Storer Communications, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 1056 (N.L.R.B. 1989)

1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Storer Communications, Inc. and National Associa-
tion of Broadcast Employees and Technicians,
AFL-CIO. Case 8-CA-16852
June 13, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
DEVANEY
On February 6, 1986, Administrative Law Judge
Bernard Ries issued the attached decision . The Re-
spondent filed exceptions and a supporting brief,"
the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs, the General
Counsel and the Charging Party filed an answering
brief to the Respondent's exceptions , and the Re-
spondent filed a brief in answer to the General
Counsel's and the Charging Party's cross-excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings,s
and conclusions except as modified ,4 to modify the
1 The Respondent has requested oral argument . The request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to the judge 's ruling excluding testimo-
ny proffered by Respondent witness Robert Green as irrelevant. We
affirm the judge's ruling. Moreover, after reviewing the Respondent's
proffered testimony we find that the testimony, if credited , would not
affect our decision.
a The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
4 In adopting the judge's rejection of the Respondent 's arguments that
the Union waived its right to bargain over the changes effected by the
Respondent in April , May, and June 1983, we find it unnecessary to rely
on his finding that the Respondent 's June 7 offer was made in bad faith
or his statements about the length of time a union normally must have
notice of changes before the changes are made . Rather we rely on the
judge's finding that under the circumstances, the changes were presented
as a fait accompli and it would have been futile for the Union to have
requested bargaining over the changes.
In adopting the judge 's conclusion that the strike was an unfair labor
practice strike from its inception , we rely on union bargaining committee
member Wilcox's testimony that the committee recommended to the unit
that it go on strike , based in part on the Respondent's unilateral changes
that we have found violated the Act . We do not rely on the judge's lan-
guage to the extent that it may be interpreted to hold that an unfair labor
practice strike may be found based on mere probability.
In light of our adoption of the judge 's finding that the Respondent vio-
lated Sec . 8(a)(5) by failing to supply the requested information about
gross pay and new employees ' unit status, we find it unnecessary to pass
on the violation found by the judge regarding the delay in furnishing
other information about the employees.
Although the judge found the various 8 (a)(5) violations that we have
adopted, he did not include in his Conclusions of Law , recommended
Order, or notice language stating that the Respondent failed to bargain in
good faith with the Union or language requiring the Respondent to bar-
remedy, s and to adopt the recommended Order as
modified.
1. The Respondent excepts to the judge 's finding
that its withdrawal of any contract proposal from
the bargaining table on May 3, 1983, the day the
strike began , and its proposal of much less favor-
able terms on July 22, violated the Act. Citing
Barry-Wehmiller Co., 271 NLRB 471 (1984), and
other cases , the Respondent argues , inter alia, that
its actions were privileged because they were based
on the Respondent's having "successfully weath-
ered the strike." We reject the Respondent's excep-
tions with regard to both actions. We adopt the
judge 's conclusion, more fully detailed in section
III, E of his decision , that the withdrawal of any
proposal from the table as of May 3, was in retalia-
tion for the strike. Further, the asserted reason for
withdrawing any proposal, that the Respondent
knew that it had successfully weathered the
strike-when the strike was in its first day-is so
illogical as to support the inference that the with-
drawal demonstrated an intent to frustrate bargain-
ing. Cf. Hickinbotham Bro& Ltd., 254 NLRB 96,
103 (1981). For these reasons we find that the May
3 withdrawal of any proposal violated Section
8(a)(5) as alleged in the complaint and found in the
text of the judge's decision . Accordingly, we will
modify the judge's Conclusions of Law that inad-
vertently reflect only an 8(a)(1) violation.
In its July 22 proposal, the Respondent offered
much less favorable terms to the Union than any of
its prestrike proposals had, allegedly based on the
change in the parties' relative bargaining strength
during the strike . An employer is not privileged,
however, to reduce its proposals based on econom-
ic leverage it gained in a strike caused by its own
unfair labor practices . Harowe Servo Controls, 250
NLRB 958, 961 (1980). For this reason we adopt
the judge 's finding that the July 22 proposal violat-
ed Section 8(a)(5) and find it unnecessary to rely
on his finding that the proposal was so harsh and
vindictive that it evidenced bad faith.
2. The Respondent excepts to the judge 's recom-
mended make-whole remedy, including restoration
of the status quo ante . Citing Dependable Mainte-
nance Co., 274 NLRB 216 (1985) and 276 NLRB
27 (1985), it argues, inter alia , that the make-whole
gain in good faith on the Union 's request. The General Counsel and the
Charging Party except to the judge's failure to include this language. We
find that in the circumstances of this case such a conclusion is warranted
and we will modify the recommended Order and notice accordingly.
5 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be
computed at the "short-term Federal rate " for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C., § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U . S.C. § 6621 ), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977). .
294 NLRB No. 78
STORER COMMUNICATIONS
remedy must end as of November 1983 because, it
alleges, the Union refused to bargain as of that
time . In Dependable , the Board found that the re-
spondent violated Section 8(a)(5) in August 1982
by implementing its final offer before the union had
a reasonable opportunity to review the relevant in-
formation provided to it by the respondent and to
analyze the impact such information would have
on any counteroffers it might make . Thus, the
Board found that the implementation of the re-
spondent 's last offer occurred before the parties
had reached a good-faith impasse . The respondent
argued that impasse had been reached because the
most-favored-nations clause the union had in other
contracts prevented it from making the concessions
necessary to avoid impasse . However , the union
had requested bargaining information and the re-
spondent 's unilateral changes were made very soon
after it supplied the information . The Board adopt-
ed the judge 's finding that:
There is insufficient evidence to conclude that
the Union 's requests as of mid-August were
not sincere or were interjected solely for
delay. I make this finding even given the lack
of movement in later negotiations after the in-
formation had been supplied . Respondents
simply acted too quickly in implementing the
last offer to place their theory of the Union's
bargaining rigidity to the test . The delivery of
the requested information was followed essen-
tially without delay by the implementation of
the final offers . [274 NLRB at 219.]
Although the Board found the violation, it noted
that the respondent had reimplemented , in Novem-
ber 1982 , its final offer based on impasse it alleged
occurred after August 1982. The Board remanded
the case to the judge to make determinations re-
garding the alleged impasse and reimplementation
because they could affect the status quo ante
remedy.
In the supplemental decision, the judge found
that after August 1982, "the Union was rigid in
bargaining in that the Union did not make the eco-
nomic concessions which would have avoided an
impasse." 276 NLRB at 30 . The Board adopted the
judge's findings that impasse had been reached and
that the respondent's later reimplementation tolled
the respondent 's backpay liability prospectively
from the date of reimplementation.
In Southwest Forest Industries , 278 NLRB 228
(1986), enfd . 841 F.2d 270 (9th Cir. 1988), the
Board reversed the judge's denial of 'a restoration
of the status quo ante where the respondent had
violated Section 8(a)(5) by making unilateral
changes after giving inadequate notice to the union.
1057
Specifically , during a stalemate in negotiations re-
spondent Southwest notified the union , on Decem-
ber 2 , of changes it was going to implement in the
interim period until a replacement contract was ne-
gotiated . On December 5, it implemented those
changes. The union did not request bargaining.
Rather , on December 6, it filed unfair labor prac-
tice charges . In later communications with the re-
spondent the union emphasized the need to resolve
the alleged unfair labor practice.
Although the judge recognized in Southwest that
a make -whole order restoring the status quo ante is
the established remedy for the violation he found,
he denied the remedy based on his interpretation of
Dependable , supra . Specifically , the judge found
that the union would not have resumed bargaining
even if it had sufficient notice of the changes.
In reversing the judge 's denial of the remedy, the
Board stated , "It is well established that a make-
whole order restoring the status quo ante is the
normal remedy where an employer has made un-
lawful unilateral changes in its employees' terms
and conditions of employment ." Southwest , supra at
228. The Board found that Dependable was distin-
guishable. It noted that in Dependable the subject
of the proposed change had been on the bargaining
table before implementation and that the parties
bargained to impasse after the respondent 's unlaw-
ful changes. In contrast , in Southwest , the changes
had not been discussed at the bargaining table prior
to the respondent 's implementation of them and
after the unlawful changes the union linked re-
sumption of bargaining to the redress of the alleged
8(a)(5) violation . Thus, the Board noted that the
judge 's finding that the union would not have bar-
gained with the Respondent even absent the unfair
labor practice was "purely speculative " and contin-
ued, "Inasmuch as the Respondent, as the wrong-
doer , bears the risk of any uncertainty that its
wrong has caused, we shall order it to restore the
status quo ante ." Southwest , supra at 229.
The Respondent's contention here that the make-
whole remedy should be limited to November 1983
was not explicitly raised to the judge and he did
not make findings specifically regarding it. We
find , however , that the record sets forth sufficient
facts on which to make a finding with respect to
this issue. The Respondent made changes in terms
and conditions in April , May, and June, which
have been found to be unlawful . In June , the Union
filed unfair labor practice charges . Thereafter, the
parties continued to meet, although, as we have
found , the Respondent violated Section 8(a)(5) by
not being reasonably available . In these meetings,
the Respondent required the Union to bargain
based on the unlawfully and extensively changed
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terms of employment. It exacerbated the situation
by responding evasively to union questions about
the actual application of the changed terms6 as
well as refusing to provide other information.'
Review of the evidence leads us to agree with the
judge's assessment that "once the Union went on
strike, [the Respondent's chief negotiator] Dimino
appeared to have no interest whatever in coming
to agreement with the Union" and that the Re-
spondent displayed a "serious indifference" to its
statutory obligations to bargain.8
In this context, at the October 19 meeting, Union
Attorney McKnight demanded that the Respond-
ent restore the terms and conditions of employment
(except wages) of the unit employees. Chief Engi-
neer Robert Green, a member of the Respondent's
bargaining team, acknowledged that McKnight
elaborated "something to the effect" that the
demand was made because the Union was at a tre-
mendous disadvantage in bargaining over a fait ac-
compli and that the Union was "ready and avail-
able and desirous of meetings, but . . . would con-
tinue to make the same demand." The Respondent
6 At the September 13 meeting, for example, Union Attorney
McKnight asked whether the night differential pay had been eliminated
Although the Respondent was aware of the answer, Dimino responded
that the Union could ask its members About the Respondent's July 22
proposal, Union Attorney McKnight asked if it "reflects what you are
already doing?" The Respondent's attorney responded, "in some cases
yes, and in some cases, no," without elaboration Fifteen minutes after the
meeting began, the Respondent took a caucus from which they refused to
return because "they weren't going to be interrogated by the Union "
' See the violative failures to provide information found by the judge
at sec III,K of his decision and adopted supra at In 3
8 The Respondent's minutes reflect, for example, the following ex-
change at the October 19 meeting among Union Attorney McKnight,
Union Local President Lolli, and the Respondent's attorney Burns
Mr Knight commented that in the Company's proposed contract,
the prohibition against discrimination against an individual for union
activity had been deleted
Mr Burns said Non-Discrimination was a good place to start talk-
ing He read the Company's proposed Non-Discrimination section
Mr Lolli said that was already in the law
Mr Burns asked if the union wanted to eliminate the entire sec-
tion
Mr Lolli asked about non-discrimination for union activities
Mr McKnight asked why only the union activities part had been
deleted
Mr Burns said it's covered in the law, as Mr Lolli had stated
Mr McKnight again asked why the union activities part only had
been deleted
Mr Burns again stated it was covered in the law, so the whole
section could be eliminated
Mr McKnight said he wanted the union part in there The union
has had it for a number of years It had been discussed before the
strike, and a tentative agreement had been reached on it Why elimi-
nate it now?
Mr Burns agreed that it had been discussed, and asked if the
union wanted it left in
Mr McKnight said he wanted it identical to the old contract
At 11 26 A M, there was a caucus
When the meeting resumed, at 11 36 AM, Mr Burns stated that
the Company had examined its proposal, agreed with Mr Lolli, and
would withdraw its Non-Discrimination section He asked if that
was acceptable to the union
Mr McKnight said it was not acceptable The union was propos-
ing the language in the old contract
Mr Burns said it sounded like an impasse on Non-Discrimination
refused to restore the terms and conditions. Ac-
cording to the Respondent's minutes, Dimino
stated, "he would not meet again if he had to face
these preconditions."
The parties met next on November 9, the Re-
spondent's first available date. McKnight was not
present. Union Negotiator Coyte testified that
when the Respondent again declined to restore the
employees' terms and conditions he said:
Then I have to repeat what was repeated at
the last meeting: these proposals only reflect
those conditions which you have put into
effect since the employees' return to work; and
unless and until you return to those conditions
that were in effect prior to April the 27th, we
see no way there could be any meaningful bar-
gaining . . . . We told the company that we
were prepared, ready, willing, and available to
meet at any time, but that the position that we
had taken was firm, and we felt that was the
only way we could have meaningful bargain-
ing with the company.
The November 9 meeting was the parties' last bar-
gaining session.
The Union's demand that the Respondent restore
the terms and conditions that it alleged, and we
have found, were unlawfully changed is thus of the
same effect as the union demand in Southwest Forest
Industries, which "linked resumption of bargaining
to the redress of the alleged 8(a)(5) viol^ltion." The
Union's demand also distinguishes this situation
from Dependable in which the union made no res-
toration demand.9 Accordingly, there is no basis to
conclude what the outcome of negotiations would
have been here absent the Respondent's unfair
labor practices.
Moreover, Dependable and NLRB v. Cauthorne
Trucking, 691 F.2d 1023 (D.C. Cir. 1982), which
Dependable cited, are based on good faith negotia-
tions (or offers to negotiate) that led to impasse.
The evidence in this case precludes finding that the
Respondent's conduct reflected a desire to reach
agreement. Finally, we note that in Dependable the
tolling of the backpay was prospective from the
date that the respondent reimplemented its
changes. The Respondent has cited no evidence
that it informed the Union that it was reimplement-
ing its changes. 10
9 We find that it would be inconsistent with the aims of the Act to pe-
nalize the Union for attempting to reach a negotiated settlement with the
Respondent before it demanded restoration
10 Member Cracraft agrees that the facts of this case are distinguish-
able from those in Dependable However, she does not pass on whether
she would have reached the same result in that case
STORER COMMUNICATIONS
Accordingly, we adopt the judge's make-whole
remedy including restoration of the status quo ante.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 8.
"8. By, on May 3, 1983, withdrawing its final
offer for the reason that the Union voted to strike,
Respondent violated Section 8(a)(5) and (1) of the
Act."
2. Add the following as Conclusion of Law 17
and renumber the subsequent paragraph according-
ly.
"17. By failing and refusing to bargain with Na-
tional Association of Broadcast Employees and
Technicians , AFL-CIO as the exclusive bargaining
representative, the Respondent violated Section
8(a)(5) and (1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Storer Communications, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete the word "timely" from paragraph 1(j).
2. Insert the following as paragraph 1(1) and re-
letter paragraphs 1(1) as 1(m).
"(1) Failing and refusing to bargain with Nation-
al Association of Broadcast Employees and Techni-
cians , AFL-CIO , as the exclusive bargaining repr-
sentative of the employees in the bargaining unit."
3. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs.
"(a) On request, bargain with the Union as the
exclusive representative of the employees in the
following appropriate unit on terms and conditions
of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time broadcast
technicians employed by this Company in the
Engineering Department (of Department of
Technical Services, or any present similar de-
partment) of Television Station WJKW-TV
andor all broadcast technicians at our facility
at 5800 S . Marginal Road , Cleveland, Ohio,
excluding the chief photographic technicians,
office clerical employees , guards and supervi-
sors as defined in the Act."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
1059
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
The National Association of Broadcast Employees
and Technicians, AFL-CIO (the Union) is the ex-
clusive representative of the following of our em-
ployees for purposes of collective bargaining:
All full-time and regular part -time broadcast
technicians employed by this Company in the
Engineering Department (or Department of
Technical Services, or any present similar de-
partment) of Television Station WJKW-TV
andor all broadcast technicians at our facility
at 5800 S. Marginal Road, Cleveland, Ohio,
excluding the chief photographic technicians,
office clerical employees , guards and supervi-
sors as defined in the Act.
WE WILL NOT discriminate against the Union, or
any other labor organization , by refusing to allow
the labor organization to post minutes of negotia-
tions on bulletin boards located at Station WJKW-
TV when we permit unions and employees to rou-
tinely post notices of a business and personal nature
on such bulletin boards.
WE WILL NOT coerce employees by indicating to
them that we will deny them the right guaranteed
by the Act to have their employer engage in good-
faith bargaining.
WE WILL NOT, while engaged in collective-bar-
gaining negotiations , insist on bargaining with the
Union, or any other labor organization, about a
certain subject or subjects while not permitting the
labor organization to discuss other relevant sub-
jects until preliminary agreement has been reached
on the first subject or subjects.
WE WILL NOT communicate directly with em-
ployees and without first consulting the Union, or
any other labor organization , regarding terms and
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conditions of employment that are appropriately
the subject of bargaining between an employer and
a labor organization.
WE WILL NOT withdraw a bargaining , offer or
take any other retaliatory action against employees
for the reason that they engage in a lawful strike.
WE WILL NOT make changes in the terms and
conditions of employment of employees represent-
ed by the Union, or any other labor organization,
without having afforded the labor organization a
thorough and complete opportunity to negotiate
with us as the exclusive collective-bargaining rep-
resentative of our employees with respect to such
changes.
WE WILL NOT threaten to permanently replace
unfair labor practice strikers.
WE WILL NOT make a regressive contract pro-
posal without appropriate and legitimate justifica-
tion for doing so.
WE WILL NOT refuse to be available at reasona-
ble times to engage in collective -bargaining negoti-
ations.
WE WILL NOT refuse to furnish to the Union, or
any other labor organization , requested information
that is relevant to the performance by the labor or-
ganization of its duties as the exclusive collective-
bargaining representative of employees.
WE WILL NOT fail or refuse to bargain with the
Union as the exclusive bargaining representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL reinstate, honor, and apply the terms
and conditions of employment relating to the juris-
diction of the union bargaining unit , as set forth
and previously applied under section 4 ("Jurisdic-
tion") and 5 ("Remotes") of the collective-bargain-
ing agreement between the Respondent and the
Union, which expired pursuant to agreement of the
parties on April 29, 1983, unless and until such pro-
visions are changed in accordance with the law.
WE WILL reinstate, honor, and apply all provi-
sions of the collective-bargaining agreement, which
expired pursuant to the agreement of the parties on
April 29, 1983 , and which are referred to in sub-
paragraphs. 10(G) (1)-(10) of the complaint in this
proceeding, as amended in writing and at the hear-
ing, unless and until such provisions are changed in
accordance with the law.
WE WILL make whole with interest all employ-
ees in the union bargaining unit for monetary losses
suffered by them as a result of our failure since on
and after June 7, 1983, to comply with the surviv-
ing provisions of the expired collective-bargaining
agreement , which provided for payment of bene-
fits, penalties , premiums , differentials , and other
extra payments to employees in the circumstances
set out in the expired collective-bargaining agree-
ment.
WE' WILL on request by the Union, bargain with
the Union as the exclusive bargaining representa-
tive in the unit on terms and conditions of employ-
ment and , if an understanding is reached , embody
the understanding in a signed agreement.
WE WILL on request by the Union, transfer all
technicians in the bargaining unit to the Engineer-
ing Department (or the Department of Technical
Services or whatever name we use to designate
that department at present) under the same terms
and conditions of employment that obtained as of
April 27, 1983, unless and until we are entitled to
retransfer the unit employees in accordance with
the law. This provision shall not, however, require
or permit , the unilateral recission of any improve-
ment in wages, hours, and terms and conditions of
employment granted to technicians since the afore-
said date.
STORER COMMUNICATIONS, INC.
Patricia E Snyder, Esq., for the General Counsel.
F. Wilson Chockley, Jr., Esq., Michael T McMenamin,
Esq., and Marcia E. Hurt, Esq. (Walter, Haverfield,
Buescher & Chockley), of Cleveland, Ohio, for the Re-
spondent.
Samuel C. McKnight Esq. (Klimist, McKnight & Sale,
P. C.), of Southfield , Michigan , for the Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge . This case
was tried in Cleveland , Ohio, on 20 days in October and
December 1984 and February and March 1985. Briefs
were received from all parties on or about 5 June 1985.1
Having reviewed the record, the exhibits, and the
briefs, and taking into account my recollection of the de-
meanor of the witnesses, I make the following findings of
fact,2 conclusions of law , and recommendations.
I. A BRIEF STATEMENT OF THE ISSUES
The case arises out of negotiations for a collective-bar-
gaining agreement in 1983.3 Most of the complaint alle-
gations assert that Respondent, in various ways, violated
Section 8(a)(5) of the Act. That section makes it an
unfair labor practice for an employer "to refuse to bar-
gain collectively with the representatives of his employ-
ees"; as defined in Section 8(d), "to bargain collectively"
is the "performance of the mutual obligation of the em-
' The underlying charge was filed on 24 June 1983; the complaint was
issued on 30 September 1983; written amendments to the complaint were
made on 18 June 1984 and 10 December 1984; and oral amendments were
made at the hearing.
2 Errors in the transcript have been noted and corrected.
3 All dates hereafter refer to the year 1983, unless otherwise denoted.
STORER COMMUNICATIONS
ployer and the representative of the employees to meet
at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a writ-
ten contract incorporating any agreement reached if re-
quested by either party, but such obligation does not
compel either party to agree to a proposal or require the
making of a concession."
The several 8(a)(5) allegations in the complaint virtual-
ly run the gamut of possible discrete violations of that
provision: an unlawful refusal to furnish information to
the Union, bypassing the Union and dealing directly with
the represented employees, failing and refusing to meet
with the Union at reasonable times, and other routine
violations. At the heart of the case, however, is the pro-
priety of the many and substantial changes in the existing
terms and conditions of employment made by Respond-
ent beginning in April 1983 following a few months of
bargaining for a new collective agreement. General
Counsel and Charging Party contend that Respondent
was not legally privileged to make these changes at the
times that they were instituted. In claiming that these
changes were legally permissible, Respondent advances
several layers of defenses, including an assertion of genu-
ine impasse in the negotiations and a waiver by the
Union of its statutory right to be consulted.
In addition, the complaint alleges that Respondent in-
dependently violated Section 8(a)(1) of the Act4 by indi-
cating to an employee that the Union's negotiations with
Respondent would be futile, by prohibiting the Union
from posting copies of its collective-bargaining minutes
on Respondent's bulletin boards, and by informing unfair
labor practice strikers that they would be "permanently
replaced" if they did not return to work by a given
date. 5
II. THE MATERIAL FACTS
A. Relevant Background
Respondent Storer Communications, Inc. owns a tele-
vision station in Cleveland, Ohio, known as WJRW-TV
or TV8. For more than 30 years, Respondent has ex-
tended recognition to the Union (National Association of
Broadcast Employees and Technicians, AFL-CIO or
NABET) as the collective-bargaining representative of
its technicians at TV8, some 50 in number, and has exe-
cuted a series of bargaining agreements with the Union.
In the last such agreement, the Respondent recognized
the Union as the bargaining agent for "all broadcast
Technicians employed by the Company in the Engineer-
4 That section makes it violative of the Act for an employer "to inter-
fere with, restrain, or coerce employees in the exercise of the rights guar-
anteed in section 7," inter alia, "to self-organization, to form, join, or
assist labor organizations, [and] to bargain collectively through represent-
atives of their own choosing "
5 During the hearing, counsel for General Counsel amended the com-
plaint to charge that on or about 28 April, Respondent violated the Act
by offering the unit employees a contract proposal containing terms dif-
ferent than those offered the Union on 27 April Under carefully devel-
oped brief, however, neither lists this accusation as one of the issues in
the case nor discusses the matter I shall assume, therefore, that General
Counsel is, sub silentio, withdrawing the allegation
1061
ing Department of Television Station WJKW-TV" ex-
cluding various other categories of employees. TV8 also
apparently bargains with three other unions: American
Federation of Television and Radio Artist (AFTRA "for
one bargaining unit, International Alliance of Theatrical
and Staqe Employees (IATSE) for two other units, and
"the remnants of the stage hands union."
The last bargaining agreement between the parties was
to expire on 31 March 1983. On 13 December 1982, ap-
parently somewhat earlier than usual, Respondent noti-
fied the Union that it desired to begin bargaining for a
new contract "as soon as practical." According to
Joseph C. Dimino, the chief spokesman for Respondent
in the 1983 negotiations, the purpose of the early start
was that he "sensed that we were going to have a long
and hard bargaining session."
It is appropriate at this point to describe the leading
prayers in these events; to generally convey my impres-
sion of their trustworthiness;6 and to discuss the princi-
pal sources of the findings made here.
Joseph Dimino came to Cleveland from the Storer sta-
tion in Boston in April 1982, as vice president and gener-
al manager of TV8, and remained in that position until
about August 1983 (in February 1983, Dimino became
president of Storer's television stations division, head-
quartered in Miami, but at the same time, for some
months, continued to act as the general manager of
TV8). Although Dimino had never before negotiated an
agreement with any union, he led Respondent's bargain-
ing team in 1983.
Dimino struck me as intelligent, aggressive, and
strong, capable of charm, arrogance, and mercurial loss
of temper. Nearly all of the witnesses to some extent dis-
played partisanship: I would rank Dimino high on the
list of those witnesses whose interest in the outcome of
these proceedings might tend to color his recollection of
the events Like the other witnesses on both sides who
attended most of the 22 bargaining sessions in 1983,
Dimino did not remember (and could hardly have re-
membered) nearly as much of the details of particular ne-
gotiating sessions as he said he did, although I am sure
that both Dimino and the other witnesses could also
recall specific events without being certain of the times
that they occurred.
The second-ranking member of Respondent's team was
Virgil Dominic, the station manager of TV8. Dominic
seemed to me a pleasant, mild-mannered, and thoughtful
individual Dominic, who is not a professional stenogra-
pher, was designated by Respondent to take minutes for
most of the bargaining sessions. Despite the positive per-
sonal impression that, in general, Dominic made on me
at the hearing, there is some reason to distrust the objec-
tivity of both Dominic's testimony and his minutes
(which by and large consisted of paraphrase and conden-
sation of the negotiations).'
6 Such credibility assessments might be useful to subsequent reviewers
of the record even if not specifically relied on here, in the event that any
such reviewers consider important some contested fact in this extensive
record not given express consideration in this decision
° For one thing, the minutes are frequently pejorative in describing the
bargaining table conduct of Union Attorney Samuel McKnight (who is
Continued
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The third regular member of the Respondent's bar-
gaining team was Robert Green, the chief engineer in
charge of the engineering department to which all the
technicians were assigned before the strike. Green is a
likable man, low keyed and straightforward. A former
NABET steward, he became a supervisor in 1980, and it
was my impression that he felt under some internal pres-
sure during his five separate appearance as a witness.
Green owes managerial loyalty to the Company; he was
present during the entire hearing to advise Respondent's
counsel; but under cross-examination, he made some con-
cessions which must have seemed significant to him-
with some reluctance, perhaps, but nonetheless made.
Overall, I would conclude that Green's testimony is gen-
erally worthy of trust.
Neither of the two other company negotiators, Con-
troller Thomas Flavelle and Attorney William Burns,
played a major role in the talks or at the hearing.
The principal bargainers for the Union were Harry
Coyte, an International representative headquartered in
Washington, D.C.; Dominic Lolh, the Local Union
president, and unit employees Gary Jones, Roger
Wilcox, James Stahl, and Maurice Sears. Coyte, Jones,
and Wilcox gave the bulk of the testimony for the
Union. Stahl was called by the Respondent.
Coyte is a pleasant man who apparently spends most
of his time engaging in NABET negotiations around the
said to have "interrupted," "warned," "threatened," and so forth, while
company representatives were "suggesting," "explaining," and "pointing
out"), in similar vein, Dominic's minutes sometime have an editorial
tenor
Secondly, it seemed clear that Dominic at one point dissembled about
some off-the-witness-stand conduct After a lunchbreak, union counsel
asked Dominic what he had reviewed during the break, and he replied
that he had looked at nothing but "portions of the minutes, again, to try
to refresh my memory" But Dominic eventually conceded, as charged,
that he had been going "over a yellow pad of paper that had all kinds of
notes on it" and comparing that material to some "memos summarizing
minutes " Respondent counsel subsequently described three different
kinds of documents reviewed by Dominic during lunch Dominic thus
strayed far from the truth when he first testified that the only matter he
had reviewed during the lunchbreak were "portions of the minutes,
again " Why Dominic was hesitant to tell the truth about this point, I do
not know, but the incident does suggest caution about his overall reliabil-
ity
Third, Dominic's minutes at times appear to unfairly represent, con-
dense, and highlight what actually occurred at the negotiations I am able
to say this with some confidence because there is another set of minutes
in evidence, taken at the meetings between 24 March and 21 April by a
professional stenographer hired by the Union These lengthy minutes are
obviously much closer to verbatim accounts of the discussions, and they
show up flaws in Dominic's much more abbreviated notes
For instance, Dominic's minutes for the 20 April meeting, a session
close to the end of the substantive phase of the negotiations, show at
page 5 that after lunch and prior to a 2 30 p in caucus, Dimino twice
(within a 7-sentence spread) asked if the Union would give the Respond-
ent "Booth Announce" (a jurisdictional subject of some importance, as
seen later), to which the union spokesman first replied "No" and thereaf-
ter emphasized, "We told you, No " The Union's minutes, however,
show one such exchange in the morning on this subject and another after
lunch I very much doubt that the question was asked yet a third time in
the afternoon, as Dominic's notes would have it
In addition, a comparison of the two sets of minutes for common dates
(as well as testimony by Respondent's own witnesses) makes it evident
that Dominic frequently failed to record much of what was said, thus
often distorting the import and tone of the discussions As an example,
again in the 20 April discussion above referred to, Dominic shows a con-
clusionary 4-sentence discussion on the subject of "weather graphics"
which occupies a highly detailed 5-12 pages of the union minutes
country. I would expect Coyle, even less than the other
witnesses, to recall the correct details and chronology of
the nearly 20 bargaining sessions that he attended. I also
had a feeling, although not as strong as in Dimino's case,
that Coyte would be likely to resolve any uncertainty of
recall in his mind in favor of the Union. On more than
one occasion, it appears, Coyte vigorously denied a fact
that other members of his bargaining committee conced-
ed (although, on one such occasion, he acknowledged
the substance of the point in issue).8 In fact, however, on
cross-examination Coyte made many effective conces-
sions about the events at the bargaining table, and on the
whole I thought him to be a reasonably reliable witness
I came to the same conclusion about Jones, a sober
and careful technician with 9 years' tenure with Re-
spondent; Wilcox, a serious and sincere 20-year veteran
employee; and Stahl, an open and intelligent 13-year em-
ployee. This is not to say that the three had precise and
total recall of the entire course of bargaining. However,
I feel confident that they had made a conscientious effort
to absorb what had happened and to report the history
as best they could at the hearing.
In the end, though, it seems to me that the most useful
source of guidance about the bargaining must come
down to Respondent' s minutes , despite the reservations
earlier expressed, and the notes taken by the union ste-
nographer. While incomplete and tendentious, Dominic's
minutes have been confirmed with respect to their broad
sweep (at least in the earlier sessions) by the testimony of
General Counsel' s witnesses . The minutes kept by the
stenographer hired by the Union are plainly the best evi-
dence of the discussions, but she did not enter the picture
until the 24 March session and her last appearance was at
the 21 April meeting.9 To the extent that there is conflict
between her minutes and those taken by Dominic, I take
her reportage to portray a more accurate picture. It
seems likely, however, that in the heat of argument, the
stenographer may have occasionally missed an exchange
or two
B. The Pre-19 April Negotiations
It does not seem necessary to cover in great detail the
first 14 bargaining sessions, extending from 10 January
through 6 April a summary addressing the most signifi-
cant points should suffice.
1. On 10 January, the Respondent distributed its draft
of a complete new agreement (with the exception of a
wage proposal), and the Union made several proposals
for specific improvements in the existing agreement. The
' Coyte vigorously denied that on 7 June, Dimino "read" a statement
in which he told the Union that strikers would be returning to work on
the terms and conditions contained in the Company's "handbook" appli-
cable to nonunion employees Coyte did concede, however, that he asked
Dimino what would be the applicable terms and conditions, and that
Dimino replied, "Company policy " Roger Wilcox and Gary Jones both
recalled Dimino making such a reference to the "handbook," but did not
remember that Dimino read the statement James Stahl clearly recalled
that Dimino read the statement and referred to the handbook, and I am
sure that Stahl's recollection was the most accurate one
' Given her lack of familiarity with the negotiators and with the tech-
nical jargon, I suspect that the stenographer's transcripts may contain
some errors and omissions
STORER COMMUNICATIONS
Respondent's draft contract contemplated, from the
standpoint of the Union, adverse changes in 27 articles of
the existing 42-article contract, including, for example,
elimination of the union-security provision; elimination of
the 55-minute partially paid meal period in favor of a 30-
minute unpaid meal period; elimination of the night dif-
ferential; and even excision of union activities from the
protection afforded by the "Non-Discrimination" clause,
while leaving intact the remaining prohibitions against
discrimination based upon "race, sex, creed, or national
origin." 10
Manifestly the most radical changes in Respondent's
proposals, however, were those dealing with jurisdiction.
As evolved in prior contracts, the 5-page "Jurisdiction"
clause had provided broadly in section (a) that "the
work covered by this Agreement and to be performed
only by Technicians" would be (in abbreviated form)
"the installation . . . modification, operation, and mainte-
nance of all the Company's technical equipment . . .
used in any broadcast operation and the preparation of
film or tape for broadcast, or for any non-broadcast pro-
ductions, presentations, or auditions." Section (b) of the
clause, however, beginning "Persons other than Techni-
cians may perform the following work," described in 13
subsections some carefully worked-out exceptions to the
sweeping language of section (a), giving nontechnicians
the right to handle certain equipment and to perform
various technical functions. In addition to the "Jurisdic-
tion" clause, there was also a "Remotes" clause, govern-
ing the operation of technical equipment when used by
Respondent in seven Ohio counties to produce programs
"in the field"; although set out separately, the "Remotes"
provision also clearly constituted a jurisdictional provi-
sion.
Respondent's 10 January proposed contract would
have shrunk the existing contract from 42 to 35 clauses.
Respondent had reworked the "Jurisdiction" clause into
a single page. In its four subsections, the clause proposed
that "[t]he work covered by the Agreement, and to be
performed only by Technicians" would consist of the
following- (a) "Installation and operation of technical
equipment used in broadcast operations and located in"
four specified areas of the TV8 building; (b) "modifica-
tion and maintenance of technical equipment used in any
broadcast operation, located anywhere on WJRW-TV
studio or transmitter premises [except for warranted
equipment and equipment requiring specialized repair
skills]"; (c) a provision relating to "remote pickups" even
though the separate clause on "Remotes" was to be re-
tained); and (d) "Operation of film and videotape equip-
ment located on WJXW-TV studio or transmitter prem-
ises for the purpose of editing program material for
broadcast; provided, however, that persons other than
Technicians may perform the work described in this Sec-
tion 4(d)."
10 Dimino explained this change by saying that even the mere contrac-
tual suggestion that Respondent might conceivably discriminate against
union activity was "offensive," and the implied slur was totally unaccept-
able He apparently was not similarly offended by the logically similar
inference to be drawn from the presence of the other prohibited bases for
discrimination outlined by the agreement, as noted above
1063
Thus, on its face, the proposal substantially eroded the
scope of the detailed and complex jurisdictional language
crafted by the parties over the years, e g., subsection (a)
introduced a new (and potentially manipulable) geo-
graphical limitation on the work to be performed solely
by the technicians.
The separate "Remotes" clause submitted by Respond-
ent, relating to "station programs originating" in seven
counties, was almost identical to the existing contractual
provision, the primary difference lying in one critical
word-the old contract provided that a technician
"shall" operate the technical equipment at the point of
origin of station programs, and the proposal stated that a
technician "may" do so. Dimino testified that the effect
of the proposal was to make assignment of a technician
in such circumstances a matter of discretion for Re-
spondent i 1
International Representative Coyte did not attend the
10 January meeting, which lasted about 2-1/2 hours.12
At that meeting, Dimino told the union committee that
the jurisdictional and other changes proposed by Re-
spondent "were necessary to allow the Company to be
more flexible and get the station ready to operate effi-
ciently in the 1980's and 1990's," an argument which he
often advanced thereafter at later negotiations. Dimino
summarized the principal changes which would be
wrought by the company proposal, and Union President
Lolli presented 13 union proposals for improvement of
employee working conditions, some of which Dimino re-
jected out of hand.
There followed a discussion of the Respondent's pro-
posals, including some exchange about the proposed
modifications of the jurisdiction clause, particularly the
change which would allow employees other than techni-
cians to do editing. "Editing" is a term that, as Chief En-
gineer Green testified, may have more than one meaning.
It can refer to "the purely physical function of electroni-
cally splicing together sections of videotape," and it can
also mean the broader function of reviewing the material
to prepare for the splicing, a process which includes the
previewing or "monitoring"), auditioning, timing, and
charting of the videotapes (hereafter, to refer to the edit-
ing functions consisting of other than "physical splicing,"
I shall use "previewing, etc." As shorthand for all the
preliminary functions). According to Dominic's minutes,
at the 10 January meeting, Dimino went on at some
length to explain why the Respondent wanted the flexi-
bility to assign other employees to editing as used in the
broad sense, a group of functions which had previously
t i It may be noted that the exclusivity impliedly awarded by the first
clause of new subsection (d) was immediately withdrawn by the second
clause
12 The sum total of time expended at the 18 bargaining sessions be-
tween 10 January and 27 April, which may be said to be the only meet-
ings at which anything remotely approaching substantive negotiating oc-
curred, was not very great The sessions usually began around 10 a in
and, after a long lunchbreak, ended at 3 p in, when the employee com-
mittee members had to report to work Taking into account the lunch-
breaks, a number of lengthy caucuses, and some foreshortened meetings,
the amount of time actually devoted to discussion in these 18 sessions
was relatively small
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
always been considered work done exclusively by the
technicians.
2. After further discussion of the Respondent 's propos-
als, the parties agreed to meet again on 19 January.
Coyte appeared at this meeting (which consisted of only
about 45 minutes of actual discussion between the par-
ties) and, with some vigor , denounced the company pro-
posal, saying that he was "rejecting it out of hand."
Coyte said that, acting under instructions of the bargain-
ing committee , he wanted to work only from the old
contract, and that he "was not prepared to start with a
new document" but was "only prepared to hear propos-
als on the old agreement ." While Coyte had not actually
read the Company's proposals, Lolli had spelled out the
changes for Coyte.
Dimino declared, as he repeated at later sessions, that
he "wanted the Union to understand that he was serious
about the Company's proposals," and that, unlike in past
Storer technicians negotiations about which he had been
informed, "they were not intended to be used as a ploy,
to be withdrawn at the last minute." Coyte replied in
kind . Coyte also reiterated that he would not discuss the
company proposals , but would only begin with the old
agreement.
What Coyte may have meant to express here was a
thought to which he later gave vent at other meetings:
that his understanding of the law, right or wrong, was
that an employer must bargain as if the only changes
possible are improvements of the employees' positions. I
am sure that Coyte, a veteran bargainer , did not really
believe any such thing , and, indeed , his later conduct at
the bargaining table proved as much.
When Coyte insisted that he would not consider the
company proposals , Dimino stated that he wished to
recess until the meeting set for the following day, and he
also, in turn, rejected the Union 's proposals . Dominic's
minutes read that "[a]t this point, Coyte angrily uttered a
string of obscenities." Coyte went on to say that the fol-
lowing day's meeting was canceled and that when the
Company was ready to talk about the existing contract,
it should contact Mr. Lolli." Dimino and Attorney Bums
urged Coyte to meet the next day , Coyte refused, and
the meeting ended acrimoniously.
The Union did not attend the session set for 20 Janu-
ary, although Respondent's team did show up and wait
for 20 minutes.13
3. After the 20 January session , Respondent posted its
minutes of that nonmeeting on the employee bulletin
boards . At the next scheduled meeting on 2 February,
Lolli objected to this practice , but Respondent continued
the practice thereafter (and subsequently , in March,
denied a union request to post its own minutes on com-
pany bulletin boards).
Although there was some discussion of the Respond-
ent's jurisdictional proposal at the 1 - 1/2-hour meeting on
2 February, several other subjects were also discussed
(tools, seniority , etc.), and for the next nine meetings in
February and March, relatively little was said, and that
mostly generalities , about the issue of jurisdiction, which
loomed as the most serious problem confronting the par-
ties. Yet the generalities make clear the Union 's belief
that the Respondent's jurisdictional changes, read literal-
ly, threatened the bargaining unit in many ways. For in-
stance, at the 2 February meeting , Lolli asked if the
company language meant that "employees other than
technicians could videotape edit"; when Dimino said it
did, Lolli said (and Dimino denied) that the change
would "eliminate half the work and a third of the mem-
bers of the NABET unit."
4. At the 4 February meeting, during an apparently
brief discussion of some union proposals in the jurisdic-
tion area, Dimino said that the way the union negotiators
were speaking, "he was getting the impression that the
Technicians thought the Company was the enemy." Do-
minic 's minutes show that Coyte agreed with that assess-
ment "because of your proposal on jurisdiction."
5. On 16 February, after making what he termed the
"concession" of agreeing to negotiate on the basis of the
existing contract (which appeared to consist of unsta-
pling Respondent's January draft contract and treating
each subject contained therein as a separate proposal),
Dimino referred to jurisdiction as the "heart of the nego-
tiation." He went on to say that the Company needed
the proposed changes in order to operate efficiently, but
that no one would lose their job as a result of the pro-
posal because the Company would "red-line" (i.e., guar-
antee the employment of) the current employees (but
only "for the life of the new agreement"). He also "said
he'd be glad to listen to union suggestions for possible
modifications, but this was an extremely important issue
19 At the hearing, Respondent attempted to emphasize Coyte's use of
rude language at the 19 January meeting , his probable throwing down of
Respondent's proposal on the table , and his obstinacy about the Union
not attending the 20 January meeting , as demonstrations of Union "bad
faith" which bear upon the issue of the existence of impasse. It seems
clear from the testimony that neither Coyte's behavior (nor that of Union
Attorney McKnight, who began appearing at the negotiations on 30
March) seriously impeded the bargaining.
As for Coyte , even Dimino testified that Coytes ' 19 January behavior
was merely "posturing," and it was Dominic's testimonial opinion that
throughout the January and February negotiations , there was "no con-
duct by either side that [he] would have considered out of line for bar-
gaining negotiations."
As for McKnight, the notes indicate that he displayed occasional impa-
tience at what he considered unduly protracted consideration of minor
items . Dimino made it clear at the hearing that he did not care for
McKnight, testifying , inter alia, that with McKnight's appearance at the
end of March , an argumentative tone . . . was introduced into the nego-
tiations" (which implies that things had been going well enough with
Coyte before then). It does not appear from the minutes that, as Dimino
testimonially claimed, McKnight knew nothing about the negotiations
and "we had to revisit everything."
My own exposure to McKnight over 20 days of hearing made it seem
very unlikely that this bright and affable lawyer could have had a seri-
ously deleterious effect on the talks-I noticed time and again at the
hearing that even when McKnight expressed irritation, it was in an in-
genuous and disarming manner, hardly likely to reasonably cause serious
offense.
Clashes are commonplace in collective bargaining . Even in the more
formal setting of an administrative hearing, it occasionally happens that
lawyers (and, mirabile dictu, administrative law judges) will engage in im-
propriety or "profanity" (R. Br. 19 ). See Tr. 220 (counsel for Respond-
ent: "Jesus ."); Tr. 227 (administrative law judge : "[W]hen I saw that
notebook come out, I thought, 'Oh my God. Why can't we avoid this
sort of thing?"'); Tr. 4263 (counsel for Respondent: "Oh, shut up, Sam,
until I do it ."); Tr. 4468 (counsel for Respondent: "You mean the God
damn minutes are not stipulated to?"); Tr. 5053 (counsel for Respondent:
"As long as she 's not substantively changing or adding new allegations,
God, who cares?"
STORER COMMUNICATIONS
to the Company." Lolli stated that the Union "is not
going to give up jurisdiction."
After this general discussion, they went on to speak of
several other topics (with the Respondent agreeing tenta-
tively to withdraw two of its regressive proposals on
probationary period and seniority and to accept the exist-
ing contract terms on those items).
6. The negotiations followed this pattern for a long
time-a good deal of discussion (and a number of tenta-
tive agreements) about relatively insignificant honjuris-
dictional matters, and only generalized talk about the ju-
risdictional clauses. Thus, at the 2-hour meeting on 17
February, after the parties had spoken about many non-
jurisdictional items in some detail, Dimino stated that the
Company was serious about all of its proposals, and Lolli
replied, according to Dominic's notes, that the Union
was serious about jurisdiction and again said that "they
are not going to give up jurisdiction."
In this connection, I note the testimony of Union Ne-
gotiator Roger Wilcox that the Union "had asked, during
most every meeting, for the Company to give us specific
problems that they had, so that we could modify our ju-
risdiction to accomplish what they wanted " Wilcox's
testimony was confirmed by Dimino's testimonial ac-
knowledgement that "a number of times" the Union
"asked the company to provide it with some specific
problems, where the Company needed jurisdictional
relief, rather than a sweeping clause such as the one the
company had proposed." While Dimino added that the
Company "responded" on each such occasion, he was
not asked to reconstruct the responses. It thus appears
that despite Lolli's reported statement that the Union
was "not going to give up jurisdiction," the Union in
fact solicited Respondent "a number of times" to specify
those areas where some relief was needed, so that, in
Wilcox's words, "we could modify our jurisdiction to ac-
complish what they wanted."
7. At the 2 March meeting, Coyte said that he had
been instructed by the committee to say that if the Com-
pany was looking for "major changes" in jurisdiction, "it
simply isn't going to happen." The company minutes go
on to reflect the seemingly contradictory positions asser-
tedly taken by. Coyte that asked the Respondent to offer
"new proposals on specific changes in jurisdiction"
which the Union would address, but that "it would be a
waste of time to talk about the proposal because we are
not prepared to change or alter present jurisdiction lan-
guage."14 After replication by Dimino about needing
language for the challenges of the 1980s and 1990s,
Coyte again said that if the Respondent wanted to
"submit specific examples of jurisdiction changes we will
discuss them," but the existing proposal was unaccept-
able: "The changes are too broad, too sweeping." The
negotiators went on to other issues.
This and other discussions persuade me that while the
Coyte was adamant about not accepting whole the
"sweeping" jurisdictional changes proposed by the Re-
spondent, he was acknowledging the possibility of "spe-
cific" modifications of the Union's jurisdiction.
14 It strikes me as quite unlikely that Coyte would have made both
such statements
1065
8. On 3 March, after perhaps 2 hours of discussion on
a number of proposals, and accord on one tentative
agreement, Dimino, noting Coyte's announced willing-
ness to "discuss specific changes in jurisdiction," asked
for a union response to the proposal "which would allow
the Company to use other than Technician employees to
do editing." Coyte responded that the Union was "not
prepared ever to give that up."
9. At the 24 March meeting, the first one memorialized
by the union stenographer, most of the net 1-1/4-hour
discussion was devoted to nonjurisdictional proposals. is
Toward the end of the session, Coyte brought up the
subject of jurisdiction over computer equipment and an
arbitrator's decision in this area which favored the Union
in regard to the use of computer equipment called "Vidi-
vote," which is used during elections.
Coyte went on to say that the Company had problems
in the area of jurisdiction and "we'd like to talk about it
We will discuss any point you wish to make and take
into consideration anything you might want to explain to
us." Dimino referred to the need for flexibility in editing,
and, as the discussion progressed, Dimino made it clear
that the Respondent wanted reporters to be able to
screen, chart, time, "and edit" tape if NABET techni-
cians were unavailable. Coyte's reply, as reported by the
union stenographer, was that it was "impossible . .. .
You're asking us to give up exclusive rights granted over
years . . to operate equipment." However, according
to Dominic's minutes, Coyte added that "if the Company
instead wanted to address a specific area, such as allow-
ing other employees to screen and time, then he could
ask the committee to explore that area, but as it stands
now the Company proposal is too broad."
After a caucus, Dimino again spoke at length to stress
the fact that he was "deadly serious" about getting the
station "ready for the 80's," and was not playing a game.
He added, "We have other issues besides jurisdiction
which are important. This is not the only issue; it is cer-
tainly the most important " Coyte agreed that "jurisdic-
tion is most important to Union members" and stated
that in view of the Respondent's proposal, "I see no way
but confrontation."
They then spoke of more mundane matters, and Coyte
referred to the possibility of giving notice of termination
of the contract 48 hours after its expiration date of 31
March, as required by its terms.
10. They met again on 25 March for 2-1/2 hours and
discussed many topics. Some tentative agreements were
reached and modified proposals offered. When Coyte at-
tempted at one point to discuss the proposals for revising
jurisdiction, Dimino said, "I recall we had an agreement
that jurisdiction was too complicated and important a
matter and we might be well served in moving on to
other issues." The bargainers went on to discuss a
number of topics other than jurisdiction.
11. With Union Attorney Samuel McKnight and a
Federal mediator present, both for the first time, the par-
ties convened next on 30 March for a 2-1/2-hour session.
11 The Union offered five modified proposals (on "Video Tape Editing
Fees," "Premium Pay," "Arbitration," "Meeting With Union Representa-
tive," and "Seniority") at this meeting
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union offered three counterproposals and also made
its first proposal on wages : 13 percent per year for 3
years.
Although Coyte had twice in previous sessions in
March asked Dimino when the Union could expect a
wage proposal from the Company, Dimino had put him
off. At this session, on the day before the contract was to
expire, Dimino stated that the Company "is not prepared
at this time to come up with its proposal on wages be-
cause we feel there are a number of issues outstanding
which would have economic impact on the entire pack-
age. We will be in a better position to make a more
meaningful response to you after we discuss and resolve
some of the other issues on the table ." When McKnight
insisted that the Union needed a proposal , Dimino said,
obviously out of momentary pique at McKnight's insist-
ence, "Minus two, minus two, minus two [per cent]."
Later, Coyte asked if the Respondent had "modifica-
tions or suggestions or changes to the "jurisdictional pro-
posal." He went on to say that the Union had indicated a
willingness to consider such modifications . Dimino re-
plied that the Union had not submitted a jurisdictional
counterproposal. The discussion then got sidetracked
into another area.
Subsequently , McKnight returned to the jurisdictional
track, asking "if there's anything in particular that you're
having a problem with" in the expired agreement. Di-
mino 's answer made reference to a different need from
the concepts of operational "flexibility" or "efficiency"
the thrust , rather, was that the jurisdictional clause had
been "fiddled with over 30 years" and "the time has
come to examine it and state it as simply and coherently
as possible ." After some further discussion about destruc-
tion of the bargaining unit , Dimino returned to the need
for increased efficiency.
12. At the 2-1/2 hour 31 March meeting , the parties
reached tentative agreement on two subjects, and
Dimino pointed out that there had been eight issues ten-
tatively agreed to. McKnight said that "most of what's
been resolved has been resolved by returning to the
original contract language or getting modifications or ac-
commodations from the Union."
After discussion of various topics, McKnight said it
appeared to the Union that the way to deal with jurisdic-
tion was for the Respondent "to point out specifics
which you consider to be problem areas so we can ad-
dress them." Dimino agreed to think about it. There fol-
lowed, at some length, a discussion of several nonjuris-
dictional subjects.
In the afternoon , Dimino referred to the status of the
jurisdictional issue as an "impasse." McKnight responded
that "[w]e're a long way from impasse-there are many
proposals and counterproposals in many areas ." Dimino
asked that the parties "maintain the status quo of the cur-
rent contract through at least the time we meet" on 5
April, but the Union would give no such assurances.
Dimino expressed his shock and disappointment , because
he had "thought we were making progress this mom-
ing-the atmosphere for 11th hour bargaining was cor-
dial-there was a sense of give and take."
13. At the 5 April meeting , Respondent made some
complicated tradeoff proposals . After a union caucus and
then interparty discussion, Dimino again raised the
notion of impasse : "I'm beginning to see signs of a defi-
nite impasse ." Coyte took up the gambit : "I think we're
a long, long way from impasse; there are dozens of issues
and proposals and counterproposals on the table. If you
want your record to reflect that, it's up to you ." Compa-
ny Attorney Bums replied , "We do."
Dimino twice more somberly referred to "impasse"
and then handed the Union a modification of [its] origi-
nal proposal" on jurisdiction "specifically to deal with
complaints raised by the bargaining unit ." He hoped that
the Union 's response would be of such a nature that "this
rapidly approaching impasse can be broken."
The modified proposal , however, followed the same
format as Respondent 's initial proposal on jurisdiction.
The last section was altered so that, instead of allowing
all "persons other than Technicians " to perform the "op-
eration of film and videotape equipment . . . for the pur-
pose of editing program material for broadcast," the
clause was changed to read , "provided, however, that
producers , ENGEFP Cameramen, 1 ° and talent may pre-
view, time , and edit tape ." This was an attempt, Dimino
said, to convince the unit that Respondent had no inten-
tion , as charged, to hire a group of low-paid workers to
replace the technicians . A change in Respondent's "Re-
motes" proposal reinstated the word "shall" as used in
the prior contract , instead of the previously proposed
"may," but did not resolve the lack of agreement about
the Remotes proposal.
14. On 6 April, during 2-hour meeting, Coyte said he
was "tremendously disappointed" in the Company's
modified proposal and delivered the following message
from the union committee: "If you expect to get editing
... we're definitely heading for confrontation ." Coyte
and Dimino seemed to agree , however, on a possible res-
olution of the remotes issues.
After exchanging speeches , Coyte said that if the Re-
spondent wanted to reach agreement , "settle-jurisdiction
and the rest of the proposals can be settled in 20 min-
utes."
Following more discussion about the discontent of the
employees with the Company's offer,' 7 Dimino suggest-
ed that the membership "work up a list of problems you
have with it," and agreed that , in exchange, Respondent
would "come back and tell you where we think we're
handicapped." Subsequently, Domino stated that if the
Union said , "We'll never give you the right to edit," the
parties would then "have an impasse-a clear, unalter-
able impasse."
16 "ENG" stands for "electronic news gathering," the work done by
mobile photojournalists using lightweight cameras and video tape record-
ers. "EFP" means "electronic field production ," referring to productions
filmed off premises.
17 At one point, Dominic's minutes have Dimino asking , "Is it really
worth a confrontation to lose Vidivote and talent editing ?", with Coyte
replying , "Yes, it is . It is worth it." The union minutes , however, show
no such colloquy between Dimino and.Coyte about confrontation, Vido-
vote, and talent editing. It may be that the stenographer simply missed
this dialogue entirely, because, at the hearing, Coyte more or less con-
firmed his recollection that such an exchange took place (thus showing,
as Respondent contends, that the professional stenographer could also
falter now and then.)
STORER COMMUNICATIONS
Coyte agreed to consult the unit members about Di-
mino's suggestion. After a caucus, Coyte reported the
committee's belief that "50 or 60 items," on the "surface
of the proposal," were taken away from the unit. He also
said:
I'm told there is no way this bargaining unit will
ever give up editing. It was explained to me that
perhaps you 're confusing editing with previewing, but I
would have to disagree with that,- I think you 're aware
of the difference. 18
C. The Post-6 April Negotiations and Related Matters
It appears that it was not until 19 April, at the 15th
meeting, that the parties truly arrived at a sufficiently re-
fined understanding of their respective positions on the
matter of jurisdiction so that informed and meaningful
bargaining could at last begin.
1. At the 1-hour session on 19 April, the Union distrib-
uted a list it had prepared of "Work Eliminated Under
the Company's Jurisdictional Proposal," which included
not only the technical functions then being performed by
NABET in various parts of the station not covered by
Respondent's proposal, but also a number of other func-
tions presumably made nonexclusive by virtue of the
broad language of the proposal. After reviewing the list,
Dimino angrily criticized it as a complete misreading of
the intention behind his proposal; McKnight replied that
the Union had been "asking you here for months to tell
us specifics," a request that had fallen on "deaf ears "19
Dimino then distributed a new jurisdiction clause
which for the first time adopted the format of the expir-
ing contract clause. It differed from the old clause in
several ways.
It slightly changed Respondent's modified proposal
first offered on 5 April to provide "that producers,
ENGEFP cameramen and talent may edit tape" and that
others could "preview, audition , time, and chart tapes "
Another change from the prior contract allowed
"other than Technicians" to operate not only "character
generator equipment" but also "other computer or elec-
tronic equipment" for broadcast purposes, and expanded
the functions in that category which could be so per-
formed by nontechnicians.
The proposal also extended the right of "weather per-
sonnel and news management personnel" from
"operat[ing] weather radar for other than on-air use" to
allowing them to "operate weather radar and weather
character generator equipment " It added two new pro-
visions, permitting nontechnicians to "[u]se video tape
recorders in pool coverage" and to "operate audio re-
corders for the purpose of recording the announce booth
reel."20 The new proposal eliminated the old contractual
18 Dominic'-, notes show no such statement I would not think that the
stenographer manufactured this language
19 An observer might conclude that the Union's construction of the
Respondent's literal proposal was quite reasonable
20 Under the previous agreement, in "pool coverage"-coverage of an
event in conjunction with another station or stations-technicians were
exclusively authorized to operate recorders This was also true as to the
recording of the announce both reel, a process by which, each day, a sta-
tion announcer records daily announcements
1067
provision that, in certain circumstances, a technician
would be assigned to work with the personnel of mainte-
nance contractors and of installers and modifiers of fac-
tory equipment on the premises.
Finally, two sentences in the former contract provid-
ing for exclusive operation by technicians-the feeding
of information into a computer for "assignment and acti-
vation of broadcast equipment" and the use of equipment
"to override a computer in the assignment and activation
of broadcast equipment"-were deleted.
At the afternoon session on 19 April, however, the ne-
gotiators did not address themselves to the Respondent's
modified proposal, but rather to the list drawn up by the
Union of its understanding of the consequences of the
Respondent's now-withdrawn original proposal on juris-
diction. Dimino said that most of the 26 union-listed
items were matters as to which he had no interest in re-
scinding the Union's exclusive jurisdiction .2 1 He identi-
fied six functions as to which Respondent did have an in-
terest and said that discussion was necessary on some
others
McKnight stated that the union committee had exam-
ined Dimino's revised proposal with an eye to the fact
that "there are a lot of other items on the table which
are important," including "wages, little-mentioned to
date but serious, union security, hourly increments on
overtime wages, meal periods,22 the night differential,
and Chief Engineer." Saying that Respondent could not
"have all that's there" in its jurisdiction clause,
McKnight named some areas in which "we have flexibil-
ity," if the "right kind of package" could be put togeth-
er." "He designated the following areas as those in
which the Union could "give you some relief'. the two-
man ENG and remote crews, the Vidivote machine, the
weather graphic device, operation of the program logs,
and "previewing andor reviewing tape outside of
NABET's normal work area," by which he meant that a
reporter who wanted to preview could not do so in the
NABET editing suites, but would have to go outside the
area to another previewing setup and do it there. Di-
mino's answer was that it was "not enough." Dimino
went on:
You have indicated, and I have made clear on a
number of occasions, that there are other items
apart from jurisdiction which we consider to be im-
portant-and there is a lot to be talked about there.
It may very well be that these problems are insur-
mountable and we won't get anywhere.
After a caucus, Dimino, having referred to the items
about which the Union had indicated some flexibility,
went on to name the remaining issues about which the
Respondent was "particularly concerned": pool cover-
age; audio recording on one-camera production; an-
21 The union minutes have Dimino saying, "We're not interested in
previewing and editing", some words must have been garbled by the ste-
nographer
22 This issue, concerning the question of partial payment for the meal
period, is also referred to as the "Work-Day-Work-Week" problem
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nounce booth recording ; computer equipment outside the
master control room ; and, "of course," the editing.
Dimino then, after stating that the "big issue for both
sides has been editing," withdrew the Company 's request
for nonexclusive "editing," by deleting the last line of
the Company's revised 19 April proposal ("except that
producers, ENGEFP cameramen and talent may edit
tape"). He did not, however , withdraw the provision
which would have permitted nontechnicians to "pre-
view, audit, time, and chart tapes ." The withdrawal of
the final edit function from the arena was made "subject
to the acceptance of the rest of the language" in the
modified proposal . Dimino stated that "This is as far as
we can go on jurisdiction."
The union bargainers expressed some confusion about
Dimino's position . After a lengthy discussion about
whether Respondent was making a "concession" by
agreeing to NABET exclusivity over a function as to
which the Union had exercised plenary jurisdiction for
years, Coyle asked, "If we don 't accept your position on
jurisdiction , are you saying there will be no further bar-
gaining?" Attorney Bums answered , "What we're saying
is that we 're not prepared to modify our proposals any
further." When Coyle put the question again , however,
Dimino replied , "I don't know-I can't respond on
that."23
2. It was at the 20 April meeting that , according to the
complaint , the first discrete violation of the Act oc-
curred, having to do with the claim that the Respondent
refused to bargain about economic matters.
After a preliminary speech, Coyle enumerated four
items which he said were "outstanding," and he- com-
mented on each. As for "pool coverage," Coyte said that
the committee was uncertain what Respondent was talk-
ing about : "there may be some areas that we're willing
to compromise our contract , but you have to be specif-
ic." As far "audio recording" (often called the "one-man-
band" concept), Coyle was willing to agree that a lone
cameraman could , as in the past, operate his own tape re-
corder while out even on a nonnews assignment-"that
we can clarify and set aside."
With regard to announce booth recording , Coyle said,
"We are not willing to change our position on that." The
issue here was the right of announcers to operate the ma-
chine when recording daily reels of announcements-
Coyle said that the Union saw the work as a "half-a-man
[a week] employment."24
In reference to "computer equipment" Coyle recog-
nized two "areas of Union compromise." One pertained
to Vidivote, the machine used during elections, and the
other was weather graphics , as to which Coyle said the
Union would like to "cooperate . . . in providing you
with some relief." Coyte went on to say, however, that
until the Union has "reviewed those [existing ] proposals,
has seen a "comprehensive wage proposal" from the
Company, and "until we have a settlement on the other
outstanding issues , there is no way we can accept a set-
23 Dominic 's notes include the exchange between Coyte and Burns but
omit Dimino 's differing response, as found in the union minutes.
24 Chief Engineer Green thought that the function probably occupied
a technician for 1-1/2 to 2 hours on each of 4 weekdays, and three times
as much on a fifth day, or a maximum of 14 hours a week.
Clement of the jurisdiction issue ." While praising the
Company's movement of the previous day as a "good
sign," Coyle stated that "[the Union] will not be Out in a
position that unless we accept this as proposed, that
there will be no further agreement with the Company."
Dimino , taking note that Coyle had earlier said that
everything else could be resolved in a short time if juris-
diction could be resolved, objected to Coyte' s suggestion
that they leave the subject of jurisdiction . He went on to
claim" that Respondent 's surrender on final editing was a
"giant step forward"-the two sides had looked eye to
eye and the Company had "blinked" on this "mega-
issue." The "four or five items left on jurisdiction .. .
pale in importance compared to editing [and] they really
weren't as big a deal to you ." Dimino went on to explain
why the Company was interested in having flexibility
with regard to pool coverage , audio recording , and an-
nounce booth recording. He also discussed the desirabil-
ity of unhindered control of computer equipment outside
the master control room:
We would be glad to talk about that . Quite frankly,
we don't know when it will be in . . . could be 2 to
4 years down the road . Whether we're talking
about word processors or computers or. weather
graphics or whatever . . . . We would be willing to
structure language on this.
Dimino, "think[ing] we have a light at the end of the
tunnel," urged that they concentrate on jurisdiction and
then remotes . Coyle "agree[d]" with Dimino that they
were "close," saying the Union was prepared to make
movement in "two or , possibly three" of the four areas,
but "not to the extent you want."25
Dimino then asked if they could feel comfortable "on
both sides to continue on jurisdiction ." Coyte said no,
because the "impact of the other proposals has a direct
effect on the outcome of these decisions ." Dimino re-
plied that he wanted "a general agreement on jurisdic-
tion . . . before we can go on to something else."
Dimino further said that there are "4 to 6 items outstand-
ing on jurisdiction. . . . Basically , we have identified
them." If agreement was reached on those "problems,"
"we will put them into the Company proposal modified
41983.... We can add or modify in the body-that's all
we'll change."
In discussion after a caucus , Coyle talked about the
modifications from the old contract language effected by
Respondent's latest jurisdiction clause and also made ref-
erence to issues in remotes , all of which "still create
problems for us." Dimino said that he was not "moving
on remotes," and wanted to "get jurisdiction out of the
way." Coyte again resisted the idea of continuing to dis-
cuss jurisdiction.
Dimino then passed out proposed language addressing
pool coverage, audio recording, and weather graphics.
ss Dimino replied, "Assuming semantics are at work here in the stat-
ing of different categories, there may be four or five . We've touched on
them, but I'm not sure of the exact number ." This problem of quantifying
and identifying the unresolved issues recurs throughout the later minutes
and the hearing transcript . Compare Dimino's listing of areas in dispute
at Tr . 4324-4325, 4337.
STORER COMMUNICATIONS
After offering a negative evaluation of the Company's
positions , Coyte commented that "We have a serious
desire and intention to discuss these areas and narrow
them down ." He again pointed out, however , that there
were "major issues" outstanding , such as the proposed
deletion of the union -security clause, meal periods, and
the first-class license requirement , as well as demands by
the Union that "haven 't even been addressed yet"
Dimino responded that they could "probably find move-
ment on some of these items, but I can't discuss them
unless jurisdiction is resolved."
There followed some discussion of pool coverage and
of other jurisdictional issues. Dimino then began asking
for the Union 's position on the separate sections of Re-
spondent 's modified proposal ; on some, Coyte said the
Union did not disagree, on some he said the Union was
"prepared" to "share how we feel the language can be
modified to reflect your needs."
In a discussion of weather graphics, Coyte explained
the amount of work the Union was willing to cede to
others ("nonalphanumeric: only the pictures , but not the
words and numbers"), and Dimino said he was "not pre-
pared to do that ." After some talk, Coyte suggested two
possibilities for giving Dimino what he wanted in the
area of weather graphics The parties then went on to
state their positions on other items in the modified pro-
posal (as for item 14 , Dimino remarked, "That 's language
we're developing")
After lunch , Coyte took up again the subject of pool
coverage , which led to a discussion of the relationship
between two of Respondent's proposals characterized by
Coyte, after some analysis , as creating "confusion." In
speaking of weather graphics , Coyte changed the
Union 's position and offered to allow on-air talent (but
not also producers) to perform alphanumeric work. After
a long and complicated discourse on weather graphics,
Coyte again gave a negative reply to Dimino 's second
inquiry of the day regarding the announce booth work.
In answer to a general question by Dimino , Coyte said,
"We have a lot of problems with the proposed con-
tract-we're not prepared to live with it."
After a 15-minute caucus, Dimino declared that the
Union had been very "up front" by announcing in Janu-
ary, and maintaining since then , that it was "not pre-
pared to give up any jurisdiction ." He said twice that he
"[thought] we have reached an impasse on jurisdiction,"
and he distributed letters stating that the contract would
be terminated in 48 hours. He further announced that ef-
fective 3 p.m. on 22 April, "we will begin to put a new
set of work rules in effect, and they will be posted " The
Company agreed to continue to negotiate , however.
Coyte conceded that while he had said to Dimino that
morning that he "believed we were looking at an im-
passe on jurisdiction ," he pointed out that "there are nu-
merous issues on the table which have not been re-
solved," that the Union had made three as yet unan-
swered counterproposals on jurisdiction, and that he did
not agree that an impasse had been reached.
3. The parties met again at 12:25 p m the next day, 21
April, for 8 minutes . Dimino stated that Respondent was
making its "final offer," which was subject to change
only in form , and he handed out some documents to the
1069
union committee Coyte responded that the Company
was telling the Union to "take it or nothing" and admon-
ished Dimino that "you negotiate things at the bargain-
ing table." Dimino said that if Coyte took the proposal
to the membership and the membership "responded,"
they would meet the next day ; otherwise , he was off to
Miami. Green conceded at the hearing that as Dimino
abruptly left the room , Coyte evinced "a desire to dis-
cuss [the proposal ] possibly," but the Company nonethe-
less withdrew . Coyte had the Federal mediator seek to
arrange another meeting ; the mediator told him that 27
April was the Company 's "next available date," and also
that the Company had agreed to withdraw its notice of
termination of the contract.
The documents distributed by the Company consisted
of (a) a four-page "Summation of Tenative [sic] Agree-
ments in the WJKW-NABET Negotiations and The
Company's Final Offer, 4-21-83"; (b) a detailed wage
proposal (the first by Respondent since offering "minus
2" for 3 years on 30 March); and (c) another revised ju-
risdiction proposal.
The "Summation" listed 42 contract clause headings,
with a brief description of their respective contents. In
this document , Respondent for the most part agreed to
abide by the language of the old contract on many
clauses which , when negotiations began , it had proposed
to change or delete, some of which , such as union-securi-
ty and night differential , had appeared to be important to
the Union So far as I can tell , none of the provisions set
out by the Company reflected an improvement in the
preexisting terms and conditions of employment or ac-
ceptance of any of the new demands proposed by the
Union.
With regard to "Wages," the explanation read, "A 5
percent increase per year over 3 years; Some adjustment
in steps leading to top scale; Deletion of 1st Class Li-
cense Requirement " An examination of the attached
wage proposal , which is set up to show how much a
technician will earn after , respectively , 12, 24, 36, 48,
and 60 months of service, on and after 1 April 1982,
1983, 1984 , and 1985, discloses that it differs in signifi-
cant ways from the expiring wage provision.
For one thing, the latter provided for an increase in
wage rates after every 6 months (not 12) up to 48
months (not 60) For another , there was a somewhat
complicated explanation about when wage increases
would take effect for each employee. Thirdly, the figures
shown in the new scale were arranged in a different
format than in the previous scale: under the old contract,
for instance , the starting salary increased on each first of
April of the 3-year period , as did the amount earned at
each 6 -month interval of service ; under the new propos-
al, the same amount was earned at each level on each
contract anniversary date.
Dominic testified that after sending out the summation
to employees on 21 April , Respondent received a "lot of
inquiries" from unit employees who "didn 't understand
the wage proposal ." The contract provision is difficult to
comprehend. For example , it would appear that, under
the old contract, an employee who had begun employ-
ment on 1 January 1979 would have been earning $574
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
effective 2 January 1983 , 48 months after hire . Accord-
ing to a sentence in the new proposal , any current em-
ployees with less than 60 months ' tenure would receive
their next wage increases "on anniversary dates until
[sic] they reach the top of the scale" (after which, as
with employees not previously employed , wage increases
would fall "on contract dates"). This would seem to
mean that the hypothesized employee would receive no
increase until 1 January 1984 , or 9 months after the pro-
posed effective date of the contract (1 April 1983), at
which time his salary would increase to $602. If my con-
struction of the contract is correct , this employee would
not have received a "5 percent increase per year," as
stated in the Respondent's summation, since he would
only receive his first increase beginning with the final 3
months of the first year of the contract (and the next in-
crease, to 632, on 1 April 1984). Thus, for the first year,
his annual increase would amount to slightly over 1 per-
cent.
That the proposal is not easy to understand was evi-
denced at the hearing by Station Manager Dominic,
who, when asked what the salary would be of an em-
ployee hired on 1 June 1983 , studied the proposal and fi-
nally answered , "I don 't know." And while counsel for
Respondent declared an intention to have witnesses on
the subject, none were ever presented.
The 21 April jurisdiction proposal was very nearly the
same as the one given on 19 April, except that it made
the promised deletion of editing by nontechnicians.
4. According to Coyte, after the 21 April session, he
and the union committee felt that they were "getting
very close to being able to sign off on a collective bar-
gaining agreement." The next meeting took place on 27
April. In the morning , an off-the-record meeting took
place between Dimino and Coyte, with a few other ne-
gotiators present . Coyte testified that he gave Dimino an
idea of the areas that "we were prepared to move in,"
including "pool coverage , remote broadcasts , recording
of video tape . . . Vidivote-those areas where they had
indicated to us their need for relief."
As for pool coverage, Coyte said the Union was "pre-
pared to meet his needs in the area of pool coverage";
Dimino "seemed to be satisfied with that ." Coyte of-
fered, in weather graphics, to allow weather persons to
present their own programs on the air using the weather
graphic equipment; Dimino responded that he "felt they
needed more flexibility in that area ." Coyte also agreed
to recede from the union position on audio recording;
Dimino seemed content with that concept . As for the an-
nounce booth, Coyte told Dimino that he had no author-
ity from the committee to capitulate on that issue.
Dimino said that the announce booth was "very impor-
tant to him"; Coyte replied that "nothing is carved in
stone" and that they should , at the meeting scheduled for
that afternoon , "exchange some proposals, talk it out,
and take it from there."
Coyte also testified that he told Dimino that the Union
had "concerns . . . in the area of wages, and remote
broadcast , and the meal period." He told Dimino that we
"wanted to discuss the wage package quite thoroughly;
that we were missing material that should have been in
it. We wanted an explanation ." Dimino was pretty firm
on their position on wages.
Dimino testified that he thought the meeting was
"very productive," in that he believed that Coyte finally
had gotten the message that "we were serious , that we
had given them a final contract offer." Despite this asser-
tion of finality, however, as we shall see , Dimino made
two more substantive concessions on the afternoon of 27
April. Dimino also agreed at the hearing that Coyte had
"indicated that there was nothing written in stone."2 a
At the formal session in the afternoon of 27 April,
Coyte went over the Company 's last offer and listed
those subjects with which the Union could agree and
those with which it could not, the latter being wages, ju-
risdiction , remotes, and workday-workweek.
With regard to jurisdiction, Coyte submitted a written
counterproposal that would have allowed nontechnicians
to preview , etc., 34-inch videotape "outside the normal
NABET work area on equipment connected to a moni-
tor for playback only."E7 Coyle further said he knew the
Company wanted to change the current language on
"audio recordings," and he said "the Union would be
willing to consider giving the Company such rights."
Coyte also offered a written proposal that would allow
nontechnicians to perform "inputting of election results
during election day, all other Vidivote functions to be
performed by technicians," and one which provided that
"Cameramen and reporters may operate video tape re-
corders in pool coverage of courtroom proceedings." Fi-
nally, with respect to jurisdiction , Attorney McKnight
said that the Union would draft language that would
assure that the Company would not have to make double
payment in interunion disputes (this was viewed as possi-
ble problem under the "Remotes" section).
Coyte further said, in the area of workday-workweek,
that the Union would not accept the Company's posi-
tion.2s
After a 55-minute caucus , Dimino rejected NABET's
offer to allow nontechnicians to preview , etc., tapes out-
side the Union's normal operating areas, asserting that
this would entail the unnecessary expense of setting up
separate tape areas . However, Dimino said that "in his
continuing efforts to reach a settlement," he was pre-
pared to accept the old contract language on remotes in
return for union assurance that would protect the Com-
pany from double payment and, further , that he would
be willing to accept the old contract language on work-
day-workweek.29
86 James Stahl, a most credible member of the union committee called
as a witness by Respondent , testified that at the 27 April informal mom-
ing meeting, Coyte had said that in the afternoon , "we wished to discuss
the wage situation. We tried to make a counterproposal to it."
27 The only available minutes are those prepared by Dominic. Those
minutes do not show that the Union made (as it did) three written pro-
posals, but speak of them as if they were only concepts.
28 This issue had to do with the treatment of the existing lunch hour of
55 minutes-25 minutes paid and 30 minutes unpaid . By 27 April, the
Company had agreed to retain these periods , but not to pay overtime
until a technician had actually worked for 8 hours, instead of 7-12 hours,
a current practice had it.
29 Respondent asserts on brief that Dimino decided "to agree to the
Union 's proposals on the subject of remotes and workday-workweek, " the
Continued
STORER COMMUNICATIONS
These two concessions, said Dimino, were the only
ones he was willing to make, and that, except for them,
"the Company's Final Offer still stood as the final offer,
including wages." Although Dominic's minutes do not so
reflect, Dimino testified that Coyte replied that as far as
the Union was concerned, "it wasn't a final offer, there
was still room to negotiate." Dimino seemed uncertain of
his own response to that.
At this time, and only a few minutes before the meet-
ing ended, Dimino distributed still another modified ju-
risdiction offer, prepared during the 55-minute caucus. It
differs in several respects from the 21 April proposal. It
physically incorporates the written counterproposal on
pool coverage made by the Union at the beginning of the
27 April afternoon meeting. Whether, as Respondent's
brief states, Dimino also "accepted" the Union's "written
proposal concerning vidivote" is questionable; the
Union's 27 April written proposal had stated that other
employees could be used for the sole purpose of input-
ting of election results during election day; what the Re-
spondent proposed on 27 April was, "The use of vidi-
vote by others will be limited to election preparation and
coverage" (emphasis added). Chief Engineer Green
stated at the hearing that the Respondent did not, by its
modified language, accept the Union's 27 April counter-
proposal, although he seemed to regard Respondent's
language as somewhat of a concession.30 Coyte, on the
other hand, testified that he viewed the language as re-
flecting the Union's desire.
The modified proposal made by Respondent on the
afternoon of 27 April also made two other noticeable
changes from the 21 April proposal.
One makes reference for the first time to a device
never before mentioned in the proposals: "Others [than
technicians] may operate viditext for the purpose of off
line composing." "Viditext" is an "off line entry" which
enhances the use of the "vidifont," or character genera-
tor. Coyte testified that this sentence "was a result of our
discussions [in the morning of 27 April] and understand-
ing that we didn't have a problem with that." Dimino
also testified that this and the other new sentences in Re-
spondent's last offer on 27 April resulted from that early
meeting and were attempts to clarify Respondent's 21
April language so that the Union "would feel comforta-
ble with it." But union bargainer Wilcox testified that the
subject of "viditext" had not only not been "discussed at
the morning meeting," but had not been "discussed at
all" during the bargaining. He added that soon after 27
April, other employees asked some of the negotiators the
reason for the "viditext" language, and "we had to say
that honestly, we hadn't discussed it in negotiations. We
didn't know."
effect of which was "to return to the original language of the previous
contract " The record shows, however, that the Union had proposed on
10 January to improve the old language in two substantive ways which
never saw the light of day
so The General Counsel errs on brief in asserting that Chief Engineer
Green exhibited "confusion" at the hearing as to "the impact of the Re-
spondent's April 27 language on wdwote " The transcript reference cited
is to a discussion by Green at the 19 April meeting, and Green exhibits
no "confusion" there
1071
I am inclined to credit Wilcox on this issue. The evi-
dence does not show that the videotext device had ever
been the subject of bargaining, and Wilcox seemed quite
sure that it had not been discussed on the morning of 27
April. Since that informal meeting was intended to ad-
dress only general "concepts" and "brainstorming," it
seems most unlikely that the new subject of viditext, and
its disposition, arose and was settled at the discussion. It
clearly is not, as Dimino generally testified about the lan-
guage in the last 27 April proposal, an effort to make the
Union feel more "comfortable" about the 21 April pro-
posal As for Coyte's testimony, I venture to say that he
simply forgot one of the details in a mass of details. I
conclude that the "viditext" sentence in the last "modi-
fied final offer" proposal brought in by the Respondent
in the afternoon of 27 April was virgin material.
Another change by Respondent on 27 April was the
addition of a new sentence pertaining to weather graph-
ics: "Only weather personnel may operate the weather
graphics system for broadcast purposes, but others may
operate the weather graphics system for non broadcast
purposes." The Union's last oral proposal on 20 April
had been to allow both on-air talent and technicians to
operate the weather graphics system, both alphanumeric
and otherwise. Coyte testified that the 27 April "but
others" clause went beyond what the Union had pro-
posed.
Dominic's minutes state only that Dimino then passed
out Respondent's second 48-hour termination notice. At
the hearing, when asked "what questions did the Union
raise on the 27th regarding your wage proposal,"
Dimino answered, "None." On cross-examination, how-
ever, Dimino said that it was "possible" that the Union
raised a question on 27 April about the 21 April wage
proposal-he recalled speaking to someone about this,
but not who or when.
Coyte credibly testified, however, that in the off-the-
record session on 27 April, he said he wanted to discuss
the Company's wage offer in the afternoon session "quite
thoroughly." Roger Wilcox also credibly testified that, at
that session, the Union said, "We had problems with
wages; questions about how the wages were calculated
and also missing items in the wage package." Gary Jones
and Wilcox testified that prior to the caucus on the after-
noon of 27 April, "We told the Company that it [wages]
was an area in which we had questions to ask" and, after
quickly reading the Company's last offer on 27 April,
"We asked about wages," but Dimino gave the Union
the contract termination letter at that time. Finally, Chief
Engineer Green seemed to concede that, dust before the
Union handed Respondent its three written proposals,
McKnight stated that "we still had other areas, such as
wages, that we want to talk about as well" (Green: "I
don't remember the language, but I think I remember
that idea").
Although Dominic's minutes simply reflect that the 27
April meeting ended with an exchange about the Compa-
ny's 48-hour notice, Green gave some important testimo-
ny about the termination of the meeting. When he was
asked whether there was "discernible panic" by the
Union when Dimino, after passing out the "modified
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
offer, then handed over the notice of termination, Green
replied, "I don't know about panic. Obviously, concern
and maybe desire to ask questions " Green recalled
McKnight saying something like, "Oh, for God's sake,
what are you guys doing to us now. Don't walk out."
He further remembered that McKnight asked either "for
another meeting to be set, or to . . . continue the exist-
ing meeting to answer questions ." In reply to the inquiry
whether he knew "the Union wanted to have more meet-
ings immediately and . . . [the Union was] in some state
of panic over it," Green replied, "Somewhat." But the
Company, he acknowledged, did not respond "at that
minute."
This was the last meeting between the parties before
the Union held a membership meeting on the evening of
2 May, rejected the "modified final offer," and went on
strike on 3 May. The negotiators did not meet again until
12 May. During this period in late April and early May,
however, even before the union membership rejected Re-
spondent's 27 April modified final offer, 3 i Respondent
was beginning to make changes in its operations and also
made some direct communications to the unit employees.
5. On 27 April, Green addressed a memorandum to
"All Technicians." It stated that the contract would ter-
minate at 3 p.m. on 29 April, and that unless the Compa-
ny's "final contract offer is accepted by this time, some
new work rules will be put into effect." While the memo
did not delineate all the new rules, it went on, "In an-
other memo, I am notifying the staff that, effective upon
the termination of the contract, any TV8 employee desir-
ing to do so, or instructed to do so, may preview, audi-
tion, time or chart ENGEFP tapes." Also on 27 April,
Green sent a similar memorandum to "The Staff."
6 On 28 April, Dominic sent to each technician "for
your consideration" a summation of the WJKW/-
NABET negotiations and the Company's modified final
offer made April 27, 1983. In some repect, the "summa-
tion" reads like the "Summation of Tentative Agree-
ments etc." dated 21 April, discussed above. One change
from the prior summation is found in the "Wages" sum-
mary, which adds the words "Reinstatement of extra pay
for Crew Chiefs." 32 In addition, the latest summation re-
stored, without prior discussion with the Union, three
wage-related provisions which had been contained in the
former contract, but had been deleted from the 21 April
proposed wage schedule; the restoration had not been
discussed with the union committee.
7. On Friday, 29 April, Dominic sent a memorandum
to "NABET Members," saying, inter alia:
The Company will -begin placing its new work
rules in effect today
While the final contract offer will remain avail-
able to you for the time being, if the Company does
31 On brief, General Counsel argues that Coyte, Wilcox, and Stahl
either denied or were not "clear" that Dimino characterized his 27 April
offer as final But the record reference to Wilcox shows him saying, "I
don't know whether it was final or final, final " I feel confident that
Dimino did refer to it as final, the 28 April distribution to the technicians
calls it the "final" offer
32 In the expired contract, the wage schedule had contained a premium
amount of $44 for "Supervisors," i e, unit employees who temporarily as-
sumed some supervisory duties
not receive an answer from NABET to its contract
offer by 5 p.m., Tuesday, May 3, the pay raise ret-
roactivity provision of the offer will cease to exist
at that time.
The Respondent's "final offer" distributed on 27 April
contained no reference to a "provision" referring to ret-
roactivity. Dominic testified that the parties had agreed
during negotiations to put into effect retroactively any
pay raise agreed to.
8. Also on 29 April, Dominic sent another memoran-
dum to "All Nabet Members" in which he said that
"various conversations with NABET members" had
made it appear that there was a misconception as to how
long employees would have to wait for their first wage
increase . The memorandum then stated that no member
of the unit "will have to wait more than a year from
their last increase for a raise" and went on to give three
examples to "clarify the company' s wage proposal." Cu-
riously, these examples state that the hypothetical em-
ployee in each one will receive more than the "5 percent
increase per year over 3 years" referred to in the summa-
tion. In the first example, the employee is said to receive
"a 21% increase over the previous base", the other to ex-
amples cite, respectively, 7- and 8-percent increases over
the previous bases for the two employees.
9. On 29 April, Coyte, having heard of the 27 April
memoranda circulated by Green as described above, sent
a mailgram to Green charging a "violation of the Na-
tional Labor Relations Act." The mailgram recited that
on 27 April, "NABET indicated, among other things,
that we were prepared to present modified proposals in
several areas including wages, editing fee, etc. We have
not even had a chance to make such proposals. . . . The
Company broke off negotiations with a new proposal
and without even giving NABET an opportunity to re-
spond or counter propose. As I am sure you know, we
advised the Federal mediator of our willingness and
desire to have further bargaining meetings . . . There
was and is no such impass [sic]."
Green testified that he never received the mailgram;
because I thought Green to be an honest witness, I credit
his denial (although I have no doubt that Coyte dis-
patched the mailgram).
There was, however, additional testimony about indi-
cations from NABET of a "desire to have further bar-
gaining meetings ." Coyte was asked during his initial tes-
timony only about the mailgram and not about any fur-
ther efforts made directly by him around 29 April to ar-
range for more meetings . When Green testified for re-
spondent some time later, however, he was asked wheth-
er he had received any communications from NABET
"concerning those [27 April] memorandums " His answer
was that he had received a call from Coyte "concerning
the work rule changes" on Sunday, 1 May. Coyte asser-
tedly told Green that he had unsuccessfully tried to
reach Dimino and Dominic, and that he wanted Green
to know that "the work rule changes, which were then
in effect, were an unfair labor practice." Green said he
would pass on the message that Coyte had called to Do-
minic or Dimino. Asked if Coyte had said anything else
STORER COMMUNICATIONS
in that conversation, Green answered, "No. I think not.
It was quite brief."
Coyte gave rebuttal testimony about this call. He said:
I explained to Bob the telegram that sent and why I
sent it. And I asked him if there wasn't some way
that he could get a message to Joe Dimino to set up
another meeting. That I needed desperately to have
a meeting with him before they started to put into
effect these changes, I thought it would create a lot
more problems by putting those changes into effect
without having another meeting. I thought if we
had another meeting, we may be able to settle that
contract.
Coyte further testified that Green said that he would try
to reach Dimino.
I would accept Coyte's version of the call, for the fol-
lowing reasons. Given that his mailgram had indisputa-
bly referred to wanting an "opportunity to respond or
counter propose" and to the Union' s "willingness and
desire to have further bargaining meetings," it seems rea-
sonable to suppose that he would have indicated such a
state of mind to Green over the telephone. Coyte's fail-
ure to mention the call during his initial examination may
be attributed to the fact that he was not asked about it;
that some such call was made was confirmed by Green.
A convincing factor here is the failure of Green to ad-
dress this point when, shortly after Coyte gave his rebut-
tal testimony confined solely to this issue, Green gave
surrebuttal testimony, but only as to testimony given by
another witness. It is true, as set out above, that Green
had earlier given evidence about his call in his direct tes-
timony, but he had been somewhat uncertain as to
whether Coyte had done more than complain about the
commission of an unfair labor practice ("I think not").
Green's testimony shows that he was very busy at the
time of the call. In my judgment, when Green, an honest
witness, listened to Coyte's testimonial account of the
call, he remembered that the account was accurate; and
rather than dissemble, he deliberately chose not to con-
tradict Coyte's version in his surrebuttal testimony
10. On 2 May, Tony Ballew, the news director, put
out a directive to the "news staff," listing four "oper-
ational changes that will be effective immediately": (1)
that whenever a sound-on-tape interview was done on
the station premises, the procedure would be the same as
in the field: "The news cameraman will operate both the
camera and the tape recorder", (2) that there "is no
longer any contractual prohibition" against reporters
helping cameramen by carrying gear; (3) that there may
be occasions in pool coverage when, a TV8 cameraman
not being assigned , the reporter may be asked to turn on
the tape recorder; and (4) "as outlined in [Dominic's]
note of last week, any of you may now feel free to oper-
ate the equipment in the ENG editing areas for the pur-
pose of previewing, timing, auditioning, and charting
tape."
Gary Jones testified that all four of these functions had
previously been considered to be within NABET's exclu-
sive jurisdiction. Green agreed with Jones that as to at
least one of these functions-the station premises inter-
1073
view-Respondent had never sought during negotiations
to change the Union's jurisdictional exclusivity.
At 1.30 a.m. on 3 May, the Union struck, carrying
signs reading "unfair labor practice strike." Apparently
the entire bargaining unit joined the job action.
11. Prior to the strike, all 48 or so technicians were as-
signed to the Engineering Department supervised by
Green, except for two or three who were permanently
assigned to the program "P.M. Magazine" (but who re-
mained within the bargaining unit and were ultimately
supervised by Green). On 4 May, Dimino issued a
memorandum to "All Technicians," saying, among other
things, that effective 9 May, "some Technicians will
have their job classifications changed to `ENGEFP
Editor"'; eight named employees "will be assigned to the
News Department"; an identified employee "will be clas-
sified as EFP/Film Editor and will rejoin the Program
Department," along with another technician; a certain
technician would be the "EFPENG Editor in the Pro-
motion Department"; [r]ates of pay and seniority for
Company benefits will not change"; and "Technicians as-
signed to the Engineering Department may be called
upon to edit, and ENGEFP Editors may continue to be
assigned to technical work." Respondent had not pro-
posed any such reclassification or reassignment during
the negotiations.
D. The 12 May Meeting and Subsequent Events
1. Coyte testified, without contradiction, that the
Union was told at the conclusion of the 27 April meeting
that Dimino would not be available for another meeting
until 12 May. He further said that at the end of the 27
April meeting, and at various times thereafter, he con-
tacted the Federal mediator and "made him aware of the
fact that we would like to have meetings, and . .. it was
best to set them up as early as possible."
The parties next met on 12 May, while the strike was
still on. According to the only notes of the meeting,
taken by Controller Flavelle, it was at the outset of the
meeting that Dimino announced that, the Union having
rejected the Company's final offer, there is "nothing on
the table." The parties argued over whether an impasse
had occurred. Coyte accused Dimino of having refused
to "give the Union an opportunity to respond to its pro-
posal" when he left the 27 April meeting. He then stated
that the Union was prepared to give the Company a pro-
posal on wages and jurisdiction and that they were "pre-
pared to honor the progress made by the Company."
Dimino replied that he had given the Union "his final
offer" and that he would never make a "final, final
offer." He went on to say, according to Flavelle's notes,
that "the impasse occured [sic] when he asked the unit to
give up the announce booth and the unit said no. He said
an impasse occured [sic] on wages when the unit said
no." He evidently,did not mention the issue of preview-
ing, etc. 33
a3 Notes taken by Union Negotiator Stahl also show the Company
saying on 12 May
Audio (sic] booth was impassed
Money was impassed
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Coyte told Dimino that the Union was now proposing
a wage scale of "8-7-6 across the board using the lan-
guage of the current contract," and he handed Dimino a
modified jurisdiction proposal. The proposal, inter alia,
reiterated NABET's clause allowing nontechnicians to
preview, etc., tape only "outside the normal NABET
work area."
The 12 May proposal indicates that the Union had
conceded on the subject of weather graphics. The Re-
spondent's final 27 April clause had provided, "Only
weather personnel may operate the weather graphics
system for broadcast purposes, but others [than techni-
cian]34 may operate the weather graphics system for
non-broadcast purposes"; the Union's 12 May proposal
stated that "On-air weather persons may operate weather
graphics when preparing andor presenting their own
weather programs on the air, others may operate the
weather graphics system for non-broadcast purposes." It
would appear that this clause gave the Company all that
it desired in this area for purposes of flexibility.
Other differences were some apparently minor provi-
sions which had existed in the expired contract and
which the Respondent's last proposal had not included.
The 12 May offer did not, however, concede a subject
which had provoked discussion during the bargaining:
the recording of announce booth reels by nonunit em-
ployees. The 12 May minutes state that Dimino asked
Coyte, "Don't you think I have been serious on wages,
booth, and jurisdiction?" Coyte replied that Dimino had
"an obligation to review and respond," and he requested
that they "sit down to see if an agreement could be
reached." At that point, Dimino reiterated that the
Union had "rejected our final proposal and everything is
off the table"; testimony by Coyte, Jones, Wilcox, and
Dimino himself makes it clear that Dimino stated that as
soon as the Union went on strike, the Respondent had
withdrawn its entire contract offer.
Discussion continued, with Coyte saying that if "the
announce booth were the only issue left and we said no,
then I would agree that there is an impasse," but "when
you can trade one issue for another, there is no impasse."
Dimino responded that "there is no issue to be traded."
Apparently, Dimino had concluded that he was no
longer engaging in negotiations; the minutes quote him as
charging that "the Union's goal is to re-open negotia-
tions." He went on to review the fact that he had given
up editing, but the Union had proposed to set up sepa-
rate areas for nonunit members to preview, etc.; Dimino
said that he wanted to use the current NABET editing
booths; Coyte said that to allow nonunit people to come
in and use those booths would keep the technicians from
working. Returning to the subject of the announce
booths, Dimino mentioned that during the negotiations,
the Company had stated that the booth would eventually
become automated anyway, that the Union had said the
booth would not be an issue when the time came to dis-
cuss it, and "Now, you don't want to give up the an-
nouncers booth."
Coyte's answer, according to Flavelle's minutes, was
to disagree with Dimino's stated position that "there is
14 The bracketed words are clearly implied, in context
nothing on the table." He continued by discussing how
the effects of a short strike can be mended, but an ex-
tended strike can easily "get out of control." Flavelle's
notes show that Dimino simply stated, "I gave you my
final offer." After a union caucus of undetermined
length, the 1-1/2-hour session ended.
There is variance between the testimony of Coyte,
Jones, and Wilcox concerning two points. In reciting the
12 May meeting, Coyte stated that in addition to making
a new wage proposal, he had also "proposed to reduce
the edit fee" (a new clause that the Union had earlier
been proposing); neither Jones nor Wilcox, in their ab-
breviated testimony about the 12 May meeting, men-
tioned this. When Wilcox was asked if he recalled any
proposal other than the jurisdictional clause made by the
Union on 12 May, he could not "recall anything specif-
ic. 11
Jones, however, said that at a point which the compa-
ny representatives had walked away from the table, the
Union, in the hope of getting them to return, had in-
structed the mediator to tell the Company that the Union
"would give up its exclusive jurisdiction to record the
announcement [in the announce booth]." Jones seemed to
have a clear recollection of this. He testified that the
Company had talked at the session about an impasse
having been reached over the announce booth, and he
said that the Union "felt, all along, that it was an issue
that seemed to be important to the Company, and we felt
that since it was an important issue, that by offering
them back [sic], hopefully they would come back to the
table and negotiate " Jones further testified that "the me-
diator returned and stated that the Company really
wasn't going to meet any more that day, and that there
was no sense in having any more meeting, that particular
session "
Despite the failure of Coyte and Wilcox to testify as
Jones did on this point, I find, it difficult to disbelieve
Jones' testimony, simply because I cannot imagine him
constructing it out of whole cloth. The problem with the
testimony as evidence of a meaningful move by the
Union is that we do not know what, in fact, the mediator
told the Company-it could be that he had not fully
comprehended the message or had garbled it in transmis-
sion. The proposal to make the announce booth nonex-
clusive did not, it should be noted, reappear in a written
contract draft submitted by the Union in July. Jones was
not asked why this was so.
I credit Coyte's testimony that on 12 May, he offered
to reduce his editing fee proposal. While not corroborat-
ed, neither was it denied (Dimino could not "recall"
whether the Union made "any new proposals" on 12
May).
2. The next meeting was not held until 7 June. Coyte
testified, without objection or subsequent denial, that he
had been informed by the mediator that Dimino was not
available until that day. Dominic's minutes state that
when Dimino was asked to formally respond to the
Union's 12 May jurisdictional proposal, he termed it "to-
tally unacceptable." Coyte asked if Dimino would "care
to modify the Union proposal"; Dimino said no. In
STORER COMMUNICATIONS
answer to a question by Coyte, Dimino made clear that
the Company "had withdrawn all its proposals."
Dimino then read a statement. He began by declaring
that when the unit went on strike, it "additionally aggra-
vated the situation by attempting to hurt the Company
by what we believe to be an illegal secondary boycott;
the harrassment of non-striking personnel; and interfering
with the Company's right to conduct its business. At a
subsequent meeting between this bargaining unit and the
Company, we reiterated to you that because you voted
to reject our contract offer and went on strike, that offer
was withdrawn " He went on to read that he expected
the strikers to return to work "without any preconditions
whatsoever," that the Company "has decided to begin
seeking permanent replacements for those Technicians
who do not return to work by this Friday, June 10,
1983," and that "[t]he terms and conditions of your em-
ployment are spelled out in our Company handbook and
all returning personnel will be paid at the wage level
they were at when they went on strike."
Dimino thereafter said that he would be glad to meet
with the union committee "over a period of time and
continue the negotiations," offering to meet on Thursday
and Friday of the following week. Dominic's notes show
that a rather pointless discussion ensued. According to
Coyte, when he asked about future meetings, Dimino
simply said, "You can arrange those through the Federal
mediator," and then departed.
Coyte twice testified that when Dimino told him that
the returning employees would be working under condi-
tions set by the company policy, his response was,
"What about the status quo? I don't think you can put
them back under company policy." Dimino's reply was
simply, "Company policy."35
3. By letter of 7 June, Dimino wrote to each of the
striking employees, informing them that the hiring of
"permanent replacements" would begin on 10 June; that
they should "insure" their jobs by contacting the station
by 5 p.m. on 9 June; and that "in returning to work, you
do so with no preconditions, and that company policy in
regards [sic] to benefits as set forth in the Employee
Handbook will apply to you" On 9 June, Lolli wrote
Dimino that he had "this day informed all the [strikers]
to return to work unconditionally." In a few days, the
strikers had returned to work.
4. A memorandum from Dominic to Flavelle date 10
June lists "the new job descriptions and new supervisors
for our former NABET Technicians " In a change from
the former system of all the technicians being supervised
by Chief Engineer Green in a single unit and being
known only as "Technicians," the memorandum shows
that 10 employees were newly classified as "Video Tape
Editors" in the news department, their new supervisor
being News Department Director Ballew; 4 employees
classified as video tape editors and 6 as "Control Room
Operators" in the program department, supervised by
Louis Gattozzi; 1 employee classified as a video tape
editor in the promotion department, under Supervisor
as Jones and Wilcox put more insistent words in Coyte's mouth about
the restoration of the status quo, but, since Coyte was the speaker, I will
assume that his version of the colloquy is probably more accurate
1075
Joanne Stern and, under Green in the engineering de-
partment, 5 "Master Control Switchers," 2 "Video Qual-
ity Technicians," 6 "Maintenance Technicians," 11
"VTR/Projector Operators," and 1 "Field Techni-
cian."36 A form in evidence shows that when Gary
Jones returned from the strike, he was reclassified from
his "old" position title of "Technician" in the "Engineer-
ing Department" to a "new" title of "Control Room Op-
erator" in the program department, effective 10 June.
As noted, during the negotiations, Respondent had not
proposed any new classifications or departmental trans-
fers for the unit employees The testimony shows that
the pigeonholing of employees thus effected had signifi-
cant impact upon the jobs of many of them, in terms of
the limited range of work they were permitted to do as
opposed to the broad spectrum they had previously en-
joyed, resulting in both monotony and inability to ac-
quire or hone various work skills. The recent attention
displayed by employers, unions, and scholars with re-
spect to enhancing the interest of employees in their jobs
by expanding the variety of their functions and authority
seems to confirm the self-evident fact that job satisfaction
is a substantial and material factor in employment 37
The record also shows that dissimilar vacation systems
were put into effect in different departments, affecting
the relevant technicians in various ways depending on
the system employed.38 After 7 June, many of the work
functions which had formerly been performed exclusive-
ly by unit technicians were done, as well, by nonunit em-
ployees, including functions which Dimino had never
proposed as subject to such sharing or had indicated
were not functions as to which he wished to modify
NABET's exclusivity.
The returning employees found many other changes in
their terms and conditions of employment. All benefits
and advantages which had accrued to them under the
complicated provisions of the prior expired contract
(e.g., night-shift differential, the premium for failure to
receive a 12-hour rest period between shifts) had disap-
peared; in their place were the few substantive provi-
sions in the Employee Handbook and the whim of "com-
pany policy."
The employee handbook which Dimino announced on
7 June as being applicable to the technicians is a loose-
31 As of the time of the hearing, Green testified, only nine employees
worked under him in the former engineering department, now called the
department of technical services, all of them being in maintenance work
37 While Green at first testified that after June, most of the unit em-
ployees were doing "basically the same job" as before, he later agreed
that the work "possibly somewhat" changed The testimony by the
Union's witnesses indicate that there were extreme changes in the variety
of the work done by some of the employees
38 Jones, for example, testified that as a result of being assigned to the
programming department, a smaller unit, he now enjoys a better vacation
selection preference than prior to the strike, but, on the other hand, is
allowed to take only 2 weeks of vacation at a time instead of all of his
vacation at once He further testified, without contradiction, that compa-
ny seniority, not bargaining unit seniority, is being applied to the former
technicians (Dominic to Flavelle, 10 June memorandum) in the program
department The employee handbook is very general on the subject of
vacations ("Vacation periods are scheduled by management taking into
consideration individual preferences"), and Respondent, even when it
says it applies "Company policy" in such matters, has no real "policy"
which prevents differing treatment of the scattered "former" technicians
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leaf notebook, primarily designed to describe some of the
benefits and rules which apply to Storer's unrepresented
employees, wherever they are located It is, at present,
separated into several sections (aside from some intro-
ductory material): "Personnel Policies"; "Other Bene-
fits"; "Business Ethics"; and various insurance programs,
the pension plan, and the pertinent administration proce-
dure In the introduction, the Company states that since
no handbook can cover every situation, "the Company
reserves the right to interpret its stated policies on a
case-by-case basis and to grant exceptions when the situ-
ation warrants. The objective is fairness to employee and
Company, rather than adherence to technicality."39
The "Personnel Policies" section contains nine pages
of skeletal terms and conditions of employment, estab-
lishing a 3-month probationary period, a 40-hour week,
time-and-one-half for overtime after 8 hours, an "open
door policy, leave of absence provisions, sick leave
(granted on an individual, case-by-case basis"), and so
forth. The five-page "Other Benefits" section provided
for vacations, holidays, tuition reimbursement, a loan
program for purchasing television sets, and a payroll de-
duction plan for Storer stock and U.S. Savings Bond
purchases The handbook makes no specific provision for
wages.
5. In the first week of July, NABET submitted a com-
plete contract proposal to Respondent. The jurisdiction
provision was identical to that submitted by the Union
on 12 May At least on the surface, the wage provision
exceeded the asserted "5 percent per year" submitted by
the Respondent on 21 April, appearing to demand an in-
crease of nearly 8 percent a year, and also apparently in-
creased the Union's 12 May proposal. In a letter of 22
July, Dimino rejected the Union's proposal and enclosed
a new proposal by Respondent.
That 10-page contract represented a shadow of the ex-
pired agreement . It basically contained a management-
rights clause; a grievance and arbitration procedure; a
provision for a 12-month probationary period; provisions
for an 8-hour day and 40-hour week, with overtime to be
paid in accordance with law and "the policy of the Com-
pany"; a layoff clause containing some substantive terms;
a provision on jury duty to which the Union had agreed
during negotiations ; an armed services leave clause; a
fringe benefits clause extending to unit employees the
"holiday, vacation, emergency and sick leave '40 group
insurance, pension or profit-sharing programs, and other
benefits it affords its other employees outlined in the em-
ployee handbook , retaining , however, the unilateral right
to amend, modify or ubstitute such benefits"; a restricted
no strike-no lockout clause; new provisions derived from
the employee handbook on personal appearance, outside
work by employee, and other miscellaneous subjects; a
"Non-Discrimination" clause which once again deleted
the reference to union activity as a protected subject;
"The NABET contract that expired in 1983 expressly adopted the
"group insurance , pension plan , separation pay, and retirement benefits
programs applicable to other employees, and granted the Company the
unilateral right to amend, modify, or terminate such plans "
40 As noted above, the handbook provided at the time that sick leave
would be "granted on an individual, case-by-case basis "
and a blank wage schedule for six denominated classifica-
tions of technician.
6. The next meeting between the parties after 7 June
took place on 13 September. The reasons for the lengthy
delay will be discussed infra.
At the meeting, according to Respondent's minutes,
Dimino "asked that the Union discuss the [company]
proposal with the Company." Burns and Dimino then
made two slightly different statements. Burns said' that
"the strike had created a new condition and ... the new
condition created by the walkout had made the final
offer no longer acceptable from a Company standpoint."
Dimino, on the other hand, is quoted as saying that "he
wanted to make clear that the Company withdrew its
final offer when the Union membership rejected it prior
to the strike." This assertion, however, is inconsistent
with the written announcement from which Dimino read
at the 7 June meeting-"because you voted to reject our
offer and went on strike, that offer was withdrawn" (em-
phasis added). At another point, Burns again appeared to
confirm this relationship ("when the Union rejected the
Company's final offer and went on strike, the Company
had taken all proposals off the table").
After stating that there was but a blank sheet of paper
on the table, Dimino said: "The only thing that is in
place is that you are the bargaining agent." He went on
to say that the Company stood ready to negotiate a new
agreement and "in the meantime the Company will run
the Station `As it sees fit."'
McKnight asked when the Respondent had begun op-
erating the station from scratch, and Dimino answered,
"When the Union went on strike." Thereafter, McKnight
began to ask a series of questions pertaining to benefits
and working conditions, and the company representa-
tives eventually walked out.
7. The record shows that the parties met on two more
occasions, 19 October and 9 November Those meetings
will be discussed below, in connection with the allega-
tion of an unlawful refusal to furnish information.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Refusal to Permit Posting of Union Minutes
Taking up the issues more or less chronologically, the
complaint alleges that since on or about 25 March, "Re-
spondent has prohibited the posting of Union minutes of
collective-bargaining sessions , while permitting the post-
ing of Respondent' s minutes of said sessions on employee
bulletin boards [having] permitted employees to post per-
sonal notices on the bulletin boards" in the past.
There were three bulletin boards in the station: in the
engineering department (where the technicians congre-
gated), in the news department, and in the lunchroom.
The record shows that in February, soon after the meet-
ings started, Respondent began to post on the bulletin
boards in the newsroom and the lunchroom copies of its
minutes; Dimino testified that he did so because he
thought the previous sessions had been "counter-produc-
tive," and he was attempting to convey this notion to the
other bargaining units in the event of a strike.
STORER COMMUNICATIONS
The union committee, believing that Respondent's
minutes were slanted and incomplete , hired its own ste-
nographer and, on 25 March , sought permission from
Respondent to post its own transcripts next to Respond-
ent's minutes Respondent denied the request 41
The Board's rule on this point is simply stated. An em-
ployer need not make its bulletin boards available to a
union, but if it allows other organizations or employees
to routinely use the boards, it commits a discriminatory
act when, absent a legitimate explanation, it refuses that
same privilege to the union . Gertz, 262 NLRB 985 fn 3
(1982).
Station Manager Dominic testified that in the past, it
had been common practice for employees to post person-
al notices on company bulletin boards and for NABET,
without asking permission , to post on the lunchroom and
newsroom boards routine notices of the Union's activi-
ties; they "were never moved" by the Company Gary
Jones testified that he has seen business cards; advertising
posters, personal notices about intrastation football
games, and AFTRA notices, on the boards. Coyte said
that over the years he has observed on the lunchroom
board employee messages (selling items such as Girl
Scout cookies; advertising carpools) and notices by
AFTRA, IATSE, and NABET. Green confirmed the
foregoing testimony, although he said that when he
would see union notices on the lunchroom board, he
would "usually take them down" as being inappropriate.
While this latter statement conflicts with that of Do-
minic, at least with respect to the lunchroom' board, it
also means that Green did not "always" take such no-
tices down, and then only in the lunchroom.
There was no explanation offered by Respondent for
excepting NABET's minutes from the general privilege
conferred upon the other unions and employees. On the
facts found, I must conclude that Respondent violated
the Act by discriminating against the Union in this con-
text.
B The Ed Guild Incident
The complaint charges that in early April, Respond-
ent's "agent and supervisor" Ed Guild "indicated to an
employee that the Union's negotiations with Respondent
would be futile."
Rondlay Holmes, a TV8 technician for 9 years, testi-
fied that in a conversation in March or April with Direc-
tor of Maintenance Ed Guild about the Union, a topic
which came up "quite often" between the two, Guild
was saying that the Company would like to pay lower
wages to some employees who were not pulling their
weight. When Holmes said that the Union would not let
the Company do that, Guild replied, "The Company is
going to fuck the union" (and then gave a "dirty
laugh"). They exchanged a few more words and the con-
versation ended.
41 Although Respondent asserts on brief that the evidence does not
show that the Company denied the Union use of the engineering depart-
ment board , the company minutes for 25 March show that Burns clearly
proscribed the use of any bulletin board for the designated purpose by the
Union
1077
On cross-examination , Holmes said that the statement
"shook [him] up" because he "thought it was possible
that [Guild] may have inside information," and he "rea-
sonably believed at the time [that Guild] was telling
[him] the truth about the company's intention or compa-
ny policy." However, Holmes also admitted that in
speaking with company counsel in Dominic's office in
June 1984, he said he "knew at the time Ed Guild made
the statement . . . that Ed Guild had neither the knowl-
edge nor the authority to make such a statement. On re-
cross, Holmes explained this contradiction by saying that
at the time Guild made the statement, Holmes had be-
lieved that Guild might have access to special knowl-
edge of the Company's position, but when he spoke with
company counsel more than a year later, he had reevalu-
ated his opinion of Guild's position.
Guild did not "recall" that he had engaged in any
such conversation with Holmes. Despite the change in
Holmes' testimony with regard to Guild's perceived au-
thority, I found Holmes to be a much more impressive
figure than Guild, and I do not believe for a moment
that Holmes simply fabricated this conversation.42
I also believe that the statement made by Guild had a
reasonable tendency to coerce Holmes. While it had no
well-defined meaning, it clearly implies that the Compa-
ny intended to hurt, weaken, or, at the least, not deal in
good faith with the Union. Such an expression of senti-
ment could foreseeably chill an employee's inclination to
lend support to the Union.
The remaining question is whether Guild 's statement is
fairly attributable to the Respondent. At the hearing,
counsel for Respondent conceded that Guild is a "super-
visor" within the meaning of Section 2(11) of the Act,
but denied that he was Respondent's agent for purposes
of making the alleged statement.43 The Board has
always imputed to their employers coercive remarks by
statutory supervisors, without further inquiry into their
agency status. E.g., Jays Foods, 228 NLRB 423 (1977),
enfd. on this point 573 F.2d 438 (7th Cir. 1978).
But even application of the more searching analysis
found appropriate by the Court of Appeals for the Third
Circuit in NLRB v. National Apartment Leasing Co., 726
F.2d 967 (1984), remanding 263 NLRB 1544 (1982) '44
would, I believe, support a conclusion that Guild was
"reasonably viewed by his listening employee colleagues
as speaking on behalf of management." 726 F.2d at 971.
The station organizational chart for February 1983
shows that Guild was placed directly under Green, the
head of the engineering department, and directly above
42 Although Guild testified that he spoke to Holmes in his office or
elsewhere everyday, the only subjects that they addressed, Guild said,
were equipment needs , the personal computers that Holmes was teaching
him to operate, and training schools But on later examination, he con-
ceded having discussed "the union or negotiations" with Holmes "only in
general terms " Holmes believably said that Guild was rabid on the sub-
ject of the Union
42 Counsel did not specify which of the statutory characteristics of su-
pervisory status qualified Guild as a "supervisor " His job description
states, among other things, that he exercises "direct supervision of techni-
cians performing maintenance "
44 On remand, the Board accepted the court's determination as the
"law of the case," but did not otherwise adopt the change in approach
suggested by the Third Circuit 272 NLRB 1097
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the technicians. Despite his evident testimonial efforts to
minimize his responsibilities , Guild admitted that he had
an office next to Green 's (separated by a secretary); that
he assigned overtime "maybe once or twice a week,"
consulting Green if he was available; that he attended
the weekly department head meetings about once every
other month , when Green was not available;45 that he
scheduled employees for vacations according to a deter-
mined procedure ; that he, together with Green , attended
grievance meetings , but only as an observer; that Green
had asked his opinion about hiring new employees; that
he had, by himself, interviewed three applicants for em-
ployment, although there were no jobs open for them at
the time ; and that he "concurred with the choice" of
promoting an employee to technical supervisor.
Given this array of apparent managerial responsibil-
ities, I would conclude (even though Board law does not
presently require such a separate finding) that employees
would generally tend to regard Guild as a reasonably im-
portant member of the hierarchy whose stated opinion of
company intention could be taken as authoritative. In so
concluding , I draw an adverse inference from the Com-
pany's refusal to comply with a subpoena requesting
plainly relevant information as to Guild 's salary. Jays
Foods, supra, 228 NLRB at 427.
It follows that the statement made to Holmes in March
or April was, as alleged, violative of Section 8(a)(1).46
C. The Alleged Insistence on Bargaining in a
Certain Mode
The complaint alleges that "[o]n or about April 20,
1983 , during a collective bargaining session, Respondent
refused to discuss non jurisdictional issues until all juris-
dictional issues had been resolved."
At the outset of negotiations, the parties had agreed to
engage in so-called package bargaining , the usual proce-
dure under which "tentative agreements" on separate
topics would be of no effect, until a total "package" had
been agreed upon. Starting in January, the bargainers
had talked at length and had entered into tentative agree-
ments on a number of subjects, but they concerned, as
Green testified, the "small" issues where "resolution was
possible."
Nonetheless, from the beginning of bargaining , the dis-
cussion about Respondent's jurisdictional proposal indi-
cated that the parties fully understood at least some as-
pects of its general import . Frequent references were
made by both sides to the asserted consequences of the
proposal-flexibility and economy of operations on the
one side, loss of jobs on the other-and the Union made
several requests that the Respondent specify what it need
in terms of jurisdictional "relief."
It was not, however, until 19 April, when the Union
produced (at Dimino's suggestion) its list of foreseeable
jurisdictional losses arising from a literal application of
the Respondent 's new language, that the picture of what
the Respondent was and was not actually interested in
45 Holmes had been told that Guild attended such meetings.
4s I have examined Bardcor Corp., 270 NLRB 1083 (1984), relied on by
Respondent. It seems to be distinguishable from the present case in at
least three principal respects.
became clear . It was at that point that Coyle reminded
Dimino that there were many nonjurisdictional items still
awaiting resolution , including wages, the Company's pro-
posal to jettison the union -security clause , and so forth.
Thereafter, Dimino revised his "editing " proposal so as
to preserve NABET exclusivity, an event which prob-
ably made ever more relevant to Coyte the Respondent's
attitude toward the outstanding nonjurisdictional sub-
jects.
On 20 April, Coyte told Respondent that the Union
was willing to talk about relief in various jurisdictional
areas, but (according to the union minutes) until the
Union reviewed the proposals and until "we see a com-
prehensive wage proposal from the Company and until
we can have a settlement on the.other outstanding issues,
there is no way we can accept a settlement on the juris-
diction issue ." As of 20 April, Respondent had made no
realistic wage proposal.
Dimino drew the discussion back to jurisdiction, but
eventually Coyle stated that "there is no way we are
prepared to settle on jurisdiction unless we address the
other issues." When Dimino nevertheless asked if they
could feel "comfortable" about continuing to discuss ju-
risdiction, Coyte said they could not, explaining that the
"impact of the other proposals has a direct effect on the
outcome of these decisions."
They then began to attempt to enumerate the jurisdic-
tional problems. After a long speech by Coyte, Dimino
said , "We are prepared to negotiate and look at the
Union demands and into the other items outstanding. We
can probably find movement on some of these items, but
I can 't discuss them unless jurisdiction is resolved ." Coyte
then asked if Dimino was "declaring an impasse over one
issue? Until we settle jurisdiction?," and Dimino replied
that he had "requested that we bargain over the major
issue." The minutes then show that, with Dimino saying,
"We have to get jurisdiction out of the way," the bar-
gainers resumed discussion of jurisdictional matters.
Not long thereafter, however, Coyte expressed his un-
happiness over the fact "that Dimino had several times in-
dicated that "as far as he's concerned, it's essential that
jurisdiction be resolved before we can go on ." Attorney
Burns answered that "to the extent we can develop an
understanding on jurisdiction, it would be helpful";
Coyle said that he "understood." Coyte then picked up
the subject of jurisdiction and begun to discuss it.
After lunch and then a caucus, Dimino declared his
belief that they had reached an impasse , and he distribut-
ed letters declaring that the contract would be terminat-
ed after 48 hours . Coyte replied that there were "numer-
ous issues on the table that had not been resolved," and
that he did not believe that an impasse had been reached.
On the following day, 21 April, at a meeting which
lasted for 8 minutes, Respondent distributed its first
"final" offer, making its only meaningful wage offer (as-
sertedly "a 5 percent increase per year"); and restoring,
without prior discussion , a number of the topics (such as
union security and night differential) about which the
Union had been concerned.
STORER COMMUNICATIONS
As earlier described, the parties met rather briefly
again on 27 April, with the Respondent making a "modi-
fied final offer," and the strike began on 3 May.
Collective bargaining requires a willingness to engage
in comprehensive discussion of all proposals pertaining
to terms and conditions of employment, in the hope that
the full disclosure of information, the reasoned exposure
of weaknesses or strengths in the supposed bargaining
positions, and the perception of mutual advantage to be
derived from the compromise of one item with another,
will result in a pact putting to rest the shape of the in-
dustrial environment. "Bargaining does not take place in
isolation and a proposal on one point serves as leverage
for positions in other areas." Korn Inc. v. NLRB, 389
F.2d 117, 121 (4th Cir. 1967).
I do not doubt that if one party takes the unyielding
position that a certain bargaining subject must be settled
before there can be discussion of other areas, a violation
of Section 8(a)(5) would be made out. See Patrick & Co.,
248 NLRB 390, 393 (1980)." On the other hand, it is
obvious that in negotiations, one of the parties must oc-
casionally take the lead in suggesting the agenda. Since
consensus on what to discuss may not always be easily
achieved, it would only be sensible that one of them be
permitted at least temporarily to demand, insist upon, or
"impose" an order of discussion. As long as this insist-
ence is reasonably confined in time and not maintained to
the point at which the continuance of negotiations is
threatened, there is no serious harm in such an approach.
Here, all other things being equal, it would not be
senseless for Respondent to urge that the parties, having
just identified on 19 April the specific subjects of juris-
dictional dispute, to explore and attempt to settle that
subject first. It was equally understandable that the
Union might think it useful at that juncture to turn to
nonjurisdictional matters, both those previously discussed
and some never discussed, to ascertain where the Re-
spondent stood on those items in the light of the new ju-
risdictional development.
As pointed out, Dimino 's language more than once
was demanding rather than simply inducing. "I can't dis-
cuss them unless jurisdiction is resolved", "we have to
get jurisdiction out of the way." On the other hand, the
record indicates that despite Dimino's stringent language,
he also sometimes seemingly moderated his position from
insistence to invitation, and Coyte, in turn, appeared to
soften his opposition into acquiescence. Thus, after
Dimino had made the "I can't discuss" statement just
quoted, he downshifted into saying that he had merely
"requested" that they bargain about jurisdiction, and dis-
cussion on that topic resumed. When Coyte later com-
plained about Dimino's earlier indications that jurisdic-
tion must be first resolved, Burns replied that the devel-
47 Cal-Pacific Furniture Mfg Co, 228 NLRB 1337 ( 1977), enf denied
580 F 2d 942 (9th Cir 1978), cited by counsel for the General Counsel,
differed in that the employer there refused to bargain about other sub-
jects until the union accepted its proposal on one of them The other case
cited by the General Counsel , Parkview Nursing Center II Corp, 260
NLRB 243 ( 1982), also seems inapposite , involving, as it does, a context
of overall bad faith Respondent 's citation to Purity Biscuit Co , 13 NLRB
917 (1939), which deemed not unreasonable the employer's insistence on
disposing of the only issue which had led to an impasse and strike, is I
think , also factually distinguishable
1079
opment of an understanding on jurisdiction would be
"helpful", saying "I understand," Coyte himself then
went on to renew the jurisdictional discussion which had
been in process.
But I do not believe that the events of 20 April can be
viewed in vacuo. The minutes makes clear that Dimino
continually pressed on that day to resolve the subject of
jurisdiction, and Coyte, while resisting, did not make a
Federal case out of it. One must suppose that Coyte was
attempting to be diplomatic, on the misbegotten assump-
tion that after the parties had discussed jurisdiction some
more, as Dimino wished to do, the Union would be
given the opportunity to take up wages and the other
nonjurisdictional matters that lay untouched. But the fact
is that events did not fall out that way-no nonjurisdic-
tional discussion took place at the following 8-minute
meeting on 21 April, and none on 27 April.
It is reasonable to believe that, on 20 April, Dimino's
mindset on the jurisdiction issues was that the parties
would never get, to other subjects unless jurisdiction was
first settled, and blinded him to the fact that union satis-
faction with the Respondent's position on nonjurisdic-
tional matters might go a long way toward resolving the
jurisdictional problems. Dimino's refusal to project
beyond jurisdiction' to the potential value of discussing
other issues might be 'characterized by a reasonable by-
stander as an unwarranted obstacle to a negotiated settle-
ment, especially when, as retrospect tells us Dimino had
no intention on 20 Apiil of moving into nonjurisdictional
discussion after 20 April
In this context, then, I conclude that Respondent vio-
lated Section 8(a)(5) by its persistent demand on 20 April
to limit the bargaining to jurisdictional issues.48
D. The Bypassing Allegations
The complaint asserts that Respondent, in violation of
Section 8(a)(5), "bypassed the Union and dealt directly
with its employees in the unit" by virtue of three sepa-
rate actions on 29 April and 2 May.
A. The record shows that, on 29 April, Station Man-
ager Dominic distributed to "All NABET Members" a
memorandum which stated in part that "if the Company
does not receive an answer from NABET to its contract
offer by 5 p.m. Tuesday, May 3rd, the pay raise retroac-
tivity provision of the offer will cease to exist at that
time." Although the record shows that the parties had
reached an understanding during bargaining that any pay
raise ultimately adopted would be made retroactive to' l
April, this specific 3 May termination date for retroactiv-
ity had not been previously addressed to or discussed
with the Union
49 The complaint contains a separate allegation that "[oln or about
April 27, 1983, Respondent refused to consider further Union counterpro-'
posals on wages and other terms and conditions of employment " On
brief, General Counsel melds that allegation with the one just discussed,
instead of treating it as a separate issue, but seems to lose sight of the 27
April allegation in the course of discussing the subject of impasse The
evidence does indicate, however, that the Respondent's conduct on 27
April was marked by a continuation of its disinterest, first clearly ex-
pressed on 20 April, in discussing wages and other nonjurisdictional mat-
ters, however, I see no advantage to be gained by basing a separate dupli-
cative finding on the events of that date
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"Direct dealing" with represented employees (some-
times known as "bypassing the union ") violates Section
8(a)(5). As the law has evolved, direct dealing may be
something less than actual negotiation with employees
(coupled, of course, with a prior failure to bargain with
the affected union about the matter or to obtain its per-
mission to treat directly with -unit employees). It has
been held sufficient that an employer simply notifies the
employees of a change in working conditions without
prior notification to or discussion with the union . Europe-
an Parts Exchange , 270 NLRB 1244, 1247 ( 1984); Krolicki
Wholesale Meats, 270 NLRB 941, 944 (1984); Hiney Print-
ing Ca, 262 NLRB 157 (1982). As recently phrased by
the Board, the test is whether the direct communications
"contain proposals or ideas which were not first submit-
ted to the Union at the bargaining table." United Tech-
nologies Corp., 274 NLRB 1069, 1074 ( 1985). .
On the other hand, the law is not violated when an
employer unilaterally informs employees of the status of
negotiations , explains to employees proposals made to
the union, or attempts to "clarify any misunderstanding"
the employees might have concerning the proposals.
Proctor & Gamble Mfg. Ca, 160 NLRB 334, 340 (1966),
and Stokely- Van Camp, 186 NLRB 440, 449 (1970), both
approved in United Technologies Corp., supra.
Given the state of the law, it would seem that the set-
ting of a date certain after which the employees, even if
they accepted the Respondent's final offer , would no
longer receive wage increases retroactive to 1 April, cer-
tainly constituted a change in the proposed benefits of
the employees , and thus qualified as a topic which the
Respondent could not , for the first time, take up directly
with its employees . 49 It is the sort of issue which might
have benefitted from negotiation with the Union (e.g., it
might have been impossible to arrange a union meeting
by 3 May). I find , accordingly , that Respondent violated
the Act as alleged.
B. The complaint next alleges that on or about 29
April, Respondent unlawfully bypassed the Union "by
clarifying its final wage offer in a notice to employees,
such clarification not having been provided to the
Union." As set out above , on 29 April, Dominic distrib-
uted to "All NABET Members" a memorandum with
three examples to "clarify [the] misconception," gleaned
from conversations with employees, that some members
as On brief, Respondent argues that because none of the union wit-
nesses testified concerning the absence of a reference to retroactivity in
the 21 and 27 April summaries presented to the Union by Respondent,
and "the Union never mentioned [the retroactivity provision] at any time
dung negotiations," the parties never really considered it an issue in ne-
gotiations and (apparently) it did not amount to a mandatory subject of
bargaining . Respondent itself, however , brought out on examination of
Union negotiator Stahl that the 5 -percent pay raise offered by Dimino at
the 21 April meeting "was to be retroactive to the first of April." The
least this means is that Dimino proposed such retroactivity and the Union
acquiesced in the proposal . Dominic 's memorandum - to the NABET unit
referred, as shown , to the "pay raise retroactivity provision of the offer"
(emphasis added).
Respondent's legal argument as to two of the three allegations grouped
together here is premised on the theory that "at least by April 27." the
parties had reached impasse, thus presumably permitting the Respondent
to engage in certain conduct which might otherwise have been impermis-
sible . As I later discuss , impasse could not have occurred any sooner than
late in the evening of 2 May, when the union membership rejected Re-
spondent's 27 April proposal.
of the bargaining unit might have to wait more than a
year from their last increases in order to get raises. ,
The Respondent contends that the clarification was in
fact provided first to the Union, by virtue of a conversa-
tion earlier on 29 April in which Respondent's officials
discussed the same three examples with Union President
Lolli. Lolli denied at the hearing that such a conversa-
tion had occurred.
I need not consider that controversy at this point,
however, because the memorandum appears to be the
sort of "clarifying" communication sanctioned by the
Board as lawful. Stokely-Van Camp, supra . I therefore
recommend dismissal of this allegation.
C. The final bypassing claim relates to Respondent, on
2 May, "advising employees directly of operational
changes it intended to implemented [sic] absent accept-
ance of its final offer, such changes not having been an-
nounced to the Union."
The document to which the allegation is addressed is
apparently the 2 May memorandum to "The News Staff'
from News Director Ballew, which was posted on the
newsroom bulletin board, notifying the news staff (which
officially did not contain technicians) of four `operation-
al changes that will be effective immediately." 50 These
related to (a) the new obligation of the cameraman to
operate both the camera and the tape recorder during
interviews done on studio premises (formerly, the tape
recorder had been operated only by a technician in
studio interviews , and the testimony of Chief Engineer
Green is that Respondent had not even intended to
change that aspect of the Union's exclusive jurisdiction
during the negotiations); (b) a request to reporters to
assist cameramen in carrying equipment; (c) the possibili-
ty that, from time to time , reporter assigned to pool cov-
erage might be asked to turn on the video tape recorder;
and (d) a reiteration of the instruction given to the news
staff the previous week that its members were free to use
the equipment in the editing areas for previewing, etc.
Although the complaint allegation identifies the grava-
men of this charge as "bypass[ing] the Union and
deal[ing] directly with its employees in the unit," on
brief the General Counsel analyzes the communication
only in terms of unilateral action andor postimpasse con-
duct . That limitation presumably stems from a realization
that the 2 May memorandum was not directed to the em-
ployees "in the unit" material here , but rather to the
news staff.
It can nonetheless be argued that the allegation may be
construed as comprehending the concept of unilateral
action. Respondent 's analysis of this allegation on brief
subsumes the relevance of the history of bargaining in
order to validate the memorandum.5 t
so "[I]mmediately" indicates that the allegation errs in referring to
changes that Respondent "intended to implemented [sic] absent accept-
ance of its final offer." "Immediately" means "immediately."
51 At the end of the hearing , when counsel for the General Counsel
moved that "the complaint be amended to conform to proof at the hear-
ing," Respondent received assurance that the reference was not to "sub-
stantive" changes or "adding new allegations ," but rather only to "same
variance in minor respects not affecting substance," "typographical
errors, and an error in date, or something like that ." A month after re-
Continued
STORER COMMUNICATIONS
Given my conclusion that no impasse existed on' 2
May, when Ballew issued his memorandum to the news
staff making "effective immediately " three changes in the
Union 's theretofore exclusive jurisdiction , 52 I conclude
that Respondent violated Section 8(a)(5) on 2 May by
unilaterally , and before impasse, changing Respondent's
rules with respect to union jurisdiction over operation of
tape recorders during on -premises interviews , in pool
coverage , and in carrying equipment.
E The Withdrawal of Respondent 's Offer on 3 May
The complaint alleges, "As of May 3, 1983, when the
union voted to strike , Respondent withdrew its final
offer and all its contract proposals because the Union
voted to strike ." The underlying theory here is that the
withdrawal of the proposals constituted a reprisal for
striking and thereby violated Section 8(a)(5) and (1).
The evidence shows that on 12 May, at the first meet-
ing between the parties after the strike commenced on 3
May, Dimino announced that "there is nothing on the
table," meaning that Respondent had rescinded its last
contract offer . Although Controller Flavelle's notes do
not so show , Coyte, Wilcox, and Jones all attributed to
Dimino the statement that the proposals had disappeared
on the day the Union had gone on strike.
At the hearing, Dimino confirmed that in fact he had
withdrawn the proposals when the strike began. Al-
though at first he began to testify that the Union could
have accepted the offer even as late as 12 May, the ra-
tionale of his run -on testimony belies any such conten-
tion - "But once they've gone on strike , I felt it was really
important that we take that offer off the table because
that was an offer made on the condition that they didn't
go on strike. I gave them that offer so they wouldn't
strike. "63
That this was indeed the sequence of events is further
supported by Respondent 's minutes for the 7 June meet-
ing, quoting Dimino as reading from a statement, "[At
the 12 May meeting], we reiterated to you that because
you voted to reject our offer and went on strike, that the
offer was withdrawn ." Additional support for the fact
that the strike triggered the withdrawal is found in Re-
spondent 's minutes of the 13 September meeting, at
which attorney Burns is quoted as follows: " [W]hen the
Union rejected the Company 's final offer and went on strike
the Company had taken all proposals off the table and
ceipt of the General Counsel's brief, Respondent filed a motion to strike
accompanied by a 17-page brief in which it charged that an argument
made in General Counsel's brief was based on a new theory unsupported
by the complaint allegations as several times amended No reference was
made by the motion to General Counsel's argument on the point here
under consideration as being similarly unfounded, from which I infer that
Respondent agrees that General Counsel's contention here has not
strayed from the limits of the complaint I shall therefore consider this
allegation in the terms in which General Counsel has posed the argu-
ment
52 Gary Jones testified without contradiction that all four items in the
2 May memo had been exclusive NABET work The fourth item-the
freedom of the news staff to preview, etc , tape-had, however, already
been expressly announced to "The Staff" in a memorandum from Green
dated 27 April, to take effect on 29 April, and therefore was nothing
new
53 There is no evidence that Dimino had communicated to the Union
that the offer would be withdrawn if the employees struck
1081
made a new proposal that NABET members return to
work unconditionally."54
The Respondent argues that cases such as Hickin-
botham Bros., 254 NLRB 96, 102-103 (1981), Reliable
Tool & Machine Co., 268 NLRB 101 (1983), and Barry-
Wehmiller Co., 271 NLRB 471 (1984), apply here to le-
gitimize the withdrawal of the proposals. Generally
speaking, they hold that an employer may reduce its pro-
posals during or after a strike because of the economic
leverage obtained from the fact that it has "successfully
weathered the strike" (Barry-Wehmlller, supra) or has
"specific reasons for changes in its proposals" (Barry-
Wehmiller, supra, Hickinbotham Bros., supra). Here, Re-
spondent contends on brief, "The Company took its final
and best offer off the table because it was successfully
weathering the strike and because its final proposals rep-
resented concessions made in order to avoid a strike "
It is difficult to see how Respondent could have per-
ceived that it was successfully weathering the strike as of
3 May, the very first day of the strike, even as the
AFTRA and IATSE unions were honoring NABET's
picket line. Furthermore, the claim that the final propos-
als "represented concessions made in order to avoid a
strike" is undoubtedly true to some extent in every in-
stance of bargaining in which an employer modifies its
proposals favorably'to the union in making a final offer.
But in this case the Union was never told that it would
forfeit the entire offer if it struck, and so such a forfeit-
ure could hardly be considered a known risk of a walk-
out.55
As I read the cases cited above, the Board requires an
employer to furnish some acceptable justification for ad-
justing, diminishing, or withdrawing its contract propos-
als during or after a strike; in the absence of such justifi-
cation, the Board will infer that the withdrawal was mo-
tivated by an intent to engage in retaliation against the
protected activity of the strike andor to obstruct the bar-
gaining process. I do not find any such justification in
Respondent's testimony As indicated, the withdrawal on
3 May occurred long before Respondent could have
made a valid judgment that it could "successfully weath-
er" the strike 56 Dimino's testimony that he withdrew
the offer because "it was made on condition that they
didn't go on strike" may reflect some secret mental res-
ervation, but such a "condition" was never communicat-
ed to the Union.
In view of the fact that the viability of the offer had
never been expressly conditioned on the employees re-
fraining from a strike, it seems to me inconsistent with
the obligations of statutory good-faith bargaining to hold
54 The latter part of the sentence obviously refers to the 7 June meet-
ing
55 The Respondent also points out that the parties had agreed from the
outset that "all tentative agreements could be withdrawn at any time
until they agreed on a total package " That understanding does not seem
relevant to the instant issue, which relates to Respondent's withdrawal of
all its proposals Moreover, as the Board pointed out in Central Missouri
Electric Cooperative, 222 NLRB 1037, 1042 (1976), and confirmed in Reli-
able Tools, the right to withdraw tentative proposal is not absolute, in
that the circumstances may be such as to give rise to an inference of an
intent to obstruct bargaining
55 It is noted that while Respondent's brief asserts this ,justification, no
Respondent witness testified to it
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that such an undisclosed precondition, which, if known,
might otherwise have influenced the Union's choice of
action, can be relied upon as a justification for the with-
drawal. Furthermore, an uncommunicated decision to
withdraw the proposals simply because the employees
struck is so potentially disproportionate to the event
(suppose, for example, that the strike had lasted only a
day or two) that it fairly gives rise to the inference that
the erection was merely the product of a desire to retali-
ate against the employees for engaging in the strike,
which was, of course, protected activity under the Act. I
therefore find the violation as alleged.
My conclusion on this point, incidentally, would be no
different even if the parties were at impasse on 3 May.
The significance of impasse is twofold: it permits an em-
ployer to put into effect, without further negotiation,
changes in working conditions comprehended by his
preimpasse proposals; and it allows either party to refuse
to continue to engage in negotiations (in both cases, of
course, the privilege is lost if the impasse, "merely a mo-
mentary eddy in the flow of collective bargaining," Hi-
Way Billboards, 206 NLRB 22, 23 (1973), is broken). The
fact of impasse does not authorize an employer to take
any other liberties with its statutory obligation to contin-
ue "making a sincere effort to reach agreement." Rescar,
Inc., 274 NLRB 1 (1985).
F. The Alleged Unlawful Unilateral Modifications
The amended complaint asserts that since on or about
10 June, the Respondent has modified various terms and
conditions of employment without affording the Union
its statutory right to bargain The alleged unilateral
changes include elimination of the Union 's exclusive ju-
risdiction over various work functions , "including but
not limited to" 6 named functions ; the transfer of unit
employees from the engineering department to other de-
partments , the grant of a 3-percent wage increase to unit
employees in July; the contracting out of the installation
and maintenance of company -owned two-way radios in
October ; and the discontinuance of 11 other existing ben-
efits and practices (e.g, the requirement imposed by the
expired contract that Respondent pay penalties to unit
employees for failing to schedule 12-hour rest periods be-
tween shifts).
The Respondent offers two theories which assertedly
sanction its conduct in making these changes . The first
theory is that, by at least 27 April, the parties had
reached an impasse in bargaining which authorized Re-
spondent , without more , to unilaterally put into effect all
terms and conditions contained in the proposals it had of-
fered prior to the impasse. The second theory is that,
even if impasse had not been reached , the Union had, by
its conduct in April and again in June , consciously
waived any statutory right to bargain about the changes
which went into effect in those months
1. Impasse
a. "Impasse" is a way of describing that point in col-
lective bargaining at which , at least until further devel-
opments should occur, the parties have bargained in
good faith in an effort to agree to a set of terms and con-
ditions of employment, but have been unable to strike an
accord. When that point is reached, as noted above, two
practical consequences ensue: (1) an employer may put
into effect, without further discussion with the union,
terms earlier offered by it during the bargaining; and (2)
either party may, for the present, refuse to schedule bar-
gaining sessions.
The authoritative definition of impasse is that given by
the Board in Taft Broadcasting Co., 163 NLRB 475, 478
(1967): an impasse exists when "good-faith negotiations
have exhausted the prospects of concluding an agree-
ment." The Taft case has also been quoted, probably in
every impasse case issued by the Board since 1967, for its
summary of some of the actors relevant to the determi-
nation of the existence of an impasse (at 478):
Whether a bargaining impasse exists is a matter
of judgment The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations, are all relevant factors to be considered in
deciding whether an impasse in bargaining exist-
ed.5 7
Before undertaking an analysis of the Taft and other
relevant factors, two points should be made. The record
shows that the parties fully understood that the union
bargaining committee was not authorized to enter into a
contract, and that the power to do so resided in the
membership.58 That being the case, impasse could not
have been reached in this case until the NABET mem-
bership had rejected the Company's "modified final"
offer which rejection took place at the 2 May evening
meeting. Mary Ann's Bakery, 267 NLRB 992, 994 (1983),
and cases cited. Accordingly, those changes in working
conditions which occurred prior to the 2 May rejection
constituted violations of Section 8(a)(5), even if it were
found that impasse was legally effected by the unit's de-
cision to reject the Company's "modified final offer" on
that evening.
59 There seems to be some question about the relevant viewpoint in ap-
praising the affirmative defense of impasse In Taft, for example, the
Board applied its own judgment (we are unable to conclude that a con-
tinuation would have culminated in a bargaining agreement", "we
find that an impasse had occurred") In Saunders House v NLRB,
719 F 2d 683, 688 (1983), the Court of Appeals for the Third Circuit took
the same approach, saying that impasse was a question of fact for the
Board But in Alsey Refractories Co, 215 NLRB 785 fn 1 (1974), while
citing Taft, the Board stated the "correct standard" to be whether "the
Respondent was warranted in assuming that further bargaining
would have been futile" Perhaps the most recent statement of the
Board's approach is Hamady Bros Food Markets, 275 NLRB 1335, 1337
(1985), "[W]e must decide whether the parties bargained to an impasse
We find that these factors support a finding that the parties were at
impasse " But almost as recently, in SGS Control Services, 275 NLRB 984
(1958), the Board applied the Alsey Refractories test The latter seems to
me to be the most fitting standard
58 The Company's minutes show that Local President Lolli made such
a statement at the 2 March session At the 21 April session, Dimino
"asked the union bargaining committee to bring the Company's final offer
before the entire membership " Other evidence supports the understand-
ing here found
STORER COMMUNICATIONS
Thus, Respondent violated Section 8(a)(5) on 29 April
when, according to Green's 27 April memoranda to the
technicians and "The Staff," a new rule took effect al-
lowing "any TV8 employee . . . to preview, audition,
time or chart ENGEFP tapes." The same is true of three
of the operational changes made "effective immediately"
by the directive from Ballew to the news staff on 2
May. 59
This conclusion leads to the second point The Board
has held three times recently that events occurring subse-
quent to the date of the allegedly unlawful implementa-
tion are not probative of the question of whether impasse
existed at the time for implementation. SGS Control Serv-
ices, supra, Dependable Maintenance Co., 274 NLRB 216
(1985), Henry Miller Spring Co., 273 NLRB 472 (1984).
Presumably, the rationale is that the conduct of the par-
ties will tend to be affected by the implementation (and
sometimes by the prompt filing of an unfair labor prac-
tice charge). Since I find that the first unlawful imple-
mentation occurred on 29 April, the issue of whether an
impasse existed should, by virtue of the foregoing princi-
ple, be focused solely on events occurring no later than
that date.
Turning to the considerations outlined in Taft, it does
not appear that "the bargaining history" means much
here. Dimino was a newcomer to the Cleveland station
and he himself proclaimed that his approach to bargain-
ing varied from that of his predecessors.
As for the "good faith of the parties in negotiations," I
cannot say that either party was not desirous of ultimate-
ly reaching an agreement during the main body of the
talks, which is what the Board appears to mean by this
factor (see Taft at 478), although it also is clear that once
the Union went on strike, Dimino appeared to have had
no interest whatever in coming to agreement with the
Union.
Aside from the Union's use of inappropriate language,
earlier mentioned, Respondent accuses the Union of "bad
faith" for other reasons One such reason is that the
Union "adopted a stance which it never materially al-
tered throughout the course of negotiations," one of
simply rejecting out of hand the Respondent's proposals.
Given that Respondent's first set of proposals was seem-
ingly designed on every issue to abolish benefits previ-
ously won by the Union throughout the years (even in-
cluding the 30-year-old union-security clause and the
right to have "union activity" contractually protected
against discrimination in the game category with race,
religion, and sex), it is not difficult to understand the
Union's initial blistering reaction. As time passed, how-
ever, and some tentative agreements were reached in
which Respondent accepted existing contract provisions,
the Union did, in fact, materially modify its stance And
59 I recognize that these actions were not taken proximately to the "on
or about June 10" date listed in the complaint , but it was agreed at the
end of the hearing , as discussed earlier , that the pleadings could be con-
formed to the proof in the case of dates or other minor matters , although
not in any substantive respects In its brief, Respondent expressly defends
the publication of its 27 April and 2 May memos by arguing that the
change announced in these memos had been impassed , and so publication
of the changes was privileged This indicates Respondent 's belief that the
issue of whether impasse had been reached on these items at the time of
their publication was necessarily a part of the litigation
1083
although the Union made no written jurisdictional coun-
terproposals until 27 April, Green agreed that prior
thereto, the Union "had proposed at least ideas, yes. I
don't know if there was any language "
Respondent would also fault the Union for not disclos-
ing at the bargaining table the specific conclusions the
union committee had reached early in January about the
effects of the Respondent's first proposed jurisdictional
clause. Since the meaning of that clause seems clear on
its face, it is hard to see why the Union should have felt
compelled to explain to Dimino its understanding of his
clause. Indeed, it can be argued that Respondent was
grossly negligent, if not misleading, here in drawing up a
simple proposal with logical implications which Dimino
did not dispel until 19 April when he told the Union that
he did not mean what the clause seemed to say.
Respondent also blames the Union for rejecting the
entire proposed agreement at the 19 January meeting
even though, Respondent asserts, the union committee
had previously determined that of the changes in 15
topics originally proposed by Respondent, 7 of them
were "unacceptable" and the other 8 were "acceptable."
Coyte, on whose testimony this argument is based, never
said that the Union found the other eight changes "ac-
ceptable" as of 19. January (or any other time), see Tr.
284, 601-602. It is at least whimsical to argue that the
committee could possibly have found so immediately
"acceptable" such changes as the proposed elimination of
the night differential, the proposed adverse changes in
the rest periods, the proposed elimination of the right of
union representatives to confer with management with-
out loss of pay, etc. Obviously, Coyte's express reference
at the hearing to 7 of the 15 proposals as "unacceptable"
was meant to signify those which were most repellent to
the Union.
Finally, Respondent argues that Attorney McKnight's
late entry (March 30) into the negotiations had a "chill-
ing effect." Although it does appear that McKnight
needed some education in the history of the bargaining,
he seemed to be a quick study. I perceive no basis at all
for the claim that the decision to call in McKnight, or
his participation thereafter, demonstrated union "bad
faith."
The "length of the negotiations" is, as General Coun-
sel points out, a deceptive consideration here. As dis-
cussed above, although the parties had met on 18 occa-
sions by the time the Respondent made its "modified
final offer" on 27 April, at only two of the final four of
these sessions (starting with the Union's submission of its
list of "problems" on 19 April) was there any serious de-
lineation and discussion of the preeminent jurisdictional
issues. As also indicated, the parties had been talking
around this subject during the previous sessions , each ap-
parently intending to draw the other out if possible. But
at the four sessions beginning on 19 April and leading up
to the brief meeting on 27 April at which Respondent
presented its "modified final offer" and departed abrupt-
ly, very little actual discussion of the jurisdictional (or
nonjurisdictional) issues was had.
Omitting caucuses and recesses, on 19 April, the par-
ties actually talked for about 55 minutes, with much of
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the time spent on recriminations and posturing. On 20
April, they spoke for a net 1 hour and 50 minutes. The
21 April session consumed 8 minutes , consisting basically
of Dimino handing out the first "final offer." On 27
April, after the off-the-record 45-minute morning meet-
ing at which "concepts" were floated, the afternoon ses-
sion consisted of no negotiations as such , but basically of
a statement of position by the Union and its submission
of three written counterproposals and the promise of an-
other, and a statement of position by Dimino and his
offer to recede on two issues (Coyte said the meeting
started about 1 p.m., and Dominic 's minutes show it
ending at 3:13 p.m ., with intervening caucuses of about 1
hour). In sum , the total time spent talking about the real
jurisdictional issues once they were defined on 19 April
was perhaps 2 hours and 45 minutes (with no discussion
at all about the Company 's 21 April wage proposal or
other nonjurisdictional issues . Given the complex nature
of the topics under discussion, and the several departures
from historical practice being considered , that period of
time did not allow for much rational and necessary dis-
course.
"The importance of the issue or issues as to which
there is disagreement" is not clear. There is no question,
as General Counsel acknowledges on brief, that "juris-
diction was considered a critical issue by both parties."
But the significance of the particular jurisdictional issues
upon which the parties had not reached agreement by 27
April is debatable.
It is obvious that , from the outset , the Union attached
great importance to the Respondent 's proposal to ex-
punge the Union 's exclusive right to edit videotape. On
the other hand , company minutes show that at the 24
March meeting, Coyle expressed union opposition to sur-
rendering tape editing exclusivity , but "added that if the
Company instead wanted to address a specific area such
as allowing other employees to screen and time , then he
could ask the committee to explore that area."
On 19 April, Coyte stated that "there is no way we
are prepared to give up editing ." Later that day, Dimino
withdrew the Respondent's proposal to make final edit-
ing a nonexclusive item, "subject to the acceptance of
the rest of the language in the proposal on jurisdiction."
On 20 April, Dimino made a speech in which he por-
trayed the withdrawal of his original editing proposal as
monumental : "From Day One, I wanted editing as much
as you didn't want to give it up . We're making a giant
step forward . . . . After looking eye-to-eye . . . we
blinked. . . . We're taking a step back because this is a
mega-issue for you." Dimino went on to say that the
"[flour or five other items . . . left on jurisdiction .. .
pale in importance compared to editing ; they really weren't
-as big a deal to you and offered the company movement."
""Thus, it appeared to be Dimino's perception on 20
April that the removal of final editing as a bone of con-
tention left the other unsettled jurisdictional items readily
subject to concession by the Union . 80 On that same day,
Coyle identified several of the remaining topics as sus-
ceptible to settlement. , . .
"Audio recording," he said, "we can clarify and- set
aside," evidently indicating a willingness to yield to Re-
spondent on the issue . As for "pool coverage," the
Union had some "questions which may need answers";
this issue was removed from dispute on 27 April when
Respondent incorporated the Union 's counterproposal
(which constituted a diminution of the Union's existing
jurisdiction) on pool coverage, submitted that day, into
its own proposal . Coyte went on to identify , in the field
of "computer equipment ," "two areas of Union compro-
mise," one being the Vidivote computer and the other
being weather graphics , both of which, he said, would
require clear positions in writing ("even if it takes weeks
for our counsel to write it") to avoid a debacle which
had resulted from "poor contract language" on the sub-
ject of audio recording in the past.
The only matter which Coyle refused to label as nego-
tiable on 20 April was the "announce booth recording,"
which he saw as "a half-a-man [per week] employment
... and we are not willing to change on that. In ad-
dressing this same issue on 20 April, Dimino stated, "We
want that. . . . There is no reason in the world why
booth announcers can't do recording . It's done every-
where."
On 19 April , before Dimino had receded on the edit-
ing issue, McKnight had said (as Coyle had already sug-
gested on 24 March) that the Union could give Respond-
ent "some relief," inter alia, in the "area of previewing
and/or reviewing tape outside of NABET's normal work
area"; when Dimino inquired as to the meaning of this,
Lolli said that , in order to preview, a reporter would
have to "go to the desk where you provide the machines
and he could do it there." Dimino said only that he "un-
derstood."
The parties met on 20 April, the next day, for their
longest discussion in this last phase of bargaining. While
both Coyte and Dimino identified and discusses at some
length subjects (pool coverage , audio recording, etc.)
.which separated them, neither mentioned the issue of
previewing, etc.
At the 8-minute 21 April meeting , no substantive dis-
cussion took place at all , but Respondent submitted in
writing its "final offer," for the first time introducing the
complicated 5-percent wage proposal and making certain
other amendments in. some proposal apparently for the
first time. It was not until the 2 April meeting at which
the Union offered three written counterproposals, one of
which would have allowed nontechnicians to preview,
etc., outside the normal NABET work area on equip-
ment connected to a monitor for playback only, that
Dimino replied , after a 1-hour afternoon caucus, that the
Company "was not going to set up separate tape areas
for this purpose because it was an unnecessary ex-
pense."a 1 Judging from Dominic 's minutes, Dimino did
80I recognize the possibility that salesmanship may have played a part °1 Dimino testified that there had been a discussion about the expense
in Dimino's choice of language , but I have no way of knowing whether of new editing equipment on 20 April, but neither the company nor the
that is so. union minutes confirms that claim. _
STORER COMMUNICATIONS 1085
not comment on the other two written union counterpro-
posals. 62
Of the jurisdictional issues that seemed to be in dispute
as of 27 April, it is not easy to assess their real impor-
tance to either party and , on both sides, the assessment
cannot be made in the abstract. On the subject of exclu-
sive jurisdiction over the announce booth, both Coyte
and Dimino had taken firm positions as late as the 20
April meeting. But, assuming that Coyte regarded it as a
"half-a-man [a week] " function (Green estimated it, how-
ever, at 10-14 hours a week rather than 20), it is hard to
think that either party could have considered 1 percent
or less of the unit work as a real obstacle to reaching
agreement. Dimino had told Coyte in their private meet-
ing on the morning of 27 April, as Coyte testified, that
the announce booth "was very important to him";
Coyte's reply, as essentially confirmed by Dimino, was
that "nothing is written in stone."
As for the other matters still under discussion an 2
April, such as weather graphics and vidivote '63 it is diffi-
cult to believe that they were matters of real signifi-
cance. The scope of the vidivote work (the number of
elections per year and the amount of work involved per
election) is not disclosed, and the same is true of the
weather graphics. Similarly, there is no estimate in the
record of the number of hours spent at the station each
week by technicians in performance of the previewing,
etc., functions.
It may be that the most reliable evidence of the rela-
tive "importance " of the issues, at least from Respond-
ent's viewpoint, issued from Dimino's mouth. This ac-
count of a statement by Dimino at the 12 May session
was reflected in Respondent's minutes:
The impasse occured [sic] when [Dimino ] asked the
unit to give up the announce booth and the unit
said no. He said an impasse occured [sic] on wages
when the unit said no.64
If these statements are taken to represent a reflection
of Dimino's judgment of the "important" issues (with no
mention of weather graphics, previewing, etc., or vidi-
vote), they stand in dramatic contrast to Respondent's
brief, which specifies only that Respondent "refused to
concede to two Union demands on April 27"-the pre-
viewing, etc., and the announce booth recording; the
brief makes no reference at all to "wages" in this connec-
tion . But at the hearing, counsel for Respondent referred
only to the previewing, etc., as what Dimino considered to
be "the key issue involving jurisdiction, which led to the
62 The subject also came up at the 12 May meeting , according to Fla-
velle's minutes , with Dimino stating that he had wanted the use of the
NABT editor's booths for previewing, etc, by other employees this was
said , however, after Dimino had opened the meeting by announcing that
there was "nothing on the table," that his 27 April offer was the "final'
offer (emphasis in minutes), and that he "would never offer a final, final
offer "
63 The subjects of pool coverage and, apparently, audio recording,
were resolved on that day
64 How there could have been an impasse on "wages " on 2 May when
the Respondent had not made its wage offer until 21 April and had re-
fused to discuss it at all thereafter is a total mystery In such circum-
stances, to say that there was an impasse implies the kind of closed
minded approach to bargaining which the statute condemns
strike" ; no mention was made of the significance of the
announce booth. '
Then , as set out, there is Dimino 's 20 April evaluation
that Respondent , having given up on the "mega-issue" of
final editing, the remaining jurisdictional issues "pale[d]
in importance" and were not "as big a deal" to the
Union . The Union did not argue with this assessment.65
In considering the relative importance of the unre-
solved issues , it is also worth weighing Green's testimo-
ny that the three written proposals submitted by the
Union on 27 April , pertaining to Vidivote , weather
graphics, and previewing , etc., involved "the big issues
that were on the table." In so concluding , Green evi-
dently assigned only secondary importance to the subject
of the announce booth , which Dimino had described that
morning as "very important" to the Respondent and
later said was one of the two issues upon which impasse
had been reached.
Finally, there is the Taft criterion of "the contempora-
neous understanding of the parties as to the state of ne-
gotiations ." Coyte made it clear throughout that he
thought there was much left to discuss and that , accord-
ingly, no impasse had ever come into being. As early as
31 March , Dimino began to speak of the possibility of an
impasse, and he said on 20 April that he "[thought] we
have reached" that condition It is not dispositive, I
think , that a negotiator sincerely holds a subjective belief
that the parties are hopelessly deadlocked , any more than
an employer may withdraw recognition from a union
simply on the basis of his good-faith , but inadequately
supported , belief that the union no longer represents a
65 Two of Respondent's witnesses testified that in a conversation with
Union President Lolli on 29 April, they explained to him the meaning of
the wage proposal , and one also said that Lolh emphasized the impor-
tance of the unresolved "editing issue " Lolli denied ever having had
such a conversation in which the wage proposal was explained to him
and, by implication, he denied any contemporaneous comments by him
about the issues I credit Lolh 's denial for the following reasons
As the General Counsel's analysis of the testimony shows, there was a
stark contradiction between Respondents witnesses on the basic facts
Dominic said that the meeting came about because Lolli "had ap-
proached Dave Bell " with questions , after which Bell came to Dominic
and said that Lolh had asked for a meeting Strike coordinator Bell, on
the other hand , testified that the meeting resulted when Dominic "was ap-
proached by Dominic Lolli with some specific questions regarding
wages " I cannot imagine any reasonable explanation for the disparity be-
tween the two As the General Counsel further points out, the timing tes-
tified to by Dominic and Bell is also difficult to reconcile While control-
ler Flavelle purportedly participated in the 29 April explanation to Lolli,
he gave his testimony for Respondent only 200 pages after Lolh had
denied the occurrence of such a meeting , but he was not asked to con-
firm that the meeting had taken place I credit Lolli 's testimony on this
point
Bell said on direct examination that Lolh stated at the discussion that
"a major problem appears to be the technical j urisdiction of video tape
editing" and went on to cite "a number of issues that were open at the
time " On further examination, Bell expansively said that Lolli had; la-
beled editing as the "one big issue ," "our big tumbling block ," and "there
had to be a way found to reach a settlement without NABET giving up
jurisdiction on video tape editing " But Lolli allegedly also went on and
mentioned "possibly as many as 10 other issues that were open and had
to be resolved , including "wages and a penalty or two" It is possible that
Bell had such a conversation with Lolli at some other time , but it clearly
was not on 29 April, there were not, by anyone's count, anything like a
total of I1 issues in dispute on that date So, if the conversation occurred
at all, it likely would have been before Respondent had agreed to allow
the Union to have exclusivity over the final edit function on 19 April
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
majority of his employees E.g., Bartenders Assn. of Poca-
tello, 213 NLRB 651, 653 (1974). In the present case, in
my view, Respondent's slapdash course of bargaining
and conduct in April and thereafter effectively precluded
any possibility of determining whether the parties had
truly reached impasse, and that was a fact which Re-
spondent should have recognized before it acted precipi-
tously.
Once the Union had, on 19, April, identified its specific
concerns to Dimino and had been told by him that they
had been misreading his jurisdiction proposal , the parties
spent so little time thereafter-less than 3 hours-engaged
in actual discussion of the jurisdictional problems (and
none on the nonjurisdictional matters) that Dimino
should have reasonably recognized that he was playing
with fire by declaring impasse at such an early juncture.
The brevity of these discussions was made more unsatis-
factory by the fact that Coyte had stated to Dimino his
interest in a careful discussion and analysis of the juris-
dictional changes sought by Respondent; and it was fur-
ther compounded by Respondent's insistence on 20
April, the last and only day in this period in which the
parties spoke for as much as 90 minutes, on first resolv-
ing the jurisdictional issues. Coyte presumably tolerated
Dimino's adamancy because of an assumption that he
would eventually both receive a wage proposal and be
afforded the opportunity to feel out Respondent's posi-
tion on many matters of the utmost importance to the
Union (such as the proposed elimination of the union-se-
curity clause) on which Respondent had, at the time, still
refused to accede.
What Coyte got on 21 April and thereafter, however,
was not much discussion, but rather what used to be in-
elegantly known as the bum's rush. In the 8-minute 21
April meeting, Respondent handed out its summary of
tentative agreements and its first serious wage proposal.
While the summary by and large agreed to continue the
old contract language on a number of items which Re-
spondent had previously proposed to eliminate, it also
contained the confusing wage proposal in the unfamiliar
format; and it did not resolve the remotes and meal
period issues to the Union's satisfaction. Dimino an-
nounced that he had canceled a planned trip to Miami
the next day, and would be available to speak to the bar-
gaining committee "if they had a response from the
membership." Coyte, who testified that he did not want
to present an unknown quantity to the unit members, at-
tempted to arrange another meeting through the media-
tor and was told that the first date available to the Com-
pany was 27 April.66
At the off-the-record morning session on 27 April,
Coyte and Dimino discussed the negotiations in general
terms, with Coyte indicating flexibility on some items,
`stating his desire to "discuss the wage package quite
thoroughly," including some "missing material" (with
Dimino saying that he was "pretty firm on their position
66 Wilcox testified that after Respondent gave the Union the summa-
tion and new proposal on 21 April, "We tried to ask a few questions, and
the Company left the meeting " Jones testified, however, that the union
committee posed no questions to the Company on 21 April, saying they
"needed time to review it " I tend to believe that Jones' testimony is
more accurate, and that Wilcox is thinking of the 27 April meeting
on wages"), and expressing his "concerns" about other
matters such as remotes and the meal period. Dimino
told Coyte that the announce booth was "very important
to him," and Coyte replied that nothing is carved in
stone."
In the afternoon, the Union submitted three written
counterproposals formally offering concessions of vary-
ing degrees (two of them earlier presented informally),
on pool coverage, Vidivote, and previewing, etc., and
orally proposed to draft language on audio recording
and on protection of the Respondent against double pay-
ment in remote broadcast situations in which another
union claimed jurisdiction over NABET work.
Dimino rejected the Union's proposal to allow non-
technicians to preview, etc., outside the technical area,
but at the same time agreed to recede on both the "re-
motes" and "meal period" conflicts , accepting the lan-
guage of the expired contract. He said that this was as
far as he would go in modifying the final offer, but he
thereafter distributed a "modified final offer," prepared
during a caucus on 27 April, which not only incorporat-
ed the concession made by the Union in its written coun-
terproposal on the subject of pool coverage, but also
added three new sentences to the jurisdictional clause.
Two of these, as discussed, pertained to weather graph-
ics and Vidivote, and the third made reference to a new
topic. "Others may operate videotext for the purpose of
off line composing."
Coyte and Wilcox testified that in the morning off-the-
record session on 27 April, the Union had said that it
wanted to discuss wages that afternoon, and Jones said
that prior to the afternoon caucus, the Union told Re-
spondent that wages "was an area in which we had ques-
tions to ask " Jones and Wilcox further testified that the
Union also raised a number of questions at the end of the
27 April afternoon session about the structure of the
wage proposals and about missing items, and were an-
swered by being given a second termination letter. Chief
Engineer Green confirmed that Attorney McKnight had
pleaded with the Respondent not to leave after handing
out its termination notice, saying that the Union wanted
to "continue the existing meeting to answer questions"
about "other areas such as wages," or to schedule more
meetings, and that the Union was "somewhat" in a "state
of panic" about the failure of Respondent to react to its
requests.
The Ri spondent contends that impasse was reached at
least by 27 April It does not seem reasonable to infer,
however, that the parties had by then exhausted the pos-
sibility of settlement It is true that Dimino stated on 27
April that the announce booth was "very important" to
him, but the apparently small amount of weekly time de-
voted to that function, as well as Coyte's conceded reply
that nothing was "carved in stone," should reasonably
have led Dimino to think that the Union's position on
the announce booth, and perhaps the other jurisdictional
issues, was not immutable. By the afternoon of 27 April,
a considerable amount of movement had occurred on
both sides in the previous 8 days: Respondent had
changed its position on final editing on 19 April, and had
given in on many other items (e.g., union security, night
STORER COMMUNICATIONS
differential, the meal period, remotes) by late in the day
of 27 April, the Union had made three formal proposals,
on previewing, etc., Vidivote, and pool coverage, all of
which constituted a surrender of some of its previously
exclusive jurisdiction, and it was suggesting a further
proposal on audio recording and protection against
double payment. This should sensibly have caused Re-
spondent to believe that responsible discussion might
have resulted in additional union (and even, perhaps,
company) concessions if the Union was given the oppor-
tunity to talk about the outstanding items which Re-
spondent, in its advertent or inadvertent rush to impasse,
simply refused to allow.
Why Respondent felt the need to act with such urgen-
cy in April is hard to understand; there is no evidentiary
clue that Respondent needed an immediate reorganiza-
tion of its technicians staff and their duties. The reason
may have been Dimino's assumption of a -higher office in
the corporation, while he also continued to act in his
Cleveland capacity. Whatever the reason, Respondent
did act in haste, precluding discussion about several
items which, if acceptably resolved, might have resulted
in a situation in which the Union was willing to concede
or offer an agreeable compromise on the few remaining
jurisdictional problems.
It could well have been that if the Union had been
given the opportunity that it had repeatedly requested on
20 April to turn to and evaluate Respondent's position
on nonjurisdictional subjects, it might have been more
willing to compromise on the jurisdictional sticking
points. It should be noted that on 20 April, while Dimino
was most insistent on staying with the subject of jurisdic-
tion, he seemed sympathetic to Coyte's repeated declara-
tions about the need for review, study, and revision of
the jurisdictional clauses, and may have led Coyte to be-
lieve that time was not a material factor.
It may also be noted that Dimino's statements at the 20
April meeting seemed consistent with his past approach
to bargaining, all of which could have led the Union into
believing that Dimino was not as unyielding as he pur-
ported to be. Throughout the early bargaining, Dimino
kept warning the Union that his proposals were not a
"ploy," that he was "deadly serious" about them, that he
would not, unlike his bargaining predecessors, capitulate
at the last minute, and so forth Yet his whole approach
thereafter was to recede from the regressive proposals
originally made by Respondent and return to the existing
contract terms; and, on 19 April, he "blinked" and sur-
rendered to the Union on the "mega-issue" of editing.
Then, having made a "final offer" on 21 April, and
vowing not to touch it, Dimino came through with a
"modified final offer" on 27 April. This sort of behavior
obviously could have lulled the Union into believing
that, to blend a few adages, there was many a slip be-
tween imino 's bark and his bite.
As of 27 April, there were a number of items to dis-
cuss. There were, of course, the amount of wages being
offered by Respondent, the operation of its proposed
new wage system , and other missing wage-related terms.
The Union had proposed, and Coyte wanted to discuss, a
new provision for a "Video Tape Editing Talent Fee "
Jones and Wilcox testified, without contradiction, that at
1087
some point on 27 April, the Respondent had agreed to
include in the contract certain provisions from the old
contract (pertaining to not having to perform a certain
vidifont function less than 30 minutes before air time,
and to engineering logs) which Respondent's draft con-
tract did not contain.
An issue which loomed potentially large to the Union
was the new language in Respondent's proposal provid-
ing that nontechnicians could "[o]perate character gener-
ator and other computer or electronic equipment such as,
but not limited to [specific machine] located outside the
technical area" (emphasis added). The Union was con-
cerned that this broad language would permit Respond-
ent to decimate the unit. On 20 April, as Respondent's
minutes show, Dimino said that this was not his inten-
tion, and the Respondent "would be willing to structure
language on this." But, as Wilcox testified, Respondent
never did, even though, according to Stahl, the problem
was again discussed at the morning meeting on 27 April.
The 27 April proposal, as discussed, contained a new
substantive sentence about "videotext," a subject never
before broached at the bargaining table.
It does seem possible that full discussion of all the ex-
isting problems might have resulted in settlement of the
outstanding issues No matter how firmly the Union may
have declared its position on the announce booth, it also
told Dimino on 27 April that nothing was "carved in
stone."67 The previewing, etc, issue was conceivably
subject to settlement in one of a number of ways.68 With
67 The Board has even said that "[a]n impasse should not be mechani-
cally inferred whenever one party announces that his position is
henceforth fixed and no further concessions can be expected " Westchester
County Executive Committee, 142 NLRB 126, 127 (1963) It has further
stated that "[u]se of words like 'impasse' or 'deadlock' by the parties,
even relating to overall issues, do not necessarily imply that future bar-
gaining would be futile " Pillowtex Corp, 241 NLRB 40, 46 fn 11 (1979),
accord, Inta-Roto, Inc, 252 NLRB 764, 769 (1980) It is well to remem-
ber Dimino's testimony that the Union "had always said there was no
chance on editing, and I had said that we absolutely wanted it"-but he
did in fact give it up
68 The record shows that in the non-NABET areas of the station, there
already existed equipment (TV monitors and VTR equipment) which
made it "possible," according to Chief Engineer Green, to preview, etc ,
although, because some of the VTR equipment referred to had
"counters" rather than "timers " on them , "to get it really accurate, it's
better to have" the VTRs with the timers
There are in evidence charts which purport to convert counter num-
bers to real time, Technician James Razan credibly testified that he has
used the charts (which were "all over the building") on machines
equipped only with counters for the purpose of previewing, etc , and has
found the system to be "reliable " While Green stated that he had never
seen such a chart, he also had done no editing for years
The evidence on this point suggests that even if Respondent felt it
preferable to purchase VTRs with timers in order to perform previewing,
etc , outside the NABET areas, it would not involve the sort of invest-
ment (probably "over $14,000" per setup) asserted by Green at the hear-
ing to build separate facilities outside the existing NABET editing suites
for previewing, etc After testifying to the $14,000 figure for creating
new editing suites, Green later agreed that equipment just for previewing,
etc , purposes would not be as costly rl'
It should be recalled that NABET had never shown itself to be unal-
terably opposed to surrendering exclusive jurisdiction The expired juris-
dictional contract provision consisted mostly (almost 4-1/2 pages) of a list
of technical functions which "[p]ersons other than Technicians may per-
form " One of these had been the right of nontechnicians to perform pre-
veiwing, etc , "in field " Coyte testified, without contradiction, that at
some other stations , NABET has agreed to allow nontechnicians to pre-
Continued
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
compromises and clarifications here and there, something
might have been worked out.
Absent unusual circumstances, negotiators cannot truly
evaluate future prospects until they fully and thoroughly
explore all matters at issue between them, and neither
party is in a position to make a judgment about impasse
until they have at least turned over, examined, and ex-
plained every card on the table, when one party so re-
quests. In Television Artists AFTRA v. NLRB, 395 F.2d at
622, 628 (D.C. Cir. 1968), the court found to be a "fun-
damental tenet of the Act that even parties who seem to
be in implacable conflict may, by meeting and discussion,
forge first small links and then strong bonds of agree-
ment." The Board has recently said, in Betlem Service
Corp., 268 NLRB 354 (1983) (emphasis added), "Gener-
ally, the Board will not find that an impasse has oc-
curred unless the negotiations between the parties have
been exhaustive" (Emphasis added.) Two recent cases
support the conclusion that the Board would not consid-
er that impasse had been reached in the present circum-
stances as of 27 April.
Dependable Maintenance Co., supra, 274 NLRB 216,
219, was a case in which the union , in the course of bar-
gaining, had sought some information which the re-
spondent employers had deemed to be unnecessary and a
delaying tactic. Finally, however, the employers supplied
the information, but very shortly thereafter implemented
their final offer. The administrative law judge held:
Respondents simply acted too quickly in implement-
ing the last offer to place their theory of the
Union's bargaining rigidity to the test . . [lit is
impossible to determine if the information would in
fact have been used by the Union to modify its posi-
tion. This uncertainty must be resolved against Re-
spondents whose precipitous actions created uncer-
tainty.
As in Dependable Maintenance, supra, the Respondent
here "simply acted too quickly" in April, May, and June,
and did not afford the Union the "exhaustive" bargaining
to which it was entitled after the breakthrough series of
events which began on 19 April.
Guidance may also be found in SGS Control Services,
supra, 275 NLRB 984. The parties had bargained on 18
occasions, and had made progress. The union was disap-
pointed in the proposed seniority provision of the em-
ployer's final offer, but the employer's attorney told the
union steward by telephone that they "should be able to
get together on seniority language." The union member-
ship agreed to accept the offer provided that it contain
certain seniority protections and bear a term of only 1
year (the employer's final offer had provided for a 2-1/2-
year term). When, however, the membership's terms
were made known to the employer's executive vice
president, who had been one of the negotiators for the
employer, he said that the duration, proposed by the
view, etc, so long as the work was not performed in the NABET work
areas, at some stations, the contract language is silent as to where the
work is to be performed by the nontechnicians, and other variations have
been negotiated
union was "not acceptable" and the seniority clause de-
manded by the union was "absolutely not acceptable."
When an employer representative relayed to the stew-
ard the message that the union's position was "absolutely
not acceptable," the steward said that the employer's
offer was acceptable to the union "only for a one-year
period" and with the membership-mandated seniority
provision. At that point, the employer told the steward
to have the employees turn in their equipment.
A week later, the employer invited four of the em-
ployees to return to work but "only under the terms and
conditions of Respondent's final offer " They so re-
turned. At the union's request, the parties began negotiat-
ing again 4 days after the end of the lockout, but, as of 4
months later, they had not reached agreement on a con-
tract.
The administrative law judge, taking into consider-
ation the "substantial movement" and "major conces-
sions" made by the parties toward the end of bargaining
and the absence of any showing that time had been of
the essence, found that the employer was not justified in
assuming that further bargaining would have been futile
when it instituted the new terms and conditions at the
end of the lockout-this despite the facts that the em-
ployer had previously said that the position of the union
on both seniority and term was "absolutely not accepta-
ble"; the union had told the employer that the offer of
the latter was acceptable "only" if it incorporated the
union's position on these two items; the union had appar-
ently made no effort to bargain further during the lock-
out; and, despite the resumption of bargaining after the
lockout ended, the union never capitulated to the em-
ployer's proposal.
SGS seems a stronger case for finding impasse than the
present facts There, both sides had taken fixed positions
on clearly defined issues, describing those positions in
terms of finality, unlike the present case. Here, the Union
had no opportunity to discuss as important an issue as
wages, and had openly demonstrated its desire to do so;
there are no similar facts in SGS. Here, the Respondent's
final offer had failed to address or incorporate other
items to which it had orally assented; SGS shows no
similar discrepancies.
As we have seen, on 27 April and 2 May, even before
the union membership had the opportunity to vote on
the Respondent's "modified final" offer, Respondent uni-
laterally announced changes in the operating procedures
which had the effect of diminishing the Union's exclusive
jurisdiction; it also, on 29 April, engaged in direct deal-
ing with the unit employees; and on 4 May, while the
employees were on strike, Respondent sent memoranda
to all the technicians notifying them that, effective 9
May, some of them would have the names of their classi-
fications changed and 11 of them would be reassigned
from the engineering department to three other depart-
ments. None of these latter changes had been discussed
during negotiations.
It was against this backdrop that the parties met again
on 12 May, the first day on which Dimino was available
after 27 April, despite the commencement of the strike
on 3 May.
STORER COMMUNICATIONS
As earlier discussed , Dimino began the meeting by an-
nouncing that his side had "nothing on the table" and
was "willing to take suggestions " Coyte continued to
deny that an impasse existed , and seemed to be attempt-
ing to signal to Dimino that serious negotiations could
result in a contract (the Union was "prepared to honor
the progress made by the Company"; Coyte "hoped both
parties could get down to see if an agreement could be
reached ," to which Dimino replied , "I said before, you
rejected our final proposal and everything is off the
table"; Coyte said suggestively , "When you can trade
one issue for another issue, there is no impasse"; Dimino
denied that there was anything to trade) Dimino ap-
peared to be taking the position that they were no longer
engaging in negotiations ("Mr. Dimino stated that the
Union 's goal is to re-open negotiations "; he had given
the Union his "final offer "; that offer was now "off the
table"; and he "would never offer a final , final offer").
In such circumstance , I must conclude that the Union
still was not afforded , on 12 May, the opportunity to
engage in the thorough and comprehensive bargaining
which it had theretofore been denied . Once Dimino had
announced at the commencement of the meeting that Re-
spondent 's final offer had been removed from the bar-
gaining table , and continued thereafter to indicate that
Respondent no longer felt any real obligation to bargain,
the Union was hardly in a position to pose obsolete ques-
tions about the meaning of Respondent 's now-nonexistent
proposals or to suggest trading a quid in those extinct
proposals for a quo of a different sort.
Nor do I find meaningful the failure of the Union to
make any significant concessions in the proposals it pre-
sented on 12 May. It still had not had the chance to seri-
ously question and debate important aspects of Respond-
ent's 27 April proposal , and the events since 27 April
had introduced a whole new dimension into the relation-
ship , conceivably affecting how the parties would deal
with one another . By way of analogy, the Board has
held that where conditions have changed materially since
the time that parties reached impasse , a union does not
have to "declare publicly" that its demands have less-
ened in order to be entitled to meet with the employer.
Transport Co. of Texas, 175 NLRB 763 fn . 1 (1969) Simi-
larly, in the present situation , the Union was not required
to capitulate before it could negotiate.69
An employer has, said the court in Fisch Baking Co. v.
NLRB , 479 F 2d 732 , 736 (2d Cir. 1973), a "basic duty of
allowing adequate time and opportunity for reasonable
discussion of the essential details of its offer." Here, Re-
spondent did not permit that degree of "meeting and dis-
cussion" which might have led to "strong bonds of
89 Respondent also argues that the failure of the Union to surrender to
Respondent in its July proposal further establihes that the Union had no
intention of reaching an accommodation By July, however, the Re-
spondent's determination to treat the Union as nothing more than an im-
potent irritant had become very clear, and it would make sense that the
Union would not choose to appear as powerless as the Respondent had
determined to treat it As earlier discussed, furthermore, probably be-
cause of all the unknown factors which enter into judgments by the par-
ties once unilateral action has been taken, the Board has held that subse-
quent behavior will not be considered in assaying the issue of impasse
SGS Control Services, supra, Dependable Maintenance Co, supra, Henry
Miller Spring Co, 273 NLRB 472 (1984)
1089
agreement," AFTRA v. NLRB, supra, and thus was in no
position to realistically evaluate the existence of "im-
passe," defined by Judge Learned Hand in NLRB v.
Remington Rand , 94 F.2d 862, 872 (2d Cir 1938), as the
point at which " it becomes apparent that a settlement is
impossible ." This is especially meaningful in the present
circumstances , where the Union had consistently spoken
of a willingness to compromise , as the court stated in
Huck Mfg. Co. v. NLRB, 693 F . 2d 1176 , 1186 (5th Cir.
1982), "[F]or a deadlock to occur , neither party must be
willing to compromise" (emphasis in original).
Thus, I find that Respondent did not act reasonably in
assuming that a state of impasse existed when , in early
June, it put into effect the sweeping changes in employ-
ment conditions coincident with the return of the strikers
to work , Respondent was not justified in assuming that
"good-faith negotiations [had] exhausted the prospects of
concluding an agreement ," Taft Broadcasting Co., supra,
163 NLRB at 478.
b An alternative rationale requiring the same result is
the rule that an employer cannot claim the protection of
the existence of an impasse which results from its own
misconduct . Wayne's Dairy, 223 NLRB 260, 265 ( 1976).
As seen above, even before the unit rejected the Re-
spondent 's last offer , Respondent had committed unilat-
eral-action and direct -dealing violations which probably
contributed to the membership 's rejection of the offer, to
the subsequent strike, and to Respondent 's various re-
sponses thereto in June and July . Having so contributed
to the impasse by its own misconduct , the Wayne's Dairy
principle would preclude any claim of impasse which
would authorize the unilateral actions taken subsequent-
ly
c. Furthermore, even if one were to assume that an
impasse came into being on 2 May, the authorities indi-
cate that by 7 June, the impasse had been broken and the
Respondent was not privileged to act unilaterally.
The Supreme Court has held that "impasse is only a
temporary deadlock or hiatus in negotiations which in
almost all cases is eventually broken, through either a
change of mind or the application of economic force."
Bonanno Linen Service v. NLRB, 454 U.S 404, 412
(1982). In Hi-Way Billboards, supra, 206 NLRB at 23, the
Board cited several forms of economic pressure which
may follow an impasse (including, of course, a strike)
and stated that "[s]uch economic pressure usually breaks
the stalemate between the parties, changes the circum-
stances of the bargaining atmosphere, and revives the
parties' duty to bargain."
The Board's language in Hi-Way seems clearly to say
that a strike alone may break an impasse, and earlier
cases had also directly said so. West Fork Cut Glass Co:;
90 NLRB 944, 945 (1950), and cases cited. However, in
an intervening case, Transport Co. of Texas, supra, 175
NLRB 763 fn. 1, in finding the impasse to be broken, the
Board had relied on "all the circumstances" (emphasis in
original), those being "the strike which was lost by the
Union, the replacement of strikers, the wage changes in-
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stituted by the Respondent, and the hiatus of 7 months
since the last bargaining meeting."70
In the present case , there were four circumstances
which seem to me to be material : the strike itself, which,
by 7 June, had lasted for 5 weeks ; Respondent 's with-
drawal of its contract offer on 3 May; the changes in
working conditions instituted by Respondent prior to 3
May; and the fact that it was Respondent 's perception, as
its brief states, that the Union's strike was "unsuccess-
ful." These combined circumstances appear to be quite
sufficient to warrant a finding that "conditions had
changed materially from those existent at the time of im-
passe," Transport Ca of Texas, supra, and therefore re-
vived any duty to bargain which may have been sus-
pended while, for the sake of argument, an impasse exist-
ed.
d. It should be noted, moreover , that even if Respond-
ent had been otherwise justified in unilaterally changing
the terms of employment, it apparently went too far; a
number of the items alleged in the complaint as constitut-
ing unlawful unilateral action would evidently not have
been privileged under the prevailing impasse principles.
As set out previously , the complaint alleges that "Re-
spondent eliminated the Union's exclusive jurisdiction
over all7 t work functions, including but not limited to"
six named functions . Gary Jones and Roger Wilcox, cor-
roborated on some points by Robert green, testified that
after the strike, nontechnicians performed a number of
functions previously within the exclusive purview of the
NABET unit which were never the subject of a divest-
ing proposal during the bargaining .72. The Board and the
courts hold that an employer may not unilaterally effect
such unproposed changes, even in the presence of an im-
passe . Robbins Door & Sash Co., 260 NLRB 659, 664
(1982); Caravelle Boat Co., 227 NLRB 1355, 1358 (1977);
Ace Galvanizing, 217 NLRB 144, 146 (1975); NLRB v. In-
tracoastal Terminal, 286 F.2d 954, 959 (5th Cir. 1961).
70 Transport Co. was relied on in O 'Malley Lumber Ca, 234 NLRB
1171, 1179 (1978).
71 This rather awkward phrasing can be read to suggest that the Union
enjoyed "exclusive jurisdiction" over "all" the work functions which its
represented employees performed . That would be incorrect , since the ex-
pired contract provided for a sharing of jurisdiction in many instances
7S The record further shows that Respondent eliminated various non-
jurisdictional benefits, such as the premiums for working more than 12
straight hours or on more than 10 consecutive days , even though its pro-
posals had never suggested such an intention. The imposition on the unit
in June of the limited terms and conditions contained in the employee
handbook had the effect of eliminating virtually all the bargaining unit's
existing benefits, and certainly all of those terms specifically alleged in
the complaint as having been excised unilaterally . Again, even if we were
to assume that impasse had been reached, the question would arise
whether the impasse principles authorize adverse changes in existing em-
ployee benefits which have at some point been proposed for elimination
by the Company but have later been tentatively reinstated and included
in it final offer . In the present case, for example, the Company 's initial
proposal would have eliminated the existing 10-percent night-shift differ-
ential and the paid lunch period, but its final offer restored those benefits
(and others originally deleted by its first proposals). Respondent argues
that "it is unnecessary that Storer parallel its last and best offer when
making changes in working conditions during a bargaining impasse. It is
enough that all changes are comprehended within proposals made and re-
jected by the Union." It might be said that the only proposals actually
"rejected" by the Union were those rejected at the 2 May membership
meeting; the Company's offer included those terms at that time
At least since Crompton-Highland Mills, 70 NLRB 206
(1946), enfd . in pertinent part 337 U.S. 217 (1949), the
Board has held that the grant of a benefit to represented
employees more favorable than that offered to the union
representative is an unlawful act in that it tends to sub-
vert the union's position as the representative of the em-
ployees," NLRB v. Insurance Agents Union , 361 U.S. 477,
485 (1960), or "clearly manifest [s] bad faith," NLRB v.
Katz, 369 U.S. 736, 743, fn. 11 (1960 ). Without distin-
guishing between the undiscussed grant by an employer
of more favorable benefits and other possible situations,
the Board has seemed to assume that the same formula-
tion applies to any circumstances in which the offer and
the implementation are different.
Thus, in Taft Broadcasting Ca, supra, the Board simply
said that an employer can, after impasse , make changes
that are reasonably comprehended within his preimpasse
proposals. More recently , the Board has repeatedly, al-
though without analysis, specified that the preimpasse
proposals referred to are the most recent rejected pro-
posals made by the employer . Miller Spring, supra, 273
NLRB 472, 477 (if impasse had been reached , "Respond-
ent would have been free to announce and implement its
last contract offer); Western Publishing Ca, 269 NLRB
355, 356 ("[T]he Respondent was clearly implementing
the same proposal it had offered to the Union before im-
passe," which it had consistently proposed ); Crest Bever-
age Co., 231 NLRB 116, 119 (1975) (Respondent could
legally make changes consistent with rejected offer," i.e.,
"last previous offer); Ace Galvanizing, 217 NLRB 144,
146 (1975) ("An employer may . . . put [sic] into effect
its last offer preceding the impasse").
On the strength of such undiscriminating and specific
language , one might conclude that the failure of an em-
ployer's proposal to have contained a particular benefit
at some point during the course of bargaining . is of no
moment if that benefit is ultimately offered to and reject-
ed by the union , in such circumstances, the employer
would be limited to changing , postimpasse, existing terms
of employment only in a manner consistent with its last
offer.
There are policy implications involved here which, as
far as I can tell , the Board has never discussed vis-a-vis
the obligations of an employer who starts with a bid
lower than the existing terms of employment and ends
with an offer higher than his starting bid, which is then
rejected by the Union, resulting in impasse . I am thus re-
mitted, I think, to the plain words repeatedly used by the
Board in seemingly treating those obligations as unvary-
ing, regardless of the circumstances . For these reasons,
an alternative basis for affixing liability is that Respond-
ent's 7 June changes did not track its . "modified final
offer." Accordingly, even if one were to find impasse
here, very few of the changes implemented in ' June
would pass muster under the foregoing analysis.
2. Waiver
Finally, Storer argues that the Union waived the right
to bargain about the changes effected by Respondent in
April, May, and June.
STORER COMMUNICATIONS 1091
As. Respondent correctly states, if a union receives
notice of a proposed change in terms and conditions in
sufficient time to engage in bargaining before the change
is implemented , and fails to request an opportunity to do
so, it is deemed to have waived the right to oppose the
change . Talbert Mfg., 264 NLRB 1051, 1055 ( 1982),
American Buslines , 164 NLRB 1055, 1056 (1967). Storer
argues that this principle is applicable to the present
case, based primarily on the Union's failure to request
bargaining when , on 7 June, Dimino announced that the
new terms and conditions of employment would be those
found in the employee handbook.73
I conclude that the waiver-by-inaction doctrine cannot
be relied on by Respondent in this case , for a number of
reasons. The first is that the announcement made by
Dimino on 7 June was an act of bad faith which makes
the Union's failure to respond of no legal consequence.
That the Union was engaged in protected activity
when it struck , there can be no doubt. "A strike does not
in and of itself suspend the bargaining obligation,"
NLRB v. Rutter-Rex Mfg. Co., 245 F.2d 594, 596 (5th
Cir. 1957). The bargaining obligation requires the parties
at all times to make a sincere effort to reach agreement,"
Rescar, Inc., supra , 274 NLRB 1, 2 (1985). To the extent
that Respondent regards the 7 June announcement as a
"proposal" about which the Union was entitled to bar-
gain , it is beyond question that the terms then "offered"
did not represent a "sincere effort to reach agreement,"
but rather fell into that category of proposals such as the
two-page document in NLRB v. Reed & Prince Mfg. Co.,
205 F.2d 131, 139 (1st Cir 1953), which did not have
"the slightest chance of acceptance by a self-respecting
union"; even the document in that case at least contained
a recognition clause, which the 7 June oral announce-
ment made no reference to.
As discussed earlier , the Board has recognized the
right of employers to reduce their offers in appropriate
circumstances , but it has also acknowledged the possibili-
ty that the reduced proposals may be so "harsh , vindic-
tive, or otherwise unreasonable , that they warrant the
73 Respondent also argues that earlier notifications to the Union served
to invoke the principle , referring to Dimino's statement on 20 April that
when the contract terminated on 22 April (which termination notice was
rescinded on 21 April), " new work rules " would be put into effect, a
similar notice about a change in "work rules" that would accompany the
termination on 29 April, and the notice of certain jurisdictional changes
posted on 27 April by Green and 2 May by Ballew
As to the first two points , the statements were unspecific (and the first
rescinded ) and required no response Stone Boat Yard v NLRB, 715 F 2d
441, 445 (9th Cir 1987) As to the last point , not only did some of these
changes take effect " immediately ," but they also afforded no basis for the
Union to assume that the Company would work the devastation to exist-
ing conditions created by its 7 June announcement Moreover, Respond-
ent seems to be arguing that even in the midst of negotiations-even as a
union is arranging to submit an employer's "final offer" to the member-
ship-the union must separately respond to continuing notifications by
the employer of changes to be put into effect by requesting and engaging
in separate bargaining on those points , such a procedure would reduce
contract bargaining to a shambles
It may be noted that in discussing this issue at p 48 of its brief, Re-
spondent states , "When the second notice of termination of contract was
given on 27 April, the Company again stated its intention that the old con-
tract terms would not survive the termination and that new work rules would
be implemented R Exh 40, Jt Exh 4 (c) " The italicized words are the
legally significant ones The cited sources contain no support for the rep-
resentations made
presumption that they were proffered in bad faith ." Reli-
able Tool Co., 268 NLRB 101 (1983). The terms abruptly
introduced by Respondent on 7 June, sweeping aside a
complicated web of accumulated benefits , privileges, and
protections and lacing the NABET employees on the
level of nonunion employees , seem to clearly fall into the
"harsh , vindictive , or otherwise unreasonable" category.
That being the case, I would not hold the Union to an
obligation of requesting bargaining in response to the 7
June announcement.
But there are other reasons why the waiver cases are
inapplicable here. The Board (former Chairman Van de
Water concurring in the result ) has stated that in order
to "permit a union a reasonable time to evaluate the pro-
posals," "[n]ormally , an employer must allow a union
more than the 5 -day period , present in this case , between
the time the union receives the employer's proposed con-
tract changes and the time the employer implements
those changes . M & M Building Contractors, 262 NLRB
1472 (1982).74 While Respondent 's 7 June announcement
did not propose "contract change," it did announce
changes in terms and conditions of employment, which
for these purposes are clearly equivalent.
As phrased in the written statement read to the Union
by Dimino on 7 June, the alteration of the existing terms
took effect immediately , thus having no time for bargain-
ing: "The terms and conditions of your employment are
spelled out in our Company handbook" (emphasis
added). Thus, if some employees had returned to work
on 7 June, they would have been entitled only to those
few benefits particularized in the handbook.75 Accord-
ingly, the Union was not only not afforded the "more
than . . . 5-day period" "normally" required by M & M
Building Contractors, supra, to permit the Union to evalu-
ate the proposal , but it was given no time at all to do so.
Instead , it was presented with a fait accompli . 76 Conse-
quently, no waiver occurred.
74 This passage is dicta in the M & M case , in which , for an unusual
reason , no violation was found , but it appears to be the sort of authorita-
tive , rule-making dicta in which the Board frequently indulges See, e g ,
Meyers Industries , 268 NLRB 493 , 497 (1984) The language from M & M
set out above was quoted by the administrative law judge in Gresham
Transfer, 272 NLRB 484 ( 1984), without comment by the Board, and M
& M was also relied on by the administrative law judge in San Antonio
Portland Cement Co, 277 NLRB 309 (1985)
75 In the letter sent to employees on 7 June , Dimino made clear that
he had been , and was still , anxious to have the employees resume work as
soon as possible "We have informed the bargaining committee that the
station continues to be eager to have all our technicians return to work
immediately [and] in returning to work company policy in re-
gards to benefits [sic] as set forth in the Employee Handbook will apply to
you" (emphasis added ) While Chief Engineer Green testified that the
Company "intended" the changes to take effect "as of the day the em-
ployees returned to work ," which he subsequently rephrased as "begin-
ning June 10, 1983 ," the first formulation would include a date at least as
early as 7 June, his second phrase probably tended to naturally incorpo-
rate the day the strikers did actually return i
76 Dimino's 7 June statement threatened strikers with permanent, re-
placement if they did not "return to work by this Friday , June 10, 1983 "
It was reasonable for the Union to assume that in the face of this threat,
the strikers would be back at work at least by Friday That appears to be
the day on which they (or most of them ) did return Green , who evident-
ly had his dates askew , testified at one point that he received calls from
all the employees , he "think[s] it was a Thursday , the 12th of June, I
think I'm not sure of that date " They returned to work "[t]he Friday
Continued
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, the Board has held that when •it• is obviously
futile to demand bargaining, the union • may not be fault-
ed for failing to do so . In Carpenter Sprinkler Corp., 238
NLRB 974 (1978), enfd . 605 F.2d 60 (2d Cir . 1979), the
employer sent the union a list of , revised benefits to be
put into effect 5 days later , "earnestly request[ing]" the
union to contact us immediately . . . if you have any
questions or comments ," but also stating that we feel
compelled to operate within our means ." Despite the
failure of the union to protest or request bargaining, the
administrative law judge concluded that the employer's
letter "unequivocally states Respondent 's intention to ef-
fectuate the changes and [by its ] very terms effectively
preclude[d] a request to negotiate further." 238 NLRB at
983.
Compared with the "earnest" solicitation by the em-
ployer of "questions or comments" in Carpenter Sprin-
kler, this seems a stronger case for finding futility. After
his opening remarks on 7 June , Dimino gratuitously ex-
pressed his plainly deepseated anger at the bargaining
unit:
You additionally aggravated the situation by at-
tempting to hurt the Company*by what we believed
to be an illegal secondary boycott; the harassment
of non-striking personnel ; and interfering with the
Company's right to conduct its business."
He went on to say that Respondent "expect[ed] all our
striking employees to return to work without any precon-
ditions whatever.... The terms and conditions of your
employment are spelled out in our Company handbook
and all returning personnel will be paid at the same wage
level they were at when they went on strike" (emphasis
added). When Coyte inquired, "What about status quo? I
dont think you can put them back under company
policy," Dimino simply replied , "Company policy."78
This peremptory tone is also invoked in the 7 June let-
ters to the strikers, saying that in returning to work, the
strikers "do so with no preconditions," and the handbook
benefits will "apply to you."
In the face of such an attitude , it is impossible to con-
clude that any request for bargaining could have had a
chance of affecting Regpondent's decision on this issue.
Even in Sherwin- Williams Co., 260 NLRB 1321 (1982),
revd . 714 F .2d 1095 (11th Cir. 1983), cited by Respond-
ent, in which the court of appeals disagreed with the
Board that the company had announced the termination
of holiday pay as an accomplished fact , the court implic-
itly recognized that an employer's decision about a ter-
following that which , I think, was the 13th." In all liklihood, the employ-
ees called Green on Thursday , 9 June, and returned on Friday , 10 June.
A payroll notice pertaining to Gary Jones shows that he returned to
work on 10 June . This was also well within the - normal more-than-5-day
period to which the Union was entitled.
;?? The record contains no evidence of any guch misconduct.
78 "Company policy" is a rather elusive concept . It does not seem to
mean the same as the employee handbook . At the 19 October meeting,
after Dimino had said that Respondent was operating "according to
Company policy ," McKnight asked what company policy was on a cer-
tain subjects, and Dimino replied that it was "management prerogative."
At the same meeting , Respondent Attorney Corcoran stated that "Com-
pany policy did provide for double time in certain- cases," but did not
indicate where this policy was inscribed (it is not in the handbook).
mination of benefits can be "so absolute as to preclude
any possibility of bargaining on the issue of [the -termi-
nated benefit]." 714 F.2d at 1102 . In my view, the
present evidence satisfies that standard.
It is true that , after reading this statement, Dimino
said, according to the company minutes , that he would
be "glad" to meet with the Union "over a period of time
and continue the negotiations." In so saying, however,
he was obviously distinguishing between the terms he
was proclaiming on 7 June and "negotiations." More-
over, Dimino said that he would be available on "Thurs-
day and Friday of next week," which would be long
after he would have expected the strikers to be back at
work.
The record leaves no doubt that , once the strike
began, Dimino lost any interest in collective bargaining
that he might earlier have had. In what was clearly an
attempt to reopen serious communications on 7 June,
Coyte, according to the minutes , invited Dimino to sug-
gest ways in which Respondent would "modify the
Union's jurisdiction proposal and modify its wage pro-
posal." The minutes state that "Dimino responded" by
saying no more than that he was urging the strikers to
return by Friday or be replaced.
Further evidence that the Company had all but with-
drawn recognition from the Union by 7 June is the fact
that on 16 June , Dimino sent letters to all members of
the bargaining unit, stating that effective 1 July, their
base salary "will be adjusted" by a 3-percent increase.
Dimino neither made a proposal to that effect to the
Union nor even notified the Union in any formal way (of
course , President Lolli and the other employee -members
of the bargaining committee received copies qua employ-
ees). This 16 June letter announcing an across -the-board
increase came 9 days after the 7 June meeting at which,
according to the company minutes, when asked by
Coyte -about future pay raises, Dimino had stated that
"Company policy in which pay raises are awarded for
merit" would apply (emphasis added).
According to the Company 's minutes of the 13 Sep-
tember meeting, Dimino said that the Company had
started operating the station "from scratch . . . when the
Union went on strike"; that "the station has now been
operating without the exclusive union jurisdiction clause
for some time and that company management had deter-
mined that the station was operating in a much more effi-
cient manner without it";79 and that the "only thing that
is in place is that you are the bargaining agent . All else is
gone."
The foregoing evidence persuades me that a union re-
quest for bargaining at the time Dimino made his sudden
pronouncement on 7 June about the applicability of the
employee handbook would have been a vain- and ineffec-
tual act.80 On the basis of this and the other reasons dis-
99 Dimino gave testimony about his original bargaining objective
which mirrors this statement : "I was very much interested in fording a
way in dealing with our unions ... as if we had one union."
89 Dimino also made clear at the hearing that, although he attended so-
called bargaining sessions after 7 June , he had no intention of reaching
any new agreement . He explained that he had rejected the written pro-
posal made by the Union in July because it "was not commenturate [sic]
Continued
STORER COMMUNICATIONS
cussed above, I therefore reject the claim that the Union
waived its right to bargain over the new terms at that
time. I conclude, instead, that the changes effected on 7
June by making applicable to the bargaining unit only
those terms and conditions of employment contained in
the employee handbook were unilaterally promulgated,
in violation of Section 8(a)(5) and (1) of the Act."'
G. The Alleged Unfair Labor Practice Strike
The complaint asserts that the strike was "caused" and
"prolonged" by the unfair labor practices alleged in the
complaint. The only testimony in the record pertaining
to the intraunion discussions preceding the late evening
vote to strike on 2 May was given by Gary Jones and
Roger Wilcox.
Jones testified that after 27 April, the union committee
discussed Respondent's offer of that day. He said that the
committee was "uncertain about certain areas of the juri-
dictional language," "did not have a good understanding
at all concerning the company's wage offer," and "felt
that we should request another meeting with the Compa-
ny," which they did, without success. They also dis-
cussed recommending strike action to the membership,
based on their lack of understanding of the wage and ju-
risdictional offers and their inability to arrange a meeting
with the Respondent ; the memorandum instituting new
work rules; the memo regarding the termination of retro-
activity, the fact that the Company had refused to permit
the Union to post its minutes on the bulletin boards; the
fact that after the 27 April meeting, "the Company
seemed to be bypassing the bargaining unit , in putting up
memos, changing work rules, clarifying work offers"-
"We discussed the whole gambit of things "
A general membership meeting, tended by about 25 of
the 50 unit employees, was held for 2 hours on the
evening of 2 May.82 Wilcox testified that the committee
tried to explain the Company's proposals to the member-
ship, but "had a number of areas where we had misun-
derstandings, or we weren't clear." They spoke of areas
where they thought "they had agreement on things, and
they didn't show in the proposal " They tried to explain
the Company's wage proposal, but since it was done in a
"different way than it was in the past," and there were
"multiple ways you could interpret it," "we were [not]
able to explain it to the group satisfactorily." The em-
ployees, who asked a "lot of questions," were also told
with the [7 June] terms and conditions that the employees return to
work, which was unconditional " Dimino was thus plainly stating that he
viewed the return of the strikers as a surrender of their bargaining rights
Si For the reason that it manifestly would have been useless to attempt
to engage in genuine and openminded bargaining about the 3-percent in-
crease announced on 16 June to be effective 1 July, I conclude that, by
that increase , Respondent also violated the law in this regard I note par-
ticularly that Respondent did not even attempt to issue any official notifi-
cation to the Union, instead informing the union officers in their capacity
as employees
The complaint separately alleges that in October , Respondent unlaw-
fully changed the existing practice by contracting out the installation and
maintenance of company-owned two-way radios It would seem, howev-
er, that this change was effectively derivative of the adoption of the em-
ployee handbook on 7 June as the sole source of all unit terms and condi-
tions of employment , and does not constitute an independent violation
82 The record shows that late in March , the Union rented a motel
room which bore a sign reading "Strike Headquarters "
1093
by the committee "that we had attempted, numerous
times, to get additional meetings, and no further meetings
were scheduled
Wilcox said that the committee "listed the reasons"
why it thought that a strike "was our only method at
this time": having no meetings scheduled with the Re-
spondent, "we wouldn't be able to meet and straighten
out the things that I said were misunderstandings"; "new
work rules were going to go into effect and we didn't
know what . .. their impact would be on the group .. .
and what we would find at work, and just left us essen-
tially no way out"; "We had also been served . with
a $500,000 lawsuit, and this left the committee in a rather
bad position."
One would imagine that more was certainly said at the
2-hour membership meeting prior to the strike vote than
the few items Wilcox testified to An employer is, of
course, at a distinct disadvantage in attempting to chal-
lenge testimony that relates to a union meeting and to
what may have impelled employees to go on strike. Al-
though neither Jones, in describing the bargaining com-
mittee meeting, nor Wilcox, in describing the member-
ship meeting, gave any indication that there was serious
discussion of the substantive positions of the parties, it
seems probable that'there would have been (even though
Respondent made no effort to elicit this information on
cross-examination). However, it also seems just as rea-
sonable to suppose that the members did speak of the
unfair labor practices I have found here: the unilateral
changes in the allocation of jurisdiction which took
effect on 29 April and 2 May; the communication unlaw-
fully bypassing the Union; Respondent's refusal to bar-
gain in an acceptable manner on 20 April, followed by
its abrupt termination of bargaining on 27 April; or at
least some of these subjects (Wilcox spoke specifically of
the "new work rules" going into effect). It seems likely
that these unfair practices at least constituted a "contrib-
uting cause" of the strike, Larand Leisurelies v. NLRB,
523 F.2d 814, 820 (6th Cir. 1975), or had anything to do
with causing it," NLRB v. Safeway Steel Scaffolds Co.,
383 F 2d 273, 280 (5th Cir. 1967) I conclude that the
strike is properly characterized as an unfair labor prac-
tice strike.
H. The Alleged Threat to Permanently Replace
Strikers
The complaint alleges that at the 7 June meeting of the
parties, "Respondent announced that strikers would be
permanently replaced if they did not make an uncondi-
tional offer to return to work," in violation of Section
8(a)(1)
It is undisputed that Dimino made a statement to the
effect alleged in the complaint. Because the law prohibits
permanent replacement of unfair labor practice strikers,
such a statement violates Section 8(a)(1). Consolidation
Coal Co., 266 NLRB 670, 671-672 (1983).
Counsel for the General Counsel makes a second argu-
ment which seems to run as follows. Whether the em-
ployees here are economic or unfair labor practice strik-
ers, they are entitled (unless, as economic strikers, they
have already been replaced) to be returned to "substan-
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tially equivalent employment." But here , the General
Counsel seems to say, the Respondent "used" the union
members' willingness to return "unconditionally," under
threat of replacement , as an unlawful lever by which to
change the terms and conditions of employment and thus
deny the returning strikers employment "substantially
equivalent" to that which they had left.
That construction (if I follow the argument correctly)
attributes more to the word "unconditionally," than
either Respondent 's brief (which posits no argument on
it) or I do . There is no reason to believe that by virtue of
the word "unconditionally," the employees thought they
were waiving, or the Respondent believed that it was
gaining, any rights with respect to changes in working
conditions . Accordingiy, I find only the 8(a)(1) allegation
first discussed. '
I. The Regressive Contract Proposal of 22 July
According to the complaint , Respondent violated Sec-
tion 8(a)(5) by, on 22 July, submitting to the Union a
"regressive collective -bargaining proposal."
As earlier described, on 22 July Respondent presented
the Union with a 10-page contract , generally patterned
after the few substantive terms in the employee hand-
book (except for such items as a management-rights
clause, a grievance procedure , a jury duty provision, and
a no-strike no-lockout clause). The General Counsel
points out on brief that , in Harowe Servo Controls, 250
NLRB 958, 961 (1980), the Board held that the employer
evidenced bad faith by withdrawing, some 2 months
after the unfair labor practice strike ended, its earlier
proposals and agreements previously reached . The Board
there held that the employer would not be permitted to
take advantage of its belief that the union 's economic
power had decreased when the strike was caused by the
employer's unfair labor practices.
The General Counsel further argues that the July pro-
posal is so harsh and vindictive as compared to the prior
contract and Repondent's 27 April proposal that it
cannot possibly be considered an offer made in good
faith with a sincere desire to reach an accord with the
Union. The July proposal is shorn of virtually all the
benefits contained in the expired contract and in Re-
spondent's 27 April proposal. As the General Counsel
points out, a number of previously existing contract pro-
visions which Respondent did not seek to eliminate in its
original set of proposals in January were absent from the
July offer . At the same time, the proposed arbitration
clause, which in January had been identical to the expir-
ing contract's clause , was revised so as to restrict in sev-
eral ways the authority of arbitrators.83
'83 The General Counsel argues that the inclusion in the July proposal
of "for cause" as the standard by which arbitrators must judge discharge
and discipline, instead of "just and sufficient," permits an arbitrator to pe-
nalize an employee for "virtually any reason " (the term "just and suffi-
cient cause" appears in the "Layoffs and Discharges" provision of the ex-
pired contract and also in the Company 's January proposal). This history
would perhaps provide an interesting problem for an arbitrator, but I
dare say most of them would find implied in the phrase "for cause" the
notion of "just cause."
The probationary period of 12 months (which had
been 9 months in the old contract, proposed to be in-
creased to 12 months by Respondent in January, and
then tentatively agreed upon at the original 9 months
level before the strike) is rendered nugatory by the new
July addition, which would permit Respondent to extend
the period "for further development of the Employee."
As earlier noted , Respondent in July resurrected the de-
letion of the contractual ban against union-related dis-
crimination while retaining the discrimination prohibi-
tions based on race , sex, creed , etc.84 A clause applying
to NABET employees the hoilday, vacation, etc. "and
other benefits" it affords to nonunion employees is made
subject to Respondent 's "unilateral right to amend,
modify or substitute such benefits" (emphasis added).
While a similar proviso appeared in the old contract, it
was much more confined , applying only to insurance,
"retirement," "pension plan," and separation benefits.
The "essential thing" about the statutory obligation to
bargain in good faith is the "serious intent to adjust dif-
ferences and to reach an acceptable common ground."
NLRB v. Insurance Agents, 361 U.S. 477 , 485 (1960). In
my view, the 22 July proposal was simply insulting,
wholly unwarranted by the circumstances, and indubita-
ble proof that Respondent was not motivated by the req-
uisite "sincere purpose to find a basis of agreement,"
Globe Cotton Mills v. NLRB, 103 F.2d 91, 94 (5th Cir.
1939). I further find nothing approaching the justifica-
tions contemplated by the Barry-Wehmiiler (271 NLRB
471) line of cases, discussed supra , which would sanction
such an egregiously and foreseeably unacceptable offer
as the present one.
Accordingly, for the foregoing reasons, taken in con-
junction with the other evidence earlier discussed dem-
onstrating that Respondent had no interest in reaching
agreement with the Union once the strike had begun, I
conclude that the 22 July proposal was so "harsh" and
"vindictive" (Reliable Tool & Machine Ca , supra, 268
NLRB at 101) as to warrant the inference it was not of-
fered in good faith, and that it therefore constituted a
separate violation of Section 8(a)(5).85
84 While the management-nghts proposal in July differs in wording
from the previous Respondent clause , it is not clear to me, although it is
to General Counsel, that an arbitrator would , ultimately, read it different-
ly.
85 I recognize that "what may appear to be an unreasonable , obdurate
demand may be no more than the skillful practice of the negotiator's art,
designed to wring concessions from the opposite side." Steelworkers V.
NLRB, 441 F.2d 1005, 1008 (D.C. Cir . 1970). But this was no opening
gambit; here the parties had bargained for months, had reached many
tentative agreements, and at one time were not , it would seem, far from
final agreement . For Respondent to revive in July such stale and long-
abandoned proposals as elimination of the union-security clause and dele-
tion of union support from the nondiscrimination clause , and to add such
new obstacles as total elimination of the jurisdiction clause, denotes a de-
termination not to have any bargaining agreement rather than, merely
"the skillful practice of the negotiator 's art." The reader is referred to the
testimony earlier set out which demonstrates Dimino 's pleasure at being
able to operate the station freely and "from scratch ." Dubious indeed is
the Company 's argument on brief that its July proposal "was an attempt
to solicit comment by the Union and to continue a dialogue in hopes of
reaching a new agreement . Tr. 4382 . It was never intended as a final
offer but as a new beginning point for negotiations . Tr. 4382," particular-
ly since the testimony of Dimino thus referred to states only that the
Union had submitted an unacceptable contract in July "[a]nd we felt that
it was our obligation to respond to them and continue our dialogue."
STORER COMMUNICATIONS
J. The Respondent's Availability to Negotiate
The complaint alleges that since "on or about 27 April
and continuing to date, Respondent has not been avail-
able to meet and confer with union representatives at
reasonable times for the purpose of renegotiating a col-
lective bargaining agreement," thereby violating Section
8(a)(5).
At the hearing, the General Counsel agreed to limit
the duration of this allegation to 30 September, the date
upon which the complaint issued. Thus, the allegation as
limited relates to the parties' efforts to schedule meetings
from after the 27 April meeting until 30 September,
during which 19-week period only three meetings (12
May, 7 June, and 13 September) were held.
Coyte testified, without objection or contradiction,
that at the 27 April meeting, although Respondent pre-
sumably understood that the Union would soon submit
Respondent's "modified final offer" to the membership,
the Union was told that Dimino would be unable to
schedule a subsequent meeting until 12 May. When Re-
spondent changed working conditions on 29 April, and
Coyte told Green of his urgent desire to have a meeting,
he received no response from Respondent Despite the
announcement of the strike on 3 May, the 12 May date
was not advanced, although it appears from Coyte's tes-
timony that he was attempting after 27 April, through
the Federal mediator, to meet at an earlier date 86
As indicated, no bargaining occurred at the 12 May
meeting and, indeed, Respondent announced that it had
withdrawn its proposal. Nonetheless, although the strike
was still on and Coyte told the mediator that he was
"ready, willing and available at any time to continue ne-
gotiations," the parties did not meet again until 7 June;
Coyte testified, without objection or controversion, that
the mediator had told him Dimino was not available
until then. Stahl's notes of the 12 May meeting, put into
evidence by Respondent, read "JD Next available meet-
ing June 7."
As we have seen, no bargaining took place at the 7
June meeting and, according to the minutes, Dimino said
that he would be available on the Thursday and Friday
of the following week (16 and 17 June). If Dimino was
available to meet on 16 and 17 June, the record does not
explain why no meeting occurred, the pattern, both
before an after that date, suggests that Respondent was
probably at fault, but it is unnecessary to make such an
assumption.
A 22 July letter in the record from Dimino to Lolli
shows that a meeting had been arranged for 23 August,
Coyte testified that the mediator had set up that meeting,
which, given Coyte's testimony that the Union had told
the mediator that it was ready to meet "at any time,"
gives rise to the reasonable assumption that the meeting
was delayed for at least most of that time by the Re-
86 Coyte's testimony on this subject, at Tr 487, seems subject only to
this construction Although Dominic testified that he personally never re-
ceived a request to bargain after 27 April, and strike coordinator Bell tes-
tified that he received no bargaining request in April and May, Dimino
failed to testify on the subject of requests for meetings after 27 April, a
failure which rather detracts from Respondent's broad assertion on brief
that "[i]t is undisputed that such frequent [union] requests never reached
the Company "
1095
spondent. Dimino's 22 July letter, referring to "certain
schedule conflicts," proposed a postponement until 30
August. The Union agreed. But in early August, Re-
spondent begged off again, because, as Dimino testified,
of his own unavailability, and the meeting date was post-
poned for 2 more weeks, from 30 August to 13 Septem-
ber. The latter meeting was terminated by Respondent
after 15 minutes because McKnight asked questions
about the nature of the working conditions that were in
place. While the Company's minutes neutrally state that
"[b]oth sides agreed to meet again . . on October 19th,
"Chief Engineer Green recalled that date was set be-
cause, he thought, "Dimino and Burns had other com-
mitments," while the union was saying that it wanted to
meet at any time.
The Board holds that the statutory duty to bargain
"surely encompasses the affirmative duty to make expe-
ditious and prompt arrangements, within reason, for
meeting and conferring." Rutter-Rex Mfg. Co., 86 NLRB
470, 506 (1949). The facts recited above demonstrate
that, prima facie, Respondent failed to satisfy this duty,
and it offered no explanation at the hearing for having
been able to meet with the Union on only 3 days in more
than 5 months
It is true, as Respondent contends, that General Coun-
sel's burden includes a demonstration that the Union did,
in fact, seek to have meetings with Respondent, but I be-
lieve the foregoing recital of uncontroverted testimony
by Coyte is sufficient for that purpose. I would think
that in a simple matter such as a request for meetings, it
can be presumed that the Federal mediator executed his
duty and attempted to arrange them. It is important to
point out that Dimino was never called upon to deny
that the mediator had been in contact with him.
Furthermore, I find inexplicable the documented fact
that as of 22 July, the earliest meeting that the parties
had been able to arrange by that date. was 23 August, a
month away; and that a month prior to the latter date,
Dimino was already seeking to postpone that meeting be-
cause of "certain schedule conflicts"-and then less than
2 weeks after 22 July, on 4 August, Dimino (according
to his own testimony) sought a delay of the 30 August
date, this time to 13 September. Finally, the parties did
not get to meet again in September the limitation date
here, as discussed) because, as Green testified, Dimino
and Burns had other commitments (until 19 October).
All this evinces a serious indifference to the statutory
requirement to meet "at reasonable times" for the impor-
tant business of collective bargaining.87 I conclude that
Respondent thereby violated Section 8(a)(5).
K. The Refusal to Furnish Information
The complaint alleges that since on or about 16 Sep-
tember, the Union has requested information "as to we
rates and working conditions of employees in the unit
.. . and the identity of an employee believed to be per-
87 In scheduling collective-bargaining sessions , a party must "display a
degree of diligence and promptness comparable to that which he
would display in his other business affairs of importance " Rutter-Rex
Mfg Co, supra at 506
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forming bargaining unit work ," which, the Respondent
has refused to furnish , violating Section 8(a)(5).
Dominic's minutes of the 13 September meeting show
that Union Attorney McKnight asked for information as
to the gross earnings figures of the NABET employees.
Respondent Attorney Burns replied that Respondent
would consider the request, and then asked why the
Union thought the Company was obliged to furnish the
data . McKnight answered that "we represent these
people and, we should know what they are making."
Burns then responded, "We don't agree that the Compa-
ny has to furnish you with that information."
McKnight asked the name of a new employee assigned
to the "PM Magazine" show, what job that person was
taking, and whether the new employee was a member of
the NABET unit . Burns replied that such questions were
not germane to negotiations , the purpose of the meeting.
McKnight persisted, and Dimino replied that the Compa-
ny was not interested in the new employee 's unit status
because " [i]t doesn ' t matter."
Subequently, McKnight inquired whether night dtffer-
ential pay had been eliminated. Dimino replied that
McKnight could ask his members. McKnight inquired
whether Respondent's 22 July proposal "reflects at
you are already doing"; Burns responded , "In some
cases, yes, and in some cases, no " When McKnight said
he would like to "ask more questions to eliminate confu-
sion," the Company took a caucus (15 minutes after the
meeting had begun). Eventually, the Respondent's nego-
tiators refused to return on the ground that they
"weren't going to be interrogated by the Union."
At the next meeting, on 19 October, McKnight began
by again asking the name of the new PM Magazine em-
ployee and relevant information about him , including his
unit status. The only information assertedly known by
the' company bargainers, and given to McKnight, was
that the individual was "probably editing " Dimino asked
McKnight to formulate a list of his questions and, ac-
cording to Green 's minutes of the meeting, "promised to
find the answers. and get back to the union." McKnight
stated the specific information desired about the new em-
ployee (whom he thought to be "Don McKoon"), in-
cluding his bargaining unit status.
McKnight then went on to seek information about an
employee named Sandy Spencer . Dimino said he would
send information about Spencer to the Union. McKnight
then went on to inquire in detail about the current per-
sonnel practice relating to technicians.
The next meeting was set for 9 November, said to be
the earliest date available to Attorney Burns.
On 7 November, Burns, writing from Miami, sent to
McKnight at his suburban Detroit office a letter respond-
ing to McKnight 's "request for information at our bar-
gaining session of October 19, 1983." The letter was re-
ceived in McKnight's office at some time on 9 Novem-
ber, predictably as soon as it could possibly have arrived
and also predictably too late to get the information into
McKnight 's hands in time for a scheduled morning meet-
ing in Cleveland on 9 November. In point of fact,
McKnight did not attend the 9 November meeting.
Burns' letter does not address the first question put by
McKnight on 13 September , which asked the gross earn-
ings of the NABET employees. As noted above, Domin-
ic's minutes show that Burns stated on 13 September,
"We don't agree that the Company has to furnish you
with that information." "Core" information, however,
such as employee wage data, has come to be regarded as
"presumptively relevant" so as to obviate any special
showing of pertinence, e.g., Shell Development v. NLRB,
441 F.2d 880, 887 (9th Cir. 1971). Respondent's claim on
beef that "the Union had the information" is simply an
argument based on the fact that, at the hearing in this
case, the Union produced "numerous" witnesses who tes-
tified about working conditions at the station. Their
knowledge of the post-7 June operations does not estab-
lish that the employee witnesses were aware of what all
50 unit employees were earning (and, given the host of
changes made at the station after 7 June , there was no
reason for the Union to settle for the speculation that the
employees were earning what they had been making
when the contract expired plus the 3-percent increase
given in July).
Similarly, although Burns' 7 November letter supplied
much employment information regarding the two em-
ployees about whom McKnight had inquired on 13 Sep-
tember and 19 October, it failed to respond to
McKnight's request for a statement of the Company's
position as to whether these two employees were consid-
ered by Respondent to be members of the bargaining
unit. While such a request for a statement of position
does not seek empirical data as such, it is undoubtedly of
importance that a union be informed of the company's
position with regard to the constituency of the bargain-
ing unit. The record contains employment forms which
show that Respondent makes entries as to whether each
of its employees is or is not represented by one of the
unions at the station The "name . . . of the unit employ-
ees are presumptively relevant data, Dynamic Machine
Co., 221 NLRB 1140, 1142 (1975), and in view of the
sweeping operational modifications made by Respondent
after the 1983 strike, its stance as to the inclusion or ex-
clusion of particular employees from the unit was a rea-
sonable and relevant inquiry.
I find that Respondent violated, Section 8(a)(5) in Sep-
tember and October 1983 by failing to supply to the
Union the requested information regarding the gross pay
of unit employees and the perceived unit status of em-
ployees McClung and Spencer, and by failing timely to
furnish the other data requested with respect to the latter
employees.
L. Respondent's Posthearing Motion -
On 8 July 1985, after the close of hearing and the
filing of briefs in this case, Respondent filed a "Motion
to strike and alternative Motion to Re-Open Hearing,"
based on the contention that "the General Counsel as-
serts in her brief, for the first time, that jurisdictional
changes and the transfer of supervision of unit employees
from the head of the Engineering Department to the
heads of other department in the station are unlawful be-
cause Storer allegedly now has unilateral control over
who is in the bargaining unit ." General Counsel subse-
quently filed a response seeking the denial of Respond-
STORER COMMUNICATIONS 1097
ent's motion, together with a motion to strike what is
termed "a thinly veiled attempt [by Respondent] to file a
reply brief to arguments which it apparently did not an-
ticipate."
This exchange of motions is based on General Coun-
sel's premise in her principal brief that by removing the
Union's exclusive jurisdiction over all work functions,
the Respondent effectively maintained the right unilater-
ally to determine who was in the bargaining unit, a right
which, General Counsel asserts, an employer may not
bargain to impasse in order to secure. The premise is
mistaken in that it has undoubtedly been many years
since the Union had exclusive jurisdiction over all work
functions, whatever that may mean in the present setting.
As indicated, over the years, the Union and the Re-
spondent have, by bargaining, shaped and reshaped the
contours of the Union's "exclusive jurisdiction," so that
for certain technical functions, nonunit employees have
been permitted to perform certain kinds of work and
have been prohibited from performing others. Even by
insisting to impasse on efforts to further reform the juris-
diction for the unit, Respondent would not, contrary to
the General Counsel, be "insist[ing] to impasse on a pro-
posal which would give it unilateral control over who is
in the bargaining unit." The jurisdictional issue in bar-
gaining was not who should be within the unit of "tech-
nicians" (as to which Respondent's motion state, "The
same employees who were part of the unit when most
were nominally assigned to the Engineering Department
are considered to be unit members today"), but what
work, if any, should be exclusively theirs.
Of course, under a system of fragmented jurisdictional
exclusivity and nonexclusivity, it may become difficult to
define those employees who belong to the unit. But the
Board's unit clarification procedure is always in place to
solve that sort of problem, should it arise.
In any event, as Respondent contends, the complaint
contains no allegation that the Respondent insisted to im-
passe upon a nonmandatory or illegal proposal . I shall
therefore disregard pages 67-70 of General Counsel's
brief insofar as they suggest that a violation may be
founded on such a theory.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) the Act.
3. At all material times, the Union has been the exclu-
sive collective-bargaining representative of Respondent's
employees in the following described unit:
All full-time and regular part-time broadcast techni-
cians employed by Respondent in the Engineering
Department of Television Station WJKW-TV andor
all broadcast technicians at its facility at 5800 S.
Marginal Road, Cleveland, Ohio, excluding the
chief engineer , assistant chief engineer , announcers,
stage hands, photographic technicians, office cleri-
cal employees , guards and supervisors as defined in
the Act.
4. By, -'since on or about 25 March 1983, refusing to
permit the Union•to post on Respondent's bulletin boards
minutes taken - by the Union of the collective-bargaining
negotiations between the parties, the Respondent violat-
ed Section 8(a)(1) of the Act.
5. By, in March or early April 1983, indicating to an
employee that the Union's negotiations with Respondent
would be futile, Respondent violated Section 8(a)(1) of
the Act.
6. By, on and after 20 April 1983, refusing to discuss
nonjurisdictional issues until all jurisdictional issues had
been received, Respondent violated Section 8(a)(5) of the
Act.
7. By,_ on 27 April and 2 May 1983, communicating
changes- in working conditions directly to employees
without dealing with the Union, Respondent 'violated
Section 8(a)(5) of the Act.
8. By, on 3 May 1983, withdrawing its final offer for
the reason that' the Union voted to strike, Respondent
violated Section 8(a)(1) of the Act.
9. By, on and after 29 April, 2 May, and 7 June 1983,
at times when Repondent could not reasonably have
concluded that the parties had reached impasse in their
bargaining and without affording the Union a thorough
and complete opportunity to bargain, making changes in
the working conditions and benefits of the bargaining
unit employees, Respondent violated Section 8(a)(5) of
the Act.
10. The strike which commenced on 3 May 1983 was
an unfair labor practice strike.
11. By, on 7 June 1983, threatening to permanently re-
place unfair labor `practice strikers, Respondent violated
Section 8(a)(1) of the Act.
12. By, on 22 July 1983, submitting a regressive con-
tract proposal to the Union, Respondent violated Section
8(a)(5) and (1) of the Act.
13. By, from after 27 April to 30 September 1983, not
being available at reasonable times to participate in col-
lective-bargaining negotiations , Respondent violated Sec-
tion 8(a)(5) of the Act.
14. By, since on or about 16 September 1983, failing
and refusing timely to furnish to the Union information
relevant to the needs of the Union, the Respondent vio-
lated Section 8(a)(5) of the Act.
15. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
16. Except as specifically found above and further
specified below,, the Respondent has not otherwise vio-
lated the Act as alleged in the amended complaint.
THE REMEDY
Having found that the Respondent has violated, the
statute in various respects, I shall recommend that it)be
required to remedy those violations.
The traditional cease-and-desist order will be entered
and will be adequate to remedy violations such as, e.g.,
the coercive statement made by Ed Guild and the threat
to permanently replace unfair labor practice strikers.
A somewhat more complicated subject is that of the
changes in working conditions and benefits made by Re-
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent beginning in late April 1983. The complaint al-
leges, and the record shows, that on 29 April and 2 May,
Respondent made certain unilateral changes in jurisdic-
tional functions theretofore recognized as the exclusive
work of the Union. The complaint alleges, and the
record further shows, that beginning on or about 7 June
1983, Respondent made additional unilateral alterations
in the Union's exclusive jurisdiction and also made a
number of unilateral changes with respect to benefits
which the unit employees had been receiving prior to the
strike, both resulting from the adoption by Respondent
of the limited terms and conditions contained in the em-
ployee handbook as the sole source of benefits and work-
ing conditions for the unit employees.88 By virtue of
making such changes in benefits, as alleged in the com-
plaint, the Respondent eliminated paid lunch periods;
eliminated an existing penalty for missed meal periods;
discontinued scheduling 12-hour rest periods between
shifts and paying a penalty for failing to schedule 12-
hour rest periods; ceased paying a penalty for work per-
formed for more than 10 consecutive straight-time days
or beyond 12 hours; discontinued the payment of a night
differential; discontinued the payment of double time;
transferred employees from the engineering department
to various other departments;89 ceased preparing weekly
work schedules in cooperation with a union steward and
ceased posting such schedules at least 14 days in ad-
vance; ceased giving 48-hour notice of schedule changes
to unit employees and discontinued payment of a wage
penalty for changing schedules without such notice; dis-
continued scheduling meal periods 3 to 5 hours after the
beginning of a shift; and, in July, granted employees a 3-
percent wage increase.
Since I have concluded that it was unlawful for Re-
spondent to take these actions, I shall recommend that
the Respondent be ordered to remedy its changes by re-
instating the jurisdictional and nonjurisdictional terms
and conditions of employment that obtained prior to 27
April 1983 and by compensating those employees who
suffered financial losses as a result of the unilateral
changes. The Respondent's liability to compensate em-
ployees for benefits , penalties, and premiums not paid,
plus interest on those sums (see Isis Plumbing Co., 138
NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651
(1977)), shall run from the date of the changes until the
terms and conditions are changed, if ever, in accordance
with the law. I note that recently, in San Antonio Port-
88 As Respondent attorney Burns stated at the 19 October meeting,
"All things which differed from the employees handbook were eliminat-
ed "
89 The record shows to my satisfaction that these transfers adversely
affected a substantial number of employees in a material manner and
thereby constituted mandatory subjects of bargaining Gary Jones, for ex-
ample, went from an all-around technician whose duties varied widely, to
a control room operator in the programming department whose duties
were narrowly confined. The same was true of other (although not all
other) employees Moreover , the transfer from the engineering depart-
ment to the other departments affected their entitlement to vacations in
various ways At no time prior to the implementation of these transfers
was a proposal made to the Union that contemplated such a wholesale
change (or any change ) in the method of organization or in the functions
of the technicians, nor was the Union given any notification that the Re-
spondent intended to undertake such a dramatic alteration of its engineer-
ing department
land Cement Co., 277 NLRB 309 (1985), the Board,
while reaffirming the established objective to restore the
status quo that existed before Respondent ignored its
statutory obligation to bargain, decided not to require
the employer to reinstate the preexisting unilaterally
changed conditions because it believed that such an
order would cause unnecessary disruption of the Re-
spondent's operations and that the other aspects of our
order fully remedy the unfair labor practices. In the
present case, however, there is no indication that either
statement is applicable.
A review of the changes set out above discloses that
some of them can be measured in monetary terms and
some cannot. An example of the former is the elimina-
tion of paid lunch periods; an example of the latter is the
discontinuance of scheduling meal periods 3 to 5 hours
after the beginning of a shift. The compensation remedy
here recommended refers only to those changes which
eliminated a benefit, penalty, or premium otherwise pay-
able to unit employees under the surviving terms of the
expired contract. There is no appropriate way of giving
tangible compensatory relief for a change such as Re-
spondent's failure to schedule meal periods at given
times.
The same conclusion applies to my findings that Re-
spondent took unlawful unilateral action in the area of
the Union's work jurisdiction. The relevant complaint al-
legation states (emphasis added)-
Respondent eliminated the Union's exclusive juris-
diction over all work functions, including but not
limited to editing of videotape, previewing and
screening of one-inch and two-inch videotape, the
operation of the vidifont for recall purposes, oper-
ation of recording equipment in any two-man crew
situations, the technical operation of the announce
booth and recording of voice tracks.
The record establishes that Respondent indeed unilateral-
ly assigned other than unit members to perform the six
specific functions listed in the complaint as set out above;
and the record also shows that after the strike, Respond-
ent assigned to nonunit personnel other functions that
had formerly been within the Union's exclusive jurisdic-
tion (some of which the Respondent had never, as it con-
strued its original jurisdictional proposal on 19 April,
proposed to change). As to these alterations in the juris-
dictional allocation, there is no direct evidence that any
employees in the unit suffered any financial loss as a
result of the assignment of this work to nonunit employ-
ees.90
90 The record indicates that there may have been fewer vacation tech-
nicians and temporary technicians hired as a result of this dilution of unit
work, but that is not a sufficiently firm basis for remedial relief
It appears to be unnecessary to describe in detail the testimony given
by the General Counsel's witnesses about the assignment of former exclu-
sive NABET work to other employees Aside from the specific changes
announced on 27 April and 2 May, the effect of applying to the unit em-
ployees on and after 7 June the terms and conditions set out in the em-
ployee handbook was to eliminate , without benefit of valid impasse or
union waiver, the entire surviving jurisdictional contract clause The
extent to,which nonunit employees actually performed former NABET
exclusive functions is irrelevant for present purposes
STORER COMMUNICATIONS
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed91
ORDER
The Respondent, Storer Communications, Inc., Cleve-
land, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discriminating against the National Association of
Broadcast Employees and Technicians, AFL-CIO, or
any other labor organization, by refusing to allow the
labor organization to post minutes of negotiations on bul-
letin boards located at Station WJKW-TV when Re-
spondent permits unions and employees to routinely post
notices of a business and personal nature on such bulletin
boards.
(b) Coercing employees by indicating to them that the
Respondent will deny them the right guaranteed by the
Act to have their employer engage in good-faith bargain-
ing
(c) While engaged in collective-bargaining negotia-
tions, insisting on bargaining with the Union, or any
other labor organization, about a certain subject or sub-
jects while not permitting the labor organization to dis-
cuss other relevant subjects until preliminary agreement
has been reached on the first subject or subjects.
(d) Communicating directly with employees and with-
out first consulting the Union, or any other labor organi-
zation, regarding terms and conditions of employment
which are appropriately the subject of bargaining be-
tween an employer and a labor organization
(e) Withdrawing a bargaining offer or taking any other
retaliatory action against employees for the reason that
they engage in a lawful strike
(f) Making changes in the terms and conditions of em-
ployment of employees represented by the Union, or any
other labor organization, without having afforded the
labor organization a thorough and complete opportunity
to negotiate with Respondent as the exclusive collective-
bargaining representative of Respondent's employees
with respect to such changes.
(g) Threatening to permanently replace unfair labor
practice strikers.
(h) Making a regressive contract proposal without ap-
propriate and legitimate justification for doing so
(i) Refusing to be available at reasonable times to
engage in collective-bargaining negotiations.
(j) Refusing to timely furnish to the Union, or any
other labor organization, requested information which is
relevant to the performance by the labor organization of
its duties as the exclusive collective-bargaining represent-
ative of employees.
(k) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights under Section 7 of the ACt.
91 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1099
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate, honor, and apply the terms and condi-
tions of employment relating to the jurisdiction of the
union bargaining unit, as set forth and previously applied
under Sections 4, "Jurisdiction" and 5, "Remotes" of the
collective-bargaining agreement between the Respondent
and the Union which expired pursuant to agreement of
the parties on 29 April 1983, unless and until such provi-
sions are changed in accordance with the law.
(b) Reinstate, honor, and apply all provisions of the
collective-bargaining agreement which expired pursuant
to the agreement of the parties on 29 April 1983 and
which are referred to in subparagraphs 10(G)(l)-(10) of
the complaint in this proceeding, as amended in writing
and at the hearing, unless and until such provisions, are
changed in accordance with the law.
(c) In the manner described in the remedy section of
this decision, make whole with interest all employees in
the Union bargaining unit for monetary losses suffered
by them as a result of Respondent's failure since on and
after 7 June 1983 to comply with the surviving provi-
sions of the expired collective-bargaining agreement
which provided for payment of benefits, penalties, premi-
ums, differentials, and other extra payments to employees
in the circumstances set out in the expired collective-bar-
gaining agreement.
(d) On request by the Union, transfer all technicians in
the bargaining unit to the engineering department (or the
department of technical services or whatever name the
Respondent uses to designate that department at present)
under the same terms and conditions of employment
which obtained as of 27 April 1983, unless and until Re-
spondent is entitled to retransfer the unit employees in
accordance with the law. This provision shall not, how-
ever, require or permit the unilateral rescission of any
improvement in wages, hours, and terms and conditions
of employment granted to technicians since the aforesaid
date.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(f) Post at its station Cleveland, Ohio, copies of the at-
tached notice marked "Appendix "92 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered •by
any other material
92 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that allegations in the amend-
days from the date of this Order what steps the Re- ed complaint not found to constitute violations of the
spondent has taken to comply. Act are dismissed.