CBS Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1976

226 N.L.R.B. 537 (N.L.R.B. 1976)

CBS INC. 537
CBS Inc . and International Brotherhood of Electrical
Workers, AFL-CIO, and Local 4 , Local 45, Local
202, Local 1200, Local 1212, Local 1220 , and Local
1228, International Brotherhood of Electrical
Workers, AFL-CIO. Case 31-CA-5587
later amended by the various Charging Parties, alleges that
Respondent, CBS Inc., has engaged in unfair labor practic-
es within the meaning of Section 8(a)(5) and (1) of the Act.
Briefs have been duly submitted by the parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
October 19, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On June 23, 1976, Administrative Law Judge Mar-
tin S. Bennett issued the attached Decision in this
proceeding. Thereafter, Charging Parties and Gener-
al Counsel filed exceptions and supporting briefs,
and Respondent filed an answering brief, cross-ex-
ceptions, and supporting brief. Charging Parties also
filed an answering brief to Respondent's cross-excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions ' of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
' We do not adopt any suggestion by the Administrative Law Judge to the
effect that the IBEW was acting in bad faith in seeking to add NABET
representatives to its bargaining team Nor do we adopt the Administrative
Law Judge's continents with respect to NABET's duty to disclose informa-
tion it might receive on a confidential' basis as a result of its participation in
such bargaining.
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
CBS Inc. is a New York corporation engaged in radio
and TV broadcasting. It annually ships goods and per-
forms services valued in excess of $50,000 outside of New
York. I find that the operations of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Electrical' Workers, AFL-
CIO, and its various Locals as named in the complaint, as
well as National Association of Broadcast Engineers and
Technicians , AFL-CIO, herein NABET , are labor organi-
zations within the meaning of Section 2(5) of the Act. They
are respectively referred to as IBEW and NABET.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; The Issue
There is but one issue herein. From 1938 to.1951, IBEW
and Respondent have been signatory to a series of collec-
tive-bargaining agreements originally covering broadcast
technicians in the radio industry. IBEW was certified by
the Board in 1951 for a nationwide unit of broadcast tech-
mcians and, in 1952, Respondent and IBEW entered into
an agreement covering both radio and television techni-
cians. Since that time they have regularly entered into col-
lective-bargaining agreements.
In 1972, the parties entered into a contract expiring Sep-
tember 30, 1975. The sole issue herein is whether during
negotiations for a subsequent contract Respondent unlaw-
fully refused to bargain with the Union, more. specifically
that Respondent rejected the attempt of IBEW to have on
its bargaining team representatives of NABET. The latter
has no contractual relationship with Respondent, but does
have contracts with Respondent's two key competitors,
namely NBC and ABC.
B. Sequence of Events
Of some relevance to the instant dispute are the negotia-
tions for the previous 1972-75 contract. At that time, CBS
proposed certain changes by which it aspired to assume
leadership in the use of new electronic equipment. IBEW
MARTIN S. BENNETT, Administrative Law Judge: This agreed to relax contractual provisions in return for the dis-
matter was heard at Los Angeles, California, on February closure of information deemed confidential by Respon-
24 and 25, 1976. The complaint, issued on December 5 dent. More particularly, this involved information concern-
based on an original charge filed on September 11, 1975, ing the use of a new camera; indeed, CBS had a monopoly
226 NLRB No. 85
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the use of this camera in a visit of the President of the
United States overseas in 1974.1
It is undisputed that IBEW had recognized the confiden-
tial nature of the new technology developed and utilized by
CBS. Pursuant to the 1972 contract, the parties agreed to
quarterly consultation meetings and there is no evidence
that IBEW heretofore has ever breached the confidentiality
of information gleaned from these meetings; none of these
meetings, it may be noted, had ever been attended by rep-
resentatives of NABET.
Turning to negotiations for the 1975 agreement, accord-
mg to the uncontroverted testimony of Vice President
James Sirmons of Respondent, and I so find, Respondent
planned to provide IBEW with confidential information
concerning its plans in the production field. For example,
Respondent planned to propose changes to IBEW's juris-
diction over electronic work with three new electronic in-
put devices; none of these were then available to the com-
petitors of Respondent.
Similarly, in the news field, Respondent intended to sub-
mit proposals broadening the use of personnel in at least
four specified categories. Respondent believed that confi-
dentiality was imperative so as to gain lead time over its
competitors. It is undisputed that confidentiality concern-
ing trade secrets and business plans would indeed give Re-
spondent a temporary competitive advantage over its two
key competitors, albeit the rest of the industry would ulti-
mately catch up and this indeed has taken place, subse-
quent to the events treated herein.
C. The 1975 Negotiations
In mid-July 1975, IBEW and Respondent commenced
collective-bargaining negotiations in Ossining, New York,
for a new contract. Respondent presented contract de-
mands, not involving the disclosure of confidential infor-
mation, to a negotiating committee including solely IBEW
personnel.
Pursuant to agreement, they met again in San Diego,
California, on September 3. On the following day, as Re-
spondent stresses, IBEW for the first time in 35 years of
bargaining history introduced as members of its bargaining
committee two members of IATSE, a labor organization in
the radio and television industry. Respondent did object to
their presence on the premise that good-faith negotiations
would be impeded due to the existence of jurisdictional
disputes and contradictory claims between these two labor
organizations.
Recognizing that IATSE did enjoy representation of
some employees of CBS and was duly signatory to con-
tracts with CBS, the latter did continue to bargain while
representatives of IATSE were present.
This acquiescence by Respondent as to the composition
of the bargaining committee apparently fell afoul of the
plans of IBEW because on September 8 IBEW introduced
i ABC and NBC apparently did not enjoy the use of this equipment until
September 1974 and CBS now utilizes more of these cameras than either of
the-other two networks In essence, simply stated, CBS was able to broad-
cast live coverage directly whereas its competitors, utilizing older equip-
ment, transported film to base facilities for processing and editing and this
resulted in ensuing delay
Nolan, an International representative and vice president
of NABET, as a member of its bargaining committee.
Again, as stressed by Respondent, NABET enjoyed no
contracts with Respondent, but did represent employees of
the latter's key competitors, namely NBC and ABC. Re-
spondent therefore contends that because support of its
proposals would require disclosure of details concerning
highly confidential technological matters and business
plans the presence of the NABET representatives whose
allegiance perforce was to employees of the two archrival
networks would inhibit in a most direct and obvious man-
ner the bargaining process. On September 8 a Mrs. Wolfe,
it may be noted, also attended. She worked for an indepen-
dent radio station and was an assistant to the business
manager of IBEW Local 1212; because of her affiliation
with IBEW, Respondent did not seriously challenge her
presence and indeed excused same.
IBEW persisted on the participation of a NABET repre-
sentative; Respondent responded by filing a charge that
this was violative of Section 8(b) of the Act; this was.reject-
ed by the Regional Director and an appeal to the General
Counsel was similarly rejected. Respondent and IBEW met
in San Diego from September 8 through 30, 1975. Respon-
dent refused to negotiate because of the presence-of
NABET personnel and, as indicated, this is the gravamen
of the instant charge.
D. Subsequent Meetings
IBEW came forward with a ploy in an effort to placate
Respondent. On or about, September 16, it proposed that
they negotiate with respect to proposals not requiring the
disclosure of confidential information. Respondent resisted
this, inter alia, on the basis which I deem axiomatic, that
meaningful collective bargaining perforce requires a give
and take balance of respective positions with ultimate reso-
lution of the contract upon the entire composite picture. I
am not aware of any authoritative decisions that such bar-
gaining in limbo is supported.
In any event, it appears that IBEW did not come for-
ward with a full-fledged contract proposal. Moreover, as
Respondent contends, it has no collective-bargaining rela-
tionship with NABET, unlike that with IBEW.2
At an ostensible bargaining meeting held on September
19, Nolan was replaced as a member of the union bargain-
ing group by a Mr. Lynch, International president of
NABET. On or about that date, as well as thereafter, no
representatives of IATSE were present at the negotiations.
There was a brief bargaining meeting on September 22
during part of which Lynch of NABET was absent from
the room. Bargaining did take place, but it was discontin-
ued upon the return of Lynch to the scene.
Later, on or about September 24, Respondent proposed
that the parties meet in subcommittee so as to exchange
information pending agreement on a new contract. IBEW
declined, stating that all the negotiations had to take place
across the bargaining table and in the presence of a repre-
2 I am at a loss to appreciate the argument that NABET representatives
would remain silent and disregard their primary duty of fair and full repre-
sentation to its constituents who are employed by two key rival networks.
CBS INC. 539
sentative of NABET. Thereafter, IBEW and Respondent
agreed to extend the 1972 contract for a 5-month period
through February 29, 1976.
E. 1976 Negotiations
The parties resumed negotiations at Santa Barbara, Cali-
fornia, without the presence of any union representatives
other than IBEW personnel. These took place between
January 6 and 21 and later in San Diego between January
28 and February 4, 1976. It is undisputed that during these
meetings Respondent presented the identical proposals as
well as supporting confidential information which it had
intended to present during the abortive 1975 meetings. Sir-
mons, an impressive witness for Respondent, uncontrovert-
edly testified that these-proposals with supporting confi-
dential data took up approximately 75 percent of the
bargaining time in 1976. I so find.
As noted, on November 20, 1975, Respondent and the
Union had executed an interim agreement extending the
contract, expiring September 30,-1975, through February
29, 1976, with wages and overtime to be agreed upon retro-
active to October 1, 1975.
F. Analysis and Conclusions
The General Counsel manifestly relies upon the decision
in General Electric Company v. N.L.R.B., 412 F.2d 512
(C.A. 2, 1969) where the circuit court in effect enforced a
refusal-to-bargain order where the employer resisted bar-
gaining with a union negotiating committee which includ-
ed representatives of other labor organizations. But endem-
ic therein is the fact that all these other labor organizations
represented employees of General Electric in other units.
And the facts herein are stronger in behalf of Respondent
because of the introduction of a representative of NABET
which represented no employees of Respondent.
To the contrary, NABET represented only employees of
two archrivals of Respondent, namely NBC and ABC. It
defies credence that such a representative would ignore his
responsibility to his constituents. Indeed, had he done
otherwise, this might properly lead to charges of unfairly
representing or acting in derogation of established respon-
sibilities, a most basic conflict of interest. In my judgment,
this case at the very least constitutes exceptional circum-
stances which buttress the position of an employer so as to
warrant a departure from the General Electric doctrine, su-
pra.
In essence, as Respondent contends, and I so find, under
the unique circumstances of this case, the composition of
the bargaining committee of IBEW perforce constitutes a
"clear and present danger to the bargaining process." In-
deed, even under the decision of General Electric, at 519, it
is acknowledged that there could be a conflict of interest so
as to make good-faith bargaining impractical. Still later, at
520, the court acknowledged that a showing of the clear
and present danger to the collective-bargaining process
could constitute a defense to a refusal-to-bargain allega-
tion.
Still later, at 522, the court held that the record did not
demonstrate a clear and present danger to the bargaining
process requisite to overcome the burden imposed on one
who objected to the bargaining representatives selected by
the other party. The court went on to honor as members of
the bargaining committee personnel of other labor organi-
zations who enjoyed contracts with General Electric.
But even in General Electric, the court held that it would
not impose a blanket prohibition on interunion coopera-
tion, as found by the Board, but the circuit court then ac-
knowledged the right of an employer to demonstrate a
clear and present danger to the bargaining process. In my
judgment, this has been done in the present case.
It may further be noted that at a meeting IBEW pro-
posed that a general pledge of confidentiality be executed
by all sides. On the posture most favorable to IBEW, Re-
spondent CBS took the position that this was not adequate
protection against the disclosure of trade secrets. I concur,
because, as indicated, the representative of NABET had a
primary allegiance to his constituents who were employed
by the two archrivals of Respondent. And, as is obvious, a
breach of such a pledge of confidentiality by a representa-
tive of NABET would have caused irreparable injury by
depriving Respondent of competitive advantages. In sum,
the inclusion of a NABET representative on the bargaining
committee during the 1975 negotiations, as stated, consti-
tuted a clear and present danger to meaningful collective
bargaining.3
In view of the foregoing considerations, I shall recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. CBS Inc. is an employer whose operations affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, and Local 4, Local 45, Local 202, Local 1200,
Local 1212, Local 1220, and Local 1228, International
Brotherhood of Electrical Workers, AFL-CIO, and
NABET are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
The complaint is dismissed in its entirety.
3 Respondent has also pressed the argument that the Charging Parties do
not enjoy a statutory right to select whomever they wish as members of their
negotiating committee and has argued in support of this view in its brief
Therein, it has sought to make a distinction between rights guaranteed un-
der Sec 8(b)(1)(B) of the Act and under Sec 7 thereof In view of the
findings made heretofore, I deem it unnecessary to pass on this issue
4In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes