(concurring):
The foregoing opinion is an excellent analysis and I agree generally with the result it reaches; however, I desire to elaborate on several points and there are a few minor points of disagreement that I feel should be discussed. At the outset the Code of Ethics of April 15, 1974 (hereinafter Code) (J.A. 179) and the General Office Rules of May 10,1972 (hereinafter “Rules”) (J.A. 180-81) are set forth in their entirety as an Appendix.
I
First, as to a point of disagreement, it is contradictory to state that Justice Stewart’s famous concurrence in Fibreboard Corp. v. NLRB, 379 U.S. 203, 217, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964) “correctly interprets the law, and we shall apply it here” (Maj. op. at 560) and then subsequently state, “We agree with Chairman Fanning of the Board who said in his dissent in the Capital Times case: . . . rules with penalties, express or implied, are conditions of employment . . [and hence mandatorily bargainable.]” Maj. op. at 564 (Emphasis added).
By that statement the dissent in Capital Times would convert every rule that carried a penalty into a mandatory subject for collective bargaining between management and the union. The Capital Times dissent gave as its reason for this construction of the Act “that if employment is to continue only so long as an employee adheres to certain rules, then adherence to those rules is a condition of employment [and hence a mandatory subject of bargaining]”. The Capitol Times Company, 223 NLRB at 657 (dissent). This simplistic construction of the Act, which was rejected by the Board in Capital Times and in this case, fails to recognize the broader Congressional intent which Justice Stewart in Fibreboard Corp. v. Labor Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964)1 discerned as recognizing that certain “prerogatives of private business management” constituted an area of employer-employee relationship that is exempt from mandatory collective bargaining. Such widely varied intellects as Justices Douglas and Harlan also joined in his concurring opinion, and it has since ac*294quired wide national recognition and support. It is also significant that Chief Justice Warren’s Opinion for the Court in Fibreboard recognized management prerogatives when he pointed out that the decision would only affect them to a limited extent, 1. e.: “Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage his business.” 379 U.S. at 213, 85 S.Ct. at 404. Congress also recognized the wide freedom of employers to manage their businesses through supervisors by § 14(a) of the Act:
[No] employer subject to this [Act] shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.
29 U.S.C. § 164(a). 1 Legislative History of the Labor Management Relations Act 434.
Justice Stewart’s concurring opinion also states:
. it surely does not follow that every decision which may affect job security is a subject of compulsory collective bargaining.
379 U.S. at 223, 85 S.Ct. at 409. This is a direct contradiction of the Fanning dissent and there is more of the same. So we cannot agree both with Justice Stewart’s concurrence and the Fanning dissent. The majority, however, in n. 51 indicates that it does not construe the Fanning dissent as making every rule that carries a penalty mandatorily bargainable.2
The Stewart opinion then cited several Courts of Appeals decisions that supported his interpretation of the Act as carving out a class of “managerial decisions, which lie at the core of entrepreneurial control”, 379 U.S. at 223, 85 S.Ct. at 409, from the statutory obligation of mandatory collective bargaining. In conclusion his concurring opinion states:
If, as I think clear, the purpose of § 8(d) is to describe a limited area subject to the duty of collective bargaining, those management decisions[3] which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security should be excluded from that area.
379 U.S. at 223, 85 S.Ct. at 409. (Emphasis added).
The Stewart concurrence followed prior decisions of Courts of Appeals which had recognized an area of business decisions by management that were not mandatorily bargainable. The description of such decisions varied: NLRB v. Adams Dairy, Inc., 322 F.2d 553, 556, 557 (8th Cir. 1963) (exercise of “purely managerial prerogative^]” *295“motivated by economic necessity”); NLRB v. New England Web, Inc., 309 F.2d 696, 702 (1st Cir. 1962) (“legitimate managerial prerogatives”); NLRB v. Rapid Bindery, Inc., 293 F.2d 170, 172 (2d Cir. 1961) (“legitimate exercise of managerial discretion”); Jays Foods, Inc. v. NLRB, 292 F.2d 316, 320 (7th Cir. 1961) (“right of management to avert a threatened economic loss and operate its business according to established principles”); NLRB v. Houston Chronicle Pub. Co., 211 F.2d 848, 855 (5th Cir. 1954) (“ordinary act[s] of business management”).
Thus, Justice Stewart’s concurrence with which we agree concluded that mandatory collective bargaining did not extend to “such larger entrepreneurial questions as what shall be produced, how capital shall be invested in fixed assets, or what the basic scope of the enterprise shall be.” 379 U.S. at 225, 85 S.Ct. at 410. (Emphasis added). The last category comes closest to covering the circumstances of this case. These exceptions to mandatory collective bargaining do not exhaust the class. To them must be added circumstances which might be considered . having a general relationship to “the basic scope of the enterprise” but which could be described more specifically and would include a number of the circumstances of employer-employee relationships that are present in this case.
II
At this point it is appropriate to comment on a few specific provisions of the Code and Rules and to set forth my general views as to their being mandatorily bargainable. In my opinion an employing newspaper has a right unilaterally to determine the nature, character and quality of the newspaper it will publish and to prescribe such goals in a Code and Rules which provide for discipline up to discharge for employees whose conduct defeats or threatens the realization of the stated objectives. The newspaper can determine certain qualifications for the original employment of workers and their subsequent performance that are so fundamental to the basic nature and public character of the newspaper that violations can be made dischargeable offenses and need not be the subject of collective bargaining. Such standards of employment and performance might require a degree of ability and individual character that the employee must maintain to avoid disciplinary actions, including discharge. The basic skill level to qualify for the job is not a bargainable subject. A newspaper must have untrammeled authority to set standards of workmanship that determine its intrinsic excellence and its quality and public character. I refer primarily to the work of reporters, editorial writers, officers and management personnel, though there may be other positions that could be subjected to similar requirements.
In addition, in my view, an employer has an absolute right and need not bargain about his right to discharge a person for what is generally considered good “cause”. This right is expressly recognized by § 10(c) of the Act.4 Included in this class of general misconduct is disorderly conduct on the newspaper’s premises (Rule 9); violating state laws concerning gambling on company premises (Rule 6); being intoxicated or under the influence of drugs on company premises (Rule 5); furnishing false employment information (Rule 4). Other recognized grounds for dismissal or discipline would include engaging in work stoppages on company property (slow-downs or sit-downs) during working hours. Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940); NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); NLRB v. Blades Mfg. Corp., 344 F.2d 998 (8th Cir. 1965); Kheel, Labor Law § 29.02 (1974). Likewise, the acceptance of gifts that “compromise[s] the integrity” of the employees and threatens the quality of the newspaper (Code, Ethics, 1), and “secondary employ*296ment . . . [that] compromises the integrity of newspaper employees and their employers” (Code, Ethics, 2), may violate the basic loyalty that an employee owes to his employer. The establishment of such standards should not be mandatorily bargainable.
However, I do question whether it is proper in the Code to require newspaper people to “acknowledge the newsman’s ethic of protecting confidential sources of information.” Code, Ethics, 5. Following this “ethic” to its logical conclusion has not been supported by the courts, in the absence of statutory recognition. Pennsylvania law should be examined on this point. If the law has not shielded such conduct the “ethic” might require newspaper employees to commit a violation of law. Under such circumstances it would be my view that a newspaper has no right to require or enforce such a provision.
In my opinion a newspaper also has the absolute right to determine the qualifications of reporters and discharge or otherwise discipline them if their “objectivity in reporting” does not meet the newspaper’s standards. Code, Accuracy and Objectivity, 2. However, if this requirement were strictly applied and reporters were discharged for not making a “clear distinction between news reports and expressions of opinion”, it would seem that many reporters would be out of work. The same goes for the requirement that “news reports should be free of opinion or bias and represent all sides of an issue.” Id., 5.
The law in my opinion also authorizes a newspaper to protect its editorial integrity by disciplining or discharging employees whom it considers to constitute a threat to such objectives. To the extent that the Code and Rules contain such provisions, in my opinion, they would not be mandatory subjects for bargaining. Such discretion must rest with the newspaper.
Further, I believe that each substantive provision of the Code and Rules is to be considered separately, but in conjunction with the applicable penalty, if any. The substantive provisions cannot generally be considered apart from the penalty. The Court’s opinion states as follows:
Upon remand, the Board will be expected to make substantive determinations with respect to the various provisions of the Code of Ethics and the Office Rules and come to a decision whether, in light of the principles laid down herein, any particular subject matter is or is not within the mandatory bargaining category. To the extent that it is, any penalty attaching to a substantive rule must be regarded as being likewise mandatorily bargainable; to the extent that it is not, the related penalty provisions will also have to be regarded as exempt from the bargaining requirement.
Maj. op. at pp. 564-565. (Emphasis added.)
I would not look first at the substantive rule and then at the penalty only if the Rule is considered bargainable. I would view such substantive rule and its penalty together in the first instance. This may be only a slight difference from the Court’s opinion but I feel the two generally go together.
In the procedure as outlined above by the Court’s opinion, it should also be noted that the last clause quoted above (italicized) does not follow logically from its predecessor. In this connection, while I do not have a concrete case, I can foresee that in some cases possibly an excessive penalty, because of its excessiveness, might become a subject for mandatory bargaining. Finally, I do not agree that the facts of this case are so complex or the issue so close as to call for balancing of the “employer’s freedom to manage his business” against the employees’ “right ... to bargain on subjects which affect the terms and conditions of their employment.” Maj. op. at p. 22. Rather I believe the decision should result solely from giving the language of the statute its normal interpretation.
Subject to the foregoing comments I join in Judge Greene’s opinion.
*297APPENDIX
JA 179
April 15, 1974
The Mercury Code of Ethics below concerns all employees, who are all newspaper people
By this posting as of this date the Code of Ethics becomes a part of the posted office rules for all employees who shall adhere to them under penalty of discipline
CODE OF ETHICS
Employees of this newspaper are carriers of public discussion and information, acting on their Constitutional mandate and freedom to learn and report the facts. Public enlightenment is the forerunner of justice, and our Constitutional role is to seek the truth as part of the public’s right to know the truth. Those responsibilities carry obligations that require newspaper people to perform with intelligence, objectivity, accuracy, and fairness. To these ends, we declare acceptance of the standards of practice here set forth to be the rule:
RESPONSIBILITY: The public’s right to know of events of public importance and interest is the overriding mission of this newspaper. The purpose of distributing news and enlightened opinion is to serve the general welfare. Newspaper people who use their professional status as representatives of the public for selfish or other unworthy motives violate a high trust.
FREEDOM OF THE PRESS: Freedom of the press is to be guarded as an inalienable right of people in a free society. It carries with it the freedom and responsibility to discuss, question, and challenge actions and utterances of our government and of our public and private institutions. Newspaper people uphold the right to speak unpopular opinions and the privilege to agree with the majority.
ETHICS: Newspaper people must be free of obligation to any interest other than the public’s right to know the truth.
1. Gifts, favors, free travel, special treatment or privileges can compromise the integrity of newspaper people and their employers. Nothing of value should be accepted.
2. Secondary employment, political involvement, holding public office, and service in community organizations should be avoided if it compromises the integrity of newspaper people and their employers. Newspaper people and their employers should conduct their personal lives in a manner which protects them from conflict of interest, real or apparent. Their responsibilities to the public are paramount. That is the nature of their profession.
3. So-called news communications from private sources should not be published or broadcast without substantiation of their claims to news value.
4. Newspaper people will seek news that serves the public interest, despite the obstacles. They will make constant efforts to assure that the public’s business is conducted in public and that public records are open to public inspection.
5. Newspaper people acknowledge the newsman’s ethic of protecting confidential sources of information.
ACCURACY AND OBJECTIVITY: Good faith with the public and among themselves is the foundation of all worthy newspaper people.
1. Truth in all things is our ultimate goal.
2. Objectivity in reporting the news is another goal, which serves as the mark of an experienced professional. It is a standard of performance toward which we strive. Those who achieve it are to be honored.
3. There is no excuse for inaccuracies or lack of thoroughness.
4. Newspaper headlines should be fully warranted by the contents of the articles they accompany. Photographs and telecasts should give an accurate picture of an event and not highlight a minor incident out of context.
*2985. Sound practice makes clear distinction between news reports and expressions of opinion. News reports should be free of opinion or bias and represent all sides of an issue. •
6. Partisanship in editorial comment which knowingly departs from the truth violates the spirit of American journalism.
7. Newspaper people recognize their responsibility for offering informed analysis, comment, and editorial opinion on public events and issues. They accept the obligation to present such material by individuals whose competence, experience, and judgment qualify them for it.
8. Special articles or presentations devoted to advocacy or the writer’s own conclusions and interpretations should be labeled as such.
FAIR PLAY: Newspaper people at all times will show respect for the dignity, privacy, rights, and well-being of people encountered in the course of gathering and presenting the news.
1. The news media should not communicate unofficial charges affecting reputation or moral character without giving the accused a chance to reply.
2. The news media must guard against invading a person’s right to privacy.
3. The media should not pander to morbid curiosity about details of vice and crime.
4. It is the duty of news media to make . prompt and complete correction of their errors.
5. Newspaper people should be accountable to the public for their reports and the public should be encouraged to voice its grievances against the media. Open dialogue with our readers should be fostered.
PLEDGE: Newspaper people should actively censure and try to prevent violations of these standards, and they should encourage their observance by all their fellow workers. Adherence to this code of ethics is intended to preserve the bond of mutual trust and respect between newspaper people and the public.
Any Mercury employee who does not wholly and fully subscribe to these tenets should make himself known now and state his reasons.
JA 180
May 10, 1972
GENERAL OFFICE RULES
For all Employees of the Pottstown Mercury
These rules include, but are not limited, to all of the office rules for your department. Your department head may add to these rules more specific rules which apply to your department. Violation of office rules may be deemed cause for discharge except in the case of those rules where discharge is automatic:
1. Before starting employment each employee must file with the business office his name, address and telephone number; and thereafter must report promptly to the business office in writing any change in his address or telephone number.
2. W4 forms and any and all employment forms are to be correctly completed in the presence of the Business Manager or the Publisher. They will be initialled, processed and turned over to the payroll department, otherwise, no hire exists.
3. Employees must comply with any procedure set forth by the office for timekeeping or other purposes, including that procedure established for completion and submission of weekly time cards.
4. False or misleading employment record information furnished by an employee is reason for discharge.
5. Intoxication or drinking on company property, or bringing liquor into the building (except liquor purchased and unopened to be taken home) or keeping liquor in lockers, is prohibited. Appearing in or about the Com*299pany premises in an intoxicated con- ■ dition is absolutely prohibited. Violations of this rule shall subject the offender to immediate discharge. The above applies to drugs in any form.
6. While in or about Company premises, all employees are expected to conform with any and all State laws governing gambling.
7. Employees should handle their affairs in such a manner that creditors will not make complaints to the business office. Employees are expected to pay their legitimate bills, and repeated complaints to the business office will not be tolerated.
8. The office is not responsible for the disposition of personal mail sent to The Mercury. Personal mail should be sent to another address.
9. Loitering on Company premises, stalling, gossiping, or engaging in any unnecessary conversations; visiting between employees or with visitors; uttering profane, loud, abusive or indecent language, whistling or making other unnecessary distracting noise; and quarrelling or engaging in physical violence, disorderly or disturbing conduct of any nature, is prohibited.
10.There shall be no attempt to limit or no limitation on the output of any employee; anyone who, directly or indirectly, encourages, advises, or suggests such limitation, will be promptly dismissed. Engaging in individual or group slow-downs or work stoppages on Company property during working hours will subject the employee involved to immediate dismissal. Carelessness or neglect of duty in carrying out assignments or instructions from those in authority, or insubordination of any kind will be considered an aggravated violation of these rules. All employees shall perform work as directed and at the place or places assigned by the department head.
11. All copy and proof, both news and advertising matter, must be treated as confidential. No information obtained by any employee by reason of his employment shall be made use of for himself or given out, or in any way made known prior to publication. Employees must not deface property of the Company by posting circulars anywhere except on the bulletin board provided for that purpose. Employees are prohibited from writing upon, cutting, scratching or otherwise damaging buildings, walls, floors, furniture, machinery or other equipment or defacing an office sign, or notice, or changing the wording in any way. Wanton destruction of property material or finished work is forbidden. Employees must so conduct themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage. Prompt and satisfactory cooperation with fellow workers and other members of this organization is required.
12. Producing matter on machines or by hand for personal use of anyone is strictly forbidden unless requested for the office by the department head or unless permission is first obtained from the department head. The foregoing also applies to all other transactions or work for any person or organization other than the Company while on Company time and premises.
13. Injuries or accidents of any nature must be reported to the department head as soon as possible.
13A. Complete compliance with all Federal, State, or local regulations is required at all times. Any violation is cause for instant dismissal.
14. Employees will not be called to the telephone during working hours except in case of emergency, sickness, etc. Employees should so instruct their families and friends. Outgoing calls will not be permitted, except in *300case of emergency, sickness, etc., and with the permission of the department head. When the Company’s PBX operator is on duty, the number must be given to her to dial any outgoing calls, and when the PBX operator is not on duty, a record of the call shall be made by employees and such record shall be left with the department head who shall promptly deliver the same to the PBX operator. The employee shall, on request of the office, promptly reimburse the office for all toll calls which he has placed.
15. Turn off motors and lights when not needed. Employees must not waste supplies, water, light or power.
16. Hygienic use of waste receptacles, lavatories and toilets is required. Soap is not to be left in sinks to melt away or clog drains. Oily rags or any material of a combustible nature must be placed in covered metal containers before going off duty. All employees must cooperate to keep machines, materials and the floor clean. Do not throw paper scraps, etc., on the floor. In short, each employee should do his share to keep the building clean and orderly.
17. Employees must immediately report breakage or failure of machinery, furniture, or fixtures to the department head.
JA 181
18. Privately owned goods, material or equipment should not be on the premises without permission and an appraisal release form.
19. Radios' and tv should not be used except for news business.
20. Payroll records are confidential and figures will not be provided to anyone other than the department head and the employee concerned.
21. Business matters to be discussed with another department should only be discussed, explained, or otherwise conveyed to the head of the department or the person in charge.
22. The management will not permit the attachment or execution of salaries or assignment of wages. All employees who have their salaries attached or garnished will be subject to dismissal. No advances on salaries will be made before the regularly constituted pay day. Checks will be obtained from the cashier at the business office on that day.
23. In order to receive sick benefits, all employees must have a doctor’s certificate stating the nature of the illness, and attesting to the fact that the employee is unable to work on the day specified. The doctor’s certificate must be signed only by the doctor on a regular doctor’s certificate. The company reserves the right to waive the above rule.
24. No solicitations of funds are permitted on company premises.
25. Persons other than employees are not allowed beyond the lobby except by permission of a department head.
. Justice Stewart’s concurring opinion in Fibreboard remarks that switching to subcontracting out “work [which was] ultimately supervised by the company’s officials and functioning as an integral part of the company [u]nder a cost plus arrangement [whereby] Fibreboard remained responsible for whatever management costs were actually incurred . . . [imposed] a duty to bargain collectively concerning the employment." 379 U.S. at 219, 85 S.Ct. at 407. What the employer was actually doing there was bringing about the “substitution of one group of workers for another to perform the same task in the same plant under the ultimate control of the same employer.” 379 U.S. at 224, 85 S.Ct. at 410. (Emphasis added). Ordinarily, subcontracting work had been held not to be a mandatory subject for collective bargaining. National Labor Relations Board v. Adams Dairy, Inc., 322 F.2d 553 (8th Cir. 1963); NLRB v. Houston Chronicle Pub. Co., 211 F.2d 848 (5th Cir. 1954). The decision in Fibreboard is thus nothing more than an opinion that where the new workers were “ultimately supervised by the [same] company officials” as the discharged employees, the workers doing the subcontracted work were in effect company employees and the circumstances of their employment were subject to collective bargaining. This was pointed out by Justice Stewart’s opinion which indicates that the holding of the case with respect to subcontracting is an aberration of the normal rule. The majority in Fibreboard indicated the narrow compass of its holding. Chief Justice Warren stated: “We are thus not expanding the scope of mandatory bargaining. . Our decision need not and does not encompass other forms of ‘contracting out’ or ‘subcontracting’ which arises daily in our complex economy.”
. The Fanning dissent argues as follows:
If an employee does not conform to the rules, his employment will either be suspended or terminated; and the rules will be the cause. Rules which determine employee conduct, income, or job security are inescapably terms and conditions of employment [and hence mandatorily bargainable]. It is difficult to see how it can be argued otherwise when the rules have been adopted by the Respondent precisely because it believes that the areas covered by the rules affect the work of its employees sufficiently to make employment contingent upon their observation.
223 N.L.R.B. at 656. Thus this and the other quoted extracts from the Fanning dissent would not allow any lee-way in employment rules for the prerogative of private business management such as we have here and which are the core of Justice Stewart’s classic concurrence. In fact the Fanning dissent points out that the employer’s remedy is to bargain to impasse. Id. at 657. However, it is significant that the majority does not interpret the statute or the Fanning dissent to contradict Justice Stewart’s concurrence and hence there is no necessity for the Board to depart from Justice Stewart’s concurrence in interpreting the statute in this case.
. The term “management rights” or “management prerogatives”, as used in union-management relationships, has been defined to mean “rights reserved to management, which may be expressly noted as such in a collective bargaining agreement, usually including the right to schedule promotion, to determine the process of manufacture, to maintain order and efficiency, to hire, etc.” U.S. Dept. of Labor, Glossary of Current Industrial Relations and Wage Terms 52 (Bull. No. 1438, May 1965).
Kheel, Labor Law § 4304(3), n. 30 (1974). This is not an exhaustive definition.
A Minnesota Statute provides that a public employee cannot be required to meet or negotiate on matters of managerial policies. Minnesota Stat.Ann. § 179.66(1).
. 29 U.S.C. § 160(c) provides:
“. . .No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or suspended or discharged for cause. . . .”