Horizons Communications Corp. of California

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 792 (N.L.R.B. 1974)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Horizons Communications Corporation of California
and American Federation of Television & Radio
Artists, San Francisco Local , AFL-CIO. Case
20-CA-8563
June 20, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 5, 1974, Administrative Law Judge E.
Don Wilson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and finds merit in the exceptions. Accordingly,
the Board has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the limited extent consistent herewith, and to
reject his recommended Order that the complaint be
dismissed.
The essential facts in this case are as follows:
On April 26, 1972, the Union was certified as the
collective-bargaining representative of certain of
Respondent 's employees by the California State
Conciliation Service. Thereafter, the Union and
Respondent engaged in collective-bargaining negoti-
ations for a contract from June 22, 1972, to May 23,
1973, when, as found by the Administrative Law
Judge, the parties reached an "impasse." Early in
negotiations Respondent informed the Union that its
financial position was weak, and that because of this
it was proposing a starting wage rate for newly hired
announcer-operators which was lower than the rate
paid under the previous collective-bargaining agree-
ment with another union. The new rate proposed by
Respondent was $3.50 per hour or $140 per week, as
compared to the previous rate of $194 per week,
which the Union wished to retain . This was the only
starting rate proposed by Respondent during the
negotiations, and was also Respondent's final pro-
posal as embodied in its proposed contract of April
30, 1973. It was stipulated that the wage rate
I The Court also cited its earlier decision in N.LR.B. v. Crompton-
Highland Mills, Inc, 337 U.S. 217 (1949), where it had sustained the Board's
conclusion that the employer's unilateral grant of a wage increase
substantially greater than any it had offered to the union during
negotiations which had ended in impasse clearly manifested bad faith and
violated the employer's duty to bargain . Ibidd, at 743, In. 11.
Y We do not agree with the conclusion of the Administrative Law Judge
that the $4 per hour or $160 per week paid to new employees Gould and
Fitzmorris was consistent with, and reasonably included in, the preimpasse
211 NLRB No. 122
thereafter paid by Respondent to employees Gould
and Fitzmorris when they started work as announc-
er-operators in July and August 1973, after the
"impasse" of May 23, 1973, was $4 per hour or $160
per week.
The Administrative Law Judge found that the
figure of $160 per week was consistent with Respon-
dent's prior proposals, and that it was reasonably
included in the preimpasse proposals. He therefore
concluded that, in the light of the impasse , Respon-
dent's unilateral payment of $160 per week to new
employees was not a violation of Section 8(a)(5). We
disagree.
In N. L. R. B. v. Katz, et al., 369 U.S. 736, 745 (1962),
the United States Supreme Court stated:
An employer is not required to lead with his best
offer; he is free to bargain. But even after an
impasse is reached he has no license to grant wage
increases greater than any he has ever offered the
union at the bargaining table, for such action is
necessarily inconsistent with a sincere desire to
conclude an agreement with the union.'
The Board has recently reaffirmed this principle in
H. C. Lien Rubber Co., 207 NLRB No. 26, where it
stated:
The Administrative Law Judge found, and we
agree, that Respondent's unilateral grant of a
general wage increase greater in amount than that
it offered the Union was a violation of Section
8(a)(5) and (1).
Accordingly, where, as here, Respondent, after an
impasse in negotiations, without consulting or
bargaining with the Union, unilaterally paid new
employees a wage rate significantly greater than any
it offered at the bargaining table, we find that it
violated Section 8(a)(5) and (1).2
CONCLUSIONS OF LAW
1. At all material times, Respondent has been an
employer engaged in commerce within the meaning
of the Act.
2. At all material times, the Union has been a
labor organization within the meaning of the Act.
3. At all material times, the Union has been the
duly designated collective-bargaining representative
of Respondent's employees in the following unit with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment:
proposals of $3.50 per hour or $ 140 per week . The 50-cent-per-hour or $20-
per-week increase was an increase in wages of almost 15 percent , which in
this wage rate range can hardly be viewed as insignificant . Cf. Alexander
Typesetting, Inc., 207 NLRB No. 54, where the employer made an offer of a
$10.50-per-week wage increase during negotiations , and then after impasse
unilaterally instituted a $10-per-week wage increase , and thus there was a
minimal difference of only 50 cents per week less which was reasonably
consistent with and included in the employer's preimpasse offer.
HORIZONS COMMUNICATIONS CORPORATION 793
All regularly scheduled announcer-operators em-
ployed by Respondent at its Berkley, California,
facility, excluding all other employees, office
clerical employees, guards and supervisors as
defined in the Act.3
4. By unilaterally paying rates to new announcer-
operators in July and August 1973 which were
significantly greater than any offered in prior
collective-bargaining negotiations with the Union,
without consulting or bargaining with the Union,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
5. By the foregoing conduct, Respondent also has
interfered with, restrained, and coerced its employees
in their exercise of the rights guaranteed in Section 7
of the Act, and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
the aforesaid'unfair labor practices, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
10(c) of the Act, the National Labor Relations Board
hereby orders that Respondent, Horizons Communi-
cations Corporation of California, Berkeley, Califor-
nia, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with American
Federation of Television & Radio Artists, San
Francisco Local, AFL-CIO, as the exclusive collec-
tive-bargaining representative of the employees in
the above-described appropriate unit, by unilaterally
paying wage rates to employees which are signifi-
cantly greater than any offered in prior collective
bargaining with the Union, without consulting or
bargaining with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which
the Board finds necessary to effectuate the policies of
the Act:
(a) Post at its facility in Berkeley, California, copies
of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material,
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 The parties stipulated to the appropriateness of this unit.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with American Federation of Television & Radio
Artists, San Francisco Local, AFL-CIO, as the
exclusive collective-bargaining representative of
the employees in the appropriate unit described
below, by unilaterally paying wage rates to
employees which are significantly greater than
any offered in prior collective-bargaining negotia-
tions with the Union, without consulting or
bargaining with the Union. The appropriate unit
is:
All regularly scheduled announcer-operators
employed at our Berkeley, California, facili-
ty, excluding all other employees, office
clerical employees, guards and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the Act.
HORIZONS
COMMUNICATIONS
CORPORATION OF
CALIFORNIA
(Employer)
Dated By
(Representative) (Title)
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Pursuant to
due notice , a hearing in this case was held before me on
November 29 and 30, 1973, in San Francisco, California. A
complaint and notice of hearing was issued by the General
Counsel of the National Labor Relations Board , herein the
Board , on October 31, 1973, upon a charge filed by
American Federation of Television & Radio Artists, San
Francisco Local, AFL-CIO, herein the Union, on August
29, 1973, against Horizons Communications Corporation
of California, herein Respondent. The parties fully partici-
pated in the hearing. Briefs of General Counsel and
Respondent have been fully considered.'
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation with its principal
office and place of business in Berkeley, California, where
it operates a radio station. In the past calendar year, its
gross revenue exceeded $100,000. At all material times, it
has been an employer engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION
At all material times , the Union has been a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 2
A. The Issues
As framed by the pleadings, there are three substantial
issues:
1. Did Respondent violate Section 8(a)(5) and (1) of the
Act by unilaterally reducing the wages of its employees
without prior approval of the Union and without bargain-
ing to impasse with the Union?
I What I consider as an unopposed motion of Respondent to correct the
transcript is granted.
2 Substantially , the evidence as to material matters in issue is not in
dispute . Much of the evidence consists either of stipulations or unques-
tioned documentary evidence . There is contradictory testimony on matters
which I considered relatively minor. Where there is a conflict in the
testimony of Oliver W . Hayden and Kent W . Waterman, I credit the
2. Did Respondent on some unknown date in June
1973, and continuing thereafter, unilaterally discontinue
the practice of employing two supervisory technicians
without prior approval of the Union, and without bargain-
ing to impasse with the Union?
3. Did Respondent beginning about June 23, 1973, and
continuing thereafter, unilaterally discontinue the practice
of allowing employees to have 12 hours' time off between
shifts without prior approval of the Union and without
bargaining to impasse with the Union?
B. Background
Respondent purchased a radio station , with the call
letters KPAT, from Wright Broadcasting Company about
November 1970. At that time , Wright Broadcasting
Company had a collective -bargaining contract with the
IBEW . It was to expire January 31, 1972. When Respon-
dent purchased this radio station , it "assumed" the
contract as a successor-employer . Some time after its
purchase by Respondent , the radio station 's call letters
were changed to KRE.
C. The Facts
On November 23, 1971, IBEW sent Respondent a notice
of intention to amend the then existing contract. Some
time early in 1972, IBEW stepped out of the picture. After
an election, conducted by a California State Conciliation
Service, the Union was certified as the collective-bargain-
ing representative of certain of Respondent's employees on
April 26, 1972.3
The Union's executive secretary, Donald S. Tayer,4 on
June 1, 1972, mailed the Union's contract proposalsa to
Respondent. The initial meetings were on June 22 and
August 3, 1972. Tayer met with Oliver W. Hayden, who
came with Respondent as vice president and general
manager, on December 27, 1971 6 The parties were in
agreement as to matters discussed at these two meetings,
although there was no certainty as to what was said at one
rather than at the other meeting. They together discussed
the Union's proposals which were based essentially on the
expired contract between Respondent and the IBEW.
Respondent sought relief from some of the terms of the
expired agreement, such as exclusion of the shift engineers
from the unit that had been certified, and reducing the
requirement that there be two supervisors, as had been
required in the prior and expired contract. Respondent
also stated that it was necessary for it to have more than
two part-time employees and suggested that it needed
three. Respondent pointed out various serious financial
problems with which it was confronted. Hayden showed
and gave Tayer a copy of Respondent's financial statement
for the first 6 months of 1972 and Hayden advised Tayer
that Respondent was not in as strong a position as more
testimony of Hayden, who not only impressed me as being completely
honest but also as more knowledgeable with respect to factual matters in
dispute between them.
3 The parties are in agreement as to the appropriate unit.
4 The Union's counsel in this hearing.
° G. C. Exh. 2.
6 Such continued to be his position as of the time of the hearing herein.
HORIZONS COMMUNICATIONS CORPORATION 795
powerful stations to obtain revenue and that because of the
cost factor it could not offer a wage increase.
There were no further meetings until October 19, 1972,
when Tayer and Hayden again met. The principal matter
of discussion was the termination of an announcer-opera-
tor as a unit employee. The Union conditioned acceptance
by it of its prior proposal on the reinstatement of the
terminated employee. Various other matters were also
discussed. As General Counsel has stated in his brief, the
Union stated that the IBEW contract wage rate could
remain in effect if Respondent bought the Union's entire
proposal.
On October 20, 1972, by telephone, Hayden rejected the
Union's proposal of October 19 stating, in particular, that
the terminated employee would not be reinstated.
On February 6, 1973, the Union proposed to Respondent
that there be an extension of the expired IBEW contract,
such extension to be for a 6-month period, it being
understood that Respondent would contribute 6-1/2
percent to the Union's pension and welfare program.
Between February 6 and April 9, 1973, Hayden and
Tayer had telephonic communications with respect to the
employment of apprentice announcers but no meeting of
the minds was achieved. On February 6, 1973, the Union
proposed to Respondent that there be an extension of the
previous expired IBEW contract, for a period of 6 months
and that Respondent contribute 6-1/2 percent to the
Union's pension and welfare program. There is conflict as
to discussions on other matters between February 6 and
April 9, 1973.
On April 9, 1973, Hayden proposed that announcers be
paid at the rate of $140 a week, adding that he was willing
to continue some of the present staff at their existing wages.
Tayer said Respondent's proposal was not acceptable. He
added that Hayden should put his proposal in writing and
then concluded the meeting.
On April 19, 1973, Tayer wrote Hayden stating, among
other things, "I have previously advised you that under no
circumstances would AFTRA consider a starting salary in
the vicinity of $140 per week and I regard your continued
efforts to further erode this contract as outrageous." He
again asked Hayden to put his contract proposal in writing.
In evidence is an April 30, 1973, letter and proposal from
Hayden to Tayer.7 I find they were sent in good faith.
Respondent, operating at comparatively large losses,
proposed that only three regularly full-time announcers be
kept at the rate of $242.50 per week and that new
employees be hired at $140 per week or $3.50 per hour.
Also, in evidence is General Counsel's Exhibit 11
wherein Tayer told Hayden the "proposed contract" of
April 30, 1973, was "completely unacceptable and on the
basis of your recalcitrant position, it appears that AFTRA
will be forced to take economic action against your
station."8 It could not be plainer to me that there is
insufficient probative evidence that Respondent's written
proposal of April 30, 1973, was made other than in good
faith. Its outright rejection on May 23, 1973, by Tayer is
not suggested by anyone to have been a mere ploy or
r G. C. Exhs. 9 and 10.
8 Prior to its May 23 , 1973, rejection of Respondent 's proposal, the
Union sought and obtained strike sanction from the Central Labor Council.
anything but a good-faith final, definite, determinative,
outright rejection of Respondent's good-faith April 30,
1973, offer. The rejection was not ambiguous . It held out no
prospect that a further meeting was desirable or, if held,
might even achieve a meeting of the minds. The Union did
not merely reject the April 30, 1973, counterproposal. It
called it "completely unacceptable" and in simple language
threatened a strike to achieve its proposals which, without
considering details at the moment, were far apart from the
counterproposals of Respondent. The end of bargaining
was fait accomplis. The Union sought no further "bargain-
ing." Obviously, on May 23, 1973, the Union was not
buying what to it were "completely unacceptable" counter-
proposals of Respondent and, with its prognostication that
"economic action" would be in order9 to support and/or
enforce its proposals, it was not seeking any further
bargaining with Respondent.
Not only were the parties far apart in their positions but
also, I find, that, the Union by its May 23, 1973, letter
made it obvious, especially in light of its subsequent lack of
action, excepting for its August 29, 1973, charge herein,
that further across-the-table bargaining would be to no
avail.
Counsel for General Counsel herein states, or more
strongly argues, that the Union and Respondent herein
never reached a "deadlock." There was no "impasse" says
he, beginning as of May 23, 1973.
With counsel for General Counsel, I disagree and find
that beginning on and continuing after May 23, 1973, the
Union acted as if it were and, indeed, it was, at an
"impasse" with Respondent over matters of collective
bargaining. That Respondent's subsequent economic
actions, consistent with its prior proposals or counterpro-
posals (adamantly rejected by the Union), may have
constituted "reductions" rather than "increments" in
existing benefits is, I find, of not the slightest moment. The
counterproposals had been made in good faith and they
had been firmly rejected. There was nothing left to bargain
about, absent a reopening of the bargaining area. The
Union made no effort to do this.
I am not concerned with whether the Union's proposal
of $194 as opposed to Respondent's counterproposal of
$140 might have been reconciled through further bargain-
ing. In fact, the Union, after Respondent's April 30, 1973,
counterproposal, did nothing but file a charge some months
later. The Union and Respondent were but a telephone's
length apart. He did not even phone Respondent after May
23, 1973. Counsel for General Counsel contends the record
establishes that before May 23, 1973, or as of that date, the
parties were willing to depart from their stated figures. The
Union asked for no discussion at any time after May 23,
1973, unless the charge be so considered.10
Counsel for General Counsel refers to a variety of issues
allegedly never bargained about between the parties. The
Union never requested nor was it refused such bargaining.
It waited almost 5 months to strike after Respondent's
April 30, 1973, offer. As of May 23, 1973, the parties were
deadlocked.
9 The Union finally struck on October 15, 1973.
10 1 do not.
796 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find a complete absence of probative or substantial
evidence that "Respondent was attempting to create an
impasse for its own purposes." The strike threatened by the
Union while occurring after some unilateral changes is
most consistent with my finding that the parties had
arrived at an impasse and the Union was endeavoring by
economic action to bend Respondent's will to that of the
Union.
The Respondent had explained again and again why it
could not accept the Union's proposals. The Union, time
after time , emphatically told Respondent that Respon-
dent's counterproposals were unacceptable to the Union,
underscoring its position by its May 23, 1973, letter. I find
that the Union made it clear that there was no point in
further discussions . I do not find Respondent was under
any obligation to make another counterproposal after the
Union so vehemently rejected Respondent's counterpropo-
sal of April 30, 1973. Respondent had made every effort to
explain to the Union the bases for its bargaining position
and why it could not agree to the proposals of the Union.
On April 9, 1973, Tayer admittedly told Hayden a hiring
salary for newcomers of $140 per week was "ridiculous"
and could not be "considered." At this meeting, Hayden,
having had part of his wage proposal labeled ridiculous,
told Tayer he saw no point in putting his proposal in
writing in light of Tayer's expressed rejection, but he
nonetheless did so as the Union requested on April 30,
1973. After May 23, 1973, there were no meetings for
bargaining purposes. Respondent had repeatedly explained
its dire financial problems to the Union and offered proof
to the Union. Here I find there was a true impasse after
good-faith bargaining by both parties. Hayden, as counsel
for General Counsel argues, never presented a figure of
$140 per week as "rock bottom." The parties had
bargained, were miles apart, and at least as of May 23,
1973, the Union recognized the facts and made no further
effort to bargain after they knowingly reached a deadlock.
I find it completely immaterial that Respondent's counsel,
Corbett, asked whether and when the Union would strike
or that the Union's answer was noninformative. I find the
Union said it would strike in support of its bargaining
position at what it thought was the best time for it. They
were not discussing "bargaining." They were discussing
"strike ," to enforce the Union's demands. The Union made
it plain that when it chose it would exert economic strength
to achieve its demands rather than again resort to the
bargaining table. Bargaining was at an end-a deadlock
-an impasse in bargaining existed.
As to paragraph X(a) of the complaint, it was stipulated
that at least three employees, beginning sometime in July
1973, performed unit work at rates less than those provided
for in the long expired contract with another union."
Contrary to the firm statement of counsel for the
General Counsel, I find it was not stipulated, with respect
to paragraph X(b) of the complaint, that Respondent
discontinued the practice of employing two supervisory
technicians in April. Respondent denied it had in its
employ since February 28, 1973, individuals known as
"supervisory technicians." There were questions as to
whether such discontinuances occurred in February or
April. Respondent entered into no stipulation with respect
to the discontinuance of two supervisory technicians and
demanded evidence in this regard. I find no substantive
nor probative evidence in support of this allegation of the
complaint. I refer to page 5 of the brief of counsel for the
General Counsel and pages 68 and 69 of the transcript
herein. The complaint states that this unestablished event
began on an unknown date in June. If it occurred, I have
insufficient probative and substantial evidence as to the
date thereof.
Paragraph X(c) of the complaint refers to the alleged
unlawful12 practice of allowing unit employees less than 12
hours off between shifts without bargaining with or
arriving at an impasse with the Union. Waterman's basis
for his "conclusion" that premium pay for short turna-
round ceased in May or June 1973 was that "there was a
change in schedule, for which I was not eligible for
turnaround." It appeared to him that a junior person was
put in the turnabout situation, "and was perhaps not
cognizant of the fact that short turnaround had been paid."
Employees Fitzmorris and Waterman worked short
turnarounds for about 4 weeks each.13 This was after a
genuine impasse had been reached. Paragraph 2 of
Respondent's counterproposal provided for a straight-time
workweek of no more than 40 hours. Obviously there could
be short turnarounds with no more than 40 hours in a
week's work, thus straight time. The Union flatly rejected
this. Respondent bargained to a stalemate in good faith
and in an attempt to live with the Union in complete
harmony. Respondent was not hardnosed. It was willing to
give but there was a point beyond which it could not go.
The Union would not and did not accept this position. The
Union could not and would not retreat from its oft-
repeated positions. The immovable rock was opposed by
the irresistible force. This was where the parties found
themselves before and after May 23, 1973.
Such changes, as may have been made by Respondent
after May 23, 1973, followed a demonstrated loss to
Respondent of about $200,000 per year. I credit the
testimony of Hayden that on June 22 or August 3, 1972,
Tayer stated that as long as the convenience of an
employee was involved and there was no complaint, there
should be no problem with short turnaround.
The need for relief from higher wages as well as limited
coverage in the Union's health and welfare plan and from
the other burdens arising from acceptance by Respondent
of the Union's demands appears to me to have been
evident. Respondent often stated them to the Union to no
avail.
Short turnaround was discussed at either the June 1972
or August 3, 1972, meeting. That such was put into effect
after the impasse I find occurred does not make such
effectuation unlawful. Thus, I find counsel for General
Counsel has failed to establish the violation alleged in
section X(c) of the complaint by a preponderance of the
probative and substantial evidence.
The entire record makes it abundantly clear that neither
Respondent nor the Union, nor Respondent's nor the
11 Such had been the subject of bargaining between Respondent and the 12 Unilateral.
Union. 13 How often is not explicated.
HORIZONS COMMUNICATIONS CORPORATION
Union's predecessor, adhered strictly to prior contractual
provisions. I credit Hayden's testimony that at least since
January 27, 1971, contractual provisions with respect to
"short turnaround were not carried out." I find compliance
with the expired contract to have been fairly "loose." Tayer
testified as to at least one instance where the Union
permitted an employee to do a short turnaround without
premium pay where it met with the employee's and
another's convenience.
I also credit the testimony of Respondent's witness,
Hayden, that several persons who worked within the
Union's jurisdiction were not covered by the contract and
were not within the bargaining unit. This had been a
practice of years.
Any alleged unilaterial and proved change in working
conditions was the subject of bargaining prior to May 23,
1973. Certainly, reductions in newly hired full-time
announcer-operators had been the subject of full bargain-
ing before April 30, 1973, and certainly before May 23,
1973. I have noted the counsel for General Counsel is
mistaken in believing section X(b) of the complaint was
proved by a stipulation. There was no such stipulation.
Counsel for Respondent called for evidence in this regard
which was not forthcoming. With respect to paragraph
X(c) of the complaint, these matters had been subject to
pre-May 23, 1973, bargaining and in any event I accept the
testimony of Hayden as to practices in this regard prior to
May 23, 1973. I have most carefully considered and
weighed the testimony of Waterman. Much of it was
conclusionary in nature and unsupported at all by the
paychecks he claimed to have but failed to produce.
Counsel for General Counsel, himself, characterized
Waterman's testimony that overtime he alledgedly received
was for "short turnaround," as a "conclusion" of the
witness.14 I do find pursuant to the stipulation of the
parties that employees Fitzmorris and Waterman were
involved in "short turnaround." 15 That they worked more
than 8 hours a day or more than 40 hours a week in such
circumstance, I find there is neither sufficent probative nor
substantial evidence.16 Also, such work may have met their
convenience and there may have been no complaint from
anyone. I credit Hayden's testimony that it had been the
practice for some time at the station for some day-shift
employees to work until midnight on Saturday and return
on Sunday at 6 a.m. and they were not paid overtime.
Counsel for General Counsel would apparently place the
burden on Respondent to have resumed negotiations after
the Union's outright rejection of Respondent's April 30,
1973, offer. I do not agree. By its May 23, 1973, rejection of
Respondent's written counterproposal, the Union made it
manifestly clear that there would be no point to further
"bargaining" and that the Union would probably resort to
a strike to achieve acquiescence by Respondent to the
Union's proposals. That the Union finally struck on
October 15, 1973, did not require Respondent, as counsel
for General Counsel seems to suggest,17 to attempt to
resume negotiations.
14 Tr. p. 121.
15 Cf. X(c).
16 Such was clearly involved in Respondent 's plea to the Union that it
could not comply with the Union 's economic demands.
797
Concluding Findings
Counsel for General Counsel concedes that Respondent
would not have violated the Act by unilaterally making
changes in terms and conditions of employment, reason-
ably to be included in its preimpasse proposals if after
good-faith negotiations the prospect of concluding an
agreement had been exhausted and an impasse had been
reached, citing Taft Broadcasting Co., 163 NLRB 475.
That, I conclude, is precisely the situation in this case. I
have pointed out in my findings that reductions rather than
increases being the lot of the employees as a result of
Respondent's unilateral actions is immaterial . This Union
was not disregarded in the long bargaining process which
had come to a halt on May 23, 1973. As counsel for
General Counsel says in his brief,18 the "parties met on
June 22, August 3 and October 19, 1972, and bargained on
the basis of the Union's eleven section proposal. " (Emphasis
supplied.) The bargaining as it continued resulted in an
impasse . Counsel for General Counsel states that the
Union told Respondent it was willing to bargain about
Respondent's figure of $140 compared to the Union's $194
as a starting salary. The fact is that before May 23, 1973,
when Respondent mentioned $140, Tayer, in effect, told
Hayden to "save his breath," and his letter of May 23
clearly proclaims his position that Hayden's proposal of
April 30, 1973, was completely unacceptable. Counsel for
General Counsel states that after the Union's flat rejection
of Respondent's April 30, 1973, counterproposal "there
was obviously room for discussion of starting salary." Why
did not the Union ask for such discussion if it thought it
might prove efficacious? It did not. Rather, thinly veiled or
not, it threatened strike action to support its demands.
The Union's statement in its May 23, 1973, letter to
Respondent that "Your `Proposed Contract' is completely
unacceptable" and threatening a strike based on Respon-
dent's alleged "recalcitrant position," makes the "dead-
lock" or "impasse" abundantly clear especially when the
Union requested no further bargaining. Contrary to
counsel for General Counsel, I find the opposing positions
of the parties were so well fixed as to amount to a
"stalemate."
This case cannot be decided at this time without making
it abundantly clear that the Board 's statements in Hi- Way
Billboards, Inc., 206 NLRB No. 1, have been fully
considered and studied.
As of May 23, 1973, and prior thereto, there was, here, a
deadlock. Neither party was willing to' move from its
position. Respondent and the Union had long discussed
the issues between them in good faith. Each strove to reach
an agreement on subjects open to discussion between them
in good faith. Respondent, at least, exerted its best honest
efforts to achieve an agreement on any and all subjects.19
Neither Respondent nor the Union would change its
position, at least in such fashion as would make its position
acceptable to the other, in any meaningful degree. There
was an impasse on substantially all bargainable issues.
There being an impasse here, Respondent could "make
17 P. 6 of his brief.
18 P. 7.
19 1 do not conclude that the Union failed in this regard.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilateral changes in working conditions if they [were ]
consistent with the offers the Union had rejected." This
case makes it evident that this Respondent did not violate
the Act by making unilateral changes in working condi-
tions, as alleged in the complaint. Here, there was an hiatus
in negotiations in the overall ongoing process of collective
bargaining . Such had ceased at least as of the time
Respondent made any changes. Certainly, the Union had
ceased to negotiate and threatened to resort and finally, on
October 15, 1973, had resorted, to economic persuasion to
establish the primacy of its negotiating position. Changes
by Respondent were clearly consistent with its preimpasse
counterproposals.
Counsel for General Counsel states that, far from there
being an impasse herein, Respondent merely left the
bargaining table permitting the Union to make use of such
other devices as it might have. I conclude to the contrary. I
find in effect that having received Respondent's April 30,
1973, counterproposal, as requested by the Union, if not
demanded, the Union told Respondent, in effect, bargain-
ing is over, and it looks like we'll have to use economic
force against you. The Union utilized only silence to "talk"
to Respondent other than filing the charge herein. Its May
23, 1973, letter called for no reply from Respondent. It was a
letter of rejection and a threat. The silence of the parties
beginning on May 23, 1973, makes it abundantly clear that
they genuinely believed they were far apart in their
positions, so far apart that a phone call, a letter, or a visit
could not bring them together or even to a rapprochement.
I find the filing of the charge herein did not negate an
impasse. It was simply an effort by the Union to obtain
support from the Board at the bargaining table. I reject, as
contrary to the facts, that the Union bounced the ball back
to Respondent20 who promptly dropped it. I find the
Union did not even dribble the ball. It deflated it. C'est
finis.
I find and conclude that General Counsel has failed to
establish the allegations of the complaint that Respondent
violated the Act by a preponderance of the probative and
substantial evidence.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. At all material times, Respondent has been an
employer engaged in commerce within the meaning of the
Act.
2. At all material times the Union has been a labor
organization within the meaning of the Act.
3. The record does not establish that Respondent has
engaged in any of the unfair labor practices alleged in the
complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the Board issue
the following:
ORDER 21
The complaint herein is dismissed in its entirety.
20 On May 23, 1973. 102.48 of the Rules and Regulations, be adopted by the Board and become
21 In the event no exceptions are filed as provided by Sec. 102.46 of the its findings, conclusions , and Order, and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board, the findings , deemed waived for all purposes.
conclusions , and recommended Order herein shall, as provided in Sec.