KXTV

National Labor Relations Board - Board Decisions

Oct 15, 1962

139 N.L.R.B. 93 (N.L.R.B. 1962)

KXTV 93
Great Western Broadcasting Corporation d/b/a KXTV and
San Francisco Local of the American Federation of Tele-
vision and Radio Artists, AFL-CIO. Case No. 920-CA-1916.
October 15, 1962
DECISION AND ORDER
On March 29, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent, the General Counsel,
and the Charging Party filed exceptions to the Intermediate Report.
The Respondent and the General Counsel filed supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications noted herein.
We find that the Respondent violated Section 8(a) (5) of the Na-
tional Labor Relations Act by (1) abruptly shifting its collective-
bargaining position and reasserting demands previously withdrawn
or compromised during negotiations; (2) on or about September 13,
1960, unilaterally changing wage rates, hours, and other terms and
conditions of employment then in effect without consulting the Union;
and (3) failing to furnish data requested by the Union with respect
to the base pay and fees of employees in the unit 2
Our dissenting colleague would dismiss the complaint here in its
entirety on the ground that the Union requested that two staff di-
rectors, who are supervisors, be included in the unit. In our view,
this position applies a mechanistic stricture upon bargaining relations
and would imply that regardless of the effect of a request to include
supervisors in the unit such a request would completely erase all efforts
i As the record, including the exceptions and briefs , adequately present the issues and
positions of the parties, the request for oral argument by the Respondent is denied
z Member Fanning would also find, in agreement with the Trial Examiner, that Re-
spondent fuithei violated Section 8(a) (5) by, on, or about September 4, 1960, bargaining
directly and individually with employees in the collective-bargaining unit In Member
Leedom's opinion, however, Respondent's conduct on this occasion was only an exposition
of its position, and did not constitute direct bargaining with the employees There is,
accordingly, no majority for finding that Respondent violated the Act in this respect.
139 NLRB No. 11.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at bargaining subsequent to such a request. It fails to recognize
that the inclusion of supervisors in the Union's request to bargain
may, as in this case, have little relationship, if any, to subsequent un-
lawful conduct which frustrates the collective- bargaining processes.
It results, we believe, from a fundamental error concerning the effect
of a request to bargain in a unit which includes supervisors.
This is a situation where an excuse is merely an excuse and not a
fundamental cause of breakdown in bargaining relationships.
The facts are set forth in detail in the Intermediate Report, but the
dissent's isolation of the one factor upon which our colleague would
dismiss the complaint makes it necessary to put that factor in its proper
context.
The Union's certification in 1956, upon which subsequent bargain-
ing was based, resulted in the negotiation of two successive contracts
,which specifically included staff directors in the unit as agreed to by
the Union and Respondent's predecessor. This unit was not one
prohibited by the Act or in any other way illegal. Section 14(a)
merely states that no employer shall be "compelled to deem individuals
defined herein as supervisors as employees," and there is no authority
warranting the conclusion that the Union's proposal was tainted with
illegality.' Consequently, although the Respondent could not be com-
pelled to bargain concerning supervisors, parties lawfully may and
frequently do regard a unit which includes supervisors as a unit ap-
propriate for collective bargaining,' as did the Union and Respond-
ent's predecessor here.
The first negotiating meeting was on April 23, 1960. As part of
its proposal the Respondent requested the exclusion of staff directors.
At the second session on April 28, the Respondent's proposal to ex-
clude the staff directors, among other issues, was thoroughly discussed.
By letter dated May 2, the Respondent outlined 18 major changes it
wished to make. Among them, as found by the Trial Examiner,
was the removal of staff directors from contract coverage "to permit
their effective supervision of AFTRA and NABET employees whom
they direct."
3As the quotation from International Typographical Union, API CIO (Haverhill
Gazette ) v. N L R B , 278 F 2d 6, 10-11 (C A 1), on which the dissent relies , is dictum,
not supported by precedent, we regard it as unpersuasive authority on the issue involved
herein Moreover, in Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO (Geilich Tanning Co) v NL.R.B., 276 F 2d 34 (CA 1), the fact that super-
visors at one time were and later were not included in the bargaining unit was a material
factor affecting the decision of the same court, yet nowhere in that decision is there any
intimation that the unit, when it included supervisors , was illegal
4 See, e g , Nassau and Suffolk Contractors' Association , Inc„ etc, 118 NLRB 174;
,Geilich Tanning Company, 122 NLRB 1119, remanded for further consideration in Amal-
gamated Meat Cutters, etc v N L R B , sups a In both of these cases , and our dissenting
,colleague participated in the Geilich case, the Board considered the fact that supervisors
were members of the bargaining unit to be material to the issue of whether their employer
violated Section 8 (a)(2) by virtue of their participation in internal union affairs; yet
in neither of these cases is there any suggestion that the units which included supervisors
were prohibited or "positively illegal."
KXTV 95
At a meeting on June 6, the Union, as found by the Trial Examiner,
informed the Respondent that the latter's proposals for removal of
staff directors from contract coverage and deletion of the contractual
"picket line observance" provisions were tantamount to a request for
a strike which the Union had no desire to initiate.
On June 8, the Respondent's representative informed the Union
that he was authorized to withdraw the request for the removal of the
staff directors on the basis that the Union's membership would not
interfere with effective supervision and "for the sole purpose of remov-
ing an obstacle to settlement." As stated by our dissenting colleague
and the Trial Examiner, this bargaining concession was made without
prejudice to the Respondent's again raising the issue if its "package"
was not acceptable, and if the Union's assurances of effective supervi-
sory control proved to be unfounded. This proposal, thereafter (until-
the abrupt reversal by the Respondent on September 8 of its position),
removed the issue of the exclusion of staff directors from the bargain-
ing discussions. With the June 8 letter, the Respondent submitted
a modified contract proposal in outline form as the Respondent's "best
and final" offer. The Respondent issued an ultimatium that its pro-
posal would have to be accepted in 1 week.
Other meetings were held on June 14 and July 20. Subsequently,
there was an exchange of letters and several telephone conversations
between the parties.
On August 12 the parties met again and the Respondent's repre-
sentative cited four matters with which the Respondent was prin-
cipally concerned. The question of the coverage of staff directors
was not one of them. According to the Trial Examiner's findings,
progress was made at this time, and the parties agreed to another
meeting on August 16 at which approximately 36 proposals were
discussed.
At the ninth bargaining session on August 23, 1960, the parties
had reached agreement on approximately 75 percent of the matters
discussed. At this meeting the Respondent's representative appeared
to be very satisfied with the progress made, stated that the parties
would be able to conclude the agreement shortly, and, when August
30 was agreed to as the next meeting date, expressed the hope that the
next meeting would enable the parties to conclude negotiations.
On September 3, the Respondent's negotiator was instructed by the,
Respondent's president to begin work on a new contract proposal..
On September 4, the Respondent's president declared in a meeting
with unit employees that the proposed to treat the staff directors as
part of management. The details of events around this period are,
fully set forth in the Intermediate Report and clearly indicate that
the Respondent's responsible official proposed to wipe the bargaining
slate clean and to start from the beginning. On September 6, the,
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's representative was informed that a new contract proposal
had been drafted with which he would be disappointed. On Septem-
ber 8, the Respondent withdrew "any and all previous proposals and
recommendations" and submitted "in place thereof a complete con-
tract containing many of the earlier proposals."
On the facts stated above, and additional ones included in the In-
termediate Report, we do not believe that the Union's request for the
inclusion of supervisors proved to be any obstacle to collective bar-
gaining and may not serve as a valid excuse for the Respondent's
subsequent unlawful refusal to bargain, as found by the Trial Ex-
aminer, with respect to the employees represented by the Union.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
In order to remedy these unfair labor practices, we shall order
the Respondent to bargain with the Union in the appropriate unit
designated herein and, upon request, to furnish the Union with the
information to which it is entitled, to the extent that such informa-
tion has not heretofore been furnished. We shall also, in accordance
with our usual practice, order revocation by the Respondent of the
unilateral changes in wages and working conditions unlawfully in-
stituted by it on September 13, 1960, as well as the restoration of the
conditions existing prior thereto. However, inasmuch as we are not
in a position to predict with certainty whether the employees desire
such revocation, we shall condition our restoration order upon the
affirmative desire of the affected employees for such, as expressed
through their collective-bargaining representative.'
Also, as the complaint herein did not allege that an unfair labor
practice strike resulted from the unlawful refusal to bargain and as
the General Counsel did not contend at the hearing that the Trial
Examiner should make a finding thereon, or issue a recommended
remedial order in connection therewith, we agree with the contentions
of Respondent that it would be manifestly unfair to make any find-
ing thereon or issue a remedial order pertaining thereto.'
Finally, consistent with our practice in cases of this type, where the
failure to bargain in good faith is not related to other unfair labor
practices, we shall provide a narrow, rather than the Trial Examiner's
broad,8(a) (1) order.
5 Cascade Employers Association, Inc., 126 NLRB 1014; Herman Sausage Co , Inc.,
122 NLRB 168.
G This conclusion is without prejudice to the right of the General Counsel to raise the
issue, upon appropriate motion or otherwise, if the strikers should upon application be
denied full reinstatement.
KXTV
ORDER
97
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Great Western
Broadcasting Corporation d/b/a KXTV, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain with San Francisco Local of the American
Federation of Television and Radio Artists, AFL-CIO, as the repre-
sentative of all Respondent's Sacramento, California, employees who
perform before the camera or microphone, exclusive of instrumental
musicians performing as such, guards, all other employees and super-
visors as defined in the Act, as amended.
(b) Making unilateral changes in wages and other terms and con-
ditions of employment of employees in the appropriate unit above,
without consulting and negotiating with San Francisco Local of the
American Federation of Television and Radio Artists, AFL-CIO.
(c) Refusing, upon request, to furnish information to which the
said labor organization is lawfully entitled.
(d) Interfering with, restraining, or coercing employees in any like
or related manner, in connection with their exercise of the right to
self-organization, to form labor organizations, to join or assist San
Francisco Local of the American Federation of Television and Radio
Artists, AFL-CIO, or any other organization, to bargain collectively
through representatives of their own free choice, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively in good faith with San
Francisco Local of the American Federation of Television and Radio
Artists, AFL-CIO, as the exclusive representative of all the employ-
ees in the appropriate unit above, for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Revoke the unilateral changes instituted on September 13, 1960,
in the wages and other terms and conditions of employment of em-
ployees in the appropriate unit and revert to those wages and other
terms and conditions of employment in effect prior thereto, if the San
Francisco Local of the American Federation of Television and Radio
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Artists, AFL-CIO, as the exclusive representative of these employees,
so desires.
(c) Upon request, furnish the said labor organization with the in-
formation to which it is lawfully entitled, including information
previously requested to the extent that it has not heretofore been
furnished.
(d) Post at its place of business in Sacramento, California, copies
of the attached notice marked "Appendix." 7 Copies of said notice, to
be furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all such places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS, dissenting :
My colleagues are here holding that an unlawful refusal to bargain
may be predicated upon a bargaining request which would have re-
quired the Respondent to bargain for, and sign a contract covering,
its supervisors. I dissent from this holding.
The Respondent in this case was requested by the Union to bargain
for a unit which included 2 staff directors among a total of 10 nontech-
nical employees at its television station .8 At the first negotiating ses-
sion, the Respondent outlined the supervisory duties of its staff di-
rectors, and indicated that they should be excluded from the unit and
the coverage of the proposed contract. The Charging Union not only
refused to discuss this matter, but arrogantly characterized it as "an
act of war" and demanded that it be set aside as an issue. Moreover,
the Union announced that it would take strike action if its demand
was not complied with. Subsequently, each time the matter was ad-
verted to by Respondent, the Union refused to discuss it. At no time
during negotiations did the Union ever express a willingness to with-
draw from its adamant position with respect to the inclusion of su-
pervisors in the bargaining unit and the contract.
T In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court or Appeals, Enforcing an Order "
s The Union was certified by the Board in 1956, to represent the nontechnical employees
of Respondent ' s predecessor , San Francisco Television Station KBET . The unit descrip-
tion had been stipulated by the Union and KBET and specifically included the staff
directors when Respondent acquired the station in April 1959 , it honored the existing
contract , then in midterm The negotiations involved here, the first between the Respond-
ent and the Union, provided Respondent with its first real opportunity to question the
appropriateness of the unit which included the supervisors.
KXTV 99
When negotiations appeared completely deadlocked over this mat-
ter, and because Respondent wished to reach some agreement with the
Union before the beginning of its broadcasting season, Respondent
indicated a willingness to include the staff directors in the coverage
of a contract. Nevertheless, upon doing so, Respondent specifically
reserved the right to stand on its objection to the inclusion of supervi-
sors if the Union failed to accept a "package proposal" which Re-
spondent tendered. After several more months of bargaining, the
Union declined to accept the "package." Upon the Union's rejection
of the "package proposal," the Respondent stood firm on its position
that the directors must be excluded from the proposed contract as
supervisors. The Union then took the strike action it had originally
threatened.
Significantly, no exception has been taken to the finding of the Trial
Examiner that these staff directors are supervisors. Therefore, in
the posture of this case, as it is presented to the Board, these individ-
uals are, as consistently contended by the Respondent, supervisors as
defined in the Act.
The law in this area is clear. The Act prohibits the inclusion of
supervisors in a collective-bargaining unit; 9 the Board itself has held
that a unit including supervisors is not an appropriate one; 10 and,
indeed, a United States court of appeals has recently stated that such
a unit is a "positively illegal unit." 11 A request to bargain in an
inappropriate unit cannot form the basis of a violation of Section
8(a) (5) 12
My colleagues appear to recognize the controlling effect of these
principles for, although they are finding that Respondent unlawfully
refused to bargain with the Union, in the Order they are issuing they
are excluding the staff directors and are ordering the Respondent to
bargain in a revised, appropriate unit. However, in my view, this
ex post facto act by the Board cannot validate the Union's original
and unchanged unit demand for bargaining in an inappropriate unit;
6 Section 14(a) of the National Labor Relations Act, as amended
10 Houston chronicle Publishing Company, 130 NLRB 1243, Gazette Publishing Coin-
pany, 101 NLRB 1694, 1695.
n International Typographical Union, AFL-CIO (Haverhill Gazette ) v. N.L.R B , 278
F. 2d 6, 10-11 ( CA 1), reversed in part on other grounds 365 U.S. 705.
1a Ainsworth Manufacturing Company, Springfield Division of Precasco Corporation,
131 NLRB 273 , footnote 1. Page Aircraft Maintenance , Inc, 123 NLRB 159, 164; The
C L Bailey Grocery Company, 100 NLRB 576 , 579-580 ; Barlow -Maney Laboratories,
Inc, 65 NLRB 928, 943 See Toni. Thumb Stores , Inc., 123 NLRB 833, 835 , where the
Board decided that an employer bears the risk of violating Section 8 ( a) (5) if he in-
correctly challenges the appropriateness of a requested bargaining unit The Board placed
this responsibility upon the employer because, as it stated, the union has a concurrent
obligation to:
. . . establish that it has been designated by an uncoerced majority of the employees,
that the unit is appropriate , and that there has been both a demand and a refusal
If there is failure of proof in any one of these conditions its resort to the Board will,
have been in vain [Emphasis supplied 7
672010-63-vol. 139-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor can it serve as a basis for the crucial holding here-that the Re-
spondent refused to bargain with the Union in an appropriate unit."
Accordingly, I would dismiss the complaint.
13 The Nassau and Gerlach cases cited by my colleagues , footnote 4, .supra, involved
neither a refusal to bargain nor an appropriate unit question . They are, therefore , clearly
unrelated to any issue presented here.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain, upon request, with San Francisco Local of
the American Federation of Television and Radio Artists, AFL-
CIO, as the exclusive representative of all our employees in the
bargaining unit defined below with respect to rates of pay, wages,
hours of employment, or other terms or conditions of employment,
and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All employees of Great Western Broadcasting Corporation
d/b/a KXTV, Sacramento, California, who perform before
the camera or microphone exclusive of instrumental musi-
cians performing as such, guards, all other employees, and
supervisors as defined in the Act, as amended.
WE WILL NOT institute unilateral changes in the wages and other
terms and conditions of employment of our employees in the
appropriate unit above without consulting and negotiating with
San Francisco Local of the American Federation of Television
Radio Artists, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
San Francisco Local of the American Federation of Television
and Radio Artists, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own free
choice, and to engage in other concerted activity for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activity, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, as amended.
EVE WILL, if requested by San Francisco Local of the American
Federation of Television and Radio Artists, AFL-CIO, revoke
the unilateral changes in wages and working conditions instituted
KXTV 101
by us on September 13, 1960, affecting employees in the appro-
priate unit and revert to the wages and working conditions in
effect prior to that date.
WE WILL upon request furnish the said labor organization with
all information it is lawfully entitled to receive.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that this right may be affected by a lawful agreement re-
quiring membership in a labor organization as a condition of
employment.
GREAT WESTERN BROADCASTING
CORPORATION D/B/A KXTV,
Employer.
Dated-------------- -- By-------------------------------------
(Representative ) ( Title)
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.
Employees may communicate with the Board 's Regional Office, 830
Market Street, San Francisco , California , Telephone Number, Yukon
5-3500, if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on September 23, 1960, the General Counsel of the
National Labor Relations Board caused ;a complaint and notice of hearing to be
issued and served on November 10, 1960, upon Great Western Broadcasting Cor-
poration d/b/a KXTV, designated as Respondent in this report. Therein, Respond-
ent was charged with unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended,
61 Stat. 136, 73 Stat. 519. Thereafter-through an answer duly filed-Respondent
admitted the complaint's jurisdictional allegations but denied certain substantive
allegations, further denying the commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to the issues was held at Sacramento,
California, on various dates between December 20, 1960, and January 27, 1961,
before Trial Examiner Maurice M. Miller. The General Counsel, Respondent en-
terprise, and the Union which had filed the charge were represented by counsel.
Shortly after the formal documents were received, the General Counsel's repre-
sentative moved for an amendment of the complaint, calculated to supplement one
factual allegation therein. The motion was granted. Respondent's formal denial
of the factual statement, before its amendment, was permitted to stand to the state-
ment as amended. Each party was thereafter afforded ^a full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce pertinent evidence and
offers of proof. Upon completion of their .testimonial presentations, counsel waived
oral argument. Subsequently, however, representatives of the General Counsel
and Respondent filed helpful briefs. These have been fully considered.
Upon the entire testimonial record in the case, documentary evidence received,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation organized in 1958; it is solely engaged in
the maintenance and operation of channel 10, KXTV, a Sacramento , California,
102 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
television station. The firm is wholly owned by Corinthian Broadcasting Corpora-
tion-likewise a Delaware corporation-which maintains its principal office and
place of business in New York, New York; there Corinthian's management directs
the maintenance and operation of five majority stock-owned business enterprises,
Respondent included, engaged in the maintenance and operation of radio and tele-
vision stations. Corinthian likewise provides certain management services for the
stations. (Throughout the period with which this case is concerned, C. Wrede
Petersmeyer functioned as Corinthian's president and likewise as Respondent's presi-
dent. Two more Corinthian officials also held corporate office with the Respondent
enterprise. For most of the period with which this case is concerned, Richard P.
Hogue held corporate office as Respondent's vice president and functioned as gen-
eral manager of channel 10, KXTV, Respondent's television station. Certain cir-
cumstances relevant to the termination of Hogue's corporate service will be noted
elsewhere in this report.) Respondent-in the course and conduct of its Sacramento,
California, television station operation-derives a gross income which exceeds
$100,000 annually. Throughout the period within which Respondent has been
responsible for the television station operations noted, the firm has subscribed to
the Associated Press and United Press International news services.
Upon the complaint's jurisdictional allegations, which are conceded to be ac-
curate, I find that Respondent is now, and at all times material has been, an em-
ployer within the meaning of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the meaning of Section 2(6) and (7)
of the Act, as amended. With due regard for the jurisdictional standards which
the Board presently applies to communications media-see Raritan Valley Broad-
casting Comhpany, Inc., 122 NLRB 90, and related cases-I find assertion of the
Board's jurisdiction in this case warranted and necessary to effectuate statutory
objectives.
II. THE LABOR ORGANIZATION INVOLVED
Record evidence reveals-despite the formal denial noted by the Respondent en-
terprise, bottomed upon its professed lack of information or belief with respect to
the subject-that San Francisco Local of the American Federation of Radio and
Television Artists, AFL-CIO, to be designated as the Union in this report, is a labor
organization within the meaning of Section 2(5) of the Act, as amended, which
admits certain employees of Respondent to membership.
III. UNFAIR LABOR PRACTICES
A. Issues
Within the complaint, Respondent is charged with a refusal to bargain collectively
with the Union-since on or about August 29, 1960, and at all tunes thereafter-
because:
1. Respondent then withdrew from its previously designated bargaining representa-
tives authority previously granted by the corporation to negotiate effectively with
the labor organization designated, or failed to confer enough authority upon such
representatives to permit effective negotiations.
2 Respondent then shifted its collective-bargaining position abruptly, and re-
asserted demands previously withdrawn or compromised during union negotiations.
3 Respondent, on or about September 4, 1960, bargained "directly and individ-
ually" with employees within the unit characterized in the General Counsel's com-
plaint as appropriate for the purposes of a collective bargain, concerning their rates
of pay, wages, hours of work, and other employment terms and conditions.
4. Respondent, commencing on or about September 13, 1960, unilaterally changed
wage rates, hours, and other terms and conditions of employment then current.
,5. Respondent then, through dilatory and evasive tactics, refused to furnish the
Union with requested data relative to the base pay and fees paid to KXTV staff
announcers during the 2-year period covered by a prior collective-bargaining contract.
Respondent has conceded the unilateral modification of prior wage rates, hours
of woi k, and other terms and conditions of employment since September 13, 1960;
denials have been entered, however, with respect to each of the other factual charges
noted
B. Facts
1. Negotiations
a. Background
When the Union first achieved recognition as the representative of certain em-
ployees at the Sacramento, California, television station with which this case is
KXTV 103
concerned, the station was owned and operated by Sacramento Telecasters, Inc.,
Respondent's predecessor. Pursuant to a consent-election agreement negotiated
between the Union and that corporation, approved March 13, 1956, by the Regional
Director for the Twentieth Region, the Union won Board certification on March 30,
1956, as the exclusive representative of an employee group defined as follows:
All employees of the Sacramento Broadcasting Station of Sacramento Tele-
casters, Inc., who perform before the camera or microphone, and directors;
excluding instrumental musicians performing as such, guards, all other em-
ployees, and supervisors as defined in the Act.
Pursuant to that certification, AFTRA functioned as the representative of the des-
ignated employee group thereafter, negotiating two successive contracts with the
first station proprietors; throughout, the station was maintained and operated under
the name and style of "Channel 10, KBET-TV," specifically. The second of these
contracts, executed June 16, 1958, ran for a 2-year term to May 15, 1960. During
November 1958, however, Respondent negotiated and signed an agreement to pur-
chase the station from Sacramento Telecasters, Inc., contingent upon FCC approval.
Control of the station, pursuant to this agreement, passed to Respondent in April
1959, when the designated Federal agency approved the purchase arrangement.
(Concurrently, the call letters of the station were changed from KBET-TV to
KXTV, the station's present designation.) Despite this transfer of control, Re-
spondent continued to observe the terms of the then-current AFTRA-KBET-TV basic
minimum agreement, with supplementary schedules. On February 1, 1960, Re-
spondent-through Richard P. Hogue, vice president and general manager-nego-
tiated and executed a supplementary agreement, calculated to establish the compensa-
tion of station personnel involved in the production of video tape recorded programs
on newly purchased equipment; this agreement was to remain effective until the
main contract's May 15, 1960, termination date.
b. Negotiations begin
Pursuant to the appropriate contractual provision, Executive Secretary Edward
Reith of the Union dispatched a letter to Respondent dated February 29, 1960,
calculated to apprise the firm of AFTRA's desire to reopen the then-current basic
minimum agreement, and effectuate its May 15, 1960, termination, Respondent was
apprised of the Union's offer to meet and confer for the purpose of negotiating a
new contract, or one with modifications. On March 9, Respondent's vice president
and general manager acknowledged receipt of the Union's letter, and declared Re-
-spondent's readiness to meet and discuss contract matters. (Previously, during
January 1960, the station manager-pursuant to President Petersmeyer's direction-
had retained Attorney Laurence P. Corbett, an experienced negotiator of labor con-
tracts, to assist with Respondent's preparation for the AFTRA contract negotiations.
Record testimony establishes Corbett's participation in the preparation of the first
draft of Respondent's original contract proposal, noted elsewhere in this report.
Pursuant to suggestions which Hogue made, after Petersmeyer and he had reviewed
Corbett's draft, Respondent's proposal was revised by the latter and readied for
presentation.) When Respondent's contract proposal was ready for presentation,
Hogue requested Corbett to attend the negotiations and to collaborate with him in
collective bargaining for a new contract.
On April 23, 1960, union and company representatives met for their first joint
session Gary C Ellingsworth, national representative of the Union, presented him-
self as the organization's principal spokesman; he was backed by a committee of
station employees. Respondent was represented by Hogue, Corbett, and Dean
Borha, KXTV program manager. Corbett had been designated by Hogue as the
station's principal spokesman; while a witness, he characterized himself as author-
ized to negotiate within the framework of Respondent's proposal, though required
to consult with the station management before making any firm -alternative proposals.
The negotiators exchanged contract proposals. With .the current basic minimum
agreement and schedules as a base, AFTRA proposed 13 changes, couched in general
language, Ellingsworth explained their purport. (With respect to the contract's
general provisions, the union negotiator proposed a 1-year agreement. Proposals
were advanced for two new clauses-one prohibitive of company discrimination
based upon "membership or non-membership of a labor organization" or coverage
by a union contract, the other declarative of the Union's right to reopen negotiations
on the AFTRA pension and welfare plan under certain circumstances. With respect
to various contractual schedules for staff announcers, staff directors, staff special
announcers, and free-lance performers, proposals were presented for minimum salary
and spot fee increases, prorated for part-time personnel. Fringe benefit improve-
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merits were proposed regarding overtime payment provisions, vacation pay, termina-
tion and severance pay, proration of certain designated fringe benefits for part-time
personnel was likewise requested.) Respondent presented the substantially complete
draft of a basic minimum agreement with supplementary schedules, written to cover
a 4-year term. Proposals were made for the modification of most contract pro-
visions; some of these proposals were considered of major significance, others were
considered to have merely derivative significance. (With respect to 16 designated
provisions of the basic minimum agreement, Respondent proposed changes in 15.
Modifications of 19 out of 21 provisions in schedule I, staff announcer and staff
director, were likewise proposed. Within schedule II, staff special announcer, pro-
posals for the modification of 6 out of 20 provisions were presented. For schedule
III, free-lance performers, Respondent proposed the modifications of 11 out of 20
provisions.) One of Respondent's basic proposals called for the removal of staff
directors from contract coverage; many of the language modifications proposed
throughout Respondent's draft presentation were merely calculated to conform the
scope of various contract provisions to the proposed restriction. No specific mone-
tary provisions were made with respect to compensation; Respondent's draft contract
left such matters open for negotiation.
Basing his query upon the purported rumor that Respondent's proposal had been
drafted in Corinthian's New York office, Ellingsworth questioned Hogue and Corbett
regarding their authority to negotiate. With considerable emphasis and vigor,
Hogue declared himself completely authorized to meet with union representatives,
negotiate, and consummate a contract. His vehement protestations were received
without comment; the subject was dropped, according to Ellingsworth, in the interest
of delicacy.
Confronted with Respondent's basic contention that station costs under their
current contract had subjected KXTV to some competitive disadvantage with channel
3, KCRA, the station's major Sacramento competitor, Ellingsworth declared his
lack of certainty with respect to the precise earnings of station personnel contractually
covered, particularly with respect to the trend of their earnings throughout the
contract's term. He requested Corbett, therefore, to have Respondent supply cer-
tain salary reports. Corbett's testimony with respect to the union negotiator's re-
quest was somewhat generalized; Ellingsworth's detailed recital with respect to the
scope of the reports desired, therefore, merits credit. The union negotiator's
testimony reveals that Respondent was requested to provide data which would
show "actual weekly earnings" for each staff announcer employed by the station
throughout the current contract's 2-year term. Ellingsworth requested reports with
respect to the basic salary paid each man, plus his supplementary fees, for each pay
period covered. (While a witness, Ellingsworth conceded that-since relevant
contractual provisions established basic weekly salary rates for staff personnel-
his first request might have been couched as a request for salary and fee data com-
puted weekly for the contractual term; when told, however, that Respondent's pay
period covered 2 weeks, Ellingsworth appears to have modified his demand, re-
questing salary and fee breakdowns segregated for each relevant pay period.)
Corbett promised that Respondent would be requested to supply the desired in-
formation. Hogue-when he inquired-was told that the Union had a right to
request such data, nothing in the record reveals any company demurrer, nor does
testimony establish any request for clarification of the union demand.
Considerable discussion was devoted to Respondent's proposal for the exclusion of
staff directors from contract coverage because of their purported supervisory status;
Ellingsworth conceded their powers and responsibility with respect to program prep-
aration and presentation, but protested that such powers and responsibility did not
make them supervisors properly excludable from AFTRA's contract unit. Union
protests were also voiced over Respondent's proposal for the deletion of certain
provisions within the current contract's "No Strike" clause, calculated to protect
artists and directors against company discrimination for their possible refusal to
cross a picket line, under certain designated circumstances (The Union's nego-
tiator declared this proposal reffective of an attempt to undermine the National As-
slociation of Broadcast Engineers and Technicians (NABET), representative of
KXTV's technical personnel; he pointed out that the clause did not require picket
line observance, but merely permitted AFTRA workers to proceed consistently
with the dictates of their consciences.) Ellingsworth declared that persistence by
the Respondent enterprise with respect to these disputed proposals, together with
others considered objectionable, constituted a declaration of war: Hogue and Corbett
were told that the Union could not accept such "retrogressive" provisions, which
Respondent would be well-advised to drop if seriously desirous of a contract's con-
summation
KXTV 105
The negotiators held their second session April 28. Ellingsworth reported union
membership discussion of the firm's proposal; Hogue and Corbett were advised,
however, that the union members had found the proposal very objectionable, and
that they did not wish to negotiate such a thoroughly revised contract, with "minute"
language changes "lurking" in many places, which the labor organization's spokes-
men could not hope to discover without "very careful" scrutiny. Respondent's
proposal to carve staff directors out of contract coverage was thoroughly discussed.
So was Respondent's proposal with respect to the deletion from any contract of
current "picket line observance" provisions. Previously declared positions were
maintained. Present for the Respondent station, Sales Manager Osborn declared,
during a lengthy exposition, that the pay scales established for station personnel,
by the recently negotiated video tape supplement to the current agreement, had
created serious competitive difficulties; Ellingsworth commented about AFTRA's
willingness to modify pay scales found prohibitively high, but observed that circum-
stances were not appropriate for the discussion of precise pay rates. (Spokesmen for
Respondent appear to have explained the rationale of their demand for a graduated
basic wage scale based on job tenure, but actual rates do not appear to have been
discussed.) The union negotiator reiterated his previous request for salary and fee
data; Corbett, I find, apologized for Respondent's delay in submission. Upon this
note, the negotiators ended their second session.
Pursuant to Ellingsworth's request that Respondent specify the matters dealt
with in its pending proposal which the station considered most important-matters
would require significant contractual changes-Corbett dispatched a letter dated
May 2, addressed to the union negotiator. Eighteen major changes, desired by the
Respondent enterprise, were outlined; first among these was Respondent's proposal
for the removal of staff directors from contract coverage, to permit their effective
supervision of AFTRA and NABET employees whom they direct. Respondent's.
demand for abolition of the picket line observance privilege currently recognized
contractually was couched as a request that staff members agree to work during any
new contract period without interference from any other union source. Contractual
stability for a 4-year term-subject to the possibility of some limited wage review-
was requested. Fifteen other significant changes were specified. Corbett charac-
terized other contract modifications desired by the Respondent-not specified-as
changes of a technical nature or modifications directed toward contract clarifications,
which Respondent believed the parties could resolve. Careful thought and study
with respect to the firm's proposals was requested; counterproposals reasonably
calculated to help solve the problems presented by the station were promised care-
ful analysis and consideration.
On May 11, the negotiators met for their third session. Corbett's May 2 letter
was discussed briefly. (Respondent's negotiator, I find, presented fee data for
three staff announcers, covering the 3-month period just past Ellingsworth re-
jected the submission as inadequate, since he needed data for the entire term of
the expiring contract.) When Robert Lenihan, NABET's International representa-
tive, presented himself belatedly as a member of AFTRA's committee, Respondent's
negotiators withdrew Shortly thereafter, Corbett reported that the station's com-
mittee would not negotiate with Lenihan present as an AFTRA committee member.
Thereupon, Ellingsworth affirmed the Union's designation of Lenihan as one of
its negotiators since Respondent's proposals would affect AFTRA-NABET rela-
tionships. With a declaration of AFTRA's right to designate its negotiators, Ellings-
worth observed that Respondent's position, coupled with its failure to provide
previous requested salary and fee data, reflected an unfair labor practice. Upon
this note, the session adjourned. (Corbett and Ellingsworth did reach a verbal
consensus that the AFTRA-KXTV contract, which had a May 15 termination date,
would be extended thereafter, subject to 24-hour termination notices.) With a
May 12 letter, Corbett confirmed the refusal of Respondent's management repre-
sentatives to continue contract discussions while Lenihan remained associated with
AFTRA's committee. Explaining Respondent's position, Corbett voiced a hope
that the union committee would not wish to "postpone" an amicable settlement
through insistence Upon NABET's participation in AFTRA contract negotiations.
Suggesting that Respondent's original proposal might not represent its final position,
Corbett further expressed his hope that the Union's initial proposals, likewise, did
not represent final demands. He referred to the verbal extension agreement, pre-
viously noted, as a continuation of the contract then about to expire for a 10-day
period Respondent's negotiator added-
During this period, it is my understanding that AFTRA and KXTV will
observe the terms and conditions of the agreement which expires on May 15,
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1960. Further, the station agrees that any package proposal advanced by
either [party] and acceptable to both during such period, will be effective
retroactively to May 15, 1960. [Emphasis supplied ]
`Corbett, however, reaffirmed the prerogative of both parties to state on May 25,
rafter a full review of negotiations, that an impasse had been reached, and that any
and all previous offers should be considered withdrawn.
On May 13, AFTRA charged Respondent with an unfair labor practice, based
upon the firm's refusal to have its negotiators meet with the union committee.
Ellingsworth and Corbett met at the Board's Regional Office on May 25; their re-
spective positions regarding Lenihan's participation in AFTRA negotiations were
repeated. When the Board agent responsible for the investigation of AFTRA's
charge suggested that grounds were present for a complaint's issuance, Corbett de-
clared himself authorized to meet with AFTRA's committee, with or without
Lenihan's participation, despite the reluctance of company representatives to meet.
(Testimony by Corbett establishes that Hogue had authorized him-subsequent to
the May 11 session-to function as Respondent's sole negotiator if Lenthan con-
tinued to serve on the AFTRA committee.) Queried about his authority to nego-
tiate and consummate a trade agreement, Corbett replied affirmatively. Ellings-
worth declared that he would probably withdraw the Union's charge upon receiving
written confirmation of Corbett's authority. Thereafter, by letter dated June 1,
Corbett advised Ellingsworth-with copies to General Manager Hogue and Program
Manager Dean Borba-that the station had authorized him to meet with union repre-
sentatives and to negotiate a settlement on Respondent's behalf. The negotiators
agreed to meet June 6; with this understanding reached, the Union's charge was
withdrawn.
On June 6, the negotiators met at the station as scheduled. Ellingsworth's com-
mittee included Lenihan, together with several station staff members, Corbett func-
tioned as Respondent's sole negotiator. (Record evidence reveals, however, that
he caucused frequently with Hogue, whose office was nearby.) Speaking from notes,
Corbett outlined some modified contract proposals, which he promised to have
typed and presented formally later. Ellingsworth renewed his previous request for
salary and fee data; when Corbett reported that the station office staff was confused
and that the data was not yet available, but that he would see what could be done,
Ellingsworth protested Respondent's dilatory conduct. He went on to declare his
"impression" that the station management wished to stall negotiations by refusing to
come to grips with the issues involved. Corbett was advised that Respondent's pro-
posals for the removal of directors from contract coverage and the deletion of current
-contractual "picket line observance" language would emasculate AFTRA as the
collective-bargaining representative of station personnel. These two proposals were
characaterized major obstacles to a settlement; they were further denounced as
tantamount to requests for a strike, which the labor organization had no wish to
initiate. The lapse of time since May 11 was likewise protested. Respondent's
negotiator was strongly urged to suggest withdrawal by the station of the two pro-
posals previously noted; promises were made that if these disputed proposals were
dropped, effective compromises could be reached
During this session, also, Ellingsworth reported his prospective July 1 departure
for an Eastern trip. Specifically, he reported prior commitments to participate in
the negotiation of a Denver contract, after which he would be required to proceed
to Washington, DC, to attend AFTRA's national convention for a week, with a
scheduled July 20 starting date. The union negotiator went on to declare that he
would probably have to revisit Denver, thereafter, to clear up contract language
questions, after which he desired to effectuate long-standing vacation plans. Corbett
was requested to persuade Hogue, therefore, to expedite negotiations. Respondent's
negotiator declared his desire, likewise, to meet quickly; he promised a prompt re-
sponse to AFTRA proposals regarding the picket line observances problem and staff
directors. No other contract matters appear to have been discussed before the
-session's conclusion.
On June 8, Corbett presented Great Western's formal response to Ellingsworth's
declaration of AFTRA's contract position. Acknowledging cognizance of the union
negotiator's declaration that Respondent's contract proposals would not be con-
sidered until the firm withdrew "staff director" and "picket line observance" requests,
Corbett reported the station's reconsideration of its stand with respect to these por-
tions of its modified package proposal. Regarding Respondent's proposal that staff
directors be denied contract coverage, purportedly to improve their supervisory con-
trol of programs, Corbett reported that:
on the basis of your assurances that AFTRA membership will not interfere
with effective supervision and for the sole purpose of removing an obstacle to
KXTV 107
settlement, I am authorized to withdraw this request. This is done as part of a
package proposal and without prejudice to the Station's right to question the
director's inclusion in the unit if the package is not accepted and without
prejudice to the Station's right to raise this question in future negotiations if
your assurances of effective supervisory control prove unfounded.
Ellingsworth was told, however, that Respondent would not withdraw its request for
modification of the contract's "no strike and no stoppage" clause to confirm its appli-
cation whenever the picket line of another union might be established before the
station, subsequent to some AFTRA settlement.
With his June 8 letter, Corbett submitted a modified contract proposal in outline
form. The union negotiators were reminded of Respondent's desire to negotiate
a contract which would be competitive in the Sacramento market. The proposal
was characterized as Respondent's "best and final" offer, reflecting some substantial
modification of the firm's April 23 proposals; Ellingsworth was told, however, that
Respondent's offer would have to be accepted within 1 week's time or the station
would consider itself free to withdraw any and all proposals, including any retro-
activity commitment. Two alternative proposals were presented with respect to the
compensation of staff announcers, coupled with specific compensation proposals for
staff special announcers and free-lance announcers . With respect to Respondent's
May 2 list of 18 major contract changes, 7 were characterized as withdrawn, 4 were
modified, while 6 were presented for consideration as part of the firm's compensation
proposal. Consistently with the conviction of Respondent's management expressed
in Corbett's letter of transmittal, the firm's proposal for elimination of the previously
recognized "picket line observance" privilege was reiterated. Further, Respondent's
proposal listed nine miscellaneous contract changes-characterized as technical
merely-requested to achieve clarification or compliance with the law. (Five of
Respondent's miscellaneous proposals called for the modification or supplementation
of prior contractual provisions. For the contract's union-security clause, Respond-
ent merely requested review. Three of Respondent's April 23 proposals were with-
drawn.) With respect to AFTRA's 13 contract proposals, Respondent reported one
concurrence on terminology; management reported its readiness to change "severance"
pay to "termination" pay. AFTRA's further proposals-with a single omission,
possibly the result of an oversight-were rejected or met with counterproposals
Respondent requested presentation of these proposals to the union membership on
June 13 for review. A conference to discuss the firm's proposal, and the position of
the union membership, was suggested for June 14.
On the date suggested, Ellingsworth and Lenihan, together with a small com-
mittee, met Corbett at the KXTV conference room. Discussions began with respect
to Respondent's June 8 contract proposal. (During the session, Corbett provided
data with respect to the cumulative annual earnings of KXTV staff announcers dur-
ing a 1-year period; Respondent's submission, however, reflected no salary or fee
breakdown for successive biweekly pay periods throughout the prior contract's
term , which could reasonably be expected to reveal an earnings trend. Ellings-
worth rejected the submission with the comment that it did not cover the contract
term and was not sufficiently detailed; Corbett-though suggesting that the data
might be sufficient-accepted its return and reported Ellingsworth's reaction to Re-
spondent's general manager.) Upon completion of his detailed analysis of Respond-
ent's various proposals, Ellingsworth opined that the firm's negotiators had merely
revised or dropped certain "retrogressive" proposals previously made; he discounted
Respondent's submission , therefore, as failing to evidence the firm's desire to achieve
a contract's consummation. The labor organization's reaction to Respondent's mod-
ified proposal was characterized as still negative. Ellingsworth suggested that the
firm demonstrate its good faith, and open the way for union concessions regarding
its contract proposals, by some favorable consideration of two union suggestions,
which presumably would not present significant cost problems; queried as to the
matters meant, the union negotiator cited: (1) the proposal that any employee
terminated receive 2 weeks' severance pay for each year's service; and (2) the
proposal that Respondent provide full health and welfare coverage for employees
plus dependents, or participate in AFTRA's pension and welfare plan. Corbett
protested Ellingsworth's tactic in this connection, but promised that his suggestions
would be discussed with Respondent's general manager.
Ellingsworth, I find, pressed for a quick response; Corbett was reminded of the
union negotiator 's projected departure for Denver scheduled for July 1, his program
for that month, and his desire to proceed with previously fixed vacation plans there-
after. Additional bargaining sessions before July 1 were strongly urged Corbett
promised to discuss Ellingsworth's position with the station management Further,
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he promised steps to arrange another bargaining session when Respondent clarified
its position; hope was expressed that this would be possible within 1 week
Ellingsworth, however, heard nothing from Corbett before his July 1 departure
for Denver and points east
Sometime previously-during late May or early June, specifically-Henry Thorn-
ley, station news director, had been summoned to New York, together with various
other Corinthian station news directors, for a briefing session prior to the July
political conventions. Queried herein with respect to the comments of Corinthian
officials about the then-current KXTV negotiations, Thornley testified that, "Well, I
certainly hope we can work this out," had been President Petersmeyer's only re-
mark. During other conversations-first with Don Kearney, Corinthian sales man-
ager, and later with Robert Salk, Respondent's secretary-Thornley voiced his
personal opinion that some contractual consensus could be reached, but that Re-
spondent had made serious mistakes. He reported that the station staff had recon-
ciled itself to accept a very moderate contract, merely to prove that Respondent
would be able to operate under a union agreement, but that the firm's original pro-
posal had forced a revision of staff views by demands which created antagonism and
jeopardized the possibility of a quick settlement. According to Thornley's testimony,
-which I credit:
Mr. Salk said in effect that he certainly hoped that regardless of whether I
was right or wrong that things could be resolved but it didn't look good.
Salk, though present when this case was heard, was not called as a witness; Thornley's
testimony with respect to his New York comment stands in the record without
contradiction.
c Negotiations during Ellingsworth's absence
On June 30-primarily as the result of several consultations with Hogue regard-
ing the status of the negotiations after the June 14 session-Corbett dispatched a
previously prepared letter to Ellingsworth, addressed to his southern California home.
Copies were forwarded to General Manager Hogue, Diane Fivey, the union local's
business representative, and several other persons. Characterizing Respondent's
proposal as fair and sound, Corbett reported that:
. the Station is becoming impatient with AFTRA's delay in responding to
its attempts to solve basic issues leading to a solution . . At this time, the
Station respectfully requests that your membership reconsider the letter of
June 8 together with its attachment as a final package offer from the Station.
Failure to accept the package by July 7, 1960, will be construed as a rejection.
Corbett declared that the station reserved the right, contingent upon rejection of
its package proposal, to cancel observation of the terms of the Union's expired
contract, and to withdraw any and all offers at its option. Ellingsworth was also
told that the union membership's rejection of Respondent's offer, or their failure to
accept it by July 7, would terminate any commitment by Respondent to make adjust-
ments retroactively.
When Fivey, on July 1, received her copy of this letter, she dispatched a reply
forthwith. Corbett was reminded that Ellingsworth had left southern California
that morning for a lengthy trip, pursuant to previously announced plans. The busi-
ness representative expressed surprise over Corbett's July 7 ultimatum, because of
his presumed awareness with respect to Ellingsworth's departure. Respondent's
negotiator was told that union representatives would attempt to telephone Ellings-
worth in Denver so that he might be informed of the June 30 letter.
Within the next 5 days, Corbett received several telephone calls, from Ellings-
worth, Union Shop Steward Walker, and Business Representative Fivey. Separately,
'these union spokesmen protested Respondent's ultimatum with respect to the June 8
package offer. Corbett expressed contrition, conceded his prior knowledge of
Ellingsworth's projected departure, but claimed to have forgotten the union negoti-
ator's announced plan to leave by the first of the month. He disclaimed any in-
tention to trick Ellingsworth Taken as a composite, the various telephone con-
versations now under consideration reflect the following exchanges: Ellingsworth
reaffirmed his previously declared plan 'to be absent from California until August 15;
Respondent's negotiator told the union representatives to ignore his letter's reference
to a July 7 deadline date; the union spokesmen were advised, however, that Respond-
ent was perturbed over the possibility of a delay in negotiations, and wished them
to continue Suggestions were made that Ellingsworth might be able to return and
make a bay area stop before his vacation began. Corbett, however, declared his
reluctance to request curtailment of the union representative's vacation. He sug-
gested that negotiations might be continued with another union negotiator, Fivey,
KXTV 109
possibly. Ellingsworth professed concern about the time and trouble which would
be required to bring Fivey up-to-date on contract negotiations, he suggested refer-
ence to a conciliator. When, thereafter, Ellingsworth's suggestion was communi-
cated to Fivey, she concurred. State Conciliator Koven was notified of the situa-
tion; with his participation, Corbett and Fivey arranged a July 20 conference.
On the morning of the date set, Corbett and the business representative, backed
by News Director Thornley and others, met with the State conciliator present. Inter-
national Representative Lenihan of NABET was not present. After several con-
ferences with Corbett, General Manager Hogue joined the session as a participant
at approximately 2 p in. Corbett presented a lengthy review of the negotiations,
concluding with a characterization of Respondent's June 8 proposal as the most
recent matter under discussion. Fivey then requested a statement of the station's
position on two key issues which Ellingsworth had raised during the June 14 session-
specifically, union proposals relative to the revision of severance pay provisions and
Respondent's health and welfare plan; the company representatives reported their
inability to make concessions beyond those previously stated, with respect to either
matter. Fivey voiced a vigorous protest over Respondent's lack of willingness to
modify its June 8 proposals; reported her resentment of the firm's accusation that
the Union was being dilatory; and noted her strong objection to Corbett's pressure
for union concessions during the absence of the labor organization's principal
negotiator. Hogue reiterated Respondent's previous contention that AFTRA pro-
posals would leave the station in a poor competitive position; the Union's proposal
with respect to free-lance announcer rates for video tape recordings was cited as re-
flective of prohibitive rates which would render the hire of free-lance announcers
uneconomic for the station, and thereby prove detrimental to union members.
Fivey disclaimed any union desire to insist upon contract proposals which would
cause AFTRA members to lose work; promises were given that the Union would
try to readjust its rate proposals to a level calculated to create employment oppor-
tunities and leave Respondent somewhat better situated with respect to free-lance
rates. While reporting the Union disposed to consider a reduction of fee proposals,
however, the business representative declared that no proposal would be slashed
absent some indication of Respondent's desire to reveal "give" in certain areas, the
firm's failure to provide a positive response with respect to the Union's severance and
welfare proposals was cited.
Within this context, Hogue declared that Fivey did not represent the real desires
of his station staff, and voiced the opinion that she was taking a position far more
restrictive than they desired. If the professional negotiators left, said the general
manager, he could consummate a contractual commitment directly with the men,
quickly, since he knew, better than the Union's business representative, their wishes
with respect to wages, hours, and working conditions. Fivey rejected this suggestion.
With matters in this posture, Conciliator Koven suggested review by the negotiators
of their respective positions, with a view toward modifications calculated to get
matters "off dead center" and to promote some further agreement; Koven requested
each party to forward modified proposals to him, for subsequent simultaneous ex-
change When this proposal won acceptance, the conference terminated.
Pursuant to Koven's suggestion, Corbett dispatched a July 21 letter to Fivey,
routed through the conciliator, with copies directed to him, Shop Steward Walker,
and company representatives. Therein, counsel characterized the Respondent enter-
prise as "most unhappy with AFTRA's reluctance to come to grips with the issues"
presented during negotiations Corbett described KXTV's proposals as specific,
those of the Union as vague and evasive. And he added:
. . It has been suggested by the Union that if the Station made further con-
cessions, AFTRA would be prepared to grant relief in some areas where the
expired agreement is out of line. Frankly, the Station doesn't have any more
concessions to make.
Fivey was told that there would be no "official change" in KXTV's June 8 pro-
posal, though all staff announcers and special announcers currently employed were
assured that, under the proposal they would receive specified increases in base pay
on May 15 and November 15, 1960, regardless of their length of service Regret
was voiced over the union rejection of Respondents purported proposal to appoint
a management-union subcommittee, delegated to recommend a possible settlement.
Corbett characterized his principals as forced to conclude that AFTRA had adopted
"a strategy of delay" at the instance of its NABET partner. Reaffirming the firm's
concern over further delay, Corbett served notice that, subsequent to 6 p.m. on
July 26, Respondent would consider its commitment to observe the terms and con-
ditions of the expired contract null and void.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Together with a letter dispatched to the State conciliator on the following day,
Fivey submitted AFTRA's revised proposals Professing the Union 's desire to
achieve some "realistic and acceptable" settlement , Fivey observed:
You will find that out of the thirteen proposals originally submitted by
AFTRA, seven have now been either dropped or considerably modified. We
have reduced our salary demand by half , and, at the same time , are offering to
accept a length of service progression which will have the effect of reducing our
salary demand still further . We have modified our proposals on fees, vacations,
severance pay, and discharge , and have dropped entirely our demand for in-
creased rates for freelance performance.
Revised proposals consistent with this summary were submitted One of the Union's
first proposals was dropped . Six were modified. One , at least, reflected the
achievement of a consensus , with respect to a 2-year contract term. Five proposals
were renewed without change.
Protesting AFTRA's good faith , reflected in contract concessions , Fivey charac-
terized Respondent 's position as "inflexible and arbitrary ." The firm was charged
with an abuse of collective-bargaining principles , because of prior refusals to consider
union proposals , coupled with the presentation of "retrogressive " demands and dead-
lines. Postponement of a scheduled July 26 conference was requested , pending the
possible return of Ellingsworth as the union negotiator . Fivey's letter closed with
a statement that the Union anticipated receipt of Respondent 's revised proposals,
which would permit their review before the next conference . Presumably, she
had not yet received Corbett's July 21 letter, despite its previous dispatch ; I so find.
Meanwhile , subsequent to the conclusion of the July 20 session , Shop Steward
Walker and General Manager Hogue had discussed the negotiations in the latter's
office; Corbett had been present . Respondent 's general manager, I find, had sug-
gested the possibility of a personal conference with representatives of the station
staff without professional negotiators, to explore the possibility of some "break-
through" in contract negotiations . Walker had concurred , after some lengthy dis-
cussion which also involved the station 's program manager, with the proviso that
such a session should be undertaken merely as an exploratory conference , to develop
understanding of each party 's position and determine the steps which each side might
be able to take toward a settlement . A consensus had been reached that some in-
formal "off-the-record" session might be held , with the concurrence of the station
staff, to explore various proposals and their background . Walker's testimony, which
I credit, reveals that Corbett had approved the plan, but reported that he could not
be privy to its consummation
On Saturday , July 23 , Walker and MacKenzie , station reporter and news director,
met General Manager Hogue and Program Manager Borba at the general manager's
home. General agreement was reached that their conference-which lasted 3
hours-should be considered merely exploratory , to develop mutual comprehension
of the positions taken by each party, and the reasons behind them Hogue declared,
I find, that negotiations had been slow; that he had been reprimanded because the
station's AFTRA contract had not been settled, with the NABET contract due to
terminate ; and that he considered a conference with the station staff, therefore , neces-
sary. Most of the discussion dealt with specific contract issues ; Respondent 's proposal
for the deletion of prior contract language which created "picket line observ-
ance" privileges ; basic salary and fee increases ; Respondent 's proposal for a grad-
uated salary scale, with escalation based upon tenure; revision of free-lance talent
fees, Respondent 's proposal that union permission be given for the pretaping of
spot announcements , station sign-ons and sign -offs; vacation allowances ; and, finally,
AFTRA's severance pay proposal With respect to the firm's demand for the abroga-
tion of "picket line observance" privileges , the consensus seems to have been reached
that little room for compromise existed. Discussion with respect to the other
questions under review , however, brought forth several suggestions regarding the
possibilities of compromise . On this note the session ended.
Record testimony-which I credit-sustains a determination , also, that Corbett
and Fivev had several telephone conversations during this period, during which they
discussed the possibility of Ellingsworth 's return by July's end for further negotia-
tions Shortly before July 29, however, Fivey reported to the firm 's negotiator
that Ellingsworth had concluded no substantial purpose would be served by his early
return , since the station's July 21 statement of position revealed no disposition to
modify previous proposals Substantially , Fivey advised Corbett that:
In view of the Company 's position or lack of change in its position for some
weeks , any-lack of any positive counterproposal that we could consider, that
KXTV 111
we, the Union, could see no point in having Mr. Ellingsworth come back to the
Bay Area any sooner than August 15th.
Corbett and the Union's business representative agreed that no further meetings
would be held until Ellingsworth returned.
On July 29, however, Corbett dispatched a letter to Fivey, complaining that he
had not received a written statement promised him regarding Ellingsworth's "refusal"
to meet on that date; reference was made to a purported statement by the union
negotiator that no purpose could be served by a conference unless Respondent agreed
to work from the union proposals rather than its own. (Queried with respect to
this portion of Corbett's letter, Fivey testified that Respondent's negotiator had
suggested July 29 as a conference date, which Ellingsworth had rejected as hopeless.
Fivey denied any promise made by Ellingsworth to meet on the date noted, stating
that she and Corbett had merely discussed the possibility of the Union's spokesman's
return on that date. She further denied any commitment to provide a written state-
ment about Ellingsworth's "refusal" to confer. Further, the business representative
denied repetition to Corbett of any statement by Ellingsworth that conferences
would be hopeless unless the company agreed to work from union proposals rather
than company proposals. Her statement to Corbett was reported as a declaration
that unless the Union received some positive sign that Respondent was prepared
to move from its June 8 position, no further purpose could be served by a meeting;
she denied declaring that "discussion of our (Union) proposals rather than theirs"
would be considered a prerequisite to the renewal of negotiations. After due con-
sideration of the record, taken as a whole, Fivey's version of the matter has been
credited.) Corbett's July 29 letter continued with a review of negotiations. Refer-
ence was made to AFTRA's modified proposal, coupled with a note that discussion
of this proposal and the station's position would necessarily have to wait Ellings-
worth's return. With matters in this posture, Corbett declared that:
The patience of the Company is exhausted. Such delay and the reasons
for it are questionable. As a consequence the Station must conclude on all
of the above facts, that an impasse has been reached. As indicated in my
letter of July 21, the Company's understanding to observe the terms of the
expired agreement, including a retroactive date, became null and void on July 26.
The Company feels free under these circumstances to institute such efficiencies
and economies in operations as it has thoroughly explored with the Union.
They believe that such action will be welcomed by the affected personnel.
Copies of the letter was dispatched to Ellingsworth, State Counciliator Koven, union
representatives, and the KXTV management.
On August 4, however, Corbett-with Hogue's concurrence-dispatched a further
letter to Ellingsworth's home, containing a reminder that KXTV operations were
currently being conducted without a contract; that the station had no commitment to
observe the terms of the prior contract; and that no commitment existed with respect
to any retroactive settlement. Respondent was reported to assume, nevertheless,
that AFTRA still represented the station staff. Ellingsworth was, therefore, ad-
vised that:
.. Although an impasse had been reached, this Station is not unwilling to
continue recognition of AFTRA and to discuss a contract between this Station
and the Union which will be effective from the date that the parties sign a
new agreement. This recognition will not interfere, however, with the Station's
institution of changes already discussed thoroughly with the Union.
Under the circumstances, this Station has no desire to operate without an
AFTRA contract if its employees desire such a relationship. Although the
Station has made a final offer for a contract effective May 15, 1960 which has
been rejected, it is anxious in the light of the foregoing statements to reach
agreement on terms and conditions to be effective prospectively.
Characterizing AFTRA's modified proposals as "not acceptable to the Station as
a package," Corbett expressed hope, nevertheless, that a settlement , without retro-
activity features, could be reached. Ellingsworth was requested to resume discus-
sions without delay; a conference on August 8 was suggested.
On the latter date, however, Claude McCue, AFTRA's western regional director,
replied. Reporting his failure to grasp the rationale behind Respondent's "great
impatience" over Ellingsworth's physical inability to be present, McCue expressed
concern over the "outright animosity" purportedly displayed by Corbett and the
station management toward the Union, its representatives, and station employees.
McCue requested an August 12 conference.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that date, McCue and Fivey appeared with one station staff member for the
labor organization; Corbett, Hogue, and Program Manager Borba reported for
the Respondent enterprise. Subsequent to a review of negotiations, Corbett cited
four matters with which the station was principally concerned: (1) elimination of
"picket dine observance" privileges, (2) wage escalator arrangements, (3) modifica-
tion of free-lance rates for video tape recordings, and (4) pretaping of morning
station sign-ons, sign-offs, and station breaks. A lengthy discussion ensued. McCue
reported AFTRA's reluctance to agree to the removal of "picket line observance"
language from any contract; he suggested the possibility of a solution through ex-
tension of AFTRA's contract, so that it would expire concurrently with NABET's
agreement. When both contracts terminated together, McCue explained, the prob-
lem of picket line observance would become moot, since Respondent would not
be confronted with any situation wherein one union contract remained viable sub-
sequent to the other's termination. Subsequent to a caucus, Corbett and Hogue
expressed tentative satisfaction with McCue's suggestion.
Though opposed to Respondent's wage escalator proposal, McCue reported
AFTRA's willingness to consider a special rate for staff personnel during their first
employment year, with a uniform rate structure thereafter for experienced personnel.
When a discussion of video tape rates was broached, the union representatives pre-
sented a package proposal on wage questions. AFTRA's demand for basic salary
raises was reduced; the Union's severance pay proposal was modified downward;
the Union's vacation proposal was similarly modified, consideration of some formula
applicable to free-lance video tape rates was promised. With respect to pretaping,
the union negotiators indicated their objections would be withdrawn in exchange
for a guarantee that the number of staff announcers would not be reduced.
With matters in this posture, General Manager Hogue opined that some basis
for further discussion had been created. Agreement was reached that another con-
ference would be held on August 16.
d. Negotiations after Ellingsworth's return
On the 16th, Ellingsworth having returned, the parties met for their eighth session;
the conference was held, I find, under the State conciliator's auspices Discus-
sions covered all of the contractual changes proposed by either party. Approxi-
mately 36 proposals were canvassed Ellingsworth's testimony-which stands sub-
stantially without challenge and which I credit-dealt with eight of the contractual
issues reviewed. With respect to the prior contract's picket line observance language,
Corbett reported Hogue's readiness to accept McCue's suggestion that the AFTRA
,and NABET contracts could be modified to terminate simultaneously, thus guar-
anteeing that AFTRA members would never be required to abrogate their own con-
tract while observing some NABET picket dine With respect to the station's right
to pretape certain parts of the station's daily program, Ellingsworth reported the
Union's readiness to accept Respondent's proposal, provided it was coupled with
a disclaimer of any company intention to reduce staff because of the adoption of
the designated procedure. Discussions relative to the union proposal for a third
vacation week for all employees with 1 year's experience, revealed Ellingsworth's
willingness to accept a modification which Respondent's negotiator suggested. With
respect to severance pay, Corbett reported Respondent's willingness to liberalize
payments with 1 week's severance pay per year of service, limited to 4 week's maxi-
mum: Ellingsworth declared that Respondent's offer was not sufficient. Regarding
AFTRA's proposal for a liberalization of health and welfare coverage, Corbett re-
ported Respondent's probable readiness to pay half of any premiums required for
dependency coverage, while continuing to provide full coverage for individual staff
members; Ellingsworth, I find, withheld any definitive response.
The conference also covered certain matters of somewhat minor significance- Re-
spondent's proposal that fee payment requirements for promotional announcements
made on video tape should be modified, under certain circumstances; Corbett's sug-
gestion that prior contractual provisions with respect to the reemployment rights
of station personnel after military service should be conformed with law, Respond-
ent's declaration of readiness to pay staff members part of the differential between
their regular weekly salary and their military reserve pay, during periods of reserve
service With respect to each of these peripheral matters, achievement of a con-
sensus by the negotiators was either acknowledged or prophesied.
Sometime during the session, however, Ellingsworth renewed his request for salary
and fee information; Corbett, with some embarrassment, reported that it was not
available
KXTV 113
On August 18, Corbett dispatched a memorandum report to General Manager
Hogue, with a copy to the firm's New York office, regarding developments at the
August 16 conference. With a statement that he was "pessimistic" regarding the
possibility of a contractual consensus, Corbett reported official union spokesmen
would apparently "insist" upon company concurrence with union positions pre-
viously taken, in nine specific respects. Respondent's negotiator noted union per-
sistence, for example, with respect to: (1) Retention of the "picket line observance"
privilege for staff members; (2) contract coverage for staff directors; (3) basic
salary raises for staff announcers and staff special announcers, without wage escala-
tion based upon tenure; (4) modification of previous contractual provisions relative
to vacations, severance pay, and overtime play for work during scheduled free time;
(51) improvement of Respondent's health and welfare coverage for the station staff,
(6) special fees for announcers required to utilize their professional talent during
a program; and (7) restriction of the station's fee "recapture" privilege to fees paid
for live spot announcements. (The Union's previously expressed position regard-
ing the station's right to recapture spot fees-though not discussed in this report-
became a major source of conflict during later negotiations. To whatever extent
the facts of that conflict may be material herein, its nature and content will be
reviewed elsewhere in this report.) General Manager Hogue was advised that the
Union had indicated willingness to make concessions with iespect to five matters
under consideration; these were listed as follows: (1) Readiness to pretape moaning
sign-ons, station breaks, and morning programs, contingent upon Respondent's will-
ingness to retain a designated number of staff announcers; (2) readiness to revise
free-lance and staff special announcer's spot ,rates, (3) concessions with respect to
the use of each announcer's "full talent" while making spot announcements; (4)
receptivity to the establishment of a special basic wage for inexperienced announcers
rather than a general wage escalator, and (5) various contractual clarifications, cou-
pled with a modification of the agreement's union-security clause. Hogue was ad-
vised.that August 23 had been designated for a further conference.
On the date noted, the parties met in San Francisco for their ninth session.
Ellingsworth, Walker, and Thornley represented the Union; Corbett and Hogue
spoke for the Respondent enterprise. State Conciliator Koven was present The
session lasted 6 to 7 hours. Considered as a whole, the present record reflects
consensual agreement by the participants that this negotiating session was most
fruitful.
While definitive commitments do not appear to have been made-except for some
matters-areas of difference, seemingly, were substantially reduced. I so find No
changed consensus developed regarding contract coverage for staff directors, Ellings-
worth's credible testimony-corroborated by the union shop steward-reflects a
definite commitment made in behalf of the firm that staff directors would remain part
of the conti act unit With respect to picket line observance, Hogue credited Western
Regional Director McCue with a persuasive presentation of the union viewpoint.
Respondent's general manager, I find, conceded that a possible ground of compromise
had been suggested, calculated to make the disputed contract language moot through
the simultaneous termination of AFTRA's and NABET's contracts, subject to the
agreement of the parties with respect to such an arrangement, Hogue declared his
belief that the old contract's "picket line observance" provision could be retained
in the final package proposal negotiated. (Though a consensus appears to have
been reached that this issue should be considered resolved, so that discussions might
proceed on other subjects, no specific commitments were made as to whether
coincidence of contract termination dates would require AFTRA to take a shorter
or longer contract term to meet NABET's date. Ellingsworth's testimony refers to
a suggestion by Corbett that AFTRA's contract termination date should be extended
to August 15 to conform with the NABET agreement. This detail, however, re-
mained to be settled ) Corbett queried the union negotiator with respect to the
possibility of a settlement on the vacation issue with a third week of vacation-not in
lieu of holidays-after 5 years of service, Ellingsworth declared the suggestion satis-
factory. Consensual agreement was noted with respect to Respondent's pretaping
proposal Ellingsworth reported union readiness to sanction the pretaping of morn-
ing sign-ons, negotiators for the Respondent enterprise indicated concurrence.
Ellingsworth testified, credibly, that the parties understood pre-taping would be done
during morning hours one day before the tape's scheduled use, and that Respondent
would approve a contractual manning scale calculated to guarantee the employment
of the current staff announcer complement With respect to severance pay, Ellings-
worth withdrew prior demands for two weeks of severance pay per year of employ-
ment, suggested instead a top limit of 8 weeks' severance pay reached after 6 years of
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service. Despite their comment that the Union's proposal was somewhat high,
Respondent's negotiators indicated that further consideration of the suggestion was
desired. Testimony proffered by Shop Steward Walker, which I credit, reveals the
realization of a tentative consensus , also, with respect to such matters as Respond-
ent's demand for greater freedom to use extras and incidental performers in crowd
scenes, recorded on video tape, without compensation; union demands for the pay-
ment of a premium for night-shift work; and Respondent's demand for freedom
to designate gift donors during promotional announcements, pursuant to FCC re-
quirements, without being required to pay for such announcements as commercials.
Confusion, generated by a prior contractual error with respect to rates payable for
overtime worked during certain designated hours, was removed by agreement upon
a compromise proposal suggested by Respondent's negotiator for inclusion in the
final contract package.
Respondent's negotiators had proposed that contractual recognition should be
given the station's right to utilize talents possessed by announcers-either as singers,
actors, or otherwise-during programs; while the matter was discussed, no conclusion
appears to have been reached. The union representatives conceded the station's
right to call for the use of any announcer's "talent" during spot announcements, but
pressed for a commitment that if such personnel were required to sing, act, or dis-
play other talents during programs, their inability to perform satisfactorily would
not be considered ground for their discharge from announcer positions. While some
indication was given that Respondent might be willing to give such a commitment,
the question was not resolved.
Discussions regarding the Union's request for some improvement of health and
welfare coverage merely led to Corbett's reiteration of a suggestion that the organiza-
tion accept Respondent's declaration of readiness to contribute 50 percent of the
cost of dependency coverage under AFTRA' s plan.
Compensation questions were discussed thoroughly. No agreement was reached,
however, either with respect to basic salary rates or Respondent's proposal that a
graduated scale of rates should be set up, bottomed upon tenure. (Respondent had
previously proposed a $5 increase, with $2.50 effective May 15-later changed to the
date of the contract's execution-and the remainder effective November 15; this
proposal had been rejected ) Proposals by Ellingsworth regarding the fees payable
to staff announcers, for video-taped spot announcements, won Respondent's tentative
acceptance. Fee schedules for "live" spot announcements and video-taped spots
produced by free-lance announcers were also discussed; several suggestions with
respect to the fee structure were made. Record evidence reveals that the Union took
no firm position with respect to free-lance fees, but no consensus was reached.
(While a witness, Walker reported-with Corbett's concurrence-that the negotiators
generally agreed staff special announcer fees should fall somewhere between those
paid staff announcers and free lancers. Figures were not discussed. Hogue, I find,
expressed his view that fees for staff announcers and staff special announcers could
be settled to the mutual satisfaction of both parties.) Conflict over the station's fee
schedule for public service programs recorded on video-tape was not resolved;
Walker's testimony, however, reflects a general consensus that some mutually ac-
ceptable resolution would be achieved. Respondent's proposal regarding pay for
staff members called for military duty during reserve encampments seems to have
been favorably received by the union spokesmen.
Much discussion developed with regard to Respondent's demand for contractual
recognition of the firm's right to "recapture" part of the fees paid for video-tape
spot announcements. Under the prior AFTRA-KXTV agreement, Respondent had
been obligated to pay certain designated base salaries plus a $5 fee guarantee. This
meant that the firm was contractually bound to supplement basic salaries with $5
for services covered by the trade agreement's fee schedule; the station's obligation
was coupled with so-called "recapture" privileges, however, pursuant to which the
first $5 in fees which an announcer earned could be recaptured, so that the firm
would not have to pay twice for the first $5 of fees which an announcer earned.
The nature of the controversy over this contractual arrangement was described by
Ellingsworth as follows:
It was my understanding ,and it was the understanding of the men in the
AFTRA unit that the $5 fee, which was re-capturable, applied only to the
company's right to recapture the fees for on-camera, live spot announce-
ments . . . it was our understanding that any earnings which were made from
video-tape were over and above the earnings set forth in the basic contract . .
however, Mr. Borba [contended] that there was no such assertion in the contract
and that it was his understanding that the Company had the right to re-capture
all of these fees, whether video taped or live.
KXTV 115
The union negotiator took the position , therefore, that any new contract should
include a fee guarantee covering live commercials only (which would thus be sub-
ject to recapture) but should not include any firm guarantee for video-tape commer-
cial fees (which would, therefore, not be subject to recapture). Respondent de-
manded contractual recognition of recapture rights applicable to fees for both live
and video-taped commercial spots. Subsequent to a discussion conducted with
considerable acrimony, Ellingsworth suggested that the station consider an increase
in the amount of guaranteed fees, which would be coupled with union recognition
of the station's right to recapture fees paid for video-tape spot announcements.
According to the union negotiator-whose uncontradicted testimony I credit-
Corbett and Hogue welcomed this suggestion, though with some reservation as to the
amount subject to guarantee ; they did not report acquiesence, but did declare their
desire to consider the suggestion further. Hogue, I find, characterized Ellingsworth's
suggestion as a "possible solution" for the problem, insofar as staff announcers were
concerned.
Before the session terminated, I find, Respondent' s general manager went on to
declare that the parties had apparently surmounted the "biggest hurdle" present in
their negotiations. Shop Steward Walker, while a witness, summarized Hogue's
comment, credibly, in the following terms:
It seemed like we were making very fine progress, that we had broken through
in a great many areas that up to that point had been more or less deadlocks,
that we had been able to find the avenue of negotiating . . . they thought we
had made progress and that they would like to summarize what had been stated
during the course of this meeting, reduce it to paper and get together again and
have another meeting as soon as possible.
According to Ellingsworth, whom I credit, Hogue further declared that the nego-
tiators would be able to "wrap up" their agreement shortly. The Union's negoti-
ator-as far as the record shows-concurred. Corbett requested another confer-
ence; August 30 was settled upon as its date. Respondent's negotiator, I find,
expressed the hope that the scheduled conference would enable the parties to get
their contract negotiations "completely out of the way."
After the session terminated-while Hogue, Shop Steward Walker, and Thornley
were returning together to Sacramento-Respondent's general manager again ex-
pressed himself, I find, as both enthused and heartened by the progress toward agree-
ment which had been made during the discussion.
On August 26, however, Corbett prepared a letter-nominally addressed both to
Hogue and the union negotiator-which purported to analyze the status of the
negotiations. (No copy was actually dispatched to Ellingsworth. Corbett's testi-
mony, however, reveals that copies were sent to Hogue and Corinthian's New York
office for the information of President Petersmeyer and other corporate officials
concerned with the negotiations.) Therein, Respondent's negotiator reported that
"recent discussions" indicated the development of an impasse between the parties.
While conceding that his procedure was unorthodox, Corbett declared his intention
to analyze the position of the parties objectively, reducing the issues to,a minimum,
so that differences between the Respondent firm and the Union might be more
readily perceived. (While a witness, Corbett did not characterize the situation as a
contractual impasse; he described the posture of the parties, rather, as marked by a
"wide gap" which his letter, hopefully, could help to narrow.) Corbett went on to
state, generally, Respondent's purpose and motivation throughout the negotiations;
likewise, fie summarized AFTRA's basic position. With these statements contrasted,
Corbett declared his desire to suggest some ways in which their seemingly conflict-
ing objective could be reconciled, so that agreement might be reached and the possi-
bility of a strike foreclosed. (When testifying as to his purpose, Corbett declared
that he had wished to show the Respondent firm what, in his opinion , it would have
to do in order to avoid controversy with the Union; concurrently, he had wanted to
show the labor organization what concessions it would have to make, in his opinion,
to improve contract prospects.)
Respondent's negotiator discussed each of the 14 matters mentioned in his previous
August letter as a contract question subject to negotiation With respect to most of
these matters, Corbett presented compromise suggestions for consideration. Regard-
ing Respondent's proposal for the Union's contractual renunciation of "picket line
observation" privileges, he suggested-consistently with McCue's previously proffered
thought-that some contractual provision for common NABET-AFTRA termination
dates, coupled with AFTRA's assurance that the clause would merely protect the
right of individual staff members to observe a picket line, might resolve the matter.
Respondent's demand that staff directors be excluded from contract coverage was
673010-03-:-o]. 139 9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
characterized as "behind the parties " contingent upon AFTRA' s concession that
union membership held by such directors would not interfere with their effective
exercise of supervision Conceding his "lack of authority " to suggest improvements
with respect to Respondent 's vacation program, severance pay, or the station 's health,
welfare, and pension coverage , Corbett nevertheless presented several tentative sug-
gestions for Respondent 's consideration . Finally, he reported , once more , the need
for "several minor changes " to clarify any agreement reached, or to meet current
legal requirements , confidence was expressed that such changes could be negotiated.
Within Corbett 's letter, coupled with his purported recapitulation of the labor
organization 's viewpoint , will be found the observation that:
Further , the Station has been furnished with evidence that AFTRA in repre-
senting its employees would rather suffer economic pressures than voluntarily
consent to reducing the conditions which its membership now enjoy. [Em-
phasis supplied.]
With his reference to this statement clearly implied , Respondent 's negotiator con-
cluded his letter with a reiteration of sincere belief that some resolution of the various
questions discussed-either through the compromises suggested or some variation-
would be far better than permitting matters to reach the strike stage.
e. Intervention by Petersmeyer
Both of Corbett 's letters, noted in this report , were transmitted to Corinthian's
New York office . There, with Petersmeyer absent, they were received and con-
sidered by Robert Salk, Corinthian 's director of programing and Respondent 's secre-
tary, and one Mr. Northrop , Corinthian 's administrative vice president and Respond-
ent's treasurer Early on August 30, before Ellingsworth and Koven reported for the
parties' 10th scheduled bargaining conference , Corbett and Hogue were told by tele-
phone that these New York gentlemen needed more time to consider the former's
August correspondence . When the union spokesman and conciliator arrived,
Corbett reported , regretfully , that he had no written proposal to submit since he
had not yet received Respondent 's direction as to what such a proposal should con-
tain. Declaring that he had sent Respondent several suggestions-based upon the
discussion which had been had at the August 23 session-Corbett showed a copy
of his August 26 letter to Koven , so that the union representatives could be told Re-
spondent was doing something , with good faith , looking toward a contract's con-
summation. Respondent 's negotiator reported , however, that he felt negotiations
should not proceed until he received some response from the station 's New York
management . No conference was held.
On Augut 31 , Petersmeyer reached his New York office; Corbett 's August cor-
respondence was brought to his attention and discussed Petersmeyer-while a
witness-reported that he had been "distressed" by Corbett 's report with respect to
the posture of negotiations . He had hoped , he said, for an early AFTRA contract,
followed by NABET negotiations during August, the completion of which would
have given Respondent time to plan its fall program schedule , with a September 26
starting date Testifying further with respect to his reaction, Petersmeyer observed
that:
I felt that the fight for most of the negotiations had not solved the problem
that the company was faced with at the time that it started negotiations in
April . I felt that we were being in effect taken advantage of by this whip-
sawing between the unions. When I heard that Mr . Ellingsworth was going
to be gone a month, I was concerned , and when it went on for six weeks I
was concerned , and all during this time this magic date of the start of the
fall programming was upon us , and here we were in August when I got these
and read them the same date ... I was very -upset . It looked as though four
months of bargaining and negotiating had resulted in very little progress. We
then, at that time, as of August 1st , were without contracts with either union
... so there we were, and this was now August 31st, and in less than a month,
probably four weeks, we would have to kick off new fall programming .
we were subject to a strike at a moment's notice, and obviously I was extremely
concerned.
On September 1 Petersmeyer telephoned Hogue .to suggest that a meeting with Cor-
bett be arranged for Saturday , September 3, which he would attend.
During the conversation which ensued, Hogue reported , among other things, that
he felt there were disagreements between himself and Petersmeyer with respect to a
number of matters; he declared his intention to resign . Petersmeyer , however, urged
KXTV 117
hue to take no action pending a personal consultation both with respect to the
AFTRA negotiations and his future status with the Respondent enterprise.
Shortly thereafter, Petersmeyer flew to the bay area; he was accompanied by Salk,
who had been designated to assist him in making certain decisions and, possibly,
to assume the station managership in the event of Hogue's resignation.
On September 3, Petersmeyer and Salk met with Corbett and Hogue to consider
the situation. Respondent's president declared that some definitive statement of
the firm's current position with respect to a contract was required; Corbett was
directed to begin work on a new contract proposal. Most of the discussion, there-
after, covered the matters which such a document would have to include.
When questioned about the rationale behind his decision to redraft Respondent's
contract proposal, Petersmeyer-wh-tle a witness-proffered somewhat garbled justi-
fications. Basically, however, Respondent's president declared that he had felt
some "full" discussion of the firm 's original proposal was warranted ; that too much
time had preempted for discussion of the union proposals ; that the labor organiza-
tion had called upon "too many people" to function as negotiators; and that Re-
spondent needed a chance to state what it would "have to have" in order to operate
a first-rate community station. Presumably recapitulating sentiments expressed dur-
ing the September 3 conference, Petersmeyer went on to declare-while a witness-
that Respondent wished nothing calculated to diminish the current earnings or ben-
efits of station employees; but that it wished, rather, to settle matters so that the
station's service would be more saleable, which would permit the station staff, under
their contractual fee arrangement , to earn more money.
With a declaration of conviction that Respondent's proposal would have to be
made quickly-due to the fall program season 's imminence and his own commitments
elsewhere-Petersmeyer instructed Corbett to begin work on a tentative draft, which
he (Petersmeyer) could "finalize" by the first of the next week. Finally, he de-
clared his desire to meet with the talent staff of the station on Sunday, September 4.
Hogue was instructed to have the staff notified of Petersmeyer's desire. When
questioned about his motive for this decision, Respondent's president declared that:
I was concerned that the employees might not thoroughly understand why
the Company felt that certain terms had to be included in this proposal. I felt
that their decision that they might conceivably make that would affect their
families and themselves would depend on their understanding of this proposal.
I was first fearful [that ] by a lack of communication they might have misunder-
stood [what] we meant by something and this might trigger something that
might be difficult for them and the company , and I thought it was more impor-
tant that I as president of the Company meet with them , not in a negotiating
session , not to say I will do this if you will do that , or anything of that type.
[Emphasis supplied.]
Corbett, queried by Petersmeyer with respect to the propriety of his plan, merely
cautioned that nothing subject to possible construction as direct negotiation with
the staff should be undertaken.
On the date indicated, Petersmeyer , Hogue, and Program Manager Borba met
with 7 or 8 out of 10 station staff members . The present record reflects no con-
flict of consequence with respect to the course of their discussion ; my conclusions
regarding that discussion rest upon a testimonial synthesis . Petersmeyer began,
I find, with a brief statement of purpose . Characterizing his remarks as important
both to staff members and the station, he declared that he did not propose to
negotiate , but observed that he believed the employees ought to hear his views.
They were told by Respondent 's president that he desired a chance to tell them
what would be in a proposal which they would receive through established channels
later that week; Petersmeyer went on to declare that he planned to give them a
chance to raise questions as to what Respondent meant by certain proposals, and
questions as to why they were important from the firm 's standpoint . Reporting
that KXTV had not met expectations which had persuaded Corinthian to purchase
the station , the firm 's president declared that certain steps would have to be taken
to bring station performance up to expected levels.
Speaking from notes, Petersmeyer then proceeded to summarize a number of
contract proposals which he urged the staff men -to consider seriously. (Testimony
with respect to the proposals detailed by Respondent's president was necessarily
general. Minimally, however, nine subjects appear to have been discussed; there
may have been some reference to others. ) When he concluded , questions were
raised with respect to the matter of contract coverage for staff directors , since none
of the proposals outlined seemed to have reference to staff members thus designated.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petersmeyer declared that Respondent considered staff directors supervisory person-
nel, and proposed to treat them as part of management. Referring to the consider-
able period previously devoted to negotiations, the firm's president observed that
other important matters had to be considered by the station management-partic-
ularly the matter of the fall program schedule. He declared that Respondent had
other "fish to fry" and thus wished to get contract matters settled. When Walker
asked whether Petersmeyer's report should be considered reflective of a new pro-
posal, with respect to which negotiations aught continue, or rather the station's
"current and final" offer, Respondent's president characterized the prospective pro-
posal aas reflective of the firm's "current and final" position.
Shortly after Petersmeyer's talk, Hogue resigned. Salk was designated the station's
acting general manager; he served in this capacity until November, when Robert
Wilson, a new designee, took over as Respondent's vice president and general
manager. (Except for Petersmeyer's brief recital in this connection, the testimony
proffered with respect to Hogue's resignation was hearsay. Circumstantially, also,
his resignation cannot be considered to have more than peripheral significance
herein. Recapitulation of the circumstances, therefore, will not be attempted.)
After the meeting ended, also, Walker telephoned Ellingsworth to report, charac-
terizing the meeting as one at which everything previously accomplished had been
"washed down ,the drain" by Respondent's president.
On September 6-after -the Labor Day holiday-Ellingsworth telephoned Corbett,
requesting a report on these developments. The testimony of the latter with re-
spect to their conversation-which I find consistent with the cool self-discipline he
displayed, both as a contract negotiator and witness-is credited. Basically, Ellings-
worth was informed that Corbett, Petersmeyer, Salk, and Hogue had conferred;
and that a new contract proposal had been drafted with which he would be dis-
appointed. Respondent's negotiator expressed regret over this development, since
recommendations which he had made were not incorporated therein; he charac-
terized it as a substantial recapitulation of the firm's April 23 contract proposal.
Corbett concluded, I find, with a statement that he, personally, was likewise dis-
appointed. In Respondent's behalf he requested submission of the proposal to
AF'TRA's membership.
On the same date, Ellingsworth telephoned Hogue; he expressed regret over the
latter's reported resignation, voiced his impression that a contractual agreement had
almost been reached, and concluded with a statement of his sorrow that Hogue
had been repudiated. Hogue, I find, replied that he had thought the contract
largely settled, also, but went on to say that "the fact of my being repudiated on this
thing" had not been the only factor in his resignation. (While Ellmgsworth's
testimony with respect to this telephone conversation was proffered and received
without objection, counsel for the Respondent enterprise protested-elsewhere in
the record-further testimony about statements purportedly made by Hogue, either
on September 5 or thereafter, because of their hearsay character. The General
Counsel's representative contended, generally, that Hogue's postresignation state-
ments, regarding developments prior to his resignation with respect to which he had
personal knowledge, should be received. Consideration of this problem has con-
vinced me that the General Counsel's contention goes too far. Clearly, conduct
by an agent pursuant to delegated authority, together with admissions made by him
in the course of that authority's exercise, may be relied upon both to charge a
principal or discredit his claims. Wigmore on Evidence, §§ 1078, 1769. But, con-
trariwise, statements by an agent, though conceivably relevant as admissions, may
not be received or considered as such when made subsequent to the termination of
his agency; they cannot, then, be considered statements made pursuant to delegated
authority, or made in the course of that authority's exercise. Ellingsworth's testi-
mony with respect to Hogue's comment, nevertheless, may well be considered
receivable and relevant, since the comment was certainly a statement by the latter
with respect to his mental condition, i e., his beliefs with respect to the favorable
posture of the negotiations, and the nonexistence of a contractual impasse. Wig-
more on Evidence, §§ 1714, 1781. Hogue had been directly responsible for the
negotiations; despite his resignation, contemporaneous statements reflective of his
belief with respect to the status of the negotiations must be considered relevant to
the disposition of Respondent's present contention that the negotiations before
August 30 had resulted in deadlock.) Ellingsworth's further testimony, however,
re' •'i- to Hogue's comment about his prior authority to negotiate contractual com-
rnit-n rtc, though received, need not be considered.
KXTV 119
2. Subsequent developments
Shortly before noon on September 8, Corbett delivered copies of Respondent's
final contract proposal to State Conciliator Koven and the union negotiator, with
covering letters. Therein , he referred to the firm's June 30 reservation of the right
to withdraw its June 8 package offer , should that offer be rejected or remain un-
accepted within 7 days ; reference was also made to Respondent 's repetitive July 29
and August 4 declarations that no contract remained effective , and that no retro-
active commitments existed , between the parties. Corbett went on to declare that:
Discussions since that time have not succeeded in breaking the impasse. In
an effort to settle on terms which are competitive in the Sacramento market,
the Station withdraws any and all previous proposals or recommendations. It
submits in place thereof a complete contract containing many of the earlier
proposals.
Some proposals were highlighted . Respondent 's negotiator characterized the sub-
mission as the "furthest extent" to which the station was prepared to go. Koven
and Ellingsworth were told that-should the impasse remain unresolved by Septem-
ber 12-Respondent would have no alternative but to initiate some of the proposed
changes thereafter ; they were reassured , however, that such action would not signify
KXTV's refusal to recognize AFTRA as the representative of station staff members,
so long as it remained clear that AFTRA was so authorized.
While a witness , Ellingsworth conceded his "explosive" reaction to Respondent's
new proposal ; he did, however, promise to present that proposal to the station's
union members.
Copies of the proposal were mailed to each union member on the station staff;
upon the entire record, however, their receipt prior to the next scheduled AFTRA
meeting, set for the ninth of the month, cannot be presumed.
Late the next day, September 9', the station 's union members met to consider
the proposal, Ellingsworth presided . Several men, I find, expressed the view that
Petersmeyer 's talk constituted an ultimatum . By secret ballot , the membership
voted to give a three-man committee the right to call a strike , if necessary, and
to determine when such a strike would be called. (Ellingsworth had reported,
during the discussion , Respondent 's declaration within the September 8 letter that
AFTRA's failure to resolve the contractual impasse by Monday, September 12,
would leave the station with no alternative but to initiate some of the proposed
changes the following day.) The committee-subsequent to a lengthy discussion
of strike alternatives , and the possibility of settlement without a walkout-gave
Ellingsworth the right to fix, precisely , the time for a strike call.
While the record does not reveal AFTRA's formal rejection of Respondent's
September 8 proposal , such a rejection would necessarily be implicit in union action
of the type noted . I so find.
Meanwhile, Respondent 's contract negotiations with NABET had commenced.
One preliminary bargaining session had been held August 29 ; another session on
September 12 was scheduled. (While a witness , Lenihan was questioned about
certain statements by Corbett, during the September 12 session . According to
NABET's representative , Respondent 's spokesman disclaimed knowledge regard-
ing the reason for his presence , professed previous belief with respect to his right
to negotiate in Respondent 's behalf, declared his conduct during prior negotiations had
been motivated by an honest impression that he had the "right" to negotiate, but re-
ported a subsequent discovery that he lacked such authority. Lenihan testified that
Corbett's comment was "understood" as a complete reference to the authority
which he (Corbett) had thought he and Hogue possessed with respect to both the
AFTRA and NABET negotiations; NABET 's representative conceded , however,
that Corbett had not mentioned the concurrent AFTRA negotiations . Respond-
ent's spokesman was questioned briefly about the comments thus attributed to him;
he conceded a preliminary statement that he really did not know why Respondent
wanted him present, but denied the other statements attributed to him by the NABET
negotiator Lenihan's testimony, considered in isolation, itself clearly shows that
he made no specific reference to the AFTRA contract negotiations ; mere belief by
the NABET representative that such a reference was contemplated cannot. I find,
sustain a determination that Corbett-during a session dealing with NABET's con-
tract-conceded any lack of authority to conduct AFTRA contract negotiations.)
Lenihan's testimony-to the extent that it may be considered reliable and probative-
will warrant a determination that Corbett merely introduced Salk as the station's
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acting general manager and Hogue's successor, stating finally that he was present
to provide the latter with some "direction" regarding the prior NABET sessions.
On September 13, Respondent distributed a previously prepared memorandum
from Program Manager Borba, addressed to KXTV announcers and staff directors;
the memorandum listed certain "Operation and Compensation" changes These
were promulgated to be effective forthwith, for staff announcers, parttime staff
announcers, staff special announcers, staff directors, and free-lance talent. Among
the subjects covered were: base wage rates, minimum fee guarantees, fee schedules
and the station's right of recapture, overtime and call-back procedures, workdays,
program fees, and further conditions of employment, previously outlined by Peters-
meyer and specified in Respondent's September 8 contract proposal. Pursuant to
the memorandum, I find, the changes were effectuated immediately; no specific
protests appear to have been noted.
Under date of September 14, Ellingsworth protested the station management's
unilateral changes. Corbett, the recipient of his letter, was reminded of AFTRA's
status as the certified bargaining representative of the station staff members affected;
Respondent's conduct with characterized as "high handed" and Ellingsworth requested
that the firm desist from such unfair labor practices forthwith. The AFTRA repre-
sentative declared that further action of a similar nature would impel his organiza-
tion to take appropriate governmental and economic action. Reporting that AFTRA
had been "shocked and surprised" by Respondent's conduct-which he characterized
as precipitous, capricious, and arbitrary-Ellingsworth further described himself as
one left in a state of unbelieving mystification; Corbett was requested to exercise his
good offices to reinstitute a "climate of responsibility" within the councils of
management.
On September 15, Ellingsworth and Corbett met-for the last time so far as the
present record shows-with the State conciliator, Fivey was also present. Koven, I
find, opened the discussion with a statement that it looked as if Respondent did not
really wish to reach an agreement (This determination rests upon a stipulation
With respect to the discussion which followed, Ellingsworth, Fivey, and Corbett
testified with considerable variation. Their recitals match with respect to the ses-
sion's final negative result, but differ with respect to the nature and content of
various representations made. One the witness stand, both of the union spokes-
men-while they clearly demonstrated a desire to be accurate-reported comments
by themselves during the September 15 session reflective of their bitterness over
developments at that time Corbett, though somewhat defensive during the dis-
cussion, appears to have been both restrained and dispassionate Due consideration
of the various factors relevant to a credibility determination, under these circum-
stances, has convinced me, therefore, that Corbett's present testimony with respect
to the discussion merits greater credence than the Ellingsworth-Fivey testimonial
presentation Witnesses directly and personally involved in matters of moment
frequently find it difficult to recall conversations objectively, rationalization fre-
quently colors their memory. Such a reportorial phenomenon, which experience
shows to be not uncommon when participants in some crucial event believe very
deeply in the essential rightness of diametrically opposed contentions, seems to have
been more prevalent in the testimony provided by the union spokesmen, with respect
to the September 15 conference, than in Corbett's version.) Corbett, I find, had been
told-when designated by Salk to represent the station at this conference-that
Respondent's September 8 proposal represented its final package, and that-con-
trary to the negotiator's past practice-there was no flexibility in the firm's position.
When the State conciliator, therefore, suggested the possibility that some areas of
difference might be explored, Corbett, according to his credited testimony, reported
to those present that the Respondent enterprise had taken a firm position and would
move no further. Ellingsworth then asked whether the Union's only alternative was
complete capitulation; Corbett's witness stand recollection with respect to his reply
reads as follows:
and my answer was "there is nothing further that the Company will offer.
I have transmitted the proposal to the Union and the company was standing
on it" Then, Mr Koven. I believe, said, "Well, then, what you are saying is
that this is an ultimatum " And I think that Mrs. Fivey probably very ac-
curately reported the fact that I did not disagree. That is what it seemed to be
to me.
When challenged by Ellingsworth, with a statement that the Union had been mis-
led regarding his authority as Respondent's negotiator, Corbett, I find, disclaimed
ever being motivated by any intention to deceive. Ellingsworth was told that he had
sent a letter suggestive of compromise to Respondent's management because of his
KXTV 121
desire to get matters settled; the union negotiator was likewise advised that Peters-
meyer and Salk had come to California subsequent to their receipt of his letter.
During the discussion, I find, Respondent's spokesman did declare, further, that
he had done everything he could to achieve a contract settle,nent, which he reported
that Respondent wanted; according to his testimony, Corbett's September 15 state-
ment was that Petersmeyer had been told he (Corbett) was not sure how effective
he could be to get anything further for the Respondent enterprise through negotia-
tion. While denying Ellingsworth's recollection that he had made some statement
during the conference to the effect that Respondent's president had repudiated his
authority, Corbett testified, rather, that he had merely reported his presentation of
certain recommendations which Petersmeyer had rejected. Further, while denying
any broad September 15 characterization of himself as a mere "pipeline" from the
firm's New York office throughout negotiations, Corbett testified, credibly, that he
had described his function, during the conference in question, as that of a trans-
mitter of Respondent's final proposal. Ellingsworth, I find, was told, substantially,
that Respondent would do nothing to improve its September 8 offer, and that Corbett
could do nothing to improve it. Respondent's spokesman, I find, gave no indication
that he was authorized or prepared to consummate a trade agreement, consistent
with the firm's September 8 proposal, in the event of some union revelation of
acquiescence. His silence in this respect, however, during the September 15 con-
ference, may well have derived from his tacit recognition that the union representa-
tives would reject the station' s final package; Ellingsworth, I find, had previously
characterized the proposal as designed to bring about the Union's capitulation or a
strike.
On September 22, Ellingsworth sent Corbett a written proposal-confirmatory of a
previous telephone conversation-that Respondent and the Union might submit all
matters of controversy between them to some arbitrator for resolution, subject to their
preliminary agreement to be bound by the arbitrator's decision. Within a letter
dated the following day, however, Corbett reported the belief of Respondent's man-
agement that arbitration would not be appropriate for the resolution of differences
concerning economic issues, subsequent to the opening of AFTRA's prior contract
for negotiation; Ellingsworth's proposal was, therefore, rejected Corbett's letter
closed, however, with a reference to Respondent's appreciation of his search for a
peaceful solution; the station spokesman reiterated its prior submission that a fair
and equitable result could have been derived from the firm's September 8 proposal,
some of the terms of which the station was still prepared to discuss.
While -a witness, Ellingsworth declared that he did not consider Corbett's final
sentence to be a suggestion that Respondent's September 8 proposal was, in any
respect, open for further negotiation or discussion. Queried further, the union ne-
gotiator conceded that Corbett's reference may have been merely to one aspect of
the firm's proposal which provided the Union with a choice as to which of two wage
patterns would be acceptable; Ellingsworth declared, however, that Corbett must
have known both wage pattern proposals would be considered unacceptable by his
labor organization.
On September 26, between 5:50 and 5:55 p.m.-presumably responsive to Ellings-
worth's call-Respondent's announcers and staff directors went on strike. Shortly
after the walkout, Acting Station Manager Salk received a telegram, signed by
AFTRA's negotiating committee, which read as follows.
We are going on strike in protest against certain unfair labor practices which
we charge that you have committed. Charges against you have been filed with
the National Labor Relations Board setting forth certain specific violations of
the Act. We regret your refusal to settle the issues between us by peaceful
means and remind you that we remain willing to meet and negotiate at any
time.
The charge in the present case had really been filed on September 23, record evi-
dence will warrant a determination, however, that notice of the charge was not
received by Respondent until Monday, September 26.
C. Conclusions
1. The unit appropriate for a collective bargain
Within the General Counsel's complaint, Respondent stands charged with a refusal
to bargain concerning the wages, hours, and conditions of work for a group of
station personnel defined consistently with the Union's prior certification, noted.
By their answer, however, counsel for the Respondent enterprise challenge the
General Counsel's contention that the full group previously certified to have desig-
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated and selected AFTRA as exclusive bargaining representative still constitutes a
group appropriate for collective-bargaining purposes. Specifically, Respondent ques-
tions the propriety of the General Counsel's position that station management may
properly be required to bargain, under the statute, with respect to the compensation
and conditions of work for staff directors.
Considered as a whole, the present record fully warrants a determination-con-
sistent with Respondent's contention-that both of the KXTV staff directors, covered
by the station's previous contract, presently function as supervisors, within the mean-
ing of that term as statutorily defined.
Legislative language, buttressed with decisional doctrine, clearly establishes that
supervisors cannot, legally, be found entitled to governmental protection, when they
exercise rights which "employees" find statutorily guaranteed. L. A. Young Spring d
Wire Corporation v. N.L.R.B., 163 F. 2d 905 (C.A D C ), cert. denied 333 U.S. 837.
Hence, whatever the prior contractual practice which parties before the Agency
may have followed, personnel properly classified as supervisors must be excluded
from bargaining units before they can be found appropriate, administratively, for
the purposes of a collective bargain. Ray Patin Productions, Inc., 121 NLRB 1172,
1174; Minneapolis Star and Tribune Company, 115 NLRB 1300, 1302. The factual
determination just made, therefore, that staff directors function as supervisors, would
necessarily preclude Board entry of any order which would require the respondent
station to bargain collectively with respect to their wages, hours, or conditions of
work.
Justification for the determination noted would seem to be patent. Within the
last 1958-60 contract negotiated by Sacramento Telecasters, Inc., and the Union,
staff directors covered by the contract terms were defined as persons hired to direct,
pursuant to assignment, all program elements, audio and video, of any television
program or program segment produced "live" by the station or through its facilities
Such personnel were, further contractually declared responsible-while programs
were being televised-for correct visual and aural coordination of all program ele-
ments, deference to the elements of good -taste, and compliance with station policies
or governmental regulations; they were specifically declared responsible for what-
ever "on-the-air" changes or script cuts might be required to achieve conformity
with station policy or program time requirements. While "off-the-air," directors,
pursuant to contract, were declared responsible for rehearsal timing, placement of
performers, etc. Designated to participate in production conferences, they were
likewise declared responsible for recommendations with respect to the types of sets
and props needed to convey desired program effects; further, they were free to recom-
mend program music.
Shortly after Respondent's management took over the station, Program Manager
Borba and the chief engineer posted and distributed a joint memorandum which pur-
ported to clarify the control room duties of directors under the contract then
current. Though apprised that staff directors would perform "basically the same"
duties, the station's department heads, announcers, and engineering supervisors were
told:
Since the Director is responsible for all elements of any on-the-air production
to which he is assigned, his decisions must be honored. Any technical or studio
production problems that may arise in the course of a presentation, which would
affect the normal operation of the presentation, must be pointed out to the
Director so that he is fully aware of all problems that exist prior to making
his decision. His decision, once made, must be accepted without question by
the crew involved.
On April 15, 1960, General Manager Hogue supplemented this statement with a
declaration that directors "will have" full supervisory powers to carry out their des-
ignated responsibilities. Specifically, the station personnel directly concerned were
told that, to maintain the control and direction required of them, directors must
have the authority, in the interest of the station, to effectively recommend on their
own motion, discharge, discipline, assignments, transfers, and hiring; without such
authority, declared the general manager, directors "lack the power" to effectively
carry out operational decisions which have been delegated to them.
Testimony by Program Manager Borba, which I credit in this connection, reveals
that staff directors-consistently with the contractual definition of their duties and
responsibilities, clarified and supplemented by memorandums-have, throughout the
period with which this case is concerned, functioned as follows: When assigned by
the program manager to prepare a program for presentation, they "coordinate and
pull together" all program elements; they are considered "responsible" for the
preparation of a product which meets station standards. To this end, they confer
with clients, advertising agencies, or the program manager; determine the best set
KXTV 123
to use and arrange for its preparation ; call for the production of scripted copy when-
ever such copy may be required , approve final drafts, and edit scripts to meet pro-
gram time requirements . Should outside talent be required , they may conduct
auditions and sometimes hire and discharge such personnel . (Their presumptive
lack of power or responsibility with ,respect to the hire or job tenure of permanent
station personnel , therefore-despite the General Counsel's contrary suggestion-
cannot be considered determinative .) They usually lay out floor plans, determine
talent placement , review lighting problems with the technical crew, choose music
considered proper, and then "pull the items together" for one or more rehearsals;
during such rehearsals , decisions , which are theirs to make, may be required with
respect to cuts or adjustments relative .to any program element. Upon occasion,
they may request transfers within their technical crew, nominally assigned by the
station's chief engineer . ( Though such transfers might not be effectuated forth-
with by the station's management , delays in action cannot be said to vitiate the con-
clusion that directors presently possess the power to make effective requests there-
for.) When programs "hit the air" for presentation , they function as responsible
coordinators , issuing orders for 5 to 10 "interconnected" people. They choose the
material to be projected from nine picture sources, give directions to the audio man
with respect to proper microphone use, control the technique of musical presenta-
tion , instruct floormen with respect to talent cues, and give orders to cameramen
with respect to the use of their cameras. Should a program not go well, finally,
Respondent 's program manager will "usually" call upon the director for explana-
tions, since he is considered responsible for the program 's final result.
With matters in this posture , the supervisory status of Respondent 's staff directors
must be considered beyond dispute . While General Manager Hogue 's memoran-
dum-dated April 15 but presumably distributed some time later-did purport to
note, present tense, that directors "lack the power" to carry out operational decisions
effectively without authority to effectively recommend discharge , discipline , assign-
ments, transfers , and hiring , and then went on to declare , future tense , that directors
thereafter "will have" full supervisory powers, the concession thereby implied, that
the duties of directors did not call for their exercise of the designated supervisory
functions before the memorandum 's distribution , cannot be considered dispositive of
the quest = on now under consideration Clearly, throughout the period with which
this case is concerned , KXTV staff directors did possess power, through the exercise
of independent judgment, responsibly to direct the work of station employees,
engaged in the production of television programs. American Broadcasting Com-
pany, Inc. (KECA-TV ), 93 NLRB 1410, 1411-1414. Possessed of such power and
responsibility , staff directors must be considered supervisors. Cf. N.L.R .B. v. Fuller-
ton Publishing Company d/b/a Daily News Tribune, 283 F. 2d 545 (C .A. 9), and
cases therein cited.
Were this matter one of first impression , the Union contentions that a staff director
functions like a football quarterback might merit detailed consideration . Questions
with respect to the status of television and radio directors , however, have been pre-
sented to this Agency frequently. Virtually every Board decision which has dealt
with the question-both in the radio and television fields-reflects factual determina-
tions that such directors function as supervisors . American Broadcasting Company,
Inc. (KECA-TV), supra; WCAU , Inc., 93 NLRB 1003, 1004-1006 ; Neptune Broad-
casting Company , 94 NLRB 1052 , 1055; National Broadcasting Co., Inc., 95 NLRB
544, 545-546 ; WTAR Radio Corporation , 100 NLRB 250, 252; American Broad-
casting Company, Inc., 100 NLRB 620; Empire Coil Co. , Inc., 106 NLRB 1069, 1073;
WTOP , Inc., 114 NLRB 1236, 1237-1240; Northwest Publications , Inc., 116 NLRB
1578, 1579; Indiana Broadcasting Corporation , WANE-TV Division , 121 NLRB
111, 113; Radio & Television Station WFLA ( The Tribune Company ), 120 NLRB
903, 904 ; El Mundo , Inc., et at. , 127 NLRB 538, 540-541 . While some of these
determinations may have been based upon the power of directors to make effective
recommendations with respect to hire, transfer , suspension or layoff, recall , promo-
tion or discharge , work assignments , rewards, or discipline , many reflect factual con-
clusions that directors possess the power or authority to direct or assign program
talent and technical crews required for the production of a broadcast or televised
program , and that they are held answerable by superiors for proper performances
by such station personnel Indiana Broadcasting Corporation , WANE-TV Division,
supra. Direction given pursuant to such color of authority warrants characterization
as responsible direction; those designated to provide it must be considered supervisors.
N.L.R B . v. Fullerton Publishing Company d/b/a Daily News Tribune, supra. The
staff directors of channel 10, KXTV, therefore , fall within this category.
Reference has been made to the prior consent-election agreement . negotiated be-
tween AFTRA and Respondent 's predecessor, which included a. stipulation that staff
directors would be considered part of the personnel group appropriate for collective-
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining purposes . Certification of the Union as that group 's exclusive bargaining
representative clearly resulted in subsequent contract coverage for staff directors.
When the Respondent firm purchased and assumed control of the station , manage-
ment did continue to effectuate the terms of the 1958 -60 contract ; specifically,
record evidence does reveal Respondent 's compliance with the contract terms deter-
minative of wages, hours , and conditions of work for staff directors . Consent-
election stipulations with respect to the composition of bargaining units 'appropriate
for contract coverage , however-even though buttressed with some bargaining history
based thereon-cannot estop Respondent from contending , presently , that directors
should properly be excluded from any unit proposed for Board designation as ap-
propriate for the purpose of collective bargaining ; nor can such a stipulation or
contract history, contrary to statutory mandate, bind this Agency . Montgomery
Ward & Company , Incorporated, 115 NLRB 645, enfd. 242 F. 2d 487 (C.A. 2);
General Electric Company (River Works), 107 NLRB 70, 72; Crescent Ink and
Color Company of Pennsylvania, 100 NLRB 663, 665, footnote 11; Thirteenth An-
nual Report (1948 ), p. 38. Compare United Insurance Company, 122 NLRB 911,
footnote 2. The General Counsel 's reliance upon Alamo White Truck Service, Inc.,
122 NLRB 1174 , 1176-1177 , to justify his contrary contention must be considered
misplaced.
Concededly , Respondent first questioned contract coverage for staff directors
within the framework of negotiations . Representatives of both parties-during
their initial sessions-did treat the firm's proposal for the exclusion of directors
as a negotiable matter. Further , record evidence does reveal tentative "settlement"
of the question through a concession by which Respondent withdrew its first demand
that such directors be excluded from contract coverage , contingent upon AFTRA's
presumed willingness to give assurances that union members would not interfere
with effective supervision.
These developments , however, cannot legitimately be said to have foreclosed
Respondent 's present contention , bottomed upon the statute , that staff directors
cannot be part of any Board-approved collective -bargaining unit. (Pointing out
that the issue had been removed from controversy by Respondent 's June 8 conces-
sion-which management made no effort to withdraw before presentation of the
firm's September 8 proposal-the General Counsel presently denigrates the station
contention that union persistence with respect to the issue of contract coverage for
staff directors constituted a barrier to continued negotiations or the consummation
of a contract. While rejection of the contention noted might well be warranted,
determination that such views lack merit cannot, logically, justify the dismissal of
the Respondent station 's renewed contention with respect to the treatment of staff
directors as employees . See Section 14(a) of the statute .) Nor can Respondent's
failure to seek determination of the question through presumptively available Board
certification procedures be considered a waiver of its right to present the contention.
Since the statute gives management and supervisors correlative rights and privileges.
no conclusion would be warranted that Congress intended to make it illegal for
management to bargain collectively , or to contract, with respect to the wages , hours,
and working conditions of supervisors . Local 1055, International Brotherhood of
Electrical Workers v . Gulf Power Company , 44 LRRM 2992, 2995 (D.C. Fla.,
1959 ). Clearly, therefore , voluntary negotiation of a trade agreement by the parties
herein, drafted to cover staff directors together with other station personnel-
whether it resulted from a peaceful consensus or some union persistence could not
have been considered defiance of any statutory bar. With Respondent 's resistance
noted, however , this Board 's mandate cannot be sought to compel such a conces-
sion.
Due regard for the statutory requirements , therefore , constrains me to find that
the group of station personnel which the Union was previously certified to represent-
with staff directors excludedpresently constitutes a unit appropriate for the purposes
of a collective bargain , within the meaning of Section 9(b) of the Act, as amended.
2. Status of the Union as a majority representative
Confronted with the General Counsel 's contention that the Union-throughout
the period with which this case is concerned-was entitled and remains entitled
to function as the exclusive representative of certain station personnel , within a
unit appropriate for collective-bargaining purposes , Respondent's answer merely
noted a denial based upon the declaration that it lacked "information or belief"
with respect to the subject.
When the case was heard , however, Respondent made no presentation calculated
to impugn union claims with respect to that organization 's status as a majority
KXTV 125
representative. Further, counsel for the firm made no effort to challenge the
relevance or propriety of documentary evidence reflective of management's Sep-
tember 8 concession, previously noted, that AFTRA's right to function as the repre-
sentative of station "employees" would continue to be recognized.
Considered as a whole, record evidence makes it clear that the exclusion of
Respondent's staff directors from the unit herein found appropriate for collective-
bargaining purposes would not alter the Union's status as a majority representative
within that group. With matters in this posture, I conclude and find that the com-
plainant labor organization-both on August 29, 1960, and at all times material
thereafter-was, and continues to be, entitled to recognition as the exclusive repre-
sentative of Respondent's employees, within the unit herein found appropriate for
collective-bargaining purposes, pursuant to Section 9(a) of the Act, as amended.
3. Respondent's refusal to bargain
a. Analysis
(1) General principles
Section 8(a)(5) of the statute makes it an unfair labor practice for an employer
to refuse to bargain collectively with the representatives of his employees. When
this bargaining duty of employers was first declared part of the national labor policy,
no "good faith" requirement was expressly set forth; this Agency's predecessor, how-
ever, soon held that the duty of employers to bargain comprehended a duty to
negotiate in good faith with the representatives of their employees, to match any
proposals which might not be acceptable with counterpropsals, and to make every
reasonable effort to reach agreement. Houde Engineering Corp., 1 NLRB 35
(Old). The Wagner Act-though it reaffirmed the duty of employers to bargain
merely in general terms-was conceived to have contemplated legislative adoption
of the Houde Engineering principle; the Board and the courts, thereafter, read the
Act to require "good faith" bargaining. N.L.R.B. v. Montgomery Ward & Co.,
133 F. 2d 676 (C.A. 9) When Section 8(d) was added to the statute, through
1947 amendment, there was general agreement that the new statutory language
declared and confirmed previous judicial constructions of the good-faith require-
ment. N.L R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134
(C.A. 1). The section in question-pursuant to Board and court construction-
imposes a mutual duty upon labor and management representatives to enter into
negotiations with an "open and fair mind and a sincere purpose to find a basis
of agreement" N.L.R.B. v. Darlington Veneer Company, Inc., 236 F. 2d 85, 89
(C.A. 4). It condemns adoption by either party of "take it or leave it" attitudes
Such "good faith" approaches are required, on the theory that discussions carried
on in such an atmosphere "may narrow the issues, making the real demands of the
parties clearer to each other, and perhaps to themselves, and may encourage an
,attitude of settlement through give and take." N.L.R.B. v. Insurance Agents Inter-
national Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 487-488. Firmness
in negotiations-even when coupled with readiness to use economic pressures cal-
culated to make the other party more complaisant with respect to contract terms-
may be consistent with the duty to bargain in good faith. N L.R.B. v. Truitt Mfg.
Co., 3-91 U.S. 149, 154-155 (Justice Frankfurter, concurrence). Whatever course
negotiations may take, however, the designated duty must be satisfied, consistently
with the legislative belief that such an approach by both sides promotes the achieve-
ment of industrial peace.
What reaction does the statute command, then, when record evidence reveals par-
ticipation by the company and union representatives in a lengthy series of bargain-
ing conferences, without the achievement of a contractual consensus? When re-
quired to determine whether Respondent firms, found in such a situation, have
refused to bargain, this Agency must ultimately decide-with due regard for all
the relevant circumstances-whether they have engaged in mere surface bargain-
ing, without the sincere desire ,to reach agreement which the Act commands. Chief
Judge Macgruder within the Reed & Prince case previously noted, stated the ques-
tion presented for determination as follows:
whether it is to be inferred from the totality of the employers' conduct
that it went through the motions of negotiations as an elaborate pretense with
no sincere desire to reach an agreement if possible, or that it bargained in good
faith but was unable to arrive at an acceptable agreement with the union.
Determinations that some respondent employer has refused to bargain, based upon
some single action or discrete series of related actions-without inquiry into the
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
totality of the circumstances which attended the conduct of negotiations, and with-
out a determination relative to the employer's state of mind-generally have been
said,to rest upon so-called per se rules with respect to whether unfair labor prac-
tices have been committed. Judicial recognition has been given such rules for a
limited number of situations; determinations in such cases, however, have generally
been based upon some conclusion that the course of conduct in question represented
a clear manifestation of the employer's state of mind and revealed, therefore, his
lack of good faith. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217;
H. .1. Heinz Company v. N.L.R.B., 311 U.S. 514; see N.L.R.B. v. Cascade Employers
Association, 296 F. 2d 42 (C.A. 9). Whenever conduct specifically challenged as a
refusal to bargain, considered in isolation, will not justify such conclusions, the
Board must determine the employer's state of mind by investigating the totality of
the circumstances. Compare N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg
Steel Products Co., 289 F. 2d 700 (C.A. 2), in this connection.
(2) The General Counsel's contention
Consistently with these principles, the General Counsel presently requests a Board
determination that the totality of Respondent's conduct-since August 29, 1960,
specifically-demonstrates its refusal to bargain in,good faith. Within the complaint,
five designated aspects of the firm's complete course of conduct stand singled out
for special mention; the General Counsel contends that these aspects of Respond-
ent's behavior would arguably support a determination that the station's management
failed performance of its statutory duty. Clearly, however, nothing in the General
Counsel's presentation would warrant a conclusion that he questions these aspects
of the Respondent firm's conduct as separately cognizable, per se, refusals to bargain.
Board determination is requested, rather, that each designated type of conduct con-
tributed significantly to the complete behavior pattern revealed by station manage-
ment representatives subsequent to the crucial date previously noted; the General
Counsel would argue that Respondent's complete behavior pattern demonstrates that
it bargained, thereafter, without the sincere desire to compose differences and reach
agreement which the statute commands.
Necessarily, challenged aspects of Respondent's total course of conduct must be
reviewed separately. Consideration will be confined, however, to evaluation of the
conduct in question as revelatory of the station management's "state of mind," rather
than the sufficiency of each type of conduct, separately considered, to sustain a de-
termination regarding Respondent's lack of good faith.
(3) Respondent's course of conduct
(a) Respondent's failure to provide salary and fee information during negotiations
Settled decisional doctrine, buttressed with judicial approval, clearly establishes
that this Agency-when determining whether a respondent's good-faith bargaining
obligation has been met-may consider the failure or refusal of its management to
provide requested wage information. N L R.B v. F. W. Woolworth Co., 352 U.S.
938; N.L R.B. v. Truitt Mfg. Co., 351 U.S. 149. When such failure or refusal has
been challenged as part of the respondent's total course of conduct, questions may be
raised, legitimately, with respect to such matters as the specificity of the union's
request; the relevancy of the data requested; the propriety of union claims regarding
its negotiator's need for the information, the sufficiency of any data furnished, both
with respect to form and content; or the adequacy of the record to establish any
claimed union withdrawal of a prior request, expressly or through failure to press
the matter. Such questions, however, present subsidiary problems; basically, the
statutory right of union negotiators to present specific requests for wage information,
legitimately deemed necessary and relevant during contract negotiations, stands
confirmed.
Considered as a whole, the present record clearly reveals Ellingsworth's prompt
and specific request for certain salary and fee data. No representative of the Re-
spondent firm has questioned the pertinency of the data requested, nor has any ques-
tion been raised as to the propriety of the Union's request. Nevertheless, the station
management-though it never denied the Union's right to salary and fee figures for
staff announcers-failed or refused to provide the information desired, throughout
the negotiations.
While a witness, Corbett revealed his prior interpretation of Ellingsworth's request
as one for data which would support Respondent's claim that the average fees re-
ceived by staff announcers, under the contract then current, equaled or exceeded $25
weekly. This view of the union negotiator's request has been found mistaken; else-
KXTV 127
where findings have been made that Ellingsworth stated his wish for data with
respect to actual fees earned throughout the prior contract's term, since such data
would reveal any fee earnings trend. The request, presented in such terms, was
never satisfied; Respondent's May 11 and June 14 submissions, which merely reported
averages and periodic totals, tended to mask, rather than to reveal, trends.
Salary and fee information of the type requested was readily procurable and
susceptible of quick computation. There can be no valid ground for contention
that Elhngsworth's request subjected Respondent to undue hardship or burdens.
(When the data was finally supplied, during the present hearing, the station's business
manager reported that the 13-page document had been prepared by her in 51/2 hours,
plus her typist's time.) Counsel suggest that the union negotiator's first specification
called for weekly data, which Respondent could not readily provide since its pay-
roll records were maintained for biweekly pay periods. Any contention, however,
that Respondent's performance of its obligation to provide the requested data was
thereby excused, must be rejected. First, lack of clarity in the record would fore-
close any determination-consistent with counsel's suggestion-that Ellingsworth
continued to demand weekly salary and fee data throughout the first three bargain-
ing sessions; while it is clear that his June 14 request did specify his need for such
data segregated by payroll periods, this presumptive revision of his first request could
have been previously presented. Secondly, Ellingsworth's request-when first pre-
sented-was consistent with the contractual provisions relative to compensation.
Since the station's payroll practice differed from contractual formulations, General
Manager Hogue-presumed to be fully aware of clerical procedure within his own
organization-could have clarified the matter readily, thereby reducing any burden
upon the staff to a minimum Since management failed to make the station's situa-
tion clear, forthwith, no contention can now be made that whatever hardship the
Union's request created could not have been avoided. Such a claim could hardly
be considered warranted, particularly when viewed in the light of Ellingsworth's
promptly demonstrated readiness to modify his request when apprised of the firm's
biweekly payroll period practice. Thirdly, without such revision of the Union's
request, even, Respondent's failure to comply therewith cannot be considered ex-
cused. For, as the station's counsel, themselves, note, this Agency has declared,
in The Cincinnati Steel Castings Company, 86 NLRB 592, that:
we have not held, nor do we now hold, that the employer is obligated to
furnish such information in the exact form requested by the representative. It
is sufficient if the information is made available in a manner not so burdensome
or time-consuming as to impede the process of bargaining.
The station management, therefore, clearly could have supplied the salary and fee
information requested, segregated by payroll periods, without risk. Instead, data
considerably less specific than the Union's negotiator wanted and needed was
provided.
By way of summary: Despite the General Counsel's failure to prove any clear-
cut refusal by the Respondent to furnish salary and fee data, detailed consistently
with the Union's request, substantial support can be found for a determination, upon
the record, that the Company made no reasonably diligent effort to obtain or provide
the desired information. John S. Swift Company, Inc., 124 NLRB 394, enfd. 277
F. 2d 641 (C.A. 7). Respondent's failure in this respect speaks louder than the
professed willingness of its negotiators to provide the material requested.
Counsel for the Respondent station argue that its May 11 and June 14 submis-
sions provided "reasonable proof" for the firm's position regarding fees earned by
staff announcers, and that management's failure to provide the requested material
within the detailed format which Ellingsworth desired did not impede the collective-
bargaining process. These contentions, likewise, must be rejected. Respondent
has misconceived the nature of the statutory right which its course of conduct can
be said to have flouted. The General Counsel makes no contention, comparable to
that made in the Truitt case, that union negotiators are entitled-request having
been made-to receive "reasonable proof" with respect to Respondent's claim that
the compensation of staff announcers currently equalled or exceeded the compensa-
tion received by such announcers for a competitive station. Testimony suggests rather
that Ellingsworth requested data regarding actual, instead of average, fees specifically
because such figures would reveal compensation trends which might reasonably
determine the Union's position relative to fee schedules. Further, station manage-
ment officials cannot realistically argue that their failure to provide requested data
did not delay or block bargaining. Respondent broached the subject of revised
compensation schedules for announcers at the second bargaining session. Despite
some general discussion of salary and fee questions thereafter, no concrete pro-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posals appear to have been discussed prior to the August 16 session . Nothing in
the present record would foreclose a determination that Respondent's prompt sub-
mission of the data requested might have facilitated some earlier discussion of
such "pork chop" questions.
Further, Respondent suggests that-since union negotiators made their last refer-
ence to prior compensation data for staff announcers during the August 16 session-
management's failure to provide such data "played no part" in subsequent develop-
ments challenged by the General Counsel as manifestations of bad-faith bargaining.
This contention-like others previously noted-ments rejection. First, Ellings-
worth's request, clearly, was still viable subsequent to its last repetition; various
compensation questions, though close to resolution after the August 23 session,
were still subject to negotiation. Further, Respondent's September 8 proposal
covered two alternatives with respect to the compensation of staff announcers; nego-
tiations with respect to these alternative proposals, clearly invited by the station
management, would certainly have been facilitated by the submission of salary
and fee data previously requested. Under such circumstances, Respondent cannot
contend, legitimately, that its failure or refusal to provide requested information
"played no part" in the later developments characterized by the General Counsel
as reflective of the firm's refusal to bargain.
The propriety of a present determination that Respondent's failure to produce
requested data-subsequent to the collapse of fruitful negotiations-merits con-
sideration as a significant revelation of the firm 's refusal to bargain in good faith
cannot be vitiated by production of the requested material during the hearing's
progress. The Union's need for salary and fee information-evaluated with due
regard for the legitimate purposes which that information would reasonably be
calculated to serve-was wholly connected with the period of negotiations. Cf.
Oates Bros., Inc., 135 NLRB 1295. While views with respect to a contract were
being exchanged , union representatives possessed of the requested data would have
been enabled to give their members competent representation , while seeking a con-
tractual consensus with the respondent enterprise. And-since the data withheld
by the station related to questions which the parties had not yet been able to resolve-
some expectation would certainly seem warranted that the removal of such an
obstacle to reasoned discussion would have facilitated agreement. Respondent's
belated submission of the data requested-since the Union had clearly been deprived
of any opportunity to use such information in a bargaining context-mocks the
statutory mandate; treatment of the late submission as sufficient compliance with
Respondent's statutory obligation would permit the firm, realistically, to avoid the
consequences of prior wrongful behavior.
Considered in context , therefore-with due regard for the record evidence regard-
ing the previous relationship between the parties, prior events explanatory of their
ultimate behavior at the bargaining table, and the course which "negotiations" took
after August 29 particularly-Respondent 's continued failure or refusal to provide
the data which the Union requested must be considered a significant manifestation
that the station management , subsequent to the date designated as crucial , lacked
any sincere purpose to reach a contractual consensus.
(b) Respondent 's withdrawal of previously delegated authority to conduct
effective negotiations; Respondent 's shift of position and reassertion of pre-
vious contract demands
While Respondent stands charged with bad faith-purportedly revealed through
cancellation of the scheduled August 30 negotiations and subsequent developments-
the further contention has been made, based upon the General Counsel 's amendment
of the complaint , that the firm's management failed , from the outset, to give its
collective-bargaining representatives sufficient authority to enable them to negotiate
effectively . (Though superficially inconsistent with the complaint 's basic charge
that Respondent refused to bargain collectively "commencing on or about August
29, 1960, and at all times thereafter" this aspect of the General Counsel 's case must
necessarily be construed as a charge that management's course of conduct subsequent
to the date noted sufficed to reveal deficiences with respect to the previously delegated
authority of the firm's negotiators.) Considered as a whole, however, record evi-
dence fails to provide preponderant support for such a determination.
When negotiations began , clearly Respondent station's general manager-vested
with sufficient authority to bind his firm, by virtue of his official corporate position-
represented himself as possessed of full power to meet with the union representatives,
to negotiate with respect to various contract proposals, and to consummate whatever
agreement might be reached. (These representations, though verbal, were pre-
KXTV 129
rented with such vigor as to carry conviction. The committeemen present for the
Union had no reason, for doubt, besides, with respect to the truth of Hogue's repre-
sentations; several months previously he had negotiated in Respondent's behalf,
and signed,,a contractual supplement dealing with "video tape recording" fee sched-
ules.) The station's designation of Larry Corbett as "principal spokesman" was
likewise calculated to convey its desire for meaningful negotiation; Corbett was
an experienced negotiator of labor contracts, known as such to the AFTRA repre,
sentatives . Subsequent developments, however, proved that the station's negotiators
were not really vested with plenary authority. Questioned with respect to their
powers, Petersmeyer testified that the firm's representatives had been given the power
to negotiate and sign a contract, but that they were not given auhority to sign
any conract without prior consultation with him. (Despite the General Counsel's
characterization of the testimony proffered by Respondent's president as "cloudy"
and "confused," that testimony provides substantially all the record evidence pre-
sented with respect to the authority of Hogue and Corbett to function as Respondent's
negotiators. Since the comments which Petersmeyer provided-despite their gen-
eralized character-seem consistent with the demonstrated behavior of Corbett and
the station's general manager, his recital with regard to this aspect of the matter has
been credited.) Respondent's president described these representatives of his firm
as authorized to participate in bargaining conferences, wherein they might set forth
the station's position and listen to presentation of the Union's position, with a view
to the development of some common "meeting-ground" within which a contractual
consensus might be reached, consistent with certain prior policy determinations by
Respondent's management. Further, Hogue and Corbett were described as author-
ized to sign any contract negotiated within the limits previously determined as the
result of policy discussions.
According to Petersmeyer, Corbett had described his settled practice in trade
agreement negotiations as a practice which called for the thorough exploration of
every possible avenue which might lead to some contractual accommodation; fur-
ther, Corbett had declared that any concrete proposals made by him in behalf of
his principal would be presented for the Union's concurrence in written form; as
part of a package proposal prepared after consultation with responsible company
representatives. Respondent's president -testified that Corbett's description of his
procedure had sounded satisfactory.
Whenever some substantial departure from the firm's original proposal might seem
warranted, Petersmeyer declared, Corbett and Hogue would be expected to discuss
the propriety of such a departure, first, with him; the station's president referred to
their shared "general understanding" that any written proposal which reflected a
departure from the firm's first contract suggestion would be presented to Respond-
ent's New York office, for consideration and comment, before its submission to the
union negotiators.
Queried with respect to the power of Respondent' s negotiators to explore-dur-
ing bargaining sessions-the possibility of some compromise settlements on particular
points which might vary from written proposals, Petersmeyer declared that Corbett
and Hogue were authorized to "move beyond" pending written proposals, within
certain limited areas previously defined in policy discussions; within these designated
limits they were free to suggest to union spokesmen that some tentatively discussed ad-
justment of Respondent's current position might be wrapped up in a revised pack-
age proposal. According to Respondent's president, however:
. .. it was my understanding that what would be in that, as far as any kind of
a commitment, would be part of a package, would be in writing, and I would
have a chance to see it , so we could say "this is what it is going to cost" and
evaluate whether we could go that far or we couldn't . . . It is my understand-
ing that they were to find out what the Union position was on such matters and
would tell the Union that this sounded like it was a possibility and "we want to
think about this and come up with something that would be a proposal."
Petersmeyer specified both wage matters and Respondent's health and welfare pro-
posal as subjects with respect to which ,Respondent's negotiators had been given such
freedom of maneuver.
The testimony which the Respondent 's president proffered warrants a determina-
tion, generally, that Hogue and Corbett were empowered to discuss various con-
tractual questions, to suggest and consider the possibility of particular modifications
within their principal's "package proposal" currently under discussion, and to present
the union negotiators with complete contract proposals, modified on the basis of
negotiations, subsequent to Petersmeyer's review of the modified package. Re-
spondent's spokesmen were directed to state and hold positions on certain matters
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consistently with previously determined company policy, absent Petersmeyer's prior
clearance regarding some possible deviation; with respect to other contract questions,
however, Respondent's negotiators were free to make tentative suggestions for pos-
sible compromise settlements without prior consultation, since the firm's president
had previously delineated their freedom to suggest compromise possibilities, within
certain defined limits.
The failure of employers to confer competent authority upon their bargaining
representatives, sufficient to permit their entry into binding agreements, cannot be
considered necessarily probative of bad faith. See e.g., Lloyd A. Fry Roofing Com-
pany v. N.L.R.B., 216 F. 2d 273 (C.A. 9); McLean-Arkansas Lumber Company,
Inc., 109 NLRB 1022; Capital Transit Company, 106 NLRB 169, 175. The char-
acter of their agent's powers, however, may well be a factor worthy of consideration,
when such judgments are required. Lloyd A. Fry Roofing Company v. N.L.R.B.,
supra, at 275-276; Great Southern Trucking Co. v. N.L.R.B., 127 F. 2d 180, 185
(C.A. 4). Herein, the General Counsel contends that the Respondent firm, when
negotiations reached their 11th hour, demonstrated that the power of its representa-
tives had been limited to the transmittal of proposals; such a manifestation is char-
acterized as a significant part of the totality of Respondent's conduct, demonstrative
of its failure to bargain in good faith.
Petersmeyer's testimony, however-which record evidence with respect to the
history of negotiations confirms-reveals that spokesmen for the firm were free to
discuss all contract proposals and counterproposals, to promote the clarification and
limitation of disputed questions thereby, and to propose tentative compromises, sub-
ject to later formal presentation as part of a complete written proposal. While the
Respondent station did fail or refuse to vest its representatives with plenary powers,
they were more than mere couriers. Throughout the negotiations-particularly
subsequent to the significant August sessions previously noted-Corbett, together
with Respondent's general manager, provided his principals with appraisals of the
union demands, and forwarded recommendations calculated to promote a contractual
settlement.
Some greater delegation of authority to Respondent's spokesmen might well have
expedited negotiations. Employers, however, cannot be faulted for their failure to
give bargaining representatives the authority to make final on-the-spot commitments
relative to contract proposals, without an opportunity to consult with their principals.
Lloyd A. Fry Roofing Company v. N.L.R.B., supra, at 276; Midwestern Instruments,
Inc., 133 NLRB 1132; see Milwaukee Electric Tool Corporation, 110 NLRB 977;
Capital Transit Company, supra. Whatever judgment may be warranted by the
record, therefore, with respect to Respondent's course of conduct-considered in vari-
ous other respects-the station's management cannot be found to have violated its
statutory duty by some initial failure to give its collective-bargaining representatives
sufficient authority to permit effective contract negotiations
There can be no doubt, however, that Petersmeyer's September 3 determination
to present union negotiators with a final proposal-since that proposal represented a
reversion, substantially, to the station's April 23 contract submission-reflected his
repudiation of various tentative agreements, compromises or concessions which Re-
spondent's previously designated negotiators had considered necessary or justifiable.
Nor can there be any question but that Respondent's management, through presenta-
tion of the firm's September 8 contract proposal for union concurrence or rejection
without further revision relegated Corbett, previously designated as the firm's re-
sponsible spokesman, to a messenger's role.
Whether negotiators seek a contractual consensus through successive definitive
settlements reached with respect to various discrete contract questions separately
considered, or through tentative settlements negotiated with respect to such questions
subject to review within their total contractual context prior to some principal's final
acceptance, the statutory "good faith" standard remains relevant. Thus, while parties
privy to such negotiations may claim the right to keep their cross-table discussion
tentative, reserving every definitive statement of their position for presentation within
written "package" proposals, such procedures can only be followed, legitimately, with
"serious intent to adjust differences and to reach an acceptable common ground "
N L R.B. First Annual Report, pp. 85-86, cited with approval in N.L.R.B. v. Insur-
ance Agent's International Union, AFL-CIO, supra Participants in contract negotia-
tions, therefore, may freely present completely integrated package proposals, but
disputed questions, wrapped up in such packages, must necessarily be considered
separately, meaningful negotiations cannot be conducted merely through some mu-
tual exchange of complete contract drafts.
Shortly, then, package concepts cannot be utilized to frustrate "give and take"
negotiations.
KXTV 131
Nor can such concepts, legitimately construed, permit parties to present for con-
currence-without notice or opportunity for discussion-demands previously com-
promised or withdrawn. International Furniture Company, 106 NLRB 127, 141,
enfd. 212 F. 2d 431 (C.A. 5); National Shoes, Inc., and National Syracuse Corpora-
tion, 103 NLRB 438, 449, enfd. 208 F. 2d 688 (C.A. 2). Shifts in position, coupled
with the renewal of stringent contract demands previously relinquished--especially
when such developments climax 5 or more months of negotiation-have routinely
been found revelatory of bad faith. Crow-Burlingame Company, 94 NLRB 997;
J. W. Woodruff, d/b/a Atlanta Broadcasting Company, 90 NLRB 808; Franklin
Hosiery Mills, Inc., 83 NLRB 276; Tower Hosiery Mills, Inc., 81 NLRB 658. Par-
ticularly, resubmission of a respondent firm's "package contract" proposal, with terms
substantially matching those of a proposal previously rejected-with respect to
which no further discussion had taken place-has been found contributory to a
course of conduct characterized as departing from good-faith negotiations. Quaker
State Oil Refining Corporation, 121 NLRB 334, affd. 270 F. 2d 40 (C.A. 3). Re-
garding this aspect of the negotiations, the Board found, in the cited case, that:
. . . the Union objected that it was not given an adequate opportunity to
express to the Respondent the basis for its dissatisfaction with the contract or
to seek some mutually satisfactory compromise. The Union therefore asked for
a further opportunity to negotiate the disputed contract terms. The Respond-
ent, however, demanded that the contract be immediately resubmitted to the
membership as representing its "final" offer, and that the Union advise the
company by February 3 of the membership's decision.
With matters in such a posture, the designated Respondent's threat to close part
of its operations, and their subsequent closure, was held violative of the statute.
With respect to the propriety of some respondent firm's determination to with-
draw contractual commitments previously made-firmly or conditionally-prelim-
inary to the presentation of new proposals, further Board precedent may be noted.
Edward Shannon, et at., a partnership d/b/a Shannon & Simpson Casket Company,
99 NLRB 430, enfd. F. 2d 545 (C.A. 9). Therein, union negotiators were found to
have accepted all terms of the employer's proposal, with a single exception. With
matters in this posture, the Board declared:
. we are completely satisfied and find that Respondent foreclosed the ,possi-
bility of reaching an agreement by refusing to confine further negotiations to
the one disputed issue and by virtually withdrawing all of its proposals therefor
[sic] accepted by the Union as a basis for concluding an agreement.
Demands by the Respondent's representative during the final stage of negotiations,
that they begin anew were found calculated to have "demoralizing and frustrating"
effects Previous Board determinations were noted, finding evidence of bad faith in
the repudiation of tentative agreements, even though no contractual obligation could
be considered attached thereto
Parallel considerations would seem to be relevant and determinative in this case.
Concededly, the station's September 8 proposal-prepared consistently with Peters-
meyer's previously formulated decision-primarily reflected the renewal of prior pro-
posals, many of which had been previously rejected or withdrawn. And record
quotations would clearly warrant a determination that Respondent's demand for
union concurrence with respect to this final proposal, taken as a complete package,
foreclosed every possibility of further negotiation. The testimony proffered reveals
a general consensus, indeed, that Respondent's September 8 submission constituted
an ultimatum, reasonably calculated to present union members with Hobson's choice,
complete capitulation with a resultant loss of face or some final resort to strike
pressure (Respondent's presentation of two alternative compensation schedules
for staff announcers, did not really invite further negotiation; union representatives
were merely requested to chose between the schedules as presented.) Not only
did Respondent revert.to demands previously relinquished-coupled with some new
proposals-presenting them for union concurrence within the firm's "final" package
and foreclosing any possibility of further negotiation, while doing so, Respondent
swept from the bargaining table every tentative concession, compromise, or suggestion
relevant to a contractual consensus previously propounded or promised serious
consideration.
Detailed review of the station's final proposal clearly reveals management's deter-
mination to revive demands previously withdrawn, and to present new proposals
for union concurrence without any chance for discussion. For example: Respondent's
original demand that staff directors be excluded from contract coverage, withdrawn
to facilitate a settlement pursuant to the firm's June 8 proposal, was renewed. (Refer-
672010-63-col 139-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence has previously been made to the complete propriety of Respondent's demand for
the exclusion of staff directors from contract coverage; clearly no determination
would be warranted that renewal of this demand, per se, constituted a refusal to
bargain. However, station management's prior declaration of willingness to nego-
tiate for such personnel, likewise, could never have been found statutorily barred.
Throughout, representatives of the Respondent firm were free, legally, either to
bargain or refrain therefrom with respect to the wages, hours, and working condi-
tions of staff directors. Compare N.L.R.B. v. Wooster Div. of Borg-Warner, 356 U.S.
342, 351 (dissent). Shifts of position with respect to the matter, therefore, certainly
merit consideration, since they may well be revelatory of Respondent's state of
mind, lust as comparable shifts by the firm regarding other contract questions
legally open for negotiation might well be considered suggestive of bad faith. Pre-
sumably, Petersmeyer had reviewed and ratified Respondent's written declaration of
readiness to bargain for directors. No change in the station's situation, thereafter-
sufficient to warrant a change in management's viewpoint with respect to this matter-
has been cited. Under the circumstances, renewal of Respondent's prior demand for
their exclusion clearly merits treatment as relevant.) Originally, Respondent had
demanded deletion of the joint contract's language prohibiting the employment of
more than one part-time staff announcer for every three full-time staff announcers.
By June, this demand had been withdrawn. The September 8 proposal, however,
contained a suggested contract provision which reflected a deletion of the prior con-
tract's language.
Further, management's final proposal contained a redefinition of part-time employ-
ment under which,the station would be free to hire announcers, compensable at part-
time rates, for as many as 30 hours per week; Respondent's April 23 proposal had
retained the pri or contract's definition of part-time work as work for 20 hours or
less. Desire on the part of the Respondent firm to extend its freedom of hire with
respect to part-time announcers had never been suggested, previously, during nego-
tiations. Originally, Respondent had proposed a contractual change calculated to lift
management's obligation to give 72 hours' prior notice with respect to all work
schedule changes. Pursuant to the firm's proposal, such notice would have been
excused whenever schedule changes were required because of emergency illness
"or other cause beyond the control of the station" which did not permit adequate
notice to be given. Further, management had pressed for deletion of any contractual
reference to penalty payments, previously required whenever schedule changes were
posted without 72 hours' prior notice, under circumstances wherein such notice was
not contractually excused. On June 8, Respondent had declared the matter "with-
drawn" for handling on the station level. On September 8, however, Respondent
proposed the restoration of prior contractual language relative to a $5 penalty
payment, but called for exceptions whenever schedule changes resulted from emer-
gency illness "or other cause beyond the control of the station," consistently with its
first proposal. Under AFTRA's prior contract, work during a staff employee's sched-
uled 12-hour rest period between work shifts, or his 60-hour rest period between
workweeks, was defined as overtime work, compensable at double-time rates. Re•
spondent first proposed compensation for such work at time and one-half rates. By
June 8, however, the station's formal position was that "overtime provisions for the
turn-around period and rest period shall remain the same as in expired agreement
and in accordance wtih past practice." Despite this concession, the station's final
proposal called for compensation at the time and one-half rate for hours worked
during scheduled 60-hour rest periods between workweeks. Initially, Respondent
had proposed modification of prior contractual provisions with respect to rehire
after layoff through addition of capability considerations to length of prior tenure
as a criterion of reemplyoment eligibility On June 8, however-while noting
reversation of the right to discuss the suitability of specific personnel for available
work in cases of rehire-management declared that seniority would be protected,
and foreswore arbitrary action. By September 8, Respondent had reverted to its
original proposal.
With respect to free-lance performers, Respondent first suggested a general review
of compensation matters; no specific proposals were made, except for a declaration
of the station's "belief" that staff announcer fees for transcriptions and for "live"
spot announcements should be set as a minimum payable to free-lance personnel.
On June 8, the firm proposed renewal of the prior contract's fee schedule, with but
two modifications: (1) distinctions were proposed to be drawn between extra per-
formers, usable in crowd scenes without fee, and incidental performers, compensated
pursuant to arrangements negotiated at the time of their assignment; (2) suggestion
was made that fees for spot announcements should be negotiated wtih the freelance
performer's agency, with staff announcer spot fees as a minimum. By September 8,
KXTV 133
however, these proposals had been changed : ( 1) While proposing to exclude "mis-
cellaneous persons" in crowd scenes from any contractual compensation schedule,
Respondent further proposed to extend the definition of "incidental performer" to
performers with "limited scripted or memorized lines" ; -such personnel would thereby
be removed from the "principal performer" category and receive compensation
pursuant to a lower contractually set fee schedule; (2) spot fee schedules were pro-
posed for the contract, slightly higher than the staff announcer schedules , but sub-
stantially lower than the fee schedule under the prior contract. Neither of these
final proposals , though discussed during the August sessions , had previously been
presented formally; both represented a retreat from Respondent 's prior offer. Further,
station management first proposed that free-lance performers disadvantaged through
the cancellation of a guaranteed 13-week contract, through no station fault, should
be compensated at the contractual "one-time" rate . By June 8, this proposal had
been specifically withdrawn. Three months later, it was renewed.
Three out of nine miscellaneous "technical" changes, initially proposed by Re-
spondent 's negotiators , had been noted by June 8 as withdrawn ; two of these requests
were renewed in Respondent 's final proposal . Language in the prior contract had
declared its terms binding upon AFTRA, Respondent , and their respective successors
and assigns . Respondent had first proposed deletion of the contractual "successors
and assigns " reference . Despite management 's June 8 declaration that this proposal
was withdrawn , the station 's final contract proposal omitted the questioned refer-
ence. Respondent , likewise, had first proposed elimination of the prior contract's
night-shift premium for personnel with a tour of duty which included more than
2 hours between midnight and 6 a.m.; despite management's June 8 declaration
that the night-shift premium was reinstated , the final September 8 contract proposal
reflects its deletion.
Presumably , Respondent's June 8 revision of its prior contract proposal had been
checked and considered by the firm's top management , prior to its presentation.
Presumably also, firm management had considered that revision consistent with the
station's declared bargaining objectives . No persuasive reason for Respondent 's change
of mind has been cited. Arguably, changes in the Company's competitive situation
between the date on which the June 8 proposal was reviewed and the start of the fall
program season-changes not previously foreseen-might have justified management's
determination to revive dropped demands. Nothing in the present record , however,
suggests that such changes in Respondent's situation dictated its reversion to positions
previously abandoned , during the search for a contractual consensus.
Further, two provisions of Respondent 's final proposal dealt with matters never
previously mentioned during negotiations . Reference has been made to the firm's
proposal for a revised definition of "part-time" work. Respondent also proposed
that fees should be contractually declared payable monthly rather than biweekly,
consistently with past practice. While these matters, considered in context, may
well warrant characterization as minor, Respondent's determination to press for
them as part of a highly complex package proposal , presented at the 11th hour,
persuasively suggests that station management no longer desired to seek a contractual
consensus through "good faith" negotiation.
Any detailed review of the parties ' August negotiations would significantly lengthen
this already long report . Considered as a whole, however, those negotiations reveal
significant progress toward a contractual consensus ; such progress was conceded by
all participants . Respondent , of course , would argue that any concessions, com-
promises, or suggestions relative to contract language mentioned during these
negotiating sessions were tentative , subject to review by the station's top manage-
ment before their formal submission for union concurrence within the context
of a package proposal . Nevertheless , record evidence establishes that Corbett
and Hogue were functioning , throughout this crucial period, as Respondent's duly
authorized negotiators ; both were considered fully qualified to represent the station,
and, therefore , to review the firm's proposals , make concessions , or suggest com-
promise solutions for disputed questions , within defined limits, particularly with
respect to compensation or health and welfare matters. (Concededly , Corbett had
come to the Respondent firm well recommended ; station management, clearly, con-
sidered him competent and well qualified .) Respondent 's bargaining objectives were
well defined ; Corbett and Hogue, concededly , were fully cognizant of those objectives,
Further, both were fully advised with respect to contract questions about which Re-
spondent wished them to be firm, and matters with respect to which they possessed
limited freedom of maneuver . Yet-despite concessions with respect to their knowl-
edgeableness and competency-Petersmeyer 's testimony reveals his determination to
reject nearly every suggestion proffered by his negotiators as reasonably calculated
to narrow areas of disagreement with the union spokesmen . (Some parts of the
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony proffered by Respondent's president suggest that his determination may
have been triggered by resentment over Hogue's failure to settle matters previously,
pursuant to instructions received; such a conclusion, however, would be speculative,
and cannot be considered required.) His professions of belief that the station could
not "live" with contractual provisions approximating those which Corbett and Hogue-
had promised Respondent would consider clearly reflects a substantial repudiation
of their services; considered in the light of his previously stated views as to their-
competency, such professions smack of stultification. Cf. N.L.R.B. v. R. D. Nesen,
211 F. 2d 559 (C.A. 9), in this connection.
Further, note should be taken of the fact that many of Respondent's contract
proposals-left to moulder during the lengthy negotiations or tentatively scheduled
for withdrawal-were but remotely related to Respondent's professed bargaining
objectives. Elsewhere, these objectives have been noted as Respondent's desire for
some improvement of its competitive position within the Sacramento market, coupled
with greater operational flexibility. Quite a few September 18 proposals, however,
seem more reasonably directed toward union harassment and restriction than to-
ward realization of the station's purpose. For example: Respondent's demand that
"successors and assigns" be deleted from any contractual designation of parties
bound; Petersmeyer's out-of-hand refusal to consider or discuss any revision of the
firm's position with respect to the contractual denial of "picket line observance"
privileges; station management's proposed cancellation of AFTRA's prior right to-
represent members involved in some "controversy or dispute" with the company;
Respondent's demand, newly presented, that fees be recognized as payable monthly;
management's proposal for 4 month's extension of the normal summer vacation
period; station demands for some limitation of seniority's significance, through quali-
fication of the contractually confirmed right to rehire after layoff; and, finally, Re-
spondent's proposal to limit the reemployment rights of station personnel after pe-
nods of military service to those rights created by statute. Some of these proposals,
legitimately, could have been considered withdrawn. (Respondent's June 8 proposal,
referring to "certain other technical amendments" previously suggested, had char-
acterized most of those amendments as changes which merely involved clarification
or compliance with the law; various "other proposals" not specified were declared
to be withdrawn.) Should we conclude, for argument's sake, that such proposals were
still pending, general discussion throughout the August negotiations-characterized,
as those negotiations were, by a generally favorable climate-clearly suggested the
possibility of limbo as their final destination Respondent's persistence then, with)
respect to their necessity within the "final" package proposal, cannot but contribute,
persuasively, to a determination that the firm's proposal did not represent "good
faith" response to a genuine deadlock.
While a witness, Petersmeyer mentioned his previous belief that union negotiators
had deliberately stalled any real discussion of Respondent's original proposal; .pur--
portedly, that belief had provided partial motivation for his determination to renew
prior demands within the firm's September 8 submission. Counsel now contend that
AFTRA spokesmen had been motivated toward a strategy of delay because of their
wish to retain some freedom of maneuver in negotiations until NABET's contract
terminated, coupled with their supposed desired to postpone contract settlement
until shortly before the start of the fall program season.
The record, however, simply will not support such contentions regarding union
tactics or motivation Ellingsworth, clearly, was prepared to discuss concrete ques-
tions after April 23; while his prompt characterization of Respondent's original sub-
mission as retrogressive may have left the station management somewhat nonplussed,
nothing he did could be considered calculated to forestall the presentation of revised
company proposals. When contract discussions were suspended on May 11, they
were suspended on the initiative of Respondent's representatives. Thereafter,
Corbett-though promptly made aware of his authority to continue negotiations as
the station's sole spokesman-made no effort to let Ellingsworth know that he was
so authorized until charges of refusal to bargain were filed. When bargaining ses--
sions were resumed, Corbett was told of Ellingsworth's desire to conclude negotia-
tions before his scheduled July 1 departure for Denver talks, followed by AFTRA's
national convention; despite this knowledge with respect to Ellingsworth's program,
Corbett, for some reason never made clear, could not continue face-to-face discussions
after the June 14 session. And-when later told of Ellingsworth's willingness to
delay his long-planned vacation at July's end-Corbett disicaimed any desire to
force revision of the union negotiator's personal plans. With matters in this posture,
justification cannot be claimed for Petersmeyer's professed belief that. Respondent was
confronted with a union stall
KXTV 135
Further ground for rejection of Petersmeyer's contention may be found in Fivey's
demonstrated readiness to present substantially revised union proposals during
Ellingsworth's absence, with which may be coupled McCue's subsequent proffer of
compromises regarding several significant contract questions. Far from suggesting
strategic delay, AFTRA' s willingness to continue negotiations despite Ellingsworth's
absence, I find, reflects a desire for some sort of contractual accommodation with
reasonable promptitude. Progress in that direction may have been meager, before
Ellingsworth's return, but station management, clearly dedicated to the vigorous pur-
suit of a hard bargain, cannot now complain, legitimately, that union negotiators,
likewise, took relatively firm positions or yielded ground reluctantly.
Had Respondent presented a final proposal which matched its June 8 submis-
sion-refraining from the revival of demands therein compromised or the presenta-
tion of new matter-some justification might be claimed for the firm's present conten-
tion that the resultant bargaining deadlock was genuine. Station management, how-
ever, did more than reveal desire to stand fast upon prior proposals with respect to
which further concessions would not be given; considered in context, the firm's
`new" package was retrograde. Proof of significant changes, not previously fore-
seen-either with respect to the station's financial situation or program plans-could
conceivably have justified Petersmeyer's determined reversion to positions previously
compromised or withdrawn. N.L.R.B. v. Minute Maid Corporation, 283 F. 2d 705,
711 (C.A. 5); Solar Aircraft Company, 109 NLRB 130. Witnesses for the firm,
however, proffered no testimony probative of such changed circumstances. (Refer-
ence has been made to Petersmeyer's witness-chair comment, proffered to justify his
course of conduct, that the firm's original proposal had not been given sufficient
consideration. This was his only claim. Record evidence warrants a determination
that every conceivable problem with respect to Respondent's competitive position,
coupled with management's purported need for more operational flexibility, had been
fully considered by the firm's top management both before Hogue's April 23 presenta-
tion, and before submission of the station's revised June 8 package. Petersmeyer
proffered no testimony relative to later developments.) Substantially, Respondent
merely took the position that imminence of the fall program season's "magic date"
made some sort of prompt settlement necessary. Under these circumstances, man-
agement's present contention that submission of its revised September 8 proposal
confirmed or created a genuine deadlock clearly warrants rejection.
Considered as a whole, Respondent's course of conduct subsequent to August 29-
beginning with the decision of the firm's New York management to withhold com-
ment relative to various compromise suggestions proffered for their consideration
prior to the scheduled August 30 bargaining session-reflects lack of willingness to
follow a procedure reasonably calculated to narrow or eliminate areas of disagree-
ment. With the consequent forced cancellation of the August 30 session and Peters-
meyer's decision to take personal, on-the-spot, command of further negotiations,
ground work for the firm's final proposal was laid. That submission, clearly, con-
stituted an ultimatum; despite Petersmeyer's claimed desire to focus discussion upon
the station's proposal, disagreement between the parties was thereby rendered broader.
Essentially, Respondent relinquished its policy of negotiation with reasonable firm-
ness-which had brought the goal of contractual consensus within reach-for a policy
of dogged intransigence "more likely to discombobulate than to compose" differ-
ences. See Justice Frankfurter, Textile Workers Union v. Lincoln Mills, 353 U.S.
448, 464, dissenting in another context. Such conduct persuasively suggests absence
of the "state of mind" required by statutory standards.
(c) Respondent 's direct bargaining with employees
Considered in context , Petersmeyer 's decision to explain the Respondent firm's
position to the station staff , personally , must likewise be considered subversive of the
collective-bargaining process.
True, the discussion between Respondent 's president and various AFTRA members
during the September 4 session did not involve "give-andltake" negotiations; nor
can it be said that Petersmeyer made any patent effort to denigrate AFTRA or
disparage its negotiators . The record, however, fully sustains the General Counsel's
contention that the station 's management knew or suspected the reluctance of certain
AFTRA members to contemplate the possible consequences of union firmness in
negotiations . Hogue had specifically apprised Fivey of his belief that union
spokesmen were pressing for more than AFTRA's membership , confronted with a
crunch , would demand ; clearly, some station representatives believed that the union
negotiators and certain of the represented station personnel had divergent views
with respect to the necessary elements of any passable contractual consensus.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within such a context, Petersmeyer's presentation of Respondent's forthcoming
proposal, characterized by him as the station's "current and final" contract offer, was
clearly calculated to convey the suggestion that strike action would be necessary
should the union membership wish to compel some modification of management's
position. (While a witness, Petersmeyer conceded telling employees that "this" might
seriously affect them and their families; questioned as to his meaning, Respondent's
president testified that he had meant, "that if they felt the proposal we were making
was one that they couldn't live with and hence took economic action in the form
of a strike," their decision to take such action would be important for them and their
families.) Thereby, members of AFTRA present, conceivably disaffected or
reluctant to face a possible cessation of work, were invited, covertly but clearly, to
bring pressure upon their union spokesmen for some contract settlement on Respond-
ent's terms. Cf. N.L.R B. v Giustina Bros. Lumber Co, 253 F. 2d 371, 373 (C.A. 9).
Since the station's proposal, considered elsewhere in this report, basically reflects
a rejection of the collective-bargaining process, Petersmeyer's course of conduct
merits characterization as one more significant manifestation of his desire to achieve
some definitive accommodation with respect to wages, hours, and conditions of work
by force majeure, rather than voluntary contractual. consensus.
(d) Respondent's unilateral changes
Counsel for the Respondent firm concede its September 13 promulgation and
effectuation of certain unilateral changes with respect to wage rates, hours, and
other terms and conditions of work. Board precedent would clearly warrant a deter-
mination that such a course of action-particularly when taken without union con-
sultation, or during negotiations with union spokesmen directed to the mutual settle-
ment of differences-tends to reflect determination by the firm ,to bypass such union
negotiators, and persuasively contributes to a conclusion that prior contract discus-
sions constituted mere bad faith pretense. N.L.R B. v. Crompton-Highland Mills,
Inc., 337 U.S. 217; N.L.R.B. v. Williamsburg Steel Products Company, supra. Coun-
sel for Respondent contend, however, that no such broad principle should be con-
sidered germane within the present context. While an employer-so the argument
runs-may be statutorily obligated to bargain regarding employment conditions, he
must be found free to make any changes in his method of operation dictated by
business considerations, whenever he cannot-despite reasonable, honest, and fair
discussion-persuade the union to concur. See N L.R B v. Bradley Washfountain
Co., 192 F. 2d 144, 148 (C.A. 7); Morand Brothers Beverage Co., et al., 99 NLRB
1448. Essentially, the stations counsel argue that circumstances sufficient to warrant
Board reference to this qualification of basic doctrine justified Respondent's decision
to make the changes questioned.
Basically prerequisite to the validity of such a claim of justification, however, some
determination must be made that the negotiations had reached a genuine impasse.
N L.R.B. v. Andrew Jergens Co., 175 F. 2d 130, 136 (C A. 9). As the Ninth Circuit
observed in the cited case:
. . . it is contended that when an impasse is reached between the bargaining
parties so that there is a suspension of negotiations, the employer is free to act
with respect to terms and conditions of employment to which the union would
not agree. See N.L.R.B. v. The Sands Mfg. Co., 306 U S 332. We think this
principle is limited to cases where there has been a bonafide but unsuccessful
attempt to reach an agreement with the union, or where the union bears the
guilt for having broken off relations In such a situation the employer has
fulfilled his statutory obligation and is free to exercise his power of management
Cf. N.L.R.B. v. The Sands Mfg. Co., supra; Montgomery Ward, Inc., 39 NLRB
229 In the instant case respondent was found to have refused to bargain in
good faith. Under this circumstance the unilateral wage raise may be said to
have been in furtherance of that refusal and, viewed in the light of respondent's
continued attempts to circumvent the effect of the Teamsters' certification,
furnishes additional evidence of its bad faith toward its bargaining
responsibilities.
The mere fact that negotiations may have proven eventually futile, through displays
of unalterable adamancy by both parties. will not suffice to support a conclusion of
impasse, within the meaning of the doctrine Respondent cites City Packing Com-
pany and Trinity Packing Company, 98 NLRB 1261, 1269 When superficially
legitimate dogged determination has been found reasonably due to some employer's
Pack of willingness to approach negotiations with an open mind, his covert rejection
of the union as a properly authorized employee representative, or his predetermined
KXTV 137
intention to forestall any contractual consensus-with all of these elements collec-
tively subject to characterization as reflective of bad faith-the simple fact of
impasse becomes nothing more than a colorable shield, behind which unilateral
changes in working conditions by the firm cannot be legitimatized.
Elsewhere in this report, reference has been made to various aspects of Respond-
ent's general course of behavior-subsequent to the crucial date designated in the
complaint-which reveal the firm's renunciation of good-faith negotiation. Con-
sidered in such a context, the firm's final proposal, which the station management's
September 13 memorandum purported to effectuate, can be found to have forced a
bargaining impasse, patently contrived to permit Respondent's circumvention of the
collective-bargaining process. Since the station's "Operation and Compensation
Changes" memorandum clearly furthered such an objective, the memorandum's
promulgation and effectuation provides yet another manifestation of Respondent's
lack of willingness to meet its statutory bargaining responsibility. See N.L.R.B. V.
American National Insurance Co., 343 U.S. 395, 401; N L.R.B. v. Edward Shannon,
et al., d/bla Shannon & Simpson Casket Company, 208 F. 2d 545, 548 (C.A. 9), and
the cases therein cited.
b. Conclusion
Considered as a whole, then, Respondent's course of conduct-beginning with
the decision of station representation to cancel their scheduled August 30 bargaining
session, and continuing through the management's September 13 promulgation and
subsequent effectuation of certain designated operation and compensation changes
and the firm's September 15 refusal to bargain further-commands a determina-
tion, without the assignment of conclusive weight to any single aspect of the firm's
behavior, that Respondent's officials, on and after the first date noted, refused to
negotiate yin good faith with the Union, as the statutory representative of station per-
sonnel within a unit appropriate for the purposes of a collective bargain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III, above, occurring in connec-
tion with the operations described in section 1, above, had, and continues to have, a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and, absent correction, would tend to lead-and in this instance has
led-to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in cer-
tain unfair labor practices, it will be recommended that the firm cease and desist
therefrom, and take certain affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as amended
Specifically, it has been found that Respondent refused and continues to refuse to
bargain collectively, in good faith, with the Union entitled to function as the ex-
clusive representative of certain station employees within the unit herein found
appropriate for the purposes of a collective bargain. My recommendation, therefore,
will be that the Board order the Respondent enterprise to bargain collectively, upon
request, with the Union as the exclusive representative of employees within the
appropriate unit herein found, and, if an understanding is reached, embody such
understanding in a signed agreement. Under the circumstances revealed in this case,
such a recommendation should not be considered merely to call for an order that
contract negotiations must start anew; since record evidence establishes that such
negotiations-before their suspension because of conduct, attributable to the Re-
spondent enterprise, herein found violative of the statute-resulted in several tenta-
tive agreements, subject merely to review and modification upon reconsideration as
part of a "package" contract offer, good-faith negotiations should be resumed with
due regard for all commitments tentatively reached by August 23, 1960, before
Respondent's refusal to bargain. Compare Rome Stewarts, Inc., 20 NYSLRB 30, 39
LLRM 1270 (1957). (This formulation with respect to a remedial order should not
be construed as a recommendation that the Board order Respondent to sign, upon the
Union's request, some partial agreement which would merely embody terms previously
agreed upon by the parties in their negotiations. Cf. Feed and Supply Center, Inc.,
127 NLRB 276, 277; North Carolina Furniture, Inc., 121 NLRB 41, 42; Stylecraft
Furniture Company, 111 NLRB 930, 931. Since negotiators for the Union and Re-
spondent had reached no consensus with respect to many significant contract aspects,
their negotiations, when resumed, would necessarily have to continue until some form
of complete agreement had been reached. My recommendation, therefore, should
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely be considered a suggestion that the Board require the parties to resume
negotiations based upon whatever partial or tentative consensus had been reached
before their suspension, rather than upon Respondent's original proposal.)
Furthermore, it has been found that Respondent's posted September 13 memoran-
dum signalized Respondent's unilateral effectuation of changes in current wage
rates, hours, and other conditions of employment, which cannot be justified by the de-
,velopment of a genuine collective-bargaining impasse with respect to these matters.
Previously, under comparable circumstances, this Agency has ordered respondents
to revoke unilateral pronouncements, and revert to conditions current before their
commission of any unfair labor practice found. Such orders have rested upon the
rationale that any failure to restore the status quo prior to statutorily proscribed
conduct would allow respondents to retain the fruit of their unfair labor practices,
and would give them possible advantages at the bargaining table. Recently, how-
ever, the Board has refrained from the entry of restoration orders in several cases,
when circumstances were found to suggest that an abrupt reversion to wage sales,
hours, and conditions of work previously observed would be likely to cause consider-
able confusion, and possibly might not even redound to the satisfaction of em-
ployees whose rights had been violated. Superior Cable Corporation, 116 NLRB
1674, 1680; Beacon Piece Dyeing and Finishing Co., Inc., 421 NLRB '953, 963.
When circumstances suggest that the policies of a respondent enterprise have created
some "mixed" situation, with presumably favorable wage scales on one hand and
presumably unfavorable working conditions on the other, this Agency cannot make
a reliable determination as to whether confusion and lack of satisfaction for em-
ployees would result from a restoration order; their union representative would
clearly be better situated to make such a determination. Therefore, my recom-
mendation will be that the Board enter a restoration order, but one conditioned upon
the affirmative desire of employees for such an order, expressed through their
collective-bargaining representative.
Since it has been found that Respondent refused or failed to supply the union
negotiators with relevant wage and fee data requested during the negotiations, recom-
mendations will be made that the Board order Respondent to supply the designated
information, upon request. Testimony herein reveals the preparation and submis-
sion of certain wage and fee information proffered for the record by Respondent's
counsel while the bearing was in progress Should union representatives, when sup-
plied with copies of the data submitted, consider it sufficient to satisfy their chief
negotiator's request, presented during negotiations, the labor organization's freedom
to waive any further submission by way of compliance would be patent; should they
consider Respondent's record submission less than adequate, however, the firm's
obligation to comply with the order recommended herein, prospectively, should not
be considered lifted.
Testimony and documentary evidence proffered and received herein, without ob-
jection, would seem to warrant a conclusion that union members employed by the
Respondent enterprise went on strike September 26, 1960, because of Respondent's
refusal to bargain in good faith. Within the General Counsel's brief, request is
made, therefore, that the right of these employees to reinstatement upon the strike's
termination be confirmed. (Specifically, the General Counsel's representative has
requested my recommendation that the Board order Respondent to offer striking
employees immediate and full reinstatement, upon application, to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, dismissing, should that be necessary, any person hired on or after
their strike date.)
Nothing in the General Counsel's complaint as it presently stands, however, would
seem to call for a factual determination that Respondent's employees initiated an
unfair labor practice strike; Respondent's answer, clearly, must be considered silent
on the point Without formal issue properly joined regarding the strike's character,
factual determinations with respect to its motivation would not appear to be appro-
priate; remedial recommendations premised upon the possible status of the strikers
as protestants with respect to Respondent's refusal to bareain should, consequently,
be eschewed. Note should be taken, however, that possible Agency reluctance to
determine the strike's character and the resultant reinstatement right of strikers,
with the complaint in its present form, will not, presumably, foreclose appropriate
determinations should some question subsequently arise with respect to the rein-
statement rights of strikers at Respondent's Sacramento television station. Should
Respondent be charged, later, with a discriminatory refusal to reinstate such
strikers, nothing in the statute would seem to preclude a Board determination. then,
that the strike was caused by Respondent's unfair labor practices, previously found,
and that the strikers retained certain reinstatement rights based upon the character
WESTERN CONTRACTING CORPORATION 139
of their strike action. N.L.R.B. v. The Ozark Dam Constructors and Flippin Ma-
terials Co., 203 F. 2d 139, 145-147 (C.A. 8), enfg. 99 NLRB 1031, 1035-1036.
Whatever rule of limitation the statute may require the Board to observe, calculated
to -prevent the issuance of complaints based upon charges reflective of stale unfair
labor practices, such rules of limitation cannot be construed, legitimately, to deprive
strikers of reinstatement rights upon the termination of an unfair labor practice
strike.
Respondent's course of conduct, despite its limited thrust, goes to the very heart
of the statute, and suggests the firm's purpose, generally, to limit the lawful rights
of employees. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Upon
the entire record I am persuaded that the unfair labor practices found are closely
related to other labor practices statutorily proscribed, the future commission of
which may reasonably be anticipated, because of the conduct found attributable to
the Respondent enterprise in this report. The preventive purposes of the statute will
be frustrated unless recommended remedial action and any order which may prove
necessary can be coextensive with the threat. Therefore, to make the interdependent
guarantees of Section 7 effective, to prevent any recurrence of the unfair labor
practices found, to minimize industrial strife which burdens and obstructs com-
merce, and thus to effectuate statutory policies, it will be recommended that Re-
spondent cease and desist from infringement, in any other manner, upon rights
guaranteed by the aforesaid statutory provisions.
In view of the foregoing findings of fact, and upon the entire record in this case,.
I make the following:
CONCLUSIONS OF LAW
1. Great Western Broadcasting Corporation d/b/a KXTV, Sacramento, Cali-
fornia, is an employer within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
2. San Francisco Local of the American Federation of Television and Radio
Artists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits employees of Great Western Broadcasting Cor-
poration to membership.
3. All of Respondent's employees at Sacramento, California, who perform before
the camera or microphone, exclusive of instrumental musicians performing as such,
guards, all other employees, and supervisors as defined in Section 2(11) of the Act,
as amended, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act, as amended.
4. San Francisco Local of the American Federation of Television and Radio
Artists, AFL-CIO, has been, at all times material, and still is entitled to recognition
as the exclusive representative of all Respondent's employees in the unit described
above, for the purposes of a collective bargain with respect to rates of pay, hours
of employment, and other terms and conditions of employment, within the meaning
of Section 9(a) of the Act, as amended.
5. By refusal to bargain collectively in good faith with the labor organization
entitled to function as the exclusive representative of its employees within an ap-
propriate unit, and by consequent interference with, restraint, and coercion of those
employees in the exercise of rights statutorily guaranteed, Respondent engaged, and
continues to engage, in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Western Contracting Corporation and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Local No. 222. Cam, No. 27-CA-1170. October 17,
1962
DECISION AND ORDER
On July 12, 1962, Trial Examiner David Karasick issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
139 NLRB No. 17.