National Broadcasting Co.

National Labor Relations Board - Board Decisions

Sep 16, 1980

252 N.L.R.B. 187 (N.L.R.B. 1980)

NATIONAL BROADCASTING CO.
National Broadcasting Co., Inc. and Cleveland
Local, American Federation of Television and
Radio Artists, AFL-CIO. Case 18-CA-13091
September 16, 1980
DECISION AND ORDER
On June 6, 1980, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging
Party filed a brief in opposition to Respondent's ex-
ceptions.
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, find-
ings,1 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, National
Broadcasting Co., Inc., Cleveland, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
Respondent contends, inter alia, that the Administrative Law Judge
erred in not finding that it had engaged in "package bargaining," stating
that, as in Triangle PWC, Inc., a Subsidiary of Triangle Industries Inc., 231
NLRB 492 (1977), the Union herein consciously relinquished its demand
for certain contract terms in order to pursue others. Accordingly, Re-
spondent argues that the Union had waived its right to bargain over the
RCA Income Savings Plan. We do not agree. In Triangle, the employer
repeatedly stated that "all benefit level adjustments would have to come
from the total amount of moneys under consideration in bargaining," ex-
plaining that any increase in benefit of any kind would have to come out
of the same "pie." When the union chose not to pursue negotiations con-
cerning pension benefit levels in favor of pursuing other contract terms,
the Board found that the union had waived its right to bargain over pen-
sion benefit levels. In contrast with the foregoing, in the instant case Re-
spondent merely announced at the commencement of negotiations that it
"intended to comply with the presidential voluntary guidelines." There is
no record evidence that Respondent ever indicated that any improvement
in benefit levels would have to come from the same "pie" (here the 7-
percent voluntary wage-price guidelines), or that any item other than
wages would be restricted by its intention to follow the guidelines. Fur-
ther, Respondent's "intention" was in fact followed only to the extent
that the agreed-upon contract provided for a 7-percent across-the-board
wage increase in each year of the agreement. In addition to this 7-percent
increase, the contract provided other substantial economic improvements.
Under these circumstances, we find Respondent's reliance on Triangle to
be misplaced.
252 NLRB No. 33
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 with Cleve-
land Local, American Federation of Television
and Radio Artists, AFL-CIO, the duly desig-
nated representative of our employees in the
appropriate unit described below, concerning
the participation of said unit employees in the
RCA Income Savings Plan. The appropriate
unit is:
All staff performers, including staff an-
nouncers, staff newspersons, staff singers,
and staff actors employed by the Company
at the WKYC television station.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL, upon request, bargain with said
Union with respect to participation by the
above unit employees in the RCA Income
Savings Plan, and, if an understanding is
reached, embody such understanding in a
signed agreement.
NATIONAL BROADCASTING CO., INC.
DECISION
FRANK H. ITKIN, Administrative Law Judge: The
unfair labor practice charge in this case was filed on
August 15 and the complaint was issued on September
28, 1979. The case was heard in Cleveland, Ohio, on
March 12 and 13, 1980. The principal issue raised here is
whether Respondent NBC violated Section 8(aX)(5) and
(1) of the National Labor Relations Act by refusing to
bargain during the term of its contract with Charging
Party AFTRA with respect to a benefit plan known as
the RCA Income Savings Plan. Respondent NBC argues
that Charging Party AFTRA, during the negotiations
culminating in the present agreement, waived this bar-
gaining right. Upon the entire record, including my ob-
servation of the witnesses, and after due consideration of
the briefs of counsel, I make the following:
FINDINGS OF FACT
Charging Party Union AFTRA is admittedly a labor
organization as alleged. Respondent NBC is admittedly
an employer as alleged. The current contract between
the parties is effective from November 15, 1981 (Jt. Exh.
187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1).1 The parties held some eight or nine bargaining ses-
sions during October and November 1978, culminating in
the above agreement. The chief negotiator for AFTRA
was Kenneth Bichl. The chief negotiator for NBC was
Irving Brand. Their testimony concerning these negotia-
tions and related evidence of record is summarized
below.
A. October 24, 1978, Session
AFTRA negotiator Bichl testified that at the first bar-
gaining session between the parties on October 24, 1978,
"we presented the Company with our listing of contract
proposals, sort of quickly running down through the pro-
posals, and responding to any immediate questions on
them." There were some 30 "proposals AFTRA was
making to NBC" and the meeting lasted "about an hour
and a half." Bichl noted that the so-called RCA Income
Savings Plan was not listed as an AFTRA proposal or
discussed at this session. Bichl further noted that
AFTRA's "Proposal No. 22," which was listed at this
meeting, "was a basic . . . very brief, proposal for a
stock purchase or a stock option plan." (See G.C. Exh.
10.)2
B. November 1, 1978, Session
Bichl recalled that at the second session on November
1, 1978, NBC negotiator Brand responded to his "Pro-
posal No. 22," as follows:
[The] proposal [was] for a stock purchase or stock
option plan. NBC had no stock, being a subsidiary
of RCA, and that there was no stock purchase plan
.... [T]here had been some thought or some ef-
forts in the past to come up with a stock option
plan, but it would be costly and it would be in-
volved ....
Bichl replied "that this was a general proposal; we
[AFTRA] were interested in some method of our mem-
bers saving money, sheltering parts of their income,
being able to invest something that would allow them to
save their money in face of the constantly rising living
costs."
Bichl further testified:
To the best of my recollection of that meeting,
there was reference to the fact that in the New
York area there was a local credit union, also there
was an income savings plan or an income plan of
some kind or another that was not open to orga-
nized or represented people.
The contract provides that "this agreement applies to all staff per-
formers, including staff announcers, staff newspersons, staff singers, and
staff actors employed by the Company at the station .... " (It. Exh. 1).
I find and conclude that the above employees constitute an appropriate
unit for collective-bargaining purposes, as alleged in the complaint.
2 G.C. Exh. 10 provides under item 22: "Add new wording establish-
ing participation of Artists in stock purchase plan." Also see G.C. Exh. 6.
Bichl claimed that "approximately a minute and a half"
was "devoted" to discussing AFTRA's "Proposal No.
22" on that day.3
NBC negotiator Brand testified that the so-called RCA
Income Savings Plan became effective on or about April
1, 1977. Brand generally explained this plan (see G.C.
Exh. 2), noting:
It's intended as a form of deferred pension in the
sense that the money that is contributed in by the
Company is not taxed immediately, and the employ-
ee cannot take out all the money any time he wants
to.
Brand acknowledged that:
Currently, the participants in the RCA Income Sav-
ings Plan are . . . non-represented employees, as
well as NABET represented employees.
Brand further explained that the plan in fact "permits
employees who are represented for purposes of collec-
tive bargaining [to] become members of the Plan if in
fact their representatives are able to negotiate the Plan
into their collective-bargaining agreement." (See G.C.
Exh. 2, pp. 4 and 14. Also see Resp. Exhs. 5, 6, and 7,
distributions of the Employer publicizing the plan to em-
ployees.)
Brand, referring to the Union's "Demand No. 22," re-
called that at the November I bargaining session,
I said that since . . . there was no stock . . . there
was no stock purchase plan available at NBC . . . it
was therefore not foreseeable or feasible that NBC
was going to provide a stock purchase plan as a
result of this negotiation.
Brand further recalled:
He [Union Representative Hrehocik] remarked in a
questioning tone, there is no stock purchase plan
available or stock plan available.
I said, if you are referring to the RCA Income Sav-
ings Plan, and went on to mention some aspects of
the Plan.
* * * *
Specifically, I recall mentioning that the Company
contributes 4 percent of salary to participants [of
the] Plan in either 3 ways, RCA stock, the common
fund or fixed income fund, and I also believe that I
mentioned to them that . . . perhaps this contribu-
tion for RCA stock . . . makes this a stock pur-
chase plan in their mind.
a On cross-examination Bichl recalled that Brand had stated at this ses-
sion:
[T]here was an income plan or an income savings plan that was not
available-or it was available to unrepresented employees.
Bichl acknowledged that at no time during the 1978 negotiations did
he ask Respondent to furnish him with a copy of this plan.
188
NATIONAL BROADCASTING CO.
Brand added:
This is what got me to introduce that particular
subject at that time. I also said that the Plan is only
available to non-represented employees, but that
while other represented groups or unions have
sought to get the Plan, that NBC has steadfastly re-
fused to yield and to give the Plan through collec-
tive bargaining. 4
Brand also testified:
Q. Did you at that time during the discussions
that you just described for us go into any more
detail than you have given us today in your descrip-
tion of what transpired with regard to the RCA
Income Savings Plan?
A. My recollection standing unrefreshed, I can't
recall what, if more, I said. It's possible. I don't
recall what else I did say, if anything.
Q. If you didn't say anything more, would you
tell us why not?
A. I wasn't asked to--I wasn't asked to respond
to any kind of questions on that particular subject.
My own individual pattern as a negotiator is not to
be a lexicon of all terms and relevant conditions of
a particular plan if the other side doesn't ask me for
it.
I was there to discuss whatever they had in mind
and to answer whatever questions they had. I felt I
had made a response with regard to-particularly
with regard to the Income Savings Plan in stating
the Company's position that it was pretty firm in
terms of not wanting to give it away during the
course of negotiations, and there was nothing more
that I felt that I had to add on that particular sub-
ject without being asked to provide more informa-
tion from the other side, in which case I would
have been more than happy to do so.
Q. Were you asked to supply more information
by the other side?
A. Never on that. Never on the RCA Income
Savings Plan, no. 5
C. November 2, 1978, Session
Bichl recalled that at the third session on November 2,
1978:
Mr. Brand asked what it was that we were looking
for .... I represented that we are interested in
some method of saving money for the members.
Mr. Brand asked that we look further ourselves
within our own unit to see what it was that we
were trying to come up with. Mr. Brand also said
According to Brand, "it was a means of trying to give" the nonre-
presented employees "something extra to make up for what had hap-
pened over the last few years."
Cf. O.C. Exh. 12. the Company's bargaining notes for the October-
November 1978 sessions. Brand was asked on cross-examination "wheth-
er within the notes relating to item 22 there is any detail or degree of
expansion as you have testified that you explained to the Union bargain-
ing team on 11-1-78?" Brand answered: "The degree I testified is beyond
the degree of my notes." Brand explained that his notes "do not contain
everything that was said ....
that the Company would continue to look and see
what if anything they would come up with.
Bichl generally acknowledged that the so-called "RCA
Income Savings Plan" was in fact "discussed at the No-
vember 2 meeting." He explained: "Very, very briefly.
Only a mention again, just to repeat that there was no
stock purchase plan, that there is this income plan that is
available only to unrepresented employees."
D. November 3 and 9, 1978, Sessions
The fourth bargaining session was on November 3,
1978. Bichl claimed that nothing was "discussed on No-
vember 3 concerning AFTRA's No. 22 proposal." The
fifth and sixth bargaining sessions were held on Novem-
ber 9, 1978. Bichl recalled that during the "morning ses-
sion" on November 9:
The Company . . . was urging AFTRA to delete
proposals, make changes in proposals, drop propos-
als, so that we could move on in the negotiations of
the contract. There was a repeat, as far as we ran
down through some of these proposals, that on our
Proposal No. 22, as the Company had said, there
was no deferred compensation probable or possible;
there was no stock purchase or option plan; and
that, as they had mentioned, there was the RCA
Income Savings Plan that was available to unrepre-
sented employees .... So, why didn't we just
decide what we wanted to do, drop that and move
on to other means where we could come to a point
of agreement on the contract."
Later that day, as Bichl further testified, the AFTRA
bargaining committee held a caucus. Bichl apprised his
committee "that there seemed to be nowhere to go with
this particular proposal [No. 22]; that there seemed to be
no avenue as far as the purchase of stock or a stock
option plan was concerned"; "there seemed to be noth-
ing in the way of [a] deferred compensation savings
plan"; and "there seemed to be nothing in the way of the
savings plan that we had heard about, the income sav-
ings plan, that it was not open to us." The union com-
mittee then decided, in caucus, to withdraw that propos-
al and "move on to other areas in the hope that we
could bring from the Company more agreement on open
areas of the proposals." This decision-to withdraw No.
22-was then communicated to Brand.
E. November 13, 14, and 15, 1978, Sessions, and
Contract Ratification
Bichl testified that "AFTRA Proposal No. 22" was
not discussed during the seventh, eighth, and ninth bar-
gaining sessions on November 13, 14, and 15, 1978, re-
spectively. On November 16, 1978, the unit employees
approved and ratified a tentative agreement reached by
the parties' negotiators. And, during June 1979, the
Union's executive board approved the agreement.
I Bichl elsewhere testified that the words "RCA Income Savings
Plan." as such, were not used specifically "to describe the Plan" when it
was mentioned by the Employer's representatives.
189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Union Requests Bargaining Over the RCA
Income Savings Plan
Bichl next testified that during March 1979:
I was talking with our steward in the news de-
partment, Mr. Hrehogik, who advised me that he
had been told that NABET, the engineers, union at
the station, was in contract negotiations or would
be in contract negotiations with NBC at that time
for an extension to their contract agreement, and
one part of the negotiations dealt with an RCA
Income Savings Plan.
I asked him [Hrehocik] what that was, and Mr.
Hrehocik obtained for me the information ...
booklet that outlined the Plan ....
That was my first knowledge of this RCA Income
Savings Plan as such.
See G.C. Exh. 2, a copy of the booklet provided to
Bichl. 7
Thereafter, by letter dated April 5, 1979 (G.C.
Exh. 3), Bichl wrote Respondent:
During the contract negotiations of last fall,
AFTRA had a proposal that its members at
WKYC-TV be allowed to participate in a savings
plan, a deferred compensation plan or a stock pur-
chase plan. We were told that there was nothing
available. Now we understand that NABET mem-
bers are to be admitted to the RCA Income Savings
Plan after an NLRB process. We were misled by
the Company.
Our contract has not been concluded and we
have a dispute over the payment of fees. We wish
to meet immediately with the Company to negotiate
these matters.
Brand replied by letter dated April 10, 1979 (G.C. Exh.
4), disputing Bichl's assertions and concluding: "Accord-
ingly, we reject your demand for immediate negotiations
over the Plan." Also see G.C. Exh. 5, Bichl's letter to
Brand dated May 4, 1979.8
The testimony summarized above is essentially uncon-
tradicted and undisputed. Insofar as the testimony of
Union Representatives Bichl and Hrehocik differs with
the testimony of Company Representative Brand con-
cerning what was said at the October-November 1978
bargaining sessions with respect to the Union's proposed
item 22 and the Employer's so-called RCA Income Sav-
ings Plan, I am persuaded on this record that Brand's
recollection, as quoted above, is more reliable and accu-
7 Michael Hrehocik, the Union's steward, attended all the 1978 bar-
gaining sessions. He testified that he "first" received a copy of G.C. Exh.
2 about March 1979.
'At the hearing, counsel for the General Counsel stated:
The case involves a refusal by the Respondent to bargain mid-term
in the present contract over the RCA Income Savings Plan ....
the issue was one of waiver; and our position is that in fact the
Union had not waived any of its rights at any time to demand bar-
gaining over the RCA Income Savings Plan .... [l]t is not the
General Counsel's theory . . . that this case involves . . . bad faith
bargaining or misleading during bargaining negotiations during 1978
rate. Brand-in referring to the Employer's Plan and
making clear to the union representatives that the Plan
was not available- was extremely careful, I believe, in
how he presented this information to the Union at the
bargaining table. I find here that Brand's recollection of
what specific words were in fact used by him during the
bargaining sessions is more accurate than the general rec-
ollections of both Bichl and Hrehocik.
Discussion
The controlling legal principles were restated by the
Board in Elizabethtown Water Company, 234 NLRB 318,
320 (1978), as follows:
[W]e find no merit in Respondent's argument that
the Union waived its statutory right to raise matters
with respect to the Plan during the life of the col-
lective-bargaining Agreement. The Board has de-
clined to find that a party to a contract has waived
its rights to bargain concerning mandatory subjects
of bargaining simply because it failed to mention the
subject; instead, the Board requires "a conscious re-
linquishment by the union, clearly intended and ex-
pressed." [Citing Perkins Machine Company, 141
NLRB 98, 102 (1963).]
Also see N.L.R.B. v. Rockwell-Standard Corp., 410 F.2d
953, 957, fn. 2 (Cir. 1969); Radio Television School v.
N.LR.B., 488 F.2d 457, 461 (3rd Cir. 1973); and cases
cited. Subsequently, in National Broadcasting Company,
Inc., 241 NLRB 920 (1979), the Board, in agreement
with the Administrative Law Judge, found that NBC
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain with NABET concerning the participation of
unit employees in its RCA Income Savings Plan. The
Board, again applying the above principles, concluded
"that the record does not establish a plain and unmistak-
able waiver by NABET of its right to bargain about the
Savings Plan ....
It is clear in the instant case that Respondent Employ-
er's so-called RCA Income Savings Plan is a mandatory
subject of collective bargaining. Further, the record here
does not establish, as contended, that AFTRA waived its
right to bargain concerning this mandatory subject. For,
as NBC Negotiator Brand testified, it was he who volun-
tarily introduced this subject matter at the bargaining
table in answer to a general reference by the AFTRA
negotiator to a "stock purchase plan." Brand admittedly
made only brief reference to the RCA Income Savings
Plan and, at the same time, made it clear to the Union
negotiator that the plan "is only available to non-repre-
sented employees" and "NBC has steadfastly refused to
yield and give the Plan through collective bargaining."
The brief reference by Brand to the RCA Income Sav-
ings Plan, under the circumstances present here, does not
establish "a conscious relinquishment" or a "plain and
unmistakable waiver" by AFTRA to bargain over this
subject during the term of the agreement which was
later executed by the parties. The record before me does
not demonstrate a discussion over this plan or an ex-
change or give-and-take among the parties so that the
Union's failure to press for the plan at the time constitut-
190
NATIONAL BROADCASTING CO.
ed a quid pro quo or consideration for other benefits
granted.
In sum, the Union has not waived this statutory right
and NBC's refusal to bargain over this plan is a violation
of Section 8(aX)(5) and (1) of the Act, as alleged.9
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce as
alleged.
2. Charging Party Union is a labor organization as al-
leged.
3. Respondent violated Section 8(aX5) and (1) of the
Act by refusing to bargain with the Union, the duly des-
ignated representative of its employees in the appropriate
bargaining unit as described below, concerning the par-
ticipation of said unit employees in the RCA Income
Savings Plan. The appropriate unit is, as follows:
All staff performers, including staff announcers,
staff newspersons, staff singers, and staff actors em-
ployed by the Company at the WKYC television
station.
4. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent will be directed to cease and desist from engag-
ing in such conduct or like or related conduct and to
post the attached notice. Respondent will also be direct-
ed to bargain with the Union upon request with respect
to the unit employees' participation in the RCA Income
Savings Plan and if an understanding is reached, embody
such understanding in a signed agreement.
ORDER' 1
The Respondent, National Broadcasting Company,
Inc., Cleveland, Ohio, its officers, agents, successors, and
assigns, shall:
a At the hearing, counsel for Respondent cited Jencks rule irregulari-
ties; counsel does not press these contentions in his post-hearing brief and
I adhere to my rulings as stated at the hearing.
'0 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
1. Cease and desist from:
(a) Refusing to bargain collectively with Cleveland
Local, American Federation of Television and Radio
Artists, AFL-CIO, the duly designated representative of
its employees in the appropriate unit as described below,
concerning the participation of said unit employees in the
RCA Income Savings Plan. The appropriate unit is:
All staff performers, including staff announcers,
staff newspersons, staff singers, and staff actors em-
ployed by the Company at the WKYC television
station.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with said Union with respect
to participation by the employees in the aforementioned
appropriate unit in the RCA Income Savings Plan, and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its place of business in Cleveland, Ohio,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
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 8, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
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 for all purposes.
I' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
191