Freedom Wlne-Tv, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1986

278 N.L.R.B. 1293 (N.L.R.B. 1986)

FREEDOM WLNE-TV
Freedom WLNE-TV, Inc. and Local 1228, Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO. Case 1-CA-21730
26 March 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 16 April 1985 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' the Union filed a reply brief in opposition to
the exceptions, and the General Counsel filed a
brief in support of the decision.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative 'law
judge and orders that the Respondent, Freedom
WLNE-TV, Inc., New Bedford, Massachusetts, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 In agreeing with the judge's conclusion that the profit-sharing pay-
ments became a term and condition of employment of the unit , employ-
ees, we rely solely on the Respondent 's 18 November 1983 memorandum
to employees unconditionally announcing the Respondent's decision to
make profit-sharing payments.
Joseph F. Griffin, Esq., for the General Counsel.
Carroll Hament, Esq., and Earle K. Shawe, Esq. (on the
brief), (Shawe & Rosenthal), of Baltimore , Maryland,
for the Employer.
Joseph G. Sandulli, Esq., and Kenneth A. Grace, Esq. (on
the brief), law office of Joseph G. Sandulli, of Boston,
Massachusetts , for the Union.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. This
case was tried before me on October 16-18, 1984, and
January 22, 1985, at Boston, Massachusetts.
The charge was filed by the Union on January 11,
1984, and was amended on February 22, 1984. A com-
plaint and notice of hearing issued on February 24, 1984.
The complaint alleges that the Employer violated Sec-
1293
tion 8(a)(1) and (5) of the National Labor Relations Act
(the Act) by announcing it would grant a Christmas
bonus and profit-sharing payment to employees repre-
sented by the Union for collective bargaining; unilateral-
ly withdrawing both these benefits; and conditioning the
grant of each on ratification of a new collective-bargain-
ing agreement . It is also alleged that the Employer's al-
leged unlawful activities undermined the Union's repre-
sentative status (derived from the combination of the al-
legations in complaint pars. 19 and 21).
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the timely briefs filed by counsel for the General Coun-
sel, the Employer and the Union, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Employer, a corporation engaged in the operation
of a television broadcasting station, at all times material,
has maintained offices and places of business at New
Bedford, Massachusetts, and Providence, Rhode Island.
Annually, the Employer derived gross revenues exceed-
ing $100,000. In the same time period, the Employer pur-
chased and received, at its New Bedford facility, prod-
ucts, goods, and materials in excess of $10,000 directly
from points outside of Massachusetts.
The Employer admits, and I find, that it is an employ-
er within the meaning of Section 2(2), (6), and (7) of the
Act.
The parties agree, the record reflects, 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
For at least 3 years before July 26, 1982, station
WLNE-TV was owned by Pulitzer Broadcasting. Pulitz-
er and the Union were parties to a collective- bargaining
agreement effective November 16, 1982, to August 15,
1983 (the 1982-1983 agreement). Although at variance
from the bargaining unit described in that agreement, the
parties agreed, at the hearing, that the following employ-
eesconstitute a unit appropriate for collective-bargaining
within the meaning of the Act:
All operations and production technicians, but not
limited to master control operators, video tape op-
erators, projection tape operators,, audio operators,
cameramen, transmitter technicians, maintenance
technicians and all announcers -audiomen , and car-
penters employed by the Employer at its New Bed-
ford, Providence and Tiverton facilities , but exclud-
ing, but not limited', to, all other employees, office
clerical employees, reporters, professional employ-
ees, guards, watchmen and supervisors as defined in
the Act. t
' Based on the parties' agreement and the record as a whole, I find this
unit appropriate for collective-bargaining.
278 NLRB No. 167
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the negotiations which culminated in the 1982-
1983 agreement, Pulitzer (on July 26, 1982) entered into
a purchase and sale agreement by which the instant Em-
ployer agreed to buy WLNE-TV. The Employer, inter
alia, agreed to hire Pulitzer's employees and to assume
the collective-bargaining agreement and existing prac-
tices then in effect, or about to be negotiated, between
Pulitzer and the Union. The purchase and sale agreement
provided that the Employer retained a right to terminate
any amendment, renewal, or extension of the collective-
bargaining agreement between Pulitzer and the Union
within 15 days of notice of the Employer of a change on-
or before the closing date of the station' s sale (February
2, 1983), whichever was sooner. Also, such termination
could be accomplished if the terms of any amendment,
renewal, or extension were not acceptable to the instant
Employer.
The Employer did not exercise the option to terminate
any part of the 1982-1983 agreement within any of the
specified times. On the foregoing, and the Employer's
admissions in its answer to the complaint and the record
in its entirety, I find that the Employer has been a suc-
cessor to Pulitzer at all material times.
The collective-bargaining agreement between Pulitzer
and the Union, which preceded the 1982-1983 agreement
was due to expire on August 15, 1982. The parties met to
negotiate a new agreement on July 30, 1982. On that
date, the Union was advised of the pending sale of the
station. Pulitzer and the Union agreed to extend the
then-existing collective-bargaining agreement through
October 15, 1982. On October 15, 1982, Pulitzer and the
Union negotiated, and resolved, the terms of the 1982-
1983 agreement.
Pulitzer's pension plan and Christmas bonus for unit
employees were among the subjects discussed on Octo-
ber 15. With respect to the pension plan, it was noted
that the purchase and sale agreement required Pulitzer to
terminate the pension plan. Attorney Hament, who then
represented Pulitzer, advised the Union that the instant
Employer maintained a profit-sharing plan and gave the
formula for computation to the Union; The Union's busi-
ness manager and chief spokesman at negotiations, Ken-
neth Flanagan, testified, without contradiction, that he
acceded to termination of the pension plan in the belief
that the Employer would substitute its profit-sharing, plan
for that terminated benefit. Although there is no evi-
dence that Hament was authorized to make any propos-
als for the instant Employer, nor that he actually did so,
the 1982-1983 agreement contains a supplement by
which the Union and Pulitzer agreed to the termination
of the Pulitzer pension plan within 120 days after the
closing date of the station's sale.
Regarding the Christmas bonus, a supplement to the
1982-1983 agreement reflects the understanding between
Pulitzer and the Union that Pulitzer would double the
amount each employee would have received in accord-
ance with Pulitzer's past practice.2 In the past, Pulitzer
paid a Christmas bonus equal to 1 week's pay for each
eligible unit employee.
2 How long such a practice existed on October 15, 1982, is unclear.
On February- 2, 1983,3 Pulitzer and the instant Em-
ployer consummated the station's sale . By letter, dated
February 10, the Union was advised the sale was com-
plete. The Union took no immediate steps to request the
Employer to institute its profit-sharing plan for unit em-
ployees. Nonetheless, all other terms and conditions of
employment of the 1982-1983 agreement continued in
effect.
B. Scenario of the Present Dispute4
Negotiations for a collective-bargaining agreement to
succeed the 1982-1983 agreement began in July . Negoti-
ating spokespersons for the Union were: Flanagan, until
November 2, and Attorney Kenneth Grace thereafter;
for the Employers , Attorney Arthur Brewer , who acted
in this capacity throughout the parties ' collective bar-
gaining.
During the first negotiating session, on July 18, the
Employer submitted its contract proposals . Included was
a provision regarding a profit-sharing plan . Concerning
profit sharing , the Employer proposed it have "the right,
at its sole and unfettered discretion to alter , amend,
modify and/or terminate the profitsharing plan now in
effect." The Employer 's initial proposals contained no
provision regarding a Christmas bonus.
Also, at the first session Brewer proposed that the par-
ties not publicize their bargaining positions . Flanagan re-
jected this suggestion , saying the Union intended, to issue
bulletins regarding progress in bargaining to its members.
Although the Employer and Union conducted several
bargaining sessions between July 18 and September 9, it
was on the latter date that anything occurred regarding
either the profit-sharing plan or the Christmas bonus.
Then, Flanagan asked for information on the Employer's
profit-sharing plan . Brewer told Flanagan the Employ-
er's profit-sharing payment was currently 5 percent of an
eligible employee 's gross salary to a $1000 maximum.
Brewer also said that bargaining unit employees would
participate , in the profit-sharing plan in the event the Em-
ployer decides to make a profit-sharing distribution to
other employees . • On September 9 there was no discus-
sion at all concerning a Christmas bonus.
Both the Christmas bonus and profit-sharing subjects
were taken up on November 18. (This was the parties'
December 13 bargaining session .) Brewer delivered
copies of two memoranda addressed from the Employer
to its entire staff.5 One memorandum announced that the
Employer had decided to make a profit-sharing payment.
The other memorandum advised employees that a
Christmas bonus would be paid to them on December
16.
® All dates hereafter are 1983 unless otherwise stated.
4 Not all facts or argument of counsel are narrated . All which has been
litigated and argued has been considered . Omitted material is deemed ir-
relevant , of -little probative value, or superfluous. Where credibility reso-
lutions are required , they appear in my text. Otherwise , what was said by
negotiators is derived from mutually consistent, or uncontradicted , testi-
mony . Much testimony is corroborated by documentary evidence.
5 Whether the memoranda had already been distributed to the employ-
ees is in dispute . I find it unnecessary to resolve that issue . It is clear that
the memoranda were actually distributed to all employees about Novem-
ber 18.
FREEDOM WLNE-TV
Also, Brewer delivered contract language on the
profit-sharing plan and the Christmas bonus to the
Union, in addition' to its economic proposals. The lan-
guage proposals reflect that the Employer desired to re-
serve to itself the right to grant, determine, or refuse to
grant both of these benefits.
Precisely what was said by Brewer and Grace in the
ensuing discussion over the profit-sharing plan and the
Christmas bonus is disputed. I accept Grace's testimony,
over Brewer's, that it was Brewer (not Grace) who re-
ferred to both benefits as a gift. Grace's version logically
flows from the import of the written contract proposals
on the profit-sharing plan and the Christmas bonus (G.C.
Exh. 7) in which, as noted, the Employer sought to make
the grant of those benefits wholly within the Employer's
discretion. Also, Grace's testimony is consistent with
Brewer's remark, which he acknowledged making, that
the Employer considered the profit-sharing plan and the
Christmas bonus as discretionary with the Employer.
Grace disagreed. He told Brewer he believed the Christ-
mas bonus was a condition of employment because of the
past practice.
The November 18 discussion continued. Specifically,
Brewer expanded on the announcement that the Christ-
mas bonus would be paid on December 16. He told the
Union that because the Employer's payroll was prepared
by an outside source, the Employer needed to know, by
December 12, whether its final contract offer, which the
Employer expected to present by December 2, had been
accepted so the bargaining unit employees could receive
their Christmas bonus when that payment was made to
other employees.
Grace protested the Employer was conditioning pay-
ment of the Christmas bonus on ratification of a new col-
lective-bargaining agreement . Though Brewer did not
explicitly deny this, he did remind Grace that the parties
had understood that the benefit payments would be made
retroactively on ratification. No further discussion on the
profit-sharing plan and the Christmas bonus took place
on November 18.
The next bargaining session took place on November
28. Some time between the November 18 and 28 ses-
sions, the Employer distributed a memorandum dated
November 18 on the subject of the previous memoran-
dum (of the same date) which had announced a Christ-
mas bonus would be paid. In salient part, this additional
November 18 memorandum stated:
At the conclusion of the session on November 18,
1983, the Company advised the Union that a Christ-
mas bonus would be 'paid, to all employees as ex-
plained in my memorandum of November 18, 1983
concerning the Christmas bonus. Since the Christ-
mas bonus is due to be paid on December 16, 1983,
our representatives told the Union that the Compa-
ny would be in a position of having its final con-
tract offer on the bargaining table before that time.
The Company also advised the bargaining commit-
tee that the Christmas bonus would not be made to
bargaining unit members unless the contract were
ratified by December 12, 1983. [Emphasis added.]
1295
As you know the parties have met on 13 different
occasions over a 5 month period in an attempt to
reach a new collective-bargaining agreement. By
the time December 12 rolls around the parties will
have met 18 times over a six month period. In my
opinion that is certainly a sufficient amount of time
for negotiations.
It is my sincere hope that we will be able to reach
an agreement on or before December 12, 1983.
At the November 28 bargaining session , Brewer said
he wanted to clarify the Employer's position on the
Christmas bonus and the profit-sharing plan. He said the
Employer considered the Christmas bonus to be discre-
tionary with the Employer. Grace protested that the
Christmas bonus was a condition of employment based
on past practice. He warned the Union would consider
failure to pay the Christmas bonus would constitute an
unfair labor practice. Because of this position, Brewer
said that the Employer wanted its contract proposals,
previously submitted on November 18, on language rela-
tive to the profit-sharing plan and the Christmas bonus,
to be included in the collective-bargaining agreement. Fi-
nally, Brewer said that the Christmas bonus would be
made to bargaining unit employees at the same time as
made to other employees if a contract were ratified by De-
cember 12.
On November 29, the parties met again. Brewer said
that the Employer needed something in writing regard-
ing the profit-sharing plan and the Christmas bonus, in
view of Grace's previous day's assertion that failure to
pay the Christmas bonus would be considered an unfair
labor practice. Thus, Brewer proposed these subjects be
the subject of a side letter of agreement. There is no evi-
dence that Brewer suggested explicit language on this
date. However, the record as a whole establishes the
Employer never once moved off its language, proposed
on November 18, by which it' retained sole control over
the profit-sharing plan and the Christmas bonus. Brewer
again told Grace the Employer considered the Christmas
bonus to be a gift. Grace disagreed. Brewer reiterated
that the unit employees would not receive the Christmas
bonus if the contract were not ratified,by December 12.
The next bargaining session was on December 2.
Brewer orally presented the Employer's final offer to the
Union. (The written language was received by the Union
on December 7.) The Employer's November 18 propos-
als for language on the profit-sharing plan and the
Christmas bonus were a part of the December 2 oral
offer. In this connection, Brewer said either the contract
would have to contain that language or it should be in-
cluded in a side letter. Brewer, once again , said that if a
contract was not ratified by December 12, the Christmas
bonus-would not be paid when nonunit employees re-
ceived it (on December 16) and, in Brewer's words, "the
profitsharing . . . might not be paid." (Tr. 212.)
The Union committee rejected the Employer's final
offer. Grace said a union membership meeting would be
held to receive a report on negotiations, but made no
commitment to conduct a ratification vote. Brewer said
that if the ,offer were formally rejected, the Employer
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would consider there existed • an impasse in bargaining.
Grace disagreed, stating there were still a number of
items which should be discussed further.
As earlier noted, on December 7, the Union received a
typed copy of the Employer's final offer. Contained in
the final offer was the Employer's November 18 contract
language on the profit-sharing plan and the Christmas
bonus.6
The final offer was not submitted to the union mem-
bership for ratification. About December 7, the Employ-
er learned of this. The Employer decided to make the
Christmas bonus payment to the unit employees, as origi-
nally scheduled on December 16. Brewer acknowledged
that the Union had not been informed of the Employer's
decision to make that payment. .
The Employer prepared a memorandum to employees
to advise them of this change. That memorandum, dated
December 9, informed employees, in pertinent part, that
the Employer believed "it would be totally unfair .. .
for the Company not to grant the Christmas bonus
simply because the [Union] refused to allow you to vote
on the Company's final offer. It would be very unfair for
you to be penalized because of the Union's action.
Therefore, the Company has decided to grant the Christ-
mas bonus" in accordance with the original November
18 memorandum.
It is undisputed that no 1983 profit-sharing payment
was made to unit employees. On December 23, Brewer
wrote Grace stating, in salient part, "that the . . . profit-
sharing payment will not be made to bargaining unit
members until such time as the Company's final offer has
been ratified." Brewer testified that nonunit employees
did receive a profit-sharing payment.
By memorandum dated December 22, the Employer
informed the unit employees that the profit-sharing pay-
ment "will not be paid until this entire matter has been
settled. (Emphasis added.)?
On January 11, 1984, negotiations resumed. A Federal
mediator was present. Brewer advised the Employer's
final offer was still on the table and there would be no
changes until it was taken for ratification vote.
The parties met again on March 8, 1984. The Employ-
er indicated its final offer could not remain pending in-
definitely. It placed a March 30 deadline on ratification.
C. Analysis
1. Threshold issue-were the Christmas bonuses and
the profit-sharing benefit mandatory bargaining
subjects?
All parties agree that an initial determination must be
made as to whether or not the Christmas bonus and the
profit-sharing plan were such. subjects as, give rise to a
bargaining obligation. The threshold question arises:
Were these benefits mandatory, bargaining subjects? On
the facts of this case, I conclude they were.
6 Grace objected to the inclusion of that language by letter dated De-
cember 16.
° The entire context of this memorandum (G.C. Exh. 14) makes it clear
that the italicized words refer to ratification of the collective-bargaining
agreement. • . 1
a. Christmas bonus
The Employer contends, citing Benchmark Industries,
270 NLRB 22 (1984), and Harvstone Mfg. Corp., 272
NLRB 939 ( 1984), that Christmas bonuses are in the
nature of gifts rather than terms and conditions of em-
ployment.
In Benchmark, the Board found an employer had not
violated Section 8(a)(5) and (1) of the Act when it unilat-
erally ended its practice (in existence for at least 3 years)
of giving employees hams and holiday lunches or dinners
as a Christmas bonus . The Board concluded these were
token items which could not be fairly characterized as
compensation or as terms and conditions of employment.
In Harvstone , the Board held,. consistent with Bench-
mark, that unilaterally discontinued Christmas bonuses,
prizes, and parties were in the nature of gifts (Harvstone,
supra at fn. 1).
In rendering the Benchmark decision , the Board plural-
ity, however, noted that Benchmark did not involve dis-
continuance of Christmas cash bonuses . Also, the Board
acknowledged that "In our view there are circumstances
where Christmas bonuses may become part of the em-
ployees' remuneration and, therefore, a subject over
which an employer must bargain with a union prior to
discontinuing such payments." (Benchmark, supra at fn.
5.) The General Counsel and the Union, in effect, con-
tend that such circumstances are present in the case
before'me. I agree. .
The instant case contains cogent evidence which, I
conclude, effectively shows the instant Christmas bonus
actually , was a term and condition of employment for the
bargaining unit employees and part of their compensa-
tion . In outline form , that evidence consists of the fol-
lowing factors:
1. Pulitzer maintained a practice , for 3 years preceding
the station 's sale, of making cash Christmas bonus pay-
ments to the employees.
2. The Christmas bonus was made pursuant to a for-
mula inextricably tied to employees ' wages and seniori-
ty.a
3. The Christmas bonus actually had been negotiated
between Pulitzer and the Union and those negotiations
resulted in a contractual obligation to make a double
payment. 9
4. The instant Employer contractually assumed the
terms of the 1982-1983 collective-bargaining agreement
on its purchase of the station . (G.C. Exh. 4, p. 9.)
5. The Employer acknowledged its contractual com-
mitment to pay the cash Christmas bonus by its Novem-
ber 18 memorandum (G.C. Exh. 5), the terms of which
unequivocally and unconditionally advised employees
that the payments will be made.
8 "The formula is based on a week 's base salary and four years of serv-
ice. A week's base salary is determined as follows : ( 1) A week's base
salary for regular full-time employees; (2) the hours that part-time em-
ployees are normally scheduled to work in a week ; and (3 ) for commis-
sioned personnel , the average commission income for a week ." (See G.C.
Exh. 5.)
8 That obligation , as earlier noted , was incorporated into a supplement
to the 1982-1983 agreement . (See G.C. Exh. 2.)
FREEDOM WLNE-TV
The above factors, in their totality, are persuasive indi-
cators that the instant case falls within the purview of
the issue the Board left open, in Benchmark, of what cir-
cumstances there are which would make a Christmas
bonus a bargainable subject.
A critical facet of the Benchmark decision is the
Board's express agreement with the views stated by
former Board Member Kennedy in his dissent in Nello
Pistoresi & Son, 203 NLRB 905 (1973).10 Member Ken-
nedy emphasized that a "perceptible objective formula"
was a necessary ingredient to finding that a Christmas
bonus could be considered part of an employer's wage
structure (203 NLRB at 907 fn. 5, and accompanying
text of the dissent). -
In NLRB v. Wonder State Mfg. Co., 344 F.2d 210 ($th
Cir. 1965), the circuit court, in part, noted (344 F.2d at
214) that in previous cases where bonuses were held bar-
gainable subjects, the bonuses were tied to seniority.
In my view, the instant case contains the criteria to
which Member Kennedy and the Eighth Circuit alluded,
and with which the Board agreed, would govern resolu-
tion of the instant issue. The perceivably objective for-
mula used to compute the subject Christmas bonus is
clearly defined in the Employer's November 18 memo-
randum which announced the benefit. (G.C. Exh. 5.)
Also, that memorandum shows that the bonus was also
tied to employee seniority. Thus, the Employer's memo-
randum states, "the formula is based on week's base
salary and your year's of service" (emphasis added). The
italicized words comport with the rationale in Wonder
State.,
The instant case contains another noteworthy item.
The particular facts of this case demonstrate that the
Christmas bonus was a contractually negotiated term and
condition of employment. Undeniably, the 1982- 1983 ne-
gotiations between Pulitzer and the Union resulted in the
inclusion of that employer's past practice as part of the
1982-1983 collective-bargaining agreement. The instant
Employer's assumption of the contractual obligation to
pay a cash Christmas bonus is, to me , an impressive indi-
cator that the Employer, as well as the Union, consid-
ered that benefit an emolument of the employees' terms
of employment.
I recognize that Member Kennedy, the Eighth Circuit,
and the Board in Benchmark, referred to duration of time
the bonus was in existence as a relevant factor. Concern-
ing the duration of the instant bonus, the record shows,
with certainty, only that Pulitzer granted the bonus for 3
years; In Benchmark, the Board concluded that length of
time, alone, insufficient for the bonus to be considered a
term and condition of employment.I I
Mindful of duration as an element of consideration, I
conclude the presence, in the instant case, of an objective
formula; the use of employee seniority as a factor; and
10 Enf. denied 500 F.2d 399 (9th Cir. 1974).
11 In Harvstone, the Christmas bonus had been given for over 10 years
by two employers and some 5 years by one of them. However, in this
connection, I find Harvstone of little or no precedential guidance because
nowhere in either the Board's, or the administrative law judge's, deci-
sions is there evidence of the precise nature of the bonus (i e , cash or
other; tangible object) or on what basis (formula) such bonus was comput-
ed or granted
1297
the fact the bonus had been contractually negotiated are
elements which override the relatively brief period the
Christmas bonus is shown to have existed at Pulitzer. In
sum, I find the standards to test the character of a
Christmas bonus enunciated in Benchmark have been met
in this case. Accordingly, I find the Christmas bonus en-
joyed by the instant Employer's employees was a term
and condition of employment, and not merely a gift or
discretionary with the Employer.
b. Profit sharing
The status of the profit-sharing benefit is somewhat
more difficult to resolve. Here, too, I agree with the po-
sition of the General Counsel and the Union that this
benefit, in the circumstances of this case, is a term and
condition of employment,
Even the Employer, citing B. F. Goodrich Co., 195
NLRB 914 (1972), does not seriously contest it had a
duty to bargain over profit sharing.
In Goodrich, the Board was confronted with the issue
of whether the employer lawfully could grant participa-
tion in an employee stock purchase and savings plan to
unorganized employees while withholding participation
in that plan from its represented employees.) z In Good-
rich the Board ' was not faced with 8(a)(5) allegations.
However, the Board made the following instructive ob-
servation concerning the bargaining obligation as applies
to profit-sharing benefits: "[The] most that can be said is
that the Act may impose on the employer the duty to
bargain with respect to providing the new benefits to
represented employees." (195 NLRB at 915.)
I am aware that the Employer cited Goodrich to sup-
port its claim that there is no merit to the instant substan-
tive allegation that it unilaterally acted in an unlawful
manner. Nonetheless, I refer to Goodrich at this juncture
to demonstrate my observation that, by citing that case,
the Employer virtually concedes the existence of a duty
to bargain over profit sharing.
In the event my understanding of the Goodrich deci-
sion relative 'to the bargaining duty is imprudent, or is ul-
timately not sustained for any reason, then I rely on the
following analysis as the basis of my agreement with the
General Counsel and the'Union.
The facts show that when Pulitzer owned the televi-
sion station, the employees participated in a pension plan.
Although the Pulitzer-Union collective-bargaining agree-
ment, which preceded the 1982-1983 agreement was not
offered into evidence, it is reasonable to presume, as I
do, that the Pulitzer pension benefit had been negotiated
between Pulitzer and the Union.
Two bases exist for this presumption: (1) on October
15, 1982, those parties discussed the effect of the pending
sale of the station on Pulitzer's pension plan; Attorney
Hament advised the Union that the instant Employer
maintained a profit-sharing plan; and he presented its
12 Although Goodrich did not deal with a profit-sharing plan, for pur-
poses of my analysis, I shall assume the stock purchase and savings plan
is identical with, or reasonably analogous to, a profit-sharing program
Indeed, in deciding the Goodrich case, the Board observed that the legal
principles on which it relied "apply equally to the granting of new bene-
fits, such as profit-sharing benefits." ( 195 NLRB at 915 )
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computation formula to the Union; and (2) Pulitzer and
the Union negotiated a supplement to the 1982-1983
agreement relative to the termination of the pension plan.
Arguably, the Union's agreement that Pulitzer's pen-
sion plan could be terminated supports the Employer's
contention that profit sharing was a "new" benefit which
the Employer was privileged to institute under the prin-
ciples of Shell Oil Co., 77 NLRB 1306 (1948), cited by
the Employer.
In isolation , even if I were to find Shell Oil apposite, 18
the Employer's position has only superficial appeal. Its
position, I find, ignores two other relevant factors, to
wit: (1) that the instant Employer assumed all the exist-
ing collective-bargaining obligations (including the pen-
sion benefit) of Pulitzer; and (2) its initial contract pro-
posals, on July 18, included a provision concerning its
profit-sharing plan. 14 These two events signify the Em-
ployer's contractual recognition of a duty to bargain
over a pension plan, or a substitute benefit, and an ac-
knowledgement that its profit-sharing plan was in exist-
ence and applicable to the bargaining unit employees on
July 18 when the 1983-1984 negotiations began. Viewed
in this light, it is difficult, if not impossible, to subscribe
to the Employer's contention that profit sharing was a
"new" benefit. On- the foregoing, I conclude the facts of
this case demonstrate -that the profit sharing was a con-
tractually established emolument of employment of the
bargaining unit employees.
In any event, it is clear that profit sharing as a matter
of law, is a mandatory bargaining subject (J. P. Stevens &
Co., 239 NLRB 738 fn.. 3 (1978). Also, in NLRB v.
Black-Clawson Co., 210 F.2d 523 (6th Cir. 1954), the
court commented (210 F.2d at 524), "It is our view that
a profitsharing . . . plan embraces such economic bene-
fits as to constitute subject matter for collective bargain-
ing."
On all the foregoing, • I find the facts of this case, to-
gether with Board and court precedent, sustain the prop-
osition that profit sharing is a mandatory bargaining sub-
ject herein.
2. Discussion
The General Counsel contends that (1) the Employer
violated Section 8(a)(5) and (1) of the Act when it an-
nounced it would pay a Christmas bonus and profit-shar-
ing distribution to bargaining unit employees and later
withheld those benefits, conditioning their payment on
ratification of a new collective-bargaining agreement;
and (2) when it conditioned further movement in negoti-
ations on the Union conducting a ratification vote on the
Employer's final offer.15
" I find Shell Oil materially distinguishable . In that case the grant of
wage increases was alleged to have been discriminatory. There, unlike
the instant case , the employer was not charged with a refusal to bargain.
14 See G.C. Exh. 3, p. 12, par. 19.3: "It is understood and agreed that
the Employer shall have the right , at its sole and unfettered discretion to
alter, amend , modify and/or terminate the profitsharing plan now in
effect."
15 The Union articulates its theories of violation in a different way in
its brief. I conclude its theories are incorporated into those propounded
by the General Counsel.
The Employer asserts it was privileged to take the
action it did because the Christmas bonus and profit-
sharing plan were "new" benefits; that there is no evi-
dence that its actions were attributable to unlawful moti-
vations; that, in any event, it fulfilled its bargaining obli-
gations by negotiating with the Union over the Christ-
mas bonus and profit sharing; and that there is no evi-
dence to support the claim that the Employer condi-
tioned those benefits on contract ratification.
I find merit to the allegations in the complaint.
My findings of fact, supra, reflect the following:
a. The Christmas bonus
(1) That benefit was negotiated into the 1982-1983
agreement as a supplement.
(2) The Employer's memorandum, dated November
18, announcing the bonus would be paid on December
16, was prepared without prior consultation with the
Union. This was an unequivocal announcement. It con-
tained no conditions.
(3) The Employer's later November 18 memorandum,
though purportedly a status report on negotiations, nev-
ertheless advised employees that the Union's bargaining
committee had been told the bonus "would not be made
to,bargaining unit members unless the contract were rati-
fied by December 12, 1983." (Emphasis added.) No ad-
vance notice this memorandum would be distributed was
given to the Union.
Arguably, the contents of this memorandum could be
interpreted as nothing more than the Employer's legiti-
mate urging of employees to consummate the employees'
collective-bargaining agreement. (See United Technologies
Corp., 274 NLRB 1069 (1985).)16 However, the plain
meaning of the italicized words, quoted above, is that no
bonus would be paid if the contract were not ratified.
Those words are unqualified. The memorandum contains
absolutely no language indicating whether the bonus
would be delayed and payment made at some later date.
I note, also, that this withholding announcement, by its
own terms, reflects that only bargaining unit employees
were destined to lose the bonus. I find some evidence
that receipt of the bonus was, indeed, inextricably con-
nected to ratification.
(4) On November 28 and 29 and again on December 2,
Brewer reiterated that bargaining unit employees would
receive the bonus if a collective-bargaining agreement
were ratified by December 12.
(5) About December 7 the Employer decided, without
consulting the Union, to pay the Christmas bonus to the
unit employees.
(6) The Employer's December 9 memorandum, of
which the Union was given no advance • notice, an-
nounced the Employer's unilaterally made decision to
pay the unit employees the Christmas bonus as originally
announced.
's To the extent the Board's United Technologies discussion concerning
an employer's ability to communicate directly with employees during ne-
gotiations conflicts with the Board 's language upon the same subject in
United Aircraft Corp., 199 NLRB 658 fn. 2 (1972), I adopt and must be
guided by the Board 's most recent views.
I FREEDOM WLNE-TV
(7) In fact, the Christmas bonus was actually paid to
the unit- employees, as announced in the December 9
memorandum.
b. Profit sharing
1. The Employer's initial July 18 contract proposals
contained language covering profit sharing and referred
to that benefit as currently in existence.
2. The Employer discussed profit sharing with the
Union during the September 9 bargaining session, ex-
plaining the formula on which that benefit is computed.
3. On November 18, the Employer issued a memoran-
dum which announced the unit employees.would receive
a profit-sharing payment . This announcement was un-
equivocal and contained no conditions.
4. Brewer, on December 2, told the Union that the
profit-sharing payment "might not be paid" if a contract
were not ratified by December 12. .
5. By memorandum of December 22, the Employer
announced to bargaining unit employees that the profit
sharing payment would. not be made "until this matter.
has been settled," clearly referring to the contract ratifi-
cation. Evidence shows that the Union was not afforded
an opportunity to bargain over this decision or an-
nouncement . Although Brewer did telephone Grace with
this information, confirming the' conversation in writing
(G.C. Exh. 12), that notice was of the decision which
had already been made by the Employer.
6. The profit-sharing' payment has not been made to
bargaining unit employees, although nonunit employeek
received it.
From the foregoing outline, I conclude that the Em-
ployer (1) announced to employees it would pay them a
Christmas bonus and profit-sharing benefits; (2) an-
nounced it would withhold both those. benefits, and (3)
conditioned their payment on ratification of a collective-
bargaining agreement.
The General Counsel claims this scenario is governed
by the principles of Struthers Wells Corp., 262 NLRB
1080 (1982), and United Aircraft (see fn. 17, 'supra). I
agree.
In Struthers Wells, the Board found the employer vio-
lated Section 8(a)(5) and (1) by its failure to grant a con-
tractually established cost-of-living increase during nego-
tiations, but after the collective-bargaining agreement
containing that benefit- expired. In so holding, the Board
observed that "such a condition of employment survives
the expiration of a collective- bargaining agreement and
cannot be altered without bargaining." 262 NLRB at
1081. In Struthers Wells, the Board analogized that em-
ployer's actions to the employer's promise, in United Air-
craft, supra, of a wage increase to be effective at a later
date but later unilaterally withheld to be used as leverage
in collective bargaining. In United • Aircraft, . the Board
agreed with its administrative law judge who found such
action violative of Section 8(a)(5) and (1).
The instant case is strikingly similar to these two cases.
First, I have found both the Christmas ,bonus and the
profit-sharing benefit to be preexisting conditions of em-
ployment, subject to collective bargaining .. Second, the
instant Employer promised payment of both benefits. As
for the Christmas bonus, even the payment date was an-
1299
nounced. As for both benefits, there were no conditions
initially attached and, as for each, the formula was made
known. Third, the Employer unilaterally decided to
withhold both benefits and so publicized its decision. All
this took place during negotiations.
Moreover, there is, in the instant case,- independent
dvidence of the Employer's intent to use its actions as le-
verage in collective -bargaining. That evidence is in the
form of language in the memorandum announcing the
benefits would be withheld. Specifically, I refer to the
language which tells the employees that receipt of those
benefits relates to contract ratification.'' Because ratifi-
cation is a nonmandatory bargaining subject,18 to with-
hold the benefit payments herein, particularly the profit-
sharing payment which has not yet been made, under all
the circumstances of this case, I find constitutes a viola-
tion of Section 8(a)(5) and (1) of the Act. (See Globe
Gear Co., 189 NLRB 422, 424 (1971).)
The evidence shows that the Christmas bonus was
paid as originally announced . That benefit actually had
not been withheld. Accordingly, I shall not separately
fmd an 8(a)(5) and (1) violation. occurred concerning the
Christmas bonus.
However, I find that by publishing its November 18
memorandum which conditioned payment of the Christ-
mas bonus on contract ratification, the Employer com-
mitted an independent 8(a)(1) violation.
The Supreme Court, in Borg-Warner, predicated its
finding that ratification is a nonmandatory bargaining
subject on its observation that ratification is an internal
matter between a labor organization and its members. It
follows that participation in ratification is an activity
protected by Section 7 of the Act. In essence, I conclude
that to condition receipt of the Christmas bonus on an
employee voting for ratification imposes on the rights of
employees to freely exercise, or refrain from exercising,
his/her intraunion franchise. As such, the condition im-
posed by the Employer is a violation of Section 8(a)(1).
In Longhorn Transfer Service, 144 NLRB 945, 957
. (1963), enfd. 346 F.2d 1003 (5th Cir. 1965), the.Board
adopted its trial examiner's 8(a)(1 ) finding based on , the
Employer's refusal to grant a promised wage increase be-
cause its employees selected a collective-bargaining rep-
resentative. Although not directly in point, Longhorn's
principle applies here. 19
17 The General Counsel urges I find the Employer independently vio-
lated Sec . 8(a)(1), based on language in its memorandum which apparent-
ly places the onus of the withheld benefits on the Union. I agree the
tenor of the Employer' s memoranda strongly contains this effect. I also
agree that matter has been fully litigated , though unpleaded . Nonetheless,
I decline to make the requested 8(aXl) finding . Under United Technol-
ogies, fn. 16, supra, it appears this aspect of the contents of the Employ-
er's memoranda is protected by Sec. 8(c) of the Act.
18 NLRB Y. Borg-Warner Corp., 356 U.S. 342, 350 (1958).
19 This conclusion is not inconsistent with my reliance on United Tech-
nologies, supra, which I used to decline to find an 8(aXl) violation on the
theory propounded by the General Counsel. The situations are distin-
guishable. In United Technologies , the underlying vice was the placing of
an onus on the union. I perceive the Longhorn rationale addresses a dif-
ferent matter-a threat of loss of benefit.
Thus , I conclude the message imparted by the instant Employer's
memorandum withholding the Christmas bonus conveys an implied threat
that the employees would lose that benefit unless they exercised their
Continued
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer argues, in part, that "Any doubt con-
cerning the legality of . . . [its ] . . . bargaining strategy
was completely resolved . . . in Chevron Oil Company,
182 NLRB 445 (1970)." I find the reliance on Chevron
Oil is misplaced . That case was distinguished by the
Board in United Aircraft, supra, where at fn. 3, the Board
noted Chevron Oil "is clearly distinguishable . . . . United
Aircraft Corporation had . . . promised both the specific
amount and effective date . . . (of the benefit in ques-
tion). As I view the facts before me, the same distinc-
tions exist herein.
Also, the Employer urges it was privileged to take its
actions because there existed an impasse in bargaining. I
conclude there is no merit to this contention for two rea-
sons . First, because the existence of an impasse is irrele-
vant to situations , which I find present here , when an
employer has engaged in bad-faith bargaining. Taft
Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub
nom. Television Artists AFTRA v. NLRB, 395 F.2d 622
(D.C. Cir. 1968). The bad faith exhibited in this case is
reflected in the Employer's unilateral decisions and sub-
sequent announcements that the benefits would be with-
held, and in conditioning the grant of those benefits upon
ratification.
Second, the unlawful conduct preceded the date when
an impasse conceivably could have been reached. The
earliest such date is December 2. It was not until then
that the Employer put forth its final offer . Yet, it was as
early as November 18 that the Employer first condi-
tioned the Christmas bonus on ratification . As for the
profit sharing , the Employer already indicated that bene-
fit might not be paid during the December 2 bargaining
session . In sum , I conclude no impasse existed before the
Employer engaged in the conduct which I have found
heretofore to be unlawful. Assuming, arguendo, an im-
passe existed , it was not bona fide . Clearly, it was preci-
pitated by the Employer 's intransigent insistence on ful-
fillment of its unlawful condition that the contract be
ratified by December 12.
On all the foregoing , I find that by withholding the
profit-sharing payment until a collective-bargaining
agreement is ratified ; and by conditioning payment of the
profit-sharing benefit and the Christmas bonus on the
contract ratification , the Employer violated Section
8(a)(5) and ( 1) of the Act . Also, I find that by announc-
ing payment of the Christmas bonus was conditioned on
ratification , the Employer independently violated Section
8(a)(1) of the Act.
Finally, the General Counsel contends that the Em-
ployer violated Section 8(a)(5) and (1) of the Act by
"conditioning any further movement . . . as to its final
offer on . . . a ratification vote ."20 The Employer, rely-
ratification vote in the manner desired by the Employer . Viewed in this
19 light , the vice I perceive in the Employer 's unlawful condition does
not depend on whether or not the Employer sought to cast blame on the
Union for the loss of the benefit.
20 Presumably, the quoted language refers to the allegation contained
in par. 14(a) of the complaint . This allegation raises a different issue than
which have already been discussed . The present issue relates to whether
the Employer imposed an unlawful condition on continuing negotiations;
whereas the earlier issues dealt with whether unlawful conditions were
imposed on employees ' receipt of benefits.
ing on its perception of the righteousness of its conduct,
essentially argues this allegation is without substance.
The subject allegation comes to grips with the breadth
of Section 8(d) of the Act. In relevant part , that section
imposes a mutual obligation on labor and management to
bargain with each other in good faith with respect "to
wages, hours, and other terms and conditions of employ-
ment" In Borg- Warner, supra, the Court noted, "As to
other matters . . . each party is free to bargain or not
bargain , and to agree or not to agree ." (356 U.S. at 349,
emphasis added .) As previously noted , the Court went
on to declare that the subject of contract ratification is
not one on which negotiations are mandatory . Hence, if
the instant facts demonstrate the Employer conditioned
either further negotiations or the signing of a collective-
bargaining agreement on a ratification vote, or insisted
on agreement to that condition to an impasse , then the
General Counsel should prevail.
The predicate evidence concerning this allegation is
substantially uncontested . Involved are the bargaining
sessions of January 11 and March 8, 1984 . The relevant
events are that, on January 11, the Employer advised
that its final offer was still on the bargaining table. Also,
Brewer, in effect, said there would be no new offers until
the Union conducted a ratification vote on the final
offer.
The above facts alone are sufficient basis for an 8(a)(5)
and (1) finding . I have found , above , that no real impasse
was reached on December 2. If any impasse existed at
that time, it was artificial, created by the Employer's un-
lawful conduct. To say , on January 11, that no further
changes in the Employer's proposals would be made
until a ratification vote is taken , in these circumstances,
clearly connotes that bargaining is being deferred. That
deferral was based on the Employer 's insistence on the
Union's agreement to a nonmandatory bargaining sub-
ject . Such insistence is simply not lawful (Borg- Warner,
supra).
The General Counsel cited two cases to support the
instant allegation: Houchens Market of Elizabethtown v.
NLRB, 375 F.2d 208, 212 (6th Cir. 1967), and Southeast-
ern Michigan Gas Co., 206 NLRB 60 fn. 3 (1973). The
General Counsel acknowledges each case is factually dis-
tinguishable from the case at bar, because , in each, it was
an employer's insistence on ratification of contract terms
on which there had been complete agreement which
comprised the unfair labor practices . I agree those cases
are distinguishable . Nevertheless, as the General Counsel
contends, .I find the rationale applied in those cases con-
cerning the effect of an employer 's insistence on a
union 's agreement to a nonmandatory subject has appli-
cation herein.
Applying that principle to the instant case leads to the
conclusion the instant Employer exceeded the bounds of
good-faith bargaining by refusing to make new offers
until the Union conducted a ratification vote.
The events after January 11 buttress my conclusion.
No further negotiations were conducted for nearly 2
months, until March 8. Even on that date , the Employ-
er's insistence on compliance with the nonmandatory
subject persisted . Indeed , the situation became exacerbat-
FREEDOM WLNE -TV 1301
ed by the Employer's imposition of a deadline for ratifi-
cation. Certainly, employers have the right and obliga-
tion to conduct negotiations using strategies which will
achieve their desired results. This does not mean that
either party to collective-bargaining negotiations may,
with impunity, utilize clearly improper techniques which
effectively stymie the collective-bargaining process, as
the evidence demonstrates has been the case here.
The events of March 8, I conclude, extended the Janu-
ary unlawful, conduct. Thus, in addition to continuing its
insistence on the Union's agreement to take a ratification
vote, the Employer effectively induced an impasse by es-
tablishing a deadline for acceptance of its final offer. I
can perceive no conduct, in the entire context herein,
more antithetical to the Act's policy of encouraging
agreements reached through good-faith collective bar-
gaining.
Accordingly, I find merit to the allegation which
claims the Employer violated Section 8(a)(5) and (1) of
the Act by conditioning further movement in negotia-
tions on the Union's agreement to a nonmandatory bar-
gaining subject.
On all the above findings of fact, conclusions, and on
the entire record, I make the following
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All operations and production technicians, but not
limited to master control operators, video tape operators,
projection tape operators, audio operators, cameramen,
transmitter technicians, maintenance technicians and all
announcers-audiomen, and carpenters employed by the
Employer at its New Bedford, Providence and Tiverton
facilities, but excluding, but not limited to, all other em-
ployees, office clerical employees, reporters, professional
employees, guards, watchmen and supervisors as defined
in the Act constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act.
4. At all material times, the Union has been, and is, the
exclusive collective-bargaining representative of the em-
ployees in the unit described in the immediately preced-
ing paragraph.
5. The subject of Christmas bonus benefits for bargain-
ing unit employees, on the facts of this case, is a manda-
tory subject for collective bargaining.
6. The subject of profit sharing for bargaining unit em-
ployees, on the ' facts of this case, is a mandatory subject
for collective bargaining.
7. By withholding the 1983 profit-sharing payment
until ratification of a collective-bargaining agreement, the
Employer violated Section 8(a)(5) and (1) of the Act.
8. By announcing payment of the Christmas bonus in
1983 was conditioned on ratification of a collective-bar-
gaining agreement by December 12, the Employer vio-
lated Section 8(a)(1) of the Act.
9. By conditioning payment of the profit-sharing beni-
fit and Christmas bonus benefits on contract ratification,
the Employer violated Section 8(a)(5) and (1) of the Act.
10. By conditioning further movement in negotiations
on the Union's conducting a ratification vote, the Em-
ployer violated Section 8(a)(5) and (1) of the Act.
11. The above unfair labor -practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Employer violated Section
8(a)(5) and (1) of the Act, I shall order it to cease and
desist, and to take certain affirmative action designed to
effectuate the policies of the Act.
Inasmuch as the unlawful withholding of the profit-
sharing payment deprived the bargaining unit employees
of that benefit, the grant of which had been previously
announced, the Employer shall be ordered to make those
employees whole by paying each bargaining unit em-
ployee the 1983 profit-sharing payment to which each
was entitled, plus interest computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).21
Also, the Employer shall be ordered to post an-appro-
priate notice to its employees advising them- of their
rights and the terms of this Order.
Finally, the Employer shall be ordered to refrain from,
in any like or related manner, interfering with, restrain-
ing, and coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
On the above findings of fact, conclusions of law, and
the entire record, I issue the following recommended22
ORDER
The Respondent, Freedom WLNE-TV, Inc., New
Bedford , Massachusetts, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Conditioning receipt of profit-sharing payments due
employees in the bargaining unit ' found appropriate
above on ratification of a collective -bargaining agree-
ment.
(b) Announcing that receipt of a Christmas bonus due
bargaining unit employees is conditioned on their ratifi-
cation of a collective-bargaining agreement.
(c) Conditioning payments of the profit-sharing bene-
fits and the Christmas bonus benefits on ratification of a
collective-bargaining agreement.
(d) Conditioning movement in collective-bargaining
negotiations on the Union 's conducting a vote for ratifi-
cation of a collective-bargaining agreement.
(e) In any like or related manner interfering with, re-
straining, and coercing its employees in the exercise of
their Section 7 rights.
21 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
22 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 pur-
poses.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole each employee in the bargaining unit
found appropriate above by paying to each employee the
1983 profit-sharing benefit , plus interest computed in ac-
cordance with the formula set forth above in the remedy
section of the decision to which each such employee was
entitled.
(b) Preserve and, on request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports , and all other
records necessary to analyze the amounts of 1983 profit-
sharing payments due each bargaining unit employee
under the terms of this Order.
(c) Post at its facilities in New Bedford , Massachusetts,
and Providence and Tiverton , Rhode Island , copies of
the attached notice marked "Appendix ."2 3 Copies of the
notice , on forms provided by the Regional Director for
Region 1 , after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
$a 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively in good
faith concerning the rates of pay, wages, hours, and
other terms and conditions of employment with Local
1228, International Brotherhood of Electrical Workers,
AFL-CIO as the exclusive bargaining representative of
our employees in the following appropriate bargaining
unit:
All operations and production technicians, but not
limited to master control operators , video tape op-
erators, projection tape operators , audio operators,
cameramen, transmitter technicians , maintenance
technicians and all announcers -audiomen , and car-
penters employed by the Employer at its New Bed-
ford, Providence and Tiverton facilities , but exclud-
ing, but not limited to, all other employees , office
clerical employees , reporters , professional employ-
ees, guards, watchmen and supervisors as defined in
the Act.
WE WILL NOT withhold profit -sharing benefits until a
collective-bargaining agreement between us and the
Union is ratified.
WE WILL NOT announce that payment of a Christmas
bonus depends on ratification of a collective-bargaining
agreement.
WE WILL NOT tell our employees that payment of a
Christmas bonus and a profit-sharing benefit depends on
ratification of a collective-bargaining agreement.
WE WILL NOT insist that the Union conduct a ratifica-
tion vote before changes can be made in collective-bar-
gaining proposals.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of any of the
rights set forth at the top of this notice.
WE WILL make whole each employee in the bargain-
ing unit described above, who was entitled to a 1983
profit-sharing payment, by paying to each such employee
the amount of that profit-sharing benefit, plus interest.
FREEDOM WLNE-TV, INC.