Taft Broadcasting Co.

National Labor Relations Board - Board Decisions

Mar 20, 1967

163 N.L.R.B. 475 (N.L.R.B. 1967)

TAFT BROADCASTING CO.
WE WILL NOT in any other manner restrain or
coerce employees in the right to self-organization, to
form labor organizations , to bargain collectively
through representatives of their own. choosing and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization , as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor - Management Reporting and Disclosure Act
of 1959.
WE WILL make Clayton I. Hart and Al Fast whole
for any loss of earnings either may have suffered by
reason of our denial of membership to them.
All artists , engaged as employees , are free to become or
remain, or to refrain from becoming or remaining,
members of American Guild of Variety Artists, AFL-CIO,
except to the extent this right may be affected by an
agreement , where lawful , requiring membership in a labor
organization as a condition of employment , as authorized
by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
AMERICAN GUILD OF
VARIETY ARITISTS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, Room 706
Federal Office Building , 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711.
Taft Broadcasting Co., WDAF AM-FM TV and
American Federation of Television and
Radio Artists , AFL-CIO, Kansas City Local.
Case 17-CA-2800.
March 20,1967
DECISION AND ORDER
On July 13, 1966, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
The Respondent has requested oral argument . As the record,
the Trial Examiner's Decision, and the exceptions and briefs
475
Decision together with supporting briefs. The
Respondent also filed an answering brief.'
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent with this
Decision and Order.
The Respondent excepts to the Trial Examiner's
conclusion that it violated Section 8(a)(5) and (1) of
the Act by unilaterally changing existing terms and
conditions of employment while negotiating with the
Charging Party, hereinafter called the Union, for a
new collective-bargaining agreement. In reaching
this conclusion, the Trial Examiner found that the
parties had not bargained to an impasse on the
issues encompassed by the Respondent's changes.
The record shows the following facts:
On April 1, 1964, Respondent, Taft Broadcasting
Co., acquired ownership of WDAF AM-FM TV and
assumed its predecessor's collective-bargaining
agreement with the Union. In May 1965, the
Respondent sent the Union a notice of termination of
the aforementioned agreement effective October 1,
1965, and requested bargaining for a new contract.
Pursuant to this request the parties met for the first
time on June 4, 1965. Neither side had proposals
ready. At their second meeting, which was held on
June 24, the Respondent furnished the Union its
proposal for a new contract. Apparently, this
proposal, which was discussed at the third meeting
of the parties on August 24, represented a
substantial departure from the agreement then in
effect. The Company wanted complete
interchangeability with respect to categories of
employees and between broadcasting media without
the limitations imposed by the existing agreement.
The Company also stated that it wanted no limitation
on the amount of prerecording of broadcast material.
Under the old agreement prerecording was limited to
not more than 5 hours per medium (AM, FM, TV) per
broadcast day.
The parties next met on September 9, 1965. At
that time the Union furnished the Company its
proposal for a new agreement which was,
essentially, a carryover of the old contract with
increases in wage rates and fringe benefits and with
certain deletions in the duties of artists. The parties
met three more times during September. Some
agreement was reached on disputed issues (e.g.,
preparation time, outside employment) where no
change in the contract was involved. However, there
was no agreement on or discussion of those terms of
the Company's proposal dealing with interchange
adequately set forth the issues and positions of the Respondent,
its request is hereby denied.
163 NLRB No. 55
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between categories and between media, or of
prerecording without limitation. On September 30,
the parties extended the current contract by an
agreement which provided for a 15-day termination
notice.
From that time through October 22 the parties
held six more bargaining sessions without reaching
agreement on the major issues which separated
them. They did agree to continue the existing policy
of permitting general managers and program
directors to broadcast station editorials. However,
with respect to the Company's proposal concerning
interchange between categories, discussions were
fruitless. Further, the Respondent advised the Union
that it considered "director-coordinators" to be
encompassed within its proposal for employee
interchange between categories. The status of
negotiations at this stage was summed up by the
Union's executive secretary and chief negotiator in
his October 26 report to employees: "Following
these 13 bargaining sessions I can only report to you
that no progress has been made. On the contrary in
many areas we are further apart now than when the
negotiations started." And again on November 5:
"... we have held two more bargaining sessions and
still we have no progress." The Union, in this
communication, called for a strike vote. Apparently,
the only agreement reached in this period concerned
the union-shop provision.
The parties conducted bargaining sessions 14
through 20 in the period November 3 through 19,
1965. Some progress was made when the Company
agreed to longer rests between workweeks in
accordance with the union proposal and also agreed
to withdraw its proposed changes in meal periods.
However, the Company maintained in its
discussions that it would not accept restrictions on
the assignment of employees, including director-
coordinators, within categories even after the Union
modified its position to permit more latitude to
announcers doing newscasts. Further, the
Respondent rejected the Union's demand that it take
certain staff employees off the air after the Board, in
a unit clarification proceeding, had found them to be
supervisors and therefore excluded them from the
contractual unit .2 At this stage in negotiations, on
November 19, 1965, the Union gave the Respondent
notice of its intention to terminate the contract
extension agreement.
At the 21st meeting of the parties, which was held
on November 23 with a Federal mediator in
attendance, the Respondent agreed to the Union's
proposal regarding an increase in minimum
overtime. The parties also agreed to return to the
termination provision in the old contract. They
agreed further that future meetings would be held at
the office of the Federal Mediation and Conciliation
Service. Bargaining continued on November 24 at
which time the Company furnished the Union a new
proposal entitled "INTERCHANGE BETWEEN
CATEGORIES," which included, among other
things, the following provisions:
Any artist covered by this Agreement may
perform in any category in or out of this
Agreement upon payment only of the
appropriate in-shift fee provided by this
Agreement, if any, not to exceed hours per week
per artist.
Staff Directors and Coordinators: (Old contract
provision carried over, with certain deletions,
including the following deletion: "A Producer
Director shall be assigned to every live 'on-
camera' program in addition to a coordinator.")
The session ended, however, when the Union
refused to continue negotiating because of the
presence of a company stenographer.
At the 23d meeting, which was held on
November 29, agreement was reached on only one
issue when the Company dropped its demand for a
provision concerning discharge without cause. At
this meeting the Company furnished the Union a
"summary of positions" which reviewed, among
other things, the progress of the parties on the
following issues:
Interchange between media: Union rejects the
Company's proposal for dropping time and
number restrictions;
Pre-recording: Union rejects the Company's
proposal to drop restrictions. In its summation
the Company stated that it would be willing to
consider time limits on AM and TV but not on
FM;
Supervisors: Union rejects the Company's
proposal to continue the broadcasting duties of
certain employees after these employees were
excluded from the unit by the Board in the
aforementioned UC proceeding, with the
exception of certain editorial broadcasts
mentioned above;
Wages: The Company noted the Union's
proposal for increases in the weekly base salary
ranging from $5.50 to $7.50.
At this meeting, according to the testimony of
Robert Wormington, a negotiator for the Company,
the Union's chief negotiator expressed
dissatisfaction with the state of negotiations as they
then existed , stating that the Company's proposal
with respect to interchange between categories was
no more acceptable than the one offered at the
beginning of negotiations. Further discussion of that
issue was dropped. The Company made its first
money proposal, offering to grant employees covered
2 Taft Broadcasting Company, Case 17-UC-3 (Regional
Director 's Decision dated October 13, 1965)
TAFT BROADCASTING CO.
by the contract a $7 across-the-board increase in
weekly base pay retroactive to October 1, 1965, with
an additional $7 increase on the anniversary date of
the contract, assuming it to be for a 2-year term. The
Union stated that it would accept the Respondent's
offer if the latter would also agree to a continuation
of the old agreement. The Company rejected this
counterproposal. At this point the parties were split
up by the Federal mediators. On November 30 the
parties met in separate session, but no bargaining
took place.
On the following day, the Union issued a third
communication to employees advising them of the
issues still in dispute after 24 bargaining sessions.
The Union stated that 99 percent of the issues still
outstanding "stem from Company demands for
regressive changes in the current contract." With
respect to the Company's proposal to combine the
use of prerecording with the elimination of
categories and its proposal to continue broadcasting
by employees removed from the bargaining unit, the
Union stated that "such anti-union weapons we can
not place in the hands of the Company."
At approximately the same time the Union
established a mobile office in the immediate vicinity
of the Respondent's radio station and orders were
placed for picket signs. The signs were painted on
December 1, 2, or 3, 1965.
On December 3 the parties met in separate
session . On that date, the Company informed the
Union that it would put certain changes into effect
the next day. David Schnabel, the union spokesman,
asked the Respondent's attorney "if it was the
Company's position that we had bargained to an
impasse on all items." The attorney replied "not
necessarily" or as he himself subsequently testified
"not necessarily on each and every issue but on the
contract." Thereafter the parties went into joint
session and, among other things, discussed the
prerecording issue . The Union offered the Company
unlimited prerecording on FM if the Company would
accept an absolute prohibition against prerecording
of AM and TV. The Company rejected this offer
noting that as it broadcasts independently on FM
only 8 or 9 hours per day the total amount of
prerecording offered by the Union would be less
than that permitted under the old contract.
The parties met again the next day, December 4,
at which time the Company furnished the Union a
list of changes it planned to put into effect at
5 o'clock that afternoon.3 The issues encompassed
by the announced changes, however, were not
discussed at this meeting, although the parties did
agree to a subsequent bargaining session. At the
hearing, John McClay, executive vice president of
Taft, and chief negotiator for the Respondent at the
time the above changes were announced, testified
9 A copy of the Respondent's notice announcing these changes
is attached marked "Appendix" to this Decision and Order
4 The Respondent excepts to the Trial Examiner's ruling
477
that the imposition of these changes was considered
by the Company to be the most appropriate means of
breaking the deadlock in negotiations which it
believed had occurred. Other company
representatives testified variously that the Company
instituted the aforementioned changes in order to get
some of the relief it had been seeking in
negotiations, that there was no intent to bypass the
Union in an appeal directly to employees, and that,
by December 3, the Company had everything out
that it knew to put out "at that point."
The parties met four times between December 6
and 10, 1965. In this period some agreement was
reached on issues unrelated to the changes
announced by the Respondent. They included a
pension plan provision, an increase in the rate for
contract artists, and a continuation of the old
contract provision with respect to vacations. The
Company rejected, however, proposals made by the
Union concerning the duties of newscasters and
announcers . At the meeting of December 10 the
Company furnished the Union its "final" position on
the major issues still in dispute. Its position did not
vary from that taken in the earlier bargaining
sessions except that it stated its willingness to
accept a 70-hour prerecording limitation on AM and
TV provided no limitation was placed on FM, and it
also offered some modification of its earlier proposal
regarding the duties of announcers and newscasters
and, as the Respondent's announced changes had by
that time been put into effect, the Union gave 24-
hour strike notice. The strike began on
December 12. More than 10 meetings between the
parties occurred between that date and the date of
hearing herein without the parties coming to an
agreement on the major issues outstanding. A
contract was negotiated, however, and the strike was
terminated subsequent to the hearing but prior to
the date of the Trial Examiner's Decision.4
The Trial Examiner found that the parties had not
reached an impasse on the prerecording issue at the
time the Respondent announced the changes
discussed herein, as evidenced by its subsequent
offer to accept the 70-hour limitation on AM and TV
which was not made until after the unilateral
changes were announced. He also found that an
impasse had not occurred on the question regarding
signed duties (elimination of the double manning
requirement of the old contract), of director-
coordinators, or for that matter on the question of
their inclusion in the unit. He did find that the
parties had reached an impasse in negotiations
concerning the interchange of employees between
categories and between media.
The Trial Examiner held, however, that the
changes imposed by the Company should be viewed
as a single interlocking issue: "whether the
denying its motion to reopen the record for receipt of evidence
relating to the strike settlement We hereby adopt the ruling made
by the Trial Examiner for the reasons set forth in his Decision
478 DECISIONS OF NATIONAL
Employer in exchange for the $7 across-the-board
wage increases should be permitted the freedom to
assign its artistic personnel without regard to the
categories and media which had theretofore existed
and without paying the additional fee required under
the terms of the preexisting contract, and the
freedom to prerecord additional material." On this
issue the Trial Examiner found no impasse. Further,
he found that, at least insofar as prerecording is
concerned, the unilateral changes first announced
on December 4 and subsequently implemented do
not meet the requirement that they be no greater
than those previously proposed to the Union. We
disagree with these ultimate findings of the Trial
Examiner.
An employer violates his duty to bargain if, when
negotiations are sought or are in progress, he
unilaterally institutes changes in existing terms and
conditions of employment.5 On the other hand, after
bargaining to an impasse, that is, after good-faith
negotiations have exhausted the prospects of
concluding an agreement , an employer does not
violate the Act by making unilateral changes that are
reasonably comprehended within his pre-impasse
proposals.6
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
negotiations, the importance of the issue or issues as
to which there is disagreement, the
contemporaneous understanding of the parties as to
the state of negotiations are all relevant factors to be
considered in deciding whether an impasse in
bargaining existed.
Applying the foregoing standards to the instant
case, we believe that the parties here reached an
impasse in negotiations. As found by the Trial
Examiner, there is no evidence that the Respondent
engaged in bad-faith bargaining. The Respondent
wanted certain changes in working conditions which
would give it greater flexibility in the assignment of
its personnel. As viewed by the Union, this meant
serious loss to its members. Both parties took strong
positions. Both parties bargained in good faith with a
sincere desire to reach agreement. However, after
more than 23 bargaining sessions , progress was
imperceptible on the critical issues and each
believed that, as to some of those issues, they were
further apart than when they had begun
negotiations. Viewed in this light and from the
vantage point of the parties on December 4, when
the Respondent announced the changes here
involved, we are unable to conclude that a
continuation of bargaining sessions would have
culminated in a bargaining agreement. Of course it
is true that, by December 4, other issues had been
resolved by the parties. But, in this respect, an
impasse is no less an impasse because the parties
were closer to agreement than previously, and a
deadlock is still a deadlock whether produced by one
LABOR RELATIONS BOARD
or a number of significant and unresolved
differences in positions.
In these circumstances we find that an impasse in
contract negotiations had occurred when, on
December 4, 1965, the Respondent announced the
changes here in question. We find further that these
changes were reasonably comprehended within the
Respondent's proposals which preceded impasse.
We hold, therefore, that the Respondent, having
taken the unilateral action discussed above, did not
thereby violate Section 8(a)(5) and (1) of the Act.
Accordingly, we shall dismiss the complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
against the Respondent , Taft Broadcasting Co.,
WDAF AM-FM TV, Kansas City , Missouri , be, and
it hereby is, dismissed.
' N L R B v Benne Katz , etc, d/b/a Williamsburg Steel
Products Co , 369 U S 736
6 N L R B . v Intracoastal Terminal , Inc , et al , 286 F 2d 954
(C A 5)
APPENDIX
NOTICE TO ALL ANNOUNCERS, NEWSMEN,
DIRECTOR-COORDINATORS AND FLOOR MANAGERS
Effective immediately the following changes in
operating procedures and compensation will take
place:
1. Wages for all employees within the bargaining
unit represented by AFTRA will be increased by
$7.00 per week.
2. Announcers may be required to interchange
between media without limitation on a number of
times per day or the period between appearances.
3. Use of prerecording may be increased to a
maximum of 70 hours per week per medium on AM
and TV and without limit on FM.
4. The Company proposal with respect to changes
in the duties section of the contract will be in effect
with the following specific changes to be instituted
immediately:
a. Announcers may be required to do news,
weather and sports in shift for the applicable in-
shift fee.
b. Newsmen may be required to do sports in
shift for the applicable in-shift fee.
c. The assignment of two director-
coordinators to live programs will be at the
Company's discretion, as will be the assignment
of a director-coordinator to station breaks.
d. Other services may be required out-of-
category, but in shift, up to ten hours per artist
per week.
Dated, December 4,1965.
TAFT BROADCASTING CO.
'T'RIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: Upon a charge filed
December 2, 1965, amended December 15, 1965, and
again on January 31, 1966, a complaint was issued on
February 2, 1966, on behalf of the General Counsel by the
Regional Director of Region 17. The complaint alleges that
Taft Broadcasting Co., WDAF, AM-FM TV, hereinafter
called the Respondent or the Employer, had engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended.
Respondent filed an answer denying that it had engaged in
the unfair labor practices alleged. I held a hearing in
Kansas City, Missouri, on April 5, 6, and 7, 1966. All
parties were present and were afforded a full opportunity
to be heard. Oral argument was waived and briefs were
filed by the General Counsel and Respondent.'
Respondent, after the hearing, filed a motion to reopen
the record to receive a copy of a purported strike
settlement agreement and contract, and copies of alleged
resignations of five members of the unit. General Counsel
filed a response thereto joining in the motion and moving
further that oral testimony be taken regarding the effect of
the documents, and the manner in which they were
obtained. I issued an Order giving each party an
opportunity to submit argument and authority in support
of their motions. In response thereto both parties
submitted argument which I have duly considered.
Respondent contends that the evidence is relevant if I
find the unfair labor practice was committed as alleged,
and that the strike is or was an unfair labor practice strike,
and further it is relevant in framing an order, in relation to
an order of reinstatement of the unfair labor practice
strikers, General Counsel appears to contend that the
evidence offered, and further oral testimony relating
thereto, is relevant to a determination of the employer's
good faith \n instituting the unilateral changes and to a
determination of the strikers' status.
The complaint herein is very narrowly drawn; there is
no allegation of general bad faith on the part of
Respondent, nor of a failure to reinstate unfair labor
practice strikers upon demand. There is no allegation of an
8(a)(3) violation in regard to the purported resignations,
although the General Counsel, by his responses to the
motion appears to cast doubt on the manner in which they
were secured. No motion to amend the complaint has to
date been filed, nor, to my knowledge, has a new
complaint issued with regard to these items. Under the
pleadings as they exist, and in view of my disposition of the
issues with which I am faced by the complaint, hereinafter
set forth, the motions are denied. See Waukesha Sales &
Service, Inc., 137 NLRB 460, 461.
Upon consideration of the entire record including the
briefs and upon my observation of the demeanor of the
witnesses appearing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Delaware corporation , engaged in
commercial radio and television broadcasting with
facilities in various States of the Union, including the
facilities herein involved at Kansas City, Missouri,
' After the hearing counsel for the Respondent and for the
General Counsel filed a motion and stipulation to correct the
479
operating under call letters , WDAF, AM-FM and TV,
during the past calendar year , derived a gross income in
excess of $100,000 from sales of its services of which in
excess of $50,000 was received from customers located
outside the State of Missouri . During the same period, the
employer purchased interstate news service valued in
excess of $ 10,000 and broadcast materials and rental films
valued in excess of $5,000 from points outside the State of
Missouri for use at its Kansas City facility.
Respondent is now and at all times material herein has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find, that American Federation of
Television and Radio Artists, AFL-CIO, Kansas City
Local, herein called the Union , is and at all times relevant
hereto, has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Three issues are raised by the pleadings: (1) whether
since on or about December 3 and 4, 1965, Respondent
failed to bargain in good faith with the Union in an
appropriate unit for purposes of collective bargaining by
unilaterally changing existing wage rates, hours, and other
terms and conditions of employment; (2) whether the unit
is appropriate; and (3) whether the strike which
commenced immediately after the announcement of the
unilateral changes is an unfair labor practice strike.
B. Background
On or about April 1, 1964, Respondent purchased from
Transcontinent Television Corporation the three
broadcasting stations involved , WDAF AM-FM and TV,
assuming the then existing contract between the Unidn
and Transcontinent Television Corporation . The contract
by its terms covers the unit of all radio and television
announcers, newscasters , sportscasters , floor managers,
director - coordinators , and other talent or artists , excluding
news director, assistant news director , farm director,
production manager, and other employees and supervisors
as defined in the Act . This is the unit alleged by the
General Counsel to be appropriate for purposes of
collective bargaining.
On May 20, 1965, Respondent , by a letter signed by the
general managers of the television station and the radio
stations and addressed to the Union , served notice of
termination of the existing collective -bargaining
agreement effective October 1, 1965, and expressed the
Respondent's desire to commence negotiations by June 1,
1965.
After a preliminary meeting on June 4, the Respondent
submitted to the Union on June 24 its proposal for a new
contract which provided for a number of changes and
particularly for a unit change excluding the director-
coordinators.
Thereafter , on July 26 , 1965, Respondent filed with the
Regional Office in Kansas City a unit clarification petition
(Case 17-UC-3), in which the Respondent proposed a unit
transcript in various respects . It appearing proper, the motion is
granted and the record is corrected as prayed.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including radio and television announcers , newscasters,
sportscasters , and floor managers employed by the three
stations , and excluded all other employees including the
news director , assistant news director , production
manager , and television director - coordinators , and any
other supervisors as defined by the Act.
No bargaining took place between June 24 and
August 24 , 1965. On the latter date the parties met and the
Union commenced asking questions from a prepared list of
38 pages concerning the Employer 's proposal . After going
through some 28 pages of the prepared questions, the
Employer declined to continue the discussion claiming
that the Union was not engaging in collective bargaining
inasmuch as it was not agreeing or disagreeing with any of
the Employer 's proposals . The Union through Schnabel,
who represented the Union at all stages of the
negotiations , asserted that the Company ' s proposal was so
different from the preceding contract that it was necessary
for the Union to have answers to its questions before it
could intelligently negotiate . The Employer caucused and
its representatives left the meeting.
During the discussion in the above meeting, in reference
to article VI of the Company ' s proposal on sick leave,
which simply stated that the Company agrees to grant sick
leave in accordance with the then current policy of the
Company , the Union requested that it be furnished with a
statement of the then current policy of the Company, as
well as a statement of the policy of the predecessor
company. This latter resulted from the fact that in the
expiring contract the sick leave clause provided for sick
leave in accordance with the policy existing at the time.
Additionally , Respondent 's proposal as to pension and
welfare provided that in lieu of all other company profit-
sharing, pension, or welfare plans the Company will
contribute to the AFTRA pension and welfare funds, etc.
The Union requested that it be furnished a copy of
Respondent 's profit-sharing , pension , or welfare plans, so
that it could negotiate whether to seek one or the other or
both.
Respondent ' s proposal was silent as to director-
coordinators and contained no monetary provisions
Respondent at the hearing stated that this was deliberate,
because of its position that director -coordinators do not
belong in the unit and also because the Taft Company's
negotiations strategy entailed making no offer on monetary
items until late in the negotiations so that the Employer
could assess the value of the contract as it shaped up.
After the August 24 meeting , the parties continued to
meet and negotiate on various dates, 9 times in
September , 7 times in October, and 11 times in November.
In the meantime , on October 13, 1965 , the Regional
Director issued his decision and clarification of the
bargaining unit pursuant to the petition in Case 1'-UC-3,
excluding the news director , farm director , and production
manager from the bargaining unit and including the
director - coordinators . Respondent file,[ a request to the
Board for review of the Regional Director ' s decision which
was, on December 8, 1965 , denied by the Board on the
ground that it raised no substantial issues warranting
review.
On September 30, 1965, because the contract expired at
midnight of that day, the parties agreed to extend the
contract indefinitely subject to termination on 15-day
notice. Thereafter, on November 19 the Union notified the
Respondent that it would terminate the contract effective
December 4
On December 3 Respondent notified the Union that it
would institute certain unilateral changes effective at
5 p.m., December 4, and asked the Union if it was
planning to strike at that time. The parties met again on
December 4 and discussed Respondent's decision to
change working conditions unilaterally. They also
discussed some contract issues without reaching
substantial agreement. At 4 p m. on December 4 or shortly
thereaftei, Respondent's negotiating representative,
McClay, telephoned the stations diiecting that a notice be
posted detailing the unilateial changes.
The parties met again on December 6, 7, 9, and 10 On
December 9, the Employer posted a notice of additional
assignments made pursuant to the changed working
conditions of which it had given notice to the Union on
December 3 and 4. The Union met and resolved to strike in
view of Respondent's unilateral changes in working
conditions. On December 10, the Union gave 24-hour
notice that the strike would commence.
Based upon their contention that the unilateral changes
were unlawful and constituted a refusal to bargain, the
Union and the General Counsel contend that the strike
which resulted therefrom is an unfair labor practice strike.
Since the strike commenced the parties have continued
to meet and negotiate with each other and the strike
continued in existence at the time of the hearing.
C. The Unit Issue
The Employer contends that the Regional Director erred
in his decision in the unit clarification proceeding by
including the diiector-coordinators within the unit.
Respondent attempted to introduce no new or previously
unavilable evidence but rests on the record before the
Regional Director in the UC case.
Section 102.67(f) of the Board Rules and Regulations,
Series 8, as amended, provides that the denial by the
Board of a request for review of a Regional Director's
decision in a representation proceeding shall constitute an
affirmance of the Regional Director's action and shall
preclude relitigating any issues therein raised in any
related subsequent unfair labor practice proceeding.
Section 102.63(b) provides that all hearing and posthearing
procedure relating to a unit clarification proceeding shall
be in conformance with Section 102 68, whenever
applicable, with certain exceptions not here relevant.
Therefore, in consideration of 102 67(f) and in accordance
with the Regional Director's decision I find that director-
coordinators are properly part of the unit and that the unit
is appropriate for purposes of collective bargaining. The
unit is:
All radio and television announcers, newscasters,
sportscasters, floor managers, director-coordinators,
and other talent or artists, excluding news director,
assistant news direct( ., farm director, production
manager, and all other employees and supervisors as
defined in the Act.
D The Unilateral Changes
The expired contract broke down the unit initially
between radio and television, then, within the media, on
the basis of announcers, sportscasters, newscasters,
director-coordinator, floor managers, and freelance
artists. These breakdowns generally aie referred to as
categories within the old contract. The old contract
contained provisions for special fees to an employee who
TAFT BROADCASTING CO. 481
worked out of his category or out of his shift. In addition,
the preceding contract provided for the assignment of
additional director-coordinators under certain
circumstances and provided for a limitation in the amount
of prerecording on each of the media to 5 hours air time
daily.
By its proposed contract Respondent proposed
unlimited prerecording in all media, and unlimited
interchange between categories and media, making it
possible to use talent either on television or radio or to use
them in any capacity without the payment of additional
fees. Respondent proposed also to eliminate the additional
director-coordinators necessitated by the "double
manning" requirement of the old contract and to eliminate
expenditures for straight time and overtime required by
the necessity of limiting prerecording on each of the
media. In return for the benefits to Respondent,
Respondent offered a wage increase across-the-board of $7
in base pay, for each of 2 years.
While there are numerous points of difference between
the negotiating parties which were explored during the
course of their many meetings, it is the elimination of the
cost items described above that formed the main bone of
contention.
It is clear that the imposition of the changes suggested
by the Employer could result to the employees in
substantial monetary losses although this would be to
some extent compensated by a reduction in working time
and by the increase in base pay. Thus, the first change
effectuated resulted in an announcer presenting a sports
insert in a television newscast from which under the old
contract he would have been paid $20 but under the
Employer's unilateral change he was to receive $2.
The second effected change resulted in the loss to an
employee of overtime which he computed, without
contradiction, amounted to some $30.
The law with respect to unilateral changes, in the
context of existing negotiations, has been carefully
explored by the Board and by the courts. Generally
speaking, against a background of bad-faith bargaining,
nothing would justify an employer in effectuating
unilateral changes in wages, hours, or working conditions
at a time when a duty exists to bargain with a union
concerning those subjects. Unilateral action by an
employer without prior discussion with the Union amounts
to a refusal to negotiate even in the absence of a finding of
overall subjective bad faith on the part of the employer.
(N.L.R.B. v. Katz, etc., 369 U.S. 736.) On the other hand,
where the parties have engaged in bona fide negotiations
but an impasse is reached, the employer may affect
unilateral changes or make unilateral offers to the extent
of its best offer to the union, so long as no greater
inducement is offered to the workers than was offered to
the union and there is notice to and consultation with the
union . (N.L.R.B. v. U.S. Sonics Corp., 312 F.2d 610, 615
(C.A. 1).)
In the instant case Respondent contends that an
impasse was reached on each of the subjects in collective
bargaining , upon which unilateral changes were made, and
that the changes made, and the actions taken as a result
thereof were precisely those changes embodied in the
Employer's last proposal, which was rejected by the
Union.
Thus, on the cases, it would appear that three
determinations must be made prior to a consideration
whether the unilateral changes herein involved were
unlawful: first, that the context of bargaining must be one
of good faith; second, that the parties must have reached
an impasse in negotiation; and third, that the changes
instituted shall have been no greater than those previously
submitted to the Union.
Good Faith
The General Counsel appears to contend that
Respondent had established a pattern of bad-faith
bargaining. His contention is not alleged in the complaint
but was stated during the course of argument at the
commencement of the hearing. (The contention was not
made in so many words. However, General Counsel cited
as a factor to the violation an alleged delay by the
Employer in supplying certain information to the Union,
citing Bonham Co-ton Mills, Inc., 121 NLRB 1235, in
which case the Board found a violation of Section 8(a)(5) in
that Respondent therein did not bargain in good faith, but
merely entered into sterile discussions with the Union. I do
not find that the delay was unreasonable.)
I have carefully reviewed the evidence, and I cannot
conclude that there is any showing that, prior to the
unilateral imposition of the changes in working conditions,
Respondent bargained in bad faith. It is true that the
negotiations continued over a long period of time. This
may very well have resulted from the fact that Respondent
was seeking major changes in the contract apparently in
the hope of bringing it more nearly in line with the
contracts, wages, and working conditions of Respondent's
employees in its other broadcasting facilities, in other
parts of the country. The Union was stubbornly resisting
these changes obviously in part because they would have
resulted in less take-home pay to its members, diminution
of the unit because fewer employees would be needed with
increased prerecording and interchange and in part
probably because the negotiations with this Employer and
other major employers in the Kansas City area set a
pattern for contracts with the other employers whose
employees are represented by this Union. It is clear from
the record that the parties met frequently and without
untoward delay attributable to the Respondent and that
they bargained, at least in some regards, fruitfully over a
large number of conditions, some of them minor and some
apparently of major significance. I am convinced and I
find that the record as a whole will not support the
conclusion that Respondent failed to bargain in good faith
prior to its announcement of the unilateral changes.
Impasse
As the District of Columbia Circuit Court stated in
Dallas General Drivers, Warehousemen and Helpers,
Local 745 (Empire Terminal Warehouse Co.),2 "the
problem of deciding when further bargaining on an issue is
futile is often difficult for the bargainers and is necessarily
so for the Board ." The court went on to say:
Where good faith bargaining has not resolved a key
issue and where there are no definite plans for further
efforts to break the deadlock , the Board is warranted.
see American Ship Building Co. v. N.L.R.B., 380
U.S. 300 , . (1965 ), and perhaps sometimes even
required , cf. N.L.R.B. v. Intracostal Terminal, Inc.,
2 355 F.2d 842 (C A D.C.)
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
286 F.2d 954 (5th Cir. 1961), to make a determination
that an impasse existed.
There is no fixed definition of an impasse or
deadlock which can be applied mechanically to all
factual situations which arise in the field of industrial
bargaining. Nor is there a rigid formula for assessing
so subtle an issue as the precise time when an
impasse occurs: but the fact that the parties resume
discussions on issues other than wages after the date
of the wage cut is not incompatible with a finding that
an impasse on the wage issue had been reached by
that date.
The Charging Party appeared both at the hearing and
from the context of the negotiations to be contending that
before an employer can unilaterally change wages or
working conditions during negotiations an impass on all
issues must be present. I do not believe that this is the law.
In Emptre Storage, for instance, the Board S found that no
impasse existed as to some issues, some of which had not
been touched upon in the bargaining but found that an
impasse in discussion of wages did exist and that no
violation resulted from the employer's unilateral reduction
of its wage rates therein after bargaining with the Union to
an impasse on such a wage reduction.
Accordingly, we need consider whether an impasse
exists only in those issues in bargaining related to the
changes made by the Employer. These are (1) wages,
(2) the appropriateness of including director-coordinators
in the unit, (3) the use of prerecording, (4) interchange
between categories and between media, and (5) the
assignment of additional director-coordinators for live
screening on television.
1. The Union in its first proposal of September 7, 1965,
had requested wage increases in varying amounts between
$5 50 and $10 for various categories of employees. The
Employer maintained that it would not submit a wage
proposal until late in the negotiations, and following this
procedure, on November 29, the Respondent finally
presented a wage proposal (larger than the Union's, for the
most part) of $7 for the first year and $7 for the second
year of a 2-year contract
The Union offered to take the wage increase proposed
by Respondent and the old contract as it stood and settle
on that basis but the Employer declined, telling the Union
"its your move." Admittedly, this was not simply an
exhibition of largesse on the part of the Employer; its
position was clearly enunciated that it wanted substantial
changes in the contract and was prepared to pay what it
considered to be a reasonable price therefor. The $7-wage
increases were to be offset by more favorable terms on the
other disputed items, particularly, the prerecording and
the interchange between categories and media. As a result
in my opinion, to find an impasse in existence as to wages
requires a finding that impasse existed as to the other
changes requested by Respondent. Viewed separately, the
wage offer had been accepted, and then withdrawn or
made conditional.
2. The inclusion of the director-coordinators in the unit
was a substantial bone of contention between the parties
until after the unilateral changes had already been made.
Respondent had originally made no offer as to director-
coordinators, contending that they did not belong in the
unit. It had submitted the issue to the Board by way of the
unit clarification action and was awaiting the Board's
determination thereof. When the Regional Director's
decision issued on October 13, 1965, the Union pressed
Respondent to come forward with an offer.
Respondent's reaction was initially that director-
coordinators could be mentioned in the contract but that
no duties and no wages would be spelled out for them. This
of course, amounted, as the Union correctly put it, to no
provisions at all for the director-coordinators. Thereafter,
in Respondent's November 29 resume of the then existing
situation, the Employer advised the Union that its position
and proposals with relation to the director-coordinators
was contingent on Board action on their request for review
of the Regional Director's decision. When review was
requested is not disclosed by the record
Ultimately, on December 6, after the promulgation of
the unilateral changes. McClay, negotiating for
Respondent, advised the union negotiator that the
Employer would drop its insistence on the contingency
provision and bargain for director-coordinators with
separability in the event the final judgment on the UC was
to declare them supervisors. Assuming the validity of the
distinction apparently made and accepted by both parties
between contingent negotiating and negotiating with a
separability provision, it cannot be said that a good-faith
impasse was reached on December 4 as to the inclusion of
director-coordinators in the unit. Moreover, I cannot infer
that the Employer had ceased insisting on the exclusion of
director-coordinators from the unit by reason of its
inclusion of unilateral changes relating to them in its
notice posted on December 4 The changes undertaken
are equally consistent with a changed position by the
Employer that director-coordinators are in the unit and, on
the other hand, with the theretofore firm position by the
Employer that director-coordinators were not in the unit
but that it should have a right to assign director-
coordinators to unit work if it was so disposed.
3. In regard to prerecording, as of November 29, the
Employer's offer was to abolish all restrictions on
prerecording insofar as FM broadcasting was concerned
but to consider some time limitation on AM and TV
prerecording The expired contract provided for
prerecording at the Company's option for a period of not
more than 5 hours per medium per broadcast day. The
Company's initial proposal provided for unlimited
prerecording on all media. The Union rejected any
proposed changes in the prerecording provision of the
expired contract. At some undisclosed time the Union
changed its position to permit unlimited prerecording on
FM if the Employer would "drop off" prerecording on AM
and TV. This position was apparently reiterated through
the mediator on December 3, before the Employer's
announcement of the unilateral changes. The Employer
found this unacceptable and contends that it actually
could have worsened the Employer's position from that
provided in the expired contract but it was not until
December 6, in a "package" offered the Union, that the
Employer informed the Union of the time limit on AM and
TV which it had indicated on November 29 it was willing
to consider. On December 6, the Employer proposed that
there would be no restriction on the use of prerecorded
material up to 70 hours per week each in AM and TV.
Presumably the Employer in making this offer as part of a
package concluded that agreement had been reached on
December 3 to eliminate any limitation on prerecording in
FM. Thereafter, in the negotiations that followed after
December 6. the Employer reduced its limitation on hours
1 151 NLRB 1359
TAFT BROADCASTING CO. 483
of prerecording from 70 to 56 and later to 50 but received
no dispositive agreement or disagreement from the Union.
From the whole record I cannot conclude that an
impasse existed on the prerecording issue , if it were to be
viewed separately. The parties had made proposals and
counterproposals back and forth and at the time of the
unilateral change the Employer had indicated its
willingness to change its position without indicating in
what respect it was willing to change it. This is not a
situation such as that in Empire Terminal where the Board
found that both parties had adamantly adopted a position
airl there was nothing further to be said until one party or
thl^ other changed its position . Here, Respondent had
ii ';icated it was changing its position and had not yet
indicated what change it was prepared to make.
Accordingly, I find that no impasse existed as to
prerecording at the time the unilateral change was
instituted.
4. From its initial proposal to the date when the
unilateral changes were announced, Respondent's
position on interchange between media was that it
would accept no restriction on the right to require
employees to perform any necessary consistent duties
while on base or overtime. Respondent's original proposal
carefully excised from the contract any restrictions on
interchange between media or categories. The Union, from
the beginning, maintained that such restrictions should
continue . The Company's position in no way changed at
any time during negotiations Although the November 24
so-called duties proposal was purportedly changed, I can
see no real change in this regard between the effect of the
language in the November 24 proposal and the language in
the Employer's initial proposal. On the other hand, the
Union never adopted the Employer's proposal; on the
contrary at all times the Union sought special fees for
artists working out of shift or out of category. In its
proposal of September 7, the Union proposes to delete the
section of the contract providing for out-of-shift or out-of-
category fees for staff artists and replace it with a
provision for making a local freelance rate applicable to
such performances. This is not particularly helpful to me
inasmuch as it appears that the Union proposed at all
times to renegotiate the Local Freelance Code on which
the local freelance rate is based. Accordingly, whether the
Union' s position amounted to an increase in the out-of-
shift/out-of-category fees or a decrease cannot be
ascertained. The fact, however, is that at all times the
Employer maintained its position that the restrictions
should be abolished and at all times the Union maintained
its position that the restrictions should be maintained. I
find nothing in the record to indicate that at the time the
unilateral changes were announced, the Employer had any
reason to believe the Union would have changed its
position or that the Employer had in any way indicated to
the Union that the Employer was prepared to change its
position. Accordingly, I believe that an impasse existed as
to interchange in categories and media on December 4.
5. Finally, on the assignment of the director-
coordinators, requiring that an additional director-
coordinator be assigned when "live" material was being
transmitted , I cannot find an impasse , as I indicated above
in my discussion of the issue concerning the inclusion of
director-coordinators. At the time of the announcement of
the changes, the Employer was still contending that
director-coordinators were, at best, to be bargained about
only tentatively. There was no good-faith attempt to reach
an agreement. On the contrary, the obvious intent was to
avoid spending time in negotiating as to them until the
Board ruled on the Regional Director's decision that they
were to be included in the unit. I find that there was not
real exploration of the issue of whether the limitation on
the assignment of the director-coordinators was to be
abolished as the Employer's position demanded or
retained as the Union's position demanded. In the absence
of a conscious exploration of the issue, I cannot see how it
can be said that an impasse arose.
Viewed as separate negotiating issues , as I have above,
the changes announced by the Employer on December 3,
cannot be said all to have involved matters concerning
which the parties had reached an impasse . But I question
whether they should appropriately be viewed separately as
individual issues It appears to me that they more
appropriately may be viewed as a single issue, i.e.,
whether the Employer in exchange for the $7 across-the-
board wage increases should be permitted the freedom to
assign its artistic personnel without regard to the
categories and media which had theretofore existed and
without paying the additional fees required under the
terms of the preexisting contract, and the freedom to
prerecord additional material.
Throughout the protracted negotiations, until
December 6, both parties continued to bargain on the
separate contract terms in which their demands were
expressed, and because of the nature of the issue,
advancement in any of the terms, or a change in any of the
terms, resulted in lessening or increasing the pressure on
the other terms. Thus, for instance, any expressed
limitation on prerecording with necessity would have an
impact on the value of the wage increase offered.
Similarly, any limitation on the free interchange of talent
would affect both the wage offer and, conceivably under
some circumstances, the prerecording terms. The
reduction in the use of director-coordinators in their
direction and coordination duties would presumably be
followed by their use as announcers , or other types of on-
camera talent or as stage managers which in its turn would
have an impact on the value of the wage offer as well as on
the interchangeability rules as between various categories.
Both parties appear to have recognized during the
negotiation that these various items were interlocking but
apparently each was unable to bring itself, or the other, to
bargain on the package as a whole rather than on the
individual facets of the package as contained in the sundry
contractual changes under discussion. This led to what
appeared to be desultory bargaining, but was in fact
cautious exploration on both parts to determine the weak
spots in their opponents, and I think both parties
recognized this to be the case.
The result was, or course, that the negotiations were
prolonged and must have appeared exasperatingly slow to
the participants. To speed up negotiations, each party took
steps to "shake up" the other by various means. Thus the
Union gave notice that it was terminating the interim
agreement effective December 4 and thereafter engaged
in a discreet campaign of "saber rattling" to remind the
Employer that a strike could result. The Employer
accepting the saber rattling at face value, concluded that
the unilateral imposition of some of the changes which it
had proposed would get the negotiations off balance.
Respondent does not contend that the unilateral changes
were necessitated by economic considerations. The
decision was purely tactical. Respondent then, following
his implementation of the unilateral changes, presented a
package proposal and the Union "picked the goodies out of
the package" without accepting the package as a whole.
295-269 0-69-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To increase the pressure Respondent further implemented
its unilateral changes and the strike commenced.
1 find no impasse in the central issue as I have defined it
above. There was room to move and the parties were
moving, albeit very slowly. No doubt at all times the
parties were skirting an impasse, but I believe that neither
was prepared to enter it. Accordingly, I find that, at least
in part, the subjects of the imposition of the changes, of
the limitation of the assignment of director-coordinators,
the inclusion in the unit of director-coordinators, and, the
time limitation on prerecording in the various media,
viewing the issues separately, or, viewing them as facets of
a single issue, remained issues under negotiation, without
an impasse having been reached.
As the Supreme Court put it, in N L.R.B. v. Benne Ktitz,
supra, " an employer's unilateral change in conditions
of employment under negotiation is ... a violation of
Section 8(a)(5) for it is a circumvention of the duty to
negotiate which frustrates the objectives of Section 8(a)(5)
much as does a flat refusal."
Relation of the Unilateral Changes to the Employer's Prior
Proposal
The third determining factor is whether the changes
instituted were consistent with or greater than those
previously submitted to the Union. In resolving this factor
it is my opinion that we must consider the changes
announced in the notice posted on December 4, rather
than the assignments made pursuant thereto. The notice is
the "impact document" relied upon by the Employer to
stir up the negotiations ; having promulgated the unilateral
changes it is not determinative to what extent assignments
were made and actions were taken pursuant to the
changes
The first item in the notice, wages, was precisely that
proposed by the Employer. Obviously, therefore, the
wages meet this test. The second item, requiring
interchange between media without limitation for
announcers , was again precisely within the Employer's
demands up to the time the notice was posted. The third
presents a problem. It provides: "Use of prerecording may
be increased to a maximum 70 hours a week per media on
AM and TV and without limit on FM." As I have pointed
out above, the Employer in its resume of negotiations of
November 29, stated its position as "drop restrictions on
prerecording, willing to consider time limit on AM and TV
but not FM." The time limit of 70 hours was apparently not
mentioned by the Employer in negotiations until the actual
terms of the notice were discussed with the Union after
4 o'clock on December 4. Thereafter, the first
"negotiation" with regard thereto took place on
December 6. The discussion on December 4 could not be
deemed a negotiation in my opinion. All parties who
testified concerning it indicated that it amounted to
nothing more than an exploration by the Union of the
consequences of the adoption of the unilateral changes.
No offer as such was put forward by the Employer. No
counteroffer or any other type of negotiation appears to
have been instituted by the Union. The previous limitation
had been 5 hours for each medium. The FM station was
independently programmed for an average of 8 hours a day
and the Employer proposed apparently to prerecord all FM
presentations . The FM and TV prerecording was exactly
double that previously afforded the employer and based as
it was on a weekly figure rather than on the daily figure
permitted greater flexibility in the use of the hours so
proposed . The change is certainly substantial both in
consideration of the prior practice and in consideration of
the last preceding offer which was unlimited prerecording
on all media (I do not deem the language "willing to
consider time limit" as an offer, especially not in the
context of the negotiations herein involved .) I find,
therefore, that with respect to prerecording the test is not
met.
With respect to the duties section of the change, the
first three subparagraphs requiring announcers to do
news, weather , and sports in shift , newsmen to do sports ir
shift, and director-coordinators to be assigned to 1, ve
programs at the Company's discretion are well within,the
Company's last preceding offer. The fourth, "other
services may be required out of category but in shift up to
10 hours per artist per week" is ambiguous. It would
appear that this section provides complete
interchangeability among all unit employees , but for a
limited time weekly, and not necessarily in unit work. In
the light of the discussions that had taken place with
regard to interchangeability with regard to work within the
unit prior to the promulgation of the notice , the notice
seems to exceed the Company's last prior position.
However, because of its ambiguity and because of the
probability that its meaning was explicated in the
discussion with Schnabel prior to the posting of the notice,
I do not find that this change exceeds in scope the position
taken by Respondent prior thereto.
I find that at least insofar as prerecording is concerned,
the unilateral changes, announced by the Employer on
December 4, do not meet the requirement that the
changes instituted shall be no greater than those
previously submitted to the Union.
Respondent appears to contend that ample opportunity
was given the Union to negotiate concerning the changes
between the December 3 announcement and the
December 4 posting and therefore Respondent's
bargaining duty was met, I cannot so find in the context of
the negotiations which had preceded the promulgation of
the unilateral changes. There is a conflict in the testimony
as to whether on December 3, when Respondent's
negotiators informed the Union's negotiator that they
would institute unilateral changes, the Union's negotiator,
Schnabel, asked what the changes were and was told by
Willard that Respondent had not decided. Willard and
McClay testified that the Union did not ask about the
changes. I credit the testimony of Schnabel that he did. I
find it improbable that, faced with the statement that the
Company would institute "some changes," he would not
have inquired what changes were in contemplation and
I find further that inasmuch as the Company did not decide
what changes were to be made until December 4 the
answer imputed to Attorney Willard is consistent with the
facts and probable under the circumstances.
Thereafter, it was not until sometime after 4 p.m. on
December 4 that a copy of the notice which set forth the
changes was furnished the Union's negotiators. At that
time, Schnable and McClay had a private conversation
during which Schnable asked what changes would be put
into effect that night Schnable told McClay that he didn't
think he could keep his people at work in the face of the
changes and asked McClay to rescind them. McClay
ascertained what changes would be put into effect that
night and informed Schnabel that there were four such
changes. The two negotiators went over the impact of each
of the changes and Schnabel obviously came to the
conclusion that the changes were of a nature that could be
remedied by the payment of additional fees. The parties
went back into negotiation as groups with the Union
TAFT BROADCASTING CO. 485
requesting the Employer not to initiate the changes and
stating that none of the issues had been bargained to a
deadlock and that some of them had not been bargained at
all. The Employer pointed out to the Union that the time
was running out.4 In view of the circumstances as I have
set them forth above, I cannot find that the Union had an
adequate opportunity to bargain about the imposition of
the changes or about those matters which were not at
impasse during the short period between 4 and 5 o'clock
on December 4, when they finally had knowledge what
changes were in Respondent's contemplation.
The Effect of the Unilateral Changes
With the exception of the wage increase each of the
unilateral changes instituted by the Employer were of such
a nature that they changed working conditions which the
Union was fighting hard to preserve. This is not like the
situation as in Bradley 1Vashfountain Co., 89 NLRB 1662,
where the union demanded a wage increase greater than
the employer was prepared to make but the employer
granted a wage increase greater than he had offered. Even
in that case the Board found a violation, which was
subsequently denied enforcement by the United States
Court of Appeals for the Seventh Circuit, 192 F.2d 144, on
the stated ground that the effect of the wage increase
would, if anything, enhance the union's prestige. Here,
with the Union vigorously contending against the changes,
the effect could only be a derogation of the Union's
position and consequently an obstruction to the collective-
bargaining process.5 In N.L.R.B. v. Benne Katz, supra, the
Supreme Court stated:
but the Board is authorized to order the cessation of
behavior which is in effect a refusal to negotiate, or
which directly obstructs or inhibits the actual process
of discussion, or which reflects a cast of mind against
reaching agreement.
I find that by its actions herein, Respondent obstructed
and inhibited the process of discussion, although in the
light of all the circumstances I cannot find that the
Respondent's action reflected a cast of mind against
reaching agreement.
Accordingly, I conclude and find that the Respondent,
by unilaterally changing the working conditions of its
employees, at a time when it had a duty to bargain with
their collective-bargaining representatives, in a unit
appropriate for collective bargaining, failed and refused to
bargain in violation of Section 8(a)(5) and (1) of the Act
The Nature of the Strike
The complaint alleges, the answer denies, and the
parties litigated and argued whether the strike, which
commenced on December 10 was an unfair labor practice
strike, or an economic strike. Inasmuch as I have found
that the Employer engaged in unfair labor practices in its
unilateral changes in working conditions announced
December 4, it is necessary only to determine whether the
strike resulted therefrom, or merely followed them.
It is clear that the Union had been, as I earlier
characterized it, "rattling the saber" and that the
Employer was concerned whether a strike would ensue.
The Union could have engaged in a strike at any time after
5 p.m. on December 4, but that Schnabel agreed that he
would not undertake a strike without at least 24 hours'
notice to the Employer, and such notice had not been
given. I find no evidence that the Union was in fact
prepared to strike on that date, or on any certain date.
When Schnabel was informed of the unilateral changes
that the Employer was putting into effect, he pleaded with
the Employer not to post the notice stating that it would be
hard to hold the men if they were infuriated by the
changes; the Employer nevertheless posted the notice. A
strike did not ensue. It was only after he was informed that
the Employer was putting more changes into effect, that
Schnabel determined that a strike would be necessary. He
called the unit together, although this was not necessary
under the circumstances that he had been given authority
to call a strike whenever he deemed it necessary. At the
meeting he told the men that Respondent was effectuating
more of the changes that it had promulgated. After a
discussion lasting some hour and a half the meeting broke
up with the consensus that a strike was necessary, and
Schnabel gave Respondent 24 hours' notice that a strike
would commence.
It is clear and I find that Respondent's promulgation of
the changes in the working conditions and its successive
actions in effectuating them precipitated the strike.
Whether there would have been a strike in the absence of
Respondent's unfair labor practices is questionable. I
believe that the Union was unwilling to commence a strike
at that time, but it was certainly contemplating strike as a
possibility thereafter. Accordingly, I find that the strike
was in its inception, an unfair labor practice strike.
Respondent contends that even if the strike were
viewed as having been caused by unfair labor practices, it
was converted thereafter into an economic strike by its
offer, on January 15, of a strike settlement agreement
providing for an immediate termination of the strike
resumption of operations under the expired contract,
subject to 24 hours' termination, revocation of the
unilateral changes, with provision for 24 hours' notice of
any subsequent changes, suspension of any disciplinary
actions instituted by the Union during future negotiations,
and immediate resumption of the negotiations.
Respondent relies on the decision in Nelson B. Allen, 149
NLRB 229, in which case employees who struck because
the employer discriminatorily discharged them and
refused to negotiate with their newly selected union were
deemed unfair labor practice strikers. Upon the employer
reinstating the discharged employees, and commencing
good-faith bargaining, the Trial Examiner, with Board
approval, found that their status changed to that of
economic strikers, since the employer was by that time
meeting its statutory bargaining obligtion. I find the Allen
case distinguishable. There the unfair labor practices had
ceased by the reinstatement of the dischargees, and the
subsequent bargaining, and the Trial Examiner found as a
matter of fact that the employees continued to strike only
" Apparently both parties considered that 5 o'clock was a
deadline before which time the Union would have to take some
step to avert the imposition of the changes What steps might
have been effective in this regard are not explicated on the record
5 I do not rely in so finding on the fact that the Employer
entered into the unilateral change for the express purpose of
putting pressure on the Union in negotiations rather than for
reasons of its own convenience or economics I am not unaware of
the language of the United States Supreme Court in N L R B v
Benne Katz , supra, speaking of its decision in NLRB v
Insurance Agents Union , 361 U S 477 " . congress had not in
Section 8 (b)(3), the counterpart of Section 8(a)(5) empowered the
Board to pass judgment on the legitimacy of any particular
economic weapon used in support of genuine negotiations " In
view of my findings above, I do not find it necessary to consider or
decide whether under all the circumstances this is a legitimate
economic weapon used in support of genuine negotiations
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for economic motives. In the instant case, on the other
hand, Respondent's proposal to the Union amounted only
to a proposal to cease its unfair labor practice; in effect it
offered to bargain on the terms under which it would do so.
There is no evidence that Respondent ever informed the
Union that it had rescinded its unilateral changes, or that it
would not reinstitute them again 24 hours after the strike
was over, in accordance with the terms of its offer .6 1
believe that the facts of the instant case are more akin to
those in D'Armigene, Inc., 148 NLRB 2, where the Trial
Examiner found, with Board approval, that in the absence
of a complete cessation and full remedying of the unfair
labor practices which gave rise to the strike, its character
continued.
I find that the strike was an unfair labor practice
strike in its inception, and continued to be an unfair
labor practice strike at least until the time of the
hearing. Inasmuch as it appears that the strike has
been settled, and a contract may have been entered
into between the parties, and no motion to amend the
complaint to allege a violation of Section 8(a)(3) in
regard to the reinstatement of the strikers has come to
my attention, I see no necessity to provide any
remedial provisions with regard to the character of
the strike; if such exists it may be left to subsequent
proceedings if such there be.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization within the meaning of the
Act.
2. All radio and television announcers, newscasters,
sportscasters, floor managers, director-coordinators, and
all other talent or artists employed by the Employer at its
facilities in Kansas City, excluding news director,
assistant news director, farm director, production
manager, and all other employees and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
3. At all times material the Union has been the
exclusive representative for the purposes of collective
bargaining, within the meaning of Section 9(a) of the Act,
of all the employees in the aforesaid appropriate unit.
4. By the unilateral imposition of changes in wages,
hours, and working conditions on December 4, 1965, and
by the implementation of such changes thereafter, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. By the aforesaid refusal to bargain with the Union,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
The Board customarily holds that where an employer
effectuates unlawful unilateral action, he must not be
permitted to retain the fruits of such unfair labor practices
and must be required to restore the status quo ante. John
W. Bolton & Sons, Inc., 91 NLRB 989; Herman Sausage
Co., Inc., 122 NLRB 168, enfd. 275 F.2d 229 (C.A. 5). On
the other hand in fashioning a remedy here, account
should be taken of the possibility that subsequent to the
hearing the matters involved in the unilateral changes
have been settled through negotiations with the Union, the
restoration order in this instance should be conditioned
upon the desires of the employees in the unit as expressed
through their collective-bargaining agent. Herman Sausage
Co., Inc., supra, Beacon Dy, ing and Finishing Co., Inc.,
121 NLRB 953. Accordingly, the order will require that if
the employees through their Union desire the restoration
of the status quo ante this shall be done. It appears from
the record that to the extent that the unilateral changes
were initiated they could be remedied by the payment of
money under the terms of the then existing Free Lance
Code of Greater Kansas City or other terms or conditions
of the recently expired contract. I so recommend.
[Recommended Order omitted from publication.]
6 The other cases cited by Respondent, relating to the validity
of offers of reinstatement to discmmmatees are distinguishable on
their facts In Central Illinois Public Service Company, 139 NLRB
1407, the unusual finding relating to rolling back the unilateral
action was called for by the peculiar facts of that case, as the Trial
Examiner carefully pointed out; such facts are not here present
Atlas Engine Works, Inc. and Teamsters,
Chauffeurs , Warehousemen and Helpers
Local #20, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
Cases 8-CA-3990,8-RC-6028, and 8-RM-428.
March 20, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 14, 1966, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
163 NLRB No. 61