The Enquirer and News

National Labor Relations Board - Board Decisions

Nov 25, 1975

221 N.L.R.B. 778 (N.L.R.B. 1975)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federated Publications , Inc., d/b/a The Enquirer and
News and Battle Creek Newspaper Guild, Local
148. Case 7-CA-11608
November 25, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On June 27, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed a brief in answer to Respondent's
exceptions, and the Union filed a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,[ and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
After several months of bargaining, on August 1,
1974, Respondent made a new offer for a 2-year
contract providing wage increases of 7.3 percent per
year ($17 minimum wage increase the first year and
$18 for the second). On August 20, Respondent made
an alternative offer of 7.3 percent for the first year
only. On August 20, the Guild rejected Respondent's
alternative 1-year offer, but the original 2-year offer
was not discussed. On September 20, 1 day after the
Guild again rejected its offer, Respondent unilateral-
ly granted a wage increase retroactive to October
1973 covering the 1-year period only.2
On September 26, Union President Kruger by
letter to Respondent requested a meeting to reach
agreement on Respondent's 1-year offer, thus accept-
ing the $17 weekly minimum salary increase. Re-
spondent's General Manager Dennis replied that the
1-year offer had expired when rejected by the Union
on September 19. Shortly afterwards, Kruger advised
Dennis that the Guild membership had reconsidered
their rejection of the August 20 proposal and had
I Respondent excepts , inter alia, to the Administrative Law Judge's
finding that "what was reasonably meant by a two-year proposal " was one
extending until October 1976 We agree with Respondent and with the
General Counsel that the Administrative Law Judge misconstrued record
evidence in making this finding However , in our view of this case, this
finding does not affect the result herein for the reasons discussed infra
2 The General Counsel did not contend that this first unilateral wage
increase was in violation of the Act.
3 Respondent contends that when Dennis referred to its 2 -year offer as
still open, Kruger apparently charactenstically replied "forget it" and that
221 NLRB No. 128
authorized him to "sign an agreement containing the
provisions of that proposal." Dennis again responded
that there was no ]-year offer open to accept. On
October 11 Kruger again wrote Dennis with a
recapitulation of the Union position and a demand
that the parties meet for further bargaining, and a
denial that Respondent had in any way indicated on
September 19 that its 1-year offer would expire if
rejected. Kruger also reiterated the Guild's request
that the Company make available for signing its last
offer of September 19 for a 1-year contract. On
October 17, only 1 day before the anniversary of the
contract's expiration, Dennis called Kruger into his
office to discuss the matter. Dennis admitted that he
still considered the 2-year wage offer open at that
point.3
On October 22 Kruger wrote to Dennis reiterating
his request for bargaining and proposing a meeting
time and place. Nevertheless on October 29, in a
memo to news department employees, Respondent
announced a wage increase for the coming year
'effective as of October 20.
After the Union's concession as to first year wages
and its request that the Company make that proposal
available for signing, necessarily the only wages left
open to bargain about were for the second year.
Respondent concedes that its offer as to the second
year was still open on October 17, and that it did not
meet with the Union thereafter as the Union
requested. Thus, the entire bargaining atmosphere
had changed beginning September 26 when the
Union notified Respondent that it was accepting
Respondent's proposal for a 1-year contract and
wished to begin bargaining about the second year.4
Thus we agree with the Administrative Law Judge's
conclusion that no impasse had occurred when the
Respondent implemented wages for the October
1974-October 1975 period unilaterally, thus violating
Section 8(a)(5) and (1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Federated Publica-
tions, Inc., d/b/a The Enquirer and News, Battle
this constituted a rejection However, Dennis admitted that he did not
consider this meeting a bargaining session Moreover, he conceded that
Kruger immediately changed his mind and indicated that he wished to
bargain further He also conceded that he was aware Kruger did not have
authority to reject an offer under those circumstances
4 See Idaho Fresh Pak-Inc, 215 NLRB No I15 (1974) Since wages for
the second year were not discussed by the parties after the Union had
acquiesced in and accepted Respondent's terms for the first year, it is clear
that there was no impasse as to second -year wages
THE ENQUIRER & NEWS 779
Creek, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
DECISION-
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Battle Creek, Michigan, on May 22,
1975, based on 'a charge filed November 25, 1974, and
complaint i issued January 31, 1975, alleging that Federat-
ed Publications, Inc., d/b/a The Enquirer and News,
called Respondent, violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing wage increases for
employees in an appropriate bargaining unit without prior
notice to, or bargaining with, Battle Creek Newspaper
Guild, Local 148, called the Union.- The issue is whether a
bargaining impasse existed at the time of such implementa-
tion.
Upon the entire record in this case, including my
observation of the witnesses , and upon consideration of
oral argument made by General Counsel and briefs filed
by the Union and Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a corporation, publishes a newspaper in
Battle Creek, Michigan, in connection with which it
subscribes to various interstate news services, advertises
various nationally known products, annually derives gross
revenue from its business operations in excess of $500,000
and annually purchases goods valued in excess of $50,000
which it receives directly from points located outside the
State of Michigan. I find, as Respondent admits, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
These parties have a bargaining history of approximately
40 years during which successive contracts covered
employees of the editorial department.2 The most recent
was effective October 19, 1971, and expired October 18,
1973. Language of the duration clause expressly contem-
plated renewal negotiations and provided that "[T]erms of
i Respondent objected to caption style identifying it as "a wholly-owned
subsidiary of Gannett Company, Inc." Good reason not having been shown
to maintain the style of name chosen when complaint issued, Respondent's
objection in this regard is allowed. Cf Cowles Communications, Inc., 170
NLRB 1596 (1968), Hilton Inn and Skyriders Club, Inc, 134 NLRB 102
(1961).
2 The unit is described in paragraph 8 of the complaint The answer
admits it to be appropriate for purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act and that Respondent recognizes the Union
as exclusive representative pursuant to Sec. 9(a). For brevity no formal
recitation is made
3 All dates and named" months hereafter are in 1974, unless indicated
this agreement shall remain in effect during such negotia-
tions." The Union served notice of its desire for "new
contract" bargaining by letter dated October 17, 1973,
incorporating provisions of The Newspaper- Guild's consti-
tution relative to formal approval of "final [contract]
draft" and attached a copy of its proposals, which
traversed the entire expiring agreement. Negotiations
commenced November 27, 1973, and continued for 24
subsequent sessions into July.3
The next meeting occurred August 1 at which time
Respondent made a new offer of a 2-year contract with
"reporter top scale" wage increases of $17 the first year
and $18 `the second year (eacli"7.3 percent).4 This offer was
not accepted under circumstances so fraught with contro-
versy about an "overriding question" concerning observers
to the negotiations that rejection "might be argued" to
have occurred "by implication" from an exasperated
utterance of Union President Ronald J, Krueger. Respon-
dent's general manager, Gordon Dennis, ,then determined
to "move this along "[toward] a final settlement." - On
August 20 he furnished Krueger a written amendment
offering $17 for I year only without seeking to add further
exempt positions. The next meeting occurred September
19. Krueger testified that union bargainers understood the
new offer (of one year) to be "final" in an ambiguously
"alternative" sense and that following caucus the 1-year
offer (but not any 2-year offer) was rejected, Dennis
testified that during the meeting Respondent's representa-
tives described pending offers as a, variation from what
existed on August 1 and that "still. on the table [was]
seventeen ($17) for one (year),- and seventeen or eighteen
for two." He recalled a long union -caucus followed by
verbal rejection of "your offer" which he took-as referring
to both alternatives 5
Respondent then implemented,a $17, (or proportionate)
weekly wage increase retroactive to October 20, 1973,
informing news department employees of this action with a
memo dated September 20 stating the Union had rejected
this amount during negotiations as well as "the option of a
second year with a further increase of $18 per week." On
September 26 Krueger wrote Dennis to request bargaining
on "the contract proposal which you submitted to us on
August 20 [of] one-year duration, $17 weekly minimum
salary increase in key classifications and incorporation of
those other items to which we had previously agreed."
Dennis replied to Krueger by letter dated October 3 which
read:
In your letter of September 26 you state that the Guild
requests an early meeting "for the purpose of reaching
otherwise . Where context warrants , 1974 may be shown
4 The respective wage proposals (Union) and offers ( Respondent) are to
be understood by, reference to article I I I ,. 3. of the expired 1971-73
agreement (Resp Exh. 9), wherein the $232 weekly salary scale (modified
from an original $234 amount in conformance with Pay Board decision of
March 16, 1973) for a reporter' s 5-year experience level was used as a base
point
At this point in time Dennis perceived the 2-year "version" of his offer
as "tak[ing] us through the, year of October 1975" Further, I credit Styer's
denial that the Union counterproposed $30 wage increases for each of 3
succeeding years.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a- tentative agreement" on the contract proposal which
we submitted to you on August 20.
We must remind you that our one year offer submitted
to you on, August 20 was still open -to you in our
meeting of September 19, but was firmly rejected by
,Your bargaining committee. This offer expired when
rejected by you at this meeting, and I am sure from the
conversation in the early part of our meeting was so
understood by both sides.
In view, of,the fact, that we have -held a total of 27
,meetings over the last eleven months and considering
your rejection of our final offer as outlined above, we
do not believe any purpose would be served by still
another meeting.
In a further exchange of correspondence during early
October, Krueger advised that his membership had
"reconsidered' their rejection of your August 20 proposal
and have authorized me to sign an$agreement containing
the provisions of that proposal," to which Dennis reiterat-
ed that `,`no'' one year offer [was] still open to accept."
Krueger then wrote on October 1 I with a recapitulation of
his Position and a demand to meet for further bargaining.
On October 17, Dennis asked that Krueger come to his
office. Dennis testified to being mindful at the time that
"[W]e were only one day away from the expiration of the
contract." Union Secretary James L. Sayer joined the
discussion which began by Dennis stating the'1-year offer
had been withdrawn; however the 2-year offer was "still on
the table." Dennis testified 'that Krueger said to "forget it"
as "just 'a big hassle." Krueger's version is that he
disassociated the episode from true bargaining in remarks
to Dennis and expressed "some negative comments"
respecting the 2-year proposal still being "available for
us."6 Styer testified to hearing Dennis describe the 'I-year
proposal as being withdrawn with the "same basic
concept" respecting a' 2-year offer still proposed (or open)
but extended `for a further year " Subsequently Respon-
dent implemented an $18 wage increase effective' October
20 with written notice' on, October, 29'to Krueger and
affected' employees.
Aside from the salient facts as recited, negotiations -had
produced other results by August. Automobile insurance
and mileage- provisions had already been signed while
numerous subjects were bargained out from union propos-
als. Wages remained the area of disagreement. To this
extent the negotiations were rather typical, exhibiting
reciprocal concessions in key areas such as contract
duration and unit scope while the major economic issue of
wages progressively narrowed. It is unnecessary to deal
6 Krueger confirmed his "last words" by letter to Dennis dated October
22 in which be reiterated the Union's readiness to meet under' mutually
acceptable arrangements "for the purpose of reaching an agreement "
7 Throughout Respondent has derided the notion that some value might
obtain were a contract signed at a point in time when its foremost economic
aspect (wages) would almost immediately lose significance by reason of the
customary salary increase cycle This view is too narrow, and fails to
harmonize , both with ordinary artfulness of collective bargaining and this
Union's particular desire to obtain a signed contract for reasons satisfactory
or desirable to it - `
8 Just as wages remained unchanged from October 1972 (except for Pay
here in circumstantial or inferential terms based on
particular bargaining tactics , claimed significance of "final
offer" ultimatums , parallels related to. other bargaining
units , the extensive overall span of negotiations, the
fortifying of bargaining teams (legal counsel Albert' Dolata
and International Representative Louis Montenez, each of
whom attended the September 19 meeting) or to events
postdating ,the October 29 wage increase implementation.
Rather, ` the status of dealings need - only be plainly
analyzed as it existed during the controlling September 19-
October 29 period.
Stripped of all tactical gloss the parties entered the
negotiating session of September 19 with the Union simply
seeking more in' wages than what Respondent had
previously offered It is immaterial whether this, was a
weighted $11 (annually from October 19, 1973), whether it
was, better expressed as 0 percent or whether it represent-
ed $30 at the top of reporter scale 'Respondent posed
alternative offers at the time which, from its standpoint,
served to invite final resolution of the lengthy negotiations.
The fundamental problem that exists is how' each party
viewed the consequence of rejection as it was collectively
articulated from the Union's side. Respondent considered
that rejection , particularly as this triggered the September
20 wage increase action, foreclosed the timespan of
October 1973 to October 1974 as a viable subject for
further bargaining . The Union, contrarily , sought , still to
memorialize that period by a signed collective bargaining
agreement 7 and then immediately address economics of
the following year (October 1974 to October 1975).
Consistent with these respective understandings, Dennis
declined , to entertain further discussion respecting "one-
year" since he believed an offer to contract for that
duration expired, on September 19. Krueger on the ,other
hand functioned with the new, mandate of at least
formalizing the 1973-74 wage structure while striving for
acceptable wage terms covering the following year. It is
immaterial that formal approval and ratification proce-
dures would necessitate passing the wage anniversary date
since retroactivity of the wage change had the potential for
open-endedness 8 as of September 19. The critical factual
resolution relates to what was reasonably meant by a "two-
year proposal" and Styer, more so than other witnesses,9
persuasively distilled its gist from what he heard spoken as
extending to October 1976. While Respondent may
vigorously disclaim such meaning, it is nevertheless the one
most realistically interpreted from objective facts.
Addressing the main issue of the case , no true impasse
arose ' respecting wages. A bargaining impasse requires
conscious exploration of potential movement from the
particular configuration of stalled positions . i° -It did not
arise since the topic was never effectively discussed.
Board adjustment) to September 20, 1974, so too could they have similarly
extended from September 20 (as then increased retroactively to October
1973) until such future time as collectively bargained or lawfully increased
amounts would obtain
9 Krueger was imprecise and failed to display reliable memory Dennis
appeared bent on slanting his testimony and sought to equate subjective,
self-serving opinion with fact Cf Dust - Tex Service, Inc, 214 NLRB 357
(1974)
10 The Board has written that "[G]enuine impasse in negotiations is
synonymous with a deadlock the parties have discussed a subject or
subjects in good faith , and, despite their best efforts to achieve agreement
THE ENQUIRER & NEWS _ 781
Respondent contends that General Counsel is chiefly
relying on faulty- theory that so long as a party to
negotiations remains amenable to further bargaining it can
forestall an impasse situation. This has not been General
Counsel's theory and is not the basis for believing impasse
failed to occur. It is instead a matter of careful delineation
between two major topics in bargaining; contract duration
and wage offer dynamics. The Union's perception of a 2-
year offer, as voiced by Dennis on October 17, was that it
related to duration, with $18 associated to a first year of
October 1974-October 1975 and a yet unspecified amount
to be associated with the following year. Respondent's
perception of its 2-year offer was that the first half had
effectively been absorbed because of the initial implemen-
tation and the second half offer of $18 was rejected both
vocally and by Union bargaining posture keyed to either a
1-year or 3-year settlement (as to wages). In this Dennis
was wrong, both from heedless disdain of what Krueger
was awkwardly attempting to convey and from pure
mistake as to whether the Union suddenly introduced a 3-
year proposal on September 19 as an,ostensible deadlock-
ing of the matter.
Respondent has exposed faulty communication in the
course of dealings between the parties.1' However, it has
not been shown that impasse, within doctrinal meaning of
the term, occurred. Accordingly, the implementation of
wages for the October 1974-October 1975 period was
impermissible when done.
CONCLUSION OF LAW
Respondent, by unilateral action on October 29, 1974,
implementing wage increases for employees of its editorial
department, has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and (5)
and 2(6) and (7) of the Act.
require Respondent to vary such minimum salary sched-
ules as are already established for employees of its editorial
department. -
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its place of business in Battle Creek,
Michigan, copies of the attached notice marked
"Appendix." 13 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being duly signed
by Respondent's representative shall be posted by it
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
Respondent to insure that the notices- are not, altered,
defaced, or covered by any other material.
(b) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
with respect to such ,' neither party is willing to move from its respective
position". Hi-Way Billboards, Inc., 206 NLRB22 (1973).
11 To the extent that Krueger's blurted and immediately modified
"forget it" utterance (assuming without- deciding that basic bargaining
slgnfficance could be given the October 17 gathering) might have caused
impasse, such a prospect was immediately dissolved by his timely retraction.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and, all objections thereto shall be
deemed waived for all purposes.
13 In the event that the Board's 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."
APPENDIX
REMEDY
I shall recommend, with protective qualification, that
Respondent cease and desist from its unfair labor practices
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusion of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 12
Respondent, Federated Publications, Inc., d/b/a The
Enquirer and News, Battle Creek, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease 'and desist from making unilateral wage
increases for employees of its editorial department, or
refusing to bargain collectively in any like or related
manner with Battle Creek Newspaper Guild, Local 148, as
the exclusive collective-bargaining representative of such
employees; provided, however, that nothing herein shall
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally implement wage increases
for employees of our editorial departmc at without first
engaging in collective bargaining with Battle Creek
Newspaper Guild, Local 148, although this does not
mean we are now required to lower any minimum
salary schedules presently established for these employ-
ees. . -'
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise
of rights protected under the National Labor Relations
Act.
FEDERATED PUBLICATIONS,
INC., D/B/A THE ENQUIRER
AND NEws