Horizons Communications Corp. of California

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Horizons Communications Corporation of California and American Federation of Television & Radio Artists, San Francisco Local, AFL-CIO. Case 20-CA-8563 June 20, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 5, 1974, Administrative Law Judge E. Don Wilson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and finds merit in the exceptions. Accordingly, the Board has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the limited extent consistent herewith, and to reject his recommended Order that the complaint be dismissed. The essential facts in this case are as follows: On April 26, 1972, the Union was certified as the collective-bargaining representative of certain of Respondent's employees by the California State Conciliation Service. Thereafter, the Union and Respondent engaged in collective-bargaining negoti- ations for a contract from June 22, 1972, to May 23, 1973, when, as found by the Administrative Law Judge, the parties reached an "impasse." Early in negotiations Respondent informed the Union that its financial position was weak, and that because of this it was proposing a starting wage rate for newly hired announcer-operators which was lower than the rate paid under the previous collective-bargaining agree- ment with another union. The new rate proposed by Respondent was $3.50 per hour or $140 per week, as compared to the previous rate of $194 per week, which the Union wished to retain. This was the only starting rate proposed by Respondent during the negotiations, and was also Respondent's final pro- posal as embodied in its proposed contract of April 30, 1973. It was stipulated that the wage rate I The Court also cited its earlier decision in N.LR.B. v. Crompton- Highland Mills, Inc, 337 U.S. 217 (1949), where it had sustained the Board's conclusion that the employer's unilateral grant of a wage increase substantially greater than any it had offered to the union during negotiations which had ended in impasse clearly manifested bad faith and violated the employer's duty to bargain . Ibidd, at 743, In. 11. Y We do not agree with the conclusion of the Administrative Law Judge that the $4 per hour or $160 per week paid to new employees Gould and Fitzmorris was consistent with, and reasonably included in, the preimpasse 211 NLRB No. 122 thereafter paid by Respondent to employees Gould and Fitzmorris when they started work as announc- er-operators in July and August 1973, after the "impasse" of May 23, 1973, was $4 per hour or $160 per week. The Administrative Law Judge found that the figure of $160 per week was consistent with Respon- dent's prior proposals, and that it was reasonably included in the preimpasse proposals. He therefore concluded that, in the light of the impasse, Respon- dent's unilateral payment of $160 per week to new employees was not a violation of Section 8(a)(5). We disagree. In N. L. R. B. v. Katz, et al., 369 U.S. 736, 745 (1962), the United States Supreme Court stated: An employer is not required to lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage increases greater than any he has ever offered the union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the union.' The Board has recently reaffirmed this principle in H. C. Lien Rubber Co., 207 NLRB No. 26, where it stated: The Administrative Law Judge found, and we agree, that Respondent's unilateral grant of a general wage increase greater in amount than that it offered the Union was a violation of Section 8(a)(5) and (1). Accordingly, where, as here, Respondent, after an impasse in negotiations, without consulting or bargaining with the Union, unilaterally paid new employees a wage rate significantly greater than any it offered at the bargaining table, we find that it violated Section 8(a)(5) and (1).2 CONCLUSIONS OF LAW 1. At all material times, Respondent has been an employer engaged in commerce within the meaning of the Act. 2. At all material times, the Union has been a labor organization within the meaning of the Act. 3. At all material times, the Union has been the duly designated collective-bargaining representative of Respondent's employees in the following unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: proposals of $3.50 per hour or $ 140 per week . The 50-cent-per-hour or $20- per-week increase was an increase in wages of almost 15 percent , which in this wage rate range can hardly be viewed as insignificant. Cf. Alexander Typesetting, Inc., 207 NLRB No. 54, where the employer made an offer of a $10.50-per-week wage increase during negotiations , and then after impasse unilaterally instituted a $10-per-week wage increase, and thus there was a minimal difference of only 50 cents per week less which was reasonably consistent with and included in the employer's preimpasse offer. HORIZONS COMMUNICATIONS CORPORATION 793 All regularly scheduled announcer-operators em- ployed by Respondent at its Berkley, California, facility, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act.3 4. By unilaterally paying rates to new announcer- operators in July and August 1973 which were significantly greater than any offered in prior collective-bargaining negotiations with the Union, without consulting or bargaining with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the foregoing conduct, Respondent also has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged 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 mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in the aforesaid'unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the National Labor Relations Board hereby orders that Respondent, Horizons Communi- cations Corporation of California, Berkeley, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with American Federation of Television & Radio Artists, San Francisco Local, AFL-CIO, as the exclusive collec- tive-bargaining representative of the employees in the above-described appropriate unit, by unilaterally paying wage rates to employees which are signifi- cantly greater than any offered in prior collective bargaining with the Union, without consulting or bargaining with the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds necessary to effectuate the policies of the Act: (a) Post at its facility in Berkeley, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material, (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 The parties stipulated to the appropriateness of this unit. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with American Federation of Television & Radio Artists, San Francisco Local, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit described below, by unilaterally paying wage rates to employees which are significantly greater than any offered in prior collective-bargaining negotia- tions with the Union, without consulting or bargaining with the Union. The appropriate unit is: All regularly scheduled announcer-operators employed at our Berkeley, California, facili- ty, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. HORIZONS COMMUNICATIONS CORPORATION OF CALIFORNIA (Employer) Dated By (Representative) (Title) 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: Pursuant to due notice, a hearing in this case was held before me on November 29 and 30, 1973, in San Francisco, California. A complaint and notice of hearing was issued by the General Counsel of the National Labor Relations Board, herein the Board, on October 31, 1973, upon a charge filed by American Federation of Television & Radio Artists, San Francisco Local, AFL-CIO, herein the Union, on August 29, 1973, against Horizons Communications Corporation of California, herein Respondent. The parties fully partici- pated in the hearing. Briefs of General Counsel and Respondent have been fully considered.' Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent is a Delaware corporation with its principal office and place of business in Berkeley, California, where it operates a radio station. In the past calendar year, its gross revenue exceeded $100,000. At all material times, it has been an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION At all material times, the Union has been a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 2 A. The Issues As framed by the pleadings, there are three substantial issues: 1. Did Respondent violate Section 8(a)(5) and (1) of the Act by unilaterally reducing the wages of its employees without prior approval of the Union and without bargain- ing to impasse with the Union? I What I consider as an unopposed motion of Respondent to correct the transcript is granted. 2 Substantially, the evidence as to material matters in issue is not in dispute. Much of the evidence consists either of stipulations or unques- tioned documentary evidence. There is contradictory testimony on matters which I considered relatively minor. Where there is a conflict in the testimony of Oliver W . Hayden and Kent W . Waterman, I credit the 2. Did Respondent on some unknown date in June 1973, and continuing thereafter, unilaterally discontinue the practice of employing two supervisory technicians without prior approval of the Union, and without bargain- ing to impasse with the Union? 3. Did Respondent beginning about June 23, 1973, and continuing thereafter, unilaterally discontinue the practice of allowing employees to have 12 hours' time off between shifts without prior approval of the Union and without bargaining to impasse with the Union? B. Background Respondent purchased a radio station , with the call letters KPAT, from Wright Broadcasting Company about November 1970. At that time, Wright Broadcasting Company had a collective-bargaining contract with the IBEW. It was to expire January 31, 1972. When Respon- dent purchased this radio station, it "assumed" the contract as a successor-employer. Some time after its purchase by Respondent, the radio station's call letters were changed to KRE. C. The Facts On November 23, 1971, IBEW sent Respondent a notice of intention to amend the then existing contract. Some time early in 1972, IBEW stepped out of the picture. After an election, conducted by a California State Conciliation Service, the Union was certified as the collective-bargain- ing representative of certain of Respondent's employees on April 26, 1972.3 The Union's executive secretary, Donald S. Tayer,4 on June 1, 1972, mailed the Union's contract proposalsa to Respondent. The initial meetings were on June 22 and August 3, 1972. Tayer met with Oliver W. Hayden, who came with Respondent as vice president and general manager, on December 27, 1971 6 The parties were in agreement as to matters discussed at these two meetings, although there was no certainty as to what was said at one rather than at the other meeting. They together discussed the Union's proposals which were based essentially on the expired contract between Respondent and the IBEW. Respondent sought relief from some of the terms of the expired agreement, such as exclusion of the shift engineers from the unit that had been certified, and reducing the requirement that there be two supervisors, as had been required in the prior and expired contract. Respondent also stated that it was necessary for it to have more than two part-time employees and suggested that it needed three. Respondent pointed out various serious financial problems with which it was confronted. Hayden showed and gave Tayer a copy of Respondent's financial statement for the first 6 months of 1972 and Hayden advised Tayer that Respondent was not in as strong a position as more testimony of Hayden, who not only impressed me as being completely honest but also as more knowledgeable with respect to factual matters in dispute between them. 3 The parties are in agreement as to the appropriate unit. 4 The Union's counsel in this hearing. ° G. C. Exh. 2. 6 Such continued to be his position as of the time of the hearing herein. HORIZONS COMMUNICATIONS CORPORATION 795 powerful stations to obtain revenue and that because of the cost factor it could not offer a wage increase. There were no further meetings until October 19, 1972, when Tayer and Hayden again met. The principal matter of discussion was the termination of an announcer-opera- tor as a unit employee. The Union conditioned acceptance by it of its prior proposal on the reinstatement of the terminated employee. Various other matters were also discussed. As General Counsel has stated in his brief, the Union stated that the IBEW contract wage rate could remain in effect if Respondent bought the Union's entire proposal. On October 20, 1972, by telephone, Hayden rejected the Union's proposal of October 19 stating, in particular, that the terminated employee would not be reinstated. On February 6, 1973, the Union proposed to Respondent that there be an extension of the expired IBEW contract, such extension to be for a 6-month period, it being understood that Respondent would contribute 6-1/2 percent to the Union's pension and welfare program. Between February 6 and April 9, 1973, Hayden and Tayer had telephonic communications with respect to the employment of apprentice announcers but no meeting of the minds was achieved. On February 6, 1973, the Union proposed to Respondent that there be an extension of the previous expired IBEW contract, for a period of 6 months and that Respondent contribute 6-1/2 percent to the Union's pension and welfare program. There is conflict as to discussions on other matters between February 6 and April 9, 1973. On April 9, 1973, Hayden proposed that announcers be paid at the rate of $140 a week, adding that he was willing to continue some of the present staff at their existing wages. Tayer said Respondent's proposal was not acceptable. He added that Hayden should put his proposal in writing and then concluded the meeting. On April 19, 1973, Tayer wrote Hayden stating, among other things, "I have previously advised you that under no circumstances would AFTRA consider a starting salary in the vicinity of $140 per week and I regard your continued efforts to further erode this contract as outrageous." He again asked Hayden to put his contract proposal in writing. In evidence is an April 30, 1973, letter and proposal from Hayden to Tayer.7 I find they were sent in good faith. Respondent, operating at comparatively large losses, proposed that only three regularly full-time announcers be kept at the rate of $242.50 per week and that new employees be hired at $140 per week or $3.50 per hour. Also, in evidence is General Counsel's Exhibit 11 wherein Tayer told Hayden the "proposed contract" of April 30, 1973, was "completely unacceptable and on the basis of your recalcitrant position, it appears that AFTRA will be forced to take economic action against your station."8 It could not be plainer to me that there is insufficient probative evidence that Respondent's written proposal of April 30, 1973, was made other than in good faith. Its outright rejection on May 23, 1973, by Tayer is not suggested by anyone to have been a mere ploy or r G. C. Exhs. 9 and 10. 8 Prior to its May 23, 1973, rejection of Respondent's proposal, the Union sought and obtained strike sanction from the Central Labor Council. anything but a good-faith final, definite, determinative, outright rejection of Respondent's good-faith April 30, 1973, offer. The rejection was not ambiguous. It held out no prospect that a further meeting was desirable or, if held, might even achieve a meeting of the minds. The Union did not merely reject the April 30, 1973, counterproposal. It called it "completely unacceptable" and in simple language threatened a strike to achieve its proposals which, without considering details at the moment, were far apart from the counterproposals of Respondent. The end of bargaining was fait accomplis. The Union sought no further "bargain- ing." Obviously, on May 23, 1973, the Union was not buying what to it were "completely unacceptable" counter- proposals of Respondent and, with its prognostication that "economic action" would be in order9 to support and/or enforce its proposals, it was not seeking any further bargaining with Respondent. Not only were the parties far apart in their positions but also, I find, that, the Union by its May 23, 1973, letter made it obvious, especially in light of its subsequent lack of action, excepting for its August 29, 1973, charge herein, that further across-the-table bargaining would be to no avail. Counsel for General Counsel herein states, or more strongly argues, that the Union and Respondent herein never reached a "deadlock." There was no "impasse" says he, beginning as of May 23, 1973. With counsel for General Counsel, I disagree and find that beginning on and continuing after May 23, 1973, the Union acted as if it were and, indeed, it was, at an "impasse" with Respondent over matters of collective bargaining. That Respondent's subsequent economic actions, consistent with its prior proposals or counterpro- posals (adamantly rejected by the Union), may have constituted "reductions" rather than "increments" in existing benefits is, I find, of not the slightest moment. The counterproposals had been made in good faith and they had been firmly rejected. There was nothing left to bargain about, absent a reopening of the bargaining area. The Union made no effort to do this. I am not concerned with whether the Union's proposal of $194 as opposed to Respondent's counterproposal of $140 might have been reconciled through further bargain- ing. In fact, the Union, after Respondent's April 30, 1973, counterproposal, did nothing but file a charge some months later. The Union and Respondent were but a telephone's length apart. He did not even phone Respondent after May 23, 1973. Counsel for General Counsel contends the record establishes that before May 23, 1973, or as of that date, the parties were willing to depart from their stated figures. The Union asked for no discussion at any time after May 23, 1973, unless the charge be so considered.10 Counsel for General Counsel refers to a variety of issues allegedly never bargained about between the parties. The Union never requested nor was it refused such bargaining. It waited almost 5 months to strike after Respondent's April 30, 1973, offer. As of May 23, 1973, the parties were deadlocked. 9 The Union finally struck on October 15, 1973. 10 1 do not. 796 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find a complete absence of probative or substantial evidence that "Respondent was attempting to create an impasse for its own purposes." The strike threatened by the Union while occurring after some unilateral changes is most consistent with my finding that the parties had arrived at an impasse and the Union was endeavoring by economic action to bend Respondent's will to that of the Union. The Respondent had explained again and again why it could not accept the Union's proposals. The Union, time after time, emphatically told Respondent that Respon- dent's counterproposals were unacceptable to the Union, underscoring its position by its May 23, 1973, letter. I find that the Union made it clear that there was no point in further discussions. I do not find Respondent was under any obligation to make another counterproposal after the Union so vehemently rejected Respondent's counterpropo- sal of April 30, 1973. Respondent had made every effort to explain to the Union the bases for its bargaining position and why it could not agree to the proposals of the Union. On April 9, 1973, Tayer admittedly told Hayden a hiring salary for newcomers of $140 per week was "ridiculous" and could not be "considered." At this meeting, Hayden, having had part of his wage proposal labeled ridiculous, told Tayer he saw no point in putting his proposal in writing in light of Tayer's expressed rejection, but he nonetheless did so as the Union requested on April 30, 1973. After May 23, 1973, there were no meetings for bargaining purposes. Respondent had repeatedly explained its dire financial problems to the Union and offered proof to the Union. Here I find there was a true impasse after good-faith bargaining by both parties. Hayden, as counsel for General Counsel argues, never presented a figure of $140 per week as "rock bottom." The parties had bargained, were miles apart, and at least as of May 23, 1973, the Union recognized the facts and made no further effort to bargain after they knowingly reached a deadlock. I find it completely immaterial that Respondent's counsel, Corbett, asked whether and when the Union would strike or that the Union's answer was noninformative. I find the Union said it would strike in support of its bargaining position at what it thought was the best time for it. They were not discussing "bargaining." They were discussing "strike," to enforce the Union's demands. The Union made it plain that when it chose it would exert economic strength to achieve its demands rather than again resort to the bargaining table. Bargaining was at an end-a deadlock -an impasse in bargaining existed. As to paragraph X(a) of the complaint, it was stipulated that at least three employees, beginning sometime in July 1973, performed unit work at rates less than those provided for in the long expired contract with another union." Contrary to the firm statement of counsel for the General Counsel, I find it was not stipulated, with respect to paragraph X(b) of the complaint, that Respondent discontinued the practice of employing two supervisory technicians in April. Respondent denied it had in its employ since February 28, 1973, individuals known as "supervisory technicians." There were questions as to whether such discontinuances occurred in February or April. Respondent entered into no stipulation with respect to the discontinuance of two supervisory technicians and demanded evidence in this regard. I find no substantive nor probative evidence in support of this allegation of the complaint. I refer to page 5 of the brief of counsel for the General Counsel and pages 68 and 69 of the transcript herein. The complaint states that this unestablished event began on an unknown date in June. If it occurred, I have insufficient probative and substantial evidence as to the date thereof. Paragraph X(c) of the complaint refers to the alleged unlawful12 practice of allowing unit employees less than 12 hours off between shifts without bargaining with or arriving at an impasse with the Union. Waterman's basis for his "conclusion" that premium pay for short turna- round ceased in May or June 1973 was that "there was a change in schedule, for which I was not eligible for turnaround." It appeared to him that a junior person was put in the turnabout situation, "and was perhaps not cognizant of the fact that short turnaround had been paid." Employees Fitzmorris and Waterman worked short turnarounds for about 4 weeks each.13 This was after a genuine impasse had been reached. Paragraph 2 of Respondent's counterproposal provided for a straight-time workweek of no more than 40 hours. Obviously there could be short turnarounds with no more than 40 hours in a week's work, thus straight time. The Union flatly rejected this. Respondent bargained to a stalemate in good faith and in an attempt to live with the Union in complete harmony. Respondent was not hardnosed. It was willing to give but there was a point beyond which it could not go. The Union would not and did not accept this position. The Union could not and would not retreat from its oft- repeated positions. The immovable rock was opposed by the irresistible force. This was where the parties found themselves before and after May 23, 1973. Such changes, as may have been made by Respondent after May 23, 1973, followed a demonstrated loss to Respondent of about $200,000 per year. I credit the testimony of Hayden that on June 22 or August 3, 1972, Tayer stated that as long as the convenience of an employee was involved and there was no complaint, there should be no problem with short turnaround. The need for relief from higher wages as well as limited coverage in the Union's health and welfare plan and from the other burdens arising from acceptance by Respondent of the Union's demands appears to me to have been evident. Respondent often stated them to the Union to no avail. Short turnaround was discussed at either the June 1972 or August 3, 1972, meeting. That such was put into effect after the impasse I find occurred does not make such effectuation unlawful. Thus, I find counsel for General Counsel has failed to establish the violation alleged in section X(c) of the complaint by a preponderance of the probative and substantial evidence. The entire record makes it abundantly clear that neither Respondent nor the Union, nor Respondent's nor the 11 Such had been the subject of bargaining between Respondent and the 12 Unilateral. Union. 13 How often is not explicated. HORIZONS COMMUNICATIONS CORPORATION Union's predecessor, adhered strictly to prior contractual provisions. I credit Hayden's testimony that at least since January 27, 1971, contractual provisions with respect to "short turnaround were not carried out." I find compliance with the expired contract to have been fairly "loose." Tayer testified as to at least one instance where the Union permitted an employee to do a short turnaround without premium pay where it met with the employee's and another's convenience. I also credit the testimony of Respondent's witness, Hayden, that several persons who worked within the Union's jurisdiction were not covered by the contract and were not within the bargaining unit. This had been a practice of years. Any alleged unilaterial and proved change in working conditions was the subject of bargaining prior to May 23, 1973. Certainly, reductions in newly hired full-time announcer-operators had been the subject of full bargain- ing before April 30, 1973, and certainly before May 23, 1973. I have noted the counsel for General Counsel is mistaken in believing section X(b) of the complaint was proved by a stipulation. There was no such stipulation. Counsel for Respondent called for evidence in this regard which was not forthcoming. With respect to paragraph X(c) of the complaint, these matters had been subject to pre-May 23, 1973, bargaining and in any event I accept the testimony of Hayden as to practices in this regard prior to May 23, 1973. I have most carefully considered and weighed the testimony of Waterman. Much of it was conclusionary in nature and unsupported at all by the paychecks he claimed to have but failed to produce. Counsel for General Counsel, himself, characterized Waterman's testimony that overtime he alledgedly received was for "short turnaround," as a "conclusion" of the witness.14 I do find pursuant to the stipulation of the parties that employees Fitzmorris and Waterman were involved in "short turnaround." 15 That they worked more than 8 hours a day or more than 40 hours a week in such circumstance, I find there is neither sufficent probative nor substantial evidence.16 Also, such work may have met their convenience and there may have been no complaint from anyone. I credit Hayden's testimony that it had been the practice for some time at the station for some day-shift employees to work until midnight on Saturday and return on Sunday at 6 a.m. and they were not paid overtime. Counsel for General Counsel would apparently place the burden on Respondent to have resumed negotiations after the Union's outright rejection of Respondent's April 30, 1973, offer. I do not agree. By its May 23, 1973, rejection of Respondent's written counterproposal, the Union made it manifestly clear that there would be no point to further "bargaining" and that the Union would probably resort to a strike to achieve acquiescence by Respondent to the Union's proposals. That the Union finally struck on October 15, 1973, did not require Respondent, as counsel for General Counsel seems to suggest,17 to attempt to resume negotiations. 14 Tr. p. 121. 15 Cf. X(c). 16 Such was clearly involved in Respondent's plea to the Union that it could not comply with the Union's economic demands. 797 Concluding Findings Counsel for General Counsel concedes that Respondent would not have violated the Act by unilaterally making changes in terms and conditions of employment, reason- ably to be included in its preimpasse proposals if after good-faith negotiations the prospect of concluding an agreement had been exhausted and an impasse had been reached, citing Taft Broadcasting Co., 163 NLRB 475. That, I conclude, is precisely the situation in this case. I have pointed out in my findings that reductions rather than increases being the lot of the employees as a result of Respondent's unilateral actions is immaterial . This Union was not disregarded in the long bargaining process which had come to a halt on May 23, 1973. As counsel for General Counsel says in his brief,18 the "parties met on June 22, August 3 and October 19, 1972, and bargained on the basis of the Union's eleven section proposal. " (Emphasis supplied.) The bargaining as it continued resulted in an impasse. Counsel for General Counsel states that the Union told Respondent it was willing to bargain about Respondent's figure of $140 compared to the Union's $194 as a starting salary. The fact is that before May 23, 1973, when Respondent mentioned $140, Tayer, in effect, told Hayden to "save his breath," and his letter of May 23 clearly proclaims his position that Hayden's proposal of April 30, 1973, was completely unacceptable. Counsel for General Counsel states that after the Union's flat rejection of Respondent's April 30, 1973, counterproposal "there was obviously room for discussion of starting salary." Why did not the Union ask for such discussion if it thought it might prove efficacious? It did not. Rather, thinly veiled or not, it threatened strike action to support its demands. The Union's statement in its May 23, 1973, letter to Respondent that "Your `Proposed Contract' is completely unacceptable" and threatening a strike based on Respon- dent's alleged "recalcitrant position," makes the "dead- lock" or "impasse" abundantly clear especially when the Union requested no further bargaining. Contrary to counsel for General Counsel, I find the opposing positions of the parties were so well fixed as to amount to a "stalemate." This case cannot be decided at this time without making it abundantly clear that the Board 's statements in Hi- Way Billboards, Inc., 206 NLRB No. 1, have been fully considered and studied. As of May 23, 1973, and prior thereto, there was, here, a deadlock. Neither party was willing to' move from its position. Respondent and the Union had long discussed the issues between them in good faith. Each strove to reach an agreement on subjects open to discussion between them in good faith. Respondent, at least, exerted its best honest efforts to achieve an agreement on any and all subjects.19 Neither Respondent nor the Union would change its position, at least in such fashion as would make its position acceptable to the other, in any meaningful degree. There was an impasse on substantially all bargainable issues. There being an impasse here, Respondent could "make 17 P. 6 of his brief. 18 P. 7. 19 1 do not conclude that the Union failed in this regard. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral changes in working conditions if they [were ] consistent with the offers the Union had rejected." This case makes it evident that this Respondent did not violate the Act by making unilateral changes in working condi- tions, as alleged in the complaint. Here, there was an hiatus in negotiations in the overall ongoing process of collective bargaining. Such had ceased at least as of the time Respondent made any changes. Certainly, the Union had ceased to negotiate and threatened to resort and finally, on October 15, 1973, had resorted, to economic persuasion to establish the primacy of its negotiating position. Changes by Respondent were clearly consistent with its preimpasse counterproposals. Counsel for General Counsel states that, far from there being an impasse herein, Respondent merely left the bargaining table permitting the Union to make use of such other devices as it might have. I conclude to the contrary. I find in effect that having received Respondent's April 30, 1973, counterproposal, as requested by the Union, if not demanded, the Union told Respondent, in effect, bargain- ing is over, and it looks like we'll have to use economic force against you. The Union utilized only silence to "talk" to Respondent other than filing the charge herein. Its May 23, 1973, letter called for no reply from Respondent. It was a letter of rejection and a threat. The silence of the parties beginning on May 23, 1973, makes it abundantly clear that they genuinely believed they were far apart in their positions, so far apart that a phone call, a letter, or a visit could not bring them together or even to a rapprochement. I find the filing of the charge herein did not negate an impasse. It was simply an effort by the Union to obtain support from the Board at the bargaining table. I reject, as contrary to the facts, that the Union bounced the ball back to Respondent20 who promptly dropped it. I find the Union did not even dribble the ball. It deflated it. C'est finis. I find and conclude that General Counsel has failed to establish the allegations of the complaint that Respondent violated the Act by a preponderance of the probative and substantial evidence. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. At all material times, Respondent has been an employer engaged in commerce within the meaning of the Act. 2. At all material times the Union has been a labor organization within the meaning of the Act. 3. The record does not establish that Respondent has engaged in any of the unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the Board issue the following: ORDER 21 The complaint herein is dismissed in its entirety. 20 On May 23, 1973. 102.48 of the Rules and Regulations, be adopted by the Board and become 21 In the event no exceptions are filed as provided by Sec. 102.46 of the its findings, conclusions, and Order, and all objections thereto shall be Rules and Regulations of the National Labor Relations Board, the findings, deemed waived for all purposes. conclusions, and recommended Order herein shall, as provided in Sec.