Chicago Tribune Co.

National Labor Relations Board - Board Decisions

Jul 15, 1991

303 N.L.R.B. 682 (N.L.R.B. 1991)

682
303 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 1, 1987, the International Typographical Union became affili-
ated with the Communications Workers of America, AFL–CIO. Accordingly,
the caption has been amended to reflect that change.
2 In affirming the judge’s finding that the Respondent violated Sec. 8(a)(5)
by its delay in providing the Union with the names of strike replacements, we
do not rely on: (1) the judge’s references to the decision and reasoning of an-
other judge in a different case which involves the Respondent and is still
pending before the Board; (2) the judge’s erroneous statement that in order
to justify nondisclosure of strike replacements’ names, the Respondent had to
prove that the information would be misused; and (3) the judge’s post hoc
finding of significance in the absence of retaliation against replacements after
the Respondent ultimately provided replacements’ names to the Union on Au-
gust 10, 1987.
Member Raudabaugh does not pass on whether he would require an em-
ployer to prove a ‘‘clear and present danger’’ to replacement employees in
order to justify a refusal to provide their names to the union. In his view, the
circumstances relied on by the judge, as modified herein, support the conclu-
sion that the Respondent was required to supply the information even if a
standard less than ‘‘clear and present danger’’ is applied.
3 We affirm the judge’s conclusion that the Union effectively accepted an
outstanding contract offer from the Respondent and created a complete and
binding collective-bargaining agreement on July 27, 1987. In this regard, we
agree that the Union’s acceptance was not invalidated by its failure to incor-
porate the Respondent’s June 13, 1986 nondiscrimination clause counter-
proposal in signed copies of the contract or to refer to that clause in its accept-
ance letter. We find that the Respondent’s own failure to make any contem-
poraneous reference to this omission is conclusive evidence that it did not be-
lieve there was any continuing bargaining dispute about the nondiscrimination
clause. In particular, the Respondent’s August 10, 1987 response to the
Union’s acceptance letter refers only to the Respondent’s June 4, 1986 com-
plete contract proposal. It does not even mention the proposed nondiscrimina-
tion clause.
4 We find merit in cross-exceptions to the judge’s failure to order remedial
backpay for the 15 former strikers who rejected the Respondent’s unlawful of-
fers of reinstatement in December 1989. A make-whole remedy is the tradi-
tional relief provided by the Board to former strikers who refuse or do not
respond to an offer of reinstatement invalid on its face and who were thereby
denied their preferential right to be recalled to a vacant job. E.g., Craw & Son,
244 NLRB 241 (1979). Accordingly, we shall modify the recommended Order
and substitute a new notice to provide for backpay to these 15 former strikers.
Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
We also find merit in cross-exceptions to the judge’s finding that remedial
reinstatement of the aforementioned 15 former strikers should, if necessary,
displace 14 other former strikers who returned to work in jobs originally of-
fered to the discriminatees. We leave to compliance the determination of
which employees, if any, must be laid off in order to effectuate our reinstate-
ment order.
Finally, we find no merit in the Charging Party’s cross-exceptions to the
judge’s failure to recommend that the Respondent reimburse it for dues and
initiation fees lost as a result of the Respondent’s unlawful refusal to execute
and enforce a collective-bargaining agreement containing a union-security
clause. Such a remedy is inappropriate in the absence of a contractual checkoff
provision. Hickory Farms of Ohio, 222 NLRB 418, 421 (1976).
Chicago Tribune Company and Chicago Mailers’
Union Local No. 2, affiliated with the Commu-
nications Workers of America, AFL–CIO–
CLC.1 Cases 13–CA–25944, 13–CA–27161, 13–
CA–27336, and 13–CA–29166
July 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 21 1990, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party each filed
cross-exceptions and a supporting brief. All parties
filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Chi-
cago Tribune Company, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer all 15 former economic strikers who re-
fused unlawful offers of reinstatement in December
1989 immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, in the manner set forth in the Board’s
decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to provide or unreasonably delay
providing the Chicago Mailers Union No. 2 with the
names of permanent strike replacements.
WE WILL NOT refuse to provide the Union with peri-
odic payroll or other data for every payroll period from
January 9, 1986, to the present, or any other informa-
tion relevant and necessary to its role as exclusive bar-
gaining representative.
WE WILL NOT poll employees, in the context of
unremedied unfair labor practices, about whether or
not they want the Union to represent them.
WE WILL NOT refuse to sign and implement the
terms of the July 27, 1987 agreement between us and
the Union.
683CHICAGO TRIBUNE CO.
1 Two other units have had their own litigation over the strike or its after-
math. One is represented by the Chicago Typographical Union No. 16, Com-
munication Workers of America. See JD–298–89, Case 13–CA–28307, De-
cember 12, 1989 decision of Judge Bernard Ries. Another is represented by
Chicago Web printing Pressmen’s Union No. 7, Graphic Communications
International Union. See JD–292–89, Case 13–CA–25535, December 12, 1989
decision of Judge Marion Ladwig.
2 I see no reason for not reading or considering anything submitted to me
so I deny the General Counsel’s motions to strike.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive bargaining representative in
the unit described in the agreement of July 27, 1987,
and in previous bargaining agreements between us and
the Union.
WE WILL NOT discriminate against employees be-
cause they engaged in strikes or other protected con-
certed activities by not offering them their former jobs
or substantially equivalent jobs when vacancies occur
in such positions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their Section 7 rights.
WE WILL sign and implement the terms of the July
27, 1987 collective-bargaining agreement between us
and the Union, and WE WILL make whole all employ-
ees, including any who may have since left the payroll
and reinstated former strikers, for any loss of wages or
benefits suffered by reason of our failure to apply the
agreement.
WE WILL offer all 15 former economic strikers who
refused unlawful offers of reinstatement in December
1989 immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights or privileges previously enjoyed, and
WE WILL make them whole for any loss of earnings
and other benefits resulting from the discrimination
against them, less any net interim earnings, plus inter-
est.
WE WILL furnish the Union with payroll or similar
data for every payroll period from January 9, 1986, to
the present, and with all the information requested by
it in October 1987.
WE WILL, on request, bargain with the Union as the
exclusive bargaining representative of the employees in
the bargaining unit described above and, if an under-
standing is reached, embody the understanding in a
signed agreement.
CHICAGO TRIBUNE COMPANY
Paul Bosanac, Esq., for the General Counsel.
R. Eddie Wayland and E. Andrew Norwood, Esqs., of Nash-
ville, Tennessee, for the Respondent.
Richard Rosenblatt, Esq., of Englewood, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
consolidated case was originally tried for 4 days from De-
cember 11 through December 14, 1989, in Chicago, Illinois.
It arises from the bargaining and consequent strike by unions
representing separate units of Respondent’s production em-
ployees in 1985 and 1986, but it involves only the unit rep-
resented by the Charging Party Union (the Union or the
Mailers Union).1
The original consolidated complaint, as amended, alleges
that Respondent violated Section 8(a)(5) and (1) of the Act
by refusing and delaying to provide the Union with the
names of the permanent replacements it had hired during the
strike, and refusing to provide periodic payroll or other data
that would show whether vacancies occurred to which former
strikers could be recalled. The complaint also alleges that
Respondent violated Section 8(a)(5) and (1) when it failed to
sign an agreement entered into when the Union accepted Re-
spondent’s outstanding contract offer, Section 8(a)(1) when it
later polled its replacement employees, and Section 8(a)(5)
and (1) when it subsequently withdrew recognition from the
Union. Finally, the complaint alleges that Respondent vio-
lated Section 8(a)(5) and (1) by failing to provide the Union
with bargaining unit information after the withdrawal of rec-
ognition. The Respondent filed an answer denying the essen-
tial allegations of this complaint.
After the close of the hearing in the original proceeding,
the General Counsel issued a complaint in a related Case
(13–CA–29166) alleging that, in December 1989, the Re-
spondent announced vacancies in the unit involved in the
original case and that it violated Section 8(a)(3) and (1) of
the Act by not making proper offers of reinstatement to
former strikers with respect to those vacancies. The Respond-
ent filed an answer denying this additional allegation. In an
intermediate order, dated March 5, 1990, I directed that this
case be consolidated with the earlier case which I reopened
for this purpose. The hearing on the reinstatement portion of
the case was held on June 26 and 27, 1990, in Chicago, Illi-
nois.
The parties filed helpful briefs and reply briefs on all
phases of the case. I have read and considered all of them.2
Based on those briefs, the testimony of the witnesses, and
my observation of their demeanor, as well as the documen-
tary evidence, and the entire record herein, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Chicago, Illinois, is engaged in the publication of
the Chicago Tribune, a daily newspaper, in Chicago, Illinois.
It annually derives over $200,000 in gross revenues, sub-
scribes to various interstate news services, including the As-
sociated Press, and publishes various syndicated features.
During a representative 1-year period, Respondent purchased
and received, at its Chicago facility products, goods and
services valued in excess of $50,000 directly from points
outside the State of Illinois. Accordingly, I find, as Respond-
ent admits, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background: the bargaining, the strike, picketing, and
the hiring of replacements
For many years the Union bargained with the Respondent
through the Chicago Newspaper Publishers Association
(CNPA), a multiemployer bargaining association of which
Respondent was a member. The most recent bargaining
agreement between the Union and CNPA was effective from
April 15, 1981, through July 14, 1984. Thereafter, following
a timely withdrawal from multiemployer bargaining, the
Union began to negotiate individually with both Respondent
and Chicago’s other major daily newspaper, the Chicago Sun
Times.
The Union, along with other unions representing Respond-
ent’s production employees whose contracts were also being
negotiated at this time, struck the Respondent. The strike
began in July 1985. The unions set up picket lines at Re-
spondent’s production facility; to a certain extent, the pick-
eting was a coordinated effort by all the striking unions. The
Respondent hired permanent replacements for the striking
employees, including those in the bargaining unit involved
here, referred to either as the mailroom or, later on, the pack-
aging department.
There were numerous incidents of harassment, violence,
and verbal abuse of replacements and supervisory personnel
as they crossed the picket line outside the Respondent’s pro-
duction facility. Some 40 to 45 employees represented by
four unions were disciplined for strike misconduct; 20 of
these were mailroom employees, 5 or 6 of whom were dis-
charged. Some of the violence and harassment carried over
to the homes of Respondent’s supervisors. In August 1985,
Respondent received word that a list of mailroom supervisors
had been posted on the Union’s bulletin board at the Sun
Times production facility. They had apparently been union
members but resigned at the time of the strike. There was
evidence that some mailroom supervisors received threat-
ening phone calls, magazine, and pizza deliveries that had
not been ordered, and had vandalism directed to their homes
or property. One had his garage burned with damage to both
his cars. Although some mailroom employees may have been
involved in picket line misconduct, the perpetrators of the in-
cidents at the homes of the supervisors were never appre-
hended or even identified and there is no evidence that the
Union was responsible for this or any other misconduct.
There is no evidence that Section 8(b)(1)(A) charges were
filed against the Union in this respect or that union officials
were involved in any misconduct, whether on or off the pick-
et line.
2. The requests for the names of the replacements
The parties continued to negotiate during the strike. An
issue arose at one point as to whether the striking employees
would be entitled to return to work at the end of the strike.
In one of the bargaining sessions, Union Counsel Marvin
Gittler asked whether, if the Union accepted Respondent’s
last proposal, the strikers would be reinstated ‘‘imme-
diately.’’ In a February 19, 1986 letter, George Veon, Re-
spondent’s vice president and director of industrial relations,
said that they would not and that the strikers who uncondi-
tionally ended the strike would be returned to work in ac-
cordance with established law ‘‘to the extent that any job va-
cancies have not been filled with permanent replacements.’’
Under Board law, economic strikers who have made uncon-
ditional offers to return to work are entitled to their old jobs
if they have not been permanently replaced and, even if they
have been permanently replaced, when the permanent re-
placements leave or vacancies otherwise become available.
See cases cited, infra.
On February 20, 1986, Union Counsel Gittler wrote to Re-
spondent’s Veon requesting certain information in connection
with Respondent’s claim that there were ‘‘no vacancies’’ in
the mailroom. Gittler asked for the names of ‘‘each em-
ployee allegedly hired on a permanent basis’’ since the be-
ginning of the strike, along with other information, such as
the date of hire, job title, and pay rates of the replacements,
as well as other information related to the permanence or du-
ration of the jobs.
On March 6, 1986, Veon replied in a letter to the Union.
He provided some of the information requested, such as rates
of pay and hire dates of individuals identified as ‘‘mailroom
employee,’’ but declined to provide the Union the names of
the replacements ‘‘due to the type and amount of violence
connected with this strike, including actions against super-
visors, who continue to work and are known by your mem-
bers.’’ Veon then stated, ‘‘[p]lease let us know the reason
you require the names so we can evaluate this further to de-
termine if we can satisfy your purpose for this and still pro-
tect the employees.’’
On March 25, 1986, Gittler responded by letter asking
questions about the data provided and for more information,
including whether any replacements had resigned or been ter-
minated and the date of such action. On the issue of names,
Gittler stated as follows:
The name of each employee is essential to verify the
validity of the material you have submitted and to assist
in determining the status of the employees. Such names
have been provided to other unions and there is no
good reason to deny the request. . . . Please provide
the names immediately.
He also questioned the Respondent’s allegations of violence
as a factor in withholding the names of the replacements.
Veon’s response, dated April 8, 1986, provided some an-
swers to Gittler’s requests, including information as to the
termination of some replacements as of that point. On the
issue of names, it stated as follows:
We do not believe there is a valid reason for you to
have the names of the permanent replacements, but if
there is a need to contact them we are willing to supply
the names and addresses to a third party such as a
major CPA firm and allow them to address and forward
information or perform related tasks so long as the
names and addresses are not revealed to anyone else.
On May 13, 1986, the Union filed a charge, in Case 13–
CA–25944, alleging that Respondent had discriminated
against employees in certain respects and had refused to fur-
685CHICAGO TRIBUNE CO.
3 At the hearing I reserved ruling on R. Exhs. 14, 15, and 16 dealing with
its protest of this action. Upon reconsideration I reject those exhibits for the
reasons stated by the General Counsel at the hearing.
4 This proposal had apparently been made at the June 4, 1986 bargaining
session of the parties.
nish requested information to the Union necessary for collec-
tive bargaining and representation of unit members.
At the May 28, 1986 bargaining session between the par-
ties, Gittler told Respondent’s negotiators that, if Respondent
provided it with the names of replacements, the Union would
not release the names and would use them only to verify in-
formation already provided. This was confirmed in a letter
sent that same day to Veon. The letter states as follows:
We further advised you as to the inadequacy of the in-
formation you provided to Local 2 under cover letter of
April 8, 1986 and explained that the names of alleged
replacements were necessary to verify the information
you have submitted to determine those in the bar-
gaining unit and to enable us to verify and administer
a reinstatement list should all of the strikers not be per-
mitted to return to work immediately. We indicated to
you that although we have had a right to this informa-
tion as a bargaining representative since we first re-
quested the information, we would nevertheless agree
not to disseminate the information beyond that which is
necessary for the purposes expressed above. We also
stated that the list would not be used to contact individ-
uals at their homes.
On May 30, 1986, Veon wrote to the Union stating Re-
spondent’s understanding of the Union’s need for the names:
the Union did not need to contact the replacements directly,
‘‘but only needs verification as to the accuracy of the list of
persons hired as replacements which has been previously
supplied to the union.’’ He then made the following pro-
posal:
As an alternative to release of the names, the Company
proposes to provide the list of replacements with their
birth date and the last four digits of their social security
numbers. This information should meet the verification
needs of the union. At the same time it will prevent any
liability on the part of your union should something
happen to a replacement if the names were released.
There were no further communications between the parties
on the issue of names until August 1987. In the meantime,
on June 24, 1986, the General Counsel issued a complaint
in Case 13–CA–25944 alleging that Respondent’s failure to
provide the Union with ‘‘information concerning the names
of strike replacements’’ was violative of the Act. Because of
the pendency of this unfair labor practice proceeding, and in
accordance with standard procedure, the Board declined to
process a decertification petition filed by a mailroom replace-
ment employee on August 11, 1986.3
3. The unconditional offer to return to work and
subsequent requests for periodic payroll or other data
relating to the existence of vacancies
On May 25, 1986, the Union made an unconditional offer,
on behalf of the striking mail room employees, to return to
work. The Respondent stated that it had no vacancies in the
mailroom. None became available, according to Respondent,
until December 1989. As a result the mail room was manned
only by replacements, and no former strikers, for the next 3-
1/2 years.
From June through September 1986, the Union and Re-
spondent exchanged letters relating to Respondent’s proposed
preferential hiring list for the return of the striking employees
and the Union’s attempt to secure information as to whether
Respondent had any vacancies to which the former strikers
could be recalled. The Union sought the information about
vacancies in three separate letters to Veon from the Union’s
secretary-treasurer, Leonard A. Jedd:
On July 2, 1986, Jedd made the following request:
[W]e hereby request that you provide us with a full and
complete payroll or other listing of all employees em-
ployed in the mail room and performing duties within
the Local 2 bargaining unit for each pay period since
January 9, 1986. Such information will enable us to
verify the legitimacy of your refusal to recall so much
as one striking employee represented by this union.
On August 5, 1986, Jedd repeated his request:
[W]e have still not received a response to our demand
to inspect your payroll records for the purpose of inves-
tigating and/or verifying your hiring and/or employment
of non-striking individuals. It remains inconceivable to
us that there has not been one vacancy since our uncon-
ditional offer to return to work.
On September 2, 1986, Veon sent the Union a list of em-
ployees currently working in the mailroom with the classi-
fication (mailroom employee), hire date, and an indication
whether the employee was full time or part time. Veon stated
that ‘‘[b]ased on current volume and productivity there are
no vacancies at this time.’’
On September 5, 1986, Jedd wrote Veon as follows:
We are still awaiting the information we have repeat-
edly requested to verify your claim that there has not
been one single vacancy in the mail room since our un-
conditional offer.
There was no further response to these requests by Jedd.
4. The Union accepts the Respondent’s last offer and
Respondent thereafter refuses to sign the contract
proffered by the Union, polls the replacements, and
withdraws recognition from the Union
Despite their differences, the Union and Respondent con-
tinued to meet and communicate in an effort to resolve these
differences. The last bargaining session was held on August
18, 1986.
On June 6, 1986, the Respondent had sent the Union a
copy of its then-updated bargaining proposal in the form of
a draft collective-bargaining agreement.4 This proposed con-
tract, which had a duration clause of 2 years, was capable
of being accepted at this point by the Union and the parties
would then have had a full and complete bargaining agree-
ment. The Union did not accept the proposal when it was
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made. However, the proposal was never withdrawn by Re-
spondent.
On June 13, 1986, Veon had sent the Union a letter re-
viewing the negotiations to that point and including a coun-
terproposal to an apparent Union proposal on equal employ-
ment. The Respondent’s proposal read as follows:
The Union and the Employer strongly and actively sup-
port an equal employment policy and this Contract will
be applied accordingly. In accordance with applicable
law, neither the Employer nor the Union shall discrimi-
nate in employment matters on the basis of race, color,
religion, sex, national origin, ancestry, age, marital sta-
tus, and physical or mental handicap unrelated to ability
or unfavorable discharge from military service.
On February 16, 1987, the Union’s newly elected presi-
dent, Louis Lambesis, wrote John Sloan, Respondent’s direc-
tor of employee relations, congratulating him on his recent
promotion and asking for a resumption of negotiations.
On March 2, 1987, William O. Howe, Respondent’s labor
relations manager, responded to the Lambesis letter describ-
ing his view of the negotiations to that point and referring
to the Respondent’s outstanding ‘‘firm proposal’’ which the
Union had not accepted. Howe stated that ‘‘[t]he Company
has no change in its firm proposal,’’ and said that the Union
should let him know if it had a change of position.
On July 22, 1987, the Sun Times, which was then in nego-
tiations with the Union, notified its employees represented by
the Union that, pursuant to the most favored nations clause
in its recently expired contract with the Union, it would cut
the pay of those employees to the rate Respondent, its com-
petitor, was paying the mail room replacement employees.
This was reported in a story in Respondent’s newspaper
dated July 23, 1987. The Union disputed the Sun Times’ in-
terpretation of the most-favored nations clause and the pro-
posed wage cut was never implemented.
On July 27, 1987, the Union wrote Respondent two letters
accepting Respondent’s ‘‘most recent’’ contract proposal and
notifying Respondent that the Union was removing its picket
line which had apparently remained in place since the begin-
ning of the strike. The Union reaffirmed its position in a let-
ter dated July 28, 1987, and, on August 6, 1987, Union
President Lambesis wrote Howe notifying him that the em-
ployees had ratified the agreement and enclosing signed cop-
ies for Respondent’s signature.
On August 10, 1987, Howe responded to the Union’s let-
ters declining to acknowledge the Union’s acceptance of its
contract offer. He stated that Respondent had a good-faith
doubt of the Union’s continued majority, setting forth its rea-
sons. The reasons mentioned were as follows: (1) all of the
former strikers were permanently replaced and none had been
returned to work; (2) none of the replacements was a Union
member and ‘‘many’’ expressed a desire not to be rep-
resented; (3) a decertification petition was filed with the
Board in August 1986; (4) another petition signed by two-
thirds of the replacements stated that they did not want to
be represented by the Union; (5) the replacements had been
harassed; (6) the Union had made demands that replacements
be laid off and former strikers returned to work; and (7) the
Union’s acceptance of the Respondent’s offer was motivated
by the Union’s ‘‘situation’’ at the Sun Times and was not
in the interest of bargaining unit employees. The Respondent
did not, however, withdraw recognition from the Union at
this time.
In the letter Howe also stated that, ‘‘[i]n order to insure
the basis of our good faith doubt,’’ Respondent was going
to conduct a poll of its employees on August 20. The letter
continued that Respondent was waiving its prior objection to
providing the Union with the names of the replacement em-
ployees. Enclosed was a list of the names and addresses of
all current employees as well as those replacements who
were then working or had worked in the mailroom. The
Union responded to this letter objecting to the proposed poll
and standing by its position that the parties had an enforce-
able agreement.
On August 25, 1987, Howe wrote the Union announcing
the result of the poll, conducted by an accounting firm, in
what the Respondent called the ‘‘Packaging Department
(mail room).’’ The Union was rejected by a wide margin. As
a result, Howe concluded, Respondent was refusing to sign
the proffered contract and was withdrawing recognition from
the Union.
5. More requests for information from the Union
On October 8 and 13, 1987, the Union wrote Respondent
eight separate letters requesting specific information with re-
spect to administering the contract it contended had been
agreed on in late July 1987. The Respondent, in a letter
dated October 23, 1987, denied these requests stating that, in
its view, the Union was no longer the legitimate bargaining
representative and there was no valid agreement in existence.
6. In December 1989 the Respondent offers
reinstatement to some former strikers to fill
vacancies in the unit
As indicated above, on May 28, 1986, the Union had
made an unconditional offer that the striking mailroom em-
ployees would return to work. On December 6, 1989, Re-
spondent declared for the first time that vacancies existed in
the unit and sent letters to 15 former strikers offering them
reinstatement to jobs in the packaging department. These 15
names came from a preferential hire list prepared by the Re-
spondent.
After the Union asked for more details on the offers, the
Respondent specified the details in letters, with an attached
fact sheet, both to the Union and the 15 former strikers,
dated December 22, 1989. According to the fact sheet, the
former strikers would be full time employees working five
shifts each week, they would carry seniority from their origi-
nal hire dates, and their hourly wage rate would be $9.91 for
the first shift and $10.31 for the second and third shifts. The
offer was for jobs on the second and third shifts.
None of the 15 former strikers initially offered jobs ac-
cepted Respondent’s offer. Thereafter, Respondent went
down its hire list and exhausted it; part-time former strikers
were offered part-time positions and full-time former strikers
were offered full-time positions. Fourteen former strikers ac-
cepted Respondent’s offer and returned to work. All the rein-
stated former strikers were journeymen; night-shift journey-
men were earning $14.3357 per hour before the strike. On
reinstatement they were earning $10.31 per hour; some re-
placements were earning more than they were. The contract
687CHICAGO TRIBUNE CO.
accepted by the Union in late July 1987 provided that jour-
neymen mailers be paid $15.70 per hour for night-shift work.
B. Discussion and Analysis
1. The prewithdrawal of recognition information
requests
Paragraphs 8(a) and 9(a) and (b) of the complaint allege
that from May 30, 1986, until August 10, 1987, Respondent
refused to provide and delayed providing ‘‘information con-
cerning the names of strike replacements’’ requested by
Union Counsel Gittler on May 28, 1986. Paragraphs 8(b) and
9(c) allege that, since August 5, 1986, Respondent refused to
provide ‘‘a full and complete payroll or other listing of all
employees employed in the mailroom and performing duties
within [the Union’s] bargaining unit for each pay period
since January 9, 1986’’ as requested on July 2, August 5,
and September 5, 1986, by Union Secretary-Treasurer Jedd.
An employer’s statutory duty to bargain in good faith in-
cludes an obligation to provide the union which is the exclu-
sive bargaining representative of its employees with relevant
and necessary information attendant to bargaining. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). The standard for
determining relevance is a liberal discovery-type one. Id. at
437. It is well settled that the names of strike replacements
are presumptively relevant and are required to be furnished
to an incumbent union by an employer on request. Burkart
Foam, 283 NLRB 351, 356 (1987), enfd. 848 F.2d 825 (7th
Cir. 1988); Georgetown Holiday Inn, 235 NLRB 485 (1978).
Unions are also entitled to information relating to the layoff
and recall of employees, including the recall of strikers.
Burkart Foam, supra, and cases there cited; Florida Steel
Corp., 235 NLRB 941, 942 (1978); Champ Corp., 291
NLRB 803 (1988), enfd. 913 F.2d 639 (9th Cir. 1990). Fi-
nally, the failure to provide required information within a
reasonable time is as much a violation as the refusal to pro-
vide it at all. Georgetown Holiday Inn, supra, 235 NLRB at
497–498, and Pennco, Inc., 212 NLRB 677, 678 (1974).
a. The names
Respondent takes the position that it was entitled to with-
hold the names because of its concern that their release
would cause harm or harassment to the replacements. Re-
spondent did release the names, as well as the addresses,
which the Union had never requested, in connection with a
poll it conducted among the replacements in August 1987,
over a year after the original request. Such a concern–that re-
placements would be harmed by release of requested infor-
mation–may justify refusing to provide requested information
where, as the Seventh Circuit has stated, an employer shows
a ‘‘clear and present danger that the union will use the infor-
mation to harass employees.’’ NLRB v. Burkart Foam, 848
F.2d 825, 833 (7th Cir. 1988). Resolution of this issue re-
quires weighing competing interests in the circumstances of
each case. See WCCO Radio v. NLRB, 844 F.2d 511, 515
(8th Cir. 1988), cert. denied 109 S.Ct. 72 (1988), quoting
from Detroit Edison Co. v. NLRB, 440 U.S. 301, 314–315
(1979), and Soule Glass & Glazing Co. v. NLRB, 652 F.2d
1055, 1094 (1st Cir. 1981).
In this case, consideration of all the circumstances leads
me to conclude that the prospect that the names would be
used for retaliation was not sufficiently strong to outweigh
the Union’s right for the names in the context of its rather
limited request and needs. Thus, Respondent has not shown
a clear and present danger that the names would be misused
by the Union.
There is no doubt that there were incidents of violence and
harassment in the strike of the several unions against Re-
spondent. However, the question is not whether there was vi-
olence or even how much, but whether there was a clear and
present danger that the names provided to the Union would
be used to advance such violence, or, more precisely, wheth-
er Respondent refused to provide the names to the Union be-
cause it reasonably believed there was a clear and present
danger that the names would be used to harm the replace-
ments. It is appropriate, in this case, to focus primarily on
the incidents away from the picket line at the homes of the
mailroom supervisors. Release of the names would have no
appreciable effect on picket line misconduct or harassment,
mostly in the form of verbal abuse, since the replacements
were confronted, regardless of whether their names were
known, because they physically crossed the picket line as
they went to and came from work. The question then be-
comes would the names be used by the Union to obtain other
information—addresses and phone numbers—which would
bring the misconduct and harassment to the homes of the re-
placements. I think not. Nor do I think Respondent seriously
thought they would.
The request for the names came from the Union’s attorney
with the stated need being verification of information already
provided. The Respondent knew and understood the limited
purpose for the names. Despite Respondent’s failure to ask
for assurances against misuse of the names, a circumstance
itself casting doubt on whether Respondent really believed
that there was a clear and present danger of misuse, the
Union’s attorney nevertheless volunteered such assurances.
Attorney Gittler wrote Respondent that the Union would not
‘‘disseminate the information beyond [verification]’’ and
stated that the information would ‘‘not be used to contact in-
dividuals at their homes.’’ This assurance was at least as spe-
cific and effective as that found sufficient to allay employer
concerns in Burkart Foam, supra, 848 F.2d at 834.
There is always the possibility that the names could have
fallen into the wrong hands, namely the hands of those who
were responsible for the violence and harassment of the mail-
room supervisors at their homes, and, if that happened, it
would be a short step for them to have gone to a telephone
directory to obtain addresses and phone numbers. However,
I consider this eventuality remote in this case. It is signifi-
cant that neither the Union nor its officers were found re-
sponsible for any of the violence or harassment, including
that which occurred at the homes of supervisors. And they
were the ones who were most likely to see and use the
names for verification purposes. Even assuming that some
hot headed members were responsible for the incidents at the
homes of supervisors, it is as likely as not that this was a
result of the fact that these supervisors were former union
members who were viewed as traitors to the cause. More im-
portantly, and not meaning to condone whatever misconduct
occurred, in the absence of a finding, or even a charge or
complaint, under Section 8(b)(1)(A) of the Act, that the
Union was responsible for it, I cannot conclude that the
Union or its officers would use the names for this purpose.
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent’s contention that it declined to provide the names in reliance
on the General Counsel’s refusal to issue a complaint in a similar case involv-
ing Chicago Typographical Union No. 16 is unavailing. The General Counsel’s
refusal to issue a complaint on this point in that case was based on the union’s
failure, unlike the Union here, to give assurances against misuse of the names
and addresses requested in that case. The same General Counsel did issue the
complaint in this case as well as in the Chicago Tribune Co. (Pressmen’s),
304 NLRB 287 (1991), case on this point.
6 The election had been stalled by Respondent’s own failure to release the
names of the replacements. And Respondent, which was at all times rep-
resented by experienced labor counsel, should have known that an untimely
release would not cure the alleged violation that had blocked the election. As
indicated above, delay in supplying required information is as much a violation
as refusing to provide it in the first place (see cases cited, supra). Moreover,
Respondent should have recognized that refusing to sign the contract proffered
by the Union (discussed, infra) would at least prompt another charge, as it did,
which would keep the election blocked.
Nor is there any labor law requirement that an employer provide names and
addresses of replacements before polling them. In a case decided in September
1989, well after the events herein, the Board set forth a requirement that a
union, at least an incumbent, be given reasonable advance notice of a poll.
Texas Petrochemicals Corp., 296 NLRB 1057 (1989). The Board did not re-
quire that names and addresses be provided before such a poll because it
would be superfluous: an incumbent union has a right to this information any-
way.
7 Even if the abatement of violence argument were advanced by Respondent
it would not provide a defense in this case. There has been no showing, for
example, that there was less violence and harassment on August 10, when Re-
spondent provided the names, than on July 26, the day before the Union ac-
cepted the outstanding proposal and a point at which the Respondent was still
refusing to provide the names.
Compare Browne & Sharpe Mfg. Co., 299 NLRB 586
(1990).
It seems to me that Respondent must show that the infor-
mation would be misused, not simply that it might be mis-
used. Because neither the Union or its officers were shown
to have been responsible for the misconduct which occurred,
I cannot accept Respondent’s position that it could not trust
the Union’s assurances against misuse. There was, here, no
reasonably based objective ground to discount the Union’s
assurances and the Respondent ‘‘has not shown the Union to
be unreliable in respecting confidentiality agreements.’’
Pertec Computer, 284 NLRB 810, 811 (1987). See also
WCCO Radio v. NLRB, supra, 844 F.2d at 515.5
Another factor tending to show no clear and present dan-
ger of misuse in this case is the Respondent’s action in turn-
ing over the names, as well as the addresses, which the
Union never requested, in August 1987. Significantly, there
is no evidence of retaliation or harm to the replacements at
any time after the names and addresses were provided. Per-
haps it could be argued that the violence and harassment had
abated by the time Respondent turned over the names and
addresses. But neither the Respondent nor its witnesses took
this position and abatement of the misconduct was not the
reason given for release of the names and addresses. In its
reply brief (R. Br. 5), Respondent states that it ‘‘had safety
concerns’’ when it released the names and addresses; indeed,
Respondent’s director of security testified that he thought
providing the names to the Union in August 1987 was a neg-
ligent act. Respondent nevertheless dismissed these alleged
safety concerns and, according to the testimony of Labor Re-
lations Manager Howe, released the names and addresses in
an effort to revive the stalled decertification election petition.
I have difficulty accepting this testimony, and indeed Re-
spondent’s rationale on this entire matter, because there was
no way that release of the information at this late date would
have unblocked the decertification petition filed in August
1986.6
However, even if I did accept Howe’s testimony and Re-
spondent’s rationale, it would simply mean that only when
faced with the possibility of a 2-year contract with the Union
was the Respondent willing to supply the names it had with-
held for over a year in hopes that an election would be held
which would oust the Union. This belies Respondent’s al-
leged safety concerns and undercuts its position that it with-
held the names because of a clear and present danger that
the Union would use the names to harm the replacements.7
In its reply brief (R. Br. 5), the Respondent attempts to
explain its change of position with respect to release of the
names by asserting that it was simply following the wishes
of the replacements: in early 1986 the replacements did not
want their names released, but, in August 1987, they did, in
hopes of getting an opportunity to oust the Union. Two re-
placements, leaders in the decertification movement, and sev-
eral management officials testified to this effect; the views
of the replacements were expressed in meetings called by
management. I cannot accept Respondent’s explanation. The
argument itself proves too much. If fears that the names
would be misused could be dissipated simply by a promised,
but essentially ineffective, opportunity to oust the Union they
could not have been significant fears to begin with. Whatever
representations were made in those meetings, as I noted
above, release of the names in August 1987 would not have
unblocked the decertification petition, nor was such release
necessary to legitimize the poll contemplated by Respondent.
Thus, I cannot give this testimony controlling weight.
Much depends on the context of the employee meetings in
which the replacements’ views were expressed. It is not en-
tirely accurate to say, as Respondent contends in its reply
brief, that the replacements asked Respondent to release the
names in August 1987. Respondent called the meetings and
told the replacements that it was thinking of releasing the
names and, presumably, the addresses. Respondent initiated
discussions on this issue because, as Howe testified, Re-
spondent thought—erroneously, it turned out—that disclosure
at this point would clear the way for a decertification elec-
tion. It is not even clear that all the replacements agreed to
release of their names. Mailroom Supervisor Jim Strafaci tes-
tified that, in group meetings in 1986, the replacements said
they did not want their names released and he never heard
them say otherwise. In these circumstances, it is likely that
the views of the replacements were not entirely independent
from the views of the Respondent; they were influenced by
what Respondent wanted to do. After considering all of the
testimony on this point, as well as Respondent’s own inter-
ests in the matter, I do not think I would have confidence
in the validity of any findings I could make about the true
feelings of the replacements.
In any event, it seems to me that Respondent’s clear and
present danger defense can be resolved notwithstanding this
testimony. As the Eighth Circuit has stated, the views of em-
ployees on matters of confidentiality—concerns equivalent to
those involved here—are not dispositive, particularly where,
as here, the union gives assurances limiting the use of poten-
tially damaging information. See WCCO Radio v. NLRB,
supra, 844 F.2d at 515.
A similar release of names issue was considered by Judge
Ladwig in the Tribune Pressmen’s case. In that case, which
689CHICAGO TRIBUNE CO.
is pending before the Board, Judge Ladwig found a violation
where the Respondent had refused to provide both the names
and addresses of replacements in part because the Respond-
ent ‘‘had no real fear’’ that release of this information would
present a ‘‘clear and present danger’’ of harassment. I con-
sidered some of the same evidence considered by Judge
Ladwig. Indeed, much of the evidence herein was in the
form of testimony and exhibits in that case entered into this
record by stipulation. I do not adopt Judge Ladwig’s findings
on this point because of the differences in the two cases.
However, there are similarities which point to the same result
here. Indeed, this case is stronger because here, unlike in that
case, the Respondent did eventually provide the names, as
well as the addresses, to the Union in circumstances which
belied any clear and present danger due to the release of the
names. Nor did the union in the Pressmen’s case give the
assurances made by the Union herein.
I acknowledge that Respondent suggested what appeared
to be reasonable alternatives to release of the names in light
of the Union’s stated verification needs. The instant case is
thus distinguishable from the Pressmen’s case on this point,
infra. In other circumstances Respondent’s suggested alter-
natives might have carried the day and provided a complete
defense. Not here however. The presence of this factor does
not counterbalance the other evidence herein which shows no
clear and present danger that the Union would use the names
to harass the replacements. The request for the names was
for a very limited purpose, neither the Union nor union offi-
cials who would have access to the names were involved in
any alleged misconduct, the Union gave assurances against
misuse of the names, and the Respondent belied any safety
concerns by later providing the names as well as the address-
es. No evidence of misuse followed release of the names. In
these circumstances, I believe that the Union’s presumptive
right to the information sought was not overcome by Re-
spondent’s reasons for withholding the information. I do not
believe that Respondent has convincingly shown a clear and
present danger that the Union would use the information
sought to retaliate against replacements. Accordingly, I find
that Respondent’s delay of over 1-year in providing the
Union with the names of replacements which it needed for
legitimate verification purposes was violative of Section
8(a)(5) and (1) of the Act.
b. The periodic payroll or other data
Now to the second information allegation. In an amend-
ment to the original complaint the General Counsel alleges
that Respondent unlawfully refused and failed to honor three
requests, in June, August, and September 1986, from the
Union for continuing payroll data that would show whether
any vacancies occurred after the end of the strike which
could be filled by former strikers who had offered to return
to work and thus had reinstatement rights.
Respondent conceded that, at no time, did it ever provide
the specific payroll information requested by the Union,
namely, ‘‘a full and complete payroll or other listing of all
employees employed in the mailroom and performing duties
within the [Union’s] bargaining unit for each pay period
since January 9, 1986.’’ However, it took the position that
it considered this another request for the names of replace-
ments and that all other requested payroll data had been pro-
vided.
I disagree and find that this information was necessary for
the Union to carry on its basic representative function. The
Union needed this information to monitor whether any va-
cancies had occurred among the replacements because, ab-
sent legitimate and substantial business reasons, former strik-
ers who unconditionally offer to return to work are entitled
to be recalled to fill vacancies as they arise. See Burkart
Foam, supra, 848 F.2d at 831, citing the lead cases on the
point. Information on terminations, layoffs or resignations,
transfers, if any, or hours worked, including overtime, is cru-
cial in determining whether a vacancy exists. Periodic payroll
information is the raw data which can highlight the existence
of a vacancy. In this case, Respondent repeatedly denied that
vacancies existed; the Union was entitled to information
which would enable it to test this claim, much as a union
is entitled to information which would enable it to test an
employer’s claim of inability to pay certain wages. See
NLRB v. Truit Mfg. Co., 351 U.S. 149, 152–153 (1956).
Significantly, in the Pressmen’s case, Judge Ladwig found
that the evidence before him established that Respondent
failed to fill certain vacancies, despite its contention that
none existed, in derogation of the rights of former strikers.
Without the raw data showing the ebb and flow of the work
force in each payroll period the Union could not adequately
monitor possible vacancies and thereby properly represent its
members who sought to return to work. Indeed, its failure to
press for this information might well have subjected it to a
fair representation suit. See Vaca v. Sipes, 386 U.S. 171
(1967). Respondent’s failure to supply the Union with peri-
odic payroll or other data in order to determine whether or
not vacancies existed was thus prima facie violative of the
Act. Respondent has offered no persuasive defense to its fail-
ure to provide this information.
Contrary to Respondent’s position, this allegation does not
deal with another request for the names of replacements.
This allegation involves a much broader request which had
a different origin than the request for the names. The request
for the payroll data was spawned by three letters from the
Union’s secretary-treasurer after the Union ended the strike
and former strikers became entitled to recall rights when va-
cancies arose. The request for names was spawned by letters
from attorney Gittler before the end of the strike in connec-
tion, originally, with the Union’s attempt to obtain immediate
reinstatement for the strikers. At this point, the Union was
questioning whether all the strikers had been replaced and
whether the replacements were permanent. Later, when some
information was provided, the Union needed the names to
verify the information provided. Thus, despite some simi-
larity in the reasons advanced for the information, the re-
quests were different. The request for periodic payroll data
was different than that for the names because it sought a
continuing, moving picture of employment as it might reveal
the existence of vacancies. Indeed, the payroll data—from
each payroll period—could have been provided even without
the names, as Respondent had done with other information
in connection with Gittler’s request.
Respondent’s contention that it had already provided the
information requested by Jedd is not supported by the evi-
dence. Labor Relations Manager Howe admitted that payroll
or similar data by payroll period was not provided. An anal-
ysis of the information that was provided confirms this testi-
mony. On March 6, 1987, the Respondent provided a list
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 At the hearing, Respondent objected to the propriety of the amendment en-
compassing this allegation on procedural grounds. Respondent contended that
the subject matter of the amendment was arguably embodied in a withdrawn
charge and was not itself supported by a separate valid charge. I overruled
the objection and reaffirm my ruling here. The amendment was closely related
to an existing charge and one which had resulted in the issuance of a com-
plaint. See NLRB v. Sonicraft, Inc., 905 F.2d 146 (7th Cir. 1990).
identifying individual replacements by their classification,
‘‘mailroom employee,’’ their hourly rate and their date of
hire. On April 8, 1986, Respondent sent the Union another
copy of the same list with the designation part time or full
time next to the unnamed individuals. In addition, the Re-
spondent sent the Union a listing of replacements, again
unnamed and classified ‘‘mailroom employee,’’ who had
been terminated as of that point, together with their status
(full or part time), date of hire, and date terminated. This list
included 13 individuals who had been terminated in March
and early April 1986. On September 2, 1986, Respondent
sent the Union a list of then current employees listed by the
designation ‘‘mailroom employee,’’ date of hire, and full-
time or part-time status. No list of terminations was included
at this time. No further information was provided to the
Union until August 1987 shortly before Respondent with-
drew recognition from the Union when lists of names were
provided. Clearly, no continuing and periodic payroll or
other similar data was provided.
In summary, Respondent failed to provide periodic payroll
or other data which would show whether Respondent’s claim
that no vacancies existed to which former strikers could be
recalled was correct. The raw data was not provided. Accord-
ingly, I find that Respondent violated Section 8(a)(5) and (1)
of the Act by failing to provide full, complete and periodic
payroll, or other data for every payroll period after January
9, 1986.8
2. The legality of Respondent’s refusal to sign the
contract allegedly created when the Union accepted the
Respondent’s last contract proposal and its subsequent
poll and withdrawal of recognition
The General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to sign the
contract which was created when the Union, on July 27,
1987, accepted Respondent’s then outstanding contract pro-
posal. If the facts support the existence of a contract at this
point Respondent’s refusal to sign it was violative of the Act.
See H. J. Heinz v. NLRB, 311 U.S. 514 (1941).
Common law rules of contract law do not necessarily
apply to collective bargaining which operates under statutory
requirements of mutual good faith. The Board and the courts
have held that the common law rule that a rejection or coun-
terproposal terminates an offer has little relevance in the col-
lective-bargaining setting. Thus, in collective bargaining, an
offer will remain on the table—capable of acceptance—un-
less the offeror explicitly withdraws it or changed cir-
cumstances would lead both parties reasonably to believe
that the offer was withdrawn. See NLRB v. Burkart Foam,
848 F.2d 825, 830 (7th Cir. 1988), and cases there cited, all
approving what I will describe as the Board’s Pepsi-Cola
rule set forth in Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d
87, 89–90 (8th Cir. 1981), enfg. 251 NLRB 187, 189 (1980).
See also Williamhouse-Regency of Delaware, 297 NLRB 199
(1989).
In the instant case, the parties bargained through August
1986 and the Union thereafter continued to seek information
on the replacements and whether any vacancies had occurred
which would entitle former strikers to return to work. The
Union was pressing its position in a pending unfair labor
practice proceeding, and, as I have found, it was entitled to
certain information which Respondent had unlawfully refused
and failed to provide it. The Respondent’s latest complete
offer, dated June 6, 1986, had never been withdrawn. On
March 2, 1987, in a letter to the Union from Labor Relations
Manager Howe, Respondent renewed its last offer, stating
that it had ‘‘no change in its firm proposal.’’ In this letter
Respondent also invited the Union to notify it if it had any
change in its position. About 4 months later, on July 27,
1987, the Union unconditionally accepted the Respondent’s
outstanding offer. Although on the witness stand, Howe
hedged on whether Respondent’s ‘‘firm proposal’’ remained
outstanding up until the time it was accepted, he conceded
that it was not withdrawn or conditioned before the Union
accepted it. I reject Howe’s testimonial doubts as to the effi-
cacy of the offer as self-serving, litigation-inspired and con-
trary to clearly stated written positions reflected in the docu-
mentary evidence. The Union’s acceptance of the outstanding
proposal 4 months after it was renewed was well within what
could be considered reasonable under applicable case law.
For example, in Burkart Foam, supra, acceptance came 5
months after the offer was made, and in Presto Casting Co.
v. NLRB, 708 F.2d 495, 497–498 (9th Cir. 1983), cert. de-
nied 464 U.S. 994 (1983), acceptance came within 1 month
but after two counteroffers had been refused and the em-
ployer had withstood a strike.
There were not in this case sufficient changed cir-
cumstances, in the 4-month period between renewal of the
outstanding offer and its acceptance, which would have led
both parties reasonably to conclude that Respondent’s offer
was withdrawn. First of all, it is well settled that ‘‘a mere
change in bargaining strength’’ does not constitute sufficient
changed circumstances to vitiate an outstanding offer where
the employer has done nothing to withdraw it. See Pepsi
Cola Bottling Co. v. NLRB, supra, 659 F.2d at 90 and Presto
Casting Co. v. NLRB, supra, 708 F.2d at 498. Respondent
was, at this time, represented by experienced labor counsel.
It knew it was perfectly free to withdraw the offer, or, in-
deed, if the facts warranted, withdraw recognition—which it
later did—at any time before acceptance of its outstanding
offer. It did not do so.
In its first communication with the Union after the latter’s
acceptance of the Respondent’s offer, on August 10, 1987,
Respondent declined to acknowledge the existence of a con-
tract and, although it did not even then withdraw recognition,
it listed some factors which it alleged gave it a good-faith
doubt of the Union’s majority status. Significantly, however,
all of those factors, save one, related to the views of replace-
ment employees and were present and known at the time, in
March 1987, when Howe renewed Respondent’s contract
offer and invited the Union’s response. These were not
changed circumstances. Respondent could have relied on
these factors in March to withdraw the offer; it did not. The
other factor mentioned in the August 10 letter—the Union’s
‘‘situation’’ at the Sun Times—had nothing to do with the
Union’s majority status at Respondent’s facility. Although
the threatened Sun Times wage cut was a recent occur-
691CHICAGO TRIBUNE CO.
9 The changed circumstances prong of the Pepsi-Cola test should not be
confused with changed circumstances which would insulate an employer from
bad faith or surface bargaining violations when it actually withdraws or
changes an outstanding offer. If, for example, an employer weathers a strike
or otherwise survives the economic confrontation attendant to collective bar-
gaining, it may lawfully ‘‘regress,’’ as Respondent puts it in its brief (Br. 78),
without violating the law. See, e.g., Atlas Metal Parts Co. v. NLRB, 660 F.2d
304, 309 (7th Cir. 1981). However, as Pepsi Cola and Presto Casting, supra,
clearly hold, such changes in bargaining strength do not vitiate an outstanding
offer. This simply highlights the obvious: Respondent could have withdrawn
its outstanding offer; significantly, in this case, it did not.
10 An incumbent union enjoys a presumption of continued majority—albeit
a rebuttable one—at the expiration of a collective-bargaining agreement or at
the end of the certification year. See Barrington Plaza & Tragniew, Inc., 185
NLRB 962, 963 (1970), enf. denied 470 F.2d 669 (9th Cir. 1972); Robinson
Bus Service, 292 NLRB 70 (1988). Thus, an employer may dissolve a bar-
gaining relationship based on something less than an actual loss of majority
if it has an objective, reasonably based good-faith doubt of majority. However,
the simple fact that a strike has occurred and strikers have been permanently
replaced is not enough, in and of itself, to dissolve a bargaining relationship,
as the Supreme Court has recently affirmed. Curtin Matheson Scientific, Inc.,
110 S.Ct. 1542 (1990).
rence—having been publicly revealed some 4 or 5 days be-
fore the Union’s acceptance of the Respondent’s offer—it
was not a changed circumstance which would have led both
parties to believe that Respondent was withdrawing its offer.
The Union contested the Sun Times’ interpretation of their
most-favored nations clause and the Sun Times did not go
through with the threatened cut. This circumstance did not
directly affect the Respondent’s unit, as Respondent concedes
when it argues, infra, that the Union’s acceptance was inop-
erative because it was motivated by nonunit considerations.
It certainly did not lead both parties to believe that the offer
was withdrawn; one party let it stand and the other accepted
it. There is thus no reason to view the Respondent’s offer
as having been withdrawn by silence. Indeed, the only rel-
evant changed circumstance here appears to have been the
Union’s acceptance of Respondent’s offer. Accordingly, I
find that there was no objective evidence from which it could
reasonably be concluded that Respondent’s offer was with-
drawn by changed circumstances.9
Thus, in accordance with settled authorities, I find that the
parties reached agreement on a full and complete contract on
July 27, 1987, and the Respondent’s refusal to acknowledge,
sign, and live up to that contract was violative of Section
8(a)(5) and (1) of the Act. It follows from this finding, as
well as the other findings I have made with respect to the
unlawful failure to provide and delay in providing informa-
tion to the Union, that Respondent’s August 20, 1987 poll
and its August 25, 1987 withdrawal of recognition from the
Union, based on the poll results, were also violative of the
Act—Sections 8(a)(1) and 8(a)(5) and (1), respectively—be-
cause they were undertaken in a context of unfair labor prac-
tices. See Struksnes Construction Co., 165 NLRB 1062, 1063
(1967) (a required element for a valid poll is that it not have
been conducted in the context of unfair labor practices);
Texas Petrochemicals Corp., supra, 296 NLRB at 1061 fn.
19 (same); Utility Tree Service, 215 NLRB 806, 807 (1974),
enfd. 539 F.2d 718 (9th Cir. 1976) (employer not free to
refuse to bargain with an incumbent union where agreement
has been reached before it withdrew recognition); North
Bros. Ford, 220 NLRB 1021, 1022 (1975) (same).
Respondent’s defense to the allegations in this part of the
case is basically threefold: (1) even though it did not with-
draw recognition until after the Union accepted its out-
standing offer, it had a good-faith doubt of the Union’s ma-
jority at that point; (2) the Union’s acceptance of the offer
was invalid because its motive was to benefit people other
than unit employees; and (3) the offer, as accepted, did not
include an antidiscrimination provision which had been of-
fered separately by Respondent. None of these defenses are
persuasive or sufficient to defeat the findings of violation
here.
The Respondent’s first point is variously described as its
not having a ‘‘duty to sign the proposal’’ or not being legally
permitted ‘‘to sign a contract with a minority union’’ (Br. 62,
67). But it boils down to this: Respondent doubted the
Union’s continued majority because all of its members had
been replaced and none had been reinstated and the replace-
ments did not want the Union to represent them. Whatever
the validity of this position in other contexts,10 it cannot suc-
ceed where, as here, the alleged doubts are not given expres-
sion to the Union in the form of an explicit or even implicit
withdrawal of recognition prior to the reaching of a contract.
Respondent cannot have it both ways: it is either in a bar-
gaining relationship, with the statutory duty to negotiate
agreements in good faith, or it is not.
There is no reliable authority for the proposition that an
employer may invoke a refusal to bargain or withdrawal of
recognition after a contract has been reached. Good-faith
doubt is a difficult enough concept to litigate when alleged
doubts are expressed in the form of a refusal to bargain; it
would be an impossible concept to litigate if it could be in-
voked after a contract is reached and in the absence of a
prior refusal to bargain not only to vitiate that contract but
to dissolve the bargaining relationship. This would permit an
employer to litigate an alleged doubt as it might have existed
in his own mind at the time a contract was reached rather
than at the time of an objective event, that is, a refusal to
bargain or withdrawal of recognition. The cases do not per-
mit such a subjective inquiry. They speak in terms of the
doubt as it existed at the time of the refusal to bargain or
withdrawal of recognition, not at some earlier unspecified
point. See, e.g., Adams & Westlake, Ltd. v. NLRB, 814 F.2d
1161, 1168 (7th Cir. 1987); NLRB v. Gulfmont Hotel Co.,
362 F.2d 588, 589 (5th Cir. 1966); Robinson Bus Service,
supra.
This is why the focal point of the inquiry in cases such
as this is not whether or when alleged doubts of majority ex-
isted at some point prior to a refusal to bargain, but, rather,
whether changed circumstances existed to vitiate an out-
standing contract offer which was accepted prior to the re-
fusal to bargain. As I have said above, none of Respondent’s
reasons for refusing to acknowledge the contract amounted to
the requisite changed circumstances. The simple fact here is
that Respondent sought to withdraw recognition after a con-
tract had been reached. This it cannot do. The Board has
consistently rejected similar attempts to negate contracts
based on belated expressions of alleged doubts of majority.
See, in addition to Utility Tree Service, supra, and North
Bros. Ford, supra, Bennett Packaging Co., 285 NLRB 602,
608 (1987), and Belcon, Inc., 257 NLRB 1341, 1346–1347
(1981).
In this connection, Respondent relies heavily on two cir-
cuit court rulings, Bickerstaff Clay Products Co. v. NLRB,
871 F.2d 362 (11th Cir. 1989), cert. denied 110 S.Ct. 292,
and Curtin Matheson Scientific, Inc. v. NLRB, 859 F.2d 362
(5th Cir. 1988). Both of these cases reversed the Board and
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
permitted the employer to withdraw recognition and disavow
a contract after the union accepted an outstanding offer based
to some degree on the views of strike replacements. To the
extent that those cases relied on a rejection of the Board’s
refusal to adopt a presumption that strike replacements op-
pose an incumbent union, they have no validity after the Su-
preme Court, on April 17, 1990, reversed the Fifth Circuit’s
Curtin Matheson decision. On remand from the Supreme
Court the Fifth Circuit issued an order enforcing the Board’s
underlying decision and order in Curtin Matheson Scientific,
Inc., 864 F.2d 791 (5th Cir. 1990). The underlying decision
of the Board which was thereby approved, and which offers
further support for my findings herein, is reported at 287
NLRB 350.
What remains of Bickerstaff does not support Respondent.
On the point pertinent to the instant case, Bickerstaff ap-
proved and applied the Board’s Pepsi-Cola rule, but dis-
agreed with the Board’s application of the rule on the facts
of that case. Thus, the Court found, contrary to the Board,
that changed circumstances in that case would have led the
parties reasonably to believe that the employer’s offer was
withdrawn. The Court noted that, between the time of the
employer’s last offer and the union’s acceptance of it some
3 months later, the union was ‘‘totally inactive’’; the busi-
ness agent had resigned nearly four months before; the
union’s elected officials had been removed from office; and
an unfair labor practice charge had been filed against the
union alleging that it failed to properly represent its mem-
bers. Thus, the Court concluded that the union had ‘‘effec-
tively abandoned its role as the representative of the unit em-
ployees.’’ 871 F.2d at 993.
The instant case is distinguishable on its facts. The Union
had not abandoned its role as representative of the employ-
ees. As difficult as that role had become in the face of the
hiring of permanent replacements, the Union was still the
bargaining representative for both the former strikers, who
remained employees with certain reinstatement rights, and
the replacements whose names were being withheld from it.
The Union continued to exist, to assert its bargaining rights,
to picket in support of its bargaining position, and to press
information requests even to the point of a pending unfair
labor practice proceeding before the Board. Moreover, it had
recently sought to jump-start negotiations. Prior to the
Union’s acceptance of the Respondent’s outstanding contract
offer, Respondent did not treat the Union as having aban-
doned its representative status and there is no evidentiary
support in this record for the Board to treat it any differently.
Even assuming, contrary to Board precedent, that Re-
spondent could invoke its alleged doubts of majority as
changed circumstances after the Union’s acceptance of its
outstanding contract offer, it is not clear that the Respondent
could rely on such doubts in this case. Respondent undercut
the Union’s bargaining status by committing other violations
with respect to the Union’s legitimate information requests.
Thus, Respondent’s asserted doubt of majority was not made
in a context free of unremedied unfair labor practices. See
North Bros. Ford, supra, 220 NLRB at 1022.
The Respondent also contends that the Union’s acceptance
of its offer was somehow invalid because allegedly the
Union was acting simply to benefit its members at the Sun
Times and not in the interest of unit employees (Br. 69–70).
This contention is completely without merit. I am unaware
of any authorities permitting an inquiry into the motives of
either an employer or a union when one accepts, rather than
rejects, the contract offer of the other. The Board usually
limits such inquiries. See Newtown Corp., 280 NLRB 350,
351 (1986), enfd. 819 F.2d 677 (6th Cir. 1987) (employer
may not raise internal union ratification procedures as de-
fense to signing an agreement); Teamsters Local 251
(McLaughlin & Moran), 299 NLRB 30 (1990) (same prin-
ciple applies to unions). To inquire into the motives of con-
tracting parties who accept proposals would create endless
possibilities for protracted litigation which would ultimately
destroy collective bargaining. As the Board has stated in an-
other context, ‘‘[i]f collective bargaining is to work, the par-
ties must be able to formulate their positions and devise their
strategies without fear of exposure.’’ Berbiglia, Inc., 233
NLRB 1476, 1495 (1977).
Employers and unions accept contract offers for a myriad
of reasons, including as assessment of their own bargaining
strengths and weaknesses. Sometimes employers insist that
they need concessions to bring wages and costs in line with
those of competitors and unions agree; at other times unions
use wage gains in other bargaining units to argue that em-
ployers should pay more and employers agree. Under our
present system, no one expects Government to scrutinize the
reasons for such agreements even though nonbargaining unit
considerations may have entered into those decisions. The
important thing is that the acceptance of an offer be uncondi-
tional and binding. Here there is no doubt that the Union un-
conditionally accepted the Respondent’s outstanding offer
and bound itself to the terms of the contract which, of
course, applied to the Respondent’s mail room employees,
not those of the Sun Times.
Moreover, it is not accurate to state, as Respondent sug-
gests, that the Union was not looking out for the interests of
the employees it represented. In the last analysis it is for the
employees and its representatives, not the employer, to deter-
mine what is in the best interests of the employees. However,
here, there is no doubt on that score. The contract accepted
by the Union immediately lifted the pay of the strike replace-
ments by at least $5 per hour; and it guaranteed an increase
to former strikers upon their recall. Even assuming that the
Union was concerned that the Sun Times would cut the pay
of their mail room employees, something that never hap-
pened, it is more realistic to view the Union’s acceptance of
the Respondent’s contract offer as a recognition that Re-
spondent’s continued operation without a contract was erod-
ing the wage standards of all of the employees represented
by the Union, including those working for Respondent. The
Union’s action was thus not only not a conflict of interest,
but was in aid of the mutual interest of all the employees
it represented.
None of the cases cited by Respondent on this point sup-
port its position. For example, in Standard Oil Co., 137
NLRB 690 (1962), enfd. 322 F.2d 40 (6th Cir. 1963), the
Board found that the union had violated Section 8(b)(3) of
the Act by refusing to execute contracts agreed on at three
locations until an agreement was reached at a fourth location.
Likewise in NLRB v. Retail Clerks Union Local 648, 203
F.2d 165, 170 (9th Cir. 1953), the court affirmed the Board’s
finding that the Union violated Section 8(b)(3) by improperly
conditioning its agreement on a contract involving clerks to
negotiations involving supervisory employees. In contrast,
693CHICAGO TRIBUNE CO.
11 Significantly, the former strikers, none of whom had been reinstated at
this point, would not have been eligible to vote in the election had it been
held because more than 1 year would have passed since the beginning of the
strike. See Sec. 9(c)(3) of the Act.
12 Should I be reversed on this point the evidence is in the record for alter-
native findings to be made on remand. There are certain other issues, such
as the propriety of the preferential hire list utilized by Respondent to make
the recalls, how many vacancies existed in this case, and the exact amount
of the backpay with respect to the unlawful recalls, which may be resolved,
if necessary, at the compliance stage of this case. In addition, the Charging
Party has reserved the right to argue, in any future proceeding, that the infor-
mation which it was unlawfully denied might reveal, when it is studied, a
greater number of vacancies than Respondent declared or some at earlier
points in time.
here, no charges of unlawful bargaining were filed against
the Union and the Union attached no conditions to its accept-
ance of Respondent’s offer. Nor do the conflict of interest
cases cited by Respondent (Br. 75–77) apply here. The
Union did not have an ownership interest in another em-
ployer or otherwise compete with Respondent or its agents.
In short, there is no recognized authority for the Respond-
ent’s position.
Finally, Respondent contends that the Union’s acceptance
of its proposal did not include an antidiscrimination clause
which Respondent had submitted to the Union separately one
week after the all-encompassing proposal of June 6, 1986,
and the Union accepted only the June 6 proposal. The Re-
spondent’s position is not well taken. It may be fairly in-
ferred that the Union meant to include the antidiscrimination
clause even though it only referred to the June 6 proposal
and it only signed that proposal without also including the
antidiscrimination clause. The Union’s initial acceptance let-
ter referred to Respondent’s ‘‘most recent’’ offer and there
is no evidence that the Union had ever objected to the anti-
discrimination clause which bound both Respondent and the
Union to what is essentially existing law on equal employ-
ment. Nor did Respondent even mention this apparent over-
sight when it contested the Union’s acceptance of its offer
on August 10, 1987.
Even assuming, however, that the Union mistakenly failed
to refer to the antidiscrimination clause when it accepted Re-
spondent’s otherwise complete contract proposal, this does
not defeat the finding that an enforceable bargaining agree-
ment was reached. The antidiscrimination clause was not
controversial and simply reflected the requirements of exist-
ing law. Indeed, Labor Relations Manager Howe conceded
that the parties were bound by the provisions of this clause
by operation of law even though it did not appear in the par-
ties’ last contract. The Respondent proposed the clause and
the Union apparently does not object to its inclusion in the
contract. In all other respects the Union accepted a full and
complete bargaining proposal with such substantive terms
such as recognition, wages, hours, benefits, and duration.
This was certainly an agreement on all material terms of a
collective-bargaining agreement. The Board has held that the
finding of a binding agreement stands even though all details
have not been resolved so long as all material terms are
agreed upon. See Timber Products Co., 277 NLRB 769, 770
(1985), and cases cited therein at fn. 6; Fashion Furniture
Mfg., 279 NLRB 705, 706 (1986).
One other point. It is not true, to paraphrase Respondent’s
complaint, that none of this would have happened if the
Board had processed the decertification petition and held an
election in August 1986 (see Br. 101).11 The Board’s so-
called ‘‘blocking charge rule’’ is well settled and accepted by
the courts even though it has been criticized in some quarters
for being applied mechanically. See Michael Bishop v.
NLRB, 502 F.2d 1024 (5th Cir. 1974). Respondent had it
within its own power to ‘‘unblock’’ the decertification peti-
tion by providing the names which it would have had to do
anyhow prior to any election (see Excelsior Underwear, 156
NLRB 1236, 1240 (1966)), and which it did after the Union
accepted its contract offer, in an untimely purported effort to
unblock the election. Even apart from the Board’s application
of its blocking charge rule, which is beyond my authority to
deal with in this decision, the Respondent had ample author-
ity to withdraw recognition, if it had the evidence to do so,
or withdraw its contract offer, if it had the inclination to do
so, prior to the Union’s acceptance of its contract offer. It
did not for reasons known only to it. Respondent does not
advance its cause by blaming the Board for putting it in a
position where its contract offer was accepted by the union
with which it was bargaining.
3. The postwithdrawal information requests
The Respondent does not contest the allegation that it
failed to provide information which was clearly relevant to
the Union’s bargaining needs in October 1987, except to
argue that it no longer was required to bargain with the
Union and had no valid contract with it. In view of my dis-
position of these issues contrary to the Respondent’s posi-
tion, I find that Respondent’s failure to provide this informa-
tion to the Union was violative of Section 8(a)(5) and (1) of
the Act.
4. The legality of the reinstatement offers in
December 1989
The General Counsel contends that Respondent violated
Section 8(a)(3) and (1) of the Act by offering to fill vacan-
cies in December 1989 with improper offers of reinstatement
to former strikers. The General Counsel focuses on the pay
offered to the former strikers and urges a violation under
three alternative theories: (1) assuming the existence of a
contract as of July 27, 1987, the reinstatement offers were
considerably less than the contract rate; (2) assuming no con-
tract but a continued obligation to bargain, the former strik-
ers were offered less than their wages at the time of the
strike; and (3) assuming that no contract existed and that Re-
spondent properly withdrew recognition, the reinstatement of-
fers were not to former or substantially equivalent jobs, as
required under applicable law, because the offers to experi-
enced former strikers placed them considerably lower on the
pay scale than strike replacements who had much less experi-
ence and seniority. In view of my disposition of the first part
of this case, I need not reach alternatives (2) and (3). I find
that Respondent’s offers of reinstatement were unlawful be-
cause they contemplated that the former strikers would earn
considerably less that the contract wage to which they and
all other employees were entitled under the agreement en-
tered into on July 27, 1987.12
There is no dispute that the former strikers made an un-
conditional offer to return to work and some vacancies ex-
isted to which they were entitled to return. It is also undis-
puted that the jobs to which they were recalled were their
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Because Respondent did eventually provide the Union with the names of
the replacements there is no need for an affirmative remedy for this specific
violation.
old jobs or ones substantially equivalent to their old jobs, ex-
cept insofar as their pay and benefits were less than both
those called for in the July 27, 1987 contract and those
which obtained before the strike.
Economic strikers, such as the former strikers here, remain
employees even though they are replaced and must be rein-
stated, on application, when their previous or substantially
equivalent positions become available, absent legitimate and
substantial business considerations. Associated Grocers, 295
NLRB 806 (1989), citing NLRB v. Fleetwood Trailer Co.,
389 U.S. 376 (1967), and Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1970).
Since the Respondent was bound to apply the July 27,
1987 contract to all employees, any deviation therefrom with
respect to former strikers would constitute an unlawful uni-
lateral change. See NLRB v. C & C Plywood Corp., 385 U.S.
421 (1967). The Respondent’s wage offer to the former strik-
ers was more than $5 less than the contract hourly wage rate;
even under Respondent’s own documentary evidence com-
paring wages and benefits, the wage and benefit package of-
fered to the former strikers was over $3 per hour less than
the package in the July 27, 1987 contract. In these cir-
cumstances, I find that Respondent’s offer to the former
strikers was not to their former or substantially equivalent
jobs and was therefore unlawful. See Hayden Electric, 256
NLRB 601, 605 (1981), enf. denied on other grounds 693
F.2d 1358 (11th Cir. 1982).
Respondent has offered no defense to the allegation under
this theory of the case, except for the somewhat lame argu-
ment that, under the management rights clause of the July
27, 1987 agreement, it was entitled to make certain changes
in working conditions without bargaining with the Union.
Putting aside for the moment whether such an argument
should be available to a party which has refused to apply any
part of the agreement, nothing in the management rights
clause cited by Respondent vitiated the contract provision re-
garding pay as it applied to the returning former strikers.
Section 9 of the July 27, 1987 contract provides that the
night shift rate for journeymen is $15.70 per hour; section
23 defines journeymen as ‘‘[p]ersons who, prior to the effec-
tive date of this Agreement, worked as journeymen in the
mailroom.’’ There is no dispute that the returning former
strikers were journeymen. Accordingly, I find that, by failing
to offer the former strikers the wage rates in the applicable
contract, Respondent failed to offer them full reinstatement
to their former or substantially equivalent jobs in violation of
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By failing and unreasonably delaying to provide the
Union with the names of permanent strike replacements, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
2. By refusing to provide the Union with a full and com-
plete payroll or similar data for every pay period since Janu-
ary 9, 1986, Respondent violated Section 8(a)(5) and (1) of
the Act.
3. The Respondent and the Union reached a complete and
binding collective-bargaining agreement on July 27, 1987.
4. By refusing to sign, apply or give effect to the July 27,
1987 agreement, Respondent violated Section 8(a)(5) and (1)
of the Act.
5. By polling replacement employees in the context of the
violations set forth above, Respondent violated Section
8(a)(1) of the Act.
6. By withdrawing recognition from the Union in the con-
text of the violations set forth above and after a valid collec-
tive-bargaining agreement had been reached, Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
7. By refusing to provide the Union with necessary and
relevant bargaining information requested in October 1987,
Respondent violated Section 8(a)(5) and (1) of the Act.
8. By failing to make proper offers of reinstatement to the
former jobs or substantially equivalent jobs of former eco-
nomic strikers for vacancies which arose in December 1989,
Respondent violated Section 8(a)(3) and (1) of the Act.
9. The above violations are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall order it to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.13
Since the Respondent has failed to implement the terms of
the July 27, 1987 bargaining agreement, it shall be ordered
to sign that agreement and give effect to its terms retro-
actively to July 27, 1987. In addition, the Respondent shall
be required to make whole all employees, including any who
may have left its payroll, for any losses of wages or benefits
suffered by reason of Respondent’s failure to give effect to
the agreement. The wages and benefits, including those due
recalled former strikers, are to be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), with
interest thereon as computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Since Respondent’s offer with respect to the December
1989 vacancies in the unit was unlawful, it must offer those
vacancies at the proper contract rate of pay to the former
strikers in a nondiscriminatory manner. The refusal of some
former strikers to accept unlawful offers of reinstatement
does not remove them from the employer’s preferential recall
list. Associated Grocers, supra. Thus, all the former strikers
on the list must be given the opportunity to fill vacancies by
virtue of a lawful offer of reinstatement. In this respect, the
General Counsel alleges that I should order backpay for the
first 15 former strikers on Respondent’s preferential hire list.
I will not do so because that would be punitive. Nor can I
prevent the 14 reinstated former strikers from being dis-
placed in a renewed offer of reinstatement, as the General
Counsel suggests. These 14 reinstated former strikers may
not have been recalled at all had proper offers been made to
former strikers higher on the list than they. Accordingly, and
in order to return the situation as close to the status quo ante
as possible, I shall order Respondent to make renewed offers
of reinstatement for the December 1989 vacancies, as well
as new offers for any vacancies which have occurred or will
occur thereafter, on the basis of a nondiscriminatory recall
list of former strikers, displacing not only the 14 former
695CHICAGO TRIBUNE CO.
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
strikers that were recalled as a result of the unlawful offers
of reinstatement, but also any other employees hired or trans-
ferred into the unit since December of 1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Chicago Tribune Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and unreasonably delaying to provide the
Union with the names of permanent strike replacements.
(b) Refusing to provide the Union with periodic payroll or
other data for every payroll period from January 9, 1986, to
the present, that is, the date of compliance with this order,
or any other information relevant and necessary to its role as
exclusive bargaining representative.
(c) Polling employees, in the context of unremedied unfair
labor practices, about whether or not they want the Union to
represent them.
(d) Refusing to sign and implement the terms of the July
27, 1987 agreement between it and the Union.
(e) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative in the unit described
in the agreement of July 27, 1987, and in previous bar-
gaining agreements between the parties.
(f) Discriminating against employees because they engage
in strikes or other protected concerted activities by not offer-
ing them their former jobs or substantially equivalent jobs
when vacancies occur in such positions.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their Section
7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Sign and implement the terms of the July 27, 1987 col-
lective-bargaining agreement between it and the Union, mak-
ing whole all employees, including any who may have since
left the payroll and reinstated former strikers, for any loss of
wages or benefits suffered by reason of the failure to apply
the agreement as set forth in the remedy section of this deci-
sion.
(b) Offer immediate and full reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights, to all former strikers, on a nondiscriminatory basis,
for all vacancies which arose in December 1989 and which
may have occurred or will occur thereafter, without regard
to whether such former strikers turned down previous offers
of reinstatement, displacing, if necessary, the 14 former strik-
ers who accepted offers of reinstatement as well as any other
employees hired or transferred into the mailroom or pack-
aging department unit after December 1989.
(c) Furnish the Union with payroll or similar data for
every payroll period from January 9, 1986, to the present,
and with all the information requested by it in October 1987.
(d) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the bargaining
unit described above, and, if an understanding is reached,
embody the understanding in a signed agreement.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its production facility in Chicago, Illinois, cop-
ies of the attached notice marked ‘‘Appendix.’’15 Copies of
the notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.