Retlaw Broadcasting Co., A Subsidiary of Retlaw Enterprises, Inc. v. N.L.R.B.

Decision Date30 March 1999
Docket Number97-71147,KJEO-T,C,Nos. 97-70927,s. 97-70927
Citation172 F.3d 660
Parties160 L.R.R.M. (BNA) 2909, 137 Lab.Cas. P 10,411, 99 Cal. Daily Op. Serv. 2288, 1999 Daily Journal D.A.R. 3019 RETLAW BROADCASTING CO., A SUBSIDIARY OF RETLAW ENTERPRISES, INC. d/b/ahannel 47, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and American Federation of Television and Radio Artists, Respondent-Intervenor.
CourtU.S. Court of Appeals — Ninth Circuit

Sarah A. Wolfe, The Law Firm of Thomas E. Campagne & Associates, Fresno, California, for petitioner-cross-respondent Retlaw Broadcasting Company.

Daniel J. Michalski, Fred L. Cornnell, Supervisory Attorney, Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for respondent-cross-petitioner National Labor Relations Board.

Marsha Berzon (argued), Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California; Donald S. Tayer, Beeson, Tayer & Bodine, San Francisco, California; James B. Coppess, Ruth Burdick, Washington, D.C., for respondent-intervenor American Federation of Television and Radio Artists, AFL-CIO.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Board Nos. 32-CA-13537-1, 32-CA-13537-2, 32-CA-13537-3.

Before: SCHROEDER and THOMAS, Circuit Judges, and MOSKOWITZ, * District Judge.

MOSKOWITZ, District Judge:

Retlaw Broadcasting Company ("Retlaw") petitions for review of an order of the National Labor Relations Board ("NLRB") finding that Retlaw committed unfair labor practices in violation of the National Labor Relations Act. The NLRB has filed a cross-application for enforcement of the order. Collective bargaining between Retlaw and the union in this case deadlocked over a provision that Retlaw proposed involving "personal service contracts." This provision would have allowed Retlaw to negotiate directly with current and prospective employees on terms and conditions of employment. The principal issue before us is whether this disputed contract term is a mandatory or permissive subject of collective bargaining. Because we hold that the provision here is permissive, Retlaw committed an unfair labor practice when it declared an impasse over this issue and implemented part of its final contract proposal. We also hold that Retlaw's refusal to produce copies of personal service contracts to the union was an unfair labor practice. Accordingly, we deny Retlaw's petition for review and grant the NLRB's cross-application for enforcement.


Retlaw operates KJEO, a television station in Fresno, California. 1 This appeal stems from a labor dispute between Retlaw and its employees' exclusive bargaining representative, the American Federation of Television and Radio Artists, AFL-CIO. The union represents the station's performing artists.

A collective bargaining agreement ("CBA") that went into effect in 1990 expired on July 1, 1993. 2 Negotiations in the summer of 1993 aimed at a new CBA broke down over personal service contracts ("PSCs"). PSCs are employment agreements negotiated directly between Retlaw and an individual employee, who is often represented in the negotiations by his or her attorney or agent. A PSC allows Retlaw and the employee to craft specific terms and conditions of employment that are more favorable to the employee than under the CBA. PSCs had been a feature of the previous CBA. Indeed, the union had long accepted PSCs as a general proposition to enable Retlaw to attract particularly talented or coveted employees. The CBA had acted as a floor on terms and conditions of employment that could be exceeded on an individual basis via a PSC. Retlaw and the union had followed a practice of allowing the union to be present during PSC negotiations, but only on the employee's request.

Negotiations in the summer of 1993 on a new CBA reached a deadlock over the PSC provision. Retlaw and the union agreed on most of the language, but could not reach agreement on the italicized portions below that Retlaw wanted to add:

This Agreement states the minimum terms for employment of an Artist, and the Company will not employ an artist on terms less favorable to him or her than those stated in this agreement. Consequently, the Company may enter into [PSCs] or other contracts. However, any PSC or other contract which the Company may now have or may later enter into with an Artist shall be deemed modified to accord with this Agreement, except when the PSC or other contract (when considered as a whole) provides more favorable terms for the Artist than this Agreement (when considered as a whole); and/or except when the salary within the PSC or other contract exceeds the CBA minimum salary by 20%. Further, nothing in this Agreement will prevent the Company from agreeing with an Artist on higher compensation or other benefits for either services covered by this Agreement or additional services.

On July 26, negotiations broke off over this and several other sticking points not at issue in this appeal. By letter dated August 18, Retlaw declared that the parties were at a "good-faith" impasse and that it would exercise its "right" to implement unilaterally its "last, best, and final" collective bargaining proposal. Retlaw then implemented that proposal in several respects. 3 As discussed further below, the NLRB found that no valid impasse existed because the PSC provision was a "permissive" subject of collective bargaining. It followed from this conclusion that Retlaw's bargaining to impasse over the PSC provision, and implementing part of its final contract proposal, was an unfair labor practice, in violation of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("Act"). See 29 U.S.C. §§ 158(a)(1), (5).

After the purported impasse, the union by letter dated August 24 demanded that Retlaw produce copies of "all existing [PSCs] with bargaining unit employees and the names and addresses of the bargaining unit," explaining that this information was needed to prepare for further negotiations. After Retlaw did not reply, the union repeated this request several weeks later in a second letter. By letter dated October 19, Retlaw through counsel responded with a list of names and addresses of all bargaining unit employees, including whether they were employed under PSCs. However, asserting that "strong confidentiality and relevancy concerns, as well as employee privacy issues" barred disclosure, Retlaw refused to produce copies of the PSCs themselves. Retlaw maintained in the letter that this information was "irrelevant to the bargaining process" and suggested that the union's request was in bad faith because it came after negotiations had stalemated. The NLRB concluded that Retlaw's refusal to produce copies of the PSCs to the union was an unfair labor practice, also in violation of Sections 8(a)(1) and 8(a)(5) of the Act.

Retlaw appeals, contending that the NLRB erred in concluding that (1) PSCs are a permissive subject of collective bargaining, and (2) Retlaw had no right to refuse to produce copies of PSCs to the union. We have jurisdiction under 29 U.S.C. §§ 160(e)-(f).


The NLRB's order will be enforced if it correctly applied the law and its factual findings are supported by substantial evidence. NLRB v. District Council of Iron Workers, 124 F.3d 1094, 1098 (9th Cir.1997). Retlaw advances no serious claim that the NLRB's findings of fact are not adequately supported by the record. Rather, at issue is the scope of Retlaw's obligation to bargain collectively in good faith over "wages, hours, and other terms and conditions of employment." 29 U.S.C. §§ 158(a)(5), (d). The NLRB's conclusions as to matters falling within "terms and conditions of employment" are not lightly disturbed:

Because it is evident that Congress assigned to the Board the primary task of construing these provisions ... and because the classification of bargaining subjects as terms and conditions of employment is a matter concerning which the Board has special expertise, its judgment as to what is a mandatory bargaining subject is entitled to considerable deference.

Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979) (citation and internal quotation marks omitted). "Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute." Id. at 497, 99 S.Ct. 1842 (citation omitted). The NLRB's determination that an employer must disclose information to a bargaining representative is given "great weight." Salt River Valley Water Users' Ass'n v. NLRB, 769 F.2d 639, 641-42 (9th Cir.1985).


Whether Retlaw was entitled to declare an impasse over the PSC provision and implement its final offer turns on the distinction between "mandatory" and "permissive" subjects of collective bargaining. Considerable scholarly effort has been invested explaining the difference and it is not easily characterized. See generally 1 PATRICK HARDIN, THE DEVELOPING LABOR LAW 851-947 (3d ed. 1992 & Supp.1998). Nonetheless, a few general principles are relevant.

In circumstances where it applies, the Act gives employees the right "to bargain collectively through representatives of their own choosing." 29 U.S.C. § 157. A representative selected for this purpose serves as the employees' exclusive bargaining agent. 29 U.S.C. § 159(a). Mandatory subjects--"wages, hours, and other terms and conditions of employment"--must be bargained collectively in good faith. 29 U.S.C. §§ 158(a)(5), (d). This reflects the Act's preference for channeling disagreements over these core topics into collective bargaining to promote "industrial peace" and minimize the...

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