Malrite of Wisconsin, Inc.

MALRITE OF WISCONSIN, INC. Malrite of Wisconsin, Inc. and Wisconsin Broadcast Engineers, Local # 715, International Brotherhood of Electrical Workers. Case 30-CA-1182 July 18, 1972 DECISION AND ORDER On June 26, 1970, Trial Examiner Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The National Labor Relations Board has consid- ered the record and the Trial Examiner's Decision in light of the exceptions and brief and for the reasons set forth below has decided to dismiss the complaint in its entirety. The Trial Examiner found that by unilaterally modifying both the terms of its collective-bargaining agreement with the Union and its method of broadcasting with respect to the use of engineer- announcers, the Respondent violated Section 8(a)(5) and 8(d) of the Act. The collective-bargaining agreement executed by Respondent's predecessor and the Union in 1967, and assumed by the Respondent when it purchased the station on May 1, 1968, authorized the employment of only one engineer-announcer on the late night shift and prior to the change in ownership only one individual was employed in that capacity. In December 1968, Respondent began - using engineer-announcers, or "combo" operators, on the day and evening pro- grams.' Before employment or transfer to the "combo" classification, the Respondent secured the written consent of each individual prior to assigning him to work as an engineer-announcer, but did not apprise the Union of this fact. The "combo" operators were paid additional compensation; the change apparently did not result in the layoff of any engineer. Immediately upon learning of this change in operations, the Union protested that it constituted a violation of the collective-bargaining agreement. Respondent's coun- sel denied that any breach of contract was involved and suggested that, if the Union disagreed with Respondent's position, it could take the matter to arbitration. On December 24, 1968, the Union requested that the dispute be submitted to arbitra- tion. The contract provided for binding arbitration by a three-member panel consisting of a union designee, a company designee, and a third member agreed upon by the two parties. After a long delay occasioned by disputes over the selection of the third member of the panel and the 1 In December 1969, one employee who had been hired as an engineer was assigned to the combined operation 241 fixing of a hearing date, the panel met on October 23, 1969, and heard testimony of the Union and the Respondent on the issues presented by the Union's grievance. On January 10, 1970, the panel issued its decision and award in which it held by a 2 to 1 vote that Respondent had violated the collective-bargain- ing agreement by assigning "combo" operators to work on the day and evening programs. By another 2 to 1 vote the panel held that the Union had not sustained its claim that the grievants were entitled to backpay. In each case the impartial member of the panel was part of the majority. On or about February 2, 1970, the Union requested that Respondent comply with the arbitration award by ceasing the combo operation and reinstituting the separate engineer and announcer classifications. Respon- dent's general manager replied that the Respondent had the arbitration decision under study. Since that time the Respondent has continued the combo operation. The Union filed its initial change herein on February 3, 1970, alleging that Respondent violated Section 8(a)(5) of the Act by unilaterally changing terms and conditions of employment. In Spielberg Manufacturing Company, 112 NLRB 1080, cited by the Trial Examiner, the Board established certain standards to ,e met before it would give full weight to arbitral awards in any subsequent unfair labor practice proceeding. In that case the Board held that where "the proceedings appear to be fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act," the Board would defer to arbitration. The Trial Examiner found that the arbitral award herein met all of the foregoing standards laid down in Spielberg and that the arbitration panel was correct in its conclusion that Respondent's action with respect to the combo operators constituted a contract violation. He nevertheless concluded that Spielberg did not apply to the instant case because of Respondent's failure to comply with the arbitration award and recommended a bargaining order. We agree with the Trial Examiner that the arbitral award herein meets all of Spielberg's standards, but given the determination that in all respects the award is consonant with the purposes and policies of the Act, we cannot agree that noncompliance with the award should be a matter for the Board's concern. In its formulation of the Spielberg standards the Board did not contemplate its assumption of the functions of a tribunal for the determination of arbitration appeals and the enforcement of arbitra- tion awards. If the Board's deference to arbitration is to be meaningful it must encompass the entire 198 NLRB No. 3 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arbitration process, including the enforcement of arbitral awards. It appears that the desirable objec- tive of encouraging the voluntary settlement of labor disputes through the arbitration process will best be served by requiring that parties to a dispute, after electing to resort to arbitration, proceed to the usual conclusion of that process judicial enforcement -rather than permitting them to invoke the inter- vention of the Board. In our opinion the dissent misconstrues Spielberg by distinguishing between those arbitration awards ruling in the grievant's favor by finding a contract breach and those ruling against the grievant. Al- though we may not have previously deferred to an award favoring the grievant, this is because, so far as we can determine, such a case had not heretofore been presented to us. Indeed, the absence of such cases demonstrates the remedial effectiveness of arbitration awards, since a person who has had his grievance remedied is not likely to file an unfair labor practice charge concerning that grievance. Such would have been the case here if the Employer had readily complied with the arbitration award. In addition, we fail to understand our dissenting colleagues' claim that there is no adequate remedy at law. The arbitration panel "sustained on the merits" the Union's position that "the Station cannot employ combo operators other than one Engineer on FM between 10:00 PM and 6:00 AM." Judicial enforce- ment would result in an order, backed by the full powers of the Federal judiciary, that the Employer comply with the award, and the only way the Employer can comply is to refrain from employing combo operators, except as permitted by the arbitra- tion decision. Thus, enforcement would provide the Union with full remedial relief. Nor is there any apparent barrier to court enforcement, since "so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 599.2 Indeed, direct court enforcement of arbitrator's awards can provide more prompt and effective action than a procedure which requires a second trial before one of our Trial Examiners, an appeal to this Board, and only then a court proceeding which can lead to an enforceable decree. Surely immediate access to the court is to be preferred over this long , We recognize that court decrees enforcing arbitration awards are limited by the general rules applicable to equitable decrees , particularly that they be framed so that the parties will know what the courts intend to require and what they intend to forbid Thus, in International Longshore- men's Association, Local 1291 v. Philadelphia Marine Trade Association, 389 US 64, cited by the dissent , the Supreme Court refused to uphold a contempt citation for the union 's failure to comply with a decree enforcing an arbitration award because the decree , "even when illuminated by administrative route, and this is the course we are here encouraging these and future disputants to follow. Accordingly, we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS FANNING AND JENKINS, dissenting: Since 1947 the Union has represented a unit of technicians and engineers at radio stations WMIL and WMIL-FM in Milwaukee, Wisconsin. Respon- dent purchased these stations in May 1968, and assumed the then existing contract between the Union and Respondent's predecessor. That agree- ment provided, in relevant part, that only engineers would perform unit work, excepting only that an engineer would be allowed to act as a combination engineer-announcer between the hours of 10 p.m. and 6:30 a.m. In December 1968, the Respondent began to combine the duties of engineers and announcers not only during the excepted shift, but on the regular day and evening programs as well. In each instance the Respondent secured the written consent of the individual employee, but did not secure the Union's consent to this change in operations. The Union protested and, pursuant to the parties' provision for binding arbitration of unre- solved grievances, the matter was submitted to an arbitration panel. In January 1970, the panel ruled that the Company had violated the collective-bar- gaining agreement by assigning combination opera- tors to the day and evening programs. However, the panel also ruled that the Union had not sustained the grievants' claim for backpay. Accordingly, no judi- cial proceeding to enforce the panel's award could result in monetary damages as a consequence of Respondent's violation of its contract. The contract expired on March 31, 1970. The Respondent took no action to rectify its unilateral conduct found to be contrary to its contractual commitment. On Febru- ary 3, 1970, the Union filed the charge in the instant case. From the above, several facts are clear. First, the question of contract interpretation has already been decided by a fair and objective arbitration panel. Second, accepting the verdict of the panel, Respon- dent has engaged in a unilateral change in conditions of employment, contrary to its bargaining obligations subsequent events, left entirely unclear what it demanded " (389 U S at 74 ) In that case the arbitration award neither spelled out nor implied what the union was required to do, and the union's attempt, at both the enforcement and contempt hearings, to gain clarification of the decree failed Thus, neither that case nor our colleagues' dissent in any way undermines the holding of Enterprise Wheel and Car Corp, which itself upheld the district court's enforcement of an arbitration award MALRITE OF WISCONSIN, INC. under Section 8(a)(5) and 8(d) of the Act. In view of the failure of the arbitration panel to award damages, a remedy at law is not available to the Union except in terms of an unfair labor practice. The Trial Examiner found that the standards established in Spielberg had not been met because Respondent made no effort to comply with the arbitration award or accord it any finality. Therefore, while agreeing with the panel that Respondent's action constituted a violation of the collective-bar- gaining agreement, the Trial Examiner analyzed the case de novo and concluded : ( 1) Respondent had violated Section 8(a)(5) and ( 1) by engaging in individual bargaining with employees selected for the combo operation; and (2) Respondent had violated Section 8(a)(5) and ( 1) and 8(d)(1) of the Act by unilaterally modifying its existing contract without bargaining with the certified bargaining representa- tive or complying with the provisions of the latter section. We agree with the Trial Examiner's findings of fact and conclusions of law. We would adopt the remedy recommended by him to undo, to the extent possible, the Respondent's unfair labor practices. In our opinion, the majority's contrary decision is an extension of its own Collyer doctrine. Nothing in Spielberg suggests that the Board contemplated leaving the parties where it found them if, on the basis of the arbitrators' findings of fact, it was clear that an unfair labor practice had been committed. Spielberg was a case where the Board, granting "recognition" to the arbitrators' award, found that Respondent had not violated the Act and, on that basis only, dismissed the complaint. In the instant case it is perfectly clear, whether Collyer or preexisting law is followed, that Respon- dent is in violation of this statute. Yet the majority refuses to provide even the modest remedy proposed by the Trial Examiner. Instead, the majority con- cludes that Respondent's noncompliance with the award is not "a matter for the Board's concern." We hold, to the contrary, that an unfair labor practice, established by a preponderance of the evidence, is indeed a matter for the Board's serious concern. Here the nature of Respondent's unlawful conduct goes beyond mere questions of contract law. Indeed, the charge that Respondent violated the Act by engaging in individual bargaining is dehors the contract and was not even considered by the arbitration panel. Yet, historically, bargaining with individual employees instead of their chosen repre- sentative has been considered an unfair labor practice going to the heart of the statute. It is unrealistic to suggest that "judicial enforcement" will provide the Union with a remedy for these unfair labor practices. Respondent's breach of contract and 243 statutory violations did not result in damages measured in financial terms. Rather , the Union's real damages consist of loss of prestige and bargaining power. To that extent its ability to represent Respondent's employees has been seriously affected. But no agency, other than the Board , has been charged with protecting a Union 's position as the certified representative of a unit of employees or remedying an employer's unlawful infringement of that status. It can hardly be supposed that a court, without the Board's intervention, would direct the Respondent to bargain in good faith with the Union or order reinstatement of the separate classifications of engineer and announcer, as recommended by the Trial Examiner. This case, presumably, is another "developmental step" in the majority's Collyer doctrine . As such, it is illustrative of a basic flaw in that policy. The majority appears to be willing to assume that there is little, if any, difference in the enforcement of a contract and the prevention of unfair labor practices involving contract interpretation . The forum for one is the court, with or without arbitration . The forum for the other is the Board exclusively , enforcing its orders through the courts. In the one instance damages are measured in material terms within the framework of commercial contract law. Before the Board, however, the question of damages is consid- ered in the context of employee rights and the responsibilities imposed on unions and employers under this statute. While the Board in an appropriate case may order the payment of a sum of money to the victim of an unfair labor practice, its remedies are primarily designed to prevent the future commis- sion of the same or like or related conduct . To this end Congress granted the Board the widest possible discretion . In effectuating the policies of the Act the Board has issued cease-and-desist orders to prevent conduct which even tends to affect statutory rights. As the Supreme Court has pointed out , there is no necessary inconsistency between arbitration leading to judicial enforcement and a Board proceeding enforced in the same manner . Certainly, that is true in the instant case where the Board can properly accept the arbitration panel's interpretation of the contract. Prior to the majority's Collyer doctrine redress was available to unions and employers for contract violations through arbitration and court proceedings or, if the Board's General Counsel issued a complaint, through the Board . Since Collyer, redress through the Board has been curtailed. The instant case demonstrates the extent of that curtail- ment . For here the majority holds that there can be no redress at the Board despite a proven unfair labor practice and the fact that there is otherwise no adequate remedy at law. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority contends, however, that judicial enforcement will provide the Union with "full remedial relief." In so doing the majority character- izes the arbitration panel's conclusion that the Union was correct in its interpretation of the contract as an "award" capable of specific performance through a court. In fact, the panel specifically refused to award backpay to the grievants, as noted above, despite its finding of contract violation. Contrary to the majority's optimistic view of the law, it has been settled, at least since 1967, that an arbitrator's favorable interpretation of a contract does not provide the winning party with an "operative command" capable of judicial enforcement. The Supreme Court regarded such an award as an "abstract conclusion of law" that could not be enforced. International Longshoremen's Association, Local 1291 v. Philadephia Marine Trade Association, 389 U.S. 64, reversing sub nom. Philadephia Marine Trade Association v. International Longshoremen's Association, Local 1291, 368 F.2d 932. We dissented in Collyer and subsequent cases and we dissent here because we believe that doctrine is unwise, mischievous, and destructive of important employee rights. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: This case was heard on April 7, 1970, in Milwaukee, Wisconsin. The com- plaint,' presents questions as to whether the Respondent violated Section 8(a)(5) and (1) and 8(d) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing the General Counsel and the Respondent were represented by Counsel and the charging Union was represented by its president. All parties were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, and to file briefs. Briefs were submitted by the General Counsel on May 11, and by the Respondent on May 18, 1970. On May 14, 1970, the Charging Party submitted a letter expressing substantial accord with the views presented in the General Counsel's brief. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: 1 The complaint, issued on March 6, 1970, was based on a charge filed on February 3, 1970, and a first amended charge filed on March 4, 1970 2 A practice described in the record as simulcasting. 3 This unit was more completely defined as made up of "all broadcast technicians and engineers engaged in the installation, operation and maintenance of the Employer's technical facilities for radio broadcasting FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, is engaged in the operation of radio stations WMIL and WMIL-FM at studios and broadcast facilities located in the metropolitan area of Milwaukee, Wisconsin. During the year prior to issuance of the complaint, a representative period, the Respondent, in the conduct of its business, had a gross income in excess of $100,000 and, during the same period, performed services valued in excess of $50,000 for customers located outside the State of Wisconsin. Upon the foregoing findings, the Respondent concedes, and the Trial Examiner finds, that Malrite of Wisconsin, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Wisconsin Broadcast Engineers, Local #715, Interna- tional Brotherhood of Electrical Workers, herein called Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Station WMIL, an AM station, operates from 6 a.m. to sunset. Station WMIL-FM operates 24 hours a day (with the exception of a short period on Sunday mornings). The programming at the two stations is identical when both are broadcasting.2 Since 1947 the Union and the Respondent have been parties to a series of collective-bargaining agreements for a unit of broadcast technicians and engineers .3 The Union was last certified in 1967 as the bargaining agent for this unit. A bargaining agreement executed by the parties on October 12, 1967, remained in effect until March 31, 1970. This contract, of course, applied only to the technicians and engineers in the unit . The Respondent's announcers have never been represented by a labor organization. On May 1, 1968, the Respondent purchased the assets of radio stations WMIL and WMIL-FM from Cream City Broadcasting Company (herein Cream City), and assumed the collective-bargaining agreement then in effect between Cream City and the Union. By its terms this agreement terminated on March 31, 1970. President Milton Maltz testified that prior to the acquisition by the Respondents, WMIL and WMIL-FM had been operated at a loss as ethnic, foreign language, religious type programmed stations. According to Maltz, under practices followed by the previous owner, a foreign language announcer could be a grocer or owner of a dry- cleaning shop. Such an individual could perform the functions of an announcer because of his proficiency in the foreign language, but while he was on duty, an engineer and recording at stations WMIL and WMIL-FM in Milwaukee, Wisconsin, but excluding the bookkeeper, salesmen, traffic manager, continuity manager, program director, chief engineer, office clericals, guards and supervisors as defined in the Act." It was conceded by all the parties, and the Trial Examiner finds, that the aforesaid grouping of employees is an appropriate unit for collective-bargaining purposes MALRITE OF WISCONSIN, INC. would have to be present to operate the control board, play the records, and handle all technical aspects of the broadcast. Maltz testified that when Malrite took over, the new owners determined upon a change in concept whereby the station would be operated pursuant to what is known in the industry as a modern country-western format. Among the various changes that this new policy required was the combination of the duties of engineer and announcer in one position, known as "combo" operator. Before the change in ownership there had been one combo operator on duty at the FM station between the hours of 10 p.m. and 6 a.m.4 In December 1968, the new management began using combo operators on the day and evening programs. In each instance, the Respondent secured a written consent from the individual to indicate his willingness to engage in such work. The Respondent did not, however, at the same time apprise the Union of what it was doing. President Maltz testified that, initially, two engineers who had first-class licenses,5 Robert Overgaard and James Bernauer, assumed announcing duties. This was in mid- December 1968. Later, Morgan Hill and Robert Schwartz, both of whom had been hired as announcers, but who also had engineering licenses, were assigned to combo opera- tions. Toward the end of December 1969, Edward Couzens, who had been hired the preceding May as an engineer,6 likewise began combo operations. Couzens received an extra $10 a week when he began announcing in conjunction with his engineering duties. According to William H. Luchtmin, the general manager, after Hill began combo work his pay was raised $20 per week. Further, according to President Maltz, adoption of the combo operations did not cause the layoff of any engineers. Maltz' testimony in this respect was credible and undenied. Whereas the Respondent secured a written consent from each individual prior to assigning him to work as an engineer-announcer,7 it never sought any such concurrence from the Union. President Maltz testified, and his testimony in this regard was credible and not contradicted, that he endeavored to discuss the overall problem with James Wilkerson, president of the Union, shortly after Mairite acquired the station. According to Maltz, in June or July 1968, he had a conversation with Wilkerson wherein he told the union official that the Company wanted to adopt the engineer-announcer arrangement. Maltz testified that Wilkerson advised him that the Union was unalterably opposed to such action and that nothing could be done about the matter until the current contract expired. Maltz testified that he then asked his legal counsel for an opinion as to whether the collective-bargaining agreement would permit the Company to put into effect a 4 The collective-bargaining agreement, executed by the Union and Respondent in 1967, authorized the use of one such engineer-announcer on the late night shift 5 These were Radio Telephone First Class Licenses issued by the Federal Communications Commission 6 His classification was that of temporary full-time engineer r There was one exception This was Wayne Herder, who began working as a combo operator at the FM station from I a in to 6 a in in August 1969 Luchtmin testified that the Company did not secure an individual letter of consent from Herder because of the contractual provision which permitted 245 combo operation and that he received an affirmative response. Immediately after the Respondent initiated the combo operation in December 1968, the Union launched a protest. At the time, Howard Weiss was the general manager of the station.8 Wilkerson testified that on about December 10, he learned from the union steward that that afternoon the Respondent had assigned members of the unit to work as engineer-announcers. The next day he telephoned Weiss to protest that this action constituted a violation of the collective-bargaining agreement. Accord- ing to Wilkerson, Weiss denied that any breach of contract had occurred and insisted that the use of combo operators was in conformity with the contract. That same day Wilkerson wrote Weiss a letter, in which he set forth the Union's opposition to the use of engineer-announcer positions at the station and restated his reasons for concluding that such a move violated the contract. On December 23, Wilkerson and David Janzer, the union steward, met with Weiss and Attorney James C. Mallien, counsel for the Respondent. Wilkerson gave the only testimony as to this meeting. It was credible and uncontradicted. According to Wilkerson, after the Union renewed its protest about the combo operation on the ground that it violated the collective-bargaining agreement, Attorney Mallien disagreed and denied that any breach of contract was involved. Wilkerson testified that the Respon- dent's counsel further stated that out of economic necessity the Company would continue combo operations and suggested that perhaps the parties should negotiate a contractual amendment to authorize the practice. Accord- ing to Wilkerson, he told the Respondent that the Union could not accept this last suggestion and that for the balance of the term of the current agreement the Union would demand strict adherence to its provisions. Wilkerson testified that Attorney Mallien told him that if the Union disagreed with the Respondent's position it could ask for arbitration and that as to any future bargaining the Company would not sign any new contract which did not have a clause that would allow combo operations. On December 24, 1968, Wilkerson wrote to Weiss and requested that the dispute go to arbitration. The provisions in the contract on arbitration provided for a three-member panel, one member to represent the Union, one the Employer, and a third member to be chosen by the other two, or, in the event they were unable to agree, by the Director of the Federal Mediation and Conciliation Service. The Union designated Wilkerson to act as the union-appointed member of the panel and the Respondent designated James A. Urdan as the employer-appointed member. Numerous delays arose, however, in the selection of the third member. Professor Ronald W. Haughton was finally chosen as the impartial member. Thereafter, further the Respondent to use the combo arrangement on that shift Individual written consents were secured by Luchtmin from Morgan A Hill, on November 22, 1969, from Edward J Couzens, on November 24, 1969, and from Robert D. Schwarz, on December 5, 1969 Both Hill and Couzens began combo operations at the station in the latter part of December 1969, and were still employees at the time of the hearing Schwarz worked as a combo operator for about a month and a half and then left the Respondent's employ 8 William Luchtmm did not become the general manager until January 1, 1969 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delays arose in fixing a date for the hearing. Finally, on October 23, 1969, the panel met and heard the testimony of the Union and the Respondent on the questions presented by the Union's grievance. On January 10, the panel issued its decision and award. By a two-to-one vote it held that the Company had violated the collective-bargaining agreement by assigning combo operators to work on the day and evening programs .9 At the same time, and also by a two-to-one vote, a majority of the panel held that no engineers had been displaced by the combo operation and that the Union had not sustained its claim that the grievants were entitled to backpay.lo On about February 2, 1970, Wilkerson requested that General Manager Luchtmin comply with the arbitration award by ceasing the combo operation and reinstituting the separate engineer and announcer jobs. Luchtmin's response was that the Respondent had the decision under study. Since that time the Respondent has continued in effect the combo operation. On about April 6, 1970, the parties held a meeting to discuss the terms of a new contract.[[ The combo issue was discussed again but no agreement was reached. Wilkerson testified that General Manager Luchtmin stated that the Company would proceed to negotiate if the Union chose to represent the engineers who were not doing any announc- ing or combo work, but that if the Union wanted to represent the combo men, there would have to be an election before the Company would negotiate a contract. Luchtmin conceded that he told Wilkerson that he felt there should be an election because the Company had serious doubts about the Union's majonty,12 but he testified that he did not recall having put any stipulation on the Respondent's bargaining. Mr. Luchtmin was a general- ly credible witness who gave an impression of frankness and honesty throughout the course of his appearance on the stand. The same characterization applied equally to the manner in which Mr. Wilkerson testified. In connection with this last matter, however, it is the conclusion of the Trial Examiner that the testimony of Wilkerson more accurately related what transpired at the meeting on April 6. B. The Alleged Violations of the Act; Contentions of the Parties; Conclusions in Connection Therewith 1. The issue as to arbitration Preliminarily, a decision must be made as to whether the arbitration proceeding disposed of the issue presented by the complaint in this case. In his brief, the General Counsel contends that because the award provided no effective remedy it should not serve as a bar to the Board's adjudicating the unfair labor practice charge. Of course, the Board need not be bound by an arbitration award. Section 10(a) of the Act. N.L.R.B. v. Disney Productions, 146 F.2d 44, 47-48 (C.A. 9), cert. denied 324 U.S. 877. However, in the exercise of its discretion the Board may defer to the decision of an arbitrator. Spielberg Mfg. Co., 112 NLRB 1080. In the latter case the Board established certain standards to be met before it would give full weight to arbitral awards in any subsequent unfair labor practice proceedings. In setting forth its position on this issue the Board said: ... In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. In these circumstances we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will be served by our recognition of the arbitrator's award. [Ibid, at 1082.1 In this case, the arbitration proceedings appear to have been fair and regular and, notwithstanding a suggestion to the contrary which appears in the General Counsel's brief, the decision of the panel was not repugnant to the purposes and policies of the Act. Moreover, the collective-bargain- ing agreement, pursuant to which the panel was estab- lished, clearly stipulated that the award would be final and binding. However, as found above, subsequent to the award the Respondent made no effort to comply with it. The Respondent conceded that it did not change its operations following the decision of the arbitration panel. According to the argument advanced now in its brief, the Respondent did not comply because to have done so would have required an extensive alteration of the technical equipment in the station and a reduction in pay for the employees involved. Finally, the Respondent contends that in any event, it bargained with the Union about the issues in question insofar as the latter wished to bargain. It is the conclusion of the Trial Examiner that since the Respon- dent made no effort to comply with the award of the arbitration panel, or accord it any finality, the standards established in Spielberg have not yet been met. According- ly, there appears no valid reason for the Board to defer to the arbitration award in the instant case. Ramsey v. N.L.R.B., 327 F.2d 784, 787 (C.A. 7), cert. denied 377 U.S. 1003; Joseph Klann Moving and Trucking Company v. N.L.R.B., 411 F.2d 261, 263 (C.A. 6), cert. denied 396 U.S. 833. On the other hand, it appears to the Trial Examiner that the arbitration panel was correct in its conclusion that the Respondent's action as to the combo operation constituted a violation of the collective-bargaining agreement. The first paragraph of section 1:0413 of the contract spells out in detail the work of the engineers . No mention is B The majority vote on this issue was cast by Chairman Naughton and union member Wilkerson. 10 The majority on this issue was made up of Chairman Haughton and employer member Urdan 11 The old contract expired on March 31, 1970, after the Respondent gave timely notice of a desire that it be terminated 12 On January 15, 1970, James R Bernauer, one of the combo operators, filed a decertification petition with the regional office, Case 30-RD-132 In a letter, dated March 4, 1970, the Regional Director dismissed the foregoing petition on the ground that a decision had been made to issue the complaint in the instant case. 13 The relevant provisions of the contract between the Respondent and the Union appear below- Section 1.04 The work covered by this agreement shall be performed only by Engineers who hold valid F C C. Radio Telephone First Class Licenses and shall include all work in connection with the installation (except such new construction work as is within the jurisdiction of the IBEW and as may be determined by mutual agreement with other Local Unions or, failing such agreement, by the International Office of the IBEW to be under the jurisdiction of some (Continued) MALRITE OF WISCONSIN, INC. 247 made of announcing duties. In the next paragraph of the same section, an exception is permitted whereby the employer might assign both engineering and announcing duties to one engineer between the hours of 10 p.m. and 6 a.m. This same paragraph further provides that no engineer shall be assigned to this combination work without his consent. Section 1: 10, relied on by the Respondent to establish that the action in question was a legitimate exercise of management prerogative, does provide that the employer may determine the duties to be performed by engineers. At the same time, however, this same line includes the qualifying phrase that such duties must be "within the jurisdiction of this agreement." Since the earlier language makes it clear that engineers in the unit are to do only unit work, with the exception of one on the late night shift, section 1:10 accords no support for the Respondent's position that combo operations should be permitted throughout the day and evening programs. If the Union and the Employer had intended, when they signed the collective-bargaining contract in question, to accord the latter the option of using engineers to perform announcing duties generally, it would have been easy to draft such language for section 1:04 in l clear and explicit terms. In the absence of such language, it is the conclusion of the Trial Examiner that, except for work on the late night shift described above, it was a violation of the collective-bargaining agreement for the Respondent to assign engineers to combo operations at other hours of the day and evening. 2. The alleged unilateral action ; findings and conclusions with respect thereto The General Counsel contends that the Respondent made no serious effort to meet and discuss with the Union the change to a combo operation and that its failure to do so constituted a violation of Section 8(a)(5) and (1) and 8(d). The Respondent denies these allegations in their entirety. According to the latter, it met with the Union at various times concerning the issue here involved and thereby fulfilled any obligation it had to confer with the collective-bargaining representative as to the changes in question. Finally, the Respondent contends that, in any event, any evidence as to the alleged unfair labor practices other of its Local Unions), operation, maintenance and repair of radio broadcast, television, sound effects , facsimile, and audio equipment and apparatus by means of which electricity is applied in the transmission, transference, production or reproduction of voice, sound and/or vision with and/or without ethereal aid, including all types of recording both aural and visual Engineers, except with the approval of the Union, shall not perform any work which is inconsistent with the provisions of this agreement (it is not the intent of this provision to limit the Chief Engineer in the performance of administrative duties outside the scope of this agreement) and only Engineers shall perform any of the work specified herein The Union agrees that the Employer may employ one Engineer to operate FM as an engineer-announcer anytime between the hours of 10 00 PM and 6 00 AM Such Engineer must hold a first class license and be employed on a full- time basis and shall be fully covered by all provisions of this agreement except that an Engineer so assigned may, at the Employer's option, be assigned a six day, 40 hour week rather than a five day, 40 hour week It is understood that the Engineers presently on the staff, who were not hired to work as engineer-announcers, shall not be assigned to work as is barred by Section 10(b) of the Act. To the issues raised by these contentions, we will now turn. As found earlier herein, when the Respondent acquired control from Cream City, President Maltz met with Wilkerson and sought to secure his agreement to certain changes in the station's mode of operations which the new management considered imperative. The union official, however, would not agree and insisted that the proposed combo operation would violate the collective-bargaining agreement. Thereafter, in mid-December 1968, and with- out further notice to the Union, the Respondent put into effect its plan to use engineer-announcers. After the Union learned of what had been done, Wilkerson protested to the Company's general manager that the action constituted a breach of contract. On December 23, 1968, when the parties met to discuss the matter, the Company countered the union protest with the declaration that in the Respondent's opinion no violation of the contract was involved. Attorney Mallien further stated that, in any event, the combo operation would be continued out of economic necessity and that to meet the objections of the Union, perhaps the parties should negotiate an amendment to the collective-bargaining agreement. Wilkerson's re- sponse was that the Union would insist on adherence to the provisions of the contract for the balance of its term. The Respondent thereupon suggested that if the Union was dissatisfied it should take the issue to arbitration. Later, when the Union followed this route and an arbitration panel ruled that the Respondent's action constituted a breach of the contract, the Respondent declined to accept the decision and continued the engineer-announcer combo arrangement. "[T]he duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor- management relations during the term of the agreement." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 436; National Woodwork Manufacturers Assn. v. N.L.R.B., 386 U.S. 612, 640-642; Fibreboard Papers Products Corp. v. N. L. R. B., 379 U.S. 203, 209.14 Here, after President Maltz first told Wilkerson that the Company planned a new station format which would involve widespread use of combo operators and found that the Union was opposed, the Respondent made no further effort to apprise the Union of its plans in this regard, or to accord the employee representative a reasonable opportu- engineer-announcers without their consent Nothing herein restricts the Employer from assigning a part-time Engineer to cover the period from 10 00 PM to 6 00 AM as an engineer-announcer once the full-time Engineer assigned as an engineer-announcer has accrued 40 hours in any work week [Emphasis supplied I Section 1 10 The Union reserves the right to discipline its members for violation of its laws, rules and agreements Subject to the other provisions of this agreement, the Employer reserves the right to make reasonable rules and policies governing the conduct of its business, and to determine the number of Engineers to be employed and the duties to be performed by Engineers within the jurisdiction of this agreement [Emphasis supplied ] 14 See Conley v Gibson, 355 U S 41, 46, where the Supreme Court stated- "Collective bargaining is a continuing process Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract " 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' nity for counterarguments or proposals. N.L.R.B. v. Citizens Hotel Company, 326 F.2d 501, 505 (C.A. 5). Instead, the Umon was faced with an accomplished fact when it subsequently learned in December 1968, that Bernauer and Overgaard had been assigned to duty as combo operators. Thereafter, this situation was repeated during the following months when Hill, Couzens, and Schwarz were solicited to, and accepted, the same arrangement.15 The Respondent's action here constituted individual bargaining with the employees whom it desired for the combo operation and a disregard of the certified bargaining agent. Thereafter, when the Union voiced its opposition, the Company met with Wilkerson on Decem- ber 23, 1968. Even, then, however, there was no bargaining in the sense contemplated by the Act.16 The Respondent restated its intention to continue with the combo operation out of economic necessity and told the Umon that if it wanted to press its point any further, arbitration was available. Yet, when the Union adopted this latter course and the decision of the arbitration panel was adverse, the Respondent refused to comply. The record here with respect to the execution of written consents establishes that the discussions between the employees involved and the management occurred in complete disregard of the Union's status as the bargaining agent. Since there is no evidence that the Union waived its right to be consulted,17 the Respondent's conduct consti- tuted unilateral action proscribed by Section 8(a)(5) and (1) of the Act. Chevron Oil Co., 168 NLRB No. 84; Beacon Piece Dyeing and Finishing Co., 121 NLRB 953, 956-957; Dixie Ohio Express Company, 167 NLRB No. 72. That the Respondent may have been motivated solely by the economics of the situation and not by any union animus, as appears to have been the case here, does not excuse its conduct. N.L.R.B. v. Benne Katz, 369 U.S. 736, 743. Nor is it a defense that the Respondent may have in good faith presumed that the collective-bargaining contract permitted the establishment of the combo operation.18 The Statute of Limitations Issue Section 10(b) of the Act forbids the issuance of a complaint based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board. Here the original charge was filed on February 3, 1970. Since the written consent of Bernauer and Overgaard to work as combo operators was secured by the Respondent in November 1968, the limitation of Section 10(b) plainly bars the independent finding of an unfair labor practice by the Respondent as to its action with respect to these individuals. On the other hand, the Respondent's conduct as to Bernauer and Overgaard during this period may be utilized as background evidence to develop the complete picture as to the conduct of the Respondent with respect to Hill, Couzens, and Schwarz, all 15 As found earlier, the Respondent secured written agreements from Hill and Couzens in November 1969, and from Schwarz in December of that year, to work as engineer-announcers 16 In Town & Country Manufacturing Company, Inc, 136 NLRB 1022, enfd 316 F 2d 846 (C A 5), the Board stated, "No genuine bargaining over a decision to terminate a phase of operations can be conducted where that decision has already been made and implemented " 136 NLRB at 1030. See also We/ironic Co v. N L R B, 419 F 2d 1120, 1123 (C A 6). of whom were solicited by the Respondent to execute written agreements to work combo well within the Section 10(b) period. Stafford Trucking, Inc., 154 NLRB 1309, 1310, enfd. 371 F.2d 244 (C.A. 7); Local Lodge No. 1424, LA. M. v. N. L. R. B., 362 U.S. 411, 416-417. Here the Respondent unilaterally secured agreements to work as combo operators from Hill and Couzens in late November 1969 and from Schwarz in December of that year. As found earlier, in none of these instances did the Company make any effort to notify the Union of its approach to these individuals or to bargain with the Union as to the effect which this action would have upon other employees within the bargaining unit. At no time during this period had the Union relinquished its claim to represent these employees and to bargain as to any such matters. In fact, at that very time the Union was actively prosecuting its original claim as to Bernauer and Over- gaard through arbitration proceedings. Consequently, the Trial Examiner concludes and finds that the Respondent's obligation to bargain with the Union about the combo operators continued throughout the Section 10(b) period and that this obligation was unilaterally and consistently ignored by the Respondent as to Hill, Couzens, and Schwarz when it secured written agreements from them to work as combo operators. In so doing, the Respondent violated Section 8(a)(5) and (1) of the Act. Local Lodge No. 1424, I.A.M. v. N. L. R. B., supra; Louisiana Bunkers, Inc., 163 NLRB 656, 659. Since, as found earlier herein, the contract between the parties did not permit the action which the Respondent undertook to effectuate by instituting a combo operation, the Respondent's action in this respect constituted a unilateral modification of the contract. Section 8(d)(1) of the Act provides, inter alia, that no party to an existing collective-bargaining contract shall modify such a contract unless a written notice of the proposed modification is served upon the other party 60 days prior to the time it is proposed to make such modification. No such written notice was ever served by the Respondent upon the Union. Consequently, the Trial Examiner finds that the action of the Respondent involved here also violated Section 8(d)(1) of the Act. Kinard Trucking Company, Inc., 152 NLRB 449, 450-451; The Scam Instrument Corporation, 163 NLRB 284, 288-289. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All broadcast technicians and engineers engaged in the installation, operation, and maintenance of the Res- pondent's technical facilities for radio broadcasting and recording at stations WMIL and WMIL-FM in Milwau- kee, Wisconsin, but excluding the bookkeeper, salesmen, 17 Proctor Manufacturing Corp, 131 NLRB 1166, 1170-1171; Firestone Tire & Rubber Co, 179 NLRB No 118; Unit Drop Forge Div Eaton Yale & Towne, Inc, 171 NLRB No 73 19 "Action taken in ignorance of the law, even in good faith, is no defense to violation of the Act" Erie Resister Corp v. N LR B, 328 F 2d 723 (C.A. 3), Taylor Forge & Pipe Works v. N LR B, 234 F.2d 227, 231 (C.A 7), N LR B v Industrial Cotton Mills, 208 F 2d 87,91 (C.A 4), cert. denied 347 U.S 935 MALRITE OF WISCONSIN, INC. traffic managers, continuity manager, program directors, chief engineers, office clericals, guards and supervisors, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times material herein, the Union has been the exclusive representative for the purpose of collective bargaining within the meaning of Section 9(a) of the Act of all the employees in the aforesaid appropriate unit. 4. By unilaterally modifying both the terms of the collective-bargaining agreement and its method of broad- casting with respect to the use of engineer-announcers, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and 8(d) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(5) by unilaterally modifying its contract with the Union and putting into effect an engineer-announcer system without bargaining with the Union, the Trial Examiner will recommend that the Respondent be ordered to cease and desist from making unilateral changes in the terms and conditions of employment without consulting the employees' designated bargaining agent. Moreover, in order that the Union have a meaningful opportunity to bargain about the institution of a combo operation, the Trial Examiner will recommend that the Respondent be ordered to restore the status quo ante which existed prior to the establishment of the engineer-announcer arrangement. Town & Country Manufacturing Co., Inc., 136 NLRB 1022, 1030, enfd. 316 F.2d 846 (C.A. 5).19 Finally, it is clear that the Respondent's refusal to bargain with the Union in the period from about December 1, 1969, until the collective-bargaining contract expired on March 31, 1970, prevented the Union from administering the contract and from making reasonable preparations to negotiate a new agreement following its termination. An effective implementation of the principal of collective bargaining embodied in the Act requires that the Respondent and Union be placed in the position in which they would have been during this period, but for the Respondent's unfair labor practices. Accordingly, the Trial Examiner will recommend that the Respondent be ordered to recognize and deal with the Union as the exclusive bargaining agent of the employees in the unit found above, 19 Of course, if the obligation to bargain with the Union about the adoption of a combo operation is satisfied, the Respondent may lawfully 249 by honoring the contract executed by it on October 12, 1967, in all its terms, if requested to do so by the Union, for a period equal to 'the period between December 1, 1969, and March 31, 1970. Harold W. Hinson, d/b/a Hen House Market No. 3 v. N. L. R. B., 428 F.2d 133 (C.A. 8, 1970); Ohio Car & Truck Leasing, 169 NLRB No. 37. If the Union does not request that the contract be so honored, the Respondent should bargain collectively, upon request, with the Union as agent aforesaid with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: ORDER Malrite of Wisconsin, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and deal with Wisconsin Broadcast Engineers, Local #715, International Brother- hood of Electrical Workers, as the exclusive bargaining representative of all its employees in the appropriate bargaining unit found above by disregarding or refusing to carry out any of the terms of the collective-bargaining contract executed by the Respondent on October 12, 1967, if the Union requests that said contract be honored, for a period equal to the period between December 1, 1969, and March 31, 1970. (b) If no request to honor said contract is made by the Union, refusing to bargain collectively with said Union, upon request, as the exclusive bargaining representative of all its employees in the unit aforesaid with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (c) Making any unilateral changes, if the Union requests that said contract be honored, in the terms of the aforesaid agreement and in its method of operation by instituting a combo operation with respect to the use of engineer- announcers. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by the proviso in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) If requested to do so by the Union, honor and comply with all terms of the contract executed by the Respondent on October 12, 1967, and recognize and deal with the Union as the exclusive bargaining representative of all its employees in the appropriate unit in the administration of put it into effect Town & Country, supra 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said contract, for a period equal to the period between December 1, 1969, and March 31, 1970, and as part of such compliance reinstate its former practice of having engi- neering and announcing work done by two separate employees; except for one combination engineer-announc- er to work on WMIL-FM for the period from 10 p.m. to 6 a.m. as set forth in the collective-bargaining agreement. (b) If no request to honor such contract is made by the Union, bargain collectively with the Union as the exclusive bargaining representative of employees in said unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its station in Milwaukee, Wisconsin, the notice attached hereto and marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 30, in writing, within 30 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.21 20 In the event no exceptions are filed as provided by Section 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 Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by ajudgment 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 " 21 In the event that the recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 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 recognize or deal with Wisconsin Broadcast Engineers, Local #715, Interna- tional Brotherhood of Electrical Workers, as the exclusive bargaining representative of all our employ- ees in the appropriate bargaining unit described below, by disregarding or refusing to carry out any of the terms of the collective-bargaining contract executed by us on October 12, 1967, with said Union, if said Union requests us to honor said contract, for a period equal to the period between December 1, 1969, and March 31, 1970. WE WILL, if requested to do so by the aforesaid Union, honor and comply with all the terms of the contract executed by us on October 12, 1967, with said Union, and deal with it as the exclusive bargaining representative of all our employees in the appropriate bargaining unit set forth below, in the administration of that contract for a period equal to the period between December 1, 1969, and March 31, 1970, and as part of such compliance with the contract we will reinstate our former practice of having engineering and announcing work done by two separate employees; except for one combination engineer-announcer to work on WMIL-FM for the period 10 p.m. to 6 a.m. as set forth in the collective-bargaining agreement. WE WILL NOT, if said Union requests us to honor the above contract, make any unilateral charges in the working conditions of the employees in the aforesaid appropriate unit, nor will we unilaterally modify, or terminate, the aforesaid collective-bargaining agree- ment without giving the notices required by the National Labor Relations Act. WE WILL, if no request to honor the above contract is made by said Union, bargain collectively with said Union as the exclusive bargaining representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All broadcast technicians and engineers engaged in the installation, operation, and maintenance of the Respondent's technical facilities for radio broadcasting and recording at stations WMIL and WMIL-FM in Milwaukee, Wisconsin, but excluding the bookkeeper, salesmen, traffic man- ager, program directors, chief engineers, office clericals, guards, and supervisors. WE WILL NOT, by refusing to bargain in good faith, or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by the proviso in Section 8(a)(3) of the Act. Dated By MALRITE OF WISCONSIN, INC. (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 material. , MALRITE OF WISCONSIN , INC. 251 Any questions concerning this notice or compliance with Milwaukee, Wisconsin 53203, Telephone 414-272-8600, its provisions may be directed to the Board's Office , ext. 3861. Commerce Building, _2nd Floor, 744 North 4th Street,