Taft Broadcasting Co., Wbrc-Tv

National Labor Relations Board - Board Decisions

Feb 25, 1985

274 N.L.R.B. 260 (N.L.R.B. 1985)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taft Broadcasting Company, WBRC-TV and Inter-
national Brotherhood of Electrical Workers,
Local 253. Cases 10-CA-18054 and 10-CA-
18322
25 February 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 1 August 1983 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions' and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions only to the extent consistent with this
Decision and Order.
,The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by insisting to
impasse on a nonmandatory subject of bargaining.
The Respondent contends, inter alia, that it is irrel-
evant whether the subject of bargaining in question
is a mandatory or nonmandatory subject as the Re-
spondent did not insist to impasse on the proposal.
For the reasons set forth below, we find merit in
the Respondent's position.
As more fully set forth in the judge's decision,
the Respondent and the Union have been parties to
successive collective-bargaining agreements since
1955. The most recent agreement was effective 1
December 1979 through 30 November 1981. On 10
November 1981 the parties commenced bargaining
for a hew collective-bargaining agreement and held
10 bargaining sessions between that date and 2
March 1982.
i The Respondent has requested oral argument The request is denied
as the record , exceptions, and brief adequately present the issues and the
positions of the parties
2 The Respondent contends that in his decision the judge misquoted a
letter 'sent by the Respondent on 2 July 1982 to employee Walton The
correct text of the letter , in pertinent part , is as follows
I have carefully studied your June 23rd letter Those parts that re-
quest information have been answered
I have carefully reviewed those parts of the letter where you at-
tacked the station and me personally I did not want to act inpulsive-
ly [sic]
In your June 23rd letter you imply an "ulterior motive", (although
you have no evidence of it), you implied that the station is paying
for a pre-set result (although you have no evidence of it), you ac-
cused me of having a motive and cause to erase the tape myself (al-
though you have no evidence of it), and lastly you accused me of
being a liar
Although you have been insolent before (see for example your
letter of Sept 4, 1981, and in the phone call you made to me while I
was at home on June 12, 1982) your June 23rd communication is a
direct affront to your employer
You also attempted to undermine my ability to act as supervisor of
the Engineering Department There are other ways of resolving dif-
ferences
During the first bargaining session on 10 Novem-
ber 1981, the parties exchanged proposals concern-
ing a variety of items such as wages and benefits.
At this time, the Respondent proposed the creation
of an engineering work area (EWA), which essen-
tially would alter the Union's work jurisdiction
from a 79-mile radius of the Respondent's facility
to the Respondent's facility itself. Bargaining ses-
sions were again held on 11 and 18 November
1981. Agreement was reached on several items un-
related to the Respondent's EWA proposal.
At the fourth bargaining session held on 2 De-
cember 1981, the Respondent presented a docu-
ment containing the proposals on which agreement
had been reached. The parties discussed pension,
profit sharing, and thrift plans and certain job clas-
sifications. They also discussed the EWA proposal.
The Respondent offered to modify the EWA pro-
posal in several respects including an offer to
expand the work area.
A fifth bargaining session was held on 10 De-
cember 1981 where many topics were discussed
and some were agreed to. The Respondent's EWA
proposal, however, was not discussed.
A sixth session was held on 29 December 1981.
Among other things, the Union agreed to accept
the Respondent's EWA proposal if the Respondent
would agree to the Union's wage proposal. The
Respondent refused to accept the Union's compro-
mise, but countered with an offer to guarantee
there would be no layoffs under the EWA propos-
al. The parties then discussed, inter alia, the wage
scale , profit sharing, pension , and thrift plans,
lunch proposals, and the duration of the contract.
The parties met again on 12 January 19823 at
which time the Union rejected the Respondent's
EWA proposal without discussion. At this session,
the parties did discuss proposals concerning, inter
alia, cameras and job classifications.
At the eighth bargaining session on 9 February
the Respondent modified its EWA proposal, but
the Union refused to discuss it. The parties again
discussed, however, inter alia , the wage scale, va-
cations, sick leave, profit sharing, pension and thrift
plans, and lunch proposals.
At the ninth bargaining session on 16 February,
the Union restated its willingness to accept the Re-
spondent's EWA proposal if the Respondent would
agree to the Union's wage proposal. The Respond-
ent refused, and the parties once again discussed
profit sharing , pension , and thrift plans, lunch pro-
posals.
At the 10th bargaining session, held 2 March, the
Union rejected the proposals made by the Re-
3 All dates hereafter are 1982 unless otherwise indicated
274 NLRB No. 38
TAFT BROADCASTING CO
spondent on 16 February. The Union also present-
ed counterproposals almost identical to its initial
proposals proffered the preceding November. In so
doing, the Union reneged on at least one agreement
reached earlier.
The Respondent rejected the proposals, but of-
fered a signup bonus to all unit employees if the
Union would agree to the Respondent's 16 Febru-
ary offer by 17 March. When the Union failed to
agree by 17 March, the Respondent notified the
Union on 18 March that the Respondent's last offer
of 16 February would be put into effect on 21
March. Thus, on 21 March the Respondent imple-
mented its proposals proffered on 16 February.
This resulted in many changes in wages and bene-
fits and also included implementation of the Re-
spondent's EWA proposal.
As fully set forth in the attached decision, the
judge concluded that the Respondent's EWA pro-
posal was a nonmandatory subject of bargaining.
Next, finding that impasse may result from one un-
resolved issue or several unresolved issues, the
judge summarily found that the Respondent bar-
gained to impasse over the EWA proposal. Con-
cluding that parties may not insist to impasse on a
nonmandatory subject of bargaining, the judge
found that the Respondent's conduct violated Sec-
tion 8(a)(5) and (1) of the Act.
The Board and courts have long held that insist-
ence to impasse on a nonmandatory subject of bar-
gaining constitutes a violation of Section 8(a)(5)
and (1). We therefore agree with the judge's legal
analysis that, for the Respondent's conduct to be
unlawful, the Respondent must insist to impasse on
a nonmandatory subject of bargaining. Parties are
free to set forth proposals concerning nonmanda-
tory subjects of bargaining, but may not insist on
these proposals to impasse. The existence of several
unresolved items at the point impasse is reached,
however, does not necessarily mean that each of
the unresolved items caused the impasse . Thus, in
evaluating whether parties have insisted to impasse
on a particular nonmandatory subject of bargain-
ing, the Board and the courts have looked to
whether agreement on the mandatory subjects of
bargaining are conditioned on agreement on the
nonmandatory subject of bargaining. NLRB v.
Borg-Warner Corp., 356 U.S. 342 (1958). See also
Latrobe Steel Co. v. NLRB, 630 F.2d 171 (3d Cir.
1980), cert. denied 454 U.S. 821 (1981), National
Fresh Fruit Co. v. NLRB, 565 F.2d 1331 (5th Cir.
1978); and Seattle-First National Bank, 241 NLRB
753 (1979).
A careful review of the record as a whole indi-
cates that after 10 bargaining sessions the parties
had failed to agree on such major issues as wages,
261
a pension plan, and a profit-sharing plan. Addition-
ally, the parties could not agree on vacation time,
sick leave, lunch periods, or the duration of the
contract. Further, at the eighth bargaining session,
the Union set forth proposals virtually identical to
those it had proposed at the first session, reneging
on at least one item agreed to at the sixth bargain-
ing session . Thus, when impasse was reached, the
parties had not agreed on any major issue.
It is undisputed that at several points in the bar-
gaining sessions the Respondent did set forth the
EWA proposal. There is no evidence, however,
that the Respondent at any time set forth the EWA
proposal as a prerequisite or condition of agree-
ment on the mandatory subjects of bargaining.
The record shows no more than that during the
course of bargaining the Respondent twice offered
to modify its original EWA proposal. Indeed, it
was the Union which offered to accept the EWA
proposal as a trade off if the Respondent would
accept the Union's wage proposal. We find that the
General Counsel failed to satisfy his burden of
proof that the Respondent conditioned any agree-
ment to a mandatory subject on acceptance, of its
EWA proposal. We conclude to the contrary that
the EWA proposal was simply one of several unre-
solved issues when the parties reached impasse
generally on mandatory subjects of bargaining.
Therefore, whether the EWA proposal is a man-
datory or nonmandatory subject of bargaining, the
fact remains it is not the issue over which the par-
ties reached impasse.4 Accordingly, we reverse the
judge's findings that the Respondent violated the
Act by bargaining to impasse on a nonmandatory
subject of bargaining and by thereafter implement-
ing changes in terms and conditions of employment
pursuant to its earlier proposals.5
ORDER
The National Labor Relations Board orders that
the Respondent, Taft Broadcasting Company,
WBRC-TV, Birmingham, Alabama, its officers,
agents, successors . and assigns, shall
1. Cease and desist from
(a) Suspending its employees or threatening its
employees with discharge because they engage in
protected concerted activities.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
4 In view of our finding, we need not decide whether the EWA pro-
posal was a mandatory or nonmandatory subject of bargaining
5 Richard O'Brien Plastering Co, 268 NLRB 676 (1984)
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the suspension of and warning letter
issued to James E. Walton.
(b) Make James E. Walton whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against him in the manner set
forth in the remedy section of the administrative
law judge's decision.
(c) Remove from its files any references to the
unlawful suspension of James E. Walton and notify
him in writing that this has been done and that the
suspension will not be used against him in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Birmingham, Alabama,
copies of the attached notice marked "Appendix. 116
Copies of the notice , on forms provided by the Re-
gional Director for Region 10, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 If this Order is enforced by a Judgment of a United States Court of
Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT suspend you, threaten you with
discharge , or otherwise discriminate against any of
you for supporting International Brotherhood of
Electrical Workers, Local 253 or any other union.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the suspension of any warning
letter issued to James E. Walton.
WE WILL make whole James E. Walton for the
loss of wages and benefits , with interest , including
any loss of seniority, he incurred as a result of the
unlawful suspension imposed on him.
WE WILL notify James E. Walton that we have
removed from our files any references to his sus-
pension and that the suspension will not be used
against him in any way.
TAFT BROADCASTING COMPANY,
WBRC-TV
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN , Administrative Law Judge.
This hearing was held before me on November 17 and
18, 1982, at Birmingham , Alabama . The hearing was held
pursuant to a consolidated complaint issued by the Re-
gional Director for Region 10 of the National Labor Re-
lations Board on August 3, 1982 The complaint in Case
10-CA-18050 is based on a charge filed by the Interna-
tional Brotherhood of Electrical Workers Local 253 (the
Charging Party or the Union ) on April 7, 1982, and al-
leges that Taft Broadcasting Company, WBRC-TV, a
corporation (the Respondent), violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act)
since about March 17, 1982, by insisting "to impasse in
bargaining on modification of the jurisdiction -unit clause
of the collective -bargaining agreement ." The complaint
in Case 10-CA-18322 is based on an amended charge
filed by the Charging Party on July 29, 1982, and alleges
that the Respondent violated Section 8(a)(3) and (1) of
the Act about July 2, 1982, by the issuance of a 30-day
disciplinary suspension to its employee James E. Walton
"because of his membership in, and activities on behalf
of, the Union , and because he engaged in concerted ac-
tivities with other employees for the purposes of collec-
tive bargaining and other mutual aid and protection "
The Respondent by its answers denies the commission of
any violations of the Act
TAFT BROADCASTING CO
On the entire record in this proceeding, including my
observations of the witnesses who testified herein, and
after due consideration of the positions of the parties as
set out in the arguments of the General Counsel on the
record and the brief filed by Respondent, I make the fol-
lowing
FINDINGS OF FACT AND ANALYSIS'
I THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admits, and I
find that at the time of the alleged unfair labor practices
the Respondent was a Delaware corporation with an
office and place of business located in Birmingham, Ala-
bama, where it engaged in commercial, radio, and televi-
sion broadcasting, and that during the past calendar year,
a representative period, it derived revenues in excess of
$100,000 from its Birmingham, Alabama operation and
subscribed to national wire services and derived in excess
of $25,000 from advertising nationally sold products. On
the basis of the admitted facts, I find that Respondent,
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
The complaint also alleges, the Respondent admits,
and I find that "all broadcast technicians and engineers,
hereinafter called `Technicians' excluding clerical, an-
nouncers, salesmen, other nontechnical employees,
guards, chief engineer, and other supervisors as defined
in the Act," constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act.
The complaint further alleges, Respondent admits, and
I find that since 1955, Respondent has recognized the
Union as the representative for the employees in the
above-described unit, that the Respondent and the Union
have since 1955 entered into a series of successive collec-
tive-bargaining agreements covering said employees, the
most recent of which was effective for the period from
December 1, 1979, through November 30, 1981, and that
at all times since about 1955 the Union has been and is
the representative of a majority of the employees in the
unit described above for the purposes of collective bar-
gaining and by virtue of Section 9(a) of the Act has been
and is the exclusive representative of all the employees in
the aforesaid unit for purposes of collective bargaining
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(5) and (1) Violations
The Alleged Insistence to Impasse in Bargaining on the
Modification of the Jurisdiction- Unit Clause of the Collec-
tive-Bargaining Agreement: The parties commenced bar-
i The following includes a composite of the testimony of the witnesses
whose testimony is credited, except insofar as specific credibility resolu-
tions are made
263
gaining for a new collective-bargaining agreement on
November 10, 1981, to succeed the 1979-1981 labor
agreement (G C. Exh 12) which was to expire on No-
vember 30, 1981 The Union was represented by James
Walton, the Union's business manager, and by various
technicians in the bargaining unit. Respondent was repre-
sented by its chief engineer Jerry Thorn and by its attor-
ney Frank Stewart. At the initial meeting the parties ex-
changed and discussed their proposals. The Union's pro-
posal contained a number of demands primarily for im-
provements in wages and benefits and greater job securi-
ty (G.C. Exh 13). The Respondent's proposal contained
a number of demands including a proposal to create
master and production technician job classifications to
replace the existing technician job classification of tech-
nician and an "engineering work area" proposal The en-
gineering work area proposal is the proposal which the
General Counsel contends was a permissive subject of
bargaining that was unlawfully bargained to impasse by
the Respondent in this case.
As set out above the bargaining unit is a single classifi-
cation unit consisting solely of technicians who were de-
fined under "definitions"-paragraph 6 of the 1979-1981
labor agreement as
any person holding a valid FCC Radio Telephone
Operator's License, 1st Class, employed for the in-
stallation, operation, maintenance and construction
of radio broadcast, television, voice, facsimile and
re-broadcast equipment and apparatus by means of
which electricity is applied in the transmission or
transference, production or reproduction of voice,'
sound or vision with or without ethereal aid, includ-
ing the making of all recordings
The Respondent proposed the addition of a phase to
this definition following the phrase "including the
making of all recordings," with "in the engineering work
area." The engineering work area was to be defined as
"the transmitter, M.C.R., projection, tape room, studio
control room and studio." (G.C Exh. 13 at 2).
The foregoing definition of the engineering work area
was proposed by Respondent in conjunction with its pro-
posed modification of article I, section 4 of the 1979-
1981 labor agreement which provided:
The Trade jurisdiction of this Agreement shall in-
clude (except as provided below) all work in con-
nection with the construction, installation (except
new construction work as in the jurisdiction of the
IBEW inside wireman), operation, maintenance, and
repairs of broadcast, television, facsimile and audio
equipment and apparatus by means of which elec-
tricity is applied in the transmission or transference,
production or reproduction of voice, sound or
vision with or without ethereal aid, including the
making of all recordings, and studio lighting. The
above is confined to the Engineering work area.2 This
2 Respondent's proposed modification of this clause is italicized
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall not preclude the operation of two-way broad-
cast equipment by non-technical personnel for news
coverage and communications Technicians shall
not be required to perform work outside the scope
of this agreement [G C Exh 13 at 4,5]
Respondent 's proposal also would delete section 4 04
of article I of the 1979-1981 agreement which had pro-
vided as follows-
All remote pickups shall be made by Technicians
and Technicians shall be assigned to network origi-
nations [G.C Exh 13 at 6]
Respondent 's proposal also would delete section 4 05
of article I which had provided as follows-
The trade jurisdiction of this Agreement is confined
to the station and an area circumscribed by the
Class B contour coverage of WBRC-TV 3
The effect of Respondent 's proposed modification of
the trade jurisdiction clause was to diminish the scope of
the unit jurisdiction clause from the 79-mile radius to the
engineering work area.
The parties met and negotiated in 10 bargaining ses-
sions between November 10, 1981, and March 2, 1982.
During the course of these bargaining sessions several
items of agreement were reached and had been initialed
by the parties . Several issues had not be discussed exten-
sively. During the course of bargaining the Respondent
proposed several modifications of its engineering work
area proposal including the assurance " that no technician
covered by this agreement will be laid off as a result of
those changes" (G.C. Exh. 14); the assignment of techni-
cians "to other areas on an as needed basis" (G.C. Exhs.
15-16); and Respondent 's offer during the November 18,
1981 bargaining session, to expand its then proposed en-
gineering work area to include the maintenance shop and
other areas in which maintenance work was performed.
(Tr 175, 176.)
Chief Engineer Thorn testified that the Union had ini-
tially declined to discuss the engineering work area pro-
posal but that at the December 29, 1981 bargaining ses-
sion the Union indicated a willingness to resolve this
issue if the Union's proposal for a substantial wage in-
crease and cost-of-living allowance were accepted by
Respondent Respondent did not agree to do so. Business
Manager Walton testified that the Respondent 's engineer-
ing work area proposal was discussed at the January 12,
1982 bargaining session and that at that time Thorn said
that the engineering work area had been decided by Re-
spondent and was not negotiable . Thorn denied having
made this statement but testified that he had told union
representatives during a recess in the bargaining at that
meeting, "that the company-that the engineering work
was not going away. Basically trying to make some type
of suggestion to them to progress onward " I credit
Thorn's version as the more likely in view of the Re-
3 The class B contour is a 79-mile radius of the Respondent's broadcast
television station located atop Red Mountain in Birmingham , Alabama
spondent ' s modifications of its proposal during the
course of negotiations
At the February 16, 1982 bargaining session Respond-
ent offered a complete contract proposal (R. Exhs 6, 15,
and 16). Thorn testified that the Union had refused to
discuss the engineering work proposal at the February 9,
1982 meeting and initially also refused to do so at the
February 16, 1982 meeting but during the course of this
latter meeting Walton again offered to accept the engi-
neering work area proposal if the Respondent would
accept the Union 's wage proposal No agreement was
reached.
At the commencement of the 10th meeting on March
2, 1982, the Union rejected the Respondent 's proposal of
February 16, 1982, and offered a counterproposal which
was essentially similar to its original proposal at the com-
mencement of bargaining . At this meeting the Respond-
ent offered a sign -up bonus for each technician if the
Union agreed to Respondent ' s February 16, 1982 propos-
al by March 17, 1982. The engineering work area pro-
posal was not discussed at this meeting
The Union did not agree to the Respondent 's proposal
and on March 18, 1982 , the Respondent by its letter of
that date (G.C. Exh 18) informed the Union that it
would implement its February 16, 1982 proposal on
March 21, 1982, as a result of lack of progress in bar-
gaining and the need for a pay increase for the techni-
cians and the need to enroll the technicians in two fringe
benefits plans (the proposed pension and Traesop plans)
by March 31, 1982, which was the last day of Respond-
ent's fiscal year . One of the key issues on which there
had been no agreement at the time of the implementation
of Respondent 's proposal on March 21, 1982, was the
Respondent ' s engineering work area proposal
Respondent implemented its contract proposal on
March 21, 1982 . The contract proposal implemented by
Respondent on March 21, 1982, provided for an increase
in wages; adoption of its proposed pension plan, and
Traesop plan , a 5-year agreement ; implementation of Re-
spondent 's engineering work area proposal modifying the
definition of technicians and section 4 of the agreement
regarding the trade, jurisdiction , and use of equipment,
modifications in the grievance procedure ; abolishment of
the part -time technicians classification and creation of a
temporary technician classification ; deletion of seniority
rights with regard to shift hour preference ; creation of
production technicians and master technicians classifica-
tions with corresponding wage rates , changes in vacation
benefits and rights ; and numerous other modifications of
the agreement as well as the elimination of the check-off
clause for union dues (art. 3, sec. 24) The parties subse-
quently met in bargaining on May 14, 1982, and June 25,
1982. At the June 24-25, 1982 meeting , the Respondent
proposed the elimination of its engineering work area
proposal . No agreement was reached between the parties
on a new labor agreement
B Issue
Whether Respondent violated Section 8(a)(5) and (1)
of the Act by bargaining to impasse its engineering work
area proposal.
TAFT BROADCASTING CO
(a) Whether the engineering work area proposal was a
permissive or a mandatory subject of bargaining.
(b) If Respondent's engineering work area proposal
were a permissive subject of bargaining, did Respondent
insist on its proposal to impasse and unlawfully imple-
ment the terms of its proposed contract modifications
thereto.
Analysis
The General Counsel contends that the Respondent at-
tempted to eliminate certain work of the technicians by
redefinition of the work performed by the bargaining
unit , thus affecting the definition of the bargaining unit
itself, a permissive subject of bargaining, and that the im-
position of its proposal constituted bargaining to impasse
over a permissive subject of bargaining, relying on News-
paper Printing Corp., 232 NLRB 291 (1979), enfd. 625
F.2d 956 (10th Cir. 1980), cert. denied 450 U S. 911
(1981), and Newport News Shipbuilding Co, 236 NLRB
1637 (1978). The General Counsel also contends relying
on National Fresh Fruit Co., 277 NLRB 2014, 2016
(1977) enf denied F.2d 1331 (5th Cir 1978), that there
has been no showing of a legitimate impasse by Respond-
ent as there were a number of other items on the bar-
gaining table which had not been fully discussed and had
not been negotiated at the time of Respondent's assertion
of an impasse in this case and that Respondent could
have increased the wages and benefits of its employees
and informed the Union of its plans to do so without as-
serting the existence of an impasse and unilaterally im-
posing the conditions set out in its last contract proposal
The Respondent contends that its engineering work
area proposal concerned work assignment, a mandatory
subject of bargaining, and was its legitimate attempt to
address a problem of assignment of certain engineering
work at outlying locations which proposal was prompted
by a change of circumstances if faced with respect to
changes in technology and delivery of service as well as
increased competition by cable TV companies. Respond-
ent contends that it engaged in lengthy bargaining con-
cerning this subject and others but that the Union re-
fused to consider it unless the Respondent agreed to a
substantial pay raise for the technicians and cites the
most recent proposal of the Union which encompassed
substantially the same proposal as initially offered by the
Union at the commencement of bargaining in October
1981 as well as the lengthy negotiations engaged in by
the parties as evidence that an impasse existed over this
subject as well as the subject of job classification descrip-
tion for temporary technicians and other undisputed
mandatory subjects of bargaining. The Respondent con-
tends that it implemented its proposal in order to give
the technicians an overdue pay raise and to ensure their
inclusion under Respondent's pension and benefit pro-
grams and Traesop programs for the Respondent's up-
coming fiscal year on April 1, 1982. Respondent also
contends that its written commitment to the Union that
no member of the bargaining unit would lose his job as a
result of its proposed change in article I, section 4, is evi-
dence that its proposal did not involve a redefinition of
the bargaining unit but was concerned with work assign-
ment rather than the exclusion of employees from the
265
bargaining unit Respondent relies on Newspaper Printing
Corp. v. NLRB, 692 F.2d 615 (6th Cir 1982); Boeing Co.
v. NLRB, 581 F.2d 793 (9th Cir 1978), and University of
Chicago v. NLRB, 514 F 2d 942 (7th Cir. 1975). Re-
spondent also contends that its advocacy of its engineer-
ing work area proposal did not cause the impasse as it
was only one of numerous unresolved issues and was not
"one which prevented them from reaching agreement"
citing National Fresh Fruit Co., supra
I find the instant case factually indistinguishable from
Newspaper Printing Corp., 250 NLRB 1144 (1980), in
which the Board affirmed the conclusions of Administra-
tive Law Judge Peter E Donnelly and adopted his rec-
ommended Order In the Newspaper Printing Corp case
as in the instant case the employer respondent sought to
modify a unit work jurisdiction clause by limiting its
scope. The judge found that "this change from the lan-
guage of existing contract was substantial and meaning-
ful," 250 NLRB 1144 at 1148 In that case as in the in-
stant case the Respondent contended that no employee
was denied representation by the modification but rather
that the new work jurisdiction provisions were necessary
to permit the respondent to operate in an efficient
manner . These arguments were rejected by the judge
who found that respondent had unlawfully insisted to im-
passe on this issue and that such insistence and the unilat-
eral adoption of this proposal constituted violations of
Section 8(a)(5) of the Act, citing in support thereof,
Newspaper Printing Corp., 232 NLRB 134 (1977), and Co-
lumbia Tribune Publishing Co, 201 NLRB 538 (1973).
The judge further found that since there was an unlawful
impasse on the jurisdiction unit proposal, it was immate-
rial whether or not an impasse had been reached on vari-
ous other unilateral changes prior to their implementa-
tion, citing in support thereof, Douds v. International
Longshoremen's Assn., 241 F 2d 278 (2d Cir. 1957) In
adopting the decision of the judge the Board noted that
although the pertinent section of the contract was enti-
tled "Jurisdiction," the parties had bargained to impasse
over the unit description and not work jurisdiction alone
The Board's Order in this case was denied enforcement
by the Sixth Circuit Court of Appeals, 692 F 2d 615 (6th
Or. 1982). However, I am bound to apply Board law. I
thus find that the Board's decision in Newspaper Printing
Corp., supra, 250 NLRB 1144, applies to the facts in this
case. I find that the Respondent was attempting to nego-
tiate a change in the unit jurisdiction clause by its engi-
neering work area proposal. This change impacted di-
rectly on the unit description and was a permissive sub-
ject of bargaining.
I further find that Respondent did insist on its engi-
neering work area proposal and bargained to impasse on
this subject It is well established that a permissive sub-
ject need not be the sole cause of the failure to reach an
agreement in order for a finding of an unlawful insist-
ence to impasse on that permissive subject of bargaining
to have occurred. An impasse may result from a single
unresolved issue or a number of unresolved issues. The
existence of a number of unresolved issues as existed in
this case at the time of the implementation of the con-
tract by the Union does not eliminate the violation of the
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act by Respondent's insistence on the permissive subject
of bargaining to impasse National Fresh Fruit Co., supra,
Newspaper Printing Corp, supra, 250 NLRB 1144. Thus
by its insistence to impasse on a permissive subject of
bargaining and by its implementation of each of its uni-
lateral contract changes pursuant to its proposal Re-
spondent violated Section 8(a)(5) and (1) of the Act
C. The Suspension of James Walton
This aspect of the complaint is derived from an unre-
lated charge that Respondent violated Section 8(a)(3)
and (1) of the Act by its suspension of James Walton, the
Union's business manager, about July 2, 1982. On June 3,
1982, Chief Engineer Thorn wrote to Walton in Walton's
capacity as business manager, informing Walton that Re-
spondent's RCA TCR-100 video alignment cartridge
tape had been destroyed and that stated as follows-
The unexplained destruction of the RCA TCR-100
video equipment cartridge tape cannot go unnoticed
by the Company, knowing that in order to destroy
this tape certain deliberate steps had to be taken
The letter then informed Walton that Respondent intend-
ed to schedule six members of the bargaining unit for a
polygraph test on Thursday, July 1, 1982, and asserted
that "these steps are being taken in an effort to protect
the innocent " On June 8, 1982, Walton, in his position as
business manager, responded by letter to Thorn's letter
of June 3, 1982, and requested a meeting between Thorn
and a committee of the Union to discuss the incident and
to establish ground rules with respect to the administra-
tion of a polygraph test The letter also asked for infor-
mation concerning the incident and concerning the name
of the background of the organization employed to per-
form the polygraph test with respect to administration of
polygraph tests (G.C. Exh 2.) The letter also asked for
a copy of questions that were to be asked by the poly-
graph examiner in order to determine whether the ques-
tions related to the incident of alleged destruction of Re-
spondent's property. (G C Exh 3.) On June 9, 1982,
Thorn responded by letter to Walton's letter of June 8,
1982, and accepted the offer to meet with Walton and
the Union's committee and discussed alternate dates with
respect to meeting times (G C Exh 4) On June 14,
Walton by his letter of that date wrote to Thorn with re-
spect to a conversation between Thorn and Walton of
June 12, 1982, concerning Walton's allegedly not having
received information requested in his earlier letter of
June 8, 1982, and inquiring whether a state law gave the
Employer the right to require employees to take a poly-
graph test. Thorn by his letter of June 15, 1982, respond-
ed in part to Walton's letter of June 9, 1982, and con-
firmed a meeting date to discuss the destruction of the
cartridge tape and suggested alternate dates for the meet-
ing. (G C Exh 6.) On June 18, Thorn also responded by
letter to Walton's letter of June 14, 1982, and enclosed a
letter listing the polygraph company and the experience
of the examiner. (G.C Exh 7) On June 21, 1982, Thorn
again wrote to Walton and provided details as to the
time when the alleged incident occurred between May
26 and 27, 1982, and the circumstances under which the
damage had been discovered Thorn also stated in this
letter that the six technicians to be polygraphed were se-
lected as they were scheduled to work in the tape room
where the cartridge was during the time period when the
destruction occurred On June 23, 1982, Walton respond-
ed by letter to Thorn's letter and requested additional in-
formation regarding the polygraph test. Walton asserted
in this letter that
every man on your list to take the polygraph test
has been a trusted employee for years, all but one
has been an employee of Taft Broadcasting for
more years that you have, as far as I know the in-
tegrity of any one of these employees has never
been questioned There seems to be some ulterior
motive behind the polygraph test being given
Walton also asserted in this letter that on a prior occa-
sion when a lens was missing, no polygraph test had
been given and that engineers (technicians) were not im-
plicated in that equipment as, "of course we were not in
negotiations at the time the lens went missing." Walton's
letter further requested information concerning the accu-
racy rating of the individual employed to give the poly-
graph examination and asked the question, "What are
you paying the Company to administer the test and what
are you paying the Company for the results you are
seeking?" Walton's letter also requested an invoice for
the alignment cart at date of purchase and inquired what
the Respondent's plans were if one or all of the employ-
ees scheduled to be polygraphed refused to take the ex-
amination and "What do you plan if one or more of the
persons on your list take the test and the results are what
your are hoping for?" Walton also asserted in his letter
that there were two other production technicians in the
tape room on the Thursday morning when the cart may
have been erased who were not scheduled for the poly-
graph examinations by Respondent and inquired whether
individuals would be required to sign a waiver of their
rights in order to take the polygraph examination and
whether Respondent's officials would submit to a poly-
graph examination to determine if they had any part "in
planning or actual erasure of this cartridge?" The letter
referred to Thorn and Respondent's attorney, Frank
Stewart The letter further went on to state that Thorn's
alleged statement in a telephone conversation with
Walton on June 12, 1982, that an Alabama State law au-
thorized an employer's right to require an employee to
take a polygraph test was inaccurate and ended with two
lines "little lies for the sake of intimidation or whatever,
are still lies," and "your integrity is showing, or rather
your lack of it " Thorn, by his letter of June 29, 1982,
addressed to Walton (G.C Exh. 10) answered some of
the items set out in Walton's letter of June 23, 1982, but
specifically stated that "this response does not address
itself to the insults and accusations directed to me per-
sonally." Thorn by his letter of July 2, 1982, directed to
James E Walton, business manager, referred once again
to Walton's June 23 letter and stated that
you implied that the station is paying for a pre-
set result (although you have no evidence of et);
TAFT BROADCASTING CO
you accused me of having a motive and cause to
erase the tape myself `although you have no evi-
dence of it'; and lastly you accused me of being a
liar. The letter went on further to state although
you have been insolent before your June 23
communication is a direct affront to your employer
You also attempted to undermine my ability to
act as supervisor of the engineering department
There are other ways of resolving differences.
You are hereby suspended until the start of your
shift on August 2, 1982.
Further misconduct on your part will result in
your termination.
The Respondent introduced evidence that Walton and
Thorn had had difficulties in the past and Respondent
contended that Walton's letter of June 23, 1982, was
molded in part by his personal animosity toward Thorn
and his desire to retaliate for incidents not related to this
particular incident and that Walton was therefore not en-
gaged in concerted activity and his letter of June 23,
1982, and further that the statements made by Walton in
this letter in writing the letter to Thorn was so beyond
the realms of reasonableness as to lose the protection of
the Act It is conceded by Respondent that the suspen-
sion of Walton was based solely on Walton's letter of
June 23, 1982.
D. Issue
The issue is: whether Respondent, by its suspension of
James Walton because of the statements made in his
letter of June 23, 1982, violated Section 8(a)(3) and (1) of
the Act.
Analysis
I find that Walton was engaged in concerted activity
protected under Section 7 of the Act when he sent the
letter of June 23, 1982, to Chief Engineer Thorn A
review of the undisputed evidence in this case as set out
in the letters and correspondence thereto and of the testi-
mony of Thorn and Walton discloses that the problem of
the property destruction was brought to Walton's atten-
tion in his capacity as business manager of the Union by
Chief Engineer Thorn in his capacity as an agent and
representative of Respondent and in the course of the ad-
ministration of the collective-bargaining relationship be-
tween the Union and the Employer An analysis of the
exchange of letters between Thorn and Walton shows a
continuing inquiry on the part of Walton concerning
what right and/or authority Respondent had to insist on
polygraph examinations of certain employees. Walton
also asserted that members or representatives of Re-
spondent might have had access to the tape as well as
members of the bargaining unit and referred to a previ-
ous incident of damage to equipment wherein polygraph
examinations were not administered. Walton's letter of
June 23 asserts only that members of management as
well as members of the bargining unit might have had
access to the destroyed property and questions whether
or not these members of management were also to be po-
lygraphed. Walton's letter also brings into question
whether the Respondent was seeking certain results from
267
the polygraph examination and questions the truth and
veracity and integrity of Thorn with respect to his al-
leged contention that Respondent had the authority to
require its employees to undergo polygraph examina-
tions
It is well established that a union representative is pro-
tected under Section 7 of the Act when acting on behalf
of members of the bargaining unit in his representative
capacity as I find Walton was in this case. Walton's in-
quiries in this regard and his assertions in his letter ques-
tioned the right of management to polygraph members of
the bargaining unit and brought into question whether
others including representatives of the Respondent might
also have had access to the tape and a motive for de-
stroying it Walton also challenged the veracity of state-
ments given to him by Thorn and questioned Thorn's
truthfulness and integrity. It is well established that
union representatives are entitled to the protection of the
Act in calling into question rules of management, the
truthfulness of management, and the motives of manage-
ment in the implementation of their representative re-
sponsibilities Such assertions as calling management rep-
resentatives liars and others have been held by the Board
to be protected Under the circumstances of this case, I
do not find that Walton's conduct was beyond the pro-
tection of the Act. I accordingly find that Respondent by
reason of the 30-day suspension of James E Walton im-
posed on him on July 2, 1982, to August 2, 1982, violat-
ed Section 8(a)(3) and (1) of the Act. See Boettcher Mfg.
Corp, 76 NLRB 526 (1948); Hawaiian Hauling Service,
219 NLRB 765 (1975), enfd 545 F.2d 674 (9th Cir.
1976). See also Max Factor Co., 239 NLRB 804 (1978),
enfd. 640 F 2d 197 (9th Cir 1980).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices as found herein in section
111, above, in connection with the business of Respond-
ent as found in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes obstructing the free flow of commerce.
CONCLUSIONS OF LAW
1 Respondent Taft Broadcasting Company, WBRC-
TV is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 International Brotherhood of Electrical Workers,
Local 253, is a labor organization within the meaning of
Section 2(5) of the Act.
3 By its insistence to impasse on its engineering work
area contract proposal, a permissive subject of bargain-
ing, Respondent violated Section 8(a)(5) and (1) of the
Act.
4 By the implementation of its contract proposal in-
cluding the engineering work area proposal and the
elimination of the union check-off clause and its failure
to collect union dues, and the other unilateral changes
implemented under the terms of this proposal about
March 21, 1982, the Respondent violated Section 8(a)(5)
and (1) of the Act.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By its suspension and threat of discharge issued to
James E. Walton on July 2, 1982, because of his engage-
ment in concerted activities in his role as union business
manager, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(1), (3), and (5) of the Act, it
will be ordered to cease and desist therefrom and take
certain affirmative actions designed to effectuate the pur-
poses and polices of the Act, and post the appropriate
notice. The Board does not require that employees suffer
loss of increases in wages and benefit under circum-
stances such as have occurred in this case with respect to
the wage increases and benefit increases such as the pen-
sion and Traesop programs and vacation benefits in
order to effectuate the purposes of the Act. Kendall Col-
lege, 228 NLRB 1083 (1977); Dura-Vent Corp., 257
NLRB 430 (1981), and Pace Oldsmobile, 256 NLRB 1001
(1981), and I accordingly do not recommend that the in-
creases in wages and pension and Traesop and vacation
benefits or any other increases in wages or benefits im-
plemented by Respondent be rescinded. I do, however,
recommend that all other terms and conditions of the
collective-bargaining agreement which expired on No-
vember 30, 1981, be reinstated to the status quo ante
until Respondent fulfills its obligation by bargaining,
upon request, with the Union as the collective-bargaining
representative of its employees in the appropriate unit,
and either reaches, or executes, a written agreement with
the Union or until a valid impasse occurs and that Re-
spondent make the employees whole for any losses they
may have sustained by the implementation of Respond-
ent's proposal. I further recommend that Respondent
make whole the Union for any loss of dues that may
have been incurred by it by reason of Respondent's
elimination of the checkoff clause.4 I further recommend
that Respondent's suspension of James E. Walton for the
period of July 2, 1982, to August 2, 1982, be rescinded
and that Respondent expunge its personnel records of all
references to the aforesaid suspension and make him
whole with respect to all loss of seniority, earnings, and
benefits which he may have incurred as a result of his
suspension. All loss of earnings and other benefits suf-
fered by Walton or any other employees of Respondent
by the unlawful acts of Respondent as found herein shall
be computed with interest in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).5
[Recommended Order omitted from publication.]
° Interest with respect to union dues shall be applied in accordance
with the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977)
See generally Isis Plumbing Co, 138 NLRB 716 (1962)
5 See generally Isis Plumbing Co, 138 NLRB 716 (1962)