Taft Broadcasting Co.

TAFT BROADCASTING COMPANY Taft Broadcasting Company and American Federation of Television and Radio Artists, Columbus-Dayton Local. Case 9-CA-8219-3 January 13, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 20, 1974, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent 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 has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his 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 Taft Broadcasting Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I We note that in par. 4 of the section entitled "The Alleged Unfair Labor Practices" the Administrative Law Judge inadvertently referred to August 24 as the date on which Basso telephoned the earner and rescinded the authorization for the move . The actual date was October 24. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: This case was heard on July 16, 1974, upon a complaint' issued by the General Counsel of the National Labor Relations Board on May 17, 1974. The complaint alleged that Taft Broadcasting Company, hereinafter called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The Respondent, in its answer, has denied the commission of any unfair labor practices. Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: i The complaint was founded on a charge filed on January 17, 1974, by American Federation of Television and Radio Artists, Columbus-Dayton FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 119 The facts found herein are based upon the pleadings. The Respondent, a Delaware corporation, is engaged in the operation of a number of television and radio stations under license of the Federal Communications Commission, in various States in the United States including -station WTVN-TV at Columbus, Ohio, the only facility involved in this proceeding. During the 12-month period preceding the issuance of the complaint , a representative period, Respondent had a gross income in excess of $ 100,000. During the same period, Respondent had a direct inflow of goods and services valued in excess of $50 ,000, which it received directly from points outside the State of Ohio at its locations in the State of Ohio. The parties agree and based upon the foregoing, I find that Respondent is engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts in this case are substantially undisputed. The Respondent's employees at its television broadcasting station WTVN-TV in Columbus, Ohio, are represented by the Union . The issue involved here is as follows: Where David Michaels, an individual , was hired by the Respon- dent in August 1973 2 under a personal employment contract permitted by the collective-bargaining agreement then in existence between the Respondent and the Union, and one of the conditions in the personal employment agreement provided that the Respondent would pay for the movement of Michaels' household possessions from Atlanta, Georgia, to Columbus, Ohio, did the Respondent violate the Act when it rescinded its authorization for the movement of Michaels' household goods because, as Respondent says, he was not actively employed; when the reason for Michaels' failure to perform services for the Respondent at the time was because he was a participant in a lawful economic strike called by the Union against the Respondent and he had not at that time been permanently replaced. Michaels was residing with his family and working as an announcer for a television station in Atlanta, Georgia, when, in July 1973 , he was interviewed by Respondent's program manager, Nicholas Basso, for a position as a talk- show host. Following negotiations concerning conditions under which Michaels would accept employment, they agreed to terms and executed a personal employment contract. Among the conditions demanded by Michaels and accepted by the Respondent were (a) the Respondent would bear the expense of moving Michaels' furniture and Local, hereinafter called the Union. 2 Unless otherwise indicated, all dates hereinafter refer to 1973 216 NLRB No. 10 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other belongings from Atlanta to Columbus; (b) the Respondent would provide clothing to be worn on the program; and (c) the Respondent would pay for his living accomodations in Columbus until he moved his family to Columbus. On August 20 Michaels commenced his employment with the Respondent and on August 28, Michaels and Basso executed the personal employment contract.3 This personal employment contract was permis- sible under the collective-bargaining agreement then in existence between the Respondent and the Union.4 Michaels initially was indoctrinated to the type of work he was to perform and he engaged in advance publicity for his show. He first appeared on the air on October 1. He was lodged at the Ramada Inn South at the Respondent's expense and Respondent provided the clothing he wore on the air pursuant to the personal employment contract. Michaels planned to move his family and household possessions from Atlanta to Columbus on or about October 23. By letter dated October 12, Basso notified the carrier the Respondent would bear the expense of moving Michaels' furniture and belongings to his new residence in the Columbus area. Michaels had done about 12 live shows when on October 17, the Union commenced an economic strike at Respondent's station.5 Michaels, a member of the Union and employed in the bargaining unit, ceased work altogether with his fellow employees and participated in the strike. On August 24, Basso telephoned the carrier and rescinded the authorization for the moves That same day Basso confirmed this conversation by telegram to the carrier, with a copy to Michaels. It read as follows: Confirming our telephone conversation of this morning we are rescinding until further notice our authorization of October 12, 1973, regarding the move of David M. Potts (Michaels) from Atlanta to Columbus, Ohio. We will pay for all work done by you prior to noon today, October 24, 1973. We ask that you do nothing further until you hear from us. Sometime thereafter, but still during the strike, Michaels made arrangements with the Union for it to help pay the expense of the move and the goods were moved to Columbus. The strike terminated on December 17. Michaels by this time had been permanently replaced and was not reinstated.? However, it is undisputed that on October 24, when the Respondent cancelled its authoriza- tion to bear the moving expenses, Michaels was an economic striker who had not yet been permanently replaced. Basso testified that had Michaels offered to return to work on October 24, he would have been reinstated and the Respondent would have paid for the moving expenses. Basso testified that the authorization to pay the moving expenses was cancelled because Michaels was not "performing under his contract" but he also stated he was aware the reason for the nonperformance was because Michaels was participating in the strike against the Respondent. Analysis and Discussion The General Counsel contends that the Respondent's action in rescinding the authorization to move Michaels' belongings was in retaliation for his having engaged in an activity protected by Section 7 of the Act - participating in a lawful economic strike. The General Counsel argues that the Respondent's obligation to bear the expense had already accrued and had not been extinguished by Michaels' strike activity. The General Counsel's position is that even if Respondent's conduct was not so pervasive as to be inherently destructive of employee rights, the conduct still violated the Act because it was not based on valid business considerations but was in retaliation for Michaels' engagement in the protected strike activity. The Respondent, on the other hand, first argues that the action involved is wholly dependent upon the interpreta- tion and application of a personal contract between Michaels and the Respondent, one in which the Union itself was not involved, and thus should be left to the parties themselves and the courts to resolve and not the Board. In support of this argument, Respondent relies on Local 365, United Automobile, Aerospace and Agricultural Implement Workers of America, United Automobile Workers, 195 NLRB 835 (1972). I find this cited case inapplicable. In the cited case, the Board refused to decide whether the employer was obligated to provide severance pay to an individual employee under a personal agreement but left the issue up to the parties to be interpreted and resolved. In that case the Board carefully pointed out that the personal agreement preceded the advent of a collective-bargaining representative and that the private agreement was effec- tively terminated through negotiations leading to the execution of a collective-bargaining contract where sever- ance pay was discussed during negotiations and rejected by the union membership, choosing instead to accept a wage increase. Here, however, the personal employment agree- ment between Michaels and the Respondent was entered into during the term of a collective-bargaining contract between the Respondent and the Union and such terms and conditions of employment agreed upon between the Respondent and Michaels were permitted by the collec- tive-bargaining agreement and in no way could be said to have infringed upon the conditions of employment of other unit employees under the contract. The Respondent also argues that while Michaels was engaged in the strike, the Respondent's obligations under 5 The execution of the personal employment contract was delayed for several days as the signatories sought to refine the language contained in the agreement. 4 Section VI-A of the collective-bargaining agreement read as follows: The Company agrees that it will not enter into any contract with or employ any artist upon terms and conditions less favorable to the artist than those set forth herein, and that no waiver by any artist of any provision in this agreement or in Schedules 1, 2 and 3 hereof , shall be sought by the Company or shall be effective unless the written consent of AFTRA to such waiver is first had and obtained. The Company further agrees that nothing in this agreement shall be deemed to prevent any artist from negotiating for, or obtaining , better terms than the minimum terms herein provided. 5 The contract had expired on September 17. 6 The carer's employees were at Michaels' home at the time preparing to move his possessions. r At the time of the hearing Michaels was in Los Angeles, and did not appear to testify as a witness in this proceeding. TAFT BROADCASTING COMPANY the personal employment agreement were suspended. Relying on the General Electric case,8 and related cases, he contends that the Respondent was not obligated to follow through its commitment to pay the moving expense because Michaels was not actively working or performing under the agreement. Respondent's counsel points out that the General Counsel has not attacked the Respondent's failure to continue its other obligations under the personal employment contract - the continued payment of wages, the furnishing of temporary lodging, and lastly, the cost of clothing to be worn while performing on the program. He argues that the moving expense obligation should not be treated differently from the other obligations referred to above and that all the obligations, including the "moving expense" obligation, were suspended during the strike. Unlike the Respondent's counsel, it appears to me the Respondent's obligation to fulfill its commitment to pay the moving expense stands separate and apart from its other specific obligations covering certain terms and conditions of employment. The commitment to pay the moving expense arose in August when Michaels com- menced his employment under the terms agreed upon by Respondent and Michaels. The fulfillment of this commit- ment was to take place when Michaels was prepared to move his family. On October 12, the Respondent instruct- ed the carrier it was authorized to move the goods to a specific address in the Columbus area at the Respondent's expense. Respondent at the time knew that the move was to take place on or about October 23. When the Respondent cancelled the authorization the carrier was in the process of preparing the movement of the household goods. As Respondent conceded, had Michaels left the picket line on October 24 and returned to work it would have paid the moving expense. I find without merit the Respondent's argument that it could lawfully rescind its authorization because Michaels was not actively perform- ing services for the Respondent . Respondent's obligation to fulfill its moving expense commitment matured when it was made aware that Michaels was ready to move, apparently shortly before its October 12 letter to the carrier. In agreement with the General Counsel I find such obligation was not extinguished when Michaels chose to participate in the Union's lawful economic strike against the Respondent. At the time of the cancellation Michaels had not been replaced and still was an employee, albeit not performing work for the Respondent. At the time of the cancellation Michaels had not abandoned his employment. The fact that he at a later date was permanently replaced does not affect the Respondent's earlier obligation to fulfill its commitment while he still was employed. It is not disputed that Respondent's agreement to pay the moving expenses was a condition of employment and a benefit extended to Michaels. The withdrawal of this benefit was directly related to his participation in a lawful protected concerted activity and necessarily created an inherently destructive effect upon the Section 7 rights of employees to engage in lawful strike activity in violation of Section 8(axl) and (3) of the Act .9 While the Respondent was not legally obligated to finance the strike by continuing to pay General Electric Company, 80 NLRB 510. 9 N.LRB. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). 121 wages, to pay for lodging or to pay for clothing to be worn by Michaels during his performances on the air during the period he remained on strike, Respondent could not lawfully rescind its moving expense obligation while Michaels remained a striking employee; an obligation that ripened and was earned when Michaels, still employed by the Respondent and not replaced, was prepared to move his family. Although it may be argued that specific proof of an unlawful motive here is required,10 it is clear that Respondent was discriminatorily motivated in rescinding the moving expense authorization. The rescession of the benefit already earned was based on the ground he was participating in the strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruction commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is' a labor organization within the meaning of Section 2(5) of the Act. 3. By rescinding its authorization to pay for the moving expenses of its employee, David Michaels, and failing to reimburse Michaels for the cost of such move, because of his participation in a strike, a protected concerted union activity, Respondent has engaged in discrimination in regard to terms and conditions of employment of its employees within the meaning of Section 8(axl) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent violated Section 8(a) (1) and (3) of the Act by discriminatorily rescinding its authorization to pay for the expense of moving the household goods of its employee, David Michaels, when due, I shall recommend that the Respon- dent reimburse him for the cost of moving his household goods from Atlanta, Georgia, to Columbus, Ohio, plus interest at 6 percent per annum. I shall also recommend that the Respondent post an appropriate notice. Upon the foregoing findings of fact and conclusions of 10 N.LR. B. v. Great Dane Trailers, Inc., supra. Cavalier Division of Seeburg Corporation and Cavalier Corporation, 192 NLRB 290 (1971). 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: t ORDER" Respondent, Taft Broadcasting Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withdrawing or withholding benefits earned or accrued from its employees for the purpose of discouraging its employees from engaging in a strike or other union or concerted activities or any other activity protected by the Act. (b) Discriminating in regard to the hire or tenure of employment, wages, hours of employment , or any term or condition of employment of its employees because of their participation in a strike or other union or concerted activities or any other activity protected by the Act. (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Reimburse David Michaels for the cost of moving his household goods from Atlanta, Georgia, to Columbus, Ohio. (b) Post at its facility in Columbus, Ohio, copies of the attached notice marked "Appendix." 12 Copies of said notice, or forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT withdraw or withhold benefits earned or accrued from our employees for the purpose of discouraging them from engaging in a strike or other union or concerted activities or any other activity protected by the Act. WE WILL NOT discriminate against any employee in regard to the hire or tenure of employment, wages, hours of employment, or any term or condition of employment to discourage activities on behalf of American Federation of Television and Radio Artists, Columbus-Dayton Local, or any other labor organiza- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL reimburse David Michaels for the cost of moving his household goods from Atlanta , Georgia, to Columbus, Ohio. 11 In the event no exceptions are filed as provided by Sec. 102.46 of the T AFT BROADCASTING Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herem shall, as provided in Sec . COMPANY 102.48 of the Rules and Regulations , be adopted by the Board and become (Employer)