KEZI, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1990

300 N.L.R.B. 594 (N.L.R.B. 1990)

594
300 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s dismissal of certain complaint alle-
gations.
2 We note that the Respondent’s prior withdrawal of recognition of the
Union in July 1986, found by the Board to have been a violation of Sec.
8(a)(5) and (1) at 286 NLRB 1396 (1987), has not been alleged by the General
Counsel to have adversely affected the 1988 negotiations or otherwise been
implicated in the issues presented in this case.
3 As the result of a scheduling conflict, a planned November 22, 1988 ses-
sion was canceled. The parties were unable to find a mutually agreeable date
for a meeting in December 1988.
KEZI, Inc., a subsidiary of Chambers Communica-
tions Corp. and American Federation of Tele-
vision and Radio Artists, AFL–CIO. Case 36–
CA–6006
October 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 18, 1989, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 only to the extent consistent with this Deci-
sion and Order.
At issue are the Respondent’s exceptions to two
findings of the judge. First, the Respondent excepts to
the judge’s finding that the Respondent violated Sec-
tion 8(a)(1) of the Act by circulating a memorandum
to employees telling them that it planned to implement
a 401K pension plan that excludes employees from
coverage if they are members of a collective-bar-
gaining unit for which retirement benefits were the
subject of good-faith bargaining. Second, the Respond-
ent excepts to his finding that the Respondent violated
Section 8(a)(5) by withdrawing recognition on the
basis of an employee petition that was tainted by the
foregoing 8(a)(1) conduct. We find merit to the excep-
tions and, accordingly, dismiss the complaint.
I. FACTUAL FINDINGS
In 1988, the Respondent engaged in a series of bar-
gaining sessions for the purpose of negotiating an ini-
tial collective-bargaining agreement with the Union.
There is no allegation of any misconduct on the part
of the Respondent during these seven sessions, which
spanned the period February 10 to October 18, 1988.2
The next bargaining session was scheduled to occur
January 30, 1989.3
During the 1988 negotiating sessions, the topic of
retirement benefits had been broached on several occa-
sions. At the start of negotiations, no pension or other
retirement benefits were accorded the Respondent’s
employees, and the Union initially proposed that unit
employees be included in the Union’s retirement plan.
At the time, the Respondent requested that the Union
provide it with information on this retirement program,
and mentioned that it was investigating and consid-
ering the implementation of an employee stock option
plan (ESOP). The next substantive reference to any re-
tirement plan was made at the August 12, 1988 bar-
gaining session. At that session, the Respondent an-
nounced that it had formulated an ESOP, the specifics
of which were then discussed by the Union and the
Respondent. In this session, the Union indicated that it
would drop its proposal that unit employees be in-
cluded in the union retirement plan, provided that the
Respondent included the union employees in any
ESOP or other retirement plan that it instituted. At the
next session, however, on August 25, 1988, the Re-
spondent retracted its intention to adopt an ESOP, ex-
plaining that its decision was based on tax reasons. It
also indicated, on inquiry, that it was not then consid-
ering a 401K plan, and the Union stated that if the Re-
spondent did not formulate a retirement plan, the
Union might have to reconsider its plans. This appar-
ently was the last reference to pension benefits made
during the negotiation sessions.
On December 19, 1988, the Respondent held its an-
nual Christmas party for both unit and nonunit em-
ployees, a majority of whom attended. At this party
Carolyn Chambers, the president of the Respondent’s
corporate parent, announced that the Respondent was
working on a benefits plan to be implemented in the
next few months. She said the Respondent hoped it
would include, among other things, a 401K plan. No
further details were provided at the time.
On January 12, 1989, the Respondent issued a
memorandum to employees which provided additional
information on the benefits plan. The memorandum
stated, among other things, that the Respondent would
offer a 401K pension plan, for which the Respondent
would provide some matching funds, and the plan
would have some eligibility requirements. This memo-
randum prompted several employees to make inquiries
regarding what was meant by ‘‘eligibility require-
ments.’’ As a result of these inquiries, the Respondent,
on January 13, 1989, issued a second memorandum to
employees, which stated in relevant part:
Some questions have arisen as to the eligibility
requirements for the 401K plan. The plan will ex-
clude the following: . . . Employees who are
members of a collective bargaining unit with
whom retirement benefits were the subject of
good-faith bargaining.
595KEZI, INC.
4 There is no allegation that the Respondent acted unlawfully with respect
to the circulation of the petition.
5 Lynn-Edwards Corp., 290 NLRB 202, 203–204 (1988); Handleman Co.,
283 NLRB 451 (1987); Sarah Neuman Nursing Home, 270 NLRB 663, 680–
681 (1984). Chairman Stephens also relies on his concurring opinion in Lynn-
Edwards Corp., 282 NLRB 52 (1986).
This case is therefore distinguishable from Niagara Wires, 240 NLRB 1326
(1979), in which the exclusionary language did not expressly contemplate
good-faith bargaining over pension benefits, and Bendix-Westinghouse Auto-
motive Air Brake Co., 185 NLRB 375–376, 377 (1970), in which the employer
conditioned participation in the plan on the union’s waiver of bargaining over
such coverage. This case is also distinguishable from Solo Cup Co., 176
NLRB 823 (1969), in which the Board held that an employer could not law-
fully announce to its unrepresented employees that they would automatically
forfeit their participation in a current profit-sharing plan if they later became
subject to any collective-bargaining agreement providing retirement benefits.
The Board emphasized that it was concerned with the impact of such an an-
nouncement on ‘‘employees’ initial decision to engage or not to engage in
concerted activities directed toward collective bargaining.’’ Id. at 824. It did
not address the question, presented here, respecting the effect of eligibility lan-
guage on employees who have had no existing benefits to lose and who have
a collective-bargaining representative who is free to bargain with the employer
over such benefits.
6 Indeed, had the Respondent acted unilaterally to put the unit employees
in the plan and take that subject off the negotiating table, it would have vio-
lated Sec. 8(a)(5) and (1) of the Act by failing to give the Union an oppor-
tunity to bargain over the subject.
A unit employee provided the Union with copies of
those two memoranda on January 19, 1989. On Janu-
ary 25, 1989, the Union sent a letter to the Company
which expressed its understanding ‘‘that these [401K]
benefits are not being extended to the members of the
AFTRA bargaining unit because such benefits are sub-
ject [to] good-faith bargaining.’’ The letter asked that
the Union be provided full details about the plan at the
next bargaining session.
While this was going on, employee Jim Yocum was
circulating a petition to remove the Union as the unit
employees’ bargaining representative.4 Another em-
ployee, Janice Salvador, notified the Union of this, and
Salvador also posted a notice on behalf of the Union.
The notice claimed that circulation of the petition was
the direct result of the exclusion of ‘‘union members’’
from the 401K plan; but it emphasized that ‘‘union
members’’ were bargaining for their own plan.
After a majority of unit employees signed Yocum’s
petition, Yocum gave it to the assistant station man-
ager, who then turned it over to the general manager.
On January 27, 1989, 3 days before the next bar-
gaining session, the Respondent withdrew recognition
of the Union, relying on the receipt of the petition. The
401K plan was implemented March 1, 1989.
II. DISCUSSION
Our disagreement with the judge’s conclusion rests
principally on our disagreement with his reading of the
description in the memorandum of the 401K plan’s eli-
gibility requirements. The judge construed it as telling
employees that ‘‘if their representative chose to bar-
gain about retirement benefits, then they would be ex-
cluded from coverage under Respondent’s 401K pen-
sion plan.’’ On the contrary, we do not read the lan-
guage in question as signifying that merely choosing to
bargain on this topic would automatically cut off re-
tirement benefits. Rather, we find that the language ex-
cluding from the 401K plan ‘‘employees who are
members of a collective bargaining unit with whom re-
tirement benefits were the subject of good-faith bar-
gaining’’ (emphasis supplied) indicates that the exclu-
sion of unit employees is triggered only by the com-
pletion of good-faith bargaining—not by the mere
commencement of bargaining on this topic. Thus, un-
like cases in which language describing retirement
benefits has been found unlawful, here the Respondent
made the unit employees aware that they would be eli-
gible for this 401K plan prior to negotiations and that
before they can be excluded from the 401K plan, there
must have been full good-faith negotiations about re-
tirement benefits between their representatives and the
Respondent. We therefore find that this language ex-
pressly anticipates that retirement benefits for unit em-
ployees will be determined through the normal proc-
esses of collective bargaining, and that a resulting col-
lective-bargaining agreement would set forth the terms
of any pension coverage. In the course of such bar-
gaining the parties might agree to include the unit em-
ployees in the 401K plan, establish a separate but sub-
stantively identical 401K plan, or establish an entirely
different retirement plan for them. The Board has not
hesitated to find eligibility language lawful when, as
here, it indicates that pension benefits for unionized
employees are subject to negotiation but does not sug-
gest that employees are automatically and irrevocably
foreclosed from inclusion in a particular plan simply
because they have a union bargaining on their behalf.5
We further find that events preceding and following
the Respondent’s issuance of the memorandum support
the conclusion that the language in question was not
an unlawful attempt to threaten employees with loss of
benefits because they were represented by a union.
During the bargaining that did occur between the par-
ties, the Respondent readily agreed to the inclusion of
unit employees in the ESOP retirement program it ini-
tially had attempted to develop; and the Union’s own
response to the memorandum indicated that it under-
stood that the unit employees were not being irrev-
ocably closed out of pension coverage but rather that
this was still a subject for negotiation.6 Although in
the previous August the Respondent had indicated it
was not then considering a 401K plan, nothing in the
record suggests that, if the decertification petition had
not intervened to bring a halt to negotiations, the Re-
spondent, at the next bargaining session after the
issuance of the memorandum, would have rejected out
of hand any proposal to include the unit employees ei-
ther in the 401K plan it did finally develop or in some
similar plan.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, we find that the language used by the Re-
spondent to describe the eligibility provisions in the
forthcoming 401K plan did not violate Section 8(a)(1)
of the Act. In view of the General Counsel’s sole reli-
ance on the alleged illegality of the 401K plan’s
eligility provisions to establish that the petition to re-
move the Union as the unit employees’ collective-bar-
gaining representative was tainted, we find the petition
was not tainted by any unlawful misconduct. We there-
fore also find that the Respondent was justified in
withdrawing recognition of the Union by relying on
the fact that a majority of the unit employees had
signed the petition clearly stating that they no longer
wished to be represented by the Union. Accordingly,
we shall also dismiss the General Counsel’s allegations
that the Respondent’s withdrawal of recognition from
the Union violated Section 8(a)(5) and (1).
ORDER
The complaint is dismissed.
Linda J. Scheldrup, for the General Counsel.
Douglas S. Mitchell, Esq. (Cass, Scott, Woods & Smith), of
Eugene, Oregon, for the Respondent.
Jonathan Dunn-Rankin, of San Diego, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Eugene, Oregon, on June 8, 1989. On
March 22, 1989, the Regional Director for Region 19 of the
National Labor Relations Board (the Board), issued a com-
plaint and notice of hearing, based upon an unfair labor prac-
tice charge filed on January 31, 1989, and amended on
March 1, 1989, alleging violations of Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based upon the entire record, upon the briefs that
were filed, and upon my observation of the demeanor of the
witnesses, I make the following findings of fact and conclu-
sions of law.
I. JURISDICTION
At all times material, KEZI, a subsidiary of Chambers
Communications Corp. (Respondent), has been a State of Or-
egon corporation, with an office and place of business in Eu-
gene, Oregon, where it engages in the business of operating
a commercial television station. In the course and conduct of
those business operations during the 12-month period pre-
ceding issuance of the complaint, a representative period, Re-
spondent derived gross revenues in excess of $500,000 and,
during that same period, sold and shipped goods or provided
services in excess of $50,000 in value to customers outside
of Oregon or to customers within Oregon, each of whom en-
gaged in interstate commerce by other than indirect means
and, additionally, purchased and caused to be transferred and
delivered to its Oregon facilities goods and materials valued
in excess of $50,000 that originated from outside Oregon.
Therefore, I conclude, as admitted in the answer, that at all
times material, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, American Federation of Television
and Radio Artists, AFL–CIO (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The sequence of events in this case commences with
issuance of the Decision and Order in KEZI-TV, 286 NLRB
1396 (1987). In that case, the Board concluded that Respond-
ent had withdrawn recognition unlawfully from the Union as
the exclusive collective-bargaining representative of employ-
ees in the following appropriate bargaining unit:
All employees employed by the Respondent at its Eu-
gene, Oregon facility who are employed in the fol-
lowing job classifications: anchor, sports director, as-
sistant sports director, weatherman, reporter, producer,
news photographer/editor, newstape manager, tele-
prompter operator, maintenance supervisor, maintenance
engineer, technical director, record engineer, videotape
engineer, production coordinator, producer/director, di-
rector, production assistant, artist, EEP photographer,
account executive, national/regional salesperson, pro-
motion manager, and film director, but excluding all of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
As a result, to the extent pertinent here, Respondent was or-
dered to cease and desist from continuing to withdraw rec-
ognition from the Union and, affirmatively, to bargain in re-
sponse to the Union’s request to do so.
So far as the record in this case discloses, Respondent
complied fully with the Board’s Order. Negotiating sessions
were conducted on February 10 and 11, March 10, May 4,
August 12 and 25, and October 18, 1988. There is no allega-
tion that Respondent violated the Act in any respect regard-
ing the manner in which it conducted bargaining at those ses-
sions. The next negotiating session, after the one on October
18, 1988, was scheduled for January 30, 1989. However, 3
days before that date, Respondent notified the Union that
recognition of its representative status again was being with-
drawn. Respondent took this action on the basis of a petition,
concededly signed by a majority of the unit’s employees and
reciting that ‘‘the undersigned no longer wish to be rep-
resented by [the Union].’’
There is no allegation that Respondent acted unlawfully in
connection with the circulation of that petition. That is, it is
not alleged that Respondent assisted in its actual preparation
and circulation. Rather, the complaint alleges that the petition
was tainted by actions that Respondent undertook ‘‘without
prior notice to the Union’’ and, in one instance, without hav-
ing first proposed the subject matter to the Union during ne-
gotiations. These allegedly unlawful acts were an announce-
597KEZI, INC.
ment that Respondent intended to implement a ‘‘Cafeteria
Plan’’ health, welfare, and pension program for all employ-
ees, including those in the above-described bargaining unit;
an announcement describing the details of that plan; and, an
announcement that employees represented by the Union
would be excluded from participation in a 401K pension plan
that would be made available to all other employees em-
ployed by Respondent.
For the reasons set forth post, I conclude that Respondent
did violate Section 8(a)(1) of the Act by announcing that rep-
resented employees would be excluded from participation in
the 401K plan if their representative bargained about retire-
ment benefits. Furthermore, Respondent violated Section
8(a)(5) and (1) of the Act when it withdrew recognition from
the Union on the basis of the employee petition that was
tainted, and in fact generated, by that unlawfully announced
eligibility restriction. However, the evidence does not estab-
lish that Respondent violated the Act in any other manner al-
leged in the complaint.
B. Evidence
Chambers Communications Corp. employs over 200 em-
ployees in facilities located in several western States. Lo-
cated at Coburg Road in Eugene are its direct mail facility,
its 800-number facility, and the home offices of its cable cor-
poration, as well as the commercial television station that is
Respondent. Roughly equal numbers of unit and nonunit em-
ployees work in these operations at the Coburg Road loca-
tion. None of them have been covered recently by a pension
program. A majority of them were participating in the Select
Care Health Maintenance Organization that was available to
all employees at Coburg Road when bargaining commenced
in February 1988.
During the two bargaining sessions conducted during that
month, there was but cursory discussion of health and retire-
ment benefits. The Union proposed that the unit employees
be included in its health and retirement plans, but requested
information about the Select Care program, as well as about
a Phoenix Mutual Plan that was coming into existence. In
turn, Respondent requested information regarding the
Union’s health and retirement programs. Moreover, the nego-
tiators for Respondent announced that it was investigating
and considering instituting an employee stock option plan
(ESOP).
Apparently the information requested by the Union had
been provided by the negotiating session conducted on
March 10. At least, the Union’s principal negotiator, National
Representative Jonathan Dunn-Rankin, testified that the par-
ties began discussing the Select Care program during that
session. However, there was no discussion of the ESOP,
which Respondent was still considering, nor, so far as the
record discloses, about the Union’s health and retirement
programs. In fact, Dunn-Rankin acknowledged that by the
time of the negotiating session on May 4, 1988, he had not
obtained the information about those plans that Respondent
had requested almost 3 months earlier. As a result, at that
session, Respondent suggested that discussion of health bene-
fits be deferred. Similarly, it suggested that there be no dis-
cussion of retirement plans, because Respondent had nothing
to present regarding an ESOP.
At the negotiating session on August 12, 1988, Respond-
ent announced that it had formulated an ESOP that would be
implemented retroactively. There followed a discussion of
defined benefits versus defined contributions plans. During
the course of that discussion, 40lK plans were raised as a
topic by Dunn-Rankin, although there is no evidence regard-
ing specifically what had been said about such plans. Ac-
cording to Dunn-Rankin, he had been asked if he was drop-
ping his proposals for the Union’s health benefits and retire-
ment plans. He testified that he had replied that he would do
so if Respondent continued its health plan and included the
unit employees in any ESOP or other retirement plan that it
instituted. Bruce Liljegren, Respondent’s general manager,
testified that, from this meeting onward, it had been his un-
derstanding that the Union would go along with the benefits
provided by Respondent. Indeed, Liljegren testified, without
contradiction, that, ‘‘we had been told all along that there
was no problem with a benefit package, that, you know, the
[U]nion wanted benefits that were comparable to what other
employees had.’’
However, at the next negotiating session, on August 25,
1988, Respondent announced that it was not going to adopt
an ESOP due to certain changes that it had discovered in the
Tax Reform Act of 1986. Dunn-Rankin inquired if Respond-
ent had given any consideration to a 401K plan, but was told
that one was not being considered for various reasons, not
the least of which was that such a plan was ‘‘top heavy.’’
Liljegren acknowledged that, at this meeting, Dunn-Rankin
had said that he might have to reconsider the Union’s plans
if Respondent did not formulate a retirement plan.
The final meeting occurred on October 18, 1988. The par-
ties reviewed all proposals and counterproposals. However,
there was no particular discussion of health benefits nor of
retirement programs, so far as the evidence shows. Another
meeting was scheduled for November 22, 1988, but was can-
celed due to a conflict in the schedule of Respondent’s prin-
cipal negotiator. A date during the following month was of-
fered as an alternative, but that conflicted with Dunn-
Rankin’s schedule. As a result, the next mutually acceptable
meeting date was January 30, 1989.
Carolyn Chambers, president of Chambers Communica-
tions Corp., testified that, over time, there had been ‘‘re-
quests from employees for various and sundry things that we
didn’t provide’’ and, also, that something needed to be done
to contain medical plan costs. At a meeting of managers—
those supervising unit as well as nonunit employees—in No-
vember 1988, she announced that she was considering insti-
tuting a cafeteria benefits plan and asked for the managers’
opinions regarding how such a program would be received
by the employees. Apparently, their reactions were favorable,
for Chambers testified that during the early part of the suc-
ceeding month, Respondent investigated ‘‘what the costs and
what the various things that could be offered would be for
us and how we could put it together and just in general try-
ing to find out what could be offered and what we felt we
could handle.’’
Respondent’s annual Christmas party was conducted on
December 19, 1988. All Coburg Road employees were in-
vited to attend and, according to Liljegren, a majority of
them did so. By that date, testified Chambers, ‘‘We, in our
mind, had decided what we thought we would offer, but we
hadn’t definitively because we had not received back our in-
formation on [plan options].’’ During the party, she acknowl-
edged that she had announced to the employees that Re-
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent was working on a cafeteria plan that it planned to
implement within the next few months, early in 1989, and
‘‘that it would include the health benefits and hopefully the
long term disability and a 401K plan.’’
Called as a witness by Respondent, graphic artist Dean
McGuire testified that, while he had not been at the Christ-
mas party, this announcement became quite a topic of discus-
sion among the employees afterward,’’ because people over
the years have been wanting some change in the benefits
package that we had, and this was—appeared to be a big
change.’’ Similarly, Account Executive Jim Yocum testified
that Chambers’ announcement had generated ‘‘a lot of ex-
citement, enthusiasm. It was something that we were all ex-
cited about then.’’
Chambers testified that, at the time of her announcement,
she had known that she could not implement any plan prior
to March 1, 1989, because ‘‘we were busy in the process of
putting all these things together, and we knew that we
wouldn’t possibly have everything finally formulated until
that time.’’ However, by January 12, 1989, the situation had
progressed. For, on that date, a memorandum from her was
posted in the lunchroom at the Coburg Road facility, stating:
As announced at the Christmas party, the Company
is starting a new flexible benefits plan, more commonly
known as a cafeteria plan. This is where you select the
benefits you wish. The Company will provide a month-
ly spending allowance and you select which items you
wish to buy. Additionally, you can take advantage of a
voluntary salary reduction program so that you can
spend your pre-tax money to purchase more of these
items.
They will be as follows:
Two medical plans: A $100.00 deductible or a
$500.00 deductible. Each employee must purchase a
medical plan unless proof of coverage is presented from
another source (such as coverage by spouse).
Dental
Long Term Disability
Supplemental Life
Dependent care
401-K Pension Plan: This is a retirement type plan
and will have some matching funds from the company.
There will also be some eligibility requirements.
Yocum testified that the memorandum led to discussions
among the employees, because they did ‘‘not know what it
really meant for sure and who was eligible and who wasn’t.’’
Similarly, Janice Salvador, senior producer for the 5:30
newscast, testified that the memorandum generated, ‘‘A lot
of interest. More questions were raised because of this memo
than were answered because of the memo.’’ In fact, Liljegren
testified that because of employee questions about the ‘‘eligi-
bility requirements’’ portion of the memorandum, a second
memorandum to employees from Chambers was prepared
and posted on January 13, 1989. It recites:
Some questions have arisen as to the eligibility require-
ments for the 401K plan. The plan will exclude the fol-
lowing:
1. Employees with less than one year of service with
KEZI.
2. Employees who have not yet reached their 21st
birthday.
3. Employees who are members of a collective bar-
gaining unit with whom retirement benefits were the
subject of good-faith bargaining.
Additionally, SelectCare will continue to be offered as
a third medical plan option.
Yocum, Salvador, and McGuire each testified that the second
memorandum occasioned considerable discussion among the
employees, especially with respect to the third exclusion.
At no point did Respondent provide notice to the Union
regarding its intention to institute a cafeteria benefit plan, in-
cluding a 401K pension plan. Liljegren, the only official of
Respondent who testified concerning this particular point, ac-
knowledged that he was aware that the Union had the right
to bargain about any cafeteria plan before it could be imple-
mented for unit employees. However, he explained that he
had not felt it necessary to communicate to the Union what
he had learned at the managers’ meeting in November 1988,
because ‘‘there was no reason in my opinion to, as it was
simply a discussion item at that point.’’
In point of fact, in mid-January 1989, the Union did learn
about Respondent’s intentions. Salvador, who had been serv-
ing as Dunn-Rankin’s main contact person at Respondent,
telephoned him after she had seen the first memorandum. Al-
though he was not then available, she left a message on his
answering machine describing the memorandum. After she
saw the second memorandum, she wrote him a letter and in-
cluded with it copies of the two memoranda. After returning
her call and after receiving the copies of the memoranda on
January 19, 1989, Dunn-Rankin drafted a letter to Respond-
ent’s counsel and mailed it on January 25, 1989. Its text
reads:
It has come to my attention that the company in a
memo to its employees has announced several new
health and retirement benefits including medical, dental,
long-term disability, supplemental life, and dependent
care benefits in the health area and a 40l(k) pension
plan.
However, I further understand that these benefits are
not being extended to the members of the AFTRA bar-
gaining unit because such benefits are subject of good-
faith bargaining.
This is to request that you provide full details of
these new benefit plans being offered to employees out-
side the bargaining unit when we meet at 9:00 a.m.,
Monday, January 30, 1989, in your office.
I am also holding Tuesday, January 31 open for con-
tinued negotiations as we discussed by telephone when
we rescheduled the negotiations.
So far as the record discloses, Dunn-Rankin did not other-
wise try to contact Respondent and, most particularly, did
not protest implementation of the plans described in the
memoranda.
Meanwhile, Yocum—who had circulated the petition that
had occasioned Respondent’s withdrawal of recognition that,
in turn, led to the complaint and Board Order in 286 NLRB
1396—decided to prepare and circulate another petition with-
drawing support from the Union. He testified that he ‘‘had
599KEZI, INC.
been thinking about it for the last couple of years, ever since
the first one, and people would come up to me and say, Jim,
are you going to do another petition and this type of thing,’’
and ‘‘I just finally decided, well, things were a little bit slow
for me, you know, so I—people were asking me to get start-
ed, so I decided to go ahead and do it.’’ Although he was
motivated principally by his personal belief that representa-
tion was not necessary for the employees in his department,
Yocum acknowledged that possible exclusion from the 401K
plan was ‘‘certainly an influence there.’’ In fact, before be-
ginning to circulate the petition, he had told Salvador that he
intended to do so, explaining, she testified,
that he was concerned about being left out of a retire-
ment plan because he was a union member. He said re-
tirement was important to him, and he was angered that
management had done this. He said that he has lost
time and interest—he was the initial person responsible
for the first decertification drive. He said he has lost
time and interest to do such a thing and wanted to
know if I would be interested in decertifying, starting
a decertification petition. I said no, and at that point he
said, ‘‘well, I want a retirement plan. What is the situa-
tion with the union? Where are we at?’’ And I said
‘‘we have a meeting in a couple of weeks,’’ and he
said, ‘‘well, I’m curious to know where we stand on the
bargaining. If I don’t see any headway there, I’m going
to start a decertification plan, because I want my retire-
ment benefits.’’ I, at that point, said I’d get back to him
after I talked to Jonathan.
Salvador telephoned Dunn-Rankin and described what she
had been told by Yocum, explaining that, by that time,
Yocum was circulating the petition to oust the Union as the
employees’ representative. Dunn-Rankin told her to advise
the employees that he would be available to talk to interested
members on January 30, 1989, when he came to Eugene to
resume negotiations. After this conversation, Salvador pre-
pared an ‘‘AFTRA NOTICE’’ that she posted on January 24
or 25, 1989. That notice recites:
AFTRA Representative Jonathan Dunn-Rankin will
be in town next week Monday-Tuesday, Jan 30–31 to
meet with KEZI management and to talk with inter-
ested union members about the latest issues.
There is currently a DECERTIFICATION DRIVE
underway at KEZI. The drive was the direct result of
union members being EXCLUDED from KEZI’s 401-
K pension plan. The reason for the exclusion is union
members are bargaining for their OWN RETIREMENT
PLAN THROUGH A.F.T.R.A.
BEFORE YOU SIGN THE DECERTIFICATION
AGREEMENT get the facts.
Meet with Jonathan Dunn-Rankin at 7:00 p.m. Mon-
day, January 30th at the Lobby Bar in the Eugene Hil-
ton. Don’t blindly sign anything!
BARGAINING WILL RESUME NEXT WEEK. IF
NO PROGRESS IS MADE, WE’LL NOTIFY YOU OF
THE NEXT ACTION PLANNED BY UNION MEM-
BERS EAGER TO RECEIVE THAT LONG-AWAIT-
ED CONTRACT!
However, as noted in section III,A, supra, before the date
of the next negotiating session, a majority of the bargaining
unit employees signed Yocum’s petition. Six of the signers,
in addition to Yocum, were called as witnesses. Each one
testified that for some time he had not been interested in
continued representation by the Union. Of course, as set forth
above, some of them also testified that they had been pleased
at what had been announced at the Christmas party and in
the memoranda.
Yocum delivered the signed petition to Assistant Station
Manager Dave Larson who, in turn, informed Liljegren about
it. Once Respondent ascertained that it had been signed by
a majority of the unit employees, Liljegren notified Dunn-
Rankin that Respondent was withdrawing recognition of the
Union. When he testified, Liljegren claimed that he had
taken this action on the basis both of the petition and, also,
of statements by nonsigning unit employees to the effect that
they did not favor continued representation by the Union.
However, Liljegren did not identify these employees and no
nonsigning employee was called to corroborate his testimony
concerning these purported statements. Indeed, other than
stating that there had been ‘‘several’’ nonsigning employees
who had voiced that sentiment, Liljegren did not specify the
precise number of employees who assertedly had done so.
Moreover, in his letter to Dunn-Rankin confirming Respond-
ent’s withdrawal of recognition, Liljegren made no mention
of any basis for doing so other than receipt of the petition:
As our attorney informed you on Friday, we received
an unsolicited petition from employees in the bar-
gaining unit. A majority of the employees signed the
petition reflecting their wish that they not be rep-
resented by the American Federation of Radio and Tel-
evision Artists. Therefore, we will no longer recognize
AFTRA as the representative of our employees and will
no longer engage in collective bargaining with AFTRA.
Ultimately, the cafeteria benefits plan, including the 401K
plan, was implemented on March 1, 1989.
C. Analysis
The ultimate allegation in this case is that Respondent un-
lawfully withdrew recognition from the Union on the basis
of a petition that was tainted by prior unfair labor practices.
Where an employer engages in conduct that causes employee
disaffection from their bargaining representative,
decertification petitions will be found to have been
tainted by the employer’s unfair labor practices and the
latter, consequently, will be precluded from relying on
the tainted petition as a basis for questioning the
union’s continued majority status and withdrawing rec-
ognition from that labor organization.
Hearst Corp., 281 NLRB 764, 764 (1986). Inasmuch as there
is no evidence that Respondent engaged in the actual prepa-
ration or circulation of the petition, the penultimate question
is whether it engaged in unfair labor practices that caused
employee disaffection with the Union and thereby tainted the
petition prepared and circulated by Yocum.
To establish that Respondent did so, the General Counsel
points first to the announcement of a cafeteria benefits plan
and argues that Respondent engaged in direct dealing and
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bad-faith bargaining by announcing that plan to employees,
before notifying and according the Union an opportunity to
bargain with it. Yet, ‘‘failure to give notice to the [bar-
gaining representative] is not, in the current state of the law,
in and of itself a breach of the bargaining duty.’’ Medicenter
Mid-South Hospital, 221 NLRB 670, 677 (1975). Instead, so
long as ‘‘a union had actual notice of an employer’s inten-
tions at a time when there was sufficient opportunity to bar-
gain prior to implementation of the change, the employer
may not be faulted for failing to afford formal notification.’’
Id.
Here, there is no evidence that contradicts the testimony
that, at the time that Chambers announced the plan at the
Christmas party, she had known that the plan could not be
implemented until at least March 1, 1989—more than 2
months after that announcement. Similarly, there is no evi-
dence contradicting Liljegren’s testimony that he knew that
the Union had a right to bargain about application of the caf-
eteria plan’s benefits to unit employees. Nor is there evi-
dence showing that Respondent would have been unwilling
to bargain about application of that plan to unit employees—
at least prior to Respondent’s receipt of the employee peti-
tion that placed in issue the Union’s continued representative
status. Indeed, in his letter of January 25, 1989, Dunn-Rankin
acknowledged his understanding of Respondent’s willingness
to do so. Further, that letter, as well as Salvador’s testimony,
establishes that the Union learned of the plan in sufficient
time to bargain about it before its projected implementation
date of March 1, 1989. Consequently, viewed from the per-
spective of Chambers’ announcement in mid-December 1988,
there is no basis for concluding that Respondent had been
unwilling, nor that the Union had lacked sufficient oppor-
tunity, to bargain about the cafeteria plan before its planned
implementation date.
Of course, the foregoing doctrine of Medicenter Mid-South
Hospital, and its application in subsequent cases, arise in the
context of allegedly unlawful unilateral changes. In contrast,
Respondent’s cafeteria benefits plan announcement is alleged
to constitute direct bargaining. Yet, the ultimate allegation in
Medicenter and its progeny was a violation of Section 8(a)(5)
of the Act. In that context, the doctrines of unilateral change
and direct bargaining are closely related, since an employer’s
announcement of changed benefits can form the basis for
both theories of violation of Section 8(a)(5) of the Act. ‘‘It
is well settled that the Board may find and remedy a viola-
tion even in the absence of a specified allegation in the com-
plaint if the issue is closely connected to the subject matter
of the complaint and has been fully litigated.’’ Pergament
United Sales, 296 NLRB 333–334 (1989). In fact, the Board
displays no particular reluctance to do so. See, e.g., Adver-
tiser’s Mfg. Co., 294 NLRB 740 (1989). Given that disposi-
tion, it seems unlikely that the Board simply would have dis-
missed the 8(a)(5) allegations in those cases under the unilat-
eral change doctrine, completely ignoring the direct dealing
doctrine, if, in fact, the Board felt that the direct dealing doc-
trine could apply to the announced changes that led to litiga-
tion of those cases.
Furthermore, a review of cases involving the direct dealing
doctrine discloses that the doctrine is not applied blindly to
every situation where an employer announces wage and ben-
efit changes to represented employees. In general, as the
Board pointed out in United Technologies Corp., 274 NLRB
609, 610 (1985),
there may be some risk that direct communication be-
tween an employer and its employees which bears on
the bargaining process may be perceived by some as an
attempt to undermine the statutory collective-bargaining
representative. However, we are convinced that the ben-
efits to be derived from free, noncoercive expression far
outweigh such speculative concerns.
Thus, to conclude that direct dealing has occurred, there must
be factors present other than a simple communication from
employer to employee. ‘‘For, dealing directly with employ-
ees constitutes an attempt to undermine the Union’s status as
exclusive representative and as such cannot help but prevent
and inhibit the parties from reaching agreement.’’ Tarlas
Meat Co., 239 NLRB 1400, 1400 (1979). Accordingly, the
core issue here is whether Respondent’s announcement, in
the circumstances in which it was made, was intended, or
naturally tended, to undermine the Union’s status as the ex-
clusive representative of that portion of the employee com-
plement for whom it served as bargaining agent.
Significantly, the announced plan was not restricted to unit
employees; it applied to all of the employees of Chambers
Communications Corp. It is not disputed that its unrepre-
sented employees exceeded the number of represented ones.
Indeed, the number of unrepresented employees working at
Coburg Road was roughly equal to the number of unrepre-
sented ones. Moreover, no evidence was presented to show
that a cafeteria benefits plan had been a program particularly
desired by unit employees. True, the cafeteria benefits plan
had been formulated in response to employee requests for
benefits not provided by Respondent. But, so far as the
record discloses, represented employees had not been the
ones to approach Respondent directly regarding benefits. To
the contrary, so far as the evidence shows, the represented
employees would have had no need to approach Respondent
about their benefits, since their bargaining agent was negoti-
ating with Respondent.
It also is significant that had the announced cafeteria plan
been confined to unrepresented employees, the General
Counsel probably would have alleged, as has been done with
the 401K plan, that Respondent was depriving unit employ-
ees of benefits solely on the basis of their continued selection
of a bargaining agent. Of course, it can be argued that Re-
spondent could have escaped such a dilemma by affording
prior notice to the Union of the projected cafeteria benefits
plan. Yet, as discussed above, absence of notice prior to an
announced change is not a violation of Section 8(a)(5) of the
Act where, as here, the bargaining agent becomes aware of
the change in sufficient time to bargain, and the employer is
willing to engage in bargaining, about it.
Furthermore, absent in this case are any of a number of
factors that ordinarily accompany conclusions that unlawful
direct bargaining has occurred. For example, neither during
the Christmas party announcement nor in the memoranda did
Respondent disparage the Union or its proposals. There is no
evidence that Respondent denied that Union’s rightful role as
the represented employees’ collective-bargaining agent. Re-
spondent did not solicit represented employees’ opinions re-
garding the cafeteria benefits plan. Nor did it suggest that
601KEZI, INC.
1 At the meeting on August 25, 1988, Dunn-Rankin said that he ‘‘might’’
have to reconsider the Union’s position, and repropose the Union’s benefit and
retirement programs. However, there is no evidence that he followed through
on that statement by actually renewing his withdrawn proposals for those pro-
grams. Moreover, his possible reconsideration had been predicated upon failure
by Respondent to formulate a retirement program. Of course, the 40lK plan
was included among the benefits of the cafeteria plan and, as discussed infra,
Respondent was willing to negotiate about extending its coverage to unit em-
ployees. Accordingly, there is no basis for concluding that Respondent likely
would have anticipated objection from the Union regarding the cafeteria bene-
fits plan.
they should take action pertaining to the course of negotia-
tions or with respect to continued representation. Moreover,
the record is devoid of evidence, and the General Counsel
does not contend, that Respondent has been engaging in un-
lawful conduct during negotiations, had been seeking to alter
its bargaining relationship with the Union, had been pursing
an overall strategy to frustrate the bargaining process, or gen-
erally had been attempting to eliminate the Union as the bar-
gaining agent of the represented employees. Indeed, the
Christmas party announcement and the memoranda did not
occur in a context of surrounding unfair labor practices. In
short, there is no evidence that Respondent was seeking to
circumvent the bargaining process through its announce-
ments.
Of course, within a month of the Christmas party an-
nouncement, Yocum was circulating, and employees were
signing, a petition to eliminate the Union’s bargaining au-
thority. Yet, there is no evidence that Respondent either in-
tended or foresaw that such a course would be pursued by
any of its employees as a result of announcing the cafeteria
benefits plan. To the contrary, as shown by the testimony of
Yocum and other employees reproduced in section III,B,
supra, in fact it was not the cafeteria plan that led to circula-
tion of the petition, but rather it was generated and supported
by announcement of the restricted eligibility for participation
in the 401K pension plan.
Finally, as pointed out in section III,B, supra, it is not dis-
puted that Respondent’s negotiators had been told that the
Union sought benefits comparable to those received by Re-
spondent’s other employees.1 Obviously, that did not con-
stitute a waiver of the Union’s statutory right to bargain con-
cerning benefit programs. On the other hand, it does tend to
undermine any argument that, in announcing the cafeteria
benefit plan to employees before notifying the Union about
it, Respondent should have been aware that it was acting in
derogation of its bargaining obligation. For, the plan con-
templated the very uniformity of application sought by the
Union. Moreover, in his letter of January 25, 1989, Dunn-
Rankin voiced no protest about either the announcement or
substance of it. To the contrary, he acknowledged that he un-
derstood that Respondent stood willing to bargain regarding
application of the plan’s benefits to unit employees—an obli-
gation that Liljegren testified that Respondent understood
that it must, and had been prepared to, satisfy.
In sum, a preponderance of the evidence does not establish
that, in announcing the cafeteria benefits plan, Respondent
had been attempting to undermine the Union’s representative
status through direct communication with the employees that
it represented. Nor, in the circumstances, is that a con-
sequence that would tend naturally to flow from the par-
ticular announcement made by Respondent to its represented
and unrepresented employees. Therefore, I conclude that the
General Counsel has not established that Respondent en-
gaged in unlawful direct dealing with its employees, nor that
it engaged in bad-faith bargaining, by its announcement to
employees of a cafeteria benefits plan.
A contrary conclusion is warranted as a result of the third
exclusion from the 401K plan, set forth in the memorandum
of January 13, 1989. Underlying this issue is the potential
tension created between two basic principles. On the one
hand, ‘‘[t]he Act does not impose upon an employer the obli-
gation to grant or confer upon represented employees the
right to receive . . . benefits solely on the basis that like
benefits were conferred elsewhere.’’ B.F. Goodrich Co., 195
NLRB 914, 915 (1972). See also Shell Oil Co., 77 NLRB
1306, 1310 (1948); Chevron Oil Co., 182 NLRB 445, 449–
450 (1970). On the other hand, ‘‘an employer withholding
pay raises and/or benefits from employees who . . . have
chosen a union as their bargaining representative, has vio-
lated the Act if the employees otherwise would have been
granted the pay raises and/or benefits in the normal course
of the employer’s business.’’ Florida Steel Corp., 220 NLRB
1201, 1203 (1975), enfd. 538 F.2d 324 (4th Cir. 1976).
The Board has resorted to the bargaining process as the
vehicle for relieving whatever seeming conflict is created by
the tension between these two principles. For example, as the
Board stated in Empire Pacific Industries, 257 NLRB 1425
(1981):
Thus, where an employer grants a benefit to a group of
unrepresented employees, if the benefit is a mandatory
subject of bargaining which is not specifically covered
by the represented employees’ collective-bargaining
agreement and has not been clearly and unmistakably
waived by the union, the employer is obligated to bar-
gain with the union concerning the implementation of
this benefit for the represented employees.
As a result, an employer’s announcement of wage or benefit
improvements for only unrepresented employees does not
violate the Act, so long as represented employees are made
aware ‘‘that coverage for represented employees [is] subject
to negotiations and, thus, [does] not automatically withdraw
or completely foreclose coverage for such employees.’’
Lynn-Edwards Corp., 290 NLRB 202, 204 (1988).
That, in effect, awareness-of-represented requirement can
be satisfied either by the words, themselves, of the employ-
er’s announcement or, also, by the circumstances in which it
is made. For example, in Handleman Co., 283 NLRB 451
(1987), the employer’s ESOP encompassed, to the extent
pertinent here, only employees ‘‘not covered by a collective
bargaining agreement entered into by the Company unless
such agreement, by specific reference to the Plan, provides
for coverage under the Plan.’’ In concluding that there was
no violation of the Act, the Board pointed out that the ‘‘ex-
clusionary language . . . indicates that coverage for the [rep-
resented] employees is subject to negotiations,’’ thereby ‘‘al-
lowing the parties to agree to continued coverage or not.’’
(Id. at 452.)
An example of represented employee awareness arising
from the circumstances in which the announcement was
made occurred in A.H. Belo Corp., 285 NLRB 807 (1987).
There, the employer instituted a sick-pay plan that excluded
participation by employees covered by collective-bargaining
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contracts. However, the announcement of that plan occurred
in the context of a history of various sick-pay plans for un-
represented employees and, further, in the context of a
lengthy history of unsuccessful, though not unlawful, nego-
tiations for a similar plan for represented employees. As a
result, represented employees were aware that, ‘‘The status
quo, therefore, was that at least some of the nonunit employ-
ees had sick-pay plans, and the unit employees (who had
been represented by the Union since 1980) did not.’’ (Id. at
808.) Inasmuch as there was no allegation of bad-faith bar-
gaining concerning sick pay, and as there was no allegation
that the announcement had been used to defeat the bar-
gaining agent, the Board concluded that there was no viola-
tion of Section 8(a)(1) of the Act.
In the instant case, neither circumstance is present. With
regard to the wording of the announcement, in Handleman
Corp., supra, the announcement stated specifically that the
represented employees could be covered by the ESOP if
there was agreement to include them as a result of bar-
gaining. Similarly, in Lynn-Edwards Corp., supra—where the
ESOP, itself, provided that ‘‘no employee covered by a col-
lective bargaining agreement . . . shall become a Participant
in the Plan, provided that retirement benefits of said class of
Employees was the subject of good faith bargaining . . .,
and said Employee’s retirement benefits are being funded
pursuant to said collective bargaining agreements’’—the
Board concluded that the language was not unlawful because
it did not automatically preclude represented employees from
participation in the ESOP:
Rather, it provides that the benefits may only be termi-
nated if two conditions are met. First, retirement bene-
fits for the covered employees must be the subject of
good-faith bargaining. Second, the employees’ retire-
ment benefits must be funded pursuant to the collec-
tive-bargaining agreement. Thus, the employee’s par-
ticipation in the Respondent’s ESOP continues through-
out the negotiation process and is discontinued only in
the event that a new retirement plan is funded through
the agreement. Finally, we note that the Respondent
and the Union under this scheme maintain the option,
through good-faith negotiations, to either continue cov-
erage for employees under the Respondent’s ESOP, or
to negotiate for the substitution of a different plan,
which may include stock ownership features. [Id. at
203.]
Yet, in that very case, the Board also concluded that the
eligibility description of the ESOP in the handbook and sum-
mary plan description did violate the Act. That description
recited that eligibility for participation in the ESOP was
available to ‘‘[a]ll full-time employees, except those covered
by collective bargaining agreements.’’ The Board concluded
that, absent accompanying language specifically assuring em-
ployees of possible coverage through the bargaining process,
so terse a description suggests automatic deprivation of
ESOP participation for represented employees. In reaching
that conclusion, the Board relied upon, and thereby re-
affirmed, the rationale articulated 10 years earlier in Niagara
Wires, 240 NLRB 1326 (1979). In that case, the pension plan
language at issue recited, ‘‘To be eligible you must be em-
ployed by the Company and your employment must not be
subject to the terms of a collective-bargaining agreement.’’
In concluding that this language violated the Act, the Board
reasoned that it, ‘‘contain[s] no language regarding eligibility
other than that which automatically excluded unit employees
from coverage as soon as a collective-bargaining agreement
is negotiated on their behalf.’’ (Id. at 1328.)
So, too, in the instant case, in the memorandum of January
13, 1989, there is no language specifically assuring employ-
ees of possible coverage under whatever collective-bar-
gaining contract Respondent negotiates with the representa-
tive of those who have, or do in the future, select a bar-
gaining agent. Moreover, unlike unrepresented employees,
there is no assurance that represented employees would, or
will, be covered by the 401K plan while bargaining is in
progress. To the contrary, the memorandum’s language is
virtually the same as that found unlawful in Niagara Wires
and in Lynn-Edwards Corp. The only effective difference is
that in those cases, the plans cut off coverage for employees
where a collective-bargaining contract existed. Respondent’s
restriction advances the exclusion by a step, for represented
employees are excluded once bargaining about retirement
benefits occurs, regardless of whether or not a contract is
achieved and, indeed, regardless of whether or not agreement
is reached at all on the terms for a retirement program.
Of course, in her notice posted on January 24 or 25, 1989,
Salvador told represented employees that they were being ex-
cluded from the 401K plan because the Union was bar-
gaining for its own plan. However, that statement cannot
serve as a repudiation or clarification of the exclusion in the
memorandum posted by Respondent almost 2 weeks earlier.
Salvador was not an official of Respondent. There is no evi-
dence that employees would have believed that she had spe-
cial access to information concerning Respondent’s inten-
tions. So far as the employees were concerned, her state-
ments merely were her own opinion. Moreover, Salvador’s
announcement hardly serves to cure the unlawful aspect of
the eligibility restriction in Respondent’s memorandum of
January 13, 1989. For, it does no more than tell the rep-
resented employees that they are being excluded from 401K
plan coverage solely because their bargaining agent has cho-
sen to bargain for its own retirement plan. It does not assure
the employees that coverage under Respondent’s 401K plan
can be the subject of negotiation. Yet, that ‘‘distinction is a
critical one.’’ Handleman Co., supra.
The coercive impact of the eligibility restriction is not nul-
lified or mitigated by Respondent’s actual intention to bar-
gain about inclusion of the represented employees in the
401K plan. Nor, for that matter, is it nullified by Dunn-
Rankin’s letter of January 25, 1989, in which he stated that
he understood that Respondent intended to bargain about in-
clusion of those employees. Of course, in the absence of any
evidence that Respondent actually refused to bargain about
inclusion of represented employees in the 401K plan—at
least, before the Union’s majority status was put in issue—
there is no basis, under principles similar to those governing
disposition of the cafeteria benefits plan, for concluding that
Respondent violated Section 8(a)(5) of the Act merely be-
cause it announced its intent to institute a 401K plan before
notifying the Union of that intention. However, there is no
evidence that Respondent divulged to employees its actual
intention to bargain with the Union about possible inclusion
of represented employees in that plan. Nor is there evidence
603KEZI, INC.
that Dunn-Rankin’s understanding of that intention was dis-
closed to the employees. Accordingly, it cannot be said that
Respondent’s undisclosed intention, and Dunn-Rankin’s un-
derstanding of it, generated employee awareness that nul-
lified the coercive impact of the third eligibility restriction
announced in the memorandum of January 13, 1989. Cf.
Dallas Morning News, supra.
In sum, although an employer is not obliged to extend to
represented employees benefit improvements accorded to un-
represented ones, neither can it deprive represented employ-
ees of otherwise employerwide benefit improvements simply
because they have chosen to be represented. Here, Respond-
ent’s employees were told only that if they chose representa-
tion, or continued representation, and if their representative
chose to bargain about retirement benefits, then they would
be excluded from coverage under Respondent’s 401K pen-
sion plan. In so doing, Respondent interfered with, re-
strained, and coerced its employees in the exercise of their
rights to become represented, and to bargain collectively
through that representative, thereby violating Section 8(a)(1)
of the Act.
As set forth above, in withdrawing recognition from an in-
cumbent representative, employers are precluded from rely-
ing upon decertification petitions tainted by unfair labor
practices. Here, as the testimony described in section III,B,
supra, discloses, the petition withdrawing employee support
for the Union was prepared and circulated as a direct result
of Respondent’s memorandum announcing that represented
employees would be excluded from participation in the 401K
plan. No clearer illustration of that fact could exist than
Yocum’s remarks to Salvador. In fact, the petition was not
prepared and circulated until after Respondent had an-
nounced the eligibility restrictions on participation in the
401K plan. True, the implication of some employees’ testi-
mony was that the announced restriction did not influence
their decision to sign the petition, because they did not desire
representation by the Union—and had not desired it for a
long time. Yet, the number of employees who so testified
were but a small fraction of those who had signed Yocum’s
petition. An employer cannot evade the natural consequences
of its unfair labor practices simply because a relative handful
of employees may not have been actually coerced by what
was said to them by that employer. Not only would such an
approach destroy uniform application of legal principles by
making their application contingent upon the reaction of each
employee-listener, it also would generate the very type of
‘‘needless and unreliable inquiry’’ that the Supreme Court
cautioned against with respect to scrutinizing employees’
motives for signing authorization cards in NLRB v. Gissel
Packing Co., 395 U.S. 575, 608 (1969).
As set forth in section III,B, supra, despite the vague testi-
mony that, in deciding to withdraw recognition, Liljegren
had relied upon nonpetition-signers’ expressions of dis-
satisfaction with the Union, the evidence shows that, as re-
cited in his letter to Dunn-Rankin, Liljegren withdrew rec-
ognition solely on the basis of the petition prepared and cir-
culated by Yocum. Because of its prior unfair labor practice,
and the direct effect of that unfair labor practice on the prep-
aration and circulation of the petition, Respondent was pre-
cluded from relying on that petition as a basis for with-
drawing recognition from the Union. Therefore, I conclude
that in doing so, Respondent violated Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
KEZI, Inc., a subsidiary of Chambers Communications
Corp. committed unfair labor practices affecting commerce
by announcing that excluded from eligibility in its 401K pen-
sion plan would be ‘‘Employees who are members of a col-
lective-bargaining unit with whom retirement benefits were
the subject of good faith bargaining,’’ in violation of Section
8(a)(1) of the Act, and by thereafter withdrawing recognition
from American Federation of Television and Radio Artists,
AFL–CIO, as the representative of employees in an appro-
priate bargaining unit, in violation of Section 8(a)(5) and (1)
of the Act, but did not violate the Act in any other respect
alleged in the complaint.
REMEDY
Having found that KEZI, Inc., a subsidiary of Chambers
Communications Corp. engaged in certain unfair labor prac-
tices, I shall recommend that it be ordered to cease and de-
sist therefrom and, further, that it be ordered to take certain
affirmative action to effectuate the policies of the Act. With
respect to the latter, it shall be ordered to amend any existing
documents describing its 401K pension plan so as to elimi-
nate therefrom any language which indicates that employees
are excluded automatically from coverage if they are mem-
bers of a collective-bargaining unit for which retirement ben-
efits were the subject of good-faith bargaining. In addition,
it shall be ordered to recognize and bargain with American
Federation of Television and Radio Artists, AFL–CIO, as the
representative of employees in the appropriate bargaining
unit.
[Recommended Order omitted from publication.]