Sacramento Union

552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sierra Publishing Company d/b/a the Sacramento Union and Northern California Newspaper Guild, Local 52, The Newspaper Guild, AFL- CIO, CLC Case 20-CA-20546 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 21 1987 Administrative Law Judge Burton Litvack issued the attached decision The General Counsel filed exceptions and a supporting brief 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 brief and has decided to affirm the judge s rulings findings and conclusions only to the extent consistent with this Decision and Order 1 The complaint alleges that the Respondent vio lated Section 8(a)(5) and (1) of the Act by unilater ally implementing certain changes in the terms and conditions of employment of unit employees on August 4, 1986,2 without first bargaining with the Union The Respondent asserted before the judge that because the parties reached impasse on wages and guild security while bargaining for a new con tract it was free to implement its final preimpasse contract offers The judge found an impasse was not reached as to wages but that it was reached as to guild security which he found to be a major bargaining issue between the parties The judge therefore found the Respondent did not violate the Act when postimpasse it implemented its final contract offer The judge further found as the Re spondent concedes, that by unilaterally implement Ing exclusions from the bargaining unit that dif fered from those agreed on with the Union the Re spondent violated Section 8(a)(5) and (1) of the Act We disagree with the judges finding that im passe was reached on Guild security Moreover we find that even if impasse on guild security oc curred the facts of this case fail to establish that the deadlock on this matter alone brought about an ' The judge madvertenty deleted the classification confidential secre tary to business manager from the exclusions listed in the certified bar gaining unit Our Order corrects this error 2 All dates are in 1986 unless otherwise indicated The judge found that because the General Counsel failed to challenge the validity of the scope of the implemented final offer he was not re quired to pass on whether the Respondent violated the Act by imple menting a final offer broader in scope than the subjects the Respondent asserted to be at impasse impasse in the entire negotiations We therefore find that by unilaterally implementing its final con tract offer on August 4 the Respondent violated Section 8(a)(5) and (1) of the Act The parties whose bargaining relationship spans more than 40 years began bargaining for a succes sor collective bargaining agreement on March 21 1986 Over the ensuing 4 months until July 25 when the Respondent declared impasse, the parties held a total of 17 bargaining sessions Guild security came up about six times early in negotiations At the first bargaining session the par ties exchanged proposals and generally stated their attitudes and goals for negotiations James Bay singer the Respondent s industrial relations direc tor and primary negotiator said the Respondent s goal was to reduce economic costs and to eliminate restrictions on managements ability to manage its work force Baysinger said that in furtherance of this latter objective, the Respondents proposal which contained numerous changes to and dele tions from the most recent agreement included the following guild security provision 1) Guild Shop-Rename Union Security (a) All present employees who within 30 days of the signing of this agreement choose to be members of the Guild shall remain members in good standing as a condition of employment for the life of this Agreement (b) Employees hired during the term of this Agreement who choose to become members of the Guild on or after the 31st day following their employment shall remain members in good standing as a condition of employment for the life of this Agreement Gerald Rocker the Unions chief negotiator said the Union knew that the Company was in financial difficulty and expressed a desire to resolve bargain ing as quickly as possible The Union presented a brief proposal which essentially sought mainte nance of the most recent agreement including the guild security provision 4 Guild security was not discussed at length at any of the next four meetings It generally came up in the course of bargaining about other issues and on 4 The guild security provision of the expired contract provides I GUILD SHOP (a) All employees who are now or who may become members of the Guild shall remain members in good standing (defined as pay ment of initiation fee and monthly dues) during the life of this con tract (b) Each employee hired during the term of this agreement shall as a condition of employment become and remain a member of the Guild in good standing no later than the 30th day following the first day of employment Similar language had been in the parties collective bargaining agree ments for at least 10 years 291 NLRB No 84 SACRAMENTO UNION the occasions when it did come up the Union took the position that it was a waste of time to discuss such matters unrelated to the Company s economic stability and expressed reluctance to do so At the second or third meeting the parties reviewed the Respondents contract proposal section by section According to Rocker s uncontradicted testimony when they reached Guild security the Union asked why this issue was suddenly important to the Company Baysinger explained that the proposed change in guild security represented the personal philosophy of the paper s owner that because the owner had been preoccupied with unrelated litiga tion during the last negotiations the Company had allowed a change in guild security to fall off the bargaining table but that this time the owner wanted the matter corrected Both Rocker and the bargaining unit chairman Kris Banvard said the Union saw no need to change the Guild security provision Rocker at the fifth meeting on April 15 said with respect to guild security that he was not interested in participating in the demise of the guild Guild security was not discussed at all between the 6th and 11th bargaining sessions Rocker testa feed that by the 11th meeting on June 19 he under stood that the Company was serious on guild secu rity which he perceived was being used as a hammer on the wages At this meeting the par ties identified guild security as a major nut and agreed that until they reached agreement on the many open noneconomic issues they would post pone discussion on guild security and wages In ad dition they agreed to a run for the roses pursu ant to which they set aside the week of July 21 for daily meetings at a neutral location in an effort to settle the contract 5 Between June 17 and July 21 the parties met four times They focused on sick leave funeral leave military leave telemarketing medical insur ance and bargaining unit exclusions They also dis cussed and after concessions by both agreed on a new grievance procedure As agreed neither wages nor guild security was discussed On July 21 the parties met for over 3 hours What they discussed is not entirely clear It is clear however that they did not bargain about wages or guild security The parties 17th meeting began about 10 a in on July 24 and ran until almost 1 o clock the next morning The entire session involved hard bargain ing and significant concessions by each side After lengthy discussion tentative agreement was 5 At some point the parties agreed that due to prior commitments the run for the roses meetings would be held July 21 24 25 and 30 and August 1 553 reached on sick leave Tentative agreement was also reached on recognition language employee access to personnel actions in their employment files dismissal for cause jury duty retirement plan language motor vehicle trip mileage allowance and the filling of vacancies in bargaining unit job positions Health insurance and several other issues were discussed but remained unresolved The par ties arranged to have at the next day s meeting a trustee of the existing benefit trust fund speak on the possible legal problems involved in going with a new health carrier As the meeting neared its conclusion Baysinger said it was time to get back with his principals Baysinger reviewed the parties respective positions on several unresolved issues including supervisors performing unit work layoff language telemarketing guild security and wages Concerning guild security Baysinger reiterated the Company s position i e modification of the Guild security provision as proposed and asked if the Union s position i e retention of the most recent contract language was firm Rocker replied that it was The judge specifically discredited Baysinger s claim that the Union understood he was seeking its final position The parties departed with an un derstanding that they would meet at 10 o clock the next morning as previously planned The start of the July 25 meeting was delayed at the Respondents request until about 3 p in The trust fund representative was present as scheduled Baysinger opened the meeting by stating that after meeting with his principals he had determined that the parties were at loggerheads on union security and wages and that the Respondent had prepared its last best and final offer Baysinger distributed the offer and said it would be posted August 4 at 12 01 in the morning 6 As discussed more fully below there was some discussion concerning whether the parties were at impasse On July 28 the following Monday Rocker tele phoned Baysinger asking for another bargaining session Baysinger conceded that during this con versation Rocker said he did not think the parties were at impasse In a confirming letter dated July 28 Rocker said in pertinent part contrary to your assertion on Friday bargaining is not com pleted On August 4 the Respondent implemented its final offer Thereafter the parties met on August 12 The Union requested information about some of the implemented changes The parties also dis cussed the Respondents wage proposal and made specific arrangements for the Union s accountant to 6In fact simultaneous with the July 25 meeting the Respondent posted and distributed its final offer to unit employees 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD audit the Respondents records Prompted by an in vitation from Banvard as bargaining unit chairman the Union met with the Respondents president and others on October 20 and presented a wage pro posal that called for an immediate reduction and tied future increases to new subscriptions obtained by union members At the Respondents urging the Union reduced this proposal to writing in a letter dated October 28 In addition to setting out its wage proposal the Union offered to accept certain economic terms and conditions that had been im plemented proposed bargaining as to others and indicated the remainder of the present agreement (old contract) would remain status quo At a meeting on November 12 the Respondent made an oral response in which it approved certain of the Union s demands countered the wage formula and insisted that everything else is as in the posted conditions The meeting ended at this point and no further meetings between the parties have oc curred The Board has long held that an impasse occurs after good faith negotiations have exhausted the prospects of concluding an agreement 7 Employ er implemented changes in terms and conditions of employment consistent with preimpasse proposals may be unilaterally instituted only after an impasse has occurred 8 As the Board has held with court approval Whether a bargaining impasse exists is a matter of judgment The bargaining history the good faith of the parties in negotiations the length of the negotiations the importance of the issue or issues as to which there is dis agreement the contemporaneous understand ing of the parties as to the state of negotiations are all relevant factors to be considered in de cidmg whether an impasse in bargaining exist ed 0 The Board has long distinguished between an im passe on a single issue that would not ordinarily suspend the duty to bargain on other issues10 and the situation in which impasse on a single or criti cal issue creates a complete breakdown in the entire negotiations 11 Only in this latter context 7 Taft Broadcasting Co 163 NLRB 475 478 (1967) enfd sub nom Tel evision Artists AFTRA v NLRB 395 F 2d 622 (D C Cir 1968) 8 Id 9 Id 10 See e g Patrick & Co 248 NLRB 390 393 (1980) Providence Medi cal Center 243 NLRB 714 fn 2 (1979) 11 See e g Taylor Winfield Corp 225 NLRB 457 459 fn 18 462 (1976) (following general bargaining impasse produced by stalemate over pensions employer lawfully implemented final offer including wage pro posals) Holmes Typography Inc 218 NLRB 518 525 (1975) (following general bargaining impasse produced by deadlock over wages and length of workweek employer lawfully implemented all terms included in its final off r) when there has been a complete breakdown in the entire negotiations is the employer free to imple ment its last best and final offer 12 In this case the judge found the parties reached impasse on Guild security on July 25 He found that the parties understood guild security to be a major issue that the Respondents claim of impasse on guild security appears to be grounded in fact and that this claim combined with events subse quent to the July 25 meeting and Rocker s grudg ing admi[ssion] that he conceded impasse on guild security at the July 25 meeting establishes that the parties had a contemporaneous understanding that they were at impasse on Guild security We agree with the judge that the facts establish the parties understood guild security to be a major issue 1 3 but not with his conclusion that impasse had been reached on guild security on July 25 The bargaining history shows that at the time the Respondent claimed impasse on guild security the parties had held 17 bargaining sessions yet the subject of guild security had arisen only briefly on 6 occasions At the first meeting when the parties stated their opening positions and at the second or third meeting at which the Respondents contract proposal was reviewed guild security was simply one of a list of issues preliminarily discussed Thereafter guild security was mentioned only in the course of discussions on other issues After the 5th meeting the parties dropped the guild security issue entirely until the 11th meeting when both willingly agreed to postpone all discussion on guild security until they reached agreement on the many open noneconomic issues Consistent with this agreement during the next four meetings many issues were discussed and resolved but guild secu rity was not mentioned It came up again only at the close of the very productive July 24 meeting when the Respondent reviewed the parties respec tive positions on many unresolved issues None of these positions was held out as final 12 Id a We disagree with the judge that both Banvard and Rocker were reluctant to ascribe great significance to [Guild security] during the bargaining The facts show that by word and deed the Union exhibited an awareness that guild security was an important issue to both sides At the second or third meeting when the Respondents proposal on guild se cunty was being reviewed the Union sought an explanation why guild security was suddenly so important to the Company Later Rocker in dicated the importance of guild security to the Union when he said he was not interested in participating in the demise of the guild By the 11th meeting the Union joined the Respondent in identifying guild security as a major nut one which should not be the subject of further discussion until all noneconomic issues had been resolved Further we do not find Banvard s testimony that he regarded guild secunty as an issue to be set tied in the final shakeout of the contract or Rocker s testimony that he perceived guild security as a hammer on wages evidence that the Union as.,nbed little significance to guild security Rather we find these statements reflect the Union s view that concessions on guild security would occur during the final give and take of negotiations SACRAMENTO UNION The judge interprets the failure of either party at the July 24 meeting to have moved from its open ing position on guild security as factual support for finding impasse However to this point neither party had attempted to schedule bargaining on guild security and as the Respondent concedes no item by item bargaining on the subject had ever been held 14 Accordingly we find that guild secu rity had not yet been fully bargained about when the Respondent claimed impasse Concerning the Union s understanding of the posture of Guild security on July 25 we find the record fails to support the judge s finding that Rocker grudgingly admitted that he agreed with the Respondent s impasse claim The testimony of Banvard and Rocker reflects that the Union antici pated guild security would be resolved after some adjustment to the existing contract clause in the final give and take of negotiations Rocker testified he reacted to the Respondent s impasse declaration on July 25 with shock that he was very very upset and that, at the time he accused the paper s principals of pulling the rug out from under its ne gotiators Rocker said that it was frustrating to have the Respondent on the second day of a week of scheduled negotiations after the good session on July 24 that went around the clock, to suddenly put its final offer on the table Rocker testified further that he let Baysinger know very firmly and very strenuously across the table that how the hell can we be at impasse when we ve got these issues we haven t even discussed yet I mean obviously we re not at impasse Rocker said he specifically listed the issues he was referring to including union security which had been set aside by agreement, and he noted the pres ence of the pension fund representative as sched uled When asked whether at the time he agreed with Baysinger that the parties were at impasse on union security or any other issue Rocker testified I don t recall using the word impasse in that vein I undoubtedly indicated that that may well be our position given the situation that we were in at the time under the conditions The Respondent s counsel then asked Okay so you don t recall saying the word impasse but you do recall indicat ing to the company that you were at impasse on Union security Rocker replied No, no we never agreed we were at impasse on it In fact 14 We find no ment to the judge s finding that any lack of depth to the discussion on guild security was attributable to the Union s desire to limit negotiations on this issue As the foregoing facts show the Respondent failed at any point to press for discussions on guild security That the Union more than once indicated the parties were wasting time on propos als that were unrelated to the paper s economic stability is consistent with the concerns the Respondent expressed at the outset of negotiations for the Company s financial condition and quick contract resolution 555 what I do recall clearly is telling them that we hadn t even discussed it yet Now I don t know what came forward to prompt your question on that Later Rocker testified that although very angry at the Respondents action he probably said [I]f this was going to be the position damn right you re going to be at impasse But again about the area not in terms of rational bargaining and-sitting down and doing it Clearly we were not and the reason for it is obvious There s alot of things you can do between a free union shop and union secu rity According to Banvard Rocker responded to the Respondent s impasse claim by saying the Union was very shocked that the Respondent was giving its final offer and that clearly we re not at im passe Baysinger admitted that Rocker expressed shock and outrage at the Respondents decision to implement its final offer However, he testified that Rocker said that on a couple of items including union shop, we are at impasse The judge gener ally credited Rocker over Baysinger when their testimony conflicted In finding that Rocker grudgingly admitted to conceding impasse on Guild security on July 25 the judge relied exclu lively on Rocker s above admission that at some point he probably said the parties were at impasse At the outset we note that the finding of impasse is a legal conclusion 15 Here the totality of Rocker s testimony corroborated in critical re spects by the testimony of Banvard and consistent with the objective facts conflicts with the judge s finding that Rocker admitted that the parties were at impasse First the Union anticipated that conces sions on guild security would be made in the final shakeout of the contract Second Rocker un equivocally denied ever agreeing that the parties were at impasse on guild security Consistent with this denial both he and Banvard testified that Rocker clearly told Baysinger on July 25 that the parties were not at impasse Further it is uncon tested that Rocker reacted with shock when the Respondent put its final offer on the table Rocker reasonably explained his reaction citing the ongo ing schedule of meetings the progress made at the marathon meeting of July 24, and the abruptness of the Respondents declaration and said that at the time he pointed to the presence of the pension fund trustee and very firmly told Baysinger that im passe on guild security was impossible because the issue had not yet been discussed Finally the extent 15 PRC Recording Co 280 NLRB 615 (1986) enfd sub nom Rich mond Recording Corp v NLRB 836 F 2d 289 (7th Cir 1987) 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to which Rocker admitted conceding impasse is limited to his accusation that the Respondent had precipitated impasse by prematurely putting its final offer on the table Such a statement is not at all inconsistent with Rocker s unequivocal denial that he ever conceded impasse on guild security Accordingly we disagree with the judge that on July 25 Rocker admitted to impasse on guild secu my We also disagree with the judge that events fol lowing the abortive July 25 meeting reinforce his finding that the parties on July 25 had a contempo raneous understanding that impasse had been reached on guild security The judge specifically found that failure by the Union to attempt to bar gain over guild security between July 25 and im plementation of the Respondents final offer on August 4, to make any new proposals on guild se curity at the parties August 12 meeting or to devi ate from the old contract on guild security in its written proposal on October 28 show that the Union considered any attempt to bargain on guild security futile and the parties positions on this issue firmly entrenched Most telling of the Union s view of the Respond ent s impasse claim is Baysinger s admission that on the first business day after the abortive July 25 meeting Rocker called him and said he did not think they were at impasse Rocker confirmed this view in his followup letter that said [C]ontrary to your assertion on Friday bargaining is not com pleted We do not see the Union s failure to iso late and bargain about guild secunty prior to im plementation of the Respondents final offer as evi dence of concession to impasse on that issue be cause so many issues had yet to be discussed or agreed on Before the Respondent implemented its final offer the Union sought another bargaining session with the Respondent and scheduled a meet ing for the first mutually convenient date evincing its belief that future bargaining might be fruitful 116 At the next meeting held August 12 the Union made no new proposal on guild secunty but the facts show no new proposals on any issues were made by either side at this meeting In this context, the Union s inactivity on guild secunty does not show impasse on that issue As for the Union s Oc tober 28 letter we find that it represented a com prehensive proposal responsive to the Respond ent s final offer In the letter the Union made con cessions by accepting many of the Respondent s implemented changes sought retention of the old contract in other areas only one of which was guild security and suggested a wage cut accompa 16 Id at 33 Huck Mfg Co 254 NLRB 739 754 (1981) coed by an imaginative incentive program We find the proposal entirely consistent with the normal give and take that occurs when bargaining for a new contract By yielding on many issues includ ing the major issue of wages the Union might rea sonably have expected that as a quid pro quo the Respondent would drop its guild security proposal Bargaining does not take place in isolation and a proposal on one point serves as leverage for posi tions in other areas 17 Further the statutory pur pose would be frustrated if parties were permitted or indeed required to engage in piecemeal negotia tions 18 Based on the foregoing we find that relevant factors of particular significance in this case in cluding the bargaining history the absence of any real bargaining on guild security and the lack of any contemporaneous understanding of impasse on guild security by the parties contradict the Re spondent s claim that impasse on guild security ex isted on July 25 Moreover assuming arguendo that the parties were deadlocked on Guild security on July 25 as the Respondent contends the Respondent was not free to implement its final contract offer on August 4 because no breakdown in the overall negotiations had occurred We are not suggesting that impasse on a single critical issue cannot in some circum stances create a deadlock in the entire bargaining process Both the Board and the courts have found that it can 19 However we find that the record in this case fails to establish that on July 25 when the Respondent declared impasse on Guild security further good faith bargaining would have been futile 20 Both sides identified guild security as a major issue Over the course of 4 months and 16 bargain ing sessions however neither side communicated to the other that one party s failure to achieve a de sired degree of concession on [Guild security] would necessarily deadlock the entire bargaining process 21 Nor can it be said that the Respondent has established22 that negotiations here were suffi ciently exhaustive to find that an overall impasse was reached on July 25 23 At the point the Re 17 Patrick & Co supra at 393 citing Korn Industries v NLRB 389 F 2d 117 121 (4th Cir 1967) See also Old Mans Home of Philadelphia v NLRB 719 F 2d 683 687 (3d Cit 1983) is See generally Patrick & Co supra 1s See e g Salinas Valley Ford Sales 279 NLRB 679 (1986) Latrobe Steel Co v NLRB 630 F 2d 171 at 179 (3d Clr 1981) 20 Alsey Refractories Co 215 NLRB 785 at 787 (1974) 21 Henry Miller Spring Co 273 NLRB 472 ( 1984) See also Arrow Auto- motive Industries 284 NLRB 487 (1987) 2 2 PRC Recording Co 280 NLRB 675 (1986) 23 Betlem Service Corp 268 NLRB 354 (1983) Carpenter Sprinkler Corp v NLRB 605 F 2d 60 65 (2d Cir 1979) SACRAMENTO UNION spondent announced impasse on guild security many issues remained unresolved not necessarily out of disagreement but in a number of significant areas because the parties had not yet discussed them 24 Bargaining on wages identified by the par ties as an important issue was put on hold by agreement pending resolution of all other issues 25 Further on July 25 the bargaining history gave nu merous signs that negotiations would progress to fruition The parties had committed themselves to a weeklong run for the roses intended to settle the contract Submerged in this intense effort they had just completed the July 24 marathon bargaining session that produced agreement on many issues as a result of concessions by both sides During the review of the parties positions on unresolved issues that ended the productive July 24 meeting the credited evidence fails to show that either party in dicated either expressly or by implication that im passe was imminent To the contrary the plan was to meet the very next day to pursue resolution of issues still open 26 To this end the parties had ar ranged for a guest to present information on the discussed but unresolved trust fund issue The Union took no action suggesting it had abandoned its desire to continue negotiations before the Re spondent announced impasse on July 25 27 And when the announcement came the Union expressed shock that the Respondent would make its final offer at this juncture Had the Respondent been willing to continue the negotiations as scheduled the give and take atmosphere of the bargaining table would have increased the likelihood of reach ing agreement on a full contract 28 Under these circumstances we find that when the Respondent declared impasse negotiations had not reached the point where there was no realistic possibility that continuation of discussion Lat the time would have been fruitful 29 We therefore find that even if the parties were deadlocked on Guild security on July 25 the Respondents unex pected claim of impasse in negotiations on that date was premature Accordingly the Respondents im plementation of the final contract offer on August 4 violated Section 8(a)(5) and (1) of the Act so 24 Patrick & Co supra 248 NLRB at 393 21 Compare Triple A Maintenance Corp 283 NLRB 44 (1987) (impasse found where there was no evidence of any movement in the parties during the first five meetings and critical issues remained to be resolved) 26 See Collor Inc 282 NLRB 1173 (1987) (agreement to meet further indicative that no impasse has been reached) enfd 838 F 2d 164 167 (6th Or 1988) 27 Alsey Refractories Co supra 215 NLRB at 787 28 Patrick & Co supra at 393 29 Television Artists AFTRA v NLRB 395 F 2d 622 628 (D C Cir 1968) 20 The complaint at par 7 alleges that about August 4 1986 the Re spondent unilaterally implemented certain terms and conditions of em ployment including but not limited to changes in wages benefits hours 557 AMENDED CONCLUSIONS OF LAW Substitute the following for paragraphs 5-7 of the judge s Conclusions of Law ' 5 By about August 4 1986 unilaterally imple menting its final contract offer thereby effecting changes in unit employees wages and terms and conditions of employment at a time when no im passe in bargaining with the Charging Party had occurred the Respondent refused to bargain col lectively with the Charging Party in violation of Section 8(a)(5) and (1) of the Act 6 By about August 4 1986 unilaterally imple menting a final contract offer that differed from its agreement with the Charging Party with regard to exclusions from the bargaining unit the Respond ent refused to bargain collectively with the Charg ing Party in violation of Section 8(a)(5) and (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Sec tion 8(a)(5) and (1) of the Act we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Specifically having found that the Respondent unilaterally implemented its final contract offer at a time when no impasse had occurred we shall order the Respondent on request to bargain collectively in good faith with the Charging Party on the terms and conditions of employment of unit employees and if an understanding is reached to embody the understanding in a signed agreement We shall order the Respondent, if requested by the Charging Party to reinstitute the wages and terms and conditions of employment that existed before its unlawful changes and to make whole unit employees for any losses suffered as a result of its unlawful action in the manner prescribed in Ogle Protection Service 183 NLRB 682 836 (1970) with of work exclusion of certain employees from coverage by the collective bargaining agreement vacations rules concerning layoff of employees grievance procedures scheduling of work severance pay night shift dif ferential pay premium pay overtime pay funeral leave and reimburse ment for use of personal automobiles In its answer the Respondent admits the allegations of paragraph 7 of the complaint except that Re spondent denies that it implemented any changes in benefits hours of work overtime or vacations Further in his opening remarks the Re spondent s counsel stated that the implemented final offer contains mat ters that had been discussed but not agreed on by the parties Whether certain terms had been tentatively agreed on or not we find that the Re spondent made unlawful unilateral changes at least as broad as those ad mitted in its answer to the complaint See Chambers Mfg Corp 124 NLRB 721 at 732 (1959) 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD interest to be computed in the manner set forth in New Horizons for the Retarded 31 Having found that the Respondent unlawfully implemented exclusions from the bargaining unit that differed from those agreed on with the Charg ing Party we shall order the Respondent on re quest to rescind its unlawfully implemented exclu sions and to recognize the Charging Party as the exclusive bargaining representative of its employees in the following classifications assistant city editor night news editor Sunday editor editorial writer and two retail advertising supervisory positions Finally to the extent that the unlawful unilateral changes implemented by the Respondent may have improved the terms and conditions of employment of unit employees we note that no provision of our Order shall in any way be construed as requiring the Respondent to revoke such improvements ORDER The National Labor Relations Board orders that the Respondent Sierra Publishing Company d/b/a The Sacramento Union Sacramento California, its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to bargain with Northern California Newspaper Guild Local 52, The Newspaper Guild AFL-CIO CLC as the exclusive bargaining representative of its employees in the unit de scribed below by unilaterally implementing changes in wages and terms and conditions of em ployment of unit employees at a time when no im passe in bargaining with the Union has occurred (b) Refusing to bargain with the Union by unilat erally implementing a final contract offer that dif fered from its agreement with the Union regarding exclusions from the bargaining unit (c) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) On request bargain collectively in good faith with the Union as the exclusive bargaining repre sentative of the employees in the following appro prate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed written agreement All employees of the Employer in the editori al display advertising classified advertising commercial sales circulation business office switchboard and maintenance departments ex cluding confidential secretaries to President and General Manager (4) editor confidential secretary to editor managing editor associate editor editorial associate editor sports two as sociate editors news associate editor finance associate editor graphics associate editor fea tures manager of photography retail advertis ing manager confidential secretary to advertis ing director assistant retail advertising manag er classified advertising manager classified office manager national advertising manager commercial sales manager promotion director circulation manager confidential secretary to circulation manager purchasing manager as sistant circulation managers business manager confidential secretary to business manager business office manager credit manager serv ice manager plant engineer communications supervisor controller production engineer co op manager guards and supervisors as defined in the Act (b) On request reinstate the wages and terms and conditions of employment that existed before the unlawful unilateral changes and make whole unit employees for any loss suffered as a result of these unilateral changes with interest However no provision of this Order shall in any way be con strued as requiring the Respondent to revoke uni laterally implemented improvements in terms and conditions of employment to unit employees (c) On request rescind its unilaterally implement ed exclusions from the bargaining unit and recog nize the Union as the exclusive bargaining repre sentative in the following classifications assistant city editor night news editor Sunday editor edito rial writer and retail advertising supervisors (2) (d) Preserve and, on request make available to the Board or its agents for examination and copy Ing all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its Sacramento California copies of the attached notice marked Appendix 32 Copies 3' 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 32 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 at Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board SACRAMENTO UNION of the notice on forms provided by the Regional Director for Region 20 after being signed by the Respondents authorized representative , shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reason able steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Northern California Newspaper Guild Local 52 The News paper Guild AFL-CIO CLC as the exclusive bar gaining representative of our employees in the unit described below by unilaterally implementing changes in wages and terms and conditions of em ployment of these employees at a time when no im passe in bargaining with the Union has occurred WE WILL NOT refuse to bargain with the Union by unilaterally implementing a final contract offer that differs from our agreement with the Union with regard to exclusions from the bargaining unit WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL on request bargain collectively in good faith with the Union as the exclusive bargain ing representative of the employees in the follow ing appropriate unit on terms and conditions of em ployment and if an understanding is reached embody the understanding in a signed written agreement All employees of the Employer in the editori al display advertising classified advertising commercial sales circulation business office switchboard and maintenance departments ex cluding confidential secretaries to President and General Manager (4) editor confidential secretary to editor managing editor associate editor editorial associate editor sports two as sociate editors news associate editor finance 559 associate editor graphics associate editor fea tures manager of photography retail advertis ing manager confidential secretary to advertis ing director assistant retail advertising manag er classified advertising manager classified office manager national advertising manager commercial sales manager promotion director, circulation manager confidential secretary to circulation manager purchasing manager, as sistant circulation managers business manager confidential secretary to business manager business office manager credit manager serv ice manager plant engineer communications supervisor controller production engineer co op manager guards and supervisors as defined in the Act WE WILL on request reinstate the wages and terms and conditions of employment that existed before the unlawful unilateral changes and make whole unit employees for any loss suffered as a result of these unilateral changes with interest However no provision of this notice shall in any way be construed as requiring us to revoke unilat erally implemented improvements in terms and conditions of employment to unit employees WE WILL on request rescind our unilaterally implemented exclusions from the bargaining unit and recognize the Union as the exclusive bargain mg representative in the following classifications assistant city editor night news editor Sunday editor editorial writer and retail advertising super visors (2) SIERRA PUBLISHING COMPANY D/B/A THE SACRAMENTO UNION Jolane A Findley Esq for the General Cousnel Mark H Van Brussel Esq (Wilke Fleury Hoffelt Goudl and Briney) of Sacramento California for the Re spondent Gerald Rocker of Sacramento California for the Charg ing Party DECISION STATEMENT OF THE CASE BURTON LITVACK Administrative Law Judge Based on an original and a first amended unfair labor practice charge in the above captioned matter filed by Northern California Newspaper Guild Local 52 The Newspaper Guild AFL-CIO CLC (the Charging Party) on August 6 and September 8 1986 respectively the Regional Di rector of Region 20 of the National Labor Relations Board (the Board) on September 30 1986 issued a com 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plaint 1 alleging that Sierra Publishing Company d/b/a The Sacramento Union (the Respondent) engaged in acts and conduct violative of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) Respondent timely filed an answer denying the commission of any unfair labor practices Pursuant to a notice of hearing the above matter was scheduled for trial and heard by me on January 27 and 28 1987 in Sacramento Califor nia All parties were afforded the opportunity to present any relevant evidence to examine and cross examine wit nesses to orally argue their legal positions and to file posthearing briefs The latter documents were filed by counsel for the General Counsel and by counsel for Re spondent and have been carefully considered Accord ingly based on the entire record including the posthear ing briefs and my observations of the demeanor of the witnesses I issue the following FINDINGS OF FACT I JURISDICTION Respondent is a Pennsylvania corporation with an office and place of business located in Sacramento Cali forma and is engaged in the publication of a daily news paper During the calendar year ending December 1 1985 Respondent in the normal course and conduct of its above described business operations derived gross revenues in excess of $200 000 and held membership in or subscribed to various interstate news services mclud mg United Press International and Associated Press International II LABOR ORGANIZATON The Charging Party is a labor organization within the meaning of Section 2(5) of the Act III ISSUES The principal issue in this matter concerns Respond ent s implementation On August 4 1986 of certain changes in the terms and conditions of employment of its editorial display advertising classified advertising com mercial sales circulation business office switchboard and maintenance employees The General Counsel con tends that the said changes were violative of Section 8(a)(1) and (5) of the Act inasmuch as they were accom plished unilaterally and without affording the Charging Party as the exclusive collective bargaining representa tive of the above employees an opportunity to bargain Contrary to the General Counsel Respondent asserts that the changes were implemented after an impasse in contract renewal negotiations with the impasse in the areas of wages and guild security and that the imple mented changes were consistent with a pre impasse final offer Regarding the latter point another alleged viola tion of Section 8(a)(1) and (5) of the Act concerns the bargaining unit exclusions as set forth in Respondent s implemented changes in the employees terms and condi tions of employment and the General Counsels conten i On January 8 1987 the Regional Director of Region 20 issued an amendment to the complaint substituting a revised par 5 and correcting the name of the Charging Party tion that such were not consistent with pre impasse agreements Respondent conceded that its August 4 working condition changes were inconsistent with pre impasse agreements and were unilaterally implemented in violation of Section 8(a)(1) and (5) of the Act IV THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The Respondent publishes a daily newspaper in Sacra mento California and has had a longstanding collective bargaining relationship of apparently more than 40 years with the Charging Party and its predecessor as the exclu sive representative for purposes of collective bargaining of certain of Respondents employees 2 The most recent collective bargaining agreement between the parties under which Respondent recognized the Charging Party as the exclusive bargaining representative of an employee unit including all editorial display advertising classified advertising commercial sales circulation business office switchboard and maintenance employees excluding con fidential secretaries to the president and general manager (4) editor confidential secretary to editor managing editor associate editor editorial associate editor sports two associate editors news associate editor finance asso ciate editor graphics associate editor features manager of photography retail advertising manager confidential secretary to advertising director assistant retail advertis ing manager classified advertising manager classified office manager national advertising manager commer cial sales manager promotion director circulation man ager confidential secretary to circulation manager busi ness office manager credit manager service manager plant engineer communications supervisor controller production engineer co op manager guards and super visors as defined in the Act 3 expired on May 5 1985 but was extended by the parties for an additional year- until May 5 1986 Respondent served notice to its desire to terminate the contract and pursuant to conversations and correspondence between James Baysinger the Indus trial relations manager of Respondent and Gerald Rocker the Charging Party s administrative officer the parties in early March agreed to commence bargaining on a successor collective bargaining agreement on March 21 19864 The record establishes that over the ensuing 4 month period until July 25 there were 18 bargaining sessions between the parties that the initial meetings were held at Respondents offices and the final three took place at Woodlake Inn in Sacramento and that the main spokes men5 were the aformentioned Baysinger and Rocker At 8 The bargaining unit as certified by the Board in 1962 was composed of regular and part time business office employees a The parties agreed that the 1962 certification should be amended to reflect the rather substantial change in the bargaining unit reflected by the most recent collective bargaining agreement Hence the Regional Di rector issued an amendment to the certification on November 6 1985 setting forth the contractual bargaining unit as the certified one All events occurred in calendar year 1986 unless otherwise specified 5 To other significant individuals during the bargaining were Respond ent s controller Ron Johnson and the bargaining unit chairman Kris Banvard The latter is a reporter for the newspaper SACRAMENTO UNION 561 the initial session which occurred as scheduled on March 21 the parties exchanged contract proposals Ex animation of that by the Charging Party discloses that it was merely 2 1/2 pages long According to Gerald Rocker he asked Baysinger to note the small size of the proposal and said it was done in recognition that he knew the paper was in financial difficulties 6 and in hopes of resolving the bargaining as quickly as posse ble He also told Baysinger that the Charging Party hoped for a status quo contract with few changes Notwithstanding Rocker s recognition of the financial condition of the newspaper and the brevity of the Charg ing Party s initial contract proposal it nevertheless con tained several examples of what Rocker termed model contract language and a demand for an immediate 25 percent wage increase for all bargaining unit employees In contrast to the modest amount of proposed contract changes by the Charging Party Respondents initial con tract proposal was 13 pages in length and suggested changes and deletions in virtually all the articles of the expired agreement Pertinent to the matters herein the document contained no proposal as to wages however regarding guild security 7 Respondent proposed elimina tion of the provisions requiring current and new employ ees to join the Charging Party as a condition of their em ployment Rather membership would continue to be a term and condition of employment only if new or cur rent employees chose to join or remain members 8 In presenting Respondents proposed contract changes ac cording to Baysinger he set forth the publishers goals during the negotiations-to reduce economic costs and to regain flexibility in the operation of the newspaper by eliminating restrictions upon managements ability to manage its work force He told Rocker that among the proposed changes to achieve the latter goal was the open shop language Baysinger testified that Rocker responded asserting that the entire proposal guts the union here and it tramples and trashes peoples rights Rocker did not deny reacting in this manner and Ban ° According to Kns Banvard It was understood that the Company had not turned a profit in a number of years He added that when Respondent had demanded a wage freeze a year earlier the Charg ing Party s auditor determined that the newspaper was indeed losing money 7 Art 1 sec 1 of the most recent contract between the parties read in part 1 GUILD SHOP (a) All employees who are now or who may become members of Guild shall remain members in good standing (defined as payment of initiation fee and monthly dues) during the life of this contract (b) Each employee hired during the term of this agreement shall as a condition of employment become and remain a member of the Guild in good standing no later than the 30th day following the first day employment The record establishes that similar language had been in the parties collective bargaining agreements for at least 10 years ° Respondent s proposed language change reads as follows 1) Guild Shop-Rename Union Security (a) All present employees who within 30 days of the signing of this agreement choose to be members of the Guild shall remain members in good standing as a condition of employment for the life of this Agreement (b) Employee hired during the term of this Agreement who choose to become members of the Guild on or after the 31st day fol lowing their employment shall remain members in good standing as a condition of employment for the life of this Agreement yard corroborated Baysmger that Respondents proposed changes were designed to end numerous restrictions on its flexibility to run the plant Given the contentions of the litigants the central focus of this decision must obviously be on the asserted exist ence-or lack-of a bargaining impasse over the issues of wages and guild security In discussing what was said by the parties during the bargaining while my emphasis shall by necessity be on those matters it must be borne in mind that given the breadth of proposed contract changes by Respondent a great number of issues were bargained over on which agreement or disagreement re suited As to wages while Respondent submitted no pro posal until the 10th bargaining session on May 30 the Charging Party significantly modified its proposal at the second meeting which occurred on March 26 9 and re vealed its overall bargaining goals in that regard Thus according to Kns Banvard Rocker reduced the initial wage increase demand from an immediate 25 percent in crease to an identical amount but spread over the pro posed 3 year term of the proposed new contract Fur ther Rocker explained that that figure was not in concrete and that what we were really seeking is a modest wage increase because we felt that the people deserved it Banvard and Rocker both testified that subsequent to the March 26 meeting they contin ually asked for Respondents wage proposal and that there were no further substantive discussions on that sub ject until May 30 Concerning the issue of guild security it is necessary at the outset to examine how important the Charging Party perceived that subject to be during negotiations Banvard testified that maintaining the existing guild shop was an issue on which the Charging Party was not going to concede and one that would be be settled in the final shakeout of a contract Under questioning by me Rocker conceded the importance of the issue- both parties knew the major issues were union security and wages The witness added that he perceived [union security] was being used as a hammer on the wages but further conceded that there was no question Respondent was serious about the issue and that we probably were going to have to make some adjustments in our union security clause As to substantive discussions on the subject prior to the 11th bargaining session which occurred on June 17 Banvard testified that it probably came up on perhaps a half dozen occasions but it was never discussed at any great length Thus other than Rocker and Baysinger restating what their positions were the publisher wanted the guild security language changed so that employees would not be required to join a union and the Charging Party s position was that we saw no need to change that part of the contract since the issue as we saw it was whether the Company is going to survive fi nancially There was no substantive discussion because there were numerous other issues that could have been settled first During direct examination Rocker stated ° At the start of the meeting Rocker withdrew the model contract Ian guage which he knew was not in the best interests of Respondents employees 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the guild security language was discussed periodi cally however other than discussing Respondents un derlying motivation10 for its proposal no substantive bargaining occurred During cross examination he stated that guild security never was actually a subject of bar gaining but denied that he ever refused to discuss it However Rocker later admitted that Baysinger did raise the subject at the third or fourth bargaining session and that his response was why are we wasting time on these kinds of things and he demanded that Respondent dem onstrate the importance of the matter Further Rocker denied saying that he would only discuss matters pertain ing to the economic viability of the newspaper but ad mitted telling Baysinger regarding some unspecified sub jects that that has nothing to do with the economics why are we even bothering with that show us where that has some kind of bearing on the thing and we 11 ad dress that Although Rocker did not say that his latter comments were in reference to bargaining over guild se curity given Banvard s aforementioned testimony on that point the inference is warranted that guild security indeed was among the subjects to which Rocker re ferred Baysinger testified that guild security was discussed at six or seven bargaining sessions According to him at either the second or third meeting Respondents propos al was discussed in detail section by section He recalled that the Charging Party s representatives stated that it would not be interested in eliminating the existing union shop To this both Baysinger and Ron Johnson re sponded that the newspaper no longer desired to be a re cruiter and a collector for the Newspaper Guild and that such were more properly the responsibilities of the latter Rocker replied that the Charging Party s position was very hard on that subject and later that the language was derisive and they were not interested in these kinds of proposals from management Baysinger further testi feed that at the fourth bargaining session held on April 9 Rocker told him that they were ready and willing to talk about any proposal [having] to do with the econom is stability of [Respondent] but they have were not willing to discuss anything that was not related to that Baysinger added that Rocker specified guild security as being among the latter subjects At the next negotiating session which occurred on April 15 according to Re spondent s witness Rocker reiterated his position stating he was not interested in the demise of the guild and he could not understand how union secu rity concerned getting the newspaper back on its feet Asked if the discussions over guild security could be characterized as bargaining or statements of position by the parties Baysinger conceded that there was no item by item bargaining (not as such no) however he em 10 Rocker stated that at an early meeting he asked why the issue of union security was so important now after the parties had been dealing with each other for such a long period of time Baysinger responded that the owner was philosophically opposed to union security language and wanted the situation corrected Banvard said this was a lot of B S as nothing has been said during the previous contract negotiations Bay singer responded that other matters of more pressing urgency including a lawsuit and circulation problems took his time away from pressing the point at that time phasized that there was no doubt in my mind that we discussed it thoroughly and they understood it thorough ly and their position was very clear There is no dispute that Respondent finally submitted a proposal on wages to the Charging Party at the May 30 bargaining session On examination according to Kris Banvard it was readily apparent that [the proposed wage rates] reflected quite a cut from the current ones Asked the extent of the proposed reduction Ron John son said that it could be calculated to be 15 percent Rocker responded that Charging Party representatives were shocked and diasppointed that such was what the publisher wanted 11 Johnson was asked if the wage re duction equaled the prior years losses and he replied that he did not know Banvard testified that one of the Charging Party s representatives then asked Baysinger whether this reflected an unwillingness to pay the money or an inability to pay the money and he replied that it was a reluctance to continue paying the money in the face of the losses [the publisher] has taken Rocker stated that the Charging Party would have to examine Respondents financial records to determine the necessity of a wage reduction and asked permission to have an auditor examine the relevant books and records under the identical conditions as had been followed in the past Baysinger agreed and restated the ground rules that we had been operating under before that the figures would be off the record and just for our knowledge Accord ing to Baysinger after requesting and receiving permis sion for the audit Rocker restated the Charging Party s bargaining goals-it desired a status quo contract with little increase [It was] not interested in cutting into the contract because they were out of any bar gaining room Rocker admitted probably making such a comment as that was made clear for a long period of time The parties next negotiating session occurred on June 17 Although there is no dispute that significant proce dural agreements were reached at that meeting the Gen era] Counsel and Respondent differ as to the scope of these with the former contending that the parties agreed to postpone bargaining on economics and guild security until all other issues were resolved Thus Gerald Rocker testified that we were faced with a situation where we had a lot of noneconomic issues open and two isues that we knew were going to be major nuts -union secu rity and wages Therefore my suggestion was and pro posal was to the company s side of the table that we put the union security and the wages aside and see if we couldn t deal with those noneconomics the little issues first Rocker further testified that at the June 17th meeting we suggested holding off discuss ing economic issues and also guild shop However Ban yard limited the parties agreement to the following both sides agreed to hold off discussion on the wages and economic issues until we had reached agreement on noneconomic issues Baysinger also testified that on June 17 there had been an agreement that we d put off According to Rocker he told Baysinger and Johnson that the pro posal was an insult to the employees SACRAMENTO UNION 563 economics Regarding a like arrangement on guild secu rity he initially stated that whether we agreed to it or not I don t know We just never did talk about it and later that I do not recollect that we had made such a decision On economics I do On another procedural agreement there is no dispute Thus late in the meeting Rocker suggested that we have a run for the roses an attempt to settle the contract with a series of meet ings Mr Baysinger and Johnson agreed to that idea and we set aside the week of July 21st to go to have meetings every single day The parties next adopted Baysinger s suggestion that they hold these meetings at the Woodlake Inn a Sacramento hotel They further agreed that we d work on non economics up until that week and we would continue to work on them until we satisfactorily disposed of them and then concentrate on the economic issues Between June 17 and July 21 the parties held four bargaining sessions Whatever the extent of their June 17 arrangement there is no dispute that neither wages nor guild security was a subject for discussion at these meet ings Rather the parties concentrated on such issues as a new grievance procedure sick leave funeral leave mili tary leave telemarketing medical insurance and adds tional bargaining unit exclusions Regarding the griev ance procedure the parties agreed on revised language after counterpropsals and apparent concessions by both Notwithstanding the imminent weeklong run for the roses at no time during this 5 week period did the Charging Party make an effort to have its requested audit of Respondents financial records Concerning this Banvard and Rocker maintained that such would have only taken just a day or so to complete and because there was a myriad of other noneconomic issues on which to negotiate prior to discussing wages the audit would have been the last step in the process and in Rocker s words down the road In any event accord ing to the latter he could have bargained over wages even if the audit had not been done Bearing on the issue of impasse the bargaining ses sions between Respondent and the Charging Party of July 24 and 25 are of paramount significance 12 On July 24 a meeting which commenced at 10 10 in the morning and did not conclude until 12 40 the next morning was held at the Woodlake Inn Present for Respondent were Baysinger and Johnson and representing the Charging Party were Rocker Banvard and two other bargaining unit employees There is no dispute-and the record es tablishes-that the entire session involved hard bargain ing and significant concessions by both sides Indeed several tentative agreements were reached during the course of it Bargaining over Respondents sick leave proposal dominated the initial 6 hours with the parties reaching a tentative agreement at approximately 4 30 12 A bargaining session was held at the Woodlake Inn in July 21 The parties met for over 3 hours and while it is unclear exactly what subjects were discussed no bargaining over wages or guild security occurred No meetings were held on July 22 or 23 At a prior meeting Rocker in formed Baysinger that due to previous commitments he would not be available on those days and requested alternative dates Baysinger agreed and the parties arranged negotiation sessions for July 30 and August 1 p m 13 After resolving that issue the parties discussed recognition language employee access to personnel ac tions in their employment files dismissal for cause jury duty retirement plan language motor vehicle trip mile age allowance and the filing of vacancies in the bargain ing unit job positions and reached tentative agreement on contract clauses in each area Also several issues were discussed but remained unresolved including health in surance as to which the parties agreed to hear from a trustee of the existing health and welfare trust fund at the next meeting on legal problems resulting from a dis continuance plan According to Banvard as the meeting neared its conclusion Baysinger stated that he had to speak to his principals and proceeded to review the parties respective positions on several unresolved issues including supervisors performing bargaining unit work layoff language telemarketing guild security and wages For each Respondents representative stated each party s position Regarding guild security Baysinger essentially reiterated his position and asked if our position was different Rocker replied that as Respondents position had not changed the Charging Party s position also had not changed because [the parties] hadn t discussed it Regarding wages Baysinger said you want a 25 percent increase over three years we re looking for a 15 percent cut Rocker responded that the proposed increase is what we have on the table now However we haven t discussed this issue and that s not set in concrete Rocker corroborated Banvard about what was said near the conclusion of the meeting Baysinger testified that near the end he announced that he had to speak to his principals and that he wanted to review the outstanding issues Thereupon he testified I said do you know what I in doing And [Rocker] said yes you re look ing for our final position According to Baysinger he then went through the remaining unresolved issues in cluding guild security and wages As to the former they said old contract Baysinger asked Rocker if he was firm and Rocker responded that he was On wages Baysinger told Rocker he wanted a 15 percent wage reduction and Rocker said they were basically looking for status quo contract and they deserved a cost of living increase Rocker added that a reduction was 13 According to Baysinger the Charging Party s announced position on wages was that it would settle for a small increase Further Rocker told him that the employees would never accept a wage reduction Bay singer believed that the Charging Party s position was inflexible and ada mant and based this on its bargaining over the sick leave issue However contrary to Baysinger s professed belief that the Charging Party s bar gaining tactics exhibited intransigence it appears that both parties en gaged in lawful hard bargaining over sick leave Thus the expired con tract permitted an employee to receive up to 25 days of sick leave at full pay Claiming past abuse of the system Respondent proposed that em ployees be limited to five instances of sick leave use a year After much bargaining at sessions prior to July 24 the Charging Party agreed to Re spondent s concept as a method of eliminating abuse of the system It however counterproposed 10 instances of use and during the bargaining on July 24 reduced its counterproposal to 7 instances of use Respondent refused to compromise and continued to insist on just five instances Thereafter neither side moved Finally Baysmger gave Rocker the choice of either accepting Respondents position or retaining the Ian guage of the expired agreement Rocker chose the latter and the parties tentatively agreed to that Regarding the bargaining Baysinger averred that Respondent was being jerked around by the Charging Party 564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD insulting and would not be acceptable but that they were not cast in concrete on the 25 percent During re buttal Rocker conceded that Baysinger had indeed at the close of the meeting asked him if he (Rocker) knew to what Baysinger was referring- I responded yes be cause that s all he was doing exactly as he said he was reviewing the proposals because he was going to meet with the principals The parties agreed to next meet at 10 o clock that morning (July 25) however Baysinger later requested that the session be postponed until the afternoon The delay was necessitated by a telephone conference call be tween Baysinger and Johnson and Respondents corpo rate officers (the president Mike Jones Gary Hoenshel the chief financial officer and Joe Armstrong a labor re lations attorney) Baysinger stated that he gave his opin ion to the corporate officers that he saw no room for movement on the issues of wages and guild security and that therefore the decision was reached to present to the Charging Party a last best and final offer and to implement it on August 4 14 Specifically about the sub ject of wages he was asked by the corporate officials if the Charging Party exhibited any flexibility about ac cepting the proposed 15 percent wage reduction and I said I was convinced that there was none and their whole position has been that they ve been looking for a status quo contract and a little bit of an increase a cost of living increase 15 Regarding both guild security and wages Baysinger told the corporate officials that he believed the parties were deadlocked based on the Charging Party s bargaining over sick leave- my point was that in effect the guild would not be satisfied unless it did get the majority of [a status quo agreement] What they want is back to the old contract And that was the only time that the parties really and truly got to any agreements is when they went back to the old contract Respondents representatives spent the interim between the conference call and the start of the bargaining session that afternoon preparing Respondent s last best and final offer a compilation of its offers and the parties tentative agreements as of July 24 16 The negotiating session commenced at approximately 3 p in at the Woodlake Inn According to Banvard Bay singer began saying that his principals were firm on ' The time lapse before implementation of the final offer was accord mg to Baysinger designed to give the [Charging Party] an opportunity to discuss it with Respondent He added that Respondent understood its obligation to discuss any substantive proposals prior to August 4 because there may be no impasse on a particular issue 15 Although he did not say so to his principals Baysinger admitted that there had at this point been no bargaining about the subject of wages beyond the bare statements of position of the parties However he insisted that impasse in fact was reached because they convinced us that they were not going to move under any circumstances Asked what the Charging Party did or said to convince him of this fact Baysinger responded that their conversation was a little bit more than just [postur ing] I mean it was done in very strong hard terms that their membership could not accept it He added that neither party was engag mg in bargaining tactics- we had shown absolutely no flexibility in our position And they had shown [none] Further he could tell how serious the Charging Party was based on the latter s bargaining in the matter of sick leave 16 At least as regards exclusions from the bargaining unit a fact con ceded by Respondent the final offer was not truly reflective of the state of bargaining as of July 24 several unresolved issues particularly on guild shop and wages And he said therefore we ve prepared our last best and final offer which will be posted August 4th at 12 01 in the morning Baysinger then distributed copies of what was a compilation of all up to date offers Rocker said we were very shocked at this that clearly we re not at impasse He added that our reac tion was going to be strong and that we had no choice Baysinger recalled nothing more saying that the meeting was a very short one Rocker testified during direct examination that Baysinger spoke first reading a prepared statement that the principals had re viewed [the disputed] positions and there were cer tarn managerial rights that we wanted back And on the real issues of union security and wages we were at loggerheads And therefore I have been authorized to present you the last best final offer Rocker responded that he was shocked and upset saying he could not understand how they could be at impasse as there was half a dozen issues that we hadn t talked about He then accused the newspaper publisher of engineering this tactic and pulling the rug out from under them Rocker further testified that although Baysinger used the term loggerheads he used the term impasse and that Baysinger did not dispute the equation After Rocker spoke Baysinger distributed copies of the offer 17 During cross examination Rocker stated that after Baysinger announced that the parties were at log gerheads he replied that the parties were not yet at im passe on the subjects of telemarketing usage of automo biles and wages Asked if he told Baysinger that he agreed with the characterization of impasse on the sub ject of guild security or anything else Rocker respond ed at first in a vague and rambling manner that we were in shock we said a lot of things in terms of we would take his heart out I mean this was a very frustrating thing We ve still got days scheduled to work on and all of a sudden they put this on the table I mean it s just a little bit unnerving Ad monished by me to answer the question Rocker stated I don t recall using the word impasse in that vein I un doubtedly indicated that that may very well be our pose tion given the situation that we were in at that time under those conditions I might very well have said that Later he admitted never stating to Baysinger that the Charging Party would be willing to make conces sions on guild security According to Baysinger after he read from prepared notes that Respondent had entered the negotiations with the aims of obtaining flexibility in the operation of the newspaper and of reducing costs that there were outstanding issues on which Respondent had taken firm positions and that these were issues on which the guild could not or would not move and certainly there were issues upon which my principals would not or could not move he circulated what he de scribed to be Respondents last best and final offer ' I Rocker testified-and Baysinger did not dispute-that at the very time the parties were meeting Respondent was posting the final offer and distributing others to bargaining unit employees There is however no dispute that the terms of the final offer did not go into effect until August 4 SACRAMENTO UNION 565 Rocker expressed his shock and outrage at the decision to implement what was contained therein Baysinger spe cifically denied that Rocker either disputed that the par ties positions on some issue were hard or fast or denied the existence of impasse In fact he said that on a couple of these items on the union shop we are at impasse and impasse on a couple of others During his rebuttal testimony asked if he agreed to the characteriza tion of impasse on the subject of guild security during the August 25 meeting Rocker answered evasively if that word was used it was used where I was very upset and angry and shouting back Asked once again Rocker responded I don t recall but it could have very well been said in that area He added that he did tell Baysinger that several unresolved areas on which there had been no discussion remained Respondent implemented its last best and final offer on August 4 18 the events between the end of the July 25 meeting and implementation of the offer are of signifi cance herein Thus according to Baysinger 3 days later on July 28 Rocker telephoned him saying that he wanted another bargaining session and that he didn t think they were at impasse He added that Rocker did not elaborate but said he was mailing a letter to Bay singer The letter from Rocker to Baysinger General Counsels Exhibit 7 dated July 28 reads as follows Dear Jim Contrary to your assertion on Friday bargaining is not completed We lack sufficient information to adequately evaluate the meaning and impact of your proposal To that end I suggest we schedule a bargaining session to enable us to ask questions and seek infor mation about your proposals In addition we would like to make arrangements for our accountants to review the Publishers finan cial records as previously agreed Please contact me for a mutually agreeable time and date On receipt of the letter and aware that if the asserted im passe was broken Respondents offer could not be imple mented as scheduled Baysinger telephoned Rocker and suggested that the parties meet on August 1 because that date had been previously reserved for bargaining Ac cording to Baysinger Rocker said he was unavailable on that day Baysinger then offered to meet on all days through August 4 Rocker said he was also unavailable on those days and asked why Baysinger was in such a hurry Baysinger replied I would like to know where we re not at impasse prior to August 4 as we are post ing then Rocker had no reply other than saying the earliest he could meet was on August 12 Rocker offered 8 The scope of what was implemented by Respondent on August 4 is unclear Clearly it involves more than just what was proposed in the areas of wages and guild security It is unclear however whether the implemented final offer is limited to those areas and others tentatively agreed on by the Charging Party or whether the implemented terms also include what was proposed by Respondent and not yet accepted by the Charging Party The latter seems more likely because Respondents coun sel in his opening statement stated that the implemented final offer con tarns matters that had been discussed but not agreed on by the parties a different version of the above events testifying that after mailing the July 28 letter to Baysinger he tele phoned the former on July 30 and requested the schedul ing of a bargaining session Baysinger assertedly agreed but said he needed to check with his principals before agreeing to a date During cross examination Rocker ad matted that he had another commitment on August 1 de spite agreeing to be available on that date to bargain but denied that Baysinger asked to meet during the weekend (August 2 and 3) In any event Baysinger and Rocker did ultimately agree to have a meeting19 on August 12 Representatives of the Charging Party and of Re spondent did in fact meet as scheduled and again at the Woodlake Inn The meeting began with Rocker distrib uting copies of drafted tentative agreements which the parties reached on July 24 to Respondents representa tives According to Banvard the Charging Party then requested information on some contract sales represent atives that [Respondent] had hired on the effect of the wage reduction and on other economic changes that had been implemented so that it could make a future counter offer He added that wages were discussed but only to the extent that we asked for an accounting of what the publishers entire wage and medical premium package was going to amount to in the way of savings Rocker asked if Respondent would even consider a counteroffer at that point Baysinger was rather firm on the 15 per cent wage reduction but said if we have something to offer he 11 look at it Rocker during his testimony char acterized what occurred as a bargaining session but con ceded that no one had any new proposals on any subject He added that Respondents implementation of its final offer made the presentation of any counteroffers a useless and futile exercise The 4 or 5 hour meeting concluded with specific arrangements made for the Charging Party s accountant to audit Respondents financial records Rather than bargaining Baysinger termed the meeting an informational session and stated that my impression was that they were asking questions on how the posted conditions worked Baysinger added that the Charging Party presented nothing substantive he could address and that as far as he was concerned the implemented final offer stood There is no record evidence of any further contact be tween the parties for the next approximately 6 weeks Then on September 22 Kris Banvard in his capacity as the bargaining unit chairman and on the Charging Party s stationery sent the following letter to Respond ent s president Mike Jones We need to talk to you The company s recent actions at The Sacramento Union indicate that we re headed into a period of never ending lawsuits protests and retaliatory measures that we do not desire nor should you I must believe that you are concerned about the survival and credibility of this newspaper 18 A July 31 letter G C Exh 8 from Baysinger to Rocker confirms the parties agreement to meet on August 12 Nowhere therein is the meeting characterized as a bargaining session 566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In a recent meeting with employees Jack Bates admitted that he has no authority except to carry out orders When the company was still negotiating with us before you declared impasse it was appar ent that Jim Baysinger and Ron Johnson have no authority except to carry out orders In addition since we don t know what they told you about what we said we have no idea how well they com municated our positions and the reasoning behind them We told them that we want to work with you to turn the paper around We have no idea how well this message got through Since you are in au thority we would like to talk to you You are president of The Sacramento Union ac cording to some information I have received I am chairman of the Newspaper Guild It seems ridicu lous that we have not met before Here is what I propose A meeting between a committee chosen by the Guild with you and whoever you would like to accompany you Let s make the agenda very gener al such as how can we end this confrontation that is ruining employee morale and hurting The Union s standing in the community How about it? You may call me at almost any time of night or day (916) 440-0526 home Jones accepted Banvard s invitation to meet and dis cuss how we can end this confrontation and a meeting was held on October 20 at the Sacramento Hilton Hotel Jones Baysinger and other individuals were present for Respondent the Charging Party was represented by three individuals including Rocker and Banvard Ac cording to Baysinger Respondent did not believe the meeting was arranged to bargain rather Jones desired to listen to what Banvard had to say Rocker agreed stat mg It was not a scheduled bargaining or negotiat mg session It was held in an exploratory setting In any event according to Rocker the Charging Party suggested a method whereby bargaining unit employees would engage in efforts to lock step with this company to turn it around financially Specifically Banvard testa feed the Charging Party offered to accept an across the board 8 percent wage reduction for bargaining unit em ployees provided that employee wage rates would be in creased at a rate of 1 percent per each additional 1000 subscribers solicited by the employees Rocker testified that Respondents representatives caucused at that point returned and indicated some interest to the point of asking the Charging Party to reduce its proposal to writ mg delineating exactly what both management and the employees were expected to do The Charging Party reduced its proposals to writing and on October 28 mailed to Respondents office a three page document delineating its proposals and the corresponding role of management Besides offering a wage proposal the Charging Party offered to accept cer tam of the other economic terms and conditions of em ployment that had been implemented by Respondent on August 4 suggested bargaining on others such as tele marketing and demanded that the remainder of the present agreement (old contract) would remain status quo Although unstated the inference is obviously justi feed that the latter demand referred to the guild security clauses As a result of this document a meeting was arranged for November 12 at Respondents facility At the outset Jones said he was prepared to give a verbal response to the October 28 document and said that both he and the publisher were absolutely amazed and gratified and thrilled with the Charging Party s proposals and that they were convinced that the guild truly wanted to work toward improving and turning the paper around Thereupon Respondent made a counteroffer to the Charging Party on wages continuing in effect the 15 percent wage reduction but increasing wage levels at a rate of 1 1/2 percent per 1000 new subscribers who were paid in full for six months in advance Jones also gave approval to certain other proposals including an employee seat on the board of directors and employee management committees but everything else is as in the posted conditions The meeting ended at that point and no further meetings between the parties have occurred Regarding the conceded unilateral change as set forth in the terms and conditions of employment as implement ed for bargaining unit employees by Respondent on August 4 the record establishes that such changes are Respondents inclusion in the listed excluded job classifi cations from the bargaining unit of the following assist ant city editor night news editor Sunday editor editori al writer and two retail advertising supervisory pose bons The record establishes that during the bargaining session of July 24 the parties agreed to certain excluded job classifications from the bargaining unit those previ ously listed in the expired contract and four new mana genial positions In addition the prior contract exempted from the unit two editorial writers who were hired after 1983 and the parties agreed to continue to exclude only those editorial writers from the bargaining unit At the hearing Respondent conceded that it subsequently uni laterally determined that the six additionally excluded job classifications were either professional or supervisory positions and decided to no longer recognize the Charg ing Party as the representative of the individuals in those classifications The listed exclusions from the bargaining unit in Respondents last best and final offer reflect Re spondent s unilateral change B Legal Analysis There is no dispute that after approximately 4 1/2 months and 18 bargaining sessions Respondent on August 4 implemented its last best and final offer setting forth new and different terms and conditions of employment for the bargaining unit personnel who are represented by the Charging Party Board law is well settled that on the expiration of a collective bargaining agreement an employer is under a continuing duty to meet and negotiate with the collective bargaining repre sentative of the covered employees and violates Section 8(a)(1) and (5) of the Act by unilaterally changing the terms and conditions of employment of the employees in the absence of an impasse during contract negotiations Parkview Furniture Mfg Co 284 NLRB 947 (1987) Rogers Cleaning Contractors 277 NLRB 482 (1982) Taft SACRAMENTO UNION Broadcasting Co 163 NLRB 475 478 (1967) enfd sub nom 395 F 2d 622 (D C Cir 1968) Conversely if the parties have reached a lawful impasse an employer does not violate the Act by making unilateral changes Hamady Bros Food Markets 275 NLRB 1335 1338 fn 9 (1985) Regarding the foregoing statement of the applica ble legal principles contrary to the General Counsel Re spondent argues that a genuine impasse existed in the bargaining over the issues of wages and guild security thereby permitting it to unilaterally implement the terms of the last best and final offer 20 The Board has long held that a genuine bargaining impasse is synonymous with a deadlock Hi Way Billboards 206 NLRB 22 23 (1973) Such a bargaining condition is reached after par ties engage in a good faith discussion of a subject or sub jects and despite their best efforts to achieve agreement with respect to such neither party is willing to move from its respective position Carpenters Sprinkler Corp 238 NLRB 974 982 (1978) Hi Way Billboards supra Put another way impasse is that point during contract nego tiations when the parties are warranted in concluding that any additional bargaining would be futile Pillowtex Corp 241 NLRB 40 (1979) Cal Pacific Furniture 228 NLRB 1337 (1977) Further the burden of proof of show impasse on a particular date is on the party claim ing the impasse PRC Recording Co 280 NLRB 615 (1986) As to the criteria for determining whether a bar gaining impasse in fact exists the following oft quoted language of the Board s decision in Taft Broadcasting Co supra remains the proper standard Whether a bargain mg impasse exists is a matter of judgment The bargain ing history the good faith of the parties in negotiations the length of the negotiations the importance of the issue or issues as to which there is disagreement the con temporaneous understanding of the parties as to the state of negotiations are all relevant factors in deciding wheth er an impasse in bargaining existed Finally while a de termination of the existence of impasse involves probing the state of mind of bargainers and therefore is a subjec tive inquiry (PRC Recording Co supra) there need be no undue reluctance to find that an impasse existed (E I duPont & Co 268 NLRB 1075 1076 (1984)) In this regard the Board has long concluded that impasse cannot be said to be an unexpected unforeseen or un usual event in the process of negotiations Hi Way Bill boards supra Initially there is no contention that either Respondent or the Charging Party engaged in bad faith bargaining Indeed to the contrary the record is clear that both par ties engaged in lawful hard bargaining and offered con cessions to arrive at their several tentative agreements 20 The record establishes that Respondents implemented final offer en compasses more subject areas than just those about which impasse was asserted-wages and guild security Nevertheless Respondent contends that impasse in just those areas justified unilateral institution of broad changes in the bargaining unit employees terms and conditions of em ployment While I have doubts about whether the Act sanctions such conduct neither at the hearing nor in her postheanng brief did counsel for the General Counsel challenge the validity of the implemented final offer if as Respondent contended an impasse in the bargaining in two contract areas in fact occurred Accordingly as the breadth of the im plementation is not at issue I shall confine my legal conclusions to the matter of the alleged bargaining impasse 567 This factor and the parties longstanding in excess of 40 years bargaining history are indicative of a bargaining impasse Stechers Super Markets 275 NLRB 475 476 (1985) Regarding the subject of wages lending further support to a conclusion of impasse is that the parties ob viously understood that it was a major issue of the bargaining with one of Respondents stated negotiating goals being to reduce costs Nevertheless adhering to my views stated during the instant hearing I do not be lieve that the bargaining between the parties ever reached the point of impasse on that subject and so con elude for the following reasons The most salient fact in this regard is that beyond stating their respective positions the parties never actual ly discussed or bargained about wages Thus at the second meeting between the negotiators Rocker stated the Charging Party s proposal as consisting of a 25 per cent wage increase spread over 3 years There was no further discussion on the subject until May 30 when Re spondent offered its proposal on wages-a 15 percent across the board wage reduction Beyond expressing shock and confiding to Baysinger that the Charging Party actually desired only a slight increase in wages a cost of living raise the subject was not discussed any further Then at the parties very next bargaining ses sion on June 17 Rocker and Baysinger agreed to po spone any bargaining on wages until all noneconomic issues were resolved In accord with this agreement there is no dispute that the subject of wages was not raised again until near the conclusion of the parties July 24 marathon bargaining session at the Woodlake Inn At that point during a review of the parties respective posi tions on the remaining unresolved issues Rocker and Baysinger merely restated their initial-and unchanged positions-that the Charging Party desired a 25 percent increase in wages spread over a 3 year time period and Respondent demanded that the bargaining unit employ ees accept a 15 percent across the board wage reduction As the foregoing review plainly establishes wages were mentioned on just four occasions and then only in the context of the stating of the respective initial positions Conspicuously lacking is any record evidence of in depth discussion or the give and take of actual bargaining Fur ther concluding that the parties negotiations on wages were at impasse necessitates ignoring the fact that the parties agreed to postpone bargaining on that issue until agreement was reached on all noneconomic issues With negotiations in such a posture and with several noneco nomic issues remaining unresolved at the conclusion of the July 24 meeting I fail to understand how impasse can legitimately be asserted in such circumstances Of critical import to determining the existence of a genuine impasse on wages is the parties contemporane ous understanding of the state of the bargaining on that issue at the time of the asserted deadlock-in this case at the conclusion of the July 24 meeting Initially on this point I do not credit Baysinger s testimony2 i that after 21 Neither James Baysinger nor Gerald Rocker impressed me as being an entirely honest and candid witness To the contrary both seemed to me to be offering testimonial versions of events designed to buttress their Continued 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he said he wanted to review the parties respective post tions on unresolved issues and asked Rocker if he knew what he (Baysinger) was doing Rocker responded that he was looking for the Charging Party s final position and credit the latter s testimony that his response merely acknowledged that Baysinger was reviewing the pose tions Moreover it is clear that Rocker never viewed the Charging Party s position on wage rates as a final un compromising one Thus he testified-and Baysinger corroborated him-that stating the Charging Party s po sition on wages that night he (Rocker) added and that s not set in concrete Finally on this point I found Bay singer to be utterly disingenuous as to his belief that the Charging Party s position on wages (a small increase or a cost of living raise) was an inflexible one-a view asser tedly based on the Charging Party s bargaining on sick leave Analysis of the respective positions taken on that issue discloses that each party engaged in nothing less than legitimate hard bargaining and that the proposal to utilize the expired contract language was not that of the Charging Party but rather Respondents In short para phrasing counsel for Respondent in his postheanng brief I do not believe that Baysinger ever recognized the Charging Party s intransignece on wages so as to make bargaining unnecessary To the contrary the record warrants the conclusion that Baysinger was so adversely affected by the tough bargaining posture by the Charg ing Party on sick leave that he simply had no desire to engage in extended bargaining on wage rates Hence his mischaracterization of the Charging Party s bargaining posture on sick leave and his assertion of impasse on wages Respondents posthearing brief arguments in support of the assertion of impasse over wages are without merit Respondent argues that impasse existed as the Charging Party s only viable strategy to retain the existing rates of pay was to prolong negotiations as far as possible under the wage scale of the present contract However it was the Charging Party and not Respondent that pre sented a proposal on wages early in the negotiations and it was not the Charging Party but rather Respondent that delayed until the parties 10th bargaining session before counterproposing a wage rate structure There is no record evidence to support the contention that the Charging Party engaged in any sort of deliberate delay ing tactics Equally nonmeritorious is the assertion that the Charging Party waived its right to bargain over the August 4 implemented change in wage rates based on Rocker s failure to meet and bargain with Respondent over the latter s announced wage structure during the period July 25 to August 4 Although Rocker may have been negligent I find no waiver in Rocker s conduct Moreover analysis of the applicable cases suggests that to validly claim waiver and to act unilaterally in the con text of negotiations Respondent must establish some level of urgency that would justify taking unilateral action NLRB v Auto Fast Freight 793 F 2d 1126 1129 (9th Cir 1986) AAA Motor Lines Inc 215 NLRB 793 respective party s position Nevertheless in assessing the credibility of each whenever they conflict Rocker did seem to be the more forthright witness and I shall credit him over Baysinger whenever they conflict 794 (1974) Although Respondent may indeed have been in financial difficulty no evidence of imminent ft nancial peril was adduced to either justify its unilateral acts or a finding of waiver 22 Turning to the question of impasse regarding the bar gaining over guild security an opposite result apears mandated At the outset I note that both Kris Banvard and Rocker were reluctant to ascribe great significance to this subject during the bargaining but that the record establishes otherwise Thus Banvard portrayed guild se curity as one of the many issues that would be settled in the final shakeout of a contract and Rocker at one point relegated the subject to that of being a mere hammer on the wages Banvard however testified that the Charging Party would not concede on this issue and Rocker while conceding that some adjustments in the guild secunty language would probably have been the result of the bargaining stated that as with wages guild security was a major issue one about which Re spondent was serious That Rocker knew full well the import of the issue is clear from his testimony which I credit over that of Baysinger for reasons discussed earli er that at the June 17 bargaining session he suggested and Baysinger agreed to postpone discussion of the major nuts of the bargaining wages and guild security until other issues were resolved 23 Unlike regarding the subject of wage rates the record clearly reveals significant discussion between the parties over the matter of guild security-of enough substance that each party knew and understood the depth of the other s position on the issue There is no dispute that the subject was discussed on approximately six occasions Also Baysinger explained Respondents demand for Ian guage that did not require membership in the Charging Party as a condition of employment sufficiently so that Rocker clearly was aware of its import to Respondent Although it seems clear that the nuances and specifics of each party s position were not discussed (Baysinger con ceded that there was no item by item bargaining on the subject) it is also true that whenever the issue arose the Charging Party s lack of interest in bargaining about the subject and its adamant insistence on retaining the guild shop language of the expired contract was made clear- either directly or indirectly Thus both Banvard and Rocker told Baysinger that we saw no need to change that part of the contract On other occasions according to Rocker he asked Baysinger why are we wasting 22 As I understand Respondents ultimate assertion of impasse on wages such is based on the parties intransigent positions the Charging Party s stated desire for a small wage increase and Respondent s insist ence on the 15 percent wage reduction Although if such continued to be the positions after the give and take and explorations of positions of true collective bargaining a finding of impasse based on these polar positions might be justified the parties had not yet even commenced any discus sion of wage rates Therefore one must conclude that what was being stated about wages was mere posturing of the type common at the outset of bargaining about particular issues PRC Recording Co supra 23 Whether Baysinger agreed to postpone discussion on the issue of guild security is not of critical import for the uncontroverted fact is that the subject was not discussed subsequent to June 17 until the conclusion of the July 24 bargaining session The significant fact to me is that Rocker desired the postponement-evidencing the importance of the issue SACRAMENTO UNION 569 time on these kinds of things and he demanded to know how the matter affected economic provisions of the prospective agreement before discussing it Further Rocker did not controvert Baysinger s testimony that he (Rocker) told Respondents representative at the April 15 bargaining session that he was not interested in the demise of the guild and he could not under stand how union security concerned getting the newspa per back on its feet The foregoing makes it apparent that any lack of depth to the discussion on guild security seems to have been in accord with the desire of the Charging Party to limit any such negotiations Accord ingly unlike the scant mention of wages during the bar gaining I believe and find that sufficient discussion of guild security occurred to permit each party to fully un derstand the adamant position of the other That parties were deadlocked on guild security was in fact the contemporaneous understanding of the parties is certain and I place particular emphasis on this for my conclusion that an impasse finding is warranted on this issue Thus Baysinger testified that he departed from the July 24 meeting with the understanding that the Charg ing Party s bottomline demand was for a status quo agreement including an unchanged guild security clause Unlike over wages about which scant mention was made during the bargaining and his claim of impasse was obvi ously disingenuous Baysinger s assertion of deadlock on that subject appears to have been grounded in fact as the above analysis of the negotiations demonstrates Like wise as I believe he grudgingly admitted Rocker agreed during the abortive July 25 bargaining session that the parties were at impasse on the issue There is no dispute that at the outset of the meeting Baysinger stated his belief that the parties were at loggerheads over guild security and wages Regarding his response to Baysinger on being asked directly by Respondent s counsel and me if he stated his agreement with the former s assessment of the state of bargaining on guild security Rocker after answering evasively and oblique ly admitted telling Baysinger I undoubtedly indicated that that may very well be our position given the situa tion at that time I might very well have said that Asserting as there seems no doubt that Rocker made this statement in the heat of anger counsel for the General Counsel further contends that the statement should be accorded little weight in determining the ex istence of impasse However contrary to counsel Gerald Rocker has had long experience in collective bargaining and impressed me as clearly understanding the conse quences of his statements made during bargaining In short I do not think he would have uttered such a com ment without meaning what he said and the nature of his labored testimony buttresses my conclusion in this regard Further that Rocker meant what he said seems certain from events subsequent to July 25 during which time neither Rocker nor any other representative of the Charging Party including Kris Banvard made any effort to show that bargaining over guild security would not have been futile or that the Charging Party did not con sider the positions of the parties to be firmly en trenched Stecher s Super Markets supra at 476 Thus from the conclusion of the July 25 meeting until imple mentation by Respondent of its final offer on August 4 the Charging Party neither met with Respondent nor presented a revised offer on guild security Also at the parties meeting on August 12 Rocker had no new pro posal to make on guild security Finally and conclusive ly demonstrating the futility of bargaining subsequent to July 25 on that issue included in the Charging Party s October 28 submission to Respondent was a proposal that the remainder of the present agreement (old con tract) would remain status quo Inasmuch as elsewhere in the submission the Charging Party agreed to accept certain of Respondents implemented contract terms but not including the open shop concept there can be no question that the Charging Party intended the guild secu rity clause to be encompassed by the language I am cognizant of the fact that while agreeing on July 25 that a bargaining impasse existed over guild security Rocker disavowed such a bargaining condition about any other subject Also except relating to wages Respond ent does not allege the existence of impasse on any other bargaining subject Nevertheless the Board has long held that a genuine bargaining impasse on one subject even when other subjects remain open and about which there exists no deadlock may in fact impasse the entire nego tiations particularly when the one subject is of central importance to the parties E I duPont & Co supra at 1076 Herein at the initial bargaining session Baysinger informed Rocker that one of its goals during the bargain ing was to eliminate work rules that diminished its flexi bility including guild security and later that Respond ent no longer desired to be a collector or recruiter for the Charging Party Likewise Rocke clearly understood the seriousness with which Respondent viewed guild se curity and deemed it and wages as the two major bar gaining issues Further there exists no record evidence that either party was willing to concede on guild secun ty in return for a favorable tradeoff in another open area In these circumstances notwithstanding the exist ence of other open issues I find that the instant contract negotiations had arrived at a point of genuine impasse over the issue of guild security a subject sufficiently im portant to deadlock the entire negotiations Therefore Respondent did not violate Section 8(a)(1) and (5) of the Act by implementing its final offer to the Charging Party on August 4 24 Id As stated above an employer does not violate Section 8(a)(1) and (5) of the Act by making unilateral changes in employees terms and conditions of employment subse quent to a lawful impasse in bargaining However it is also true that such a unilateral change cannot be imple mented unless it is reasonably encompassed by the em ployer s pre impasse proposals PRC Recording Co supra Taft Broadcasting Co supra at 478 Herein the parties agreed during their July 24 bargaining session about to certain job classifications that were to be ex cluded from the bargaining unit Notwithstanding this pre impasse tentative agreement as conceded by Re 2 As I previously stated the General Counsel does not allege that Re spondent violated Sec 8(a)(1) and (5) of the Act by implementing a final offer broader in scope than that which was the subject of the impasse therefore I make no findings on that issue 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent it unilaterally determined that certain other job classifications (assistant city editor night news editor Sunday editor editorial writer and two retail advertising supervisory positions) were either professional or super visory within the meaning of the Act and after declar ing impasse and in its August 4 implemented final offer included in the bargaining unit exclusions these classifica tions Thereafter it refused to recognize the Charging Party as the collective bargaining representative of em ployees in those positions Such a unilateral change is clearly violative of Section 8(a)(1) and (5) of the Act NLRB v Katz 369 U S 736 743 (1962) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Charging Party is a labor organization within the meaning of Section 2(5) of the Act 3 The following constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All editorial display advertising classified advertis ing commercial sales circulation business office switchboard and maintenance employees of Re spondent excluding confidential secretaries to Presi dent and General Manager (4) editor confidential secretary to editor managing editor associate editor editorial associate editor sports two associ ate editors news associate editor finance associate editor graphics associate editor features manager of photography retail advertising manager confi dential secretary to advertising director assistant retail advertising manager classified advertising manager classified office manager national adver tising manager commercial sales manager promo tion director circulation manager confidential sec retary to circulation manager purchasing manager assistant circulation manager business manager plant engineer communications supervisor control ler production engineer co op manager guards and supervisors as defined by the Act 4 At all times material the Charging Party has been the exclusive representative for purposes of collective bargaining of the employees in the above described ap propnate unit within the meaning of Section 9(a) of the Act 5 On or about August 4 1986 unilaterally after an impasse in bargaining implementing a final offer which differed from its pre impasse offers to and agreements with the Charging Party with regard to exclusions from the bargaining unit and thereby refusing to recognize the Charging Party as the collective bargaining repre sentative of certain of its employees Respondent en gaged in acts and conduct violative of Section 8(a)(1) and (5) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 7 Unless found Respondent neither committed nor engaged in any other unfair labor practices THE REMEDY Having found that Respondent engaged in the afor mentioned violation of Section 8(a)(1) and (5) of the Act I shall order that it cease and desist from this conduct Specifically Respondent shall be ordered to cease and desist from implementing subsequent to an impasse in bargaining with the Charging Party a pre impasse final offer that failed to encompass pre impasse agreements with the Charging Party regarding exclusions from the bargaining unit represented by the Charging Party and from failing affirmatively Respondent shall be ordered to continue to recognize the Charging Party as the bar gaining representative of its employees in the following job classifications assistant city editor night news editor Sunday editor editorial writer and two retail advertising supervisory positions Further I shall order Respondent to post a notice setting forth its obligations [Recommended Order omitted from publication ] r