KCET-TV

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 15 (N.L.R.B. 1993)

15
312 NLRB No. 3
KCET-TV
1 All subsequent dates refer to 1988 unless specified otherwise.
We do not rely on the number of bargaining sessions held between
June 15 and August 15 or on evidence of any agreements reached
by the parties in negotiations subsequent to August 15 as factors
supporting the finding that the parties had not reached impasse. We
disavow the implication in the judge’s decision that an employer can
never advance the date of impasse or declare an impasse on the basis
of business necessity.
2 This project was partially funded by the Annenberg Foundation.
3 Had Respondent WGBH established that the Annenberg Founda-
tion required an advance written guarantee of the Annenberg rights,
we might be persuaded that Respondent had established a business
necessity defense. The record evidence does not support such con-
clusion. First, while the Annenberg Foundation previously had re-
quested a written guarantee, it willingly continued negotiating the
project after deadlines passed. Second, the Annenberg Foundation
was not even aware of the August 15 deadline Respondent WGBH
unilaterally imposed on the Union. Finally, the Respondents them-
selves proposed, and the parties discussed, a ‘‘grandfathering ar-
rangement’’ whereby the Annenberg writing project would begin,
collective-bargaining negotiations would continue, and any agree-
ment ultimately reached would be retroactive to August 15. Though
the parties did not agree to the form such an arrangement would
take, Respondent WGBH’s willingness to discuss such an arrange-
ment undermines any contention that business necessity compelled
unilateral action on August 15.
Community Television of Southern California, a/k/a
KCET-TV; Educational Broadcasting Corpora-
tion, a/k/a WNET/Thirteen; and WGBH Edu-
cational Foundation, a/k/a WGBH-TV and The
Writers Guild of America, East, Inc. Case 2–
CA–23435
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 8, 1991, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. Re-
spondent WGBH Educational Foundation, a/k/a
WGBH-TV (WGBH) filed exceptions and a supporting
brief; The Writers Guild of America, East, Inc. (the
Union) filed exceptions and a supporting brief; Re-
spondents Community Television of Southern Califor-
nia, a/k/a KCET-TV (KCET) and Educational Broad-
casting Corporation, a/k/a WNET/Thirteen (WNET)
filed answering briefs to the Union’s exceptions; and
the General Counsel refiled his brief to the judge.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order as modified.
1. We agree with the judge’s finding that the parties
had not reached impasse on August 15, 1988.1 Re-
spondent WGBH claims, however, that even assuming
no impasse had been reached, it was compelled by
business necessity on August 15 to implement changes.
We do not agree. As of August 15, writing services for
the ‘‘State of the World’’ project2 were to begin.
Nothing occurred on August 15, however, which justi-
fied an immediate implementation of Respondent
WGBH’s Annenberg proposal, a proposal that included
the indisputably mandatory subject of compensation
for writing services. Because Respondent WGBH has
not established that the failure to reach an agreement
on the Annenberg issue materially affected its business
opportunities, we find that the record does not support
a finding of business necessity for implementing the
Annenberg proposal unilaterally on August 15.3
2. Respondent WGBH asserts that it was free to im-
plement its last offer on August 15 because the Union
was insisting on concessions regarding foreign copy-
right, which Respondent WGBH argues is a permissive
subject of bargaining. We find that the record does not
support Respondent WGBH’s claim that the Union
was insisting, over WGBH’s opposition, that the con-
tract contain provisions on foreign copyright.
A party may not insist on the acceptance of a non-
mandatory proposal as a condition of reaching agree-
ment once the other party has refused to bargain over
the nonmandatory subject. Laredo Packing Co., 254
NLRB 1, 19 (1981). It is not unlawful, however, to in-
clude a nonmandatory proposal in a bargaining pack-
age and bargain, even to the point of impasse, over
that package when the parties voluntarily engage in
bargaining over such a proposal. Good GMC, Inc., 267
NLRB 583 (1983). In such circumstances, the party is
not clearly insisting on agreement to the nonmandatory
subject as a price for its agreement to any contract at
all. It is merely indicating the substance of what it is
willing to offer on mandatory subjects if a particular
nonmandatory provision is included. So long as both
parties voluntarily bargain over the nonmandatory sub-
ject, it cannot be said that the willingness of either to
agree to a contract without a provision on the non-
mandatory subject has been put to the test.
In this case, Respondent WGBH willingly bargained
over the foreign copyright issue. In fact, Respondent
WGBH argues in its brief to the Board that it ‘‘repeat-
edly requested a foreign copyright proposal from the
Union.’’ Here, as in Good GMC, supra at 585, we find
that Respondent WGBH’s ‘‘failure ever to demand that
the [foreign copyright] matter be removed from the
bargaining table and its apparent willingness to [bar-
gain about] the matter is . . . evidence that the parties
had not exhausted bargaining and that the Union’s po-
sition was not intractable.’’ Also, as in Good GMC,
given Respondent WGBH’s failure to test the Union’s
position by demanding removal of the copyright issue
from bargaining, we cannot find Mangan’s statement
to the Respondent’s negotiator that ‘‘they [WGBH]
were not going to get Annenberg without agreeing to
foreign copyright’’ establishes that the Union was in-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We therefore need not decide whether the foreign copyright issue
is a permissive subject.
1 Unless indicated otherwise, all dates referred to are for the year
1988.
2 On the final day at hearing, counsel for Respondents moved to
amend their answers to include an additional affirmative defense
based on National Transportation Services, 240 NLRB 565 (1979).
I recommend that this belated defense be dismissed as totally lacking
in merit.
sisting to impasse on that matter. Rather, under the cir-
cumstances, we find that the statement was consistent
with a stance of hard bargaining.
Thus, having agreed with the judge that the parties
were not at impasse and that the Union had not in-
sisted on the foreign copyright proposal as a condition
to agreement on a contract,4 we agree with the judge
that Respondent WGBH violated the Act by unilater-
ally changing terms and conditions of employment.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
WGBH Educational Foundation, a/k/a WGBH-TV,
Boston, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) On request, bargain collectively in good faith
with the Union as the exclusive bargaining representa-
tive of the employees in the following appropriate unit
on terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed written agreement:
All persons who furnish literary material as de-
fined in the collective-bargaining agreement, ex-
cept for staff employees furnishing material other
than format, stories, teleplay (telescripts), and nar-
rations which are other than news as defined in
the collective-bargaining agreement.’’
Polly Chill, Esq., for the General Counsel.
Don T. Carmody, Esq. (Carmody & Goldstein), for the Re-
spondents.
Franklin K. Moss, Esq. (Spivak, Lipton, Watanabe &
Spivak), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on 8 hearing days between September 18,
1989, and March 8, 1990, in New York, New York. The
complaint issued on March 30, 1989, and was based on an
unfair labor practice charge filed on February 13, 1989, by
the Writers Guild of America, East, Inc. (the Union). The
complaint alleges that between about July 8, 1988,1 and
about December 6, the Union has requested certain informa-
tion from Community Television of Southern California,
a/k/a KCET-TV (KCET), Educational Broadcasting Corpora-
tion, a/k/a WNET/Thirteen (WNET), and WGBH Edu-
cational Foundation, a/k/a WGBH-TV (WGBH) (collectively
Respondents), but that the Respondents have refused to sup-
ply this information to the Union, in violation of Section
8(a)(1) and (5) of the Act. The complaint also alleges that
on August 15, WGBH unilaterally changed the terms and
conditions of employment of its employees represented by
the Union, by implementing a new pay schedule for certain
of these employees, in violation of Section 8(a)(1) and (5)
of the Act. On the entire record, including my observation
of the witnesses and the briefs received, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
KCET, a domestic corporation with an office and place of
business in Los Angeles, California, is engaged in the oper-
ation of a not-for-profit public television broadcasting sys-
tem. Annually, in the course and conduct of these business
operations, it derives gross revenue in excess of $100,000
and purchases and receives at its facility products, goods, and
materials valued in excess of $5000 directly from points out-
side the State of California.
WNET, a domestic corporation with an office and place
of business in New York, New York, is engaged in the oper-
ation of a not-for-profit public television broadcasting sys-
tem. Annually, in the course and conduct of these business
operations, it derives gross revenues in excess of $100,000
and purchases and receives at its facility products, goods, and
materials valued in excess of $5000 directly from points out-
side the State of New York.
WGBH, a Massachusetts corporation with an office and
place of business in Boston, Massachusetts, has been en-
gaged in the operation of a not-for-profit public television
broadcasting system. Annually, in the course and conduct of
its business operation, it derives gross revenues in excess of
$100,000 and purchases and receives at its facility products,
goods, and materials valued in excess of $5000 directly from
points outside the State of Massachusetts.
Respondents admit and I find that KCET, WNET, and
WGBH are each employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.2
II. LABOR ORGANIZATON STATUS
Respondents admit and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. BACKGROUND
The Union has had collective-bargaining agreements with
Respondents, as well as other employers, for a number of
years. The last such agreements were effective for the period
July 2, 1985, through July 1 and shall be referred to as the
17KCET-TV
3 Counsel for the Union is only half joking when he referred to
this Agreement as ‘‘quite possibly the longest and most complicated
collective bargaining agreement known to mankind.’’
4 Approximately 25 to 30 percent of the Union’s members are hy-
phenates.
5 The Union does not represent producers.
6 Kantrowitz testified: ‘‘I understood that they were looking to be
sure that the 300% was a real payment to the writers.’’
Agreement.3 The employees covered in these agreements
(and in this matter) are freelance writers (as compared to sal-
aried staff employees who write for the Respondents) who
prepare literary material for the station. Some of these free-
lance writers also act as producers; employees who work in
both categories are referred to as hyphenates.
This matter was precipitated by an extraordinary act of
generosity by one Walter Annenberg, who gave an amount
in excess of $40 million to the Corporation for Public Broad-
casting (CPB), to dispense in order to assist educational tele-
vision programing. Although this was certainly an admirable
act on the part of Ambassador Annenberg, it created the dif-
ficulties that lead to the instant matter. The Agreement pro-
vided for a minimum payment of about $10,000 for a 1-hour
documentary, plus ‘‘residuals’’ for tape sales and subsequent
showings. More importantly, the station was limited to show-
ing (or releasing) the program no more than four times in 3
years (four in 3), each release consisting of unlimited
showings within a 7-day period. Stations receiving funds
under a grant from the Annenberg Foundation (Annenberg
Programs, Annenberg Money, or similar names) had to agree
that shows produced with these funds could be shown an un-
limited number of times during a 9-year period (for reasons
to be discussed below). This created a conflict with the four
in 3 provision of the Agreement. In addition, Annenberg and
CPB required that the writers relinquish any potentional in-
come from supplementary sources, such as tape sales. From
about January 1986 through 1989, the parties attempted to
solve the conflict in two fashions: one was a substantial in-
crease in the minimum fee. In fact, by August, Respondents
were offering 300 percent of the prior minimum. In addition,
beginning in about January 1986, the parties began negotiat-
ing about what shall be referred to as foreign copyright.
Mona Mangan, executive director of the Union (and the prin-
cipal negotiator for the Union during the period in question)
had learned that freelance writers could collect money for
foreign broadcasts of their shows, especially in France. It
was felt at that time that if the Respondents would waive any
rights they had and let the writers receive this money, as
well as raising the minimum writing fee, the Union might be
willing to waive the four in 3 and agree to Annenberg’s re-
quirement for unlimited showings for 9 years. Unfortunately,
due to the complexity of the foreign copyright issue, as well
as other factors, the parties were not able to agree on these
issues by August 15. At a negotiating session on August 15,
WGBH, by Don Carmody, its counsel and chief negotiator,
declared that it could wait no longer for a negotiated settle-
ment of this issue and that, although it would continue nego-
tiating, it would unilaterally change the existing minimum
wage and four in 3 provision in order that it might com-
mence the writing for an Annenberg-funded show—State of
the World. Carmody and Respondents’ witnesses testified
that he stated at that time that the parties had reached an im-
passe; Mangan testified that he never did. Regardless, the
issue to be decided is: was there an impasse on August 15.
The remaining issue is both related and unrelated to the
Annenberg issue. Stated briefly, when it became clear that
Respondents would eventually pay a higher minimum writ-
er’s fee to their members in exchange for Annenberg’s re-
quired 9-year unlimited showings, beginning on about July 8,
the Union requested figures detailing the total compensation
of hyphenates4 during 1985, 1986, 1987, and 1988, and the
portion of that compensation representing writing fees. The
refusal to supply this information to the Union is the remain-
ing allegation.
IV. REFUSAL TO FURNISH INFORMATION
As will be stated more fully, supra, shortly after the execu-
tion of the Agreement, the parties began discussing the
Annenberg issue and the 9-year unlimited rights that the sta-
tions had to turn over to Annenberg and CPB (rather than
the four in 3 then in the Agreement) in order to qualify for
Annenberg money. It was fairly obvious, even early on, that
one method of reimbursing the writers for the loss of four
in 3 was to pay them a higher minimum fee. The Union felt
that with the resulting increase in the writer’s minimum fee,
the stations might attempt to offset that increase (in the case
of hyphenates) by decreasing the producer5 portion of the
employee’s fee. As an example, if under the Agreement, a
hyphenate was paid the minimum $10,000 for his writing
services and $40,000 for producing the program, his total
compensation was $50,000. If the minimum writing fee be-
came $30,000 (as it did in August) the station could lower
the hyphenate’s producer fee to $20,000 to offset the in-
crease and end up paying the hyphenate the same $50,000.
Mangan testified that, about that time, Sue Kantrowitz, gen-
eral counsel and director of legal affairs for WGBH,6 said
that there was then no producer-writer money being offset,
but that if she hired a new hyphenate, she might do it be-
cause the Union only represents the writers and it would
have no say in any action it took regarding producers.
(Kantrowitz denies having made this statement.) In addition,
the Agreement contains the following offset provision:
No part of any monies paid to or due the writer pursu-
ant to any of the terms and conditions of this Agree-
ment may be offset against the total amount paid to the
writer for writing services or acquisition of literary ma-
terial and non-covered services.
At a negotiating session on July 8, Mangan orally made
this request:
We asked for the history of the producer and writing
fees at WGBH. They employed the most producers and
so what our feeling was and we could get a real feel
on what was going on if we used only WGBH’s figures
and also we didn’t want to have to deal with all the
data in the world. We thought that WGBH would prob-
ably produce it the most easily and so we asked it of
GBH and we also had talked to people at GBH so we
had some more hard information. We said, tell us what
these writers had made as producers versus writers and
let us see what kind of ratios exist and if they had an
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
offset, then it should be really clear and then we could
develop a ratio for writing fees.
On August 4, WGBH gave the Union pay information re-
garding five writers. Deeming that response inadequate for
their demand, by letter dated August 17, the Union, by Ste-
ven Burrow, wrote to Carmody ‘‘Re: WGBH Education
Foundation:’’
I am writing to reiterate the WGA’s request for in-
formation from the WGBH Educational Foundation, as
expressed orally at our collective bargaining sessions on
July 8, July 14, and August 15, 1988.
In order to allow us to prepare a response to
WGBH’s proposal regarding special terms of employ-
ment to apply to projects funded in whole or in part by
the Annenberg Foundation, we have asked that the sta-
tion provide us with figures detailing (1) the total com-
pensation of staff producer-writers during each year of
the most recent contract, and (2) the portion of that
compensation which represents writing fees earned pur-
suant to the freelance contract.
As was stated at the August 15th session, WGBH’s
partial response to this request on August 4th (which
concerned only the compensation paid to three writers
over three one-year periods and two other writers over
two one-year periods), is inadequate to enable us to
draft a proposal which would assure that any additional
compensation we might agree upon in return for ex-
panded Annenberg rights, which WGBH has proposed,
would represent a tangible gain for the producer-writ-
ers.
As we have also repeatedly stated, information pro-
vided pursuant to this request will be kept confidential
by the Guild, and no producer-writer’s compensation
figures will be disclosed to any other person other than
as is necessary to develop our proposal on the
Annenberg issue.
This letter was handed to Carmody at a bargaining session
that day; his response was that the Union did not represent
producers and that they would get what they are entitled to
under the law. After that, the exchange of letters began: by
letter dated and hand delivered on October 25 (again, ‘‘Re:
WGBH Education Foundation’’), Burrows wrote to
Carmody, inter alia:
We have not received the information requested in
our letter of August 17 and previously (as detailed in
that letter).
As we have repeatedly expressed at the bargaining
table, without the information we have requested re-
garding the WGBH producer-writers, the Guild cannot
meaningfully respond to the ‘‘Annenberg proposal’’
submitted on behalf of WGBH, KCET, WNET, et al.
By letter dated November 7, Carmody wrote to Burrows:
I am in receipt of your letter of Tuesday, October 25,
requesting from the WGBH Educational Foundation
certain information pertaining to ‘‘producer-writers’’
employed by WGBH.
In order to provide you with a most informed reply
to your request, I would appreciate it if you would clar-
ify whether you claim to heed this information in order
to negotiate about the decision, itself, to produce the
Annenberg programming, or to negotiate about the ‘‘ef-
fects’’ of that decision—more particularly, the com-
pensation to be paid for the performance of covered
services in the production of the Annenberg program-
ming—or for both of these purposes.
Also, it would be most helpful if you would explain
your rationale for entitlement to the specified informa-
tion concerning ‘‘Producers’’ employed by WGBH. I
am unclear as to how information concerning the terms
and conditions of employment of ‘‘Producers’’ relates
to your stated need to submit a proposal on behalf of
the Writers who you represent.
By letter dated December 6, Burrows wrote to Carmody:
In response to your inquiry about the Guild’s re-
peated requests for information needed for the purposes
of collective bargaining, we seek the requested informa-
tion to enable the WGA to formulate a proposal de-
signed to assure that Guild-represented writers are in
fact compensated for the additional uses they are being
asked to provide the companies which produce
Annenberg programming, should we eventually reach
agreement regarding such additional uses. Because
many of the likely writers of such programs are staff
writer-producers at WGBH, we have, as stated pre-
viously, requested information needed to assure that any
additional writing fees negotiated for Annenberg pro-
grams are not illusory, i.e., that they result in real, addi-
tional compensation for writer-producers. Based upon
the very limited information you provided at our meet-
ing in early August, the Guild’s concern is not merely
hypothetical.
As this request has been so long outstanding, I hope
that you will be able to provide the requested informa-
tion without further delay.
By letter dated February 2, Burrows wrote Carmody, inter
alia:
At a series of collective bargaining sessions dating
back at least to July 8, 1988, and in letters hand-deliv-
ered to you on August 17, October 25, and December
7, 1988, the WGA has repeatedly requested information
regarding the staff producer-writers employed by
WGBH. Specifically, the Union has requested figures
detailing the total compensation of the staff producer-
writers during each year of the most recent contract and
identifying the portion of that total compensation attrib-
utable to payments for writing services, and the Union
has asked for copies of all personal service contracts
between WGBH and its staff producer-writers.
Although the WGA has explained the reason it needs
the requested information to enable it to participate ef-
fectively in the ongoing PBS negotiations, and has of-
fered assurances that it will protect the confidentiality
of any information provided, the requested information
has not been provided. (Indeed, we have received no re-
sponse of any kind to our letter of December 6.)
I am writing to reiterate the Guild’s request and—in
the hope that the information will finally be provided
prior to our bargaining session of February 3—to pro-
19KCET-TV
vide a brief explanation of the legal basis for our re-
quest, as a supplement the practical rationale which has
previously been provided.
In light of your clients’ previous intransigence in this
matter, I am constrained to emphasize that the failure
to provide this information in a timely fashion has se-
verely obstructed the bargaining process, and clearly
precludes the possibility of reaching a legal impasse—
at least until the Guild receives and has an adequate op-
portunity to analyze and make use of the requested in-
formation.
Finally, by letter dated February 9, Carmody wrote Burrows,
inter alia:
We are surprised to stand accused of refusing to pro-
vide requested information in the circumstances present
here, especially in light of the proposal advanced by
your negotiating committee during our session of Janu-
ary 10.
In this connection, toward the conclusion of that ses-
sion, your committee proposed a package, accompanied
by a statement to the effect that if our committee ac-
cepted the proposal, you no longer would need the in-
formation which is the subject of your correspondence.
It would seem that any reasonable arbiter hardly
would conclude that we have refused to provide infor-
mation in such circumstances, at least unless and until
your committee either withdraws its proposal—together
with the companion pardon of whatever obligation to
provide information you believe may exist—or unless
and until our committee rejects your proposal, and we
thereafter fail to provide information to which you are
entitled.
I do not recollect either event having occurred.
Of course, please do not infer from this commentary
any inclination on our part (which you might be tempt-
ed to infer) to accept your proposal at this time.
The Union never received the information.
Carmody’s February 9 letter refers to one of Respondents’
principal defenses to this allegation. As testified to by Herb
Homes, director of labor relations for WNET, at a bargaining
session on January 10, 1989, Mangan offered the Respond-
ents a ‘‘package deal’’ and said: ‘‘If indeed you can buy our
package, I will withdraw the need for WGBH to have to sup-
ply the papers they’ve been seeking for many months.’’ The
package was not accepted by Respondents. At a mediation
session in February 1989, the mediator asked if there was
any way to get the parties together. Carmody answered:
‘‘Well, one way is Ms. Mangan made a proposal to us. It
was a package she offered and in exchange for the package
and we accepted it, GBH will be relieved of having to sup-
ply this information.’’ In testifying to the above statement,
Homes added: ‘‘Not that we would have accepted this, but
that this was a way.’’ On cross-examination by counsel for
the Union, Homes was asked:
Q. Did any of the employers buy the Union’s pack-
age on either of those occasions?
A. No.
Kantrowitz and Carmody similarly testified that at the Jan-
uary 1989 bargaining session, Mangan made a package offer
involving Annenberg and said that if the Respondents accept-
ed the package, then she would excuse WGBH from provid-
ing the requested information.
Counsel for Respondents defends that the Union waived
its earlier requests for recognition by its package offer to Re-
spondents in January and February. The reasoning appears to
be that because Mangan said, ‘‘If you accept our package,
WGBH does not have to provide the information we re-
quested.’’ WGBH is relieved of its obligation, even though
Respondents never accepted this offer, because it was never
‘‘officially’’ withdrawn by the Union. This defense is so
frivolous as to require no further comment. However, in his
brief, counsel for Respondents spends six pages for the pro-
posal that since the Union did not respond to these assertions
as contained in his February 9, 1989 letter. I should draw an
adverse inference from their silence. I find it more likely that
their silence was due to a feeling, like mine, that the position
stated was so frivolous as to be unworthy of comment. The
testimony of Respondents’ witnesses is clear, that Mangan’s
offer to drop the request for information was contingent on
Respondents ‘‘buying’’ or ‘‘accepting’’ her package, and
they did not accept or buy it.
The complaint alleges that the Union requested informa-
tion regarding the gross fees paid by ‘‘Respondents’’ to its
members who are hyphenates and that it requested ‘‘Re-
spondents’’ to furnish it with this information, but that ‘‘Re-
spondents’’ have failed and refused to do so. However, an
examination of the facts reveals that these requests were
made solely to WGBH; there is absolutely no evidence of
any request for this information having been made to WNET
or KCET. Counsel for the Union states that because
Carmody represented all three Respondents in their coordi-
nated bargaining and he never stated that he was responding
only on behalf of WGBH, all three Respondents were in-
volved in this allegation. I reject this position. Mangan’s re-
quest of July 8 specifies WGBH, and only WGBH, four
times. The Union’s August 17 request states that it involves
‘‘WGBH Educational Foundation.’’ This letter, as well as the
subsequent letters between Burrows and Carmody refer sole-
ly to WGBH. The mere fact that Respondents bargained to-
gether for a new agreement, and employed the same attorney,
is not enough to implicate WNET and KCET in this allega-
tion where this information was never requested of them. I
therefore recommend that this allegation be dismissed as to
WNET and KCET.
Respondents further defend that the Union is not entitled
to this information because it ‘‘has immediate access to, or
already possesses, the information.’’ Mangan testified that at
a meeting with union members during this period, she asked
if they would give her that information and she received al-
most no information. The law is clear that an employer’s ob-
ligation to furnish the union with relevant information is not
excused merely because the union may have access to this
information from other sources. Postal Service, 276 NLRB
1282 (1985). As the Board stated in Kroger Co., 226 NLRB
512 (1976): ‘‘The union is under no obligation where the
employer may have such information available in a more
convenient form.’’ This defense is especially untenable here
where, only, theoretically is this information otherwise avail-
able to the Union. It would, obviously, be difficult for the
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union to determine which of its members were hyphenates
and to then convince them to state their salary as a writer
and producer. It is not surprising that the Union was unsuc-
cessful in obtaining this information on their own. I therefore
reject this defense.
The ultimate issue, therefore, is whether the Union was en-
titled to this information from WGBH. In Sheraton Hartford
Hotel, 289 NLRB 463 (1988), the Board set forth the rule
to be applied in cases such as the instant matter, citing NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967), Pfizer, Inc.,
268 NLRB 916 (1983), and Southern Nevada Builders Assn.,
274 NLRB 350 (1985):
Section 8(a)(5) obligates an employer to provide a
union requested information if there is a probability that
the information would be relevant to the union in ful-
filling its statutory duties as bargaining representative.
Where the requested information concerns wage rates,
job descriptions, and other information pertaining to
employees within the bargaining unit, the information is
presumptively relevant. Where the information does not
concern matters pertaining to the bargaining unit, the
union must show that the information is relevant. When
the requested information does not pertain to matters
related to the bargaining unit, to satisfy the burden of
showing relevance, the union must offer more than
mere suspicion for it to be entitled to the information.
This case is unusual in that while it involves a request for
information pertaining to employees within the bargaining
unit (writers) and is therefore presumptively valid, the infor-
mation requested also includes salary received as a producer,
which is outside the bargaining unit. Regardless of which
burden is placed on the Union, it is clearly satisfied here. As
early as 1986, it was evident that the minimum fee paid to
writers would have to be substantially increased to com-
pensate for the Annenberg rights that the Respondents would
have to turn over to CPB in exchange for the Annenberg
funds. Whether or not Kantrowitz made the statement that
Mangan attributes to her, there clearly was a resulting danger
that an employer in this situation might attempt to offset this
gain in writing fees by reducing the producing fees for the
hyphenates. The best way for the Union to guard against this
possibility was to obtain the writers’ fees and producers’ fees
paid to hyphenates in the past and develop a ratio from the
figures. This would be valuable to the Union in formulating
contract language for a new offset provision or assist the
Union in future arbitration proceedings on the subject. By re-
fusing to provide the Union with this information, WGBH
violated Section 8(a)(1) and (5) of the Act.
V. UNILATERAL CHARGES ON AUGUST 15
As stated, supra, shortly after the execution of the agree-
ment in 1985, Kantrowitz was informed that WGBH was
working on its first Annenberg project; she was also in-
formed that the rights Annenberg required conflicted with the
four in 3 provision contained in the Agreement. As a result,
in about December 1985, she informed Homes and Carmody
that WGBH was going to produce an Annenberg program
and that ‘‘they had committed to the rights that Annenberg
needed at that time. So we discussed what we should do
about that since we had obligations to others.’’ They agreed
that Carmody and Homes, who had a relationship with
Mangan that Kantrowitz did not have, should meet with
Mangan, which they did in about January 1986. Homes and
Carmody explained the Annenberg situation to Mangan and
the rights being demanded by Annenberg and CPB. ‘‘And
we asked for her cooperation and her help in order to make
this thing workable for WGBH.’’ Mangan replied that she
would need a more specific proposal, although it might be
difficult to sell to her membership, but that there was some-
thing that she wanted that was very important to her and the
Union. She said that she had recently attended a meeting
where she was informed that writers in France were then col-
lecting moneys from two sources: one was when a program
they had written appeared on French television. The other
was from moneys received from taxes on blank video cas-
settes sold in France. She told Homes and Carmody that it
could be easily settled because it would not cost the stations
anything; all the stations need do is agree not to interfere
with the Union’s attempts to secure moneys due American
writers in France. The collection agency handling these funds
in France is S.A.C.D. At the conclusion of the meeting,
Homes and Carmody told Mangan that they would consider
anything, especially something that appeared relatively sim-
ple, but that she should give them a specific proposal on the
foreign copyright issue. Shortly thereafter, Carmody and
Homes had another meeting with Mangan, as well as rep-
resentatives of S.A.C.D. At this meeting, the S.A.C.D. rep-
resentatives informed Carmody and Homes that there were
two ‘‘revenue streams’’: one was moneys available for
broadcasting on French television programs for which the
writers had written material, and the other, a tax on blank
video cassettes, payable to directors, actors, and others, as
well as writers.
Kantrowitz testified that on March 23, 1986, she attended
a meeting with the Union at which foreign copyright was
discussed; at this meeting she asked ‘‘a whole host of ques-
tions’’ on the subject to attempt to learn more about it. On
July 9, 1986, Kantrowitz, Homes, and Carmody met with
Mangan to discuss Annenberg. At this meeting, Kantrowitz
told Mangan that she couldn’t understand why the Union was
being so difficult about reaching an agreement on
Annenberg. She understood that they would be giving up
some rights, but that the Annenberg programs were pres-
tigious programs that writers would want to work on. She
testified that Mangan said: ‘‘I don’t care what the writers in
Boston want to do; I’m a horsetrader and you have to give
me something in return. And what I want in return is the for-
eign author’s money.’’ At this meeting, Mangan also said
that she wanted to extend foreign copyright beyond France,
to include Germany, Switzerland, and Australia.
The parties next met on July 18, 1986; at this meeting the
Union gave Carmody its first written proposal on foreign
copyright. At the same time the Union presented a written
proposal on Annenberg, which provided, inter alia, that for
programs which receive 60 percent of their budget from
Annenberg CPB, the stations will be allowed an unlimited
number of releases to ‘‘instructional facilities, when such re-
leases are made as part of an established college course.’’
At about this time, WGBH, by Kantrowitz, engaged Attor-
ney Barbara Ginsberg, a copyright attorney, to represent
them on the foreign copyright issue since Kantrowitz had
never previously dealt with this issue. Between this time
(mid-1986) and January the parties met on a number of occa-
21KCET-TV
sions to discuss Annenberg and foreign copyright; during this
period they also exchanged proposals on these subjects.
However, no agreement was reached. During this period,
Barbara Ginsberg was reporting to Kantrowitz about her re-
search into this area of foreign copyright. She testified to the
numerous problems that she had with the Union’s proposal:
her initial difficulty had to do with scope. Whereas the
Union initially referred only to France, their proposal cov-
ered the world outside the United States. Barbara Ginsberg
told Kantrowitz that they should start with France before get-
ting into a wider area. Additionally, she was concerned that
the language of the grant of the copyright from the station
to the writers was not exactly parallel to the grant of the
writers back to the stations. She felt that the language should
be exactly parallel because if the writers retained a copyright
interest in the program, it might impair WGBH’s copyright
ownership and its ability to fully exploit its programs. The
proposals involved the grant of copyrights in the finished
programs; Barbara Ginsberg advised WGBH that it was pref-
erable to make the grants in the writer’s literary material
rather than in the finished program. A further problem that
she communicated to Kantrowitz was that coproductions with
foreign companies might involve foreign law.
In August 1986, Barbara Ginsberg prepared some draft
language on the foreign copyright issue for WGBH. She at-
tended a meeting with the Union on October 9, 1986, at
which time the Union gave them a foreign copyright pro-
posal. At this meeting, Mangan asked her whether it would
be possible for the companies to hold all the rights, but for
the writers to ‘‘hold some sort of shell of copyright.’’ She
told Mangan that this was not possible under U.S. copyright
law. In January 1987, she prepared and transmitted to the
Union a counterproposal to the Union’s foreign copyright
proposal discussed on October 9, 1986. The next meeting
with the Union that she attended occurred in October 1987;
at this meeting the Union presented WGBH with a counter-
proposal to Barbara Ginsberg’s January 1987 proposal. This
was the first meeting attended by Jane Ginsberg, an expert
on French copyright law, retained by the Union. There was
a discussion of whether the writers had to retain some rights
in order to satisfy the French collection agency. Mangan re-
plied that regardless of what the French collection agency re-
quired, copyright was a ‘‘political issue’’ with the Union and
the writers would have to have some sort of copyright inter-
est. Barbara Ginsberg drafted a counterproposal to the
Union’s proposal and it was given to the Union at a meeting
on December 1, 1987, which she did not attend. At the De-
cember 1, 1987 negotiation session between himself and
Mangan, Carmody also gave Mangan an Annenberg pro-
posal. Briefly, this proposal provides that where a program
receives 25 percent of its finding from Annenberg CPB, the
stations have rights to unlimited broadcasts for 9 years and
the writers would be paid 250 percent of the initial minimum
compensation.
At this December 1, 1987 meeting, Carmody explained to
Mangan the urgency of reaching an agreement (which will
be discussed more fully below). At this meeting they
‘‘reached a document specific agreement’’ on the Annenberg
issue, with one exception. Mangan continued to object to the
250-percent compensation, especially since Respondents had
previously reached agreements with other unions providing
for 300-percent compensation. Carmody told her that he
could not agree to that with the Union until he saw what the
outcome was on their foreign copyright discussion. No agree-
ment was reached at that meeting on the subject of foreign
copyright. On January 22, Carmody and Barbara Ginsberg
met with Mangan to discuss foreign copyright. They dis-
cussed whether the copyright grant would be in the literary
material or the finished program, and the territorial scope of
the agreement, all without agreement. Barbara Ginsberg also
told Mangan that the language of the grants (station to writer
and writer to station) had to be parallel, whereas Mangan
wanted the writers to retain something; there was no agree-
ment on this, as well. There was also a discussion of dam-
ages for failure or a breach of notice provisions by WGBH
or its licensees. Barbara Ginsberg objected that WGBH
should not have to pay damages if one of its licensees failed
to pass on the notice—that was beyond the power of WGBH.
There was also no agreement on this. Barbara Ginsberg testi-
fied that these were ‘‘significant issues. At that time these
represented the main areas of disagreement and they were
seemingly intractable.’’ The parties did not meet again until
June 15.
One important aspect of this case, and the principal aspect
of WGBH’s defense to this allegation, is that it had a dead-
line that it had to meet for the writing services for State of
the World—its second Annenberg production. WGBH’s first
Annenberg program was the Nuclear Age, which was com-
pleted in about 1988 and broadcast early in 1989. Henry
Becton, president and general manager of WGBH, testified
that this was the first Annenberg project for WGBH and
Annenberg and CPB were then ‘‘developing their guidelines
and their understanding of what they needed in order to be
effective, so their guidelines evolved during the early stages
of our applying for that grant.’’ The agreement that WGBH
executed with CPB for the Nuclear Age (in excess of 50
pages) provides that if WGBH was unable to obtain what we
have been referring to as Annenberg rights, they would re-
ceive a decreased amount of money from Annenberg—CPB.
Because they did not reach agreement on Annenberg by that
time, they were not able to turn over these rights so they did
suffer this financial penalty. Becton testified, in this regard:
‘‘So, in fact, they let us off the hook on a one time only
exception to that project.’’ Andrew Griffiths, treasurer and
chief financial officer of WGBH, testified that because they
were unable to obtain Annenberg rights for the Nuclear Age
production they ‘‘ended up having to make a compromise,
a one-time compromise I might add’’ with Annenberg CPB
to deduct $225,000 that they were to have received. He testi-
fied that Nuclear Age was ‘‘a very exceptional case’’ where
both sides were ‘‘in the early stages where they were formu-
lating their requirements.’’ He testified: ‘‘It was a very un-
usual circumstance and one which they were not about to
enter again.’’
Griffiths testified extensively about the deadline (and later
deadlines) involving State of the World, a production which
cost approximately $8 million, about $2.2 million of which
came from Annenberg, with another $550,000 from CPB.
Because Annenberg grants are primarily for educational pur-
poses, they made it clear that the production had to be ready
for viewing in the fall semester of 1990 (September) with the
accompanying college text available 6 months earlier. By let-
ter dated May 3, Becton wrote to Mara Mayor, director of
Annenberg CCPB project, stating: ‘‘This letter is to respond
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As per the fact that the formal agreement for State of the World
was not executed until 14 months after the alleged impasse, Griffiths
testified:
Television unlike many other businesses is a business where
there are a lot of oral contacts made and when we make a com-
mitment, even if it’s an oral one, which may be years before
we have a signed contract, if we make a commitment that we’re
going to deliver a program, we need to deliver it. And our credi-
bility is at stake if we can’t live by our agreements.
8 Griffiths testified that in contrast to the Nuclear Age production
where both sides ‘‘had gotten into a situation we couldn’t get out
of’’ and thereafter agreed on a penalty for the failure to supply the
requested rights, ‘‘they were not going to bend their rules again on
the State of the World,’’ and he did not ask them to do so.
formally to your letter of April 9, 1987 and to accept the
$2,000,000 support from the Annenberg CPB Project for the
State of the World.’’ The letter also states, inter alia: ‘‘We
will deliver to CPB broadcast rights consisting of 12 plays
in 9 years for public television, except when initiated by an
educational institution where we will provide 5 plays per
year per entity for 9 years.’’ The written agreement between
CPB and WGBH for the production of State of the World
was not executed until October 1989.7 Griffiths testified that
since 1987, he had been keeping Annenberg CPB informed
of the progress of their negotiations to attempt to get the
rights Annenberg required. In the fall of 1987, the CPB peo-
ple were getting ‘‘antsy,’’ wanting to know when production
would begin in order for them to set up their academic
schedules. At one point CPB told Griffiths that they wanted
a deadline for the delivery of the rights, and they chose De-
cember 1, 1987, and Griffiths agreed. At the conclusion of
the Carmody-Mangan meeting on that date, Griffiths felt
confident that they would soon reach agreement on the
Annenberg issue and he and CPB agreed on a late January
deadline.8 Beginning about April 1, WGBH began dealing
with the executive producer of the production, who was like-
wise dealing with the staff that had been hired. It was impor-
tant, however, that writers be hired to work on the produc-
tion. Griffiths testified:
So that production schedule was of primary concern
to me and the implications of getting caught in another
situation was analogous to the nuclear age project
where we had started production and were still nego-
tiating rights and were in a very defensive position be-
cause of that, and I was determined not to be caught
in that position again.
After the optimism of December 1, 1987, faded, Griffiths
was informed by Carmody that they should still be able to
reach agreement with the Union on Annenberg by July 1,
and based on that, WGBH proceeded with its commitment
on State of the World. As stated, supra, the executive pro-
ducer was hired in April and producers were hired in about
May.
Carmody testified that from January 1986 through early
December 1987 Kantrowitz was informing him of the in-
creased pressure from Annenberg CPB to complete the deal
and get the rights they required or risk the loss of revenue
from Annenberg CPB. It was his understanding that there
was a December 1, 1987 deadline that caused him to arrange
a last-minute meeting with Mangan on that evening which
resulted in their tentative ‘‘document specific agreement’’ on
Annenberg.
The December 1, 1987 negotiating session between
Carmody and Mangan was the last regular negotiating ses-
sion between the parties until June. The Agreement was to
expire July 1 and Carmody attempted to commence negotia-
tions in early June; however, Mangan was involved in dif-
ficult negotiations on the West Coast during that period, re-
sulting in the first negotiating session being conducted on
June 15. Between June 30 and August 15 there were two
written agreements between the parties to extend the term of
the Agreement. The first extension, for the period July 1
through July 31 was executed in May; the second, for the
period August 1 through August 14, was, apparently, exe-
cuted in August. Kantrowitz testified that they initially
agreed only to the July 31 date because they were being
pushed to commence production on State of the World and
‘‘that was a late as we could go.’’ When no agreement was
reached by the end of July, WGBH determined that it could
wait no longer than August 15. Kantrowitz testified: ‘‘So
August 15, for us, was really the absolute latest time that we
could have kept all the pieces of the puzzle together.’’ The
‘‘pieces’’ refers to the underwriting grants that the WGBH
had received from foundations and endowments, the co-
production relationships that they had contracted for, and the
writing that had to be commenced. They had previously
hired hyphenates who were booking crews and doing re-
search. ‘‘At the point of August 15, they needed to actually
start diagramming out the program and start performing serv-
ices as would be covered under [the Agreement].’’
Carmody testified that when Mangan informed him of her
difficulty in being totally free to negotiate in early June be-
cause of her negotiations on the West Coast, she asked about
extending the Agreement to mid-September. After consulting
with his clients, he told Mangan that they would not extend
past July because ‘‘in early August at the latest’’ WGBH had
to commence writing services on State of the World. When
it became clear in late July that no agreement would be
reached by the end of the month, Mangan asked Carmody
about a further extension of the Agreement. Carmody spoke
to the executive producer of State of the World, as well as
others at WGBH to try to get the best fix possible on the
last day by which we would be in a position of having to
assign the performance of writing functions in State of the
World.’’ Although initially determining that it would be early
August, he eventually agreed to August 15. Steven Burrows,
who was employed by the Union at that time as its associate
counsel (at the time of the hearing, he was employed by
AFTRA) testified that, in the last week of July, Carmody
called the union office and asked if the Union could nego-
tiate over the weekend. He told Carmody that since Mangan
was then involved in negotiations on the West Coast it was
unlikely that she would return prior to the July 31 expiration
date and suggested that the Agreement be extended again.
Carmody suggested that they pick a date reasonably far in
the future so that they would be fairly certain of having
enough time to reach agreement without the need for an ad-
ditional extension agreement and suggested mid-October;
however, he informed Burrows that WGBH had to begin
producing their Annenberg programing no later than mid-Au-
gust. Burrows testified: ‘‘I know that it was made quite clear
to us that they needed to begin producing the State of the
23KCET-TV
World project . . . as of August 15.’’ Therefore, although
the Agreement would be extended to mid-October, any
agreement affecting Annenberg and State of the World
would be retoactive. After discussing this with Mangan, Bur-
rows informed Carmody that the retroactive provision was
not acceptable to the Union. Carmody told Burrows that
without the retroactive provision regarding State of the
World, his clients would not agree to any date beyond Au-
gust 14. As stated, the final extension of the Agreement was
until August 14.
As stated, the first regular negotiating session in 1988 took
place on June 15; the leadpeople present were Mangan, Bur-
rows, and James Kaye, assistant executive director for the
Union, and Carmody, Kantrowitz, Barbara Ginsberg, Homes,
and Glen Schroeder, senior vice president and general coun-
sel for KCET. At this meeting, each of the stations gave the
Union its proposals (which Mangan testified were ‘‘very
complicated’’ and ‘‘not complete proposals’’) and there was
some discussion of these proposals. In addition, either at that
meeting, or the one on the following day, the Union gave
Respondents a three-page document, entitled: ‘‘Pattern of
Demands.’’ Mangan explained that because of her involve-
ment with the negotiations on the West Coast, she had not
had a full opportunity to prepare more elaborate proposals.
This pattern of demands included demands on Annenberg
and foreign copyright. On June 15 and 16, the parties dis-
cussed the Union’s pattern of demands and Respondents’
proposals. In particular, at these sessions, the parties dis-
cussed Annenberg, foreign copyright, and other issues. The
Union requested that WGBH present a written proposal re-
garding Annenberg. Carmody answered that in December
1987, they had a written Annenberg proposal, but that he
would update it. On the other side, Respondents requested a
specific foreign copyright proposal from the Union. At the
bargaining session held on July 6, the Union resubmitted its
July 18, 1986 proposal; Annenberg was unchanged on this
proposal. At this meeting, Mangan again told Carmody that
they were not going to get Annenberg without agreeing to
foreign copyright. Kantrowitz testified that on either July 7
or 8, the stations again asked for the Union’s foreign copy-
right proposal; at each meeting during this period, Mangan
told them that they would have it shortly. Carmody and
Kantrowitz told her that time was running out and they still
had not received her principal proposal—foreign copyright.
At this meeting, Carmody raised his voice and asked: ‘‘Well,
how am I supposed to negotiate here if I don’t have one of
your proposals in chief?’’ Mangan answered: ‘‘Well, if you
want a foreign copyright proposal, here is the foreign copy-
right proposal. Consider the one we gave you in December
1987 the foreign copyright proposal.’’ She gave them the
prior proposal, unchanged. The parties then discussed foreign
copyright and Annenberg. As regards the latter, the Union’s
position was that Annenberg and the rights they required
were outrageous and gutted the contract.
The next session of note occurred on August 11: at this
meeting Mangan requested that the Agreement be extended
again as ‘‘there was still a lot to bargain on’’; she was told
that there could be no further extentions as writing had to
begin by August 15 for State of the World. At this meeting,
the Union gave Respondents its proposal (dated the follow-
ing day). Kantrowitz testified that this proposal was the same
as the Union’s December 1987 proposal, with one minor
change (not relevant here) and Kantrowitz or Carmody asked
whether that meant that the Union was rejecting all Respond-
ents’ prior comments. The parties then discussed foreign
copyright and Annenberg; it was at this meeting that Re-
spondents first offered 300 percent for Annenberg rights.
Mangan replied that they needed more than that, and what
they needed was foreign copyright. Barbara Ginsberg told
Mangan that the SACD had told her that it was unnecessary
to engage in a grant of copyright back and forth in order for
the Union’s members to share in foreign royalty collections.
Mangan said that the SACD was telling her that it was nec-
essary for them to have some sort of copyright interest in
order to be able to sue broadcasters for their failure to pay
royalties to the SACD, and that Jane Ginsberg would contact
the SACD to attempt to clear up the confusion. Carmody
told Mangan that on August 15, WGBH had to commence
the writing functions for State of the World and they there-
fore had to reach agreement on Annenberg by that date. As
of that meeting, Respondent’s Annenberg proposal was the
same as ‘‘the document specific’’ proposal they had prepared
on December 1, 1987, except that on August 11, Respond-
ents increased the minimum to 300 percent.
The parties next met on August 12. At this meeting the
parties agreed to a 2-year term for a new agreement and Re-
spondents made their first economic offer—4 percent for the
first 18 months and 4 percent for the subsequent 6 months.
This offer was rejected by the Union as inadequate.
The next meeting was on August 15 when Respondent an-
nounced that it could wait no longer, that it was unilaterally
changing the compensation method from the four in 3 to 9
years unlimited for Annenberg programs, with compensation
at 300 percent of the prior minimum. There is a credibility
issue in the testimony regarding this meeting: Carmody,
Kantrowitz, and Homes testified that Carmody used the term
‘‘impasse’’ at this meeting; Mangan testified that he never
used that word; Burrows’ testimony was somewhere in be-
tween. Although not crucial to the findings to be discussed
below, I find from my observation of Carmody that it is the
more likely possibility that they did use that term. That, to-
gether with the fact that I found Kantrowitz and Homes to
be articulate credible witnesses, convinces me that Carmody
did specifically state at this meeting that the parties were at
impasse. Mangan testified that at this meeting Carmody an-
nounced that WGBH was implementing its Annenberg pro-
posals, but that they would continue bargaining with the
Union and would seriously entertain any new proposals of
the Union. Carmody also reiterated WGBH’s legal position
that it was not obligated to bargain about the number of re-
leases of a program (four in 3 or 9 years unlimited) as this
was a management prerogative; it was only obligated to bar-
gain about the money paid to the writers. Homes testified
that at this meeting Carmody stated that it was unfortunate
that they had not been able to reach an agreement, but that
WGBH could wait no longer to commence writing services
for State of the World, and he declared an impasse and said
that he recommended to WGBH that they hire the writers for
the program. Kantrowitz testified that at the commencement
of the meeting, Carmody announced that WGBH was begin-
ning writing services for State of the World and the parties
had reached impasse on Annenberg and they were therefore
going to implement their Annenberg proposal while they
would discuss the impact of that on the writers. There was
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘not much of a response’’ from the Union. The parties then
discussed other issues for the remainder of this meeting.
Carmody testified that prior to the August 15 meeting, he
asked Kantrowitz ‘‘whether or not we had any additional
breathing time’’ and he was told that they did not. He
opened the meeting with a summary of the negotiations since
about January 1986, complained that they had been waiting
for a revised foreign copyright proposal and the one that they
received on August 11 was almost identical to the former
proposal and, in fact, caused problems under French law for
Barbara Ginsberg. He again stated that August 15 was the
final date to reach agreement on Annenberg, and
that I wanted to advise them that, I used the word im-
passe, I said, we’re, as far as I can determine we’re at
an impasse and we intend to go forward today and im-
plement the assignment of the performance of writing
services on State of the World.
Carmody also stated that his legal position was that the
stations had no obligation to bargain about the decision to do
business with Annenberg and the rights needed for that pro-
graming. He did state that they would continue to entertain
proposals regarding writer’s compensation. Mangan rejected
his position and said: ‘‘You do what you have to do and
we’ll do what we have to do.’’ They then proceeded to dis-
cuss other issues.
Burrows testified that at this meeting Carmody announced
that WGBH was beginning the production of State of the
World and that they intended to do it under the terms of their
Annenberg proposal then on the table which provided for
300 percent of initial compensation. He testified that he
could not say ‘‘with certainty’’ whether the word ‘‘impasse’’
was used at this meeting. Mangan testified that during the
negotiations Carmody kept referring to deadlines for WGBH,
but she did not believe it was real, although she believed that
he would declare impasse. But ‘‘as the days wore on, I gave
up’’ and decided that he was not going to declare an im-
passe: ‘‘Intellectually, I thought, this is not going to hap-
pen.’’
The parties next met on August 16 and 17; at one of these
meetings, Carmody identified four or five items as ‘‘must
gets’’ and encouraged the Union to do the same stating:
Let’s just identify those proposals which represent con-
tract making or breaking proposals, and let them know
that if we can reach an agreement upon these proposals,
as far as we’re concerned, we have a contract, and then
let’s ask them to do the same thing, and that’s what we
did.
Mangan stated that the Union did not bargain in that man-
ner and overall agreement was not reached at this meeting.
The parties met again on August 18, in October, January,
and February 1989, still with no complete agreement. The
parties agreed on a joint exhibit of the Union’s bargaining
proposals initially submitted on June 16 and subsequently re-
vised. The initial proposal contained 51 items; the parties
stipulated that between August and January 9, 1989, they
reached agreement on about 13 of these items: in addition,
during that period, the Union withdrew some of its demands.
There was never agreement on Annenberg or foreign copy-
right.
As stated, supra, on January 9, 1989, the Union submitted
a new Annenberg proposal to Respondents conditional on the
Respondents’ accepting their foreign copyright proposal.
Stated briefly, the Union’s proposal provided that when
Annenberg was the ‘‘primary funder’’ of a program which
was ‘‘prepared in connection with complete, credit worthy,
college-level courses in fundamental areas of learning,’’ the
four in 3 provision of the agreement would be waived and
the writers would receive 300 percent of minimum. This was
not accepted by Respondents.
Prior to discussing impasse, and whether it existed on Au-
gust 15, it is first necessary to identify issues that will be
discussed briefly, or not at all. I find no support whatsoever
for WGBH’s affirmative defenses that the Board lacks juris-
diction because its assertion of jurisdiction would present a
serious conflict with United States copyright law; those af-
firmative defenses are therefore dismissed. As a further af-
firmative defense, WGBH alleges that the Act does not im-
pose on them the duty to bargain regarding the decision to
produce programing for Annenberg CPB and other decisions
regarding their Annenberg programing. While this may be
true, it is not necessary to discuss this issue or the issue of
management prerogative, mandatory subjects of bargaining or
the Supreme Court’s ruling in First National Maintenance v.
NLRB, 452 U.S. 666 (1981). The Union was not asking Re-
spondents to negotiate about their decision to produce pro-
gramming for, or with the financial assistance of, Annenberg
CPB: as stated by counsel for the Union in his brief: ‘‘The
Union never claimed an intention to prevent Respondents
from dealing with whomever they wish. The Union sought
only to regulate the terms and conditions of employment of
writers it represents.’’ The Union was telling the Respond-
ents: ‘‘Deal with whomever you wish, but when it affects the
wages and conditions of employment of your employees—
our members—that you must negotiate about.’’ If Annenberg
had not demanded 9 years of unlimited rights, with the re-
sulting abrogation of the four in 3 provision of the Agree-
ment, there would have been no such problem here. How-
ever, Annenberg CPB required that the stations give them 9
years’ unlimited rights in order to receive their money. The
number of releases of a writer’s work product clearly affects
his overall earnings. If a work can be telecast an unlimited
number of times (‘‘shown to death’’) it is less likely to sub-
sequently earn supplemental proceeds from such sources as
tape sales or showings by commercial stations or ‘‘supersta-
tions,’’ than if it were shown for only 4 weeks in 3 years.
The parties must therefore bargain about this issue.
There is no allegation that Respondents negotiated in bad
faith contributing to the alleged impasse. In fact, there was
some limited testimony that the parties could not negotiate
as early and extensively as Respondents desired in mid-1988
because of negotiations and a strike the Union was tending
to on the West Coast. This will also not be discussed. What
will be discussed is whether the parties reached impasse on
August 15.
In Taft Broadcasting Co., 163 NLRB 475 (1967), the
Board stated that after bargaining to impasse,
that is, after good faith negotiations have exhausted the
prospects of concluding an agreement, an employer
does not violate the Act by making unilateral changes
25KCET-TV
9 As I have found that no impasse existed on August 15, it is un-
necessary to consider the argument of counsel for the General Coun-
sel and counsel for the Union that because Respondent WGBH did
not provide the Union with the requested information regarding off-
set of the hyphenates there could be no impasse.
that are reasonably comprehended within his pre-im-
passe proposals.
More importantly to the instant matter, the Board then stated:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an impasse
in bargaining existed.
In enforcing the Board’s Order in Television Artists
AFTRA v. NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968), the
court stated: ‘‘As we see it, the Board’s finding of impasse
reflects its conclusion that there was no realistic possibility
that continuation of discussion at that time would have been
fruitful.’’ The state of mind of the participants in the negotia-
tions is an important factor of whether impasse was reached
and the burden of establishing that impasse existed on a cer-
tain date rests on the party asserting it, the Respondent. Bay-
town Sun, 255 NLRB 154 at 157. The court, in NLRB v. Tex-
Tan, 318 F.2d 472, 482 (5th Cir. 1963), defined impasse as
‘‘a state of facts in which the parties, despite the best of
faith, are simply deadlocked.’’ The administrative law judge
in PRC Recording Co., 280 NLRB 615, 635 (1986), stated
that for impasse to exist—‘‘Both parties must believe that
they are at the end of their rope.’’ Finally, in finding no im-
passe in Alsey Refractories Co., 215 NLRB 785 (1974), the
Board stated: ‘‘We rely on what we believe to be a correct
standard in determining deadlock in this case; namely, that
the Respondent was not warranted in assuming that further
bargaining would have been futile.’’
Although overall negotiations between the parties did not
commence until June 15, the parties met on a number of oc-
casions between January 1986 and January 1988, at which
time they discussed Annenberg and foreign copyright; in
fact, in December 1987 they came fairly close to reaching
agreement, at least, on the Annenberg issue. The complicat-
ing factor in these negotiations was, apparently, the foreign
copyright issue. Whereas Annenberg was a straightforward
issue that the parties knew would be settled with an increase
in the minimum payment, foreign copyright was so difficult
that it threw the parties off track. Barbara Ginsberg spent a
half day testifying about the complications in the law on for-
eign copyright and how difficult it was to agree not only on
contract language on the subject, but how the French system
operated and what the law was on the subject. This, how-
ever, does not alone create an impasse. It is possible that
movement on other issues (which had not been discussed
prior to June 15) would have assisted the parties in settling
foreign copyright. As the court in Korn Industries v. NLRB,
389 F.2d 117, 121 (4th Cir. 1967): ‘‘Bargaining does not
take place in isolation and a proposal on one point serves as
leverage for positions in other areas.’’
On the basis of all these facts, I conclude that no impasse
existed on August 15. Although the parties had been discuss-
ing Annenberg and foreign copyright since January 1986,
these discussions were irregular and were limited to these
two subjects. In fact, the parties had not met for about 6
months when negotiations formally began on June 15. Be-
tween that date and August 15 when Carmody declared that
an impasse had occurred, the parties met on only about 10
occasions. This is not that much when one considers that ne-
gotiations on the prior agreement, which took effect on July
1, 1985, did not conclude until December 1985. Additionally,
at the time that impasse was declared, the parties were still
awaiting legal advice from SACD on this most troublesome
issue; it is possible that this advice would have assisted the
parties in reaching agreement on this issue. Additionally, on
August 15, Respondents were still, basically working from
their 1987 proposals on Annenberg and foreign copyright. Fi-
nally, the fact that the parties were able to agree on numer-
ous other issues over the following 5 months establishes that
they were moving from prior positions, albeit slowly. Exca-
vating-Construction, 248 NLRB 649, 650 (1980). Overall, I
find that the parties were not deadlocked or at the end of
their rope on August 15, nor do I believe that further bar-
gaining would have been futile; in fact, it wasn’t.
Most importantly, however, there is a major difference be-
tween a classic impasse in negotiations and the alleged im-
passe in the instant matter. WGBH is alleging that an im-
passe existed on August 15 because they hadn’t yet reached
an agreement with the Union and they had to begin writing
services on State of the World on that date. Presumably, if
they had not agreed to the two extension agreements they
would have alleged that impasse existed on July 1 or August
1. An impasse exists when negotiations have run their course
and the parties are deadlocked. An employer cannot advance
the date of an impasse, or declare an impasse, based on an
alleged business necessity. This is what WGBH did here.
Therefore, I find there was no impasse on August 15,9 and
that by unilaterally changing the terms and conditions of em-
ployment of its writers who were represented by the Union
and who were employed to work on the State of the World
production, WGBH violated Section 8(a)(1) and (5) of the
Act.
CONCLUSIONS OF LAW
1. KCET, WNET, and WGBH are each employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of each of the Respondents
constitute units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All persons who furnish literary material, as defined in
the Agreement, except for staff employees furnishing
material other than format, stories, teleplay (telescripts)
and narrations which are other than news, as defined in
the Agreement.
4. Since, at least, prior to 1985 the Union has been the
designated exclusive representative of the employees in the
above-named appropriate units for the purposes of collective
bargaining within the meaning of Section 9(a).
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
5. The last collective-bargaining agreement between the
Union and each of the Respondents was for the period July
1, 1985, through June 30, 1988, and was extended to August
14, 1988.
6. WGBH violated Section 8(a)(1) and (5) of the Act by
failing to provide the Union with information it had re-
quested since about July 8, 1988, regarding compensation of
hyphenates who were its members.
7. KCET and WNET did not violate the Act in this man-
ner.
8. WGBH violated Section 8(a)(1) and (5) of the Act by
unilaterally changing the terms and conditions of employ-
ment of its writers by implementing a new wage schedule for
its writers on the Annenberg supported State of the World
program, at a time when there was no impasse in the nego-
tiations between the parties.
9. The above unfair labor practices are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that WGBH has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Having found
that WGBH has failed and refused since about July 8, 1988,
to supply the Union with the requested information regarding
the pay of its hyphenates, during the term of the Agreement,
and the breakdown of this pay between writing and produc-
ing functions, I shall recommend that WGBH cease and de-
sist therefrom and, on request, to promptly supply this infor-
mation to the Union.
I have also found that on August 15, 1988, WGBH unilat-
erally implemented a new pay schedule for the writers it em-
ployed who were represented by the Union and who were
writing for the Annenberg-supported State of the World
project, by replacing the four in 3 release pattern with unlim-
ited showings for 9 years, but at 300 percent of the prior
minimum fee, at the time when there was no impasse in the
negotiations between the parties.
Having found that the WGBH unilaterally implemented
the 300-percent pay scale for the writers employed on State
of the World project, at a time when no impasse had oc-
curred, I shall recommend that Respondent be ordered to, on
request, bargain collectively in good faith with the Union on
the terms and conditions of employment of unit employees
and, if an understanding is reached, to embody the under-
standing in a signed agreement.
I shall also recommend that WGBH be ordered to, if re-
quested by the Union, reinstitute the wages and terms and
conditions of employment that existed before its unlawful
changes, and to make whole unit employees for any losses
suffered as a result of its unlawful action in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970),
with interest thereon to be computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The amount due to the affected employees will be deter-
mined in a supplemental proceeding. Counsel for the Union,
in his brief, requests that my recommended Order include a
prohibition against any release beyond the preimplementation
four in 3 as set forth in the Agreement. This is not necessary
because, as stated above, I shall recommend that WGBH be
ordered to reinstate the wages and terms and conditions of
employment that existed prior to August 15, 1988, which
would include the four in 3 pattern.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, WGBH Educational Foundation, a/k/a
WGBH-TV, Boston, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union, the
Writers Guild of America, East, Inc., the exclusive bargain-
ing representive of the employees in the unit described
above, by refusing to provide the Union with the information
it requested, commencing about July 8, 1988, regarding the
pay of the hyphenates it employed during the term of the
Agreement.
(b) Refusing to bargain collectively with the Union by uni-
laterally implementing changes in wages and terms and con-
ditions of employment of unit employees at a time when no
impasse in bargaining with the Union had occurred.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly furnish the Union, on request, with the com-
pensation of the hyphenates it employed during the years
1985, 1986, 1987, and 1988, the compensation broken down
by writers’ fees and producers’ fees.
(b) On request, reinstate the wages and terms and condi-
tions of employment that existed before the unlawful unilat-
eral changes and make whole unit employees for any losses
suffered as a result of these unilateral changes, with interest.
However, no provision of this recommended Order shall in
any way be construed as requiring the Respondent to revoke
unilaterally implemented improvements in terms and condi-
tions of employment to unit employees.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Boston, Massachusetts facility copies of the
attached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
27KCET-TV
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegation that KCET and
WNET violated Section 8(a)(1) and (5) of the Act by refus-
ing to provide the Union with the information requested on
about July 8, 1988, and at subsequent times, is dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the Writ-
ers Guild of America, East, Inc., the Union, the exclusive
bargaining representative of the employees in the unit de-
scribed below, by unilaterally implementing changes in
wages and terms and conditions of employment of these em-
ployees at a time when no impasse in bargaining with the
Union had occurred.
WE WILL NOT fail and refuse to furnish the Union with the
information it requested, which is relevant and necessary to
the Union’s status as the exclusive collective-bargaining rep-
resentative of our employees in the unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain collectively in good faith
with the Union as the exclusive bargaining representative of
the employees in the following appropriate unit on terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed written agree-
ment:
All persons who furnish literary material as defined in
the collective-bargaining agreement, except for staff
employees furnishing material other than format, sto-
ries, teleplay (telescripts), and narrations which are
other than news as defined in the collective-bargaining
agreement.
WE WILL furnish to the Union information it requested be-
ginning on or about July 8, 1988, regarding the payments to
hyphenates during the period 1985 and 1988 and how it was
apportioned between writers’ duties and producers’ duties.
WE WILL, on request, reinstate the wages and terms and
conditions of employment that existed before the unlawful
unilateral changes and make whole unit employees for any
losses suffered as a result of these unilateral changes, with
interest. However, no provision of this notice shall in any
way be construed as requiring us to revoke unilaterally im-
plemented improvements in terms and conditions of employ-
ment to unit employees.
WGBH EDUCATIONAL FOUNDATION, A/K/A
WGBH-TV