WAPI-TV-AM-FM

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