National Broadcasting Co.

National Labor Relations Board - Board Decisions

Apr 17, 1979

241 N.L.R.B. 920 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Broadcasting Company, Inc. and National
Association of Broadcast Employees and Techni-
cians, AFL-CIO. Case 2-CA-15376
April 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On January 23, 1979, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and a supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, National Broadcasting
Company, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
forth in the said recommended Order, except that the
attached notice is substituted for that of the Adminis-
trative Law Judge.
In its exceptions, the General Counsel states that the Administrative Law
Judge's notice inadvertently fails to encompass the provisions of his recom-
mended Order. We agree and shall modify the Administrative Law Judge's
notice accordingly.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with NABET regarding participation of unit
technical employees in the RCA income savings
plan.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
WE WILL upon request, bargain collectively
with NABET respecting the participation by
unit technical employees in the RCA income
savings plan, and if an understanding is reached,
embody such understanding in a signed agree-
ment.
NATIONAL BROADCASTING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge: Pursuant
to a charge filed by National Association of Broadcast Em-
ployees and Technicians, AFL-CIO (NABET), a hearing
was held in this matter upon a complaint issued by the
General Counsel and an answer filed by National Broad-
casting Company, Inc. (Respondent.)
Upon the entire record, including consideration of briefs,
I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a Delaware corporation with its principal
office in New York City, is engaged in radio and television
broadcasting. It is an employer within Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
NABET is a labor organization within Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
The issue in this case is whether Respondent violated
Section 8(a)(5) of the Act by refusing NABET's request to
negotiate concerning the participation of its unit employees
in an income savings plan where such request and refusal
occurred mid-term of an operative contract.
Respondent and NABET have had a series of collective-
bargaining agreements covering an appropriate unit of Re-
spondent's technical employees. The current contract runs
from May 24, 1976, to March 31, 1980. On or about April
1, 1977, Respondent adopted and put into effect an income
savings plan for all salaried employees who either work or
are scheduled to work 1,000 hours in a I-year period. Em-
ployees satisfying these requirements become members au-
tomatically. The plan excludes from participation, however,
all employees covered by collective-bargaining agreements
unless their contract makes the plan applicable to them.
The stated purpose of the savings plan is to "help eligible
employees build financial security by enabling them to ac-
cumulate assets in a tax-exempt trust fund. The Plan is de-
241 NLRB No. 147
920
NATIONAL BROADCASTING COMPANY, INC.
signed to augment their income when they retire or other-
wise leave the company and to help them meet major
financial needs before then." Under the plan, Respondent
contributes to the account of each participating member-
employee, 4 percent of that employee's base salary for each
pay period, and each Member may voluntarily invest an
amount of up to 10 percent of his base salary each pay
period. Each member has the option of selecting in which
of three investment funds he desires both his and Respon-
dent's contributions to be placed, and the member may pe-
riodically reassign contributions from one fund to another.
One available fund is a fixed income fund guaranteeing "an
effective annual rate of return of 8-1/4 percent"; another is
a general stock fund investing in diversified common
stocks; and the third is an RCA stock fund, but in which
only the amount of Respondent's contribution may be in-
vested.
The plan permits a member to withdraw described sums
from his account while still employed. And upon separation
or retirement from the Company, the member may elect to
receive a single lump-sum payment or quarterly install-
ments for up to 15 years or an annuity. (The General Coun-
sel thus observes that a participant in the savings plan "is
able to control the tax consequences of withdrawal by
spreading fund payments over several years.")
By letter to Respondent on July 18, 1977, NABET re-
quested that its unit employees be made eligible to partici-
pate in the savings plan or, if such request be denied, that
Respondent bargain with NABET concerning their eligibil-
ity to participate.' Respondent replied on August 2, 1977,
that the plan is not available to union-represented employ-
ees "unless and until it is bargained in their respective col-
lective bargaining contracts" and that Respondent did not
have an obligation to bargain concerning that matter dur-
ing the term of the parties' current (1976-1980) contract.
Retirement Plan Under Predecessor Contract, 1976
Negotiations
Respondent's predecessor (1973-76) contract with
NABET provided for continuation of the Company's retire-
ment plan which was and presumably still is available to all
regular employees-both represented and nonrepre-
sented-having one year of service. This retirement plan
states that it was established to offer employees "an oppor-
tunity to collect a monthly cash income" after retirement,
and it is funded by contributions from those employees who
elect to participate (in an amount of a described 3 percent
of the employee's salary) and by a company contribution of
an indefinite amount. Essentially a conventional retirement
or pension program, the retirement plan provides that con-
tributions "are paid to trustees or insurance companies that
I This letter also stated in part:
During our negotiations in recent years we have consistantly pressed for
some form of supplement to the retirement benefits received by our
members. While some recognition of this effort has been forthcoming in
respect to early retirement, we have been unable to 'break through' with
the supplement concept for regular retirees.
It seems that the Company has been able to find a way to accomplish
our goal by instituting 'the RCA Income Savings Plan' effective April ,
1977.
hold and invest the principal and income at their discretion
or at the discretion of investment advisors."
During negotiations for a renewal contract in 1976
NABET proposed that severance pay be given to all unit
retirees regardless of participation in the retirement plan.
NABET indicated at the time that this "would provide a
meaningful supplement" to the retirement plan. This pro-
posal culminated in a "side-letter" agreement in which Re-
spondent agreed to give a "long service separation benefit"
to all unit employees who are separated between the ages of
60 and 62 after 8 continuous years of service. The side-letter
agreement provides that this separation benefit be com-
puted "at the rate of one-fifth (1/5) the employee's bi-
weekly base salary at the time of separation, multiplied by
the number of bi-weekly pay periods between the employ-
ee's date of separation and his sixty-second birthday. Such
separation benefit shall be payable to the employee either
(a) over the course of one (1) year from the time of separa-
tion or (b) with the Company's consent, in a lump sum at
the time of separation."
Except for NABET's general comment in its letter of
July 18 (fn. I, supra), the record does not show the details of
any other discussion of retirement or related matters during
the 1976 or any other negotiations. The 1976- 1980 contract
provides, as did the contract before it, that "The RCA Re-
tirement Plan which presently applies to employees under
this Agreement shall be continued during the term of this
Agreement. The Union will be notified of any changes,
which affect the employees of NBC generally, made during
the term of this Agreement in the RCA Retirement Plan. At
the request of the Union, such changes will be made appli-
cable to the employees covered by this Agreement under
the same conditions as apply to the employees of NBC gen-
erally." The 1976-1980 agreement does not contain either a
reopener or a "zipper" provision waiving the right to de-
mand bargaining about any subject matter.
On or about April 1, 1977, some 10 months in the term of
the current contract, Respondent promulgated and began
implementing the income savings plan. Such a plan had not
been either mentioned or discussed during 1976 negotia-
tions.
Conclusions
The parties agree that the income savings plan is a man-
datory subject of bargaining and that Respondent was re-
quired to bargain over this plan in mid-term of the 1976-
1980 contract unless it be found that NABET had waived
this bargaining right in "clear and unmistakable language."
NL Industries, Inc. v. N.L.R.B., 536 F.2d 786, 788-789 (8th
Cir. 1976), enfg. 220 NLRB 41, 43 (1975), and cases cited
therein. A waiver may be manifested "either by the terms of
the contract or by actual negotiation." (Id.)
Asserting that the savings plan is a "supplement to retire-
ment," Respondent claims that NABET "tried but failed to
obtain this kind of benefit" in recent negotiations and Re-
spondent would support this claim by reference to
NABET's letter of July 18, 1977, set forth above. Other
than the proposal which resulted in the aforementioned
"side-letter" agreement, the record, as indicated, does not
show what other supplemental retirement benefits the
Union may have sought and it certainly does not show that
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the savings plan or a similar program had ever been either
proposed or discussed. The savings plan came into being
some 10 months after the effective date of the present con-
tract, and, as appears above, it differs substantially from the
retirement plan-in concept, benefits, and mechanics.
I accordingly find, without more, that the record does not
establish a plain and unmistakable waiver by NABET of its
right to bargain about the savings plan, and I conclude that
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to negotiate with NABET concerning the eligibil-
ity of unit employees for inclusion in that plan. This obliga-
tion to bargain, needless to say, "is not a duty to capitu-
late"; it requires only that Respondent "bargain in good
faith on the subject matter involved." NL Industries, Inc. v.
N.L.R.B., 536 F.2d at 790.
CoN(.USIONS O()F LAW
I. Respondent is an employer within Section 2(6) and (7)
of the Act.
2. NABET is a labor organization within Section 2(5) of
the Act.
3. NABET is, and at all material times has been, the
statutory bargaining representative of Respondent's techni-
cal employees in an appropriate unit within Section 9(a)
and (h) of the Act.
4. By refusing to bargain with NABET concerning the
participation of unit employees in the RCA income savings
plan, Respondent has violated Section 8(a)(5) and () of the
Act.
5. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
TIIE REMFIDY
Having found that Respondent has engaged in unfair la-
bor practices, I shall recommend that it cease and desist
therefrom and that it take affirmative action in order to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c), I issue
the following recommended:
ORDER2
The Respondent, National Broadcasting Company, Inc.,
New York, New York, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with NABET in re-
gard to participation of unit technical employees in the
RCA income savings plan.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to sell-organization, to bargain collectively through
representatives of their own choosing, and to engage in con-
certed activities for the purpose of mutual aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any
and all such activities.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with NABET with respect to
participation by employees in the aforementioned appropri-
ate unit in the RCA income savings plan, and if an under-
standing is reached, embody such understanding in a signed
agreement.
(b) Post at its place of business copies of the attached
notice marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 2, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived tbr all purposes.
' In the event this Order is enfo)rced by a judgment of the United States
(Court of Appeals, the words in the notice reading "Posted by Order of the
National L.abor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enlorcing an Order of the National
.labor Relations Board."
922