WNAC-TV, WRKO & WROR

National Labor Relations Board - Board Decisions

Jun 21, 1977

230 N.L.R.B. 342 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local 1228, AFL-CIO and RKO General, Inc.
(WNAC-TV, WRKO & WROR). Case 1-CB-
3330
June 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 28, 1977, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, counsel for the
General Counsel filed exceptions and a supporting
brief. Respondent filed exceptions and a brief in
support of exceptions and in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Brotherhood of Electrical Workers, Local 1228,
AFL-CIO, Brighton, Massachusetts, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
: Member Murphy would order reimbursement of litigation costs,
including counsel fees, incurred by the General Counsel and the Charging
Party as a result of Respondent's unfair labor practices. She believes that
Respondent's conduct in refusing to sign the agreed-upon collective-
bargaining agreement constituted an indefensible act under the circum-
stances existing in this case. Thus, while Respondent had executed a
summary agreement containing the parties' agreement as to wages, hours,
and terms and conditions of employment, final contract language had not
been agreed upon or prepared. Consequently, Respondent was obligated to
execute the collective-bargaining agreement ultimately presented to it for
signature, especially since it voiced no objection to the agreement's language
or form. Its failure to do so, therefore, only can be characterized as
frivolous. Accordingly, Member Murphy would grant the relief from costs
requested by the General Counsel. Tiidee Products, Inc., 194 NLRB 1234.
1236 (1972). See also Crystal Springs Shirt Corporation, 229 NLRB 4 (1977),
and her similar position there noted at fn. I.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Boston,
Massachusetts, on December 3, 1976, upon a complaint1
issued by the General Counsel of the National Labor
Relations Board and an answer filed by International
Brotherhood of Electrical Workers, Local 1228, AFL-CIO,
hereinafter sometimes called the Respondent. The issues
raised by the pleadings relate to whether or not the
Respondent violated Section 8(bX3) of the National Labor
Relations Act by failing and refusing to execute a
collective-bargaining agreement with RKO General, Inc.
Briefs have been received from the General Counsel, the
Respondent, and the Charging Party and have been duly
considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. COMMERCE AND JURISDICTION
The complaint alleges, the answer admits, and I find that
RKO General, Inc. (WNAC-TV, WRKO & WROR),
hereinafter called RKO or the Employer, (1) operates radio
and television broadcasting facilities in the City of Boston;
(2) its operations satisfy the Board standards for the
assertion of jurisdiction; and (3) RKO is engaged in
commerce within the meaning of the Act.
II. THE STATUS OF THE RESPONDENT AS A LABOR
ORGANIZATION
The complaint also alleges, the answer admits, and I find
that the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE APPROPRIATE BARGAINING UNIT AND THE
RESPONDENT'S STATUS AS THE BARGAINING AGENT
The complaint further alleges, the answer admits, and I
find that at all times since November 1, 1972, the
Respondent has been, and continues to be, the sole and
exclusive collective-bargaining agent of the employees of
RKO in the following described unit:
All recording, broadcast and television technicians,
film cameramen, and film editors, excluding all other
employees and supervisors.
The complaint in this case was issued on July 29. 1976. upon a charge
filed June 17, 1976, and duly served on the Respondent.
230 NLRB No. 45
342
ELECTRICAL WORKERS, LOCAL 1228, AFL-CIO
IV. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges and the answer admits that on
November 18, 1975, after negotiations, the Respondent
and RKO reached and executed a Summary of Agreement
describing changes or modifications to a collective-bar-
gaining agreement which had previously been in effect for
the period from November 1, 1972, to October 31, 1975.
The complaint further alleges that since February 19,
1976,2 notwithstanding RKO's requests, the Respondent
has neglected, failed, and refused to sign the new
collective-bargaining agreement. The Respondent's answer
admits that on or about February 19, it received six copies
of the newly drafted collective-bargaining agreement,
together with a request for execution, but denies all alleged
subsequent requests, and similarly denies that its refusal to
sign the new agreement violated Section 8(bX3) of the Act.
The Respondent adduced no testimony in this proceeding,
has asserted no factual defense to its refusal to execute the
new agreement, but asserts as a matter of law that its
execution of the Summary of Agreement on November 18,
1975, which merely modified the 1972-75 bargaining
agreement, satisfies the requirement of Section 8(d) of the
Act. For the reasons explicated below, I find the Respon-
dent's legal contention to be without merit.
Paragraph I of the Summary of Agreement signed by
RKO and the Respondent on November 11, 1975, recites
as follows:
1. All terms and conditions of our November I,
1972, Agreement and its supplemental Agreement are
to be continued effective November 1, 1975, except as
hereinafter expressly modified, deleted, or added to.
The initial paragraph of the Summary of Agreement is
followed by approximately 17 paragraphs of changes,
modifications, or continuances respecting wages and terms
or conditions of employment of the employees in the
bargaining unit. Paragraph 20 of the Summary recites as
follows:
20. The foregoing changes hereinabove contained
are not in final contract language but merely express
the main elements of the parts of our Agreement, and
final contract language will have to be drafted.
Jeffrey Ruthizer, Vice President of Labor Relations,
assumed his duties with RKO in December 1975, and
became aware of the results of the negotiations between the
Respondent and RKO shortly thereafter. Using a signed
copy of the Summary of Agreement, Ruthizer drafted the
new contract. Under a cover letter of explanation dated
February 19, Ruthizer sent six copies of the final agree-
ment to Winfield S. Jones, Business Manager and acknowl-
edged agent of the Respondent. In the final paragraph of
his February 19 letter, Ruthizer requested Jones to sign and
date all six copies and return them to RKO for the
Company's signature. The record is specific in this
proceeding that Jones neither signed the bargaining
2 All dates hereinafter are in 1976, unless specified to the contrary.
3 Emphasis supplied.
4 International Union of Operating Engineers, Local Union No. 12 (Tnri-
agreement, nor afforded RKO any explanation for his
failure to do so.
In late March Ruthizer directed his secretary to call
Jones to inquire why the bargaining agreement had not
been signed and returned to the Employer. On May 12
Ruthizer sent a second letter to Jones, relating the elapse of
time since the bargaining agreements were first submitted
for signatures, and Ruthizer insisted that Jones sign the
agreement and return it to RKO within a week or so. As in
the case of the prior communications, Jones ignored
Ruthizer's request, and no copy of the 1975-78 bargaining
agreement has ever been executed by the Respondent.
It is also clear from the record in this proceeding that the
changes and modifications agreed to by the parties in the
Summary of Agreement signed on November 18, 1975,
have been put into effect, and there is uncontradicted
evidence that the Respondent has relied on the provisions
of the Summary in processing grievances and arbitration
proceedings. There is no evidence that the Respondent ever
voiced any objection to the drafted language of the new
bargaining agreement submitted by Ruthizer on February
19, and there is no contention on the part of the
Respondent that Ruthizer's draft is contrary in any respect
to the agreement reached by the parties on November 18,
1975. On the contrary, the Respondent admitted during the
course of this proceeding that it voiced no objection to
Ruthizer's draft, and has in fact operated under the terms
of operative language drafted by Ruthizer.
Section 8(bX3) of the Act makes it an unfair labor
practice for a labor organization or its agents to refuse to
bargain collectively with an employer, if the labor organi-
zation is the representative of the employer's employees
within the meaning of Section 9(a) of the Act. The duty to
bargain collectively is defined in Section 8(d) of the Act,
and provides in pertinent part that:
. . . to bargain collectively is the performance of the
mutual obligation of the employer and the representa-
tive of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the
negotiation of an agreement or any question arising
thereunder, and the execution of a written contract
incorporating any agreement reached if requested by
eitherparty .... 3
The legal issue in this case equates clearly with the
Board's decision in International Union of Operating
Engineers, Local Union No. 12, 4 where the Board required
the Union to execute a collective agreement, notwithstand-
ing the execution of a prior "memorandum of agreement."
The Respondent argues, nevertheless, that the rationale in
Local Union No. 12 is inapplicable here because there was
no contingency in the Summary of Agreement here, so that
the Summary embodied the full understanding of the
parties, and, upon execution, satisfied the requirement of
Section 8(d). The Respondent's argument fails to take into
consideration a salient fact in evidence. Like the "memo-
randum of agreement" in Local Union No. 12, the
County Association of Civil Engineers and Land Surveyors), 168 NLRB 173
(1967).
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summary of Agreement executed by the parties in this case
did contain a contingency. It is true, as the Respondent
argues, that the Summary of Agreement contained the full
agreement of the parties as to wages, hours, and terms and
conditions of employment. Nevertheless, it was explicitly
agreed in the Summary of Agreement that the parties had
not agreed to final contract language, that the Summary
expressed only the main elements of the agreement, and
that contract language would have to be drafted. When
Ruthizer drafted the final bargaining agreement and
submitted it to the Respondent on February 19, the
contingency was met, there was full and complete agree-
ment on all terms and conditions of the bargaining
agreement, and the Respondent was obligated to execute
the agreement.
Unlike the situation in Teamsters Local 295, 5 on which
the Respondent also relies, the evidence here does not
support the argument that the Respondent should not be
required to execute a final and complete contract. In
Teamsters Local 295, the Board withheld an execution
remedy because the parties had not reached a full and
complete agreement. These are not the facts here. In their
Summary of Agreement the parties reached a full and
complete understanding, conditioned solely on the necessi-
ty to draft final contract language. RKO drafted final
contract language, which the Respondent agrees it accept-
ed and used for the purposes of policing and enforcing the
collective-bargaining agreement.6
I find and conclude, accordingly, that by failing to sign
the collective-bargaining agreement submitted by RKO on
February 19, 1976, the Respondent violated Section 8(b)(3)
of the Act.7
Having found that the Respondent has engaged in, and
continues to engage in a violation of Section 8(bX3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and take certain affirmative actions to
remedy the unfair labor practices and to effectuate the
policies of the Act.
The General Counsel and the Respondent, relying on
Tiidee Products, 8 contend that the remedy in this case
should also require the Respondent to pay the costs of this
proceeding, including costs of counsel fees. The facts here
do not equate with those in Tiidee, or with those in the
Heck's 9 case, and the request for special remedies is
denied.
CONCLUSIONS OF LAW
I. RKO General, Inc. (WNAC-TV, WRKO &
WROR) is an employer within the meaning of Section 2(2)
5 Local 295, affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America (Emery Air Freight
Corporation), 197 NLRB 26 (1972).
6 I find no merit in the Respondent's attempts to distinguish Amalga-
mated Meat Cutters and Butcher Workmen of North America, Local 530,
AFL-CIO (DuQuoin Packing Company.), 202 NLRB 478 (1973), from this
case on grounds that the preliminary agreement there was initialed and not,
as here, signed. I find a similar lack of merit in the Respondent's attempt to
distinguish Local Union Nos. 938, et al., International Brotherhood of
Electrical Workers, AFL-CIO (Appalachian Power Company), 200 NLRB 850
(1972), from this case on grounds that the parties there executed an "interim
agreement," whereas here the document was entitled "Summary of
Agreement."
7 In arriving at this finding and conclusion I have ignored, as lacking all
of the Act, and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent Union, International Brotherhood
of Electrical Workers, Local 1228, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent Union is now, and has been at all
times material to this case, the sole and exclusive collective-
bargaining representative of RKO's employees in the
following described unit for the purposes of collective
bargaining with respect to wages, hours, and other terms
and conditions of employment:
All recording, broadcast and television technicians,
film cameramen, and film editors, excluding all other
employees and supervisors.
4. By failing and refusing on and after February 19,
1976, to sign the collective-bargaining agreement previous-
ly agreed to with RKO, the Respondent Union violated
Section 8(bX3) of the Act.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 10
The Respondent Union, International Brotherhood of
Electrical Workers, Local 1228, AFL-CIO, Brighton,
Massachusetts, its officers, agents, and representatives,
shall:
1. Cease and desist from: Failing and refusing to
bargain collectively with RKO General, Inc. (WNAC-TV,
WRKO & WROR) by failing and refusing to sign the
collective-bargaining agreement submitted to the Respon-
dent Union on February 19, 1976.
2. Take the following affuirmative actions to remedy the
unfair labor practice and to effectuate the policies of the
Act:
(a) Upon request, forthwith execute the collective-bar-
gaining agreement submitted by RKO General, Inc., on
February 19, 1976, and deliver a signed copy of the
agreement to the Employer.
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms to be provided by the Regional Director
for Region 1, after being duly signed by an authorized
evidentiary support, the General Counsel's factual argument appearing at
page 4 of his brief, which alludes to prehearing conversations between the
General Counsel and the Respondent's attorney.
8 Tiidee Products, Inc., 194 NLRB 1234 (1972).
9 Heck's Inc., 215 NLRB 765 (1974).
'o In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
nI In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
344
ELECTRICAL WORKERS, LOCAL 1228, AFL-CIO
representative of the Respondent, shall be posted by it
immediately upon receipt thereof, and shall be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by other materials.
(c) Mail to the Regional Director for Region I sufficient
copies of the aforesaid notice for posting by RKO General,
Inc., said Employer being willing, to be posted in all places
where notices to RKO's employees are customarily posted.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days of the date of this Order, what steps have
been taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NoInce To EMPLOYEES
PoSITD BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain collectively
with RKO General, Inc. (WNAC-TV, WRKO &
WROR) by failing to sign the collective-bargaining
agreement submitted to us by RKO General, Inc. on
February 19, 1976.
WE WILL, upon request of RKO General, Inc.,
forthwith execute the collective-bargaining agreement it
submitted to us on February 19, 1976, in accordance
with our agreement of November 18, 1975, and upon
execution we will deliver a signed copy thereof to the
Company.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL 1228, AFL-CIO
345