KGTV

National Labor Relations Board - Administrative Judge Opinions

Oct 10, 2008

21-CA-038193 (N.L.R.B. Oct. 10, 2008)

JD(SF)-41-08
San Diego, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
McGRAW-HILL BROADCASTING
COMPANY, INC. d/b/a KGTV
and Cases 21-CA-38193
21-CA-38294
NATIONAL ASSOCIATION OF
BROADCAST EMPLOYEES AND
TECHNICIANS-COMMUNICATIONS
WORKERS OF AMERICA, AFL-CIO
Robert MacKay, Esq., San Diego, CA,
for the General Counsel.
Matthew Harris, Esq., Washington, DC,
for the Charging Party.
John D. Collins, Esq., and Matthew W. Holder,
Esq., San Diego, CA, for the Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in San Diego, California, on July 29, 2008. National Association of Broadcast Employees
and Technicians-Communications Workers of America, AFL-CIO (the Union or the Charging
Party) filed an unfair labor practice charge in Case 21-CA-38193 on January 17, 2008, and filed
another unfair labor practice charge in Case 21-CA-38294 on April 2, 2008. Based on those
charges, the Regional Director for Region 21 of the National Labor Relations Board (the Board)
issued a Consolidated Amended Complaint and Notice of Hearing (the complaint) on June 10,
2008. The complaint alleges that McGraw-Hill Broadcasting Company, Inc. d/b/a KGTV (the
Respondent or the Employer) violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). The Respondent filed a timely answer to the complaint denying the commission of
the alleged unfair labor practices and raising a number of affirmative defenses.1
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based upon the record, my consideration of the briefs filed by
counsel for the General Counsel and counsel for the Respondent, and my observations of the
demeanor of the witnesses, I now make the following findings of fact and conclusions of law.2

1 All pleadings reflect the complaint and answer as those documents were finally amended.
2 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
Continued
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Findings of Fact
I. Jurisdiction
The complaint alleges, the answer admits, and I find that the Respondent is a New York
corporation with an office and place of business in San Diego, California, where it has been
engaged in the business of operating a television broadcasting station located at 4600 Air Way,
herein called the San Diego, California facility. Further, I find that annually the Respondent, in
the course and conduct of its business operations, derives gross revenues in excess of
$100,000, advertises nationally for the sale of products, and purchases and receives at its San
Diego, California facility goods valued in excess of $50,000 directly from points outside the
State of California.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
A. The Dispute
The dispute between the parties involves two separate and distinct incidents. 1. The
first dispute is whether the Respondent and the Union had an established past practice of
allowing non-employee union officials access to an office at the Respondent’s facility,
hereinafter referred to as the “union office.” It is the contention of the General Counsel and the
Union that such a past practice had been established and that the Respondent violated Section
8(a)(1) and (5) of the Act by unilaterally discontinuing that practice. The Respondent denies
that any such practice existed and, further, that even assuming such a past practice, the
Respondent was justified in changing the practice and prohibiting access to the office by the
Union’s president because of his misconduct.
2. The second dispute is whether the Respondent’s decision to layoff three unit
employees was made unilaterally, without first providing the Union with advance notice and an
opportunity to bargain. The General Counsel and the Union contend that the Respondent did
so, in violation of Section 8(a)(1) and (5) of the Act. However, the Respondent contends that it
was under no obligation to further bargain with the Union, having previously engaged in
collective-bargaining over layoffs, which bargaining resulted in agreement as contained in the
parties’ most recent contract. Also, the Respondent alleges that the Union waived any right to
bargain over the layoff decision, as it never specifically requested such bargaining. Finally, the
Respondent contends that its decision to layoff the three employees was the direct result of a
managerial decision to discontinue a live weekend news broadcast, which programming
_________________________
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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decision was a non-mandatory subject of bargaining. According to the Respondent, even
assuming it unlawfully refused to bargain with the Union over the “layoff decision,” as the
decision to layoff the employees was directly “linked” to that non-mandatory subject of
bargaining, an appropriate remedy would not include reinstatement and full back pay.
As a collateral issue, the General Counsel and the Union also contend that the
Respondent refused to engage in “effects bargaining” over the layoff of the unit employees in
violation of Section 8(a)(1) and (5) of the Act. The Respondent continues to argue that the
issue of layoffs was covered by the parties’ collective-bargaining agreement, which also
encompassed the effects of such layoffs, and, thus, it was under no obligation to engage in
further bargaining over effects.
A second collateral issue over which the parties disagree is that of remedy. Assuming
that the Respondent violated the Act by unilaterally laying off the unit employees and/or by
failing to bargain over the effects of the layoff, the General Counsel and the Union contend that
the appropriate remedy for the unfair labor practices would be reinstatement, with full back pay
to the laid off employees. The Respondent argues that a more limited remedy as set forth in
Transmarine Navigation Corp., 170 NLRB 389 (1968) is proper under such circumstances.
B. The Facts
For the most part, the facts in this case are not in dispute. The Respondent operates a
television broadcasting station in San Diego, California. The Union has represented a unit of
the Respondent’s employees at its San Diego, California facility since approximately the 1950s.3
The Union and the Respondent have been parties to successive collective-bargaining
agreements, the most recent of which was effective by its terms from October 1, 2002, through
January 31, 2006 (the expired contract). (G.C. Ex. 2.) The parties have not reached agreement
on the terms of a successor contract. Since the expiration of the last contract, the Respondent
has, for the most part, maintained the terms and conditions of that contract.4
1. Access to the Union Office
Dennis Csillag was employed by the Respondent from July 1981 until May 30, 2006,
when he was terminated. Initially he was employed as an operations technician, and at the time
of his discharge he was classified as a director. These were bargaining unit positions. Since
1986, he has served as the union president. Csillag has continued to hold that office following
his termination. As president, his duties are, as one would expect, to participate in contract
negotiations, administer the collective-bargaining agreement, process grievances, and meet
with management and workers to discuss issues of concern or dispute.

3 In its answer to the complaint, the Respondent admits that the unit of employees as set
forth in Article 1 of the most recent collective-bargaining agreement between the Union and the
Respondent constitutes a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Further, the Respondent admits that based on Section 9(a)
of the Act, that the Union has been the exclusive collective-bargaining representative of the
employees in the Unit since at least October 1, 2002, the effective date of the last contract.
4 A post-impasse change involving jurisdiction over unit work has no bearing on the issues
in this case.
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The expired contract between the Respondent and the Union does not contain any
provision regarding the Union’s use of an office at the Respondent’s facility. However, the
undisputed testimony at the hearing established that in approximately 1990, during contract
negotiations, the parties orally agreed that the Union could use an “office” at the Respondent’s
facility. From the collective testimony of various witnesses, it appears that the Union was given
excusive use of this office, with electricity and telephone provided by the Respondent. The
intent was to provide the Union with a place to lock up its files. There was apparently no further
discussion between the parties as to the specificity for which the Union would use the office.
It is undisputed that the “union office” is located on the second floor of the Respondent’s
facility. There is a lock on the door, to which only the union officers have a key. The office is
cramped, approximately 10 feet by 10 feet in size. It contains a desk, file cabinet, chairs,
computer, printer, telephone, and answering machine. The Union’s records are maintained in
this office, including previous collective-bargaining agreements, grievances, and
correspondence.
Csillag testified that both before and after his termination, he used this office to perform
all manner of functions in his capacity as union president, including storing records, reviewing
documents, preparing correspondence and grievances, and meeting with unit employees. As
all the union officers, who until Csillag’s discharge were also all employees of the Respondent,
had keys to the office, they were in the habit of using the office to leave records and other
documents for review by fellow officers. Regarding those specific uses, the Respondent’s
witnesses testified that they had no knowledge that union officers were using the space for
“meetings.”
As noted earlier, the Respondent fired Csillag on May 30, 2006. During the hearing,
counsel for the Respondent sought to introduce evidence as to the reasons for Csillag’s
discharge. Over the objection of counsel for the General Counsel and counsel for the Union, I
permitted a limited amount of such testimony.5 It was the Respondent’s contention that the
alleged misconduct, which led to Csillag’s discharge, as well as other inappropriate behavior by
Csillag, ultimately caused the Respondent to prohibit his access to the union office.
In summary fashion, I will simply indicate that the Respondent takes the position that it
fired Csillag for “tampering with, sabotaging and deleting/destroying company property,” and
also for “[m]aking false statements to company investigators during the course of their
investigation.” Specifically, he was accused of deleting files from a computer. (Res. Ex. 1.) In
any event, Csillag continued to serve as union president. At his termination meeting, Csillag
informed the Respondent’s director of operations and engineering, Mike Biltucci, and operations
manager, Patrick Givans6 that he would still need access to the union’s office at the facility.
It is undisputed that Biltucci gave Csillag permission to continue using the office.
According to Csillag, all he was required to do was to call ahead and tell Biltucci that he was
coming to the facility at some specific time. He testified that from his termination in May of
2006, until Sept of 2007, he went to the Respondent’s facility to use the office on the average of

5 Following my ruling, I did offer the Union and the General Counsel the opportunity, if they
chose, to offer some exculpatory evidence as to the alleged misconduct of Csillag. However,
for the most part, such evidence was not proffered. In any event, for the purpose of rendering a
decision in this case, it is not necessary for me to make any findings as to the truthfulness of the
reasons given by management for Csillag’s discharge, and I specifically make no such finding.
6 At the time of the hearing Givans was the Respondent’s director of technology.
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twice a month, where he would remain anywhere from 15 minutes to a couple of hours. During
that time period, Csillag was never denied access to the office. Typically, upon arriving at the
facility, Csillag would go to the lobby where he would wait for Biltucci to escort him part way to
the office. Upon leaving the office, he would alert Biltucci, who might walk him back to the
lobby, or perhaps not.
Biltucci’s testimony was somewhat different, but not materially so. He testified that
following his termination, Csillag was given permission to visit the facility under certain
conditions. Those conditions included calling ahead to get permission from either Biltucci or
Givans, indicating the time of the visit, the nature of the visit, and how long he would be visiting.
According to Biltucci, Csillag was escorted in and out of the facility because the Respondent did
not want him “roaming around the facility unfettered.” As expressed by the Respondent’s
witnesses, they did not trust Csillag following his termination.
In any event, until September of 2007, there were no particular problems regarding
Csillag’s access to the union office.7 However, on September 26, 2007, Csillag received an
email from Paul Kaderabek, the Respondent’s business director. Kaderabek complained about
Csillag’s alleged failure to abide by the parties previous agreement on access to the office, in
particular Csillag having allegedly entering the facility without an appointment and then being
found in parts of facility that he had no permission to enter. The message informed Csillag that
in the future he would be allowed on the premises only after receiving advance permission from
Biltucci or Givans to be so, only in the areas of the facility that he had been given permission to
be in, and would have to adhere to a time limit at the facility, which would need to be approved
by management. (G.C. Ex. 4.) Csillag testified that he considered this message as having
alerted him to a change in the past practice. Being unhappy with these perceived changes,
Csillag responded with an email dated September 27, 2007,8 in which he proposed his own
changes in the past practice. (G.C. EX. 5.)
The Respondent apparently takes the position that the September 26 message from
Kaderabek was nothing more than a recitation of the conditions, previously agreed upon, that
Csillag must comply with in order to seek access to the office following his termination. My
review of this document is in line with the Respondent’s position. Further, the General Counsel
does not allege in his complaint that the September 26 message changed the terms under
which access to the office had been permitted Csillag.
There then followed a series of emails between the parties where the issue of access to
the office was further discussed. (G.C. Ex. 7.) In any event, according to Csillag, during a
meeting at the Respondent’s facility in late October of 2007, the parties agreed that the
procedures that had been in place before Kaderabek’s September 26 email would remain in
place. Accordingly, Csillag continued to use the union office under the conditions that had been
imposed immediately following his termination. This remained the situation until December 28,
2007.
On December 28, Csillag received an email from Patrick Givans, which email accused
Csillag of misconduct during a disciplinary meeting for an employee that had been attended by
Csillag on December 21. Allegedly, Csillag “resisted leaving [the meeting] when asked,

7 During this same period of time, Csillag was at the facility without incident on a number of
occasions for reasons other than visiting the union office, such as for the purpose of attending
grievance meetings or to serve as a Weingarten representative.
8 All dates are in 2007 unless otherwise indicated.
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threatened to harass the Station with multiple access requests…threatened and demeaned
managers in front of an employee, and then abused access permission by remaining on the
property talking to Station employees.” Further, the email accused Csillag of causing “similar
problems in September and before.” Givans reminded Csillag that he had been “terminated for
destroying Company property,” and contended that the attempt to allow Csillag “some continued
access without jeopardizing Company security or productivity…has not worked.” The email
informed Csillag that effective immediately he “will not be allowed on-site simply to use
Company office space or equipment,” and that neither he nor any other non-employee would
have access to the union office. (G.C. Ex. 8.) It is these statements in the email that the
General Counsel contends in paragraphs 7(a), (c), (d), and 8 of the complaint constitute a
violation of the Act, as a unilateral change in the parties’ past practice.
In should be noted that Givans’ email attempts to make a distinction between the
Respondent’s denial of access by Csillag and other non-employees to the union office, and
Csillag’s continued access to the Respondent’s facility “for specific official meetings under the
same guidelines,” [as were previously imposed]. Further, the email assures Csillag that if there
are personal or union documents in the office that are needed by Csillag, he can make
arrangements with those union officers who are employees to deliver them to Csillag. Givans
notes that the office will continue to be available for the Respondent’s employees, who are also
union officers, for storage of union material and for “other purposes as in the past.” (G.C. Ex.
8.)
Not surprisingly, the parties disagree as what transpired at the meeting of December 21,
which allegedly precipitated Givans’ email of December 28. According to Mike Biltucci, Csillag
was at the facility on December 21 to attend a disciplinary action regarding employee John
Suarez. Present were Biltucci, Givans, Csillag, and Suarez. Biltucci testified that the meeting
needed to end by a specific time because Suarez was scheduled to direct the five pm newscast.
Never-the-less, Csillag allegedly refused to leave until he finished his note-taking. Biltucci
informed Csillag that he had 60 seconds to finish, after which Csillag replied that management
would “just have to get security to get [him] out of [the facility].” Further, Biltucci alleges that
Csillag told the two management officials that they “disgusted him,” and that he hoped that they
“would get what was coming” to them. Regarding the union office, Biltucci testified that Csillag
indicating that because of the end of the year accounting issues for the Union, he would need to
make several extended visits to the office to prepare materials for the accountant. Biltucci
further testified that once out of the Respondent’s building, Csillag remained in the parking lot
for 10-15 minutes talking with several employees, one of whom was allegedly on duty.
It is the Respondent’s position that Csillag’s conduct constituted harassment and
necessitated the prohibition against non-employees, specifically Csillag, using the union office,
as set forth in Givans’ letter of December 28. (G.C. Ex. 8.) During the hearing, Csillag did not
specifically deny Biltucci’s account of the December 21 meeting. However, in Csillag’s
December 29 email to Givans, which is a response to Givans’ email of the previous day, Csillag
does deny that he “resist[ed] leaving” the facility or that he threatened the two managers,
although he does admit telling them that their “actions are disgusting.” He acknowledges talking
with several off-duty employees in the parking lot, and of telling management that he would
need to visit the facility more than usual before the end of the year, but denies that this was
intended as harassment.9 (G.C. Ex. 9.)

9 While the parties obviously disagree as to the specific events occurring at the
December 21 meeting, for the purpose of deciding the issues before me it is not necessary that
I resolve any issues of credibility arising from the respective testimony about this meeting. In
Continued
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In closing his email of December 29, Csillag states the Union’s position that the union
office “was the subject of previous negotiations,” has been “in daily use [by the Union] for 17
years,” and that “ to deny access to the Local President is interfering with the Union and is
unlawful.” (G.C. Ex. 9.) On January 8, 2008, Givans replied by email, essentially denying
Csillag’s contentions, and standing on his earlier correspondence. (G.C. Ex. 10.)
Since December 28, Csillag has had no access to the union office. However, it is
undisputed that during this period he has continued to have access to the Respondent’s facility
for other purposes, including representing the Union at grievance meetings. There is no
contention by the General Counsel or the Union that Csillag has been denied access to the
Respondent’s facility since December 28, for any reason other than to use the union office.
Csillag testified that prior to his notification on December 28 that he would no longer be
permitted to access the union office, management never offered to bargain over access. It is
the General Counsel’s contention that the Respondent’s conduct constituted a unilateral change
in the parties’ past practice, and, as such, a violation of the Act. The Respondent argues that as
this denial of access to the union office by Csillag did not affect unit employees’ terms and
conditions of employment, and was not material, substantial, and significant, it, therefore, did
not constitute a violation of the Act.
2. The Layoffs
As noted earlier, the most recent collective-bargaining agreement between the parties
expired on January 31, 2006. (G.C. Ex. 2.) That contract contains a number of provisions
relating to the layoff of bargaining unit employees. Certain of those contract provisions are as
follows:
Reduction of Staff: Should it become necessary at any time, on account of reduction in staff,
for the Company to layoff any Employee, the Company shall give such Employee notice in
writing at least six (6) weeks in advance, and on the effective date of their layoff grant a
service letter. In addition, severance pay shall be given on the following basis: [chart] ….
(Art. 5.4, p. 12.) (emphasis added)

The Company shall notify the Local [Union] President in writing, within (7) days of … (c)
layoffs of NABET-CWA Employees. (Art.10.3, p. 25.)
[Recall rights for employees during periods of] layoff…. (Art. 5.4.1 and 5.4.2, p. 12-13.)
Layoffs on account of reduction of staff shall be made in inverse order of seniority within the
staff. (Art. 5.4.3, p. 13.) (emphasis added)
Reduction in Staff Through Automation: [payment chart]…. (Art. 5.5, p. 13.)
The expired contract also contains a comprehensive grievance procedure covering “all
complaints, disputes or questions as to the interpretation, application or performance of this
Agreement….”10
_________________________
order to evaluate the parties’ respective legal positions, I will conclude that the testimony of
Mike Biltucci was accurate as to the events of December 21.
10 It should be noted that no party has taken the position that either the layoff provisions or
the grievance procedure provisions fail to survive the expiration of the contract.
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In December of 2007, the Respondent’s management team made a decision to eliminate
weekend daytime production, specifically the Sunday morning newscast. The reasons for
management’s decision were a combination of low ratings for the newscast, and the expectation
that it would be replaced by a religious broadcast, which was far more lucrative. The final
Sunday morning newscast was aired in early December of 2007.
Article 3.1.4 (G.C. Ex.2, p. 4.) of the expired collective bargaining agreement provides
for a ratio of part-time and temporary employees’ hours worked to the regular, full-time
employees’ hours worked. Said somewhat differently, based on that ratio, there are a maximum
number of hours that can be worked by part-time and temporary employees.11 In order to
maintain this ratio, as the number of hours worked by full-time employees decrease, the
maximum number of hours worked by part-time and temporary employees must be reduced.
According to the testimony of Mike Biltucci, the elimination of the weekend morning
newscast resulted in fewer hours being worked by the full-time employees. He testified that in
mid-December of 2007, he recognized that in order to be in conformity with the ratio provision in
the expired contract, he would need to layoff some part-time employees.12 He contends that
there was no other way to stay within the ratio provision in the contract, and, therefore, the
decision was made by management to layoff three part-time employees.
By memorandum dated January 9, 2008, Biltucci informed part-time employees Roberto
Rios, Ilo Neukam, and Melissa Sass that they were being laid off “in inverse order of seniority as
required by the collective bargaining agreement.” It was explained in the memo that this
reduction in force was necessary in order not to exceed the maximum percentage of part-time
hours worked to full time-hours, as provided for in the contract. Further, the employees were
informed that the contract calls for six weeks advance notice and four weeks of severance pay.
However, they were told that since the advance notice given was three weeks instead of six,
that they would be provided with an additional three weeks of severance pay. The Union was
copied on the memo. (G.C. Ex. 11.)
It is undisputed, that prior to the issuance of the layoff memo, the Union was not
consulted about the Respondent’s decision to layoff part-time employees in an effort to maintain
the hours worked ratio. Further, it is undisputed that the Respondent’s managers never
specifically offered to bargain with the Union over their decision to layoff the three part-time
employees. Also, it appears uncontested that the Union never affirmatively asked to bargain
over this decision.
It is the position of the Respondent that bargaining over layoffs had previously taken
place, at the time the most recent contract was entered into. As the expired contract contained
a number of provisions covering the issue of layoffs, the Respondent contends that no further
bargaining was required. Counsel for the Respondent argues that under the terms of that
contract, if the Union believed the layoffs in question were not “necessary,” a grievance was the
appropriate method of resolving this issue. (G.C. Ex. 2, Art. 5.4 and 7.1) Further, the

11 No party has taken the position that the provision concerning the ratio of part-time and
temporary employees’ hours worked to the hours worked by regular, full-time employees fails to
survive the expiration of the contract.
12 It is the position of the Union that there may have been ways to reduce the number of
hours worked by part-time or temporary employees, so as to stay within the contractual ratio,
other than through the layoff of part-time employees.
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Respondent argues that even if there had been a duty to bargain over the layoff decision, the
Union waived its right to engage in such bargaining by failing to specifically request bargaining
of the Respondent.
It is the position of the Union and the General Counsel that the Union was not required
to specifically request that the Respondent bargain over its decision to layoff, as that decision
had been presented to the Union as an accomplished fact. Furthermore, the General Counsel
and the Union argue that the Respondent should have understood, based on the Union’s
subsequent actions, that the Union did not acquiesce in the decision.
By letter dated January 14, 2008, Csillag responded to the Respondent’s notice of layoff.
Specifically, the Union requested “effects” bargaining over the planned layoffs, and requested
certain financial and documentary records so as to consider the Respondent’s contentions
regarding the necessity of the layoffs. (G.C. Ex. 12.) In response, Paul Kaderabek, the
Respondent’s business director, sent Csillag an email. In that message, Kaderabek stated that
he had been “advised that ‘effects bargaining’ does not apply here.” Further, the message
indicated that “the parties have already bargained about layoffs. See Article 5 of the expired
agreement.” He repeated that “[t]here is no duty to bargain further about layoffs,” and declined
to furnish the requested financial records. However, he did agree to “provide information about
the projected part-time/full time hours ratio.” (G.C. Ex. 13.)
Under cross-examination, Csillag responded affirmatively that he “never, ever asked the
company to bargain over the decision to conduct the layoffs.” Still, he indicated that no request
was proffered “because the decision had already been made.” Never-the-less, the Union
subsequently filed two grievances, which appeared to challenge the Respondent’s layoff action.
On January 17, 2008, the Union filed a grievance under the terms of the expired contract,
stating as its grievance the claim that the “Company issued layoff notices to 3 Employees in
violation of the collective bargaining agreement.” As to remedy, the grievance indicated,
“[r]escind the layoff notices.” (G.C. Ex. 14.) A second grievance was filed on February 1, 2008,
stating as its grievance the claim that the “Company laid-off 3 Employees-Roberto Rios, Ilo
Neukam and Melissa Sass-on January 31, 2008, without providing information showing the
layoffs were necessary and without providing the required notice.” As to remedy, the grievance
indicated, “[p]rovide information showing the layoffs were necessary and make these
Employees whole for all lost wages and benefits or return them to work.” (G.C. Ex. 15.)
Certainly these two grievances appear to challenge the Respondent’s decision to layoff
the three employees, with the second grievance specifically questioning whether the layoffs
were “necessary” under the terms of the contract. In any event, the parties met to discuss the
first grievance on January 25, 2008. Present for the meeting on behalf of the Respondent were
Paul Kaderabek and Patrick Givans, with the Union represented by Csillag and Robert
Buchanan, Union vice-president. However, it appears that little was accomplished at the
meeting.
While the parties’ views as to the tenor of this meeting differ somewhat, for the most part
they agree as to which matters were discussed, and which were not discussed. Csillag
acknowledged under cross-examination that he did not orally request bargaining over the
Respondent’s decision to layoff, did not suggest any alternative to the layoffs, and did not make
any proposals about the layoff decision. Again, he testified that he did not discuss these
matters because the Respondent had already announced its decision. According to Csillag, the
Respondent limited the meeting to providing the Union with the Respondent’s reasons for the
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layoff decision, specifically the problem with the ratio between part-time and full-time
employees, and the Respondent’s justification for not complying with a provision in the expired
contract regarding the amount of notice that must be given to employees being laid off.
Regarding the Union’s request to bargain over the effects of the layoffs, Csillag testified
that Paul Kaderabek refused, saying that the Respondent did not need to do so, as the effects
of layoffs had already been bargained over and was covered under the terms of the expired
collective-bargaining agreement. Csillag claims that Kaderabek read from a “memo” stating the
Respondent’s position. It appears that Csillag is referring to Kaderabek’s email of January 16,
2008, wherein he indicated, “that ‘effects bargaining’ does not apply here”… as “the parties
have already bargained about the layoffs. See Article 5 of the expired agreement.” (G.C, Ex.
13.) Csillag admits that the Respondent’s managers never cut the meeting short; it simply
ended when it became apparent that further discussion would not be productive.
Csillag acknowledges that the Respondent has been processing grievances filed under
the terms of the expired contract, estimating that approximately 30 such grievances have been
filed by the Union and entertained by the Respondent.13 However, the Respondent has taken
the position that the arbitration provisions of the contract do not survive the agreement’s
expiration. Apparently the Respondent has refused to process to arbitration any grievances
filed since the expiration of the contract.14
The three employees in question were laid off as of January 31, 2008. The Union then
filed the second grievance, as discussed above, dated February 1, 2008. (G.C. Ex. 15.) While
Csillag testified on direct examination that the Respondent has never met with the Union to
discuss this particular grievance, this is somewhat inconsistent with his testimony on cross-
examination that the Respondent has not refused to process grievances filed under the terms of
the expired contract.15 In any event, the second grievance was for the most part simply a
repetition of the first grievance, over which the parties had met on January 25, 2008.
Following the meeting of January 25, 2008, there were a series of emails exchanged
between Csillag and Kaderabek wherein the parties seem merely to have restated their
respective positions. (G.C. Ex. 17.) Attached to Kaderabek’s correspondence was a work
sheet the Respondent prepared setting forth the hours worked by various employees, and the
difficulty the Respondent faced in attempting not to exceed the maximum hours worked by part-
time employees under the ratio as provided for in the expired contract. (G.C. Ex. 18.) This
information had been previously requested by the Union. Thereafter, the parties held no further
meetings regarding the layoffs.

13 Article 7.1 of the expired contract sets forth the grievance procedure, specifically the
establishment of a “Joint Conference Committee,” comprised of management and union
representatives. (G.C. Ex. 2, p. 16.)
14 The General Counsel has not alleged this conduct by the Respondent to constitute a
violation of the Act.
15 While Csillag’s testimony regarding the processing of grievances was somewhat unclear,
it seems reasonable to assume that the parties never met to discuss the second grievance
either because the Union did not request such a meeting; or because the Respondent took the
position that such a meeting was unnecessary, as the matters discussed at the January 25,
2008 meeting encompassed the same issues as raised by the second grievance.
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C. Analysis and Conclusions
1. Access to the Union Office
Counsel for the Respondent spends considerable effort in his brief arguing against a
finding, under Section 8(a)(1) of the Act, that the Respondent’s action in denying access to the
union office to union president Csillag interfered with, restrained, or coerced employees in the
exercise of their Section 7 rights. However, counsel’s efforts are misplaced. The complaint
before me does not allege an independent violation of Section 8(a)(1) of the Act. Rather, the
alleged violation of the Act is found under Section 8(a)(5), as a failure and refusal to bargain
collectively with the Union over access to the union office. The complaint clearly indicates that
such is the violation of the Act alleged by the General Counsel. The Section 8(a)(1) violation
referred to in the complaint is merely a derivative of the 8(a)(5) allegation. In these
circumstances, the 8(a)(1) allegation can not stand alone, and can only survive if the 8(a)(5)
allegation is found to have merit. As there is no independent 8(a)(1) allegation before me, I
make no finding regarding any such issue, and I need not address these arguments by counsel.
It is next argued by counsel for the Respondent that the 8(a)(5) allegation has no merit
since Csillag’s use of the union office was not a mandatory subject of bargaining. Further,
counsel contends that even if it was a mandatory subject, the Respondent’s change in past
practice by denying access to Csillag was not material, substantial, and significant. In any
event, counsel argues that the Respondent was justified in denying Csillag access because of
his prior misconduct and the Respondent’s legitimate property interests.
Of course, it is well established that a unilateral change in terms and conditions of
employment involving a mandatory subject of bargaining violates Section 8(a)(5) of the Act.
See the seminal cases of Bethlehem Steel Co. (Shipbuilding Div.), 136 NLRB 1500, 1503
(1962); and NLRB v. Katz, 369 U.S. 736, 743.
In a very recent case, Alcoa Inc., 353 NLRB No. 141 (8/29/08), the Board held that an
employer’s past practice of allowing employees to leave work early to attend union meetings
had become a term and condition of employment and was a mandatory subject of bargaining.
The Board reiterated the well established principle that an employer proposing a change in
employment conditions must give the union representing its employees advance notice and
must allow the union a “reasonable and meaningful opportunity to bargain” before the new
policy is implemented. As the employer had done so, the Board found no violation. See also
Intersystems Design and Technology Corp., 278 NLRB 759, 760 (1986), and cases cited
therein; Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999), enfd. in part, 233 F.3d 831 (4th Cir.
2000).
In Dorsey Trailers, Inc., the Board held that good-faith bargaining requires timely notice
and a meaningful opportunity to bargain regarding the employer’s proposed changes, as no
genuine bargaining can be conducted where the decision has already been made and
implemented, as in a “fait accompli.” In determining whether a union has been presented with a
“fait accompli,” the Board looks for objective evidence. (citing to Mercy Hospital of Buffalo, 311
NLRB 869, 873 (1993)).
Regarding the specific issue at hand, namely Csillag’s access to the union office, it is
well settled that a union’s right of access to represent employees is a mandatory subject of
bargaining. An employer can not unilaterally prohibit a union representative from visiting its
facility, where the visits are established through past practice, even though not specifically
incorporated in the collective-bargaining agreement. Further, even where the employer has
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accused the agent of misconduct, the employer is required to give the union notice and an
opportunity to bargain before making a unilateral change. Granite City Steel Co., 167 NLRB
310, 315-316 (1967); see also Peerless Food Products, Inc., 236 NLRB 161,161 (1978).
As was noted above, at Csillag’s termination meeting on May 30, 2006, he raised the
issue of his continued access to the union office, since he was no longer an employee but
remained the union president. It is undisputed that Biltucci orally gave Csillag permission to
continue using the office, as long as he called ahead and informed Biltucci that he would be
coming to the facility to use the office at some specific time. Although there was subsequently
some disagreement between Csillag and the Respondent’s managers as to whether Csillag was
fully abiding by the conditions that he had agreed to in order to access the office, Csillag’s
access to the office remained largely unfettered until December 28, 2007. During that period of
approximately 19 months, from the end of May 2006 until the end of December 2007, Csillag
asked for and received permission to access the union office approximately twice a month,
where he would remain for up to several hours. Therefore, I conclude that Csillag’s access to
the office was well established, first through a negotiated agreement between Csillag and
Biltucci on May 30, 2006, and then by a past practice established during 19 months of use. The
fact that this agreement covered only one non-employee, namely Csillag, did not diminish its
significance, as it was obviously intended to allow the union president to continue to access the
union office, as he had regularly done prior to his termination.16
An employer’s attempt to restrict a union agent’s right to access the employer’s facility,
in the agent’s representative capacity, where such access has been established by negotiations
or through past practice, is a mandatory subject of bargaining when the proposed changes are
material, substantial, and significant. Peerless Food Products, Inc., supra. Under the
circumstances of this case, I find the Respondent’s December 28, 2007, email to Csillag
informing him that he would no longer be permitted access to the union office (G.C. Ex. 8.) to
constitute a material, substantial, and significant unilateral change.
Counsel for the Respondent in his post-hearing brief refers to this denial of access by
the union president to the union office as “a trivial dispute,” which “could not rise to the level of
‘material, substantial, and significant.”’ However, unlike the denial of access in Peerless, where
the Board found no violation, the denial of access to Csillag limited the ability of the union
president to access the union’s files, use the union’s computer, and meet with other union
officers, who continued to be employed by the Respondent, as well as with other bargaining unit
employees.
Counsel for the Respondent makes much of the fact that other union officers had access
to the office, that the Respondent was unaware that the office was being used for meetings, and
that such meetings could be held between Csillag and employees off the Respondent’s
property. Further, counsel points out that Csillag was not denied access to the Respondent’s
facility for other representational purposes, such as the processing of grievances, but only
regarding the union office. Finally, counsel argues that the Union was free to establish an office
off the Respondent’s property, in which it could keep its files and computer, and hold meetings.
However, in my view, these arguments by counsel for the Respondent miss the point. It
is not for the Respondent to decide what use the union president may make of any office used
by the Union on the Respondent’s property, where access to that office has been furnished to

16 There is no evidence that any other union official was actually denied access to the office.
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the union president through negotiations and past practice.17 The “union office” was certainly
being used for representational purposes. It was being so used by the local union’s president,
its highest ranking officer. He used the office to access files, use the computer, and meet with
other union officers and bargaining unit members. It is axiomatic that such use was for
representational purposes protected by the Act. The denial of this access to Csillag was clearly
material, substantial, and significant. It was not ameliorated by the fact that others had access
to the office, or because Csillag continued to be allowed on the property for other purposes, or
because the Union might have established an office elsewhere.
I conclude that the Respondent’s denial of Csillag’s access to the union office had a
material, substantial, and significant negative impact on the Union’s representational activity on
behalf of the bargaining unit employees, and, thus, potentially affected their terms and
conditions of employment. The Respondent unilaterally implemented this change in the access
policy on December 28, 2007, without giving the Union advance notice or an opportunity to
bargain over the change. The only remaining issue is the Respondent’s contention that it was
justified in denying Csillag access to the union office because he had engaged in misconduct,
and was not abiding by the access agreement of May 30, 2006.
In his post-hearing brief, counsel for the Respondent cites a number of cases to support
his position that Csillag’s alleged misconduct warranted the Respondent’s prohibition of access
for Csillag to the union office. However, I believe all these cases are distinguishable. There is
no doubt that the Board has repeatedly held that the Act requires a balancing of two conflicting
rights, namely those of employees to be represented by a labor organization of their choice, with
the right of an employer to control its property and ensure that its operations are not interfered
with. Holyoke Water Power Co., 273 NLRB 1369, 1370 (1985). That is particularly true where
the access issue applies to non-employee union agents. Still, the Holyoke case is
distinguishable as it involved a “request” by the bargaining representative to allow for an
industrial hygienist to make an inspection of the employer’s facility, rather than the continuation
of a well established past practice, as in the matter before me. Similarly, in Great Western
Coca-Cola Bottling Co., 265 NLRB 766, 777-779 (1982), the General Counsel failed to establish
the existence of a past practice for access, and the union’s attempt to access the employer’s
facility was made during a decertification campaign. Under these unique circumstances, the
employer’s offer to have the non-employee union agents “escorted” while on its property was
considered reasonable.
The issue before me is far different, as the parties had a past practice of some 19
months, from May 2006 to December 28, 2007, of allowing Csillag, the non-employee union
president, to have access to the union office. If the Respondent had genuine concerns about
Csillag’s conduct, it could have raised the issue with the Union and engaged in good faith
negotiations in an attempt to reach an agreement on access for Csillag. Instead, the
Respondent simply unilaterally promulgated a policy prohibiting Csillag from coming on its
property for the purpose of accessing the union office. As counsel for the General Counsel
points out in his post-hearing brief, the Respondent’s reasons and concerns about Csillag’s
conduct did not relieve the Respondent of its bargaining obligation. Peerless Food Products,
Inc., supra at 161.

17 Obviously, this would not apply where the Union was using the office for illegal or immoral
purposes, or where the Union’s use of the office was disruptive of the Respondent’s operation.
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The Respondent did not notify and bargain with the Union, it simply unilaterally changed
what had become a well established past practice of allowing Csillag access to the
Respondent’s facility so that he could utilize the union office. As noted earlier, access for the
Union to the Employer’s property is undoubtedly a mandatory subject of bargaining, which
affects the employees’ terms and conditions of employment, and the change to that policy was
material, substantial, and significant.
The Respondent claims to have genuine concerns about Csillag’s alleged destruction of
its property, for which he was fired, regarding his alleged untruthfulness during the investigation
of that incident, about his alleged failure to abide by the conditions under which he was allowed
access to the union office, and regarding his alleged disruption of the Respondent’s operation
and disrespect toward management. However, regardless of whether these were serious
issues over which the Respondent was genuinely concerned, the Respondent was not relieved
of its bargaining obligation toward its employees' representative.18 If the Respondent desired to
prevent Csillag from accessing the union office at its facility, it was required to notify the Union
and give the Union the opportunity to bargain.19 This it failed to do.
Accordingly, I conclude that by unilaterally changing the terms and conditions under
which Csillag, as union president, had been permitted access to the union office, the
Respondent has been failing and refusing to bargain collectively with the Union in violation of
Section 8(a)(1) and (5) of the Act, as alleged in paragraphs 7(a), (c), (d), and 8 of the complaint.
2. The Layoffs
Counsel for the Respondent makes a number of arguments in support of his position
that the Respondent did not fail and refuse to negotiate with the Union regarding the layoff of
three bargaining unit employees. In my view, the strongest of these arguments is the contention
that the parties did in fact previously bargain over layoffs, and that said bargaining resulted in
contractual language, as contained in the most recent contract. The Respondent acknowledges
that the issue of layoffs is a mandatory subject of bargaining, which, therefore, normally requires
notification to a collective-bargaining representative and an opportunity to bargain before an
employer can layoff employees. This particular argument by counsel does not include any
contention that the Union waived its right to bargain, but, rather, that the Union and the
Respondent did in fact bargain to agreement over this issue, which is allegedly demonstrated by
the various provisions relating to layoffs in the most recent collective-bargaining agreement.
As argued by the Respondent, the Board cases do seem to consistently hold that
additional bargaining over layoffs is not required when a union and an employer have already
negotiated over layoffs and incorporated the results of those negotiations into a collective-
bargaining agreement. See Seaport Printing & AD Specialties Inc., 351 NLRB No. 91, *2
(2007); Odebrecht Contractors of California, Inc., 324 NLRB 396, 403 (1997); Farina Corp., 310
NLRB 318, 320 (1993). Counsel for the Respondent further argues that an employer is simply
not required to negotiate all over again each time the layoff provision it already negotiated with
the union comes into play. That does appear to be the logical result of the Board’s holdings in

18 In order to address the allegations in the complaint, it is not necessary for me to resolve
the Respondent’s contention that Csillag engaged in misconduct, both before and after his
discharge. I specifically make no such finding.
19 The Respondent does not contend that Csillag’s alleged misconduct was so egregious as
to require his immediate exclusion from the Respondent’s facility, and, in fact, the Respondent
sought only to prohibit Csillag’s access from the “union office.”
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the three above-cited cases. Of course, in the case at hand, one needs to look at the precise
language in the most recent collective-bargaining agreement to determine whether in fact the
Respondent and the Union have set forth procedures for the layoff of employees, if necessary.
Looking to the most recent contract between the parties, which expired on January 31,
2006 (G.C. Ex. 2.), there appear to be a number of provisions that involve both the layoff of
employees, as well as the effects of such layoffs. Those provisions were enumerated earlier in
this decision, where they are cited by specific article and page number. They include a
“reduction of staff” provision that indicates if it should “become necessary…on account of
reduction in staff…to layoff any employee, the [Employer] shall give such employee notice in
writing at least six (6) weeks in advance, and…grant a service letter.” Also, it provides that
“severance pay shall be given on the following basis….” [a chart follows]. Other provisions in
the contract provide for layoff notification to the Union in writing; the recall right of laid off
employees; and the requirement that “layoffs on account of reduction in staff shall be made in
inverse order of seniority within the staff.”
I agree with counsel for the Respondent that the existences of these provisions
demonstrate that the Respondent and the Union have previously negotiated over these matters
and have established rules regarding how layoffs are to be handled. Of particular significance is
the comprehensive grievance procedure in the contract covering “all complaints, disputes or
questions as to the interpretation, application or performance of this Agreement.” (G.C. Ex. 2;
Art. 7.1, p. 16.) It is clear that the grievance procedure survives the expiration of the contract,
even if the arbitration provision does not.20 If the Union objected to the Respondent’s decision
to layoff the three employees in question, it could file a grievance over whether such a layoff
was “necessary.” In fact, that is precisely what the Union did, filing two such similar grievance
on January 17 and February 1, 2008, respectively. (G.C. Ex. 14 and 15.) Further, the parties
did meet to discuss the first grievance on January 25, 2008, although the matter was obviously
not resolved.
What useful purpose could the layoff and grievance provisions in the contract serve if in
every instance where a layoff was considered “necessary” by the Respondent, the Respondent
was required to bargain anew with the Union? I can determine none. The Board cases hold
and logic dictates that once the parties have negotiated over these layoff issues and
incorporated the results of their agreement in a contract, no further such negotiations are
required. Nothing could more clearly demonstrate this conclusion than the requirement in the
collective-bargaining agreement that the Union be given written notice within 7 days of the
layoffs. It would certainly not foster the interests of collective-bargaining to require the
Respondent to give some advance notice to the Union of its decision to layoff different than the
contractual requirements, to which the parties had previously agreed.
Accordingly, I conclude that the Respondent’s conduct surrounding the layoff of the
three employees in question did not constitute an unlawful refusal to notify the Union and to
provide the Union with the opportunity to bargain over its decision to layoff the workers. As the
layoff provisions in the collective-bargaining agreement are the result of the parties successful

20 The fact that the arbitration provision of the collective-bargaining agreement did not
survive the expiration of the contract is simply one of the consequences of the failure by the
parties to reach agreement on the terms of a new contract. It does not detract from the
otherwise viable provisions of the surviving grievance procedure.
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bargaining efforts over these matters, no further negotiations were required. Therefore, I shall
recommend that complaint paragraphs 7(b), (c), (d), and 8, only as they relate to the layoff
decision issue, be dismissed.
Although I have concluded that the Respondent was not under any legal obligation to
further negotiate with the Union over its decision to layoff the employees, I will briefly address
the Respondent’s alternative contention that even if required to so negotiate, the Union waived
its right to bargain over the decision by not specifically requesting such bargaining. Essentially,
the Respondent is taking the position that the Union waived any right to bargain by its inaction in
not requesting bargaining. I disagree.
The facts establish that the Union was first notified of the Respondent’s layoff decision
on January 9, 2008, at the same time that the employees to be laid off were so notified. The
notification memo from management was addressed to the three employees to be laid off,
Roberto Rios, Ilo Neukam, and Melissa Sass, with a copy sent to the Union. (G.C. Ex. 11.)
Although the actual layoffs did not occur until January 31, 2008, the decision was presented to
the employees and the Union as a “fait accompli.” Union president Csillag testified that
thereafter, the Union never specifically requested that the Respondent bargain with it over the
“decision” to layoff employees. It is this failure on the part of the Union to specifically request
bargaining over the decision that the Respondent claims constituted a waiver of the Union’s
right to bargain.
However, in my view, it should have been obvious to the Respondent that the Union did
not acquiesce in the layoff decision. While the testimony of Csillag was somewhat
contradictory, he did testify at one point that no request to bargain over the decision was
proffered “because the decision had already been made.” Still, the clearest evidence that the
Union wanted the layoff decision reversed was the two grievances filed by the Union on
January 17 and February 1, 2008, respectively. (G.C. Ex. 14 and 15.) In the January 17
grievance, the requested remedy was for the Respondent to “[r]escind the layoff notices.”
Similarly, in the February 1 grievance, the Union requested as a remedy that the Respondent
“[p]rovide information showing the layoffs were necessary and make these employees whole for
all lost wages and benefits or return them to work.”
It seems to me that the two grievances clearly challenged the Respondent’s decision to
layoff the three employees, with the second grievance specifically questioning whether the
layoffs were “necessary” under the terms of the contract. In any event, the parties met to
discuss the first grievance on January 25, 2008. At the hearing, Csillag admitted under cross-
examination that he did not orally request bargaining over the decision to layoff, did not suggest
any alternative to the layoffs, and did not make any proposals regarding the layoffs. He testified
that he did not raise these issues at the meeting because the Respondent had already
announced the layoffs and its managers indicated no interest in altering their decision. The
meeting was limited to a discussion of the Respondent’s reasons for the layoffs, specifically the
problem with the ratio between the part-time and full time employees, the issue of notice to the
employees scheduled for layoff, and the Respondent’s refusal to bargain over the “effects” of
the layoff. The Respondent’s managers took the position that the parties had already bargained
over “effects,” as was allegedly reflected by the language in the expired collective-bargaining
agreement.21

21 The issue of whether the Respondent violated the Act by allegedly refusing to bargain
over the “effects” of the layoff will be discussed later in this decision.
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The Board has held that where an employer gives notice to a union of its intent to
change a condition of employment, and where the notice is given too short a time before
implementation, or under circumstances where it is clear that the employer has no intention of
bargaining about the subject, then a violation will be found even if the union has failed to
request bargaining. In such cases, the Board has found that the notice is intended to
accomplish nothing more than informing the union of a “fait accompli.” Bell Atlantic Cop., 336
NLRB 1076, 1086 (2001). Similarly, the Board has generally found that the announcement of
changes given to employees before notification is given to the Union is sufficient to establish
that the employer’s decision is a “fait accompli.” Such late notice to a union precludes the
possibility of meaningful bargaining, and, therefore, the union has no reason to request
bargaining. Roll & Hold Warehouse & Distribution Corp., 325 NLRB 41 (1997).
In the matter at hand, the Respondent informed the Union of its decision to layoff
employees at the same time it so notified the very employees scheduled to be laid off. Nothing
in the Respondent’s subsequent actions appeared to suggest anything other than that its
decision to layoff employees constituted an unyielding position. See Mercy Hospital of Buffalo,
311 NLRB 869, 873 (1993). In my view, the Union was certainly reasonable in concluding,
based on the Respondent’s actions, that the Respondent’s position on the layoffs was
unyielding. Under those circumstances, the Union was not obligated to specifically request
bargaining over the decision.
In any event, the Union’s subsequent actions were sufficient to put the Respondent on
notice that it did not intend to acquiesce in the Respondent’s decision. See Oak Rubber Co.,
277 NLRB 1322, 1323 (1985), enforcement denied 816 F.2d 681 (6th Cir. 1987); Armour & Co.,
280 NLRB 824, 828 (1986). As noted above, the Union filed two grievances over the layoffs,
both of which sought to have the layoff decision reversed.
It was the Respondent’s position that no bargaining was required over its decision to
layoff employees, as bargaining had previously occurred and agreement by the parties reflected
in the expired contract. The Respondent’s conduct demonstrated that any request by the Union
to bargain over the decision would be futile, as the decision was a “fait accompli.” Under these
circumstances, the Union was not required to specifically ask the Respondent to bargain over its
decision, and the Union’s failure to do so did not constitute a waiver of its right to bargain.
National Car Rental, 252 NLRB 159, 163 (1980), enfd. in rel. part 672 F.2d 1182 (3rd Cir. 1982);
Intersystems Design Corp., 278 NLRB 759, (1986).
Accordingly, I conclude that under the circumstances of this case, the Union’s failure to
specifically request bargaining over the Respondent’s decision to lay off employees did not
constitute a waiver of the Union’s right to bargain on behalf of the laid off employees. However,
I do not find that the Respondent’s refusal to bargain with the Union following its decision to lay
off employees constituted a violation of Act, as I earlier concluded that the Respondent was
privileged to take that position since bargaining over layoffs had previously occurred, and was
reflected in the most recent collective-bargaining agreement between the parties.
One final contention by the Respondent must be addressed, namely the question of
whether the layoff decision was directly “linked” to an earlier decision to discontinue a live
weekend news broadcast. There is no dispute that the decision to discontinue this program was
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solely a managerial decision and, thus, a non-mandatory subject of bargaining.22 However, it is
the Respondent’s contention that the decision to discontinue the program led directly to the
decision to layoff the three employees. Accordingly, the Respondent argues that even if it
unlawfully failed to bargain with the Union over the layoff decision, any remedy should be limited
to that set forth in Transmarine Navigation Corp., 170 NLRB 389 (1968), and should, therefore,
not include reinstatement and full back pay. Counsel for the General Counsel disagrees,
contending that the decision to discontinue programming was unrelated to the later decision to
layoff employees. It then follows, according to counsel, that any failure to bargain over the
decision to layoff must be remedied by reinstatement and full back pay.
As was discussed earlier, in December of 2007, the Respondent’s management team
made a decision to eliminate weekend daytime production, specifically the Sunday morning
newscast. The reasons for management’s decision were a combination of low ratings for the
newscast, and the expectation that it would be replaced by religious broadcasting, which was
more lucrative. The final Sunday morning newscast was aired in early December of 2007.
There is no dispute that this was solely a managerial decision, and, as such, a non-mandatory
subject of bargaining.
Article 3.14 (G.C. Ex. 2, p. 4.) of the expired collective-bargaining agreement provides
for a ratio of part-time and temporary employees’ hours worked to the regular, full time
employees’ hours worked. Based on that ratio, there are a maximum number of hours that can
be worked by part-time and temporary employees. In order to maintain this ratio, as the number
of hours worked by full-time employees decreases, the maximum number of hours worked by
part-time and temporary employees must also be reduced.
It is undisputed that the elimination of the weekend morning newscast resulted in fewer
hours being worked by the full-time employees. Mike Biltucci, the Respondent’s director of
operations and engineering, testified that in mid-December of 2007, the Respondent’s
managers realized that in order to remain in conformity with the ratio provision in the expired
contract, the Respondent would need to layoff some part-time employees. Therefore, a
decision was made to layoff three part-time workers. Biltucci contends that there was no other
way to stay within the ratio provisions of the contract. Subsequently, on January 9, 2008, the
three employees selected for layoff were so notified, with their positions eliminated on
January 31, 2008. (G.C. Ex. 11.)
It is the position of the General Counsel and the Union that there may have been some
way, other than a layoff of the three part-time employees, for the Respondent to have remained
in conformity with the ratio provision in the expired contract.23 However, it is the Respondent’s
position that the layoffs were the only practical way to maintain the ratio.
Although I have already concluded otherwise, for purposes of the remaining discussion, I
will assume that the Respondent unlawfully failed and refused to bargain with the Union over
the “decision” to layoff employees. Under those circumstances, the General Counsel is seeking

22 The Board has long held that an employer’s right to direct “the core purpose” or central
nature of its business involves managerial decisions, which are non-mandatory subjects of
bargaining. Peerless Publication, Inc., 283 NLRB 334 (1987).
23 It should be noted that between the date it was notified of the layoffs, January 9, 2008,
and the date the employees were actually laid off, January 31, 2008, the Union apparently failed
to make any alternate suggestions to the Respondent as to how the ratio could be maintained
without the layoffs.
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a restoration of the status quo ante, i.e. reinstatement and full back pay. However, the case law
does not support such a remedy, providing instead for a limited back pay remedy as called for
under Transmarine Navigation Cop., 170 NLRB 389 (1986).
The Board has repeatedly held that where a decision to layoff employees is directly
linked to a non-bargainable managerial decision, the appropriate remedy for a failure to bargain
over the layoff decision is found in Transmarine. In the fairly recent case of North Star Steel
Co., 347 NLRB 1364 (2006), the employer changed its scrap-yard system. This change was a
non-mandatory subject of bargaining. Eight months later,24 the employer laid off employees.
The Board found that the employer had unlawfully refused to bargain over the layoff decision.
However, the Board held that reinstatement was an inappropriate remedy, relying on Litton
Financial Printing Division, 286 NLRB 817, 820-822 (1987) and Fast Food Merchandisers Inc.,
291 NLRB 897, 899-900 (1987). The Board reasoned that the layoffs “flowed from the earlier
decision,” which was a non-mandatory subject of bargaining, and the earlier decision “produced”
the layoffs. North Star Steel Co., at 1370-1371.
In Litton Financial Printing Division, supra, the Board found an unlawful refusal to
bargain over a decision to layoff. However, the Board also concluded that reinstatement was
inappropriate since the decision to layoff was “one of a number of responses,” which the
employer could have selected in response to “changed circumstances” created by the
employer’s earlier decision to implement a cold-type printing process, which was a non-
mandatory subject of bargaining. It is certainly significant that in the case at hand, the General
Counsel and the Union also contend that the Respondent’s decision to layoff, allegedly made
without bargaining with the Union, was only one of a number of ways in which the Respondent
could have remained in compliance with the ratio provision in the expired contract. However,
such a finding would not negate the conclusion that the Respondent’s original decision to end a
Sunday news broadcast created the changed circumstances that led directly to the decision to
layoff employees.
Another very similar case is Fast Food Merchandisers Inc., supra, where the employer
transferred work from its old facility to a new facility, a non-mandatory subject of bargaining.
There then followed the employer’s decision to layoff employees, which the Board concluded
was unlawful because the employer had failed to negotiate with the union. However, the Board
held that reinstatement was an inappropriate remedy since there was a “linkage” between the
layoffs and the earlier non-mandatory subject of bargaining. Id. at 899-900; also see Odebrecht
Contractors of California, Inc., 324 NLRB 396-398 (1997) (Board found layoff was “an effect” of
earlier non-mandatory bargaining decision, denied reinstatement, and ordered a Transmarine
remedy). 25
While counsel for the General Counsel attempts to distinguish the facts in these cases, I
find them to be most applicable to the case at hand. In each of these cases, the Board held that
while the original decision was a non-mandatory subject of bargaining, and the decision to layoff
flowed directly from that original managerial decision, the layoff decision was made unlawfully

24 It should be noted that in the case at hand, the layoffs occurred only a month or two after
the discontinuation of the weekend news broadcast, the non-bargainable managerial decision.
25 The Board sometimes uses the term “effects bargaining” obligation, when it is describing
the process whereby the “decision to layoff” employees was made. By using the term “effects
bargaining” in these cases, the Board appears to mean that the “decision to layoff” was the
natural effect of an earlier managerial decision, which decision was a non-mandatory subject of
bargaining.
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as the employer failed to negotiate with the union over the layoff. Similarly, in the case before
me, the decision to layoff the three part-time workers was “linked” or “directly related” to the
earlier managerial decision to discontinue the weekend news broadcast. As I am, for purposes
of this discussion, assuming the layoffs were unlawful as taken without negotiating with the
Union, some remedy is appropriate. However, in each of the cases cited above, the Board
ordered the Transmarine remedy, rather, than the more traditional remedy of reinstatement with
full back pay. In my view, it is simply not possible to distinguish these cases from the matter
before me.
Although I continue to find that the Respondent’s decision to lay off the three employees
was not unlawful, I have assumed for purposes of this discussion only that the layoff decision
was unlawful. Under those circumstances, had I found such a violation of the Act, I would have
concluded that the appropriate remedy for the layoffs was the limited back pay remedy found in
Transmarine.26
3. The Effects of the Layoffs
The remaining issue that must be discussed is the General Counsel’s allegation, as
found in complaint paragraph 7(d), that apart from the issue of the Respondent’s alleged failure
to bargain over its decision to layoff employees; that the Respondent committed a separate
violation of the Act by failing to bargain over the “effects” of that decision. As noted, I have
earlier concluded that the Respondent did not fail and refuse to bargain with the Union over its
decision to layoff employees because it had in fact negotiated with the Union over the issue of
layoffs, which agreement between the parties was contained in the most recent expired
contract. For essentially the same reason, I conclude that the Respondent did not fail and
refuse to negotiate with the Union over the effects of the layoff decision.
The most recent collective-bargaining agreement between the parties contains
numerous provisions specifically dealing with the “effects” of a layoff. (G.C. Ex. 2.) Under
“Reduction of Staff” (Art. 5.4, p. 12.) the contract provides for employees to be notified six
weeks prior to a layoff, to receive a service letter, and, most significantly, to be awarded
“severance pay” in accordance with a specific schedule based on length of service. The
contract provides for the recall rights of the laid off employees (Art. 5.4.1 and 5.4.2, p. 12-13.),
for layoffs to be conducted in “inverse order of seniority” (Art. 5.4.3, p. 13.), and for a specific
schedule of “notice or pay” based on length of service for employees laid off “due to automation”
(Art. 5.5, p. 13).
Unlike the issue concerning the “decision” to layoff, there is no dispute that the Union did
request an opportunity to bargain over the “effects” of the planned layoffs. In Csillag’s letter to
Paul Kaderabek, the Respondent’s director of business affairs, dated January 14, 2008, Csillag
demanded “to immediately engage in effects bargaining with KGTV.” (G.C. Ex. 12.) In
Kaderabek’s email response, dated January 16, 2008, he stated that he had been “advised that
‘effects bargaining’ does not apply here.” Further, the message indicated that “the parties have
already bargained about layoffs. See Article 5 of the expired agreement.” Kaderabek repeated
that “[t]here is no duty to bargain further about layoffs,” and declined to furnish certain financial
records that Csillag had requested. However, he did agree to “provide information about the
projected part-time/full time hours ratio.” (G.C. Ex. 13.)

26 Transmarine Navigation Corp., 170 NLRB 389 (1968).
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As noted earlier, the Union filed two grievances over the layoffs. The parties met on
January 25, 2008 to discuss the first of these grievances. However, as described in detail
above, little was accomplished at this meeting. Still, I credit Csillag’s testimony that he
requested “effects” bargaining, which request was refused by Kaderabek for the reason that the
effects of layoffs had already been bargained over and were covered under the terms of the
expired collective-bargaining agreement. Csillag claims that Kaderabek read from a “memo”
stating the Respondent’s position. It appears that Csillag is referring to Kaderabek’s email of
January 16, the substance of which is set forth immediately above. To the extend that in
Kaderabek’s testimony he denied a refusal to bargain over the effects of the layoffs at this
meeting, I do not credit him, as it is clear from the Respondent’s letter of January 16 exactly
what the position of the Respondent was.
The Respondent’s position was simply that no further bargaining over “effects” was
necessary, as the parties had previously done so, and their agreements were reflected in Article
5 of the expired contract. I agree.
As I indicated earlier, the Board has held that additional bargaining over layoffs is not
required when a union and an employer have already negotiated over layoffs and incorporated
the results of those negotiations into a collective-bargaining agreement. See Seaport Printing &
AD Specialties Inc., supra; Odebrecht Contractors of California, Inc., supra; Farina Corp., supra.
By analogy, I believe the holding of those cases would also apply to bargaining over the
“effects” of a layoff. It would make no sense to require an employer to negotiate with a union
over “effects” every time there was a layoff, when the parties had previously negotiated and
placed their agreement in these matters into their contract. In the case before me, this was
preciously what the Union and the Respondent had done in Article 5 of their contract. Further,
the parties provided that any dispute over the “effects” language in the contract could be
resolved by way of the comprehensive grievance procedure in the contract. (G.C. Ex. 2; Art.
7.1, p. 16.)
Accordingly, I conclude that the Respondent did not fail and refuse to bargain with the
Union over the “effects” of its decision to layoff employees. As the provisions in the collective-
bargaining agreement dealing with the “effects” of a layoff were the results of the parties
successful bargaining efforts over these matters, no further negotiations were required.
Therefore, I shall recommend that complaint paragraphs 7 (b), (c), (d), and 8, only as they relate
to the “effect” of the layoff issue, be dismissed.27
Conclusions of Law
1. The Respondent, McGraw-Hill Broadcasting Company, Inc., d/b/a KGTV, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, National Association of Broadcast Employees and Technicians-
Communications Workers of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.

27 Assuming a violation was to be found over a failure to bargain over the “effects” of the
layoffs, then the appropriate remedy would be as provided for in Transmarine Navigation Corp.,
supra.
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3. The unit of employees as set forth in Article 1 of the most recent collective-bargaining
agreement between the Union and the Respondent, effective by its terms from October 1, 2002,
through January 31, 2006, constitutes a unit appropriate for the purposes of collective-
bargaining within the meaning of section 9(b) of the Act.
4. Since at least October 1, 2002, the effective date of the last contract between the
Union and the Respondent, the Union has been the exclusive collective-bargaining
representative of the employees in the above described unit within the meaning of Section 9(a)
of the Act.
5. By unilaterally changing the terms and conditions under which Dennis Csillag, the
non-employee union president, had been permitted access to the union office, the Respondent
has been failing and refusing to bargain collectively with the Union in violation of Section 8(a)(1)
and (5) of the Act.
6. The above unfair labor practice affects commerce within the meaning of Section 2(6)
and (7) of the Act.
7. The Respondent has not violated the Act except as set forth above.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the polices of the Act.28
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended29
ORDER
The Respondent, McGraw-Hill Broadcasting Company, Inc. d/b/a KGTV, its officers,
agents, successors, and assigns, shall
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with the Union as the exclusive collective-
bargaining representative of the employees in the unit set forth in the collective-bargaining
agreement between the Respondent and the Union, effective by its terms from October 1, 2002,
through January 31, 2006;

28 Although a monetary award of back pay is not required to remedy the unfair labor
practices that I have found the Respondent to have committed, had I found such a remedy to be
necessary, I would have denied counsel for the General Counsel’s request that interest on the
back pay be compounded on a quarterly basis. See General Business Supply d/b/a Tech
Valley Printing, 352 NLRB No. 81, fn. 5 (2008).
29 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(b) Unilaterally, without notice to or bargaining with the Union, changing its access policy
by prohibiting Dennis Csillag, the non-employee union president, from having access to the
union office at the Respondent’s facility; and
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) On request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of the bargaining unit employees;
(b) Restore the Respondent’s past practice of permitting non-employee union president
Dennis Csillag access to the union office at the Respondent’s facility;
(c) Within 14 days after service by the Region, post at its facility in San Diego, California,
copies of the attached notice marked “Appendix.”30 Copies of the notice, on forms provided by
the Regional Director for Region 21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
December 28, 2007; and
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found.
Dated at Washington D.C., October 10, 2008.
_______________________
Gregory Z. Meyerson
Administrative Law Judge

30 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferers with these rights. Specifically:
WE WILL NOT fail and refuse to bargain collectively with the National Association of Broadcast
Employees and Technicians-Communications Workers of America, AFL-CIO (the Union) as the
exclusive collective-bargaining representative of a unit of our employees as set forth in our
collective-bargaining agreement, effective from October 1, 2002, through January 31, 2006.
WE WILL NOT unilaterally, without notice to or bargaining with the Union, change our access
policy by prohibiting Dennis Csillag, the non-employee union president, from having access to
the union office at our facility.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor laws.
WE WILL on request, bargain in good faith with the Union as the exclusive collective-bargaining
representative of our bargaining unit employees.
WE WILL restore our past practice of permitting Dennis Csillag, the non-employee union
president, access to the union office at our facility.
McGraw-Hill Broadcasting Company, Inc. d/b/a KGTV
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.