361 U.S. 477, 498 (1960). The Board does, of course, with court sanction, consider the content of bar- gaining proposals as part of its review when making a determination as to the good faith of parties nego- tiating a contract.7 But see fn . 10, infra. 7 See, e g , Seattle-First National Band v. NLRB, 638 F.2d 1221, 1225-1226 (9th Cir. 1981); Pease Company Y. NLRB, 666 F 2d 1044 (6th Or. 1981). In Chevron, supra at fn . 10, the Board noted that un- usually harsh, vindictive, or unreasonable proposals may be deemed so predictably unacceptable as to warrant the evidentiary conclusion that they have been proffered in bad faith, citing Pease Ca v. NLRB., supra at fn. 4, and cases cited with approval, but rejected the application of that principle to the proposals at issue in Chevron. In the same decision the Board also recognized that the search to determine whether there has been compli- ance with the standard must often be based on circum- stantial evidence and entails an examination of the whole record: Determining whether parties have complied with the duty to bargain in good faith usually requires examination of their motive or state of mind during the bargaining process, and is generally based on circumstantial evidence, since a charged party is un- likely to admit overtly having acted with bad intent. Hence, in determining whether the duty to bargain in good faith has been breached, particularly in the context of a "surface bargaining" allegation, we look to whether the parties' conduct evidences a real desire to reach an agreement-a determination made by examination of the record as a whole, in- cluding the course of negotiations as well as con- tract proposals. [Chevron, supra at 645.] An analysis of the record must start with the simple fact that the Union was certified as exclusive bargaining representative following an election in which it received a majority of the votes cast. That status cannot be under- mined by the claim, advanced by Kelly in discussions re- garding the union-shop and dues-checkoff demands, that the Union did not represent the majority of the employ- ees in CSD because they received only 25 votes out of the total complement of 50 employees. Put another way, the Union, in winning the election by 1 vote had the 669 same legally recognized status as a union that had won by 20 votes. And the Union was entitled to the same duty to negotiate regardless of the size of its plurality among all employees or the extent of its majority among those employees who chose to cast a ballot. Over a period of 11 months, a series of 21 meetings were held, during which time tentative agreement was reached on over 20 bargaining subjects , but at the end, the parties remained far apart on 15 other items . Many of these 15 items were central to the Union 's role as exclu- sive representative and collective-bargaining agent for the unit employees in determining jointly with the em- ployer the terms and conditions of their employment. In a significant number of these subjects the Respondent's proposals undermined the Union's role and made evident an intention of denying to the Union any effective voice in jointly determining the terms of employment or in en- forcing the terms and conditions of employment on which the parties had already tentatively agreed or which were embodied in the proposals that Respondent had made or modified in response to union demand. Thus, only after a series of meetings and toward the end of lengthy bargaining was the Union able to obtain the reluctant "concession" that disciplinary action against employees would only be taken for just cause-a well- recognized and well-defined standard. Yet, Respondent's concession was illusory. This was so because the final ar- biter of the application of that standard to a particular disciplinary act was to be the Company itself, company conduct was not to be subject to third -party review. Furthermore, because a disciplinary act was grievable, under the Respondent's sole recourse proposal, the Union was limited to grieving an incident and could nei- ther, in view of the Board no-strike article and the sole recourse language, engage in self-help or a contract action to enforce the just-cause standard or correct an al- leged breach of it. As Kelly explained on the witness stand, the Union could not bring a lawsuit disputing a Respondent's disciplinary action (Tr. 1290). In its brief, Respondent suggests that the sole recourse language nonetheless permitted breach of contract ac- tions for all disputes not subject to arbitration . The plain meaning of Respondent's proposal ("the procedures set forth here and in Article 5, grievances shall serve as the seol and exclusive means for the settlement of all dis- putes that may arise between them") belies that claim. When coupled with Kelly's clear testimony on this point the matter is free from doubt . Contrary to Respondent's attempt in its brief also to portray Senick as understand- ing and sympathetic towards its strained , after the fact, interpretation of the sole recourse clause , the Union's chief negotiator protested early , on receipt of the compa- ny proposal, that "many of the clauses would be unen- forceable. I would have no means of resolving disputes between us." (See sec. II,D,4 , fn. 25 supra.) Senick's comment at the October 5 session cannot be taken as agreement to Respondent's posthearing reinterpretation. (See sec. II,D,4, supra.) Even if it was, that does not change the legal effect and impact of Respondent's pro- posals on the arbitration and rules and corrective disci- 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pline articles that were finally never agreed to for the reasons stated above, among others. Not only was the Union limited to grieving discipli- nary decisions but it could not be assured that even rela- tively minor rules, infractions, or alleged unsatisfactory performance would be subject to the progressive disci- pline procedure. Thus, employees were not assured of notice by warnings or evaluative review which would provide them with reasonable time to improve their per- formance before being subject to discharge or other severe discipline not itself subject to any effective union review or recourse. What has been said about the impact of the sole re- course language affected, of course, not only disciplinary acts but all matters made grievable under the proposed agreement. I do not believe any terms or conditions of employment were excluded from the grievance proce- dure, but a significant number were excused from arbi- tration; among them, profit sharing, other benefits, wages, rules and corrective discipline, seniority, medical and life insurance, and subcontracting. Respondent's rejoiner to the Union's demand for arbi- tration as a last resort for disputes arising in these areas does not withstand close scrutiny. The so-called frivo- lous and costly arbitrations under the first LLSD con- tract did not cause Prentice-Hall to seek the exclusion of, e.g., seniority or discharge disputes from ultimate resolu- tion through arbitration in the second LLSD contact. Neither did the costly nature of the arbitrations cause Respondent to seek a tightening of the time limits for processing grievances to arbitration under that agree- ment. See sec. II,D,4, fn. 15, supra. Furthermore, there was no evidence that as to disciplinary actions by the Employer, the Union, representing these employees, would act in an irrational or abusive manner. And it was the exclusion of arbitration from the rules and corrective disciplines article that was central to the Union's ex- pressed concerns, not promotion or upgrading-the issues arbitrated under LLSD I. In its brief, Respondent refers to the fact that the man- agement-rights article was made subject to binding arbi- tration. Therefore, it argues, the Union could seek an outside award restricting the application of that article to conduct alleged to breach another clause. In answer, first, that other clause itself had to be arbitrable, because the Union would grieve a breach of another clause and the Company would interpose the management-rights ar- ticle in its defense and, as already noted, at least seven articles governing certain benefits and working condi- tions were not, including, in particular, seniority and cor- rective discipline. See Florida Machine & Foundry Co., 174 NLRB 1156 (1969), remanded 441 F.2d 1005 (D.C. Cir. 1970), supplemental decision 190 NLRB 563 (1971), enfd. sub nom. Steelworkers v. NLRB, 78 LRRM 2895 (D.C. Cir. 1971). Second, the broad range of manage- ment rights diminished and restricted the areas over which the parties had a joint role. Third, the precedence language on which Respondent insisted to the end makes clear that the broad and specific range of matters over which the Company exercised unilateral control, includ- ing a whole host of personnel decisions, among others, affecting the operation of its business, would and must prevail in any conflict with another clause, not only where, as asserted by Respondent in its brief (R. Br. 66), the clause was unsupported by specific conflicting lan- guage. Certainly, no argument would be persuasive to an arbitrator based on an interpretation of another clause that did not in haec verba establish the claim as against a specific management right. Respondent's further assertion that it would not be able to enjoin a strike protesting nonarbitrable grievances under Boys Markets v. Retail Clerks Local 770, 398 U.S. 235 (1970), and Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976), is small comfort89 when the Union would surely face the strong likelihood of success against it in a damage action under Section 301 of the Act alleg- ing breach of the express and broad no-strike commit- ment, Ryder Truck Lines v. Teamsters Local 480, 727 F.2d 594 (6th Cir. 1984), cert. denied 469 U.S. 825 (1984). Just as in Ryder, the no-strike pledge would have been given, if the parties had agreed to Respondent's last proposal made on October 5, in exchange for the Company's no- lockout pledge, and not in exchange for the onerous, narrow, and slanted grievance and arbitration procedure. That being the case, just as in Ryder, the no-strike clause clearly applied to disputes over nonarbitrable, as well as aribtrable, matters. Thus, strikes to protest discharges, disciplinary acts, personnel actions in which seniority was disregarded as well as arbitrary wage decisions af- fecting one or all employees would violate the no-strike clause and subject the Union not only to suit but to the punitive and extensive liquidated damage provisions in- sisted on by Respondent and, as noted at sec. II,D,7, par. 5, supra, without the necessity of first bringing the matter to arbitration. The conclusion is almost self-evident from the forego- ing that the conjunction of Respondent's grievance, arbi- tration, management rights, rules and corrective disci- pline, no-strike, and seniority proposals established such a disparity between the rights the Respondent would enjoy, as against the disabilities the Union and employees would suffer because of the lack of effective monitoring and enforcement of even the limited benefits and rights granted by Respondent, that the agreement proposed by Respondent lacked mutuality and was not mutually en- forceable. As observed by the Board in San Isabel Electric Serv- ices, 225 NLRB 1073, 1079 at fn. 7 (1976): We have consistently found bad-faith bargaining in cases in which an employer has insisted on a broad management rights clause and a no-strike clause during negotiations, while, at the same time, refusing to agree to an effective grievance and arbi- tration procedure. See generally, Kayser-Roth Ho- siery Company, Inc., 176 NLRB 999 (1969); ITT Henze Valve Services, Controls, and Instruments Divi- 89 It is also decidedly unclear whether the principle of Boys Market would apply where Respondent's last no-strike proposal made on Octo- ber 5 provides an agreement by the Union that Prentice-Hall may sue, inter alia, for injunctive relief. Would not this language constitute a waiver of the rights the Union could assert under Boys Market and Buffa- lo Forge with respect to a strike over a nonarbitrable subject? PRENTICE-HALL, INC. sion, ITT, 166 NLRB 592 (1967); East Texas Steel Castings Company, Inc., 154 NLRB 1080 (1965); "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527 (1960). In Continental Insurance Co. v. NLRB, 495 F.2d 44 (2d Cir. 1974), the court recognized that in addition to other indications of bad faith, some of the employer's proposals made "it impossible for the Union to reach a collective- bargaining agreement without virtually surrendering its right to represent the employees in disputes over work- ing conditions ...... Id. at 48. Particularly apt was the court's highlighting of the employer 's insistence on a no- strike clause coupled with a limited opportunity for arbi- tration of disputes. The court stated that "[t]he Board was fully justified in concluding that the proposal was not made in good faith." Id. at 49 . Also, just as in the instant case, the Company insisted on union agreement not to organize (or represent) other company employees. See also American Parts System , 232 NLRB 41, 47-48 (1977), in which the Board, quoting from San Isabel, supra at 1080, stated: The Company's proposed contract in effect "would strip the Union of any effective method of representing its members" further excluding it "from any participation in decisions affecting impor- tant conditions of employment . . . thus exposing [the company's] bad faith." When the onerous demand made here , not present in either San Isabel or Continental Insurance Co., prohibit- ing union and employee recourse to the courts to redress all contractual matters on which Respondent had the last word under the grievance procedure, is added to the other restrictive and punitive demands on which San Isabel and Continental essentially relied, it is clear that Respondent made throughout the course of bargaining such unusually harsh, vindictive, and unreasonable pro- posals to warrant the evidentiary conclusion that they were offered in bad faith, in violation of the duty to bar- gain under Section 8(a)(5) and (1) of the Act.90 See NLRB v. Wright Motors, 603 F.2d 604 (7th Cir. 1979); see also A-I King Size Sandwiches, 265 NLRB 850 (1982), and Kayser-Roth Hosiery Co., 176 NLRB 999 (1969).91 In fact, the employees would have been better off without the Union than with the contract Prentice-Hall proposed. Without the Union, the employees could peacefully strike over any alleged unfair employer policy 90 Although there is no evidence or claim of independent 8(a)(1) or (3) conduct in this proceeding, I note that this Employer has been found to have violated those sections of the Act by conduct engaged in the period immediately prior to, and overlapping the beginning of, negotiations in this proceeding regarding certain clerical employees employed at its West Nyack, New Jersey facility where the same charging union had engaged in organizing activities in mid- to late-1979. Prentice-Hall. Inc., 258 NLRB 1340 (1981). 91 "Viewed together, these three interrelated demands-broad freedom to act unilaterally in the treatment of employees, denial of an amicable and definite method for final resolution of the predictable and recurring disputes in the administration of the contract and the surrender of the employees' statutory right to act in concert-persuasively indicate a per- vasive intent to deny the employees the right to an effective collective voice in their economic destinies." Kayser-Roth Hosiery Co., id. at 1003. 671 directed to them or any unjust personnel decision with- out fear of damage liability of any sort. Without the Union, a disciplined employee could seek to assert under New Jersey law in an appropriate case falling within the public policy exception, claim to wrongful discharge-a claim probably foreclosed by the sole and exclusive means contract language on which Respondent insisted. The public policy exception to the employment-at-will principle was applied by the Su- preme Court of New Jersey to a retaliatory discharge in Lally v. Copygraphics, 85 N.J. 668,428 A.2d 1317 ( 1981), in which the plaintiff alleged a wrongful discharge aris- ing from her filing of a compensation claim . Until Re- spondent deleted its 6-month-old demand prohibiting the exercise of Section 7 rights by employees on its premises, the employees and the Union would have been unable to retain their full organizational rights under the Act with- out any restriction whatsoever.92 That Respondent final- ly transferred this restriction to the stewards ' article and then, at the last meeting, agreed to permit the union steward to perform his duties in a nonwork area is not evidence of good-faith bargaining , but rather evidence of the lengths to which Prentice-Hall was prepared to go to stretch out and unduly prolong the bargaining process to the point where employees would predictably lose inter- est and a decertification petition could be timely filed. Such a demand, including the insistence on a poll of unit employees to seek a waiver of the exercise of such rights, was unlawful and the Union could not legitimate- ly waive these basic organizational rights under the Act. NLRB v. Magnavox Ca of Tennessee, 415 U.S. 322, 325 (1974). Kelly's justification for such a waiver of basic rights, that the unit should be limited "to unit business" and that permitting such activity will lead to the filing of charges, is no justification at all, indeed there could be none. Just as in Romo Paper Products Corp., 220 NLRB 519, 526 (1975), "as long as the Respondent insisted on these demands it adopted a position so demonstrably antithetical to the bargaining principle as to constitute a defiant breach of Section 8(a)(5)." The employees also would have been at last equally well off without the Union as to those among the 23 agreed items that merely provided the existing YAYCO benefits granted unilaterally to all nonunion employees. Even to achieve parity with nonunion employees, nu- merous bargaining sessions were held before Prentice- Hall would finally agree to provide YAYCO benefits, e.g., in the areas of profit sharing , leave of absence, holi- days, severance pay, and vacations (this last agreement not having been reached until October 22 after the ex- change of eight written proposals). Furthermore in a number of areas the Company, without adequate expla- nation, refused to offer benefits provided the LLSD em- ployees. For example, without any restriction on the time for jury duty imposed on the 15 percent of nonat- torney-editors in the LLSD unit, Prentice-Hall insisted on such limits for the composition service employees. Also credit union checkoff was rejected for these em- 92 For 2 months after making its bargaining proposals on April 1, Re- spondent would have even prohibited steward-employee grievance meet- ings any where or time on its premises 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees as was arbitral review of seniority decisions, at the same time these were agreed to in the second LLSD unit contract. As to the other benefits article, there was some prevarication, but finally, no justification, for Pren- tice-Hall's refusal to incorporate the YAYCO benefits by reference as it had in the LLSD agreements . See sec. II,D,12, supra. Requiring the Union to list these other benefits seriatim before agreement about their retention could be reached was another cause of the stretch out in bargaining which prolonged it to the end of the certifica- tion year. Another area where the duration of bargain- ing, covering almost every session held from their sub- mission in April to October or November, showing the length to which the Company was prepared to go in set- ting up road blocks to meaningful agreement , was re- garding both the arbitration and grievances articles. Their history is recounted at sec. II,D,4 and 5, supra, re- spectively. Although agreement was reached on one of the two grievances, the Company's proposals in certain procedural and even substantive areas where agreement would normally have been considered easily achievable excessively prolonged the negotiation process to the point when employee unrest and dissatisfaction with the Union could have been predicted. Regarding wages, the Company 's unwillingness to pro- pose even a guaranteed minimum 5 -percent increase in the face of persuasive evidence that such an increase conformed with existing companywide practice , see sec- tion II,D,10, supra, its exclusion of the article from arbi- tration, as well as its failure to provide the Union with any input into or even notice of an appraisal review system where the contracts Respondent claimed to rely on for preparation of its wage proposal all included either minimum increases or review and appeal review mechanism for denial of increases, buttresses the conclu- sion I have reached that the Union was effectively ex- cluded from consulting or participating in setting or re- viewing the terms and conditions of employment of unit employees. This last point illustrates another tactic engaged in by Respondent, evidencing its lack of good faith. In a number of instances, including the foregoing-another arising in the area of its no-strike proposal, section II,D,7, supra, and a third appearing regarding seniority as governing order of layoff, section II,D,9, and section II,D,9 at fn. 51, supra-Respondent misinformed the Union that the contracts it had relied on to draft its pro- posals had provisions that fully supported the postition it was taking in the composition services bargaining. It is no doubt true that Respondent made concessions in various proposals over the course of bargaining, that indeed 23 items were initialed and set aside, and that its movement in certain areas induced positive reactions from Senick at various times in the bargaining . Yet, cer- tain of the concessions were of the nature of belated rec- ognitions of the validity of fair and timeworn standards and procedures-for example the "just cause" standard for discipline of employees and the adoption of the pro- vision relating to jointly sharing the costs of arbitration, compliance with time limits on processing of grievances and for selection of an arbitrator, which did not repre- sent real movement toward agreement on the Company's part. As noted by the court in NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960), and as I find exist- ed here "one must recognize as well that bad faith is pro- hibited though done with sophistication and finesse. Con- sequently, to sit at a bargaining table, or . . . to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargain- ing futile or fail." The Company was no doubt bargaining from a posti- tion of strength. It is relatively large and had substantial resources, not least of which is the experience of the members ,of its bargaining team, including its chief nego- tiator Kelly and lead counsel Canoni. The Union, having won the election by a paper-thin margin, and employing a relatively inexperienced negotiator operating with little organizational support , represented a unit constituting a very small percentage of Respondent's work force, in a work area in which 95 percent of the work it performs had been historically subcontracted outside the Compa- ny. Thus, the economic and practical realities gave the Company enormous advantages in striking a bargain that reflected these factors.93 What the facts show, however, is that the Company used its strengths to impose terms that it knew left the Union with almost no voice in the employment decisions affecting employees and with no effective consultative role in these matters. Instead of recognizing the real nature of the legal issue presented by the history of the bargaining between the parties as analyzed here, Respondent's chief negotiator and counsel sought to dwell at the hearing on a fraudu- lent factual issue concerning whether during the course of bargaining, and at appropriate times, the Union's ne- gotiator raised timely objections and voiced concern re- garding the Company's proposals in key areas restricting the union participation in the establishment of working conditions and treatment of employees, resolution of dis- putes in the administration of the contract and the exer- cise of employee rights to protest, act in concert, and pursue claims in other forums. I conclude that the Re- spondent's agents' emphasis on an issue they knew lacked credibility in light of the later production of its bargain- ing notes, reinforces the conclusion I have reached based on the totality of the circumstances including these dis- credited tactics, that Prentice-Hall engaged in a course of conduct from the outset of bargaining, which mani- fested an unwillingness and lack of desire "to reach ulti- mate agreement , to enter into a collective-bargaining contract." NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960). It also follows from what has already been concluded, that Respondent's withdrawal of recognition from the Union as exclusive bargaining representative in the certi- 93 The bargaining on the subcontracting clause reflected this disparity, as did the periodic company references to employee turnover and its dif- ficulties in restaffing the unit. Although the bargaining on subcontracting may not have risen to the level of a refusal to bargain, the Company's inflexibility on providing any protection for existing employees jobs, if only procedural in nature , reflects on employer motivation. So, too, the various delays in bargaining sessions which I have found attributable, without justification , to Respondent although not forming the basis of the decision I reach here, reflects as well on employer motivation. PRENTICE-HALL, INC. fled unit, by its letter of November 18, 1981, at a time when it had not fulfilled its bargaining duty toward the Union, constitutes an independent violation of Section 8(aX5) and (1) of the Act. Respondent's assertion of a good-fatih doubt in that letter, based at least in part on a petition signed by an apparent majority of unit employ- ees, is rendered a nullity by its pattern of bad-faith bar- gaining;-!Of course, Respondent's prior unlawful course of conduct completely taints the signature petition as well ail the decertification petition filed in Case 22-RM- 588, previously dismissed by the Acting Regional Direc- tor. It remains for other defenses raised by RespMttent in its brief'- to be considered. In section II,D,15, and in the AnalyAl ='-and Conclusions section ; paragraphs 22-24, supra, Respondent first asserts that Kelly never indicated that Prentice-Hall's position on management rights or ar- bitration was a final position . At the last meeting, on No- vember 5, in response to Senick's inquiry, Kelly respond- ed that he would consider union proposals on arbitration, just cause, or seniority. Respondent further points to Senick's acknowledgement that no final position had been taken on any matter by Prentice-Hall. With these open items and the seveni .items agreed on in the last three sessions and two in the last session alone, bargain- ing had not been completed . In Alkahn Silk Label Co., 193 NLRB 167, 172 (1971), cited in support of this theory, in contrast to the case at bar, by the fourth, if not the third, of a series of postsettlement meetings, the employer had made a wage offer slightly higher than the union's last preceding wage proposal , and tentative agreement had been reached on articles for a contract except for„three noneconomic items of arbitration , check- off, and union security. After the union had indicated its unwillingness , to sign without some form of either union security, or checkoff, and some form of arbitration and had tpade^_revised proposals in these areas at the last meeting,,,respondent indicated its willingness to bargain further on these matters. It did so by its vice president's stating there was merit to the union's latest arbitration proposal and he( was willing to discuss the possibility of agreeing to it. It was the union's failure to follow up on this offer to further negotiate that led to the conclusion of the administrative law judge, affirmed by the Board, that bargaining had not yet been completed and the post- settlement complaint alleging a refusal to bargain was dismissed. Regarding management rights, at the last meeting, when Senick said if the precedence language (incorporat- ed since June 11 in the Company's written proposal) was deleted from the arbitration article , then the parties would be close on both arbitration and management rights, Kelly's response was, "We will look at this and consider it." Thus, 10 meetings after first proposing the limitation on an arbitrator's discretion and first stating that this provision "is very important to us" and first learning that this provision was a "problem" for the Union, Respondent claims that Kelly's words mean that movement is possible . I cannot agree, not with the lengthy bargaining history on this clause presented on this record. See also my finding at section II,D,4, fn. 27 that the breach was profound as early as June 11. Kelly's 673 response, consistent with other statements by him which also held out false hope of movement , is just another in- stance of the surface bargaining in which Respondent en- gaged. Following this meeting, Kelly canceled one scheduled for November 19 and refused to meet again on any bargaining subjects. At the last meeting, Kelly's response to Senick's in- quiry about making just cause subject to arbitral review, "Not at this stage. It falls under an area we feel is best served by management's sole review" hardly shows an openness or willingness to consider change . Kelly's later comment that "we will consider proposals you have in the matter" of arbitration and just 'cause or on seniority does not show any movement in light of its consistent longstanding opposition to third-party arbitral review in these areas. In essence, Respondent was paying lip serv- ice to the bargaining principle without making any mean- ingful effort to reach agreement. Alkahn Silk, supra, is thus clearly distinguishable on the facts . Neither is it nec- essary for the General Counsel to establish that an im- passe was reached on any of these subjects, so long as Respondent insisted, until it ceased to bargain, on de- mands which are antithetical to the bargaining principle, Romo Paper Products Corp., supra. Respondent also claims in its brief (R. Br. 66) that in Gehnrich & Gehnrich, Inc., 258 NLRB 528 (1981), the Board rejected the argument that the making of a pro- posal discriminatory of rights of economic strikers, not insisted on and later withdrawn , and not implemented, was not unlawful. Thus, by implication, Respondent's proposal seeking the waiver of Section 7 on the premises of organizational rights, later withdrawn, was not unlaw- ful. In Gehnrich, unlike the instant proceeding, the admin- istrative law judge and the Board, including the dissent, did not conclude that the employer was engaging in sur- face bargaining. Also, the demand in Gehnrich was not an unlawful one, concerning rights of strikers, which could be waived, see Gem City Ready Mix Co., 270 NLRB 1260 (1984), unlike the demand regarding basic organizational rights in the instant case , see Magnavox Co., supra. Furthermore, unlike the situation in Gehnrich, Re- spondent maintained its unlawful demand consistently for 8 months, switching it from one article to another, and, only at the last meeting, just prior to the expiration of the certification year, withdrawing it. Such conduct here, in contrast to Gehnrich, cannot be weighed without also placing it in a context of other proposals and bar- gaining and trial tactics, indeed, the totality of Respond- ent's conduct, which demonstrates that it was seeking to avoid an agreement. Regarding the string of citations appearing in Re- spondent's briefs (R. Br. 67-68), I would reject the con- clusions in each of them as inapplicable to the facts at hand. In the final analysis, the ultimate finding of bad faith is based on the totality of the circumstances. NLRB v. Milgo Industrial, 567 F.2d 540, 545 (2d Cir. 1977). Those circumstances here are most closely related to the cases on which I have relied. When, in addition to a close analysis of the proposals Respondent made , its con- 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duct and tactics in bargaining and at trial are also weighed, the conclusion is strong that this employer did not meet its obligation "to make some reasonable effort in some direction to compose his differences with the Union," the minimum requirement "if Section 8(a)(5) is to read as imposing any substantial obligation at all." NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 135 (1st Cir. 1953). Respondent also suggests that Aughenbaugh v. North American Refractories Co., 65 LRRM 2968, 2971 (Pa. Sup. Ct. 1967), would not' preclude a breach of contract action filed by the union where the grievance article was said to provide an exclusive remedy (R. Br. 65). Aughen- bough must be limited to its facts. Those show that the agreement provided that "Complaints arising under the provision will be subject for discussion by the Company and the Union only at the Union's request." That lan- guage was held not to spell out any element of finality; or in context, any inference of finality. In contrast, the "sole and exclusive means" language in the arbitration article surely spells out a finality; it directly precludes any other means of settling all disputes that may arise. The parties' discussions, in particular, the ones held on April 1 and June 4, show union recognition of the impact of this clause and no respondent attempt to allay the Union's misgivings. Finally, Kelly admitted the pre- clusion of court suit under the language at the hearing. Finally, Respondent relies on the holding by the Board in Chevron to support its defense, claiming its facts close- ly parallel those in the case sub judice. Chevron is clearly distinguishable on the facts, unlike the arbitration, griev- ance, and management-rights proposals in Chevron. Pren- tice-Hall insisted on its precedence language to the end, excluded major terms and conditions of employment, in- cluding discharge and discipline, seniority and other ben- efits, from arbitration, and closed the circle by preclud- ing union or employee suits even where grievances on all disputes arising between them could only end in the em- ployer's unilateral review. Unlike the Chevron no-strike proposal, injunctive relief and substantial liquidated dam- ages are obtainable and recoverable on immediate court suit without the necessity of exhaustion of the arbitration process, and Respondent insisted on union steward re- sponsibility in a separate article irrespective of whether he actually participated in strike action. Further, unlike the fact in Chevron, the Respondent never proposed any across-the-board wage increase whatsoever and relied on other contracts, falsely, to preclude even evaluation pro- cedures and review mechanisms to assist employees in improving and so, warranting, merit increase. Further- more, far from ending up with improvements over the terms Respondent had agreed to in the LLSD units, Prentice-Hall, without reasonable explanation and, in at least one case with an explanation which was false, insist- ed on terms no better than and, in some cases, worse than those received by the LLSD employees. Finally, Respondent's unlawful demand for waiver of basic orga- nizational rights has no counterpart in the Chevron case. Neither did its bargaining tactics throughout the period covered by the sessions designed to unduly prolong the process without any real attempt to come to agreement, nor its conduct at the hearing, relying knowingly and heavily on claimed but false union acquiescence in its proposals. CONCLUSIONS OF LAW 1. The Union is the certified bargaining representative for Respondent's employees in the following appropriate unit: All full-time and regular part-time advertising production coordinators, camera operators, com- positors, pasteup artists, system operators, quality control personnel, control clerks and proofreaders employed by the Employer in its Composition Serv- ices Department at its Englewood Cliffs, New Jersey facility but excluding all managerial employ- ees, confidential employees, casual employees, pro- fessional employees, watchmen, guards and supervi- sors as defined in the Act. 2. Respondent violated Section 8(a)(5) and (1) of the Act by bargaining in bad faith with no intention of enter- ing into any final or binding collective-bargaining agree- ment and by withdrawing its recognition of the Union as the exclusive collective-bargaining representative of the employees in the unit described in paragraph 1. 3. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act.94 THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist from such conduct or like or related conduct and take affirmative action to effectuate the policies of the Act. I shall also recommend that Re- spondent be ordered to bargain collectively in good faith, on request, with the Union as the exclusive bar- gaining representative of its employees in the above unit; in the event that an understanding is reached, to embody such understanding in a signed agreement; and to post the attached notice. In order to ensure that the employees will be accorded the statutorily prescribed services of their elected bar- gaining agent for the period provided by law, I shall rec- ommend that the initial year of certification begin on the date that Respondent commences to bargain in good faith with the Union as the bargaining representative in the appropriate unit . Southern Paper Box Co., 193 NLRB 881, 883 (1971).95 94 Respondent's motion to correct typographical errors in the record is granted. Copies of that motion have been incorporated into the official record of this case. 95 Although I am precluded from concluding that Respondent unlaw- fully refused to bargain prior to the May 5, 1981 date alleged in the com- plaint (because the General Counsel does not allege a prior date and Sec. 10(b) of the Act would not permit it), nonetheless, I am confident in con- cluding that the Employer's totality of conduct both within and without the 10(b) period is such that the period of required bargaining will be I year with no setoff for the period of some 3-1/2 months from the com- mencement of bargaining not alleged as a violation of the bargaining obli- gation in the complaint. Cf. Gloinac Plastics, 234 NLRB 1309 (1978), enfd. 592 F.2d 94 (2d Cir. 1979). PRENTICE-HALL, INC. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed96 ORDER The Respondent, Prentice-Hall, Inc., Englewood Cliffs, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively and in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with District 65, United Automobile , Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO by bargaining with the Union in bad faith with no intention of entering into any final or binding collective-bargaining agreement and by withdrawing its recognition of the Union as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time advertising production coordinators, camera operators, com- positors, pasteup artists, system operators, quality control personnel , control clerks and proofreaders employed by the Employer in its Composition Serv- ices Department at its Englewood Cliffs, New Jersey facility but excluding all managerial employ- ees, confidential employees, casual employees, pro- fessional employees, watchmen, guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain collectively and in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with the above- named Union as the exclusive bargaining representative of its employees in the above-described unit, and embody in a signed agreement any understanding reached. The initial year of the Union's certification as the exclusive bargaining representative of the employees in the above- designated unit will begin on the date Respondent com- mences bargaining in good faith with the Union as such representative. (b) Post at its facility in Englewood Cliff, New Jersey, copies of the attached notice marked "Appendix."97 99 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 97 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of 675 Copies of the notice , on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively and in good faith concerning rates of pay, hours of employ- ment, and other terms and conditions of employment with District 65, United Automobile, Aerospace and Ag- ricultural Implement Workers of America, AFL-CIO as the exclusive bargaining representative of our employees in the unit described below: All full-time and regular part -time advertising pro- duction coordinators, camera operators, composi- tors, pasteup artists, system operators, quality con- trol personnel, control clerks and proofreaders em- ployed by the Employer in its Composition Services Department at its Englewood Cliffs, New Jersey fa- cility but excluding all managerial employees, confi- dential employees, casual employees, professional employees, watchmen, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, on request, bargain collectively and in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with the above Union as the exclusive representative of our em- ployees in the appropriate bargaining unit as stated above, and embody any understanding reached in a signed agreement. PRENTICE-HALL, INC.