The Independent

National Labor Relations Board - Board Decisions

Mar 25, 1996

320 N.L.R.B. 1029 (N.L.R.B. 1996)

1029
320 NLRB No. 123
THE INDEPENDENT
1 The Independent, 319 NLRB 349 (1995).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Contrary to the Respondent’s contention, our Order does not
‘‘lock in stone’’ the parties’ tentative agreements ‘‘until the next
contract is up for negotiations.’’ We have ordered that the tentative
agreements be reinstated for the purpose of good-faith bargaining
until a successor agreement is reached or the parties reach lawful im-
passe. Nothing in our Order prevents the parties, during their ongo-
ing collective-bargaining negotiations, from mutually agreeing to re-
open and reconsider in light of changed circumstances, subjects on
which they have tentatively agreed.
Massillon Newspapers, Inc. d/b/a The Independent
and Cleveland Newspaper Guild Local 1 a/w
The Newspaper Guild, AFL–CIO. Cases 8–CA–
24395, 8–CA–2477l, 8–CA–25050, and 8–CA–
25153
March 25, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 19, 1995, the National Labor Relations
Board issued a Decision and Order in this case.1 The
Board, in agreement with the administrative law judge,
found, inter alia, that the Respondent violated the Act
by reneging on tentative agreements it had reached
with the Union during collective-bargaining negotia-
tions for a successor agreement. It ordered the Re-
spondent to reinstate those tentative agreements for the
purposes of good-faith bargaining.
The judge, however, had not resolved whether, as
contended by the Charging Party, the tentative agree-
ments included a tentative agreement that the contract
would be for a term of 3 years. Accordingly, the Board
severed that matter and remanded it to the judge.
On November 3, 1995, Administrative Law Judge
Marion C. Ladwig issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed a brief in
opposition to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Massillon Newspapers, Inc.
d/b/a The Independent, Massillon, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. On Octo-
ber 19, 1995, the Board issued its Decision and Order in The
Independent, 319 NLRB 349, ordering the Respondent in
part to ‘‘Reinstate, for purposes of good-faith bargaining, the
tentative agreement reached December 4, 1991, on conditions
of employment.’’
In its Decision and Order the Board pointed out that I
failed to resolve the credibility dispute, or decide the issue,
of whether ‘‘the parties’ December 4 tentative agreements in-
cluded an agreement that a successor contract would be for
a term of 3 years.’’ It ordered that this issue be severed and
remanded for ‘‘credibility resolutions and findings of fact
based on the existing record.’’
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the positions
of the parties, I make the following
FINDINGS OF FACT
A. Conflicting Testimony
International Representative Hannah Jo Rayl, who im-
pressed me most favorably on the stand as a truthful, forth-
right witness with a good memory, testified that the Union’s
proposal for a 3-year contract term was discussed ‘‘only on
the 4th’’ of December. Previously the term of the agreement
had been considered an economic issue to be resolved after
negotiation of noneconomic issues. (Tr. 830; G.C. Exh. 39.)
By December 4, in her negotiations with Attorney Michael
Tannler, a vice president of the parent corporation, they had
agreed to include in the tentative agreements a number of
economic issues that would not ‘‘be a new cost item, or a
change in costs to the employer’’ (Tr. 607–608, 805–806).
Rayl definitely recalled that at the end of the December
4 meeting (Tr. 649):
I said to [Tannler] that we were looking at a contract
that would run three years following the year in which
this contract was signed, but that I couldn’t fill that
date in [on the compilation of tentative agreements that
she was preparing] because. . . . I didn’t know exactly
when it would be signed.
And he said, okay, that was all right with him. [Em-
phasis added.]
Rayl also testified that when negotiations resumed with
Attorney Jon Flinker on January 14, 1992, she insisted:
‘‘Jon, we already have an agreement that [the contract]
would run for three years after the date of signing’’ (Tr. 677,
693).
Reporter Marla Fox, another member of the union bargain-
ing committee, recalled that in the December 4 meeting
when Rayl said the contract ‘‘would go on for three years’’
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
from ‘‘the time we would actually sign it’’ (Tr. 938–939,
985–986):
A. There was no opposition from [Tannler].
Q. Did he say anything?
A. He indicated that it was fine with him. He didn’t
protest when she brought it up, that I can recall.
. . . .
Q. [By Mr. Flinker] Isn’t it true that Mr. Tannler
said nothing about a three-year term? True or false?
A. False. My recollection is, is that he didn’t voice
any objections. He may have . . . nodded his
head . . . . [Emphasis added.]
. . . .
A. What I’m telling you is I don’t remember any
specific dialogue from Mr. Tannler. If he would have
objected to it, I would have remembered that and we
wouldn’t have had that in as part of the tentative agree-
ment. If he would have had a problem with the three-
year term, I believe Mr. Tannler, the way he conducted
himself at the meetings I attended, would have been
very forthright and said, ‘‘Hanna Jo, I have a problem
with that.’’ And I did not hear that from him that day.
Reporter Roland Dreussi, another member of the union
bargaining committee, did not remember Tannler’s response,
but he was also certain that an agreement had been reached
on a 3-year term. He testified (Tr. 1702, 1760):
On contract term and duration, we agreed that we
would have a three year term for the contract.
. . . .
Q. All right. And did the Union tell Mr. Tannler that
they wanted three years from the date of signing?
A. Yes.
Q. What was Mr. Tannler’s response?
A. I don’t recall his response. I know that he did not
object to that.
. . . .
I know that it was agreed that there would be a three
year term on the contract.
Q. [By Mr. Flinker] Do you remember what he said?
A. I do not remember his exact words. . . . I re-
member that it was agreeable.
I know that he did not say . . . no to the three year
proposal.
By the time of trial, Attorney Tannler did not remember
agreeing to the 3-year term for the agreement. He testified
(Tr. 2314):
At one time during the meeting of December 4th,
Hanna Jo Rayl told me that it was the intention of the
Guild to seek a contract that ran for three years from
the time that an agreement was reached. . . . She made
the comment to me, I admit that. I did not respond be-
cause I regarded that as something beyond my respon-
sibility. I felt no necessity to respond to what their in-
tention was in seeking an economic package. . . . No,
I did not respond to it at all.
Tannler did not question Rahl’s honesty [Tr. 2321]:
Let me tell you something. I’m not really questioning
Hannah Jo’s testimony except for one thing. She was
a pretty honest witness, let me tell you. But when she
said that I agreed to a three-year contract, she’s dead
wrong. . . . I’m not questioning her honesty. She did
say one thing wrong and that’s that I agreed to a three-
year contract. That’s wrong.
B. Concluding Findings
Although Tannler did not remember doing so, I credit
Rahl’s testimony that Tannler agreed to a 3-year contract
term. Not only did she appear on the stand to have the best
recollection of what transpired at the December 4 meeting
when she proposed the 3-year term, but both Committee
Members Fox and Dreussi impressed me as being truthful
witnesses when testifying with certainty that an agreement
had been reached on the 3-year term.
I therefore discredit Attorney Tannler’s faulty memory to
the contrary and find that he did agree to the 3-year contract
term.
CONCLUSION OF LAW
The parties’ December 4, 1991 tentative agreements in-
cluded an agreement that a successor contract would be for
a term of 3 years.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
Paragraph 2(b) of the Board’s October 19, 1995 Order is
amended to read as follows:
‘‘(b) Reinstate, for purposes of good-faith bargaining, the
tentative agreement reached December 4, 1991, on conditions
of employment, including the agreement that a successor
contract would be for a term of 3 years.’’