The Capital Times Co.

National Labor Relations Board - Board Decisions

Apr 6, 1976

223 N.L.R.B. 651 (N.L.R.B. 1976)

THE CAPITAL TIMES COMPANY
The Capital Times Company and Newspaper Guild of
Madison, Local 64. Case 30-CA-2746
April 6, 1976
DECISION AND ORDER
By MEMBERS FANNING , JENKINS , PENELLO, AND
WALTHER
On January 14, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief,' the General Counsel
and the Charging Party filed briefs in support of the
Administrative Law Judge's Decision, the Charging
Party filed an answering brief, and the American
Newspaper Publishers Association filed an amicus
curiae brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Section 8(a)(5) of the Act provides that it shall be
an unfair labor practice for an employer "to refuse to
bargain collectively with the representatives of his
employees ...." Collective bargaining is defined in
Section 8(d) as "the performance of the mutual obli-
gation of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment . . . ." We are
concerned here with whether the subject upon which
Respondent allegedly refused to bargain-the "Rules
and Guidelines for Professional Standards and Eth-
ics" and the sports-pass rule, herein collectively
called the code of ethics-is covered by the phrase
"wages, hours, and other terms and conditions of
employment."
We have decided to reverse the Administrative
Law Judge's Decision, which answered this question
affirmatively, and found that Respondent violated
Section 8(a)(1) and (5) of the Act by dealing directly
with unit employees regarding Respondent's code of
ethics, refusing to bargain about the code of ethics,
1 As the record and briefs adequately set forth the issues and the positions
of the parties , we hereby deny Respondent 's motion for oral argument. The
Charging Party's motion for leave to adduce further evidence and submis-
sion of further evidence is also denied as lacking in merit.
2 We hereby correct the following inadvertent errors in the Decision of
the Administrative Law Judge which in no way affect her Decision: in the
first sentence of the fourth paragraph of sec . II, B, I, "1972" should be
changed to " 1971"; with regard to fn. 17, the record merely shows that the
International of the Guild offered to help develop counterproposals con-
cerning Respondent's "Code of Ethics " and that Local 64 accepted that
offer, rather than that a counterproposal was in fact prepared.
651
and` unilaterally instituting the- code of ethics. How-
ever, we find that Respondent did violate Section
8(a)(1) and (5) of the Act by unilaterally instituting,
refusing to bargain about, and dealing directly with
unit employees regarding the penalty provision of the
code of ethics, which states that "Any violation will
result in a suspension, multiple infractions will result
in discharge.
We are unconvinced by the Administrative Law
Judge's conclusions that gifts received from actual or
potential news sources by news personnel in their
professional capacities constitute "wages," or that
the code of ethics, as a whole, affects terms and con-
ditions of employment such as to make it a mandato-
ry subject of bargaining. But since the suspension
and discharge provision of the code of ethics directly
affects employment security, it is our opinion that
Respondent must bargain about this section.
In substance, Respondent's code of ethics (fully set
forth under sec. II , C, of the Administrative Law
Judge's Decision) prohibits the acceptance of gifts
from outside sources which are used in the perfor-
mance of employees' duties. It also forbids the accep-
tance of gifts not used by employees in carrying out
their assignments, but which come to the employees
by virtue of their position with the newspaper. Final-
ly, the code requires employees to disclose outside
activities which might constitute a conflict of inter-
est.3 It is undisputed, and the record fully supports a
finding, that the code of ethics represents an attempt
by Respondent to protect and enhance the credibility
and quality of its newspaper.
We have in the past interpreted the term "wages,"
as used in Section 8(d) of the Act, quite liberally. The
basic definition is found in Inland Steel Company, 77
NLRB 1, 4 (1948), enfd. 170 F.2d 247 (C.A. 7, 1948),
cert. denied 336 U.S. 960 (1949), which states that
wages "must be construed to include emoluments of
value . . . which may accrue to employees out of
their employment relationship." Thus, in Inland
Steel, we held that pension and insurance benefits
fall within the statutory intendment of "wages."
Likewise, we have held profit-sharing plans (Dickten
& Masch Mfg. Company, 129 NLRB 112 (1960) );
stock purchase plans (Richfield Oil Corporation, 110
NLRB 356 (1954), enfd. 231 F.2d 717 (C.A.D.C.,
1956), cert. denied 351 U.S. 909 (1956) ); company-
provided housing (Elgin Standard Brick Manufactur-
ing Company, 90 NLRB 1467 (1950) ); employer-pro-
vided meals (Weyerhaeuser Timber Company, 87
NLRB 672 (1949) ); a free investment service (Seat-
tle-First National Bank, 176 NLRB 691 (1969) ); and
3 The Administrative Law Judge found that Respondent had agreed it is
obligated to bargain about one aspect of the code-outside employment.
Respondent disputes this fact in its brief , but the record supports the Ad-
ministrative Law Judge.
223 NLRB No. 87
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christmas bonuses (Marland One-Way Clutch Co.,
Inc., 192 NLRB 601 (1971) ), to be wages.
Thus, while wages may take a variety of forms, it is
clear from the recitation of the foregoing cases that
wages represent a benefit flowing from the employer
to the employee. One recognized exception to this
principle exists. Where tips or gratuities are generally
considered to be part of the employees' compensa-
tion in the trade, for example, waiters' tips, they may
be properly regarded as wages-even though the em-
ployer is not the source of the benefit. See Hilton
Hotels Corporation d/b/a Statler Hilton Hotel, 191
NLRB 283 (1971). Similarly, stagehands who regu-
larly receive tips from featured performers for good
service are in the same category. Harrah's Club, 158
NLRB 758 (1966), enfd. 403 F.2d 865 (C.A. 9, 1968).
However, the Administrative Law Judge's finding
that the "freebies" herein are analogous to waiters'
tips ignores a basic distinction between them. Tips
paid to a waiter are for services rendered to the cus-
tomer by the employee on behalf of the employer.
The payment of tips is beneficial to the employer in
that it gives an incentive to the employee to render
good services on behalf of the employer to the cus-
tomer. On the other hand, as Respondent correctly
points out, and record testimony fully supports, news
sources tend to give gifts to news employees in order
to attain favorable press coverage . It is the obligation
of a newspaper to disseminate news to the public.
Newspapers do not hold themselves out as providing
a service to their news sources by printing stories in
return for payments from the news source. Thus, a
more accurate analogy than a waiter's tips would be
gifts to a politician or a police officer. In both cases,
the rendering of services in return for favors would
be unauthorized and improper.
The record in the instant case clearly discloses that
the Union in the past has not considered the availa-
bility of freebies in framing its wage demands and
none of the five unit employees who testified regard-
ed gifts from outside sources as part of their wages,
as a waiter or a stagehand does. Therefore, we con-
clude that such gifts are not "wages," since they do
not originate with the Employer, are not considered
to be wages by the Union or the employees, and are
not provided by third parties for good service in an
industry where it is a recognized part of the employ-
ees' compensation.
We also disagree with the Administrative Law
Judge's conclusion that the code of ethics affects
terms and conditions of employment such that Re-
spondent must bargain about it. In the first place,
Respondent has clearly committed itself to reimburse
employees for legitimate expenses incurred in the
pursuit of news stories and any disagreement con-
cerning the need for such reimbursement is subject to
the contract's grievance procedure. Thus, acceptance
of gifts from outside parties to enable employees to
do their jobs is unnecessary. As a result Respondent's
prohibition of employees from accepting such gifts
will not change working conditions. The only re-
maining questions are whether forbidding employees
from accepting gifts not used in connection with the
employment, and requiring them to report outside
activities which may represent a conflict of interest,
constitute a change in terms and conditions of em-
ployment under the Act.
The Administrative Law Judge's reasoning in de-
ciding that such rules affect working conditions ap-
pears to be based upon mere speculation, or upon
mischaracterization of the record. The Administra-
tive Law Judge states that management may not be
aware of all the factors involved in newsgathering (a
highly dubious proposition since Managing Editor
Meloon is a former reporter and was an officer of the
Union for many years), and that social contacts with
news sources by reporters may be quite important.
She also suggests that the code of ethics might cause
newsmen and women to do their jobs less satisfacto-
rily to management, and thus to place their employ-
ment in jeopardy. Finally, she states that the
Employer's rules might cause the employees to do
work less satisfactorily to themselves, resulting in a
loss of "professional reputation among readers and
prospective employers."
Social contacts with news sources are not, of
course, prohibited by Respondent's code of ethics.
Moreover, the testimony of Managing Editor Me-
loon made clear that the code does not forbid the
acceptance of gifts from friends who also happen to
be news sources. It simply prohibits the acceptance
of gifts given to employees by virtue of their associa-
tion with the newspaper. To assert that an employee
might do his job less satisfactorily and possibly lose
his job for following the Employer's own rules is not
only speculative, but contrary to commonsense. In
addition, the Administrative Law Judge's conclusion
seems to assure that reporters are essentially free of
all supervision and just wander around pursuing sto-
ries, an assumption contrary to the record herein. Sit-
uations may arise when application of the provisions
of the code will conflict with the reporter's ability to
perform his job fully. In such circumstances, man-
agement may have to determine whether and how
great an exception must be made to the rule.
Finally, the contention that an employee may be
less satisfied with his own work as a result of the
introduction of the code is speculative and not sup-
ported by record testimony, the thrust of which was
that the code would not make much difference in the
THE CAPITAL TIMES COMPANY 653
way reporters handle their jobs. Moreover, it is im-
portant to note that the code requires the reporting
of outside activities which might involve a conflict of
interest, and does not ban such activities outright.
The cases cited by the Administrative Law Judge
to support her conclusion that less satisfactory work
performance, from the individual's viewpoint, may
result from institution of the code of ethics are not on
point. Brotherhood of Locomotive Firemen and Engine-
men, 168 NLRB 677, 686 (1967), enfd. 419 F.2d 314,
321 (C.A.D.C., 1969), involved the practice of per-
mitting employees to perform a different type of
work, which opened up the possibility of advance-
ment. In this case, employees are in no way restricted
from fully performing their assignments. The code of
ethics simply prohibits gifts not used in the coverage
of news events and expensive gifts from third parties
to reporters not connected with their duties, and re-
quires a report of potential conflicts of interest. Re-
publican Publishing Company, 73 NLRB 1085, 1091,
1104-07 (1947), enfd. 174 F.2d 474 (C.A. 1, 1949),
involved a demotion-a basic change in the terms
and conditions of employment. Mullins Broadcasting
Company, 200 NLRB 119 (1972), concerned work
changes that made jobs much more routine in na-
ture-again, not the case here.
We also reject the Administrative Law Judge's po-
sition that if Respondent has the power unilaterally
to impose "higher" ethical rules Respondent also has
the power unilaterally to compel the observance of
"lower" ones. The Administrative Law Judge asserts
that management might be able to require employees
to accept benefits from news sources as a cost-cutting
measure, thus compromising the integrity of its news
workers. Contrary to the Administrative Law Judge,
we believe regulations appearing to undermine em-
ployees' integrity would normally affect terms and
conditions of employment, since it could strike at the
heart of the individuals' reputations. It certainly does
not follow that institution of a code designed to
maintain high ethical standards will allow news em-
ployees to do the exact opposite.
In sum, the Administrative Law Judge's conclu-
sion that prohibition of gifts accepted by news em-
ployees by virtue of their association with the news-
paper, and requiring that employees report potential
conflicts of interest, affects terms and conditions of
employment within the meaning of the Act, is erro-
neous. Record testimony clearly indicates that the
code would have little, if any, impact on the proper
performance of employee jobs.
Finding the code of ethics, as written, outside the
scope of mandatory bargaining is, we believe, consis-
tent with the Supreme Court's opinion in Fibreboard
Paper Products Corp. v. N.L.R.B., 379 U.S. 203
(1964). In that case, involving whether subcontract-
ing work previously done by unit employees consti-
tuted a mandatory bargaining subject, the Court stat-
ed that to require the employer to bargain about the
matter would not "significantly abridge his freedom
to manage the business" (379 U.S. 203, 213), and
would bring "a problem of vital concern to labor and
management within the framework established by
Congress as most conductive to industrial peace." 4
(379 U.S. 203, 211.) The Court noted that the basis of
the decision to subcontract was a belief by the em-
ployer that "economies could be derived by reducing
the work force, decreasing fringe benefits, and elimi-
nating overtime payments." (379 U.S. 203, 213.)
These the Court stated "have long been regarded as
matters peculiarly suitable for resolution within the
collective bargaining framework, and industrial ex-
perience demonstrates that collective negotiation has
been highly successful in achieving peaceful accom-
modation of the conflicting interests." (379 U.S. 203,
213-214.) In reaching its conclusion that "contract-
ing out" is a statutory subject of collective bargaining
the Court stated that:
While not determinative, it is appropriate to
look to industrial bargaining practices in ap-
praising the propriety of including a particular
subject within the scope of mandatory bargain-
ing. [379 U.S. 203, 211.]
By contrast to the subjects found appropriate for
collective-bargaining resolution by the Court in Fi-
breboard, this case does not involve an economic de-
cision by the Employer, but rather, according to the
record, a decision to bolster and enhance the credi-
bility of the newspaper by setting forth a high ethical
standard for its employees. When, as in Fibreboard,
considerations which bear an intimate relation to
employees, such as labor costs, are crucial to an
employer's decision, or when such considerations
would be relevant to collective bargaining about a
decision, a duty to bargain over the decision exists.
Here , however, the code of ethics deals only with the
allocation of expenses between Respondent and
third-party news sources. The only economic impact
on the Employer, as Respondent points out, is an
increase in costs for the newspaper, because it is now
paying for items needed in news coverage that were
formerly provided by outside sources. The code of
ethics in no way increases the expenses to be borne
Accord: Allied Chemical & Alkali Workers of America, Local No. 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157 ( 1971), wherein the Court stated
that a subject for mandatory bargaining is one which "vitally" affects the
"terms and conditions of [the employees] employment" (404 U.S. 157, 176),
and mentioned as a relevant factor in making such a determination "the
effect on the employer's freedom to conduct his business." (404 U.S. 157,
179, fn. 19.)
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the employees. Thus, as Respondent's motivation
in promulgating the code is not primarily economic
in nature , the code is not "peculiarly suitable" for
discussion through the collective -bargaining process
within the meaning of Fibreboard.
Furthermore , in regard to industry practice , unlike
in Fibreboard, in this case , the record shows that
codes of ethics have never been bargained about in
the newspaper industry. While it is true that few
newspapers have established such codes-although
the number is increasing-record testimony shows
that six union-represented newsgathering organiza-
tions have imposed such codes without objection.
Although we have found the code of ethics , in sub-
stance , not to be a mandatory subject of bargaining,
we nevertheless believe that the penalty provision,
standing alone , must be bargained over . This conclu-
sion is compelled by Board precedent . The Adminis-
trative Law Judge , although citing the appropriate
cases in her opinion (ALJD, fn. 74), wrongly con-
cludes that "the inclusion of such sanctions is strong
if not conclusive evidence that the `Rules' constitute
a mandatory collective bargaining subject ." The dis-
ciplinary provision itself constitutes a mandatory
subject of bargaining , but it in no way converts the
code as a whole into a mandatory subject.
In Donna Lee Sportswear, 174 NLRB 318 (1969),
enfd. 435 F.2d 559 (C.A. 3, 1971), we ruled that the
unilateral institution of a warning and discharge poli-
cy had a "direct effect on job tenure," and thus con-
stituted a mandatory subject of bargaining . The same
conclusion was reached in Murphy Diesel Company,
184 NLRB 757, 762 (1970), enfd. 454 F.2d 303 (C.A.
7, 1971), wherein the Board held that plant rules in-
volving absenteeism and tardiness affected condi-
tions of employment "particularly where penalties are
prescribed for their violation .... " S (Emphasis
supplied.) Similarly, in Tiidee Products, Inc., 176
NLRB 969, 976 (1969), enfd. 440 F.2d 298
(C.A.D.C., 1970), we decided that where "penalties
were prescribed for breaches [of work rules it] suffi-
ciently affected the conditions of employment to
make them mandatory subjects of bargaining." Fi-
nally, in Fibreboard, supra, the Court emphasized the
"possible curtailment of jobs" as a factor in finding
that subcontracting was a matter of "vital concern to
labor and management" and therefore a mandatory
subject. See also General Electric Company, 192
s Contrary to our dissenting colleague's assertion that rules and their pen-
alties are not severable, the language quoted above in Murphy Diesel Com-
pany indicates that plant rules, even without penalties attached, can affect
conditions of employment. Moreover, our colleague's statement that such
rules without penalties are "only opinion" does not withstand scrutiny. Al-
though no explicit penalties may be contained in rules concerning employee
conduct, nevertheless such rules certainly can exert an inhibitory influence
on employees, as they are the stated position of management.
NLRB 68 (1971), enfd. 466 F.2d 1177 (C.A. 6, 1972);
Amoco Chemicals Corporation, 211 NLRB 618 (1974).
Respondent attempts to distinguish the cases cited
by the Administrative Law Judge primarily on the
ground that the rules for which penalties were pre-
scribed in each case themselves constituted mandato-
ry subjects of bargaining. We believe a plain reading
of these cases shows that we found the penalties to be
mandatory bargaining subjects, since they directly
affected job security. The fact that the subjects of the
penalty provisions may also have been mandatory
subjects of bargaining does not detract from a find-
ing that the provisions, in and of themselves, are
mandatory subjects.
Finally, we note that the penalty provision is a
constituent part of the code of ethics as a whole. It is
therefore clear that the requests by the Union to bar-
gain over the code of ethics and the Employer's con-
tinual refusal to discuss the code with the Union,
found by the Administrative Law Judge (sec. II, H, 2,
of her Decision), also constitute an effective demand
and refusal to bargain about the penalty clause.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 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 Union is and at all relevant times has been
the exclusive bargaining representative under Section
9(a) of the Act of the following appropriate unit:
All employees, excluding one editor, one exec-
utive editor, one associate editor, one managing
editor, one city editor, and two confidential sec-
retaries, on the editorial staff.
4. Respondent has violated Section 8(a)(5) and (1)
of the Act by unilaterally promulgating the penalty
clause of the sports-pass rule on March 15, 1974, and
by failing to honor the Union's demands, by letters
dated April 8 and 19, 1974, to bargain about that
rule.
5. Respondent has violated Section 8(a)(5) and (1)
of the Act by dealing directly with unit employees
regarding the penalty provision of Respondent's
"Rules and Guidelines for Professional Standards
and Ethics"; by failing to honor the Union's de-
mands, by letters dated April 8, May 17, and June
15, 1974, and by oral communication on May 19,
1974, to bargain about the penalty clause of such
"Rules and Guidelines"; by unilaterally instituting
the penalty provision of such "Rules and Guidelines"
on May 17, 1974; and by orally refusing on August
THE CAPITAL TIMES COMPANY 655
29, 1974, the Union's oral demand on that date for
bargaining about the penalty provision of said
"Rules and Guidelines."
6. Such unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
affecting wages and working conditions, or enforcing
such unilaterally promulgated penalty : provisions
without giving the Union notice of and opportunity
to bargain about the penalty provisions.
(d) In any like or related manner interfering with
the -Union's efforts- to bargain collectively with Re-
spondent with respect to the following appropriate
unit:
Having found that Respondent has violated the
Act in certain respects, we shall order that Respon-
dent cease and desist from such conduct and take
certain affirmative action necessary to effectuate the
policies of the Act. Because the Union demanded
bargaining about the penalty provision of the sports-
pass rule within a reasonable time after finding out
about it, and about the penalty clause of the "Rules
and Guidelines" before their promulgation and with-
in a reasonable time after learning that Respondent
had them under consideration, we shall order that
Respondent, on request by the Union, rescind the
penalty provision of the sports-pass rule and the
"Rules and Guidelines"; that Respondent shall,
upon request by the Union, bargain with the Union
about the penalty provisions and, if an agreement is
reached, embody it in a signed agreement; and that
Respondent cancel and withdraw from employee
files any disciplinary actions which resulted from en-
forcement of those disciplinary provisions, and make
the employees whole for any loss they may have suf-
fered by reason of any enforcement of such provi-
sions, with interest added thereto in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In all cases of lost pay the amounts shall be
computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950). We shall also
order Respondent to post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Capital Times Company, Madison, Wisconsin,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Newspaper Guild
of Madison, Local 64 (herein called the Union), on
request, about the penalty provisions of the. "Rules
and Guidelines for Professional Standards and Eth-
ics" and the sports-pass rule.
(b) Dealing directly with unit employees regarding
the penalty provisions of Respondent's "Rules and
Guidelines for Professional Standards and Ethics"
and the sports-pass rule.
(c) Unilaterally promulgating penalty provisions
All employees, excluding one editor, one exec-
utive editor, one associate editor, one managing
editor, one city editor, and two confidential sec-
retaries, on the editorial staff.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) On request by the Union, rescind in writing the
penalty provisions of the sports-pass rule and the
"Rules and Guidelines."
(b) On request, bargain with the Union about the
penalty provisions and, if an agreement is reached,
embody it in a signed tagreement.
(c) Cancel and withdraw from employee files any
disciplinary, actions which resulted from enforcement
of these penalty provisions,' and make the employees
whole for any loss they may have suffered by reason
of any enforcement of such penalty provisions in the
manner set forth in the "Remedy" section of this De-
cision.
(d) Preserve and, upon 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 or useful to analyze the
amounts due under the terms of this Order.
(e) Post at its office in Madison, Wisconsin, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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."
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER FANNING , dissenting:
The Respondent provides editorial services for
"The Capital Times," a newspaper . Since 1917 it had
permitted employees to accept sports passes and
other benefits from the public and had considered
them a form of additional wages for its employees. In
March 1974 the Respondent notified its employees,
but not their collective-bargaining representative,
that it was formulating a code of ethics . Then, in
response to a rival paper's publication of a list of "fat
cats" receiving free tickets to University of Wiscon-
sin football games, it told the employees in its sports
department that they could no longer accept "free-
bies" from the University. In May the Respondent
instituted its "Rules and Guidelines for Professional
Standards and Ethics." The rules prohibit receipt of
gifts, travel, meals , etc., and limit outside activities
and employment . Any violation would "result in a
suspension, multiple infractions will result in dis-
charge."
Although the Respondent has recognized the
Newspaper Guild as the exclusive collective-bargain-
ing representative of its editorial employees since
1936, it did not formally notify, consult , or bargain
with the Union about the rules. Instead, it categori-
cally rejected the Union' s attempt to discuss the
rules , even though it concedes that better rules might
well be formulated with the Union's assistance.
In the past, the Board has regularly held that
things of value routinely received by employees in
connection with their employment, with the
employer's consent, and rules governing employee
conduct, particularly when penalties are attached,'
are subjects for mandatory bargaining . The majority
concludes that these rules are somehow different,
save for the penalty provision. That, standing in iso-
lation , is conceded to be a mandatory bargaining
subject . I confess that my colleagues' reasoning is be-
yond me. Not the least of my difficulties lies in trying
to understand how the penalty provision, in isolation,
can be a mandatory bargaining subject. And, if it is,
how the parties are to bargain about it.
The law provides that once a majority of employ-
ees selects an exclusive collective-bargaining repre-
sentative their employer is not free to change their
wages, hours, and other terms and conditions of em-
7 Rules without penalties , express or implied, are only opinion . The ex-
pression of opinion , barren of any threat or promise of benefit , is not only
protected by the Constitution of the United States , N.LR.B. v. Virginia
Electric & Power Company, 314 U.S . 469 (1941 ), but also has been accorded
explicit protection under the National Labor Relations Act in Sec. 8(c). If
rules and their enforcement are severable , then we can never find a violation
with respect to a rule . To do so would be contrary to both the Constitution
and Sec. 8(c). Without meaning to impinge on theology, I suggest that where
there is no effect there can be no cause . If there is no requirement that the
rule be observed , it cannot affect, or be, a term or condition of employment.
Conversely , rules with penalties , expressed or implied , are conditions of
employment : cause and effect. That does not even require a leap of faith.
ployment without notifying and bargaining in good
faith with that representative. That duty to bargain in
good faith is not affected by the merits of the
changes sought . Be they good or bad, neither this
Board nor the courts pass judgment on their intrinsic
worth.'
When a change is made without agreement by
both parties, the issues are whether or not it sets a
term or condition of employment or regulates the
employment relation ,9 and, if it does, whether or not
the parties have bargained in a good-faith attempt to
reach agreement . There is no requirement that the
employer and the representative of its employees
agree,10 only that they expend their best efforts to do
so." Should those efforts fail, then-but only then-
the employer is free to implement those changes it
considers necessary or desirable that have been pre-
sented to the union; the National Labor Relations
Act does not stand in its way. However, a refusal to
bargain at all over any statutorily commanded bar-
gaining matter is unlawful even if the refusal is in
complete good faith." That is the situation here, and
the sole issue is whether or not the rules affect wages,
hours, or other terms and conditions of employment.
I think they do.
The rules govern employee conduct both on and
off the job to the extent the Respondent believes
such conduct affects its business. Insofar as employ-
ees previously received benefits from outsiders be-
cause of their association with the Respondent, be-
yond those which the Respondent considers to be
legitimate business expenses , the employees will bear
the loss. If an employee does not conform to the
rules, his employment will either be suspended or ter-
minated; and the rules will be the cause. Rules which
determine employee conduct, income, or job security
are inescapably terms and conditions of employ-
ment. It is difficult to see how it can be argued other-
wise when the rules have been adopted by the Re-
spondent precisely because it believes that the areas
covered by the rules affect the work of its employees
sufficiently to make employment contingent upon
their observation.
In holding to the contrary, the majority relies in
part on its finding that other newspapers have im-
posed similar codes without objection from their em-
ployees' representatives. Aside from the fact that
8 N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 404 (1952).
9 N. L R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S. 342
(1958).
10 Sec. 8(d) specifically provides that good-faith bargaining does not re-
quire "either party to agree to a proposal or require the making of a conces-
sion."
11 N.LR.B. v. Intracoastal Terminal, Inc., 286 F.2d 954 (C.A. 5, 1961): cf.
N.LR.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217 (1949).
12 N.L. R. B. v. Benne Katz , d/b/a Williamsburg Steel Products Co., 369
U.S. 736. 743 (1962).
THE CAPITAL TIMES COMPANY 657
these historic gleanings fall short of establishing any
practice or accepted standard, and are of question-
able application where objections have been raised,
industrial practice can only be helpful in doubtful
cases; it is not determinative. 13
My colleagues' recourse to that argument is based
on Fibreboard,14 which held subcontracting to be a
condition of employment. But they give no practical
effect to the Court's conclusion that "condition of
employment" "even more plainly cover[ s] termina-
tion of employment." 15 Indeed, in their preoccupa-
tion with industry practice and the economic consid-
erations underlying subcontracting, the majority
gives the appearance of overlooking the fact that
subcontracting is a mandatory bargaining subject be-
cause it affects employment security, not because it is
economically motivated. Similarly ignored is the fact
that Fibreboard held subcontracting itself-which,
like the rules here, is a cause and not an effect-to be
a condition of employment.
Congress has instructed the Board that it intends
words to have their ordinary meanings .16 The ordi-
nary meaning of language requires that if employ-
ment is to continue only so long as an employee ad-
heres to certain rules, then adherence to those rules is
a condition of employment. "If there is any violation
the offender will be disciplined by suspension. Multi-
ple violations will result in discharge." That seems
clear enough."
Apparently the majority has some doubt about its
position, however small. For, though the rules are not
a mandatory bargaining subject, its constituent pen-
alty provision is.
Even were we bereft of guidance in this area, the
conclusion that the penalty provision is a condition
of employment, but the code it enforces is not, would
necessarily fall as contrary to reason and at war with
the practical considerations of collective bargaining.
So far as a violation is found, it is contrary to reason
because the penalty provision could only have been
unilaterally instituted without regard to the sub-
stance of the rules if the Respondent had not im-
posed these penalties in the past. If the Respondent
heretofore had these penalties in its arsenal, they
13 Allied Chemical & Alkali Workers of America, Local 10 v. Pittsburgh
Plate Glass Company, Chemical Division, 404 U.S. 157, 176 (1971).
14 Fibreboard Paper Products v. N.L.R.B., 379 U.S. 203 (1964).
15 Id. at 210: and the concurring opinion agrees at 222.
16 H.R. Rep . No. 245, 80th Cong. 1st Sess . 18 (1947).
17 My colleagues conclude that although imposing higher standards does
not affect terms and conditions of employment, imposing a lower standard
would . But ethics either is or is not a condition of employment; it cannot
be both. Further, that conclusion supposes an absolute standard . Surely
there must be some grey area, or room for honest disagreement ; e.g., is it
ethical to report the contents of stolen documents?
were not unilaterally instituted here and the violation
can only consist of the Respondent's unilateral relat-
ing of them to the code.
As a practical matter, requiring that the Respon-
dent bargain over the penalty provision but not the
rules is simply unworkable. The penalty provision is
a constituent part of the rules. It has no separate
existence and, standing alone, has no meaning what-
soever. "Multiple violations will result in discharge."
Violations of what? The provision has meaning only
insofar as it is infused with meaning by its relation to
the rules as a whole, of which it is but a constituent
part. Forcing one party or the other to accept a pig in
a poke will not effectuate meaningful collective bar-
gaining.
The Respondent may choose to satisfy its bargain-
ing obligation by simply abolishing the penalty pro-
vision. If it does, two alternatives are possible: either
the rules will cease being rules or the Respondent will
enforce them even though the penalties are no longer
spelled out. In the former case the Respondent will
be back where it started and it might as well either
bargain with the Union now or abolish the rules and
allow its employees to revert to past practices.
If the Respondent chooses the 'latter alternative,
the Union will undoubtedly file grievances and the
Respondent, willy nlly, will end up bargaining about
whether the discipline is reasonable-in light of the
rules. Moreover, the imposition of penalties without
first bargaining would probably be in contempt of
the Board's Order even if the specific provision had
been abolished.
In short, there seems to be no practical reason to
make a distinction between the rules themselves and
their enforcement provisions. It settles nothing.
Ordering the Respondent to bargain about the
rules places no onerous burden upon it. The Respon-
dent does not contend that either its employees or
their collective-bargaining representative is opposed
to ethical conduct or hostile to establishing a stan-
dard to which the parties may repair. It concedes
that consultation with the Union might well result in
a better code. But it has steadfastly refused to carry
out even its minimum obligation to bargain about
the rules. Let there be no misunderstanding, there is
nothing in the National Labor Relations Act to stop
the Respondent from ultimately imposing its stan-
dards, if not in themselves unlawful, so long as it first
exhausts its bargaining obligation. It has not done so,
and it has thereby acted outside the law.
I would find that the Respondent was required by
law to bargain about the rules as a whole and that its
failure to notify and bargain with the Union before
imposing the rules violated Section 8(a)(5) of the Act.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, it has been decided
that we violated the law and we have been ordered to
post this notice. We intend to carry out the order of
the Board and abide by the following:
WE WILL NOT refuse to bargain with the News-
paper Guild of Madison, Local 64 (herein called
the Union), on request, about the penalty provi-
sions of "Rules and Guidelines for Professional
Standards and Ethics" and the rule which limits
the acceptance of free reduced-rate admission to
sports events.
WE WILL NOT deal directly with unit employees
regarding the penalty provisions of the "Rules
and Guidelines" and the sports-pass rule.
WE WILL NOT unilaterally promulgate discipli-
nary provisions affecting working conditions, or
enforce such unilaterally promulgated provi-
sions, without giving the Union notice and an
opportunity to bargain about such penalty pro-
visions.
WE WILL NOT in any like or related manner
interfere with the Union's efforts to bargain col-
lectively with us with respect to the following
appropriate unit:
All employees, excluding one editor, one
executive editor, one associate editor, one
managing editor, one city editor, and two con-
fidential secretaries, on the editorial staff.
WE WILL, on request by the Union, rescind the
penalty provisions of the sports-pass rule and of
the "Rules and Guidelines."
WE WILL, on request by the Union, bargain
with the Union about penalty provisions of the
sports-pass rule and the "Rules and Guidelines"
and, if an agreement is reached, embody it in a
signed agreement.
WE WILL cancel and withdraw from employee
files any disciplinary actions which resulted
from enforcement of these disciplinary provi-
sions and make the employees whole, with inter-
est, for any loss they may have suffered by rea-
son of any enforcement of such penalty
provisions.
THE CAPITAL TIMES COMPANY
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN , Administrative Law Judge: This
proceeding, heard at Madison, Wisconsin, on August 27
through 29, 1974, pursuant to a charge filed on June 10,
1974, and a complaint issued on July 25, 1974, presents the
question of whether Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act, as amended
(the Act) by (a) instituting, without notification to or nego-
tiation with, Newspaper Guild of Madison, Local 64 (the
Union), a written policy limiting the acceptance of free
tickets and passes for sports department employees; (b)
instituting, without negotiation with the Union, certain
"Rules and Guidelines for Professional Standards"; (c) at-
tempting to circumvent the Union as the employees' collec-
tive-bargaining representative by dealing directly with unit
employees in connection with such "Rules and Guide-
lines" ;I and (d) refusing to meet with the Union and confer
in good faith with respect to the formulation and imple-
mentation of such "Rules and Guidelines."
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent, the Union, and counsel for the General
Counsel, I make the following:
FINDINGS OF FACT
1. THE NATURE OF RESPONDENT' S BUSINESS AND THE UNION'S
STATUS AS A LABOR ORGANIZATION
Respondent is a Wisconsin corporation which maintains
its principal offices and facility in Madison, Wisconsin,
where it is engaged in providing editorial services for Mad-
ison Newspapers, Inc. During calendar year 1973, Respon-
dent had gross revenues exceeding $200,000 and purchased
and received, directly from points outside Wisconsin,
goods and services valued in excess of $50,000. I find that,
as Respondent concedes, Respondent is engaged in com-
merce within the meaning of the Act, and that exercise of
jurisdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning of
the Act.
1 During the hearing, counsel for the General Counsel moved to amend
the complaint so as to add this allegation (c) to the complaint, on the
ground that evidence supporting that allegation had been adduced by, inter
alia, Respondent's cross-examination of the sole witness called by counsel
for the General Counsel . Union counsel agreed with the motion , and further
averred that witnesses to be called by him would give additional testimony
supporting the amendment . Over Respondent 's objection, I granted the mo-
tion to amend the complaint , with leave to Respondent to move for a con-
tinuance, at what otherwise would have been the conclusion of its case, for
the purpose of meeting the new allegation . Respondent failed to seek such a
continuance.
THE CAPITAL TIMES COMPANY 659
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent's business structure
Respondent provides editorial services for the Capital
Times, a daily (except Sunday) newspaper with a circula-
tion of about 45,000 . A controlling interest in its common
stock is held by the Evu Charitable Trust, whose five trus-
tees include Miles McMillin (the newspaper's editor and
publisher), but a majority of whom are members of the
family of the newspaper's founder, Evu. Half the dividends
are paid to the Charitable Trust and are distributed to vari-
ous charities ; the remaining dividends are paid to a family
trust, which holds no voting stock, and whose beneficiaries
are Evil's heirs.
2. The history of the parties' bargaining relationship
Respondent has continuously recognized the Union as
the bargaining representative of the unit herein since at
least 1936, when Respondent signed a union-shop contract
with it. During this period, both sides actively used the
contractual grievance-arbitration procedure, which is avail-
able to both parties. The Union has never called a strike
against Respondent , and Respondent has never engaged in
a lockout. The most recent contract between the parties,
effective in August 1971 and still in effect during the Au-
gust 1974 hearing, contained union-shop and checkoff pro-
visions . All five present management officers are former
union members, and two of them (including Managing Ed-
itor Robert Meloon) are former union presidents. At the
time of the hearing in August 1974, the unit consisted of
about 50 employees.
The instant charge is the first unfair labor practice
charge ever filed by the Union against Respondent. Re-
spondent has previously filed a single charge against the
Union shortly after Respondent executed a contract with
the Union in about 1969 and apparently alleging pressure
against Respondent in support of a primary dispute else-
where; this charge was sustained by the agency. Several
years before the hearing, when Respondent was supporting
Federal legislation affording newspapers certain exemp-
tions from the Federal antitrust laws, the Union unsuccess-
fully sought to induce its parent international to support
rather than oppose that legislation.
B. Respondent 's Conduct Allegedly Violative of its
Bargaining Obligation
sort of-the wages or pay for a lot of the people working
and particularly executives." McMillin further testified
that during this period "freebies" were particularly avail-
able in the sports area, and that "the sports editors were
getting large blocks of tickets which they used or used in
other ways to gain prestige and influence."
Unit employee Fred Milverstedt, a sports writer and
sports columnist for Respondent between February 1971
and July 1974,2 credibly testified that prior to March 1974,
by virtue of his job, the following conditions existed: On
his request, any team he was interested in, possibly except-
ing the Green Bay Packers professional football team,
would give him either a free ticket to an individual event or
a season pass . Sometimes, team representatives would send
free and unsolicited tickets either to him directly or to
Respondent's sports editor, who would "delegate the tick-
ets to someone." The Milwaukee Brewers professional
baseball team made available two free tickets to each game
for Milverstedt and his friends. The University of Wiscon-
sin annually gave him, inferentially without solicitation,
two "complimentary tickets"-i.e., tickets at reduced
prices and, inferentially, in choice locations-for each
football game.3 In addition, the Milwaukee Brewers gave
him an unsolicited press pass, and he obtained a press pass
to University of Wisconsin football games pursuant to ar-
rangements between the University's sports publicist and
the Capital Times' sports editor. The Brewers furnishes free
alcoholic and soft beverages, and the University of Wis-
consin free soft beverages, a free "large lunch," and a free
program (sold to ordinary patrons for $1), to persons using
the press box.4 Milverstedt credibly testified that he never
sold any of the free or reduced-rate tickets he thus received
or could obtain, but either gave them to relatives and
friends or threw them away. He testified that he had never
considered them as wages or as a fringe benefit. No other
members of Respondent's sports department testified
about this matter.
The Capital Times has taken the editorial position that in
view of poverty claims by the University of Wisconsin and
its athletic department, the University should try to save
money by not handing out "complimentary" tickets, which
(as previously noted) are available for choice locations at
reduced rates. The list of persons who received complimen-
tary football tickets (referred to in the record as the "Fat
Cat" list) for the 1971 football season, which list was print-
ed by the Capital Times on June 22, 1972, stated that
Respondent's executive editor, Elliott Maraniss , had re-
ceived 10 tickets, then. Capital Times sports editor Harry
Golden had received 4, and Milverstedt had received 2. By
the time this list was published, Maraniss, in accordance
1. Events leading up to the sports-pass rule
Editor-Publisher McMillin credibly testified that be-
tween the newspaper's 1917 founding and the summer of
1972, "There had always been an extensive freebie situa-
tion on the Capital Times. Mr. Evu [McMillin's predeces-
sor] never paid very much attention to it. In fact, he was a
very active practitioner of the art, and he . . . always told
me that it grew up that way. The paper had such hard
sledding through the years that . . . in those days it was a
2 Since July 1, 1974, Milverstedt's columns have dealt with both sports
and other subjects.
7 A 1972 Capital Times newspaper article in the record states thatmem-
bers of the press must pay a $ 1-per-game "service" charge for home-game
tickets which cost $30 a season . The record fails to show the number of
home games played by the University eleven. I infer that the number is
much less than 30 and is likely about 5.
° The Green Bay Packers would provide a press pass on request , and free
liquor to the persons in the press box. However , Respondent's sports writers
were seldom permitted to work on Sundays , when most Packers games are
played , because the bargaining agreement called for double time for Sunday
work.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his predecessors' practice extending over many years,
had requested the University to supply Respondent's exec-
utives (through Maraniss) with complimentary tickets for
the 1972 football season.
McMillin (a University law school alumnus), Maraniss,
and their families used these complimentary tickets during
the 1972 football season. However, in the summer of 1973,
the names of all Capital Times executive personnel were
dropped from the list. Later in the summer of 1973,
Respondent's board of directors decided that this "com-
plimentary" ticket practice should be ended for the six
members of the sports department as well, the matter of
discipline not being discussed. However, owing to a misun-
derstanding between McMillin and sports editor Art Hin-
richs, Hinrichs told only two members of the sports depart-
ment (Harry Golden and Bonnie Ryan) to stop "Getting
freebies , getting tickets in their name from the university
through their jobs, getting tickets." Respondent did not
discuss this matter with the Union. Milverstedt credibly
testified that this message never reached him or sportswrit-
er Mike Lucas.
Several days prior to March 13, 1974, the State Journal,
a competing newspaper , published a partial "Fat Cat" list
stating that Lucas had received four complimentary tickets
and Milverstedt two. McMillin saw their names on the
State Journal list,5 became exceedingly angry, and directed
the members of the sports department to come to his office
on the morning of March 15. On this occasion, Hinrichs
said that he had failed to tell Lucas and Milverstedt to stop
taking tickets, although he had told Golden and Ryan. Af-
ter a pause, McMillin asked Lucas what he did with four
tickets . Lucas replied that he used them to cover the games.
McMillin asked , "don't you go to the press box?" Lucas
replied that he covered the games from out in the crowd.
McMillin asked whether he needed four seats . Lucas re-
plied "when I cover games, I lay down to cover them."
Hinrichs credibly testified that McMillin stated that Re-
spondent was "starting a new policy ," that "we were no
longer accepting freebies ," and, in effect, that a sports de-
partment employee who accepted them was "liable to lose
[his] job." Milverstedt credibly testified that McMillin said
acceptance of complimentary tickets would "in effect, .. .
put [the employees] on the payroll of the people [they were]
covering." That same day, Managing Editor Meloon sent a
memorandum to Milverstedt and (inferentially) the re-
maining members of the sports department , describing the
policy involving sports passes . This memorandum is repro-
duced in its entirety, infra, part II, B, 4.
2. Additional events leading up to the "Rules and
Guidelines"
Early in 1971, shortly after becoming Respondent's exec-
utive editor, Maraniss learned that a New York fashion in-
stitute had been defraying much or all of the transportation
and hotel expenses incurred by then society editor, Mary
Hopkins (a unit member), when covering the institute's
proceedings. Maraniss permitted her to take a forthcoming
3 See infra, fn. 7.
trip on that basis, and he and McMillin permitted her to
take a second 1971 trip on that basis, because Maraniss'
predecessor had approved them. However, at McMillin's
instance , Maraniss told her that if she regarded the pro-
ceedings as worth covering, Respondent would thereafter
"pick up the whole tab," because "it was not a very good
policy for a person going to cover an event to accept trans-
portation and . . . hotel accommodations from a group
that she was going to cover." 6 There is no direct evidence
about whether the Union knew of this incident, although
McMillin's testimony assumes such awareness . Maraniss
never suggested to Hopkins that she would likely be disci-
plined if she got expenses from a news source. Hopkins did
not attend any more fashion shows after 1972 or raise any
question with Maraniss about whether they were worth
covering. At the time of the August 1974 hearing, she occu-
pied a different post on Respondent's staff.
In November 1973, about a year after becoming manag-
ing editor, Meloon attended a meeting of the Associated
Press Managing Editors' Association, where "ethical prob-
lems" were extensively discussed; the report of the commit-
tee on professional standards was read; and Meloon was
named chairman of that committee, herein called the
APME Standards Committee.
McMillin credibly testified as follows: Prior to March
1974, management had "for many months" discussed an
overall code for the employees "but not really developing
any . . . specific plans . . . or even a specific intent." In
March 1974, Meloon told McMillin and Maraniss that if a
bar were limited to the sports department they could right-
fully and justifiably object that they were being discrimi-
nated against . Meloon "suggested a written statement .. .
about which there would be no question, that would apply
to everybody. What would apply to the manager and man-
agement team as well as the employees. And that . . . as
the board of directors indicated . . . in their action, the
management representatives would be responsible to the
board of directors . . . for observing the policy of no free-
bies. The Guild or the employees upstairs would be respon-
sible to management for . . . no freebie policy there." Af-
ter "many meetings and discussions in which we went
through an awful lot of information that Mr. Meloon had
gathered," Meloon "hacked out and put together" a writ-
ten policy which was approved, in its final form, by
Respondent's board of directors.'
6 McMillin testified that Hopkins was also receiving gifts during these
trips and "was receiving all kinds of things because of the column she
wrote"; that he discussed the matter with Meloon and Maraniss ; that Mc-
Millin suggested Maraniss take steps to put an end to this; and that Maran-
iss did so. Neither Maraniss nor Meloon testified about this matter. While I
accept McMillin 's uncorroborated testimony about his discussion with Mar-
aniss and Meloon, I find the record insufficient to warrant a finding that
Respondent thereafter forbade Hopkins to accept gifts aside from transpor-
tation and accommodations.
7 McMillin testified that he first became aware of Lucas' and
Milverstedt's continued receipt in 1973 of complimentary tickets when he
read the Capital Times' version of the "Fat Cat List" in its noon edition.
Because the Capital Times did not print this list until March 13, 1974, the
day after Respondent posted a notice on the bulletin board stating that
Respondent was formulating a policy concerning acceptance of free tickets
and "other pertinent items," counsel for the General Counsel contends that
I should discredit McMillin 's testimony that the appearance of Capital
Times sportswriters on this list was one of the considerations for the March
12 notice . However, on the basis of McMillin 's demeanor, I infer that he
THE CAPITAL TIMES COMPANY 661.
In drafting the written policy, Meloon used as a basis the
Milwaukee Journal's "Rules and Guidelines for Profession-
al Standards and Ethics," dated October 5, 1973 .1 Meloon
testified that Respondent's "Outside Activities" restrictions
differ from the Journal's "Outside Activities" restrictions
because Respondent takes the position that "we cannot
prevent people from taking part in outside activities, politi-
cal or memberships in clubs or organizations. That's their
right . . . We do feel, however that we have the right to
[require them] to tell us . . . to what organizations they
belong or what causes they're aligned with so that we know
that when they have an assignment, that they don't have
prior interest or vested interest." "
McMillin testified that management did not discuss the
matter with the Union. He also testified that Maraniss
"was very reluctant to agree to go along with a written
code. But we argued about it for many weeks and decided
that it's the only fair thing to do. That you ought to have
something that people can refer to so that they know .. .
what the rules are and . . . conduct themselves accord-
ingly."
3. Solicitation of individual employees' suggestions for
the "Rules and Guidelines"
On March 12, 1974, Managing Editor Meloon posted the
following notice on the employee bulletin board:
We are in the process of formulating a policy (a
code of ethics, if you will) concerning the acceptance
of free tickets and passes, gifts, outside activity and
employment, and other pertinent items.
We would appreciate having the opinions of staff
members in this regard . Please give your suggestions,
preferably in written memo form, to me.
Meloon did not serve the Union with a copy of this notice.
Union President Diane M. Woodstock, Respondent's head
librarian and a member of the bargaining unit, read this
notice on the bulletin board on March 12. As she was
doing so, Meloon came up to her, and she said, "I don't
was merely mistaken about which newspaper was the source of his informa-
tion.
8 These "Rules and Guidelines " were published by the Milwaukee Journal
in its newspaper . The Journal's management has also adopted the "Code of
Ethics" of Sigma Delta Chi, a society of professional journalists whose
membership includes about 17,000 members of the "working press" em-
ployed by daily and weekly newspapers, magazines , and broadcasting serv-
ices . However, there is no evidence that the Journal has ever published the
Sigma Delta Chi "Code," which , arguably, is not fully reconcilable with the
"Rules and Guidelines" (infra, part II, G, 2a). Meloon testified that when
drafting the "Rules and Guidelines ," he considered adopting the Sigma
Delta Chi "Code," which includes matters not covered by the "Rules and
Guidelines ;" decided that "there was a little bit too much to bite off at one
time"; but expected eventually to add such sections unilaterally.
9 The Journal's "Outside Activities" restrictions state, inter alia, "Journal
staff members should avoid involvement in public affairs and outside activi-
ties that would create a conflict of interest or give the impression of one .. .
Participation in politics at any level is not allowed, either for pay or as a
volunteer . Public relations and publicity work in fields outside The Journal
should be avoided." Respondent's restrictions state , inter alia, "Public rela-
tions and publicity work for other organizations should be reported to the
company. Any employee who has discovered a potential conflict of interest
by his or her participation in a group or cause must immediately report the
conflict of interest to the company."
think you can impose a code of ethics without negotiations
with the Union or have a condition of prohibition of tick-
ets without getting a contract provision." Woodstock credi-
bly testified that at that time, she thought Respondent was
preparing bargaining proposals regarding the matter. Me-
loon replied, "We'll see."
On that same day, Meloon told Union Secretary Ronald
A. McCrea, a unit member, that Respondent was going to
be considering an "ethics policy," and that Meloon hoped
that McCrea would offer his ideas.10 At about the same
time , Meloon approached unit member Ann Beckmann,
told her that he was "quite excited" by attending a recent
convention where he had picked up some ideas of codes of
ethics, and said that he thought it was time that the Capital
Times had one. Beckmann replied that she agreed "in prin-
ciple." Meloon said that he thought Beckmann had some
things to offer as to her personal feelings on the matter,
and asked for her "personal input." As a result of this con-
versation and the notice, Beckmann wrote Meloon a mem-
orandum suggesting that Respondent refuse to print club
notices from local clubs which followed a discriminatory
membership policy." Between the March 12 posting of the
notice and its May 14 removal, Meloon received only one
other response thereto.12 When Capital Times reviewer
Robert J. LaBraska told city editor Dave Zweifel that La-
Braska's job would be made more difficult because the
"Rules" limited him to one free reviewer's ticket rather
than the two he had previously received (see infra part II,
D, 3), Zweifel (concededly a member of management) re-
plied that the situation was the same for sports reporters
and referred him to the Sigma Delta Chi ethics code (infra,
part II, G, 2a).
4. Respondent's exchanges with the Union about the
sports-pass rules and the "Rules and Guidelines"
On March 20, 1974, Woodstock read in Respondent's
newspaper a column by then sports reporter Milverstedt, a
bargaining unit employee at all times material here, which
described the incident, referred to supra, part II, B, 1, when
McMillin had told Milverstedt and unit employee Lucas
that they could no longer accept complimentary tickets to
10 McCrea consulted with Union President Woodstock about this request
because "it struck [him] as being very possibly a labor matter ... and while
[they] were deliberating on what [their] position was going to be, [he] took
no action."
11 She credibly explained that she wrote this memorandum before realiz-
ing that her bargaining unit as a whole had decided that the "Rules and
Guidelines" should be a matter of negotiation.
12I infer that this paucity of comment was due at least partly to unit
employees' conviction that Respondent should deal with the Union rather
than individual employees about the matter (see the testimony of employees
McCrea and Fred Milverstedt, both of them highly sophisticated intellectu-
ally); to employee inattention to the bulletin board (Respondent 's action in
distributing the "Rules and Guidelines " to each employee personally with
his paycheck corroborates McCrea's credited testimony in this respect, and
renders questionable Meloon's discredited testimony to the contrary); and
to employees' failure to appreciate in advance the possible reach of the
"code of ethics" (Ann Beckmann, a highly intelligent reporter, was critical
of the "Rules and Guidelines" after reading them, see infra; but responded
to the posted notice by tendering an ungermane suggestion). A comparison
between the Milwaukee Journal "Rules and Guidelines" on which Respon-
dent primarily based its own version, and Respondent's version as issued,
indicates that the final version was unaffected by the only other employee
comment shown to be received by Meloon.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sports events.13 This was Woodstock's first information
that Respondent had established some rules directed to the
sports department; nor had Respondent advised her that it
was going to establish these rules on or before March 15.
At Woodstock's request, Milverstedt provided her with a
copy of the following memorandum to him from Meloon
dated March 15, 1974, describing Respondent's "policy"
as:
Free tickets or passes to sports events may not be
accepted or solicited by staff members. This includes
tickets or passes on which service charges are made.
This does not apply to events where there are spe-
cial facilities, such as press boxes, for which tickets are
not sold. A working reporter may accept a press box
ticket or pass but for coverage only. Reporters may
not solicit or receive such tickets or passes for others.
Respondent never provided Woodstock with a copy of this
document , nor is there any claim that Respondent provid-
ed this document to any other Union official.
About March 29, the Milwaukee Brewers sent Milver-
stedt, as well as other members of the staff, a season's press
pass and the opportunity to use two free tickets for each
home game. Milverstedt asked Woodstock what the situa-
tion was, and she replied that the Union was resisting the
policy. She did not advise him to disregard the sports-pass
rule.
In her capacity as union president, Woodstock sent the
following letter to Meloon dated April 8, 1974:
It has come to the attention of the Guild (your
memo 's to staff, March 12, and Fred Milverstedt,
-March 15) that the company is formulating a policy
concerning the acceptance of free tickets and passes,
gifts , outside activity and employment and other
items.
It is the position of the Guild that this is a change in
employment and working conditions which must be
settled in contract negotiations between the Guild and
the Company.
On the same date, Woodstock gave Respondent notice
of the Union's desire to reopen the current contract, which
was to expire on June 8, 1974, at the earliest.14
By letter to Woodstock dated April 19, 1974, Meloon
stated:
13 Although primarily light and humorous in tone. Milverstedt 's column
stated:
To [McMillin's] way of thinking, accepting complimentary tickets is
the same as being on the [University of Wisconsin 's] payroll. He sees it
as a detriment to a reporter 's objectivity. It implies favoritism.
In essence, I would agree.
I can't say for certain that any sportswriter I know has ever gone out
of his way to make the University look good solely on the basis of
complimentary tickets received , but I do see how a situation of reci-
procity could lead to a subtle feeling of obligaton.
When you get to accepting favors from the people you are writing
about, there might sometimes be a tendency to return the favor. The
situation is unhealthy.
14 The contract was eventually extended to December 8, 1974 (i.e., to
more than 3 months after the hearing) in accordance with its provisions that
"In the event there is no agreement between the Company and the Guild
following expiration of this contract , the Company agrees to extend this
contract until the new contract is agreed upon, such period not to exceed six
months except by mutual agreement."
I was told today by a member of the sports staff
that the Guild has informed him he does not have to
follow the written company policy concerning free
tickets or passes for sports events.
Each member of the sports staff was given a copy of
the written policy, and let me assure you we intend to
enforce it. If there is any violation the offender will be
disciplined by suspension. Multiple violations will re-
sult in discharge.
If you doubt our authority to enforce the written
policy we would welcome a test case.
By letter also dated April 19, 1974, and drafted in re-
sponse to Meloon's letter of that date, Woodstock replied:
This is to reaffirm the Guild 's position that the
Company's new written policy concerning free tickets
or passes is a change in employment and working con-
ditions which must be negotiated in collective bargain-
ing.
About April 21, Meloon approached Woodstock at her
desk and stated, "Why don't you tell Milverstedt to take
some free tickets? Tell us about it so we can fire him. We'd
like to test this." Woodstock replied, "I can't do that. I
can't have anybody going looking for a fight." Meloon re-
plied, "oh, yeah, I know." Woodstock credibly testified
that on this occasion she was not being "friendly" with
Meloon, that "I expect he was just trying to make me an-
gry," and that "I was arguing the issue with him." Meloon
testified for Respondent, but was not asked about this con-
versation. Meloon did not state during this conversation
that he was willing to bargain about the code of ethics.
When Woodstock gave Milverstedt an account of this
exchange, he asked what his rights would be if he tested the
case. She replied that the Union could get him unemploy-
ment compensation. Milverstedt became "a bit upset,"
called his sports editor to find out whether Respondent
wanted to fire him, and then remarked to Meloon, "I hear
you want to test this case so you can can me." Meloon
admitted that he might have said that, but indicated that
this was not really his intention. Milverstedt eventually de-
cided that he did not want to test the case, partly because
he did not find the prospect of unemployment compensa-
tion particularly appealing, but mostly because he had nev-
er cared at all about complimentary tickets and, indeed,
thought that he would be placed in a somewhat comprom-
ising situation by frequently using his contacts as a sports
writer to obtain tickets for friends at box-office prices.
By letter to Woodstock dated April 30, 1974, Meloon
stated:
Twice now you have sent me letters stating that the
Guild's position on the company's written policy on
free tickets and passes is that it "is a change in em-
ployment and working conditions which must be ne-
gotiated in collective bargaining."
I think you might be confused as to what the policy
provides.
The company policy does not affect the reporters
who cover games in the press box. And the company
will continue to pay necessary expenses. It does stop
THE CAPITAL TIMES COMPANY
the practice of staff members getting free tickets or
passes which they use strictly for their personal use or
which they give to friends or sell.
These tickets and passes have a monetary value and
their acceptance is the same thing as getting a gift
from their news sources. Such acceptance certainly
casts a cloud over their credibility and objectivity.
In a previous letter (April 19) I asked you if it was
true that you or the Guild had told members of the
sports staff they did not have to follow the written
policy. I am asking you again if you did so advise
them.
Along the same line, I asked you earlier for a meet-
ing to discuss the ethical questions involved in the so-
licitation by Guild members of tickets to the Page One
Ball from news sources.
We have not yet received your answer.
This is another very serious question regarding the
relations of staff members with their news sources. I
am sure that some of your members see the ethical
questions involved, and I hope you will agree to meet
with us on this subject.15
The Union never did advise Meloon whether or not it
had told members of the sports staff not to follow the writ-
ten policy about free tickets. There is no evidence, howev-
er, that the Union ever gave such instructions, and
Meloon's testimony for Respondent does not explain why
he advanced this allegation.
5. Promulgation of the "Rules and Guidelines," and
subsequent events
On May 17, 1974, Respondent gave each member of the
bargaining unit, along with his paycheck, a document, re-
produced infra (part II, C) in its entirety, entitled, "Rules
and Guidelines for Professional Standards and Ethics." At-
tached was the following statement signed by McMillin:
The attached policy has been approved by the
Board of Directors of the Capital Times Company
and is effective immediately for all employees.
On the same day, Respondent advised the Union that Re-
spondent "has now adopted" a "written policy concerning
free tickets, gifts, outside activity, etc.," that "The opinions
of staff members were requested," and that the policy "is
effective immediately for all employees." Respondent had
never discussed the "Rules and Guidelines" with the
Union. After receiving this May 17 letter, the Union ad-
vised Respondent, by letter also dated May 17:
15 The "Page One Ball" is a dinner dance sponsored by the Union, at
which the Union gives awards to community residents who make otherwise
unrecognized contributions to civic welfare . The Union members sell $7.50
tickets to "people from labor, management , politicians , just for a fun eve-
ning." The Union was then engaged in a dispute with Respondent about
complaints which Respondent allegedly received from news contacts, whose
identity the Union was unable to ascertain , regarding techniques allegedly
used by unit employees to sell tickets . Counsel for the General Counsel
disavowed any contention that rules regarding solicitation by union mem-
bers of tickets to the Page One Ball are mandatory subjects of collective
bargaining . Respondent's counsel suggested that if the rules at issue herein
are mandatory subjects of collective bargaining, the Page One Ball matter
was likewise a mandatory subject . I need not and do not decide this issue.
663
It is the Guild's position that the Company's new
Rules and Guidelines for Professional Standards and
Ethics put into effect today are a mandatory subject
for bargaining.
If not assured that the Company accepts this posi-
tion , the Guild will file a charge with the National
Labor Relations Board.
About May 19, Woodstock told Meloon that the Union
was "seriously considering filing an unfair labor practice
charge, that the company's ethics policy was vague and
ambiguous, and we wanted to negotiate on it." Meloon
stated that "it would take a court order to get the company
to the bargaining table on this." By letter to Woodstock
dated May 24, 1974, Meloon stated:
The written policy covering free tickets, gifts, etc.
was formulated as a company policy necessary to pro-
tect the integrity of the Capital Times newspaper.
Company policy is not a subject for collective bar-
gaining.
There are elements, however, in the section dealing
with outside employment that go beyond the preserva-
tion of the integrity of the product and are therefore
subject to negotiation.
We will be pleased to meet with you as soon as
possible in an attempt to resolve any differences there
may be in connection with that section.
The record will show that the company has repeat-
edly sought suggestions from employees and from the
Guild on the subject of ethics. Any suggestions you
now care to make on this subject will be welcome.
Respondent's counsel stated at the hearing that the "ele-
ments . . . subject to negotiations" consisted of the last
portion of the "Rules and Guidelines" under the heading
"Outside Employment." By letter to Meloon dated June 5,
1974, Woodstock stated:
Every item in the company's "ethics code" is
backed by an ultimate threat of dismissal and there-
fore every item in the code represents a unilateral ex-
pansion of contract language on terms of dismissal.
Therefore, it is impossible for the Guild to consider
only "elements" of the code, as you suggest . The entire
code must be negotiated in bargaining.
The Guild notes the company's belligerence in at-
tempting to evade lawful procedures for revising the
contract. Its refusal to acknowledge the mandatory
bargaining nature of these issues, expressed to the
Guild in letters and in your remark to me that "it will
take a court order" to force the company to bargain,
are open provocations.
Therefore, the Guild has voted to file charges
against the company with the National Labor Rela-
tions Board.
The company has cheaply characterized the efforts
of the Guild to protect its members against a vague
and menacing set of conditions as "unconstructive."
We believe it is highly constructive to honor legal
agreements, and we are dismayed that an employer
must be forced to understand what a legal agreement
means.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 6 , 1974, the Union and Respondent began ne-
gotiations for a new contract . Meloon was in charge of the
bargaining for Respondent . At the first meeting, the Union
introduced its proposals for a new contract , and the parties
briefly discussed each item . The Union proposed , inter alia,
that the new agreement be retroactively effective as of the
expiration date of the old contract , 16 as had been the prac-
tice followed during prior negotiations . Woodstock asked
Meloon "about retroactivity since our contract was expir-
ing." Meloon replied that Respondent could not agree to it.
Woodstock asked Meloon why Respondent was departing
from past practice . Meloon said , "well, it's a negotiable
item just like some people say the code of ethics is a negoti-
able item ." During this initial discussion of the Union's
contract proposal , Meloon remarked , "I see you haven't
got a code of ethics provision in the contract. " Woodstock
said that she thought Respondent would be coming in with
a proposal on ethics . 17 The Union , 4 days later , filed the
charge herein , alleging that Respondent had "refused to
bargain collectively with [the Union ] by unilaterally imple-
menting `Rules and Guidelines for Professional Ethics' and
refusing to bargain in good faith over said change."
Editor-Publisher McMillin credibly testified to a belief
that because of the filing of the charge and the complaint,
Respondent had not put the "Rules and Guidelines" into
effect . However , Managing Editor Meloon 's conduct and
testimony show that he believed otherwise . I find that they
were in effect at all times after May 16, 1974, at least to the
significant extent that Meloon had the power to enforce
them.
6. The parties' 1974 contract negotiations
Between June 6, 1974, and the opening of the instant
hearing on August 27, 1974, the parties held eight negotiat-
ing sessions without reaching a complete agreement. At the
last of these sessions , on August 22, Woodstock asked Re-
spondent if it would have any proposals on a code of eth-
ics. Meloon replied no, that Respondent already had a
code of ethics . Woodstock also asked Respondent if it
would have a counterproposal in the "integrity area" be-
cause the parties had not had "any real bargaining in that
area ." Respondent replied no, that it felt the existing integ-
rity clause was the best in the country . The Union's con-
tract proposal included the following:
ARTICLE XXII-INTEGRITY
AN EMPLOYEE SHALL NOT BE REQUIRED TO PERFORM, OVER
HIS PROTEST, ANY PRACTICE WHICH IN HIS JUDGMENT COM-
PROMISES HIS INTEGRITY. An employee shall not be re-
16 This was the practical effect of the Union 's proposal that the new
agreement be effective as of June 8, 1974 , the expiration date of the old
agreement (see supra. In. 14, and attached text ). Because the June 8 date was
only 2 days after this first negotiating session and the Union's proposed
contract differed from the prior contract in many respects. the parties could
not have expected to reach a complete agreement before June 8. 1974.
17 The Union had in fact prepared a counterproposal on this matter,
which counterproposal is not in the record but was based on the Guild's
code of ethics , draft proposed revisions therein , and certain Guild resolu-
tions. See infra part 11, G . 3. However , in view of Respondent's failure to
tender a proposed contract clause on the matter , the Union never tendered
that or any other counterproposal.
quired to use his position as an employee for any pur-
pose other than performing the duties of his position.
An employee 's byline or credit line shall not be used
over his protest . SUBSTANTIVE CHANGES IN MATERIAL SUB-
MITTED SHALL BE BROUGHT TO THE EMPLOYEE 'S ATTENTION
BEFORE PUBLICATION . AN EMPLOYEE SHALL NOT BE REQUIRED
TO WRITE, PROCESS OR PREPARE ANYTHING FOR PUBLICATION
IN SUCH A WAY AS TO DISTORT ANY FACTS OR TO CREATE AN
IMPRESSION WHICH THE EMPLOYEE KNOWS TO BE FALSE. By-
lines and picture credits and cartoon credit lines shall
identify employees as staff members . Byline and pic-
ture and cartoon credit lines shall not include the
words staff and/or `Capital Times ' unless such article,
pictures or cartoons were actually produced by staff
members.
2. IF A QUESTION ARISES AS TO THE ACCURACY OF PRINTED MA-
TERIAL, NO CORRECTION OR RETRACTION OF THAT MATERIAL
SHALL BE PRINTED WITHOUT PRIOR CONSULTATION WITH THE
EMPLOYEE CONCERNED . AN EMPLOYEE WHOSE WORK OR PERSON
IS MENTIONED IN A LETTER TO THE EDITOR OR AN EDITORIAL OR
COLUMN BY COMPANY MANAGEMENT SHALL BE INFORMED OF
SUCH LETTER IMMEDIATELY AND SHALL HAVE THE RIGHT TO RE-
SPOND TO SUCH LETTER SIMULTANEOUSLY ON THE PAGE ON
WHICH IT IS PUBLISHED.
3. AN EMPLOYEE MAY REFUSE WITHOUT PENALTY OR PREJU-
DICE; TO GIVE UP CUSTODY OF OR DISCLOSE ANY KNOWLEDGE,
INFORMATION , NOTES , RECORDS, DOCUMENTS , FILMS, PHO-
TOGRAPHS , OR TAPES OR THE SOURCE THEREOF WHICH RELATE
TO NEWS , COMMENTARY , ADVERTISING THE ESTABLISHMENT
AND MAINTENANCE OF HIS SOURCES , IN CONNECTION WITH
HIS EMPLOYMENT . An employee also may refuse, WITH-
OUT PENALTY OR PREJUDICE , to authenticate any material.
THE EMPLOYER SHALL NOT GIVE UP CUSTODY OR DISCLOSE
ANY OF THE ABOVE WITHOUT CONSENT OF THE EMPLOYEE.
4. The Company shall notify the employee concerned,
and the Guild , of any demand on the Company for
such surrender or disclosure or authentication.
5. IF THE EMPLOYEE IS PROCEEDED AGAINST UNDER LAW ON
ACCOUNT OF HIS REFUSAL TO SURRENDER, OR DISCLOSE, OR
AUTHENTICATE , THE EMPLOYER SHALL MOVE TO JOIN AS A
PARTY TO SUCH PROCEEDING ; SHALL MEET ALL EXPENSES IN-
CURRED BY THE EMPLOYEE, INCLUDING FEES AND EXPENSES
OF LEGAL COUNSEL RETAINED BY THE EMPLOYEE, AND SHALL
INDEMNIFY SUCH EMPLOYEE AGAINST ANY MONETARY LOSS
INCLUDING , BUT NOT LIMITED TO FINES, DAMAGES OR LOSS OF
PAY.
6. IN NO CASE SHALL AN EMPLOYEE SUFFER LOSS OF WAGES,
EMPLOYEE STATUS, OR BENEFITS UNDER THIS CONTRACT AS A
RESULT OF HIS REFUSAL TO SURRENDER , DISCLOSE OR AU-
THENTICATE.
In general, the capitalized material consists of material
added to the "Integrity Clause" in the prior contract, while
the remaining material had been included therein.18
18 However, the second capitalized sentence constituted a proposed sub-
stitute for the existing provision, "In the event a byline or credit line is to be
used , substantive changes shall be brought to the employee's attention be-
fore publication , where possible ." Further, par. 3 of the Union 's proposal
constituted a proposed substitute for the existing par. 2, "An employee may
refuse to authenticate any published material except to officers or execu-
tives of the Company . The Company agrees to support an employee who
refuses to give up the custody of or to disclose any knowledge, information,
notes. records , documents , films, photographs or tapes or the source thereof
which relates to news, commentary , advertising or the establishment and
THE CAPITAL TIMES COMPANY 665
C. Respondent's Position About Whether it Refused To
Bargain; the Terms of the "Rules and Guidelines"
Respondent's answer dated August 2, 1974, and its
amended answer dated August 23, 1974, both denied that
the Union ever asked Respondent to meet and confer with
respect to the formulation and implementation of the
"Rules and Guidelines." At the outset of the hearing,
Respondent's counsel stated that although Respondent
was willing to "consider" Union "suggestions" on these
matters , Respondent was not willing to bargain about these
subjects to the extent that Section 8(a)(5) would require it
to bargain if they were a mandatory subject of collective
bargaining. When testifying on August 29, 1974, Meloon
stated that he would not have bargained with the Union
with respect to the "Rules and Guidelines" if he had re-
ceived a bargaining demand, but that he had never re-
ceived such a demand. He adhered to this latter testimony
after being requested to read Woodstock's letters to Re-
spondent dated April 8, May 17,19 and June 5, 1974. There-
upon, union counsel asked Meloon to bargain with respect
to the "Rules and Guidelines," and Meloon refused.
Respondent's counsel conceded on the record that at that
point the Union had sufficiently demanded bargaining and
Respondent had refused.
As previously noted, Meloon's May 24 letter did con-
cede that certain "elements" of the "outside employment"
section were subject to negotiation , and offered to meet
with the Union regarding that section; but the Union's
June 5 letter rejected this offer on the ground that the en-
tire code represented a unilateral expansion of the terms-
of-dismissal contract language and , therefore , would have
to be bargained about in toto. During the hearing,
Respondent's counsel conceded that all the terms in the
section entitled "Outside Employment" are mandatory
subjects of collective bargaining. Accordingly, unless spe-
cifically stated otherwise, the term "Rules and Guidelines"
as used hereafter will not include the "Outside Employ-
ment" section . The "Rules and Guidelines" (including the
"Outside Employment" section) distributed to all employ-
ees on May 16, 1974, read as follows:
RULES AND GUIDELINES
FOR PROFESSIONAL STANDARDS AND ETHICS
employe and the further elimination of the appearance
of any conflict of interests.
The company is confident that all employes will rec-
ognize the need for this policy. Any violation will re-
sult in a suspension ; multiple infractions will result in
discharge.
The following rules and guidelines apply:
Free Tickets and Passes
Free tickets and/or passes to sports events may not
be accepted or solicited by employes. This includes
tickets or passes on which service charges are made.
This does not apply to events where there are spe-
cial facilities, such as press boxes, for which tickets are
not sold. A working reporter may accept a press box
ticket or pass, but for coverage only. Employes may
not solicit or receive such tickets or passes for others.
Free tickets or passes to movies, theatrical produc-
tions, circuses, or other entertainments may not be ac-
cepted or solicited by employes, with the exception of
one for a reviewer.
Working reporters may accept passes to events
where there are special facilities-such as a press ta-
ble-for which tickets are not sold.
An employee who needs to attend an event for
background purposes should buy a ticket and turn in
an expense voucher.
Season passes to movies may not be accepted. Such
passes, if received unsolicited, should be returned to
the sender.
Gifts and Gratuities
Gifts of insignificant value-such as a calendar,
pencil, key chain, etc.-may be accepted if it would be
awkward to refuse or return them. All other gifts
should be declined.
A gift that exceeds token value should be returned
promptly with an explanation that it is against compa-
ny policy. If it is impractical to return it, the company
will donate it to a charity.
Travel
The Capital Times Company
The rules and guidelines apply to all employes of
the company. They have as their main purpose the
elimination of any possible conflict of interest by any
maintenance of his sources, in connection with his employment ." In addi-
tion , paragraphs 5 and 6 of the Union's proposal constituted a proposed
substitute for the existing paragraphs 4 and 5, which read:
4. If the employee is proceeded against under the law, the Company
agrees to provide legal counsel for the employee and to pay the legal
fees and expenses if all provisions of Section 2 are met . The Company
shall indemnify such employee against any monetary loss including but
not limited to fines, damages or loss of pay, provided the employee
heeds legal advice given by counsel provided by the Company.
5. The employee shall suffer no loss under the contract as a result of a
refusal to surrender , disclose or authenticate information to anyone
other than Company officers or executives.
19 Although McMillin is the addressee named in the May 17 letter, Me-
loon admittedly saw it when it was received.
Junkets, free trips and reduced rate or subsidized
travel may not be accepted by any employe.
Staff members on assignment may travel on char-
tered planes (such as with a sports team or a political
candidate) and take advantage of hotel booking or
other services offered by a news source provided that
the team or organization bills the company for the full
cost involved.
Use of Merchandise or Products
Employes may not accept the free use of reduced
rate purchase of merchandise or products for personal
pleasure when such an offer involves the employe's
newspaper position. The only exception is the use of a
product for a short time to evaluate it for news or
feature stories or for purchase for the company. Any
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extended or regular use of products for these purposes
is not allowed.
Books, Records
Books , phonograph records or tapes that are sup-
plied for review or promotion will be turned over to
libraries or deserving organizations when the news de-
partment is finished with them . This includes books,
records and tapes that are not reviewed as well as
those that are. No person should keep such books,
records or tapes for personal use.
Memberships
Free or reduced rate memberships in private clubs
or similar organizations should not be accepted.
Where it is deemed necessary that an employe belong
to such a club , the company will pay for the member-
ship.
Entertainment
Whenever possible , employes should pay for meals
and drinks when on company business . Dinner or
cocktail parties are allowed if the event relates to news
coverage or if it is valuable for background . "Free-
load affairs" such as "press parties " that have little or
nothing to do with news coverage should be avoided.
Outside Activities
Public relations and publicity work for other organi-
zations should be reported to the company.
Any employe who has discovered a potential con-
flict of interest by his or her participation in a group or
cause must immediately report the conflict of interest
to the company.
Employes should not use their position on the paper
to their advantage in commercial transactions or for
other personal gain . This specifically prohibits such
practices as the use of company stationery for person-
al dealings.
Outside Employment
Employes may take an outside job provided that it
does not interfere with their duties for the company
and there is no conflict of interest involved.
No employe may work for a newspaper or other
publication or for a commerical radio or television sta-
tion whose principal circulation or audience is in The
Capital Times circulation area without specific ap-
proval from the company. "Stringing" is allowed ex-
cept for competing media.
Occasional appearances on television or radio pan-
els or interview shows are allowed with advance per-
mission of the company and consistent with the other
rules above.
Free lance writing generally is permitted , except for
competing media.
For purposes of convenience , I shall refer to as the "free-
bie" rules the portions of the "Rules and Guidelines" apart
from the provisions headed "Outside Activities ." My refer-
ences to the "Outside Activities" rules do not include the
last paragraph under that heading , which forbids employ-
ees to use their position on the paper to their advantage in
commercial transactions or for other personal gain; this
paragraph will be the "commercial-transaction" rule. The
term "Respondent 's rules" will be used to refer to the
"Rules and Guidelines" (other than the provisions headed
"Outside Employment") plus the sports-pass rule.
D. Additional Testimony by Union Members about the
Effect on Them of the "Rules and Guidelines " and about
the Union 's Proper Role in Connection Therewith
1. Copy editor and "Gay Liberation" activist McCrea
Copy Editor McCrea , a unit member who is the Union's
secretary , has duties usually associated with the job title
"news editor ." He is in charge of the front page and of wire
(i.e., national and international news) copy . He makes
some news decisions on international and national news,
lays out pages , and occasionally performs reporting work.
Twice a day he confers with management supervision
about which stories are to go on the front page . He has the
power to determine whether or not to publish articles
about the "Gay Liberation" movement to improve the so-
cial and legal position of homosexuals.
McCrea credibly testified that he feared that the "Rules
and Guidelines" imperiled his job if he continued his parti-
cipation (already well known to his superiors and cowork-
ers) in the local "Gay Liberation" movement, because such
activity "is certainly potential conflict of interest if any
political activity is," and because of the "Rules and Guide-
lines" "vague" prefatory statement that their "main pur-
pose" is "the elimination of any possible conflict of interest
by any employee and the further elimination of the appear-
ance of any conflict of interest." McCrea further testified
that the "Outside Activities" paragraph of the "Rules and
Guidelines," which paragraph requires an employee to
report to Respondent any "potential conflict of interest by
his . . . participation in a group or cause," merely requires
him to report his participation in the "Gay Liberation"
movement, and does not forbid him to continue such activ-
ity.
In addition , McCrea credibly testified that this reporting
requirement caused him to feel a "general loss . . . of mo-
rale and security ," and "It's also a rather large compromise
with my understanding of what the constitution protects
me in . . . none of that . . . feels good as an employee. My
motivation as an employee . . . has been considerably un-
dermined by . . . the whole notion ." McCrea further credi-
bly testified that after Respondent distributed the "Rules
and Guidelines ," his fellow employees made many "bitter
comments" and complained that "their moral choice was
being co-opted, removed , ripped off , that they really hadn't
... any meaningful say in putting together these rules.
That they were vague , menacing, and could only . . . be a
tool for harassment. " Also, McCrea credibly testified, "I
really don't have an awful lot of quarrel with the content of
[the Rules and Guidelines ]. I think most of this is accept-
able to me and to my co-workers with some . . . sharp-
ening up . . . [T]he objection is . . . that we want negotia-
THE CAPITAL TIMES COMPANY
tion on it, that we want a say over rules that are going to
bind us. And by say, we mean a say where there's demo-
cratic practice." He further credibly testified that assuming
he agreed with the substance of such "Rules," he nonethe-
less wanted them included in the bargaining agreement be-
cause:
... I would have had first in the process of ham-
mering it out . . . some real input and not simply sug-
gestions which might be accepted or rejected. I mean,
I really want . . . our power felt to be able to .. .
have a meaningful voice here. And beyond that, it
would . . . give all of us a sense of pride and security
to have this part of the contract. As it exists, it seems
to me-if it can be written by management at any
time, it can then be rewritten by management at any
time . And we don't want a footnote to our contract on
firing language that's as capricious as that. And we
want some control over what it says. And if it is sub-
ject to change, what it's going to say when it changes
.... The largest, then, of course, the whole business
of . . . being able to grieve and arbitrate this lan-
guage. I'm gathering that there is some concession on
this [see infra, part II, H, 1, d(2)], but I think that's
really quite vital for us to know. It's vital for me to
know for my own sense of security.
My father was purged from the newspaper [not the
Capital Times] after 30 years' work there because he
disagreed with the racist editorial [policy?] of the pub-
lisher . And I think for my own sense of security and
my own experience, . . . I want that in contract lan-
guage that's enforceable under law and not by fiat.
McCrea further credibly testified to a belief that it was a
good thing to have staff understanding of what policy may
be; that with a small staff like Respondent's, informal un-
derstandings and even ad hoc decisions are as useful as
formalized ethics codes; but that he had no objections to a
formal contractual ethics code. McCrea further credibly
testified to a belief that advising the public of the existence
of such a code would serve little purpose because "the pub-
lic judges us by our performance and not by declarations."
2. Advocacy journalist and feminist Beckmann
The Capital Times does quite a bit of "advocacy journal-
ism," which attempts to pose a certain viewpoint in specific
areas . The trade term "advocacy journalism" necessarily
implies that the reporter engaged therein has personal
views on the matter; but such views may have come from
or contributed to unusually wide information, or unusually
good personal connections, possessed in that area by the
reporter. Union Member Beckmann , a unit employee who
is an assignment reporter for Respondent's feature section,
is a feminist who is frequent given "advocacy journal-
ism" assignments in that field. ° When asked the impact of
20 As discussed infra, part II, D, 3, reporter LaBraska and others did
"advocacy journalism" in the field of "left-wing or counterculture political
and other groups." I infer from McCrea's testimony that he wrote at least
one "advocacy journalism" series partly about homosexual life styles. Edi-
tor-Publisher McMillin received such a "fierce public reaction to this series
that he arranged for an unlisted home telephone number.
667
the "Rules and Guidelines" on her as a newsperson, Beck-
mann credibly testified to a belief that "when you talk
about any employee discovering a potential conflict of in-
terest by participation in a group or cause, . . . the whole
notion and the whole philosophy behind advocacy journal-
ism . . . is a conflict by definition. This is not the Associat-
ed Press. This is not something that really is attempting to
be unbiased. That is, the product . . . is attempting to pose
a certain viewpoint in specific areas. And I think that it is
a conflict for me as a feminist to be covering feminist activ-
ities in light of this. And yet I don't really believe that it is
a conflict for me personally to be doing that."
In addition, Beckmann credibly testified to a belief that
her wide friendship in the Madison area enabled her to be
a better reporter for the Capital Times. Also, she credibly
testified that the "Rules and Guidelines" created a ques-
tion in her mind about whether she could attend parties or
go out to eat with many of her friends, because "a lot of my
friends are news sources and do give me information which
later turns into a story. A lot of my friends are potential
news sources.... I date a lot of my news sources." 21 Fur-
ther, Beckmann credibly testified to a belief that the "very
presence of the code" has an impact on the way she does
her job as a news person "in that it is leaving me not so free
to make decisions on my own as to what I view as a con-
flict of interest, which I view is a part of my job. I view a
trust between myself and my management as a part of my
job." However, she also credibly testified to a belief that
her news sources would not care one way or the other
whether she was abiding by the code.
Beckmann further credibly testified to a belief that she
was "obviously" not abiding by the "Rules and Guide-
lines" because she was still serving as a member of the city
affirmative action committee, to which she had accepted a
1973 appointment after her superiors discouraged but did
not actually prohibit her from doing so. Beckmann credi-
bly testified to a belief that her service on the committee,
which is appointed by the mayor to further the city's em-
ployment of women and minorities, "by an interpretation
would be a conflict" under the "Rules." 22 Beckmann also
credibly testified to a belief that she had violated the
"Rules" restrictions on acceptance of gifts by accepting
an 18-inch tray (either stainless steel or a cheap grade of
silver plate), which was engraved, "God bless you and best
wishes from Noah's Ark Diner," and which had been
brought to her in the office by the diner's Turkish owner in
appreciation of her article about his diner. She credibly
testified that because of language and cultural differences
between her and the owner, she felt unable to reject the
tray gracefully; that she had no use for it; and that the
engraving made the tray useless to either the owner or a
charity. In addition, Beckmann credibly testified that the
21 Beckmann credibly testified that some of her friends are feminists and
others "put me on to different areas ... I've been in Madison for about
eight years, and I've developed all different kinds of friends. And so I have
all different sorts of news sources" and that she could not determine in
advance whether a particular person was going to be a news source. She
added that the preceding week, she had attended on her own time a feminist
picnic where she obtained a great deal of useful background information.
22 Beckmann credibly testified that she tries to "stay clear" of covering
news about city affirmative action.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Rules and Guidelines" created a question in her mind
about whether she could continue to accept free tickets
which she had been receiving from a friend , who heads a
local theater group , since long before Beckmann started to
work for Respondent23
3. Reviewer and advocacy journalist LaBraska
Unit employee LaBraska , a union member , reviews mov-
ies, plays, symphonies, rock concerts, jazz concerts, pop
concerts , and art exhibits . Before the promulgation of the
"Rules and Guidelines," the Capital Times accepted two
free tickets from the promoter of each performance to be
reviewed, and gave both tickets to LaBraska. Since the pro-
mulgation of the "Rules," the Capital Times has accepted
and given him only one free ticket.
LaBraska credibly testified that he feels he can perform
his reviewing function more effectively if he brings a com-
panion to the performance . He explained that if he attends
alone he feels less open to the performance , and less of a
participant in the audience experience than are the sub-
stantial majority of the audience who have come with
others . In addition , he testified that where he was attending
as a reviewer a performance in an area where he regarded
himself as an expert, a less knowledgeable companion
helped to overcome the "overly satiric" point of view
which limits an expert's ability to write a review suitable
for a mass-circulation newspaper . He further testified that
on the not infrequent occasions when he is expected to
review something in which he has no particular interest, a
companion who is interested "enhances the experience"
and makes it more accessible . He also explained that a
nonexpert companion whom he knew well enough for the
establishment of a mutual frame of reference and a similar
level of understanding could improve the quality of his
review by providing details and perceptions from the
companion's own experience . LaBraska stated , however,
that a companion was not a necessity-"I've been review-
ing since the ethics code came out, generally alone; and
I'm still able to do my job." LaBraska, who is 31 years old,
credibly testified that his selected companion for a perfor-
mance he reviewed was "frequently" a friend but "surpris-
ingly seldom" a girl friend . LaBraska testified that the
"Rules and Guidelines" do allow for his bringing an expert
with him in an area where he was clearly uninformed, but
he credibly testified that he could think of no area which
he reviewed in which he was clearly uninformed 24 He fur-
27 Beckmann also testified that the "Rules and Guidelines " "raises the
point whether I can receive any kind of gifts at all because . . . it says all
other gifts should be declined . . . . I regard this as advocacy rather than
testimony . I do not believe that a newspaper reporter as intelligent as she
seriously believed that Respondent's "Rules and Guidelines," however
vague, were intended to restrict acceptance of parental gratuities.
Beckmann 's testimony about confusion arising from her February 1974
television appearance as an interviewer appears relevant only to the "Out-
side Employment" provisions , which concededly constitute mandatory bar-
gaining subjects.
24 When Respondent posted the March 1974 memorandum asking for
staff comments about a "code of ethics," LaBraska expressed the foregoing
difficulties to City Editor David Zweifel , admittedly a member of manage-
ment. Zweifel replied that "it's the same situation for sports reporters."
After hearing LaBraska's testimony , Editor-Publisher McMillin testified
that LaBraska should discuss with his superiors, Meloon and Maraniss, the
advantages of the newspaper's compensating him for the cost of a
ther credibly testified that in reviewing a performance, he
was not conscious of the fact that neither he nor his em-
ployer paid for his ticket, and that it "didn't affect me to
receive two tickets." Even if LaBraska was willing to pay
for a companion's ticket, he could not get one for a sold-
out performance, probably could not get one next to the
seat called for by his own free ticket, and probably would
be sitting in a less desirable location if he turned in his
initially assigned free ticket and obtained two seats togeth-
er, one of which he paid for.
Prior to the promulgation of the "Rules," but not af-
terward, LaBraska could take advantage of local movie
theaters' willingness to "wave him in"-that is, permit him
to go in free. He credibly testified that seeing these movies
was "partly a function of what I did. It serves what I did. It
informs me. I don't understand whether in off hours I am
entitled to write off expenses during my non -working time.
It's . . . a vague area to me." He further testified that the
loss of this "wave-in" privilege "may have some small inhi-
bition" on his ability to practice his profession, "but I cer-
tainly won't defend that as any kind of valid asset that I'm
entitled to." In addition, he testified that he did not regard
"wave-in" privileges as part of his wages, that these privi-
leges "obviously" resulted from the fact that he works for
the Capital Times, and that he "guess[ed]" these privileges
were not part of his compensation as an employee of Re-
spondent.
LaBraska and other, unidentified employees in the unit
have also been given "advocacy journalism" assignments
in connection with "left-wing or counterculture political
and other groups." LaBraska credibly testified that he
gathered information for such coverage from acquain-
tances who are members of or sympathize with such
groups, and that such contacts sometimes enabled him to
bring stories into the paper. He credibly testified that when
sitting in on discussions with these acquaintances, "I'm
never sure if some people are buying me drinks or who is
being bought off kind of thing." He also credibly testified
that he obtains professionally useful information from peo-
ple whose plays or creative art he reviews and whom he
associates and eats dinner with.
LaBraska credibly testified that he wants a code of ethics
into which he "had substantial input, not just on a level of
suggestive information, but on the level of the actual deter-
mination of what the content will be . . . [H]ow such a
thing should be set up . . . or whether the items of it were
subject of negotiation, I have no concern. Ideally for me it
would seem an ethics code could be drawn up with, say, a
committee of three members of staff , three members of
management , and some outside informed journalistic im-
partial party to determine . . . what that was, with the abil-
ity to review both management and staff for conflict of
interest problems . . . . [I]t's the absence of having any
strength . . . to determine exactly what it says that offends
me the most." He credibly testified that he personally does
companion's ticket, that the issue presented would be the reasonableness of
the expense request. and that "I don't think they'll be unreasonable about it
... we don't want the situation abused." However, Managing Editor Me-
loon, who also heard LaBraska testify, testified, "As for the second tickets.
I didn 't see any necessity for the reviewer to take someone else [along]. The
sports writers don't take their girl friends along or friends along."
THE CAPITAL TIMES COMPANY 669
not care whether an "ethics code" so drawn up is part of a
labor contract.
4. Columnist and Sports Writer Milverstedt
Until shortly before the hearing, unit employee Milver-
stedt , a union member , spent most of his time writing a
column which sought to relate sports to society. He credi-
bly testified that in connection with this column, he some-
times used free tickets to attend as many as five sports
events in 2 days, and that he thereby obtained a "very
broad background which enhance[d his] performance the
next week" even though he might actually write about
none or only one or two of such events. He further testi-
fied, "if I can't use those tickets to obtain this background,
I am limited. Now if . . . the company were paying for all
tickets, I could request a ticket to each of these five events.
But if I only ended up writing on one or two of them, it
would be a waste of the company's money." 25 Milverstedt,
who at the time of the hearing was writing a column about
his "observations and perspectives on society," also credi-
bly testified to an apprehension that under the "Rules" as
promulgated, he might be considered guilty of misconduct
by reason of his social contacts (e.g., buying drinks for and
receiving drinks from the town mayor at a bar) because
"Madison . . . to me is a very small town" 26 and because
"everybody is a potential news source." Additionally, he
credibly expressed resentment at the possibility of being
disciplined for breach of the "Rules and Guidelines," be-
cause "I do accept the Guild as my bargaining agent and
because the Guild contract does state that changes in
working conditions must be negotiatied, I feel that there
was not a proper solicitation of staff input into this code
because they . . . circumvented the Guild. Unilaterally
presented it, put it in force. Just as they could unilaterally
change it at their whim without our input." Further, he
credibly testified:
But most personally, and this to me is the crux of
the thing, I resent-I resent the imposition of ethics
where-you all may be ethical men. I resent your
playing God and telling me what my ethics are, just
dropping them on my head, particularly in a field like
journalism, because I think we are ethical people by
and large. Otherwise we wouldn't be in there. And I
assume when you hired me, when Elliott Maraniss
came to me back in '70 or '71, that he assumed that I
had a certain degree of integrity and that I knew what
I could do and wouldn't do. And I think that has been
borne out in my performance these last three years.
And suddenly you tell me that you're going to tell me
what my ethics are. You're going to tell me what my
ethics are. You're playing God particularly in our
field. And we sit here and talk about the right of free-
25 He sarcastically added that such purchases "wouldn't be a cost cutting
measure at all." Editor-Publisher McMillin testified that Maraniss or Me-
loon would approve an expense -account claim for tickets to games attended
for background purposes but not written about. See, however, supra, fn. 24.
Maraniss and Meloon were not asked about this matter.
26 1ts 1970 population was about 173,000.
dom of press. And yet you are going to tell me what
my ethics are.
I'll accept your ethics if you give me an input. And
I would hope that when we're all done with this thing,
that we could sit down, you people and us people, and
we could sit down and hammer out the best code of
ethics in the country. But you got to go to the staff
because the staff is the life of the paper.
Milverstedt also credibly testified that he would in all
probability accept a "code of ethics" agreed to as a result
of bargaining between Respondent and the Union, because
he would have had the "option to include [his] input." Ad-
ditionally, he credibly testified to a belief that the idea of
the code was very desirable.
E. Testimonial Explanations by Respondent for Adopting
the "Rules and Guidelines" and Not Bargaining with the
Union about Them
Editor-Publisher McMillin credibly testified that Re-
spondent deemed the "Rules and Guidelines" necessary
for the Capital Times in order to dispel an "alarming
growth of . . . antagonism . . . hostility . . . contempt and
disgust for the press." Pointing out that a newspaper must
have circulation in order to stay in business, he credibly
testified to a belief that particularly as to a "crusading
newspaper" such as he deemed the Capital Times to be,
"the only way you can keep circulation is to keep credibili-
ty. If you lose . . . that, you're out of business . . . [W]hen
you're running that type of paper, it is absolutely essential
that you have the highest credibility possible or you're
done for because . . . you are antagonizing a lot of special
groups all the time." When asked how management's deci-
sion to adopt a "code of ethics" was affected by the public
interest, McMillin credibly testified to the following views:
... the public is assured that every effort is being
made to present them . . . with news that they can
depend on as being uninfluenced by all the factors
that are around to influence news . . . One of the
things that the Capital Times has done, as much as
anything, is carried on a campaign against the rest of
the press for . . . their ignoring this vital interest that
the public has . . . in the newspaper. It's an obligation
that goes with that as well as a privilege.
Most newspapers act as though they have no re-
sponsibility under that at all. They won't take any
chances . . . . They protect people on the local front
... [T]he banker's son gets arrested for drunken driv-
ing, ... his name never gets in the paper [a]long with
the working man's son who gets arrested. This is true
all over the State of Wisconsin in these daily papers.
We carry on . . . a campaign against them whenever
we get ahold of anything. We get people calling us all
the time about the failure of their paper.
McMillin credibly testified that but for the instant litiga-
tion, he would have published the "Rules and Guidelines"
on the Capital Times' front page and sought to publicize it
extensively in other ways as well. He further stated that
such publicity would be at least as impressive to the public,
and might be more so, if it included the statement that the
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had agreed thereto through their bargaining
representative-but, "getting there is another matter."
McMillin also credibly testified that management had
concluded that a written code was "the only fair thing to
do," so far as the employees were concerned, because "you
ought to have something that people can refer to so that
they know what . . . the rules are . . . and conduct them-
selves accordingly ." He credibly testified to a belief that a
written code made it easier for newspaper personnel to
avoid "awkward" situations (such as theater managers'
publicly waving them into the theater without tickets) if
they could point to a written newspaper policy against ac-
cepting gifts . He described an incident in which he felt
uneasy because the Capital Times had published an article
which was protective of the University of Wisconsin athlet-
ic department's recruiting policy and which was written by
a Capital Times employee who (it later transpired) was on
the University's 1972 "Fat Cat list." 27
McMillin also credibly testified to a belief that the
"Rules and Guidelines" were "going to cost us money"
because "we're offering to pick up the tab." He credibly
added that he considered the code applicable to manage-
ment, and "As a matter of fact , the fellows who are going
to get hit the hardest are management because there's more
of a graft and bootle available to them."
McMillin further testified that Respondent failed to bar-
gain about the "Rules and Guidelines" because "it didn't
occur to us to take this through a bargaining procedure"
and "it just didn't come to mind ." To the extent that Mc-
Millin 's testimony relates to Respondent's failure to con-
sult the Union before it claimed bargaining rights in the
matter, and to the extent that he participated in discussing
and developing the "Rules" and in Respondent's failure to
bargain with the Union about them , I credit his testimony
in this respect . In addition , McMillin testified that Respon-
dent did not negotiate with the Union about the matter
because he felt that a "very serious question of First
Amendment responsibilities [is] involved here ," and that he
regarded the "responsibility and obligation under the First
Amendment as a managerial one . . . the . . . decision
... to publish the Pentagon papers . . . was not made by
the unions . It was made by management . It's management
that is held responsible in libel cases . Nobody ever sues a
union for libel, or nobody ever attacks a union for the
paper falling down on the job.. . . the First Amendment's
interest is that the integrity of your newspaper is part of the
whole response under the First Amendment . . . it's not
only a privilege , but there is a deep responsibility to make
sure that there is [as] full and free discussion as possible
and that it is presented in as believable a way as possible."
I credit this testimony to the extent that it relates to
Respondent's motivations for conduct after the Union
claimed bargaining rights in the matter, and to the extent
27 This Capital Times article had been written in response to a 1973 article
by Associated Press Correspondent Srb alleging that the University was
having trouble with Black athletes . The Capital Times later wrote an editori-
al supportive of Srb 's right to make such a report irrespective of its effect on
the University's recruiting efforts . As it happens , Srb too had been on the
1971 "Fat Cat list." I believe McMillin 's testimony that he did not know
this; but even if he did, such awareness would not necessarily have regu-
larized the position of the Capital Times' own sportswriter.
that McMillin participated in the decision not to bargain
with the Union za
On direct examination, McMillin testified that Respon-
dent was unwilling to bargain with the Union about the
"Rules and Guidelines" because "all our information was
that throughout the country, wherever there was a code of
ethics, that it had been done without bargaining through
the unions. And I think it's significant that we weren't able
to find one case to the contrary where it had been bar-
gained." On cross-examination, McMillin testified that he
had obtained such information through "trade gossip" as
to the Washington Post and New York Times, and that he
had obtained the remainder of his information from Man-
aging Editor Meloon. In view of Meloon' s failure to testify
about this matter, McMillin's reference to existing cases,
and McMillin's graduation from law school, I conclude
that McMillin's testimony in this respect merely describes
part of Respondent's legal defense.
Managing Editor Meloon testified that he did not regard
the "Rules and Guidelines" as a mandatory subject of col-
lective bargaining, because "it 's the duty of management to
protect the integrity of the news product. It's not an issue
that can be resolved in give and take exchange where the
Union would, because of vested interest and so on, seek to
weaken it or exchange it for some other economic de-
mand." Meloon explained that he anticipated that "as a
matter of good bargaining" from the Union's point of view,
the Union would insist on a money trade-off in return for
agreement to the "Rules and Guidelines ," whether or not
the Union agreed with the substance of the "Rules." To the
extent that Meloon participated in the decision not to bar-
gain with the Union about the "Rules and Guidelines," I
credit his testimony about Respondent's economic motives
therefor. When asked the effect of the code on the quality
of Respondent's product, Meloon credibly testified to the
belief that it "probably" had "very little effect," but "if
there is any effect , it's to . . . the betterment that assures as
much as anyone can assure that no one is buying space in
the newspaper, that they're not being wined and dined in
exchange for getting items in the paper. We don't . . . al-
low advertisers to buy space in the newspaper and then get
a free story as a result of that. And I don't think anyone
else should be allowed to."
F. Evidence Regarding Industry Experience in the Area
Encompassed by the "Rules and Guidelines"
In addition to previously summarized testimony from
Capital Times management about the problems (mostly re-
lated to that particular newspaper) which the "Rules and
Guidelines" attempted to address, Respondent produced
28 McMillin also expressed unwillingness to bargain with the Local Union
because he believed that its parent International , of whose ethical standards
he had a poor opinion, was actually making the bargaining decisions about
the matter . There is no record evidence that this is true . While I conclude
that by the time McMillin testified he believed it to be true , his demeanor
and his reliance on hearing testimony lead me to infer that he acquired this
conviction well after Respondent decided not to bargain with the Union
about the matter . In any event, such a conviction would not excuse Respon-
dent from bargaining in the absence of evidence that bargaining with the
International was contemplated . See General Electric Company, 173 NLRB
253, 254-256 (1968), enfd. in part 412 F.2d 512, 514-520 (C.A. 2, 1969).
THE CAPITAL TIMES COMPANY 671
evidence regarding the nature of such problems in the
newspaper industry generally. Respondent relies on much
of this evidence to support its contention that the subject
matter of the "Rules and Guidelines" is not a mandatory
subject of collective bargaining in the newspaper industry,
of which Respondent is a part. Such testimony is summa-
rized below.
Respondent called as a witness , Norman E . Isaacs, who
is the associate dean of the graduate school of journalism
at Columbia University and has been in the journalism
field for 47 years. Isaacs' practical and academic experi-
ence , his membership and posts in professional societies,
and his study in the field of journalistic ethics qualify him
as an expert witness in that field.
Isaacs testified that a "substantial minority" of the read-
ing public suspect that the contents of newspapers are af-
fected by political and commercial influence and bias, and
think that news sources influence the contents of the paper
by extending to newspersons various kinds of favors which
include, inter alia, paid political jobs, free trips, free ban-
quets, tickets for newspersons who are not covering the
event, free books which are not for review, and "gifts
which pour into newspaper offices." Some corroboration
for his testimony in this respect is provided by the credible
testimony of Lawrence A. Wallace, the labor relations di-
rector for the Washington Post, that the Post had estab-
lished a rule forbidding the acceptance of gifts and rules
(discussed infra, part II, G, 1, b) addressing "Conflict of
Interest" problems partly in order to prevent the Post from
being publicly discredited by persons who regarded its
news coverage as inaccurate or unfair .29 Further, a 1972
survey of 783 residents of a midwestern State indicated
that about 23 percent suspected that working newsmen or
management have received something of value from out-
siders trying to influence the press (infra, fn. 57).
Isaacs further credibly testified that in a significant num-
ber of situations, free tickets, gifts, and similar favors are
tendered or available to and sometimes accepted by per-
sons affiliated with newspapers. According to Isaacs, the
donors include the Pentagon, which had no interest (for
example) in Vietnam War coverage, foreign governments
(see also infra, fn. 59, and attached text), political candi-
dates,30 sports promoters,31 the travel industry,32 and the
29 However , much of Wallace 's testimony in this respect related to rules
forbidding newspersons to accept part-time jobs elsewhere with, for exam-
ple, a member of Congress or a Federal agency. As previously noted, Re-
spondent regards restrictions on such outside employment as mandatory
subjects of collective bargaining.
3 Isaacs described this field as a "separate classification" and "a constant
tiger trap"; "for instance , if you are covering the legislature and a .. .
member of the committee stands to feed you some information , and you've
got a damn good source . And he becomes a . . . [d]amn good personal
friend . And he feeds you one hell of a lot of stories, and you're getting
bylines and complimented on your coverage . Well, the next thing you know
he's running for higher office , and he asks you to do some favors. And at
some point , if the reporter hasn 't got the sense to say this is one area, Joe,
where I can 't help you, he's in real trouble because he is then a special writer
and a political consultant and everything else. And if the newspaper hasn't
protected the poor guy [by] educating him and warning him and by coach-
ing him along the way, he's in for deep involvement and bad involvement."
Isaacs described his discharge of an Indianapolis Times reporter for accept-
ing compensation to write campaign material for a candidate for judge and
getting it into the Times.
fashion industry. Isaacs' testimony about freebies available
to fashion reporters was corroborated by the managing edi-
tor of the Louisville Courier-Journal, Carol Sutton 33 She
credibly testified that in June 1972, when her duties includ-
ed editing feature stories, her Courier-Journal superior, who
at that time was chairman of the APME Standards Com-
mittee, assigned her to cover three fashion press events,
ostensibly to obtain fashion news for the paper, but in real-
ity to find out how many gifts were given fashion reporters
at the event by fashion houses and related businesses. The
Montreal event was the first set up by the Canadian fash-
ion industry for the American press, and was covered by
100 members of the United States press, 63 of whom repre-
sented daily newspapers. The two New York events, which
have been conducted for about 30 years, were attended
respectively by 188 members of the press (96 of whom rep-
resented daily newspapers); most, but not all, of these daily
newspapers were United States newspapers. The Quebec
government gave her a free round trip plane ticket between
New York and Montreal; and companies associated with
the event not only gave free food. and drinks to her and the
other fashion reporters, but also gave her (and offered each
of the others) $250 worth of gifts-e.g., cosmetics, scarves,
and a travel clock.34 In addition, some of these companies
gave door prizes of substantial value,35 held drawings and
raffles for prizes such as dresses, and offered to sell dresses
to the fashion reporters at less than half the retail price.
Respondent also called as a witness Joseph Shoquist,
who has for 7 years been the managing editor of the Mil-
waukee Journal (with a circulation of 300,000 to 540,000,
and whose circulation area includes that of the Capital
Times), had considerable prior experience in other capaci-
ties with the Journal and other newspapers, has a
bachelor's and a master's degree in journalism, and has
taught that subject. At the time of the hearing, Shoquist
was the chairman of the APME Standards Committee. He
testified, "The areas of our operation where freebies and
gifts are most commonplace are in travel, sports, and enter-
tainment fields. They consist of all-expense paid trips
either to cover news stories or to the pleasure of the report-
31 "American sports editors [are] a menace to journalism 's ethical conduct
... part of it . . . curried by members of newspaper staffs. Part of it is
brought on by the blandishments of the promoters." Isaacs described an
incident where the sports editor had been given stock in the legal major-
league baseball team ("no wonder we couldn't get a story in the paper about
the mismanagement of the baseball team" ); another where a National
League baseball player was signed by the Mexican League in the
newspaper's offices; another where a New York sports writer received, for
every Ranger game, hundreds of free tickets which were unavailable on the
open market for $50 each; and another where a New York sports editor was
receiving 42 free tickets to each Knicks game.
32 "a complete payoff ... a dreadful ripoff . . . There are only a handful
of papers in this country where . . . travel writers are independently fi-
nanced by the newspapers . . . And out of them you get respectable cover-
age." The record contains what purports to be an article bearing the byline
of the Detroit News' managing editor, who was the 1973 chairman of the
APME Standards Committee , stating, inter alia, that in -1972 $ 100,000 worth
of free trips were made available to the Detroit News' travel staff although
the News' one travel editor could have used only $25,000 worth.
33 She uses this name professionally . Her married name is Wajley.
34 The Courier-Journal later either returned these gifts or donated them to
a charity, in each case with a written explanation to the manufacturer.
35 E.g., a round trip to Europe, expensive jewelry, Waterford crystal, $100
to $200 dresses, and fox-fur muffs.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er. And in the area of tickets . . . [we] are not talking about
a ticket to a football game, one ticket . We are talking about
season tickets worth hundreds of dollars available to hun-
dreds of people on newspapers which are a substantial
matter involving something of a considerable value that
may influence the reporter or certainly undermine public
confidence in our ability to report fairly and without preju-
dice."
The record further shows that a few days before the
hearing, a horse-riding center invited Managing Editor
Meloon (who declined) and his family to a "one-day con-
centrated course in horse practice and philosophy" during
a visit to the ranch which "could well be of interest to your
readers, many of whom already vacation in [such] areas or
are contemplating that idea ." Similarly , the record contains
what purports to be a memorandum from a Detroit News
reporter describing vacation offers to him from several
land developers.36
Additionally, I received into evidence (infra, fn. 57) the
results of a 1972 survey conducted by the "APME Stan-
dards Committee among the members of the Public Rela-
tions Society of America (herein the PRSA).31 This study
states that some of its members regularly provided the
press or news staffers with free transportation to and ac-
commodations at events, with things of value which are not
available to the general public, with free product samples,
with free tickets to athletic or cultural events , with Christ-
mas gifts , and with discounts on merchandise.
Isaacs testified that, in his opinion , public relations men
extend favors to newsmen in order to get into the news
columns . Isaacs described incidents where public relations
firms hired by foreign governments were able, by offering
newsmen free travel and other freebies, to obtain coverage
in news columns for less money than equivalent advertising
space would have cost 38 Sutton credibly testified to public
statements by manufacturers and designers who give
clothes and door prizes that they "write . . . off as good
PR;" that a marketing vice president for Kimberly Knit-
wear asked reporters assembled for a fashion event to buy
dresses at a discount because "We see it as a way of thank-
ing you for all the nice work you've done for Kimberly
over the years ;" and that Burlington's sales manager said
he saw Burlington 's gifts to them as a "thank you" for their
"very generous use" of Burlington's publicity materials-"I
wish I could come out in the audience and give you a little
36 In addition , the record contains an article about United Airlines' ex-
penditure of $10,000 for the air fare to San Francisco and all hotel expenses
of 32 reporters to cover a demonstration of a new airline flight process; the
airline believed that such payments , which were paid from a Government
grant directed to the development of the new technique , were necessary to
obtain widespread and accurate coverage . At the hearing , I erroneously
received this article to prove the truth of the matter asserted. Its legitimate
probative value is limited to the fact of its appearance in a November 1973
rep3ort by the APME standards committee.
About 6,500 questionnaires were mailed and 2 , 100 replies received.
PRSA members who do not deal with the general press were asked not to
rcssond.
He also testified about a political -committee chairman who defended
the committee 's employment of news men on the ground that " If we bought
a $5,000 advertisement, it's not as good as one news story from a reporter.
The paid political ad, no matter what you say, is still a paid political ad."
However , this testimony relates to outside-employment restrictions, which
Respondent concedes to be mandatory subjects of collective bargaining.
hug and a little kiss ." In addition , I received into evidence
(infra, fn. 57) the previously described APME Standards
Committee 's 1972 survey among the PRSA members. The
survey states that the membership who provides things of
value gave as reasons , "The press expects them," "The
press solicits them ," "More favorable coverage results,"
"Your competitors do," or "To avoid unfavorable publici-
ty." In addition , of the substantial number of members
who offered the press free transportation to and accommo-
dations for the members ' events, a significant proportion
did so because they believed that the events would not be
covered otherwise. 9
G. Evidence Regarding Recommended Approaches, and
Other Newspapers' Approaches, to "Freebies" and
"Conflicts of Interest"
1. Substance and adoption of restrictions in
union-represented units
The record shows six instances (aside from that attacked
in the instant complaint) of adoption of "codes of con-
duct" applicable to newsgatherers represented by a collec-
tive-bargaining agent 40 Five of these involved "freebie"
rules alone, while a sixth also involved "conflict of inter-
est" matters.41
a. Two newspapers managed by Isaacs
Isaacs testified that he has "begun or taken a leading
role in most of the movement in the last 20 years for the
adoption of stronger positions of ethical standards" in the
newspaper industry. He explained that in his "young days"
as a sports writer he got free tickets for coverage, and "In
my slightly older days as a managing editor in Indianapo-
lis, I was given free tickets, and I took them . . . I wasn't
that far ahead yet. I hadn't learned. I didn't see anything
wrong with accepting tickets . . . . And how did I get edu-
cated? I can't tell you. I probably read something some
place. I'm impressionable to moral persuasion, and . . . I
took it." In the early 1940's, when Isaacs was managing
editor of the Indianapolis Times, he had a "code of con-
duct," partly written and partly oral and enforceable by
dismissal , which said, in general, "Pretty much that you
couldn't take anything and that gifts ... had to be nomi-
nal. I had not yet become educated to the full extent of the
79 However, the survey further states that, overwhelmingly, the member-
ship who provided such things would continue to offer them on the existing
scale if such members were certain they could get fair and honest coverage
without such favors, saw no difference in attitude toward their organization
between newspersons who accepted freebies and those who declined them,
and regarded accepters of freebies as objective toward their organization.
40 The Union's contention that such provisions have in fact been widely
bargained about under different labels is discussed infra, part II , H, 1, d(2).
Union President Woodstock credibly testified, without objection, that
after Respondent promulgated its "Rules and Guidelines," the Pottstown
Mercury in Pennsylvania instituted "a code of ethics against Guild employ-
ees," whereupon the Guild suggested that it would file an unfair labor prac-
tice charge . She further credibly testified, without objection, that another
newspaper in the same area , perhaps in Chester, instituted "work rules"
against a Guild represented unit, but they were withdrawn . There is no
evidence about the contents of the Mercury's "code of ethics" or the other
paper's "work rules ." Accordingly, Woodstock's testimony in this respect is
almost valueless in resolving the issues in the instant case.
THE CAPITAL TIMES COMPANY 673
thing , and we did accept tickets, circus tickets, baseball
tickets, and all this. We accepted free books and records
and that sort of stuff. I had not yet become totally emanci-
pated in my own mind." He further testified that in 1946 or
1947, when he was managing editor of the St. Louis Star-
Times, he implemented a code of conduct, partly written
and partly oral and enforceable by dismissal, which, inter
alia, initially, but not subsequently, excluded baseball tick-
ets to the sports department and tickets for coverage from
its general ban on acceptance of free tickets; and called
initially for the return of gifts to the sender, but later for
their donation to charity.
Isaacs credibly testified that neither of these codes of
conduct was bargained with the unions which respectively
represented these newspapers' newsgathering staff 42 He
credibly testified that neither union questioned his "right to
exercise [his] managerial duties as [he] saw them," and that
he in turn never questioned the unions' right to process a
grievance in connection with an employee who was disci-
plined for violation of the code. These two newspapers are
no longer being published.
b. The Washington Post
Both the currently printed 1969 version and the 1963
printed version of the Washington Post's "Conflict of Inter-
est" rules contain cautions about connections with "nongo-
vernmental and volunteer activities . . . particularly if they
are likely to be the subject of coverage in the columns of
the newspaper." 43 Both versions forbid the acceptance of
free transportation or free accommodations, but neither
version refers to tickets, gifts, books, records, entertain-
ment , or use of merchandise or products44 Additionally,
for 8 or 10 years, the Post has annually issued a bulletin
forbidding the fifth-floor staff to accept any Christmas
gifts from "news makers, news sources, etc." Labor Rela-
tions Director Wallace credibly testified that the Post's
news department employees are discouraged from attend-
ing any Christmas parties given by "news makers," and
testified that most Post employees show "very good judg-
ment" in deciding which parties they can go to, and that
"we're not entirely blue nosed about that. There's a rule of
reason you have to apply." Wallace credibly testified that
the Post's present policy is to buy tickets to all events, ex-
cept that it will accept two tickets (for choice locations) for
the drama reviewer and his or her spouse, and-because
the employees cannot otherwise gain access to the area-
reporters are permitted to cover sports events from the
press box and photographers from the field or other van-
tage points.45 He credibly testified that management had
42 The Indianapolis Times' code of conduct included outside-employment
restrictions , which Respondent concedes are a mandatory subject of collec-
tive bargaining.
43 The quotation is from the current version . The more detailed 1963
restrictions are summarized infra.
44 Both versions do, however , contain restrictions on outside employment,
concededly a mandatory subject of collective bargaining . The earlier version
contains a purported quotation from the Post-Guild bargaining agreement
covering this matter. The current bargaining agreement contains a similar
provision.
as The Post refuses to use the special free pressrooms made available in
some county courthouses.
decided to review the free drama-ticket matter "very care-
fully." He further credibly testified that the Post had once
permitted employees to accept free tickets from the Reds-
kins (the local professional football team), that the Post
management later put a stop to this practice, and "now the
Post buys tickets that they give to the staff." Wallace also
credibly testified that the reviewers were not permitted to
take home free copies of books which the publishers had
sent to the Post in hopes of a review, that such books (or at
least those not reviewed) were currently given to the em-
ployee library, and that management was "trying to figure
a way how to get $180,000 in their budget so they can pay
for those books," as do a Louisville paper and the Wall
Street Journal.
Wallace also credibly testified that the Post's newsgath-
ering employees, now numbering about 400, had been un-
ionized for 21 years when the Post adopted its 1963 "Con-
flict of Interest" rules. He further credibly testified that the
Post's business records contain no evidence that the union
ever demanded that the issue be bargained, and that no
such demand had been made during the 14 months he had
been the Post's labor relations director. He also testified
that the Post made no claim that discipline for breach of
these restrictions is not a grievable matter.
c. The Pittsburgh Post-Gazette
Effective March 4, 1974, the Pittsburgh Post-Gazette pro-
mulgated a "Statement of Policy" in the freebie area, but
without any provisions similar to the "Outside Activities"
clauses of Respondent's "Rules and Guidelines." The Post-
Gazette's "Statement of Policy" also differs from
Respondent's "Rules and Guidelines" in, inter alia, the fol-
lowing respects: The "Statement of Policy" applies only to
persons "who gather, write or edit news" rather than to "all
employees," as do the "Rules and Guidelines." The "State-
ment of Policy" permits staff members, with the managing
editor's approval, to "travel on chartered planes (with a
sports team or political candidate, for example) and take
advantage of charter rates, hotel bookings, or other serv-
ices offered by a news source," without the addition, con-
tained in Respondent's "Rules and Guidelines," of the pro-
viso that "the team or organization bills the company for
the full cost involved." The Post-Gazette's "Statement of
Policy" fails to contain a provision, included in
Respondent's "Rules and Guidelines," that "Where it is
deemed necessary that an employee belong to . . . a club,
the company will pay for the membership." The Post-
Gazette's "Statement of Policy" permits the acceptance of
books and phonograph records supplied to designated re-
viewers for purposes of review, but states that "staff mem-
bers should not solicit such items.". Respondent' s "Rules
and Guidelines" require all such materials to be turned
over to "libraries or deserving organizations."
The Post-Gazette promulgated this "Statement of Poli-
cy" without notice to or bargaining with the Union which
represents its newsgathering employees. According to its
managing editor, "Acceptance-except for a couple of 'de-
prived' staffers-was universally favorable." The "State-
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat of Policy" contains no provisions calling for disci-
pline for its breach, and concludes with the statement, "All
staff members should be aware that good judgment is more
effective than any rules or regulations." There is no evi-
dence about whether the Post-Gazette will consider griev-
ances related to alleged breaches of this "Statement of
Policy."
d. The Memphis Commercial Appeal
On August 23, 1972, the Memphis Commercial Appeal
advised its staff in writing of a letter from the newspaper to
all promoters of athletic, cultural, and other entertainment
events . This letter stated that the addressee had in the past
been "generous to our editors and reporters in providing
tickets," but that the Commercial Appeal would no longer
accept any free tickets for such events, except for "working
reporters and photographers assigned to cover an event,"
and added a "reaffirm[ation of] our policy of discouraging
gifts . . . Our people are being asked to return any gifts
they might receive which are of more than nominal value."
The memorandum to the Commercial Appeal staff added,
"in the matter of small gifts it can be embarrassing to make
too much of them and try to return them. Each person has
to be guided by his own conscience. But I think you will
agree that when the value of any gift or favor exceeds $10
it has to be considered improper in our business." There is
no evidence about whether staff members would be disci-
plined for acceptance of forbidden gifts, favors, or tickets,
or whether the Commercial Appeal would accept grievances
involving such acceptance. About June 1974, the Commer-
cial Appeal's managing editor advised Respondent's man-
aging editor that this policy was not negotiated with the
Guild, that members of the Guild "praised the steps," and
that "We have had no problems whatsoever. It works." 46
e. The Associated Press
The Associated Press is a newsgathering cooperative to
which 1,200 (including Respondent) of the approximately
1,700 United States newspapers belong. Its newsgatherers
are stationed throughout the world , as well as in the United
States. The AP has issued a number of rules regarding ac-
ceptance of freebies. In March 1955 it advised staff mem-
bers that it is "wholly improper for a member of our staff
to accept money, valuable gifts, expense-paid trips or other
favors from news sources, actual or potential." The same
letter instructed staff members to advise their superiors be-
fore accepting offers of "junket" trips, which the letter de-
scribed as presenting "probably ... the most difficult area
of decision. Participation sometimes is fully justified for
news coverage purposes or for development of contacts. In
many other cases there is not the slightest justification for
participating." In June 1959, the AP issued a "superseding"
memorandum regarding gifts and passes, with emphasis on
46 While there is no direct evidence that the Guild is the statutory repre-
sentative of the Commercial Appeal 's newsgathering employees , I infer that
such is the case in view of these references to the Guild and the Union's
failure to object to the admission into evidence of the documents which
form the basis for my findings as to the Commercial Appeal.
gifts from residents of certain foreign countries where ac-
ceptance of gifts carries special implications 47 The "su-
perseding" memorandum required staff members to report
all "job gifts." The memorandum stated, "In principle, it
would best if there were no gifts given or received because
of job or work relations, but this is not always practically
possible. However, staff members can help by discouraging
the practice as much as they can." The memorandum per-
mitted acceptance of "modest and within reason" gifts
"where it cannot be avoided without giving deep offense,"
but "expensive or unusually lavish gifts may not be accept-
ed, regardless." "Gifts of money or rebates in connection
with.. AP business or news work are, of course, absolutely
forbidden and if accepted are cause for dismissal." The
memorandum appears to permit acceptance of "tickets and
passes" and "trip offers, particularly airplane junkets," al-
though these must be reported. Lunches and dinners may
be accepted without (unless "excessive") being reported,
but the favor must be returned. "Company-to-Company"
gifts of food or drink will "probably" be saved for staff
parties or outings.
A 1959 memorandum "clarified" the foregoing by stat-
ing, "junkets-in the sense of free, expense-paid trips-are
OUT." This memorandum stated that trips where it would
be impossible to pay "should be exceedingly rare." The
policy set forth in this memorandum was reiterated in a
1963 memorandum. An AP memorandum dated February
11, 1971, "remind[s]" the staff that "we don't want obvious
favors from hotels, clubs or resorts in connection with per-
sonal visits or news coverage . . . . we want to resolve it
along the most rigid lines of puritanism. Any borderline
cases should be referred [to the AP's New York office] for
agreement ." In December 1972, the AP advised the staff
that they were not to accept junkets, or free tickets or gifts
from any sources, except tickets required for actual cover-
age of an event'1 AP Vice President Fuller testified that
the ticket policy "came along later as a spinoff of the origi-
nal anti-gift policy." On January 5, 1973, the AP advised
various prior sources of free sports tickets in New York
that it had adopted a policy of refusing to accept free tick-
ets for any event, "except for those seats actually needed
for news coverage." The AP continued to accept press box
seats49 Fuller credibly testified that at least prior to Janu-
ary 1974, the AP permitted a play reviewer or a press pho-
tographer to accept a free ticket but "the AP itself will buy
a few and pass [them] out to the staff in lieu . . . of permit-
ting them to accept free tickets." Fuller also credibly testi-
fied that AP staff members could obtain free press box
tickets only if they were assigned to cover the game. He
credibly testified that the AP did not forbid reporters to
accept free programs, free soft drinks, or free meals provid-
ed by management for the press box.50
07 The 1957 and 1958 "superseded" memorandums are not in the record.
08 The memorandum added , "If you have been receiving any extra tickets
beyond those needed for coverage and the staff has been using them, the
Personnel Department will authorize purchase of two tickets for a sporting
event, theatre, etc., to be distributed among the staff."
49 The AP advised Madison Square Garden's public relations director,
"where we want a member or members of the AP staff to attend an event in
spectator seats we will ask you to help us buy them if necessary."
50 The AP also forbids its staff members to serve as official scorers at
sports events for what Fuller termed the "obvious" reasons of "possible
THE CAPITAL TIMES COMPANY 675
AP Vice President Fuller credibly testified that the
unions which have represented AP's newsgatherers (now
totaling 1,350) since 1948 have never asked AP to bargain
about its restrictions on acceptance of freebies 51 or filed an
unfair labor practice charge attacking their adoption. He
further credibly testified that the unions have processed
grievances in connection with discipline for violation of
these restrictions.52
Before October. 5, 1973, when the Journal adopted its
"Rules and Guidelines," the Journal accepted free tickets
for coverage and some additional free tickets, permitted
(but discouraged) gifts valued at less than $10, permitted
automobile writers to use automobiles for up to a week for
coverage purposes, had no real restrictions on attendance
at cocktail parties or "freeload" events, and permitted a
book reviewer to keep the book reviewed." 55
2. Substance of restrictions on newsgatherers not or not
shown to be union-represented
a. The Milwaukee Journal
The Milwaukee Journal's newsgathering employees are
not represented by any labor organization . The Journal's
"Rules and Guidelines" are enforceable by discipline, but
to management 's knowledge no outright breach has ever
occurred. These "Rules and Guidelines" were used as the
basis for the Capital Times' "Rules and Guidelines," and
are very similar thereto. As noted supra, fn. 9, certain pro-
visions covering "Outside Activities" are significantly dif-
ferent. In addition, the Journal's "Rules" (1) apply by their
terms to editorial department employees "whose work in-
volves news gathering, writing or editing," whereas the Ca-
pital Times' "Rules" apply to "all employees of the compa-
ny" and the unit includes librarians and copypersons; (2)
require a reviewer to buy a ticket and turn in an expense
voucher, whereas the Capital Times' "Rules" permit the
reviewer to accept one free ticket; (3) permit the retention
for reference purposes of books and phonograph records
supplied for review; the Capital Times' "Rules" contain no
such provisions; and (4) expressly provide that the Journal
will pay all costs involved in travel for news coverage or
background information; the Capital Times' "Rules" con-
tain no such provisions, although the bargaining agreement
calls for Respondent "to pay all legitimate expenses, such
as meals , transportation, and lodging, incurred by the em-
ployees in the service of the Publisher." 53 Certain provi-
sions in the Journal's "Rules" are at least arguably incon-
sistent with the Sigma Delta Chi "Code of Ethics," which is
also in effect at the Journal. Thus, the Journal's "Rules"
permit acceptance under some circumstances of gifts with
"insignificant" or "token" value , of free transportation, of
free products for short-time use , and of free entertainment;
while the Sigma Delta Chi "Code" states, "Nothing of val-
ue should be accepted." 54
conflict of interest and conflict with AP duties ." Respondent in effect con-
cedes that this rule constitutes a mandatory subject of collective bargaining.
51 Or on acceptance of outside employment , which Respondent concedes
to be a mandatory subject of collective bargaining.
52 In view of this testimony , the evidence that in 1959 the November 1959
memorandum was read by then unit employee and union member Crocker
(who in 1962 or 1963 became a paid union employee), and the wide distribu-
tion of these memorandums among unit employees over a period of years, I
infer that the union knew about the AP's imposition of restrictions in this
area.
53 Other differences between the respective sets of "Rules" appear imma-
terial to this case.
54 In addition , the Journal "Rules" and the Sigma Delta Chi "Code" con-
tain different provisions with respect to participation in politics, and argu-
ably different provisions with respect to outside employment.
b. The Louisville Courier-Journal and Times
When Isaacs occupied a management post with the
Louisville Courier-Journal and Times, for several years prior
to 1970, that paper had a "simple rule" forbidding its staff
to accept free transportation or gifts; "if the story is worth
covering, the newspaper will pay everything. And if the
story is not worth covering, the newspaper will pay noth-
ing. We accept nothing. No free anything, including so-
called governmental transportation." 56 However, staff
members were permitted to engage in civic activities, not-
withstanding Isaacs' testimony that some persons in the
journalism field believe that such participation "comprom-
ises [the staff members'] judgment." The Courier-Journal's
newsgathering employees were not represented by any la-
bor organization.
c. Newspapers whose managing editors replied to the 1972
survey by the APME Standards Committee
Over the objection of counsel for the General Counsel
and the Union on the ground of insufficient authentica-
tion, I received into evidence several surveys, including
surveys conducted of APME members by its standards
committee.57 The 1972 APME Standards Committee sur-
vey discloses a very wide variation among newspapers with
respect to acceptance of freebies. At least 30 percent of the
managing editors who responded to the particular ques-
tions answered "Yes" and at least 30 percent "No" to ques-
tions about acceptance of free transportation, of travel ex-
55 However, when the Journal changed this last practice on issuing its
"Rules and Guidelines ," the Journal increased the amoun 't' which it custom-
arily paid for reviews.
5 The Courier-Journal 's present managing editor, Sutton, credibly testi-
fied that the newspaper expected acceptance of food and. drinks at, for
example , a political convention to be "on a minimal level," that this was a
"pretty gray area," and that the newspaper relied on realistic assessments of
situations.
57 1 received these surveys into evidence after Respondent had established
the names and titles of the individuals who were in charge of them. See
Public Utilities Commission v. Pollak , 343 U.S . 451, 459-460; Zippo Manu-
facturing Co. v. Rogers Imports, Inc., 216 F.Supp . 670, 682-686 (S . D.N.Y.).
The fact of these surveys tends to show the existence of concern about the
problems in this area , and the results tend to slow the breadth of different
opinions and practices in this area (see, infra, part II,G,2,c). As indicated,
infra (see especially part II,H , 1,a), these matters have been considered in my
disposition of the case.
Because neither the persons in charge of the surveys nor anyone who
participated in taking them took the stand , the evidence is very limited as to,
inter alia, the selection of the persons to be polled or which of them failed to
answer . Accordingly, the surveys have little probative weight as to the per-
centage of the relevant "universe" who entertained the views or followed the
policies in question . See Bank of Utah v . Commercial Security Bank, 369
F.2d 19, 26-27 (C.A . 10). My references to such percentages are for conve-
nience only, and are not to be taken as findings.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penses, of lodging and meals , and of a number of com-
plimentary tickets. More than half of the Respondents per-
mitted acceptance , under at least some circumstances, of
free transportation and complimentary tickets . More than
half refused to accept a number of complimentary movie
and theater tickets or "special deals" on purchases of con-
sumer goods and vacation trips . About 41 percent stated
that in the last 10 years some of their policies had tightened
up "quite a lot," about 45 percent that they had not
changed , and about 10 percent that codification was in-
creasing . The Respondents ' comments attached to the re-
port of the survey ranged from "Simply, we accept nothing
from anyone, for anything, any time," to "[We have] a
closed-eye policy."
A 1974 APME membership survey indicated that, as
compared with 1972, there was a marked increase in the
percentage of Respondents who prohibited the acceptance
of free trips and of all or all but token gifts. At the time of
the hearing, the APME professional standards committee
was in the process of drafting a proposed "ethical code or
code of professional conduct" to be submitted to the
APME convention for membership approval. The commit-
tee intended to cover , inter alia, conflicts of interest, cut-
side activities , and involvement in public affairs and in
contests . However, the record contains no preliminary
drafts thereof.
3. Adoption of restrictions of the American Newspaper
Guild
The 1934 convention of the American Newspaper Guild,
the Union's parent body, approved a "Code of Ethics"
which included the following provisions:
(2) That the equality of all men before the law
should be observed by the men of the press ; that they
should not be swayed in news reporting by political,
economic, social , racial or religious prejudices, but
should be guided only by fact and fairness.
13
(4) That the Guild should work through efforts of
its members , or by agreement with editors and pub-
lishers , to curb the suppression of legitimate news con-
cerning "privileged" persons or groups , including ad-
vertisers, commercial powers and friends of
newspaper men.
s s 11
(6) That the news be edited exclusively in the edito-
rial rooms instead of in the business office of the daily
newspaper.
(7) That newspaper men shall behave in a manner
indicating independence and decent self-respect in the
city room as well as outside, and shall avoid any de-
meanor that might be interpreted as a device to curry
favor with any person.
The 1934 convention also "condemned" the following
"practices," inter alia, "as being inimical to the public in-
terest, the newspapers and newspaper men:"
(1) The carrying of publicity in the news columns in
the guise of news matter.
(3) The acceptance of money by newspaper men
for publicity which may be prejudicial to their work as
fair reporters of news. Your committee urges the par-
ticular condemnation of the practice of writing paid
publicity by staff political writers, and the acceptance
by sports editors and writers of money from promot-
ers of alleged sporting events.
However, such condemnations are not part of the 1934
code.
At the time of the August 1974 hearing, the Guild had a
revised "Code of Ethics" under consideration. The working
draft of such revisions includes the following:
1.... the news worker shall:
(b) Constantly be on guard that political, economic,
social, racial, religious, sexual or other prejudices,
preferences or associations not color the judgments
which must be made while gathering, evaluating and
presenting information .. .
(c) Constantly guard against deliberate or inadver-
tent suppression of news concerning privileged per-
sons, institutions, or groups, including advertisers,
public officials and candidates, economic institutions
and friends or associates of news workers or media
proprietors ... .
s
(4) News workers should regard as demeaning and
refuse any gifts, favors, tickets, etc., proffered by or on
behalf of news sources or subjects when those gifts,
favors, tickets, etc., reasonably can be judged to be
offered in whole or in part to attempt to curry favor-
able predisposition to the source or subject.
(5) News workers should decline any trip, accom-
modation, etc., arranged by persons connected with
news events, subjects or sources unless the full cost
thereof is borne by the publisher.
Also under consideration was a "Declaration of Rights
of News Workers." The "Working Draft" reads, in part:
Every news worker has a right to:
s
c. Protection against having to perform anything
which would compromise his or her integrity.
• s * s
f. Prohibit use of his or her by-line or credit line.
g. Consultation before any correction or retraction
arising out of a question of accuracy of published ma-
terial, with such consultation including the right to
confront the person or persons questioning the
material's accuracy.
THE CAPITAL TIMES COMPANY 677
* * s +
n. Freedom to engage in any political or social ac-
tivity on his or her own time without hindrance or
retribution from his or her employer.
4. Form and publication of restrictions
Isaacs credibly testified to a belief that he thought it
"absolutely necessary" for a newspaper to have a "code of
conduct" for its employees because "the newspaper is a
unique public institution . . . I have found it as a quasi-
public utility. I think it is responsible to its readers as no
other segment of the American corporate or industrial sys-
tem applies. I think it is affected in the legal term with the
public interest, and I think the managements of these en-
terprises are duty bound to establish firm, clear standards
of conduct for both management and employees." He fur-
ther credibly testified to a belief that the "code of conduct"
should be in written form, because of staff turnover, prob-
lems of internal communication, and the value of written
directives in causing people to think about the problems
attacked thereby. In addition, he testified that the 11 news-
papers regarded by the industry (although not necessarily
Isaacs) as the best in America all have codes of conduct.
The Milwaukee Journal published its "Rules and Guide-
lines" (Resp. Exh. 11) in its newspaper, and also sent cop-
ies to several hundred news sources, particularly those in
areas where "freebie conflicts" primarily arise. There is no
evidence that the Milwaukee Journal has ever made public
the Sigma Delta Chi code of ethics (Charging Party's Exh.
2), which is also presently in force at the Journal. Notwith-
standing this omission, I believe that Journal managing edi-
tor Shoquist was giving his real views in testifying that he
regarded a written "code of conduct" as necessary to make
the limits of acceptable professional conduct clear to the
reporters, and to advise news sources and readers of the
newspaper's standards and ethical conduct.
The Washington Post's established policy dealing with
ethics and standards of conduct for its editorial employees
is partly oral and partly written; much of an earlier and
relatively long written "conflict of interest" policy is still
applied although not included in the current written ver-
sion.. Labor relations director Wallace testified that this
omitted material was excised because the editors felt that
the present staff understood everything in the earlier ver-
sion "because it had been drummed into them enough,"
and that new employees "after being in Washington a little
while, . . . will discover what are the questionable areas of
activities, and they will go to the other employees who will
refer them back to the original style book or tell them that
that was a no-no." Both the earlier and the current written
policy were physically included in the Post's "Style Book,"
which also contains instructions on punctuation, type style,
and how to write certain kinds of stories such as obituaries.
Every Christmas seasion , the Post puts on its bulletin board
its guidelines applicable to Christmas gifts from newsmak-
ers and news sources. Wallace credibly testified that the
Post's editors and subeditors frequently discuss "things like
codes of ethics with the staff." Wallace also testified that
"we like to have the code of ethics for the public to know,
for our subscribers to know that we have it," but he testi-
fied that as far as he knew, the Post had never publicized
the code in its paper or otherwise attempted to draw it to
the readers' attention.
The AP's restrictions on freebies are partly oral and
partly in the form of written memorandums. At least from
time to time, staff members have been required to initial or
sign them, or to sign written statements for the members'
personnel files that they have read and understood them.
There is no evidence that the AP has ever generally publi-
cized these restrictions to its member newspapers or to
newspaper readers.58
Newspapers which are members of the AP service have
the right to print much of the news matter published by
other AP members. There is no evidence that the AP as an
institution has ever suggested that all its members adopt
restrictions in the area encompassed by Respondent's
"Rules and Guidelines." The 1972 APME Standards Com-
mittee survey included the question, "Do you have a stated
policy for all editorial staffers on outside work and the
acceptance of gifts, favors, tickets, free trips, and the like?"
Of the 65 who answered this question, almost 90 percent
replied that they had no policy in print, and about 9 per-
cent that they were preparing one now.
5. Effect of the restrictions
The Milwaukee Journal's "Rules and Guidelines" are en-
forceable by discipline, but to management's knowledge
they have never been breached. Journal Managing Editor
Shoquist, the current chairman of the APME standards
committee, testified as follows:
Q. (By Mr. Munson) . . . What is the relationship
between a code of conduct such as you adopted for
your newspaper, and the quality of the product which
you are producing?
A. I believe they're directly related. The fact that
we have strong ethical standards on the Milwaukee
Journal, I believe, is reflected in the kind of newspaper
that we produce. It's-it's a mark of our independence
and a badge of our-of our high ethical standards. I
think there's a moral climate in a newspaper office
that's very important. Temptation abounds of this
kind that we've been talking about, and I think the
newspaper that allows it runs the risk of damaging its
product by undermining the public confidence in its
reporting or actually writing from a point of view that
might be influenced by favors and gifts from the news
source.
Q. Based on your experience and background, Mr.
Shoquist, do you have any opinion as to whether a
code of conduct would interfere with-adversely the
reporter's ability to gather the news?
A. I don't believe it will-will interfere adversely at
all. I think it helps the reporter to do a better job.
Q. Why is that?
58 However , Capital Times editor-publisher McMillin testified that he
knew about them. The source of his information is unexplained in the rec-
ord.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. It makes him more independent. It establishes a
better, more professional relationship between news
source and reporter. I think a reporter who is taking
payola on the side , if it gets to be that crude, is-is not
held in high regard by his news sources or others who
know about it. And I think it can be reflected in-in
the stories that he writes.
Shoquist further testified that partly because of oral state-
ments from public relations men and letters from the pub-
lic, he believed that the promulgation of the Journal's
"Rules and Guidelines" had led third parties to perceive it
as a more honest newspaper.
Taking into account Shoquist's professional pride and
his friendly feeling toward his employer, I nonetheless be-
lieve the foregoing to be an honest statement of his views.
AP Vice President Fuller testified that he had no evi-
dence that but for the AP unilaterally imposed rules sum-
marized supra, part II,G, I e, the AP employees would have
behaved any differently. He further testified that he had no
evidence that the AP employees would not accept such
rules if they became part of the bargaining process. When
asked by union counsel how the AP' s business would be
run differently if these rules were incorporated in a labor
contract, Fuller (a highly intelligent witness) evaded the
question and never did answer it.
Fuller testified that the AP regarded its written and oral
policy with respect to employee conduct as contributing to
the reality and appearance of honesty to the extent that it
was "more important than the expertise in our news gath-
ering and writing because the credence of our report is
everything. Without it . . . we'd cease to exist, and our
reason for existing would be gone." He testified that he
believed there is a "direct relationship" between the AP's
code of conduct and the credence of its reporting, and that
"I think by and large . . . the consuming public, the news-
papers themselves, and the readers beyond them would
give us high marks for that." In view of his testimony in the
preceding paragraph, the AP's direct interest in the legal
issues presented herein, his demeanor, the probabilities of
the situation, and the evidence that the AP's tightening of
its freebie rules was gradual and somewhat haphazard, I
believe he was overstating the AP's views about the value
of such restrictions. However, I do believe that the AP does
in fact regard these restrictions as useful for the purpose
described. Thus, I credit his testimony about his belief that
the AP benefited when newspaper editors found out that
whereas a Senate committee had found that others in the
newsgathering business had been carrying stories favorable
to foreign governments in exchange for money, the com-
mittee had cited the AP as being an organization with rules
against this and guarding against it and as being "pure and
clean." 59
Washington Post Labor Relations Director Wallace testi-
fied that no employee had ever been reprimanded or disci-
plined for breaking its "Conflict of Interest" rules. He testi-
fied, "Self-discipline is the only form of discipline that
59 At the time of the events investigated by the Senate committee, the AP
forbade acceptance of junkets but permitted acceptance of tickets and, un-
der some circumstances , gifts . See supra, part II, G, le.
really works. I mean, we can discharge people or suspend
people. But unless the person disciplines himself, it's still
not going to work. But if you punish them, it doesn't
change their behavior . . . [Post employees] wouldn't think
of taking tickets because self-discipline has worked . . . it
hasn't been necessary to discipline anybody because the
code has worked." He testified that the Post "probably
could" do without the "Conflicts of Interest" rules entirely,
that the Post's employees "probably would" conform to its
contents and values without reading the Style Book, "But
[management are] going to include it in their new style
book. Something may be revised."
Wallace testified that "we do have the code of ethics for
the new people and particularly the young people," and,
further, that the Post has a written "code of ethics" to ad-
vise subscribers, politicians, and the public that it exists. I
regard such considerations as largely makeweight, in view
of his other testimony that new employees must consult
older employees, and be referred to the out-of-print "Con-
flict of Interest" rules, partly because the version now in
print is incomplete; and that in the 11 years since the code
was printed, the Post has never taken steps to draw it to
readers' attention or publicized it in the paper.
Louisville Courier-Journal Managing Editor Sutton, who
testified about the freebies given to fashion reporters in
connection with three fashion press events, credibly testi-
fied that when she later looked over the coverage of these
events by about 20 newspapers which varied in geographic
range and in size , "for the most part" they used the lan-
guage in the handouts distributed by the fashion compa-
nies to the reporters during the showing. Sutton further
credibly testified to a belief that a relatively inexperienced
reporter "probably could" cover these events more effec-
tively by accepting many of these freebies rather than run-
ning the risk of making herself conspicuous by refusing. In
addition, she credibly testified to a belief that the Courier-
Journal's code of conduct benefited her independence as a
reporter because readers and advertisers dealt with her on
the basis of their knowledge of its existence.
Journalism Dean Isaacs credibly testified to a belief that
the existence of a code of conduct enhances the
newsgatherer's ability to cover a story because he has
greater confidence and, therefore, is more aggressive; and
because his sources respect him more and, therefore, tend
to be more outgoing. Isaacs further testified that some writ-
ers, both organized and unorganized, write independently
regardless of blandishments, and that others do not.
H. Analysis and Conclusions
1. Whether the "Rules and Guidelines" and sports-pass
rule constitute mandatory subjects of collective
bargaining
a. Introduction
The principal and threshold question presented here is
whether the "Rules and Guidelines" and the sports-pass
rule constituted mandatory subjects of collective bargain-
ing. In contending that they did not, Respondent's counsel
implicitly urges, as an able advocate might reasonably be
THE CAPITAL TIMES COMPANY 679
expected to do, that the changes effected thereby were
morally praiseworthy. Whatever my personal views as to
this contention, I feel constrained consciously to disregard
it.
In the first place, if Respondent has the power unilater-
ally to impose "higher" "Rules and Guidelines for Profes-
sional Standards and Ethics," Respondent also has the
power unilaterally to compel the observance of "lower"
ones. See Allied Chemical & Alkali Workers of America,
Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157, 173; cf. infra, fn. 73. Thus, the "Rules and Guidelines"
contain a unilaterally imposed prohibition against accep-
tance of junkets, free trips, and reduced-rate or subsidized
travel. Changes in the identity of management personnel,
the views of present personnel, or even the paper's finan-
cial solvency might induce management to require accep-
tance of such free or reduced-rate trips for cost-cutting
purposes, notwithstanding the newsperson's belief that his
reputation, as well as the newspaper and its reputation,
would be compromised if the news source rather than the
newspaper paid for the trip. 0
Moreover, the statute contemplates that the Board ordi-
narily disregard the merits of labor disputes.61 It is true that
in administering the Act, the agency is expected to take
"fair account . . . of every socially desirable factor in the
final judgment." Phelps Dodge Corp. v. N. L. R. B., 313 U.S.
177, 198. However, the tediously summarized record evi-
dence discloses so wide a range of opinions and practices
regarding professional standards that it would be wholly
inappropriate for the NLRB to proceed from any judg-
ments of its own in this complex and sensitive area. The
evidence reveals sharply differing judgments about wheth-
er newspapers should have employee rules in this area;
what the substance of any such rules should be; who
should be subject to them; whether they should be oral or
written, codified or uncodified, and published or not pub-
lished; and the extent of the effect (if any) of such rules on
newspersons' behavior, on the public, and on news sources.
I infer that such differences of opinion arise not only from
differing concepts of morality, but also from such consider-
ations as the newspaper's and the newsperson's prosperity
(real or supposed), whether the newspaper seeks to empha-
size journalism other than "straight news" (e.g., investiga-
tive or advocacy journalism, sociological treatment of
sports, or columns of opinion); whether the newsgatherers
work in our Nation's Capital or in foreign countries with
their own national customs; and the length and nature of
individual experience in the area. Indeed, in tacitly seeking
the NLRB's support of Respondent's policy in this area,
Respondent in effect seeks to align the NLRB against
other branches of American government, which according
to Respondent's witness Isaacs "can go to rather extreme
cases in the wining and dining and flying and gift busi-
ness ;" 62 and asked the NLRB to disapprove the conduct
60 Isaacs testified that rank -and-file employees frequently have higher
standards than do members of management.
61 E.g., N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 16
(1961); H. K. Porter Co. v. N.L.R.B., 397 U.S. 99; The Evening News Pub-
lishing Company, 196 NLRB 530, 535-536 (1972).
62 "The Pentagon invites you to all [manner ] of fancy tripsand to see one
of those silos out in Omaha and fly you out in a military jet and have you
of some foreign governments. Accordingly, my decision in
this case will be in no way affected by any beliefs of my
own about whether the substance of the "Rules and Guide-
lines" and the sports-pass rules is good or bad.
b. The sports pass rule and the freebie and
commercial-transaction portions of the "Rules and
Guidelines"
Respondent does not appear to dispute its duty to bar-
gain about employee expense. accounts 63 This duty encom-
passes the duty to bargain about the receipt of freebies
which are used or usable in connection with news cover-
age.64 I find unmeritorious Respondent's contention that it
was under no duty to bargain about such restrictions be-
cause the employees could obtain reimbursement for all
legitimate expenses by submitting a voucher to Respon-
dent (supra fn. 63). It is one thing independently to choose
to attend a possibly newsworthy event with advance assur-
ance that its promoter does not expect payment; it is an-
other to be compelled to await subsequent reimbursement
from one's employer,65 and, furthermore, to be subject to
the chance that the claim will be disapproved and the em-
ployee, therefore, be out of pocket 66 For the foregoing rea-
sons, I find that the receipt of freebies usable in connection
with coverage constitutes, at least presumptively, wages
and working conditions which are a mandatory subject of
collective bargaining.
I reach the same conclusion with respect to the receipt of
freebies not usable in connection with news coverage, and
met by helicopter and flown in. You're put up in the most elegant accom-
modations . . . . no lawyer has ever lived in the style in which a full general
can live. And it 's pretty plush and gets pretty effective."
63 The Pacific Telephone and Telegraph Company and Bell Telephone Com-
pany of Nevada, 113 NLRB 478, 521 ( 1955); see also Phillips Broadcast
Equipment Corporation, 175 NLRB 939 (1969 ); Evening News, supra, 196
NLRB at 535-536. The bargaining agreement provides that Respondent
"shall pay all legitimate expenses, such as meals, transportation, and lodg -
ing, incurred by the employees in the service of the Publisher ," and specifies
allowances for employees who use their personal automobiles on company
business.
64 More specifically , use of press boxes; two passes to each event for the
reviewer (see also infra, part II , H,lc); passes for events attended for back-
ground purposes ; free and reduced -rate trips and accommodations used for
news coverage ; free and reduced-rate use of merchandise or products to be
evaluated ; free copies of books, phonograph records, and tapes, supplied for
review ; free and reduced-rate membership in certain kinds of organizations;
and free meals and drinks on certain kinds of occasions . Also included is a
sports pass for each newsperson, because all parties concede that certain
kinds of sports-event coverage can be performed more effectively from the
grandstand than from the press box.
65 See Orange County Machine Works, 147 NLRB 1004, 1005-06 ( 1964);
The Weston & Brooker Company, 154 NLRB 747, 749 ( 1965), enfd. 373 F.2d
741 (C.A. 4, 1967); Meadow River Lumber Company, 181 NLRB 906, 907-
908 (1970); King Radio Corporation, Inc., 166 NLRB 649 , 654 (1967); enfd.
398 F .2d 14 (C.A . 10, 1968).
66 As shown supra In. 24, Respondent's management differed among
themselves about the legitimacy of a claim for a second ticket for the re-
viewer. Moreover , although editor-publisher McMillin testified that Meloon
or Maraniss would approve a sportswriter 's claim for a ticket to a sports
event actually attended (but see, supra, fn. 24), no witness testified about
claims for unused tickets bought to forestall a sold -out event and on the
chance that they would be used if more newsworthy events did not inter-
vene. This kind of flexibility is, of course, permitted by possession of passes
and facilitated by availability of cut-rate tickets.
67 So far as relevant here, such freebies consist of free and reduced-rate
sports tickets and sports passes not to be used for coverage ; season passes to
Continued
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "use of [employees') position on the paper to their ad-
vantage in commercial transactions or for other personal
gain ." Harrah's Club, 158 NLRB 758, 764-765, 767
(1966);68 Hilton Hotels Corporation d/b/a Statler Hilton
Hotel, 191 NLRB 283 (1971), enfd. 82 LRRM 2538, 69 LC
113,207 (C.A.D.C., 1972). As Meloon stressed in his April
30, 1974, letter to Woodstock , such freebies have a mone-
tary value; and this remains true whether or not the indi-
vidual employee chooses to exploit it."" Respondent 's brief
seems to concede that restrictions on the receipt of tips are
a mandatory subject of collective bargaining , but contends
that the instant restrictions on freebies are not analogous
because they "are not considered in setting the wage rates
and are not considered payment for services performed for
the third parties ." Neither of these factors was clearly pres-
ent in Harrah 's; nor does Respondent explain why it con-
siders them determinative 70 In any event , Respondent re-
stricted acceptance of freebies and the employees'
commercial use of their newspaper positions for the very
purpose , in part, of preventing its newsgatherers from ac-
cepting direct or indirect payment from third parties in
return or seeming return for performance of services con-
sisting of favorable news coverage . Nor has Respondent
shown that such freebies are not considered in setting wage
rates , which under the bargaining agreement are de-
termined on an individual basis subject to contract mini-
movies; gifts; junkets, free trips, or subsidized travel, not to be used for
coverage ; free use and reduced-rate purchase of merchandise or products
for personal pleasure where such an offer involves the employee's newspa-
per position ; books, phonograph records, and tapes not received by the
employee for reviewing purposes ; free and reduced -rate memberships in
certain kinds of organizations ; and free meals and drinks on certain kinds of
occasions.
68 Remanded 403 F.2d 865 (1968), 408 F.2d 1006 (C.A. 9, 1969), reaffd. in
material part 180 NLRB 433 (1969). The Ninth Circuit's opinions assumed
that an employer rule which forbade stage technicians to receive gratuities
from featured entertainers constituted a mandatory subject of collective
bargaining.
6 While Sports Writer Milverstedt elected to give or throw away the
many free or cut-rate tickets he received but did not use , the record strongly
suggests that Sports Writer Lucas was selling at least his four reduced-rate
tickets to the University of Wisconsin football games. I infer from La-
Braska's testimony as a whole that he did not sell his free tickets or passes.
Aside from McMillin 's testimony about "large blocks of tickets" received by
Respondent's sports editors between 1917 and 1972, the record fails to show
what the other members of Respondent's staff had been doing with freebies
they did not personally use. As shown supra, part II, F, sports writers on
other newspapers have sometimes received free tickets worth thousands of
dollars a year.
70 At least in the absence of clear evidence to the contrary, I assume that
all other things being equal , an employee would choose a job which even
occasionally put at his disposal such things as free circus, sports , and movie
tickets, in preference to one which never entailed any such benefits. Cf.
Wald Manufacturing Company, Inc., 176 NLRB 839, 849 (1969), enfd. 426
F.2d 1328, 1332 (C.A. 6, 1970) ( unilateral elimination of summer picnics
and Christmas parties held 8(a)(5) violation); Southland Paper Mills, Inc.,
161 NLRB 1077, 1078 (1966) (same as to hunting privileges); Champa Linen
Service Company, 177 NLRB 798, 803 (1969) (same as to free coffee); Long-
horn Machine Works, Incorporated, 205 NLRB 685 (1973) (same as to en-
graved gold watches after 10 years' service ). Indeed , when putting a stop to
acceptance of free tickets not required for coverage, the AP and the Wash-
ington Post, unlike Respondent, began to distribute to the staff, without
charge, tickets paid for by the employer. Similarly, upon halting the previ-
ous practice of permitting the reviewer to retain the reviewed book, the
Milwaukee Journal increased its payment for the review; there is no evi-
dence that Respondent did the same . When asked whether the newspapers
where he was an executive absorbed the costs of getting rid of payments
made by news sources , Isaacs replied, "Totally. That's the whole purpose."
mums and reservation of the Union's right to bargain on
merit increases 71 Moreover, the considerations which ren-
der admittedly coverage-related freebies a mandatory sub-
ject of collective bargaining support the same status for
freebies which are arguably so related. See Local 24, Inter-
national Brotherhood of Teamsters v. Oliver, 358 U.S. 283,
292-295.
For the foregoing reasons, I find that the "Rules and
Guidelines" restrictions on the receipt of freebies and on
the commercial use of the employees' newspaper position
deal with matters which constitute, at least prima facie,
wages and other terms and conditions of employment. This
conclusion gains further support from considerations dis-
cussed infra in connection with the restrictions regarding
outside activities.
c. The "Rules and Guidelines" as a whole, including the
sports pass rule
In contending that the "Rules and Guidelines" consti-
tute a mandatory subject of collective bargaining, the
Union and counsel for the General Counsel heavily rely on
the provision, "Any violation will result in a suspension;
multiple infractions will result in discharge." 72 In addition,
employee McCrea in terms testified to, and Beckmann's
testimony that certain of her associations breached the
"Rules and Guidelines" may well have been based on, the
belief that such sanctions were directed to employees mere-
ly because they were in a real or seeming conflict-of-inter-
est situation, even though they had complied with the
"Outside Activities"' requirement that they reveal it to
management, in view of the "Rules and Guidelines"' ex-
pressed "main purpose" of "The elimination of any possi-
ble conflict of interest by any employee and the further
elimination of the appearance of any conflict of interest."
Laying to one side Respondent's contention (discussed in-
fra) that Respondent' s rules do not constitute a mandatory
subject because their promulgation lies at the core of entre-
preneurial control, and also laying to one side the difficult
question (not directly at issue here) of whether comparable
"core" rights are conferred on employees merely because
they are in a unit which has a statutory bargaining repre-
sentative,73 I agree that the inclusion of such sanctions is
71 These wage provisions of the bargaining agreement sharply limit the
materiality in this connection of Union Secretary McCrea's testimony that-
the Union did not consider the availability of freebies in framing its wage
demands. Indeed, McCrea then went on to testify, " if we're talking about
working expenses, [if] we're talking about tickets for reviewers that are now
free and you characterize as a freebie , I want that as part of the calculation
of expenses in our contract ." Furthermore, while five unit employees (in-
cluding Union Officers Woodstock and McCrea) testified that they did not
regard freebies as wages, of these five only Sports Writer Milverstedt and
Reviewer LaBraska had substantial access to them ; Woodstock is a librari-
an. Moreover, these views may not have been shared by all of the 45 re-
maining unit employees, including sports writer Lucas (see supra, fn. 69).
72 Similarly, Respondent threatened to discipline or discharge employees
who violated the sports- pass rule.
73 Existing precedent indicates that the statutory bargaining
representative 's duty of fair representation not only forbids it to seek arbi-
trary and invidious treatment of unit employees, but also forbids an em-
ployer to agree to such a union demand or to seek the union 's agreement to
such an employer demand and requires the union to seek correction of
certain kinds of arbitrary and invidious employer treatment of employees.
Local Union No. 12, United Rubber, Cork , Linoleum & Plastic Workers of
THE CAPITAL TIMES COMPANY 681
strong if not conclusive evidence that the "Rules" consti-
tute a mandatory collective-bargaining subject.74 Appre-
hension of discharge or discipline for conduct on or off the
job constitutes a "condition of employment" within not
only its most natural meaning , but also the ordinary hu-
man experience of people who earn their living by working
for others. Such uneasiness would be aggravated, as it was
here,75 by at least arguable vagueness in the rules whose
breach exposed the employee to such disciplinary action.76
Indeed, threatened sanctions for violation of vague rules
support the existence of a duty to bargain about their clari-
fications even assuming that no reading of the content of
most or even all of such rules could render their content a
mandatory subject. See Murphy Diesel, supra.
Accordingly, to this extent I reject Respondent's conten-
tion that it is the subject matter of the rules which alone
determines whether the employer can unilaterally adopt
them. This contention is undermined , rather than support-
ed, by The Timken Roller Bearing Company, 70 NLRB 500,
502 (1946) '77 on which Respondent relies . Timken stated
that although the existing bargaining agreement afforded
management the prerogative to formulate and publicize
America (Goodyear Tire & Rubber Co.), 150 NLRB 312 (1964), enfd. 368
F.2d 12 (C.A. 5, 1966), cert. denied 389 U.S. 837; Houston Maritime Associa-
tion, et at., 168 NLRB 615, 617, 625-627 (1967), enforcement denied 426
F.2d 584 (C.A. 5, 1970); Southwestern Pipe, Inc., 179 NLRB 364, 375-376,
384 (1969), modified 444 F.2d 340 (C.A. 5, 1971); Western Addition Commu-
nity Organization v. N.L.R. B. [Emporium Capwell Co.], 485 F.2d 917, 928-
929 (C.A.D.C., 1973). Cf. McDowell Mfg. Co., 198 NLRB 1229 (1972) en-
forcement denied 491 F.2d 1384 (C.A. 6). If this represents the ultimate state
of the law , a choice might be required between the conclusion that an em-
ployer who wishes to impose at least certain kinds of arbitrary and invidious
conditions of employment on unit employees is free to do so without bar-
gaining (because he could not lawfully tender a proposal to do this and the
union could not lawfully agree thereto ) and the conclusion that he cannot
lawfully impose them at all. Additional problems would arise where the
employer seeks to forbid unit employees to exercise a constitutional right
but the prohibition is arguably job-related-for example , if an employing
newspaper seeks to forbid or require political reporters to join a political
party. See San Mateo Times, 54 LA 1273. Such legal problems would be
inescapable if Respondent here had adopted the Milwaukee Journal's and
the Washington Post's rules requiring employees to refrain from , rather than
merely to report , activities presenting a possible conflict of interest . Under-
standably , all parties have declined my invitation to discuss whether such a
flat prohibition would be a mandatory collective-bargaining subject.
74Tiidee Products, Inc., 176 NLRB 969, 976 ( 1969), enfd . 440 F.2d 298
(C.A.D.C., 1970); Murphy Diesel Company, 184 NLRB 757 (1970). enfd. 454
F.2d 303 (C.A. 7, 1971); General Electric Company, 192 NLRB 68, 72 (1971),
enfd . 466 F.2d 1177 (C.A. 6, 1972); Donna Lee Sportswear, 174 NLRB 318,
337 (1969), enfd . 435 F.2d 559 (C.A. 3, 1971).
75 See the testimony of all four newsgathering employee witnesses and the
Union's June 5 , 1974, letter to Respondent , describing the "Rules and
Guidelines" as "vague and menacing."
76 Editor-Publisher McMillin testified that Respondent put its "Rules and
Guidelines" into writing because fairness to the employees called for letting
them know what the rules were . Both Isaacs and Shoquist similarly justified
such codifications . However, Shoquist testified that his Milwaukee Journal
staff needed an I I-month "period of adjustment" to try to apply to its
actual practices the "intent" of its "Rules and Guidelines ," which are quite
similar to Respondent's. Moreover, the record shows that the Pittsburgh
Post-Gazette, the Washington Post, the AP, and the Louisville Courier-Jour-
nal, the first three of which have rules which to a significant extent are
expressed in writing , rely or have relied on discussions , commonsense, and
individual judgment in determining the propriety of particular conduct un-
der particular circumstances . Compare supra, n. 30, and employee
Beckmann 's problem when a Turk wanted to give her a cheap engraved
tra.
Enforcement denied on other grounds 161 F.2d 949 (C.A. 6, 1966).
rules of conduct for its employees, even during the life of
that agreement the union had a right to be consulted "inso-
far as the exercise of this managerial prerogative affects the
employees' working conditions in their day-to-day relation-
ship with their employer." This reasoning is closely analo-
gous to, rather than inconsistent with, the view that the
employee's duty to bargain may turn on a rule's impact on
employees and does not depend on the rule's subject alone.
I conclude that the sports-pass rule and the "Rules and
Guidelines" constitute at least prima facie a term and con-
dition of employment for the additional reason that these
rules affect the employees' ability to perform their work,
including their ability to exercise the full scope of their
professional judgment in determining the extent to which
their personal relationship with news sources and events
might contribute to or interfere with the effectiveness of
the employees' coverage. As previously found, affected em-
ployees honestly believed that restrictions on acceptance of
sports passes to be used for coverage, on a reviewer's ac-
ceptance of a free second ticket, and on acceptance of "en-
tertainment" under some circumstances, would have some
adverse effects on the quality of their journalistic prod-
uct 78 I am not moved to doubt their sincerity by the fact
that some members of Respondent's management, and
also Respondent's counsel, disagree with the employees'
views in this respect. Management would not necessarily
know about all the factors (subjective as well as objective)
which help its employees to find out and write about the
news which eventually appears in Respondent's newspa-
pers-for example, columnist Milverstedt's conversations
with the Madison mayor at a local bar, reviewer-reporter
LaBraska's dinners with personal friends who are news
sources, and reporter Beckmann's dates and picnics with
news sources. 9 Moreover, such restrictions might cause the
employees to perform work less satisfactory to manage-
ment than would otherwise have been the case, and thus to
lose income or even their jobs. Furthermore, even assum-
ing that such restrictions did not affect management's sat-
isfaction with an employee's work performance, they might
cause less satisfactory performance from the standpoint of
the employee himself,8 and of the employee's professional
78 The Milwaukee Journal, whose "Rules and Guidelines" were used by
Respondent as the basis for its own version, permits the retention for refer-
ence purposes of books and phonograph records supplied for review, be-
cause (according to Shoquist) the reviewer may have to refer back to an
earlier book or record from the same source in order to make some compar-
ison and comment. The record fails to show why Respondent rejected this
means of enabling employees to obtain information relevant to performing
their jobs. Nor is there any evidence that in drawing up its "Rules," Respon-
dent took into account LaBraska's belief that his prior "wave-in" privileges
caused him to see films which he otherwise might not have seen, thus en-
larged his knowledge of that art form, and thereby improved the quality of
his reviews.
79 Indeed, the record affirmatively shows that Editor-Publisher McMillin
did not know about reviewer LaBraska's belief that a second free ticket
improved the quality of his reviews. City editor Zweifel did know, but
equated reviewing with sports coverage.
80 See Brotherhood of Locomotive Firemen and Enginemen, 168 NLRB 676,
680 (1967), enfd. sub nom . Office and Professional Employees International
Union, Local 425, 419 F.2d 314, 321 (C.A.D.C., 1969). The Board there held
that a practice of assigning office employees to perform audits on a part-
time basis was a mandatory bargaining subject because, inter alia, it "pro-
vided employees in the unit . . . the opportunity of widening their scope of
experience and opportunity for advancement through participating in work
Continued
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reputation among readers and prospective employers.81
The considerations in the foregoing paragraph also sup-
port the conclusion that Respondent was obligated to bar-
gain about the requirement that employees report to Re-
spondent "public relations and publicity work for other
organizations" and any "potential conflict of interest by
his or her participation in a group or cause ." The very
purpose of such requirements is to enable Respondent to
prevent newsgatherers from receiving assignments relating
to the reported activities . If this requirement leads a news-
gatherer to abandon contacts which he would otherwise
have to tell management about , to this extent he might well
feel handicapped in performing at least certain kinds of
journalistic work , such as "advocacy journalism ," and also
might well experience a sense of loss in his personal life.
On the other hand , if the newsgatherer elects to continue
this activity and tell management about it , he runs at least
the risk that management will stop assigning him to cover
the very areas where he may have acquired the best exper-
tise and contacts , and perhaps the risk that he will lose his
job altogether if the assignments Respondent is therefore
willing to give him are sufficiently circumscribed by out-
side activities suggesting to Respondent a broad or impor-
tant conflict of interest (cf. supra, fn. 73), or even if his
report reveals to management aspects of his private life of
which management disapproves for reasons unrelated to
conflict of interest.
In finding that the sports-pass rule and the "Rules and
Guidelines" constitute, at least prima facie,, terms and con-
ditions of employment , I am wholly unimpressed by
Respondent's reliance , in connection with its contention
that "the standards do not affect how the employees carry
out their jobs ," on the testimony of unit members McCrea,
Milverstedt , and Beckmann . Aside from the omissions in
Respondent's description of their testimony 82 and in its
requiring independence of judgment and operation and the opportunity to
broaden their knowledge of the [employer's) operations ." Like factors have
been taken into account in finding that unlawful punitive action has been
directed against employees . See Republican Publishing Company, 73 NLRB
1085, 1091, 1104-07 (1947). enfd. 174 F.2d 474 (C.A. 1) (because demotion
from city editor to reporter and transfer to affiliated paper, all without loss
of pay, put employee in "an inferior position professionally ," his consequent
resignation constituted an unlawful discharge ); Mullins Broadcasting Com-
pany, 200 NLRB 119, 127 (1972 ). ("For. . .'talent ' employees ... person-
al, non -rangible , factors frequently contribute significantly to work satisfac-
tion. Work schedule changes calculated to withdraw from such employees
job duties and functions which require more initiative , carry greater respon-
sibility, and present a greater challenge necessarily render their work less
desirable .. .") The employee in Mullins prepared radio documentaries,
obtained and recorded statements from newsworthy persons, and prepared
"lead-in" copy to be read before such statements were broadcast. 200
NLRB at 120-121.
81 See Shell Oil Company, 167 NLRB 243, 248 (1967). The employee's
professional reputation is among the interests protected by restrictions on
management 's use of the reporter 's byline , which restrictions are included in
the instant bargaining agreement and have been held mandatory subjects of
collective bargaining . See Express Publishing Company, 13 NLRB 1213, 1217
(1939), enfd. in relevent part I I I F.2d 588 (C.A. 5), modified in respects
immaterial here 312 U.S. 426; N.L.R.B. v. Knoxville Publishing Co., 124 F.2d
8751 881 (C.A. 6).
S McCrea and to some extent Milverstedt credibly testified , inter alia,
that they feared the "Rules and Guidelines " might cause them to lose their
jobs. Beckmann credibly testified , inter alia, that the "Rules and Guide-
lines" made her unsure about whether she could accept entertainment from
friends ( including dates) who happened to be news sources. While
assumption that like testimony would be given by employ-
ees who did not testify, the most that can be said is that
Respondent and its employees have rather similar views
about appropriate conduct in this area, and that the em-
ployees have been voluntarily observing standards rather
similar to those called for by the "Rules and Guidelines."
However, I know of no case holding that an.employer has
no duty to bargain about a condition of employment be-
cause there are only slight differences between him and his
employees about what the condition should be.
d. Amenability to collective bargaining of the areas
encompassed by the "Rules and Guidelines" and the
sports pass rule
(1) Conclusions regarding the contention that the rules'
benefits are not quantifiable
I find unmeritorious Respondent's contention that the
"Rules and Guidelines" and the sports-pass rules are not
amenable to collective bargaining because their benefits
"cannot be quantified and measured in monetary
terms." 83 The same is likewise true of such traditional bar-
gaining subjects as washroom cleanliness 84 and courteous
treatment by supervisors. Moreover, this suggested stan-
dard turns on the motives for and content of the proposal
rather than on its subject and its likely effect on employees.
Thus, Respondent's argument implies that its asserted right
unilaterally to impose the precise restrictions here at issue
might not exist if a desire to increase circulation and im-
prove its legal position had been Respondent's sole motive
therefor rather than (as it was).merely part of the motive.
Such a rule would encourage dissembling and impose, on
employee rights to protection through the bargaining pro-
cess, an arbitrary limit difficult to reconcile with the reality
that the extent of restrictions in this area is frequently if
not usually affected by financial considerations s
Respondent 's brief characterizes as a "misunderstanding" some objections
to the "Rules" advanced by Milverstedt, whom Respondent had proposed
as a "test case," Milverstedt 's testimony in this respect impresses me as an
honest interpretation which is reasonable from the standpoint of one whose
errors may, cost him his job. See supra, fns. 24-25.
8J Wald, supra, 176 NLRB at 845; Southland Paper, supra, 161 NLRB at
1078. And see Longhorn Machine, supra, where the employer unsuccessfully
defended its unilateral abandonment of presenting engraved gold watches
to employees with 10 years' service on the ground that the donees were
pawning the watches.
84 Preston Products Company, Inc., 158 NLRB 322, 344-345, 361 (1966).
enfd. 373 F.2d 671 (C.A.D.C., 1967), cert. denied 392 U.S. 801 (1968).
85 For example, at the time of the hearing the Washington Post was con-
sidering whether its gains from paying for all books sent in hope of a review
would outweigh the $180,000 a year they would cost. Similarly, Milwaukee
Journal Managing Editor Shoquist felt uncomfortable about the Journal's
failure to pay for unsolicited books, but felt that payment would be too
expensive . The very fervor with which Isaacs insisted that the newspaper
industry is sufficiently prosperous to be able to pay its own way leads me to
conclude that a significant number of newspapers do in fact take financial
considerations into account in deciding whether favors should be accepted
from news sources. Indeed, Respondent has done just this . Further, of the
substantial number of PRSA members who offer the press free transporta-
tion to and accommodations for the members' events, a significant propor-
tion do so because they believe that the events would not be covered other-
wise.
THE CAPITAL TIMES COMPANY 683
(2) Conclusions regarding industry practice
Although suggesting otherwise at the hearing, Respon-
dent tacitly concedes in its brief that counsel for the Gener-
al Counsel was not compelled to show that the area encom-
passed by the "Rules and Guidelines" and the sports-pass
rule is a traditional subject of collective bargaining.86 How-
ever, Respondent correctly points out that evidence of such
industry practice is some indication that the matter is ame-
nable to collective bargaining and a mandatory bargaining
subject 87 In denying the existence of such a practice in the
newspaper industry, Respondent heavily relies on the fact
that five newspapers 88 and the Associated Press (beginning
in 1955 and continuing until at least January 1974) have
unilaterally imposed on employees, without bargaining
with their statutory representative, restrictions similar to
some of those included in the "Rules and Guidelines" and
in the sports-pass rule. Respondent further points to the
absence of evidence that any newspaper has bargained
with the employees' statutory representative before impos-
ing a set of written rules comparable to that imposed
here.89
However, the weight of these considerations is at least
balanced, and perhaps overcome, by other factors. Thus,
the APME Standards Committee study indicates that very
few newspapers, whether organized or not, have written
restrictions in this area 90 Moreover, four of the five union-
ized newspapers shown to possess written restrictions di-
rect these restrictions only to freebies; the AP and the
Washington Post also restrict acceptance of outside em-
ployment, a restriction which Respondent concedes is a
mandatory collective-bargaining subject; and the Washing-
ton Post's "Code of Ethics" stresses nonparticipation in
certain activities rather than the duty to report participa-
tion to management-the most Respondent now contends
it can unilaterally require (see supra, fn. 73).
Furthermore, some areas encompassed by the "Rules"
have in fact been bargained about in contexts somewhat
different from that presented here. Thus, in negotiations
sb Houston Chapter, Associated General Contractors, Inc., 143 NLRB 409,
413 (1963), enfd. 349 F.2d 449 (C.A. 5, 1965), cert. denied 382 U.S. 1026;
Richfield Oil Corporation v. N. L. R. B., 231 F.2d 717, 721, 723-724 (C.A.D.C.,
1956), cert. denied 351 U.S. 909.
87 Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 211-212
(1964).
e8 Namely, the Indianapolis Times in the early 1940's, the St Louis Star-
Times in the mid-1940's, the Washington Post since at least 1963, the Mem-
phis Commercial-Appeal since August 1972, and the Pittsburgh Post-Gazette
since March 1974. The first two newspapers are no longer being published.
69 Respondent also relies on the absence of evidence that the Guild bar-
gained with employers before adopting its own "Code of Ethics." However,
there is no evidence that the Guild or any of its affiliates has sought to
impose that code on employers unilaterally, or to obligate anyone but its
members to respect it . In any event, Respondent' s contention in this respect
is relevant primarily to any contention, the converse of Respondent' s funda-
mental premise in this case , that the subject matter is the sole prerogative of
the Union . Cf. N.L. R.B. v. Furriers Joint Council of New York affiliated with
International Fur & Leather Workers Union of the United States and Canada,
224 F.2d 78, 80 (C.A. 2, 1955).
90 Of the 65 APME members who answered the 1972 question , "Do you
have a stated policy for all editorial staffers on outside work and the accep-
tance of gifts, favors, tickets, free trips, and the like?," 89.2 percent replied
that they had no policy in print, and 9.2 percent that they were preparing
one now.
about expense -account regulations , a traditional collective-
bargaining subject in the newspaper industry among
others , the agreements reached have no doubt been affect-
ed by knowledge that an insufficient expense account ex-
poses a newsgatherer to pressures flowing from a news
source willing to rectify it 91 Moreover , reported arbitration
cases in the newspaper industry, which cases almost cer-
tainly constitute only a small proportion of cases actually
processed , indicate that where bargaining agreements in
the industry contain few or no specific provisions in this
area, such problems have been handled through the griev-
ance-arbitration procedure 92 Furthermore , the AP and
(with two possible exceptions) 93 all the unionized newspa-
pers with written restrictions regard grievances based on
discipline for alleged breach of the code as subject to the
grievance and arbitration procedure . This circumstance
and the nature of the restrictions suggest that issues in this
area have as a matter of practice been resolved in the griev-
ance-arbitration procedure . The disposition of issues
through this part of the collective -bargaining process is en-
titled to weight in determining whether they are amenable
to that process . Fibreboard, supra, 379 U.S. at 21294 Also
entitled to some limited weight is the fact that the "integri-
ty" clause of the current agreement contains some provi-
91 Thus, AP Vice President Fuller testified that he believed that the ex-
pense-account provision in the AP 's bargaining agreement emanated from
the AP . My acceptance of the Union 's and the General Counsel 's conten-
tion regarding this aspect of expense-account bargaining reinforces my
adherence to my hearing action in rejecting Resp. Exh. 9 for identification.
This document purports to be a "Topical Summary, Editorial and Commer-
cial Contract Provisions as of November 1, 1973," circulated by the Ameri-
can Newspaper Publishers' Association . It classifies under a number of
"Topics" contract clauses which , if read in their original form , might cover
areas encompassed by Respondent 's "Rules" (e.g., arbitration ; discharges;
expenses; fair employment practices , including discrimination because of
political belief; integrity; and outside work-"may not exploit position with
publishers"). (The APME Standards Committee 's 1972 report includes al-
leged comments by some editors that "contracts with Guild units prohibit
discharge the first time around even if in their judgment circumstances and
the value of a gift warrant such action.") For this reason, and because the
document fails to show who made the study or (more importantly) what
contracts were studied , I rejected the exhibit . Cf. supra, In. 57. Respondent's
counsel stated that Resp . Exh. 9 for identification was not being offered for
the purpose of showing that the newspapers without an "integrity" clause
"in fact, have an integrity issue or that they, in fact, have an ethical issue
that was not bargained."
92 New York Corporation and Newspaper Guild of New York, 62 LA 225
(1973); Tribune Publishing Co., Publisher of the Oakland Tribune, and San
Francisco -Oakland Newspaper Guild, Local 52, 42 LA 504 (1963); Union-
Tribune Publishing Co., and San Diego Newspaper Guild, 51 LA 421 ( 1968).
See also San Mateo Times and San Francisco -Oakland Newspaper Guild, 54
LA 1273 (1970), interpreting a contractual provision forbidding use of the
publisher's name to exploit the newspaperman's outside endeavor ; Forest
City Publishing Co., Cleveland Plain Dealer and Cleveland Newspaper Guild,
Local 1, 58 LA 773 (1972).
93 Namely, the Pittsburgh Post-Gazette and the Memphis Commercial Ap-
peal. The only evidence regarding their written rules consists of documents
offered and received into evidence after the close of the testimonial hearing.
Moreover, these rules do not contain any provision for punitive action.
Indeed , the Pittsburgh Post-Gazette 's "Statement of "Policy" concludes by
stating, "All staff members should be aware that good judgment is more
effective than any rules or regulations."
94 This principle may explain the position of Respondent's counsel that
although Respondent is in fact willing to entertain through the contractual
grievance -arbitration procedure grievances based on discipline for violation
of the "Rules and Guidelines ," Respondent is not under any statutory obli-
gation to entertain such grievances at all. Respondent 's managing editor,
Meloon, testified that he thought Respondent was under a statutory duty to
entertain such grievances.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions related to provisions in the "Rules and Guidelines"
(see N.L.R.B. v. Gulf Power Company, 384 F.2d 822, 824
(C.A. 5, 1967) ),95 and similarly related provisions were
proposed b t the Union during negotiations for a new
agreement . Respondent's rejection of this proposal, on
the ground that the existing "integrity" clause was the best
in the country, suggests some industry practice of bargain-
ing in this area 97
(3) The parties ' interest in discussion and agreement
While there is thus evidence that the matters covered by
the "Rules and Guidelines" and sports-pass rules have to a
significant extent been successfully bargained about in the
newspaper industry , my conclusion that such matters are
amenable to the collective -bargaining process rests largely
upon the evidence that both employers and employees
have a substantial interest-entirely apart from any statu-
tory obligation-in discussing such matters and reaching
an agreement . Thus, as Respondent's brief concedes:
... the Company [does not feel] that its morals are
higher than those of its employees , or that it has a
greater moral insight . The content of these standards
would no doubt be improved if they were drafted as a
result of a joint project with the Guild. As with most
rules of conduct , the end product is frequently im-
proved when those involved engage in a vigorous ex-
change of ideas while working towards a common
goal. This is exactly what the Company attempted to
do when it solicited the ideas and suggestions of its
employees and the Guild.98
n The bargaining agreement provides, inter alia, "An employee shall not
be required to use his position as an employee for any purpose other than
performing the duties of his position ;" while the "Rules and Guidelines"
provide , "Employees should not use their position on the paper to their
advantage in commercial transactions or for other personal gain ." In addi-
tion , the current agreement 's provisions limiting the employee's duty to re-
veal his news sources effect an adjustment between his need to establish and
maintain such sources in order effectively to obtain news for Respondent,
and Respondent 's need to defend itself against libel action-an employer
interest which played a part in the promulgation of both Respondent's
"Rules and Guidelines" and the Washington Post 's "Conflict of Interest"
restrictions.
96 The Union proposed , inter a/ia, that "An employee shalt not be re-
quired to perform, over his protest , any practice which in his judgment
compromises his integrity ." See also infra, In. 97.
m Cf. Rockford Newspaper, Inc., and Consolidated News Services, Inc., and
Rockford Newspaper Guild, 63 LA 251 (1974). The arbitrator there upheld
the discipline of a newspaper reporter for refusing to write a story about a
particular company, where his refusal was based on the contention that to
publish the story that night and before being able to obtain a response from
that company would have violated his professional integrity . The arbitrator
pointed to the union's lack of success in obtaining during bargaining negoti-
ations a provision that an employee would not be required to perform over
hisjrotest any practice which compromised his integrity.
However , there is no substantial record evidence that Respondent solic-
ited any suggestions from the Union until Meloon 's May 24 , 1974, letter to
the Union , written after the promulgation of the "Rules and Guidelines"
and, probably, after Woodstock told him that the Union was seriously con-
sidering filing an unfair labor practice charge. The letter asserted that Re-
spondent had "repeatedly sought suggestions from employees and from the
Guild on the subject of ethics . Any suggestions you now care to make on
this subject will be welcome" Meloon testified that he was "sure " he orally
made known to Union President Woodstock that Respondent was willing to
listen to suggestions from the Union, but he did not relate what he said to
Respondent's position in this respect is supported by the
testimony of its expert witness Isaacs, who testified that his
own views about proper policy which should be followed in
this area had been based to at least an appreciable extent
on his conversations with nonmanagement employees and
"I would go one step beyond that. I think that in too many
cases the managements are reluctant to adopt what seems
to me to be a desirable course of action from what I testi-
fied earlier was a non-ethical , economic situation, where
the employees want a much stronger situation ." 99 Further-
more , when I asked Isaacs whether discussion with the
Union might cause Respondent to promulgate a better set
of "Rules" even if no ultimate agreement was reached,'
Isaacs replied, "Well, certainly. In other words, if I under-
stand what you're saying, is that after the management has
taken this position, that it can both amend and can go
forward with the thing with the union having some voice in
this thing? And I agree with that and I think that's the way
it usually operates." I In addition, as is indicated by the
testimony of Milverstedt, McCrea, and to some extent La-
Braska , the bargaining representative's agreement to par-
ticular rules is likely to make the employees more coopera-
tive in carrying them out. Such willingness assumes
particular importance with respect to newsgatherers in the
newspaper industry, since much of their work requires the
employees to exercise their individual initiative and judg-
ment . Furthermore, to the extent that the newspaper wants
a written code in order to impress readers or news sources,
the code's effectiveness might well be enhanced if the
newspaper were able to add the assurance that the employ-
ees had agreed thereto through their bargaining representa-
tive.2
her in allegedly conveying this message . I do not believe he ever did convey
it Wor to May 24, 1974.
AP vice president Fuller credibly testified that on occasion the AP has
complied with employee requests that it discharge certain expenses which
the employees incurred in connection with their work, even though the news
source would pay such expenses if the AP did not, because the employees
feared that payment by the news source would compromise their news in-
tegrity or appearance of integrity. Moreover, Washington Post Labor Rela-
tions Director Wallace testified that the Post's editors frequently discuss the
Post 's code with the staff and receive suggestions from them.
1 Isaacs' testimony in this respect substantially undermines the value of
his opinion testimony that he did not believe management and the bargain-
ing representative could reach an agreement in this area . He based this
conclusion largely upon grounds that seem somewhat flimsy ; namely, diffi-
culties he had experienced before reaching a bargaining agreement regard-
ing automobile transportation on company business , and certain editors'
inability to articulate a mutually satisfactory code of ethics at the time of
the Teapot Dome case in the 1920's. His testimony as a whole indicates that
his real reservations about collective bargaining in this area involved peri-
ods before a code 's initial promulgation rather than subsequent bargaining
about changes, and were merely a part of his concern that the top manage-
ment representative's efforts to obtain the prior approval of anyone else,
including other members of management , would indefinitely delay the ef-
fectuation of any code at all.
2 Managing Editor Shoquist of the Milwaukee Journal, whose newsgather-
ing employees are not represented by any labor organization , credibly testi-
fied that he believed the Journal's credibility among its readers would be
enhanced by evidence of an affirmative desire by rank-and-file employees
to comply with the Journal 's "Rules." Respondent 's Editor-Publisher Mc-
Millin testified that the publicity which he intends eventually to give to the
"Rules and Guidelines ," in order to improve Respondent 's credibility to the
reading public , might be more impressive to the public , and could not be
less so, if it included a statement that the employees had subscribed to it
through their collective-bargaining representative.
Washington Post Labor Relations Director Wallace initially testified, in
response to a question from union counsel, that he believed the inclusion of
THE CAPITAL TIMES COMPANY 685
Likewise, the nature of the newsgatherers' profession
gives them a natural and profound interest in reaching an
agreement about the matters covered by the "Rules and
Guidelines" and the sports-pass rule. The existence of this
special interest is illustrated by the fact that the Union's
parent International approved in 1934, many years before
management's enunciation of any of the "codes" shown in
this record, both a code of ethics and a set of resolutions in
this area. Indeed, the Guild has been preparing a revised
code while the APME has been preparing its first. Further
illustrative of this employee interest is the 1973 adoption of
a "Code of Ethics" by Sigma Delta Chi, a journalists' fra-
ternity whose membership includes nonmanagement mem-
bers of the working press (supra, fn. 8). This demonstrated
professional concern among newsgatherers in maintaining
and effectuating journalism's broad social purposes rein-
forces the incentive for agreement generated by their con-
cern about working conditions and by the fact that failing
agreement, the employer is free unilaterally to put his own
proposal into effect. Employee anxiety to reach an agree-
ment in this area is indicated by employee Milverstedt's
testimony that he hoped Respondent and the Union
"could sit down and hammer out the best code of ethics in
the country," and McCrea's testimony that he wanted con-
tractual provisions in this area to give the employees a
meaningful voice therein and a sense of pride and security.
While it is true that opinions about the substance of re-
strictions in this area widely diverge in the newspaper in-
dustry as a whole, the willingness of a particular newspaper
and particular newsgatherers to work together strongly
suggests that they have some similarity of approach in the
professional standards field. For example, in the instant
case much of the dispute about the "Rules" centers on
employee and union complaints that they are vague and
arguably include particular conduct which should be per-
mitted, and company assertions that the "Rules" are being
misread and do not forbid such conduct at all.
Finally, as discussed at greater length infra,
Respondent's principal reason for enunciating
Respondent's rules-its judgment that they would improve
its "credibility"-shows concern for considerations that
from the employees' standpoint are working conditions as
to which the employees' and Respondent's interests, far
from being competing or even reciprocal, are largely the
same . Accordingly, I conclude that there is a sound basis to
anticipate that bargaining in this area will lead to a mutual-
ly satisfactory agreement.
e. Respondent's contention that the "Rules and Guidelines"
and sportspass rule lie wholly within its managerial
prerogative, and that Respondent's first amendment rights
would be violated by requiring it to bargain about such rules
Respondent denies a duty to bargain about the "Rules
and Guidelines" and the sports-pass rule largely on the
ground that they are wholly within its managerial preroga-
tive because they lie at the core of entrepreneurial control.
Respondent seeks to support this contention by asserting
that the significance of the subject to an employer in the
newspaper business outweighs its effect on the employee
newsgatherers' wages, employment security, and working
conditions. While I agree with Respondent's approach to
the problem of ascertaining the scope of an employer's
managerial prerogative, I do not agree that this approach
leads to its proposed result.
As previously found, these rules affect the employees'
wages; their job security;3 and their ability to perform their
work, to progress on the job, and to obtain work elsewhere.
Notwithstanding the testimony of Respondent' s managing
editor that Respondent's "Rules and Guidelines" had
"very little effect" on the quality of Respondent' s rules is
outweighed by Respondent's newspaper. However,
Respondent's discussion of these allegedly competing in-
terests is misleadingly superficial.
It is clear from this record and from my ordinary human
experience that the eventual contents of a newspaper re-
sults from the publisher' s assessment of many, and fre-
quently interrelated, factors. Among these considerations
are or may be the financial cost of newsgathering, the ac-
cessibility of news sources, protection against libel actions,
the need for paid circulation and for advertising, readers'
inclination to believe the contents of that publisher' s news-
paper, and the newspaper's desire to cause its readers to
believe particular facts or opinions to be correct. The
newspaper's credibility is involved in or closely related to
several of these factors and doubtless plays a part in the
publisher's assessment; indeed, I assume that all other
things being equal, almost any newspaper publisher would
choose action which contributes to credibility rather than
action which does not .4 However, the fact remains that the
newspaper's credibility is only one of the factors which the
publisher takes into account in deciding what to print in
his paper.
The foregoing analysis brings out the fact-perhaps ob-
the Post 's "code of ethics" in a collective -bargaining agreement would ren-
der it less strong to the public, because "We could not say this is our creed,
these are our principles . We'd have to say this is part of the labor contract
between the Post and the Washington -Baltimore Newspaper Guild." When
I asked Wallace whether the publicizing of the code might be more persua-
sive to the public if they knew that management had the cooperation of the
employees , Wallace explained his negative answer on the logically irrele-
vant, but psychologically highly relevant, ground that newspaper publishers
and editors like to draw up their own creed . Moreover , he then testified that
the Post had never attempted to draw its 11-year-old "code" to the attention
of the reading public . I do not believe that Wallace was expressing his
honest opinion about the public relations value of a bargaining agreement
on this matter. Rather, and in view of his credible expression of preference
for freedom of management in this area, I believe that he was engaging in
somewhat clumsy advocacy.
3 While not determinative of the scope of managerial prerogative in the
sense used under this heading, these factors are entitled to weight. Fibre-
board, supra, 379 U.S. at 210-214; Blue Cab Company, 156 NLRB 489, 490,
fn. 4, 504 (1965), enfd. 373 F.2d 661 (C.A.D.C., 1967), cert. denied 389 U.S.
837. Cf. Vegas Vic, Inc., d/b/a Pioneer Club, 213 NLRB 841 (1974);
N. L. R. B. v. Hilton Mobile Homes, 387 F.2d 7, 11-12 (C.A. 8, 1967); General
Motors Corporation, 191 NLRB 951 (1971), affd. 470 F.2d 422 (C.A.D.C.).
4 Both employers and unions can legitimately take bargaining postures
based upon good-faith judgments rather than hard evidence, and on ethical
rather than economic considerations . N.L.R.B. v. Insurance Agents' Interna-
tional Union , AFL-CIO, 361 U.S. 477, 488-489 (1960). Accordingly, I reject
the Union's contention that Respondent cannot lawfully assert its "credibil-
ity" argument because a midwestern survey indicates that most readers are
unaware of the problems addressed by Respondent' s rules and there is no
evidence that these problems did or would affect Respondent 's circulation.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scured by Respondent's characterization of its own interest
as, simply, "credibility"-that a publisher's determination
of the scope to be afforded the "credibility" consideration
has almost certainly taken into account possibly competing
considerations. The fact that such considerations frequent-
ly include costs, and that Respondent admittedly took
costs into account in formulating its rules , substantially un-
dermines Respondent's contention that its entrepreneurial
rights would be invaded by a requirement that it bargain
with the Union about whether Respondent should assume
certain additional financial burdens which Respondent's
initial determination has imposed on its employees rather
than on itself. See Fibreboard, supra, 379 U.S. at 213-214.5
Indeed, by conceding that the "Rules and Guidelines"'
"Outside Employment" provisions are mandatory subjects
of collective bargaining,6 Respondent concedes that the
possible effect on itself of an employee's outside job which
in Respondent's view presents a conflict of interest does
not privilege Respondent, unilaterally and without even
being compelled to consider possible recompense, to de-
prive the employee of that job and its income. Second, and
more important, this analysis shows that a publisher's
"credibility" judgment likely encompasses (as Re-
spondent's "credibility" judgment did in fact encom-
pass) matters found to be employee working conditions
partly for the very reason that they affect the employees'
own professional "credibility." Their own "credibility" is a
substantial if not overriding factor in their own ability to
do their job well, thc;r own ability to progress on the job,
and their own ability to obtain work elsewhere. Likewise,
the writer of allegedly defamatory matter has an interest in
common with the publisher's in avoiding libel proceedings,
because both will be answerable therefor.' Particularly be-
cause these employee interests are closely analogous to the
employer interests assertedly protected by its managerial
prerogative, I conclude that Respondent's interest in the
subject matter of the rules does not outweigh the employ-
ees' interest . Rather, I find that Respondent 's interest is
adequately protected by its right to insist in good faith that
the Union agree thereto, and its right to put its own pro-
posal into effect should the parties reach a bargaining
deadlock .9
5 Like bargaining agreements common in other industries , the agreement
between Respondent and the Union calls for a union shop; requires Re-
spondent to follow seniority in layoffs and recalls for economic reasons, to
notify the Union of vacancies, and to give full consideration to the hiring of
any candidates supplied by the Union; and limits Respondent 's rights to
transfer employees between jobs and to have unit work performed outside
the unit . By affecting the identity of the newsgatherer who performs particu-
lar work, such provisions may well affect the content of the newspaper. For
differing reasons, Respondent and counsel for the General Counsel have
declined my invitation to comment about whether such provisions consti-
tute a mandatory subject for collective bargaining about newsgatherers in
the newspaper industry. However , there is no claim that such matters are
not in practice bargained about , nor am I aware of any basis for such a
claim . See Express Publishing, supra, 13 NLRB at 1217; see also Gulf Power,
supra, 384 F.2d at 824.
6 Cf. Marquette Cement Manufacturing Company, 213 NLRB 182 (1974).
7 Reynolds v. Pegler, The Hearst Corporation, and Hearst Consolidated Pub-
lications, Inc., 223 F.2d 429, 431, 434 (C.A. 2), cert. denied 350 U.S. 846.
'Cf. Taft Broadcasting Co., 163 NLRB 475 (1967), affd. sub nom . Ameri-
can Federation of Television and Radio Artists, 395 F.2d 622 (C.A.D.C..
1968), finding that a television station bargained to a legally cognizable
impasse over its demand , inter a/ia, for freedom to assign artistic personnel
Respondent's entrepreneurial claim is further drawn into
question by the Board's and the courts' approach to 8(a)(3)
and (4) complaints attacking personnel action against
newsgatherers and like employees. Such cases against
newspapers and other media have been routinely disposed
of on the basis of principles applicable to employers and
employees generally, even where the quality of the
respondent's product is advanced as a defense or might be
affected by a remedial order." Particularly because of the
bargaining representative's presumptive right to compel
bargaining in order to protect employees from unlawful
employer conduct, such precedents lend weight to the view
that the bargaining representative's right to compel bar-
gaining about newsgatherers' employment conditions is
not foreclosed by a possible effect on the quality of the
newspaper. Of particular significance is Lowell Sun Pub-
lishing Co., 136 NLRB 206, modified 320 F.2d 835 (C.A. 1).
The Board there found unlawful the transfer of employee
Dudley to the only night-shift job in the editorial depart-
ment ; the transfer of employee Breen, allegedly because,
inter alia, a news source had complained about Breen's
"slanted" coverage and Breen's column was really written
by his wife; and Breen 's discharge, allegedly for neglecting,
inter alia, his duty to check articles for libelous matter and
to appraise late-received news items for possible insertion
in the paper. The Board ordered Breen's reinstatement not-
withstanding his subsequent threat to write a journalistic
"expose" of the private life of one of the newspaper's own-
ers. The court of appeals approved the Board's findings
that Dudley and Breen were unlawfully transferred. More-
over, in concurring with the principal opinion's view that
Breen's discharge was not unlawful, two members of the
three-member panel found appropriate the rule that a dis-
charge may become discriminatory if the evidence indi-
cates that the union activity weighed more heavily in the
discharge decision than did dissatisfaction with the
dischargee's performance. 320 F.2d at 842. In its factual
context, this means that at least a majority of the panel
would have found Breen 's discharge unlawful even though
partly motivated by the reasons advanced by the employer,
if union activity had been its primary motive. See also Tri-
angle Publications, Inc., 204 NLRB 651 (1973) (ALJD)
enfd. 500 F.2d 597 (C.A. 3, 1974).
Finally, Respondent contends that to require it to bar-
gain about these rules would infringe its First Amendment
rights. As the Union points out, "The Board's position has
always been that it must assume the constitutionality of the
Act which it is called upon to administer, in the absence of
a binding court decision to the contrary." Amalgamated
Lithographers of America (Ind) and Local No. 17 of the Am-
algamated Lithographers (Employing Lithographers, a Divi-
sion of the Graphic Arts Employers Association), 130 NLRB
985, 991 (1961), enfd. 309 F.2d 31 (C.A. 9, 1961), cert. de-
without regard to category and for deletion of a requirement that a produc-
er-director be assigned to all "live camera" programs.
9 See, e .g., Mullins Broadcasting, supra, 200 NLRB 119 (1972); Republican
Publishing Co., supra, 73 NLRB at 1091 -1092, 1104-07, enfd. 174 F.2d 474
(C.A. 1); East Side Shopper, Inc., 204 NLRB 841 (1973) (ALJD ), enfd. in
part 498 F .2d 1334 (C.A. 6); Hearst, 2 NLRB 530, 545-547 (1937), enfd. in
relevant part, 102 F.2d 658 (C.A. 9); Catholic Press Society, Inc., 151 NLRB
1181 (1966 ): Rounsaville of Nasvhille, Inc., 182 NLRB 562, 575-583 (1970);
Kaye-Smith Enterprises, 211 NLRB 1034 (1974).
THE CAPITAL TIMES COMPANY 687
nied 372 U.S. 943. However, because this policy may not
necessarily foreclose the agency from interpreting the stat-
ute to avoid an unconstitutional result, it may be ap-
proached to append the reasons for my rejection of
Respondent 's constitutional argument.
As the Supreme Court recently said in Branzburg V.
Hayes, 408 U.S. 665, 682-683 (1972):
It is clear that the First Amendment. does not invali-
date every incidental burdening of the press that may
result from the enforcement of civil or criminal stat-
utes of general applicability. Under prior cases , other-
wise valid laws serving substantial public interests
may be enforced against the press as against others,
despite the possible burden that may be imposed. The
Court has emphasized that "[t]he publisher of a news-
paper has no special immunity from the application of
general laws. He has no special privilege to invade the
rights and liberties of others." Associated Press v.
N.L.R.B., 301 U.S. 103, 132-133 (1937). It was there
held that the Associated Press , a news-gathering and
disseminating organization , was not exempt from the
requirements of the National Labor Relations Act.
The Supreme Court's broad 1972 reading of its 1973 Asso-
ciated Press decision indicates that Respondent attaches
undue constitutional significance to the absence of any
claim in that case that the employee's discharge was moti-
vated by a belief that he was biased in his coverage of the
news. As shown supra, after the Associated Press decision,
the Board and the courts have treated such a defense to a
discrimination allegation precisely as they would treat a
defense that the employee was really discharged because of
(for example) tardiness.10
In connection with Respondent's reliance on its own
constitutional rights, I attach significance to the fact that
the employees in the bargaining unit have the constitution-
al right to freedom of expression and association, including
under at least some circumstances the right to keep to
themselves their participation in unpopular causes." While
such constitutional rights are not necessarily free from in-
fringement by private parties, their existence does point to
the validity of a Congressional command that a private
employer bargain with his employees' representative about
whether to take action which limits such rights. While it is
true that the newspaper employee's own constitutional
right to freedom of expression is subordinate to that of the
newspaper which employs him, so too is the bargaining
representative's proposal to the publisher's statutory right
to put into effect his different proposal after in good faith
pressing it to impasse.12
10 See also Pittsburgh Press Co. v. Pittsburgh Commission on Human Rela-
tions, 413 U.S. 376, 397, 400 (1973) ( dissenting opinions).
11 Branzburg, supra, 408 U.S. 665, especially at 675-681; National Associa-
tion for the Advancement of Colored People v. Alabama, 357 U.S. 449, 460-
466.
12 At the hearing, I invited the parties to discuss the Tenth Circuit 's opin-
ion in Wichita Eagle & Beacon Publishing Co., Inc. v. N.L.R.B., 480 F.2d 52
(C.A. 10, 1973), cert . denied 416 U.S. 982. As counsel for the General Coun-
sel points out , the actual holding in Wichita Eagle (that a member of a
newspaper's editorial page department was not an employee within the
meaning of the Act ) is inapposite here . In the instant case , Respondent
admits in its answer that the contract unit is appropriate and consists solely
f. Conclusion as to whether the sports pass rule and the
"Rules and Guidelines" constitute a mandatory subject of
collective bargaining
For the foregoing reasons, I conclude that the sports-
pass rule and the "Rules and Guidelines" constitute man-
datory subjects for collective bargaining because they af-
fect the unit employees' wages and working conditions. Ac-
cordingly, a refusal to bargain about them is not excused
by the possibility that the duty to bargain may not extend
to particular factual situations, not presented by this rec-
ord, which may be within the reach of Respondent's broad
rules as already promulgated. See Gulf Power, supra, 384
F.2d at 824.
2. Whether Respondent violated its bargaining obligation
with respect to the sports-pass rule and the "Rules and
Guidelines"
In view of my finding that the sports-pass rule is a man-
datory subject of collective bargaining, I find that Respon-
dent violated Section 8(a)(5) and (1) of the Act by its
March 15, 1974, promulgation of that rule, without giving
the Union notice and an opportunity to bargain about it,
and by withholding an offer to bargain about the matter in
response to the Union's letters of April 8 and 19, which I
find to constitute, both separately and collectively, effec-
tive bargaining demands with respect to this matter (infra,
fn. 113). My conclusion in this respect is unaffected by
Respondent's earlier instructions to no more than 4 per-
sons in the 6-person sports department, in the summer of
1973 and prior to the 6-month limitations period imposed
by Section 10(b) of the Act, to stop "Getting freebies, get-
ting tickets in their name from the university through their
jobs, getting tickets." The Union could not have asked Re-
spondent to bargain about this 1973 directive before learn-
ing about it, as the Union never did notwithstanding
Respondent's statutory duty to notify it; the 1973 directive
was as a practical matter inoperative as to at least a third of
the sports department, to whom it was never conveyed;
and in any event the 1973 directive differed from the
March 1974 sports-pass rule.13 See National Football
League Management Council, 203 NLRB 958 (1973), re-
manded with approval of this finding, 503 F.2d 12, 15, 17
(C.A. 8, 1974).
In view of my finding that the "Rules and Guidelines"
constitute a mandatory subject of collective bargaining, I
of statutory employees; there is no evidence that any of the persons in the
recognized unit participates in determining the content of Respondent's edi-
torial page; the concededly appropriate unit excludes , inter alia, "one editor,
one executive editor, one associate editor, one managing editor, [and] one
city editor;" and there is. affirmative record evidence that conceded mem-
bers of management participate in determining editorial-page content.
While I have some difficulty with Wichita Eagle's suggested constitutional
distinction between the reporting of news and the creation and expression of
subjective opinion on the newspaper's behalf (cf. Miami Herald Publishing
Co. v. Tornillo; 94 S. Ct. 2831, 2840, fn. 24), any wider implications of
Wichita Eagle are not before me.
13 Thus, the 1974 rule specifically forbade both the receipt and solicitation
of free tickets, but specifically permitted the acceptance of "a press box
ticket or pass but for coverage only." The 1973 directive did not spell out
any of these terms. Moreover, the 1974 directive, unlike that in 1973, was
accompanied by threats of discipline for its breach. Murphy Diesel, supra.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Respondent violated Section 8(a)(5) and ( 1) of the
Act by withholding an offer to bargain about the matter in
response to the Union 's letters of April 8 , May 17, and
June 15, 1974, and Woodstock's statement to Meloon
about May 19 , 1974, each and all of which I find to consti-
tute , both separately and collectively , effective bargaining
demands with respect to this issue ; 14 on May 17, 1974, by
instituting the "Rules and Guidelines" without negotiating
with the Union ; on August 29, 1974, by rejecting the
Union's concededly effective oral demand on that date for
bargaining about the matter ; 15 and on and after March 12
in bypassing the Union and, instead , soliciting individual
employee suggestions about the contents of the "Rules and
Guidelines ." 16 I find unmeritorious Respondent's hearing
contention that Respondent secured an effective waiver of
its duty to refrain from individual bargaining about the
1974 "Rules and Guidelines" when the Union agreed, dur-
ing 1971 bargaining negotiations , to McMillin's posting for
a "real long time" of a notice dated July 28, 1971, stating,
inter alia, "This notice is to advise all staff members that
they have every legal right to meet with management and
that management welcomes such discussions , either in
groups , as Guild committee or individuals ." The agreement
that this letter be posted constituted a compromise of the
Union 's successive contract proposals, to which Respon-
dent would not agree , for an unedited union column in the
newspaper and for an employer-union committee to deal
with "all problems with the paper , the paper's policies. "
Because the agreement about the "open door" letter was
not reached in connection with negotiations related to the
subject matter of the "Rules and Guidelines," it did not
constitute a clear and unmistakable waiver of the Union's
exclusive bargaining rights with respect thereto and , there-
fore , cannot justify invasion of such rights."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
1°Charles Kushins Co., 168 NLRB 339, 345-346 (1967): N.LR.B. v.
Barney's Supercenter, Inc., 296 F .2d 91, 93 (C.A. 3, 1961). 1 note that Meloon
reacted to the Union's April and May communications by offering to meet
and negotiate about `elements in the section dealing with outside employ-
ment ." In view of this offer and Meloon 's demeanor , I do not believe his
testimony that he did not interpret any of the Union 's letters or communica-
tions as bargaining demands.
15 Notwithstanding Respondent 's concession that it refused to bargain on
that date, the question of whether Respondent likewise refused to bargain
on earlier occasions is material both to the legality of the "Rules and Guide-
lines"' promulgation and to the remedy.
16 Fritchof A. Fosdal and Adeline M. Fosdal, d/b/a Fosdal Electric, 153
NLRB 85 , 87, 90 ( 1965), enfd. 367 F.2d 784, 788 (C.A. 7, 1966); Globe Gear
Company, 189 NLRB 422, 424 ( 1971), enfd . 451 F.2d 1348 (C.A. 6, 1971);
Action Wholesale Co., Inc., d/b/a A. L French Co., 145 NLRB 627. 637
( 1963), enfd. 342 F.2d 798 (C.A. 9, 1965).
17 Murphy Diesel, supra; Rockwell-Standard Corporation, 166 NLRB 124,
132 (1967), enfd . 410 F.2d 953 (C.A. 6, 1969); Bunker Hill Corporation, 208
NLRB 27 (1973) (ALJD).
within the meaning of Section 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 Union is and at all relevant times has been the
exclusive bargaining representative within the meaning of
Section 9(a) of the Act of the following appropriate unit:
All employees; excluding one editor, one executive
editor, one associate editor, one managing editor, one
city editor, and two confidential secretaries on the edi-
torial staff.
4. Respondent has violated Section 8(a)(5) and (1) of the
Act by unilaterally promulgating its sports-pass rule on
March 13, 1974, and by failing to honor the Union's de-
mands, by letters dated April 8 and 19, 1974, to bargain
about that rule.
5. Respondent has violated Section 8(a)(5) and (1) of the
Act by dealing directly with unit employees regarding
Respondent's "Rules and Guidelines for Professional Stan-
dards and Ethics;" by failing (except with respect to the
"Outside Employment" provisions) to honor the Union's
demands, by letters dated April 8, May 17, and June 15,
1974, and by oral communication on May 19, 1974, to bar-
gain about such "Rules and Guidelines;" by unilaterally
instituting such "Rules and Guidelines" on May 17, 1974;
and by orally refusing on August 29, 1974, the Union's oral
demand on that date for bargaining about said "Rules and
Guidelines."
6. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct and to take
certain affirmative action necessary to effectuate the poli-
cies of the Act. Because the Union demanded bargaining
about the sports-pass rule within a reasonable time after
finding out about it, and about the "Rules and Guidelines"
before their promulgation and within a reasonable time
after learning that Respondent had them under consider-
ation , I shall recommend that Respondent, on request by
the Union, rescind the sports-pass rule and the "Rules and
Guidelines" (other than the "Outside Employment" provi-
sions), and that Respondent cancel and withdraw from em-
ployee files any disciplinary actions which resulted from
failure to comply with such rules and make the employees
whole for any loss they may have suffered by reason of any
enforcement of such rules, with interest added thereto in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). In all cases of lost pay the amounts shall
be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950). I shall also recommend
that Respondent be required to post appropriate notices.
[Recommended Order omitted from publication.]