McClatchy Newspapers

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 773 (N.L.R.B. 1992)

773
307 NLRB No. 122
MCCLATCHY NEWSPAPERS
1 The Respondent’s motion to strike the Union’s brief in support
of exceptions, alleging the brief’s lack of compliance with the
Board’s Rules and Regulations, is denied. Although not conforming
exactly to the requirements of Sec. 102.46, the brief is not so defi-
cient as to warrant striking.
The Respondent has requested oral argument. The request is de-
nied as the record, exceptions and briefs adequately present the
issues and the positions of the parties.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In sec. II,A, and sec. II,B(i) of his decision, the judge refers to
‘‘June 28, 1988’’ and ‘‘June 28, 1989,’’ respectively, as the date the
Respondent implemented its final bargaining offer. The correct date
is June 22, 1988. These inadvertent errors do not affect the result
in the case.
3 Contrary to our dissenting colleague, we do not agree that the
Employer’s posting of its no-strike proposal is unlawful because of
its chilling effect on the Sec. 7 right to strike. Unlike overly broad
no-solicitation rules, to which the dissent erroneously draws an anal-
ogy, such proposals are not inherently unlawful. Indeed, no-strike
agreements are frequently included in collective-bargaining agree-
ments, thereby lawfully waiving the represented employees’ right to
engage in strike activity. At most, therefore, the Respondent in this
case misrepresented that the Union had agreed to such a waiver.
Where such attempted waivers are not inherently unlawful (compare
NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974)), and
where there is no indication that employees would be sanctioned for
disregarding the asserted waiver, we find that the misstatement is not
per se unlawful.
McClatchy Newspapers, Inc., Publisher of The Sac-
ramento Bee and Graphics Communications
Union District Council No. 2, Local 60C. Case
20–CA–22087
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On January 23, 1991, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel and the Union filed exceptions and supporting
briefs, and the Respondent filed briefs opposing their
exceptions.
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
1. We agree with the judge that because the Re-
spondent’s press operators are statutory supervisors the
Respondent did not violate the Act by removing them
from the bargaining unit on June 22, 1988. We rely on
the undisputed evidence that, prior to June 22, the
press operators possessed the authority to assign work
to employees in their crews and responsibly directed
them in their work—indicia of supervisory status with-
in the meaning of Section 2(11). We also rely on cer-
tain, undisputed secondary criteria which set the press
operators apart from other unit employees and further
indicated that they were statutory supervisors prior to
June 22: their pay differential, eligibility for substantial
bonuses based on waste-reduction efficiency, attend-
ance at management meetings and training sessions,
and access to supervisory offices. In view of the
above, we find it unnecessary to pass on disputed fac-
tual assertions concerning other Section 2(11) indicia
with regard to the press operators.
2. We affirm the judge’s dismissal of allegations
that the Respondent violated Section 8(a)(1) by the
posting of its no-strike proposal as part of the bargain-
ing proposals it was unilaterally implementing. In rel-
evant part, this proposal stated that ‘‘The Union agrees
that it will not authorize, condone, approve or partici-
pate in and no employee will encourage or participate
in any strike, boycott, or sympathy strike against
McClatchy Newspapers.’’ Although it is undisputed
that the Union never agreed to this proposal, and there-
fore any suggestion that the Union had waived Section
7 rights or that the proposal could be implemented was
a misrepresentation, we do not find that the Respond-
ent has thereby interfered with, restrained, or coerced
employees in their exercise of the Section 7 right to
strike. Because the proposal did not include any lan-
guage suggesting that employees would be discharged
or otherwise disciplined for striking, it did not contain
any threat of reprisal or promise of benefit that would
bring it within the scope of Section 8(a)(1).3 See Ad-
olph Coors Co., 235 NLRB 271, 276–277 (1978).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER RAUDABAUGH, dissenting in part.
I dissent from my colleagues’ conclusion that the
Respondent acted lawfully when it posted its no-strike
proposal as being in effect. My colleagues concede
that the Respondent could not unilaterally place into
effect a no-strike proposal. However, they conclude
that the notice was lawful because it did not expressly
threaten employees with reprisal if they struck.
I do not think that the reasoning will withstand anal-
ysis. If an employer posted a notice containing an
overly broad prohibition on union solicitation activi-
ties, the notice would be unlawful, even in the absence
of an express statement that breach of the notice would
result in discipline. The notice interferes with and lit-
erally restrains Section 7 activity. Similarly, if an em-
ployer posts a notice saying that employees cannot ex-
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 My colleagues fault my analogy to an overly broad no-solicita-
tion rule by asserting that a no-strike clause is lawful if it is agreed
to by the Union. However, the essential point in the instant case is
that the no-strike clause was not agreed to by the Union.
2 Adolph Coors Co., 235 NLRB 271, 276–277 (1978), is distin-
guishable. In that case, the posted proposal did not deal with the ex-
ercise of a Sec. 7 right.
1 On July 5, 1990, counsel for the General Counsel filed a motion
to correct transcript. As the motion is unopposed, I grant the motion
and incorporate the corrections as ALJ Exh. 1.
ercise their Section 7 right to strike, that notice should
also be unlawful, even in the absence of a threat of
discipline. The notice interferes with and literally re-
strains a Section 7 exercise.1 Concededly, a lawyer
would know that the posted no-strike proposal cannot
legally be in effect. But, lay employees would reason-
ably understand that strikes are prohibited.
It is no answer to say, as does the judge, that the
Union could respond by assuring employees that
strikes are still permitted. Since the Respondent has di-
rect control over the employment of the employees, it
is likely that the employees would listen to the word
of the Respondent rather than the assurance of the
Union. In short, the notice has a chilling effect on the
Section 7 right to strike.2
Boren Chertkov, Esq., with Paula R. Katz, Esq., on brief, for
the General Counsel.
Allen W. Teagle, Esq. and Judy S. Coffin, Esq. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, California,
for the Respondent.
David Grabhorn, of La Habra, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Sacramento, California, on March 13 through
16, 1990. On December 5, 1988, Graphics Communications
Union District Council No. 2, Local 60C (the Union) filed
the charge alleging that McClatchy Newspapers, Inc., Pub-
lisher of the Sacramento Bee (Respondent) committed certain
violations of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act). On January 31 and May 31, 1989,
the Regional Director for Region 20 of the National Labor
Relations Board issued a complaint and amended complaint
respectively, against Respondent, alleging that Respondent
violated Section 8(a)(5) and (1) of the Act. Respondent filed
timely answers to the complaints, denying all wrongdoing.
On July 22, 1990, counsel for the General Counsel filed
a motion to reopen the record and to consolidate this case
with an outstanding complaint in Case 20–CA–23343. While
that motion was pending, on July 24, Respondent filed a Mo-
tion for Summary Judgment with the Board in Case 20–CA–
23343. A decision in the instant case was stayed pending a
Board ruling on the Motion for Summary Judgment. On Au-
gust 21, 1990, the Board issued an order denying the Motion
for Summary Judgment. Case 20–CA–23343 is now awaiting
trial. On three occasions, the most recent of which was Janu-
ary 11, 1991, I denied motions by the General Counsel to
reopen the record in the instant case and to consolidate this
case with Case 20–CA–23343.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record,1 from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in Sacramento, California,
where it is engaged in the publication of a daily newspaper.
Respondent, in the course and conduct of its business oper-
ations, annually derives gross revenues in excess of $200,000
while holding membership in or subscribing to various inter-
state news services, publishing variously syndicated features,
and advertising nationally sold products. Annually, Respond-
ent purchases and receives goods and products valued in ex-
cess of $5000 directly from sellers or suppliers located out-
side the State of California. Accordingly, Respondent admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent publishes a daily newspaper in Sacramento,
California. It has had a collective-bargaining relationship
with the Union since at least 1914. The most recent collec-
tive-bargaining agreement was effective from January 1,
1984, until December 31, 1985, and ‘‘thereafter until a new
Contract has been settled by negotiation or conciliation’’ (the
1984–1985 Agreement). The bargaining unit covered by the
1984–1985 Agreement is composed of Respondent’s press-
room employees, including journeymen pressmen, flymen,
and apprentices.
Between December 30, 1985, and June 21, 1988, the par-
ties met in bargaining sessions in an unsuccessful attempt to
negotiate a new contract. The parties did not reach agreement
and the Respondent insisted to impasse on its last offer. On
June 28, 1988, Respondent implemented its final offer.
Within this factual framework, the General Counsel al-
leges, in a narrowly drafted complaint, that Respondent un-
lawfully: (1) bargained to impasse on various contractual
proposals that are inherently destructive of the bargaining
unit; and (2) on or about June 22, 1988, implemented its last
offer to the Union. The General Counsel argues that since
Respondent insisted to impasse unlawfully, it follows that no
legally cognizable impasse existed. The General Counsel ar-
gues that Respondent unlawfully implemented a merit pay
proposal that precluded the Union from bargaining as to the
timing and amount of merit pay increases. Finally, the Gen-
775MCCLATCHY NEWSPAPERS
2 The complaint did not include allegations by the Union that Re-
spondent engaged in table or surface bargaining, or that the parties
had not reached an impasse in their bargaining. Because the com-
plaint did not include these allegations made by the Union in the un-
derlying charge, I did not permit litigation of these allegations at the
hearing. I hereby reaffirm those rulings.
eral Counsel argues that Respondent unilaterally removed 13
press operators from the bargaining unit.2
Respondent admits that it insisted to impasse on its final
proposal and that it implemented that proposal after the im-
passe. Respondent contends that it could lawfully do so. Re-
spondent admits that it removed the 13 press operators from
the bargaining unit in accordance with its final proposal.
However, Respondent contends that these press operators
were supervisors within the meaning of Section 2(11) of the
Act. Thus, Respondent argues that it could voluntarily in-
clude the press operators in the unit, as it had done in the
past, but could not be compelled to include them in the unit.
B. The Impasse
By definition, an impasse occurs whenever negotiations
reach ‘‘that point at which the parties have exhausted the
prospects of concluding an agreement and further discussions
would be fruitless.’’ Laborers Health & Welfare Trust Fund
v. Advanced Lightweight Concrete Co., 484 U.S. 539, 543
fn.5 (1988). After an impasse has been reached on one or
more subjects of bargaining, an employer may implement
any of its preimpasse proposals. Western Publishing Co., 269
NLRB 355 (1984). Generally, a lawful impasse cannot be
reached in the presence of unremedied unfair labor practices.
An employer may not ‘‘parlay an impasse’’ resulting from
its own misconduct. White Oak Coal Co., 295 NLRB 567
(1989); Wayne’s Dairy, 223 NLRB 260, 265 (1976). How-
ever, in J. D. Lunsford Plumbing, 254 NLRB 1360, 1366
(1981), the existence of an impasse was held not to have
been precluded by the employer’s ‘‘unvacated, unlawful uni-
lateral changes’’ where ‘‘there was no causal connection be-
tween [those unremedied changes] and the subsequent dead-
lock in negotiations.’’
In NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958), the
Supreme Court held that insistence to impasse is available to
a party only with respect to a mandatory subject of bar-
gaining. Insistence to impasse on a permissive subject of bar-
gaining violates the statutory duty to bargain in good faith.
The parties agree that Respondent insisted to impasse on
proposals involving the grievance and arbitration procedure,
jurisdiction, merit pay, apprentices, the pressroom manager
doing unit work, assignment of work, a no-strike clause,
management rights, nondiscrimination, and removal of press
operators from the bargaining unit. Each of these proposals
will be discussed below.
1. The grievance and arbitration procedure
The 1984–1985 Agreement provided that ‘‘any employee
who believes he has cause for grievance shall contact his
pressroom manager along with or through his chapel chair-
man to discuss the grievance.’’ Respondent proposed to de-
lete the words ‘‘along with or through his chapel chairman’’
from step 1 of the grievance procedure. Respondent further
sought to amend the grievance procedure by deleting the re-
quirement that Respondent maintain the status quo during the
pendency of a grievance; reducing the time a written griev-
ance must be filed from 30 days to 5 days; and reducing Re-
spondent’s liability for a backpay award under the arbitration
procedure. During negotiations Respondent changed the time
period for filing a grievance to 15 days and increased the
time period for a backpay award. The final offer which Re-
spondent implemented on June 28, 1989, contained Respond-
ent’s proposals as amended during the negotiations.
The parties agree that the grievance and arbitration clause
is a mandatory subject of bargaining. See, e.g., U.S. Gypsum
Co., 94 NLRB 112 (1951); United Electrical, Radio & Ma-
chine Workers v. NLRB, 409 F.2d 150 (D.C. Cir. 1969),
enfg. 164 NLRB 563 (1967). Realizing that nothing in Re-
spondent’s proposals regarding the grievance and arbitration
provision amounts to bad-faith bargaining or evidence of
bad-faith bargaining, the General Counsel argues that in
combination with other proposals, particularly the proposals
regarding the press operators and merit pay, the Respond-
ent’s proposals are ‘‘designed to frustrate agreement on a
collective bargaining agreement.’’ Respondent, on the other
hand, argues that it had a legitimate business reason for its
grievance and arbitration proposals, as well as for its other
contract proposals.
General Counsel argues that the restrictions imposed on
the filing of grievances are more stringent than those con-
tained in other collective-bargaining agreements between Re-
spondent and other labor organizations. Assuming, arguendo,
that the instant proposal is more restrictive than the grievance
and arbitration clause in Respondent’s other agreements, it
does not follow that the proposal was made in bad faith or
that the employer could not insist on its proposal to impasse.
The evidence reveals that Respondent was seeking to obtain
an arbitration clause more to its liking and that the Union
sought to retain the current provision. Both sides adhered to
their positions.
2. The hiring hall provision
In the 1984–1985 Agreement the Union agreed to furnish
‘‘at all times . . . the number of competent journeymen web
pressmen required by the Publisher.’’ The Union and the
General Counsel contend that the above language made the
Union the exclusive source of referrals for all journeymen
pressmen to Respondent. Respondent, even during the term
of the agreement, maintained the position that it had the right
to hire pressmen from any source. Thus, Respondent pro-
posed modifying the language of the contract to conform to
its position. Under Respondent’s proposal the Union would
furnish journeymen ‘‘if requested by’’ Respondent. Respond-
ent’s final proposal read as follows:
Notwithstanding the Union’s obligation to furnish com-
petent journeymen, [Respondent] may at its option hire
any employee, deemed competent by [Respondent],
from any source. Nothing in this contract shall be con-
strued to prevent or limit the right of [Respondent] to
hire employees from any source it chooses.
Both the General Counsel and Respondent agree that this
is a mandatory subject of bargaining. See, e.g., Houston
Chapter, Associated General Contractors, 143 NLRB 409
(1963), enfd. 349 F.2d 449 (5th Cir. 1965); Pattern Makers
(Michigan Pattern Mfrs.), 233 NLRB 430, 435–436 (1972),
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The Union disputes Cowell’s claim that the committee had been
disbanded. Resolution of this factual dispute is not necessary for res-
olution of this case.
enfd. in pertinent part 622 F.2d 267 (6th Cir. 1980). It fol-
lows that Respondent could insist to impasse on this provi-
sion. Again, the General Counsel argues that Respondent’s
position on merit pay and press operators shows an attempt
to frustrate bargaining.
3. Merit pay proposal
The 1984–1985 Agreement provided for minimum wage
scales for journeymen pressmen. It also set forth minimum
scales for apprentices and flymen based on a percentage of
the journeymen rate. There was also a past practice of paying
certain premiums to the journeymen that served as
foldermen, press operators, and reelmen.
Respondent proposed to initiate a merit pay plan. Re-
spondent’s initial proposal called for all employees, including
apprentices and flymen, to be paid merit pay at Respondent’s
discretion, and provided that premiums for foldermen and
reelmen be eliminated. Journeymen and flymen would be re-
viewed annually, and apprentices would be reviewed semi-
annually. As explained in negotiations, this proposal deleted
the wage scale for all employees, all guaranteed wage in-
creases, and the contract provisions that apprentices and
flymen receive a percentage of the journeymen rates. Fuller
Cowell, Respondent’s negotiator, assured the Union that no
bargaining unit employee’s pay would be reduced as a result
of the imposition of Respondent’s proposed merit pay plan.
He explained that the plan would be similar to the merit pay
plan in effect in nonunion departments and in other bar-
gaining units. Cowell said that in his experience virtually
every person in the bargaining unit would get an increase in
pay under the proposed merit pay plan. The merit pay plan
included an internal appeal procedure. The merit pay plan
would not be subject to the grievance and arbitration clause
of the contract. The Union objected to the merit pay plan on
the ground that it took away the Union’s right to bargain
over wages.
During the negotiations, Respondent proposed a 2-percent
raise, which later was increased to 3.5 percent, for the first
year, to be followed in the second year by merit pay. Re-
spondent’s last offer proposed ‘‘the scale of wages for jour-
neymen pressmen will be increased by 3.5%.’’ Thereafter, a
merit pay system would be in effect. The proposal posted
and implemented by Respondent stated the employees would
receive the wage scale, reflecting the 3.5-percent increase for
the first year and after 1 year, the employees would receive
merit increases, based on performance at Respondent’s dis-
cretion.
4. Apprenticeship training
The 1984–1985 Agreement set up a joint apprentice com-
mittee to establish and recommend a plan of apprentice train-
ing for the approval of Respondent and the Union. It also
provided that an apprentice who had completed a 4-year ap-
prenticeship would receive a vacant journeyman position. Re-
spondent proposed deleting the language which provided for
the joint apprentice committee. Respondent proposed that it
retain sole discretion to decide whether an apprentice should
fill a journeyman vacancy.
According to Cowell, the committee had completed its
work and had disbanded.3 More important, as a result of a
grievance, an arbitration award issued which held that Re-
spondent could not promote an apprentice before the comple-
tion of 4 years’ training even if the apprentice had achieved
the requisite skills. Thus, Respondent sought to eliminate the
contract language which formed the basis for the arbitration
decision.
There is no contention that the apprentice training system
was not a mandatory subject of bargaining. See Flambeau
Plastics, 167 NLRB 735 (1967), enfd. 401 F.2d 128 (1968),
cert. denied 396 U.S. 1003 (1969).
5. Pressroom manager’s right to do unit work
Under the 1984–1985 Agreement, the pressroom manager
could only do bargaining unit work if he was a member of
the Union. Respondent’s proposal deleted that restriction and
provided that ‘‘The publisher or his designated representa-
tives may do unit work.’’
Cowell testified that the purpose of the proposal was to
allow the pressroom manager to participate in training, emer-
gencies, trouble shooting, and production situations. Cowell
explained that because the pressroom managers are the most
skilled and knowledgeable persons regarding the expensive
presses, Respondent wanted them to be able to do unit work.
The General Counsel concedes that this is a mandatory sub-
ject of bargaining. See, e.g., Crown Coach Corp., 155 NLRB
625 (1965).
6. Assignment of work
Under the 1984–1985 Agreement, pressroom employees
could only be assigned work ‘‘pertaining to the operation,
usual maintenance, cleaning and upkeep of the presses in the
building.’’ Respondent proposed to change this section to
read: ‘‘All employees of the pressroom shall perform any
work assigned by the pressroom manager.’’ Cowell testified
that the purpose of this proposal was to give Respondent the
flexibility to assign pressmen to do menial work on the
presses, or to do different jobs on the presses. Respondent
wanted to be able to require unit employees to do all press-
related work, even if they had not normally performed that
particular task in the past. This too is a mandatory subject
of bargaining. Storer Communications, 295 NLRB 72 (1989);
Almeida Bus Lines, 142 NLRB 445 (1963).
7. No-strike clause
The 1984–1985 Agreement provided that there would be
no strikes, boycotts, sympathy strikes, or lockouts. Respond-
ent proposed to extend the prohibition on strikes to include
‘‘its related enterprises in the circulation area of the Sac-
ramento Bee.’’ Cowell explained that the purpose of this pro-
posal was to prevent the Union from engaging in any prohib-
ited activities against any unorganized operation of Respond-
ent in Sacramento, such as print shops, television or radio
stations, or a cable network. Respondent had been subjected
to a 9-1/2-year strike by a different union in which there was
picketing against the Sacramento Bee and related entities. Al-
777MCCLATCHY NEWSPAPERS
though the Union did not honor that strike, the 9-1/2-year
strike was a reason for Respondent to propose strengthening
its no-strike clause. The General Counsel concedes that this
is a mandatory subject of bargaining. See Indianapolis Power
Co., 291 NLRB 1039 (1988); Independent Stave Co., 175
NLRB 156 (1969).
8. Management rights
The 1984–1985 Agreement did not contain a management-
rights clause. The final proposal implemented on June 22,
1988, contained a clause granting Respondent the ‘‘sole and
exclusive right to exercise all the authority, rights and func-
tions of management . . . except as the terms of this Agree-
ment specifically limit said authority, rights, and powers.’’
Cowell explained that Respondent proposed the management-
rights clause to protect itself from future arbitration awards
further eroding management prerogatives. The General Coun-
sel concedes that this is a mandatory subject of bargaining
but takes the position that the substances of Respondent’s
proposal evidences bad faith. See Boaz Carpet Yarns, 280
NLRB 40 (1986).
9. Nondiscrimination clause
The 1984–1985 Agreement contained a nondiscrimination
clause affirming the parties’ intention ‘‘to adhere to and sup-
port a policy which affords equal opportunity to qualified in-
dividuals regardless of their race, creed, color, national origin
or age (as established by law).’’ Respondent’s initial pro-
posal deleted this provision entirely. Cowell explained that
this clause was unnecessary and redundant because both the
state and Federal laws prohibited this discrimination. In re-
sponse to the Union’s objection to deletion of the clause, Re-
spondent agreed to keep it in the contract but to exclude it
from the grievance and arbitration clause. Respondent’s posi-
tion was that the state and Federal agencies gave employees
multiple avenues of relief with better remedies. Respondent
did not want to provide arbitration as an additional forum.
Again the General Counsel concedes that this is a mandatory
subject of bargaining but contends that the substance of the
proposal evidences bad faith. Packing House Workers v.
NLRB, 416 F.2d 1126 (D.C. Cir. 1969), enfg. 169 NLRB 290
(1968).
10. Removal of press operators from the bargaining unit
There is no dispute that the press operators were covered
by the 1984–1985 Agreement. Respondent’s first proposal
did not propose to remove the press operators from the bar-
gaining unit as supervisors. However, by September 17,
1986, Respondent’s written proposals excluded the press op-
erators from the bargaining unit on the ground that they were
statutory supervisors. Respondent’s final offer, implemented
on June 22, 1988, contained that exclusion. The major thrust
of General Counsel’s case is that the press operators were
not statutory supervisors, and, thus, could not be excluded
from the bargaining unit without the Union’s consent. The
issue of supervisory status must be determined before the le-
gality of bargaining can be examined.
C. The Supervisory Issue
1. The facts
Respondent publishes the Sacramento Bee 7 days a week.
At the time it implemented its final offer, Respondent was
operating three presses. Respondent now operates four press-
es. Each of the presses is three stories high, and pressmen
work on each press at each level. On the lowest level is the
reel room, where the ‘‘reel men’’ load paper into the press.
After the paper is loaded into the press, it runs up through
the press into the middle level, where the printing plates are
located and where ink and color are added by the ‘‘color
men.’’ The paper then goes through the press to the top
level, where the ‘‘folder man’’ operates the folder, which
folds and collates the paper.
The crew for each press also includes a press operator,
who is responsible for coordinating the press crew on each
of the three floors. The pressroom manager or his designee
determines the size of the crew on each press, which varies
from five to eight pressmen according to how many pages
will be in the newspaper.
The pressroom manager is responsible for the entire press-
room operation, including the assignment of work. When the
pressroom manager was absent, the name of his designated
representative was posted. The assistant pressroom manager
works Tuesday through Saturday nights. The assistant press-
room manager has the responsibility for the entire pressroom
operation on the night shift. The assistant manager had a
‘‘floorwalker’’ or ‘‘floor supervisor’’ who acted for the as-
sistant manager when the assistant manager was not present.
The floorwalker did not operate a press; rather he coordi-
nated production and ensured consistent quality among each
of the presses. The floorwalker worked with the press opera-
tors to maintain consistency among the presses and to correct
problems with the presses.
A press operator is responsible for running his press and
crew. The press operators prepare for a press run and oversee
the operation of their presses. A press operator’s job duties
take him to each level of the press. The press operator as-
signs the pressmen to the various positions on the press at
the beginning of each shift. Respondent contends that the
press operators have complete discretion in assigning work to
crewmembers. The evidence shows that traditionally the as-
signments were made by the press operators on the basis of
seniority. The press operator oversees the work of the press-
men, corrects work, and trains employees. In training appren-
tices, the press operator would usually assign the apprentice
to the journeyman pressman working the position for which
training was required.
The press operator is responsible for the ink density read-
ings and reports after each shift. The press operator usually
delegates the filling out of the form to the employee working
closest to the density meters. However, the press operator is
held responsible for seeing that the appropriate level of ink
is utilized and that the appropriate quality of newsprint is
produced.
During the printing of the newspaper there are numerous
occasions when the presses need to be stopped or slowed
down. The press operators must decide whether to stop the
press immediately, wait for a more convenient time, wait
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Neither the pressroom manager nor assistant manager testified in
this proceeding.
until the press run is completed, or slow down the press in
the meantime. The consequences of such a decision is that
several other departments and employees are affected. The
stopping of the press by the press operator can result in over-
time for employees in the platemaking department and
mail/distribution center as well as employees working on the
presses. These decisions to stop the presses also affect the
quality of the newspaper which ultimately reaches the public.
If a press breaks down, the pressroom manager or his des-
ignated representative works with the press operators to de-
termine how long the press will be down and whether or
how the work would be reassigned. The General Counsel ar-
gues that this decision-making reflects only the routine exer-
cise of work judgment by experienced senior journeymen
‘‘rather than the independent judgment required for a finding
of supervisory status.’’
The press operators do not have the authority to hire or
fire employees. Respondent’s witnesses Cowell and Smith
testified that the press operators had the authority to call in
extra pressmen or replacements as needed. Both testified that
the press operators usually consulted with the pressroom
manager or assistant manager, but had the authority on their
own to call for more staff from the chapel chairman. The
evidence indicates that no press operator has exercised such
authority.
Cowell testified that the press operators had the authority
to issue written as well as oral discipline. Prior to June 22,
the press operators would only inform a pressman that he
was doing something improperly and instruct him how to do
it properly. The press operators reported errors to manage-
ment where they were recorded in a logbook. After June 22,
the press operators were required to keep a factual record of
performance errors. This policy was established in order to
keep an accurate record for disciplinary purposes. If the per-
formance problem is misplating, the press operator gives the
employee a written warning after the second violation. Since
June 22, the press operators have been required to give writ-
ten commendations to employees who have performed well.
Such written commendations are also given by supervisors in
this and other departments.
The press operators fill out evaluation forms for each
member of their crew. In making his annual reviews of em-
ployees, the pressroom manager consulted with the press op-
erators and relied on their oral and written evaluations. It is
not clear from the record what weight, if any, was given to
the evaluation forms or the recommendations of the opera-
tors.4
The press operators have been referred to as the ‘‘man-in-
charge.’’ At times when the pressroom manager or assistant
manager were absent, a press operator would substitute as
the pressroom manager’s representative. This would occur
when the pressroom manager was on vacation and the assist-
ant was filling in for him. In those weeks, a press operator
would serve as the designated representative 2 nights a week.
On those occasions, the designated press operator would not
operate a press. It appears that only 2 of the 13 press opera-
tors substituted for the pressroom manager on a regular basis.
Prior to June 22, the press operators were paid 15 percent
more than other pressmen. Since June 22, the press operators
have been placed on salary and are no longer paid overtime.
Currently, the press operators are eligible to receive and have
received substantial monthly bonuses based on efficiency and
the elimination of waste. The press operators attend manage-
ment meetings and dinners in which management policies are
explained and discussed. The operators have also attended
management training seminars not available to rank-and-file
employees. Finally, the press operators have access to an of-
fice and computers. Rank-and-file employees do not enjoy
these privileges.
2. Conclusions
The critical issue is whether the press operators were statu-
tory supervisors. The evidence leads me to conclude that Re-
spondent’s position that the press operators were statutory
supervisors was advanced in good faith and not for the pur-
pose of undermining the Union’s representative status. How-
ever, if the press operators were not statutory supervisors, a
violation would be found even in the absence of bad faith.
See Salt River Valley Water Users’ Assn., 204 NLRB 83
(1973), enfd. 498 F.2d 393 (9th Cir. 1974). An employer
may not insist to impasse on the exclusion of employees
from an existing bargaining unit. If Respondent was correct
that the press operators were statutory supervisors, its refusal
to include them in the unit would be justified.
In Newspaper Printing Corp., 232 NLRB 291, 292 (1977),
enfd. 625 F.2d 956 (10th Cir. 1980), cert. denied 450 U.S.
911 (1981), the Board found, inter alia, that an employer
cannot lawfully insist to impasse on a modification of an ex-
isting bargaining unit description because the definition of an
existing bargaining unit is not a mandatory subject of bar-
gaining. The parties are free however to define their own
lawful bargaining units by voluntary agreement. Thus, statu-
tory supervisors may be included in a bargaining unit by mu-
tual agreement. It should follow that once the contract ex-
pires, neither party is obligated to include the statutory super-
visors in the succeeding agreement. Cf. Salt River Valley
Assn., supra, where a violation was found because the em-
ployees excluded from the unit by the employer were found
not to be statutory supervisors. Presumably had the employer
been correct that the excluded employees were supervisors,
then no violation would have been found in the employer’s
refusal to include them in the bargaining unit. See also
Canteburg Gardens, 238 NLRB 864 (1978), and Newport
News Shipbuilding, 236 NLRB 1637 (1978).
The bargaining unit in this case predates the Act. The
issue of whether the press operators were statutory super-
visors is somewhat clouded by the long history of their inclu-
sion in the unit and membership in the Union. Thus, the
press operators relied heavily on union-administered seniority
in making assignments and were reluctant to take adverse ac-
tions against fellow members and employees. The evidence
establishes that Respondent did not increase the authority of
its press operators after it removed them from the bargaining
unit. However, after removing the press operators from the
unit, Respondent required the more active and regular appli-
cation of supervisory authority by the press operators.
Section 2(11) of the Act provides:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
779MCCLATCHY NEWSPAPERS
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
The possession of any one of the powers enumerated in
Section 2(11) is sufficient to establish supervisory status
since the section is interpreted disjunctively. See, e.g., NLRB
v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir.
1948); Times Herald Printing Co., 252 NLRB 278 (1980).
Based on all the facts concerning their employment, I find
that the press operators are supervisors within the meaning
of the Act.
The press operators assign work to the members of their
crew. They have the authority to assign work based on their
independent judgment. There are no directives to assign work
based on seniority. The assignment of work results in pre-
mium pay for employees assigned to certain tasks. However,
assignments have traditionally been made based on seniority.
The press operators also assign apprentices to work and train
with journeymen. These assignments must consider the abili-
ties of the employees, job priorities, and Respondent’s pro-
duction and efficiency requirements.
The undisputed testimony establishes that the press opera-
tors responsibly direct the work of the bargaining unit em-
ployees on their crew. A press operator assigns, directs, in-
structs, and corrects employees as the individual in charge of
a press and crew. I reject the General Counsel’s argument
that the press operators’ assignment and direction of work
are merely clerical and ministerial functions. The press oper-
ators must exercise independent judgment in supervising the
operation of their presses by their crews. The press operators
are charged with the responsibility of making decisions with
respect to the operation of the press including the decision
of whether to stop the press. Such decisions have significant
consequences for the employer and its employees. The size
of the operation and the cost of the equipment support the
conclusion that the press operators are vested with significant
responsibility. The press operators also fill out evaluation
forms, issue warnings, and give commendations. The evi-
dence establishes that both management and the bargaining
unit employees reasonably regarded the press operators as
supervisors and representatives of management.
The evidence of secondary criteria buttresses this conclu-
sion. The press operators are paid more than rank-and-file
employees. They are salaried and do not receive overtime.
More important, they are eligible for substantial bonuses
based on their effectiveness in operating efficiently and re-
ducing waste. The press operators attend management meet-
ings and training sessions. Press operators have access to su-
pervisory offices and computers. While these secondary cri-
teria do not establish supervisory status by themselves, I find
that they lend support to the conclusion that the totality of
circumstances requires a finding of supervisory status. Times
Herald Printing Co., 252 NLRB 278 (1980); Typographical
Union 101 (Washington Post), 207 NLRB 831 (1973); New-
ark Newspaper Pressmen’s Union 8 (Newark Star Ledger),
194 NLRB 566 (1971).
Analysis and Conclusions
The General Counsel and the Union contend that Respond-
ent violated Section 8(a)(5) and (1) of the Act by insisting
to impasse on bargaining proposals allegedly destructive of
the Union’s right to represent the employees. The General
Counsel argues that Respondent implemented its last offer to
the Union in the absence of a legally cognizable impasse.
Further General Counsel asserts that even if the parties were
at impasse, Respondent could not unilaterally implement its
merit pay proposal.
Respondent argues that the parties lawfully reached im-
passe on mandatory subjects of bargaining and that it could,
therefore, lawfully impose its last offer to the Union. Further,
Respondent argues that the merit wage plan was a mandatory
subject of bargaining and that it could lawfully insist on that
plan to impasse. As to the implementation of the plan, Re-
spondent argues that the record contains no evidence that it
unilaterally granted merit pay. At implementation Respondent
granted an across-the-board pay increase, the merit plan was
not scheduled to go into effect until 1 year later. There was
no evidence that the plan was implemented or how it was
implemented. As earlier stated, I find that the press operators
were supervisors and Respondent could lawfully refuse to in-
clude them in the bargaining agreement.
It is not the Board’s role to sit in judgment of the sub-
stantive terms of bargaining, but rather to oversee the process
to ascertain that the parties are making a sincere effort to
reach agreement. Rescar, Inc., 274 NLRB 1 (1985);
Reichhold Chemicals, 277 NLRB 639 (1985) (Reichhold I);
Reichhold Chemicals, 288 NLRB 69 (1988) (Reichhold II).
In Reichhold II, the Board stated it would not pass on the
acceptability of each proposal made by the parties, but noted
that insistence ‘‘on extreme proposals’’ could be part of the
evidence considered in determining whether a demand was
‘‘designed to frustrate agreement on a collective bargaining
contract.’’ The Board held that ‘‘proposal content supports
an inference of an intent to frustrate the agreement, where,
the entire spectrum of proposals put forth by a party is so
consistently and predictably unpalatable to the other party
that the proposer should know agreement is impossible.’’ Id.
at 70. Recently, in John Ascuaga’s Nugget, 298 NLRB 524
(1990), the Board found that the respondent hotel had en-
gaged in bad-faith bargaining, with no real intent to reach
agreement, based on a refusal to negotiate about work rules;
an asserted inability to meet very regularly or for long peri-
ods of time; the repeated rejection of a hiring hall when the
charging party-union was not even proposing one; an impli-
cation to the union that it wanted an election rather than con-
tinuing negotiating sessions; and its unilateral and peremp-
tory scuttling of any further negotiations, all in conjunction
with a refusal to even express a willingness to modify its
total contract proposal and with an expressed determination
that the union would have nothing to say about wage levels
and seniority.
The first question presented is whether the bargaining pro-
posals at issue were mandatory subjects of bargaining. Gen-
eral Counsel apparently concedes that all the bargaining pro-
posals at issue are mandatory subjects of bargaining except
the removal of the press operators from the bargaining unit.
However, I have found no merit in this argument. The Gen-
eral Counsel contends that Respondent’s merit pay proposal
establishes bad faith and an intent not to reach agreement.
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 295 NLRB 607 (1989).
6 The General Counsel has not explained his failure to offer evi-
dence on this critical point.
7 The General Counsel did not allege that Respondent engaged in
surface bargaining.
For the following reasons, I find no support for this argu-
ment.
In McClatchy Newspapers, 299 NLRB 1045 (1990) (the
Guild case), the Respondent was found to have violated Sec-
tion 8(a)(5) and (1) by unilaterally granting merit pay in-
creases to bargaining unit employees without bargaining with
the newspaper guild about the timing and amounts of the
merit increases. In that case Respondent proposed that com-
pensation be based solely on merit, including full employer
discretion to establish starting salaries, not subject to bar-
gaining or the grievance and arbitration procedure. The Guild
rejected the Respondent’s merit pay concept on the ground
that it would undermine the Union’s bargaining role as to
wages. The Respondent later offered a revised merit pay pro-
posal which set a minimum guaranteed starting salary. Re-
spondent presented a ‘‘last, best, and final’’ offer containing
the merit pay proposal as revised. After impasse, Respondent
posted its merit pay plan along with other terms and condi-
tions of employment contained in its final offer. Subse-
quently, Respondent granted merit pay increases to some unit
employees without prior discussion with the Guild.
The Board found that the parties had reached impasse. It
rejected the General Counsel’s argument that the merit pay
proposal constituted bad faith or evidence of bad faith. As
the subject of merit pay was a mandatory subject of bar-
gaining, the Board held that Respondent could lawfully insist
to impasse on its merit pay proposal. However, the Board
citing Colorado-Ute Electric Assn.,5 held that to the extent
that implementation of a merit pay plan also involves discre-
tion in determining the timing and the amounts of increases,
it is a matter for consultation with the bargaining agent. The
Board found that Respondent’s merit pay proposal set no cri-
teria for the amounts or timing of merit increases, and failed
to provide for Guild participation either in the initial deter-
mination of merit increases granted to particular employees
or afterwards through the grievance procedure. The Board
held that Respondent ‘‘was in reality seeking the [Guild’s]
waiver of its statutory right to be consulted over those mat-
ters under Section 8(a)(5) and (1) of the Act.’’ The Board
found that the Guild had not waived such rights. Thus, the
Board found Respondent had a lawful right after impasse
unilaterally to consider employees for merit increases; how-
ever, it still had a duty to bargain with the Guild about the
timing and amounts of the merit increases prior to granting
any such increases.
In the instant case, as in the Guild case, Respondent law-
fully insisted to impasse on its merit pay plan. I cannot find
evidence of bad faith from the proposal or from Respond-
ent’s insistence to impasse. Under the proposal that was im-
plemented on June 22, 1988, the employees received a wage
increase consistent with that offered to the Union and on
which impasse was reached. The merit increases were not to
be placed into effect until 1 year later. There is no evidence
in this record regarding what actually took place in June
1989.6 There is no evidence showing that Respondent grant-
ed merit pay increases without prior consultation with the
Union. Thus, there is no factual basis for a finding of a vio-
lation under the Guild or Colorado-Ute cases.
Next, I find the contents of Respondent’s other proposals
do not establish that Respondent was intent on frustrating
agreement on a new collective-bargaining agreement. I have
examined the proposals at issue and find no objective factors
which show that Respondent engaged in bad-faith bargaining
or had an unlawful intent. Respondent’s proposals concerned
mandatory subjects of bargaining and Respondent offered a
reasonable purpose for each proposal. There was no showing
that any of the proposals were ‘‘extreme.’’ Whether the
Union or the General Counsel agreed with Respondent’s rea-
soning is beside the point. Nothing in the record suggests
that Respondent’s reasoning is any less valid than the
Union’s. I do not see why Respondent should be found to
have advanced its proposals in bad faith. Both Respondent
and the Union were engaged in hard bargaining.7 Neither
side made substantial movement on its proposals. While it
could be argued that Respondent’s proposals were predict-
ably unacceptable to the Union, it could just as easily be ar-
gued that the Union’s proposals were predictably unaccept-
able to Respondent. I find there is insufficient evidence to
establish that either side was engaged in bad-faith bargaining.
I reject the argument that Respondent’s failure to make con-
cessions in this agreement, which it had made in previous
agreements, is evidence of bad faith. Obviously, both sides
are free to try and bargain for more advantageous terms. Nei-
ther side is obligated to continue to make concessions. I,
therefore, recommend dismissal of the refusal-to-bargain alle-
gation of the complaint.
At the trial, I dismissed an allegation of the complaint
which alleged that Respondent violated Section 8(a)(1) of the
Act by not notifying employees that the no-strike clause in
its implemented final offer was ineffective without the
Union’s agreement. In his brief, General Counsel asks that
this complaint allegation be reinstated and that a violation of
Section 8(a)(1) be found. For the following reasons, I reaf-
firm by earlier dismissal of this allegation.
Absent a waiver by the Union, the bargaining unit employ-
ees retain the right to strike. See, e.g., Indianapolis Power
Co., 291 NLRB 1039 (1988). Obviously, Respondent could
not unilaterally implement the no-strike clause of its final
proposal. See, e.g., Calmat Co., 283 NLRB 1103 (1987); Ar-
izona Portland Cement Co., 281 NLRB 304 (1986). The
General Counsel apparently contends that Respondent was
required to notify the employees of their right to strike. Nei-
ther at trial nor in his brief could the General Counsel cite
any authority for this proposition. I note that nothing pre-
vented the Union from notifying the employees of their right
to strike or from engaging in a strike. I believe it would not
further the purposes of the Act to require an employer that
is posting conditions after an impasse to notify employees of
their right to strike. An employer should not bargain directly
with its employees but rather should deal through the exclu-
sive bargaining representative. The requirement of a notice of
the right to strike would tend to aggravate rather than im-
prove the relationship between the parties. It would seem
more prudent to leave the discussion of a strike to the exclu-
sive bargaining representative of the employees.
781MCCLATCHY NEWSPAPERS
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Section
8(a)(5) and (1) of the Act, as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The complaint is dismissed in its entirety.