Taft Broadcasting Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 202 (N.L.R.B. 1970)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taft Broadcasting Company WDAF AM-FM-TV and
American Federation of Television and Radio-Art-
ists AFL-CIO, Kansas City Local. Case 17-CA-
3637
August 27, 1970
DECISION AND ORDER
On March 4, 1970, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceeding
finding that the Respondent had engaged in and
was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.' The General Counsel
filed cross-exceptions to the Trial Examiner's Decision
and a supporting brief.
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 here-
by 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 with the following modifications:
The record shows and it is undisputed by the
parties that the 1963 contract, to which Respondent
was bound as a successor, expired on September
30, 1965. Commencing some time in June 1965, the
parties negotiated for a new collective-bargaining
agreement, but could not come to terms before the
termination of the existing agreement. Having failed
to consummate any new agreement, Respondent and
Union, on or about September 30, 1965, entered
into an interim agreement providing that the then
existing collective-bargaining agreement would remain
in full force between the parties, subject to the right
of either party to terminate the agreement upon pro-
viding 15 days prior notice. Subsequently, on Decem-
ber 12, 1965, having given the required notice the
Union initiated a strike at the WDAF stations which
lasted until April 18, 1966. On that date, agents
negotiating for Respondent and the Union signed
a strike settlement agreement. This agreement was
a rough draft of a complete collective-bargaining
agreement. Many sections of the expired agreement
were incorporated in it by specific reference. In perti-
' Respondent has also filed a motion requesting the case to be set
for oral argument before the Board Since we believe that the record
and briefs adequately present the contentions of the parties, we deny
the motion
nent part, it stated, "This agreement, at the paragraph
numbered 8, provided that 'Grievance and Arbitration
Sec. 1, Article VII shall be the same as in the expired
contract."'Z The strike settlement agreement also con-
tained an express provision providing for an effective
duration period from April 18, 1966, to March 31,
1969. The parties agreed that it was the Respondent's
responsibility to draw up a finished copy of the collec-
tive-bargaining agreement incorporating the terms and
conditions of the strike settlement agreement. On
June 22, Respondent transmitted the agreement with
a covering letter to the Union. The June draft was
never executed by the parties due to alleged discrepan-
cies between the rough draft and the finished docu-
ment. It did, however, contain the procedure for
handling grievances incorporated by reference in the
strike settlement agreement, which procedures
involved two steps culminating in arbitration.
Thereafter, on or about April 3, 1967, Respondent's
attorney, Willard, sent a letter to David H. Schnabel,
executive secretary of the Union. A pertinent portion
of this letter is quoted as follows:
... regarding the execution of the understanding
reached between Taft Broadcasting Company,
Kansas City, Missouri, and the Kansas City Local
of AFTRA as reflected by the draft contract
of June 22, 1966. A reasonable length of time
having long since elapsed since the draft was
submitted to you for signature without acceptance
by you, the proposals therein contained are now
withdrawn, and we are rescinding any under-
standing or agreement between the parties which
may have been reached on April 18, 1966, as
reflected in the draft of June 22, 1966.
For your information and the information of
the affected parties, it is our intention to continue
in effect the wages, hours, and other conditions
of employment presently in effect as fully set
forth in the draft of June 22, 1966, and we
will continue handling any grievances that may
arise in accordance with the procedure set forth
therein. There can, of course, be no enforcement
of the Union security provisions.
We do not by this letter attempt or purport
to withdraw recognition from your union as the
exclusive bargaining representative of our employ-
ees in an appropriate unit, and we are prepared
' Subsec (c) of art Vii states "if the grievance is not settled by
the foregoing procedure as provided in (b) above, the grievance shall
be considered as closed and not subject to arbitration unless the union
requests in writing that the matter be submitted to arbitration Such
request for arbitration shall be within six (6) months of the notice
of the grievance Matters relating to union shop and pension and welfare
contributions shall not be subject to the above limitations "
185 NLRB No. 68
TAFT BROADCASTING COMPANY
to negotiate with you in good faith in order
to reach a satisfactory collective bargaining con-
tract. In the meantime, if we feel any change
is desirable which may affect the present wages,
hours, and working conditions of our employees,
we will advise you in advance so that you will
have the opportunity to negotiate on it before
any changes are made. [Emphasis supplied.]
The Union made no response to this letter. In
a letter dated August 1, 1967, Schnabel notified one
Edward Muscare that there was not a signed collec-
tive-bargaining agreement in effect under which union
membership was required as a condition of employ-
ment.
Subsequently, on or about February 2, 1968,
Respondent terminated the employment of Martin
Gray, a staff announcer who had been in the employ
of Respondent from on or about July 13, 1963. On
March 14, 1968, the Union wrote a letter to the
Respondent stating, in part, the following: "On Febru-
ary 2, 1968, WDAF-Radio reduced its announcing
staff. Within less than two weeks, the station again
added to its announcing staff . . . by hiring a new
announcer rather than recalling Mr. Gray to work.
This layoff out of seniority, the failure to recall accord-
ing to seniority and the change in computation of
accrued vacation are all unilateral changes in wages,
hours and/or conditions of employment illegally insti-
tuted by the station."'
On or about March 22, 1968, Respondent made
a written reply to the Union's March 4 letter, stating
in effect that Gray was not laid off but, rather,
he was terminated when the station discontinued the
live all-night show of which he was the announcer
and that the demand that Mr. Gray be reinstated
must be denied. On or about May 14, 1968,
the Union again wrote a letter to the Respondent,
stating : The number of staff announcers employed
by the station on February 1, 1968, was reduced
by one when, on February 2, the station ended the
employment of announcer Gray, and that this obvious-
ly was a reduction of staff which should have been
done by seniority. By letter dated June 14, 1968,
the Respondent again asserted Mr. Gray was terminat-
ed due to a decision by the station to discontinue
its live all-night show, and further asserted that
announcer Bob Foster was hired prior to February
2, 1968. Thereafter, on or about July 3, 1968, the
Union served the Respondent with a written demand
for arbitration regarding the matters involving termi-
nation of announcer Martin Gray and alleged noncom-
' Nowhere in this letter or the subsequent correspondence between
the parties is it alleged that there was a contract in existence As illustrated
in this letter , the Union referred to the grievance as a unilateral change
in the terms and conditions of employment
203
pliance by Respondent with the annual earnings guar-
antee.' After the Union had expressly renewed this
demand for arbitration in a letter dated and sent
to Respondent on or about July 17, 1968, Respondent
sent the following, dated July 22, 1968.
Receipt is acknowledged of your letter of July
3, in which you request a meeting to select
an arbitrator to hear a "grievance" arising out
of the termination of Martin Gray and another
arising out of an annual earnings guarantee. The
request contained in your letter is denied.
As you know, the duty to arbitrate arises
out of a contract. There is no executed document
between your organization and our station con-
taining an agreement to arbitrate.
Approximately 8 days after the Union's receipt
of Respondent's written repudiation of the duty to
arbitrate, the Union filed a charge in the instant
case.
On the basis of the above events, and others con-
tained in the record herein, the Trial Examiner found
and concluded that the April 18, 1966, strike settle-
ment agreement, which contains an express provision
providing for an effective duration period from April
18, 1966, to March 31, 1969, remained in full force
between Union and Respondent through the pre-
scribed expiration date of March 31, 1969. The Trial
Examiner concluded that there was an executed con-
tract in effect between the parties at the time of
the Union's arbitration demand, on or about July
3, 1968, and the Respondent' s ensuing repudiation
of any duty to arbitrate, predicated upon an alleged
absence of contract, constituted unilateral conduct
violative of Section 8(a)(5) and (1) of the Act.
Both the General Counsel and Respondent have
taken exception to the Trial Examiner's findings that
there was an executed contract in effect at the time
the particular grievances arose or at the time the
Union made its initial demand for arbitration on
July 3.
We find merit in those exceptions. We disagree
with the Trial Examiner's finding that the April 18
agreement remained in full effect beyond the Respond-
ent's April 3, 1967, repudiation. It is apparent -on
the basis of the record herein that Respondent on
April 3, 1967, gave unequivocal notice to the Union
that the April 18, 1966, agreement as reflected in
the draft of June 22, 1966, was no longer in effect.
It is also apparent from the Union's subsequent con-
duct that it acquiesced in the Respondent's rescision
' It is noted that the June 22, 1966, draft of the strike-settlement
agreement contained a provision , providing, inter aka , "full time staff
artists returning to work will be guaranteed , while employed by WDAF,
annual earnings of not less than fifty-two (52) the average weekly earnings
for the past twenty-four months worked "
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strike settlement agreement, and accepted
Respondent's further offer of an interim agreement
as to both substance and negotiating procedure as
outlined in the rescision notice, namely: that the
terms and conditions of employment which were then
in effect as set forth in the June 22, 1966, draft,
including the procedures described therein for the
handling of grievances but not the union-security
provisions, would remain unaltered in the absence
of prior notice and opportunity to bargain being
afforded to the Union.
The record shows that Respondent thereafter, com-
mencing on or about June 26, 1967, served notice
on the Union that it would be contemplating the
institution of "certain changes" in the terms and
conditions of employment set forth in the June 22,
1966, draft. On August 30, 1967, Respondent submit-
ted a contract proposal to the Union. It contained
10 specific proposals, none of which concerned
changes in the grievance and arbitration procedures,
and incorporated by reference the June 22, 1966,
draft, to the extent it was not in conflict with the
specific proposals. The Union and Respondent dis-
cussed the Respondent's proposals but no agreement
resulted. There was no discussion of the procedures
for handling grievances. Subsequently, on March 13,
1968, Schnabel submitted a proposed agreement to
Respondent under which Respondent would continue
contributions to the pension and welfare fund of
the Union. The March 13, 1968, proposal never
became an agreement.
On the basis of all the foregoing, we find that
although Respondent's letter of April 3, 1967, effec-
tively terminated the April 18, 1966, collective-bar-
gaining agreement , it also constituted notice that vari-
ous terms and conditions of employment, as
enumerated in that letter would continue in effect
as terms or conditions of employment, as well as
notice that the procedures for handling grievances
set forth in the June 22, 1966, proposal would be
followed by Respondent.' Further, the letter
announced that Respondent would negotiate prior
to making any changes in the matters mentioned,
and Respondent did in fact generally do so. According-
ly, in view of the Union's acquiescence and acceptance
of the statements in that letter, as revealed by its
subsequent conduct, we find that in April 1967 the
parties had come to an interim agreement, including
a specific understanding that the grievance and arbitra-
tion machinery would continue in effect unless and
' For reasons fully stated by the Trial Examiner we reject Respondent's
contention that only those procedures for handling grievances short of
arbitration were continued in effect The consensually based arbitration
procedure was an integral part of those grievance procedures as the
Trial Examiner properly found
until opportunity had been afforded to negotiate
regarding any proposed changes therein. In these
circumstances, we find that the Respondent's July
22, 1968, notification that it would no longer recognize
the arbitration procedure, without having extended
to the Union an opportunity to discuss this change,
constituted a violation of its previously acknowledged
duty to negotiate. Accordingly, we find Respondent's
conduct violative of Section 8(a)(5) and (1) of the
Act.'
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act under the circumstances
herein by unilaterally changing the grievance and
arbitration procedures, or other terms and conditions
of employment, without first giving notice and oppor-
tunity to bargain with respect thereto to the Union
as collective-bargaining representative of the employ-
ees, we shall order the Respondent to cease and
desist from engaging in such conduct and to take
certain action designed to effectuate the policies of
the Act. Accordingly, the Trial Examiner's Conclu-
sions of Law and the Recommended Order and recom-
mended language in the Notice to Employees are
modified as follows:
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 4 of the Trial Examiner's
Conclusions of Law and substitute therefor the follow-
ing paragraph:
4. Respondent has refused to bargain with the
Union since July 22, 1968, in violation of Section
8(a)(5) and ( 1) of the Act by unilaterally eliminating
the agreed -upon arbitration procedure , without having
afforded the Union an opportunity to negotiate with
respect thereto.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Baord adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, Taft Broad-
casting Company WDAF AM-FM-TV, Kansas City,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraphs 1(a) and 1(b) of the Recom-
mended Order and substitute the following:
' Under our view of this case , it is irrelevant whether, absent specific
agreement, arbitration procedures do or do not survive the expiration
of a contract , Cf The Hilton-Davis Chemical Company Division of Sterling
Drug Inc , 185 NLRB No 58
TAFT BROADCASTING COMPANY 205
"Unilaterally eliminating the procedure for arbitra-
tion under the existing terms and conditions of
employment without first giving notice to, and bar-
gaining with, American Federation of Television and
Radio Artists, AFL-CIO, Kansas City Local, with
respect thereto."
2. Delete paragraphs 1 and 2 of Appendix and
substitute the following:
WE WILL NOT refuse to bargain with American
Federation of Television and Radio Artists, AFL-
CIO, Kansas City Local, by eliminating the arbi-
tration procedure we have with it by taking
action unilaterally to eliminate the procedure
for arbitration.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE'
JAMES F. FOLEY, Trial Examiner: This case was brought
before the National Labor Relations Board (herein called
the Board) under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), 61
Stat. 136, 76 Stat. 579, against Taft Broadcasting Company
WDAF AM-FM-TV (herein called Respondent) by a com-
plaint issued September 26, 1969, and an answer to the
complaint filed October 14, 1969. The complaint is premised
on a charge filed August 2, 1969, by American Federation
of Television and Radio Artists, AFL-CIO, Kansas City
Local (herein called the Union).
It is alleged in the complaint that on and after July
22, 1968, Respondent has refused to bargain collectively
with the Union, in violation of Section 8(a)(5) and (1)
of the Act, in that it unilaterally, and without first affording
the Union the right to negotiate, rescinded and abrogated
the existing procedures for arbitration, by denying that
the duty to arbitrate survived the expiration of a prior
collective-bargaining agreement between the parties. General
Counsel also alleged in the complaint that the Union is
the collective-bargaining representative of a unit of employ-
ees consisting of all nonsupervisory radio and television
announcers, newscasters, sportscasters, floor managers,
director-coordinators, and all other nonsupervisory talent
or artists employed by Respondent at its facilities in Kansas
City, Missouri, and that the unit excludes the news director,
assistant news director, farm director, production manager,
and all other employees and supervisors as defined in
the Act.
Respondent in its answer denied the alleged refusal to
bargain. It admits the Union is the collective-bargaining
representative of its employees as described in the
complaint with the exception of director-coordinators.
' Errors in the transcript have been noted and corrected it is not
necessary to rule on Respondent's motion to strike references to rejected
exhibits in General Counsel's brief or General Counsel's opposition to
motion See fns 3 and 5
A hearing on the complaint and answer was held before
me on November 24 and 25 and December 9 and 10,
1969, in Kansas City, Missouri The parties were afforded
an opportunity to present evidence , make oral argument,
and file briefs. Briefs were filed by General Counsel,
Respondent , and the Union , as Charging Party, after the
close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
During the calendar year 1968 , Respondent , a part of
a Delaware corporation with radio and television broadcast
facilities in several States of the United States, with principal
office and place of business in Kansas City , Missouri,
is engaged in commercial radio and television broadcasting
from Kansas City. During the calendar year 1968, it had
a gross income from sales in excess of $100 ,000 and $50,000
was from customers located outside the State of Missouri.
During the same period , Respondent purchased interstate
news at a cost in excess of $ 10,000 and broadcast materials
and rental films with a value in excess of $5,000 from
sources outside the State of Missouri. I find that Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
It is undisputed that on July 3, 1968, David H. Schnabel,
executive secretary of the Union, requested Nick Bolton,
vice president and manager of Respondent's WDAF Radio,
to submit to arbitration two issues between the Union
and Respondent involving the termination of announcer
Martin Gray, and an annual earnings guarantee for artists
who returned to work after a strike ending April 18,
1966. Bolton denied his request in a letter of July 22,
1968. In the letter Bolton stated that the duty to arbitrate
arose from a contract, and at that time there was no
executed document in effect between the Union and
Respondent containing an agreement to arbitrate.
The issues to be resolved are-
Was there a contract in effect at the time of the
request and denial?
If so, was the refusal to arbitrate contrary to the
contract, and a violation of Section 8(a)(5) of the
Act?
If the contract had expired or was no longer in effect
did the duty to arbitrate under the contract survive
the demise of the contract?
Is arbitration a condition of employment and a manda-
tory issue of bargaining which may not be changed
unilaterally even if the contract is no longer in effect
without violating Section 8(a)(5) of the Act?
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B The Evidence, Contentions,
and Discussion
tion and requests a meeting with the Company at 2:00
p.m., Wednesday, July 10, 1968, for the purpose of selecting
an arbitrator."
In a letter dated July 22, 1968, Bolton replied to Schnabel
by acknowledging his letter of July 3, 1968, in which
he requested a meeting to select an arbitrator to hear
a "grievance" arising out of the termination of Martin
Gray and another arising out of an annual earnings guaran-
tee. Bolton then stated that "The request contained in
your letter is denied " In a separate and concluding para-
graph, Bolton stated:
As you know, the duty to arbitrate arises out of
a contract. There is no executed document between
your organization and our stations containing an agree-
ment to arbitrate.
Following the expiration on September 30, 1965, of a
collective-bargaining contract executed on July 1, 1963,
between a predecessor of Respondent and the Union, and
its extension until December 4, 1965, by agreement between
the Union and Respondent, and a strike from December
12, 1965, to April 18, 1966, the Union and Respondent
reached a collective-bargaining agreement on April 18, 1966.
It was reduced to writing, and was signed on April 18,
1966 It bore a termination date of March 31, 1969 This
agreement terminated the strike. It not only contained
strike settlement provisions, but also contained most of
the provisions of the contract that expired on September
30, 1965. These latter provisions were incorporated in the
contract either by a restatement of them or by reference.
It contained a complete statement of wages, hours, working
conditions, and other terms and conditions of employment.
It is undisputed that its terms were placed in effect and
carried out after being signed by the Union and Respondent
Bolton testified that it was implemented after being signed.
The dictionary meaning of the word is carved out or
placed in effect. Reference was made in the hearing to
the April 18, 1966, agreement as a strike-settlement agree-
ment. While among other things it was intended to end
the strike, it was not limited to only that objective There
is nothing in the agreement that it was so limited. Nor
is there anything in this contract, directly or indirectly,
that it would be effective only temporarily, or replaced
by another contract. Bolton, who was one of Respondent's
negotiators, testified that it was for 3 years.
Respondent contends that the April 18, 1966, agreement
was never executed because although it was signed on
behalf of the Union by Sanford I. Wolff, a Chicago, Illinois,
attorney who negotiated it on behalf of the Union with
representatives of Respondent, it was never ratified by
the National Board of American Federation of Television
and Radio Artists, AFL-CIO, called AFTRA, evidenced
by its being signed by the executive secretary of the National
Board. Wolff had inserted the words "Subject to approval
of Natl. AFTRA" under his signature in the agreement.
The 1963 contract to which Respondent became a party
by successorship contained the provision that it had to
be ratified in writing by the National Board of AFTRA
evidenced by the signature of the national executive secretary
of AFTRA. This provision is not in the April 18, 1966,
agreement. The constitution of the Union in effect on
April 18, 1966, provided that the Union "shall never take
On February 2, 1968, Respondent terminated announcer
Martin Gray from the staff of WDAF-Radio. On March
4, 1968, David Schnable, executive secretary of the Union,
sent a letter to Nick Bolton, vice president and general
manager of WDAF-Radio, in which he stated that Respond-
ent laid off Gray and failed to recall him when it subsequent-
ly increased its announcing staff, in disregard of Gray's
seniority, and used a new method for the computation
of Gray's accrued vacation that resulted in a substantial
reduction in Gray's accrued vacation benefits. Schnabel
stated that the layoff, failure to recall, and computation
of accrued vacation, were illegal unilateral changes in wages,
hours, and conditions of employment. He remarked that
he was sure it was not coincidental that the changes occurred
in connection with Gray's employment, as Respondent had
long harbored animosity toward Gray because of his strong
support of the Union. Schnabel demanded in the letter
that Gray be immediately reinstated and reimbursed for
losses in wages and for other damage he had suffered
Bolton replied in a letter of March 22, 1968. He stated
that Gray was terminated when the station discontinued
the live all-night show for which he was announcer. Bolton
then stated that no announcer had been hired since Gray
was terminated. He admitted that there was an error of
2 days in the computation of Gray's accrued vacation,
and that a check had been forwarded to Gray in payment
for the additional 2 days. He denied Respondent had animos-
ity toward Gray or anyone else for support of the Union
or any similar organization, and concluded with the state-
ment that the demand for Gray's reinstatement was denied.
Schnabel in a letter dated May 14, 1968, questioned
Bolton's statement that no announcer had been hired subse-
quent to Gray's termination, and also questioned Respond-
ent's revised computation of Gray's accrued vacation Schna-
bel stated that an announcer by the name of Mark Foster
was not with Respondent on February 2, but had been
employed by Respondent since shortly after that date In
a letter dated June 14, 1968, Bolton replied that Foster
had been hired prior to February 2, and asserted that
the revised computation of Gray's vacation time was accu-
rate.
In a letter dated July 3, 1968, Schnabel stated to Bolton
that while Respondent was obligated to an annual earnings
guarantee for artists who returned to work following the
termination on April 18, 1966, of the strike against the
"Station," he "must conclude" from Bolton's letter of July
1, 1968, that Respondent did not intend to voluntarily
honor this obligation,' and "must conclude" from Bolton's
letter of June 14, 1968, that Respondent did not intend
to voluntarily comply with its obligation to adhere to seniori-
ty in connection with Gray's termination and rehiring fol-
lowing his termination. Schnabel then stated that it seemed
apparent that the Union and Respondent would not be
able "resolve grievances concerning these two matters and,
therefore, AFRA does hereby submit said issues to arbitra-
' Bolton 's letter of July 1, 1968, is not in evidence
TAFT BROADCASTING COMPANY
any action, which, in the opinion of the National Board
is injurious to any other local or detrimental to the interests
of the federation, nor shall this local enter into any contracts
or understandings on behalf of its members or issue rules
or regulations governing working conditions or minimum
compensation without the approval of the National Board."
There is no evidence that the National Board considered
the April 18, 1966, agreement to be detrimental to the
interests of any other AFTRA local or that the National
Board issued any communication, oral or written, expressing
disapproval of the April 18, 1966, agreement. There is
no evidence that the members of the Union or the officials
of the Union objected to the agreement because it was
not ratified by the national board of AFTRA. James R.
Willard, an attorney representing Respondent, who along
with Bolton and Bob Worthington, manager of WDAF-
TV, negotiated the April 18, 1966, agreement for Respond-
ent, testified that Attorney Wolff was an attorney for Nation-
al AFTRA, and had come to Kansas City to participate
in the negotiations for the agreement. According to Willard,
when Wolff affixed his signature to the agreement in his
presence, he said "I am here for the local, this will have
to be ratified, you understand that," and at that time
wrote under his signature "Subject to approval of Natl.
AFTRA."
On August 2, 1968, the Union fileld the unfair labor
practice charge on which the complaint in this proceeding
is premised It alleged a violation of Section 8(a)(1), (3),
and (5) of the Act by Respondent by unilaterally changing
conditions of employment in connection with the termina-
tion of Martin Gray, in refusing to compute and pay
moneys due certain employees as guaranteed annual earn-
ings, and in refusing to furnish the undersigned labor organi-
zation with earnings information relating to annual earnings
guarantees.
In the course of the investigation of the charge, the
Regional Office representatives acquired the evidence that
on April 3, 1967, Attorney Willard stated in a letter to
Schnabel that since a reasonable length of time had elapsed
since the polished draft of the April 18, 1966, agreement
was submitted on June 22, 1966, to Schnabel for signature
on behalf of the Union without acceptance by him, the
proposals contained therein were withdrawn, "and we are
rescinding any understanding or agreement between the
parties which may have been reached on April 18, 1966,
as reflected in the draft of June 22, 1966." Schnabel testified
at the hearing that he did not sign the June 22, 1966,
draft because it varied from the April 18, 1966, agreement.
Provisions of the June 1966 draft proposal vary from the
April 18, 1966, agreement in some respects in regard to
both substantive and procedural matters
There were two remaining paragraphs in Willard's letter
of April 3, 1967, on which the Respondent relies. They
are as follows-
For your information and the information of the
affected employees, it is our intention to continue
in effect the wages, hours and other conditions of
employment presently in effect as fully set forth in
the draft of June 22, 1966, and we will continue
handling any grievances that may apse in accordance
207
with the procedure set forth therein. There can, of
course, be no enforcement of the union secunty provi-
sion
We do not by this letter attempt or purport to
withdraw recognition from your union as the exclusive
bargaining representative of our employees in an
appropriate unit, and we are prepared to negotiate
with you in good faith in order to reach a satisfactory
collective-bargaining contract. In the meantime, if we
feel any change is desirable which may affect the
present wages, hours, and working conditions of our
employees, we will advise you in advance so that
you will have the opportunity to negotiate on them
before any change is made.'
The Union and Respondent bargained to an impasse by
December 4, 1965, when the 1963 contract andats extension
expired. On December 4, 1965, the Respondent placed
in effect unilaterally changed working conditions. The
changes had been negotiated with the Union in the collective-
bargaining negotiations that took place up to December
4. The unilateral action was the subject of a charge of
an 8(a)(5) violation by the Union and a complaint issued
by the General Counsel. The Board dismissed the complaint,
holding that the parties had bargained to a legal impasse,
and the Respondent had a legal right to place the changes
in effect unilaterally. It stated that notice to the Union
was not required as the Respondent had placed the Union
on notice by its bargaining before the impasse to have
the changes incorporated in a new contract, and nothing
would be gained by further discussion of them.4
In the letter of April 3, 1967, Willard appears to have
followed the theory of Respondent's unilateral action after
the expiration of the 1963 contract and its extension on
December 4, 1965, in his announcing that the refusal of
the Union in the period from June 22, 1966, to April
3, 1967, to sign the June 22, 1966, polished draft of the
April 18, 1966, agreement meant that the Union and the
Respondent had bargained to an impasse on a new contract,
and, therefore, it was withdrawing its June 22, 1966, contract
proposal, and further stating that by unilateral action it
would continue in effect the wages, hours, and other condi-
tions of employment then in effect, except union security,
and continue to handle grievances in accordance with the
procedure in section I, article VII, of the June 22, 1966,
polished draft of the April 18, 1966, agreement .' Apparently,
' I rejected G C Exhs 28 and 29 for the reason they were not
relevant to the issues before me Upon reconsideration of these exhibits,
I find them to be material and relevant, and vacate and set aside my
ruling, and receive the exhibits in evidence
' TaftBroadcasting Co, WDAFAM-FM TV, 163 NLRB 475
' There is an issue as to the meaning of the words that Respondent
would continue to handle grievances in accordance with the procedure
set forth in the June 22, 1966, draft Respondent contends Willard
was referring to grievance procedure only and not arbitration procedure
when he referred to procedure General Counsel and Union contend
that the reference to procedure was a reference to the procedure for
arbitration as well as the procedure for grieving in the draft, and the
notice in the letter was notice that Respondent would continue to handle
grievances as set out in the full procedure in section 1, article ViI,
of the draft, which included arbitration Respondent presented evidence
to show that prior to Schnabel's request of July 3, 1968, there was
only one grievance , and that was under the 1963 agreement when a
predecessor and not the Respondent was owner General Counsel offered
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Willard wrote the April 3, 1967, letter, he relied
on Respondent's theory that the April 18, 1966, agreement
was never in effect since it had not been ratified by the
National Board of AFTRA, and, therefore, no contract
was in effect when he wrote the letter.The June 22, 1966,
draft contains the provision of the 1963 agreement requiring
ratification by the National Board of AFTRA evidenced
by the signature on the contract of the executive secretary
of the International of AFTRA. As stated supra, this provi-
sion is not in the April 18, 1966, agreement, although
it was in the 1963 agreement. It is undisputed that the
provisions of the April 18, 1966, agreement had been fol-
lowed at least until the date of Willard's April 3, 1967,
letter. At the hearing in this proceeding, Bolton testified
that the wages, hours, working conditions, and other terms
and conditions of employment in effect at the time of
the hearing were those contained in the April 18, 1966,
agreement.
In a letter dated August 1, 1967, to one Edward Muscare,
Schnabel stated that there was not in effect between the
Union and Respondent a signed collective-bargaining agree-
ment under which membership in AFTRA was required
as a condition of employment. Schnabel, who is not a
lawyer, apparently accepted Willard's notice in his April
3, 1967, letter that no contract existed between the Union
and Respondent. On August 30, 1967, Respondent submitted
a contract proposal to the Union It contained 10 specific
proposals, and incorporated by reference the June 22, 1966,
draft, to the extent it was not in conflict with the specific
proposals. The Union and Respondent discussed the
Respondent's proposal but no agreement resulted. No refer-
ence was made to the provision in the June 22, 1966
draft covering grievance and arbitration procedure, although
it was incorporated in the August 30, 1967, proposal.
On June 26, 1967, Respondent had requested the Union
to meet to discuss changes in the wages, hours, terms,
and conditions in effect, presumably without a contract
but contained in the June 22, 1966, draft proposal. On
March 13, 1968, Schnabel submitted a proposed agreement
to Respondent under which Respondent would continue
contributions to the pension and welfare fund of the Union.
The March 13, 1968, proposal never became an agreement.
Schnabel again acted on his understanding from Willard's
letter that no contract was in effect.
two letters, dated October 14 and November 5, 1965, by Schnabel
to Respondent (G C Exhs 22 and 26), and Bolton's reply letters,
each dated November 9, 1965 (G C Exhs 23 and 27), to show that
there were more than one grievance Schnabel, in his letters, set out
certain rights which the Union considered certain employees had under
the 1963 agreement Bolton's reply letters contained only the words,
"Grievance denied" Schnabel's letters contained no clue of any kind
that they were written grievances The word grievance was not used,
and no reference was made to it in the language used in Schnabel's
letters The contents of the letters do not constitute written grievances
Bolton is not a lawyer The word grievance is a term in common usage
as a synonym for complaint The word "grievances" was used in Bolton's
letter as a word in common use meaning complaints, and not as a
legal term contained in the 1963 contract by which the Respondent
gave its reply to a grievance filed by the Union pursuant to the 1963
contract For these reasons, I rejected General Counsel's offer on objection
of Respondent I find there is evidence of only one written grievance
filed by the Union with the employer, and that was when a predecessor,
and not Respondent, was the employer and a party to the 1963 agreement
Respondent contends that Willard's statement in his April
3, 1967, letter, that Respondent would continue handling
any grievances in accordance with the procedure in the
June 22, 1966, draft, was notice that while it would continue
to process a grievance by following the grievance procedure
in section I, article VII, of the June 22 draft, it would
no longer submit a grievance to arbitration. Respondent
argues that by affirmatively disclosing that prior grievance
procedure would be available, but remaining silent about
availability of prior arbitration procedure, it was disclosing
that it would not arbitrate, and that the arbitration procedure
in the contracts and the June 22 proposal was not included
in the procedure Willard stated in the April 3 letter that
Respondent would follow. As stated supra, General Counsel
and Union argue that this meaning cannot be gleaned
from Willard's April 3 letter, but if it could, it discloses
that Respondent was changing a term or condition of
employment unilaterally which survived a contract, and
which may not be changed unilaterally without violating
Section 8(a)(5) of the Act.
The grievance and arbitration procedure contained in
section I, article VII, of the June 22, 1966, draft, is the
same as the procedure for grievance and arbitration proceed-
ings in section I, article VII, of the 1963 contract, which
expired on September 30, 1965, and in paragraph 8 of
the April 18, 1966, agreement, incorporated by reference
from section I, article VII, of the 1963 contract The
caption of the grievance procedure and arbitration procedure
in all of the documents is "Grievance Procedure and Arbitra-
tion." The opening paragraph of article VII states what
may be grieved and arbitrated, and there follow four subsec-
tions.
Subsection (a) deals with the presentation by an employee
of an oral grievance to the department head, and the
attempt by the latter to dispose of the grievance. Subsection
(b) deals with the reduction of the grievance to writing
by the Union if not disposed of by the procedure in subsec-
tion (a) and its presentation to Respondent by the Union,
and the meeting of the Union and Respondent to attempt
to dispose promptly of the grievance by agreement. Subsec-
tion (c) provides that if the grievance is not settled by
the procedure in subsection (b), it shall be considered
closed unless the Union requests in writing that it be
submitted to arbitration. Subsection (d) begins with the
language that "Upon receipt of the notice of taking a
grievance to arbitration, the parties will meet as soon as
possible for the purpose of selecting an Arbitrator." There
follows the procedure for selecting an arbitrator, for the
arbitration hearing and for the disposition of other matters
attendant on the arbitration. In this procedure reference
is made to the delivery of the decision of the arbitrator
in writing as soon as reasonably practicable "following
the hearing or other submission of the grievance."
I is clear from the contents of subsections (a), (b), (c),
and (d) of article VII of section I of the June 22, 1963,
draft, and the same provision in the 1963 and April 18,
1966, contracts, that the grievance is considered to be
handled when it is processed by the arbitration procedure
as well as by the grievance procedure and by the presentation
of it directly by the employee to the department head.
The language of the procedure in the provision for grievance
TAFT BROADCASTING COMPANY 209
and arbitration in the contracts and the contract draft
considered alone discloses that the language in the April
3, 1967, letter , that "we will continue handling any grievance
that may arise in accordance with the procedure set forth
therein" refers to the processing of the grievance under
both the grievance and arbitration procedure. There is
no reference to grievance procedure in the letter There
is only a reference to "grievances " and the procedure for
processing them The provision in the contracts and contract
draft is a procedure for both grieving and arbitrating,
and the grievance is handled by grieving it and arbitrating
it. Willard testified that he intended to convey to the
Union in his April 3 letter, that-only the grievance procedure
in the grievance and arbitration provision would be followed.
The Union never responded to the April 3, 1967, letter.
As stated, the Union contends that it understood the letter
to mean that the Respondent would continue to handle
grievances in accordance with the complete procedure in
the June 22, 1966, draft, and never understood it to mean
that Respondent would not submit a grievance to arbitration.
Willard testified he was aware of the issue in the case
of Heart of America Meat Dealers Association, 168 NLRB
No. 110, involving the employer's dropping of grievance
and arbitration after the expiration of the contract, and
intended to give notice as the employer did in that case
However, the employer there notified the Union that the
grievance and arbitartion provisions would be dropped.
The employer 's notice in that case is clear and unmistakable.
In the letter of April 3, 1967, Willard, in view of the
language he used and the language of the grievance and
arbitration provision in the contracts and contract draft,
could well be stating that Respondent would continue to
handle grievances by grieving and arbitrating them. The
use of the word "continue" further supports the position
that he gave notice that the complete procedure for disposing
of a grievance would be continued.
On September 11, 1969, the General Counsel determined
that the only litigable issue in the charge and in the results
of the investigation of the charge was whether Respondent
violated Section 8(a)(5) and (1) of the Act, in refusing
on July 22 , 1968, and thereafter , to arbitrate the issues
of Martin Gray 's termination and guaranteed earnings for
artists who returned to work following the end of the
strike ending April 18, 1966, on the ground that there
was no duty to arbitrate because there was no executed
agreement between it and the Union containing an agreement
to arbitrate The complaint was issued on September 26,
1969, in which it was as alleged that Respondent violated
Section 8(a)(1) and (5) of the Act on July 22, 1968, and
thereafter in that it unilaterally and without first affording
the Union the right to negotiate, rescinded and abrogated
the existing procedures for arbitration by denying that the
duty to arbitrate survived the expiration of a prior collective-
bargaining agreement between the Respondent and the
Union. General Counsel in determining the merits of the
charge on September 11, 1969, assumed that there was,
merit to the representation of Respondent in the course of
the investigation of the charge that no contract was in effect
between the Union and the Respondent when Respondent
made the refusal of July 22, 1968. It also assumed that the
wages, hours, working conditions , and other conditions of
employment in effect on July 22, 1968, without a contract
were those contained in the June 22, 1966, contract
proposal, including the arbitration procedure which
Respondent represented to the Regional Office it did not
continue on and after April 3, 1967. The General Counsel
made reference to the Board's decision in Bethlehem Steel
Co . 136 NLRB 1500, enfd sub nom Industrial Union of
Marine and Ship Building Workers of America v
N L R B, 320 F.2d 615 (C.A. 3), cert denied 375 U.S. 984,
in which it held that the grievance procedure was a
mandatory subject of bargaining and survived the
expiration of a contract and could not be changed
unilaterally. To the General Counsel, the grievance
procedure referred to in that case included the arbitration
procedure as it was the fourth step of the grievance
procedure
ANALYSIS, FINDINGS, AND CONCLUSIONS OF LAW AND
FACT
Respondent admits that on July 22, 1968, it refused
to arbitrate the termination of Gray and guaranteed annual
earnings for strikers who returned to work after the strike
that terminated on April 18, 1966, as requested by the
Union, on July 3, 1968, and that its answer to the Union's
request that they meet to select an arbitrator was that
there was no executed document in effect between the
Union and Respondent containing an agreement to arbitrate.
It is undisputed that the 1963 contract, to which Respond-
ent was bound as a successor to the owner who signed
it, expired on September 30, 1965, and its extension terminat-
ed on December 4, 1965 . Respondent contends that the
April 18, 1966, agreement was never legally executed because
it was not ratified by the National Board of AFTRA,
and in any event was only a temporary agreement to
be replaced by a permanent and binding contract. This
permanent contract, according to Respondent, was to be
the June 22, 1966, draft prepared by the Respondent.
Schnabel refused to sign the June 22, 1966 , draft because
it varied from the April 18, agreement.
On April 3, 1967, Respondent withdrew its June 22,
1966, proposal , since the Union did not sign it in the
interim between June 22, 1966, and April 3, 1967. It
contends there was no contract on April 3, 1967. Respond-
ent's position is that the duty to arbitrate in a contract
does not survive the expiration of the contract . It is not
a term or condition of employment which is a mandatory
issue of bargaining that survives the expiration of the con-
tract, and may not be changed unilaterally.
Respondent argues that on April 3, 1967, after a legal
impasse on the signing of the June 22, 1966, draft, and
on the efforts of the Union and Respondent to negotiate
a contract, it placed in effect by Willard's letter of that
date, the wages , hours, working conditions, and other terms
and conditions of employment then in effect, minus union
security. According to Willard's letter, they were reflected
in the June 22, 1966, contract proposal . It argues that
by Willard's letter it also placed in effect the grievance
procedure, in article VII, section I, of the. June 22, 1966,
draft, but not the arbitration procedure of that article
VII. Respondent further defends by saying that even if
its purported action of scuttling the arbitration procedure
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on April 3, 1967, was a unilateral change in a term or
condition of employment and illegal, this act occurred
prior to 6 months of the filing and service of the charge
in this proceeding, and is not litigable in the Board proceed-
ing by reason of Section 10(b) of the Act. It may not
be connected with its refusal of July 22, 1968.
I find no deficiency in the April 18, 1966, agreement.
It contains the wages, hours, working conditions, and other
terms and conditions of employment that have been in
effect since April 18, 1966 They were still in effect at
the time of the hearing although this April 18, 1966,
agreement expired on March 31, 1969. This termination
date is contained in the agreement. This agreement contains
the grievance and arbitration procedure that was in the
1963 agreement. I find that this agreement was in effect
on July 3, 1968, when the Union requested Respondent
to arbitrate the issues of Gray's discharge and guaranteed
annual wages for the strikers, and Respondent's refusal
on July 22, 1968, on the ground that no executed document
was in effect containing an agreement to arbitrate. There
is nothing in the contract to identify it as merely a temporary
agreement to be replaced by another contract.
I find no merit in the Respondent's position that the
April 18, 1966, agreement was never effective because it
was not validly executed in that it was not ratified by
the national board of AFTRA evidenced by the signature
on the agreement of the executive national secretary of
AFTRA. There is a provision in the 1963 agreement that
requires this ratification However, the April 18, 1966,
agreement does not contain this provision. Respondent relies
on a provision in the constitution of the Union providing
that the Union may not take any action which in the
opinion of the National Board is injurious to any other
local, or detrimental to the interests of the federation,
or enter into any contracts without the approval of the
National Board. There is not a scintilla of evidence that
the National Board of AFTRA had an opinion that the
April 18, 1966, agreement was or is detrimental to the
interests of any other local of AFTRA, or evidence that
the agreement lacked the approval of the National Board
of AFTRA.
The April 18, 1966, agreement brought about the termina-
tion of a long strike from December 12, 1965, to April
18, 1966, and provided wages, hours, working conditions,
and other terms and conditions of employment that were
in effect not only from April 18, 1966, to its termination
on March 31, 1969, but were still in effect at the time
of the hearing in November and December 1969. No objec-
tion to the April 18, 1966, agreement was raised by either
the rank-and-file members of the Union or the officials
of the Union. The only objection or claim against its
validity is raised by Respondent to escape any legal conse-
quences that may flow from its refusal to arbitrate on
July 22, 1968 It was satisfied to operate in accordance
with its provisions to bring about the end of the strike,
and to give effect to its provisions until April 3, 1967,
and thereafter, although minus union security, and purport-
edly without the mantle of a contract, and arbitration
There was approval in fact. The constitutional provision
relied on by Respondent to support its claim of invalidity
of the April 18, 1966, agreement, is in the Union's constitu-
tion and not in that of the International of AFTRA. The
Union included it in its constitution unilaterally and could
waive it unilaterally. There could be color of merit to
Respondent's position if the provision on which it claims
invalidity were in the constitution of the International,
and the Union were chartered by the International with
the condition of compliance with the International's consti-
tution, including this particular provision. This is not the
case here. The Union had authority to bind itself and
its members through its representatives, and the Union's
representative had apparent authority to act on behalf of
the Union. Its rules for governing its affairs may not
be used by Respondent to defeat a collective- bargaining
contract, an integral part of the national labor policy
expressed in the Act 6
The national labor policy expressed in the Act is the
substitution of collective bargaining and voluntary settlement
of grievances for industrial disputes to achieve peace between
labor and management . Collective bargaining means negotia-
tions between the employer and the majority representative
for a contract, reaching agreement on a contract, reducing
it to writing, signing it, complying with it, and changing
it only by mutual agreement in accordance with Section
8(d) of the Act. The Board and courts, in enforcing the
policy of the Act, favor collective-bargaining contracts,
not their absence or termination by unilateral or subtle
means.'
The Respondent's withdrawal on April 3, 1967, of its
more polished draft of June 22, 1966, of the April 18,
1966, agreement, did not have the effect of terminating
the April 18, 1966, agreement. The April 18, 1966, agree-
ment merely remained unpolished. The absence of any
attempt by the Union to negotiate the withdrawal by
Respondent of the June 22, 1966, draft did not result
in the demise of the April 18, 1966, agreement. Schnabel,
the Union's representative was misled by Willard's represen-
tation in the letter, or disclosed by the letter, that the
Apnl 18, 1966, agreement was no longer in effect.'
A refusal to arbitrate in the presence of an obligation
to do so under a contract is not a violation of Section
8(a)(5) of the Act The remedy, if any, is obtained under
Section 301 of the Act.' Here, however, Respondent did
more than refuse to arbitrate on July 22, 1968 It attempted
to scuttle unilaterally the arbitration machinery in the April
18, 1966, contract. It did this by relying on action it
purportedly took on April 3, 1967, on the premise that
no contract was in effect, to drop arbitration as a means
6 See NL R B. v Wooster Division of Borg-Warner Corp, 356 U S
342, affg 113 NLRB 1288
' Sections 1, 8(a)(5), 8 (d), 201 and 301 of the Act, H J Heinz
Co v NLRB, 311 U S 514, affg 10 NLRB 963, NLRB v Wooster
Division of Borg-Warner, 356 US 342, N.LR B v Sands Mfg Co,
306 U S 332, 342, NL.R B v Highland Park Mfg Co, 110 F 2d
632 (C A 4), enfg 12 NLRB 1238, NLRB. v Lion Oil Co, 352
US 282, affg 109 NLRB 680, Milk, Ice Cream Drivers, and Dairy
Employees, Local No 783, 147 NLRB 264
" See Duncan Foundry and Machine Works, Inc, 176 NLRB No
31 (TXD)
Textron Puerto Rico, 107 NLRB 583, Sucesion Mario Mercado E
Hyos, 161 NLRB 696, Central Illinois Public Service Co, 139 NLRB
1407, 1419, affd 324 F 2d 916 (CA 7), Hortex Mfg Co, 147 NLRB
1151 (1964), affd 343 F 2d 329 (C A D C)
TAFT BROADCASTING COMPANY 211
of handling grievances. As I have found, the April 18,
1966, agreement was in effect until March 31, 1969.`°
The Procedure for handling grievances in that agreement
was for arbitrating as well as grieving. By relying on the
action it purportedly took on April 3, 1967, to support
its position that no executed document was in effect contain-
ing an agreement to arbitrate, Respondent attempted to
change unilaterally the procedure in the then existing con-
tract for handling or processing grievances. Local No. 611,
International Chemical Workers Union, AFL-CIO, and
Purex Corporation Limited, 123 NLRB 1507, 1508."
Respondent then argues that its action on April 3, 1967,
occurred more than 6 months prior to the filing and service
of the August 2, 1968, charge, and the Board is estopped
from considering it in this proceeding under the Supreme
Court'sdecision in Local Lodge 1424, LA M [Bryan Mfg
Co ] v N L R B, 362 U S 411 There the employer signed
a contract with a minority union earlier than the 6 months
prior to the filing and service of the charge. This earlier
action of employer could not be considered as part of the
conduct alleged to be a violation. This case, however, is
inapposite. I find that when Willard stated in his April 3,
1967, letter that Respondent would continue to handle
grievances in accordance with the procedure in section I,
article VII, of the June 22, 1966, draft, he stated that
Respondent would continue to arbitrate grievances as well
as grieve them.
The procedure in the draft for handling grievances provid-
ed for oral presentation by the employees directly to the
department head; then reducing them to writing by the
Union, if not settled, and its presenting them to Respondent,
followed by their meeting and consideration of the grievances
in an attempt to settle them by agreement, and if unsettled,
to submit them to arbitration upon request of the Union
and the disposition of them by an award of an arbitrator
selected by the Union and Respondent. This award would
be final
The procedure in section I, article VII, of the June
22, 1966, draft, is identical with the procedure for grieving
and arbitrating in paragraph 8 of the April 16, 1966,
agreement, and section I, article VII, of the 1963 expired
contract. Willard did not state in his letter that the grievance
procedure in the contract proposal for handling grievances
would be followed in handling grievances He stated that
the procedure in the contract proposal for handling griev-
ances would be followed. This procedure is a procedure
for grieving as well as a procedure for arbitrating, and
10 The evidence of what Respondent did on April 3, 1967, what
the Union understood it did, and discussion and analysis of what was
allegedly done, and understood to be done, are set out supra. It is
not necessary to repeat it in detail here
" In this case, the Board relied on Textile Workers Union v Lincoln
Mills, 353 U S 448, 453, and NLRB v Knight Morley Corp, 251
F 2d 753, 759-760 (C A 6), enfg 116 NLRB 140, cert denied 357
U S 927, in which was held that the expiration of the collective-bargaining
agreement did not relieve the employer-respondent of its contractual
duty to arbitrate grievances that arose during the contract's existence
The Board held in Knight Morley that upon the expiration of the contract
the unsettled grievances returned to the general area of bargaining The
Sixth Circuit disagreed In Local No 611, International Chemical Workers
Union, supra, the Board stated it would follow the Sixth Circuit's decision
in Knight Morley
is the procedure in effect for handling grievances under
the April 18, 1966, contract, and the 1963 expired contract.
The Union would understand Willard's language to have
this meaning under any reasonable consideration and under-
standing of it. It is possible that Willard intended to limit
the handling of grievances to the procedure for grieving
only But if he did, he did not so state in his letter
of April 3, 1967, nor did he give notice to the Union
of such intention by his letter.
The most that could be helpful to Respondent's position
is a finding that there is an ambiguity in Willard's statement
in the April 3 letter. But the national labor policy expressed
in the Act favors arbitration, and presumptions favor the
retention of it rather than the discontinuance of it 'Z Termina-
tion of it should have been expressed in clear and unmistaka-
ble language" I do not find any merit in Respondent's
position on this ground. I credit the Union's position that
it did not understand Willard's letter to state that Respond-
ent would no longer submit a grievance to arbitration
or cease using the arbitration machinery to handle griev-
ances, but understood it to mean it would continue to
arbitrate as well as grieve. After evaluating Willard's conclu-
sionary testimony that he intended by the letter to state
a position of Respondent that it would handle grievances
only by grieving them, and not by arbitrating them, against
the language of the letter and the procedures for handling
grievances in the June 22, 1966, draft, the April 18, 1966,
agreement, and the expired 1963 contract, I find the letter
to state that Respondent would continue to handle griev-
ances by grieving and arbitrating them.
Respondent, by relying on action it claims it took on
April 13, 1967, but did not take, to escape the consequences
of what it did on July 22, 1968, took this action on
July 22, 1968 This action is part of its refusal of July
22, 1968. The evidence of it is admissible, and shows
that Respondent attempted to change on July 22, 1968,
unilaterally, the grievance and arbitration procedure in the
April 18, 1966, contract, which was effective until March
31, 1969, by discarding the arbitration machinery. The
duty to arbitrate in accordance with the procedure in this
contract survives as the issues to be arbitrated arose when
it was in effect."
I conclude and find that Respondent's July 22, 1968,
conduct in refusing to arbitrate because no executed docu-
ment was in effect between it and the Union containing
an agreement to arbitrate is a violation of Section 8(a)(5)
and (1) of the Act. 15
In view of my finding that the April 18, 1966, contract
was in effect when the refusal to arbitrate was made,
" Even if it were assumed that Willard was referring only to grievance
procedure then there is the question whether he was referring in any
event to arbitration in view of the thesis that arbitration is the fourth step in
the grievance procedure
" Sec 201 of the Act, United Steel Workers v Warrior & Gulf
Navigation Co, 363 US 574, John Wiley & Sons , Inc v Livingston,
376 U S 543 , The Timken Roller Bearing Co , 138 NLRB 15, enfd
325 F 2d 746 (C A 6), Perkins Machine Co , 141 NLRB 98, enfd
326 F 2d 488 (C A 1)
" Textile Workers Union v Lincoln Mills , 353 U S 448 , 453, Local
No 611, International Chemical Workers, supra
" Local No 611, International Chemical Workers Union , AFL-CIO
andPurex Corporation Limited, 123 NLRB 1507, 1508
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and when the issues to be arbitrated arose, it is not necessary
for me to decide the legal issue of whether the duty to
arbitrate survives the expiration of a prior contract with
respect to issues that arise after the expiration or other
demise of the contract.
iV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
I shall recommend that Respondent be ordered to cease
and desist from engaging in the conduct found violative
of Section 8(a)(5) and (1) of the Act, and to take certain
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the collective-bargaining representative
of a unit of Respondent's employees at its facilities in
Kansas City, Missouri, consisting of nonsupervisory radio
and television announcers, newscasters, sportscasters, floor
managers, director-coordinators, and all other nonsuperviso-
ry talent or artists, excluding the news director, assistant
news director, farm director, production manager, and all
other employees and supervisors as defined in the Act.
4. Respondent has refused to bargain with the Union
since July 22, 1968, in violation of Section 8(a)(5) and
(1) of the Act by refusing to arbitrate the termination
of announcer Martin Gray and the guaranteed annual earn-
ings of employees who returned to work after the strike
ended on April 18, 1966; for the reason there was no
executed document in effect between it and the Union
containing an agreement to arbitrate, because of unilateral
action it took on July 22, 1968, to eliminate the arbitration
procedure in the April 18, 1966, agreement between
Respondent and the Union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in the case, I recommend
that the Board enter an order requiring Respondent, its
officers, agents, successors, and assigns, to-
1. Cease and desist from refusing to bargain collectively
with the Union by:
(a) Refusing to arbitrate the termination of announcer
Martin Gray and guaranteed annual earnings for strikers
who returned to work after the strike ended on April
18, 1966, in accordance with the procedure in the April
18, 1966, agreement, between Respondent and the Union,
for handling grievances for the reason there was no executed
document in effect on July 22, 1968, and thereafter between
the Respondent and the Union containing an agreement
to arbitrate because of unilateral action it took on July
22, 1968, to eliminate the procedure for arbitration in
the April 18, 1966, agreement.
(b) Attempting to eliminate a duty it has to arbitrate
under a contract by taking action unilaterally to eliminate
the procedure for arbitration from the contract.
2. Take the following affirmative action
(a) Post in conspicuous places in its radio and broadcasting
facilities in Kansas City, Missouri, including all places
where notices are customarily posted, copies of the attached
notice marked "Appendix A "16 Copies of said notice, on
forms provided by the Regional Director for Region 17,
shall, after being duly signed by an authorized representative
of the Respondent, be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after in such conspicuous places. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 17, in writing,
within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply therewith."
IT IS FURTHER RECOMMENDED that, unless on or before
20 days from the date of the receipt of this Trial Examiner's
Decision the Respondent notifies the Regional Director,
in writing, that it will comply with the foregoing recommen-
dations, the National Labor Relations Board issue an order
requiring the Respondent to take the action aforesaid.
16 in the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of said Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Baord's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted pursuant to a Judgment of the United States
Court of Appeals enforcing an Order of the National Labor Relations
Board "
" in the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
TAFT BROADCASTING COMPANY
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with American
Federation of Television and Radio Artists, AFL-
CIO, Kansas City Local, the collective-bargaining rep-
resentative of our employees, by refusing to arbitrate
the termination of announcer Martin Gray and guaran-
teed annual earnings of employees who returned to
work after the strike which ended on Apnl 18, 1966,
for the reason there was no executed document in
effect between us and the Union containing an agree-
ment to arbitrate because of unilateral action we took
on July 22, 1968, to eliminate the arbitration procedure
in the agreement effective from April 18, 1966, to
March 31, 1969, between us and the Union.
WE WILL NOT refuse to bargain with the above
Union by attempting to eliminate a duty to arbitrate
213
under a contract we may have with it by taking action
unilaterally to eliminate the procedure for arbitration
from the contract.
Dated By
TAFT BROADCASTING
COMPANY WDAF AM-FM-
TV
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
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 matenal.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas''City, Mis-
souri 64106, Telephone 816-374-5181