WCUE Radio, Inc.

WCUE RADIO, INC. WCUE Radio, Inc. and American Federation of Television and Radio Artists , AFL-CIO Cleveland Local. Case 8-CA-7444 February 21, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 30, 1973, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions to the aforementioned Decision. 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 attached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt her recommended Order. 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 Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMEN r 01 THE CASE FANNIE M. BOYLS, Administrative Law Judge- This case, initiated by a charge and amended charge filed respectively on January 22 and January 30, 1973, and a complaint issued on March 14, 1973, was tried before me at Akron, Ohio. on May 15, 29, and 30, 1973.1 The complaint alleged that Respondent had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Respondent filed an answer denying that it had engaged in any of the unfair labor practices alleged. Subsequent to the hearing, counsel for the General Counsel and for Respondent filed briefs. Upon the entire record in this case, upon my observation of the witnesses, and after a careful consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is an Ohio corporation, having its principal office and place of business in Akron, Ohio, where it is engaged in the operation of a radio station with the call I Due to an amendment to the complaint on May 15 and a hill of particulars furnished in support of expanded allegations of Sec 8(a)(5) of 181 letters WCUE-AM and FM. In the course and conduct of its business it annually receives gross revenues in excess of $ 100,000 from the sale of time for commercial advertising. Respondent is a member of the Associated Press and utilizes its wire services . Respondent concedes and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. 1HE LABOR ORGANIZATION INVOLVED American Federation of Television and Radio Artists, AFL-CIO, Cleveland Local, herein called AFTRA or the Union, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES ALLEGED A. Background and Issues Following an election under the auspices of the Board's Regional Director , the Union won the election on August 2, 1972, and was certified on August 9 as the collective- bargaining representative of Respondent's employees in the following appropriate bargaining unit: All employees who regularly or frequently appear before the microphone at the Employer's Radio Station WCUE (AM and FM), including, but not limited to newsmen and announcers, but excluding all other employees, salesmen, engineers, custodial employees, and professional employees , guards and supervisors as defined in the Act. There were approximately I I employees in the unit. Between September 28, 1972, the first bargaining conference, and January 27, 1973, when the Union went out on strike, the parties met upon eight occasions to negotiate contract terms but had made no substantial progress in coming to an agreement. The General Counsel contends that Respondent refused to bargain in good faith during this period and that the strike was an unfair labor practice strike. Several nonunit employees refused to cross the picket line and work during the strike and were discharged on January 28, 1973. for that reason. Respon- dent, however, rescinded its discharge action and offered them reinstatement on January 31. The General Counsel contends that the discharges were in violation of Section 8(a)(3) and (1) of the Act and Respondent apparently concedes that they were a "tactical error" but points out that, on the advice of its counsel, it quickly remedied that unfair labor practice. Following the strike, which was still in progress when the hearing commenced, the parties held five additional bargaining conferences and substantial progress was made in narrowing the issues, but no agreement had been reached by the conclusion of the hearing. The General Counsel contends that Respondent refused to bargain in good faith, in violation of Section 8(a)(5) and (1) of the Act, by engaging in dilatory and obstructionist tactics, by introducing into contract negotiations for the the Act, the hearing was adjourned from May 15 to May 29 to permit Respondent adequate time to investigate and prepare its defense 209 NLRB No. 41 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first time on or about January 13, 1973, "an unusually onerous and demanding `Announcers' Duties' provision," and by introducing for the first time on or about January 26 a wage proposal providing for wage rates substantially below those currently and previously paid and rigidly and inflexibly adhering to such wage proposals. Respondent denies that it engaged in dilatory or obstructive tactics; contends that its wage proposals were not onerous or demanding and states that they would not have resulted in a reduction in pay for any employee presently employed and would have resulted in an increase for two of the unit employees; it further contends that its wage proposals as well as its "Announcers' Duties" proposals amounted merely to hard bargaining. B. Bargaining Chronology 1. Prestrike bargaining In the prestrike bargaining negotiations, the Union was represented by Kenneth A. Bichl, executive secretary of the Cleveland Local, as its chief negotiator. The approximately I 1 employees in the bargaining unit were also a part of the Union's bargaining committee and those whose work schedules permitted them to attend the meetings usually did so. Respondent was represented principally by its station manager, John J. Demeter, assisted by Chief Engineer Niederkofler, except when Respondent's attor- ney, Edward C. Kaminski, was present. Kaminski was Respondent's spokesman on those occasions. Demeter had only been hired by Respondent in June 1972 and, although he had previously been manager of another radio station and part-owner of another before being employed by Respondent, he had never had any experience in dealing with a union. Kaminski, although an experienced negotia- tor in the labor relations field, had no previous experience with radio stations and did not purport to be familiar with working conditions and labor contracts in that area. These factors may help to explain some of the difficulties encountered by the parties in negotiating their first contract. On September 7, 1972, Bichl wrote Respondent, stating that the Union was ready to start contract negotiations and requesting Respondent to contact the union office for a mutually agreeable negotiating date. Having received no reply from Respondent by Septem- ber 18, Bich] on that date again wrote Respondent about its desire to negotiate an agreement and stated that Bichl would be at Respondent's radio station for that purpose at 1:30 p.m. on September 26. The Union's September 18 letter was crossed in the mails on the same day by one from Station Manager Demeter, offering to meet at 6 p.m. on October 23. Bichl replied on the following day, September 19, protesting that October 23 was "a long way off" and 2 All employees in the unit were considered members of the bargaining committee . They attended the negotiating sessions as their duties permitted. This meant one or more 'might come in after the meeting started or leave before it was ended. Bich), of course, was the negotiator and spokesman but he caucused with the employees from time to time. 3 The draft consisted of approximately 29 pages of proposals, with 2 additional pages entitled, "Additional Proposals" appended. In addition, references were made under a number of the topics or items (13(D), 19(A), reiterated that he would be at the radio station on September 26 for the purpose of negotiating unless Respondent found some other location more suitable. Demeter replied on September 21 that it would be impossible to meet on September 26 but offered to meet at 6 p.m. on. September • 28 at the Brown Derby Restau- rant/Motel, The September 28 meeting: Bichl, accompanied by about six employee-members of the bargaining committee,2 met with Station Manager Demeter and his sales manager, Smith, at the Brown Derby on September 28 and presented Respondent with a draft of a proposed contract and a letter stating that the Union was reserving the right to add to, subtract from, change, alter, or amend the contract proposals during the negotiations. Bichl explained to Respondent's representatives that ' the draft contract proposal was a compilation of standard clauses covering usual practices and procedures in contracts the Union had negotiated.3 Demeter, after looking at the draft briefly, stated that it would take considerable time to read it. It was agreed that after Demeter and Respondent's legal counsel were able to study the document they would get in touch with the Union for contract negotiations. The meeting lasted only about 5 minutes. Subsequent to this meeting, Respondent employed its present counsel, Edward C. Kaminski, to assist in the bargaining negotiations and Demeter and Kaminski spent several hours discussing the contract proposals. The Union, having heard nothing from Respondent about a further meeting by October 6, wrote Kaminski on that date requesting the latter to call the Union about a date for the next bargaining session . Kaminski replied by letter dated October 11, suggesting a meeting at 4 p.m. on October 18 in his firm's conference room. The October 18 meeting: Representing Respondent at this meeting were Kaminski, as chief spokesman, Station Manager Demeter, and Chief Engineer Niederkofler. Bichl and approximately seven employee members of the bargaining committee represented the Union. Kaminski explained to the union representatives that although he had considerable experience in negotiating contracts in other fields, he had had no previous experience at negotiating in the broadcasting field. He commented that he did not understand the draft contract and that it appeared to him and his client as more appropriate for a large broadcasting company than for a small one like Respondent's. Bich] disagreed with this observation. Kaminski proposed and Bichl agreed that the draft be read and discussed on an item-by-item basis. Proceeding in this manner, only 11 items, about one-third of the draft proposal, were read and discussed at that meeting. Respondent agreed to the recognition clause and the clause providing that in the event of a conflict between applicable law and any provision of the contract, the law would prevail. Kaminski (C), and (D). 22 and 24) to the AFTRA Code of Fair Practice-local, regional , or national. Copies of these codes were not supplied until late December or early January. They contained 83 additional pages. Item 15(A) purporting to set forth the minimum weekly salaries of staff announcers and newsmen , and item 17, purporting to set forth the rates and conditions applicable to the use of transcriptions made by artists with the station's facilities, were left blank. WCUE RADIO, INC. stated that Respondent would later make counterproposals regarding the Union's arbitration and workweek proposals. He rejected or tabled other provisions. Toward the conclusion of the meeting, Kaminski suggested that the Union give Respondent a proposal on wage rates, one of the items left blank in the Union's draft proposal, and that, after Respondent had a total package before it, it would try to prepare a counterproposal in order to get a discussion going. Bichl pro wised to supply the wage rate proposal by the end of the week. Kaminski stated that Respondent had specific operational procedures and practices which the Union had shown no awareness of in its proposals and that Respondent would reflect its procedures and practices in its counterproposal draft. Bichl did not furnish the promised wage proposal until November 1. In his letter to Kaminski, enclosing it, he stated that he would expect to hear from Respondent about the next meeting time and date. After receiving the wage proposals, Kaminski met with Station Manager Demeter and discussed counterproposals but did not prepare any at that time for presentation to the Union On November 20, Bichl wrote Kaminski expressing regret that the parties had not been able to arrange a meeting that week and urging that Respondent make a sincere effort to reach an agreement. He stated that proposals by Respondent expected by the Union early in the week had not yet arrived and that it was necessary to meet on that matt er early during the week of November 27. He asked that Kaminski call the Union's office to set up a time, date, and place for such a meeting. Kaminski replied by letter dated November 22, express- ing doubt as to Bichl's sincerity, reminding him that Respondent had advised the Union at their last meeting that the Union's draft contract was not suitable for an operation like that of Respondent. He acknowledged that, in order to expedite negotiations, he had offered to draft a complete counterproposal along the lines of the proposals Bichl had given Respondent, if Bichl provided Respondent with a wage demand. He stated further, however: To draft a counterproposal to the monstrosity you proposed to the Company is a considerable undertak- ing. You're apparently not sincerely interested in the particular situation of WCUE, and I am not interested in spending my time and WCUE's money in doing your work. Hence, pursuant to your request we will schedule a meeting with you and tell you what is wrong with your proposal and you can draft a modified proposal to meet WCUE's situation. Kaminski concluded with the statement that he was tied up in major litigation until the week of November 11 but would meet with the Union at any date during that week. Bich] replied by letter dated November 28. disputing Kaminski's characterization of the Union's proposed contract, defending its provisions as applicable to Respon- dent's operations, accusing Respondent of an attempt to evade a fair and honest agreement, stating that the Union's proposed contract was the document against which the parties were working, that the Union was ready and willing to discuss these provisions, and that it was advisable that another meeting be arranged. He concluded that, in the 183 absence of such a meeting, the Union could only review Respondent's conduct as a refusal to bargain. Bichl, however, did not suggest a meeting date, as Kaminski had proposed. Kaminski replied on December 4, accusing Bichl of not even wishing to negotiate a meeting date convenient to all concerned and himself suggesting 9 a.m. on December 13 in the conference room of his law offices . The next meeting was held on that date starting at 2:30 p .m. and ending at about 5 p.m. During the interim in the December 8 issue of the local newspaper, there appeared an article which came to Respondent's attention, attributing to Union Representa- tive Bichl a statement to the effect that if a bargaining session were not set up in the immediate future a strike deadline would be set within the next week and that some action was necessary before Christmas. Although Bichl testified that he did not recall making the statement, he did not deny doing so, and I am satisfied that he made a statement of that nature to the press . Company officials also heard talk among the employees in the plant during December about the possibility of a strike. The December 13 meeting: At this meeting, Respondent was represented by Kaminski , Station Manager Demeter, and Chief Engineer Niederkofler and the Union by Bichl and about eight of the employees . Despite Bichl's protest against a continuation of the reading of the Union's proposed contract, the parties picked up where they had left off at the October 18 meeting, starting with item 12, pertaining to overtime, reading and discussing or com- menting on each item . Item 12 had seven parts and Respondent agreed to one of them which forbids the duplication and pyramiding of overtime work. It also agreed to that part of item 13 which defined the classification of employees referred to artists . Item 15, pertaining to minimum compensation and embodying the wage proposals furnished by the Union on November 1, was labeled by Respondent as an economic issue and discussion of that provision was deferred to a later date. Items 16 and 17 relating to rates to be paid for local talent and transcriptions were also labeled by Respondent as economic issues and discussion of them was deferred for that reason . In a number of instances Respondent's representatives asked how a particular union proposal could apply to its operations and Bichl would attempt to explain its application . At the conclusion of the meeting, the parties had gotten only as far as item 18 in the reading and discussion . Bichl complained that the parties were not meeting with sufficient frequency and also that he had not yet received any counterproposals from Respondent. Kaminski explained that he had a very busy schedule and suggested that thereafter Respondent's representatives meet with the Union without him . It was agreed that another bargaining session would be held on December 18. The December 18 meeting was held at 4:30 p.m. Respondent was represented at this meeting by Demeter and Niederkofler and the Union by Bichl and a number of the employees. Although Bich] objected to Respondent's continuing to read the proposed contract item by item. as had been done in the last two meetings, he acquiesced in this procedure for the December 18 meeting. Items 18 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through 27, the last one in the draft contract, as well as the two pages of additional proposals, were read. Respondent agreed to item 23, providing for no discrimination against employees because of race, creed, sex, age, color, or national origin or because they may have submitted a claim to arbitration. It also agreed to item 9 of the attached additional proposals to the effect that artists would be provided first class equipment. Respondent's officials labeled item 19 (pertaining to seniority), item 20 (pertain- ing to vacations and holidays), and item 24 (pertaining to pensions and welfare) economic issues and said they were not yet ready to discuss them. Respondent requested and the Union promised to supply Respondent with the AFTRA Codes of Fair Practice mentioned in item 22 and several other items of the draft contract which Demeter had previously requested of the Union.4 Respondent promised to seek information about and advise the Union on the costs of death and disability insurance coverage requested by the Union in item 2 of the additional proposals and also promised to supply some counterpropo- sals for their next meeting. Other union proposals were either rejected or passed over. It was tentatively agreed that the parties would meet again on December 22. Demeter found it necessary to cancel the December 22 meeting. On the same day, Bichl wrote Demeter, express- ing regret that the meeting had to be canceled, suggesting that the next meeting start early in the afternoon to permit the parties to cover more ground, promising Respondent to provide it with some alternative proposals, expressing a hope that Respondent would supply the Union with "wordings" Demeter had mentioned in the past and requesting, in connection with the Union's wage proposals, that Respondent furnish the gross wages of each employee during the current year, with an indication of the period covered, and the weekly wage rate of each individual. Demeter telephoned Bichl on January 4, 1973, and arranged for a meeting on January 13. The January 13 meeting was on a Saturday and started at 9:30 a.m. Present were Demeter and Niederkofler repre- senting Respondent and Bichl and about five employees representing the Union. At the commencement of this meeting, Demeter told Bichl that he had heard a lot of talk about a strike and asked Bichl if there would be a strike. Bichl assured him that there would be no more rumors of a strike. He stated, however, that if no agreement or substantial movement toward an agreement was made by January 20 the Union would have to take whatever action it deemed necessary at that time. During the meeting, Respondent presented its first written counterproposals, one pertaining to the duties of announcers and another pertaining to grounds for discharging them and newsmen. These were discussed and Bichl characterized them as 4 These were mailed by the Union to Respondent sometime prior to the next meeting on January 13. s The versions of Bichl and Demeter, the only two witnesses testifying about this meeting, are not entirely consistent . Bichl was the only witness who purported to relate in any detail what took place at this, as well as the other, meetings. His testimony , based in part on his notes and in part on his recollection, has been accepted as substantially accurate where not challenged. Where challenged, the testimony of each witness has been weighed in the light of the bargaining developments and probabilities and how the challenged testimony fits into the evidence regarding the sequence of events and the total picture. With respect to the January 13 conference. "punitive," "onerous," and "ridiculous." Respondent also presented a paper listing the names of seven of the members of the bargaining unit and their gross wages for 1972 in purported compliance with the Union's request for wage data, but the paper did not show the weekly wage rate for each of the employees which the Union had requested.6 Bichl did not complain that the information was inadequate. He apparently obtained what additional wage information he needed from the employees them- selves. At this meeting, the parties also discussed a provision regarding a probationary period for employees and Bichl promised to prepare a proposal on this subject. Finally, Demeter brought up the subject of the AFTRA Codes of Fair Practice which the Union had mailed to Respondent subsequent to the December 18 meeting. These codes were incorporated into three booklets and consisted of a total of 83 pages. They were referred to in six provisions of the Union's draft contract proposals and item 22 of the draft provided that all the provisions, terms, and conditions of the codes (except as to matters expressly provided in the agreement) were to be included and made a part of the agreement. Demeter asked Bichl how important to the proposed contract he thought the codes were. Bichl replied that they were important. Demeter complained that he could not understand the codes and Bichl replied that some of the provisions were not applicable to Respondent but that the provisions regarding the codes were in every AFTRA contract and had to remain in the draft. Demeter and Niederkofler thereupon had a caucus and, upon returning, suggested that if the Union would negotiate an Akron code Respondent might consider that. Bichl replied that he did not have authority to negotiate such a code. Demeter then asked Bichl to explain the meaning of the codes and started reading from their provisions. Bichl thereupon threw up his hands and asked for a caucus with the employees present. Upon returning from the caucus, Bichl stated that the Union would do what it had to do. Demeter asked if he was referring to a strike and Bichl replied that he had nothing further to talk about and refused to talk further though Demeter suggested that they do so. At this time it was late in the morning or early in the afternoon. Bichl suggested that they could have another meeting during the next week, but no date was set. The January 18 meeting: This meeting was arranged by a Federal mediator who was himself in attendance. It began at 4:30 in the afternoon and ended at about 10 or 10:30 p.m. with only a break for supper. Representing Respon- dent were Demeter and Niederkofler and representing the Union were Bichl and nine employees.? The status of the bargaining was briefly reviewed for the benefit of the mediator and he sought to narrow the area of conflict. He am convinced that the conference began and ended as Demeter described it and that the subject of the AFTRA's national and local Codes of Fair Practice was not discussed until toward the end of the meeting. s The exact number of employees in the unit is not clear from the record. Nine were named as attending the January 18 bargaining conference. A newspaper article dated December 8, 1972 , refers to 12; and the Union's unfair labor practice charges. filed on January 22 and 30, 1973, refer to I I "workers" employed ; Bichl testified there were I I in the original strike group. Kaminski thought there were 12 or 13 in the unit. I have concluded that there were approximately I I in the unit. 7 The account of what took place at this meeting is based upon the WCUE RADIO, INC. 185 pointed out to Demeter, among other things, that the Union's proposed termination clause. providing for 60 days' notice by either party wishing to modify or terminate the agreement prior to its termination date was a requirement of the National Labor Relations Act, but Demeter still refused to accept that provision. The no- strike and no-lockout proposal was also discussed and Demeter rejected the idea of no-lockout and promised to furnish later his own wording for a no-strike provision. Between a third and a half of the time at this meeting was devoted to a discussion of the discharge and announcers' duties counterproposals which Respondent had submitted at the previous meeting. These were interrelated proposals since Respondent was proposing as grounds for a dis- charge a failure of an announcer to abide by some of the duties imposed upon him under the duties proposal. Respondent's announcers' duties proposal consisted of paragraphs A through N. The Union's principal objections were directed to paragraph K which required all announc- ers to take FCC license refresher examinations once each year (a license never theretofore required by Respondent and which the Union claimed would never be needed); to paragraph F requiring that announcers be able to type accurately at a speed of 70 words a minute, when no typing requirement had ever before been imposed upon the employees; to paragraph B which required announcers to hold and maintain a current valid radio license, which they had not theretofore been required to hold; to paragraph E which required announcers to dress in a business-like manner, including a shirt and tie at all times when on duty, a new requirement which some of the announcers found particularly distasteful; to paragraph H which made all the announcers financially responsible for any damage to equipment and other property inflicted by any one of the announcers; to paragraph J which required all announcers to take a pronunciation test each quarter though no such requirement had ever before been imposed upon the announcers; to paragraph M. which stated that the news director was not to be in the bargaining unit, though the Board in the representation case had expressly found him to be in the unit; and to paragraph N, requiring announcers to take an examination not only upon being hired but every 6 months thereafter to show familiarity with FCC rules and regulations regarding logging, a requirement Respondent had not theretofore been impos- ing upon its announcers. Also discussed were Respondent's counterproposals on reasons for discharge-among which was failure of announcers to adhere to the duties requirements. No progress was made toward resolving these or any other provisions of a proposed contract. The mediator proposed that the Union extend its January 20 strike deadline for a week, but Bichl stated that proposal was premature. Another meeting was arranged for the following day, January 19. The January 19 mneeting: This meeting commenced at 4:30 in the afternoon and was attended by the Federal mediator, by Demeter and Niederkofler for Respondent, and by Bichl and members of the bargaining unit for the Union. After some further discussion of the announcers' duties and reasons for discharge clauses to which most of the previous meeting was devoted. Respondent submitted counterproposals to the Union's draft contract proposals regarding the no-strike and the grievance and arbitration provisions. These were studied by the union representatives and discussed, but no agreement was reached on these counterproposals. At the urging of the mediator, the Union agreed to extend its strike deadline for a week, to January 27, conditioned on there being further meetings during the interim. At Bichl's request, the mediator agreed to try to have Respondent's counsel, Kaminski, present at the next meeting and to arrange for the date. The January 26-27 meeting: This meeting, arranged for and attended by the mediator, commenced at 4:30 in the afternoon and lasted until 9 a.m. on January 27. It was attended by Demeter and Niederkofler for Respondent and by Bichl and, off and on, by all members of the bargaining unit for the Union .8 The parties went over all provisions of the Union's proposed contract and the counterproposals previously submitted by Respondent. Item 3 pertaining to "Admission to Premises" was agreed upon after Respondent furnished some alternative lan- guage acceptable to the Union. Regarding item 4 entitled, "No Strikes or Lockouts," Respondent deleted one paragraph from a proposal it had made about strikes and the parties appeared to be making progress toward resolving the differences on this topic. Respondent submit- ted a counterproposal regarding item 7, "Arbitration," which included a provision for a formal grievance procedure, but the Union did not accept it. Respondent also submitted a counterproposal on item 9, "Scope of Agreement," but this was not entirely acceptable to the Union. The Union abandoned parts of its proposals under item 10, "Workweek," but no agreement was reached on the total item. The Union dropped item 11, "Rest Between Shifts," as well as item 12, "Overtime," of its draft contract. Regarding item 13, "Classification of Artists." after the Union dropped its demand for paragraph D and Respon- dent agreed to paragraph E, the parties appeared to be in substantial agreement on this item. Regarding Respon- dent's controversial "announcers' duties" counterproposals (item 14 of the Union's draft contract) Respondent's explained at length its reasons for making these proposals, appeared willing to make some changes, and asked the Union to furnish an alternative to its counterproposal, but no agreement was reached. In connection with item 15, "Minimum Compensation," Respondent offered its first wage proposal, but the Union, branding it as inadequate and no improvement on current wage rates, rejected it and furnished counterproposals of its own. Respondent then went over the Union's proposals and increased the amount of its original proposal in some respects, but no agreement was reached. Demeter assured Bichl that his proposals were minimum rates, that none of detailed and convincing testimony of Bichl Demeter'% account is very negotiations. Kaminski refused to do so Bichl. in testifying that Kaminski sketchy and I believe that he was confused as to the dates upon which was present, was, I believe, erroneously under the impression that Kaminski Respondent's discharge proposals were presented and the date upon which was present because Demeter. during the bargaining session, caucused by they and the announcers' duties provisions were discussed at length phone with him at his home 14 Although the mediator had urged Kaminski to become involved in the 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the current employees would be adversely affected, and that two in the unit would receive increases in pay. The Union dropped from its draft contract proposals items 16, "Local Talent Fees," item 17, "Transcriptions," and item 22, "Freelance and National Codes," all of which had been strongly opposed by Respondent. There was substantial movement on item 18, "Additional Employ- ment Provisions," after the Union agreed to company policy regarding sick leave, agreed to the provision on exclusivity with an addition proposed by Respondent, and after Respondent agreed to furnish a counterproposal regarding travel time and expense. Respondent withdrew its controversial "Reasons for Discharge" proposal and read to the Union a more simplified alternative, entitled, "Discharge and Discipline," which was accepted by the Union at a subsequent meeting. Item 25, "AFTRA-WCUE Agreement," was accepted by Respondent after the Union agreed to delete any mention of successors and assigns. Respondent also agreed to accept item 26, the "termina- tion" clause, if reference to a 60-day notice was deleted, though the Union pointed out that the notice provision was in accordance with a requirement of Section 8(d) of the Act. Some agreement was also made with respect to the additional provisions appended to the Union's draft contract, with Respondent furnishing alternative language for the "Safety" clause and the Union dropping most of the other demands. About 9 or 9:30 a.m. on January 27, Demeter informed the mediator that he had a 10 a.m. appointment and asked the mediator to inform the union representatives that if he thought of any further proposals to make by II a.m., he would telephone the mediator to that affect and resume the negotiations. The Union had already announced a 12 noon strike deadline and, when the mediator learned from Demeter at about 11:30 a.m. that he then had no further proposals to make, the Union decided to and did strike the station at noon. 2. Discharge and cancellation of discharge of nonunit personnel refusing to work during the strike The complaint alleges, and Respondent's answer denies, that on or about January 28, 1973, Respondent, through its program director, Robert Knight, discharged employees Tremontte Watts, Terry Patrick, Deborah Ball, and Kathleen Kearns because they had, or Respondent believed they had, assisted and supported the Union and that Respondent failed and refused to offer them reinstate- ment until on or about January 31. These employees, though not members of the bargaining unit on strike, did not cross the picket line or work during the strike. Only one of the four employees, Tremontte Watts, testified. According to his credited account, Program Director Robert Knight telephoned Watts about noon on January 28 and inquired whether Watts was coming to work. He told Watts that Terry Patrick had been fired for not showing up and that Watts would be fired too if he did not report for work. Watts did not make up his mind immediately but later in the day informed Knight that he would honor the picket line. Knight told him he was fired. On January 31, apparently after Respondent's counsel, Kaminski, informed Respondent that it had committed error in firing employees for refusing to work during the strike, Respondent's vice president engineer, Niederkofler, telephoned Watts and informed him that he was not fired and that he should disregard what Knight had said to him. He invited Watts to return to work. Watts later that day discussed with Patrick whether they should return to work and both decided not to return while the strike was in progress. Watts subsequently received a letter from Respondent offering him reinstatement. Except for what counsel said in their opening statements at the commencement of the hearing, there is nothing in the record to indicate what happened to Ball and Kearns. According to Kaminski, Kearns had just been hired and had not yet reported for work at the time the strike commenced. Ball, at the time the strike commenced, was on maternity leave and subsequently resigned . These two women, according to Kaminski, were not told on January 28 that they were discharged, but "The word was out that anybody that didn't come to work was discharged." Consequently, the Company did communicate to all four of them that when and if they were going to cross the picket line, their jobs would be there. "There could be danger of their jobs being replaced." With respect to the two men, Watts and Patrick, there was, as Kaminski conceded, "a tactical error." These employees, though not in the bargaining unit, were clearly engaged in a protected concerted activity when they refused to cross the picket line set up by their fellow employees. Respondent could not lawfully discharge them for engaging in this action, as it concedes. The nonunit employees in effect joined the strike and were entitled to the same protection as the strikers. In view of the prompt remedial action taken by Respondent when advised of its error, and the fact that no loss of work or wages can be attributable to Respondent's initial action-since the nonunit employees clearly would not have been working for Respondent anyway-I do not believe it would effectuate the policies of the Act to base any unfair labor practice finding on the quickly revoked precipitate action taken by Program Director Knight. 3. Bargaining during course of strike Respondent operated during the strike with five striker replacements and nonunit personnel. With the assistance of the Federal mediator, another bargaining meeting was arranged for February 27. The February 27 meeting: This meeting started at 1:30 p.m. and, with a luncheon break intervening, ended at 5 p.m. Respondent's attorney, Kaminski, was back in the negotiations for the first time since December 13. Bichl continued to represent the Union. The Federal mediator was also in attendance. The parties reviewed the status of the bargaining in an attempt to clarify the areas of agreement and disagreement and, in the process of doing so, narrowed the areas of disagreement, with the Union accepting some of Respondent's proposals or counterpro- posals, such as on minimum terms, grievance and arbitra- tion, and scope of agreement. Respondent agreed to furnish alternative wording for the Union's proposals on seniority and vacations. Respondent also offered proposals WCUE RADIO, INC. 187 on probation and on management rights, but there was no agreement on these proposals. It was agreed that the parties would meet again on March 5. The March 5 meeting: This meeting was also attended by the Federal mediator, by Kaminski, and by the other regular representatives of the parties. Again the parties reviewed some of the areas in which they were in disagreement. Kaminski suggested that in view of the fact that Respondent's wage and announcers' duties proposals had been specifically mentioned in unfair labor practice charges filed by the Union it might be well to discuss those provisions in particular. Bich] responded that it was not just those provisions but Respondent's general course of bargaining that had caused the strike. Wages were discussed and Respondent again explained that its propos- als were only for the minimum to be paid and that Respondent was actually paying above the minimum. Although the Union accepted Respondent's proposals on seniority and Respondent's current holiday and vacation policy, no substantial progress was made at this meeting. At its conclusion the Federal mediator expressed the view that the meetings "were getting nowhere" and stated that he might remove himself from further participation. The April 18 meeting- About the second week in April, Kaminski telephoned the Federal mediator that Respon- dent was willing to withdraw its controversial announcers' duties proposals and asked the mediator to arrange another meeting with the Union. The meeting was held on April 18, commencing about 10 a in. For the first time, the Union's counsel, Ted Smoot, was present to assist Bichl and the employee members of the bargaining committee. Kaminski, Demeter, and Niederkofler were present for Respondent. The Federal mediator was also in attendance. By this time the Union had pared its original 31-page proposed draft contract down to a revised 10-page document and had eliminated the additional 83 pages of provisions contained in the AFTRA Codes. All unresolved issues were discussed at the meeting. It was agreed by all parties at the hearing that substantial progress was made toward reaching an agreement. Among other things, Respondent withdrew its duties proposal, but no substitute proposal was agreed upon. The Union accepted Respon- dent's wage proposals as they had been amended at the January 26 meeting. It also accepted Respondent's proposal that the scope of agreement be limited to employees at Respondent's present location after Kamin- ski pointed out that the Board could always decide whether, should Respondent remove its FM functions to another location, the FM employees would legally contin- ue to be a pait of the appropriate bargaining unit. The May 2 meeting: This meeting was attended by Kaminski, by the Federal mediator, and by the usual representatives of the Union and Respondent. Bichl's recollection was that Smoot was also in attendance, but Kaminski testified that he was absent because of a vacation. I find it unnecessary to resolve this conflict. Again the parties made progress in the negotiations. Still outstanding at the conclusion of this meeting were the issues of union security. a provision defining the duties of announcers and newsmen, grounds for termination of employment, and the termination of the agreement. The Union had requested earlier and had still not received information from Respondent regarding insurance cover- age for employees doing ground traffic reports. According to Union Representative Bichl, the parties were very close to an agreement at that meeting. They scheduled another meeting for May 9, but this meeting had to be postponed because of a Federal court proceeding in which Kaminski had to appear on May 9. The hearing before me commenced on May 15 but, due to an enlargement of the issues alleged in the complaint, was continued to May 29. During the interim, the parties had a bargaining session on May 16. The May 16 meeting: This meeting was attended by counsel for Respondent and for the Union as well as by the regular negotiators. The meeting began and ended with a discussion about the reinstatement of the strikers. Both the Union and Respondent presented revised proposals defin- ing announcers' duties but did not agree on the wording of a provision acceptable to both sides. In lieu of its original union-shop proposal, the Union suggested an agency shop, but Respondent stated that it was unwilling to agree to any form of union security. It stated, however, that it might be willing to agree to a checkoff of union dues: No agreement on the language for such a provision was reached. Also the parties had not agreed upon the duration of any agreement reached. 1 have no doubt that the parties at this meeting would probably have reached final agreement on the terms of a contract but for the fact that no agreement could be reached on the side issue of whether all the strikers would he reinstated. Respondent had hired five new employees and, for reasons not pertinent to the issues in this case, was unwilling to reinstate all of the strikers. Analysis and Conclusions It is the General Counsel's contention that Respondent, in violation of its statutory bargaining obligations, engaged in a course of surface bargaining, with no sincere interest in reaching an agreement with the Union. In support of this conclusion, the General Counsel argues that Respon- dent unreasonably delayed and procrastinated in the scheduling of negotiating meetings; that it waited for an unreasonably long time to submit any written counterpro- posals and that those which it finally submitted, particular- ly the announcers' duties proposal, the reasons for discharge proposal, and the wage proposal, were so harsh and unreasonable on their face as to evince an intention by Respondent not to reach any agreement: that Respondent failed to furnish the Union with information requested regarding hospital costs and wages: that Respondent took an uncompromising position in regard to the Union's union-security requests, and that Respondent made statements to various members of the bargaining commit- tee evincing its intention not to reach an agreement. If the issue of good faith or bad faith in bargaining must be judged on the basis of Respondent's conduct on one or more specific occasions or over brief periods of time, I have no doubt that the General Counsel has made out a case. There were undoubtedly periods, particularly prior to December 13, when it appears that Respondent was not willing to meet in bargaining sessions with reasonable frequency and its long delays in scheduling requested 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings undoubtedly led to unrest by the employees and talk by them of strike action to force bargaining. When Respondent's conduct as a whole and the Union's own actions are considered, however, one gets a different impression than when viewing isolated aspects of Respon- dent's negotiating deficiencies. The Union was not entirely without blame for the slow progress made. Although the Union had won the election on August 2, it was more than a month later, on September 7, before it made a request for bargaining and even then it did not suggest a specific date for a meeting. Moreover, at the first meeting on September 28, the Union was not yet ready for real bargaining, for it was not until then that it presented any proposals for consideration and the lengthy and incomplete document it then presented could hardly have been read and discussed at that meeting. The meeting lasted only 5 minutes and the Union obviously did not intend for it to be more than a get-acquainted meeting. Nevertheless, despite the slow start, attributable in part to the Union, there would appear to be no justifiable reason for the delay by Respondent of almost 2 months after the October 18 bargaining session in meeting again with the Union. An employer is not relieved of his responsibility to meet with reasonable frequency in bargaining by the fact that his counsel is too busy to meet. It is an employer's obligation, if he employs outside assistance in the bargaining, to choose someone who has the time to perform this task. Kaminski himself, I believe, recognized this fact when on December 13 he announced his intention to withdraw from further negotiations. If Respondent had continued to drag its feet in agreeing to bargaining schedules, a finding of bad-faith bargaining might well be warranted because of that factor. Following Kaminski's withdrawal, however, and the Union's strike threat, there was a decided change in pace. In addition to two meetings in December, there were four in January preceding the strike. During the approximately 5-month period after the strike commenced, there were only five meetings held, the longest lapsed time being between March 5, when an impasse appeared to have been reached, and April 18, when Respondent attempted to break the impasse by offering to withdraw its announcers' duties counterproposal. I am not persuaded from the record that responsibility for the poststrike paucity of meetings constitutes evidence of bad-faith bargaining. Let us turn now to the General Counsel's contention that Respondent manifested bad faith in bargaining by waiting an unreasonably long time for the submission of counter- proposals and by making those it did submit so harsh and unreasonable on their face that no self-respecting union could accept them. In view of the fact that the statutory bargaining obligations of a party do not require him to make a concession, it is questionable whether Respondent was legally required to make any counterproposals at all. It did promise some counterproposals, however, and, if its delay in supplying what it promised may have misled or frustrated the Union in its efforts to reach an agreement, it might be argued that Respondent was not fulfilling its obligations to make a sincere effort to reach an accord. It does not seem unreasonable to me that Respondent waited until all provisions of the Union's draft proposal were read and discussed at least preliminarily before submitting counterproposals. It is noted that the Union, although mildly protesting the procedure of reading the contract terms at each meeting, did acquiesce in this procedure. Nor do I regard Respondent's counterproposals on wages, announcers' duties, and reasons for discharge as in themselves evidence of an attempt to frustrate bargaining. Even a person unsophisticated in bargaining usually knows that the first proposal on an important or controversial topic in bargaining is rarely the final offer. Respondent's counterproposal on wages offered at the January 26 meeting was modified slightly during the meeting to make it more palatable to the Union and this offer was finally accepted by the Union on April 18. I agree with the General Counsel that some of the provisions of Respon- dent's announcers' duties counterproposal were extremely onerous or harsh and they no doubt irritated the employees and made progress in other areas more difficult. If Respondent had remained adamant as to all provisions of this counterproposal, I would be convinced that Respon- dent was not acting in a good-faith effort to reach an agreement. However, Respondent at the January 26 meeting explained its reasons for making the proposals, appeared willing to make some changes, and asked the Union for an alternative to what Respondent had submitted. Moreover, at the April 18 meeting, Respondent withdrew this controversial counterproposal altogether. At the January 26 meeting, just prior to the strike, Respondent also amended its controversial "reasons for discharge" counterproposal and the counterproposal as thus amended was subsequently accepted by the Union. The fact that Respondent was bargaining under threat of a strike does not, in my view, require it to alter the manner it would normally follow in bargaining. With respect to the General Counsel's contention that Respondent never furnished the Union with information requested regarding hospital costs and wages, I have concluded that these were not substantial problems in the bargaining process. The Union ascertained wage informa- tion not furnished by Respondent from the employees themselves and actually agreed to Respondent's wage proposals. It did not insist, during the bargaining confer- ences, on more adequate wage information. The evidence regarding requests for information pertaining to the hospital costs was not fully developed and I am satisfied that this subject was not a stumbling block in the failure of the parties to reach an agreement. It was not mentioned by any of the witnesses as an outstanding bargaining subject by the date of the last bargaining session. That request appears to have been lost in the shuffle of more important subjects on the bargaining agenda. I find no merit in the General Counsel's contention that Respondent failed to bargain in good faith by taking an uncompromising position with respect to the subject of union security. In rejecting the Union's request for a union shop or an agency shop, Respondent explained that it was opposed to union-security provisions as a matter of principle and that it believed a union-security provision would hamper its ability to recruit new talent. Respondent did suggest, however, that it might be willing to grant a checkoff of union dues. In view of the fact that Respon- WCUE RADIO, INC. 189 dent is not legally required to make a concession, there is no basis for inferring bad faith from its position in regard to union security. H. K Porter Company v. N.L.R.B., 397 U.S. 99 (1970). Finally, the General Counsel contends that Respondent evinced its bad faith in bargaining by making statements in December on two occasions to individual members of the bargaining committee indicating Respondent's intention not to reach an agreement. On one of the occasions, when there was talk of a strike in the plant , Station Manager Demeter told employee Neil Gabay that Respondent considered him a manager and asked if Gabay intended to participate in a strike if one was called. In addition-ac- cording to Gabay but denied by Demeter-Demeter predicted that the strike would he a long one and that Gabay was not going to be in a union. The other occasion to which the General Counsel refers involved employee Donald Miller who sought out Demeter in December to ascertain management's side of the union issue before deciding whether he would join in the strike which might occur. During the course of the conversation, according to Miller, Demeter stated that there would never be a union shop at the plant, that if a strike occurred it could last 7 or 8 years without a settlement, and that he, Demeter, did not care "if the guys stayed out there until their asses froze." Demeter testified that Miller came to him about whether he should be a part of the Union and that Demeter advised him that Miller would have to make up his own mind. Demeter denied making the statements attributed to him about a union shop and a strike. I shall not resolve the conflicts in the testimony of Gabay. Miller, and Demeter for the statements attributed to Demeter are not alleged to be violations of Section 8(a)(1) and I do not regard Gabay's and Miller's versions as evidence of bad-faith bargaining on the part of Respondent . Demeter's state- ments, including his predictions about the length of the proposed strike, were, I believe, merely expressions of his views and opinions, privileged under Section 8(c) of the Act. In summary, a consideration of Respondent's actions during the entire course of the bargaining negotiations and in the light of the Union's demands and conduct, convinces me that, although Respondent was engaging in hard bargaining and was determined not to make conces- sions merely because of the Union's strike threat, its conduct did not amount to bad-faith bargaining. It follows that the strike called by the Union on January 27, 1973, was an economic rather than an unfair labor practice strike and that the rights of the strikers must be adjudged accordingly. N.LR.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); The Laidlaw Corporation, 171 NLRB 1366, enfd., 414 F.2d 99 (C.A. 7. 1969), cert. denied 397 U.S. 920 (1970). CONCLUSIONS OF LAW Respondent has not engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, as alleged in the complaint. RECOMMENDED ORDER The complaint should be, and it hereby is, dismissed.