Taft Broadcasting Co.

National Labor Relations Board - Board Decisions

Jan 13, 1975

216 N.L.R.B. 119 (N.L.R.B. 1975)

TAFT BROADCASTING COMPANY
Taft Broadcasting Company and American Federation
of Television and Radio Artists, Columbus-Dayton
Local . Case 9-CA-8219-3
January 13, 1975
DECISION AND ORDER
By ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On September 20, 1974, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Taft Broadcasting Company,
Columbus, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
I We note that in par. 4 of the section entitled "The Alleged Unfair
Labor Practices" the Administrative Law Judge inadvertently referred to
August 24 as the date on which Basso telephoned the earner and rescinded
the authorization for the move . The actual date was October 24.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: This case
was heard on July 16, 1974, upon a complaint' issued by
the General Counsel of the National Labor Relations
Board on May 17, 1974. The complaint alleged that Taft
Broadcasting Company, hereinafter called the Respondent,
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act. The Respondent, in its
answer , has denied the commission of any unfair labor
practices.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
i The complaint was founded on a charge filed on January 17, 1974, by
American Federation of Television and Radio Artists, Columbus-Dayton
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
119
The facts found herein are based upon the pleadings.
The Respondent , a Delaware corporation, is engaged in
the operation of a number of television and radio stations
under license of the Federal Communications Commission,
in various States in the United States including -station
WTVN-TV at Columbus, Ohio, the only facility involved
in this proceeding . During the 12-month period preceding
the issuance of the complaint , a representative period,
Respondent had a gross income in excess of $ 100,000.
During the same period , Respondent had a direct inflow of
goods and services valued in excess of $50 ,000, which it
received directly from points outside the State of Ohio at
its locations in the State of Ohio. The parties agree and
based upon the foregoing , I find that Respondent is
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are substantially undisputed. The
Respondent's employees at its television broadcasting
station WTVN-TV in Columbus, Ohio , are represented by
the Union . The issue involved here is as follows: Where
David Michaels , an individual , was hired by the Respon-
dent in August 1973 2 under a personal employment
contract permitted by the collective-bargaining agreement
then in existence between the Respondent and the Union,
and one of the conditions in the personal employment
agreement provided that the Respondent would pay for the
movement of Michaels ' household possessions from
Atlanta , Georgia , to Columbus , Ohio , did the Respondent
violate the Act when it rescinded its authorization for the
movement of Michaels ' household goods because, as
Respondent says , he was not actively employed; when the
reason for Michaels' failure to perform services for the
Respondent at the time was because he was a participant
in a lawful economic strike called by the Union against the
Respondent and he had not at that time been permanently
replaced.
Michaels was residing with his family and working as an
announcer for a television station in Atlanta , Georgia,
when, in July 1973 , he was interviewed by Respondent's
program manager , Nicholas Basso , for a position as a talk-
show host . Following negotiations concerning conditions
under which Michaels would accept employment, they
agreed to terms and executed a personal employment
contract . Among the conditions demanded by Michaels
and accepted by the Respondent were (a) the Respondent
would bear the expense of moving Michaels' furniture and
Local, hereinafter called the Union.
2 Unless otherwise indicated , all dates hereinafter refer to 1973
216 NLRB No. 10
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other belongings from Atlanta to Columbus; (b) the
Respondent would provide clothing to be worn on the
program; and (c) the Respondent would pay for his living
accomodations in Columbus until he moved his family to
Columbus. On August 20 Michaels commenced his
employment with the Respondent and on August 28,
Michaels and Basso executed the personal employment
contract.3 This personal employment contract was permis-
sible under the collective-bargaining agreement then in
existence between the Respondent and the Union.4
Michaels initially was indoctrinated to the type of work
he was to perform and he engaged in advance publicity for
his show. He first appeared on the air on October 1. He
was lodged at the Ramada Inn South at the Respondent's
expense and Respondent provided the clothing he wore on
the air pursuant to the personal employment contract.
Michaels planned to move his family and household
possessions from Atlanta to Columbus on or about
October 23. By letter dated October 12, Basso notified the
carrier the Respondent would bear the expense of moving
Michaels' furniture and belongings to his new residence in
the Columbus area . Michaels had done about 12 live shows
when on October 17, the Union commenced an economic
strike at Respondent's station.5 Michaels, a member of the
Union and employed in the bargaining unit, ceased work
altogether with his fellow employees and participated in
the strike.
On August 24, Basso telephoned the carrier and
rescinded the authorization for the moves That same day
Basso confirmed this conversation by telegram to the
carrier, with a copy to Michaels. It read as follows:
Confirming our telephone conversation of this morning
we are rescinding until further notice our authorization
of October 12, 1973, regarding the move of David M.
Potts (Michaels) from Atlanta to Columbus, Ohio. We
will pay for all work done by you prior to noon today,
October 24, 1973. We ask that you do nothing further
until you hear from us.
Sometime thereafter, but still during the strike, Michaels
made arrangements with the Union for it to help pay the
expense of the move and the goods were moved to
Columbus. The strike terminated on December 17.
Michaels by this time had been permanently replaced and
was not reinstated.? However , it is undisputed that on
October 24, when the Respondent cancelled its authoriza-
tion to bear the moving expenses , Michaels was an
economic striker who had not yet been permanently
replaced. Basso testified that had Michaels offered to
return to work on October 24, he would have been
reinstated and the Respondent would have paid for the
moving expenses . Basso testified that the authorization to
pay the moving expenses was cancelled because Michaels
was not "performing under his contract" but he also stated
he was aware the reason for the nonperformance was
because Michaels was participating in the strike against the
Respondent.
Analysis and Discussion
The General Counsel contends that the Respondent's
action in rescinding the authorization to move Michaels'
belongings was in retaliation for his having engaged in an
activity protected by Section 7 of the Act - participating
in a lawful economic strike. The General Counsel argues
that the Respondent's obligation to bear the expense had
already accrued and had not been extinguished by
Michaels' strike activity. The General Counsel's position is
that even if Respondent's conduct was not so pervasive as
to be inherently destructive of employee rights, the conduct
still violated the Act because it was not based on valid
business considerations but was in retaliation for Michaels'
engagement in the protected strike activity.
The Respondent, on the other hand, first argues that the
action involved is wholly dependent upon the interpreta-
tion and application of a personal contract between
Michaels and the Respondent, one in which the Union
itself was not involved, and thus should be left to the
parties themselves and the courts to resolve and not the
Board. In support of this argument, Respondent relies on
Local 365, United Automobile, Aerospace and Agricultural
Implement Workers of America, United Automobile Workers,
195 NLRB 835 (1972). I find this cited case inapplicable.
In the cited case, the Board refused to decide whether the
employer was obligated to provide severance pay to an
individual employee under a personal agreement but left
the issue up to the parties to be interpreted and resolved. In
that case the Board carefully pointed out that the personal
agreement preceded the advent of a collective-bargaining
representative and that the private agreement was effec-
tively terminated through negotiations leading to the
execution of a collective-bargaining contract where sever-
ance pay was discussed during negotiations and rejected by
the union membership, choosing instead to accept a wage
increase . Here, however, the personal employment agree-
ment between Michaels and the Respondent was entered
into during the term of a collective-bargaining contract
between the Respondent and the Union and such terms
and conditions of employment agreed upon between the
Respondent and Michaels were permitted by the collec-
tive-bargaining agreement and in no way could be said to
have infringed upon the conditions of employment of other
unit employees under the contract.
The Respondent also argues that while Michaels was
engaged in the strike, the Respondent's obligations under
5 The execution of the personal employment contract was delayed for
several days as the signatories sought to refine the language contained in the
agreement.
4 Section VI-A of the collective-bargaining agreement read as follows:
The Company agrees that it will not enter into any contract with or
employ any artist upon terms and conditions less favorable to the artist
than those set forth herein , and that no waiver by any artist of any
provision in this agreement or in Schedules 1, 2 and 3 hereof , shall be
sought by the Company or shall be effective unless the written consent
of AFTRA to such waiver is first had and obtained.
The Company further agrees that nothing in this agreement shall be
deemed to prevent any artist from negotiating for, or obtaining , better
terms than the minimum terms herein provided.
5 The contract had expired on September 17.
6 The carer's employees were at Michaels' home at the time preparing
to move his possessions.
r At the time of the hearing Michaels was in Los Angeles, and did not
appear to testify as a witness in this proceeding.
TAFT BROADCASTING COMPANY
the personal employment agreement were suspended.
Relying on the General Electric case,8 and related cases, he
contends that the Respondent was not obligated to follow
through its commitment to pay the moving expense
because Michaels was not actively working or performing
under the agreement. Respondent's counsel points out that
the General Counsel has not attacked the Respondent's
failure to continue its other obligations under the personal
employment contract - the continued payment of wages,
the furnishing of temporary lodging, and lastly, the cost of
clothing to be worn while performing on the program. He
argues that the moving expense obligation should not be
treated differently from the other obligations referred to
above and that all the obligations, including the "moving
expense" obligation , were suspended during the strike.
Unlike the Respondent's counsel, it appears to me the
Respondent's obligation to fulfill its commitment to pay
the moving expense stands separate and apart from its
other specific obligations covering certain terms and
conditions of employment. The commitment to pay the
moving expense arose in August when Michaels com-
menced his employment under the terms agreed upon by
Respondent and Michaels . The fulfillment of this commit-
ment was to take place when Michaels was prepared to
move his family. On October 12, the Respondent instruct-
ed the carrier it was authorized to move the goods to a
specific address in the Columbus area at the Respondent's
expense. Respondent at the time knew that the move was
to take place on or about October 23. When the
Respondent cancelled the authorization the carrier was in
the process of preparing the movement of the household
goods. As Respondent conceded, had Michaels left the
picket line on October 24 and returned to work it would
have paid the moving expense . I find without merit the
Respondent's argument that it could lawfully rescind its
authorization because Michaels was not actively perform-
ing services for the Respondent . Respondent's obligation
to fulfill its moving expense commitment matured when it
was made aware that Michaels was ready to move,
apparently shortly before its October 12 letter to the
carrier. In agreement with the General Counsel I find such
obligation was not extinguished when Michaels chose to
participate in the Union's lawful economic strike against
the Respondent . At the time of the cancellation Michaels
had not been replaced and still was an employee, albeit not
performing work for the Respondent. At the time of the
cancellation Michaels had not abandoned his employment.
The fact that he at a later date was permanently replaced
does not affect the Respondent's earlier obligation to fulfill
its commitment while he still was employed . It is not
disputed that Respondent's agreement to pay the moving
expenses was a condition of employment and a benefit
extended to Michaels . The withdrawal of this benefit was
directly related to his participation in a lawful protected
concerted activity and necessarily created an inherently
destructive effect upon the Section 7 rights of employees to
engage in lawful strike activity in violation of Section
8(axl) and (3) of the Act .9 While the Respondent was not
legally obligated to finance the strike by continuing to pay
General Electric Company, 80 NLRB 510.
9 N.LRB. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).
121
wages, to pay for lodging or to pay for clothing to be worn
by Michaels during his performances on the air during the
period he remained on strike, Respondent could not
lawfully rescind its moving expense obligation while
Michaels remained a striking employee; an obligation that
ripened and was earned when Michaels, still employed by
the Respondent and not replaced, was prepared to move
his family. Although it may be argued that specific proof of
an unlawful motive here is required,10 it is clear that
Respondent was discriminatorily motivated in rescinding
the moving expense authorization. The rescession of the
benefit already earned was based on the ground he was
participating in the strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, 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 obstruction commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer 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. By rescinding its authorization to pay for the moving
expenses of its employee, David Michaels, and failing to
reimburse Michaels for the cost of such move, because of
his participation in a strike, a protected concerted union
activity, Respondent has engaged in discrimination in
regard to terms and conditions of employment of its
employees within the meaning of Section 8(axl) and (3) of
the Act.
4. 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 will recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that the Respondent violated
Section 8(a) (1) and (3) of the Act by discriminatorily
rescinding its authorization to pay for the expense of
moving the household goods of its employee, David
Michaels, when due, I shall recommend that the Respon-
dent reimburse him for the cost of moving his household
goods from Atlanta, Georgia, to Columbus, Ohio, plus
interest at 6 percent per annum. I shall also recommend
that the Respondent post an appropriate notice.
Upon the foregoing findings of fact and conclusions of
10 N.LR . B. v. Great Dane Trailers, Inc., supra. Cavalier Division of
Seeburg Corporation and Cavalier Corporation, 192 NLRB 290 (1971).
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
tORDER"
Respondent, Taft Broadcasting Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Withdrawing or withholding benefits earned or
accrued from its employees for the purpose of discouraging
its employees from engaging in a strike or other union or
concerted activities or any other activity protected by the
Act.
(b) Discriminating in regard to the hire or tenure of
employment , wages, hours of employment , or any term or
condition of employment of its employees because of their
participation in a strike or other union or concerted
activities or any other activity protected by the Act.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Reimburse David Michaels for the cost of moving his
household goods from Atlanta, Georgia, to Columbus,
Ohio.
(b) Post at its facility in Columbus, Ohio, copies of the
attached notice marked "Appendix ." 12 Copies of said
notice , or forms provided by the Regional Director for
Region 9 , after being duly signed by Respondent's
representative , shall be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter , in conspicuous places, including places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered , defaced , or covered by
any other material.
(c) Notify the said Regional Director , in writing, within
20 days from the date of this Decision what steps
Respondent has taken to comply herewith.
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT withdraw or withhold benefits earned
or accrued from our employees for the purpose of
discouraging them from engaging in a strike or other
union or concerted activities or any other activity
protected by the Act.
WE WILL NOT discriminate against any employee in
regard to the hire or tenure of employment, wages,
hours of employment, or any term or condition of
employment to discourage activities on behalf of
American Federation of Television and Radio Artists,
Columbus-Dayton Local, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL reimburse David Michaels for the cost of
moving his household goods from Atlanta , Georgia, to
Columbus, Ohio.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
T AFT BROADCASTINGRules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem shall, as provided in Sec . COMPANY
102.48 of the Rules and Regulations , be adopted by the Board and become (Employer)