American Fed. of Television & Radio Artists v. NLRB, 21153.
| Decision Date | 18 April 1968 |
| Docket Number | No. 21153.,21153. |
| Citation | 395 F.2d 622 |
| Parties | AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, KANSAS CITY LOCAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Taft Broadcasting Company, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. C. David Whipple, Kansas City, Mo., of the bar of the Supreme Court of Missouri, pro hac vice, by special leave of court, with whom Mr. Samuel Levine, Washington, D. C., was on the brief, for petitioner. Mr. Lewis Ginberg, Washington, D. C., also entered an appearance for petitioner.
Mr. Elliott Moore, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent.
Mr. James R. Willard, Kansas City, Mo., for intervenor.
Before BURGER, LEVENTHAL and ROBINSON, Circuit Judges.
This case is before the court on the petition of American Federation of Television and Radio Artists (Union) to review an order of the National Labor Relations Board1 dismissing a complaint against Taft Broadcasting Company (Company). The issue is whether the Board erred in refusing to find, as the complaint charged and the trial examiner held, that the Company violated Sections 8(a) (1) and (5) of the National Labor Relations Act as amended,2 by unilaterally changing conditions of employment after bargaining for months on proposed contract changes.
It is settled "that an employer's unilateral change in conditions of employment under negotiation is * * a violation of § 8(a) (5), for it is a circumvention of the duty to negotiate * * *."3 But the Board held that the present case was governed by this qualifying principle: "After bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals." That is a correct statement of applicable doctrine.4 The salient question in this case is whether there is substantial evidence to support the Board's finding that the parties had bargained to an impasse. We think there is, and accordingly affirm.
The Board's appraisal of the bargaining situation was different from the Examiner's. The case being a close one on the facts, they are set forth more fully than is customary.
When Taft Broadcasting acquired ownership of WDAF, Kansas City, Missouri, in 1964, it assumed its predecessor's collective bargaining agreement. In May 1965 it sent the Union a notice of termination effective October 1, 1965, and requested bargaining. The proposal it duly submitted reflected a substantial departure from the existing agreement. The major changes were aimed at giving greater freedom in personnel assignments. The Company wanted complete interchangeability with respect to categories of employees and between broadcasting media without any of the limitations imposed by the existing agreement,5 which established a structure of fees increasing take-home pay,6 economic penalties and absolute prohibitions. The Company also wanted to abolish restrictions on pre-recording, which was limited under the contract to only five hours of announcers' services per medium (AM, FM, TV) per broadcast day. The Union's proposal, transmitted September 9, was essentially a carry-over of the old contract, with increases in wages and fringe benefits.
The parties met some 27 times in September, October and November. During this period they came to agree on certain matters,7 but not on the major issues separating them. The Union reported "no progress" in communications sent to its employees October 26, November 5 (when it called for a strike vote), and again on December 1 (99% of the issues outstanding "stem from Company demands for regressive changes").
It was mutually agreed, on September 30, to continue the current contract subject to termination on 15 days notice. On November 19, the Union gave notice of intention to terminate the contract as of December 4. On November 23, the parties agreed to meet henceforth at the office of the Federal Mediation and Conciliation Service. As of November 29, the Union had rejected the Company's proposals on the major issues8 — both on interchangeability, calling a modification offered in November9 no more satisfactory than the original proposal, and on prerecording, as to which the Company stated it would be willing to consider prerecording time limits on AM and TV, but not FM. The Company submitted a proposal for a $7.00 increase in weekly base pay. The Union accepted this on condition the old agreement would be continued in all other respects, but the Company rejected that counter proposal.
The parties were split up by the Federal mediators and met in separate sessions with the mediators on November 30. On December 1 the Union advised the employees that the Company was seeking "anti-union weapons we cannot place in the hands of the Company,"10 set up a temporary office structure on the lot next to the station, and ordered picket signs, which were painted December 1-3.
On December 3, the parties met in separate sessions. The Union advised, through the mediator, that it would permit unlimited pre-recording on FM if the Company would "drop off" pre-recording on AM and TV, an offer the Company rejected as permitting a total amount of pre-recording that was less than the contract already provided and hence represented a "deterioration." In the late afternoon the Company asked if the Union was planning to strike the next day, and advised that it would put unilateral changes into effect the next day. The Union spokesman asked if it was the Company's position "that we had bargained to an impasse on all items." The Company's attorney replied "not necessarily."11
Saturday, December 4, the last day of the existing contract, the parties met in joint session without discussion of the issues involved in the unilateral changes, though the parties agreed to meet in a subsequent bargaining session. At 4:00 p. m. the Company presented a list of the changes it planned to put into effect at 5:00 o'clock. These included, in addition to the $7.00 pay increase, interchange between media without limitation, use of pre-recording up to 70 hours per week on AM and TV and without limit on FM, certain interchangeability sufficient, e. g., to require announcers to do sports for an in-shift fee (rather than out-of-category fee).
The Company's executive vice-president ordered the station to post these changes notwithstanding the protest of the Union's attorney that the parties had not yet bargained to deadlock, and notwithstanding the request of the chief Union representative who said the changes would "infuriate the bargaining unit" and who forecast they would result in a strike. But at the Company's request the Union representative promised to give 24-hour notice in advance of any strike.
Skipping Sunday, the parties met again December 6. On December 7, after the Union representative said he "couldn't buy 70 hours of pre-recording" the Company made offers of 56 and then 50 hours, but the Union was willing to accept this only on condition the Company pay a man as if he were present at the time the material was played. There was discussion of issues without agreement on December 9, and on December 10 the Union said it "had no choice but to give the strike notice." Picketing began December 11. During the next six months the parties met several more times, but did not reach agreement prior to the hearing.
The Examiner's decision and analysis of the case is set forth in the several following paragraphs.
The evidence does not support any contention of bad faith on the part of the Company prior to the unilateral changes. An impasse existed on December 4 as to interchange in categories and media, but there was not an impasse on certain crucial issues; e. g., on the pre-recording issue, viewed separately, there had been proposals and counter-proposals and at the time of the unilateral change the Company had indicated willingness to change its position without indicating in what respect. Thus this was not a case where both parties had adamantly adopted a position and there was nothing further to be said until one or another changed its position.
The Company was seeking major changes to bring the contract in line with its contracts in other parts of the country. The Union resisted stubbornly because the changes would result both in diminution of the unit, as fewer employees would be needed with increased pre-recording and interchange, and in reducing take-home pay. Although there were a number of individual issues which arose "they more appropriately may be viewed as a single issue, i. e., "whether the employer in exchange for the $7 across-the-board wage increase should be permitted freedom to assign its artistic personnel without regard to the categories and media * * * and with freedom to pre-record additional material." Both parties appear to have recognized that the various items were interlocking, but each was unable to bring itself, or the other, to bargain on the package as a whole rather than the individual facets. Though the bargaining appeared desultory, there was in fact cautious exploration by both to determine the weak spots of their opponents. To speed up the tempo, each party took steps to "shake up" the other. The Union gave notice of termination of the agreement and engaged in discreet "saber rattling" by suggesting that a strike could result. The Company's unilateral changes were not necessitated by economic considerations, but were imposed for tactical reasons, to get the negotiations off balance. The...
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