Taft Broadcasting Co.

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taft Broadcasting Company WDAF AM-FM-TV and American Federation of Television and Radio-Art- ists AFL-CIO, Kansas City Local. Case 17-CA- 3637 August 27, 1970 DECISION AND ORDER On March 4, 1970, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' The General Counsel filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications: The record shows and it is undisputed by the parties that the 1963 contract, to which Respondent was bound as a successor, expired on September 30, 1965. Commencing some time in June 1965, the parties negotiated for a new collective-bargaining agreement, but could not come to terms before the termination of the existing agreement. Having failed to consummate any new agreement, Respondent and Union, on or about September 30, 1965, entered into an interim agreement providing that the then existing collective-bargaining agreement would remain in full force between the parties, subject to the right of either party to terminate the agreement upon pro- viding 15 days prior notice. Subsequently, on Decem- ber 12, 1965, having given the required notice the Union initiated a strike at the WDAF stations which lasted until April 18, 1966. On that date, agents negotiating for Respondent and the Union signed a strike settlement agreement. This agreement was a rough draft of a complete collective-bargaining agreement. Many sections of the expired agreement were incorporated in it by specific reference. In perti- ' Respondent has also filed a motion requesting the case to be set for oral argument before the Board Since we believe that the record and briefs adequately present the contentions of the parties, we deny the motion nent part, it stated, "This agreement, at the paragraph numbered 8, provided that 'Grievance and Arbitration Sec. 1, Article VII shall be the same as in the expired contract."'Z The strike settlement agreement also con- tained an express provision providing for an effective duration period from April 18, 1966, to March 31, 1969. The parties agreed that it was the Respondent's responsibility to draw up a finished copy of the collec- tive-bargaining agreement incorporating the terms and conditions of the strike settlement agreement. On June 22, Respondent transmitted the agreement with a covering letter to the Union. The June draft was never executed by the parties due to alleged discrepan- cies between the rough draft and the finished docu- ment. It did, however, contain the procedure for handling grievances incorporated by reference in the strike settlement agreement, which procedures involved two steps culminating in arbitration. Thereafter, on or about April 3, 1967, Respondent's attorney, Willard, sent a letter to David H. Schnabel, executive secretary of the Union. A pertinent portion of this letter is quoted as follows: ... regarding the execution of the understanding reached between Taft Broadcasting Company, Kansas City, Missouri, and the Kansas City Local of AFTRA as reflected by the draft contract of June 22, 1966. A reasonable length of time having long since elapsed since the draft was submitted to you for signature without acceptance by you, the proposals therein contained are now withdrawn, and we are rescinding any under- standing or agreement between the parties which may have been reached on April 18, 1966, as reflected in the draft of June 22, 1966. For your information and the information of the affected parties, it is our intention to continue in effect the wages, hours, and other conditions of employment presently in effect as fully set forth in the draft of June 22, 1966, and we will continue handling any grievances that may arise in accordance with the procedure set forth therein. There can, of course, be no enforcement of the Union security provisions. We do not by this letter attempt or purport to withdraw recognition from your union as the exclusive bargaining representative of our employ- ees in an appropriate unit, and we are prepared ' Subsec (c) of art Vii states "if the grievance is not settled by the foregoing procedure as provided in (b) above, the grievance shall be considered as closed and not subject to arbitration unless the union requests in writing that the matter be submitted to arbitration Such request for arbitration shall be within six (6) months of the notice of the grievance Matters relating to union shop and pension and welfare contributions shall not be subject to the above limitations " 185 NLRB No. 68 TAFT BROADCASTING COMPANY to negotiate with you in good faith in order to reach a satisfactory collective bargaining con- tract. In the meantime, if we feel any change is desirable which may affect the present wages, hours, and working conditions of our employees, we will advise you in advance so that you will have the opportunity to negotiate on it before any changes are made. [Emphasis supplied.] The Union made no response to this letter. In a letter dated August 1, 1967, Schnabel notified one Edward Muscare that there was not a signed collec- tive-bargaining agreement in effect under which union membership was required as a condition of employ- ment. Subsequently, on or about February 2, 1968, Respondent terminated the employment of Martin Gray, a staff announcer who had been in the employ of Respondent from on or about July 13, 1963. On March 14, 1968, the Union wrote a letter to the Respondent stating, in part, the following: "On Febru- ary 2, 1968, WDAF-Radio reduced its announcing staff. Within less than two weeks, the station again added to its announcing staff . . . by hiring a new announcer rather than recalling Mr. Gray to work. This layoff out of seniority, the failure to recall accord- ing to seniority and the change in computation of accrued vacation are all unilateral changes in wages, hours and/or conditions of employment illegally insti- tuted by the station."' On or about March 22, 1968, Respondent made a written reply to the Union's March 4 letter, stating in effect that Gray was not laid off but, rather, he was terminated when the station discontinued the live all-night show of which he was the announcer and that the demand that Mr. Gray be reinstated must be denied. On or about May 14, 1968, the Union again wrote a letter to the Respondent, stating : The number of staff announcers employed by the station on February 1, 1968, was reduced by one when, on February 2, the station ended the employment of announcer Gray, and that this obvious- ly was a reduction of staff which should have been done by seniority. By letter dated June 14, 1968, the Respondent again asserted Mr. Gray was terminat- ed due to a decision by the station to discontinue its live all-night show, and further asserted that announcer Bob Foster was hired prior to February 2, 1968. Thereafter, on or about July 3, 1968, the Union served the Respondent with a written demand for arbitration regarding the matters involving termi- nation of announcer Martin Gray and alleged noncom- ' Nowhere in this letter or the subsequent correspondence between the parties is it alleged that there was a contract in existence As illustrated in this letter, the Union referred to the grievance as a unilateral change in the terms and conditions of employment 203 pliance by Respondent with the annual earnings guar- antee.' After the Union had expressly renewed this demand for arbitration in a letter dated and sent to Respondent on or about July 17, 1968, Respondent sent the following, dated July 22, 1968. Receipt is acknowledged of your letter of July 3, in which you request a meeting to select an arbitrator to hear a "grievance" arising out of the termination of Martin Gray and another arising out of an annual earnings guarantee. The request contained in your letter is denied. As you know, the duty to arbitrate arises out of a contract. There is no executed document between your organization and our station con- taining an agreement to arbitrate. Approximately 8 days after the Union's receipt of Respondent's written repudiation of the duty to arbitrate, the Union filed a charge in the instant case. On the basis of the above events, and others con- tained in the record herein, the Trial Examiner found and concluded that the April 18, 1966, strike settle- ment agreement, which contains an express provision providing for an effective duration period from April 18, 1966, to March 31, 1969, remained in full force between Union and Respondent through the pre- scribed expiration date of March 31, 1969. The Trial Examiner concluded that there was an executed con- tract in effect between the parties at the time of the Union's arbitration demand, on or about July 3, 1968, and the Respondent's ensuing repudiation of any duty to arbitrate, predicated upon an alleged absence of contract, constituted unilateral conduct violative of Section 8(a)(5) and (1) of the Act. Both the General Counsel and Respondent have taken exception to the Trial Examiner's findings that there was an executed contract in effect at the time the particular grievances arose or at the time the Union made its initial demand for arbitration on July 3. We find merit in those exceptions. We disagree with the Trial Examiner's finding that the April 18 agreement remained in full effect beyond the Respond- ent's April 3, 1967, repudiation. It is apparent -on the basis of the record herein that Respondent on April 3, 1967, gave unequivocal notice to the Union that the April 18, 1966, agreement as reflected in the draft of June 22, 1966, was no longer in effect. It is also apparent from the Union's subsequent con- duct that it acquiesced in the Respondent's rescision ' It is noted that the June 22, 1966, draft of the strike-settlement agreement contained a provision , providing, inter aka, "full time staff artists returning to work will be guaranteed , while employed by WDAF, annual earnings of not less than fifty-two (52) the average weekly earnings for the past twenty-four months worked " 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strike settlement agreement, and accepted Respondent's further offer of an interim agreement as to both substance and negotiating procedure as outlined in the rescision notice, namely: that the terms and conditions of employment which were then in effect as set forth in the June 22, 1966, draft, including the procedures described therein for the handling of grievances but not the union-security provisions, would remain unaltered in the absence of prior notice and opportunity to bargain being afforded to the Union. The record shows that Respondent thereafter, com- mencing on or about June 26, 1967, served notice on the Union that it would be contemplating the institution of "certain changes" in the terms and conditions of employment set forth in the June 22, 1966, draft. On August 30, 1967, Respondent submit- ted a contract proposal to the Union. It contained 10 specific proposals, none of which concerned changes in the grievance and arbitration procedures, and incorporated by reference the June 22, 1966, draft, to the extent it was not in conflict with the specific proposals. The Union and Respondent dis- cussed the Respondent's proposals but no agreement resulted. There was no discussion of the procedures for handling grievances. Subsequently, on March 13, 1968, Schnabel submitted a proposed agreement to Respondent under which Respondent would continue contributions to the pension and welfare fund of the Union. The March 13, 1968, proposal never became an agreement. On the basis of all the foregoing, we find that although Respondent's letter of April 3, 1967, effec- tively terminated the April 18, 1966, collective-bar- gaining agreement, it also constituted notice that vari- ous terms and conditions of employment, as enumerated in that letter would continue in effect as terms or conditions of employment, as well as notice that the procedures for handling grievances set forth in the June 22, 1966, proposal would be followed by Respondent.' Further, the letter announced that Respondent would negotiate prior to making any changes in the matters mentioned, and Respondent did in fact generally do so. According- ly, in view of the Union's acquiescence and acceptance of the statements in that letter, as revealed by its subsequent conduct, we find that in April 1967 the parties had come to an interim agreement, including a specific understanding that the grievance and arbitra- tion machinery would continue in effect unless and ' For reasons fully stated by the Trial Examiner we reject Respondent's contention that only those procedures for handling grievances short of arbitration were continued in effect The consensually based arbitration procedure was an integral part of those grievance procedures as the Trial Examiner properly found until opportunity had been afforded to negotiate regarding any proposed changes therein. In these circumstances, we find that the Respondent's July 22, 1968, notification that it would no longer recognize the arbitration procedure, without having extended to the Union an opportunity to discuss this change, constituted a violation of its previously acknowledged duty to negotiate. Accordingly, we find Respondent's conduct violative of Section 8(a)(5) and (1) of the Act.' THE REMEDY Having found that Respondent has violated Section 8(a)(5) and (1) of the Act under the circumstances herein by unilaterally changing the grievance and arbitration procedures, or other terms and conditions of employment, without first giving notice and oppor- tunity to bargain with respect thereto to the Union as collective-bargaining representative of the employ- ees, we shall order the Respondent to cease and desist from engaging in such conduct and to take certain action designed to effectuate the policies of the Act. Accordingly, the Trial Examiner's Conclu- sions of Law and the Recommended Order and recom- mended language in the Notice to Employees are modified as follows: AMENDED CONCLUSIONS OF LAW 1. Delete paragraph 4 of the Trial Examiner's Conclusions of Law and substitute therefor the follow- ing paragraph: 4. Respondent has refused to bargain with the Union since July 22, 1968, in violation of Section 8(a)(5) and (1) of the Act by unilaterally eliminating the agreed-upon arbitration procedure , without having afforded the Union an opportunity to negotiate with respect thereto. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Baord adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Taft Broad- casting Company WDAF AM-FM-TV, Kansas City, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraphs 1(a) and 1(b) of the Recom- mended Order and substitute the following: ' Under our view of this case , it is irrelevant whether, absent specific agreement, arbitration procedures do or do not survive the expiration of a contract , Cf The Hilton-Davis Chemical Company Division of Sterling Drug Inc , 185 NLRB No 58 TAFT BROADCASTING COMPANY 205 "Unilaterally eliminating the procedure for arbitra- tion under the existing terms and conditions of employment without first giving notice to, and bar- gaining with, American Federation of Television and Radio Artists, AFL-CIO, Kansas City Local, with respect thereto." 2. Delete paragraphs 1 and 2 of Appendix and substitute the following: WE WILL NOT refuse to bargain with American Federation of Television and Radio Artists, AFL- CIO, Kansas City Local, by eliminating the arbi- tration procedure we have with it by taking action unilaterally to eliminate the procedure for arbitration. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE' JAMES F. FOLEY, Trial Examiner: This case was brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), 61 Stat. 136, 76 Stat. 579, against Taft Broadcasting Company WDAF AM-FM-TV (herein called Respondent) by a com- plaint issued September 26, 1969, and an answer to the complaint filed October 14, 1969. The complaint is premised on a charge filed August 2, 1969, by American Federation of Television and Radio Artists, AFL-CIO, Kansas City Local (herein called the Union). It is alleged in the complaint that on and after July 22, 1968, Respondent has refused to bargain collectively with the Union, in violation of Section 8(a)(5) and (1) of the Act, in that it unilaterally, and without first affording the Union the right to negotiate, rescinded and abrogated the existing procedures for arbitration, by denying that the duty to arbitrate survived the expiration of a prior collective-bargaining agreement between the parties. General Counsel also alleged in the complaint that the Union is the collective-bargaining representative of a unit of employ- ees consisting of all nonsupervisory radio and television announcers, newscasters, sportscasters, floor managers, director-coordinators, and all other nonsupervisory talent or artists employed by Respondent at its facilities in Kansas City, Missouri, and that the unit excludes the news director, assistant news director, farm director, production manager, and all other employees and supervisors as defined in the Act. Respondent in its answer denied the alleged refusal to bargain. It admits the Union is the collective-bargaining representative of its employees as described in the complaint with the exception of director-coordinators. ' Errors in the transcript have been noted and corrected it is not necessary to rule on Respondent's motion to strike references to rejected exhibits in General Counsel's brief or General Counsel's opposition to motion See fns 3 and 5 A hearing on the complaint and answer was held before me on November 24 and 25 and December 9 and 10, 1969, in Kansas City, Missouri The parties were afforded an opportunity to present evidence, make oral argument, and file briefs. Briefs were filed by General Counsel, Respondent, and the Union, as Charging Party, after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT During the calendar year 1968, Respondent , a part of a Delaware corporation with radio and television broadcast facilities in several States of the United States, with principal office and place of business in Kansas City, Missouri, is engaged in commercial radio and television broadcasting from Kansas City. During the calendar year 1968, it had a gross income from sales in excess of $100,000 and $50,000 was from customers located outside the State of Missouri. During the same period , Respondent purchased interstate news at a cost in excess of $ 10,000 and broadcast materials and rental films with a value in excess of $5,000 from sources outside the State of Missouri. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues It is undisputed that on July 3, 1968, David H. Schnabel, executive secretary of the Union, requested Nick Bolton, vice president and manager of Respondent's WDAF Radio, to submit to arbitration two issues between the Union and Respondent involving the termination of announcer Martin Gray, and an annual earnings guarantee for artists who returned to work after a strike ending April 18, 1966. Bolton denied his request in a letter of July 22, 1968. In the letter Bolton stated that the duty to arbitrate arose from a contract, and at that time there was no executed document in effect between the Union and Respondent containing an agreement to arbitrate. The issues to be resolved are- Was there a contract in effect at the time of the request and denial? If so, was the refusal to arbitrate contrary to the contract, and a violation of Section 8(a)(5) of the Act? If the contract had expired or was no longer in effect did the duty to arbitrate under the contract survive the demise of the contract? Is arbitration a condition of employment and a manda- tory issue of bargaining which may not be changed unilaterally even if the contract is no longer in effect without violating Section 8(a)(5) of the Act? 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B The Evidence, Contentions, and Discussion tion and requests a meeting with the Company at 2:00 p.m., Wednesday, July 10, 1968, for the purpose of selecting an arbitrator." In a letter dated July 22, 1968, Bolton replied to Schnabel by acknowledging his letter of July 3, 1968, in which he requested a meeting to select an arbitrator to hear a "grievance" arising out of the termination of Martin Gray and another arising out of an annual earnings guaran- tee. Bolton then stated that "The request contained in your letter is denied " In a separate and concluding para- graph, Bolton stated: As you know, the duty to arbitrate arises out of a contract. There is no executed document between your organization and our stations containing an agree- ment to arbitrate. Following the expiration on September 30, 1965, of a collective-bargaining contract executed on July 1, 1963, between a predecessor of Respondent and the Union, and its extension until December 4, 1965, by agreement between the Union and Respondent, and a strike from December 12, 1965, to April 18, 1966, the Union and Respondent reached a collective-bargaining agreement on April 18, 1966. It was reduced to writing, and was signed on April 18, 1966 It bore a termination date of March 31, 1969 This agreement terminated the strike. It not only contained strike settlement provisions, but also contained most of the provisions of the contract that expired on September 30, 1965. These latter provisions were incorporated in the contract either by a restatement of them or by reference. It contained a complete statement of wages, hours, working conditions, and other terms and conditions of employment. It is undisputed that its terms were placed in effect and carried out after being signed by the Union and Respondent Bolton testified that it was implemented after being signed. The dictionary meaning of the word is carved out or placed in effect. Reference was made in the hearing to the April 18, 1966, agreement as a strike-settlement agree- ment. While among other things it was intended to end the strike, it was not limited to only that objective There is nothing in the agreement that it was so limited. Nor is there anything in this contract, directly or indirectly, that it would be effective only temporarily, or replaced by another contract. Bolton, who was one of Respondent's negotiators, testified that it was for 3 years. Respondent contends that the April 18, 1966, agreement was never executed because although it was signed on behalf of the Union by Sanford I. Wolff, a Chicago, Illinois, attorney who negotiated it on behalf of the Union with representatives of Respondent, it was never ratified by the National Board of American Federation of Television and Radio Artists, AFL-CIO, called AFTRA, evidenced by its being signed by the executive secretary of the National Board. Wolff had inserted the words "Subject to approval of Natl. AFTRA" under his signature in the agreement. The 1963 contract to which Respondent became a party by successorship contained the provision that it had to be ratified in writing by the National Board of AFTRA evidenced by the signature of the national executive secretary of AFTRA. This provision is not in the April 18, 1966, agreement. The constitution of the Union in effect on April 18, 1966, provided that the Union "shall never take On February 2, 1968, Respondent terminated announcer Martin Gray from the staff of WDAF-Radio. On March 4, 1968, David Schnable, executive secretary of the Union, sent a letter to Nick Bolton, vice president and general manager of WDAF-Radio, in which he stated that Respond- ent laid off Gray and failed to recall him when it subsequent- ly increased its announcing staff, in disregard of Gray's seniority, and used a new method for the computation of Gray's accrued vacation that resulted in a substantial reduction in Gray's accrued vacation benefits. Schnabel stated that the layoff, failure to recall, and computation of accrued vacation, were illegal unilateral changes in wages, hours, and conditions of employment. He remarked that he was sure it was not coincidental that the changes occurred in connection with Gray's employment, as Respondent had long harbored animosity toward Gray because of his strong support of the Union. Schnabel demanded in the letter that Gray be immediately reinstated and reimbursed for losses in wages and for other damage he had suffered Bolton replied in a letter of March 22, 1968. He stated that Gray was terminated when the station discontinued the live all-night show for which he was announcer. Bolton then stated that no announcer had been hired since Gray was terminated. He admitted that there was an error of 2 days in the computation of Gray's accrued vacation, and that a check had been forwarded to Gray in payment for the additional 2 days. He denied Respondent had animos- ity toward Gray or anyone else for support of the Union or any similar organization, and concluded with the state- ment that the demand for Gray's reinstatement was denied. Schnabel in a letter dated May 14, 1968, questioned Bolton's statement that no announcer had been hired subse- quent to Gray's termination, and also questioned Respond- ent's revised computation of Gray's accrued vacation Schna- bel stated that an announcer by the name of Mark Foster was not with Respondent on February 2, but had been employed by Respondent since shortly after that date In a letter dated June 14, 1968, Bolton replied that Foster had been hired prior to February 2, and asserted that the revised computation of Gray's vacation time was accu- rate. In a letter dated July 3, 1968, Schnabel stated to Bolton that while Respondent was obligated to an annual earnings guarantee for artists who returned to work following the termination on April 18, 1966, of the strike against the "Station," he "must conclude" from Bolton's letter of July 1, 1968, that Respondent did not intend to voluntarily honor this obligation,' and "must conclude" from Bolton's letter of June 14, 1968, that Respondent did not intend to voluntarily comply with its obligation to adhere to seniori- ty in connection with Gray's termination and rehiring fol- lowing his termination. Schnabel then stated that it seemed apparent that the Union and Respondent would not be able "resolve grievances concerning these two matters and, therefore, AFRA does hereby submit said issues to arbitra- ' Bolton's letter of July 1, 1968, is not in evidence TAFT BROADCASTING COMPANY any action, which, in the opinion of the National Board is injurious to any other local or detrimental to the interests of the federation, nor shall this local enter into any contracts or understandings on behalf of its members or issue rules or regulations governing working conditions or minimum compensation without the approval of the National Board." There is no evidence that the National Board considered the April 18, 1966, agreement to be detrimental to the interests of any other AFTRA local or that the National Board issued any communication, oral or written, expressing disapproval of the April 18, 1966, agreement. There is no evidence that the members of the Union or the officials of the Union objected to the agreement because it was not ratified by the national board of AFTRA. James R. Willard, an attorney representing Respondent, who along with Bolton and Bob Worthington, manager of WDAF- TV, negotiated the April 18, 1966, agreement for Respond- ent, testified that Attorney Wolff was an attorney for Nation- al AFTRA, and had come to Kansas City to participate in the negotiations for the agreement. According to Willard, when Wolff affixed his signature to the agreement in his presence, he said "I am here for the local, this will have to be ratified, you understand that," and at that time wrote under his signature "Subject to approval of Natl. AFTRA." On August 2, 1968, the Union fileld the unfair labor practice charge on which the complaint in this proceeding is premised It alleged a violation of Section 8(a)(1), (3), and (5) of the Act by Respondent by unilaterally changing conditions of employment in connection with the termina- tion of Martin Gray, in refusing to compute and pay moneys due certain employees as guaranteed annual earn- ings, and in refusing to furnish the undersigned labor organi- zation with earnings information relating to annual earnings guarantees. In the course of the investigation of the charge, the Regional Office representatives acquired the evidence that on April 3, 1967, Attorney Willard stated in a letter to Schnabel that since a reasonable length of time had elapsed since the polished draft of the April 18, 1966, agreement was submitted on June 22, 1966, to Schnabel for signature on behalf of the Union without acceptance by him, the proposals contained therein were withdrawn, "and we are rescinding any understanding or agreement between the parties which may have been reached on April 18, 1966, as reflected in the draft of June 22, 1966." Schnabel testified at the hearing that he did not sign the June 22, 1966, draft because it varied from the April 18, 1966, agreement. Provisions of the June 1966 draft proposal vary from the April 18, 1966, agreement in some respects in regard to both substantive and procedural matters There were two remaining paragraphs in Willard's letter of April 3, 1967, on which the Respondent relies. They are as follows- For your information and the information of the affected employees, it is our intention to continue in effect the wages, hours and other conditions of employment presently in effect as fully set forth in the draft of June 22, 1966, and we will continue handling any grievances that may apse in accordance 207 with the procedure set forth therein. There can, of course, be no enforcement of the union secunty provi- sion We do not by this letter attempt or purport to withdraw recognition from your union as the exclusive bargaining representative of our employees in an appropriate unit, and we are prepared to negotiate with you in good faith in order to reach a satisfactory collective-bargaining contract. In the meantime, if we feel any change is desirable which may affect the present wages, hours, and working conditions of our employees, we will advise you in advance so that you will have the opportunity to negotiate on them before any change is made.' The Union and Respondent bargained to an impasse by December 4, 1965, when the 1963 contract andats extension expired. On December 4, 1965, the Respondent placed in effect unilaterally changed working conditions. The changes had been negotiated with the Union in the collective- bargaining negotiations that took place up to December 4. The unilateral action was the subject of a charge of an 8(a)(5) violation by the Union and a complaint issued by the General Counsel. The Board dismissed the complaint, holding that the parties had bargained to a legal impasse, and the Respondent had a legal right to place the changes in effect unilaterally. It stated that notice to the Union was not required as the Respondent had placed the Union on notice by its bargaining before the impasse to have the changes incorporated in a new contract, and nothing would be gained by further discussion of them.4 In the letter of April 3, 1967, Willard appears to have followed the theory of Respondent's unilateral action after the expiration of the 1963 contract and its extension on December 4, 1965, in his announcing that the refusal of the Union in the period from June 22, 1966, to April 3, 1967, to sign the June 22, 1966, polished draft of the April 18, 1966, agreement meant that the Union and the Respondent had bargained to an impasse on a new contract, and, therefore, it was withdrawing its June 22, 1966, contract proposal, and further stating that by unilateral action it would continue in effect the wages, hours, and other condi- tions of employment then in effect, except union security, and continue to handle grievances in accordance with the procedure in section I, article VII, of the June 22, 1966, polished draft of the April 18, 1966, agreement.' Apparently, ' I rejected G C Exhs 28 and 29 for the reason they were not relevant to the issues before me Upon reconsideration of these exhibits, I find them to be material and relevant, and vacate and set aside my ruling, and receive the exhibits in evidence ' TaftBroadcasting Co, WDAFAM-FM TV, 163 NLRB 475 ' There is an issue as to the meaning of the words that Respondent would continue to handle grievances in accordance with the procedure set forth in the June 22, 1966, draft Respondent contends Willard was referring to grievance procedure only and not arbitration procedure when he referred to procedure General Counsel and Union contend that the reference to procedure was a reference to the procedure for arbitration as well as the procedure for grieving in the draft, and the notice in the letter was notice that Respondent would continue to handle grievances as set out in the full procedure in section 1, article ViI, of the draft, which included arbitration Respondent presented evidence to show that prior to Schnabel's request of July 3, 1968, there was only one grievance, and that was under the 1963 agreement when a predecessor and not the Respondent was owner General Counsel offered 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Willard wrote the April 3, 1967, letter, he relied on Respondent's theory that the April 18, 1966, agreement was never in effect since it had not been ratified by the National Board of AFTRA, and, therefore, no contract was in effect when he wrote the letter.The June 22, 1966, draft contains the provision of the 1963 agreement requiring ratification by the National Board of AFTRA evidenced by the signature on the contract of the executive secretary of the International of AFTRA. As stated supra, this provi- sion is not in the April 18, 1966, agreement, although it was in the 1963 agreement. It is undisputed that the provisions of the April 18, 1966, agreement had been fol- lowed at least until the date of Willard's April 3, 1967, letter. At the hearing in this proceeding, Bolton testified that the wages, hours, working conditions, and other terms and conditions of employment in effect at the time of the hearing were those contained in the April 18, 1966, agreement. In a letter dated August 1, 1967, to one Edward Muscare, Schnabel stated that there was not in effect between the Union and Respondent a signed collective-bargaining agree- ment under which membership in AFTRA was required as a condition of employment. Schnabel, who is not a lawyer, apparently accepted Willard's notice in his April 3, 1967, letter that no contract existed between the Union and Respondent. On August 30, 1967, Respondent submitted a contract proposal to the Union It contained 10 specific proposals, and incorporated by reference the June 22, 1966, draft, to the extent it was not in conflict with the specific proposals. The Union and Respondent discussed the Respondent's proposal but no agreement resulted. No refer- ence was made to the provision in the June 22, 1966 draft covering grievance and arbitration procedure, although it was incorporated in the August 30, 1967, proposal. On June 26, 1967, Respondent had requested the Union to meet to discuss changes in the wages, hours, terms, and conditions in effect, presumably without a contract but contained in the June 22, 1966, draft proposal. On March 13, 1968, Schnabel submitted a proposed agreement to Respondent under which Respondent would continue contributions to the pension and welfare fund of the Union. The March 13, 1968, proposal never became an agreement. Schnabel again acted on his understanding from Willard's letter that no contract was in effect. two letters, dated October 14 and November 5, 1965, by Schnabel to Respondent (G C Exhs 22 and 26), and Bolton's reply letters, each dated November 9, 1965 (G C Exhs 23 and 27), to show that there were more than one grievance Schnabel, in his letters, set out certain rights which the Union considered certain employees had under the 1963 agreement Bolton's reply letters contained only the words, "Grievance denied" Schnabel's letters contained no clue of any kind that they were written grievances The word grievance was not used, and no reference was made to it in the language used in Schnabel's letters The contents of the letters do not constitute written grievances Bolton is not a lawyer The word grievance is a term in common usage as a synonym for complaint The word "grievances" was used in Bolton's letter as a word in common use meaning complaints, and not as a legal term contained in the 1963 contract by which the Respondent gave its reply to a grievance filed by the Union pursuant to the 1963 contract For these reasons, I rejected General Counsel's offer on objection of Respondent I find there is evidence of only one written grievance filed by the Union with the employer, and that was when a predecessor, and not Respondent, was the employer and a party to the 1963 agreement Respondent contends that Willard's statement in his April 3, 1967, letter, that Respondent would continue handling any grievances in accordance with the procedure in the June 22, 1966, draft, was notice that while it would continue to process a grievance by following the grievance procedure in section I, article VII, of the June 22 draft, it would no longer submit a grievance to arbitration. Respondent argues that by affirmatively disclosing that prior grievance procedure would be available, but remaining silent about availability of prior arbitration procedure, it was disclosing that it would not arbitrate, and that the arbitration procedure in the contracts and the June 22 proposal was not included in the procedure Willard stated in the April 3 letter that Respondent would follow. As stated supra, General Counsel and Union argue that this meaning cannot be gleaned from Willard's April 3 letter, but if it could, it discloses that Respondent was changing a term or condition of employment unilaterally which survived a contract, and which may not be changed unilaterally without violating Section 8(a)(5) of the Act. The grievance and arbitration procedure contained in section I, article VII, of the June 22, 1966, draft, is the same as the procedure for grievance and arbitration proceed- ings in section I, article VII, of the 1963 contract, which expired on September 30, 1965, and in paragraph 8 of the April 18, 1966, agreement, incorporated by reference from section I, article VII, of the 1963 contract The caption of the grievance procedure and arbitration procedure in all of the documents is "Grievance Procedure and Arbitra- tion." The opening paragraph of article VII states what may be grieved and arbitrated, and there follow four subsec- tions. Subsection (a) deals with the presentation by an employee of an oral grievance to the department head, and the attempt by the latter to dispose of the grievance. Subsection (b) deals with the reduction of the grievance to writing by the Union if not disposed of by the procedure in subsec- tion (a) and its presentation to Respondent by the Union, and the meeting of the Union and Respondent to attempt to dispose promptly of the grievance by agreement. Subsec- tion (c) provides that if the grievance is not settled by the procedure in subsection (b), it shall be considered closed unless the Union requests in writing that it be submitted to arbitration. Subsection (d) begins with the language that "Upon receipt of the notice of taking a grievance to arbitration, the parties will meet as soon as possible for the purpose of selecting an Arbitrator." There follows the procedure for selecting an arbitrator, for the arbitration hearing and for the disposition of other matters attendant on the arbitration. In this procedure reference is made to the delivery of the decision of the arbitrator in writing as soon as reasonably practicable "following the hearing or other submission of the grievance." I is clear from the contents of subsections (a), (b), (c), and (d) of article VII of section I of the June 22, 1963, draft, and the same provision in the 1963 and April 18, 1966, contracts, that the grievance is considered to be handled when it is processed by the arbitration procedure as well as by the grievance procedure and by the presentation of it directly by the employee to the department head. The language of the procedure in the provision for grievance TAFT BROADCASTING COMPANY 209 and arbitration in the contracts and the contract draft considered alone discloses that the language in the April 3, 1967, letter, that "we will continue handling any grievance that may arise in accordance with the procedure set forth therein" refers to the processing of the grievance under both the grievance and arbitration procedure. There is no reference to grievance procedure in the letter There is only a reference to "grievances" and the procedure for processing them The provision in the contracts and contract draft is a procedure for both grieving and arbitrating, and the grievance is handled by grieving it and arbitrating it. Willard testified that he intended to convey to the Union in his April 3 letter, that-only the grievance procedure in the grievance and arbitration provision would be followed. The Union never responded to the April 3, 1967, letter. As stated, the Union contends that it understood the letter to mean that the Respondent would continue to handle grievances in accordance with the complete procedure in the June 22, 1966, draft, and never understood it to mean that Respondent would not submit a grievance to arbitration. Willard testified he was aware of the issue in the case of Heart of America Meat Dealers Association, 168 NLRB No. 110, involving the employer's dropping of grievance and arbitration after the expiration of the contract, and intended to give notice as the employer did in that case However, the employer there notified the Union that the grievance and arbitartion provisions would be dropped. The employer's notice in that case is clear and unmistakable. In the letter of April 3, 1967, Willard, in view of the language he used and the language of the grievance and arbitration provision in the contracts and contract draft, could well be stating that Respondent would continue to handle grievances by grieving and arbitrating them. The use of the word "continue" further supports the position that he gave notice that the complete procedure for disposing of a grievance would be continued. On September 11, 1969, the General Counsel determined that the only litigable issue in the charge and in the results of the investigation of the charge was whether Respondent violated Section 8(a)(5) and (1) of the Act, in refusing on July 22, 1968, and thereafter, to arbitrate the issues of Martin Gray's termination and guaranteed earnings for artists who returned to work following the end of the strike ending April 18, 1966, on the ground that there was no duty to arbitrate because there was no executed agreement between it and the Union containing an agreement to arbitrate The complaint was issued on September 26, 1969, in which it was as alleged that Respondent violated Section 8(a)(1) and (5) of the Act on July 22, 1968, and thereafter in that it unilaterally and without first affording the Union the right to negotiate, rescinded and abrogated the existing procedures for arbitration by denying that the duty to arbitrate survived the expiration of a prior collective- bargaining agreement between the Respondent and the Union. General Counsel in determining the merits of the charge on September 11, 1969, assumed that there was, merit to the representation of Respondent in the course of the investigation of the charge that no contract was in effect between the Union and the Respondent when Respondent made the refusal of July 22, 1968. It also assumed that the wages, hours, working conditions , and other conditions of employment in effect on July 22, 1968, without a contract were those contained in the June 22, 1966, contract proposal, including the arbitration procedure which Respondent represented to the Regional Office it did not continue on and after April 3, 1967. The General Counsel made reference to the Board's decision in Bethlehem Steel Co . 136 NLRB 1500, enfd sub nom Industrial Union of Marine and Ship Building Workers of America v N L R B, 320 F.2d 615 (C.A. 3), cert denied 375 U.S. 984, in which it held that the grievance procedure was a mandatory subject of bargaining and survived the expiration of a contract and could not be changed unilaterally. To the General Counsel, the grievance procedure referred to in that case included the arbitration procedure as it was the fourth step of the grievance procedure ANALYSIS, FINDINGS, AND CONCLUSIONS OF LAW AND FACT Respondent admits that on July 22, 1968, it refused to arbitrate the termination of Gray and guaranteed annual earnings for strikers who returned to work after the strike that terminated on April 18, 1966, as requested by the Union, on July 3, 1968, and that its answer to the Union's request that they meet to select an arbitrator was that there was no executed document in effect between the Union and Respondent containing an agreement to arbitrate. It is undisputed that the 1963 contract, to which Respond- ent was bound as a successor to the owner who signed it, expired on September 30, 1965, and its extension terminat- ed on December 4, 1965 . Respondent contends that the April 18, 1966, agreement was never legally executed because it was not ratified by the National Board of AFTRA, and in any event was only a temporary agreement to be replaced by a permanent and binding contract. This permanent contract, according to Respondent, was to be the June 22, 1966, draft prepared by the Respondent. Schnabel refused to sign the June 22, 1966 , draft because it varied from the April 18, agreement. On April 3, 1967, Respondent withdrew its June 22, 1966, proposal , since the Union did not sign it in the interim between June 22, 1966, and April 3, 1967. It contends there was no contract on April 3, 1967. Respond- ent's position is that the duty to arbitrate in a contract does not survive the expiration of the contract . It is not a term or condition of employment which is a mandatory issue of bargaining that survives the expiration of the con- tract, and may not be changed unilaterally. Respondent argues that on April 3, 1967, after a legal impasse on the signing of the June 22, 1966, draft, and on the efforts of the Union and Respondent to negotiate a contract, it placed in effect by Willard's letter of that date, the wages, hours, working conditions, and other terms and conditions of employment then in effect, minus union security. According to Willard's letter, they were reflected in the June 22, 1966, contract proposal. It argues that by Willard's letter it also placed in effect the grievance procedure, in article VII, section I, of the. June 22, 1966, draft, but not the arbitration procedure of that article VII. Respondent further defends by saying that even if its purported action of scuttling the arbitration procedure 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on April 3, 1967, was a unilateral change in a term or condition of employment and illegal, this act occurred prior to 6 months of the filing and service of the charge in this proceeding, and is not litigable in the Board proceed- ing by reason of Section 10(b) of the Act. It may not be connected with its refusal of July 22, 1968. I find no deficiency in the April 18, 1966, agreement. It contains the wages, hours, working conditions, and other terms and conditions of employment that have been in effect since April 18, 1966 They were still in effect at the time of the hearing although this April 18, 1966, agreement expired on March 31, 1969. This termination date is contained in the agreement. This agreement contains the grievance and arbitration procedure that was in the 1963 agreement. I find that this agreement was in effect on July 3, 1968, when the Union requested Respondent to arbitrate the issues of Gray's discharge and guaranteed annual wages for the strikers, and Respondent's refusal on July 22, 1968, on the ground that no executed document was in effect containing an agreement to arbitrate. There is nothing in the contract to identify it as merely a temporary agreement to be replaced by another contract. I find no merit in the Respondent's position that the April 18, 1966, agreement was never effective because it was not validly executed in that it was not ratified by the national board of AFTRA evidenced by the signature on the agreement of the executive national secretary of AFTRA. There is a provision in the 1963 agreement that requires this ratification However, the April 18, 1966, agreement does not contain this provision. Respondent relies on a provision in the constitution of the Union providing that the Union may not take any action which in the opinion of the National Board is injurious to any other local, or detrimental to the interests of the federation, or enter into any contracts without the approval of the National Board. There is not a scintilla of evidence that the National Board of AFTRA had an opinion that the April 18, 1966, agreement was or is detrimental to the interests of any other local of AFTRA, or evidence that the agreement lacked the approval of the National Board of AFTRA. The April 18, 1966, agreement brought about the termina- tion of a long strike from December 12, 1965, to April 18, 1966, and provided wages, hours, working conditions, and other terms and conditions of employment that were in effect not only from April 18, 1966, to its termination on March 31, 1969, but were still in effect at the time of the hearing in November and December 1969. No objec- tion to the April 18, 1966, agreement was raised by either the rank-and-file members of the Union or the officials of the Union. The only objection or claim against its validity is raised by Respondent to escape any legal conse- quences that may flow from its refusal to arbitrate on July 22, 1968 It was satisfied to operate in accordance with its provisions to bring about the end of the strike, and to give effect to its provisions until April 3, 1967, and thereafter, although minus union security, and purport- edly without the mantle of a contract, and arbitration There was approval in fact. The constitutional provision relied on by Respondent to support its claim of invalidity of the April 18, 1966, agreement, is in the Union's constitu- tion and not in that of the International of AFTRA. The Union included it in its constitution unilaterally and could waive it unilaterally. There could be color of merit to Respondent's position if the provision on which it claims invalidity were in the constitution of the International, and the Union were chartered by the International with the condition of compliance with the International's consti- tution, including this particular provision. This is not the case here. The Union had authority to bind itself and its members through its representatives, and the Union's representative had apparent authority to act on behalf of the Union. Its rules for governing its affairs may not be used by Respondent to defeat a collective-bargaining contract, an integral part of the national labor policy expressed in the Act 6 The national labor policy expressed in the Act is the substitution of collective bargaining and voluntary settlement of grievances for industrial disputes to achieve peace between labor and management . Collective bargaining means negotia- tions between the employer and the majority representative for a contract, reaching agreement on a contract, reducing it to writing, signing it, complying with it, and changing it only by mutual agreement in accordance with Section 8(d) of the Act. The Board and courts, in enforcing the policy of the Act, favor collective-bargaining contracts, not their absence or termination by unilateral or subtle means.' The Respondent's withdrawal on April 3, 1967, of its more polished draft of June 22, 1966, of the April 18, 1966, agreement, did not have the effect of terminating the April 18, 1966, agreement. The April 18, 1966, agree- ment merely remained unpolished. The absence of any attempt by the Union to negotiate the withdrawal by Respondent of the June 22, 1966, draft did not result in the demise of the April 18, 1966, agreement. Schnabel, the Union's representative was misled by Willard's represen- tation in the letter, or disclosed by the letter, that the Apnl 18, 1966, agreement was no longer in effect.' A refusal to arbitrate in the presence of an obligation to do so under a contract is not a violation of Section 8(a)(5) of the Act The remedy, if any, is obtained under Section 301 of the Act.' Here, however, Respondent did more than refuse to arbitrate on July 22, 1968 It attempted to scuttle unilaterally the arbitration machinery in the April 18, 1966, contract. It did this by relying on action it purportedly took on April 3, 1967, on the premise that no contract was in effect, to drop arbitration as a means 6 See NL R B. v Wooster Division of Borg-Warner Corp, 356 U S 342, affg 113 NLRB 1288 ' Sections 1, 8(a)(5), 8(d), 201 and 301 of the Act, H J Heinz Co v NLRB, 311 U S 514, affg 10 NLRB 963, NLRB v Wooster Division of Borg-Warner, 356 US 342, N.LR B v Sands Mfg Co, 306 U S 332, 342, NL.R B v Highland Park Mfg Co, 110 F 2d 632 (C A 4), enfg 12 NLRB 1238, NLRB. v Lion Oil Co, 352 US 282, affg 109 NLRB 680, Milk, Ice Cream Drivers, and Dairy Employees, Local No 783, 147 NLRB 264 " See Duncan Foundry and Machine Works, Inc, 176 NLRB No 31 (TXD) Textron Puerto Rico, 107 NLRB 583, Sucesion Mario Mercado E Hyos, 161 NLRB 696, Central Illinois Public Service Co, 139 NLRB 1407, 1419, affd 324 F 2d 916 (CA 7), Hortex Mfg Co, 147 NLRB 1151 (1964), affd 343 F 2d 329 (C A D C) TAFT BROADCASTING COMPANY 211 of handling grievances. As I have found, the April 18, 1966, agreement was in effect until March 31, 1969.`° The Procedure for handling grievances in that agreement was for arbitrating as well as grieving. By relying on the action it purportedly took on April 3, 1967, to support its position that no executed document was in effect contain- ing an agreement to arbitrate, Respondent attempted to change unilaterally the procedure in the then existing con- tract for handling or processing grievances. Local No. 611, International Chemical Workers Union, AFL-CIO, and Purex Corporation Limited, 123 NLRB 1507, 1508." Respondent then argues that its action on April 3, 1967, occurred more than 6 months prior to the filing and service of the August 2, 1968, charge, and the Board is estopped from considering it in this proceeding under the Supreme Court'sdecision in Local Lodge 1424, LA M [Bryan Mfg Co ] v N L R B, 362 U S 411 There the employer signed a contract with a minority union earlier than the 6 months prior to the filing and service of the charge. This earlier action of employer could not be considered as part of the conduct alleged to be a violation. This case, however, is inapposite. I find that when Willard stated in his April 3, 1967, letter that Respondent would continue to handle grievances in accordance with the procedure in section I, article VII, of the June 22, 1966, draft, he stated that Respondent would continue to arbitrate grievances as well as grieve them. The procedure in the draft for handling grievances provid- ed for oral presentation by the employees directly to the department head; then reducing them to writing by the Union, if not settled, and its presenting them to Respondent, followed by their meeting and consideration of the grievances in an attempt to settle them by agreement, and if unsettled, to submit them to arbitration upon request of the Union and the disposition of them by an award of an arbitrator selected by the Union and Respondent. This award would be final The procedure in section I, article VII, of the June 22, 1966, draft, is identical with the procedure for grieving and arbitrating in paragraph 8 of the April 16, 1966, agreement, and section I, article VII, of the 1963 expired contract. Willard did not state in his letter that the grievance procedure in the contract proposal for handling grievances would be followed in handling grievances He stated that the procedure in the contract proposal for handling griev- ances would be followed. This procedure is a procedure for grieving as well as a procedure for arbitrating, and 10 The evidence of what Respondent did on April 3, 1967, what the Union understood it did, and discussion and analysis of what was allegedly done, and understood to be done, are set out supra. It is not necessary to repeat it in detail here " In this case, the Board relied on Textile Workers Union v Lincoln Mills, 353 U S 448, 453, and NLRB v Knight Morley Corp, 251 F 2d 753, 759-760 (C A 6), enfg 116 NLRB 140, cert denied 357 U S 927, in which was held that the expiration of the collective-bargaining agreement did not relieve the employer-respondent of its contractual duty to arbitrate grievances that arose during the contract's existence The Board held in Knight Morley that upon the expiration of the contract the unsettled grievances returned to the general area of bargaining The Sixth Circuit disagreed In Local No 611, International Chemical Workers Union, supra, the Board stated it would follow the Sixth Circuit's decision in Knight Morley is the procedure in effect for handling grievances under the April 18, 1966, contract, and the 1963 expired contract. The Union would understand Willard's language to have this meaning under any reasonable consideration and under- standing of it. It is possible that Willard intended to limit the handling of grievances to the procedure for grieving only But if he did, he did not so state in his letter of April 3, 1967, nor did he give notice to the Union of such intention by his letter. The most that could be helpful to Respondent's position is a finding that there is an ambiguity in Willard's statement in the April 3 letter. But the national labor policy expressed in the Act favors arbitration, and presumptions favor the retention of it rather than the discontinuance of it 'Z Termina- tion of it should have been expressed in clear and unmistaka- ble language" I do not find any merit in Respondent's position on this ground. I credit the Union's position that it did not understand Willard's letter to state that Respond- ent would no longer submit a grievance to arbitration or cease using the arbitration machinery to handle griev- ances, but understood it to mean it would continue to arbitrate as well as grieve. After evaluating Willard's conclu- sionary testimony that he intended by the letter to state a position of Respondent that it would handle grievances only by grieving them, and not by arbitrating them, against the language of the letter and the procedures for handling grievances in the June 22, 1966, draft, the April 18, 1966, agreement, and the expired 1963 contract, I find the letter to state that Respondent would continue to handle griev- ances by grieving and arbitrating them. Respondent, by relying on action it claims it took on April 13, 1967, but did not take, to escape the consequences of what it did on July 22, 1968, took this action on July 22, 1968 This action is part of its refusal of July 22, 1968. The evidence of it is admissible, and shows that Respondent attempted to change on July 22, 1968, unilaterally, the grievance and arbitration procedure in the April 18, 1966, contract, which was effective until March 31, 1969, by discarding the arbitration machinery. The duty to arbitrate in accordance with the procedure in this contract survives as the issues to be arbitrated arose when it was in effect." I conclude and find that Respondent's July 22, 1968, conduct in refusing to arbitrate because no executed docu- ment was in effect between it and the Union containing an agreement to arbitrate is a violation of Section 8(a)(5) and (1) of the Act. 15 In view of my finding that the April 18, 1966, contract was in effect when the refusal to arbitrate was made, " Even if it were assumed that Willard was referring only to grievance procedure then there is the question whether he was referring in any event to arbitration in view of the thesis that arbitration is the fourth step in the grievance procedure " Sec 201 of the Act, United Steel Workers v Warrior & Gulf Navigation Co, 363 US 574, John Wiley & Sons, Inc v Livingston, 376 U S 543 , The Timken Roller Bearing Co , 138 NLRB 15, enfd 325 F 2d 746 (C A 6), Perkins Machine Co , 141 NLRB 98, enfd 326 F 2d 488 (C A 1) " Textile Workers Union v Lincoln Mills, 353 U S 448, 453, Local No 611, International Chemical Workers, supra " Local No 611, International Chemical Workers Union , AFL-CIO andPurex Corporation Limited, 123 NLRB 1507, 1508 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and when the issues to be arbitrated arose, it is not necessary for me to decide the legal issue of whether the duty to arbitrate survives the expiration of a prior contract with respect to issues that arise after the expiration or other demise of the contract. iV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I shall recommend that Respondent be ordered to cease and desist from engaging in the conduct found violative of Section 8(a)(5) and (1) of the Act, and to take certain action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is the collective-bargaining representative of a unit of Respondent's employees at its facilities in Kansas City, Missouri, consisting of nonsupervisory radio and television announcers, newscasters, sportscasters, floor managers, director-coordinators, and all other nonsuperviso- ry talent or artists, excluding the news director, assistant news director, farm director, production manager, and all other employees and supervisors as defined in the Act. 4. Respondent has refused to bargain with the Union since July 22, 1968, in violation of Section 8(a)(5) and (1) of the Act by refusing to arbitrate the termination of announcer Martin Gray and the guaranteed annual earn- ings of employees who returned to work after the strike ended on April 18, 1966; for the reason there was no executed document in effect between it and the Union containing an agreement to arbitrate, because of unilateral action it took on July 22, 1968, to eliminate the arbitration procedure in the April 18, 1966, agreement between Respondent and the Union. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in the case, I recommend that the Board enter an order requiring Respondent, its officers, agents, successors, and assigns, to- 1. Cease and desist from refusing to bargain collectively with the Union by: (a) Refusing to arbitrate the termination of announcer Martin Gray and guaranteed annual earnings for strikers who returned to work after the strike ended on April 18, 1966, in accordance with the procedure in the April 18, 1966, agreement, between Respondent and the Union, for handling grievances for the reason there was no executed document in effect on July 22, 1968, and thereafter between the Respondent and the Union containing an agreement to arbitrate because of unilateral action it took on July 22, 1968, to eliminate the procedure for arbitration in the April 18, 1966, agreement. (b) Attempting to eliminate a duty it has to arbitrate under a contract by taking action unilaterally to eliminate the procedure for arbitration from the contract. 2. Take the following affirmative action (a) Post in conspicuous places in its radio and broadcasting facilities in Kansas City, Missouri, including all places where notices are customarily posted, copies of the attached notice marked "Appendix A "16 Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days there- after in such conspicuous places. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith." IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision the Respondent notifies the Regional Director, in writing, that it will comply with the foregoing recommen- dations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 16 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, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of said 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 In the event that the Baord's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " " in the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " TAFT BROADCASTING COMPANY APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with American Federation of Television and Radio Artists, AFL- CIO, Kansas City Local, the collective-bargaining rep- resentative of our employees, by refusing to arbitrate the termination of announcer Martin Gray and guaran- teed annual earnings of employees who returned to work after the strike which ended on Apnl 18, 1966, for the reason there was no executed document in effect between us and the Union containing an agree- ment to arbitrate because of unilateral action we took on July 22, 1968, to eliminate the arbitration procedure in the agreement effective from April 18, 1966, to March 31, 1969, between us and the Union. WE WILL NOT refuse to bargain with the above Union by attempting to eliminate a duty to arbitrate 213 under a contract we may have with it by taking action unilaterally to eliminate the procedure for arbitration from the contract. Dated By TAFT BROADCASTING COMPANY WDAF AM-FM- TV (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other matenal. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas''City, Mis- souri 64106, Telephone 816-374-5181