WAPI-TV-AM-FM

National Labor Relations Board - Board Decisions

Jun 22, 1972

197 N.L.R.B. 885 (N.L.R.B. 1972)

WAPI-TV AM-FM
Newhouse Broadcasting Corporation d/b/a WAPI-
TV-AM-FM and International Brotherhood of
Electrical Workers, Local Union 253. Cases
10-CA-8771, 10-CA-8928, and 10-CA-8972
June 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On October 28, 1971, Trial Examiner Laurence A.
Knapp issued the attached Decision in this proceed-
ing. Thereafter, the applicants for intervention filed
exceptions, the General Counsel filed exceptions and
a supporting brief, and the Respondent filed an
answering 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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings,' findings, and conclusions and to adopt his
recommended Order with the following addition.
The General Counsel excepted to, among other
things, the Trial Examiner's failure to find that the
Respondent's refusal to incorporate the existing
insurance benefits in the agreement under negotia-
tion violated Section 8(a)(5) of the Act. Early in the
negotiations the Union proposed the incorporation
in the written agreement of a clause reading:
The present policy of the Company in regard to
Life Insurance and Blue Cross Hospital insurance
furnished and paid by the Company shall be
continued in accordance with past practice.
The Company refused to include any provision in the
contract making reference to these benefits, but
submitted the following written statement as to its
position on these benefits:
We do not want this in any labor contract. The
company hopes to continue the life insurance and
hospital insurance program which it has been
paying for in full, and which it has been
continuing to pay for the employees in the
bargaining unit during the course of the present
negotiation sessions. The Company recognizes
this is a proper subject of bargaining and if it
contemplates making any change of any nature in
the existing life and hospital insurance program it
will bargain with the Union about the matter.
Respondent's witness, Wear, testified, and in this was
credited by the Trial Examiner, "that we [the
Company] could not agree on the Union's request
that the provisions of medical and group life
885
insurance programs [currently in existence] be
incorporated in any written contract." And again on
redirect examination the Respondent's counsel asked
Respondent's witness, Gross, whether "the Compa-
ny's proposal was that it hopes to continue the life
insurance? Was that the Company's position?" Gross
replied, and was credited in his reply by the Trial
Examiner, "Yes, sir." He was then asked: "It never
did agree to continue them, did it?" Gross answered:
"No, sir."
We therefore agree with the Trial Examiner's
finding that this is not a case in which an employer
refused to include in a signed agreement matters
agreed to in bargaining negotiations. Rather, in this
case Respondent and the Union were in disagree-
ment over the Union's proposal that Respondent
agree to bind itself to a continuation of its existing
insurance program. We therefore further agree with
the Trial Examiner's conclusion that this allegation
of the complaint should be dismissed. We note,
moreover, as did the Trial Examiner, that Respon-
dent is not charged with having bargained generally
in bad faith.
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 Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
The applicants for intervention , who were the employee-petitioners in
the related decertification proceeding (iO-RD-414), excepted to the Trial
Examiner 's denial of their motion to intervene . Inasmuch as we affirm the
Trial Examiner 's Decision and adopt his recommended Order that the
complaint be dismissed in its entirety, we find that the request is moot and
affirm the Trial Examiner 's ruling on this ground
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: These are three
cases consolidated for hearing and decision, which I heard
in Birmingham, Alabama, on August 17-18, 1971, after
prehearing proceedings in compliance with the National
Labor Relations Act, as amended (herein referred to as the
Act).' Following the hearing, briefs were filed by counsel
for all parties.
I The case involves the consolidation for hearing and decision of three
complaints issued on February 5, April 15, and May 11, 1971, respectively,
to which Respondent filed its respective answers on February 12, April 20,
and May 12, 1971. The corresponding charges were filed on December 23,
1970, March 29, 1971, and April 27, 1971, with the latter charge amended on
(Continued)
197 NLRB No. 148
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record2 in the proceeding, including my
observations of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS ; THE LABOR
ORGANIZATION INVOLVED
The complaints allege, Respondent admits, and I find
that in each of the respective calendar years preceding
issuance of the complaints, Respondent, a New York
corporation engaged in the operation of television and
radio stations in Birmingham, Alabama, received in the
conduct of such operations gross revenue in excess of
$100,000, of which $10,000 was derived from the sale of
time to advertisers for the advertisement of national brand
products, and that Respondent subscribes to national wire
(news) services. As Respondent admits, at all material
times it had been engaged in commerce within the meaning
of Sections 2(6) and (7) of the Act.
The complaints allege, Respondent amended its answers
at the hearing to admit, and I find that the Charging
Party-International Brotherhood of Electrical Workers,
Local 253 (herein usually called the "Union")-, is a labor
organization within the meaning of Section 2(5) of the Act.
if. THE ALLEGED UNFAIR LABOR PRACTICES,
ORIGINS AND GENERAL NATURE OF THE CASES
On October 31, 1969, after a Board-conducted election,
the Board certified the Union as the collective-bargaining
representative of a unit of Respondent's employees
composed of the technicians employed in Respondent's
engineering department,3 a group then and at all times
since numbering 20 employees.4 Bargaining negotiations
between the Union and Respondent began in November,
1969, and continued until December 18, 1970, during
which period approximately 37 bargaining sessions were
held at which tentative agreement was reached on some 40
contractual provisions. At the next-to-last bargaining
session, held on December 11, 1970, the Union submitted
an increased wage scale proposal and offered, if Respon-
dent would accept this proposal, to abandon its proposals
relative to other unresolved matters.5 At the December 18
session, Respondent rejected the Union's proposal and no
further bargaining sessions were held Discontinuance of
the bargaining at this stage presumably was due to two
April 28, 1971 Respondent's answers deny the commission of any of the
unfair labor practices charged in the complaints
2 The transcript of testimony in the case containsa goodly number
of errors, including garbles of questions or remarks of counsel and of
the Trial Examiner However, my study of the transcript satisfies me that
the significant evidence on all material fact issues is clear despite these
errors Hence, and also because no party had moved to correct the
transcript, I do not formally correct these reportorial mistakes
3 Respondent has a total of about eight departments and employs a total
of about 118 employees The employees of the other departments appear to
be unorganized
4 The Union won the election by a vote of 12 to 8
5 In addition to wage scales, the other still unresolved matters consisted
principally of provisions relative to employee insurance, holidays and
holiday pay, Christmas bonus, and duration of the contract
6 The Regional Director's action in dismissing the petition in the
decertification proceeding was thereafter sustained by the Board, whereup-
on the employee-petitioners in the proceeding instituted a suit against the
Board in the United States District Court for the Northern District of
more or less concurrent events: the filing with the Regional
Director on December 11, 1970, of a decertification
petition signed by 10 (one-half) of the Engineering
Department unit employees; and the Union's filing with
the Regional Director on December 23, 1970, of a charge
alleging that Respondent had "refused to bargain collec-
tively with" the Union. Subsequently, the Regional
Director dismissed the employee decertification petitions
and thereafter, on February 5, 1971, issued the complaint
in Case 10-CA-8771 alleging that Respondent had
violated its collective-bargaining obligation in the bargain-
ing period following June 23, 1970, by (1) refusing to
furnish the Union with information concerning the cost of
employee insurance benefits in effect and with copies of
the corresponding insurance policies, (2) refusing to
incorporate in any collective-bargaining agreement the
employee insurance benefits then in effect, and (3)
unilaterally making changes in the lunch break period of
certain unit employees, and in the shift time of certain unit
employees.
Subsequent to issuance of the above-mentioned first
complaint, the Union , sent to Respondent a letter, dated
March 17, 1971, requesting a further collective bargaining
session and proposing corresponding dates.? Respondent
replied by letter dated March 19, in which, in substance, it
asserted its good faith doubt of the Union's majority status
based on the decertification petition filed with the Board
by the ten unit employees and for this reason and because
of notifications from the attorney for the employee-
petitioners that he would file charges against both the
Union and Respondent if they were to engage in further
collective bargaining, Respondent was not disposed to
meet further with the Union pending the Board's determi-
nation of the Union's majority status. The Union there-
upon filed a charge in Case No. 10-CA-8928 and, on April
15, 1971, the Regional Director issued the complaint in this
second case alleging that Respondent's rejection of the
Union's request represented an unlawful refusal to bar-
gain.8
On April 27, 1971, the Union filed a charge and on April
28 an amended charge in Case No. l0-CA-8972, which in
combination allege that on April 13, 1971, Respondent
discharged a unit employee named Sargent because of his
Union membership and activity and because he gave
testimony to the Board, and that Respondent had further
violated the Act by refusing Union representation to
Alabama, Southern Division, in which, on July 26, 1971, the court entered
an order requiring the Board to vacate its ruling and to make an
investigation of the decertification petition and, if it thereafter determined
that a question of representation exists, to conduct a hearing on the petition
and thereafter determine whether an election should be conducted (relative
to the Union's continued representative status ) I understand that the Board
has taken an appeal from the court's order to the Court of Appeals
At the hearing in these cases , I allowed the employee-petitioners in the
decertification proceeding ( plaintiffs in the court suit) limited intervention
in these cases, that is , limited to the right to be heard in oral argument or by
brief relative to the relief appropriate to order in this case (were Ito sustain
the allegations of refusal to bargain with the Union) I denied their motion
to consolidate the decertification proceeding with these cases
IGCExh6
8 The Union's charge in this case asserted a further violation in the form
of an alleged unilateral change by Respondent in its employment conditions
relative to granting loans to employees, but the Regional Director's
complaint did not assert any such violation
WAPI-TV-AM-FM 887
Sargent. In this case, on May 11, 1971, the Regional
Director issued his complaint alleging that Respondent
had violated the Act by refusing a request by Sargent that
he be permitted to have a union representative present at
the meeting he had with Respondent's officials on April 13
concerning his alleged misconduct (at which meeting
Sargent was discharged), but not alleging that Sargent's
discharge violated the Act.
This latter complaint contains an order consolidating the
three cases.
I turn now to a consideration of the factual and legal
questions presented in the respective cases, and will deal
with them in reverse order.
A. Case 10-CA-8972
This case presents, in the first place, the factual question
whether Respondent refused a request by employee James
D. Sargent that he be permitted to have a Union
representative present, that is, as the complaint also
expresses it, to be represented by the Union, at a meeting
with Respondent's officials on April 13, 1971, at which
Sargent was discharged.9 I find that these allegations of the
complaint are not borne out by a preponderance of the
evidence.
Certain background facts are not disputed. Sargent's
mother died on March 16, 1970 A few days later, Sargent
told Pierce (a "Television Supervisor" but apparently not a
"supervisor" within the meaning of the Act) that he wanted
to borrow $300 from Respondent to purchase a tombstone
for his mother's grave. Pierce referred him to Mr. Balch,
Respondent's secretary-treasurer, and, in repeating this
request a few days later to Balch, Balch told Sargent that
Respondent was not lending money at that time. Pursuing
this matter of a loan further in January 1971, Sargent then
inquired of Chief Engineer Gross whether it was true, as he
had dust been informed by Pierce, that the Company was
not lending money. Gross referred Sargent to Balch or Mr.
Wear, Respondent's vice president and general manager.
In late March, Sargent called Mr. Wear and requested a
loan of $300 from Respondent, telling Wear that he needed
the money to purchase a tombstone for installation at his
mother's gravesite by May 1, the date of an anniversary
memorial service. Wear told Sargent that company funds
were available for "emergency" purposes, but that he did
not regard Sargent's request as falling in that category and
suggested that Sargent approach a bank or other loan
institution. Thereafter, on March 29, the Union filed its
charge in Case 10-CA-8928 which in part alleged that
Respondent had unilaterally changed its employment
terms by refusing to grant loans to employees. Some days
thereafter, Mr. Cohen, the attorney representing the
General Counsel at the hearing of these cases, called on
Mr. Wear in the course of making an investigation of this
charge and informed Mr. Wear that in support of this
charge filed by the Union, Sargent had told him, Mr.
Cohen, that the purpose of the requested loan was to
purchase a tombstone for his mother.
Respondent then made an investigation regarding the
reason Sargent had given for the requested loan and
discovered that in the spring of 1970, about a year earlier, a
tombstone purchased by Sargent's father had been erected
at the gravesite, in short, that the reason Sargent had given
for requested loan was false .10 On April 13, 1971, Sargent,
who was on his day off, was called to Respondent's offices
by Chief Engineer Gross, at the direction of Mr. Wear.
When Sargent arrived, Gross took Sargent toward Wear's
office and told Sargent that Wear wanted to talk to him.
The General Counsel contends that in a further
conversation Sargent had with Gross outside Wear's office
and/or in the ensuing meeting between Sargent , on the one
hand, and Respondent's officials an& attorneys, on the
other, Sargent requested and was denied the right to have
union representation at the meeting. The evidence over-
whelmingly refutes this contention. What it does establish
is that Sargent voiced a desire to be represented by legal
counsel to advise him as to what, if any, statement he
should make in the meeting; that during the meeting he
declined to make any statement (when confronted with the
facts with respect to the 1970 purchase and installation of
the tombstone) on the ground that he did not have legal
counsel; that Respondent at no time expressly declined to
permit him to be represented by legal counsel and Sargent
did not refuse to participate in or withdraw from the
meeting because he was not represented by counsel but,
instead, simply declined, on this ground, to make any
statement relative to the tombstone matter.
Briefly reviewing the pertinent evidence, Sargent's own
testimony explicitly shows that what he desired was legal,
rather than Union, representation. As to his conversation
with Gross outside Wear's office, Sargent testified that he
told Gross that he felt that since he was being called in on
his day off and Wear wanted to talk with him, something
important was to take place; that he felt like he needed
someone to represent him; that he could not refuse to go
into Wear's office but if he did he was not going to make
any statement for fear that he might "prejure" himself and
should not make any statement, or did not wish to make
any statement, because he did not have "legal counsel."
Somewhere in the course of these remarks, Sargent told
Gross that he felt like he had a right to call someone to
represent him, to sit in the meeting on his behalf, Gross
asked him who he would like to call, and Sargent replied
"John Hayes, for one." 11 But Sargent 's other explanatory
remarks to Gross make it abundantly clear that what he
9 if, the evidence is found to sustain these factual allegations, the General
Counsel urges, as the appropriate remedial order, that Respondent be
required to reinstate Sargent with backpay
10 in an affidavit sworn to by Sargent before Mr Cohen on April 5,
1971, Sargent stated, as he had told Mr Wear, that the loan was requested
to purchase the tombstone without disclosing that it had already been
purchased Presumably Mr Cohen thereafter learned of the true facts from
Respondent, since on April 28 Mr Cohen took another sworn statement
from Sargent in which Sargent conceded that the reason he had given
Respondent for requesting the loan was not true On this same date, the
Union filed its amended charge in this third case alleging that Sargent had
been discriminatorily discharged on April 13 and had in that connection
been denied Union representation
11 Some of Sargent 's direct testimony suggests that in mentioning Hayes
to Gross, Sargent referred to Hayes as the "Union Business Manager " But
considering other of Sargent 's testimony , and that of Gross, and bearing in
mind that Gross knew Hayes to be the Union business manager. I am not
disposed to find that Sargent in fact included a reference to Hayes as the
Union business manager in his remarks to Gross In any case, Sargent's and
other testimony as to what he said about representation to Gross and in the
ensuing discharge interview (see infra in the text) show that what he referred
to was legal, and not Union. representation
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted from the "someone" he felt should be present with
him was legal protection in regard to what he should or
should not say, and not Union representation in respect of
rights under the Act. This is all the clearer from what he
stated during the discharge interview.
After, at the end of his remarks to Gross, Sargent told
Gross that he felt that he should not make any statement in
Wear's office because he did not have "legal counsel", and
Gross told Sargent to wait while he went in to talk to Wear.
A few minutes later, Gross, holding Wear's office door
open, told Sargent that Wear wanted to see him, and
Sargent entered the office. There present, along with Gross,
were Mr. Wear and Respondent's attorneys, Mr. Johnston
and Mr. Grissom. On Sargent's own testimony, while Wear
was making some opening remarks, he interrupted Wear
and "again" requested 12 that he have some "legal counsel,
someone to come in and represent me, to advise me on
what to and what not to say." On later examination by the
Trial Examiner as to what he said to Wear at this early
juncture, Sargent testified that he told Wear he did not
want to make any statement without "legal counsel." 13 In
this same examination by the Examiner, Sargent further
testified that he did not ask to have a Union representative
to assist him at the meeting; that he did not mention the
Union at any time during the meeting; and that he did not
say at the meeting that he felt the matter involved affected
his rights as a union member or that he wanted a union
representative present for that reason. On the basis of
further testimony of Sargent, I find that after Mr. Johnston
had stated to Sargent that he had tried to borrow money on
some occasions for the declared purpose of purchasing the
tombstone and had shown Sargent a copy of the bill of
1970 sale to his father and photographs showing the
installation of the marker, Sargent was offered an opportu-
nity to make an explanation and declined to do so, saying
that he would take the "fifth Amendment." Thereafter,
Wear, following a private conference between him,
Johnston, and Gross, dictated a discharge notice informing
Sargent that he was discharged for "endeavoring to obtain
company funds under false pretenses" 14 and had Sargent's
paycheck made out. Thereupon, as I find, Mr. Johnston at
least once advised Sargent that he was not being dis-
charged because of his union activities but because he had
attempted to obtain company funds under false pretenses
and because he had offered no defense of this conduct.
Sargent's own testimony established that in relation to
Johnston's statement concerning his failure to offer any
defense, he told Johnston, in substance, that what he had
been pleading for in the interview was some "legal
counsel" who could explain the circumstances. 15
In the light of all this evidence of record, it is clear, and I
find, that Sargent did not request and was not denied
11 Sargent's use of the word "again" clearly indicates that his previous
request, which could only have been the one he had made to Gross outside
Wear's office , was for legal counsel
13 In this connection , Wear and Gross testified that Sargent stated that
since the company had its attorneys present he wanted representation
14 See Resp Exh 2, Attachment I
15 f further find, if it is material to do so, that Respondent's officials did
not offer to suspend the interview until Sargent had obtained or sought to
obtain representation, that Sargent did not decline to participate in or
attempt to leave the meeting because he did not have representation, and
Union representation at the discharging interview or
meeting, and I reiterate the further findings heretofore
made in regard to this matter. Accordingly, the complaint
in this case should be dismissed for failure of proof.
B. Case 10-CA-8928
As previously stated, in March 1971, some year and a
half after the Union's certification, Respondent declined to
reopen negotiations with the Union on the ground that,
due to the filing in December 1970 of the decertification
petition subscribed to by one-half the employees of the
employee unit involved, Respondent justifiably entertained
a good-faith doubt of the Union's majority. There is no
suggestion that this decertification petition was instigated
by Respondent. Hence, Respondent had a valid basis for
declining to meet further with the Union unless the
decertification petition must, in law, be disregarded
because of previous unfair labor practices of Respondent,
i.e., the alleged refusals to bargain asserted by the General
Counsel in the first case, a matter to which I now turn.
C. Case 10-CA-8771
It will be recalled that between November 1969 and
December 18, 1970, there were some 37 bargaining sessions
between Respondent's officials and the Union representa-
tives at which agreement was reached upon some 40
contractual provisions, and that at the December 18
meeting Respondent rejected a Union offer made at the
previous meeting which, if accepted by Respondent,
apparently would have brought the negotiations to a
successful conclusion. And, as previously noted, neither
side called for any further negotiating sessions in the weeks
following the December 18 meeting apparently because of
the filing of the employee decertification petition and of
the Union's charge of failure to bargain, both occurring in
December 1970.
The complaint in this case does not charge Respondent
with general bad-faith bargaining.16 Rather, it sets forth (in
paragraph 11) various specific particulars in which it is
alleged that Respondent violated its collective-bargaining
obligation during the latter half (that is, after June 23,
1970) of the bargaining period. I will deal with these
specific matters in the order I consider most efficient.
1. Respondent's alleged refusal to incorporate its
existing insurance benefit program in an agreement
On several occasions during the bargaining negotiations,
including sessions within the period alleged in the
complaint, Respondent rejected Union proposals that
Respondent's existing insurance benefits program be
included in the agreement under negotiafion.17 Respon-
that at the close of the meeting Sargent told Respondent's official, in
substance , that he was content with the outcome
16 This was brought out in a lengthy but unrecorded pretrial conference
at which counsel for the parties explained their positions and contentions
regarding the various complaints , and was noted by the TX during-the
hearing
17 The insurance benefit program consisted of Blue Cross-Blue Shield
medical protection and of Group Life insurance , all paid for entirely by
Respondent.
WAPI-TV-AM-FM 889
dent's announced reasons for its position were that it had
some 120 employees, all of whom were covered by its
insurance programs; that it wanted to treat all its
employees uniformly in this regard; and that it wished to
be free to make changes in these programs without being
under a contractual commitment in this regard in relation
to the 20 employees in the technicians' unit. At the same
time, Respondent advised the Union representatives that,
in accord with its statutory duty, it would bargain with the
Union with respect to any changes it proposed to make in
the future.
Respondent's reasons for declining to enter into a
contractual agreement obligating it to continue its existing
insurance benefits vis-a-vis the 20 technicians are legitimate
ones, and it was under no statutory obligation to
incorporate in an agreement having a defined term an
existing employment practice merely because of its current
existence. See Westchester Rockland Newspapers, Inc. v.
N.L.R.B., 417 F.2d 1259, 1262 (C.A. 2, 1969). In short, the
mere refusal of an employer to incorporate an existing
employment practice in an agreement, that is his rejection
of a proposal that he bind himself to continue that practice,
is not a per se violation of the Act, particularly in the light
of the provisions of Section 8(d) of the Act which prescribe
that the bargaining obligation "does not compel either
party to agree to a proposal ... .
It is true, of course, that an employer's refusal to
incorporate prevailing employment terms in an agreement
may be evidence, along with other factors, of bad faith
bargaining, that is, going through the motions of bargain-
ing without a sincere purpose of reaching an agreement.
But the complaint does not charge Respondent with such
bad faith bargaining, and for this reason (and because, in
any event only one employment practice is here involved)
the cases cited by counsel for the General Counsel and the
Union is are inapposite. It should also be borne in mind, as
Respondent correctly points out, that this is not a case in
which an employer refused to include in a signed
agreement matters substantively agreed to in the bargain-
ing negotiations. Rather, in this case Respondent and the
Union were in disagreement over the Union's proposal that
Respondent agree to bind itself to a continuation of its
existing insurance program.
For the foregoing reasons, I conclude that this allegation
of the complaint should be dismissed.
is Blue Jeans Corporation and Whiteville Mfg Co, 177 NLRB No 97,
and Herman Sausage Co , Inc, 122 NLRB 169 They also cite the Board's
decision in Westchester Rockland Newspapers, Inc, 174 NLRB No 62, but
fail to point out that in reversing that decision (see supra), the Court of
Appeals noted that on that appeal the Board appeared to concede that an
employer is "under no legal obligation to agree to keep its existing policies "
19 With regard to events at earlier sessions preceding the liability period,
Union representative Hayes testified that at a January 1970 session, and in
connection with negotiations over the question of including Respondent's
insurance program in the contract , Magdich asked Wear what was the cost
of the employees ' insurance but he could not recall what , if any , response
was made to this inquiry, and that at a meeting in May, when the same
broader subject was under discussion again, he asked Johnston what the
insurance cost was, that Johnston made no reply, and that there the matter
ended Magdich testified that at a meeting in the early spring, when the
subject of health insurance came up, he asked Johnston for a "cost
2. Respondent's alleged refusal during the
bargaining negotiations to provide the union
negotiators with insurance benefit costs and copies
of insurance policies
Through union negotiators, the General Counsel ad-
duced certain testimony to the effect that on different
occasions during the post-June 23 bargaining period one or
another of the Union negotiators orally requested from
Respondent's negotiators information concerning insur-
ance cost and a copy or copies of the insurance policy or
policies. One would expect that the General Counsel's
evidence would be clear and consistent and would show
that on specified dates the Union representatives gave
Respondent clear specifications of the precise information
they desired Respondent to furnish, that they made clear
and unequivocal demands that Respondent supply it, and
that Respondent voiced a clear refusal or refusals to supply
the information so specified and demanded. In fact,
however, the General Counsel's testimony falls short of
these desiderata, as will be shown in a moment. Respon-
dent's evidence, adduced from its negotiators (Counsel and
Chief Negotiator Johnston, Vice President Wear, and
Chief Engineer Gross), is at least consistent and is
principally to the effect that at no time during the
bargaining period (including the sessions preceding the
period alleged in the complaint) did the Union negotiators
ever request cost information. With regard to the insurance
policies Respondent's evidence is that the Union requested
copies of the "plan" at one session only, that of July 28,
that at this meeting Wear agreed to comply with this
request but failed to do so thereafter purely by oversight,
and that the Union never thereafter renewed the request.
With regard to events at the bargaining sessions taking
place during the post-June 23, 1970, period charged in the
complaint,19 Union representative Hayes testified that at
the July 28 meeting, when the matter of including the
insurance benefits in the contract was under discussion,
union negotiator George Magdich (an International
representative of the Union) requested that Respondent
provide the union negotiators with copies of the health and
life insurance policies and that, after some further
conversation engendered by Wear's comment that he
thought the employees had copies,20 Magdich asked to be
given and Wear agreed to supply copies of the "policies,"
together "with the costs." Hayes further testified that at the
October 16 meeting, and after Mr. Johnston had been
justifying the Company's wage proposal on the ground that
breakdown" and a copy of the "policy," and Johnston replied that he did
not think Respondent obligated to provide such information . Respondent
offered no testimony specifically addressed to these earlier sessions , but its
witnesses testified that at none of the sessions did the Union representatives
ever request cost information (see infra)
20 At various stages in the testimony of all the witnesses , reference was
made to the insurance "policies" or "plan" as what the Union wished to
have But just what documents were available corresponding to these
descriptions remained a subject of uncertainty and confusion on the part of
the witnesses and the Trial Examiner throughout the hearing . As to the
medical insurance program, the General Counsel eventually offered in
evidence two pamphlets issued by " Blue Cross-Blue Shield of Alabama",
(G.C. Exhs. 12 and 13 ), which were provided to the General Counsel by
Respondent and which Respondent's witness Wear testified he understood
were in the possession of the employees.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company was bearing all the insurance cost, which he
said (obviously referring to the Blue Cross-Blue Shield
coverage) had risen from $18.42 to $25 per month per
employee, he asked Johnston what were the "exact" cost
figures and Johnston did not reply, whereupon the
discussion turned to another matter. Hayes further testified
that at the November 13 meeting he told Johnston that the
Union had some "unanswered" questions regarding the
insurance program; that Johnston asked what these
questions were; that he replied the Union representatives
wanted to know "what was in the policy" and what the cost
was; and that this discussion ended with Johnston's
statement that he would "possibly" answer some questions
regarding "the insurance program." According to Hayes,
these matters were not touched on at any later sessions. On
cross-examination, Hayes testified that at the July 28
meeting, Wear agreed to provide a copy of the "insurance
plan" and that the Union never thereafter renewed its
request for a copy of the "policy."
Magdich testified that at some summer meeting, which in
the light of other testimony I infer was the meeting of July
28, when the matter of health insurance was under
discussion, he told Wear he would "personally" like to
have a copy of that "policy" and a "cost breakdown" per
"individual" employee, and that Wear agreed to "get that
for us." Magdich further testified that at some meeting in
the fall, which I infer was the meeting of October 16, there
was a discussion of the wage issue in which Mr. Johnston
characterized Respondent's proposed scale as m line with
that in effect with other broadcasting stations in Birming-
ham because Respondent was paying the full cost of the
health insurance, a cost which Mr. Johnston stated was
soon to rise from about $18 to about $25 per month per
employee.21 According to Magdich, he then "again" asked
Johnston for a "cost breakdown" of this insurance per
employee and a "copy of the policy," and that Johnston
replied that he "didn't think" Respondent had to provide
this information. Since the witness had just testified that
Johnston had disclosed the $18 and $25 cost figures, the
Trial Examiner then interjected to Inquire of Magdich
whether this was the cost information that he was seeking.
In response, Magdich testified that what he wanted was
confirmation "in writing" of the cost figures Johnston had
provided orally, and not supporting detail, and, in response
to similar questioning by counsel for the General Counsel,
Magdich again testified that what he was seeking was the
"cost" for "one individual employee" of the health
insurance so he could take this into account in connection
with the wage issue. And on cross-examination he stated
that what he wanted was the "average cost" per employee
of the health insurance. Magdich further testified that after
Johnston had stated that he did not think Respondent
obligated to furnish the information Magdich had request-
ed, he again requested Johnston to provide the "cost
breakdown" and "the policy." He further testified that he
21 Other testimony shows that these rates were for employees on the
"family" plan of Blue Cross-Blue Shield coverage
22 In regard to this testimony , Mr Johnston testified that, on being
apprised during the investigation of the Union's broadly worded charge that
the Union was claiming Respondent had refused to supply insurance cost
information, he, Wear, and Gross met for a review of the bargaining history
and all concurred in the conclusion that at no meeting had the Union "ever
could not recall ever having requested that the cost
information be provided in writing.
General Counsel's witness Key, an employee member of
the Union negotiating committee, testified that at a
bargaining session in April or May but which from other
evidence I find must have been the July 28 meeting,
Magdich reminded Wear that the Union team had not
received the insurance information previously requested;
that Wear said he thought the employees had that
information; that Hayes asked him if he had this
information and that he told Hayes he "possibly" had a
Blue Cross card or something of that nature; that Magdich,
addressing himself to Respondent's officials, stated that it
was not this but a "cost breakdown" that he wanted; and
that Mr. Wear said he would provide this information. Key
was then asked by counsel for the General Counsel
whether there was any conversation concerning Respon-
dent's furnishing "the policy, the policies," and responded
"Yes, I believe that was discussed". In light of this
inconclusive response, the Trial Examiner asked Key if he
had "any distinct recollection" that at this meeting there
was a request that Respondent furnish "a copy of the
insurance policy"; in response, Key testified that he could
not recall any request for the policy and that the only
information he could recall being requested was the "cost
breakdown" Magdich asked for. Key further testified that
at two subsequent meetings Magdich reminded Johnston
that the Union representatives had not received the
previously requested cost information and that on each of
these occasions Mr. Johnston for Respondent made similar
responses to the effect that Respondent would, or
"possibly" would, provide that information. Under cross-
examination, Key likewise testified that he could not recall
any Union request at any time for the "policy" and that
what he did recall was Magdich's request for the "cost"
information at the July meeting.
Turning to Respondent's evidence, each of Respondent's
three negotiators, Wear, Gross, and Johnston, testified that
at no time in the extensive negotiations did any Union
representative ever request Respondent to supply insur-
ance cost information.22
As to the request for any insurance "policy", Wear,
Johnston, and Gross, were, with unimportant variations in
their accounts, in agreement that at the July 28 meeting
Mr. Magdich for the Union requested a copy of the "plan"
(which in the surrounding context must have referred to
the Blue Cross-Blue Shield program); that Wear replied
that he thought the employees had this information in the
form of Blue Cross-Blue Shield pamphlets, etc. but that,
following further discussion, Wear agreed to provide a
copy of this "plan" and neglected to do so thereafter purely
by oversight; and that, as Wear testified, there was no
further request for the plan by the union representatives.
Respondent's testimony from one or another of these
witnesses is further to the effect that on more than one
made a request for cost information " In reaching this conclusion and in
giving their corresponding testimony, it is evident, however, that both Wear
and Johnston relied rather heavily on that fact that there was no reference
to any such request in the written summaries Mr. Johnston had prepared,
after each meeting, of the matters considered at the meetings According to
Mr. Johnston , however, various of these summaries were extremely lengthy,
as many of the bargaining sessions obviously were.
WAPI-TV-AM-FM
occasion Wear told the union representatives that the cost
of the health insurance was rising from about $18 to about
$25 per month per employee; that the union representa-
tives (as they concede) never made any written request for
cost information; and that neither the matter of supplying
cost information or a copy of the plan ever became "an
issue" in the bargaining sessions.
The complaint in this case alleges that Respondent
refused to furnish the Union negotiators with "cost
information concerning employee insurance benefits and
copies of insurance policies." For Respondent's part, its
countering evidence is simple and clear, i.e. that cost
information was never requested but, nevertheless, was
voluntarily disclosed as to the Blue Cross-Blue Shield
medical insurance; that at the July 28 meeting the Union
did request copies of the Blue Cross-Blue Shield "plan" or
"policy" (meaning apparently the explanatory pamphlets
provided by that organization to persons covered), and
Respondent agreed to supply these but failed to do so
purely by oversight; that the Union never repeated this
request; and that the Union never made any "issue" of
these matters during the bargaining sessions.
The General Counsel's evidence, on the other hand, is
inconsistent and otherwise troublesome as to what requests
were made and when, and otherwise is insufficient to
establish that whatever requests or inquiries Union
negotiators made in this connection were being advanced
as clear and firm bargaining demands the Union was
insisting upon as an essential condition of the bargaining
the parties were engaged in. With respect to the insurance
"policy" or "plan," for example, Union Negotiators Hayes
and Magdich concur with Respondent's witnesses in that
at the July 28 meeting Wear agreed to supply correspond-
ing documents, which I find could only have been the Blue
Cross-Blue Shield literature put in evidence by the General
Counsel. And although Magdich testified that he asked
Johnston for a copy of the "policy" at a later meeting, I
credit Hayes' testimony that the union negotiators never
made any subsequent request for the "policy," a fact which
reinforces Respondent's explanation that its failure to
provide these documents was merely an oversight and not
a refusal. Complicating things further for the General
Counsel is Union Negotiator Key's inability to recall any
union request for the "policy."
In the circumstances, I find that the Union made the one
request on July 28, that Respondent agreed to meet this
request but failed to do so by inadvertence, that the Union
negotiators made no further request, and that Respondent
did not refuse to supply the corresponding available
documents. I further find in this connection that the
request Magdich made on July 28 (or any other request if
there was one) was not couched in language sufficient to
make it clear to Respondent that the Union was making a
clear and firm bargaining demand in this regard.
As to the matter of cost information, it may be that on
one or another occasion Hayes or Magdich inquired of one
23 According to Union Negotiator Key, Johnston twice responded to
requests for cost information with the statement that Respondent would
"possibly" supply such information, and, according to witness Hayes, on
one such occasion Johnston made no reply and on another answered that
Respondent would possibly answer such a question What is important
891
or another of Respondent's negotiators what was the cost
of the Blue Cross-Blue Shield medical coverage. But the
record shows that during the negotiations Wear disclosed
what these costs were, and that although Magdich testified
that all he wanted was confirmation of these figures in
writing no union request that they be put in writing was
ever made. The record also shows that, as in the case of the
insurance "plan," at no time did the union negotiators put
Respondent's representatives on notice that they were
insisting on "cost" information as bargaining demands,
and that, even if the union negotiators' own testimony were
credited, Respondent never declined to furnish the cost
information allegedly requested.23
Indeed, the record as a whole satisfies me that the
varying and conflicting recollections of the General
Counsel's witnesses, and the contradictions between much
of their testimony and that of Respondent's witnesses,
spring from the fact that whatever Union "requests" were
uttered, in the course of some 37 bargaining sessions
extending over a year's period, were never put in sharp
focus as demands but rather were voiced as inquiries of
subordinate, not primary, character in the course of
discussions and negotiations concentrated on the real
bargaining issues under consideration.
For the foregoing reasons, I conclude that these
allegations of the complaint should be dismissed.
3. Respondent's alleged unilateral changes in
working conditions
a. The changes in shift times
Respondent's broadcast operations cease, that is the
station "signs off" about 1:20 a.m. and begin again, that is
the station "signs on," at 5:20 a.m. There is a day shift, and
a night shift, of operational and broadcast personnel,
whose shift times prior to October 18, 1970, were 5:30 a.m.
to 3:30 p.m., and 3:30 p.m. to 1:30 a.m., respectively. In
addition there is a night-time maintenance crew of two
technicians whose shift ran from 7:30 p.m. to 5:30 a.m. and
who "signed on" the station at 5:20 a.m., prior to October
18. These shift times had been in effect for several years
prior to October 1970. As to assignments of engineering
personnel to these shifts, the chief engineer posts a new
schedule of assignments every 3 months, by which means
Respondent rotates the employees as between day and
night shift, weekend, etc. assignments.
On the occasion of posting the shift assignments effective
on October 18, 1970, Chief Engineer Gross made a further
change, that is, he advanced the starting time of two
members of the day-shift crew, the "Master Control
Switcher" and the "Projectionist," to 5 a.m. in order that
these two members of the day crew could perform the
"sign on" operations theretofore performed by the two
about this testimony , if credited , is that it demonstrates that the Union
negotiators were content to make inquiries from time to time without
denominating any of them as firm bargaining demands or positions, and
that Respondent did not reject or decline to honor any of these requests
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nighttime maintenance men in the ten-minute period from
5:20 to 5:30 a.m.24 Thereafter, Gross concluded that the
prior system of having the two nighttime maintenance men
"sign on" the station prevented operational difficulties that
had arisen under the new system.25 Accordingly, in
connection with the quarterly shift assignment changes
made in January 1971, Gross posted a notice on January 8,
not effective until January 24, reverting to the prior 5:30
a.m. starting time for the day shift, with the mere result
that the station would be "signed on" again by the two
night maintenance men rather than corresponding person-
nel of the day shift. Since this notice was posted in
advance,26 I infer that this was Respondent's practice and
hence was true of the October notice.
The October change took place during the midst of the
bargaining negotiations between Respondent and the
Union; Respondent made this change without a prior offer
to negotiate about the matter with the Union, and the
Union made no objection to the change at the time or
thereafter and made no other reference to Respondent's
action in the bargaining sessions. The record further
discloses that many months before in the bargaining
negotiations (in January 1970), Respondent and the Union
had reached agreement on a "management" rights provi-
sion27 according to Respondent the unfettered right to
make work schedule changes such as this one.
This entire matter is one distinctly picayune in character,
involving as it does only a change of a few minutes in the
working time of a few employees, made purely for
technical operational purposes and not asserted to entail
any substantive ill effect whatsoever on the few employees
affected. Consequently, as Respondent argues, the minor
adjustment it made might well be regarded as within any
employer's authority over minor operational procedures.
However that may be, the fact it was of such minor
significance may well account for the fact that, although
the parties were then in active negotiations and alert to
matters they considered were of import to their real
interests, the Union made no objection and, indeed, not
even a reference to Respondent's action before, when, or
after this action became effective. In these circumstances
and others reviewed above, the Union must be held to have
consciously asquiesced in Respondent's action and in
Respondent's implicit assertion of its authority to take it,
and thereby to have waived any right it might otherwise
have had to require negotiations on the matter.28 Hence,
this allegation of the complaint should be dismissed.
b. The alleged change in the lunch period
On July 28, 1970, Chief Engineer Gross posted on the
bulletin board, and contemporaneously distributed to all
unit employees in their pay envelopes, a memorandum
calling their attention to certain respects in which they
were called on to correct their conduct, such as observing a
24 The a in star t ing time of the other members of the day crew was not
changed
25 Gross explained at the hearing that "many times the nighttime
maintenance men had done things which they did not pass on to the
daytime crew and we had malfunctions due to this
26 See also G C Exh 8
27 Resp. Exh. 5
28 If Respondent was obligated to regard the Union as the majority
30-minute lunch period assertedly allowed for certain
personnel; not having visitors for extended periods;
making known their arrival on duty, and any absences
from their work positions while on duty, to appropriate
personnel; and avoiding excessive use of the telephone.
The General Counsel contends that, in its application to
the two nighttime maintenance men, the direction to
observe a 30-minute lunch break represented a unilateral
change in the lunch break period of these men. In support
of this contention, the General Counsel adduced testimony
from two technicians that they and other men assigned to
the night maintenance work were accustomed to leave the
station, on most nights and after the 1:30 a.m. "sign off,"
for a lunch break period of from 45 minutes to an hour,
usually to eat at a restaurant some 3 miles away. These two
witnesses further testified that they had not been informed
by Respondent of any precise time limit permitted for their
lunch period; on the other hand, they gave no testimony
that Respondent was aware of the amount of time they or
other night maintenance men had been taking for lunch.
Respondent's evidence, given in part by Wear but
principally by Chief Engineer Gross, is that while certain
personnel had no lunch break but were required to eat on
the job due to the nature of their work, others were
permitted a 30-minute lunch break; that the 30-minute
period was an established practice; and that it was
exemplified by a memorandum sent to the entire staff in
early 1964.29 However, this memorandum, while addressed
to the entire staff of the unit, prescribes the 30-minute
period only for certain personnel specified in the memo-
randum, with no specific reference to the night mainte-
nance men. Moreover, in a memorandum sent to Mr. Wear
after the charges in this case were filed, and in explanation
of his July 1970 memorandum, Gross stated while "No
specific limits had been placed" on the lunch break "it was
generally understood to approximate 30 minutes" and
further that "it was generally understood that this period
would be 30 minutes." Gross further testified that his
reference to the 30-minute break limitation in his July
memorandum was due to the fact that he had theretofore
observed day crew employees leaving the premises for
lunch breaks of upwards of an hour and to reports given
him by the night guard that the night maintenance
personnel were taking as much as an hour and sometimes
more on their off-premises lunch breaks. On the basis of
this evidence, Respondent contends that the 30-minute
period was an understood established practice and that all
that the Gross memorandum amounted to was an
enjoinder to the employees to discontinue their abuses in
this regard.
On this body of rather indirect and otherwise trouble-
some evidence, I am unable to find that Respondent made
a change in the lunch break period applicable to the two
night maintenance men, as alleged by the General Counsel
representative of the employees in January, I conclude for similar reasons
that there was a Union waiver regarding Respondent's action in reverting to
the old system at that time, since , among other things, Respondent gave
ample advance notice of its action and the Union interposed no objection to
it However, for reasons later dealt with, I conclude that Respondent was
not obliged to treat with the Union as the majority representative of the
employees at the time of the January 1971 change
29 Resp Exh. 3.
WAPI-TV-AM-FM
in his complaint, since neither the General Counsel's
evidence or any other establishes that Respondent was
aware of the extended time being taken by the night
maintenance crew and had acquiesced in it. Hence, the
General Counsel has failed to prove the essential founda-
tion of his case, i.e., that the time being taken by those men
had assumed the character of a term or condition of
employment which Respondent could not change unilater-
ally.30
But, as in the case of the shift time issue, other
compelling reasons for dismissing this allegation of the
complaint spring from the fact that although the Union
and Respondent were deep in negotiations at the time
Gross issued his memorandum, the Ui_ion did not then or
thereafter assert that Respondent was making any
"change" in the lunch break period of the two night men,
entered no objection or protest to Respondent's admonito-
ry action, and made no reference whatever to it. For these
reasons, and others relied on with respect to the shift time
matter, I find and conclude that the Union consciously
acquiesced in Respondent's action and waived any right it
might otherwise have had to require bargaining concerning
it.
For the foregoing reasons, I conclude that this allegation
of the complaint should be dismissed.
III. FURTHER FINDINGS AND CONCLUSIONS
Reverting to Case 10-CA-8928, the decertification
petition filed by half the unit employees in De-ember 1970
justified Respondent's refusal in March 1971 to engage in
further negotiations with the Union unless the employee
signatures to that petition should, as a matter of law, be
disregarded because Respondent engaged in antecedent
refusals to bargain warranting an affirmative order
requiring Respondent to resume bargaining with the
Union. Since I have found that these alleged violations did
not occur, Respondent was entitled to question or doubt
the Union's continued majority in March 1971 and, hence,
did not violate the Act in declining at that time the Union's
request for further bargaining.
Furthermore, even if I were to find and conclude that
Respondent engaged in one or more of the alleged
bargaining violations, I would conclude, for reasons in
large part previously alluded to, that they were not, singly
or in combination, of a character so calculated to induce
disaffection among the employees toward the Union as to
warrant regarding the signatures to the decertification
petition as the product of or influenced by the bargaining
30 It is also true that Respondent's evidence does not convincingly
establish that there was a well understood 30-minute limitation on the lunch
period permitted the night maintenance men, although an inference to that
effect might be warranted from Respondent's evidence that the 30- minute
893
violations . As has been shown , Respondent has not been
charged with general bad -faith bargaining or other conduct
calculated to undermine the Union 's representative capaci-
ty. Rather it is charged with having failed to comply, in
limited and specific respects, with incidental aspects of the
collective -bargaining procedure involving , in large part,
matters of minor significance in any realistic view of the
total circumstances . Hence , I conclude that the wishes of
the 10 employees exemplified by their signatures on the
decertification petition cannot be disregarded on the
theory that they were tainted by reason of one or more of
the forms of refusal to bargain alleged , and for the same
reasons conclude that an order requiring Respondent to
bargain with the Union (which, in effect , would require
ignoring the decertification petition ), would not in any
event be warranted.
Finally , Respondent contends in its brief, as it does in its
pleadings and did at the hearing , that the Union filed its
broad charge of refusal to bargain in the main case (No.
IO-CA-8771) not "in an effort to redress any wrongs ... .
during the bargaining period, but solely in an effort to
block the decertification petition ." However, this case was
not instituted by the Union 's broad charge but by the more
limited and specific complaint issued by the Board's
Regional Director , and his action in doing so, like his
action in dismissing the decertification petition , are, like
the Union 's motives in filing the charge , not issues in this
case or matters otherwise subject to my review.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
3. Even if Respondent were found to have engaged in
one or more of the forms of refusal to bargain alleged in
the complaint, for the reasons previously stated an order
requiring Respondent to bargain with the Union would not
in the circumstances of this case be warranted.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, I hereby issue,
pursuant to Section 10(c) of the Act, the following
recommended:
ORDER
The complaint herein is hereby dismissed in its entirety.
limitation was in effect relative to day shift personnel and from the added
fact that all personnel were rotated as between day and night assignments,
including the night maintenance work