Prentice-Hall, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1992

306 N.L.R.B. 31 (N.L.R.B. 1992)

31
306 NLRB No. 16
PRENTICE-HALL, INC.
1 Respondent Maxwell Macmillan subpoenaed contracts between
the Union and other employers in order to demonstrate that its bar-
gaining proposals are not indicia of bad-faith bargaining. Respondent
Maxwell Macmillan excepts to the judge’s quashing the subpoena.
In light of our dismissal of the bad-faith bargaining allegations, we
find it unnecessary to pass on this exception.
2 In adopting the judge’s finding that Respondent Prentice-Hall’s
failure to provide requested information concerning part-time em-
ployees of Prentice-Hall Law & Business, we note the
uncontradicted testimony of Union Steward Klutkowski on this sub-
ject. The Union advised the Respondent that it was requesting the
information because some unit members reportedly were to be trans-
ferred to and working under the managers at the Law & Business
operation. Inasmuch as the definition of part-time employees and
their benefits were active bargaining issues, the Union sought infor-
mation on the use of part-time employees at the new location. We
find that the requested information relates to ongoing negotiations
affecting unit employees.
The complaint does not allege, and the judge does not find, that
the Respondents implemented their final merit pay offer in violation
of the Act under the Board’s analysis in Colorado-Ute Electric
Assn., 295 NLRB 607 (1989), enf. denied 939 F.2d 1392 (10th Cir.
1991). Accordingly, we do not consider this issue.
The complaint alleges, and Respondent Maxwell Macmillan ad-
mits, that Maxwell Macmillan bought the Prentice-Hall operation in
question with knowledge of the potential liability to remedy unfair
labor practices and is a successor to Prentice-Hall with regard to the
liability issue. We also note that the judge’s decision holds Respond-
ent Maxwell Macmillan liable for remedying the violation. Accord-
ingly, we find it unnecessary to pass on the General Counsel’s ex-
ception that the judge failed to make a specific finding under Golden
State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
Prentice-Hall, Inc. and District 65, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO
Maxwell Macmillan Professional and Business Ref-
erence Division of Macmillan Information
Company, Inc. and District 65, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO. Cases 22–CA–
15767 and 22–CA–16655
January 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 22, 1991, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel and the Charging Party filed exceptions and a
supporting brief, and Respondent Maxwell Macmillan
filed cross-exceptions and an answering brief.
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,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Prentice-Hall, Inc. and
Maxwell Macmillian Professional and Business Ref-
erence Division of Macmillan Information Company,
Inc., Paramus, New Jersey, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
MEMBER OVIATT, dissenting.
I concur with my colleagues in affirming the judge’s
dismissal of most of the allegations here. However, I
would also dismiss the allegation concerning the Re-
spondent’s declining to furnish the Union with infor-
mation concerning a separate unit that the Union does
not represent.
If the Union were seeking the information for the
purpose of bargaining over transfers or the effects of
transfers on unit employees, I would agree that the
General Counsel had established the Union’s need for
at least some of the requested nonunit information. But
that is not the case here. And the possible relationship
between information about nonunit employees—whom
the Union did not represent—and any necessity for
that information in the context of bargaining over a
successor collective-bargaining agreement for the em-
ployees that it did represent here is simply too attenu-
ated in my view to support a finding that the Respond-
ent violated the Act by declining to furnish the infor-
mation about nonunit employees. Accordingly, I would
dismiss the complaint in its entirety.
Gary A. Carlson, Esq., for the General Counsel.
Peter D. Conrad, Esq. (Proskauer, Rose, Goetz &
Mendelsohn, Esqs.), of New York, New York, for the Re-
spondent Prentice-Hall.
Herbert J. Levine and Jill L. Rosenberg, Esqs. (Baer Marks
& Upham, Esqs.), of New York, New York, for the Re-
spondent Maxwell Macmillan.
Dean Hubbard, Esq. (Eisner, Levy, Pollack & Ratner, PC),
of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to
charges filed by District 65, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL–CIO
(Union), in Case 22–CA–15767 on June 9, 1988, against
Prentice-Hall, Inc. (Prentice Hall), and a first amended
charge filed against Prentice-Hall on July 27, 1988, and a
charge in Case 22–CA–16655 filed by the Union on Novem-
ber 21, 1989, against Maxwell Macmillan Professional and
Business Reference Division of Macmillan Information Com-
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Macmillan’s name was amended at hearing.
pany, Inc. (Macmillan), a consolidated complaint was issued
against Respondents on January 12, 1990.1
The complaint alleges essentially that Respondent
Prentice-Hall violated Section 8(a)(5) and (1) of the Act, and
refused to bargain with the Union by certain specific con-
duct, in which it is alleged that Prentice-Hall:
(a) made proposals which gave it the unilateral right
to change the holiday schedule and sick leave, personal
day, bereavement leave, and benefits programs, and to
reduce the number of paid sick days, personal days, and
bereavement leave days
(b) made proposals which gave it unfettered discre-
tion with respect to salaries
(c) made proposals which were regressive in that
they eliminated compensatory time, the arrive late/leave
early policy and all benefits for part-time employees,
and provided for no wage increases in the first and sec-
ond years of the contract
(d) failed to provide the union with information
which the union requested regarding the hiring of part
time employees, and failed to respond adequately to the
Union’s request for information about a child-care pro-
gram and
(e) implemented its final contract proposals without
having afforded the Union an opportunity to negotiate
and bargain, in the absence of a valid impasse.
The complaint further alleges that Prentice-Hall violated
the Act by its overall acts and conduct, including the conduct
alleged above. The complaint also alleges and Macmillan ad-
mits, that in October 1989, Macmillan purchased a portion
of the business of Prentice-Hall, and since then has continued
to operate the purchased portion in basically unchanged
form. Macmillan further admits that it has continued the em-
ploying entity with notice of Prentice-Hall’s potential liabil-
ity to remedy the unfair labor practices alleged in the com-
plaint, and also admits that it is a successor of Prentice-Hall.
Respondents’ answers denied the material allegations of
the complaint, and on March 21–23, and May 23, 1990, a
hearing was held before me in Newark, New Jersey, and
New York City, on these allegations. On the evidence pre-
sented in this proceeding, and my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and Respondent Macmillan, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Prentice-Hall, a corporation, having its office and place of
business in Paramus, New Jersey, has been engaged, until
October 1989, in the publication, sale, and distribution of
books and other printed material. Annually, Prentice-Hall re-
ceived at its New Jersey facility goods and materials valued
in excess of $50,000 directly from points outside New Jer-
sey. Prentice-Hall admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Macmillan, a corporation, having its office and place of
business in Paramaus, New Jersey, purchased a portion of
the business of Prentice-Hall in October 1989, and has con-
tinued to operate the purchased portion in basically un-
changed form. Annually, Macmillan will receive at its New
Jersey facility goods and materials valued in excess of
$50,000 directly from points outside New Jersey. Macmillan
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the successor of Prentice-Hall.
Respondents admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In 1979, the Union was certified by the Board as the rep-
resentative of the employees of Prentice-Hall in the fol-
lowing, admitted collective-bargaining unit:
All Prentice-Hall information Division Editors em-
ployed by the Employer in its Information Services Di-
vision, excluding all office clerical employees, produc-
tion employees, managerial employees, guards, and su-
pervisors as defined in the National Labor Relations
Act, editorial assistants and all other employees.
The unit employees consist of law school graduates, called
legal editors, and nonlaw school graduates, called nonlegal
editors. They receive texts of laws, case decisions, and other
materials. The editors analyze the data received, prepare di-
gest entries of them, and write analyses of the material,
which are included in the loose-leaf services of the Company
and distributed to subscribers.
There are about 10 departments employing these editors,
including Federal tax, state, and local tax, and labor. At the
time of the hearing, about 50 employees were employed in
the unit.
Prentice-Hall and the Union entered into three successive
collective-bargaining agreements: in 1980, 1982, and 1985.
The last contract expired on January 31, 1988. The issues in
this case relate to the negotiations for a renewal agreement
to replace the expired contract.
During the negotiations, this unit comprised employees
who were employed by Prentice-Hall. Prentice-Hall was en-
compassed in the Simon & Schuster division of Gulf &
Western, Inc. That division employed about 9000 employees.
In October 1989, Respondent Macmillian purchased cer-
tain assets of Prentice-Hall, including the business involved.
Simon & Schuster Company, which owns Macmillan, is
owned by Gulf & Western, Inc. In October 1989, because of
the purchase of Prentice-Hall, the admitted appropriate col-
lective-bargaining unit became:
All editors employed by the Maxwell Macmillan Pro-
fessional and Business Reference Division at its
Paramus, New Jersey facility, excluding all office cler-
ical employees, production employees, managerial em-
ployees, guards, and supervisors as defined in the Na-
tional Labor Relations Act, editorial assistants and all
other employees.
33PRENTICE-HALL, INC.
2 Hereafter Prentice-Hall will be referred to as Respondent.
Macmillan admits that since October 1989, the Union, by
virtue of Section 9(a) of the Act has been and is the exclu-
sive representative of the Macmillan unit for the purposes of
collective bargaining.
B. The Negotiations
Eight bargaining sessions were held between January and
June 1988. The Union’s team consisted of Union Representa-
tive Pat Slesarchik, who was replaced by Conrad Lower in
April, and Andrew Klutkowski, the chief shop steward, and
five unit employees. Respondent Prentice-Hall’s team was
comprised of Joseph Kelly and Richard Lupi, the vice presi-
dent of human resources, and the director of human re-
sources for Simon & Schuster, respectively, and also Andrea
Smith and Donald Mindrebo, the labor relations coordinator
and director of editorial operations at Prentice-Hall, respec-
tively.2
The recitation of the bargaining sessions has been taken
from the testimony of the two witnesses, Andrew Klukowski
and Donald Mindrebo, the notes of the bargaining sessions,
and the documents exchanged by the parties at the sessions.
The January 19 Bargaining Session
The Union presented its demands, which would modify the
parties’ expiring contract. The demands were as follows:
(a) Probationary period—probationary employees not ac-
cepted as permanent employees are entitled to 2 weeks’ no-
tice of termination, or pay in lieu of such notice.
(b) Holidays—Add Dr. Martin Luther King Jr.’s Birthday
and Veterans Day.
(c) Hiring Salary—When a new employee is hired at a sal-
ary greater than that received by a current employee in the
same job classification, the salary of the current employee
shall be raised to that of the newly hired employee.
(d) Termination—Provide that an employee whose job per-
formance is unsatisfactory due to a substance abuse problem
must obtain treatment and be given an opportunity to re-
cover. If his performance does not improve, he is subject to
termination pursuant to the contract.
(e) Salaries—Effective February 1, 1988, increase salaries
15 percent or $3500 per year, whichever is greater, and on
February 1, 1989, increase salaries 12 percent or $3000 per
year, whichever is greater.
(f) Minimums—Increase all minimums by the amount of
the wage increase. Add an additional level—Editor IV, Legal
and Non-legal.
(g) Add a union-shop clause.
Union spokeswoman Slesarchik briefly described the pro-
posals and gave reasons for seeking them. Employer spokes-
man Kelly questioned her as to some of the proposals, in-
cluding probationary period, starting salaries, and termination
of employment. He also questioned the need for a union
shop. Kelly stressed the fact that the unit is comprised of in-
dividuals who were professionals, and professionalism was
an important part of the negotiations concerning them.
The January Bargaining Session
Respondent made its contract proposals. They included the
following, in relevant part:
(a) Union Stewards and Local Officers—Reduce from four
to one, the number of union local officers of the Publishing
Local. The proposal retains the language in the contract pro-
viding for four union stewards, but the proposal adds that if
a steward becomes a local officer, he will not be eligible to
conduct grievances.
(b) Seniority—Provides that a laid-off employee shall be
entitled to recall for a job opening not more than 6 months
after the date of layoff. The expired contract provided that
the employee was entitled to recall for a period of 9 months
after his layoff.
(c) Holidays—The proposal stated that Respondent ob-
serves 10 paid holidays per year, without enumeration. The
proposal added that a schedule of holidays would be issued
by Respondent prior to the beginning of each calendar year.
The expired contract set forth eight paid holidays, and stated
that other holidays may be added as designated by Respond-
ent. In practice, the unit employees enjoyed 9 to 11 paid
holidays per year.
(d) Sick Leave—The expired contract provides that em-
ployees are entitled to 6 paid sick days per year, and that
employees may ‘‘bank’’ any sick days not taken in prior
years, and use them in subsequent years. The proposal elimi-
nates the ‘‘banking’’ entitlement, and requires that any sick
leave entitlement must be used or lost in the year it is
earned. The proposal also requires, at the discretion of Re-
spondent, medical proof for all absences.
(e) Personal Days and Bereavement Leave—The expired
contract and the proposal provide for 3 paid personal and 3
paid bereavement days per year. The expired contract pro-
vides that these are the current programs of the Respondent,
and that any changes thereto will apply to the employees, but
nevertheless, not less than 3 paid personal and bereavement
days will be given to employees. The proposal eliminates
that guarantee language.
(f) Vacations—Respondent stated that this proposal con-
tained the same vacation benefits as set forth for all employ-
ees in the company handbook which applied to all other em-
ployees of Respondent. The proposal is essentially the same
as that set forth in the Simon & Schuster Employee Hand-
book, dated February 1987.
(g) Professional Certification—The 1985 agreement pro-
vided that employees taking professional certification exami-
nations are entitled to 4 days off with pay. Respondent’s pro-
posal limits this benefit to those taking the Bar examination
for the first time, who are not already a member of the Bar.
(h) Benefits—Respondent proposed that the Prentice-Hall
profit sharing plan be replaced by the Gulf & Western One
Plus Benefits program. Prentice-Hall is no longer the em-
ployer. This is a total One Plus Benefits Package to replace
the profit sharing and medical plan. The proposal also stated
that ‘‘no matter respecting these benefits . . . shall be sub-
ject to the grievance and arbitration provisions of this Agree-
ment.’’
(i) Hours of Work and Compensatory Time—The expired
collective-bargaining agreement provided that employees
who worked in excess of 7-1/2 hours in a day, or on Satur-
day, Sunday, or a holiday, is entitled to compensatory time
on an hour-for-hour basis, for such excess hours. The con-
tract also provided that employees may arrive late (before
10:15 a.m.) or leave early (after 3 p.m.) with approval, with-
out loss of pay, not to exceed six times per year. Respond-
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent’s proposal eliminates compensatory time and the arrive
late–leave early benefits.
(j) Salaries—Respondent proposed a wage freeze in the
minimum, midpoint, and maximum salaries for the first 2
years of the new contract, and an approximately 5-percent in-
crease in the third year. In addition, its proposal eliminated
a guaranteed 3-percent merit increase for those employees
who fail to meet minimum performance requirements, and
changed the percentage amount of merit increases that could
be given. The proposal also eliminated a guaranteed merit
fund, comprising 4 percent of the total annual salaries of em-
ployees.
(k) Part-time and Temporary Employees—Respondent’s
proposal defined part-time employees as those who are
scheduled to work more than 20 hours per week but less than
35. The expired contract states generally that part-timers are
those who work less than 35 hours, and also provides that
part-time employees who worked 900 or more hours per year
(more than 19 hours per week based on a 52-week year)
were entitled to vacations and holidays pursuant to a formula
depending on the number of hours worked. Hospitalization
and medical and surgical insurance was entirely paid by Re-
spondent for part-time workers who worked 25 or more
hours per week.
The proposal provides that part-time employees are eligi-
ble to participate in the Gulf & Western One Plus program.
The proposal eliminated their participation, as set forth in the
expired contract, in the Prentice-Hall Part-Time Benefit pro-
gram, which included the above insurance programs.
(l) Grievance and Arbitration—Respondent’s proposal re-
duced from 15 to 10, the number of days within which (i)
a grievance may be brought, (ii) the Union must submit a
written grievance, and (iii) either party may submit the mat-
ter to arbitration after receiving a response to step 2. Re-
spondent stated that this would expedite the grievance proc-
ess. The Union replied that it would lead to more grievances.
(m) Other Benefits—Respondent’s proposal substituted
certain Gulf & Western benefits for those provided by
Prentice-Hall.
The Respondent’s proposals were explained and discussed.
As to the major sources of disagreement, the Union insisted
on retaining the ‘‘banked sick days’’ as set forth in the ex-
pired contract. Respondent replied that with the Gulf &
Western One Plus program, banking was unnecessary. The
Union argued that inasmuch as the One Plus short-term dis-
ability coverage only began after an employee was sick for
more than 6 consecutive days, those initial 6 days would be
unpaid, unless the editor had ‘‘banked’’ 6 sick days from
prior years.
The Union also wanted to retain the compensatory time
provisions of the expired contract. Respondent stated that the
employees are professionals. The Union replied that without
compensatory time, they would be expected to work past
their regular hours without compensation. Respondent replied
that their longer hours of work would be reflected in their
performance evaluations. The Union noted that one depart-
ment would be favored in performance appraisals and merit
increases because that department received more work. His-
torically, the Federal tax department is called on to work be-
yond the normal workday. Respondent invited the Union to
submit language to modify this proposal.
The Union also argued that regarding salaries, too much
discretion was given to Respondent. Respondent rejected the
Union’s salary proposal as being too high, and also rejected
its proposal for a union-shop clause. The Union refused to
agree to Respondent’s proposals.
The January 28 Bargaining Session
The Union agreed to Respondent’s seniority proposal, the
vacation proposal, the ‘‘benefits’’ proposal, the educational
aid proposal, and the union local officers proposal, as modi-
fied. The parties also agreed to the professional certification
proposal with the understanding that Respondent would agree
that it would grant time off with pay for two employees who
were scheduled to take the bar examination for the second
time.
The Union insisted on retaining the compensatory time
benefit. Respondent stated that it wanted a merit system, and
would not agree to continue compensatory time. Respondent
argued that the compensatory time, and arrive late-leave
early provisions are not professional. In response, the Union
said that it would not agree that people work without being
paid. Union security was discussed, with Respondent stating
that it should not force employees to join the Union, or re-
quire the payment of dues. The Union withdrew its offer for
a union-security clause, and instead proposed an agency
shop. Respondent continued to assert that it should not force
people to pay to join a union, and refused to agree to an
agency shop clause.
The Union presented its salary counteroffer, which in-
cluded a $2800 market adjustment for all employees hired
before February 1987. The proposal also raised the percent-
age merit increases from the expired contract. In addition, the
offer proposed a raise in the minimum guaranteed increase
from 3 to 6 percent. Respondent called the counteroffer too
high, and said that if it agreed to that proposal it might have
to reduce benefits.
Respondent stated that it wanted a total merit system. The
Union said it needed a guaranteed increase, and a merit sys-
tem in addition to the guaranteed raise.
The Respondent rejected the Union’s proposal regarding
probationary employees.
Respondent made a counteroffer relating to salaries. It pro-
posed annual performance evaluations, and that ‘‘at the sole
discretion of the Employer, adjustments to salary may be
made consistent with the overall merit system of rewarding
performance. These salary adjustments may be made in such
amounts and with such frequency as deemed necessary by
the Employer.’’
The April 6 Bargaining Session
A discussion as to various issues took place. Respondent
rejected the Union’s holiday proposal and stated that, as to
its part-time and temporary employee proposal, it wanted the
same policy for this unit that it had in the rest of the Com-
pany. As to compensatory time, Respondent said that it
wanted to eliminate that benefit because it was difficult to
administer, and was ‘‘self-defeating’’ because the employees
utilizing such time were the most diligent workers because
they worked longer hours. Respondent argued that by giving
them compensatory time, their labors would be lost when
they took that time. Respondent suggested that paying em-
35PRENTICE-HALL, INC.
ployees for this time, rather than permitting them to take
time off might be a better approach. Respondent also said
that it wanted to eliminate sick day banking because the
short-term disability provisions in the One Plus program
eliminated the need for banking. The Union mentioned,
again, that such a program only began after the employee
was sick for 6 consecutive days. The Union explained that
if an employee was sick for several 2- to 3-day illnesses, he
would not have any days ‘‘banked’’ for use before the 6-day
short-term disability benefit became effective.
Respondent explained that it was opposed to continuing
the arrive late-leave early contractual clause because it want-
ed the unit employees to be subject to its companywide pol-
icy, which is that employees could request time off for an
emergency, and department heads could grant such request at
their discretion. Respondent added that the clause was in the
contract to ‘‘see how it worked.’’ Respondent claimed that
there was an ‘‘abuse’’ of that clause, but would not elabo-
rate. The Union expressed reluctance to rely on the discretion
of supervisors, where a personality conflict might influence
a supervisor to improperly deny such a request.
Regarding part-time employees, Respondent’s proposal
provided that parttimers working 20 or more hours per week
were entitled to receive five holidays, vacations, and partici-
pation in the One Plus program. The Union expressed con-
cern that Respondent might hire part-timers to work for 19
hours per week, thereby avoiding providing benefits for
them. It was explained that there was only one part-time em-
ployee then employed in the unit.
General Counsel witness Klutkowski, who appeared at the
negotiations in behalf of the Union, stated that the Union’s
salary counteroffer made on January 28 was apparently with-
drawn, and its first written proposal, made on January 19,
was the offer that was extant.
The April 12 Bargaining Session
Respondent stated that the arrive late-leave early contrac-
tual provision had created a burden in recordkeeping, and
that supervisors would use their discretion, including consid-
ering the employee’s work load and production record, in
acting on such a request. Respondent objected to retaining a
set number (6) of such days permitted to employees. Re-
spondent mentioned that that clause has been abused by em-
ployees leaving early without telling their supervisor, or giv-
ing very short notice. The Union objected to employees hav-
ing their requests considered by supervisors who may dislike
them. Respondent said that it wished to run the unit as a pro-
fessional unit. Respondent stated that that provision was in-
tended to be used for emergencies and is not an entitlement.
The Union disputed this.
Respondent also stated that the One Plus program elimi-
nated the need for sick day banking. The Union disputed
this, using the argument set forth in the previous meetings,
that the short-term disability provisions of that program be-
come effective only after 6 consecutive days of illness.
Regarding sick day, personal day, and bereavement leave,
the expired contract provided these benefits to the unit em-
ployees to the same extent as provided to the other nonbar-
gaining unit employees at Simon & Schuster. Approximately
9000 such employees are covered by that program. In addi-
tion, the expired contract stated that any changes in the pro-
grams would also apply to the unit employees. However, the
contract noted that the number of personal, sick, or bereave-
ment days allowed each year would not be reduced. In this
negotiation, Respondent sought to eliminate the guaranteed
number of days. Respondent defended its proposal to elimi-
nate a guaranteed number of personal, sick, and bereavement
days on the ground that the rest of the Company did not
have this benefit. Respondent sought ‘‘flexibility’’ in admin-
istering the leave program for the whole Company. Respond-
ent assured the Union that it would not change the benefits
for 9000 employees just to ‘‘punish’’ the unit members. Re-
spondent rejected the offer of flextime on the same ground.
The Union insisted that the guarantees were important to the
employees.
Respondent rejected the Union’s other proposals con-
cerning probationary employees and holidays (adding Martin
Luther King’s birthday).
While Respondent again rejected the issue of flextime, it
invited a union proposal on the issue, which it agreed to con-
sider.
The May 5 Bargaining Session
The Union requested a copy of the child-care program at
Paramount, a subsidiary of Gulf & Western. The Union
sought that information because its proposals concerning ar-
rive late-leave early, and compensatory time and sick day
banking were related to possible child-care issues. Also the
Union sought the information because Respondent was bas-
ing many of its proposals on the fact that it wanted policies
which were uniform throughout the Company. Respondent
replied that if possible it would bring the Paramount plan to
the next meeting.
The Union offered a revised compensatory time proposal,
which provided, in part, that an employee could be paid in-
stead of receiving time off, for hours worked beyond normal
working hours. The Union also proposed a revision to the ar-
rive late-leave early clause. That proposal provided that full-
time employees may receive time off for emergencies with
the approval of their supervisor, and such approval shall not
be unreasonably denied. However, that proposal was ‘‘con-
tingent upon an agreed upon flextime provision.’’ As will be
noted, infra, the Union’s flextime proposal at the next session
was rejected by Respondent.
The Union also proposed to modify the sick leave banking
proposal so that employees could have sick days available
during the 6-day period before the One Plus program’s bene-
fits become available.
Respondent defended its total merit policy of wage in-
creases, saying that it would not continue its practice of rais-
ing wages based on seniority or longevity. It also explained
that if there was no difference between the top performer and
the bottom, the same wage raise would discourage the top
performers, cause loss of morale among management, and
bring employees to the lowest common denominator. Re-
spondent added that a merit system attracts and retains the
best performers. The Union argued that merit systems do not
work.
On April 27, the president of Simon & Schuster an-
nounced that effective immediately, the nontax publications
and services of Prentice-Hall would be transferred to a new
organization, Prentice-Hall Law & Business, located in Clif-
ton, New Jersey, which had been acquired by Gulf & West-
ern.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May 19 Bargaining Session
A Federal mediator was present at this session. The meet-
ing began with the Union’s offer to compromise, and make
concessions in its offers. It made a flextime offer of 9:45
a.m. to 3 p.m. core, and 7:45 a.m. to 5:30 p.m. regular work-
day. The Union said that this offer would eliminate the arrive
late-leave early clause in the contract which Respondent
sought to eliminate. Respondent objected. The Union ob-
jected to Respondent’s proposal that employees may be re-
quired to present a doctor’s note when they take sick leave.
The Union added that the employees have a right to use the
6 sick days set forth in the expired contract.
As to sick leave, the Union said it would consider a lim-
ited banking period to cover the 6-day lag in receiving the
short-term disability coverage under the One Plus plan. With
respect to other benefits, the Union insisted on retaining the
present benefits. As to holidays, the Union withdrew its re-
quest for Veterans Day, but wanted Martin Luther King Day
as a paid holiday. The Union also continued its request that
current employees’ salaries be raised to that of newly hired
workers. The Union also continued to seek an agency shop.
The Union made a new salary offer. It asked for ‘‘decent’’
raises for everyone, and merit increases on top of the across-
the-board raises. The Union also reduced its salary demand
from 15 to 12 percent in the first and second years, and 11
percent in the third year. The Union also requested a market
adjustment of $700 per year for each year before 1987, with
a cap of 10 years. Respondent rejected this salary offer.
Respondent rejected the Union’s above proposals. It de-
fended paying more to new hires on the ground that it sought
the best graduates to upgrade its staff, and supported its
merit wage proposal on the ground that it sought to give
more money to those working harder. It also stated that it
would provide the benefits to this unit that it has provided
to its 9000 other employees.
Respondent explained that the Union’s flextime proposal
would require Respondent to add 2 hours each day to man-
agers’ schedules. As to personal and bereavement days, Re-
spondent had proposed to give the unit employees the same
benefits its 9000 other employees receive.
Respondent called the Union’s wage offer ‘‘insulting.’’ It
explained that this offer would result in a $5000 and $10,000
increase to two employees. The Union responded that its lon-
gevity and market adjustment proposal amounted to 3 per-
cent in the first year. The Union answered that Respondent’s
offer was a zero wage proposal, adding that under the merit
system, employees would have to trust management to evalu-
ate them fairly.
The Union accused Respondent of not having moved on
any of its proposals. Respondent said that there would be
movement if the Union was reasonable, asserting that the
Union’s latest wage offer was higher than the first offer
made in January.
The Union renewed its request for the Paramount child-
care program. Respondent said it had not received it.
June 2 Bargaining Session
This session was attended by a Federal mediator.
Respondent opened the meeting by responding to the
Union’s proposals which were still open. It accepted the
Union’s proposal for a 2-week notification to probationary
employees not accepted as permanent workers. Respondent
adhered to its earlier proposals as to holidays, sick leave,
personal days, bereavement leave, hours of work, part-time
and temporary employees, some minor variation in the griev-
ance and arbitration filing times, and other benefits.
The Union stated that it tentatively agreed to Respondent’s
proposals as to: other benefits, holidays, probationary em-
ployees, and term of agreement.
As to salaries, Respondent reoffered the same salary pro-
posal as previously, but modified certain language con-
cerning hiring rates, promotion increases, annual performance
evaluation, and that adjustments to salaries are made at the
sole discretion of the employer, consistent with its merit sys-
tem of rewarding performance, and also that salary adjust-
ments, consistent with the overall merit system of rewarding
performance, may be made at any time in any amount as
deemed necessary by the Respondent. Respondent called this
its final offer.
The Union accused Respondent of making no concessions.
Nevertheless, the Union tentatively agreed to Respondent’s
proposals concerning other benefits, holidays, probationary
period, and term of agreement.
Regarding part-time employees, the Union suggested that
Respondent might hire such workers to work less than 20
hours per week, and in that way avoid giving them any bene-
fits. The Union sought information as to how many part-time
employees were employed in Prentice-Hall Law & Business.
Respondent replied that no unit employees worked in Law &
Business at that time and that it would consider the Union’s
request for information, although it believed that it was irrel-
evant. The Union said that that information was preventing
them from reaching agreement since benefits for part-time
employees was important.
The Union again requested compensatory time. Respond-
ent answered that overtime would be recognized in an em-
ployee’s performance appraisal. Respondent added that given
the Union’s salary offer, compensatory time is economically
unfeasible.
The Union proposed a sick day bank of 6 days. In the ex-
pired contract, an unlimited number of banked days was per-
missible. Respondent rejected sick leave banking, calling it
an ‘‘administrative nightmare’’ to record sick leave for em-
ployees, and unnecessary under the One Plus program.
The Union offered to accept Respondent’s personal days
and bereavement leave proposal if it agreed that the current
benefits enjoyed would not be reduced. Respondent rejected
that offer, saying that it wanted to keep its options flexible
and be consistent with the rest of the Company.
The parties discussed salaries, with the basic dispute con-
tinuing to be the Union’s insistence on a guaranteed increase,
and Respondent’s demand that salary increases be totally
merit-based. Respondent noted that the Union’s May 19 offer
of market adjustment called for a payment of $150,000. The
Union disputed this, saying that the market adjustment
amounted to only $74,000. Later it admitted that its figures
were wrong. The Union admitted that it had not costed out
its proposal. It then withdrew that proposal.
The Union then asked if Respondent would reply to its
other proposals. Respondent replied that it could not take the
Union seriously if it made a serious mistake in arithmetic.
Respondent added that it made a ‘‘very fair proposal’’ which
37PRENTICE-HALL, INC.
included additional money. Respondent then announced that
they have ‘‘reached the point of impasse.’’
Subsequent Events
On June 9, Respondent sent a letter to the Union which
stated:
This letter is to confirm that the Company’s final offer
was presented to you on June 2, 1988. We will imple-
ment this final offer effective June 20, 1988.
Macmillan’s answer admits that it implemented its final
contract proposals pertaining to union stewards and local of-
ficers, seniority, holidays, sick leave, personal days, bereave-
ment leave, vacations, professional certification, benefits,
hours of work and compensatory leave, salaries, part-time
and temporary employees, grievance and arbitration, other
benefits and probationary period. As a result of the imple-
mentation of the final offer, some employees received no
merit increases.
Thereafter, Respondent applied the terms and conditions of
employment in its Simon & Schuster Employee Handbook to
its bargaining unit employees.
Employee Klutkowski testified that Respondent did not
provide the Union with requested information concerning the
Paramount child-care program, or concerning the hiring of
part-time employees employed in Prentice-Hall Law & Busi-
ness. Klutkowski testified that the Union wanted that infor-
mation because he learned that nontax department employees
were being hired in Law & Business.
Analysis and Discussion
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by making certain proposals, by
failing to provide the Union with information, by engaging
in certain overall acts and conduct, and by implementing its
final contract proposals in the absence of a valid impasse.
The Proposals
A proper analysis of these allegations must begin with a
discussion as to whether, by making certain proposals, Re-
spondent violated the Act.
General Counsel alleges that Respondent unlawfully made
proposals which gave it the unilateral right to change the hol-
iday schedule and sick leave, personal days, bereavement
leave, and benefits programs, and to reduce the number of
paid sick days, personal days, and bereavement leave days.
Respondent proposed 10 holidays in the negotiations. The
expired contract provided for 9 to 11 holidays. It is the al-
leged change in the holiday schedule, however, which is
charged as being violative of the Act. The change consists
of a statement in the proposal that the Respondent would
issue a schedule of holidays prior to the beginning of each
calendar year. The expired contract enumerated which holi-
days would be observed. I fail to see how this change, which
simply consists of a statement that the holiday schedule
would be issued rather than set forth specifically in the con-
tract, constitutes the unilateral right to change the holiday
schedule. There is no evidence that Respondent sought to
change the holidays traditionally observed. Apparently, the
thousands of nonunit employees also receive 10 holidays,
and Respondent would be unlikely to depart from the cus-
tomary holidays for those employees as well. It should be
noted that the Union agreed to Respondent’s proposal, in
toto, at the June 2 session. I accordingly find no violation
in Respondent’s making of its proposal concerning the holi-
day schedule.
With respect to the sick leave, personal days, bereavement
leave and benefits programs, the Union had agreed, pursuant
to the expired contract, to participate with the other thou-
sands of nonbargaining unit employees at Simon & Schuster
in those fringe benefit programs. The expired contract stated
that those provisions ‘‘represent the current Prentice-Hall
. . . program. Any changes in that program made by the
Employer during the term of this Agreement will also apply
to the employees. However, in no event will the number of
paid [sick, personal, or bereavement] days be less than as
provided [in the contract].’’ Respondent sought to change the
guarantee language in the contract in order to remove the
guaranteed paid days provided to the unit employees. Re-
spondent sought the elimination of the guaranteed paid days
on the ground that the rest of the Company’s employees did
not receive that benefit. Specifically, with respect to personal
and bereavement days, employees are guaranteed 3 paid per-
sonal and 3 paid bereavement days. It should first be noted
that Respondent sought to make uniform among all its em-
ployees the personal day and bereavement day policies. By
eliminating the guaranteed days, Respondent does not elimi-
nate the benefit itself. The employees, under the proposal, re-
main entitled to the number of paid personal and bereave-
ment days set forth in the expired contract, which were con-
tinued in Respondent’s proposal in these negotiations. It is
also important to note that in the expired contract the Union
agreed that if any changes were made by the Respondent in
those provisions during the term of the contract, such
changes would be applied to those contractual terms. As the
Board stated in Roman Iron Works, 275 NLRB 449, 452
(1985):
[C]ollective bargaining is basically a two-way street.
Thus while a union may lawfully make demands de-
signed to improve existing employee wages and bene-
fits, there is nothing in the Act which denies an em-
ployer the right, for its part, to demand givebacks.
Where the parties are negotiating to replace a prior con-
tract, neither side is precluded from seeking modifica-
tions to its own advantage. The Act simply does not
preclude an employer from demanding that various pro-
visions of the old contract be modified, altered, or even
eliminated.
With respect to the sick leave issue, Respondent’s proposal
eliminated the sick day ‘‘bank’’ of unused sick days. Re-
spondent explained that it believed that the ‘‘bank’’ was no
longer needed because of the employees’ participation in the
Respondent’s One Plus program which provided for short-
term disability. However, the Union argued during negotia-
tions that that program did not cover illnesses of less than
5 days’ duration. Respondent did not refute that claim. Nev-
ertheless, although the Union may have been correct in argu-
ing that a ‘‘gap’’ of short illnesses would not be covered by
the One Plus program, the issue here is the lawfulness of Re-
spondent’s proposal that the ‘‘bank’’ be eliminated. I see
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nothing unlawful in the proposal itself. Roman Iron Works,
supra.
Concerning the proposal which allegedly gave Respondent
the unilateral right to change the benefits programs, this is
apparently a reference to the benefits proposal, relating to ar-
ticle XXIII of the contract. In that proposal, Respondent of-
fered to continue to provide the health, welfare, capital accu-
mulation and retirement benefits in accordance with the Gulf
& Western One Plus Benefits program. The proposal also
stated that these provisions were not subject to the grievance
and arbitration provisions of the contract. It is that language,
apparently that General Counsel argues reserves to Respond-
ent the unilateral right to change the programs. The expired
contract, however, contained identical language. That con-
tract, of course, did not provide for the One Plus program
because it was not yet implemented at the time the contract
was executed, but that contract’s provisions for profit shar-
ing, medical and life insurance benefits, and individual retire-
ment account all contain the statement that matters con-
cerning them shall not be subject to the grievance and arbi-
tration provisions of the contract. In addition, Respondent’s
benefits proposal was accepted by the Union at the January
28 bargaining session. I accordingly find no violation in Re-
spondent’s making of this proposal.
The complaint also alleges that Respondent made pro-
posals which gave it ‘‘unfettered discretion’’ with respect to
salaries. Throughout the negotiations, Respondent sought to
change the salary structure to a totally merit system of salary
raises. The Union sought to retain a guaranteed increase if
employees failed to meet the minimum requirements for the
position. In the expired contract, that guaranteed increase
was 3 percent. The Union sought a 6-percent guaranteed
raise in this negotiation. Respondent’s proposal provided that
a merit increase be given to employees based on their annual
performance evaluation, which is the ‘‘determining factor,’’
and that the merit increase would ‘‘reflect’’ the performance
rating received. The proposal further stated that the amount
of the increase was at the Respondent’s ‘‘sole discretion.’’
During the negotiations, Respondent further proposed that at
the ‘‘sole discretion of the Employer, salary adjustments may
be made consistent with the overall merit system of reward-
ing performance. These salary adjustments may be made in
such amounts and with such frequency as deemed necessary
by the Employer.’’ The proposal also provided that matters
concerning the merit increase, performance evaluations, and
promotion decisions are not subject to the grievance and ar-
bitration provisions of the contract.
General Counsel argues that Respondent’s proposals giv-
ing it sole discretion over the amount of the increases and,
with respect to the additional increases, whether and when
such increases should be made, violate the Act.
In evaluating this argument, it is important to note that the
proposal, in part, is identical with the expired contract, which
states that ‘‘the amount of merit increase granted to an em-
ployee shall be at the Employer’s sole discretion.’’ In addi-
tion, Respondent does not have ‘‘unfettered discretion’’ with
respect to the merit increases because the proposal stated that
the performance evaluation given to employees is a ‘‘deter-
mining factor’’ in the amount of the merit increase, if any,
to be awarded, and it also required the Respondent to base
its decision concerning a merit increase on an evaluation of
the employee’s performance. Although, according to the pro-
posal, these matters are not subject to the grievance and arbi-
tration provisions of the contract, an identical provision ap-
pears in the expired contract, to which the Union had agreed.
In addition, guidelines were set forth in the proposal, which
stated the percentage increase to be granted based on the per-
formance evaluation. For example, the percentage increases,
in the proposal ran from 0 percent for an unsatisfactory rat-
ing to 11 percent for an outstanding rating. In Colorado-Ute
Electric Assn., 295 NLRB 607 (1989), the Board found no
violation in an employer’s proposal of a similar merit wage
proposal. Accordingly, I cannot find unlawful Respondent’s
making of this salary proposal.
The complaint also alleges that Respondent violated the
Act by making proposals which were regressive, since they
eliminated compensatory time, the arrive late-leave early pol-
icy, and all benefits for part-time employees, and provided
for no wage increases in the first and second years of the
contract.
As set forth above, the making of such proposals does not
violate the Act. Roman Iron Works, supra. Moreover, during
the negotiations, Respondent explained its reasons for seek-
ing such concessions from the Union. For example, regarding
the elimination of compensatory time, Respondent told the
Union that the persons who were the recipients of compen-
satory time for the most part were those in the Federal tax
department, who were so valuable to the Company that their
services were needed when they were taking compensatory
time. The Union was also told that the recording of compen-
satory time and maintaining records was burdensome. Re-
garding the arrive late-leave early policy, the Union offered
a flextime proposal to replace the arrive late-leave early
clause in the contract. Respondent rejected that offer since it
would add 2 hours each day to managers’ schedules. Re-
spondent properly explained its opposition to the retention of
the arrive late-leave early clause as being inconsistent with
companywide policy permitting employees to request time
off for an emergency. Respondent also maintained that that
contractual provision had been abused by employees. As set
forth above, Respondent’s making a proposal to eliminate the
arrive late-leave early provision does not violate the Act.
Roman Iron Works, supra.
Regarding the alleged elimination of benefits for part-time
employees, Respondent’s proposal did not seek to eliminate
benefits for such employees. Rather, the proposal sought to
define part-time workers as those who worked at least 20
hours per week. The expired contract defined part-timers
generally as those who worked less than 35 hours per week,
but provided for hospitalization and surgical and medical
benefits for those working at least 25 hours per week. In ad-
dition, those part-time workers who work more than 900
hours per year (more than 19 hours per week based on a 52-
week year) were entitled to certain vacation and holiday ben-
efits. Pursuant to the proposal, part-time employees were eli-
gible to participate in the Gulf & Western One Plus program.
Accordingly, those not classified as part-time workers did not
qualify for that program. As set forth above, the making of
this proposal did not violate the Act. Roman Iron Works,
supra. In addition, the proposal was not regressive when
viewed against the benefits for part-time employees con-
tained in the expired contract as set forth above.
Regarding the allegation that Respondent made a regres-
sive proposal which provided for no wage increases in the
39PRENTICE-HALL, INC.
first and second years of the contract, the proposal provided
for no changes in the first 2 years of the contract in the min-
imum, midpoint, and maximum salaries. However, Respond-
ent also proposed a merit system pursuant to which employ-
ees’ salaries would be raised within those minimum, mid-
point, and maximum ranges during the first 2 years of the
contract. Accordingly, I find that no regressive proposal re-
garding salaries was made, as alleged in the complaint.
The Requests for Information
The complaint further alleges that Respondent failed to re-
spond adequately to the Union’s request for information con-
cerning a child-care program, and failed to provide the Union
with information that the Union had requested regarding the
hiring of part-time employees in Prentice-Hall Law & Busi-
ness.
At the May 4 bargaining session, the Union requested a
copy of the child-care program at Paramount, a subsidiary of
Gulf & Western. The Union sought that information because
its proposals concerning arrive late-leave early, and compen-
satory time and sick day banking were related to possible
child-care issues. Respondent said that if possible it would
bring a copy of the program to the next meeting. It never
produced that document.
Respondent argues, and I agree, that the child-care pro-
gram is not relevant to the issues in the bargaining. The pro-
gram sought by the Union involved a subsidiary of Respond-
ent which was not an issue in the bargaining. The Union
could have made proposals concerning a child-care program,
but did not do so. The Union’s claim that the Paramount pro-
gram was somehow related to other issues being discussed
at the negotiations such as arrive late-leave early and others
is too remote a connection to find a violation as to Respond-
ent’s failure to provide a copy of the Paramount child-care
plan.
The Union also requested information concerning the num-
ber of part-time employees employed in Law & Business
which information was also not supplied by Respondent. As
set forth above, on April 27, the president of Simon &
Schuster announced that effective immediately, the nontax
publications and services of Prentice-Hall were transferred to
a new organization, Prentice-Hall Law & Business located in
Clifton, New Jersey, which had been acquired by Gulf &
Western. The unit at issue here consisted of nontax per-
sonnel. Respondent told the Union on June 2 that no unit
employees worked in Law & Business at that time, and that
the consolidation was still in the planning stages.
An employer’s refusal to furnish to a union information
which is relevant to the Union’s proper performance of its
collective-bargaining responsibilities is an unfair labor prac-
tice under Section 8(a)(1) and (5) of the Act. NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967). Information
concerning unit employees is considered to be presumptively
relevant. However, information concerning employees out-
side the bargaining unit may only be sought once the union
has demonstrated the relevance of such information.
Although at that moment there may have been no consoli-
dation between the unit at issue here and Law & Business,
the clear message, especially in light of the president’s state-
ment that ‘‘effective immediately’’ the nontax services were
transferred to Law & Business, is that there would be some
effect on the unit employees of this transfer. The impact on
the unit employees was therefore present even though the
mechanical aspects of the transfer may not yet have been
worked out. The Union’s concern in making the request was
that Respondent might employ part-time unit employees in
Law & Business who worked less than 20 hours per week
in order to avoid paying them certain benefits.
The information sought concerning the number of part-
time employees employed in Law & Business was clearly
relevant to the Union’s bargaining concerning part-time ben-
efits. In view of the transfer which had already been made,
the Union could expect that unit employees who were em-
ployed in nontax departments would be transferred to
Prentice-Hall Law & Business. As such the Union could
properly demand such information as the number of part-time
employees employed in Law & Business. Respondent argues
that inasmuch as Law & Business involved a completely sep-
arate unit at Prentice-Hall with no unit employees, and that
since it told the Union at the bargaining session that it was
not aware that bargaining unit work would be transferred or
that there would be any erosion of the bargaining unit, it was
relieved of any responsibility to furnish the information re-
quested. I do not agree. The Union has established that such
information is relevant to its bargaining, and I find that Re-
spondent violated Section 8(a)(1) and (5) by not providing it
to the Union. E. I. du Pont & Co., 271 NLRB 1153, 1157
(1984).
The complaint also alleges that Respondent’s refusal to
furnish this information constitutes a separate violation of the
Act, in addition to evidence of bad-faith bargaining. I agree.
The Union need only show that its request for information
was supported by a showing of ‘‘probable’’ or ‘‘potential’’
relevance. NLRB v. Acme Industrial, supra. The Union has
made such a showing.
The Bad-Faith Bargaining Allegation
The complaint alleges that Respondent engaged in bad-
faith bargaining by engaging in the conduct discussed above,
and by its overall conduct.
Section 8(d) of the Act does not require either party in
collective bargaining to agree to a proposal or to make a
concession.
The Board is not permitted, under the guise of finding
bad faith, to require the employer to contract in a way
which the Board deems proper, nor may the Board ‘‘di-
rectly or indirectly compel concessions or otherwise sit
in judgment upon the substantive terms of collective-
bargaining agreements.’’ Commercial Candy Division,
294 NLRB 908 (1989).
In surface bargaining cases, the important issue is whether
the employer’s ‘‘approach to bargaining demonstrated an
unyielding rigidity during negotiations that rendered collec-
tive bargaining a futility.’’ Commercial Candy Division,
supra. It is also necessary to examine the totality of the em-
ployer’s conduct. Atlanta Hilton & Tower, 271 NLRB 1600
(1984).
I have found, as set forth above, that the making of certain
proposals, in themselves, do not constitute violations of the
Act. I also find that the content of the bargaining proposals
here did not violate the Act. In Reichhold Chemicals, 288
NLRB 69 (1988), the Board stated that ‘‘in some cases spe-
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cific proposals might become relevant in determining wheth-
er a party has bargained in bad faith.’’ Its standard in making
this determination is whether ‘‘on the basis of objective fac-
tors, a demand is clearly designed to frustrate agreement on
a collective-bargaining contract.’’ When examining such pro-
posals, the Board ‘‘strives to avoid making purely subjective
judgments concerning their contents.’’ American Commercial
Lines, 291 NLRB 1066 (1988). Here, as set forth above,
when viewed against the totality of the Respondent’s con-
duct, it cannot be found that Respondent’s proposals were
designed to frustrate agreement.
In assessing such conduct, I note that Respondent attended
each of the collective-bargaining sessions, and came fully
prepared to bargain. It presented its proposals at the second
meeting. During the negotiations, Respondent and the Union
reached agreement on a number of issues including seniority,
vacations, benefits, educational aid, union local officers, pro-
fessional certification, holidays, probationary, period, and
term of agreement.
In addition, Respondent’s proposals, which General Coun-
sel asserts violate the Act, were adequately explained to the
Union and were discussed in detail at the negotiations. More-
over, Respondent requested the presence of a Federal medi-
ator, who attended the two final sessions, and offered jus-
tification for its bargaining positions. As to Respondent’s re-
fusal to move from certain proposals, ‘‘a party may stand
firm by a bargaining proposal legitimately proferred.’’ Chal-
lenge-Cook Bros., 288 NLRB 387, 389 (1988). Here, there
is no evidence that any of the disputed proposals were of-
fered disingenuously or with an intent to frustrate agreement.
In addition, when agreement could not be reached on cer-
tain issues such as union stewards and professional certifi-
cation, Respondent requested that the Union submit its pro-
posed language on such clauses. After the Union did so, Re-
spondent agreed to those modified proposals as drafted by
the Union. Respondent also modified its wage proposal to
provide for additional adjustments to wages as deemed nec-
essary by it.
I accordingly conclude that the proposals discussed above,
and the totality of Respondent’s conduct during negotiations
are indicative of lawful hard bargaining. Logemann Bros.
Co., 298 NLRB 1018 (1990). The evidence falls short of es-
tablishing unlawful surface bargaining. In addition, there was
no evidence that Respondent’s conduct away from the bar-
gaining table was indicative of bad faith.
The unfair labor practice that I have found, the refusal to
furnish information to the Union concerning the number of
part-time employees employed by Prentice-Hall Law & Busi-
ness, does not establish a finding of surface bargaining or
overall bad-faith bargaining by Respondent. Rather, it is a
discrete unfair labor practice, as alleged in the complaint.
The Impasse
The complaint alleges that on about June 2, 1988, Re-
spondent implemented its final contract proposals in the ab-
sence of a valid impasse. Respondent asserts that at the final
bargaining session on June 2, an impasse existed.
An employer violates its duty to bargain if, when negotia-
tions are in progress, it unilaterally institutes changes in ex-
isting terms and conditions of employment. NLRB v. Katz,
369 U.S. 736, 741–743 (1962).
The principal exception to this rule occurs when the ne-
gotiations reach an impasse. When impasse occurs, the
employer is free to implement changes in employment
terms unilaterally so long as the changes have been pre-
viously offered to the Union during bargaining. Hay-
ward Dodge, 292 NLRB 434 (1989).
The Board has stated that ‘‘whether a bargaining impasse
exists is a matter of judgment. The relevant factors are the
‘bargaining history, the good faith of the parties in negotia-
tions, the importance of the issue or issues as to which there
is disagreement, [and] the contemporaneous understanding of
the parties as to the state of negotiations.’’’ Taft Broad-
casting Co., 163 NLRB 475, 478 (1967).
Applying the Taft principles here, I find that the parties
reached impasse in their negotiations when, on about June 2,
Respondent unilaterally implemented the terms of its last
contract offer. In reaching this conclusion, I note that I have
found that the evidence does not establish that Respondent
had engaged in bad-faith or surface bargaining. In addition,
this was not bargaining for an initial contract. Rather, the
parties had entered into three prior collective-bargaining
agreements, and find that Respondent negotiated here with an
intention to reach an agreement.
During the negotiations, both parties recognized the impor-
tance of the wage issue. Respondent sought a merit system
and the elimination of a guaranteed wage increase of 3 per-
cent to those whose performance was unsatisfactory. The
Union was opposed to a total merit pay system. Respondent
rejected the Union’s offers for a guaranteed wage increase
for all unit employees. The Union’s initial demand sought in-
creases of 15 percent or $3500 per year for the first year of
the contract, and 12 percent or $3000 per year for the second
year.
At the January 28 session, the Union made a lower salary
counteroffer which included a $2800 market adjustment for
all employees hired before February 1987, a raise of the per-
centage merit increase from the expired contract, and a raise
in the minimum increase from 3 to 6 percent. Respondent re-
jected that counteroffer as being too high.
At that session, Respondent made a counteroffer, pro-
posing that adjustments to salary be made consistent with the
merit system, in such frequency and in such amounts as de-
cided by it. Respondent has termed this proposal as an op-
portunity to provide additional midterm salary adjustments.
At the April 6 session, the Union withdrew its January 28
offer and stated that its original demand, made at the first
session, was still in effect.
On May 19, the Union made another salary offer, again
demanding an across-the-board raise of 12 percent in the first
and second years, and 11 percent in the third year. The
Union also demanded a market adjustment of $700 per year
for each year of service before 1987, with a cap of 10 years.
Respondent answered that this offer would cause enormous
increases to two specific employees, and that this latest offer
was higher than the prior two.
There was no further movement on the salary issue. The
Union, having withdrawn its May 19 offer, thereby had as
its only open salary proposal the January 28 offer. Accord-
ingly, no real movement had been made in salary discussions
notwithstanding eight negotiation sessions, and a modifica-
tion in position by Respondent.
41PRENTICE-HALL, INC.
3 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.
4 If 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.’’
The parties throughout these negotiations held apparently
irreconcilable positions concerning the issue of salaries—Re-
spondent insisting to the end on a total merit system, and the
Union similarly demanding a guaranteed wage increase in
some amount. Given these positions, the length of bargaining
which produced no meaningful compromise, and the events
at the last two sessions, there was no reason for either of the
parties to reasonably believe that a continuation of discus-
sions would have been fruitful. Hayward Dodge, supra.
I accordingly find that an impasse in contract negotiations
occurred on June 2, 1988. I therefore find that Respondent
permissibly unilaterally changed the terms and conditions of
employment of its unit employees by implementing the terms
of its last contract offer. These changes had been previously
offered to the Union during the bargaining which led to the
impasse. I find, therefore, that Respondent, having taken the
unilateral action set forth above, did not thereby violate Sec-
tion 8(a)(5) or (1) of the Act.
CONCLUSIONS OF LAW
1. Respondents Prentice-Hall, Inc. and Maxwell Macmillan
Professional and Business Reference Division of Macmillan
Information Company, Inc. are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. District 65, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. Until 1989, the appropriate collective-bargaining unit
consisted of:
All Prentice-Hall Information Division Editors em-
ployed by the Employer in its Information Services Di-
vision, excluding all office clerical employees, produc-
tion employees, managerial employees, guards, and su-
pervisors as defined in the National Labor Relations
Act, editorial assistants and all other employees.
From October 1989, the appropriate collective-bargaining
unit is:
All editors employed by the Maxwell Macmillan Pro-
fessional and Business Reference Division at its
Paramus, New Jersey facility, excluding all office cler-
ical employees, production employees, managerial em-
ployees, guards, and supervisors as defined in the Na-
tional Labor Relations Act, editorial assistants and all
other employees.
4. At all times material, the Union has been the designated
exclusive collective-bargaining representative of the units set
forth above.
5. By refusing to furnish information to the Union con-
cerning the number of part-time employees employed by
Prentice-Hall Law & Business, Respondent engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) of the Act.
6. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act in any other man-
ner as alleged in the complaint.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist and that it take certain affirmative action necessary to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondents, Prentice-Hall, Inc. and Maxwell
Macmillian Professional and Business Reference Division of
Macmillan Information Company, Inc., Paramus, New Jersey,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with District 65,
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO, by refusing to furnish infor-
mation to the Union concerning the number of part-time em-
ployees employed by Prentice-Hall Law & Business.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union with the requested infor-
mation concerning the number of part-time employees em-
ployed by Prentice-Hall Law & Business.
(b) Post at its facility in Paramus, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondents has taken
to comply.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with District 65, United
Automobile, Aerospace and Agricultural Implement Workers
of America, AFL–CIO, by refusing to bargain collectively
with District 65, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL–CIO, by refusing
to furnish information to the Union concerning the number
of part-time employees employed by Prentice-Hall Law &
Business.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, furnish the Union with the requested
information concerning the number of part-time employees
employed by Prentice-Hall Law & Business.
PRENTICE-HALL INC., AND MAXWELL MAC-
MILLAN PROFESSIONAL AND BUSINESS REF-
ERENCE DIVISION OF MACMILLAN INFORMA-
TION COMPANY, INC.