KFMB Stations

National Labor Relations Board - Board Decisions

Nov 23, 2004

343 N.L.R.B. 748 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 83
748
Midwest Television, Inc., d/b/a KFMB Stations and
Harry Clement. Case 21–CA–32858
November 23, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On May 4, 2001, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, the General
Counsel and the Respondent filed answering briefs, and
the Respondent filed a reply brief to the General Coun-
sel’s answering brief.
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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
only to the extent consistent with this Decision and Or-
der.
We agree with the judge, contrary to our dissenting
colleague, that the Respondent did not violate Section
8(a)(5) of the Act either by reducing employee Harry
Clement’s above-scale salary to the contractual rate or by
insisting to impasse on a permissive subject of bargain-

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We agree with the judge’s finding that the Union’s withdrawal of
its 8(a)(5) charges, pursuant to a non-Board settlement with the Re-
spondent, did not preclude the Board from proceeding on the Sec.
8(a)(3) and (5) charge Clement subsequently filed in this case. In
adopting, we rely on Auto Bus, Inc., 293 NLRB 855, 856 (1989), in
which the Board reaffirmed its policy that where, pursuant to a non-
Board settlement, unfair labor practice charges are withdrawn with the
Regional Director’s approval, the Regional Director is not estopped
“from proceeding on any new charges alleging the same conduct as the
withdrawn charges.” (Footnote omitted.) We stress that the Regional
Director did not sign or approve the non-Board settlement agreement,
which was a private matter between the parties. See Quinn Co., 273
NLRB 795 (1984), cited in Auto Bus, supra. In any event, Clement
himself was not a party to that settlement. We further note that the
judge’s citation to Independent Stave Co., 287 NLRB 740, 743 (1987),
in discussing this issue is inapposite. In Independent Stave, the issue
presented was whether the Board would grant a party’s Motion for
Summary Judgment on unfair labor practice charges in deference to a
non-Board settlement agreement. The case did not address whether a
Regional Director’s approval of a non-Board settlement would preclude
the Regional Director from proceeding on new charges, filed by an
individual who was not a party to the non-Board settlement, based on
the same underlying conduct.
ing. For the reasons stated below, we find merit in the
Respondent’s exceptions to the judge’s further findings
that the Respondent violated Section 8(a)(1) of the Act
by soliciting the decertification of the Union and violated
Section 8(a)(3) by reducing Clement’s wages to union
scale and by constructively discharging Clement based
on his pay reduction. Accordingly, we reverse the viola-
tions found by the judge and dismiss the instant com-
plaint.
I. THE “CLOSELY RELATED” ISSUE
The judge found that the Respondent violated Section
8(a)(1) when its president, Edward Trimble, solicited
Clement in February 1998 to initiate the Union’s decerti-
fication. The Respondent argues that this solicitation
allegation is time barred by Section 10(b) of the Act be-
cause it is neither contained in Clement’s unfair labor
practice charge nor closely related to any allegations con-
tained in that charge. We agree.
On July 15, 1998, Clement filed his original charge al-
leging that the Respondent violated Section 8(a)(3) of the
Act by “unlawfully reducing [his] compensation” and by
constructively discharging him. Clement filed his first
amended charge on July 27, 1999, alleging that the Re-
spondent’s treatment of him and its conduct during bar-
gaining violated Section 8(a)(3) and (5). Neither the
original charge nor the first amended charged included
any independent 8(a)(1) allegation. Nonetheless, the
complaint specifically alleged that the Respondent vio-
lated Section 8(a)(1) by soliciting employees to resign
from the Union.
In Redd-I, Inc., 290 NLRB 1115, 1118 (1988), reaf-
firmed in Nickles Bakery of Indiana, 296 NLRB 927, 928
(1989), the Board set forth the following three factors for
determining whether allegations that would otherwise be
untimely can be included in a complaint based on their
close relationship to the allegations in a timely filed
charge: (1) whether the untimely allegation involves the
same legal theory as the allegation in the timely charge;
(2) whether the allegations arise from the same factual
situation or sequence of events; and (3) whether the re-
spondent would raise similar defenses to both allega-
tions. The allegation relating to Trimble’s solicitation
does not involve the same legal theory as the allegations
in the charge and amended charge. Clement’s charge
and amended charge allege violations of different sec-
tions of the Act and are based on different legal theories
than Trimble’s alleged 8(a)(1) solicitation. The factual
situations are also distinct. The 8(a)(5) allegations in the
charge concern the Respondent’s conduct during contract
negotiations, while the 8(a)(3) charge allegation relates
to Respondent’s treatment of Clement in reducing his
wages. By contrast, the complaint allegation involves
KFMB STATIONS 749
whether conduct relating to efforts to decertify the Union
interfered with employee Section 7 rights in violation of
Section 8(a)(1). Finally, the Respondent’s defense of
this complaint allegation would require it to raise differ-
ent arguments (that is, whether certain conduct occurred
and whether it tended to interfere with employee rights)
from those involved in defending against allegations in
the charge and amended charge relating to its duty to
bargain and refrain from discrimination, with considera-
tion of motivation.
We, therefore, conclude that the complaint allegation
that the Respondent violated Section 8(a)(1) by soliciting
the Union’s decertification does not meet the Redd-I test.
Thus, Section 10(b) precludes the Board from consider-
ing this issue.4
II. THE 8(A)(3) ALLEGATIONS
A. Facts
The Respondent and the Union have been parties to a
series of collective-bargaining agreements covering all
the Respondent’s on-air television and radio personalities
for over 50 years. The most recent collective-bargaining
agreements were effective from February 1, 1994,
through January 31, 1997,5 and from March 1998 until
July 2001. All relevant contracts between the Respon-
dent and the Union set forth minimum terms and condi-
tions of employment for the unit employees, but also
expressly permitted the Respondent to deal directly with
individual employees in negotiating personal service
contracts (PSCs) that could provide for wages and/or
benefits greater than the contractual minimum.
Clement, a television studio news anchor, worked for
the Respondent from October 1979 through February
1998. His most recent PSC was effective from July 17,
1994, through January 31, 1998, and provided for annual
compensation of $225,000, $235,000, and $250,000,
respectively, during each of the 3 years of the contract.
As a union member, Clement engaged in various union
activities, including attending union meetings and a late
1997 bargaining session.
Upon expiration of the 1994–1997 agreement, the Un-
ion withdrew permission for the Respondent to deal di-
rectly “with new bargaining unit employees or current
employees not signed to a . . . PSC.” The Union was
attempting to exert pressure on the Respondent to agree
to a successor contract by eliminating the Respondent’s
ability to hire and retain experienced on-air talent. By

4 See generally Chariot Marine Fabricators Corp., 335 NLRB 339,
342–343 (2001).
5 By mutual agreement, the parties extended this contract until Feb-
ruary 28, 1997.
letter dated March 17, 1997,6 the Respondent informed
the Union that it intended to declare a bargaining im-
passe unless the Union accepted its final offer by March
24. The Respondent claimed that the Union’s refusal to
allow it to negotiate PSCs was “without precedent in our
industry and we believe that this negotiating ploy will
backfire against [the Union] and cause discontent among
your members.” In response, the Union notified the Re-
spondent that it would allow the Respondent to “direct
deal” with any of its current employees whose PSC ne-
gotiations began before March 6.
After the Respondent implemented its final offer on
April 6, the Union filed an unfair labor practice charge
against the Respondent alleging 8(a)(5) violations. By
letter dated May 29, the Respondent informed the Union
that, “in accordance with your restrictions, those em-
ployees who currently have [PSCs] will be adjusted to
scale upon the expiration of their [PSCs].”
In late September or early October, Clement discussed
with the Respondent’s news director, Fred D’Ambrosi,
possible terms for a new PSC to replace Clement’s con-
tract expiring in January 1998. Clement made a written
proposal seeking annual salary figures of $300,000,
$315,000, and $330,000, respectively, for a new 3-year
PSC. Clement also requested that the PSC provide an
annual clothing allowance of $3500, and relieve himself
of working Thanksgiving, Christmas, or early morning
shifts, as well as taking any helicopter rides. D’Ambrosi
replied that the Respondent’s president, Trimble, would
have to approve it. The next day, Trimble told Clement
that it “looks like we have a deal.” On October 14, the
Respondent’s attorney prepared a new PSC for Clement,
who rejected it because the agreement did not include
either the clothing allowance or the other restrictions
described above. D’Ambrosi claimed that he had forgot-
ten to mention these items to Trimble. On October 29,
the Respondent informed the Union that, based on the
Union’s opposition to its direct dealing with prospective
new hires, the Respondent would not directly negotiate
any new PSCs or other above-scale compensation with
existing employees. The Respondent subsequently told
the Union, on November 3, that it had rejected Clement’s
counteroffer to its PSC proposal and that its own PSC
proposal was no longer open for Clement’s acceptance.
On November 14, Trimble told Clement that the Re-
spondent had decided to eliminate direct dealing because
of the union negotiations.
Meanwhile, in September 1997, the Respondent
reached agreement with television reporters Kathy Chin
and Colleen Rudy on successor PSCs. Both Chin and

6 All dates are in 1997, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD750
Rudy subsequently claimed that the Respondent had
made errors in calculating the annual salaries set forth in
their respective multiyear agreements based on cost-of-
living raises provided for by the then-existing collective-
bargaining agreement. After reviewing Chin’s and
Rudy’s assertions, D’Ambrosi agreed with the employ-
ees and made the appropriate changes. The Respondent
signed the final PSCs for both Chin and Rudy after it
decided that it would no longer enter into such agree-
ments pending the outcome of negotiations.
D’Ambrosi testified that, about this time, a television
reporter named Kevin Cox tentatively agreed to a new
PSC. The Respondent then announced that it would no
longer negotiate PSCs before Cox returned the signed
copy. When Cox subsequently questioned D’Ambrosi
about one of its terms, D’Ambrosi said that Cox would
have to wait until after the Respondent resolved the un-
ion issues if he wanted to change anything. Cox exe-
cuted the PSC without any changes. Although not dis-
cussed by the judge, D’Ambrosi also testified that, dur-
ing this period, he had a discussion with the agent for
employee Ronnie Loaiza about the renewal of her PSC.
D’Ambrosi said that the Respondent did not renew
Loaiza’s contract because Trimble told him the Respon-
dent was discontinuing PSC negotiations for all employ-
ees until there was a new collective-bargaining agree-
ment.
On December 8, the Union gave the Respondent per-
mission to negotiate PSCs with both new and existing
employees. The Respondent asked the Union, on De-
cember 9, whether it would agree not to revoke permis-
sion for the Respondent to deal directly with employees
in the future and to withdraw its unfair labor practice
charges. That same day, the Union declined to withdraw
its Board charges and indicated that it had no intention of
withdrawing PSC authority, but was “not willing to state
that sometime in the distant future, we will never with-
draw that permission.” On December 12, the Respon-
dent claimed that the Union’s gesture of goodwill was
meaningless so long as the Union retained the power to
withdraw PSC authority. The Respondent also informed
the Union that, unless the parties agreed on a new con-
tract or reached a bargaining impasse: “[A]ll employees
who have Personal Service Contracts will be lowered to
scale upon the expiration of their Personal Service Con-
tract.”
On January 15, 1998,7 the Respondent notified Clem-
ent that his salary would be reduced to scale (about
$52,000) on expiration of his PSC on January 31. On
January 23, the Respondent reiterated to the Union its

7 All subsequent dates are in 1998, unless otherwise noted.
intention to reduce the salaries of Clement and 19 other
employees, who did not have PSCs, to union scale.
Thereafter, the Respondent reduced Clement’s salary to
scale on February 1. After telling Trimble that he could
not afford to work for the Respondent at union scale,
Clement submitted his resignation on February 19. On
February 24, Clement began working under a 2-year con-
tract for another television station.
On March 1, the Respondent reduced to scale the sala-
ries of the 19 employees who were working for above-
scale compensation without individual PSCs.
The Respondent and the Union subsequently agreed to
a new 3-year collective-bargaining agreement on March
20. The Respondent offered to reinstate Clement at his
former above-scale salary, but Clement declined based
on his PSC with the new employer.
B. Judge’s Decision
The judge found that the Respondent violated Section
8(a)(3) by reducing Clement’s salary, by engaging in
conduct inherently destructive of the Act when it reduced
Clement’s pay, and by constructively discharging Clem-
ent. Because Clement was a high-profile employee as a
television news anchor, the judge agreed with the Gen-
eral Counsel’s assertion that the Respondent was sending
“a message to all bargaining unit employees designed to
chill union support and thereby engaged in conduct in-
herently destructive of employee rights.” She found that
Clement was treated disparately from employees Chin,
Rudy, and Cox, whose PSCs the Respondent finalized at
the same time that it ceased negotiations with Clement.
While noting that no evidence existed to establish that
the Respondent discriminated against Clement because
of his individual union activities, the judge nonetheless
concluded that the Respondent was not free to single out
Clement as an example to bring pressure on the Union.
She concluded that the Respondent’s treatment of Clem-
ent was inherently destructive of the Act under NLRB v.
Great Dane Trailers, 388 U.S. 26, 33 (1967), and, thus,
violated Section 8(a)(3) because it had a “far reaching
effect” hindering future collective bargaining and created
the impression in the minds of employees that collective
bargaining was an act of futility. Finally, the judge con-
cluded that the Respondent’s reduction of Clement’s
salary to scale amounted to his constructive discharge, in
violation of Section 8(a)(3).
C. Discussion
Contrary to the judge, we do not find that the Respon-
dent violated Section 8(a)(3) by reducing Clement’s pay
to union scale, or that it constructively discharged him.
The resolution of these issues turns on the employer’s
motivation. To prove a violation of Section 8(a)(3) and
KFMB STATIONS 751
(1) under our decision in Wright Line,8 the General
Counsel must first prove, by a preponderance of the evi-
dence, that the employee’s protected conduct was a sub-
stantial or motivating factor in the employer’s adverse
action.9 Thus, the General Counsel must offer evidence
that the employer was aware of the employee’s protected
activity, and that animus against the protected activity
motivated the employer’s alleged discrimination.10 Once
the General Counsel makes a showing of discriminatory
motivation by proving the employee’s prounion activity,
employer knowledge of the prounion activity, and ani-
mus against the employee’s protected conduct, the bur-
den “shift[s] to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct.” Wright Line, supra, 251
NLRB at 1089.11
In this case, we find that the General Counsel has
failed to meet the initial burden of demonstrating that the
Respondent’s alleged discrimination was motivated by
Clement’s Section 7 activities. The record shows that,
although Clement was a union member and attended un-
ion meetings, he did not engage in any union activities
beyond general membership participation. Indeed, there
is evidence that Clement tried to decertify the Union after
the Respondent reduced his salary. Thus, even accepting
the judge’s finding that the Respondent was making an
example of Clement as a highly paid news anchor, noth-
ing in this case links the Respondent’s adverse action in
reducing his pay to Clement’s union or other Section 7
activity. Simply put, the General Counsel has failed to
establish any connection between the reduction in Clem-
ent’s pay and his union activity.
Furthermore, we disagree with the judge’s finding that
the General Counsel has established animus here by
showing that the Respondent subjected Clement to dispa-
rate treatment in this case. In finding such animus, the
judge relied in part on the evidence that the Respondent

8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
9 Manno Electric, Inc., 321 NLRB 278, 280 (1996).
10 Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. mem. 988
F.2d 120 (9th Cir. 1993).
11 Regarding the Wright Line analysis, Member Schaumber notes
that the General Counsel’s initial burden of showing discriminatory
motivation involves proving the employee’s union activity, employer
knowledge of the union activity, and animus against the employee’s
protected conduct. The Board and circuit courts of appeals have vari-
ously described the evidentiary elements of the General Counsel’s
initial burden of proof under Wright Line, sometimes adding as a fourth
element, what is otherwise inferred under the Wright Line analysis, the
necessity for there to be a causal nexus between the union animus (i.e.,
Sec. 7 animus) and the adverse employment action. See, e.g., Ameri-
can Gardens Management Co., 338 NLRB 644, 645 (2002). As stated
in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), Member
Schaumber agrees with this addition to the formulation.
executed PSCs with employees Rudy and Chin after it
informed the Union, on October 26, that it would not
negotiate any new PSCs or other above-scale compensa-
tion with existing employees. We find that the timing of
events relating to their new PSCs was different than the
circumstances of the Respondent’s negotiations with
Clement. The evidence shows that the negotiations with
Rudy and Chin concluded in September before the Re-
spondent ceased dealing directly with employees. Al-
though the Respondent subsequently corrected arithmeti-
cal mistakes in the annual cost-of-living adjustments set
forth in both employees’ contracts, these changes did not
constitute additional negotiations between the parties.
Rather, they simply provided an accurate reflection of the
agreement the parties had already reached. By contrast,
in Clement’s situation, the parties had not reached
agreement on the final terms of his PSC. Because Clem-
ent did not accept the Respondent’s contract offer of Oc-
tober 14, Trimble’s comment on the Respondent’s be-
half, that it “looks like we have a deal,” proved to be
erroneous. Clement instead made a counterproposal that
included his demands for an annual clothing allowance
and restrictions on performing certain duties. It does not
appear that the Respondent’s failure to include these
items in Clement’s PSC renewal was simply an inadver-
tent mistake because D’Ambrosi admitted that he had
failed to mention to Trimble, the station manager, the
additional items desired by Clement. Nonetheless, we
conclude on these facts that the General Counsel has not
sufficiently demonstrated animus.
Regarding negotiations with employee Cox, we reject
the judge’s finding that the Respondent afforded him
more favorable treatment than Clement received. There
is scant evidence as to the precise timing of the Cox ne-
gotiations, but it appears that the Respondent offered this
employee a new PSC before the date that it terminated all
such negotiations. By the time Cox raised questions
about certain terms of the agreement, the Respondent’s
ban on PSC negotiations had gone into effect and
D’Ambrosi warned Cox that any alteration in the terms
of the Respondent’s proposal would foreclose execution
of the agreement. Contrary to the judge’s finding, the
Respondent could not have given Clement a similar
warning about the consequences of seeking additional
individual benefits because the Respondent had not yet
implemented its ban on direct dealing with employees.
We find that the timing and sequence of events, and not
disparate treatment, distinguish the Respondent’s treat-
ment of employees Cox and Clement. The evidence that
the Respondent refused to negotiate a new PSC with em-
ployee Loaiza also supports our finding regarding the
General Counsel’s failure of proof on this issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD752
For these reasons, we conclude that the examples of
purported disparate treatment the General Counsel pre-
sented do not establish that any discrimination occurred
when the Respondent reduced Clement’s salary to union
scale on February 1. We also stress that the record dis-
closes that his PSC was the first such agreement to expire
after the Respondent imposed its prohibition on direct
dealing with employees. Further, only 1 month later, as
the Respondent had indicated it would, the Respondent
reduced to scale the wages of 19 other employees who
were working without individual PSCs. It is clear that
the Respondent could not have legitimately reduced the
salaries of other employees working for above-scale
wages until the expiration dates of their respective PSCs.
Contrary to the judge, we also do not find that the re-
duction in Clement’s salary to union scale was inherently
destructive of the Act. Section 8(a)(3) has two basic
elements: (1) discrimination and (2) motive to discourage
or encourage union activity. In NLRB v. Great Dane
Trailers, supra, the Supreme Court set forth guidelines
for assessing employer motivation in the context of as-
serted 8(a)(3) violations where discrimination was
shown. Specifically, the Court explained that there are
two categories of discriminatory conduct which, depend-
ing on the nature of their impact on employee rights,
require a different analysis in assessing employer moti-
vation. Under this framework, if an action is deemed
inherently destructive of employee rights, antiunion mo-
tivation is inferred and the conduct may be found unlaw-
ful, whether or not such conduct was based on business
considerations. However, if the action is deemed to have
only a comparatively slight impact on employee rights,
an affirmative showing of antiunion motive must be
made to sustain a violation, if the employer has first
come forward with evidence of a legitimate and substan-
tial business justification for its conduct. 388 U.S. at 34.
Based on the General Counsel’s failure to establish
discrimination here, as discussed above, it is unnecessary
to analyze this case in terms of the Court’s discussion of
conduct that is “inherently destructive” versus conduct
that has only a “comparatively slight” impact on em-
ployee rights. Nonetheless, even assuming, without de-
ciding, that the Respondent subjected Clement to dispa-
rate treatment in reducing his salary, we reject the
judge’s finding that the Respondent’s conduct was inher-
ently destructive because it was likely to have far reach-
ing effects and discourage collective bargaining by mak-
ing it seem like an exercise in futility. It is clear that the
Respondent’s strategy in reducing Clement’s pay was
only a temporary one, in effect only until the Respondent
reached a new contract with the Union. Furthermore,
contrary to the judge’s reasoning, the Respondent’s bar-
gaining strategy, similar to the Union’s, was not designed
to demonstrate the futility of bargaining, but rather to
pressure the Union into agreement on a new contract
containing the direct dealing provision that both sides
knew was indispensable to their interests. We, therefore,
conclude that the Respondent’s treatment of Clement had
at most a “comparatively slight” impact on employee
Section 7 rights, under the second element of the Great
Dane test, and that it was outweighed by the Respon-
dent’s need to operate its business.12 In sum, we find that
the Respondent’s treatment of Clement was neither dis-
criminatory nor “inherently destructive” of employee
rights under Section 7 of the Act.
For these reasons, we find that the Respondent’s re-
duction in the salaries of Clement and 19 other employ-
ees constituted a legitimate bargaining tactic that did not
violate Section 8(a)(3) in any respect. Because the Re-
spondent’s treatment of Clement was lawful, it follows
that the Respondent could not have constructively dis-
charged him by reducing his salary. Accordingly, we
dismiss the Section 8(a)(3) allegations of the complaint
in their entirety.
III. THE 8(A)(5) ALLEGATIONS
Board precedent establishes, as the dissent concedes,
that an employer’s right to deal directly with unit em-
ployees and establish above-scale wages is a permissive
subject of collective bargaining.13 Here, the parties’ ex-
pired collective-bargaining agreement explicitly author-
ized the Respondent to deal directly with the unit em-
ployees and negotiate PSCs providing for above-scale
wages. We agree with the judge that during negotiations
for a successor agreement, both sides possessed the right
to make contract proposals relating to the subject of di-
rect dealing. Nonetheless, as the judge found, these pro-
posals remained permissive subjects of bargaining and
no party could lawfully insist to impasse on their inclu-
sion in the final agreement.14 In Chemical Workers Lo-
cal 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 183–
186 (1971), the Supreme Court specifically held that
parties to a collective-bargaining agreement can unilater-
ally rescind permissive terms of the contract at any time
without violating Section 8(a)(5) of the Act. It follows
that, by reducing Clement’s salary to scale on the expira-
tion of his PSC in early 1998, the Respondent’s action

12 See generally Walton & Co., 334 NLRB 780, 784 (2001) (dis-
crimination that has a “comparatively slight” impact on employees’
Sec. 7 rights is not inherently destructive of such rights).
13 KJEO-TV, 324 NLRB 138, 143–144 (1997), enfd. 172 F.3d 660
(1999).
14 Taft Broadcasting Co., 274 NLRB 260, 261 (1985).
KFMB STATIONS 753
constituted a lawful modification of permissive contract
terms under Pittsburgh Plate Glass, supra.15
We further conclude, for the reasons stated by the
judge, that the Respondent also did not violate Section
8(a)(5) by insisting to impasse on retaining the permis-
sive right to deal directly with the unit employees regard-
ing above-scale wages. As the judge found, the Union’s
effort to restrict the Respondent’s right to pay above-
scale wages to new employees during contract negotia-
tions, and the Respondent’s conduct in reducing Clem-
ent’s pay to scale, constituted lawful economic pressure
utilized by both sides as each attempted to achieve a fa-
vorable contractual agreement or to reach a bargaining
impasse. Both the Respondent and the Union sought to
include a permissive clause in their final agreement per-
mitting the Respondent’s continued direct dealing with
selected employees.
Reaching a contrary result, the dissent mistakenly con-
fuses the process of setting above-scale wages through
direct dealing, a permissive subject, with the actual wage
rates themselves, a mandatory subject of bargaining. The
provision permitting negotiation of higher rates through
dealing direct is merely a permissive subject, which ei-
ther party may rescind at any time. Our colleague relies
on cases, including Teamsters Local 24 v. Oliver, 358
U.S. 283 (1959), and Technicolor Government Services
v. NLRB, 739 F.2d 323 (8th Cir. 1984), enfg. 268 NLRB
258 (1983), for his position that certain contractual pro-
visions affecting the entire bargaining unit have such a
direct impact on the unit employees’ wages that they
constitute mandatory subjects of bargaining. Those
cases, however, are distinguishable. Both the contractual
lease restrictions on truckdrivers in Teamsters Local 24
v. Oliver, supra, and the employer’s change in policy in
Technicolor Government Services, supra (which dimin-
ished the use of leadmen earning higher contractual
wages), were found to constitute, in effect, wage setting
provisions. Thus, the Board properly found them to be
mandatory subjects of bargaining because they had a
direct impact on the mandatory subject of unit employ-
ees’ earnings. Here, the only impact of the Respondent’s
actions is on the permissive subject of direct dealing to
establish above-scale wages. We, therefore, reject the
dissent’s assertion that Clement’s above-scale wages
established through direct negotiations automatically
became a mandatory subject of bargaining that the Re-
spondent could not unilaterally change upon contract
expiration.
In short, the contractual provision permitting the Re-
spondent to negotiate above scale wages directly with

15 See Hope Electric Corp., 339 NLRB 933 (2003).
selected employees is a permissive subject of bargaining.
Our colleague improperly concludes that the relationship
between the Respondent’s direct dealings and employ-
ees’ wages transforms the provision allowing such nego-
tiations into a mandatory subject of bargaining. To the
contrary, we reiterate that, given the permissive nature of
the direct dealing provision, the Respondent had the right
under the Act to unilaterally reduce the wages of em-
ployees working under PSCs to union scale at any time,
during the term of the contract or thereafter, pursuant to
Pittsburgh Plate Glass, supra. As the judge stated at
footnote 29 of his decision, that the Respondent reduced
Clements’ wages under the PSC after discussion or “ne-
gotiation” with him did not confer statutory bargaining
rights on the employee or alter the permissive nature of
the direct dealing.
Thus, contrary to our colleague, we find no merit to
the 8(a)(5) allegations of the complaint. We, therefore,
dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
MEMBER WALSH, dissenting in part.
The evidence in this proceeding fully supports finding
that the Respondent violated Section 8(a)(5) of the Act
by unilaterally reducing employee Harry (Hal) Clement’s
above-scale salary, a wage topic that is a mandatory sub-
ject of bargaining. The majority errs in dismissing this
complaint allegation.1
Section 8(d) of the Act defines the scope of the duty to
bargain collectively as encompassing “wages, hours, and
other terms and conditions of employment.” The Su-
preme Court established in NLRB v. Borg-Warner Corp.,
356 U.S. 342 (1958), that mandatory subjects of bargain-
ing are those designated in Section 8(d). 356 U.S. at
348–349. It is, thus, axiomatic that wages constitute a
mandatory subject of bargaining.2 Nonmandatory or
permissive subjects of bargaining are those not involving
wages, hours, or other terms and conditions of employ-
ment under Section 8(d).

1 I join the majority decision in all other respects, including the dis-
missal of the allegation that the reduction in Clement’s pay violated
Sec. 8(a)(3) of the Act. In light of the finding, supra, that Clement was
not treated disparately, I find it unnecessary to address—as does the
majority in assuming arguendo disparate treatment—the alternative
theory that the reduction was inherently destructive of employee rights
under NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). The Great
Dane analysis is inapplicable if the employer conduct did not even have
a “comparatively slight” impact on employee rights and would not even
“have adversely affected employee rights to some extent.” 388 U.S. at
34.
2 See, e.g., Columbia University, 298 NLRB 941 (1990) (“wages are
undeniably a mandatory subject of bargaining”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD754
The distinction is of particular significance in this case
as it implicates the parties’ bargaining obligation upon
expiration of their collective-bargaining agreement and—
as here—before the parties had instituted a successor
agreement. When a collective-bargaining agreement
expires, an employer may not alter terms and conditions
of employment of the expired contract that involve man-
datory subjects until it has bargained to a good-faith im-
passe over new terms. NLRB v. Katz, 369 U.S. 736
(1962). Thus, a “unilateral change of an expired provi-
sion on a mandatory topic, such as one involving wages,
is an unfair labor practice, as it violates the duty to bar-
gain collectively in good faith.” Silverman v. Major
League Baseball Player Relations Committee
(MLBPRC), 880 F.Supp. 246, 253 (S.D.N.Y. 1995), affd.
67 F.3d 1054 (2d Cir. 1995). That is precisely the viola-
tion the Respondent committed here by unilaterally re-
ducing Hal Clement’s wages.
The facts, as more fully set forth in the judge’s deci-
sion, show that the parties’ expired collective-bargaining
agreement expressly permitted the Respondent to deal
directly with individual employees in negotiating per-
sonal service contracts (PSC) providing for wages and
other benefits greater than the contractual minimum. The
record establishes that such a provision for setting wages
is critical in the broadcast industry because it permits
employers to recruit and retain on-air personnel and oth-
ers whose marketability far exceeds contractual wage
minimums. The Respondent considered news anchor-
man Hal Clement to be such an employee, and, therefore,
it directly negotiated with Clement a PSC containing a
wage rate far exceeding the parties’ contract minimum.
There is no dispute that the Respondent, after the expira-
tion of the parties’ collective-bargaining agreement and
while negotiations for a successor agreement were ongo-
ing, unilaterally reduced Clement’s wages on February 1,
1998, upon the expiration of Clement’s PSC.
The key issue presented is whether wages lawfully es-
tablished through direct dealing constitute a mandatory
subject of bargaining. The judge determined they were
not, because direct dealing itself is not a mandatory
topic. The judge erred, however, because the issue is not
whether direct dealing constitutes a mandatory subject.
Rather, the issue is whether Clement’s wages, once set
though a permissive-subject mechanism, are a mandatory
subject of bargaining. As the Board and the courts have
found in a variety of contexts, provisions that initially
appear to be permissive subjects are nevertheless manda-
tory subjects because of their close relationship to wages.
Thus, Clement’s wages must be regarded as mandatory
subjects.
For example, in Teamsters Local 24 v. Oliver, 358
U.S. 283 (1959), the Supreme Court found contractual
provisions fixing lease restrictions on truckdrivers to be
mandatory subjects even though they did not appear, on
their face, to relate directly to terms and conditions of
employment. The Court held the restrictions to concern
a mandatory bargaining subject because of their direct
effect on “the basic wage structure established by the
parties’ contract.” 358 U.S. at 293–294. In Technicolor
Government Services v. NLRB,3 the court held that the
employer violated the Act by unilaterally changing its
policy regarding the use of leadmen. Rejecting the em-
ployer’s argument that that topic was not mandatory, the
court explained that the practice of using leads had be-
come “an integral part of the Company’s wage structure”
and that the “effect of the change in policy was a reduc-
tion in the wages of employees in the bargaining unit.”
739 F.2d at 328. Accord: e.g., Wood v. National Basket-
ball Assn., 809 F.2d 954, 962 (2d. Cir. 1987) (constituent
parts of collectively-bargained free agency/reserve sys-
tem deemed mandatory subjects “because of their direct
relationship to wages and conditions of employment”);
Mackey v. National Football League, 543 F.2d 606 (8th
Cir. 1976) (provision which on its face did not concern
mandatory subjects held mandatory because of effect on
salaries). The principle established by these cases is that
whether a provision concerns a mandatory subject de-
pends not on its form but on its practical effect. Techni-
color Government Services v. NLRB, supra, 739 F.2d at
328.4
Applying this principle here, there can be little doubt
regarding the mandatory character of the subject at issue,
the directly negotiated wages of Hal Clement. Clement’s
directly negotiated wages are not merely closely related
to wages, they are wages. Indeed, the setting of Clem-
ent’s wages via direct dealing is in effect the collectively
bargained wage in the parties’ agreement for a key group
of employees that includes Clement.5 The conclusion
that directly negotiated wages are a mandatory subject of
bargaining is unavoidable. Accordingly, the Respondent
violated Section 8(a)(5) by unilaterally changing Clem-
ent’s wages on February 1, 1998.

3 739 F.2d 323 (8th Cir. 1984), enfg. 268 NLRB 258 (1983).
4 See also Regal Cinemas, 334 NLRB 304, 305 fn. 7 (2001) (an oth-
erwise permissive term may be so intertwined with and inseparable
from the mandatory terms and conditions for the contract being negoti-
ated as to take on the characteristics of the mandatory subjects them-
selves), enfd. 317 F.3d 300 (D.C. Cir. 2003); Sea Bay Manor Home For
Adults, 253 NLRB 739 (1980) (same), enfd. mem. 685 F.2d 245 (2d
Cir. 1982).
5 The majority errs by failing to focus on the practical effect of the
provision at issue, as the case law instructs.
KFMB STATIONS 755
David H. Mori, Esq,. for the General Counsel.
Craig A. Schloss, Esq. and Rick Bergstrom, Esq. (Morrison &
Foerster, L.L.P.), of San Diego, California, and Elizabeth
Kimmel, Esq., for the Respondent.
J. L. O’Donnell Jr., Esq. (O’Donnell & Harrison, L.L.P.), of
Los Angeles, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in San Diego on January 16 through 18, 2001. Harry
Clement, an individual, filed the original and first amended
charges on July 15, 1998, and July 27, 1999,1 respectively,
against Midwest Television, Inc., d/b/a KFMB Stations (Re-
spondent or KFMB). The complaint was issued September 29,
1999.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the counsel for the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, owns and operates a radio and
television station KFMB at its facility in San Diego, California.
During the 12-month period ending March 31, a representative
period, Respondent derived gross revenues in excess of
$100,000, sold time for commercial advertising to advertisers
of national brand products, and purchased and received at its
San Diego, California facility goods valued in excess of
$50,000 from other enterprises located within the State of Cali-
fornia, each of which had received the goods directly from
points outside the State of California. Respondent admits, and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent
stipulated at the hearing, and I find that the American Federa-
tion of Television and Radio Artists Local 225, AFL–CIO (the
Union or AFTRA) is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Negotiations
Respondent and the Union have had a collective-bargaining
relationship for more than 50 years covering all Respondent’s
on-air personalities in both radio and television.2 The term of
the latest collective-bargaining agreement is March 1998 to
July 2001 (the current agreement.) The penultimate agreement
between Respondent and the Union was effective February 1,
1994, through January 31, 1997, but was extended by the par-
ties to February 28, 1997 (the 1994–1997 agreement). The

1 All dates are in 1998 unless otherwise indicated.
2 The personalities include news reporters and news anchors for the
television operations of Respondent, and radio and news personnel of
the AM and FM radio operations.
alleged unfair labor practices occurred between February 28,
1997, and March.3
The present and all past collective-bargaining agreements
material hereto between Respondent and the Union have set
minimum terms and conditions of employment, including
minimum wage rates for unit employees. However, the agree-
ments have expressly given Respondent the right to deal di-
rectly with individual employees in arranging personal service
contracts (PSCs), which by their terms provide for wages
and/or benefits greater than those established by the collective-
bargaining agreements. This flexibility to establish wage and
benefit packages permits Respondent to recruit and retain on-
air personnel whose marketability far exceeds the provisions of
the collective-bargaining agreement (talent). At article 7(B)
individual contracts (personal services contracts) the 1994–
1997 agreement provided:
Employer agrees that it will not enter into a contract with or
employ any bargaining unit employee at wages and working
conditions less than those set forth in the Schedules annexed
hereto. The Employer shall advise the individual employee of
his right to be represented by AFTRA at all such individual
negotiations, and AFTRA shall have the right to represent
such employees therein . . . no terms, wages or hours in such
existing contracts which are more favorable to such employ-
ees than those herein specified shall be deemed . . . modified
[by the terms of the 1994-[19]97 agreement.]
Thomas Doyle testified that typically when PSCs expire, one
of three things happen: the employee is terminated, the em-
ployer signs a new PSC, or the employee continues at the old
terms and conditions of the PSC but without a guaranteed term
of employment. In the case of Respondent, when an employ-
ment change was effected for a unit employee, KFMB sent the
Union a notice of personnel change showing the employee was
being terminated, had signed a new PSC, or had his/her rate of
pay changed.4 Respondent did not always furnish the Union
copies of individual PSCs but always sent the Union notifica-
tion that an employee had signed a PSC, setting out its effective
term and wage rate.5
Respondent and the Union commenced negotiations for a
successor agreement in December 1996. The primary negotiat-
ing team for Respondent included Respondent’s labor attorney,
Craig Schloss (Schloss) and Elizabeth Kimmel. Thomas W.
Doyle (Doyle), executive director and in-house counsel repre-

3 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
4 Doyle’s later testimony described a fourth option, i.e., that an em-
ployee whose PSC was not being renegotiated upon expiration would
experience a change in wage rate. If that occurred, the Union was
noticed of the reduction through a personnel change notice.
5 In 1997, the Union requested Respondent to produce copies of all
employees’ PSCs. Each year the Union requested, and Respondent
furnished, the total compensation for each employee during the previ-
ous year. Employees also called Doyle to discuss with him items they
wanted included in their PSCs or to inform him that Respondent was
not going to renew their PSCs or was going to keep them at the same
rate of pay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD756
sented the Union. Negotiations were conducted through meet-
ings and mail and facsimile correspondence.
Respondent sought to obtain modifications to the 1994–1997
agreement that would give it greater flexibility and make it
more competitive. Significant to this purpose were a number of
economic proposals, including a proposal to eliminate or reduce
severance pay. The 1994–1997 agreement provided for sever-
ance pay in the event of discharge relative to length of service
at a percentage of actual salary. The maximum amount of sev-
erance pay was 26 weeks of salary.
Upon the expiration of the 1994–1997 agreement plus its ex-
tension, by letter dated March 6, 1997, the Union withdrew
permission for Respondent to deal directly “with new bargain-
ing unit employees or current employees not signed to a . . .
PSC.” 6 The Union’s purpose was to bring pressure on Re-
spondent to meet its demands by curtailing Respondent’s abil-
ity to attract and retain talent. Doyle testified that when an
employee’s PSC expired, it was common for another radio or
TV station to offer that employee a contract, and that the more
marketable personalities are paid as much as 50 times over
scale. By limiting Respondent to hiring new personalities at
scale, the Union was effectively preventing Respondent from
hiring experienced talent. Specifically, the Union understood
Respondent hoped to bring in a morning team, Jeff and Jerry,
from another station. In order to obtain those personalities,
Respondent would have had to pay them substantially over
scale. If Respondent could not do so, the Union believed Re-
spondent might be more willing to extend the 1994–1997 con-
tract and negotiate a new contract with favorable terms.
Believing that current employees with above-scale compen-
sation or PSCs due to expire would pressure the Union to re-
verse its position, Respondent took the position that it would
not negotiate with any employee if not with new hires. By
letter dated March 17, 1997, Respondent sent the Union its
final offer and stated, in pertinent part:
It appears that there are irreconcilable differences in
our negotiating positions and unless you accept our pro-
posal on March 24, we intend to declare impasse and uni-
laterally implement some or all of the final offer.
In reviewing our final offer, please note that because
of AFTRA’s demand, which we may not legally refuse,
we have removed from the contact [sic] KFMB’s right to
negotiate Personal Service Contracts. As you acknowl-
edged in negotiations, this is without precedent in our in-
dustry and we believe that this negotiating ploy will back-
fire against AFTRA and cause discontent among your
members. I cannot emphasize enough how important I
think it is to everyone that AFTRA reauthorize KFMB to
negotiate with our talent or their agents over pay and other
terms of employment.

6 The written communications between the Union and Respondent
show as correspondents either Doyle or Mathis L. Dunn Jr., national
assistant executive director (Dunn), for the Union and Schloss, Trimble,
or Kimmel for Respondent. Each is an agent of his/her respective
principal. There being no reason to specify the individual correspon-
dent, regardless of specific author or recipient, I have designated the
parties as “the Union” or “Respondent.”
The Union modified its position by letter dated March 27,
1997, and notified Respondent that AFTRA would agree to
allow KFMB to “direct deal” with any of its current employees
whose negotiations began before March 6, 1997.
On April 6, 1997, Respondent implemented its final offer of
April 1, 1997. The Union filed a charge with the Board alleg-
ing violations of Section 8(a)(5) and (1) of the Act by Respon-
dent’s implementation of its final offer and failure to furnish
wage information.
In a letter dated May 29, 1997, Trimble, wrote to Doyle:
[I]t has been KFMB’s regular practice to consider giving
raises to its employees at the start of our new fiscal year in
June. However, since AFTRA has recently restricted . . . di-
rect dealing. . . . AFTRA has placed us in the position of be-
ing unable to grant any wage increases at this time. In addi-
tion, in accordance with your restrictions, those employees
who currently have Personal Service Contracts will be ad-
justed to scale upon the expiration of their Personal Service
Contracts.
The Union responded by letter of the same date, disclaimed
Respondent’s construction of the Union’s restriction on PSCs,
and informed Respondent that although it could not deal di-
rectly with any employee hired after February 28, 1997, it
could continue to negotiate PSCs with employees hired before
then. Employees who did not start at Respondent until after
February 28, 1997, could only be paid scale and receive those
benefits as set out in the 1994–1997 contract.
The parties did not meet from late March until July 8, 1997.
In spite of Respondent’s repeated urging for negotiating ses-
sions, the parties met only once in each of the months of July
and August 1997. According to Schloss, Respondent wanted to
push the Union to reach agreement or, alternatively, reach im-
passe so Respondent could unilaterally implement needed pro-
posals, including reduced severance pay and long-term sick
pay. Respondent filed an unfair labor practice charge against
the Union alleging a refusal to bargain in good faith. On Au-
gust 29, 1997, the Union filed an unfair labor practice charge
against Respondent alleging direct dealing with employees.7
The parties met in negotiations on September 11 and 12, 1997.
By letter dated October 16, 1997, Respondent sent the Union
a copy of its “last, best and final offer.” Respondent noted it
had deleted language proposed on July 8, 1997, under article 8,
WAGES, as such was unnecessary given Respondent’s “inher-
ent right to adjust employees’ above scale wages and other
terms of employment which are more favorable than those con-
tained in the collective bargaining agreement, as well as the
past practice of making such adjustments and compensating
employees above scale.” Respondent stated its belief that the
parties were at impasse and its intention to implement its final
offer on October 26, 1997, with certain exceptions.
By letter dated October 17, 1997, the Union took the position
that Respondent had no inherent right to adjust employees’

7 Although the evidence is not clear, correspondence suggests that in
spite of the Union’s embargo on PSCs with employees hired after Feb-
ruary 28, 1997, Respondent entered into PSCs with employees hired
after that date.
KFMB STATIONS 757
above-scale wages and could not deal directly with employees
without the permission of the Union. Not only had that permis-
sion terminated with the expiration of the 1994–1997 labor
agreement, the Union argued, inasmuch as the Union had with-
drawn permission for Respondent to direct deal with employees
hired after February 28, 1997, any direct dealing with new em-
ployees would be an unfair labor practice.
By letter dated October 21, 1997, Respondent notified the
Union that in light of its October 17, 1997 letter and its August
29, 1997 unfair labor practice charge, Respondent assumed the
Union wanted Respondent to rescind the PSCs of employees
who started working after February 28, 1997, and reduce their
compensation to scale. Respondent listed the names of 15 em-
ployees who would be affected.
By letter dated October 24, 1997, the Union responded:
AFTRA has never asked or demanded that you “reduce these
(over-scale new) employees’ compensation and rescind their
Personal Services Contracts.” We have though, repeatedly
demanded that KFMB cease and desist from Direct Dealing
with new employees . . . that is still our position, contingent
on the fact that KFMB will cease and desist from Direct Deal-
ing with new bargaining unit employees and resolve the pend-
ing NLRB charge.8
On October 29, 1997, Respondent notified the Union that so
long as the Union opposed Respondent’s direct dealing with
new hires, Respondent would not directly negotiate any new
PSCs or above-scale compensation with any employee. Re-
spondent agreed to negotiate with the Union for such employ-
ees. Respondent invited the Union to negotiate on behalf of all
new hires, stating that Respondent would expect the Union to
bargain over all terms and conditions subject to collective bar-
gaining at such time. Respondent explained in a following
letter of November 3, 1997, that Respondent needed to under-
stand all of its obligations under the new collective-bargaining
agreement before it could commit to any above-scale compen-
sation or new PSCs for unit employees. Hence, if the Union
wished to negotiate those terms for unit employees, it should be
prepared to discuss all aspects of the collective-bargaining
agreement, including matters such as severance pay and health
and retirement contributions.
By letter to Respondent dated October 30, 1997, the Union
reiterated its position that until a new contract was reached, all
unit employees hired after March 1, 1997, should only be paid
the minimum scale and benefits outlined in the 1994–1997
agreement. By continuing to restrict Respondent to paying only
scale, it was the Union’s ongoing intention to inhibit the sta-
tion’s ability to hire experienced talent, which, in turn, would
force Respondent to agree to the Union’s terms.
By letter dated November 17, 1997, Respondent again noti-
fied the Union that it intended to negotiate any new PSCs or
above-scale compensation only as part of the contract negotia-
tions as it needed to know what its obligations would be under
a new contract. Respondent declined separately to negotiate

8 In an October 28, 1997 letter to Respondent, the Union clarified
that current employees were those hired by Respondent before and
starting work by March 1, 1997.
any new PSC without a new collective-bargaining agreement or
the Union’s confirmation that the parties were at impasse.
By letter dated November 21, 1997, the Union reiterated its
opposition to Respondent’s intended method of handling indi-
vidual PSCs, adding, “As we have stated in the past, AFTRA
gives KFMB permission to ‘Direct Deal’ with any current em-
ployee. We are not requiring KFMB to allow us to represent
‘current’ employees. It is our position that we will be present
whenever an individual employee requests us to do so.”
By letter dated December 8, 1997, the Union wrote to Re-
spondent “in an effort to ‘jump start’ negotiations and as a ges-
ture of good will.” The Union stated it was giving KFMB the
right to “Direct Deal” with all newly hired employees of
KFMB, for either over-scale compensation or PSCs. The per-
mission was predicated on KFMB’s immediately resuming its
“Direct Dealing” with all current employees without the re-
quirement that those negotiations take place at the bargaining
table.9 The letter also stated, “To make it perfectly clear,
AFTRA gives the right to KFMB to ‘Direct Deal’ with all em-
ployees, including prospective employees, for over-scale com-
pensation and PSC’s [sic].” Schloss testified that upon receipt
of the letter, Respondent decided to announce its intention of
cutting employees’ above-scale pay either when an individual’s
PSC expired or on March 1 for employees without PSCs.
In a December 9, 1997 letter, Respondent asked the Union
whether it would agree not to revoke permission for Respon-
dent to deal directly with any employee in the future and agree
to withdraw its unfair labor practice charge regarding direct
dealing.
In its response of the same date, the Union stated, “AFTRA
has no intention of withdrawing its permission for KFMB to
‘Direct Deal’ with any prospective, new or current employee.
However, we are not willing to state that sometime in the dis-
tant future, we will never withdraw that permission.” The Un-
ion declined to withdraw the NLRB charge. Doyle testified
that, following this letter, Respondent told the Union it believed
that once the Company had signed PSCs with the key people,
the Union would again withdraw its permission to direct deal.
The Union disclaimed any such intention.
By letter dated December 12, 1997, Respondent stated that
the Union’s gesture of goodwill was meaningless so long as it
retained the power to withdraw permission for direct dealing at
some point in the future. The letter also stated that unless there
was either a new contract or acknowledgement of a bona fide
impasse in negotiations, which established KFMB’s future
financial obligations, “[A]ll employees who have Personal
Service Contracts will be lowered to scale upon the expiration
of their Personal Service Contract.” Respondent listed the
names of 19 employees, including the Charging Party, Clement,
who would be affected on or before February 28, 1998.
Schloss testified that Respondent wanted to use pay cuts as an
economic weapon to force the Union to agree to Respondent’s
proposals.

9 The Union defined a current employee as a unit employee who
started work by March 1, 1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD758
By letter dated December 14, 1997,10 the Union informed
Respondent:
AFTRA will not withdraw its permission for KFMB to “Di-
rect Deal” with any prospective, new or current employee un-
til one of two events takes place: 1) we sign a new Labor
Agreement, in which case you no longer need that permission
as we will include it in the Labor Agreement; or 2) KFMB
declares impasse and implements its “Last, Best & Final Of-
fer”, permission will automatically be withdrawn on the date
the implementation takes place.
On December 19, 1997, the Union wrote to Respondent, of-
fered modifications to its proposals, and requested that Respon-
dent modify its position.
By letter dated January 15, Respondent notified the Union:
This is to inform you that effective immediately
KFMB will begin direct dealing with all employees in ac-
cordance with AFTRA’’ permission. This means that
KFMB will return to the practice of granting any above-
scale compensation with employees separate and apart
from the negotiation for a new Collective Bargaining
Agreement.
In light of this development, the individual compensa-
tion proposals we were waiting for are unnecessary and
the Company is now in a position to respond to your most
recent proposal. Unfortunately, your proposal is still un-
acceptable.
The bottom line is that KFMB is not willing to further
compromise its position. Our negotiations have gone on
for over a year now. Although you may disagree, it is ap-
parent to KFMB that the parties are at impasse.
Respondent enclosed another “last, best and final” offer and
stated its intention to implement most of its final offer on Feb-
ruary 25. Upon the Union’s January 23 inquiry as to when
Respondent was going to negotiate with employees over a new
PSC or over-scale compensation and what employees should do
to initiate the process, Respondent replied on the same date that
the Union appeared to be confused, and wrote:
[I]n accordance with the permission you gave KFMB to direct
deal with employees, all AFTRA represented employees have
been advised that their compensation is to be reduced to the
AFTRA union wage scale. Moreover, KFMB does not intend
to negotiate this reduction with any employee, unless AFTRA
accepts the Company’s final offer, or acknowledges a bon-
afide impasse and grants KFMB the unlimited and indefinite
right to direct deal with new hires.
KFMB is taking this action as a result of the extreme
stress and uncertainty caused by AFTRA’s unwillingness
to accept our final offer and filing of numerous unfair la-
bor practice charges with the [NLRB] impeding our right
to declare impasse and unilaterally implement parts of our
final proposal.
KFMB sincerely regrets having to put its employees in
this predicament; however, AFTRA’s bargaining tactics
have placed the Company in an untenable situation.

10 The second page of the letter is dated December 12, 1997.
[A]s of the expiration of his Personal Service Contract on
February 1, 1998, Hal Clement will be lowered to the
AFTRA union wage scale. Numerous other employees who
do not have Personal Service Contracts will be impacted as of
March 1, 1998.11 All other employees will be reduced to
scale upon the expiration of their Personal Service Contract.12
In testifying about Respondent’s January 23 letter, Schloss
said that Respondent asked for an unlimited and indefinite right
to direct deal because it was concerned that “if the Union
agreed to a new collective bargaining contact, or if they ac-
knowledged impasse, and they hadn’t given us the right to di-
rect deal, that they could then—a week, a month, two months
later, come back to us and say, now we’re not going to let you
hire anybody new again . . . and that would made us, again,
vulnerable and we didn’t want to be in that position.” By
“unlimited” Respondent meant both current employees and new
hires. As to the word “indefinite,” Schloss explained Respon-
dent’s concern: “that the Union would say, okay, you can direct
deal with anybody, like they had before, and then renege on
that, and take that right away, even if we had a collective bar-
gaining agreement in place, or if they had acknowledged im-
passe. Now, yes, they had always proposed in their . . . collec-
tive bargaining proposals, the right to continue to direct deal,
just like we had in the past . . . but when we were making our
final offers, we didn’t include that same language because we
didn’t believe that we could include that in a final offer . . . We
thought that was something the Union could give us. But we
didn’t think that we could put that in a final offer.”
Upon a clarification request by the Union, Respondent, on
January 26, reiterated “KFMB does not intend to direct deal
with employees further prior to the expiration of their Personal
Service Contract or March 1, 1998, unless AFTRA accepts
KFMB’s final offer or acknowledges a bonafide impasse and
grants KFMB the unrestricted and indefinite right to direct deal
with all employees, including new hires.”
Respondent thereafter declared impasse and unilaterally im-
plemented its final offer. The final offer included the following
provision under section 8, Wages:
Employer agrees that the minimum terms and condi-
tions which cover the employment of bargaining unit em-
ployees are those contained in the Schedules annexed
hereto and incorporated herein by this reference. The Em-
ployer may adjust individual employee’s [sic] above-scale
wages or other more favorable terms and conditions than
those contained in this Agreement, provided the Employer
complies with the minimum terms of this Agreement.13

11 Clement was the only employee with a PSC due to expire during
the period of January 26–31. Nineteen employees earned over-scale
pay without PSCs.
12 By letter of the same date, Respondent noted it had inadvertently
given February 25 rather than January 25 as the implementation date.
Because of the error, Respondent said it would delay implementation of
its final offer until January 30.
13 Schloss testified that Respondent meant, by that proposal, to re-
serve an ability to lower employees’ wages without going below scale.
KFMB STATIONS 759
As set out in greater detail below, on February 1, Respondent
reduced Clement’s salary to scale. On February 19, Clement
terminated his employment with Respondent.
By letter dated February 27, the Union denied the parties
were at impasse and repeated its position that Respondent had a
current right to negotiate with any employee in the unit for
benefits greater than those in the expired collective-bargaining
agreement consistent with past practice. The Union filed unfair
labor practice charges with the Board on January 29 and Febru-
ary 10, alleging violations of 8(a)(1) and (5) of the Act by Re-
spondent’s threat and later implementation of employee pay
reduction because the Union would not accept Respondent’s
final offer.
On March 1, Respondent reduced the over-scale compensa-
tion of employees without existing PSCs to the union wage
scale.14
In March, Dunn became chief spokesperson for the Union,
and a 3-year collective-bargaining agreement was reached in
that same month (the 1997–2000 contract) that included a pro-
vision allowing direct dealing with employees for over-scale
wages and benefits including PSCs. Clement did not participate
in the discussions and was not a party to the settlement agree-
ment between the parties. By letter dated March 20, Schloss
summarized the agreement, in part, as follows:
As we agreed, upon ratification of the Agreement, the parties
release each other from all claims, grievances and unfair labor
practice charges which could be filed based on the conduct of
either party to date. In order to effectuate this release, the par-
ties agree to withdraw with prejudice all pending unfair labor
practice charges and grievances. . . . Finally, this shall con-
firm KFMB’s intent to reinstate the above scale compensation
of those employees lowered to scale on March 1, 1998 and to
retract the notice given to all other employees of KFMB’s in-
tent to lower their compensation to scale upon expiration of
their Personal Service Contract. Also as discussed, KFMB
has offered to rehire Hal Clement, reinstate his expired PSC
above scale compensation and attempt to negotiate a new con-
tract with him.
As a part of reaching agreement, both parties withdrew all
unfair labor practice charges filed with the Board, which with-
drawals were approved by the Regional Director.
2. Hal Clement
Respondent employed Clement October 1979 through Feb-
ruary 1998, at which time he held the position of studio news
anchor under the terms of a PSC. His last PSC was effective
July 17, 1994, through January 31 and provided remuneration
of $225,000, $235,000, and $250,000, respectively, during each
of the 3 years.
Clement was a member of the Union and engaged in various
activities supportive of the Union such as attending union meet-
ings with employees, attending a bargaining session in 1997,
signing a prounion petition on March 24, 1997, along with 45
other employees, and talking to other employees and manage-
ment about union negotiations. Clement testified that Fred

14 Presumably, those reductions were relatively minor as employees
with significantly high salaries were signatory to PSCs.
D’Ambrosi, Respondent’s news director (D’Ambrosi), occa-
sionally asked him what was going on with the Union, saying
he thought what the Union was doing was wrong. There is no
direct evidence that Clement was a stronger union supporter
than other employees. Doyle testified that of the 19 people
whose over-scale wages were due to be reduced by Respon-
dent’s wage reduction plan, there were employees who were
equally or more vocally prounion than Clement. Trimble be-
lieved that Clement’s position “may have had some influence
on some of the people.” According to D’Ambrosi, Clement
was considered an important person in the newsroom and
“main talent.”
In late September or early October 1997, Clement went to
D’Ambrosi and asked if they could talk about a PSC to succeed
the one expiring in January. A few days later, D’Ambrosi pre-
sented Clement with proposed PSC salary increases for each of
the following 3 years. Thereafter, Clement gave D’Ambrosi a
written counter proposal requesting, inter alia, a 4-year contract
with incremental salary increases of $300,000 to $375,000 over
the term of the PSC, a clothing allowance of $3500 per year, a
talent fee for radio newscasts, and restrictions against helicopter
rides and early morning shifts. According to Clement,
D’Ambrosi looked at the proposal and said, “You’re not going
to get that talent fee.”
Clement said that was okay, and D’Ambrosi said he would
run the rest by Trimble. Some time later, D’Ambrosi returned
to Clement and presented salary figures of $300,000, $315,000,
and $330,000, respectively, for a 3-year PSC. Following that,
Clement gave D’Ambrosi a paper entitled “Contract Proposal
for Hal Clement” setting forth PSC terms that included, inter
alia, the salary figures presented by D’Ambrosi, a provision for
a clothing allowance, a restriction against working on Thanks-
giving and Christmas, regular early morning shifts and helicop-
ter rides. D’Ambrosi said he would run it by Trimble. Accord-
ing to Clement, the following day, Trimble came to Clement,
slapped him on the back, shook his hand, and said, “Looks like
we have a deal. Congratulations . . . I’m glad we’ve got it
done.”
D’Ambrosi testified that he discussed the terms of Clement’s
proposals with Trimble. However, he said it was never his
intention to agree to the proposals concerning helicopter rides
or early morning shifts, and he did not then discuss them with
Trimble who never saw Clement’s written proposals.
D’Ambrosi notified Kimmel by memorandum prepared on
October 14, 1997, that Clement had agreed to a new PSC and
summarized terms for a 3-year contract with a clothing allow-
ance of $3500 per year and notations that Clement’s existing 5
weeks of annual vacation were to be preserved but that his auto
allowance was not. Kimmel drafted a PSC for Clement. The
written PSC given to Clement a few days later did not include
any provisions relating to early morning shifts, helicopter rides,
or clothing allowance. The PSC stated: “Employee shall re-
ceive five weeks’ vacation per year (inclusive of the holidays
listed below).” There were no holidays listed. According to
Clement, the provision shorted him on vacation time.
Clement did not sign the proffered PSC but sent it back with
a note entitled “Adjustments to Hal Clement Employment
Agreement” that set forth the missing provisions. According to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD760
D’Ambrosi, he told Clement that he would have to discuss
those provisions with Trimble. Trimble testified that
D’Ambrosi told him Clement had rejected the PSC drafted by
Respondent and wanted additional terms that had been on a
second page of a paper Clement had given him. Trimble told
D’Ambrosi that he considered the additional terms limited Re-
spondent’s ability to make changes down the line with Clem-
ent, specifically with regard to the regularly scheduled morning
and weekend shifts where Trimble wanted assignment flexibil-
ity.
Clement testified that about a week later, D’Ambrosi called
Clement into his office. D’Ambrosi said he had some bad
news, that Respondent had pulled Clement’s PSC off the table
because of what was happening with the Union. When Clem-
ent protested that he had an agreement with Respondent,
D’Ambrosi said he had accidentally forgotten to give Trimble
the extra things asked for: the helicopter and Christmas and
Thanksgiving provisions. Therefore, Clement’s “Adjustments”
note was a rejection of Respondent’s PSC offer.
By letter dated November 3, 1997, Respondent notified the
Union that Clement’s counteroffer had been rejected, Respon-
dent’s prior offer was no longer open, and any further discus-
sions regarding a PSC for Clement would be conducted with
the Union.
Trimble thereafter met with D’Ambrosi and Clement on No-
vember 14, 1997. Trimble told Clement that Respondent had
decided to eliminate direct dealing with all union employees
but that they would be happy to meet with him and Doyle to
discuss the PSC as well as other issues related to the bargaining
agreement. Clement testified he asked Trimble, “What hap-
pened here; I mean, we had a deal.” Trimble said that the Un-
ion would not let Respondent direct deal with new employees,
so Respondent would not direct deal with current employees.
In the weeks following, Clement continued to ask D’Ambrosi
about obtaining a new PSC, but Respondent did not alter its
position.15
In September 1997, around the time PSC discussions with
Clement took place, Respondent reached agreement with tele-
vision reporter employees Kathy Chin and Colleen Rudy on the
terms of individual PSCs and notified Kimmel to draft the
agreements. Thereafter, both Chin and Rudy informed
D’Ambrosi that the salary figures in the PSC drafts did not
reflect the appropriate level of union scale as agreed.
D’Ambrosi confirmed an error had been made. The PSCs for
Chin and Rudy were not signed in final until after Respondent
decided it would no longer enter into PSCs with employees.
However, according to D’Ambrosi, because the delay was due
to his error, Respondent accepted their PSCs. The Union re-
ceived copies of PSCs executed between Respondent and Col-

15 Evidence was adduced that at about this time D’Ambrosi criticized
Clement for certain conduct including being difficult with a producer,
punching a wall, throwing a videotape, and referring to Respondent as a
dysfunctional family during a promo shoot. A letter was also placed in
his file for unauthorized use of company email for union business.
There is no evidence that any of Respondent’s actions in this regard
was motivated by antiunion bias toward Clement or that these circum-
stances influenced Respondent’s position with regard to PSCs.
leen Rudy and Kathy Chin in November and December 1997,
respectively.
At some point in latter 1997, Respondent offered television
reporter employee Kevin Cox (Cox) a PSC, to which he tenta-
tively agreed. The agreement draft was thereafter given to him,
but he had not yet returned it to D’Ambrosi at the time Trimble
announced Respondent would no longer negotiate personal
service contracts. When Cox brought the contract back to
D’Ambrosi with a question about terms, D’Ambrosi spoke to
Trimble and Kimmel about Cox’s PSC. D’Ambrosi then told
Cox that if anything had to be changed in it, the PSC would
have to wait until after the union issues were settled, where-
upon Cox signed the PSC without any changes. D’Ambrosi
could not say whether Cox signed his PSC before or after
Clement was told he could not sign a PSC.
Under cross-examination, D’Ambrosi explained that Clem-
ent was not permitted to sign his PSC because he had physi-
cally returned it, unsigned, with a list of things he wanted
changed. Chin and Rudy, on the other hand, were victims of
Respondent’s mistakes, while Cox still had his PSC and could
have signed it at any time. D’Ambrosi admitted that when Cox
questioned one of the terms, D’Ambrosi told him, “If you re-
turn it to me, then we’ll have to wait until after the Union dis-
pute is resolved.” However, Clement’s situation was different,
D’Ambrosi said, because he returned his contract before the
PSC ban was effected with a demand for changes, and while
Trimble was still considering the requested changes, the deci-
sion not to negotiate PSCs was made. D’Ambrosi said that
Clement had ever asked to consummate the deal Respondent
was agreeable to.
Trimble testified that D’Ambrosi did not tell him of Clem-
ent’s additional requests until after he had congratulated Clem-
ent, but that he did not consider that to be a mistake by
D’Ambrosi. Rather, he understood those items to be conditions
Clement hoped to get but which D’Ambrosi neither discussed
with Clement nor agreed to. In attempting to justify their dif-
ferent treatment of the four employees, I find Trimble and
D’Ambrosi to be making distinctions without true differences.
D’Ambrosi made a mistake with regard to Clement’s PSC ei-
ther by not noticing the additional terms Clement requested or
by considering them to be insignificant and not presenting them
to Trimble. It is true that no complete agreement was reached
between Respondent and Clement before the direct dealing ban,
as the parties had not arrived at a meeting of minds on all is-
sues. However, the same is true of Chin, Rudy, and Cox’s
PSCs. D’Ambrosi had made mistakes in the PSCs proffered to
Chin and Rudy but rectified them and permitted the two em-
ployees to sign corrected PSCs in spite of the ban. Cox was
warned that any change to his PSC would prevent its accep-
tance because of the ban. Dissimilarly, in spite of D’Ambrosi’s
mistaken understanding of Clement’s demands, Respondent
made no attempt to rectify the misunderstanding as it did with
Chin and Rudy. Further, D’Ambrosi did not warn Clement that
urging additional terms to his PSC would prevent its acceptance
as he had warned Cox. Further, although Clement’s compensa-
tion was reduced on January 31, employees without PSCs
whose compensation could have been lowered to scale at any
time were not reduced until March 1. It is clear that Clement
KFMB STATIONS 761
was treated differently with regard to his PSC and to his com-
pensation than other employees similarly circumstanced.
On December 23, Doyle, Clement, Schloss, and Kimmel met
to discuss Cement’s PSC. Clement argued that Respondent
should honor the agreement it had made with him for the terms
of a new PSC. Schloss said that Respondent would only dis-
cuss Clement’s PSC in the context of a new collective-
bargaining agreement. According to Doyle, Schloss said that
Respondent would have no response to Clement until the par-
ties had a new collective-bargaining agreement showing total
economic liability. Doyle said they were there to talk about a
PSC for Clement, not a collective-bargaining agreement and
urged Respondent to let him sign a PSC. According to Clem-
ent, Schloss said, “If there is an agreement to declare impasse,
we will negotiate the old way. If there is no agreement to de-
clare impasse, we will not negotiate with Hal.” According to
Doyle, Schloss said Respondent would be willing to go back to
the old system of negotiating PSCs if the Union acknowledged
an impasse existed and agreed to give them the right to direct
deal. Schloss asked if the Union would agree to give Respon-
dent the right to direct deal with employees forever. Doyle
offered to agree for a specified period of time, but Schloss de-
clined the offer saying that Respondent’s offer was the only
acceptable agreement.16
By letter dated January 15,17 Respondent notified Clement
that upon expiration of his PSC on January 31, his compensa-
tion would be reduced to scale, stating:
Since AFTRA has rejected our final offer, and has filed nu-
merous unfair labor practice charges with the [NLRB] imped-
ing our right to declare impasse and unilaterally adopt parts of
our final proposal, we are operating under extreme aggrava-
tion and uncertainty. The Union’s unwillingness to grant
KFMB the unlimited and indefinite right to direct deal and
pay above-scale to new hires has created additional frustra-
tion.
Until this stalemate is broken, and a final resolution is
reached, your compensation will be lowered to the
AFTRA Union Wage Scale. If and when the stalemate is
broken, there will be no retroactive compensation. . . .
Clement testified that upon receipt of the letter he asked
Trimble why Respondent could not continue to pay him at his
previous rate even without a new PSC. Trimble said Respon-
dent would not negotiate with anybody because of the union
situation.
On January 29, the Union filed an unfair labor practice
charge regarding Respondent’s threat to reduce employee com-
pensation to scale upon the expiration of individual PSCs.
On February 1, Clement’s pay was reduced to scale, $52,000
a year. Trimble testified that the only reason Clement was
reduced to scale was because of the strategy being used against
the Union, and that his PSC was the first to come up for re-

16 According to Doyle, at that time there were quite a few serious
differences between the parties over contract issues including severance
pay, employee releases, waiver of certain rights in discrimination ac-
tions, and overtime.
17 Clement testified that the typed date was January 14, but the 14
had been lined through and 15 written in.
newal during this stage of negotiations.18 Clement was the only
employee with a PSC who was reduced to scale in the course of
contract negotiations. According to Schloss, the final contract
was reached before any other employee’s PSC expired. Ac-
cording to Doyle, prior thereto, Respondent never discussed or
negotiated with the Union regarding lowering Clement’s or any
other employee’s salary to scale. On February 10, the Union
filed an unfair labor practice charge regarding Respondent’s
reduction of employee wages to scale without bargaining in
good faith with the Union.
On February 10,19 Clement told Trimble that he could not
work for the reduced salary. According to Clement, Trimble
said, “If we didn’t have AFTRA here, there would be no lag
time before we went back to business as usual. If we could get
half of the members of AFTRA plus one to resign, it wouldn’t
be here anymore, we wouldn’t have problems.”
Clement asked, “Well, are you saying that, if AFTRA
weren’t here, that I would get my contract offered to me?
Trimble said, “Well, the lawyers have told me I have to be
really careful in how I phrase this . . . I can’t legally promise
you that you would get your contract offered to you, but use
your common sense.” Clement testified that he told Trimble he
thought there was sentiment to decertify and he would see what
he could do. The next day, Clement began soliciting union
resignations from his fellow employees. The number of em-
ployees agreeing to do so was far less than 50 percent.
Clement testified that he returned to Trimble and reported
failure. He told Trimble, “I’ve done everything I can possibly
do for you to try to get this new contract, what can you do?”
Trimble said he could do nothing.
Regarding that meeting, D’Ambrosi testified that Clement
came to him and Trimble on February 6, offered to get employ-
ees to resign from the Union, and asked if Respondent would
then give him a contract.20 Trimble referred him to the NLRB
for decertification information. According to D’Ambrosi,
Clement said, “I have my resignation from the Union right here
[in my coat pocket]. I will give it to you right now. I just want
a contract. Please give me my contract.” Trimble told him it
didn’t work that way. Clement said he would get other people
to resign. The managers told him that was up to him.
Trimble also testified about the February 10 meeting with
Clement. He said that Clement asked what he could do to get
his PSC. Trimble told him that Respondent would not give him
a PSC until it had either entered into a new collective-
bargaining agreement, agreed to reach impasse, or there was a
decertification of the Union. Trimble told him that it was his
understanding that if 50 percent of the people wanted to, they
could decertify the Union, but he could check with the NLRB.
Clement responded, “I think I can get people to decertify.”

18 It is not clear where the expiration dates of Chin’s, Rudy’s, and
Cox’s PSCs would have fallen had they not been permitted to sign new
PSCs.
19 The date was identified by Clement as February 10 and by Trim-
ble’s memorandum as February 6. The specific date is not crucial, and
I have referred to it as February 10.
20 Although D’Ambrosi used the pronoun “we,” in identifying the
speaker, he testified that Trimble did most of the talking.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD762
Trimble said, “I am not asking you to do that. Whatever you
want to do on your own, is your own.”
Clement said, “I think I can get enough signatures over the
weekend.”
Trimble said, “Hal, that’s really up to you.”
Clement said, “I know that I can get them at least by
Wednesday.”
According to Trimble, his recollection of the meeting was
memorialized that same day. In part, his memorandum reads:
[Mr. Clement] asked if I felt that the only way to solve the
stalemate was to either get a new AFTRA contract or for the
union to no longer exist at KFMB. I responded that the cur-
rent offer would have to be voted on, and he said he didn’t
feel that it would be voted in. He asked me what it would
take for the union to go away. I responded that over 50 per-
cent of the membership would have to resign from the union
and wish not to be represented by them in the future. This
could be accomplished by individual letters or a petition. At
that time, KFMB would no longer recognize AFTRA’s repre-
sentation. He responded that he felt he could accomplish that
by next Wednesday. I once again stated that it was KFMB’s
desire to compete competitively within our marketplace.
D’Ambrosi testified that following personnel meetings he
and Trimble often pool their thoughts or one of them takes
notes. The memorandum was prepared after just such a pooling
of thought. D’Ambrosi also testified that he probably threw
away notes he had taken after the memorandum was written.
Although D’Ambrosi testified that Clement was referred to the
NLRB, there is no mention of the NLRB in the memorandum.
There is also no mention of D’Ambrosi having been present.
Trimble acknowledged that his February 6 file memorandum
did not mention the NLRB or his statement that union agree-
ment, impasse, or decertification would permit PSC negotia-
tions. Trimble said he just didn’t include that information for
some reason.
After considering the manner and demeanor of all witnesses
to this conversation along with the discrepancies between
Trimble’s testimony and the memorandum, I am persuaded that
Clement’s testimony is credible, and I accept his version of the
February 10 meeting.
On February 17, Clement wrote to Trimble informing him he
could no longer afford to work for Respondent and that if he
did not hear from Trimble by noon on February 19, he would
assume that nothing could be done. On February 19, having
heard nothing, Clement informed Trimble by letter that he
would not be reporting to the station effective immediately.
Later that day, Clement found a note on his desk asking him to
see Trimble and D’Ambrosi. When he complied, Trimble told
Clement he did not want it to come to this. Clement said he did
not see a light at the end of the tunnel. Trimble said the union
thing was tying Respondent’s hands. Clement ceased working
for Respondent that day. Thereafter, on February 20, he began
employment with DGTB Television in San Diego as a field
anchor and signed a PSC with that employer on February 24 for
a 2-year period with a yearly salary of $100,000 and $110,000,
respectively.
Following agreement on the 1997–2000 contract in March,
Dunn telephoned Clement and informed him that Respondent
intended to offer to reinstate his existing over-scale salary and
discuss a new PSC with him. Clement replied that Respondent
knew he was under a contractual obligation with another sta-
tion.
Clement received a letter dated April 6 from Steven J. Soren-
sen, resident officer of Region 21, informing him of the parties’
tendered withdrawal of unfair labor practice charges and the
Region’s intended approval. The letter explained both Clem-
ent’s right individually to file a charge and the time limitations
under Section 10(b) of the Act. On July 15, Clement filed a
charge in Case 21–CA–32858 with the NLRB, alleging Re-
spondent had violated Section 8(a)(1) and (3) by reducing his
compensation to union scale at a time when a genuine impasse
in negotiations did not exist and thereby constructively dis-
charging him. Service was effected on July 16, 1998. On July
27, 1999, Clement filed a first amended charge in Case 21–
CA–32858, adding the additional allegations that Respondent
had violated Section 8(a)(1) and (5) by seeking to declare im-
passe on a permissive subject of bargaining and unilaterally
reducing employees’ wages to union scale when a bona fide
impasse in negotiations did not exist, and Section 8(a)(1) and
(3) by engaging in “inherently destructive” conduct by reducing
Clement’s compensation and constructively discharging him.
The first amended charge was served on Respondent on July
28, 1999.
B. Analysis and Conclusions
1. The Charging Party’s standing to file charges under
Section 8(a)(5) of the Act
As a general principle, a charge may be filed by a labor or-
ganization, an employee, an employer, or any other entity.
Apex Investigation & Security Co., 302 NLRB 815, 818 (1991);
Vee Cee Provisions, 256 NLRB 758 (1981), enfd. mem. 688
F.2d 827 (3d Cir. 1982). Respondent, citing various NLRB
Division of Advice memoranda, contends that where the Union
has reached settlement with Respondent on terms of a new
collective-bargaining agreement and has withdrawn its allega-
tions of 8(a)(5) violations, an individual may not reassert them.
Respondent argues that by its March withdrawal of all charges
against Respondent, the Union waived Clement’s right to allege
violations of the Act arising from the negotiations. Respondent
further argues that because Clement’s 8(a)(1) and (3) allega-
tions are rooted in the alleged 8(a)(5) violations they are
equally without foundation.21
In arguing that the Union waived Clement’s right to file
charges, Respondent cites Advice memoranda involving griev-
ances. It is true that in certain circumstances, a union may
waive employees’ statutory rights,22 and the Board has granted
deference to non-Board settlements between unions and em-

21 Advice memoranda from the General Counsel do not constitute
precedential authority and are not binding on the Board. Fun Striders,
Inc., 250 NLRB 520 (1980). Unfortunately, Respondent neither expli-
cates the fact situations posed in the memoranda nor cites underlying
case authority.
22 Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983).
KFMB STATIONS 763
ployers over grievants’ objections where proceedings are fair
and regular, all parties have agreed to be bound, and the settle-
ment agreement is not clearly repugnant to the purposes and
policies of the Act. Alpha Beta Co., 273 NLRB 1546 (1985).
Here, no grievance existed regarding Respondent’s conduct
toward Clement. Further, as Clement did not participate in any
discussions leading to the contract settlement; his consent to be
bound was neither explicitly nor implicitly obtained,23 and the
settlement did not contain any waiver of Clement’s right to
seek a remedy with the Board. The authority cited by Respon-
dent is therefore inapposite.
The Board has a policy of encouraging nonlitigious settle-
ment of labor disputes, NLRB v. Electrical Workers Local Un-
ion 112, 992 F.2d 990, 992 (9th Cir. 1993), but it is not re-
quired to approve or defer to all such agreements. Counsel for
the General Counsel asserts that the parties’ contract settlement
does not comport with Board requirements for deferral to a
non-Board settlement set forth in Independent Stave Co., 287
NLRB 740 (1987), which, in pertinent part, requires examina-
tion of the following factors:
(1) whether the charging party(ies), the respondent(s) and any
of the individual discriminatee(s) have agreed to be bound,
and the position taken by the General counsel regarding the
settlement; (2) whether the settlement is reasonable in light of
the nature of the violations alleged, the risks inherent in the
litigation; (3) whether there has been any fraud, coercion or
duress by any of the parties in reaching the settlement; and (4)
whether the respondent has engaged in a history of violations
of the Act or has breached previous settlement agreements re-
solving unfair labor practices.
The third and fourth factors of Independent Stave Co., supra,
are absent in this case. Whether the second factor—the reason-
ableness of the settlement—is met is a closer question. The
wages of those employees reduced to scale on March 1 were
reinstated by the agreement, but there is no mention of any
make-whole remedy. No notice to employees was contem-
plated, and no assurance was given that the employer conduct
would not be repeated. A settlement need not remedy all al-
leged violations, but remedy of alleged injury to employee
rights is a significant consideration. See Flint Iceland Arenas,
325 NLRB 318 (1998). Here, although employee rights alleg-
edly abrogated by Respondent’s reduction of wages were ad-
dressed by the settlement agreement, a full remedy was not
effected. Clement’s situation was considered, but while Re-
spondent offered to rehire Clement, reinstate his expired PSC
compensation, and attempt to negotiate a new PSC with him,
there was no agreement to compensate him for lost earnings.24
As to the first factor of Independent Stave Co., there is no dis-

23 See Postal Service, 300 NLRB 196 (1990), where a union was
noted to be empowered to bind a grievant apart from individual consent
through the contractual grievance procedure.
24 The Charging Party asserts that Respondent was disingenuous in
making such an offer. Certainly Respondent was aware that Clement
had signed a PSC with another station and was in no position to accept
any PSC with Respondent. However, there is no evidence that Re-
spondent would not have returned Clement to his former status had he
been available.
pute that Clement did not agree to be bound by the settlement
and that the General Counsel has taken the position that the
settlement is no bar to the instant charges. A non-Board settle-
ment agreement providing for withdrawal of charges is a pri-
vate arrangement that does not preclude the Regional Director
from proceeding on new charges alleging the same conduct.
Aratex Services, 300 NLRB 115 (1990); Auto Bus, Inc., 293
NLRB 855, 856 (1989). I conclude, therefore, that the re-
quirements of Independent Stave Co. have not been met and
that neither Clement nor the General Counsel is precluded from
pursuing the complaint allegations.25
2. The 10(b) issues
Respondent, as an affirmative defense, asserted that “some
or all of the allegations” herein are time barred by Section 10(b)
of the Act.26 As to the 8(a)(5) charge, Respondent contends
that Clement was aware of the alleged violation at least 8
months before the charge was filed and that the 8(a)(3) charge,
being derivative, is also untimely. Respondent further contends
that Clement’s 8(a)(3) allegations are independently untimely
as Respondent’s intention to lower his pay was communicated
to him more than 6 months before his charge was filed.
The Board has long held that only the actual occurrence of
an unfair labor practice starts the running of limitations; state-
ments of intent or threat to commit unfair labor practices do
not. Leach Corp., 312 NLRB 990, 991 (1993). Further, the
10(b) period commences only when clear and unequivocal
notice is given the charging party, and “the burden of showing
such clear and unequivocal notice is on the party raising the
affirmative defense of Section 10(b).” Leach Corp., supra at 2
(citations omitted); Chinese American Planning Council, 307
NLRB 410 (1992). Counsel for the General Counsel persua-
sively argues that prior to January 31, Respondent had not
given Clement unconditional or unequivocal notice that his
compensation would be reduced. Until the actual reduction
occurred, its fruition was conditioned on the Union’s continued
refusal to agree to a new collective-bargaining agreement of
acknowledge impasse. Therefore, the earliest date at which
Clement can be charged with clear knowledge of a possible
violation of the Act is January 31, the date his pay was reduced
to scale. See Bryant & Stratton Business Institute, 321 NLRB
1007 (1996); Paramount Pictures Corp., 276 NLRB 881
(1985). 27 Accordingly, Respondent has failed to meet its bur-
den of showing that Clement had notice of any violation of the
Act prior to January 31, the beginning of the 10(b) period, and
the complaint allegations are not time barred. The allegations of
the amended charge filed July 27, 1999, and served on Respon-
dent July 30, 1999, are also timely as the allegations are

25 At the hearing, counsel for Respondent moved to dismiss all com-
plaint allegations relating to 8(a)(5) violations on grounds that the
settlement between the parties barred the instant 8(a)(5) charges. In
light of the conclusions reached herein, the motion is denied.
26 Sec. 10(b) states in pertinent part that “[N]o complaint shall issue
based on any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board.”
27 In light of these findings, I find it unnecessary to determine
whether Clement received the letter notifying him of the proposed
reduction on January 14 or 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD764
“closely related” to those contained in the timely charge. W. H.
Froh, Inc., 310 NLRB 384 (1993); Redd-I, Inc., 290 NLRB
1115 (1988).
Paragraph 12 of the complaint alleges that Respondent
unlawfully solicited employees to resign from the Union and to
seek the resignations of other employees. That allegation is not
specifically alleged in either of Clement’s charges; however, it
is closely related to the timely 8(a)(3) and (1) allegations and
was fully litigated at the hearing. Seton Co., 332 NLRB 979
(2000); Redd-I, Inc., supra.28 Accordingly, I find the unfair
labor practices alleged in the complaint are timely.
3. Solicitation of union decertification
When on February 10, Clement told Trimble that he could
not work for union scale, Trimble pointed out that if a majority
of the employees resigned from the Union, Clement’s problems
would be immediately cured. Specifically, Trimble said there
would be “no lag time” before Respondent returned to “busi-
ness as usual,” and although he could not legally promise
Clement he would get his PSC back, he should “use [his] com-
mon sense.” The thrust of Trimble’s statements was to promise
immediate relief upon employees’ dispossession of the Union.
Counsel for the General Counsel asserts that such was a prom-
ise of benefit to encourage decertification of the Union. I
agree; the statements constituted impermissible instigation of a
decertification effort and interfered with employees’ exercise of
their Section 7 rights in violation of Section 8(a)(1) of the Act.
While an employer has a right under Section 8(c) of the Act
to present employees with an accurate and nonthreatening de-
scription of eventualities, e.g., of decertification, it may not
grant assistance to employees in decertification efforts or pro-
vide more than ministerial aid. Vic Koenig Chevrolet, Inc., 321
NLRB 1255 (1996); Quinn Co., 273 NLRB 795 (1984). Clem-
ent did not approach Trimble to ask how to remove the Union
as the employees’ representative, and there is no evidence that
he had any such project in mind. Indeed, Clement had been an
active union supporter and had been cautioned by Respondent
not to utilize interoffice email for union business. It was Trim-
ble who suggested union rejection as a solution to Clement’s
problems. Unlawful assistance with a decertification effort
includes planting the seed of the decertification concept, help-
ing with wording, typing, etc., and knowingly permitting the
activity on worktime. Exxel-Atmos, Inc., 323 NLRB 884
(1997); Shen Lincoln-Mercury, 321 NLRB 586 (1996); Weisser
Optical Co., 274 NLRB 961 (1985), enfd. 787 F.2d 596 (7th
Cir 1986), cert. denied 479 U.S. 826 (1986). Trimble not only
planted the seed but also gave no restrictions as to when and
how Clement might seek employees’ resignations, which, in
direct contrast to prior restrictions on email use, constituted
clear encouragement and assistance. Moreover, Trimble’s as-
sertion that union resignation of an employee majority would
result in a return to “business as usual” was a clear promise of
benefit to Clement otherwise not immediately available to him.

28 On January 11, 2001, prior to the hearing, Respondent filed a writ-
ten motion to strike the 8(a)(5) allegations and par. 12 of the complaint,
which was denied on January 12, 2001. In its brief, Respondent re-
quested reconsideration of its motion as to par. 12. In accordance with
my conclusion herein, the request for reconsideration is denied.
Voca Corp., 329 NLRB 591 (1999). While Respondent’s con-
duct in encouraging union disaffection was not extraordinarily
active or prolonged, that “does not negate its unlawful nature.”
Rose Printing Co., 289 NLRB 252 fn. 3 (1988). Accordingly, I
find that Trimble’s encouragement of Clement to obtain union
resignations or decertification constituted unlawful coercion
and encouragement to employees to decertify the Union in
violation of Section 8(a)(1).
4. Alleged 8(a)(5) violations
The General Counsel contends that Respondent attempted to
force impasse on a permissive subject of bargaining and unilat-
erally altered its established past practices of continuing the
terms of PSCs after their expirations pending individual nego-
tiations and of negotiating for new PSCs after their expirations
in violation of Section 8(a)(5) of the Act.
Section 8(d) of the Act provides: “[To] bargain collectively
is the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an
agreement . . . but such obligation does not compel either party
to agree to a proposal or require the making of a concession.”
Bargaining parties may resort to the use of economic weapons
to obtain lawful proposals, and “the Board may not, either di-
rectly or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective bargaining
agreements.” American National Insurance, 343 U.S. 395, 404
(1952); Oklahoma Fixture Co., 331 NLRB 1116, 1117 (2000).
In fact, the Act “does not compel any agreement whatsoever
between employees and employers.” American National In-
surance, supra at 402. An employer may also bargain to an
impasse on mandatory subjects of bargaining and thereafter
“lawfully implement proposals reasonably comprehended
within those it offered before impasse [citation omitted].”
Telescope Casual Furniture, Inc., 326 NLRB 588 (1998);
Rochester Telephone Corp., 333 NLRB 30 (2001); McClatchy
Newspapers, Inc., 321 NLRB 1386 (1996), enfd. 131 F.3d 1026
(D.C. Cir. 1997); Tampa Sheet Metal Co., 288 NLRB 322
(1988). An impasse may even be “brought about intentionally
by one or both parties as a device to further, rather than destroy,
the bargaining process.” Charles D. Bonanno Linen Service v.
NLRB, 454 U.S. 404, 412 (1981). However, insisting to im-
passe on nonmandatory or permissive subjects of bargaining is,
as counsel for the General Counsel correctly observes, a viola-
tion of Section 8(a)(5) of the Act. Taft Broadcasting Co.,
WBRC-TV, 274 NLRB 260 (1985); Retlaw Broadcasting Co.,
324 NLRB 138 (1997).
Respondent does not dispute that the right to deal directly
with employees regarding their wages is a permissive subject of
bargaining. The General Counsel, appropriately relying on
Retlaw Broadcasting Co., supra, asserts that the “unrestricted
and indefinite right to direct deal with all unit employees” is a
permissive subject of bargaining. However, the General Coun-
sel inconsistently urges that the matter of above-scale compen-
sation (permitted through the direct dealing provision of the
expired contract) is a mandatory subject of collective bargain-
ing. Essentially, the General Counsel argues that once above-
KFMB STATIONS 765
scale wage rates are individually established through direct
dealing, Respondent must observe the restrictions on unilateral
changes of mandatory subjects of bargaining in altering those
wage rates. The General Counsel, thus, distinguishes between
the right to establish above-scale wages (a permissive subject)
and the right to alter established above-scale wages (a manda-
tory subject, according to the General Counsel). The General
Counsel cites no supporting authority for such a distinction.
Like the instant matter, Retlaw Broadcasting, supra, involves
PSCs in the media industry and establishes that proposals to
allow an employer to negotiate directly with unit employees
concerning wages constitute permissive subjects of bargaining.
That is true, whether the right sought is limited or unlimited.
See Taft Broadcasting Co., above. The above-scale wages set
through direct dealing with employees exist within the ambit of
a permissive subject and are also permissive. Therefore, in
whatever form Respondent posed its proposals regarding direct
dealing, they were permissive subjects of bargaining.29
Although collective bargainers are free to propose the right
to deal directly with employees, no party may insist to impasse
on the inclusion of such a term in a contract. Taft Broadcasting
Co., supra; Retlaw Broadcasting Co., supra. Once agreed to,
permissive subjects of bargaining continue to exist essentially
at the will of either party. Thus, although civil remedies may
apply, parties to a contract may rescind any permissive term of
the contract at any time without violating Section 8(a)(5) of the
Act. Chemical Workers Local 1 v. Pittsburgh Glass Co., 404
U.S. 157 (1971). The unilateral modification of a contract term
is “a prohibited unfair labor practice only when it changes a
term that is a mandatory rather than a permissive subject of
bargaining.” Id. at 185; Pall Biomedical Products Corp., 331
NLRB 1674 (2000); Tampa Sheet Metal Co., supra. Thus,
Respondent’s alteration of employees’ wages within parameters
above contract scale constituted modification of permissive
contract terms only and did not violate Section 8(a)(5) of the
Act. The critical question in determining the existence of an
8(a)(5) violation herein is whether Respondent did, in fact, push
its demand for the “unrestricted and indefinite right to direct
deal with all unit employees” to impasse. I conclude it did not.
I note that both Respondent and the Union wanted direct
dealing provisions in any contract reached: Respondent because
it needed the flexibility to obtain “talent” at costs far above
scale, and the Union because compensation at scale would have
been intolerable to unit employees who either enjoyed or hoped
to enjoy the financial fruit of their media successes. With both
sides recognizing the other’s need for the provision, the permis-
sive subject of direct dealing became an effective economic
weapon for both parties. The Union primed and fired its
weapon first when it rescinded permission for Respondent to
deal directly with new employees. After dodging artillery fire
for a few months, Respondent discharged its own economic
weaponry and refused to deal directly with all employees, stat-

29 It is noted that Respondent was free to reduce employees’ above-
scale wages during the term of the contract. That Respondent did so in
the case of PSCs after discussion or “negotiation” with the employee
does not confer statutory bargaining rights on the employee or alter the
permissive nature of the direct dealing.
ing its intention to reduce current employees to scale upon ex-
piration of their PSCs or as of March 1 for employees without
PSCs. There is nothing in this maneuvering alone to suggest
any violation of the Act as Respondent was free under the Act
to make changes unilaterally as to permissive subjects of bar-
gaining even if it had been included in the expired contract and
even if it resulted in a reduction of wages to the contractual
scale. The Board is “mindful of the Supreme Court’s admoni-
tion that it is not [the Board’s] role ‘to assess the relative eco-
nomic power of the adversaries in the bargaining process and to
deny weapons to one party or the other because of [its] assess-
ment of that party’s bargaining power.’ American Ship Building
Co. v. NLRB, 380 U.S. 300, 317 (1965),” quoted in McClatchy
Newspapers, Inc., supra at 1394. Where, as here, an employer
utilizes an economic weapon in response to a union’s economic
weapon and in support of its lawful bargaining position, there is
no violation of the Act. Central Illinois Public Service Co.,
326 NLRB 928 (1998).30 The General Counsel argues that
when, on December 8, 1997, the Union reinstated Respondent’s
right to deal directly with all employees for above-scale com-
pensation and PSCs, Respondent was empowered to negotiate
with employees for above-scale reimbursement but was re-
stricted from unilaterally reducing employees’ above-scale
compensation “absent bargaining with the affected employees.”
The General Counsel cites no authority for his position, and it
is not consonant with the direction of the Court in American
Ship Building, supra. The General Counsel seems to suggest
that the direct dealing provision of the expired contract created
a collective-bargaining relationship among Respondent and its
above-scale employees on which the regulatory requirements of
the Act are attendant. There is no authority for such a concept.
If Respondent is not obligated to bargain with the Union before
making unilateral changes of a permissive subject of bargain-
ing, it is certainly not required to bargain with its affected em-
ployees. The premise of the argument appears to be that em-
ployees should not be exposed to economic harm during strate-
gic bargaining maneuvers. However, real or potential eco-
nomic hardship to employees is not a touchstone of Board
analyses of collective bargaining. In American Ship Building
Co. v. NLRB, supra at 309, the Court noted that locking out
employees in support of a legitimate bargaining position did not
violate the Act, stating, “The lockout may well dissuade em-
ployees from adhering to the position which they initially
adopted in the bargaining, but the right to bargain collectively
does not entail any ‘right’ to insist on one’s position free from
economic disadvantage.”
There is no evidence that Respondent insisted to impasse on
its proposed right unrestrictedly and indefinitely to deal with
unit employees. Long before Respondent made its proposal for
such broad direct dealing, it had been seeking to establish im-
passe so that it might implement its proposals on mandatory
subjects of bargaining. In doing so, there is no allegation, and
no evidence, that it went beyond the scope of legitimate hard
bargaining. Doyle acknowledged that significant differences
on severance pay, overtime, and other issues separated the par-

30 Rev. denied sub nom. Electrical Workers Local 702 v. NLRB, 215
F.3d 11 (D.C. Cir. 2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD766
ties at the time Respondent made its broad direct dealing pro-
posals. There is no evidence that had those issues been re-
solved, Respondent would have continued to press for the
unlimited right to deal directly with employees. There is no
evidence that Respondent’s demand for unlimited direct dealing
was a prerequisite or condition of agreement on the mandatory
subjects at issue. In fact, Respondent’s final implemented offer
did not contain any such direct dealing provision, and the pro-
vision agreed to in the current contract does not provide for
unlimited direct dealing. The General Counsel bears the bur-
den of proof that “Respondent conditioned any agreement to a
mandatory subject on acceptance of its [permissive subject]
proposal.” Taft Broadcasting Co., supra at 262. The General
Counsel has not met that burden. Indeed, inasmuch as Respon-
dent was fully aware of the Union’s desire to incorporate the
right to deal directly in any contract reached, it had no reason to
insist to impasse on that provision, and there is no evidence
Respondent pushed to impasse for the broader proposal.
Rather, the evidence suggests that Respondent used the permis-
sive subject of direct dealing as an economic weapon to force
agreement or impasse on mandatory subjects of bargaining. In
doing this, Respondent did not violate Section 8(a)(5) of the
Act. Accordingly, I find complaint allegations that Respondent
insisted to impasse on a permissive subject of bargaining and
thereafter unilaterally reduced unit employees’ wages to the
contractual minimum in violation of Section 8(a)(5) of the Act
must fail.31
5. Alleged 8(a)(3) violations
The General Counsel contends that Respondent’s reduction
of Clement’s and others’ above-scale wages was inherently
destructive of employees’ Section 7 rights in violation of Sec-
tion 8(a)(3) of the Act. The inherently destructive concept was
discussed in NLRB v. Great Dane Trailers, 388 U.S. 26, 33
(1967), where the Court said:
[I]f it can reasonably be concluded that the employer’s dis-
criminatory conduct was ‘inherently destructive’ of important
employee rights, no proof of an antiunion motivation is
needed and the Board can find an unfair labor practice even if
the employer introduces evidence that the conduct was moti-
vated by business considerations. Second, if the adverse ef-
fect of the discriminatory conduct on employee rights is
‘comparatively slight,’ an antiunion motivation must be
proved to sustain the charge if the employer has come forward
with evidence of legitimate and substantial business justifica-
tions for the conduct. Thus, in either situation, once it has
been proved that the employer engaged in discriminatory
conduct which could have adversely affected employee rights
to some extent, the burden is upon the employer to establish
that he was motivated by legitimate objectives since proof of
motivation is most accessible to him.
The Board has held that an employer’s use of otherwise law-
ful economic bargaining weapons will not, alone, support a
violation of Section 8(a)(3). In Harter Equipment, Inc., 280

31 In light of this finding, I do not find it necessary to address Re-
spondent’s argument that the Union’s bargaining conduct justified
Respondent’s tactics.
NLRB 597 (1986),32 the Board held that “absent specific proof
of antiunion motivation, an employer does not violate Section
8(a)(3) and (1) by hiring temporary replacements in order to
engage in business operations during an otherwise lawful lock-
out.” In Central Illinois Public Service Co., supra, the Board
read the holdings in American Ship Building, supra, and NLRB
v. Brown Food Store, 380 U.S. 278 (1965), as precluding infer-
ence of antiunion motivation “solely from the application of
economic pressure during the bargaining dispute.” Standing
alone, Respondent’s decision to reduce employees’ wages to
the contractual minimum is no more of an unlawful economic
weapon deployment than is locking out employees. In em-
ployee lockout cases, the Supreme Court has found the impact
of employer conduct on employee rights is comparatively
slight, rather than inherently destructive and prima facie lawful.
American Ship Building Co. and Brown Food Store, supra. In
Brown Food Store, supra at 284, the Court pointed out that
employers may legitimately stockpile inventories, readjust con-
tract schedules, or transfer work from one plant to another,
thereby blunting the effectiveness of a strike. Presumably, that
would adversely economically affect striking employees.
There is no authority to teach that the present situation should
be viewed differently than the lockout cases. In either instance,
employees may face economic privations as a result of the em-
ployer’s use of a lawful economic weapon. However, the em-
ployees’ right to bargain collectively is not affected, and there
is no “natural tendency” severely to discourage union member-
ship. See Harter Equipment, Inc., supra at 598.
The General Counsel argues that the economic weapon used
herein—reduction of above-scale compensation—was in sup-
port of an unlawful bargaining position and thus inherently
discouraged union membership. I have found that Respondent
did not engage in unlawful bargaining; therefore, this argument
must fail.
The General Counsel further contends that because Clement
was a strong union supporter and a high profile news anchor,
Respondent ensured his salary would be the first one to be
dropped. By dropping the salary of a high profile employee
who was also a union supporter, the General Counsel argues,
Respondent sent a message to all bargaining unit employees
designed to chill union support and thereby engaged in conduct
inherently destructive of employee rights. This argument is
persuasive.
As already found, Respondent treated Clement differently
than other employees similarly situated with regard to the rene-
gotiation of his PSC. Respondent’s reduction of Clement’s
salary was by simple definition “discriminatory.” It is neces-
sary to consider whether Respondent’s discriminatory reduction
of Clement’s salary may reasonably be regarded as “inherently
destructive of important employee rights”—in which case the
Board may find an unfair labor practice despite employer justi-
fications—or whether the effect of the discriminatory conduct
is “comparatively slight,”—in which case Respondent may
provide “legitimate and substantial business justifications,” and
the Board may not draw an inference of improper motive from
the conduct itself. See Great Dane Trailers, supra.

32 Rev. denied 829 F.2d 458 (3d Cir. 1987).
KFMB STATIONS 767
The Supreme Court has found inherently destructive em-
ployer conduct in several cases. In NLRB v. Erie Resistor
Corp., 373 U.S. 221 (1963), the employer’s grant of supersen-
iority to replacement workers and returning strikers was con-
sidered inherently destructive of employee rights. In Great
Dane Trailers, supra, the withholding of vacation benefits from
employees who continued to strike was also inherently destruc-
tive. Finally, in Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983), more severe discipline meted to union leaders than
nonunion leaders was found to be inherently destructive of
employee rights. In each of those cases, the employer treated
employees in a bargaining unit differently depending on the
degree of their involvement in protected union activity. The
Court found employer conduct to be inherently destructive
where the employer differentiated among members of the bar-
gaining unit based on their union activities. The Ninth Circuit
has held that where “discriminatory conduct is directly related
to protected activity . . . such conduct is inherently destructive
and an inference of improper motive is warranted,” Kaiser
Engineers v. NLRB, 538 F.2d 1379, 1386 (9th Cir. 1976). The
Board, however, has not limited the “inherently destructive”
doctrine to situations in which employer conduct is directly and
unambiguously aimed at protected activity. In International
Paper Co., 319 NLRB 1253 (1995), enfd. denied 115 F.3d
1045 (D.C. Cir. 1997), the Board set out four fundamental
guiding principles for application of the doctrine of employer
conduct inherently destructive of employee rights: First, con-
duct which directly and unambiguously penalizes or deters
protected activity is inherently destructive; second, conduct that
has far reaching effects as would hinder future bargaining and
create visible and continuing obstacles to future exercise of
employee rights is inherently destructive; third, conduct exhib-
iting hostility to the process of collective bargaining itself is
inherently destructive; and fourth, conduct may be inherently
destructive of employee rights if it discourages collective bar-
gaining by making it seem a futility in the eyes of employees.
There is no explicit or implicit evidence that Clement was
treated disparately because of his particular, individual union
activity. He was a supportive union member, but not more so
than many others were. However, in light of the circumstances
surrounding Clement’s PSC negotiations, it is not unreasonable
to conclude that Clement was not merely a coincidental casu-
alty of the bargaining struggle, but that because of his salary
and status, he was singled out to be a high profile warning of
the devastating strength of Respondent’s economic armaments.
While Respondent is free to level its lawful economic weap-
ons on all employees equally, no legal authority suggests it is
free to select one employee as an example, thereby bringing
considerable economic pressure on the Union while otherwise
preserving its work force. Put another way, Respondent is not
entitled to customize its economic weapon through disparate
employee treatment in order to maximize pressure on the Union
while minimizing harmful consequences to itself. As noted,
Respondent ensured that other employees whose PSCs expired
were permitted to sign new PSCs. Further, non-PSC employees
were not scheduled to have their salaries reduced until March 1.
For more than a full month, Clement alone demonstrated to
employees the ramifications of the Union’s bargaining holdout.
Respondent was thereby able dramatically to warn employees
of impending consequences while avoiding wholesale em-
ployee exodus. I find that sniping a selected target rather than
generally discharging an economic weapon constitutes imper-
missible differentiation among members of the bargaining unit.
The differentiation practiced here may not have been specifi-
cally intended to discourage Clement’s individual support of
the Union. Nevertheless, I conclude that Respondent meant to
communicate to employees that their collective strength and
security as union members was illusory since Respondent, by
manipulation of PSC negotiations, could, with impunity, select
one or another of its employees to sacrifice in furtherance of its
bargaining demands, thus dissipating group protection. It is not
unreasonable to conclude that Respondent’s conduct might well
“chill” union support. In determining a purpose to “chill,” the
Board has concluded that Darlington Mfg. Co., 165 NLRB
1074 (1967), requires only “a finding of the foreseeability of
the chilling effect rather than evidence of its actual occur-
rence.” George Lithograph Co., 204 NLRB 431 (1973). In
fact, there is evidence that Respondent must have intended to
promote employee disenchantment with the Union as Respon-
dent encouraged Clement to sponsor union decertification.
Respondent’s actions thus fit within two of the fundamental
guiding principles for distinguishing inherently destructive
conduct set out in International Paper Co., supra: They have
far reaching effects as would hinder future bargaining and they
discourage collective bargaining by making it seem a futile
exercise to employees. Respondent’s conduct in discriminato-
rily selecting Clement as its first PSC termination is, therefore,
inherently destructive of important employee rights.
An employer’s conduct that is inherently destructive of em-
ployee rights is a presumed unfair labor practice unless the
employer can prove “legitimate and substantial business justifi-
cations” for its actions. In re Pirelli Cable Corp., 131 NLRB
158 (2000); Giddings & Lewis, Inc. v. NLRB, 710 F. 2d 1280,
1285 (7th Cir. 1983). Respondent has failed to demonstrate
that it had legitimate and substantial business justifications for
arranging that Clement would be the first employee reduced to
scale. Section 8(a)(3) of the Act makes it an unfair labor prac-
tice to “discriminat[e] in regard to hire or tenure of employment
or any term or condition of employment to encourage or dis-
courage membership in any labor organization.” Since Re-
spondent’s discrimination against Clement could only have
been designed to foster employee dissatisfaction with the Un-
ion, Respondent must have intended thereby to discourage
membership in the Union. Accordingly, by discriminating
against Clement in refusing to accord him the same PSC nego-
tiation opportunities as given to other similarly situated em-
ployees, Respondent violated Section 8(a)(3) of the Act.33
The General Counsel argues that by its unlawful actions,
Respondent effectively discharged Clement. Since Clement
was not discharged but resigned his employment, it is necessary

33 As to other employees without PSCs whose wages were reduced
on March 1, there is no evidence that they were singled out for wage
reduction or were anything but the victims of Respondent’s lawful
economic weaponry use. Therefore, there is no violation of the Act as
to those employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD768
to determine whether he was constructively discharged. “A
constructive discharge is not a discharge at all but a quit which
the Board treats as a discharge because of the circumstances
which surround it.” Multimatic Products, 288 NLRB 1279,
1348 (1988); Intercon I (Zercom), 333 NLRB 223 (2001).
Here, Respondent deliberately made Clement’s working condi-
tions unbearable by its discriminatory wage cut, which conduct
was designed unlawfully to discourage union support. See
Intercom I (Zercom), supra at fn. 3. While Respondent’s intent
may not have been to force Clement to resign rather than sim-
ply to discourage union support generally, it must have antici-
pated that consequence, and the conditions meted to Clement
were imposed discriminatorily as comprehended by Section
8(a)(3) of the Act. Respondent has not shown that a valid busi-
ness justification or explanation existed for the circumstances
surrounding Clement’s pay reduction or that the reduction
would have occurred absent its desire to discourage union sup-
port. Therefore, Respondent has not met its Wright Line34 bur-
den. See FiveCAP, Inc., 332 NLRB 943 (2000). Therefore, I
conclude that in drastically and discriminatorily cutting his
compensation, Respondent constructively discharged Clement.
CONCLUSIONS OF LAW
1. By soliciting employee Harry Clement to obtain employee
resignations from the Union, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) of the Act.

34 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
2. By reducing employee Harry Clement’s above-scale com-
pensation on January 31, 1998, Respondent violated Section
8(a)(3) and (1) of the Act.
3. By causing Harry Clement to be constructively dis-
charged, Respondent has violated Section 8(a)(3) and (1) of the
Act.
4. By the above conduct, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not violated the Act in any other manner
alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondent having discriminatorily
reduced the salary of and constructively discharged employee
Harry Clement, it must offer him reinstatement to be effective
at a time when he is not otherwise bound by the terms of a per-
sonal service contract with another employer and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]