Television Wisconsin, Inc.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Television Wisconsin, Inc and Communications Workers of America, AFL-CIO Communications Workers of America , AFL-CIO and John E. Lindgren and Television Wisconsin, Inc., Party to the Contract. Cases 30-CA-2205, 30-CA- 2261, 30-CA-2294, 30-CA-2416, and 30-CB-602 June 14, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER on the part of the Administrative Law Judge Upon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that the Administrative Law Judge prejudged the case, made pre- judicial rulings, or demonstrated a bias against the Respondent in his analy sis or discussion of the evidence 2 We agree with the Administrative Law Judge's finding that the Union's action in filing a suit to enforce an unlawful union-security clause violated Sec 8(b)(1)(A) of the Act-not because of the Union's subjective intent but because of the unlawful objective sought by the Union 3 In view of Respondent s discriminatory failure to refuse to reinstate those unfair labor practice strikers who sought to return to work, backpay shall be computed from June 29, 1973, the date on which their uncondition al request for reinstatement was made, rather than from 5 days thereafter as set forth in par 3 of the Remedy section of the Administrative Law Judge DECISION On September 26, 1975, Administrative Law Judge David S Davidson issued the attached Decision in this proceeding Thereafter, the Respondent Employ- er filed exceptions and a supporting brief The Gen- eral Counsel filed limited exceptions, a supporting brief, and a brief supporting portions of the Adminis- trative Law Judge's Decision The Charging Party filed exceptions and a supporting brief The Respon- dent Union filed cross-exceptions, a supporting brief, and a brief in support of portions of the Decision Subsequently, the Respondent Employer filed a brief answering the cross-exceptions and in support of portions of the Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions I and briefs and has decided to affirm the rulings, findmgs,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Television Wisconsin, Inc, Madison, Wisconsin, its officers, agents, succes- sors, and assigns, and the Respondent, Communica- tions Workers of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, for, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings We also find totally without merit the Respondent s allegations of bias and prejudice STATEMENT OF THE CASE DAVID S DAVIDSON, Administrative Law Judge On Jan- uary 16, 1973, Communications Workers of America, Lo- cal 5530, referred to herein as Local 5530, filed the charge in Case 30-CA-2205 On March 9, April 2, and July 25, 1973, Communications Workers of America, AFL-CIO, hereinafter referred to as CWA or the Union, filed the charges in Cases 30-CA-2261, 30-CA-2294, and 30-CA- 2416 On May 14, 1973, John E Lindgren filed the charge in Case 30-CB-602 On June 21, 1973, the Regional Director issued a consol- idated complaint in Cases 30-CA-2205, -2261, and -22941 On July 13, 1973, the Regional Director issued a com- plaint in Case 30-CB-602 and on August 17, 1973, the Regional Director issued a complaint in Case 30-CA-2416 which he consolidated with the previously issued CA com- plaint On September 18, 1973, the Regional Director fur- ther consolidated Case 30-CB-602 with the CA cases 2 Timely answers were filed by the Company and CWA de- nying the commission of any unfair labor practices as al- leged in the complaints issued against them A hearing was held before me in Madison, Wisconsin, on various dates commencing on October 23, 1973, and ending on June 3, 1974 At the conclusion of the General Counsel's case in chief, the allegations in paragraphs 8(a), (c), (d), and (e) and a portion of the allegation of paragraph 7(c) of the complaint in Case 30-CA-2205, et al, were dismissed on motion Those allegations will not be consid- ered further herein At the hearing the evidence of all par- ties relating to all issues other than that of strike miscon- duct raised by the answer in Case 30-CA-2416 was heard At the conclusion of that evidence the Company moved for dismissal of the complaints Ruling on that motion was deferred pending this decision For reasons which appear in the Decision herein, that motion is denied except as to those specific allegations as to which dismissal is recom- i A settlement agreement in Case 30-CA-2205, which had been entered into by the Company on March I was set aside in conjunction with is- suance of the complaint 2 Case 30-CB-602 had previously been consolidated with Case 30-CB- 593-2 A complaint had issued in that case based on a charge filed by the Company alleging that CWA had violated Sec 8(b)(1)(A) by various acts of strike misconduct On October 19, 1973, the Regional Director issued an order severing Case 30-CB-593-2 from the remaining cases, pending finali- zation of a settlement agreement in that case 224 NLRB No 96 TELEVISION WISCONSIN, INC mended below The proceedings at the hearing following deferral of that ruling are described in the Decision below in the section dealing with reinstatement rights of strikers At the close of the hearing oral argument was waived, and the parties were given leave to file briefs which have been received from all parties In its brief the Company seeks to incorporate by reference all of the various proce- dural and evidentiary motions, objections, statements of position, and arguments which were ruled on at the hear- ing, and the Company requests that I explain herein the reasons for any rulings which were not explained on the record except where the issue was routine Absent any de- lineation of the ruling or rulings as to which Respondent believes the record inadequate, I find no reason to add anything to the rulings and the statements in support there- of which presently appear in the record The Company also has requested reconsideration of the denial of its motion to dismiss made at the outset of the hearing I find nothing in the additional grounds advanced by the Company to cause me to reconsider and reverse the ruling 3 Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor I make the fol- lowing FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER The Company is a Wisconsin corporation engaged in the business of television broadcasting with studios and office located in Madison, Wisconsin During the calendar year prior to the issuance of the complaint, a representative pe- riod, its gross sales exceeded $100,000 and it obtained reve- nues from the advertising of nationally branded products I find that the Company is an employer engaged in com- merce within the meaning of the Act and that it will effec- tuate the policies of the Act to assert jurisdiction herein II THE LABOR ORGANIZATION INVOLVED CWA is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction The principal issues raised by the complaints against the Company are whether it refused to bargain in good faith with CWA by its overall course of conduct in negotiations for a renewal agreement which began on August 4, 1972, and whether employees who struck on January 17, 1973, were unfair labor practice strikers entitled to reinstatement The General Counsel and CWA contend that the Compa- ny negotiated with a firm and fixed intention to avoid reaching any agreement or to force the Union to accept an agreement which would eventually cause it to lose its status 3 The Company has also moved for correction of the transcript The mo- tion is granted 723 as representative of the employees The Company contends that it negotiated in good faith and that it was CWA rather than itself which failed to bargain in good faith The issue raised by the complaint against CWA is whether it violated Section 8(b)(2) and (1)(A) of the Act by maintaining and seeking to enforce the union-security pro- visions of its initial contract with the Company, and by filing a damage action against 10 of the Company's em- ployees as a reprisal for filing a decertification petition and/or as a fine for working during a strike A substantial problem in approaching this decision has been to reduce to manageable size the facts and arguments developed in the voluminous testimony, exhibits, and briefs in this case, without neglecting or seeming to neglect any consideration material to its resolution Of necessity, neither all the evidence nor all the contentions may be dealt with without seriously overburdening what will un- doubtedly seem nonetheless an overburdened decision However, the entire record has been read and reread and every effort has been bent toward achieving a full grasp of the facts and arguments before undertaking to decide the issues and write this Decision To avoid repetition of facts to the extent possible, I have first set forth a chronological overview of the facts reserv- ing many details for introduction in the course of the con- cluding findings as they become pertinent The concluding findings deal with the contentions by and large in chrono- logical order, focusing on the refusal to bargain issue which is central to this case and disposing of other issues for the most part in the course of discussion of that issue The issues raised by the complaint against CWA will be consid- ered last As in most cases the testimony contains a number of credibility conflicts, some relating to key facts and some to matters of less importance It is not physically possible to deal specifically with each of these conflicts in this Deci- sion, and many of them will be resolved in the findings of the facts without specific acknowledgement of the exis- tence of a conflict The principal witnesses for the General Counsel, as to events at the bargaining table, were Union Representatives Orr and Button, Local President Lang, and Chief Steward Taugher Orr impressed me among all the witnesses as sin- gularly direct and candid in his testimony, and I have gen- erally credited him, unless otherwise indicated and except for some instances where his testimony as to the timing of certain events is in conflict with documentary evidence and it is clear that his recollection was in error Button was less impressive, he displayed less concern for detail and accura- cy in his testimony and seemed prone to testify to support his partisan interest I have discredited much, but not all, of his contradicted testimony Lang was questioned exten- sively about collective bargaining details over a long period of time and was hesitant in many instances to give testimo- ny in categorical terms Quite clearly Lang's memory as to detail was exhausted in many areas about which he was asked While I am inclined to the view that Lang did not knowingly testify untruthfully, I am satisfied that in a number of areas dealing with bargaining details his recol- lection was not accurate Taugher's testimony, in general, struck me as truthful if at times wary, but in one instance, 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relating to the filing of a charge by Bednarek, Taugher's wariness grew to the point that it seemed clear that he was not disclosing all that he knew While I thus have reservations as to portions of the testi- mony of Button, Lang and, Taugher I also cannot wholly credit the testimony of Stantis and Harvey, Respondent's principal witnesses as to the negotiations Stantis, in partic- ular, was clearly inaccurate in his testimony relating to cer- tain bargaining table events supported neither by Harvey's testimony nor his notes As will be set forth below in more detail Stantis' explanations as to critical events such as the September 15 proposal, the WERC petition, the company grievances against the Union, and the unilateral change in insurance are wholly unconvincing and without candor I have generally not accepted Stantis' uncorroborated testi- mony While Harvey's testimony troubled me less, there are aspects of his testimony which also give rise to substan- tial reservations His testimony as to the discussion which led to the September 15 proposal is wholly unconvincing, and Harvey displayed great reluctance in going beyond his notes or tapping any independent recollection of bargain- ing meetings A very substantial portion of the evidence offered by Respondent consists of bargaining minutes taken and pre- pared by Harvey At each bargaining session Harvey took handwritten notes from which he later dictated a set of minutes which were typed by his secretary Not only are the typed minutes more complete than the handwritten notes, but, in a number of instances, the typed minutes change words which appear in the handwritten notes, sometimes putting in quotation marks things which do not appear in the handwritten notes at all The typed minutes also contain commentary which usually appears in par- entheses While Harvey testified that the typed minutes were dictated within 1 to 3 days after each negotiating ses- sion and that in each instance where handwritten notes varied from typed minutes the typed version was more ac- curate, I am not persuaded that this is the case For exam- ple, on September 15 when Stantis presented the company proposal to the Union, Harvey's handwritten notes show that Orr asked Stantis to go through the agreement and to tell the Union where there were changes They show Stan- tis replied that it was 99 percent changed and that he could not go through it like that, followed by the words, "it's a sweep!" Harvey's typed minutes show that in response to Orr's question, Stantis replied "that many provisions have been changed and that it would not be appropriate to go through the contract page by page at this time " Although Harvey testified that the latter is more accurate and the words "it's a sweep" reflected his own thoughts rather than anything said in the negotiations, I have concluded after reading all the notes and the testimony that in this instance and many others the typed minutes are less accurate than the handwritten notes and reflect editorial changes and ad- ditions, which almost uniformly put company statements in a better light and union statements in a worse light in the typed minutes I do not credit Harvey that he prepared the typed minutes with no thought of litigation in mind, and I have not relied on them as to critical events unless corrobo- rated by the handwritten notes or other independent evi- dence B Summary of the Facts and Contentions I Background a The negotiation of the initial contract On June 16, 1969, CWA was certified in Case 30-RC- 1032 as the exclusive bargaining representative of all com- pany employees engaged in the production of television programs at the Company's Madison, Wisconsin, facilities, including production department employees, engineering department employees, performers, continuity writers, news photographers, and maintenance employees, but ex- cluding office clerical employees, receptionists, sales de- partment employees, confidential employees, guards, and supervisors as defined in the Act On July 15, 1969, CWA was certified in Case 30-RC-1065 as the bargaining repre- sentative of all office clerical employees and receptionists employed at the station, excluding confidential employees, professional employees, guards and supervisors as defined in the Act From September 1969 until May 1970, CWA and the Company negotiated an initial agreement The parties met at some 35 negotiating sessions which lasted from 4 to 6 hours each In the negotiations the Company was repre- sented by its then manager, Schirmer, and its attorney, Walter Harvey CWA was represented in the negotiations by then district or area director, William C Button, and two employees, William Brown, then a newscaster and union steward, and David Prozzo, an engineer The parties reached an agreement applicable to both bargaining units which became effective on May 1, 1970, and was scheduled to continue in effect until August 31, 1972 b The change in station management On April 1, 1971, George Stantis joined the Company as station manager Because of illness of the general manager, some 3 weeks later Stantis assumed the responsibilities of the general manager and on January 1, 1972, received that title In the period between Stantis' arrival at the station and the beginning of negotiations, a number of complaints or grievances dealing with contract interpretation were regis- tered by then Union Chief Steward Bednarek According to the Union and General Counsel, the facts surrounding these complaints showed a disposition of Stantis to disre- gard the requirement of the contract and the origin of com- pany hostility toward the Union in negotiations According to the Company, the history of complaints showed that there were serious problems which arose under the initial contract and explained many of the positions later taken by the Company in negotiations Two problems dealt with during this period led to the execution of written memorandum agreements designed to resolve pending disputes The first dealt with the right of employees to select shift schedules in accordance with their seniority In lieu of arbitrating a grievance which had been filed before Stantis' arrival at the station, the Company and the Union agreed on July 9, 1971, that only employees in the production and engineering departments would have TELEVISION WISCONSIN, INC 725 the right to select shift schedules by seniority The Compa- ny reserved the right to reassign an employee if it felt that his selection resulted in an assignment which he could not perform, and both parties reserved the right to terminate the agreement and arbitrate the grievance at anytime This agreement was not terminated at anytime during the re- mainder of the collective bargaining contract term, but its subject matter became a major issue in the negotiations for a renewal contract The second agreement arose from a dispute over the as- signment of clerical employees to receptionist duties The parties reached an agreement on August 19, 1971, to re- solve that dispute It provided that the Union would in- struct employees as to the limits of the authority of stew- ards, which the Company claimed had been exceeded in connection with this dispute, that the Union would in- crease the number of stewards to one per department, and that the Company would institute a checkoff system for union dues collections effective January 1, 1972, upon agreement of the parties to a memorandum setting forth checkoff procedures Although preliminary steps were taken to institute checkoff, the Union never submitted a draft checkoff memorandum to the Company, and checkoff was never instituted Shortly before negotiations for the renewal of the collective bargaining agreement started, the Company told the Union that as part of a checkoff memorandum it wanted a provision for compensation to the Company in the amount of 10 percent of all dues collected for the checkoff service The question of compensation to the Company for checkoff remained an issue throughout the renewal negotiations The General Counsel and the Union contend that the bargaining conduct of the Company in relation to checkoff both before and after the renewal ne- gotiations began provides evidence that the Company was not negotiating in good faith 2 The reopening of the contract On June 30, 1972, the Union sent the Company notice of its intention to modify the collective bargaining contract scheduled to expire on August 31, 1972 On July 21 the Union submitted to the Company a list of proposals for modification of the contract to be effective September 1, 1972 The list was as follows I A substantial basic wage increase plus a cost of living formula 2 Provide comprehensive health insurance with major medical, and $20,000 in group life insurance, premiums paid by Company 100% 3 Vacations-Provide 5 weeks of vacation at 15 years of service 4 Holidays-Provide 9 paid holidays 5 Review all job duties, descriptions and job titles for the purpose of adjustment to more equitably re- flect job assignment and performance 6 Review performance, talent, and job differentials for adjustment to reflect proper payment 7 Realign departmental responsibilities to provide for proper overlap of work assignments 8 Additional proposals or adjustments of the above proposals may be made by the union during negotiations At the same time, the Union identified its principal neg- otiators as James Orr, an International Representative, and Richard Taugher, chief steward at the station elected on July 2, 1972, to replace Bednarek who was leaving the sta- tion to take another job 3 The initial bargaining sessions The first negotiating session was held on August 4 Gen- eral Manager Stantis, Attorney Harvey, News Director Bill Brown, and Chief Engineer Hariu attended for the Compa- ny 4 Further negotiating sessions with basically the same participants were held on August 7, 15, and 21 and Sep- tember 5 and 6 At the initial session Orr reviewed the Union's eight point proposal and added as a ninth point that it was union policy that there be no retrogression from the expiring agreement Taugher then started to enumerate a list of so- called requests for proposals which were described as ema- nating from employees At this and later meetings in con- nection with the Union's insurance proposal Orr requested information as to the amounts of life insurance then in force for employees Although company negotiators re- plied that they would furnish the information, it was never given to the Union On the morning of the second meeting Harvey received a copy of an unfair labor practice charge which had been filed by Donald Bednarek as "(former) chief steward" al- leging that the Company had refused to bargain in good faith with the Local on the subject of holiday overtime payments, and had tried to bypass the Local by negotiating directly with an employee Harvey and Stantis reacted an- grily to the filing of the charge and spent the entire bar- gaining session that day questioning Orr about it and vent- ing their anger Orr agreed that the charge should not have been filed, and at Harvey's insistence worked with Harvey to obtain dismissal of the charge Negotiations did not re- sume until arrangements for its dismissal had been com- pleted The Union contends that the Company's reaction to the charge and its refusal to negotiate while it was pending are evidence of its bad faith in bargaining The Company con- tends that, to the contrary, the Union filed the charge to disrupt negotiations and that the filing of the charge is evidence of bad faith on the Union's part At the August 15 and 21 meetings, Orr and Taugher continued to enumerate items which had been requested by employees, some of which fell within the framework of the Union's eight point proposal and some of which did not During the August 21 meeting Stantis indicated that the Company wanted to rewrite and reindex the contract, and following the August 21 meeting Stantis started to draft a company proposal in the form of a complete collec- tive bargaining agreement for submission to the Union Up 4 Brown, who had participated in the 1970 negotiations as chief steward for the Union had been promoted to supervision in the interim 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to that point, although the Company had given indication of its reactions to a union proposal with respect to griev- ance procedure, for the most part the company negotiators listened to the union presentations, did not attempt to re- spond, and asked very few questions Although the reopened contract bore an August 31 expi- ration date, at least until sometime in November both par- ties treated the Union's notice as continuing the terms of the initial contract in effect, pending completion of negoti- ations Shortly before the start of the September 5 session two grievances were presented to Brown dealing with the meth- od of payment of announcers Stantis complained that the grievances were designed to interrupt and disturb negotia- tions, and negotiations were delayed for several hours until these grievances were withdrawn During the September 5 and 6 meetings there was further discussion and devel- opment of the union proposals At the end of the Septem- ber 6 meeting, Orr submitted proposals on union security and probationary employees The union-security proposal substantially altered the clause in the existing agreement and reduced the grace period provided from 60 to 30 days With respect to probation the Company requested an in- crease of the probationary period from 2 to 6 months, and Orr requested provision for the filing of a grievance over the discharge of a probationary employee without allowing recourse to arbitration Tentative agreement was reached on this basis as to both provisions The General Counsel contends that at the six meetings ending with the September 6 meeting the Company gave little indication of its responses to union proposals and simply listened to the Union while concealing its own posi- tions and withholding information, thus showing bad faith The Union contends further that the Company at this time and on a later occasion on September 19 conditioned bar- gaining on abandonment of grievances in violation of its bargaining obligation 4 The company proposal and negotiations through September 26 raised by the past grievance Work scheduling, assign- ments, and promotions were made matters of management rights, and competence was added to seniority as a criteri- on for personnel action previously governed by seniority alone, with determination of competence left to company discretion Several of the articles in the proposal which be- came major issues of contention in the negotiations were taken from one or the other of existing collective bargain- ing agreements between CWA and two other Wisconsin television stations, WMTV in Madison and WLUK in Green Bay The General Counsel and the Union contend that the company proposal was so regressive in content that it was predictably unacceptable to the Union and that its presen- tation is strong evidence that the Company had no inten- tion of reaching any agreement with the Union or sought to reach an agreement which it knew would cause the Union to lose its status as representative of the Company's employees The Company contends that the proposal rep- resented only a negotiable proposal, not an inflexible de- mand, and that it reflected nothing more than what the Company wanted to see in an agreement for legitimate business reasons The parties met on September 18, 19, 22, 25, and 26 and discussed a number of provisions of the Company's pro- posal and the omissions of provisions of the initial agree- ment from it Some agreements were reached as to sections of and portions of sections of articles in the company pro- posal, in some instances after modifications arrived at through negotiations These agreements covered most of the grievance and arbitration procedure and sections of articles dealing with management rights, union representa- tives and union activity, strike responsibility, discharge, discipline, and resignation, leaves of absence, and sick leave But with respect to every article substantial dis- agreement remained over changes introduced in the com- pany proposal or omissions from it of sections of the origi- nal contract During this period, Orr noted that the union-security submission in the company proposal con- formed with the oral understanding of the parties on Sep- tember 6 and 26, the parties initialed it as approved At the next meeting on September 15 Stantis presented the Company's counterproposal The proposal incorporat- ed the agreements that had been reached in negotiations as to union security and probationary employees, provided for wage increases and granted an additional 1-1/2 holi- days, but in almost every other area touched upon by the Union's proposals and requests, the company proposal either left the old provisions unchanged or made changes which were contrary to what the Union had sought The proposal also affected areas of the contract which had not been discussed up to that point, in many instances elimi- nating or reducing benefits, including economic benefits, previously provided While it also incorporated a number of sections from the old agreement without change, in al- most every provision which related to grievances filed dur- ing Stantis' tenure at the station changes were proposed which would support the company position with respect to similar grievances in the future, in a number of instances going beyond the change necessary to deal with the issue 5 The Company's attack on union dues delinquencies, the filing of the WERC petition, and the Company's grievances On the next day, September 27, Stantis opened negotia- tions with an attack on the Union for having failed to col- lect dues from its members and permitting them to become delinquent The delinquency of members had been dis- cussed with the Company as early as August 1971, when the Union sought dues checkoff and had been further dis- cussed in checkoff negotiations during the summer of 1972 On September 27 Stantis asked for a list of delinquent members to which he was entitled under the expiring union contract, and Orr promised to supply it On the following day, in connection with a discussion of the omission from the company proposal of provision for pay to stewards for time spent on grievance handling and TELEVISION WISCONSIN, INC 727 bargaining, Orr accused the Company of "gutting" the contract and not wanting a contract because the Company had retrogressed and taken a great deal out of the present contract The atmosphere in this meeting as well as the previous meeting was unpleasant, and the meeting termi- nated with no provision for another meeting date On October 5, Orr reported to Button orally and in writ- ing that it was his opinion, based on the company proposal and negotiations to date, that the Company's intention was to destroy or "gut" the current contract, make the Union ineffective to represent the membership, and force a strike Orr recommended that a strike vote be called and a media- tor be brought in Around the same time employees, partic- ularly Taugher and David Prozzo, an engineer who also served as a steward, communicated with Button their dis- satisfaction with the way negotiations were going and with Orr, who they felt had agreed to too much of the company proposal In their view Orr had agreed to retrogression by agreeing to some company proposals without gaining any- thing in return, and had weakened the Union's bargaining position by agreeing to sections of articles while other con- troverted sections of these articles remained in dispute On October 6, the Company prepared a petition for fil- ing with the Wisconsin Employee Relations Commission, referred to herem as WERC, seeking an all-union election to determine whether or not the bargaining unit employees authorized the Union to enter into an agreement requiring their membership in the Union The Company's employees had previously authorized the union-security provisions of the initial agreement, and there was a presumption of con- tinuing authorization, but under Wisconsin law, where there is reasonable ground to believe that employee atti- tudes have changed, a new election can be conducted Un- der Wisconsin law such a petition is timely either after negotiations are over or during negotiations if the parties have agreed upon inclusion of a union-security provision in the contract being negotiated On the same day, without referring to the petition, Stan- ds wrote the bargaining unit employees that the Company had run across a problem which the Union had brought to its attention concerning dues delinquencies and stating that if they were not members in good standing, "the Union contract will force the Company to fire you " The letter suggested that employees pay their dues right away On October 9, the WERC petition was filed, and Stantis filed two grievances with the Union over the Union's fail- ure to supply the Company a list of delinquent members as requested in negotiations and required by the contract and over the fact that the Union had allowed the payment of dues to fall drastically in arrears for the vast majority of the members The second grievance further complained that the Union forced the Company to discriminate against its employees by placing the Company in the possible posi- tion of being forced to discharge all members in good standing Following receipt of the grievances, on October 15 the Union announced that it was waiving all dues accrued be- fore October, 1974 Two days later, Stantis filed a third grievance protesting the waiver of dues as a "flagrant breach" of the contract requirement that members "shall" pay dues to maintain good standing 6 The employee petition and the warning to the stewards During the latter part of October, Taugher, Prozzo, Rob- ert Kirschnik, who was also a union steward, and perhaps others, began to circulate a petition among the employees at the station opposing an all-union election and affirming their desire to continue to work under a union-shop agree- ment One of those solicited to sign the petition was Sports Director James Miller who refused to sign the peition Miller was solicited at his desk one evening as he was fin- ishing his preparation for his appearance on a segment of the 10 p m news Miller was annoyed by the solicitation and its time and place, and complained to News Director Brown At some point Stantis called Taugher, Prozzo, Kir- schnik, and Steve Bailey, also a union steward, into his office individually and warned them that they had violated the contract and state and federal law by circulating the petition and that they faced discipline if their conduct re- curred There is a dispute as to the conduct Stantis referred to in his warning and its purpose The General Counsel and the Union contend that the purpose of Stantis' warning was to inhibit any further circulation of the petition and that it violated Section 8(a)(1) of the Act The Company contends that Stantis sought only to prevent repetition of solicita- tions such as that of Miller which he considered to be im- proper and that the warnings were lawful 7 The replacement of Orr by Button as chief union negotiator After September 28 the parties did not meet again until October 23 In the meantime Union Representative Button had telephoned Harvey on October 10 and informed him that he would be entering the negotiations in place of Orr In that conversation Button also told Harvey that the engi- neers were very upset over how the bargaining was going and what Orr had signed off to date When the parties met on October 23 Button brought with him Orr, Taugher, three union stewards, and Richard Lang, newly elected president of Local 5530 Although there is dispute as to the exact statements made by Button at this meeting, there is no doubt that Button sought to change the direction of the negotiations and to negotiate from the old agreement rather than from the company pro- posal On October 27 a hearing on the Company's WERC peti- tion was held Although the Union initially opposed an election, ultimately it stipulated that an all-union referen- dum should be held within 30 days On October 30 the parties again met to negotiate At this meeting Button pressed a position he had previously urged on Harvey by telephone which was to merge what Orr had previously agreed to into the existing contract which, with a wage increase, would become the new contract The Company sought to continue negotiations as they had been conducted with Orr, and Button resisted During the course of this meeting a dispute arose over the status of provisions of the old contract which had been omitted from the Company's proposal Button took the po- sition that those provisions still stood and after some dis- 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cussion said he refused to negotiate further on them Stan- tis became angry and asked Button to write on the Company's proposal that he refused to negotiate further Button then wrote "Take it and cram it" on the face of Stantis' copy of his proposal Button said that he would bargain only from the old contract and that the Company should tell him what it wanted different from the old con- tract 5 After some discussion Harvey tore out an article from the Company's proposal and asked Button to negoti- ate on that article if he would not negotiate on the entire company package That article was discussed for the rest of the meeting, and negotiations were adjourned until the fol- lowing Friday The Company contends that at the October 23 and 30 negotiating sessions Button in effect refused to bargain and demonstrated that the Union was not negotiating in good faith 8 The WERC referendum campaign Following the October 30 meeting the Company started a campaign for a "no" vote in the all-union referendum which was to be held on November 8 On November 1, the Company mailed a letter to all employees notifying them of the referendum and posing a number of questions and answers Some of the questions and answers dealt with the issues clearly related to the question to be voted on Others were similar to representation election propaganda and questioned the worth of the Union as representative of the employees The final two questions and answers made it clear that if the Union lost the election, it would continue to represent the employees Another letter and a memo were sent to employees on November 2 and 3 On November 3 there was a negotiat- ing meeting at which Button presented the Company a package proposal which he had drafted It followed the lines of his oral proposal at the previous meeting and merged the sections of the company proposal to which On had agreed with the provisions of the old contract, adding a checkoff provision and a provision which in essence ab- solved the Union from obligations otherwise imposed by agreed upon sections dealing with strike responsibility The meeting adjourned after Button presented his proposal to give the Company a chance to review it On November 8 the all-union election was held and re- sulted in a vote of 29 for an all-union agreement and 4 against The General Counsel and the Union contend that the Company independently violated Section 8(a)(1) of the Act by seeking to compel the Union to enforce the union-secur- ity provisions of the expiring agreement and by its cam- paign against a vote for an all-union agreement They ar- gue further that this conduct was designed to undermine and discredit the Union and demonstrates the Company's bad faith in negotiations The Company contends that it had a right to enforce the contract and to seek an all-union referendum and that such lawful conduct cannot be evi- dence of bad faith 5 There is no dispute as to Buttons writing on the proposal He and Harvey gave different versions of how it came about I have credited Har- vey in this regard 9 The union strike vote and negotiations through the December 18 wage agreement A meeting was scheduled to be held on November 10, 2 days after the election However, when Button arrived at the place set for the meeting, he was told by a receptionist that Stantis had called and cancelled it When Button later reached Harvey and asked why the meeting was cancelled Harvey said it was for a very good reason which he would tell him later, but Harvey never told him On Sunday, November 12, the Union held a meeting of the bargaining unit employees for the purpose of authoriz- ing the bargaining committee to call a strike at its discre- tion At the meeting Lang reviewed the bargaining to date and depicted it as going poorly, with the Company asking for retrogression and the Union having received little or nothing for what it had already agreed to Lang recom- mended a strike vote because the employees could not live with a contract such as the Company offered and because a strong strike vote could be used for leverage on the com- pany negotiators Button in somewhat saltier language sup- ported Lang's recommendation and described what the Union's strike fund would do for the employees in the event of a strike, seeking to reassure them that their needs would be taken care of The employees voted 26 to 4 in favor of striking The parties next met on November 16 with Federal Mediator Kurtz present, who attended at Button's request after Harvey had initially opposed his attendance as pre- mature At this meeting Button told company negotiators that he was undergoing rebellion from the employees who wanted an agreement immediately and that he was not in a position to make massive changes in the agreement Button also threatened a strike On November 22 the parties again met with Kurtz pres- ent As a result of a suggestion by Kurtz, Button told Harvey he thought a personality conflict between Button and Stantis was interfering with negotiations and proposed that if they could reach agreement as to wages and check- off, he and Stantis would leave the negotiations and Har- vey and Lang could negotiate the remainder of the con- tract Button added that he must have some idea of what the Company had to have in order to reach an agreement and that Taugher and Prozzo must be made to feel that it was their agreement since they were pressing him to obtain everything possible from the Company Harvey later gave Button a list of 13 articles from the old contract which he said had to be modified in any new agreement, and tenta- tive agreement was reached between Harvey and Button that the parties would negotiate wages and checkoff after which Stantis and Button would withdraw from the negoti- ations At this meeting, at Harvey's request, the parties agreed in writing that the expiring contract would continue in effect subject to termination on 20 days' notice by either party For the remainder of that meeting and the next four meetings, which were held on November 29 and 30, and December 7 and 14, the parties negotiated exclusively over wages At the December 7 meeting a disagreement arose over what had been agreed to at the previous session, and the Company and the Union each took the position that TELEVISION WISCONSIN, INC 729 the other reneged on a prior agreement On December 14 negotiations bogged down over retroactivity, and Button threatened to strike either on December 17 or December 20 When Harvey called Button's attention to the Novem- ber 22 extension agreement, Button said he had no inten- tion of giving a 20-day notice and that the strike would terminate the agreement On December 15, in a telephone conversation, Button told Harvey that he was authorized to strike on Wednes- day, December 20, and would do so if they did not wrap up a contract before then Button pressed Harvey for a private meeting to attempt to negotiate an agreement in the ab- sence of Taugher and Prozzo, but agreed to meet on the following Monday with the negotiating committee When Harvey expressed doubt that they could finish with more than wages and retroactivity on Monday, Button said that the CWA president had set the strike date, but that if they could agree to wages and retroactivity on Monday and if they continued to operate under the old agreement until a new one was signed, he might be able to put off the strike Button also said that the Union could not agree to retro- gression in the areas of seniority in scheduling, sick pay, seniority, or job duties, and again pressed for a weekend meeting On the same day, with Button's acquiescence and for the purpose of trying to postpone the strike, Stantis called R W Hackler, a CWA official whose name Button had mentioned as the person to whom he was to report negoti- ating progress on the following Tuesday Hackler informed Stantis that no date had been set for a strike After this Harvey called Button, rejected a weekend meeting, and an- grily told him that if he ever pulled any more such tricks they would have "one hell of an impasse " On December 18 the parties met and utilizing reduced committees negotiated an agreement as to wages and relat- ed issues The agreement was reduced to writing and signed by the parties It provided increases retroactive to October 1, 1972, for bargaining unit employees and pay- ment of the amount due for the retroactive increases to the employees in a lump sum between April 1 and 15, 1973 The agreement further provided The Union agrees that no strike shall occur for the duration of the negotiations, if the Union does strike at any time during negotiations all of the terms of this agreement as set forth above are void The Company contends that its conduct during this peri- od is affirmative evidence of its good-faith effort to reach an agreement and that the evidence shows bad faith on the part of the Union in Button's reneging from an agreement and threatening to strike in violation of the extension agreement and without authority The Union and General Counsel contend that the agreement reached is no demon- stration of good faith as the Company in these negotiations offered less than in its original wage proposal, reneged from an agreement reached, and entered into an agreement which put retroactive wage increases in escrow subject to loss in the event of a strike The Union contends that the Company stalled in these negotiations, and ultimately agreed to wages because of Button's strike threats and be- cause it knew that in any event no agreement would ever be reached on a full contract 10 Negotiations through December 28 and the Company's notice of cancellation of the extension agreement effect January 17 After December 18, Button and Stantis withdrew from negotiations Local President Richard Lang 6 became prin- cipal spokesman for the Union with Taugher and Prozzo also present at negotiations Harvey became principal spokesman for the Company with Brown and Hariu also present The reconstituted bargaining committees met on De- cember 20, 26, and 28 After quickly clearing up one resid- ual matter relating to wages, the negotiators turned to the nonwage provisions of the contract Although some minor agreements were reached, it became apparent that differ- ences continued to exist over most of the issues that had separated the parties before the wage negotiations, with the Company continuing to press for most of the changes in its September 15 proposal and the Union continuing to resist them On December 26, in response to union arguments that the Company was insisting on retrogression, Harvey told the union negotiators that there could be no retrogression if the old contract were cancelled and asked where they would start bargaining if that happened At the conclusion of that meeting Lang telephoned Button to confer over whether the Union could make any more concessions Lang reported back that the Union would not give any- thing up without getting something in return At the December 28 meeting the Union continued to oppose deletions and changes from the expiring agreement with little change in the positions of either party After discussion of several topics with no progress, Harvey told the group that the union negotiators were immature and lacked understanding of the impact and interpretation of a labor agreement Harvey said that changes in the union negotiating team had made it difficult and confusing for the Company and that he was giving 20 days notice of cancellation of the agreement in the hope that the Union would begin to take its role in negotiations seriously, would stop attempting to force the Company to sign a document identical to the old contract, and would begin to negotiate on modifications to the old contract The General Counsel and the Union contend that can- cellation of the extension agreement so soon after the exe- cution of the wage settlement is further evidence of the Company's bad faith because it adamantly insisted on the provisions of its September 15 proposal and placed the Union in a position in which it could strike only at the risk of voiding the wage agreement it had negotiated The Company contends that it was the Union which showed bad faith because it misled the Company into believing that negotiations would be easier once wages were settled, because it introduced new proposals after the wage settle- 6 Lang had been present at most bargaining sessions since October 23 at Button s request 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and because it continued in its adamant opposition to company proposals in the subsequent negotiations 11 Negotiations through January 17 From January 2 through 16, 1973, the parties met nine times, and in addition, at Button's request, Harvey and Stantis met once with Button and CWA Vice President Stevens outside negotiations Early in these meetings the Union announced that if no agreement was reached it in- tended to strike on January 17, the effective date of cancel- lation of the contract Most of the meetings held during this period were half day meetings A number of different topics were discussed At the first meeting the Union made proposals with re- spect to hiring of employees and safety, which were close to the company proposals, and agreement was reached Considerable discussion occurred through January 15 over vacations, and on that date agreement was reached on a new vacation article which provided essentially the same benefits as the old agreement with some clarification as to application of the article No other agreements were reached during this period Through January 15 both par- ties adhered to their earlier positions with respect to the principal items which separated them and acknowledged that they were at impasse with respect to them On January 5 in a telephone conversation with Harvey, Button asked what the issues were and Harvey listed nine areas Button urged Harvey to extend the contract, and Harvey said the Company had made its decision and would not extend it On January 8 Button, Stevens, and Harvey met for several hours Button and Stevens again unsuccessfully sought to persuade the Company to extend the agreement or otherwise resolve the negotiations Dur- ing this meeting Stantis and Harvey expressed displeasure with Lang as a negotiator and urged that Orr or Button be returned to the negotiations, but Stevens indicated that could not be done On January I1 Lang met with the bargaining unit em- ployees and reported pessimistically on the negotiations Lang said that unless they struck on January 17 he did not feel that they would get a contract Lang expressed the opinion that without a strike the Company would make unilateral changes and weed out union strength No further strike vote was taken, however At the January 15 negotiations the Union took the posi- tion that without a contract the employees would not work, and Harvey urged the Union not to take an adamant stand, stating that the Company did not intend to make unilateral changes and that if that was a reason for striking the Union need not be concerned It is disputed whether at this time Harvey also warned that a strike would violate the December 18 wage agreement At a final prestrike meeting on January 16, most of the time was spent in separate meetings between Mediator Kurtz and the parties In one of them Kurtz asked Lang if the Union wanted to propose any mass trades, and Lang replied negatively The meeting ended without further pro- gress During the evening of January 16 Lang telephoned Har- vey with a proposal for averting the strike The proposal listed seven items that each side would get with negotia- tions to continue otherwise Lang proposed postponement of the strike on a day-to-day basis and a 1-day extension of the old agreement while they met to try to straighten out the items covered by the proposal The union proposal dealt with most of the areas which Harvey had listed for Button on January 5, and included some concessions and proposals for agreement that had not previously been ad- vanced or considered Harvey told Lang he would contact Stantis but was not very optimistic Within half an hour Harvey called back to say that the proposal was rejected as unacceptable The General Counsel and the Union contend that the Company's conduct during this period gives further indica- tion of its bad faith in that it refused to meet more than half days on most occasions, refused to meet evenings and weekends, and rejected Lang's last-minute compromise proposal out of hand The Company contends on the con- trary that the Union's conduct showed its bad faith by adhering adamantly to the provisions of the old agreement, by refusing to consider company arguments that it was entitled to parity with WLUK and WMTV with respect to the provisions of the company proposal based on those agreements and by introducing new proposals into the ne- gotiations in the critical prestrike period 12 Alleged independent violations of the Act and indicia of bad faith away from the bargaining table during the prestrike period The parties assert that conduct away from the bargain- ing table from late December through January 16 furnishes additional indication of bad faith and constitutes indepen- dent violations of the Act The General Counsel and the Union rely on disputed evidence as to a 5-day suspension of Steward Robert Kirschnik on January 9, statements by Brown and Hariu, members of the company negotiating committee, to individual employees disparaging union neg- otiators, interrogation by Supervisor Helen Slauson of Ei- leen Traeder about her intentions with respect to resigning from the Union, and striking and threats of strike replace- ment The Company contends that union bad faith was shown by uncontroverted evidence of what it characterizes as a slowdown by production employees and engineers starting after the Company's September 15 proposal was given to the Union, and intensifying after the December 28 cancellation of the extension agreement 13 The resignations from the Union Within a week after the Union strike vote meeting in November, four bargaining unit employees sent the Union letters of resignation They were Chief Photographer James Schoenmann, Sports Director James Miller, and Newscast- ers Rick Featherston and John Lindgren About a month later on December 17 and 19, continuity and traffic employees Linda Hillner and Janice Moore wrote similar letters of resignation On December 21 Women's Director Judith Learner Eisenberg resigned, and on January 3, 11, 12, and 13, News Reporter Larry Meld- man, clerical employee Eileen Traeder, part-time reporter- TELEVISION WISCONSIN, INC 731 photographer Robert Terry, and part-time reporter and special events moderator Lawrence Saunders also resigned Each of these employees testified and was permitted to state his reasons for resignation The General Counsel and the Union contend that their resignations were caused by the unlawful conduct of the Company designed to weaken and undermine the Union The Company contends that the resignations were not caused by any conduct of the Company but were caused by the reasons expressed by the employees in their testimony, principally dissatisfaction with the Union and a desire not to strike 14 The beginning of the strike on January 17 On January 17 the strike began, and all employees ex- cept those who had resigned from the Union joined the strike The station continued to operate with management, supervisors, nonstriking employees, and replacements The General Counsel and the Union contend that the strike was caused by the Company's bad-faith bargaining and was an unfair labor practice strike The Company con- tends that the strike was an economic strike and that it violated the no-strike provision of the December 18 wage agreement so that the strikers lost their reinstatement rights 15 Negotiations through March 5 and the unilateral change in insurance The parties met to negotiate on January 22, 24, and 30, and on February 5, 12, and 22 Stantis returned to the negotiations at the February 22 meeting, and Union Vice President Stevens and Union Representative Orr each at- tended one meeting during this period At the first two bargaining sessions it became clear that both sides saw as key issues the areas of the company proposal in which it sought what it called parity with the other Wisconsin sta- tions which had agreements with CWA With respect to one of these issues, seniority in scheduling, Lang had pro- posed a change in the union position in the January 16 compromise proposal, and he proposed that change sepa- rately during these meetings It was again rejected At the third meeting Harvey suggested that attention turn to other matters which might be more fruitful for attention at that point and some progress was made in a few noncontrover- sial areas At the February 12 meeting, the Union made its first detailed proposal for insurance improvements in amphfica- tion of one of the points of its original eight point proposal, and Harvey indicated that the Company agreed in princi- ple with the Union that daily hospitalization room rates had to be increased,7 that it rejected the Union's proposal that the Company pay the full cost of all improvements, and that it would study the rest of the Union's proposal On February 22, the Company again rejected the Union's proposal that it pay the full cost of insurance, but stated that it was looking into other areas for possible im- provement of insurance benefits in addition to or in place 7 The Union proposed an increase from $35 to $60 of those proposed by the Union At that meeting, after Lang proposed a possible trade in return for the Company's grant of the union insurance proposal, the Company proposed that further negotiations on insurance be deferred until the Company finished putting together its own proposal The parties met again on March 1 and 5 Most of the discussion at this meeting related to hours and overtime, as to which some tentative resolutions were reached During that meeting the Company proposed raising the daily room rate provided under its hospitalization insurance from $35 to $55 a day, with the Company and employees to continue splitting the cost of the insurance evenly Lang said he would consider the proposal but viewed it as inadequate because of a concession with respect to computation of pay during holiday weeks to which the Union had tentatively agreed On March 5 most of the discussion again concerned hours and overtime Early in the afternoon the Company made a new proposal to raise the daily hospital room bene- fit to $57 a day with the cost still to be shared Harvey described this as the Company's last and final offer with respect to insurance The Union rejected this proposal again indicating it was making a big concession with re- spect to holiday week pay computation so that it would stand by its original proposal Discussion turned to other matters but near the end of the meeting Harvey asked whether the $57 rate was specifically rejected The Union replied affirmatively, but indicated that it would take less than it was asking if it regained what it had conceded Harvey repeated that $57 was the final offer, and at his request Lang confirmed that it was rejected The next morning on Stantis' instruction the Company arranged to implement the increase in room rate to $57 a day, effective retroactively to March 1, and the increase was announced to all employees The General Counsel and the Union contend that the unilateral increase in insurance benefits independently vio- lated the Act and is further evidence of bad faith The Union contends further that Stantis implemented the in- crease because of an imminent personal insurance need without even seeking the Union's acquiescence on that ba- sis, thereby demonstrating contempt for the Union and the bargaining process The Company contends that the par- ties had bargained to an impasse with respect to insurance and that it was entitled to increase insurance benefits after the Union rejected its final offer on insurance on March 5 16 Negotiations through April On March 9 the Union filed its first refusal-to-bargain charge against the Company From then until the end of April the parties met on four occasions, March 20 and April 4, 11, and 16 On March 20 Button returned to the negotiating table for the first time since December 18 Much of this meeting was spent in reviewing the positions of the parties and trading charges of responsibility for the lack of agreement and progress in negotiations During this meeting Button raised the subject of submitting unresolved issues to arbitration The subject had been raised briefly on previous occasions but had been dropped On one occasion 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union had indicated that authorization from Washing- ton headquarters would be required before it could agree to arbitrate unresolved issues On this occasion the parties explored the possibility in greater depth but no commit- ments were made Following this meeting, Harvey told Button by tele- phone that Stantis would be willing to recommend arbitra- tion of the unresolved contract provisions to the Company Board of Directors if the Union would withdraw its charges and if Button would likewise recommend arbitra- tion to the CWA officers and seek authorization to pro- ceed However, Button told Harvey that there would be no purpose in arbitrating unless the Union and the Company could also agree upon return to work for all the strikers since the Union would not agree to withdraw its charges without such an agreement 8 On March 29 a decertification petition was filed by em- ployees working at the station during the strike Much of the April 4 meeting dealt with the subject of arbitrating unresolved issues Harvey questioned whether it violated the Act for the Company to agree to binding arbi- tration or indeed to continue bargaining in view of the pending decertification petition and indicated reluctance to continue negotiations Harvey also questioned whether Orr had authority to agree to binding arbitration and asked for a written statement from CWA authorizing arbitration The relation of an arbitration agreement to a back to work agreement was also discussed, and Orr indicated that they were related only in the sense that both had to be settled At the end of the meeting the Union undertook to provide the Company with written authorization to arbitrate and a written back to work proposal On April 11 Orr and Button were both present with Union Attorney Davey who attended negotiations for the first time Harvey informed the Union that Kurtz had told him that he could no longer participate because the negoti- ations were taking too long and another federal agency was involved Harvey questioned continuation of negotiations without Kurtz Button sought to discuss arbitration and a back to work agreement, and Stantis reminded him that the Union had undertaken to supply written authorization for arbitration and a back to work proposal, neither of which had been produced Harvey again questioned con- tinuation of negotiations in the face of the decertification petition and said that the Company would not enter into binding arbitration unless it were conditioned on the out- come of the election Ultimately Harvey proposed the following that the Union produce written authorization to arbitrate, that the parties mutually request that Kurtz return if negotiations were to continue, that the Board be requested to proceed with the decertification election, and that the parties agree upon binding arbitration and a return to work agreement providing strikers with their rights under the law in the event that the Union won the election Although the Union agreed with a portion of this proposal, it opposed a request 8 Although Harvey s notes do not indicate who introduced dismissal of the charges into the discussion, Button testified that Harvey asked if the Union would withdraw its charges if the Company agreed to arbitrate and from their context the notes support this testimony to proceed in the decertification election and rejected con- ditioning any agreement on its outcome Button asked if the Company would continue to negotiate, and Harvey re- plied that it depended on the return of Kurtz to the negoti- ations and Kurtz' schedule Button asked what would hap- pen if they went through the company proposal item by item and reached agreement on all of them Harvey said that they would have a contract but it would have to be conditioned on the outcome of an election After a caucus, Button asserted that the strike was an unfair labor practice strike and that the decertification petition was invalid, should be dismissed, and had been initiated as a conse- quence of the overall conduct of the Company Harvey took umbrage at the latter assertion and threatened to ter- minate negotiations since the Company was not obligated to proceed in the face of the petition On the next day Harvey and Davey sent a point request to Kurtz requesting his return to negotiations On April 16 Kurtz again was present, as was Orr, but not Button Orr expressed union opposition to holding a decer- tification election and stated that the Union would pursue its charges However, Orr also indicated that the Union was willing to discuss dismissal of its charges if agreements could first be reached on arbitration and return to work After some discussion in which it became clear that agree- ments on arbitration and return to work would both be required if the Union were to dismiss the charges, the par- ties decided to work on determining which items would have to go to arbitration and started placing contract pro- posals in three categories those which were at impasse and would go to arbitration, those still in disagreement but which should be negotiated further, and those which were agreed upon After completing the classification, items in the second category were discussed with little progress The Union contends that during this period and thereaf- ter the Company further demonstrated bad faith by reneg- ing on an agreement in principle to arbitrate unresolved contract issues and taking shifting positions with respect thereto, and by insistence that it would not negotiate with- out Kurtz' attendance at negotiations 17 The Union's suit against its former members On April 25 the Union filed a state court civil action against the Company and 10 of the former CWA members who had resigned from the Union during the prestrike peri- od, alleging that they had acted in concert and violated the union-security provisions of the original contract in resign- ing from the Union, refusing to participate in the strike, and circulating the decertification petition in order to un- dermine the relationship between the Union and its mem- bers, to destroy the Union's status as collective-bargaining representative, and to interfere with the contract between the Company and the Union The Union asked for $50,000 actual damages, $100,000 in punitive damages, and attorney's fees The General Counsel and the Charging Party, in Case 30-CB-602 contend that the Union violated Section 8(b)(1)(A) of the Act by maintaining and enforcing the union-security provision of the original contract which pro- vided for loss of good standing for decertification activity TELEVISION WISCONSIN, INC 733 and crossing picket lines , among other things, and by re- sorting to the lawsuit as a reprisal The General Counsel and Charging Party also contend that the lawsuit was an indirect attempt to fine employees for crossing a picket line after resigning from the Union 18 Negotiations through June 25 A meeting scheduled for May 1 was postponed, and the parties did not meet again until May 23 Kurtz again was present The Company stated that it would continue bar- gaming but would not enter into a binding arbitration agreement until the decertification petitions 9 had been dis- posed of and its Board of Directors approved arbitration The parties then went through the list of items which they had agreed should be negotiated further, and some minor progress was made The Company sought additional assur- ance of Kurtz' attendance at future negotiations , and the parties agreed to write another joint letter asking Kurtz to remain in the negotiations which was sent the next day The parties met again on May 30 and June 12 and 25 Neither Kurtz nor Davey were present Davey had been present during the afternoon of May 23, and Harvey had expressed the desire that Davey attend future negotiations Although Harvey expressed doubt at continuing without Kurtz or Davey, negotiations continued Before the June 12 meeting both parties had been in- formed of the impending issuance of the initial complaint in this case, and Lang asked whether it would be possible to arrange a back to work agreement in the light of that fact Lang suggested that the parties agree to return all the strikers to work while negotiations continued, with arbitra- tion to occur if no agreement was reached Harvey an- swered that the strikers would get whatever reinstatement rights they were entitled to by law and that he wanted to see the complaint before making any commitments 19 Termination of the strike, requests for remstatement, and further negotiations On June 25 Lang offered to end the strike immediately, with the strikers to return to work unconditionally with or without a contract When Harvey asked who was interest- ed in returning and how soon, Lang said it made no differ- ence since all the strikers had the right to return on an unconditional offer Harvey said that the Company would not dismiss over 20 replacements and simply open the door to whomever wanted to return and to rehire people for those who didn't Harvey branded Lang's proposal as ri- diculous, asserted that the strikers were economic, and said that unless Lang knew who wanted to return , the proposal was invalid Lang offered to negotiate with respect to who wanted to return and when After a caucus, Harvey asked for additional time to consider the union proposal and said that he did not want to leave the impression that it was rejected The remainder of the session was devoted to con- tract negotiations which produced little progress 9 A second decertification petition for the clerical unit had since been filed On June 28 the strikers decided to end the strike, and on the following day Lang sent the Company a letter notifying the Company that the strike was terminated and uncondi- tionally offering to return to work all the strikers, listing them by name On July 2 the parties met again, and Lang asked for a response to his letter Harvey said that the letter contained an unrealistic offer as it included the names of two strikers whom the Company had discharged for misconduct during the strike After further unsuccessful attempts to persuade the Union to reduce its list, Stantis said that Hecox and Bauman were not acceptable and that the rest of the list was neither accepted nor rejected but would be considered in the light of the legal implications The parties then dis- cussed several contract items, and Lang again raised the question of submitting unresolved items to arbitration Stantis said he would give it serious consideration and that decision might depend on the number of items at impasse Stantis suggested that they try to reduce the number of items at impasse to make arbitration more palatable On July 5 the parties met again to review their positions with respect to the various contract provisions On the next day, the Company answered Lang's June 29 written re- quest for reinstatement, asserting that the Company did not consider the offer unconditional, apparently because of the inclusion of Hecox and Bauman on the list of those for whom reinstatement was requested although the Company did not so state in its letter On July 9, Lang made a further written reinstatement request reasserting the unconditional nature of the request The parties met again on July 11, 12, 20, and 25 and August 9 and 23 Some progress was made in narrowing contract issues but major impasse items remained The Company deferred response to the second reinstatement request of the Union, and ultimately when the Union filed a charge alleging refusal to reinstate the Company took the position that it would make its position known to the Board so that there was no need to discuss it further at the bargaining table None of the strikers have been reinstated, and negotiations terminated with the beginning of the hearing in this case The General Counsel and the Union contend that the Company's refusal to reinstate the strikers violated Section 8(a)(3) of the Act because they were entitled to reinstate- ment whether or not replaced The Company contends that the strikers were economic strikers who were replaced, and that it had no obligation to remstate them because the strike violated the no-strike clause of the December 18 wage agreement and because they engaged in various acts of strike misconduct C Concluding Findings 1 Introduction The principles applicable to the basic issue in this pro- ceeding have been often set forth and summarized, and are best expressed directly in the words of the Board and the courts In Church Paint Wholesale Grocery Company, Inc, 215 NLRB 500 (1974), the Board framed the issue in terms 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly applicable to the basic issue in this case and fo- cused on one boundary of an employer's bargaining obli- gation, as follows The basic question here can be simply stated but it is not susceptible of a short and simple answer Did the Respondent negotiate with the Union in bad faith and with the intention of avoiding reaching agreement or conditioning agreement upon the Union's acceptance of terms and conditions which the Respondent knew or should have known were unacceptable to any self- respecting union? The governing principles need not be set forth in exhaustive detail Section 8(d) of the Act defines col- lective bargaining as "the performance of the mutual obligation of the employer and the representatives of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotia- tion of an agreement, or any question arising thereun- der but such obligation does not compel either party to agree to a proposal or require the making of a concession " The yardstick laid down by Section 8(d) of the measurement of "good faith" is not rigid but, necessarily, is an elastic concept having meaning "only in its application to the particular facts of a par- ticular case " N L R B v American National Insurance Co, 343 U S 395, 410 (1952) As the Court of Appeals for the Second Circuit stated in N L R B v National Shoes, Inc, and National Syracuse Corporation, 208 F 2d 688, 691-692 (1953), the problem "is essentially to determine from the record the intention or the state of mind of [the Employer] in the matter of [his] negoti- ations with the union In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record "6 Moreover, as the Supreme Court stated in American National Insurance, supra, 404, it is "apparent from the statute itself that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of a collective-bargaining agree- ment " A necessary corollary to this principle is that just as the Act "contains no authority to force an agreement where the parties have reached an impasse" (N L R B v United Clay Mines Corporation, 219 F 2d 120, 126 (C A 6, 1955), so also refusal to bargain can- not be equated with "refusal to recede from an an- nounced position" advanced and maintained in good faith Division 1142, Amalgamated Association of Street Electric Railway and Motor Coach Employees of Ameri- ca, AFL-CIO [Continental Bus System] v N L R B, 294 F 2d 264, 266 (C A D C, 1961) 6 See also N L R B v Reed & Prince Manufacturing Company, 205 F 2d 131 , 134-135 (C A 1, 1953 ), cert denied 346 U S 887 (1954) In Continental Insurance Company v N L R B, 495 F 2d 44 (1974), the Court of Appeals for the Second Circuit de- scribed in greater detail the affirmative aspect of the bar- gaining obligation and the problems attendant to determi- nation of the issue The duty imposed on the parties under §8(a)(5) to bar- gain collectively does not obligate a party to make concessions or yield a position fairly maintained, N L R B v America National Insurance Co, 343 U S 395, 404 (1952), NLRB v Patent Trader, 415 F 2d 190 (2d Cir 1969), modified, 426 F 2d 791 (2d Cir 1970), NLRB , v General Electric Co, 418 F 2d 736, 756 (2d Cir 1969), cert denied, 397 U S 965, rehear- ing denied, 397 U S 1059 (1970) On the other hand, the parties are obligated to do more than merely go through the formalities of negotiation There must be a "serious intent to adjust differences and to reach an acceptable common ground," N L R B, v Insurance Agents Union, 361 U S 477, 485 (1960) To conduct negotiations as a kind of charade or sham, all the while intending to avoid reaching an agreement, would of course violate §8(a)(5) and amount to "bad faith" bargaining Sophisticated pretense in the form of apparent bargaining, sometimes referred to as "shadow boxing" or "surface bargaining," see NLRB v Herman Sausage Co, 275 F 2d 229, 232 (5th Cir 1960), will not satisfy a party's duty under the Act, and where years pass without an agreement being reached, the conduct of the parties must be scrutinized carefully, especially when experience discloses that collective bargaining agreements are usually reached in a fraction of that time The problem, therefore, in resolving a charge of bad faith bargaining, is to ascertain the state of mind of the party charged, insofar as it bears upon that party's negotiations Since it would be extraordinary for a party directly to admit a "bad faith" intention, his mo- tive must of necessity be ascertained from circumstan- tial evidence, NLRB v Patent Trader, supra, 415 F 2d at 197 (2d Cir 1969) Certain specific conduct, such as the Company's unilateral changing of working conditions during bargaining, may constitute per se vi- olations of the duty to bargain in good faith since they in effect constitute a "refusal to negotiate in fact," NLRB v Katz, 369 U S 736, 743 (1962) Absent such evidence, however, the determination of intent must be founded upon the party's overall conduct and on the totality of the circumstances, as distinguished from the individual pieces forming part of the mosaic N L R B v General Electric Co, supra 418 F 2d at 756 Specific conduct, while it may not, standing alone, amount to a per se failure to bargain in good faith, may when considered with all of the other evidence, support an inference of bad faith The task of applying these principles is more difficult than stating them Here the parties have presented volumi- nous evidence in the attempt to recreate the totality of the circumstances, and while the completeness of the picture may aid in the ultimate resolution of the issue it adds to the complexity of describing the pieces of the mosaic, their interrelationship, and the ultimate pattern that they dis- close TELEVISION WISCONSIN, INC 735 ' 2 Background a Evidence of hostility during the prenegotiation period Before the arrival of Stantis at the station, the parties had negotiated an initial collective bargaining agreement which insofar as appears was administered with few griev- ances being filed Following Stantis' arrival at the station, the frequency of employee complaints and grievances be- gan to increase Although the Company took the initiative in introducing most of the evidence as to employee com- plaints and grievances during this period as background to explain the reason for many of its proposals to change the terms of the 1970 agreement, the General Counsel and the Union argue that the evidence of the complaints and griev- ances and Stantis' response to them shows the origin of hostility toward the Union and its representatives, the for- mation of an antiunion animus, and a refusal to live with the terms of the agreement which had been negotiated be- fore his arrival The evidence clearly shows that Stantis disapproved of the relationship between the Union and the Company which he found when he came to the station The clearest evidence of this appears in a letter Stantis wrote to Mrs Elizabeth Murphy, president of the Company's parent cor- poration, in which he portrayed his view of the station when he arrived Stantis wrote By then, the union, without guidance from its local and without control from management, was flexing its muscles Members were instructed "to refuse to work" at the slightest displeasure, shifts were being "traded" without the consent or knowledge of management, who could do what and when was being dictated by the union In short the union was all but running the company When the lid was clamped down, the union reacted in a way that was at least in part predictable It resist- ed There followed an avalanche of grievances Each fought desperately and at length Each settled in turn But of particular significance not one of these griev- ances ever reached an arbitrator's desk While these words of Stantis may be taken as indicating his view of the relationship, the evidence as to grievances shows perhaps only a partial picture but a different picture The grievances introduced by Respondent do not show that the Company was being dictated to by the Union as much as what was mentioned by Stantis in another letter to the Company's Communications attorney, that the Company's supervisors lacked a working familiarity with the terms of the contract The record also shows less than an avalanche of grievances and less than desperate battling over each of them To the contrary, Chief Steward Bedna- rek filed few formal grievances, preferring to write letters of complaint seeking adjustment outside the grievance pro- cedure, and insofar as the record shows was less than dog- ged in pursuit of his complaints when they went unan- swered, produced nonresponsive replies, or rejected claims The evidence does not go so far as to establish that Stan- tis refused to live within the terms of the agreement, for the merits of the grievances filed during the period after Stantis arrived at the station were not litigated But it is clear that Stantis grew increasingly hostile towards the Union after his arrival at the station Stantis himself testified that he believed the Union was using the agreement as intentional and malicious harassment of the Company and its supervi- sors In a statement given to the Regional Office during the investigation of this case, Stantis described the history of the relationship between the Company and the Union as the most remarkable and clear cut case of anticompany animus on the part of any union Stantis viewed union chief stewards, Bednarek and later Taugher, as playing control room lawyer, merely creating problems for the Company, and filing grievances as ego trips There is little doubt that Stantis entertained these views, but there is no objective evidence to support them Nothing in any of the grievances or responses in the record indicates that griev- ances were filed without foundation or frivolously Stantis' own letter and testimony support the conclusion that far from malicious harassment or ego trips, the grievances filed during this period were the predictable reaction to Stantis' clamping down The conclusion to be drawn is that Stantis from the outset of his tenure at the station disapproved of the union-company relationship which he found, affirma- tively sought to change it, and grew hostile to the Union and its chief stewards when they reacted predictably to his efforts to make changes b The attempts to enforce the August 19, 1971, checkoff agreement As set forth, on August 19, 1971, the parties met and entered into an agreement which among other things pro- vided for the institution of checkoff of union dues The meeting was requested by the Company after what it viewed as advice or instruction by Chief Steward Bednarek to clerical employees that they were not required to per- form receptionist duties At the meeting discussion went beyond the immediate issue and dealt with broader aspects of the relation between the Company and the Union The immediate problem was resolved by the Company's agree- ment to increase the receptionist's salary to the level of other clericals and the Union's agreement to merger of the two positions The Union also agreed to notify its members that the chief steward was not authorized to interpret the contract so as to cause a refusal to work without Interna- tional approval At the Company's suggestion, the parties also agreed that additional stewards would be appointed so as to provide one from each department 10 During the meeting the Union indicated that a number of employees were delinquent in payment of dues and that it was having difficulty collecting them The Union sought a checkoff agreement in return for its agreement to the company re- quests Agreement was reached that checkoff was to be instituted on January 1, 1972, and that a memorandum of procedures would be developed and agreed upon On the following day Stantis wrote Button a letter set- ting forth his understanding of what they had agreed to 10 Although Button and Orr initially testified that this was the Union's suggestion, both ultimately showed uncertain recollections, and I have re lied on Stantis to find that it was the Company's proposal 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to checkoff Stantis wrote The Company agrees to a checkoff system of Union dues collections Such system to be executed by WISCTV and effective January 1, 1972, contingent on the fulfillment of Paragraphs 1, 2, & 3 of this letter to the reasonable satisfaction of the Company and the Union Paragraphs 1, 2, and 3 of the letter set forth the other understandings reached on August 19 In response Button sent Stantis a proposed memoran- dum for both of them to sign for circulation to the employ- ees covering all four points of the agreement With respect to checkoff the memorandum stated 4 The Company agrees to a checkoff system of union dues collections Such system to be executed by WISCTV and effective January 1, 1972 The memorandum continued with a final paragraph The Union has agreed to the above 4 points provid- ing the Company agrees to a Memorandum, setting forth the procedures for payroll deduction of dues When Stantis received Button's memorandum, he called Harvey and told Harvey that it seemed to him that Button had turned the agreement around by making all items con- tingent upon the Company's agreement to a checkoff mem- orandum rather than making checkoff contingent on the other items After Harvey told Stantis that he saw no prob- lem with it and that it did no harm, Stantis signed Button's proposed memorandum The memorandum was later post- ed on the employee bulletin board In late September, Orr wrote Stantis a letter in which among other things he indicated that he would contact Stantis shortly to arrange a meeting to prepare and reach agreement on a memorandum to implement checkoff At some point thereafter Orr was reassigned by CWA, the meeting never took place, and it appears that no one re- placed On in pursuing the initiative he had taken in writ- ing Stantis In November Harvey wrote Stantis that several matters needed attention, one of which was drafting a checkoff provision to be effective in January Nothing more happened by January 1, and checkoff was not implemented on that date In late January, Bednarek asked about implementation of checkoff, and Stantis said it would be implemented, but that there were obstacles within his bookkeeping system which prevented implemen- tation as of January 1 Stantis told him that it would start whenever the bookkeeping problems were cleared up Within the next month or two, Bednarek raised the subject several times and was told that the bookkeeping problem hadn't been straightened out yet On one occasion in Janu- ary, Stantis also tied the delay in implementation of check- off to the failure of the Union to appoint stewards for all departments " By spring 1972, checkoff had still not been implemented, and Button told Bednarek that there was a problem in in- stituting checkoff and he needed to have four persons cho- sen to be stewards On May 22 Bednarek submitted four u Lang so testified names to Stantis whom he described as secondary stewards to represent the Union at the station along with him Stan- tis replied on May 30 that Bednarek's submission failed to meet the requirements of the August 19, 1971, agreement in that he failed to specify which department each steward was to represent and to provide sufficient stewards to rep- resent all departments defined in the collective-bargaining agreement Stantis added "In view of these deficiencies we will consider our agreements as they relate to `checkoff' unfulfilled and therefore await your reply " Bednarek re- plied by assigning each of the persons named in his earlier letter to a specific department Following this exchange of letters, it appears that the matter was not discussed between the parties again until June 30 when Orr was reassigned to service the Company's employees and the parties met However, in the meantime Harvey wrote Stantis about the checkoff situation Harvey pointed out the difference between Stantis' August 20, 1971, letter and Button's reply noting that Button's memo- randum dropped the contingency of checkoff upon fulfill- ment of the other agreements reached on August 19 and added a different contingency, "that being submission by CWA of a memo on checkoff, and the Company agreeing to such wording " Harvey's letter continued Since the Union has not submitted anything to us in the form of a "memo," I presume we are not obligated to press the matter Furthermore, even if Don Bednarek follows through with the requirements as set forth in your let- ter of yesterday, May 30, the Company must still await a memo from CWA on checkoff Harvey further stated that the Company had its own draft of a checkoff memo which he enclosed That draft, however, was not shown to the Union until sometime later Among other things, it provided It is agreed that as compensation for this service, the Company shall receive ten per cent of the total amount of Union dues checked off for each pay peri- od The Union authorizes the Company to withhold said monies deducted as part payment for the admin- istrative and payroll cost incurred by the Company in processing such assignments Checkoff was not again discussed between the parties until June 30 when they met at a grievance meeting with both Orr and Stantis present Stantis agreed with Orr at that time that he would implement checkoff before the im- pending termination of the collective bargaining contract Orr indicated that he would supply Harvey with some cop- ies of telephone company contracts from which he could draft a checkoff agreement Apparently the Company mentioned its desire for 10 percent of the dues as compen- sation, but it did not furnish Orr with a copy of its written proposal at this time, and Orr apparently did not react at this time to the oral proposal Two more grievance meetings were held before negotia- tions opened, at which, among other things, further efforts were made to implement checkoff before expiration of the contract On July 21 the Company adhered to its position TELEVISION WISCONSIN, INC 737 that it wanted 10 percent of the dues collected as reim- bursement Orr took the position that the Union should not have to pay anything and said that only one CWA contract in Wisconsin provided for such a fee and that it provided for payment of $15 a month for 1500 members Orr brand- ed the company proposal as ridiculous and asserted that even $5 a month exceeded actual cost However, Orr then offered to pay $15 for the original setup and $5 a month thereafter Harvey said that he did not intend to draft a checkoff memo as long as the question of the amount to be paid for the service remained in doubt Stantis proposed a flat $35 a month fee as an alternative to his 10 percent proposal, and Orr also rejected that,12 again taking the po- sition that he did not believe the Union should have to pay anything At the August 1 grievance meeting, Stantis of- fered a new alternative to his 10 percent proposal, propos- ing a $30 setup fee and a $20 monthly fee thereafter Orr again rejected Stantis' proposal as too high, and said that he felt the Company was trying to take the employee's money After a heated discussion, the Local President Sta- men volunteered to try to arrange for checkoff through the bank used by the Company, with the Union to pay the bank directly for its service Stantis indicated no objection to an attempt by Staven to make such an arrangement Although the Company contends that the Union was at fault for the lack of implementation of checkoff before be- ginning negotiations, the above-recited facts show that the Company progressively backed away from its original agreement and sought to create obstacles to insure that it would not be implemented Initially, when Stantis wrote Button about his understanding of the agreement reached on August 19, Stantis indicated that implementation of checkoff was contingent on fulfillment of the other terms of the agreement, but he said nothing about any condition that the Union supply a memorandum After talking with Harvey, Stantis signed Button's draft memo without indi- cating to Button in any way his belief that Button had altered their agreement Although he and Harvey testified that they believed Button's memo made implementation of checkoff contingent upon the furnishing of a memo by the Union, Button in fact made the entire agreement contin- gent upon agreement to memorandum setting forth proce- dures for payroll deduction of dues, and any condition that the Union furnish the memo was at most implicit in the condition that the Company agree to a memo When the question of implementation was raised in Jan- uary, on one occasion in Lang's presence Stantis men- tioned the failure of the Union to appoint stewards as a reason for not implementing checkoff, consistent with his original interpretation of the oral understanding reached on August 19 At other times when Bednarek questioned 12 Although the exact amount of dues which would have been collected was not established with precision, Stantis testified that if every member had dues checked off, 10 percent of the dues would have amounted to between $30 and $35 He also estimated that average dues would be $6 a month for about 32 employees Monthly dues were 2 hours' pay with a minimum of $f and a maximum of $10 A list of 31 members given the Union in December 1971, showed their weekly pay and indicated an aver- age monthly dues of about $7 50, higher than Stantis' estimate of the aver- age, but that list also indicated total monthly dues of approximately $235 a month, 10 percent of which is substantially less than Stantis estimate him Stantis mentioned only bookkeeping problems, and at no time between January and June did Stantis say any- thing about the Union's failure to submit a memorandum of procedures In May, when Stantis again relied on his original understanding of the agreement and rejected Bednarek's list of stewards, he said nothing to indicate that even after Bednarek submitted a proper list of stewards Stantis would still deem the agreement relating to checkoff unfulfilled Yet, at this very time, Harvey reviewed for Stantis the difference between Stantis' understanding and Button's, indicating that in fact Stantis had agreed to a different condition than the one he was insisting upon in his letter to Bednarek, but at the same time suggesting that since the Union had submitted nothing in the form of a memo, the Company was not obligated to press the matter At the same time, Harvey had already drafted a memo which he and Stantis withheld pending a union submission The Union in its brief describes this conduct as playing fast and loose, and I agree Having understood that he signed something other than what he proposed, Stantis nonetheless insisted on compliance with his original pro- posal, while at the same time holding in abeyance his inter- pretation of the Button drafted memorandum to be raised as the next barrier to implementation of checkoff But more telling, Stantis not only sat with a draft of checkoff procedure while insisting that the Union first furnish him a proposal, but included in it a provision which had never been discussed and which he had to know would never be proposed by the Union When the parties finally met to discuss checkoff in June, Stantis unveiled this new condi- tion which had never been mentioned previously Although the Company characterizes the proposed fee as simply a part of the checkoff procedures which remained to be settled, I find it impossible to view the fee proposal as a matter of procedure comparable to the form of authori- zation to be used, the time deductions were to be made, the method of cancellation of authorization and the like What the Company proposed was a substantial cost to the Union Although payment for the cost of checkoff is not unheard of, it is the exception and not the rule As Orr pointed out, in the one other Wisconsin agreement which CWA had which provided reimbursement for cost of checkoff, the reimbursement amounted to approximately 1 cent per member What the Company proposed was more than 50 times that Indeed, if what was anticipated by the Company was that the Union would submit the particulars in a memorandum to be prepared by it, as Stantis stated in a November 2 memorandum he wrote to Mrs Murphy, clearly it was not contemplated that the Union would pro- pose such a fee as part of the memorandum of procedures The inference that the 10-percent fee proposed in June was intended as a further obstacle to implementation of checkoff is further indicated by the discussions which en- sued When Orr protested the fee on July 21 and offered a $15 initial fee payment and $5 a month which he also char- acterized as excessive, Stantis countered with an alternative of $35 a month Surely this was not a serious proposal, for Stantis' largest estimate of the monthly fee that his 10- percent proposal would produce was $30 to $35, and his estimate of that average would be $6 and would in fact have produced a monthly fee of less than $20 a month, 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assuming that all members authorized checkoff Thus, Stantis could hardly have expected that his alternate pro- posal would be more palatable to Orr and the Union Stan- tis' reduced proposal at the August 1 meeting was hardly more likely to win favor, for again it appears to have been no less than Stantis' estimate of average dues multiplied by the number of members and in fact no less than his origi- nal 10-percent proposal To this point there is substantial basis for an inference that after agreeing to checkoff in principle in August 1971, as Stantis' hostility toward the Union grew, the Company sought to avoid implementation of that agreement, first by relying on problems in its bookkeeping department, then by insisting on what it had originally understood as a con- dition, then by insistence on what it construed Button's memorandum to imply, and then by importation of an en- tirely new condition not contemplated by anyone in Au- gust, 1971 While this conduct all predates the period covered by the charges it furnishes background which may properly be considered in assessing the Company's intent in the negoti- ations which followed 3 The early negotiations The first distinct phase in the negotiations covered the period from the opening of negotiations on August 4 until the Company presented its proposal on September 15 Al- most concurrent with the opening of the negotiations Bed- narek filed an unfair labor charge against the Company, leading to an angry reaction by the Company and a virtual cessation of negotiations while efforts were made to have it withdrawn or dismissed The Union contends that the Company refused to negotiate in violation of its bargaining obligation while the charge was pending The Company contends that the charge was an indication of union bad faith in negotiations setting an acrimonous tone fostered by the Union throughout the negotiations There is no question that Bednarek filed his charge with- out advance notice to the Company that it was being com- templated and after Taugher had indicated at an August 1 grievance meeting that he was investigating one aspect of the problem covered by the charge and that for the mo- ment the situation was all right The testimony of Bednarek and Taugher furthermore is not impressive in their re- sponses to questions about the charge While I have gener- ally credited Taugher and at times attributed his apparent wariness on cross-examination to a desire to be accurate under sharp questioning, in connection with the Bednarek charge Taugher was wary to the point of evasiveness and was less than candid in stating his recollection of his role in the filing of the charge As for Bednarek, he had already resigned as chief steward and had all but left the station as an employee when he filed the charge I cannot believe his testimony that he took it on himself to file the charge for any of the reasons he stated or that he was unaware that bargaining was in its initial stages when he filed the charge Lacking confidence in their testimony as to reason for the charge, there is cause to infer that the timing of the charge had everything to do with the beginning of negotiations and that it was the product of the desire of Taugher and Bednarek, if not others,13 to gain a bargaining advantage from it However, the fact that the charge may have been filed with a view toward gaining a tactical advantage neither implies that the Union was in bad faith nor gave the Com- pany the right to ignore its obligations in response Ordi- narily the filing of a charge is protected activity, regardless of the reason for filing it, unless it is done with malice or in bad faith 14 Ordinarily, the filing of a charge is not an ex- cuse for refusing to bargain, and withdrawal of a charge may not be insisted upon as a condition of bargaining Here, while there is substantial reason to believe that the charge was filed to gain a tactical advantage, the evidence shows neither malice nor bad faith Despite the bitter pro- test of the Company to the charge, Harvey conceded to Orr that one aspect of the charge might have merit, and the uncontradicted testimony of Donna Winter as to the cir- cumstances which gave rise to the charge show more than a colorable basis for concluding that Respondent had unlaw- fully insisted on bargaining directly with Winter over holi- day call-in pay despite her repeated requests for union rep- resentation The Company's response to the filing of the charge went beyond mere expression of anger The whole August 7 bar- gaining session was devoted to discussion of the charge with Harvey cross examining Orr as to the circumstances surrounding its filing and, as Harvey put it, reading Orr "the riot act " Harvey told Orr that negotiations would not continue until the charge was cleared up The meeting ad- journed without a date being set for the next session, and in fact there were no more negotiations until anoint request for dismissal of the charge was filed, accompanied by a letter drafted by Harvey which Orr persuaded Winter to sign The charge became a vehicle for berating the Union and its representatives and for obstructing negotiations In- deed, the company reaction demonstrated the depth and vehemence of Stantis' hositility toward the Union I cannot conclude, as the Company contends, that the filing of this charge shows that the Union was bargaining in bad faith or that it explains or justifies the Company's hostility to the Union or acrimony To the contrary I con- clude that the Company's response to the charge and its refusal to negotiate until steps had been taken to secure its withdrawal as indicative that it was the Company which seized upon the pretext at hand to avoid its bargaining obligation The General Counsel and the Union contend further that in the early phase of the negotiations, the Company evidenced bad faith by ignoring and failing to reply to a union request for insurance information Taugher testified without contradiction that at the August 4 meeting and at subsequent meetings the Union asked the Company for information as to the amount of life insurance for employ- ees under existing group policies, but never received any 13 There is no evidence that Orr or any CWA officiil had advance notice that Bednarek was going to file the charge , and it app_ars that Orr knew nothing of it until after it was filed A contention that star , nents about the charge by Button on October 20, more than 2 months later, shows that Button had advance knowledge of the charge, is clearly without merit 14 Leviton Manufacturing Company, Inc, 203 NLRB 309 311, enforcement denied 486 F 2d 686 (C A 1 1973) TELEVISION WISCONSIN, INC 739 response As late as October 23, when Button entered the negotiations, he asked what had happened to the Union's request for insurance information and again received no response Insofar as appears, the request was not repeated thereafter and the Union did not pursue the matter further The information requested by the Union was clearly in- formation to which it was entitled, and no explanation was offered for Respondent's failure to supply it There is no suggestion that this information was already within the possession of the Union Although the Union ultimately abandoned its attempt to obtain this information and the issue of life insurance was relatively unimportant in the negotiations, the failure of the Company to respond to the Union's repeated requests bespeaks a rejection of the Union's proper role at the bargaining table and is indica- tive of bad faith on the part of the Company The Union also contends that the Company's reaction to the filing of grievances on September 5 and 19 is further evidence of the Company's bad faith The Company con- tends, to the contrary, that it was the Union which sought to raise grievances during negotiatons and obstructed ne- gotiations The grievance at issue arose out of a provision for pay- ment of a $7 50 talent fee to staff announcers "for each performance" on camera There had been disagreement over a period of time between the Union and the Company over what was meant by a performance, with the Company taking the position that an announcer's appearance on a newscast was one performance no matter how many seg- ments he appeared in, while the announcers contended that each segment was a performance This issue had been discussed at grievance meetings before negotiations started and was the subject of a written grievance filed by Taugher with Stantis on July 21 On that occasion Stantis rejected the grievance not on its merits but on procedural grounds because of Taugher's failure to follow the detailed griev- ance procedures of the contract At the August 21 negotiat- ing meeting, the Union made a proposal with respect to announcers' pay which would have substantially increased minimum announcers' pay and eliminated talent fees for the first 10 performances a week In conjunction with that proposal there was considerable discussion of the differ- ences between the parties over the definition of a perfor- mance On September 5, shortly before negotiations were to be- gin for that day, News Announcers Bailey and Wilson pre- sented News Director Brown with grievances over the Company's payment of talent fees to them Brown told Stantis about the grievances just before the start of negotia- tions, and Stantis became upset At the outset of the meeting Stantis raised the matter, complained about the presentation of the grievances, and accused the Union of harassment designed to interrupt and disturb collective bargaining 15 Stantis testified that he felt it was harassment to file a grievance at the same time that the Company was negotiating on a subject Stantis accused the Union of trying to put undue pressure on the Company 15Irhough Stantis testified that he did not remember how the matter was raised and that he thought it was Orr who introduced the topic, Orr testified that Stantis brought it up I have credited Orr and took the position that he would not negotiate until the grievance was disposed of Stantis also told Orr that he was willing to process grievances or negotiate but not to do both at the same time A conference was then held between Harvey, Taugher, and Orr at which Harvey questioned why grievances were being filed rather than presenting the matters for negotiation, and said he did not think that grievances should have been presented just moments be- fore bargaining was to begin or that they should be submit- ted orally Harvey told Orr that if he had to submit a griev- ance it should be done so that it would not look like the Union was trying to pressure the Company The parties recessed for lunch with feelings high After the recess, how- ever, negotiations resumed with discussion of another mat- ter Later in the afternoon Bailey entered the negotiations, and Orr raised the matter of the grievances and said he wanted the matter settled Harvey and Stantis protested discussion of the grievances at a negotiating meeting, and Orr said the grievance procedure would be followed and that grievances would be filed The talent fee grievance did not come up again until the September 19 meeting At the outset of that meeting Orr mentioned that Taugher had tried to hand Brown a griev- ance on the previous day regarding Larry Wilson and that it was refused Orr asked how the matter was supposed to be handled Stantis replied that the Company was aware that the Union was seeking to grieve the situation and that the Company found the Union's conduct reprehensible Stantis objected to the interruption of negotiations by sub- mission of grievances and accused the Union of deliber- ately attempting to bog down the negotiations Orr asserted that it was an unfair labor practice not to allow the negoti- ators to bring the matter up for discussion, and Stantis said that the Union was committing the unfair labor practice and asked why it wanted to bring the situation to a head in the middle of negotiations after 2 years After a caucus, Taugher stated that the Union's materi- als were rather sketchy from the former chief steward and that more investigation was desired Orr indicated that the Union's only purpose was to determine whether any dis- crimination had occurred between Larry Wilson and other announcers, and that if not there would be no reason to grieve that matter further Stantis became angry and ex- tremely agitated at that point and indicated that the griev- ance was a serious matter and he was extremely upset at the Union's lackadaisical attitude towards its investigation Orr indicated that having become involved he would inves- tigate the matter from the beginning and there was another caucus called During that caucus Stantis changed his position and when the meeting resumed he took the position that the grievance should be entertained then and there 16 Stantis told the Union the Company decided to suspend negotia- tions, to hear and decide the grievance immediately, which was in the Company's best interest, and then to return to negotiations at a later time Orr then said he would like to have the lunch hour in order to discuss the matter with 16 Stantis' asserted reason was that the Union would be continually griev- ing the matter during negotiations and disrupting the bargaining procedure He testified that he decided to put it on the table, discuss it, get it over with, and get back to the negotiations 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson and Bailey and then enter into the grievance meet- ing that afternoon During the lunch hour Orr came to the conclusion that to the extent that it charged discrimination against Wilson in the payment of talent fees the grievance did not have merit because Wilson had not been treated differently from others Orr withdrew the grievance after the lunch break Orr concluded that a group grievance should be filed later contending that the contract had been violated by the im- proper payment of talent fees to all announcers The mat- ter was in fact pursued and settled as part of the December 18 wage agreement The fact that parties are negotiating for a new agreement ordinarily has no bearing on their obligation with respect to enforcement of an existing agreement Resolution of the talent fee issue for purposes of a new agreement would not resolve any dispute over payment of talent fees under the existing agreement, and the Union and employees were not obligated to forego claims under the expiring agreement as a condition of negotiating a new agreement Stantis' reaction to the filing of the grievances was to give the Union a choice between grieving and negotiating and was clearly improper On neither occasion did the Union initially seek to have the grievance entertained as a bargaining matter 11 On the first occasion, bargaining pro- ceeded after most of the morning was lost because of Stan- tis' reaction to the grievance On the second occasion Stan- tis ultimately sought to suspend bargaining entirely until the grievance was disposed of As in the case of the Bedna- rek charge, Stantis' reaction to the filing of the grievances is indicative that the Company sought to use the grievances as an excuse to interrupt bargaining and in this case to force the Union to choose between its right to negotiate and its right to file grievances 4 The September 15 proposal During the first six bargaining sessions the Company gave few indications of the changes it contemplated seek- ing in the contract with the Union At the first bargaining session Stantis told Orr he agreed in principle with Orr's proposal that there should be no retrogression from the old contract, but he added that the Company wanted to take a long look at the contract as then written because he had many problems with it during the term Stantis made refer- ence to the number of grievances and the difficulty with finding things in the expiring agreement At the August 21 bargaining session Stantis told the Union that the Compa- ny would like to rewrite the contract to provide a number of different provisions and to reindex the contract Stantis also stated that there needed to be many changes in the contract Apart from these general statements the Company gave little indication during the first six sessions of the changes it wanted As Harvey put it, the company posture during this period was "wait and see" until the Union completed presenting all its proposals The Company showed no reac- 17 On the afternoon of September 5, after Stantis had initially raised the matter, Orr sought to reraise it in bargaining but immediately withdrew it when Stantis objected tion as to many of the union proposals, including a number which related directly to changes later proposed by the Company But it was not uniformly silent In three areas- grievance procedure, union security, and probationary pe- riod-the parties made some progress toward agreement With respect to the grievance procedure there was general agreement that it should be rewritten and at least the out- line of a new procedure was agreed to With respect to union security and probationary period substantial agree- ment was reached In the case of union security the Com- pany tentatively accepted the Union's proposal to reduce the grace period to 30 days from 60 days and to rewrite the union-security clause In the case of probationary period the Union tentatively accepted the company proposal to extend the probationary period to 6 months, while the Company accepted the Union's proposal to make dis- charge of probationary employees subject to the grievance procedure but not arbitration is With respect to a few issues, the Company also ex- pressed some disagreements which foreshadowed later company proposals Thus, when the Union proposed cer- tain deletions from the description of the duties of the tele- vision camera operator/lighting operator/floorman classi- fication, Stantis objected that it was a make work proposal and asked who would perform these duties Stantis disput- ed union proposed definitions of part-time employees and departments In a discussion of the Union's holiday pro- posal Stantis attacked the so-called 32-hour provision as exorbitant and prohibitive in cost Immediately after the August 21 meeting, the Company started to work on its counterproposal According to Har- vey the decision was made at that time to write a compre- hensive counterproposal Stantis was not questioned about this decision, but Harvey testified at some length as to their discussion Mr Stantis said to me, Walt, I think that the time has come for us to put together our own proposal He said, I have had many years in this field, and quite frankly, he said, this contract is an abomination And, I want to see a number of changes in it for clarification pur- poses and also on behalf of the employees And, I would like to draft up a proposal to present to the Union and to show them what's in my mind as to what I would like to see in the new contract He said, what the hell, I can remember him saying that, what the hell, if they're going to submit all this to us, he was asking me, is it against the law for me to submit to them all of my feelings about the subject I said, god no, George I should think that the best thing you could do would be to do dust that And, if you give it to them at once, then, they've got it They've got it altogether You don't submit it to them on a piecemeal basis We can sit down and look at the whole thing that's in front of us, and that's just the way I would do it And, he said, do you think there would be an ad- verse reaction I said, I have no idea And, I remember I alluded to the several negotiating sessions I've had with the Teamsters I said to him, Stantis, I've been in a number of negotiations with the Teamsters, where 18 Later the parties agreed to reduce the probationary period to 5 months TELEVISION WISCONSIN, INC 741 they walk in and throw a contract on the table, and say, take it or leave it I said, that isn't your attitude, is its He said, no, that's not my purpose What I want to do is put together a whole proposal in all the areas that I feel should be altered in that old contract, and give it to Orr so that it's in front of everybody, and in the process, it will meet his demands and proposals that he submitted to us in the last three or four bar- gaming sessions And, that were yet to come He said, for all I know, there's more to come yet He said, there's no reason to sit here and wait for the rest of it Let's dust give what we want to them now And, I said, well, I see no objection to that at all How are you going to do its And, he said, well, that's the problem And, we then discussed at some length as to how to begin to develop this what's become known as S-15 Over the next 3 weeks Stantis drafted the proposal with the assistance of Harvey and Brown, principally, as well as the Company's other supervisors, and using contract re- porting services as well as contracts between the Union and two other Wisconsin TV stations, WMTV and WLUK, located in Madison and Green Bay, as sources of model provisions Stantis testified that his objective was to provide a writ- ten base from which negotiations could proceed more ex- peditiously in the absence of concrete written union pro- posals, to reduce the number of ambiguities in the old contract, to reduce its volume, and to organize its provi- sions in a way that would be clear to anyone who used it Stantis testified that although the Union later reacted an- grily to the proposal, he could not foresee that there would be a problem with the proposal Stantis testified that he did not suspect that throwing out the old contract would make the Union angry because Orr agreed with his criticisms of the old contract The principal changes from the old contract proposed by Stantis follow Except as indicated below, the Union had made no proposals or requests related to these changes rated the change in probationary provisions which had pre- viously been agreed to The only union proposal made re- lating to these changes was a request for a force adjustment or layoff provision Article III-Insurance Although Stantis had previously indicated in negotia- tions that the hospital room rate provided by the Company's health insurance was too low, the proposal sim- ply retained the old contract provision that no change would be made in existing benefits without notice to the Union The Union had proposed increased health and life insurance benefits to be fully paid by the Company Article IV-Grievances and Arbitration The proposal moved this article to a new location and basically rewrote it Many of the changes had been dis- cussed with Orr before the proposal was submitted and reflected mutual desire and general agreement to shorten and revise the grievance procedure One change in the pro- posal which had been neither discussed nor agreed to was elimination of what was known as the " status quo" provi- sion of the old agreement It provided that upon notifica- tion of a grievance involving layoff or technological change, health and safety, vacation schedule, changes in programming, promotions, and work schedules, the change being contested would revert to the situation prevailing be- fore the challenge and remain unchanged until the griev- ance procedure was exhausted Stantis testified that he dropped this provision because he believed it violated li- cense requirements in its impact in changes in program- ming and work schedules and made grievances and arbi- tration meaningless since it tied the Company's hands He testified that his objection to the clause in its relation to layoff, health and safety, vacations and promotions was different than with respect to the other two matters and he had no objection to "status quo" in those areas although there were better ways to resolve problems Article II-Discharge, Discipline, and Resignation The company proposal substantially rewrote this article It set up three classes of discharge-disciplinary, miscon- duct, and special-and attempted to define the causes for each, replacing a just cause standard set forth in the origi- nal contract Stantis testified that he relied upon the WMTV contract as a source of these provisions In the category of special discharge, the proposal in essence pro- vided for layoff without regard to seniority The proposal eliminated a provision immunizing employees from disci- pline for crossing certain picket lines Stantis testified that he omitted this provision because it was unrealistic for an employer which disseminates news The proposal also re- worded completely a provision of the old agreement which attempted to set forth general principles to be followed in the administration of disciplinary provisions Stantis testi- fied that he eliminated this provision because it was one of the most poorly written, cumbersome, verbose, and unnec- essary provisions in the old contract and it could only lead to extensive misunderstanding The proposal also incorpo- Article V-Hiring New Employees This article was moved to a different location where it was combined with several other provisions from other lo- cations in the old agreement One of these provisions which gave the Company the right to require an applicant or em- ployee after employment for good cause to take a medical exam was amended to delete a provision for consultation of a third doctor agreeable to Company and the Union in the event of conflicting medical evidence Stantis testified that he dropped it because he didn't know where conflict- ing medical evidence would come from and it was mean- ingless Article VI-Hours, Overtime and Holidays The company proposal split this into two new articles and made a number of changes in its contents The propos- al removed maximum and minimum workday and work- week limitations from the definition of part-time employ- 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees and added a provision for prorating fringe benefits for part-time employees Stantis testified initially that some- thing was left out of this provision in typing by his secre- tary because it was not precise or clear However, he never indicated what was omitted and later testified that the dele- tion of the workweek and workday limits from the defini- tion of part-time employees which left it unclear was caused because the Union had demanded overtime pay- ments for part-time employees based on work outside their scheduled hours The initial contract had provided that the use of tempo- rary employees as replacements for absent regular employ- ees would not begin until 5 days after the absence began The proposal deleted that restriction Stantis testified that he did so because it was senseless and it was difficult to wait 5 days in a small operation Also dropped was a provi- sion that temporary employees would receive the same wage treatment and consideration as regular employees Stantis did not explain his reason for this deletion With respect to hours the proposal changed the defini- tion of the regular workday from 9 consecutive hours in- cluding not more than one unpaid lunch hour to not more than 10 consecutive hours with no provision as to lunch hours Also deleted was a requirement that the workday be uninterrupted Stantis testified that the reason for the change to a 10-hour workday was to search out the possi- bility of a 4-day workweek He testified that the omission of reference to an unpaid lunch hour was inadvertent and that he was anticipating lively discussion of this proposal because a grievance had been filed in 1971 because 2 un- paid lunch hours had been scheduled for an employee who had worked a 10-hour week A further provision for an 8-hour day for technicians with a paid lunch hour was also deleted from the proposal Stantis testified that he pro- posed eliminating it because he thought it created discrimi- nation in favor of the technicians and resulted in the tech- nicians eating at expensive control panels during live programs The Union had requested that the paid lunch hour be given to production employees as well as techni- cians A further provision of the old contract with respect to hours had provided that cameramen and film editors could be assigned to work more than 9 consecutive hours with a workday span not to exceed 12 hours, with an unpaid lunch hour so that they could work 40 hours in 4 days The proposal changed the 9 hours to 10 hours and removed the maximum limit, according to Stantis, for the same reason as the changes in the workday described above He testi- fied that the 12-hour limitation was dropped because pro- duction sometimes went on for 14 to 16 hours He testified that he did not feel it was unreasonable as long as they could finish the workweek in 4 days A limitation of appli- cation of that provision of the contract to not more than two cameramen was dropped, according to Stantis, be- cause it didn't meet the realities of the Company's produc- tion needs, as three people were needed on the floor for any kind of a show The original contract provided that employees were enti- tled to 2 consecutive days off per week "(consisting of 58 hours) " The proposal deleted the quoted parenthetical phrase Stantis testified that no one was able to tell him where the 58 hours came from and he concluded that it was a typographical error and that 48 hours was meant He testified that he deleted the reference to 58 hours to elimi- nate confusion A provision that employees be scheduled at least a 12-hour rest between shifts was changed to pro- vide such rest "whenever practicable " Stantis did not testi- fy as to the reason for that change The Union had request- ed that the 58-hour interval be changed to 60 to provide 2 full days off plus the 12 hours provided for rest between shifts The Union had also proposed that the regular work- week be defined as Monday through Friday and that a pay differential be provided for Saturday, Sunday, and holiday work The old contract had provided that work schedules be posted at least 7 days in advance of their effective date The company proposal added "whenever practicable" to this requirement also, and deleted provision in the same section for reasonable rest periods or relief periods during extended rehearsals and broadcasts Stantis testified that he added "whenever practicable" language here be- cause it seemed sensible to require a 7-day notice but it wasn't always practicable to do so He testified that he deleted the requirement for reasonable rest or relief be- cause it contained ambiguities and could lead to griev- ances He testified that there had been such a grievance in the fall of 1971 The old contract required a 72-hour notice of overtime and a 48-hour notice of cancellation of overtime, unless due to a situation over which the Company had no control Failure to give a 72-hour notice relieved the employee of any duty to work overtime The company proposal deleted this provision in its entirety According to Stantis, the Union had already recognized that the requested notices could not always be given and this provision led to prob- lems of interpretation Stantis testified that this change was related to an instruction by Bednarek to an engineer not to work overtime, and the Company's experience showed that the requirement of a 72-hour notice in television was un- reasonable because it was necessary to be ready at a moment's notice to respond to unscheduled needs The old contract provided that an employee who had completed his shift could be called back at his option and that if he refused it should next be offered to someone else in his department The company proposal dropped the pro- vision that callback was at the employee's option It also changed the computation of pay for call-back employees to eliminate a provision that such pay was to start at the end of the employees regular shift A provision in the old con- tract that all work performed outside scheduled hours was to be considered overtime, to be paid at time and a half, was changed so as to limit its application to full-time em- ployees," apparently for the same reason that Stantis had deleted limitations on the workday and workweek of part- time employees The proposal provided for pay at the rate 1-3/4 times regular pay for an employee called in to work on his regular day off There was no comparable provision in the old contract Stantis testified that he added it be- 19 This change was omitted from the typed proposal and written in after submission of the proposal to the Union Stantis testified that the omission was inadvertent TELEVISION WISCONSIN, INC 743 cause he felt that being called in on a day off was a greater disruption than to call an employee back on a regular workday With respect to holidays the Company proposed to add a merit 1-1/2-day holiday on Christmas Eve Stantis testi- fied that these additions were meant to compensate for deletion of the so-called 32-hour provision, which provided time and a half premium pay for all work actually per- formed in a holiday week in excess of 32 hours According to Stantis, that provision resulted in each employee receiv- ing payment for an extra 96 hours a year Stantis testified that he felt that this provision was oppressive and that there had been a disagreement in 1972 as to its intent and meaning, at which time the Company had acquiesced in the Union's interpretation, but made it clear that when the contract terminated it would have to be renegotiated The Union had proposed the addition of three holidays-the day after Thanksgiving, the day before Christmas, and a floating holiday The old agreement provided that in the event a holiday fell during an employee's vacation period, another day mu- tually acceptable to the employee would be observed as the holiday or 8 hours' pay would be provided in lieu thereof The company proposal eliminated the requirement of mu- tual acceptability and designation of the alternate holiday was left at the Company's discretion Stantis gave no rea- son for this change The old contract provided that no holiday overtime would be scheduled The proposal deleted that provision and added provisions for overtime and call-in pay on holi- days at double time rates Stantis testified that the old con- tract was remarkably harsh in that it provided no alterna- tive even if the situation demanded it, and Stantis sought to resolve the problem by these changes The Union had sought triple time pay and a 4-hour minimum for call-in pay, with holiday overtime to be limited to emergencies Article VII-Jurisdiction The original contract provided no geographical limits on the Union's jurisdiction The company proposal limited the Union's jurisdiction to all work within 75 miles of the Company's studio, with discretion for the Company to ex- tend it at its option Stantis testified that he added geo- graphical limitations because they were very common in the industry Stantis related this proposal to grievances and threatened work stoppages over a proposed remote telecast at the house of the president of the University of Wiscon- sin and over use of a freelance cameraman at the Republi- can and Democratic National Conventions The proposal deleted a provision of the old agreement that employees could be assigned duties outside their nor- mal scope of work upon mutual agreement between Com- pany and Union if work in their classifications was not available According to Stantis, this provision was dropped because it could lead to arguments and required mutual agreement which to Stantis was "make work " The old contract recognized the need for the perfor- mance of some bargaining unit work by supervisors, but provided that the Company agree to minimize and not maximize such use of supervisors The company proposal deleted that provision and provided that no grievance would be subject to arbitration if the number of working supervisors on a shift did not exceed two per department Stantis testified that this provision was taken from the WLUK agreement, that it did not go as far as the WMTV agreement, and that he thought the Union would agree to it The Union had requested a reduction in the amount of bargaining unit work performed by supervisors Article VIII-Job Duties The old contract contained descriptions of job duties for Technicians, Television Camera Operator/Lighting Opera- tor/Floorman, Continuity, Film Cameraman and Editor, Staff Announcer, Clerical, Receptionist, and Janitor It provided that interchangeability of job assignments would be allowed only upon mutual consent of the Company and the Union The company proposal provided that inter- changeability of job assignments between departments would be allowed pursuant to a section of its management rights proposal which provided for retention by the Com- pany of the right to change work assignments Stantis testi- fied that he proposed this change because the old agree- ment led to misunderstandings and disagreements over its meaning He testified that there were varied assignments in each department, and he did not believe that at the time the original contract was written it was meant to apply to interchangeability within departments He testified that he sought to clarify the provision to apply only to inter- changeability between departments, and that he referred to the management rights provision to make the two consis- tent The misunderstandings and disagreements under the old contract referred to by Stantis related to performance of production work by film room employees which the Union contended violated the old agreement In the company proposal the descriptions of duties of the various classifications were also changed in some re- spects from the old agreement Some of the changes were made to conform with existing practice or to reflect tech- nological change One of the changes deleted a provision that during a performance or recording a cameraman would not be required to do anything other than operate the camera According to Stantis, this provision was not practical because a cameraman might have free time dur- ing a show, and it was no hardship for him to move a light or a microphone or give a cue He testified that the former provision produced grievances and was therefore dropped The Union had requested a different change in the descrip- tion of television camera operator and a review of all job duties to reflect job assignments and performance The proposal also merged continuity, clerical, and recep- tionist into a single classification in the traffic department According to Stantis, this merger merely reflected the prac- tice after the Cuba Club meeting in 1971 The Union had proposed maintenance of a clerical department separate from continuity A provision that staff announcers could render related services if mutually agreed to was changed in the proposal to delete the reference to mutual agreement because, ac- cording to Stantis, it was ambiguous and the proposal re- flected existing practice With respect to the description of 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a janitor's duties, a requirement for mutual agreement upon the addition of related duties was eliminated in the company proposal Stantis testified that this was because Orr said the Company could not subcontract janitorial work, and he did not want to leave the Union with control over whether or not something could be done which was needed Article IX-Leave of Absence and Sick Leave The proposal deleted provision for leave of absence for emergency personal illness without loss of seniority upon proper notice to the Company Although Stantis testified that it was moved to another part of the proposal, it does not appear there The old contract had provided that em- ployees returning from leave of absence must give a week's notice to the Company prior to returning or give a written statement of intentions at the time leave is granted The proposal required the latter and deleted the optional I- week notice Stantis testified that the change was proposed because it was more efficient The original contract provided for maternity leave not to exceed 1 year following the 7 months of pregnancy The proposal as typed omitted all reference to maternity leave Stantis testified that the omission was inadvertent and the words "including maternity" were inserted in the general leave of absence provision at some time after the proposal was given to the Union Stantis testified that he believed that the law which was then in a state of flux would cover whatever was necessary The old contract provided paid leave to any employee subpoenaed as a witness in any court proceeding to which he was not a party The proposal deleted this provision Stantis testified that the Company did not want to subsi- dize employees for activity for which they would be paid a witness fee Also dropped was a provision which gave em- ployees time off as necessary to vote on election day with- out loss of pay Stantis testified that the omission was inad- vertent Sick leave provisions were placed in a separate article in the company proposal The old contract provided employ- ees with paid sick leave varying with length of service from 1 working day for each month of service after 2 months during the first year, and up to 60 days at full pay and 60 days at half pay a year after 15 years of service The com- pany proposal provided for regular sick leave and major sick leave Regular sick leave varied with length of service from 10 full days after 6 months of service, to a maximum of 15 days at full pay and 15 days at half pay after 3 years Major sick leave was provided after regular sick leave was exhausted in the event of "the complete inability of the employee due to accidental bodily injury or sickness to perform any and every duty pertaining to his work with the Company," provided also that at no time would he be able to engage in any other work for pay while disabled A doctor's statement was to be required for eligibility for ma- jor sick leave No definition was set forth of illness for purposes of regular sick leave, but after 1 week of absence a doctor's statement could be required on request by the Company "indicating disability and the reasons therefore," to establish eligibility for regular sick leave Major sick leave varied from a minimum of 5 weeks after 3 years, to 13 weeks after 10 years of service Stantis testified that the proposal embodied a whole new concept which was difficult to compare with the old con- tract, and that under the old contract it was difficult to figure out who got what when He testified that he tried to recognize that the reality of the chance of illness increased with length of service and age, and that serious illness could be a disability to an individual and his family He testified that he wanted to recognize the need by providing an extended period of coverage for an illness that could be defined as major The only union proposal relating to sick leave was a request that a bonus be given for accumulation of sick leave after 5 years Article X-Management Rights The company proposal deleted the first section of the management rights provision in the old contract which, among other things, provided that the Company acknowl- edge that a well informed union leadership promotes har- mony in union-company relations and undertook to keep the union leadership informed of changes affecting work- ing conditions The company proposal expanded the sec- ond section of the management rights provision in the old contract to enumerate, as rights reserved exclusively to management, the changing of work schedules and assign- ments, determination of type or kind of work and job du- ties or responsibilities, promotion and transfer of employ- ees, and the layoff or relief of employees for lack of work In conjunction with other proposed articles, this proposal removed all restraints on company discretion in those areas which had existed under the prior agreement Stantis testified that he wanted these changes because of a great deal of unpleasant history, and that he took the enumeration of reserved rights verbatim from the contract between WLUK and the Union He testified that this pro- vision and the seniority proposal were designed to elimi- nate seniority in scheduling as agreed to in 1971, because he concluded after a trial that it had not worked and the Company wanted the best possible engineering talent dur- ing prime viewing time Stantis testified that he wanted freedom to assign job duties and responsibilities and to promote and transfer employees because of grievances dur- ing the term of the original contract over which the Union and the Company differed Article XI Recognition-Parties to Contract The original contract contained a typical recognition clause describing the units for which the Union was recog- nized as bargaining agent In the proposal Stantis deleted this clause in its entirety because, in his view, it did nothing more than repeat the Board's election ruling and didn't seem appropriate or necessary in the contract Article XII-Responsible Union-Company Relationship The article together with Memorandum of Meaning at- tached to the original contract set forth as a general princi- TELEVISION WISCONSIN, INC 745 ple that the parties recognize that their interests were best served by mutual responsibility and respect in their deal- ings The Memorandum spelled out affirmative action to be fostered and negative action to be discouraged on the part of representatives of both parties in order to foster the desired relationship The company proposal deleted both the Article and the Memorandum Stantis testified that this article was nice but unnecessary and that he regarded it as a good deal of fluff without value in a contract In his view an introductory statement in the grievance procedure, which recognized the mutual obligation of the parties to achieve amicable and expeditious solutions to problems arising under the agreement, was all that was required Article XIV-Safety The original contract provided that work refused by an employee as unsafe could be performed by another who deemed it safe pending an investigation and safety deter- mination It also provided that wages would not be with- held from the employee who refused to work The compa- ny proposal retained a general statement that employees would not be required to perform work under unsafe con- ditions, but deleted the provisions described above and added a provision that prevailing safety standards and rules would govern the Company and the employees Article XV-Seniority The original contract provided that seniority would gov- ern on a departmental basis "for layoffs and re-employ- ment, for promotions and demotions and other treatment of the employees " The proposal substituted "Seniority, job classification and competence shall govern on a depart- mental basis for layoffs and re-employment " Stantis testi- fied that the change was made to conform more closely with the WLUK and WMTV contracts and because of the need for talent, proficiency, and competence to retain the Company's license Stantis testified that he dropped the phrase "other treatment of employees" because it had been used to support the claim that seniority applied to schedul- ing and was so broad that it could be used maliciously by anyone so inclined Stantis also testified that this change was directly related to the change in the management rights clause which gave the Company the specific right to do things previously embraced under "other treatment of employees " A provision of the seniority article, which formerly af- firmed that questions of interpretation or application of the seniority article were proper subjects for the grievance and arbitration procedure, was deleted and replaced by a pro- posal that competence was to be subject to grievance but not arbitration if it was the determining factor Stantis tes- tified that the principal reason for this proposal was that it appeared in the WMTV or WLUK contract He testified that he also felt competence was something that the Com- pany was best qualified to judge Substantially all of the remainder of the original senior- ity article was deleted from the proposal A provision deal- ing with resolution of questions of seniority between em- ployees hired on the same date was deleted Stantis testified he dropped it because the station was small and chances of the problem arising were remote A provision dealing with seniority of part-time employees was moved with modification to the hours and overtime provision where it applied only to eligibility for fringe benefits Stan- tis testified that he moved it because it seemed more appro- priate there A provision setting forth the conditions which would be considered as breaking seniority was dropped, according to Stantis, because the definition of seniority made it unnec- essary A portion of this provision dealing with restoration of lost seniority after re-employment, referred to in the contract as bridging of seniority, was also dropped Stantis testified that he dropped this provision because he consid- ered it ambiguous and unclear Provision for continuation of seniority during layoff and leaves of absence was also dropped, according to Stantis, because it was covered by the definition of seniority and the special discharge provision in the discharge, discipline, and resignation article Stantis testified that the latter pro- vided an opportunity to take time off to seek other employ- ment before layoff and severance pay which he considered more important than the deleted provision The old contract defined six departments-engineering, clerical, continuity, production, staff announcers/news, and film camera operators The proposal moved the defini- tion to a separate article and defined three departments These were engineering (technicians and janitors), pro- gramming (production technicians, traffic, and film), and news (announcers and/or reporters, cameramen and/or editors) Stantis testified that he proposed this change be- cause there had been an obvious misunderstanding over the definition of departments in the old contract as evi- denced by the list of stewards which Bednarek submitted in May 1972, and he sought to clarify departmental lines and make it clear where grievances should be presented Stantis testified that in addition there had been changes during the term of the old contract and the old structure was no longer as accurate as it could be The Union had proposed realignment of departments and had made a more concrete proposal to define four departments-engi- neering, production (including continuity and traffic), news, and clerical A provision affirming the Company's right to determine employees' hours was transferred to the hours and over- time article Although Stantis testified that he made no change otherwise in it, in the original contract it provided that the Company could determine hours to be worked by employees "only within the job duties described in this agreement " The hours and overtime proposal asserted the Company's right to determine "work assignments within job duties" as well as hours The original contract had provided that the Company would post work schedules each quarter and that if work assignments were changed, an employee could reselect his assignment of work This was dropped from the proposal, according to Stantis, because it was ambiguous and could lead to misunderstanding and was provocative to anyone who wanted to play control room lawyer 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article XVI-Severance Pay The old contract provided severance pay in the event of layoff or discharge for reasons other than misconduct It provided a week's pay for each year's service up to 5 years, with an additional extra week's pay after 2 years of service The company proposal provided severance pay in the same circumstances with basicially the same formula, but dropped the extra week's pay which had been provided after 2 years of service Stantis described this change as minimal and testified that he proposed it to make the pro- gression of payments continuous The proposal added a provision for payment in lieu of severance pay in the event of termination for illness or disability For an employee with 5 years or less in service the benefits were the same For those with additional service a week was added for each year of service up to 10 years Article XVII-Scheduling of Personnel The original contract contained provisions dealing with practices and restrictions in the assignment of work to pro- duction employees and technicians In the last sentence of this article the parties indicated their intent that it preserve existing practices at the time of its execution The company proposal dropped this article in its entirety leaving the mat- ters it covered subject to management discretion Stantis testified that it was a monument to poor writing, that he didn't understand much of it because it was vague and unclear, and that it either stated the obvious or was confus- ing and inconsistent with practice He testified that he con- sidered the whole article unnecessary and dropped it Article XVIII-Strike Responsibility The proposal in substance carried over a provision of the old contract banning strikes, boycotts, picketing, and slow- downs during the term of the agreement The remainder of the original article substituted provi- sions taken largely from the WMTV contract, setting forth the obligations and liability of the Union and the employ- ees in the event of a violation of the ban on work stoppag- es The original agreement had provided that discipline im- posed on employees under the article would be subject to the grievance and arbitration procedures "only as to the question of whether or not such employee participated in such strike activity " The company proposal gave the Com- pany the absolute right to discipline employees at its dis- cretion for violating the work stoppage ban with the ques- tion of whether or not an employee violated the ban subject to grievance but not arbitration In this respect the proposal differed from the WMTV contract which made that question subject to arbitration as well Stantis testified that these changes were taken from the WMTV contract which he found more desirable than the old contract in this respect Stantis testified that he dropped arbitration from it because it was incredible to him to provide it while a per- son was interrupting the station's business and prohibiting it from continuing A further reason for dropping it, he testified, was the practical fact that arbitration might take a great deal of time Stantis testified that since the Union had signed a similar contract with WMTV he could not conceive of any reason they would object to his proposal Article XIX-Travel Allowance The old contract provided minimum round trip and one way car allowances for employee use of their cars It also provided that employees could not be required to use their own cars without their consent The proposal dropped both of these features while maintaining the 10 cent per mile reimbursement rate which had been provided in the origi- nal contract Stantis attributed the changes to the growth of the news department and its increased activity resulting in more trips The minimums resulted in unduly large pay- ments, according to Stantis, and reconsideration was need- ed because of economic factors Stantis also testified that it was company policy not to hire news employees unless they had cars they were willing to use, and that it was impractical to permit employees to refuse to use cars Stan- tis testified that there had been no difficulty with it during the contract term and no grievances filed over it The Union had sought an increase in the mileage allowance from 10 cents to 15 cents a mile and an increase in the minimum allowances Article XX-Union Representatives and Union Activity The old contract had provided for the designation of two employees as stewards for purposes of investigation com- plaints The proposal provided for designation of one em- ployee as chief steward Stantis testified that this change was made to bring the contract into conformity with ex- isting practice Stantis testified that by mistake his proposal failed to include designation of one steward for each de- partment as provided in the August 1971 memorandum agreement The old contract had provided that there would be no loss of pay to stewards for time spent in bargaining or processing grievances The proposal deleted this provision Stantis testified that he dropped it because grievances had become absurd and he saw no reason why the Company should pay someone to create problems for it Stantis at- tacked grievances under the old contract as not for the betterment of employees but an attempt to find ways that the Company had violated the contract, and described grievances as ego trips in which stewards consistently ig- nored proper procedure He testified that his experiences made him negative concerning the payment of stewards for grievances Article XXI-Union Security The company proposal replaced the entire union-securi- ty provision of the old contract with a shortened provision which incorporated the understanding reached in negotia- tions on September 6 In addition to shortening the grace period provided for joining the Union from 60 to 30 days, the proposal eliminated provisions in the original contract which made failure to pay assessments, fines, and other financial obligations, working without authorization during approved strikes, and support of decertification efforts TELEVISION WISCONSIN, INC causes of loss of membership in good standing which could result in termination of employment The proposal also dropped a provision of the original contract which required that the Union furnish the Company with notarized lists of members in good standing The proposal added a provision for checkoff of union dues which included a service fee, to be paid the Company, of 10 percent of all dues collected, as the Company had previously proposed Article XXII-Vacations The original contract provided that engineers became el- igible for 1 week of annual vacation after 6 months service All employees became eligible for 2 weeks of annual vaca- tion after 1 year of service, 3 weeks after 3 years of service, and 4 weeks after 10 years of service The company pro- posal provided eligibility for all employees for I week of vacation after 6 months of service, 2 weeks after 18 months of service, and 3 weeks after 3 years of service It provided no additional vacation time for longer service, but it pro- vided additional cash payments of $100, $200, and $400 after 10 years, 15 years, and 25 years of service, respective- ly Stantis testified that he made this proposal to deal with the realities because he observed that long vacations were often spent on do-it-yourself projects at home because of lack of funds He testified that he eliminated the special treatment of engineers because he considered it discrimina- tory The Union had proposed addition of a 5th week of vacation after 15 years The proposal also eliminated a provision of the original contract that selection of vacations would be made on the basis of seniority Stantis testified that this omission was inadvertent and that he had no objection to the omitted provision Article XIII-Wages The Company proposed wage increases to be effective October 1, 1972, 1973, and 1974 For each classification longevity increases were provided, as in the prior contract, with more steps added in most instances For announcers, the proposal changed the method of pay from that provid- ed in the old contract, eliminating talent fees and providing a higher flat rate The proposal retained the right of an- nouncers to negotiate individually for payment above the contract rates In one category, production technicians, the proposal provided a wage decrease rather than an increase for the first year The proposal omitted any provision for wages for clerical, receptionist, and continuity employees Stantis testified that the later omission and the wages for production technicians were both the result of inadvertent errors in preparation of the proposal In the case of the production technicians, an intended percentage increase was subtracted instead of being added The Union had proposed a basic wage increase, provision for cost-of-living increases, and a longevity formula It had also proposed a review of performance, talent, and job differentials It had also proposed extra pay for traffic and continuity employ- ees who had licenses relating to their work, and had pro- posed at least partial elimination of talent fees 747 The General Counsel and the Union contend that the September 15 proposal was massively regressive, was made with knowledge that it would be unacceptable to the Union, and was prepared and submitted in bad faith The Union contends further that the timing and submission of the proposal, the manner of its preparation, and its con- tents show that it was the product of intense hostility to the Union and that the Company was out to break the Union The above recital of the changes in the company propos- al on its face reveals its regressive nature Most of the rela- tively few improvements provided were more than offset by regressive changes in the same article Thus, the provi- sion for special discharge, which was intended to cover force adjustments or layoff, provided no recall rights for specially discharged employees, and with the changes pro- posed in the seniority article gave employees less protec- tion than in the past The changes in the grievance and arbitration article met the desires of both parties for simpli- fied procedures, but came at the cost of deletion of the status quo provision The addition of 1-1/2 holidays came with the deletion of the 32-hour provision, which Stantis valued at 96 hours of pay a year or far more than the value of the added 1-1/2 holidays Provision for premium rates for holiday call-in and overtime work and for call-in pay on a regular day off came at the price of loss of rights not to work overtime on holidays, to receive minimum call-in pay, and to be given advance notice of overtime The only gains not accompanied directly by losses were in union security, where by agreement before September 15 unlaw- ful conditions were deleted and the grace period was short- ened, and in wages, where the increase provided was below the maximum then permitted by law and the proposal, through claimed error, omitted provision for some employ- ees and proposed decreases for others In the case of most of the changes, benefits were reduced without any compen- sating change Benefits such as severance pay, vacations, and sick leave were reduced, and contract protections were replaced by the broad grants of management discretion, effectively eliminating seniority in transfer, promotion, and selection of shifts and removing contract protections deal- ing with the assigment of employees and scheduling of per- sonnel By any test based on its impact on employee bene- fits and rights, the Company's September 15 proposal was massively regressive The record leaves very little room for doubt that this proposal was made with knowledge that it would be unac- ceptable to the Union In this connection, Harvey's testi- mony as to his conversation with Stantis before the propos- al was drafted and Stantis' testimony that he did not foresee that there would be a problem with the proposal is not credible Harvey knew the members of the union nego- tiating team from long association and he knew at first- hand the relationship between the parties Even an insensi- tive person inexperienced in labor relations would know that a company proposal based on the premise that the existing contract was an "abomination" would create waves In support of his testimony, Stantis relied on a statement by Orr early in negotiations that he agreed with his criticisms of the old contract But Orr also said that the Union wanted no retrogression, and Stantis said he agreed with that in principle but that there were problems and the 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company desired changes Quite clearly, when Orr agreed with criticisms of the old contract, he was not agreeing to massive changes in substance that had never been dis- cussed Stantis did not merely reduce the ambiguities and volume of the old contract and reorganize its provisions as he testified his goal was in rewriting the contract Stantis literally removed benefit after benefit from the contract in his proposal and added little likely to appeal to the Union in their place Stantis' testimony that he did not regard the proposal as regressive may be technically true in that from the Company's viewpoint the proposal was more advanta- geous to the Company than the old contract But in the sense that the Union used the term retrogression in the negotiations Stantis had to know that it would be regarded by the union negotiators as retrogressive in almost every area in which it made changes Indeed, that Stantis knew and appreciated the adverse impact that his proposal would cause before it was made appears clearly in a letter he wrote to his communications counsel on August 31 while the proposal was being drafted He wrote You commented in your letter of August 28th that the Union probably sees our attempts to establish nor- mal relations between labor and management as sim- ply being nasty After more than 18 years of expen- ence with union matters, I've learned that being "nasty" for its own sake only produces even more "pasties " What we are attempting to do is to reverse many basic ideas and attitudes firmly entrenched over the past five years of operation, during which time little or no leadership was provided Individuals set their own standards, went their own independent ways, and with the advent of a union contract learned to use this de- vice as a means of further coercing supervisors into relinquishing what little authority they then possessed The results A company whose employees set the rules Strengthened by a labor agreement most favor- able to their views, they sought to interpret its contents to an even more liberal meaning supportive of their cause And their cause9 One, to get even for the frequent verbal browbeat- ings and arbitrary management decisions imposed on them Two, to retain the petty authority and distorted sense of independence they had slowly but surely ac- quired Third, to exercise their "rights" under the con- tract which they neither understood nor had experi- enced before Their ignorance of labor relations is appalling Their actions are based on some old roman- tic movie and their demands are based on conditions and circumstances totally irrelevant to the realities of broadcasting These, of course, are not untypical reactions of a working force Bad enough, true, but when com- pounded by an attitude of fear and ignorance on the part of supervisors, the situation is untypical and ex- tremely difficult Incredible as it may sound, not one of the department heads had, as of a year ago, any working knowledge of the contents of the union con- tract When new ideas were introduced, it was not un- common to hear from one of them, " well, we better check with the union first " For reasons still uncertain, department heads feared a union grievance more than the loss of their own jobst Now, a little more than a year these sad and fre- quent encounters have come and gone During this time we have exchanged many blows So far, manage- ment has fared well It's a slower process than I would hope for, but we are making progress As you pointed out, this situation will not simply "go away " With a great deal of effort it can, however, be made tenable Part of that effort has been in the form of rewriting the old contract in its entirety We will present it to them at an appropriate time during our negotiations When the dust settles from this move, we hope to have realized some additional move- ment toward a more "normal" relationship between labor and management Stantis knew that the employees wanted no retrogression and that he had told them he agreed in principle Stantis knew that the initial contract was the result of lengthy ne- gotiations He knew that the employees had sought to en- force it and that they viewed it as a protection against browbeatings and arbitrary management decisions He knew that his proposal would raise more than a little dust and would be regarded as a drastic blow Stantis' own words discredit his testimony that he could foresee no problem with the proposal There is also substantial reason to discredit much of Stantis' testimony as to the motivation for the company proposal Initially Stantis testified that his objectives were to provide a concrete base from which a more expeditious negotiation could proceed, to reduce the number of ambiguities in the old contract, to reduce the volume of the contract, and to organize it in a manner that would be clear Only later after he was recalled did he mention the desire for changes because of union grievances Stantis testified that a more concrete base was needed for negotiations because the Union had provided nothing but verbalization and it was impossible to tell what the union demands were He also testified that the best contri- bution the Company might make toward moving the nego- tiations toward a conclusion would be to provide an orga- nized written proposal that would reflect "the Company's posture as it related to the things that it had verbalized and to include in that, subsequent to its proposal, those things which the Union had proposed, but it was presented as a foundation, something other than words floating around the room from which to work " It is difficult to accept this testimony Many of the union proposals were direct and to the point No complaint was voiced that they were verbal, and indeed Harvey conceded that at points at which he failed to understand oral union proposals in negotiations he did not ask for clarification Nor was the problem that alternative verbalizations were causing confusion, for with few exceptions the Company had given no indication of its thinking with respect to the areas covered by the union proposal or those which it in- tended to independently raise The company proposal, in short, cannot be rationalized TELEVISION WISCONSIN, INC as an effort made necessary to fill a void created by short- comings in the Union's negotiating procedures or tech- nique The company proposal not only failed to provide a base for more expeditious negotiation of the Union's pro- posals, but it obliterated the base that existed in the old contract by putting the negotiations in the context of a strange document, many of the provisions of which had no established meaning to the parties The changes, deletions, and almost uniform failures to reflect or incorporate union proposals, made over a period of 6 weeks, could hardly have been intended to provide a basis for more expeditious negotiations The claim that the proposal was designed to eliminate ambiguities also is not convincing This reason was given by Stantis for elimination of the provision for a 72 hour notice of overtime, the 32-hour provision relating to holi- day pay, bridging of seniority, posting of work schedules, scheduling of personnel, and the provision that employees could not be required to use cars 0 In none of these cases did Stantis seek to eliminate the ambiguity by clarifying the ambiguity and spelling out more clearly the rights of the parties Rather the proposal removed the ambiguity by removing the provision entirely Assuming that there was doubt as to when the 72-hour notice applied, the proposal did not clarify its application but eliminated the require- ment completely Granting that the 32-hour provision was subject to more than one interpretation, the proposal did not restate more clearly what the Company thought it had previously agreed to, but eliminated the provision entirely The same was true for each of the allegedly ambiguous provisions Clearly it was not impossible for Stantis to get help in determining the original intent and clarifying the ambiguities, for both Harvey and Brown had participated in the first negotiations and surely knew what the Compa- ny had intended in each of these clauses Furthermore, if one looks at other changes proposed by Stantis, it appears that he introduced new ambiguities through his proposal where it suited other objectives Thus, the words "whenever practicable" were introduced in pro- visions dealing with time off between shifts and posting of work schedules giving rise to the very kind of ambiguity that Stantis testified that he was bent on eliminating Drop- ping of the provision that call back was at employee's op- tion, deletion of the provision for the method of computing call back pay, the definition of part-time employees, and elimination of the enumeration of conditions under which continuous service would be considered as broken or con- tinuing all introduced ambiguities where clearer definition had previously existed The substituted enumeration of standards for discipline substituted one set of undefined terms for another From the changes made in the proposal as a whole it is clear that the elimination of ambiguities is an after-the-fact rationalization rather than a reason for the changes made The other two objectives initially stated by Stantis, re- 20 Stantis mentioned ambiguity in this clause as a reason for change when cross-examined during his first appearance as a witness He later gave dif- ferent reasons when he went through the whole agreement In fact it is clear that the reason for this change had nothing to do with ambiguity, and Stantis had used that reason when he could think of no other at the time 749 duction of the volume of the contract and reorganization of the contract, would at most explain attempts to rewrite existing provisions and rearrange them Neither of these objectives required nor explained the substantial changes in substance and removal of benefits in the company pro- posal In sum, of the objectives initially stated by Stantis in his testimony, none explains the incorporation of massive changes in contract benefits and protections Quite clearly those changes were more than the accidental byproduct of the objectives stated by Stantis There is more substance to the reasons given by Stantis in his later testimony for the changes proposed by the Company Thus Stantis had indicated early to Orr that the Company had had many problems with the contract dur- ing its term, had referred to the number of grievances that had been filed, and had indicated some desire to make changes without specifying them Unquestionably, whatev- er the merits, during the term of the agreement there had been a number of disagreements over the meaning and ap- plication of contract terms But there are nonetheless substantial reasons to reject Stantis' later testimony as to the reasons for the company proposal, apart from Stantis' failure to state them when called initially, and the repetition of some of the reasons already found wanting Although Stantis claimed that many of the proposals were prompted by dissatisfaction with the original contract and by grievances filed under it, the Company itself took no initiative to seek modification or termination of the ini- tial agreement and as late as July 5 indicated in a letter to Mrs Murphy that the Union's reopening of the agreement required mounting a "plan of attack " As late as September 7, when the drafting of the company proposal had been underway for from 2 to 3 weeks and a week after Stantis sent the letter to his communications counsel quoted above, Stantis wrote Mrs Murphy further We too, of course, have certain goals and determina- tions As you well know, reversing certain gains made by a union in previous contracts is a rare feat indeed Nonetheless, we intend to fight very hard (and long if necessary) to achieve some of the following very ambi- tious goals 1 Outright rejection of any "make work" proposals 2 Extend the probationary period from 60 days to 3 months 3 The merger of continuity with clerical into one "traffic" department 4 The reduction of severe holiday penalities 5 The elimination (1) of or reduction of talent fees This letter is almost more striking for what it does not say as for what it does, for in it is no mention of any of the issues which subsequently became the major obstacles in negotiations There is no mention of management rights, seniority in scheduling, parity with WLUK and WMTV, the restructuring of seniority, the elimination of scheduling of work provisions, or the elimination of the status quo provision Indeed, if the goals stated in this letter to Mrs Murphy were Stantis' goals, only two or three serious issues would have appeared likely Quite clearly forecast was a proposal 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to eliminate the 32-hour provision from the holiday provi- sion, which the Union could be expected to resist The seriousness of rejection of "make work" proposals would depend upon the force with which the Union would push for these proposals it had made to date which Stantis viewed as "makework " The merger of clerical and contin- uity presented a legal problem in view of separate certifica- tions but was not the kind of issue which held promise of deadlocking negotiations But otherwise one of Stantis' ob- jectives had already been more than achieved, for the Union had already agreed to extend the probationary pen- od to more than 3 months, and only the day before the Union itself had presented a proposal for the elimination of talent fees The facts that no advance preparations were made for the negotiations and that as late as September 7 Stantis' list of major objectives excluded the major aspects of the pro- posal Stantis was then in the act of drafting, substantially undermine any claim that the most regressive features of the company proposal were motivated by difficulties with the original contract and its application That other motivations lay behind the company propos- al also appears from proposals which bore no relation to grievances but were claimed to reflect other contractual dissatisfactions A number of these proposals related di- rectly to union requests for contract changes made in nego- tiations before presentation of the company proposal The Union proposed a paid lunch hour for production employ- ees similar to that provided engineers, the Company pro- posed elimination of the paid lunch hour for engineers The Union proposed an increase from 58 to 60 hours in the time provided between workweeks, the Company proposed reduction from 58 to 48 hours The Union proposed a re- duction in performance of bargaining unit work by super- visors, the Company proposed a change, which given the number of supervisors at the station, would have left per- formance of bargaining unit work by supervisors unre- stricted The Union proposed a bonus for accumulation of sick leave, the Company proposed a new system which greatly reduced sick leave and replaced lost sick leave with major sick leave for which eligibility was much more nar- rowly defined 21 The Union proposed an increase in mile- age rates for travel reimbursement and in minimum trip payments, the Company proposed deletion of minimum trip payments The Union proposed a 5th week of vacation after 15 years, the Company proposed deletion of the 4th week of vacation after 10 years and substitution of flat cash bonuses after 10, 15, and 25 years of service, which would amount to less than one week's pay for most em- ployees after 10 years and less than that for announcers and technicians even after 15 years Not only did the company proposal in each of these areas respond to a union request for improvement by pro- viding for less than originally provided, but in each case at the time the Union presented its proposal the Company gave no indication that instead of granting the request it might want to provide less than previously proposed The explanation that the Company did not want to agree to 21 Testimony by Stantis, in which he contended that coverage of major sick leave was no narrower than ordinary sick leave is patently incredible anything until it knew the full scope of union proposals hardly explains the failure to indicate which proposals were not only unlikely to be granted but related to existing bene- fits which already troubled the Company Stantis' explana- tions that these proposals reflected personal views of what was better, fairer, or even more advantageous to employ- ees, which he claimed in the case of the vacation proposal, might be persuasive if this had been an initial contract and Stantis' proposals measured up to what had been existing practice But this was not a first contract, and what Stantis uniformly proposed was elimination of benefits provided by past agreement and practice With the exception of travel allowances, where Stantis testified a study showed the minimum exceeded actual expense, there is no showing of any problem that arose under any of these provisions during the contract term These proposals, made in the context of a generally regressive proposal and with no fore- warning to the Union, give rise to the strong inference that they were made for reasons other than those testified by Stantis The most substantial noneconomic changes from the old contract proposed by Stantis were attributed by him to the Union's contracts with WMTV and WLUK These were- seniority, management rights, performance of bargaining unit work by supervisors, discharge, discipline, and resig- nation, and strike responsibility The evidence shows that the first three of these were taken from the WLUK agree- ment and the latter two from WMTV, although in the case of the strike responsibility proposal the right to arbitrate the question of participation in proscribed conduct which appeared in the WMTV contract was dropped by Stantis Although there is no question of the source of these pro- posals, the bona fides of Stantis' assertion that he sought parity with WLUK and WMTV is subject to question The Company made no mention of this objective in negotia- tions before September 15 or in Stantis' September 7 letter to Mrs Murphy Moreover, true parity was not what Stan- tis sought, for the WMTV and WLUK contracts differed from each other in each of the respects in which he relied on them, and where one supplied the source of the compa- ny proposal, the other came close to the provisions of the Company's contract with the Union which it sought to re- place When the WMTV strike responsibility article pro- vided arbitration which Stantis did not want, he rejected it, and no effort was made to achieve parity in any areas which might have been more favorable to the Union These changes moreover not only failed to achieve parity with either WMTV or WLUK but also removed from regu- lation by contract and from future grievances and arbitra- tion a broad range of former contract protections, making them a matter of management discretion Not only would these proposals put an end to seniority in scheduling and protests against assignment of floor duties to film room employees, but they effectively put an end to all forms of seniority except for pay and fringe benefit eligibility and to all employee voice in job assignments and scheduling of personnel The evident purpose of these proposals was not merely to resolve old grievances in the Company's favor but to eliminate all employee participation or voice in the determination of important working conditions Given the lack of initiative by the Company for contract TELEVISION WISCONSIN, INC 751 changes, the affirmative evidence of limited contract objec- tives as late as September 7, a week before the proposal was presented, the haste with which the proposal was drawn, the evidence of Stantis' hostility to the Union, the lack of support for the reasons initially given by Stantis for the proposal, the massive regressiveness of the company proposal as a whole, the utter incredibility of Stantis' testi- mony that he did not anticipate an adverse reaction to the proposal, and the failure of the Company during the 6 weeks of bargaining before September 15 to give any indi- cation of what was coming even when the Union presented related proposals, I conclude that the inference is warrant- ed that the September 15 proposal was drafted and pre- sented not for any of the reasons advanced by Stantis, but for the purpose of provoking the Union and placing a sub- stantial obstacle in the way of negotiating an agreement that might conceivably be acceptable to the Union Of course, the proposal was not unlawful per se, and the conclusion as to the Company's overall intent can no more be based on the proposal alone than on any other piece of evidence considered in isolation Even the most regressive and arbitrary proposal may lose its aura of bad faith if subsequent negotiations demonstrate, as Respondent here contends, that it was only a negotiating proposal and not an inflexible demand But as will be seen, the proposal does not stand alone and conduct which followed as well as that which preceded it gives support with the proposal to the ultimate inference of bad faith 5 The challenge to the umon-security clause Between September 18 and 26 the parties met five times, and apart from the disruption caused by the September 19 grievance, there was outward calm and some progress in these negotiations Orr listed the omissions from the old contract that he observed in the company proposal, raised objections to some company proposals, but then proceeded to discuss less controversial sections of the company pro- posals Orr agreed to sections of various articles although in a number of instances there remained substantial dis- agreement as to other sections of the same articles During this period Orr brought a stamp to negotiations so that provisions which were agreed upon could be stamped and initialed by Orr, and Stantis approved On September 26, the union-security provision which had previously been agreed to orally was stamped and initialed On the next day, the outward calm of the previous few days came to an end At the outset of the September 27 meeting Stantis told Orr that the Union was holding a gun to his head and needed to do some "laundry cleaning " Stantis said that he was referring to delinquencies of members in paying their dues to the Union, and asked On for a list of delinquent members Orr replied that he had been very reluctant to tell Stantis about the situation and that was the reason the Union wanted checkoff Stantis said that it was a loaded gun in the sense that company employees were involved and that he felt at that point that collection of delinquent dues should be handled before the Company entered into a checkoff agreement Orr said he had pushed the local very hard, but that it was irresponsible Orr also said that check- off was not intended to operate to collect back dues Stan- tis said that the point was to clean the house of the Union and that the Umon should be subject to a grievance on its failure to adequately collect dues Orr then asked Taugher how many owed what, and Taugher said he had no knowl- edge of the answer Stantis again asked for a list of the delinquent members to which he was entitled under the expiring contract Orr said that Bailey for example was over a year delinquent and that he was afraid the Company might have to take action in the matter Orr also said that in fact the employees might want to decertify since the Union might no longer represent a majority of the people Stantis said that they were running the Union like a candy store would be run by a 3-year-old He said that the situa- tion was a business, and that they expected to do business with a business and wanted a certified list of delinquencies Orr then agreed to ask the local to provide him with a list and said he would provide it to Stantis very soon Orr said further that all the people were in arrears, the Union want- ed its money, and that many letters had been sent to the people from the local but without any success Stantis said that his experience with the Union over the past year had been unbelievable in terms of its irresponsibility and that he wanted the Union to clean house and act like a busi- ness Orr said if the people did not want to be represented "to hell" with it and the Union would not represent them Orr then suggested that they move on to something else Later, after a caucus, Orr said that Taugher had told him that the members were delinquent because they had been waiting for implementation of the checkoff agreement which should have been effective the previous January Stantis said that that position was academic, that he want- ed a list by the following Monday of the delinquent em- ployees, and that he also wanted to know affirmatively what kind of progress the Union was making to collect the delinquent dues When Orr replied that he would get the list and report within a week, Stantis said that would not be adequate and that he wanted the list by the following Mon- day morning Orr said he would obtain a list of dues delin- quencies as of October 1 and would obtain a progress re- port then also At this point the parties turned to the company proposal and began to review the status of negotiations article by article As to the second article, management rights, Stantis said that unless the Union agreed to the company pr2? osal in toto, there was no use talking about anything else Orr said that there were other contracts without management rights clauses and referred to IBEW contracts Harvey said the Company could say the same with respect to union security but that this was a senseless approach Stantis said that union security and management rights could not be deferred because union security had been signed Stantis then said that the Company should not have given in on 22 Orr testified that Stantis made this statement at a meeting shortly after the company proposal was given to the Union Although Harvey s typed notes do not show this statement, his handwritten notes show "No k's wo p 2 Page 2 of the company proposal was the start of the management rights proposal The `s" pluralizing the "k" (standing for contract ) in Harvey s notes is crossed out I find that Stantis made the statement attributed to him 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union security and that it had been a mistake 23 Stantis then suggested that they start with union security because the Company was not too happy with it now Orr said that he was not in a very secure position after the discussion of dues delinquency that morning, and Harvey stated that union security was moot and without meaning in view of that discussion Thereafter there was some discussion of the value of the stamp that Orr had brought to the negotiations and Orr said he would be glad to stamp isolated paragraphs He then proceeded to stamp and sign some paragraphs includ- mg all but the first two subsections of the Company's man- agement rights proposal 24 At the negotiating meeting on the next day, the Union reported that it could not get a list of those delinquent as of October 1 since checks did not come in until later in the month Stantis asked for a list to be submitted by October 1 of those who were delinquent as of September 1, and the Union agreed During the course of that meeting Orr charged that the Company had deliberately gutted the con- tract in connection with its proposal to delete a clause from the old contract which he asserted had caused no problem On charged that Stantis did not want a contract since he had retrogressed and had taken a great deal out of the present contract At the end of this meeting unlike previous meetings, no further meeting was scheduled, and the parties did not in fact meet again for almost a month Harvey testified that the atmosphere at the last two meetings was not amicable and the subject of further meetings was just not brought up In explanation of his conduct on September 27, Stantis testified that he learned the full bloom of the seriousness of the delinquency of the dues on that day, which created enormous doubt as to whether the Company had done the right thing and made him feel that the Company had been tricked into signing the union-security clause when there might be some doubt that the Union represented all of the employer's people This testimony is not persuasive Stantis conceded that before he signed the union-security clause he knew there was some serious dues delinquency Although he claimed that he did not learn its degree until September 27, in a statement he gave during the investigation of this case, Stantis conceded that he knew before negotiations started that a large number of the employees were delinquent, some by as much as 2-1/2 years 25 Although the expiring contract provided that union membership in good standing was a condition of employment and that the Union should furnish the Company a list of members not in good stand- ing every 60 days, no effort had been made by the Union or the Company to enforce either of these provisions at 23 These findings are primarily based upon Harvey s handwritten notes The typewritten notes compress, omit, and change the sense of what appears in the handwritten notes 24 Those to which Orr did not agree covered change of work schedules and work assignments, the kinds of work to be assigned, promotion, and transfer 25 In a November letter to Mrs Murphy, quoted below Stantis similarly stated that by midsummer it was clear that the Union was having more than a little trouble collecting dues anytime during the life of the contract before September 27 In the discussions of union security in negotiations through September 26 nothing was said about existing dues delinquencies, and the modified clause to which the parties agreed not only removed conditions of good standing unre- lated to payment of dues but also dropped the request that the Union furnish the company lists of members not in good standing every 60 days, the provision which Stantis on September 27 for the first time sought to enforce Stantis had every reason to believe that the dues delin- quencies were serious long before September 27 and had shown no concern up to that date It was not the Union which took the initiative in raising this matter immediately after he agreed to a new union-security clause It was Stan- tis who, using the knowledge he had had all along, raised the issue, used it as an occasion to berate the Union, and branded the agreement he had made a mistake Clearly Stantis had not been tricked, but to the contrary if there was trickery it was by Stantis, who having agreed to a new union-security provision, began to use that agreement as a device to attack the Union The continuation of that attack was not long in forthcoming On October 6, the Company signed a petition which was filed with WERC on October 9 seeking a vote of the em- ployees as to whether they wished to continue to approve an all-union agreement Initially Stantis testified, when called as an adverse wit- ness, that the purpose of the petition was to do away with the all-union shop Later he testified that his reasons for filing the petition were the dues delinquencies and the fact that 60 percent of the membership had changed since the original all-union election 2-1/2 to 3 years earlier Still lat- er, in explanation of the relationship between the company proposal on union security and the filing of the petition, Stantis testified Whether or not they wanted a Union security provi- sion is something the Company wanted to know And, it wanted to know it for a number of reasons And, it wanted to know it then, at that moment, if possible Or, as soon as possible Because, one , was it really and truly the desire of the membership to have such a clause, when they were in such arrears in their dues And in such great number And, number two, in the event that the election should indicate that our suspi- cions were correct, and the membership would vote against an all-Union shop, then, our bargaining tactics and our submissions would change The inclusion of a Union security provision would not be included, obvi- ously The membership had indicated by their vote, they didn't want it From that flows other elements It's quite obvious that if one does not have Union security, one would not have checkoff Which was also included in our proposal in September 15th And, it is my view that each of the elements contained in any proposal or in the end product, is interrelated, inextri- cably, economically, and operationally, every peice ties to another And, the total package, now, is the entity that-your end product The sum of all its little pieces And, to have waited for some subsequent peri- od to make the decision about the election, would TELEVISION WISCONSIN, INC have been grossly unfair, in my view Not only to the membership but to the Company as well In its process of negotiating further In the process of negotiating further As Respondent contends, the filing of the petition at that time was permitted under state law 26 But this testimony of Stantis alone shows that the WERC petition was filed for purposes going beyond the question it was intended to an- swer Stantis intended its result not only to govern whether or not the union-security provision would appear in a new agreement, but indeed the course of future negotiations of all contract provisions which he viewed as inextricably tied together This testimony comes close to an admission that the petition was part of a course of conduct aimed not only at nullifying that clause but at undermining the Union's position as bargaining agent by a direct campaign among the employees 2 On the same day that the WERC petition was prepared, Stantis wrote to all the employees at the station as follows With all the noises coming out from behind the closed doors of the corner office, it's no secret to you that Union negotiations are going on To keep you posted on our progress, we have so far had 14 meetings, discussed 116 (more or less) points of labor relations, submitted a new contract package, and have tentatively agreed to some 10 or 11 separate sections In short, the negotiations are progressing in a most usual manner We would fill you in with more details, but we're sure your negotiating team has kept you informed every step of the way But, we have come across a serious problem which the Union brought to our attention It seems that a lot of you are behind in your dues, many as far back as May, 1970 As you know, the Union contract says that you must be a paid-up member in good standing, and if you're not, the Union contract will force the Company to fire you We think this places both you and the Company in a bad spot Frankly, we would like to see your shiny face around here for a long time to come So, if you're behind in your dues, don't you think it would be a good idea to see to it right away If you have any questions or if you disagree with such a requirement, then please contact your Union representative or the Wisconsin Employment Rela- tions Commission and seek alternative ways to handle the matter As the negotiations go on, we'll give you our reports from time to time On October 9 when the WERC petition was filed, Stantis also filed two grievances with the Union The first grieved the failure of the Union to furnish the Company with a notarized list of delinquent members as the Union had 26 It was also not required at that time Assuming that a new referendum was required at some point, it was not required until after the conclusion of a new agreement 27 The fact that the petition may have been lawful and that the Company's campaign may not have independently violated Sec 8(a)(1) of the Act does not mean that they may not support an inference of bad faith NLRB v General Electric Co 418 F 2d 736, 757 (C A 2, 1969) cert denied 397 U S 965 753 promised and the contract required A separate grievance was filed over the fact that CWA and the Local "through neglect, mismanagement, and/or member refusal" had al- lowed the payment of union dues to fall drastically in ar- rears The Union had in fact given the Company the name of one employee who was on leave as a member not in good standing, and the Company grieved that as a prejudi- cial submission The Company further grieved that CWA and the Local were forcing the Company to discriminate against its own employees by placing it in the possible posi- tion of being forced to discharge all union members not in good standing On October 17 a third grievance was filed Two days earlier at a meeting of the bargaining unit employees, the Local had announced that it was waiving all dues accrued before October 1971, so that at most an employee would owe 1 year's back dues Stantis' third grievance protested the waiver as a flagrant breach of the contract requirement that union members "shall" pay dues Stantis was questioned at length about his reasons for sending the letter and filing the grievances Stantis denied that he was seeking to frighten employees into paying back dues or to drive a wedge between the employees and the Union He also testified that he did not feel that they would interfere with proper relations between the Compa- ny and the Union during negotiations and might even help to get the parties together Stantis testified that the letter and the grievances were motivated by a desire to enforce the contract With respect to the letter stantis also testified It was no secret to the company that a great many questions were being asked of that membership A great deal of confusion there that existed This had been brought to my personal attention by department heads who were receiving constant queries from the members because they were not being informed by the union as to what the progress of these negotiations were And part of the progress to that date included the question of back dues Stantis went on testifying that Orr had agreed that the Union had been irresponsible and that the list the Compa- ny was seeking was within the framework of the contract Stantis continued And we brought it to a head, if you will, through the submission of these grievances because the Union had conducted itself in ways which made us very fearful that it had filed a fraudulent, unfair labor practice charge against us With respect to the third grievance, Stantis initially testi- fied that he could not recall the motive for the third griev- ance, then he testified that he remembered that it was also filed on the basis of a violation of the union-security clause which said that there would be dues and they would be collected Later, when Stantis was recalled as a witness, he added as a further reason that it seemed to him that the waiver of dues was an attempt to buy votes in the all-union referendum and that he grieved it for that additional rea- son It is simply not credible that this course of conduct came from a sudden commitment to see that the contract was 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforced Stantis had known of dues delinquencies for over a year and had never even asked for a list of delinquent employees before He had never suggested to the Union that the Company had the slightest interest in seeing to .t that the union-security provision be enforced Until negoti- ations began, Stantis showed no concern for enforcement of the union-security provision or teaching the Union to be responsible in collecting its dues Further revealing is the evidence as to the October 6 letter Having said in the letter that he was sure the Union was keeping the members informed, Stantis testified that he believed just the opposite and that he wanted the mem- bers to know what he believed the Union was not telling them about dues delinquencies Despite the fact that it was Stantis who raised the matter, in the letter Stantis told em- ployees that the Union brought the problem to his atten- tion and that the "Union contract" would force the Com- pany to fire them if not paid up As Stantis testified, he imagined that all employees were very concerned about their delinquency This letter was not intended to tell mem- bers what was going on in negotiations at all Despite Stan- tis' denial, the inference is strong that the letter and the grievances which followed were intended to generate re- sentment against the Union That conclusion is reenforced by Stantis' further testimony that the grievances were sub- mitted because of fear that the Union had filed a fraudu- lent unfair labor practice charge The reference was to Bednarek's charge, discussed above, which had been dis- missed with the cooperation of the Union after pressure The charge was gone but evidently retaliation for it had not ended That the Company sought more than a mere determina- tion of employee desires as to union security is further demonstrated by the campaign conducted by the Company as the November 8 date of the election drew near On November 1, Stantis sent each employee a letter pur- porting to answer a large number of questions which had been raised about the election Some 24 questions and an- swers appeared Although purportedly dealing with ques- tions or assertions arising out of the all-union referendum, the entire document bore the appearance of literature pre- pared for a representation election with occasional changes It was the vehicle for a general argument against the effectiveness of the Union as bargaining agent of the employees and a warning of the consequence of a strike Despite two final questions and answers indicating that if the all-union agreement was voted out, the Union would continue to represent the employees, the overall tenor of the letter was that the employees had no need for a union because the Union could only get what the Company was willing to give voluntarily and a strike would place their jobs in jeopardy, as shown in the following 2 The union says it will get more benefits for us if it wins the election a There are no automatic increases in wages or any benefits simply because a union wins an election b All union proposals and demands are subject to negotiation with the company In fact, present bene- fits could also be negotiable c The union cannot guarantee any increase in wages or benefits 3 The company will have to sign a union contract if the union wins a The company would have a duty to bargain-but it is not required to sign any contract that it believes is unreasonable b The company can say no to any union proposal that it considers unsound c The union cannot guarantee more benefits than the company may give voluntarily 4 The union says it will make sure that we continue to receive our present benefits a Neither the union nor a union contract can guaran- tee jobs or benefits b Jobs and benefits are provided by good business conditions, they are protected only as long as the company continues to operate profitably * 12 If there were a strike, would the company continue to operate? a The company would have the right to operate dur- ing a strike 13 If there were a strike, could we continue to work? a Yes We would hope that you would continue to work 14 If all the employees went out on strike, how would the company operate? a The company could operate with supervisors, man- agers, and nonstriking personnel b The company could also hire new employees as permanent replacements for the strikers 15 Wouldn't the union try to stop persons from com- ing to work 7 a We don't know what the union would do b It might try to prevent employees from working c It might fine its members for crossing its picket line d If the union used threats, or violence, or physical force to stop employees from working, it would be acting unlawfully e The company would take appropriate legal action to stop such activity and to protect its employees 16 Would employees be paid while they were on strike a No The company would not have to pay any em- ployee who did not work because of the strike b The union might provide what it calls strike bene- fits after a few weeks, but this amounts to very little c Strikers could not collect unemployment compen- sation d Union officials, of course, get their pay, strike or no strike 17 Would striking employees be fired? a Striking employees cannot be fired, but they can be replaced b The company has the right to operate during a strike, and it has the right to hire new employees to replace permanently any employee on strike c After the strike was over, permanently replaced TELEVISION WISCONSIN, INC 755 strikers would not have to be taken back until job openings occurred d This could take a long time A November 2 letter stressed a single theme-that mon- ey spent for union dues could be spent for many other things and asked employees to think of what that money spent for dues would give them for their investment Like the previous letter, it stressed that it was the Company and not the Union which provided them jobs, but also ended by reminding employees that the Union would be required to continue to represent them even if they voted against the all-union agreement On November 3, Stantis addressed a final memo to the employees MEMO TO All employees FROM George Stantis DATE November 3, 1972 SUBJECT Decertification There was one point that I completely forgot to stress in my talk this morning, and that's the question of "decertification" A great deal of emotionalism has surrounded this question It's been said, " the company wants to get rid of the union " "This is the first step toward decertification " That's a bunch of malarky' In the first place, it's impossible for the company to decertify a union or to even initiate such an action Only mem- bers of the unit can do that What we're talking about concerns an "all-union" contract and nothing else Whether or not you want to be forced into membership of the union is the only question With an "all union" contract, you'll be buy- ing another "boss," someone else who will have the power to decide your employment fate Read your current contract (page 43) and ask yourself, "Who does it protect9" Remember, with or without an "all-union" agree- ment, the union must still represent you VOTE NO Despite Stantis' denial and his assertion that the all- union agreement was the only issue, it is not only impossi- ble to accept Stantis' disclaimer in the overall context of the campaign, but one must be struck by the gratuitious message conveyed in the last sentence of the third para- graph which was underscored in the original Stantis gave one and only one reason why it was a bunch of "malarky" that the Company wanted to decertify the Union, which was that the Company could not initiate such action and only the employees could It takes little imagination to read the suggestion between the lines that employees might take the initiative forbidden to the Company In a letter to Mrs Murphy, written concurrently on No- vember 2, Stantis described the evolution of the WERC petition and the campaign [t]he subject of check-off was brought up by the union again sometime in July In the discussions that fol- lowed on that subject, the same complaint the union had casually dropped in January was again brought up, but this time in more detail Back in January, the union " was having a little trouble collecting dues from a few of its people " By mid-summer it began to be clear that they were having considerably more than "a little trouble with dues " We pressed harder Then the facts began to unfold Although guarded in their remarks, it became clear that at least seventy percent of their membership had not paid one red cent in dues for the past two and one-half yearn Naturally, we seized on this point Circumstances, en- vironment, and morale had changed It was possible that the views of the membership toward the union had changed, too We set out to find out On October 13, 1972, we filed with WERC for an elec- tion The purpose of the vote was to determine wheth- er or not the union could continue as an "all-union shop " (This is not to be confused with "De-certifica- tion " For this, the members must seek such an action) The union was shocked It went so far as to circulate an illegal petition coercing members as they went along Then, rather than accepting the election as a matter of course, all the while maintaining the solid support of their group, the union chose a course which showed their concern and obvious lack of confidence They fought us in a hearing before the WERC The purpose of the hearing was to determine whether or not such an election should take place The hearing was held on Friday, October 27, 1972 The union lost The election is set for November 8, 1972 Needed to win is a simple majority We need seven- teen votes to succeed Naturally, we are making every campaign effort to sway these votes to our side Whatever the results Wednesday night, we will have accomplished much From that letter and all of the above it is clear that the purpose of the referendum was not simply that for which it was provided, to determine whether the employees contin- ued to authorize an all-union agreement If that were its sole purpose, then contrary to the last line of Stantis' letter an affirmative vote in the referendum would have accom- plished nothing Looking at the entire campaign from the October 6 letter through the petition, the grievances, and the campaign literature, the inference is strong that all were of a piece designed to utilize employee dues delinquencies to turn them against the Union and to weaken the Union's bargaining position whatever the outcome of the election Indeed, were the Company's motivation only to avoid sad- dling employees with an unwanted union-shop provision, the simple and direct approach would have been to raise its concern before agreeing to the union-shop provision and either withhold agreement or make it clear that agreement was contingent upon a referendum One must view the easy acquiescence of the Company to the revised union- security provision without mention of dues delinquency in contrast to Stantis' angry attack on the Union for permit- ting the delinquencies and all his following actions which began the day after the provision was signed off Notwith- 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing Stantis' denial that he had decided to file the WERC petition before he signed the union-security clause, it is impossible to escape the conclusion that the Company's agreement to the union-security provision was not in good faith but was granted to provide the vehicle for the campaign to undermine the Union's bargaining posi- tion which followed I find Respondent's course of conduct with respect to union security compelling evidence of its bad faith 6 The warning to the stewards for circulating the employee petition Alleged both as an independent violation of Section 8(a)(l) of the Act and as further evidence of Respondent's bad faith in the all-union referendum campaign is the warning arising out of the circulation of the counterpeti- tion among employees at the station Sometime after Octo- ber 13, when WERC issued a notice of hearing on the Company's petition, the employees circulated a petition at the station seeking signatures The petition stated that the employees objected to the holding of an election by WERC and wished to affirm their agreement with the present pro- vision of the contract that they be required to be members of the local and that they remain members in good stand- ing as a condition of their employment The petition was circulated and signed at least in part during working time One of those solicited to sign the petition was Sports Director James Miller Prozzo brought it to his desk, ac- companied by Taugher and Bailey, at about 9 40 p m while Miller was in the midst of preparations for his ap- pearance on the 10 p in news program From time to time while they spoke with Miller, Kirschnik entered the room where he had business but he said nothing about the peti- tion to Miller Miller refused to sign the petition, and a heated discussion, which lasted until shortly before 10 p in, was initiated and continued by the others while Mil- ler was trying to prepare for his segment, which began at 10 2028 Within a day or two thereafter, Stantis called Kirschnik, Bailey, Taugher and Prozzo into his office individually and read them a warning According to Bailey and Kirschnik this was shortly after circulation of the petition started According to Stantis, he had known about the petition for several days before he called them in Kirschnik and Bailey testified that Stantis told them he was reading to them from a letter that they would receive in the mail, that the letter stated that they had broken state and federal law by circulating a petition on company time and premises, and that unless they stopped, severe discipli- nary action would be taken 29 Neither received the letter to which Stantis referred 28 Miller testified as to this incident and was essentially corroborated by Newscaster Lindgren, although not as to the duration of the confrontation the role of Bailey, or some other details Taugher, Bailey, and Kirschmk were not questioned about this incident There is some indication of exag- geration in Miller's testimony as a whole, and I have credited him as to this encounter to the extent corroborated by Lindgren, who generally impressed me as a more accurate witness 29 Kirschnik's version was more general than Bailey s However Kir- schmk also testified that once Stantis told him he would receive the letter he did not pay too much attention to its content Stantis testified that the warning was given only after Brown told him that Miller and Lindgren were upset over the manner of solicitation being used and after Stantis spoke to Miller and Lindgren individually According to Stantis, each related to him the events of the previous eve- ning wherein they had been confronted by the union stew- ards with a petition only moments before air time when they were making last minute preparations for the news- cast According to Stantis, Miller and Lindgren told him that the four stewards took them on one at a time with Miller first and Lindgren second and engaged in a loud and heated argument He testified that both were very an- gry because it interfered with their preparation to go on the air Stantis testified that within a day he called the union stewards into his office individually and spoke to each of them from notes he had made after consultation with Har- vey Although Stantis testified more as to what he intended to say than what he in fact said, the substance of his testi- mony was that the warning was directed at the coercive tactics used by the stewards in ganging up on Miller and Lindgren, which he believed violated the contract and state and federal law, and that it was not directed at noncoercive circulation of the petition There can be little doubt that Stantis substantially over- stated the circumstances which led up to his warnings to the stewards Contrary to Stantis, Miller testified that he spoke only to Brown about the newsroom incident, and Lindgren testified that he spoke to no one in management about it Contrary to Stantis, neither of them testified at the hearing that Lindgren was approached at the same time and in similar fashion to Miller, and Lindgren testified that he was not solicited until several days later giving no indi- cation that it was under similar circumstances Miller was still employed by the Company at the time he testified, clearly hostile to the Union, and if anything inclined to exaggerate on the Company's behalf There is no reason to believe that either Miller or Lindgren intentionally omitted reference to what Stantis described or was likely to have forgotten it In these circumstances, the vividness of the detail in Stantis' testimony, even down to the choice of words used by Miller and Lindgren in expressing their an- ger to him, must be attributed to invention His testimony cannot be credited Kirschnik's testimony is weakened by his concession that he did not pay close attention to what Stantis said after Stantis told him he would receive a letter to the same effect However, Bailey's testimony that Stantis' warning was directed at all circulation of the petition on company time and property has some corroboration in Stantis' sub- sequent letters to Mrs Murphy on November 2, quoted above, in which he indicated belief that the petition was "illegal", separate from his view that the Union coerced employees as it circulated the petition I have concluded that Bailey is to be credited as to the warning, that it occurred within a day or two after circula- tion of the petition began, and that Stantis told the stew- ards that circulation of the petition on company time and property violated state and federal law and would lead to discipline if not stopped TELEVISION WISCONSIN, INC 757 Furthermore, in the absence of any credible evidence as to when and from whom Stantis learned of the newsroom solicitation of Miller,30 and in the absence of any credible evidence that Stantis sought to learn what had happened directly from the participants on either side, I conclude that it was not the tactics used by the stewards in soliciting Miller which prompted Stantis to warn the stewards It is well settled that an employer may adopt a no-solici- tation rule for nondiscriminatory reasons prohibiting all solicitations by employees on company property when they or those they are soliciting are working 31 However, a rule which is presumptively lawful on its face, but shown to have been adopted for the purpose of hindering or defeat- ing union activity, is discriminatory and violates Section 8(a)(1) of the Act 32 Here, there is no evidence of any no-solicitation rule in existence before Stantis' warning to the union stewards The warning was given only after circulation of the petition opposing the WERC election, and no prohibition of solici- tation during working time was communicated to employ- ees other than the stewards The warning did not extend to all solicitations but only to circulation of the petition on company time and property Although Stantis claimed that the warning was tied to prior disruptive activity of the stewards in the newsroom, I have discredited that testimo- ny and find that Stantis warned against all circulation of the petition which he characterized as violation of state and federal law I conclude that the warning was given not to maintain efficiency or discipline but in order to inhibit the collection of signatures of employees opposing the WERC election which the Company sought, as found above, for the purpose of undermining the Union 33 7 The replacement of Orr by Button and the negotiation of the wage agreement Button replaced Orr as the Union's chief negotiator on October 23 and remained in negotiations until December 18 when the wage agreement was reached During the first half of that period until November 22 little progress was made During the last half of the period negotiations fo- cused exclusively on wages and an agreement was reached The Company contends that the conduct of Button dur- ing this period shows that it was the Union rather than the Company that was refusing to bargain in good faith The Company relies on statements made by Button in negotia- tions indicating refusal to negotiate with respect to compa- ny proposals, threats to strike without notice of termina- 30 Brown, the likely source, was not asked about this 31 Peyton Packing Company, Inc 49 NLRB 828, enfd 142 F 2d 1009 (C A 5, 1944), Essex International Inc 211 NLRB 749 (1974) 32 The Wm H Block Company 150 NLRB 341 (1964), Milford Fabricat- inY Company Inc, 193 NLRB 1012 (1971) '33 Heritage House of Connecticut, Inc d/b/a Alliance Medical Inn-New Haven, 192 NLRB 1081 (1971) I note in this connection that in order to sustain its petition before the WERC the Company was required to show reasonable grounds to believe that there was a change in employee attitude since the prior referendum among its employees Before the WERC hearing the Company interviewed employees seeking to develop evidence to that effect and at the hearing it started to present it before the Union consented to the referendum The employee petition opposing an election which led to Stantis' warning was designed to show no change in employee attitude since the prior election tion of the agreement, and reneging by Button on agreements reached The Union and/or the General Coun- sel contend to the contrary that the Company gave addi- tional signs of bad faith by its indifference to Button's re- ports of upset among the employees, attacks on union negotiators, cancellation of the November 10 meeting, op- position to the entry of the mediator into negotiations, re- neging on agreements and proposals, and its refusal to state what it really wanted out of the negotiations They also contend that the Company's willingness to enter into the wage agreement cannot be construed as an indication of its good faith in bargaining There is no question that with his entry into negotiations Button sought to demonstrate to the employees that he was responsive to their dissatisfaction and that he would not acquiesce to negotiation on the basis of the company pro- posal as Orr had At the October 23 meeting Button said he would not accept any more company proposals that had not been signed and suggested that he might back off from agreements already reached On October 30 Button took the position that items in the old contract, which were omitted from the company proposal, still stood and need not be negotiated further, and at Stantis' request to put in writing what he had dust said, wrote "Take it and cram it" on the face of the Company's copy of its proposal Later after Kurtz had entered negotiations on November 16, when the Company started to go through its proposal and compare it to the old contract, Button became angry, took the position that he was not going to bargain any longer from the company proposal, and started to read a news- paper 34 Yet, despite these statements in negotiations, Button at the same time gave other contrary and constructive signals to the Company Button indicated that upset and dissatis- faction of the bargaining unit employees limited the num- ber of changes to the existing contract that he could agree to Button indicated willingness to hear the Company's proposals if the parties negotiated from the existing con- tract as a base and also indicated that he could negotiate several changes Button also pressed the Company to know what it had to have in an agreement Despite Button's per- emptory tone, it is clear that the Union sought an agree- ment and that it was willing to consider changes in the existing agreement albeit not the massive changes in the Company's proposal There is no question that Button resorted to strike threats as a tool to aid negotiations during the period that he was in negotiations, including the period after he signed an extension agreement requiring a 20 day notice to termi- nate the contract In late December he made his threats specific as to date and professed indifference to the notice requirements of that extension agreement Had the Union struck, the strike might not have been protected and the employees would have been in jeopardy of losing their jobs But even assuming the strike threat itself was unpro- tected activity, it was not a refusal to bargain 35 To the 34 Button testified that he did not recall the statements attributed to him at this time and denied reading the paper I have credited Harvey's notes and testimony supporting them in this regard 35 See N L R B v Insurance Agents International Union AFL-CIO [Pru- dential Ins Co J, 361 U S 477 (1960) 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrary it was used in aid of reaching an agreement as to wages, and the evidence otherwise convincingly shows that the Union was far from adamant and made substantial concessions to reach that agreement As is set forth in more detail below, the evidence does not establish that Button reneged from any agreement reached during the wage ne- gotiations Looking at the Company's contention in toto as to But- ton, it is advanced as a defense or justification for its own conduct rather than as the basis for an affirmative finding of Union bad faith which is not directly at issue in this case Apart from the factors considered above, clearly whatever Button did while he was in negotiations does not explain what the Company did before he entered them, and indeed, does not explain or justify its subsequent con- duct either Looking at the Company's conduct during the period Button was in negotiations, there is some independent indi- cation of Company bad faith and nothing to negate the inference to be drawn from the Company's conduct before Button's entry into negotiations Harvey's expression of indifference to upset among the employees and his attacks on Orr, Taugher, and Staven for behaving very badly during negotiations and being a source of embarrassment during negotiations voiced dur- ing Button's first telephone call to Harvey, carry with them little by way of inference Such statements in an atmo- sphere lacking the Company's past conduct would show nothing more than typical negotiating hyperbole, and in the atmosphere of the Company's past conduct add noth- ing to it Likewise, opposition to the entry of Kurtz into the negotiations adds little Kurtz himself believed it was pre- mature for him to enter negotiations, and when Button persisted Harvey acquiesced To be sure, the course of ne- gotiations thus far might have led Harvey to a different conclusion as to Kurtz' value at that date, but the mere expression of opposition followed by acquiescence proves little Similarly an alleged attempt to poison Kurtz against the Union at the outset of Kurtz' entry into negotiations repre- sents no more than a partisan statement of a negotiator There is again exaggeration in what Harvey told Kurtz, and a statement by Harvey to Kurtz that the Company had been giving serious consideration to the union proposal for the past 10 days and that the Union had asked Kurtz into negotiations before it had a chance to respond seems pat- ently misleading At no time at or after this meeting did the Company give any indication that it seriously considered Button's proposal, and indeed when Button orally suggest- ed its outline to the Company before November 3 the re- sponse was negative But these statements like those considered above are of a kind not uncommon to negotiators While there is an ex- pectation that the claims of parties as to their financial condition and business facts will be honest claims, the statements and claims made in negotiations are generally not censored, and it is to be expected that the give and take of negotiations includes bluff and partisan advocacy It is easier to disregard the cancellation of the November 10 bargaining session Button's testimony, that he drove from Chicago to Madison for the meeting, learned from a clerk of its cancellation, was unable to reach either Harvey or Stantis at the time, and when he later spoke to Harvey was told that Harvey had a good reason which Harvey would tell him about later but never did, was uncontradict- ed This meeting was scheduled to have been held a week after Button submitted his counterproposal and 2 days af- ter the WERC referendum In the absence of any explana- tion and in the light of the findings above as to the purpose of the WERC campaign, the inference is strong that the November 10 meeting was cancelled to demonstrate to the Union that despite its election victory, the Company would not alter its course in negotiation and the Union could cool any flush of victory it might feel while waiting for the com- pany negotiators to return to the table As set forth above, during the period that Button was in negotiations, Button sought a narrowing of the Company's position from its September 15 proposal and indicated that while the Union would not accept the entire proposal he could negotiate some changes Button's own November 3 package proposal further indicated that the Union was willing to abandon all of its own contract demands, except checkoff to which there had been previous agreement in principle and a wage increase Certainly Button had indi- cated that the Union was open to compromise Not until November 22 did Button get any response to his request to be told what the Company really wanted narrower than the September 15 proposal itself 36 On November 22 the Com- pany gave Button a list of 13 articles with no more spec- ification which covered substantially all the changes in the September 15 proposal except that in severance pay This again was hardly a narrowing, and the message conveyed throughout this period was that the September 15 proposal substantially, in its entirety, was indeed more than a pro- posal and represented what the Company had to have There is of course no general obligation to narrow a pro- posal made in good faith because of a request to do so But where, as here, the proposal is itself a substantial indication of bad faith, the continued insistence that the entire pro- posal is what is sought is further indication that the Company's purpose was to face the Union with the pros- pect of no contract or one to which it could not agree While the Company and the Union each claims that the other reneged from an agreement as to engineers' wages during the wage negotiations, the testimony in conjunction with Harvey's notes fails to support either claim On No- vember 30 Harvey's notes show that Button said he was in agreement as to engineers' wages except as to their effec- tive date and thereafter Harvey presented a new proposal on engineers' wages The record does not show what pro- posal Harvey was referring to earlier that day Although 36 While the General Counsel and the Union contend that the Company also refused to go through its September 15 proposal and detail the changes it wanted from the old contract, I am not persuaded that the record sup- ports that contention Orr's testimony indicates that he did not renew his request for such an analysis after September 15, and Harvey's notes made it clear that later the Company was willing to go through the September 15 proposal but Button was not What the Company would not do was respond to Button's requests to tell him what it really' wanted TELEVISION WISCONSIN, INC 759 the Union argues that it must have been the September 15 proposal, since the record shows no other between Septem- ber 15 and November 30, that seems unlikely since the Company had earlier indicated that it did not stand by the September 15 wage proposal and only the day before, on November 29, Button rejected an engineer wage proposal with a threat to strike Given the absence of evidence of what Button indicated was acceptable and the fact that he rejected its effective date, I cannot conclude that the Com- pany entered into an agreement on engineers' wages and then reneged For similar reasons, I reject the Company's contention that on December 7 Button reneged on an agreement he made as to engineers' wages on November 30 On Decem- ber 7 Button stated that he did not agree to the progression scale for engineers, floormen or clericals, and Stantis said it had been agreed upon and walked out Both the minutes for November 30 and the attached documents leave sub- stantial doubt whether a total wage package was agreed to on that day or whether there had been agreements on ret- roactivity and percentages of increase without final agree- ment with respect to the number and duration of steps in the progression scale It is clear even from the company minutes that there had been no such agreement with re- spect to floormen and clericals The document relied upon by Stantis in his testimony as evidence to show reneging at the December 7 meeting was submitted at the prior meet- ing although it is not clear by whom and it does not show what longevity steps it incorporated The document re- ferred to in the December 7 minutes as showing the changes requested by Button does show the addition of another step, but it is accompanied by figures that would decrease pay in four steps from what the Company pro- posed with no corresponding increase elsewhere It is not believable that Button proposed a reduction from the com- pany proposal Indeed, the best conclusion that can be drawn from the minutes as to these two meetings is that there was confusion as to what had been agreed upon with respect to the engineers I conclude that Button did not renege on engineers' wages on December 7 Although the Company ultimately agreed to wages, that agreement tells little in terms of the Company's bargaining objective Despite Button's proposal that he and Stantis leave negotiations after wages were negotiated, wages were not a major issue in the negotiations and the time spent on wages left the key issues unresolved Although I have found the evidence insufficient to show reneging on the part of either party as to agreements already reached, there is evidence that the Company did not grow more generous as negotiations progressed Indeed the Company withdrew its September 15 wage proposal, and it is uncontradicted that Stantis told Button that the figures in that proposal were jerked out of the air When the parties got down to the negotiation of wages, the Company proposed less than it initially offered, and as negotiations progressed the num- bers diminished further Indeed, Button's insistence on an added step increase for certain classifications appears to have resulted in a rate schedule after that step was added which was more favorable to the Company than the agree- ment from which Button allegedly reneged It is impossible to view the wage package as containing any substantial concession from the Company 37 When wage negotiations were concluded it remained to be seen whether the comple- tion of a wage agreement and the departure of Button and Stantis from the negotiations would bring about any change 8 The notice to terminate the agreement The next three bargaining sessions on December 20, 26, and 28 culminated in written notice from the Company of cancellation of the agreement effective 20 days later, in accordance with the terms of the extension agreement The Company stated that it cancelled the agreement because of the immaturity of the union negotiators in the hope that the Union would start to take its role in negotiations seri- ously, would stop trying to force the Company to sign a document identical to the old contract, and would begin to negotiate modifications to the old contract The Company contends that the Union was in bad faith during this period because Button had misled Stantis into believing that nego- tiations would be easier with wages out of the way, because the Union introduced new proposals, and because it con- tinued its adamant opposition to company proposals The General Counsel and the Union contend that the Company's cancellation of the extension agreement and bargaining conduct during this period is further evidence of its bad faith There is no question that Lang who took over as chief union negotiator on December 18, adhered to the Union's prior resistance to the Company's September 15 proposal and opposed retrogression from the old contract Although Lang initially indicated that he might be willing to yield the phrase "other treatment of employees" from the descrip- tion of purposes for which seniority applied, at the same time he indicated that the Union would still insist on se- niority in scheduling which the Union claimed was provid- ed in the old contract by those words in conjunction with other provisions At the next meeting Lang took the posi- tion that he would not delete the quoted words, was ada- mant on seniority in scheduling, and would not agree to retrogression Lang also indicated that he would not agree to dropping the scheduling of personnel article even if it was verbiage, as the Company asserted, because it was in the old agreement But Lang was not totally adamant dur- ing this period On December 20, he indicated willingness to drop promotions and health and safety from the status quo provision of the grievance procedure On December 26 he further indicated willingness to drop changes in pro- gramming from that clause, which was one of the two items the Company had said at the previous meeting it wanted deleted On December 20 Lang also indicated agreement to the deletion of two sections from the seniority provision in accord with the company proposal Lang made a counter- proposal to the Company's proposed 75-mile jurisdictional radius of 150 miles and all work that could be performed in 37 Indeed, if anything, it would appear that Button's strategy had been to get an agreement on wages in the hope that he could induce the Company to drop all or most of the remaining issues and reach a settlement along the lines he had suggested to Harvey before October 30 and had pursued in his November 3 proposal 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 48 hours or less While this proposal was more than the Company wanted to grant, it was considerably less than provided in the old agreement and would have done away with the basis for one of the grievances which the Compa- ny contended led to its jurisdictional proposal 38 Lang also indicated that if the Company was going to insist on a 10-percent fee for checkoff, the Union would sooner do without checkoff than pay the fee Most important, at the end of the December 26 session when it appeared that there were major disagreements over a number of items, Lang conferred with Button by telephone to see whether the Union could make further concessions on the items that had been under discussion, principally seniority, juris- diction, and status quo Lang reported back that the Union would not concede those items without getting something in return because it already had them 39 It seems clear that while Lang was unwilling to yield anything more without something in return, he was inviting compromise and not conveying adamancy There were new proposals introduced by Lang during these meetings but is is difficult to vie- them as intended to obstruct agreement His proposals on geographic juris- diction and status quo clearly represented less than what the expiring contract provided On December 26 Lang did propose a provision to give seniority credit to part-time and freelance employees for purposes of longevity increas- es which was not in the old agreement or in the Union's earlier proposals, but at the same session he agreed to drop it, apparently insofar as appears from Harvey's notes, be- cause existing practice was more favorable than his propos- al The one proposal which Lang made before the Compa- ny gave notice of cancellation, which may be said to have reflected an increase in union demands, was a proposal to limit performance of bargaining unit work by supervisors to 10 hours per department per week But that proposal was the result of mutual agreement that the provision of the old agreement was unsatisfactory and was foreshad- owed if not in content in its sense by a union request for contract change made before the Company's September 15 proposal The contention that the Union misled the Company into believing that negotiations would be easier after the wage agreement was reached rests on testimony of Stantis that Button led him into signing the wage agreement by repre- senting that negotiations would be a "breeze" once wages were agreed to Whatever Button may have said to Stantis about post-wage agreement negotiations, the circumstan- tial evidence is strong that Button never gave Stantis rea- son to believe that the Union was more likely to agree to its September 15 proposal, or any major portion of it after wages were agreed to, than before Up to almost the very conclusion of the wage negotiations Button sought a simul- taneous total agreement In a telephone conversation with Harvey on December 15, consistent with his position all 38 That grievance dealt with the use of a freelance photographer in cover- ing political conventions in Florida The other grievance which the Compa- ny claimed was related to this proposal would not have been affected by the company proposal or the union counterproposal 39 Harvey's handwritten notes so indicate His typewritten notes indicate that Button said ` the Union has them already and under no circumstances would they ever be given up," a material change along, Button again sought a list of items separating the parties indicating at the time that seniority in scheduling was an absolute necessity to the Union, that there could be no retrogression in scheduling, sick pay, seniority, and job duties, and that some overhauling of the job duties article might be agreeable but that too much would cause a strike Button represented that negotiations would be easier with- out his personal presence because of personality clashes between him and Stantis, but Button did not represent that the Union would be more forthcoming in making conces- sions on basic issues with him gone I reject the inference of union bad faith based on these contentions During this period the Company also made some con- cessions to the Union Harvey agreed to restore to the se- niority article the section describing conditions under which continuous service was broken and providing for bridging of seniority for reemployed persons Brown indi- cated willingness to extend the original jurisdictional ra- dius offered from 75 to 100 miles, and the Company indi- cated willingness to retain a portion of the status quo provision excluding programming and work schedules from its operation But otherwise the company position did not alter When Lang reported on December 26 that the Union could not make further concessions without getting something in return, the response was silence , and reveal- ingly on December 28 when Lang indicated that the Union would rather collect dues itself than pay a 10-percent fee, indicating that checkoff was not that important to the Union, the Company made no response but Harvey silent- ly noted on his handwritten notes "Checkoff out" and later dictated for his typed notes "(Company negotiating team stunned and Harvey makes a point that the Union has waived its rights to negotiate further on that subject) 140 The reaction to Lang's December 28 statement hardly is indicative of a desire to reach agreement The Company may have been surprised at the position taken by Lang, but whether or not surprising it suggested the possibility of agreement to settle or eliminate one bargaining issue To a party seeking agreement that possibility should hardly stun it into silently recording it as a legalistic debating point for future use rather than exploring openly its significance and the possibility of resolution of the issue then and there The failure to respond to Lang's earlier report of his conversa- tion with Button on December 26 confirmed again that, except for minor deviations and adjustments, the Company was continuing to insist on its September 15 proposal as a basis for agreement While Harvey argued to the Union that he cancelled the agreement because the Union was trying to force him to sign a document identical to the old contract, the Company rejected all overtures to reduce its own proposal or to offer the Union something in return for the concessions it demanded of the Union Having found above a strong inference that the Septem- ber 15 proposal was drafted and presented to place an ob- stacle in the way of reaching an agreement that might be conceivably acceptable to the Union, I find that the bar- gaining through the cancellation of the extension agree- ment shows adherence to and furtherance of that design 40 Harvey's testimony makes clear that he made the point mentally to himself and not to the Union TELEVISION WISCONSIN, INC 761 9 Negotiations during the 20-day notice period The General Counsel and the Union contend that nego- tiations during the 20-day notice period further demon- strate the Company's bad faith, relying principally on the Company's refusal to meet more than 1/2 day on most days and its flat rejection of Lang's 11th-hour compromise proposal They contend also that bargaining during this period coupled with the cancellation of the extension agreement shows that the Company agreed to the wage proposal only to avoid a strike during its busy season and then cancelled the extension agreement to provoke a strike when it was more convenient for the Company and a strike would void the wage increase and force employees to choose between striking and losing retroactive payments provided in the wage agreement The Company contends that its good faith during this period is shown by agreements reached, that the Union's 11th-hour proposal in reality offered no real concessions on its part warranting further exploration, and that the Union itself bargained in bad faith during this period by introducing new proposals and adamantly opposing the changes sought by the Company The evidence shows that although the parties met a num- ber of times during this period only two meetings lasted more than the morning There is evidence that the meetings usually started late and ended at or before noon, lasting 2 to 3 hours On one occasion, on January 9, a meeting was terminated at 11 30 by the Company with the statement that it had to prepare for an arbitration case 41 On other occasions the Company said that it had to prepare for a strike and did not want to meet afternoons When Lang requested evening or weekend meetings, the Company re- fused once on the ground that it had better things to do and another time because they were not that close to settle- ment that meetings should go into evenings or weekends The inference to be drawn is that the Company did not expect to reach an agreement before expiration of the ex- tension agreement and sought to expend no extra effort to do so Between January 2 and January 16 some progress was made however in the negotiations On January 2 the parties agreed to the hiring of employees and safety articles In the first instance the Company agreed to restore provision from the old agreement for medical examination by a mu- tually selected doctor in the event of conflicting evidence and in the latter the Union accepted the company propos- al Much of the negotiations during this period concerned the vacation article The Union presented a new vacation proposal which sought not only the 5th week of vacation for employees with 15 years of service but additional days for greater service The Company abandoned its proposal for cash bonuses in lieu of additional time off, and the agreement reached tentatively on January 11 and finally 41 Taugher so testified Harvey's notes show that discussion before termi- nation had turned to a grievance that the Union had filed or was about to file and assert that the meeting was adjourned because it was about to take the turn of a grievance meeting and hard feelings were evident It is not clear whether the reference to preparation for arbitration referred to arbitra- tion of that grievance Insofar as appears there was no imminent arbitration pending on January 15, after one further change at the Union's insistence, provided the same benefits as the expiring con- tract with the addition of payment of prorated vacation benefits to those leaving the Company's employment 42 No other agreements were reached During this period the Union presented new proposals on scheduling of personnel, hours, overtime, and holidays and a clarification of its proposal on jurisdiction The sche- duling of personnel proposal incorporated in its entirety the 1971 memorandum on seniority in scheduling which while a central topic in the negotiations had not been pre- viously incorporated in a written contract proposal It also incorporated some changes in the scheduling provisions as they related to production employees The hours, overtime, and holidays provision contained substantial rewriting of the original contract provision but dealt mostly with changes that had been discussed earlier in negotiations Al- though the Company contends that these along with the Union's vacation proposal reflected an escalation of union demands showing no intent to reach an agreement on the Union's part, these proposals, with few exceptions, had been made earlier in negotiations in oral form While they exceeded what Button had incorporated in his November 3 proposal, that proposal was a compromise package propos- al which the Company had not accepted Good faith did not require the Union thereafter to abandon all requests for contract improvement that it made before the Company's September 15 proposal Apart from the concessions indicated above, both sides remained adamant during this period until the Union made its compromise proposal during the evening of Janu- ary 16 Lang's proposal listed seven items which the Union had been seeking and would get, and seven which the Company would get Lang proposed postponement of the strike on a day-to-day basis while they bargained to try to get these items straightened out He also proposed a one day exten- sion of the old contract while they met to discuss the com- promise proposal Under the heading what the Union would receive, Lang proposed 1 Seniority in scheduling 2 Dues checkoff without payment of a 10 percent fee to the Company 3 With respect to jurisdiction a 120 air mile juris- dictional radius and a 15 hour per week per depart- ment allowance for the performance of bargaining unit work by supervisors 4 Scheduling of personnel as in the previous con- tract without change 5 The addition of Christmas Eve as a holiday and the retention of the 32-hour provision in the expiring contract 6 With respect to travel allowances an increase in 42 It appears from the notes that at least in part this addition reflected practice and spelled out the formula to be used in determining what was accrued The final change on January 15 was a return to the old contract provision, relating to the time vacations could be taken, to which the Com- pany agreed although asserting that its proposal was more beneficial to employees in giving them more latitude In sum, it appears that the vacation agreement reached provided nothing different from what was provided oy the past agreement and past practice 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the mileage rate to 12 cents and a provision that only news department employees would be required to drive their own cars for work purposes Also retention of the minimum travel allowance from the old con- tract 7 The job duties provision as in the old contract Under the heading of what the Company would receive were the following 1 Removal of the phrase "and other treatment of employees" from the seniority provision of the con- tract 2 Removal of work schedules from the status quo provision of the grievance procedure 3 Removal of the proposed 48 turnaround limit in the jurisdictional article 4 In the union representatives and activity article a change of the name from chief steward to head stew- ard so that it would not conflict with local bylaws and would permit the Company to require that the head steward be an employee of the Company 5 Removal of provision for payment to union rep- resentatives for bargaining time 6 Removal of paragraph B from the responsible union company relationship article 7 Removal of provision of overtime for part time employees from the contract Within half an hour after Lang read the proposal to Har- vey, Harvey called him back to tell him that the proposal was unacceptable, without stating any further reason Although the Company attacks this proposal as contain- ing no real concessions on the Union's part, it did repre- sent some real movement Thus, the Union sought to retain seniority in scheduling, but it offered to yield the words "and other treatment of employees" from the seniority pro- vision which the Company contended were an open door for all kinds of claims, and Lang offered to drop work schedules from the status quo provision of the contract The latter change, which the Company had sought, would have permitted the Company to make and enforce changes in schedules while the Union grieved them instead of re- quiring maintenance of the status quo during exhaustion of the grievance procedure As Stantis indicated in his testi- mony, it was the inclusion of work schedules in the status quo provision which in his view made seniority in schedul- ing impossible for the Company to live with The proposal as to jurisdiction showed movement as well Lang dropped the claim for all work which could be performed within 48 hours and reduced the requested juris- dictional radius from 150 to 120 miles, reflecting an at- tempt to meet an earlier Brown counterproposal This pro- posal was also less than the existing contract provided With respect to performance of bargaining unit work by supervisors, Lang increased his previous proposal from 10 to 15 hours a week which increased the Company's latitude over his previous proposal The request for scheduling of personnel represented no change from the existing contract but dropped the Union's revised proposal of January 4 While that represented no 1969) cert denied 397 U S 965 1970 true concession on the part of the Union this was a provi- sion which the Company opposed as unnecessary verbiage and one with which it should have been easier to live with than provisions it opposed on more substantive grounds The proposal as to holidays also reflected a further re- duction of union demands, seeking only one additional holiday in place of greater earlier demands The proposal as to travel allowances reflected some movement toward the Company's position The Company had offered 12 cents a mile, and the Union sought that rate, offering in exchange, however, for the first time to agree that news department employees could be required to drive their own cars According to Stantis it was the news employees he had in mind when he sought to eliminate language from the old contract providing that employees could not be required to use their own cars without their consent The offered change in name from chief steward to head steward met a company request that the contract require that the chief steward be a company employee so that it would not have to deal with a nonemployee in the griev- ance procedure The Union had earlier objected on the grounds that it interfered with union internal affairs Elimi- nation of payment to union representatives for bargaining time was a concession from the old contract which the Company had sought in its proposal The removal of paragraph B from responsible union re- lationship was a concession of lesser significance but re- moved the last obstacle which had earlier prevented agree- ment on a revised article, after the Union had initially sought to retain the provision from the original contract and the Company had sought to delete it in its entirety as unnecessary The removal of provision for overtime for part-time em- ployees represented resolution of a dispute in essence over what the existing contract meant From the Union's view- point it was a concession from what it had under the old contract From the Company's viewpoint, it reflected with- drawal of a new contract demand Under either view it represented union movement Earlier on January 5 in a telephone conversation, Button had asked Harvey what the issues were and Harvey had listed nine areas status quo, jurisdiction, job duties, senior- ity, hours, vacations, work schedules, travel allowances, and union representative Vacations had been settled, and Lang's proposal dealt with each of the others named Sure- ly it did not grant everything the Company sought with respect to every one of them and with respect to some it granted nothing, but it is impossible to view this proposal as neither going to the real issues nor showing sufficient movement to merit discussion It is not significant that the Company rejected the sub- stantive terms of the proposal, but what is significant is that it rejected postponement of cancellation of the con- tract and the strike for even a single day while this proposal was discussed Lang's proposal was not frivolous, and as has been observed, "such last minute attempts at compro- mise are the stuff of which lasting accommodations and productive labor management relations are made " 13 43 N L R B v General Electric Company 418 F 2d 736, 759-760 (C A 2 TELEVISION WISCONSIN, INC Whatever indication there may have been of the Company's willingness to compromise and move away from adamant insistence upon its September 15 proposal in the negotiations between January 2 and 15, the out-of- hand rejection of Lang's January 16 offer when coupled with the attitude displayed by the Company in rejecting the Union's request for longer meetings again confirms that the Company was not interested in exploring the possibility of compromise but was essentially seeking capitulation to its September 15 proposal or no agreement The General Counsel and the Union contend that can- cellation of the agreement and the Company's bargaining through January 16 were intended to force a strike The Company had started to make preparations for a strike during early January It knew from the fact of the union strike vote and prior strike threats that a strike was a dis- tinct possibility, and Lang announced the intention to strike early in January Requests by Button and Stevens on January 9 to extend the contract on a day-to-day basis were rejected as were Lang's later similar requests at the time of his January 16 proposal When Button and Stevens on January 9 asked for assurances that working conditions would not change without a contract, Harvey responded that the Company did not anticipate major changes but did not want Button and Stevens to feel that provisions relat- ing to grievances would continue in effect either When Button warned that they felt the people would not work without a contract, Stantis indicated knowledge that a number of employees had resigned from the Union and predicted that it would be next Christmas before they got an agreement Later on January 15 Harvey told negotiators that the Union need not take an adamant stand on striking without a contract because the Company intended to make no unilateral changes regardless of termination and the Union need not be concerned about the Company's inten- tions if that was a reason for striking I cannot agree that the evidence shows that the Compa- ny desired a strike What is clear, however, is that the Com- pany had every reason to expect a strike and did nothing to forestall it It is also clear that the Company foresaw the divisive effects of a strike on its employees To the extent that a strike was a predictable although not necessarily an inevitable consequence of its actions I would agree that the Company intended to force a strike But there is no reason to conclude that the Company would not have settled for continued operation without a contract, without a strike and with the freedom whenever it saw fit to withdraw or disregard its assurance of no unilateral changes 44 What the Company plainly did desire was to reject any further move toward compromise and to adhere to the unresolved por- tions of the September 15 proposal even at the cost of a possible strike 45 44 The seriousness of Harvey s assurance must have been the subject of considerable skepticism, for although Harvey asked the Union to accept his word that there would be no change, he refused to give his word in the form of a day-to-day extension of the agreement 45 The Union and the General Counsel contend that the Company had a deliberate strategy of avoiding a strike in December for seasonal business reasons by agreeing to wages and then forcing a strike in order to put employees in the position of voiding that agreement and losing retroactive pay by striking While there is some evidence in a letter from Stantis to Mrs 763 10 Alleged independent violations and indicia of bad faith away from the bargaining table between December 18 and January 17 a Alleged derogation of union negotiators On the morning of December 19 Streblow, an engineer, was in the control room at the station talking to Dale King, the assistant chief engineer, when Chief Engineer Hariu walked in Streblow said something to the effect that he was back on the job or did not take his forced vacation, referring to the elimination of the strike possibility as a result of the wage agreement which had been signed the day before Hariu replied, "Well when they locked up Taugher and Prozzo they finally were able to accomplish something," and added that the accomplishment was es- sentially what the Company had proposed early in bargain- ing Hariu then said, "I don't see how you guys can be so stupid as to put your jobs on the line by letting a couple of pricks like Prozzo and Taugher represent you " Streblow said that they were representing the wishes of the group and not just themselves, but then let the matter drop be- cause Hariu seemed tense and perturbed 46 During the first or second week of January, newsroom employee Bruce Ellhnger asked Brown how things were going as Brown was returning from a negotiating session With some agitation Brown replied that they did not go well at all and said that "stupid Prozzo" had spent the entire afternoon trying to get himself 5 weeks of vacation Brown added that Prozzo had been doing that for the last three meetings Ellmger said he was sorry to hear that and terminated the conversation At around the same time newsroom employee Jill Geis- ler discussed the previous day's bargaining with Brown while having lunch with him Brown said that he felt that the entire day had been wasted because it had been used up in discussing Prozzo's vacation and that Prozzo was bargaining his own vacation for a whole day She asked Brown why he seemed upset, and he said that he was very frustrated 47 Geisler testified to another conversation with Brown ear- Murphy and in the contract provisions for vacation period to indicate that December was a busy month and that business slacked up by mid-January I do not find the evidence sufficient to infer such a preconceived strategy 46 Streblow so testified Although Hariu was not called as a witness the Company presented evidence that Harm 's physical condition made it inad- visable for him to testify and I am satisfied even without the Company's post hearing proffers as to Harm's health that there was a medical reason for Hann to avoid testifying While this circumstance requires that Streblow's testimony be evaluated with care, I find no reason to discredit it There is no showing that King was unavailable to testify , and while Stre- blow conceded that he did not recall his entire conversation with Hariu there is no reason to believe that what he may have forgotten would have altered the import of what he remembered I have credited Streblow 41 Ellmger and Geisler testified to these incidents Brown denied making any such statements to Ellinger or Geisler at any time Brown conceded that considerable time in negotiations was devoted to the 5th week of vacation and that Prozzo was the only employee who would qualify for the 5th week at that time Although he denied that he thought that the Union was negoti- ating for Prozzo s benefit , he conceded that in a statement to the Board he had stated that they went round and round over a vacation submission from which only one individual who could currently benefit Although I do not credit Ellinger or Geisler in some other respects to which they testified, I find it likely that Brown's attitude was as indicated in the comments de- Continued 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly one morning shortly before the lunchtime conversation described above She testified that Brown told her of a discussion with Prozzo the previous day concerning a TV show dealing with homosexuality and that Brown told her he believed Prozzo was making a homosexual advance to him She testified that Brown told her he did not want her ever to tell anyone about it and that if she did that he would kill her She testified that she made no reply because "there was really nothing I could say, I was pretty well shocked by it and I would say incredulous for one " Brown did not deny that he had a conversation with Geisler about the TV program which she described, but he denied that he ever told Geisler or intimated that he believed that Prozzo was a homosexual or had propositioned him Although I do not believe that Geisler invented the entire conversa- tion, there is reason to believe that her recollection of the incident was hazy both at the time she gave her affidavit and when she testified and that the impression that Brown intended to impute homosexuality to Prozzo only occurred to her when she recalled the conversation long after the event A day or two before January 17, Streblow had a conver- sation about the negotiations with Hariu while at work Streblow did not recall how the conversation started, but after some initial light conversation Hariu told Streblow that the Union was largely responsible for the seriousness of the situation He said the Company had given all that it could, and that the Union's demands were unreasonable Hariu also said that he did not feel that the Union was keeping its members informed of the issues and that if they would realize the issues perhaps they would feel differently about the situation According to Streblow, toward the end of the conversation Hariu made a statement to the effect that the employes had better fully realize that if they walked out that would be the end of their jobs Streblow replied that they had to do something and could not just let the situation deteriorate Streblow conceded that he was unable to recall parts of this conversation, including how the topic of the negotia- tions came up, and he could not recall the exact words used by Hariu in his statement about the consequences of a strike Although I credit Streblow in general as to the por- tions of this conversation that he recalled, his lack of recol- lection of Hariu's exact words in the latter regard leaves doubt as to their significance The General Counsel contends that these incidents show bad faith and independently violate the Act because com- pany representatives made profane, derogatory, and de- grading statements to employees designed to disparage and undermine the Union Although a campaign to disparage and discredit the statutory representative in the eyes of represented employees may be considered evidence of bad- faith bargaining 48 here the evidence is scant that the Com- pany mounted a deliberate campaign for that purpose Harvey and Stantis made derogatory remarks about union negotiators in negotiations and to other union negotiators, scribed by Ellinger and Geisler and that when they questioned him he re- plied candidly as they testified 48 General Electric Company, 150 NLRB 192, 195, enfd 418 F 2d 736 (C A 2, 1969), cert denied 397 U S 965 (1970) but apart from the incidents set forth above, there is no other evidence of a campaign directed at employees Brown's remarks about Prozzo to Ellinger and to Geisler at lunch were in response to questions they asked about bar- gaining and do not indicate a deliberate campaign Harm's remarks to Streblow on December 19 was similarly prompted by a remark by Streblow Streblow could not recall how his conversation with Hariu in mid-January started Of all the conversations recounted the only one which appears as if it may have been more than casually started was that between Geisler and Brown about homo- sexuality But while I do not think her recollection of that conversation was totally invented, I do not believe that her recollection of the disparaging cast she gave that conversa- tion was sufficient to support an affirmative finding of de- liberate disparagement Accordingly, I reject the General Counsel's contention in this regard and will recommend dismissal of the allegation of the complaint that Brown and Hariu made profane, derogatory, and degrading state- ments concerning bargaining representatives in violation of Section 8(a)(1) b Alleged attempt to bypass the Union Bob Whitinger was an engineer who worked at the sta- tion under the supervision of Hariu In late December, Chief Engineer Hanu telephoned Engineer Whitinger at his home, and they discussed negotiations and union relat- ed matters for approximately an hour Whitinger did not recall how the conversation started and conceded that the conversation initially may have related directly to his work However, during the conversation Harm and Whitinger discussed a number of items that were on the bargaining table, including travel allowances, holidays, sick leave, wages, seniority, and seniority in scheduling Hariu in- formed Whitinger that wages had been signed off, and Whitinger indicated that he was aware of that At one point in the conversation Hariu asserted that the Union was not keeping Whitinger informed as to a bargaining item In discussion of seniority in scheduling Hariu assert- ed that the Union was attempting to manage the business by insisting that it retain what it had before with respect to that matter 49 At some point in the conversation Hariu asked Whitmger if he was aware that 11 people had re- signed from the Union and that one of those who resigned was a steward Whitinger replied that he was aware that some had resigned but was not aware of the exact number Whitmger did not recall what discussion preceded Hariu's question about the resignations At the end of the conver- sation Hariu told Whitinger that if he wanted more infor- mation on any of these matters he should contact Brown, as Brown was very up-to-date and knowledgeable on them Whitinger understood Hariu to be referring to bargaining matters and not to resignations from the Union at that time 50 49 Whitinger described Hariu as less rational in discussing the latter two points than at other times By that it appears that he meant that Hariu became more emotional in talking about these subjects than at other times 50 These findings are based on the testimony of Whitinger As indicated above, Hann was not called as a witness and the Company presented evi- dence that Hariu's physical condition made it inadvisable for him to testify TELEVISION WISCONSIN, INC 765 The General Counsel contends that Harm's conversation with Whitinger violated Section 8(a)(1) of the Act in that it informed him of the extent of employee resignations from the Union and consitituted direct bargaining with him on an individual basis by soliciting his sympathies regarding bargaining issues All conversation between supervisors and employees about bargaining topics is not prohibited by the Act Although there is ground for suspicion that Harm's remark about resignations was designed to cause Whitinger to question the Union's strength, absent evi- dence of how this topic was raised I find it insufficient to conclude that it was calculated to undermine the Union and not the normal outgrowth of a conversation which Whitinger may have turned in that direction With respect to the contention that Hariu engaged in direct bargaining with Whitinger, it does not appear that Hariu's conduct was part of a campaign to bargain with the Union through the employees rather than with the employees through the Union 1 Hariu did not seek to reach any accommodation with Whitinger, and the evidence shows no more than that Hariu sought to inform Whitinger of what was going on in bargaining and the Company's position As the Court stat- ed in N L R B v General Electric Company, 418 F 2d at 756, "the interest in free speech and informed choice must prevail over the slight possibility that the representatives' positions might be undetermined " Accordingly, I shall recommend dismissal of the allegations based on the con- versation between Hariu and Whitinger c Alleged threats of retaliation against strikers In early January Stantis decided that in the event of a strike operations would continue and he instructed depart- ment heads to make necessary preparations to have re- placement personnel available for those employees who went out on strike He told the programming director to be sure that all live programs continued except for Circus Three, a children's show The three departments which would be most seriously affected by a strike were engineer- ing, news, and programming Stantis met with each of the department heads to discuss their needs with them At about that time Bill Brown who was in charge of the news- room began to make lists of the programs he was responsi- ble for and of possible replacements to broadcast them His first list was compiled sometime during the first week of January and from then until the strike there were fre- quent revisions made of the list According to Steve Bailey and Jill Geisler, these lists were frequently left on top of Brown's desk in places where The Company attacks Whitinger s credibility noting among other things that he was contradicted by another witness with respect to one collateral fact to which he testified and that he engaged in verbal fencing under cross- examination The collateral contradiction appears both immaterial and in- consequential, and any appearance that Whitinger was fencing verbally seems attributable to counsel's repeated insistence on precision rather than an attempt to be evasive I have concluded that Whitinger s testimony was not fabricated and may be relied upon, although as appears directly in his testimony his recollection was not entirely clear as to the entire conversa- tion, the sequence of items that were discussed, and what prompted discus- sion of certain topics during the conversation 51 See General Electric Company, 150 NLRB at 195 Goodyear Aerospace Corporation 204 NLRB 831 (1973) other newsroom employees would necessarily see them in the course of the performance of their duties Bailey and Geisler also testified that each overheard Brown make a telephone call in which he inquired about the availability of replacement employees In Geisler' s case she testified that Brown specifically made reference to the need to re- place her While Brown readily conceded both compiling the list and making phone calls to persons seeking replacements, he denied that he left the list at places described by Bailey and Geisler on most occasions when he found it necessary to leave his desk He testified that whenever he left his desk for more than a moment he placed the list in a folder and put it either in a drawer or in a mail holder on top of his desk with other items on top of it Brown also testified that although he made telephone calls to inquire about the availability of strike replacements he never did so when other employees were present in the newsroom unless they happened to walk in the newsroom when he was in the middle of such a call Although Geisler initially testified that she saw the list on top of the desk, she ultimately testified and conceded on cross-examination that the very first time she saw the list it was in Brown's desk drawer, and that she looked for it there after receiving a telephone call from another employ- ee telling her about it 52 She testified that thereafter when she saw the list it was on top of the desk, and Bailey testi- fied that he saw it when it was left in visible places The General Counsel contends that Brown improperly threatened employees with permanent replacement by dis- playing replacement lists and making telephone calls in the presence of employees Geisler's ultimate testimony shows clearly that she became aware of the lists not because of any design by Brown in leaving them visible but because she was informed that the list was in Brown's drawer where she looked for it and found it There is no evidence to show how her informant became aware of the lists, but it is clear that once she became aware of the list it became common knowledge in the newsroom so that employees knew what to look for whenever Brown may have left it in view In these circumstances, I do not find that Brown left the lists in plain sight in order to assure that employees would see them With respect to the telephone calls, I have credited Bai- ley and Geisler as to what they overheard Although Brown denied placing such calls when employees were present, he conceded that employees may have walked in when he was in the middle of such calls The newsroom was the place of work of news employees when not out on assignment, and one must question the degree to which Brown sought to insulate employees from these calls in making them from their place of work However, the Company had the right to continue operations during a strike with replacements, and there is no indication that Brown's statements carried with them any greater threat than that replacements would be hired Accordingly, I shall recommend dismissal of the 52 She identified Miller as the caller Miller denied making the call and testified that Geisler first told him about the list As there is no contention that Miller made this call on behalf of management it is unnecessary to resolve this conflict 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations of the complaint based on Brown's handling of the lists and telephone calls The General Counsel also contends that in the second conversation between Streblow and Hariu, described in section a, above, Hariu threatened that employees who struck would be discharged As noted above, Streblow could not recall the exact words used by Hariu in telling him the consequences of a strike Although such accurate recall is rarely available even to the witness who believes he has it, given the unavailability of Hariu to testify and Streblow's conceded failures of recollection as to other parts of the conversation, including how it started, I do not rely on Streblow's testimony to find that Hariu threatened discharge of the strikers Bearing in mind that the exact words used by Hariu might transform what Streblow re- peated as a bald threat into a lawful statement, I find the evidence insufficient to make the requested finding d The suspension of Kirschnik On January 9 Robert Kirschmk, a union steward, was suspended after a dispute between him and management over his selection of a new work schedule Kirschnik worked in the production department which was one of the two departments covered by the 1971 memo permitting se- lection of schedules by seniority For some years Kirschnik had worked as a leadman or director On January 5 when a new schedule was posted at Kirschnik's request and con- trary to usual practice, Production Manager Luzinski post- ed the entire schedule for the whole department with all names blank rather than showing only the open slot which had occasioned the posting of the schedule Kirschnik se- lected a new schedule to work as a full-time cameraman rather than as a leadman 53 After management became aware of Kirschnik's selection, a new schedule was posted which eliminated provision for the full-time cameraman schedule that Kirschmk had signed up for, and Stantis gave instructions that Kirschnik should be required to rese- lect a leadman's schedule Upon learning of the new sched- ule, Kirschnik prepared a grievance with Taugher which they intended to file over the reposting of the schedule However, before they could file it, Kirschnik was called into Program Director Slauson's office where Production Manager Luzmski and Herling were also present Kir- schnik immediately said that he had been called there merely to reselect his schedule Kirschnik protested that he had already selected a schedule and that he did not want to select another Herling told him that it was the Company's position that he had been a leadman for a number of years, that he was supposed to select a leadman's job, and that they wanted his decision before he left the room Herling told him that failure to reselect a leadman's job might re- sult in disciplinary action Kirschnik immediately demand- ed a steward which he was denied Kirschmk remained in the room but refused to discuss the matter further or to sign a new schedule while continuing to demand a steward Ultimately, Kirschnik was told that he could leave the 53 Leadman and director are synonymous room but was given a deadline of about 20 minutes later before which he would have to sign for a new schedule or face discipline Kirschnik left and returned with Taugher to file his grievance, but he did not sign the schedule Kir- schnik was then suspended for the rest of the week The stated reasons were his decision to select a schedule outside his historic assignment, refusal to discuss company busi- ness with supervisors, and a flagrantly antagonistic attitude toward management and the Company 54 The first of the charges filed by the Union against the Company was based on this suspension The General Counsel and the Union contend that Kir- schnik was disciplined for standing up for his contract rights and for seeking union representation at an investiga- tory interview in which he had reason to believe his job was injeopardy Respondent contends that Kirschnik was sus- pended for insubordination and not for requesting union representation Respondent contends further that Kirschmk's conduct was unprotected because he selected a cameraman's shift in order to harass and disrupt the opera- tions at the station and because he had no right to select a cameraman's schedule under the contract In NLRB v Weingarten, Inc, 420 U S 251 (1975), the Supreme Court approved "the Board's construction that §7 creates a statutory right in an employee to refuse to submit without a union representation to an interview which he reasonably fears may result in his discipline " Here the first question to be answered is whether the meeting in Slauson's office was of the kind at which the right to representation arises It was not an investigatory interview of the kind involved in Weingarten or similar cases Kirschnik was not threatened with discipline for re- fusal to describe or explain past conduct without union representation, but for his refusal to make a new shift se- lection I regard the question as close but unnecessary to decide, because I find for the following reasons that his conduct lost any protection it might otherwise have had I agree with the Company's contention that Kirschnik's testimony as to the reasons he sought to work as a camera- man was not candid His testimony that he had no particu- lar reason for asking Luzinski to change his schedule post- ing practices on that occasion seemed clearly evasive, and the reasons given by Kirschnik for selecting a schedule as a cameraman rather than a leadman were anything but con- vincing and conflicted with the reasons Taugher testified that Kirschmk told him that he wanted to work as a cam- eraman Lacking confidence in Kirschnik's or Taugher's testimony as to Kirschnik's reasons for these actions, the inference is strong that Kirschnik's reasons were such that he desired to conceal them and that they would not reflect credit upon him if they were revealed There is uncontra- dicted evidence described below that during this period production employees, including Kirschnik, who worked 54 Although there was extensive examination and cross-examination as to this incident, the versions of Kirschmk and Herling of what happened and what was said are in essential agreement Herling and Stantis testified that Herling did not discuss the possibility of discipline for Kirschnik with Stan- ds until after Kirschnik was permitted to leave the room Herling s testimo- ny in this respect was in conflict with an affidavit he gave in this regard, and Stantis clearly omitted some of his conversations with Herling from his account I find it unlikely that Herling threatened Kirschnik with discipline without first having discussed it with Stantis TELEVISION WISCONSIN, INC on the programs produced live at the station were not giv- ing full cooperation to on-the-air personnel and were caus- ing some disruption in the smooth production and perfor- mance of live programs broadcast by the Company Kir- schmk himself testified that his shift selection was related to produc* jin problems being experienced at the time, but when that testimony is compared to the evidence as to the nature of the production problems then being experienced it seems clear that they were not attributable to a loss of Kirschnik's personal touch in operating cameras or famil- iarity with floor work, as he testified Rather it appears that they were deliberate Viewed in that light, the inference is strong that Kirschnik's selection of a cameraman schedule was intended to compound the Company's problems rather than solve them by making him unavailable to perform his normal directory duties At the same time I cannot say that there was no contrac- tual base for Kirschnik's actions It is debatable whether under the contract and the seniority in scheduling agree- ment the entire schedule should have been posted each time there was a change, and when Kirschnik requested posting of the entire schedule, Luzinski readily acquiesced While the Company contends that the job of director was not covered by the contract, Kirschnik was clearly in the bargaining unit, and the contract clearly applied to lead- men Kirschnik's right to have selected a cameraman shift may not have been plain, but his claim of that right was not without foundation, and if anything the contract gives greater support to his position than to the Company's The conclusion reached thus is that Kirschnik, in select- ing a cameraman's shift, was asserting more than a color- able right under the contract and seniority in scheduling agreement, but that he did so for the purpose of com- pounding the Company's operational problem rather than any of the purposes he stated I find that Kirschnik's selection of a cameraman's sched- ule was made with intent to harass the Company and that his refusal to select a schedule and insistence on union representation in Slauson's office were an integral part of his design to remove himself from directing Even assum- ing that his request for union representation was concerted activity under the Weingarten decision and that his suspen- sion was based at least in part upon his insistence upon union representation, I find that Kirschnik's conduct lost its protection because his refusal to reselect a schedule was intended to harass the Company and was not in good faith 55 Accordingly, I shall recommend dismissal of the allegations based on Kirschnik's suspension e The interrogation of Eileen Traeder on January 10 On or about January 10 clerical employee Eileen Trae- der was called into the office of Helen Slauson, her imme- diate supervisor Slauson said that it seemed that a strike was definite and asked whether Traeder was considering going out on strike or was going to resign from the Union Traeder replied she was still considering what to do and had not made up her mind A day or two later on January 55 See Southwestern Bell Telephone Company, 212 NLRB 43 (1974), Detroit Forming, Inc, 204 NLRB 205, 212 (1973) 767 I 1 Traeder wrote a letter of resignation to the Union Trae- der testified that she did so on her own volition because she did not want to go out on strike Slauson's interrogation of Traeder implied that she had two alternatives, to resign from the Union or to strike Al- though Traeder testified that she thought Slauson was in- terested in knowing whether she would have to hire a re- placement for her, Slauson said nothing to her to indicate that purpose Even if Slauson wanted to know Traeder's intention about working for a purely business purpose, she had no need to know about Traeder's intentions with re- spect to resigning from the Union I find that Slauson's interrogation of Traeder about her intentions with respect to resigning from the Union and working constituted un- lawful interference in violation of Section 8(a)(1) of the Act 56 f Job action by employees and harassment of nonunion members For sometime before the strike several of the employees who appeared on camera and who were among those who resigned from the Union experienced various problems with other employees during their on-the-air appearances While their testimony varied as to the duration and intensi- ty of their problems, it was uncontradicted Judith Learner Eisenberg who appeared on the Farm Hour and one other program placed the start of her diffi- culties in November Her problems were principally with Ed Malcheski, director of the Farm Hour, but she also had them with production employees who were involved in put- ting the show on the air On a number of occasions Mal- cheski expressed his hostility to station management to her and threatened that if she did not cooperate with him he would make her life "a living hell" As the strike date neared his attacks upon her intensified There is some evi- dence that even before negotiations started Malcheski ex- pressed hostility to her and threatened retaliation if she upstaged him, but during November and early December when she was on the air, production employees also missed time cues, failed to set up equipment properly, and turned microphones on and off late She received complaints from viewers that camera shots were focused on her thighs and legs and that lighting was not properly arranged She did nothing about these problems except that she relayed the viewer complaints to Production Manager Jack Luzinski For a period of approximately a week before Christmas Malcheski was not at the station and things improved in terms of the cooperation she got from the production em- ployees and their attitude toward her, but shortly before New Year's the problems were revived Sportscaster James Miller placed the beginning of his problems in mid-September He found a lack of communi- cation and cooperation from engineers and production em- ployees which increased as the negotiations continued and the ultimate strike date approached He named Prozzo, Taugher, and Kirschnik, among those who were involved in his problems He had difficulty with failure to video tape feeds of sports information from the network, lack of time 5s Ramona s Mexican Food Products Inc 203 NLRB 663, 682 (1973) 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cues while he was on the air, lack of coordination of micro- phones and audio sources with the cameras and tape runs, and lack of communication with Kirschnik, who directed the show Miller reported the lack of coordination among produc- tion people and the engineers to Brown shortly after he became aware of it, but his problems continued He did not tell Brown his belief as to why he was having these prob- lems Newscaster Rick Featherston estimated that around the time of the WERC petition strike the group of people re- sponsible for production of the news program stopped working together smoothly The change was gradual and the problem got worse as the strike date approached His problems were similar to Miller's Featherston reported these problems to Brown sometime before Christmas Thereafter Brown held a meeting with Slauson, Luzinski and the production employees at which a lot of the complaints were aired, but apparently no attempt was made to attribute them to negotiations in the meeting with the employees For some time before the strike started Lawrence Saun- ders, who taped a panel show as moderator, found that floor personnel were no longer arranging the set for the show, preparing microphones, or helping guests to put them on Saunders also failed to receive time cues Saun- ders made no complaints about these problems other than to Kirschnik, who was the director Two others, Lindgren and Terry, relatively new part-time employees, testified that they had no problems personally until a few days be- fore the strike, although Lindgren observed some of Miller's earlier difficulties The Company contends that the problems experienced by the on-the-air personnel were the results of deliberate misconduct and reflect union bad faith in negotiations There can be little doubt that at some point during the negotiations on-the-air personnel, who had indicated lack of support for the Union, were subjected to job related harassment and that among those involved were Kirschnik, Taugher, and Prozzo There is no question that this con- duct was not protected and that the Company could have responded to it by disciplining those involved, as it did in the case of Kirschnik's refusal to make a schedule selec- tion But to the extent that the evidence shows, much of this conduct never even became the subject of a complaint to management, and when complaints were made to Brown he attempted to deal with it through an employees' meeting in which insofar as appears he made no attempt to relate the problems to bargaining and made no threat of disci- pline There is no evidence that much of the conduct com- plained of was ever known to management, and none to indicate that any of the bargaining positions or conduct of the Company found violative herein were affected by the conduct complained of The conduct of the engineers and production employees would not in any event establish that the Union was not bargaining in good faith,57 and it does not constitute a defense to the charge that the Compa- ny bargained in bad faith 57 N L R B v Insurance Agents International Union, AFL-CIO [Pruden- tial Ins Co], 361 U S 477 (1960) 11 Negotiations during the strike The General Counsel and the Union contend that the Company continued to bargain in bad faith after the start of the strike, relying in particular on the unilateral change in insurance and the negotiations over checkoff as evi- dence of bad faith 58 The Union also contends that the Company's insistence on the presence of Mediator Kurtz after the strike began and the course of negotiations over arbitration of unresolved issues are further evidence of bad faith The Company denies these contentions and asserts that the unilateral change in insurance was lawful because an impasse had been reached before it was implemented The Company also contends that during the strike the Union displayed intransigence at the bargaining table, in- creased its demands, and bargained in bad faith a The unilateral change in insurance The Union had included improved health insurance in its initial proposals, and Stantis had indicated as early as October 30 that he agreed that the hospitalization room rate provided under the existing policy was much too low and also said that consideration would have to be given as to who was to contribute to payment of the premium However, before the start of the strike, neither party had made any concrete insurance proposal On January 30, the Company again indicated that it was willing to improve the room rates provided under the hos- pitalization insurance The Union then indicated that it was not yet ready to negotiate on insurance because it wanted to check with the carver with respect to other in- creased benefits and did not want to limit improvements to room rates In the meantime, of course, the extension of the initial contract had terminated, and on several occasions the par- ties discussed the impact of the termination on employee benefits On January 15 Harvey told the Union that the Company did not intend any unilateral change regardless of the contract termination and that the Union should not be frightened about the Company's intent in that area if that was what the strike was called for In the first negotiating session after the strike began on January 22 Harvey reiterated that the Company would continue to negotiate and would not make any unilateral movement because of the absence of a contract With re- spect to existing insurance coverage for strikers, Harvey told the Union that insurance would be continued in effect but that company contributions to premiums would cease and that strikers would have to pay the full premiums in order to receive insurance benefits On February 5 Harvey said that the Company had not moved unilaterally with regard to any provisions of the old contract even though it had been cancelled and repeated that it did not intend to do so It was in this setting that the first concrete proposal with respect to insurance was made since the start of negotia- tions On February 12, the Union submitted a comprehen- 58 The change in insurance is also alleged as an independent violation of the Act TELEVISION WISCONSIN, INC 769 save proposal which provided for an increase in daily hos- pital room benefits from $35 to $60 and new benefits in the form of compensation for subsequent visits for out-patient care, a $1,000 diagnostic X-ray and laboratory service lim- it, and an emergency medical care provision The Union also proposed that the Company pay the entire increase in the cost of the insurance 9 Harvey responded that the Company was the first to indicate in negotiations that it wanted an increased daily room benefit and the Company therefore agreed in principle with the Union that the daily room benefit had to be increased Harvey indicated that the Company was presently working on a proposal for the Union in that area Harvey also said that the Company would not agree , at least at that time , with the Union's proposal to increase the Company's share of the insurance cost and that the Company wanted to take a careful look at the other changes proposed by the Union Insurance was next discussed on February 22 At that time the Company stated that it would not assume more than 50 percent of the cost but that it was presently looking at other areas of significance to the employees for medical and hospital coverage in addition to or in place of the areas mentioned by the Union in its proposal Later in that session the Union made a package proposal which related to insurance as well as the hours , overtime, and holiday article This followed a discussion of the latter article in which the Company had expressed vigorous op- position to the 32-hour provision with respect to holidays and solicited a proposal from the Union to increase the number of holidays in return for its deletion The union proposal sought a number of concessions in exchange for deletion of the 32-hour provision Principal among them was the Company's acceptance of the Union's insurance proposal In response the Company proposed splitting hours and overtime from holidays and deferring negotiations with re- spect to insurance until the Company finished putting to- gether its own proposal Following further discussion which dealt with hours and overtime issues, the Union said it would submit a new proposal on insurance and holidays by the following Tuesday Before the next meeting, which was held on March 1, the Union delivered a new hours, overtime, and holiday pro- posal to the company negotiators Insofar as appears that proposal did not relate to insurance but it did omit the 32-hour provision After some discussion and progress with respect to that proposal, discussion turned to insurance, and the Company made a counterproposal to the Union, offering to continue to pay 50 percent of the total cost and to raise the maximum daily hospital room benefit payment from $35 a day to $55 a day Lang initially rejected the offer, but then indicated that he would look it over, adding that he did not think it was acceptable in view of the Company's desire to remove the 32-hour provision from the holiday section of the contract Insurance was next discussed at the next bargaining ses- sion on March 5 when the Company made a further coun- terproposal It proposed a $57 daily room rate, or $2 a day more than it had proposed at the previous meeting, with the Company still to contribute 50 percent of the total cost At this time, Harvey stated that this proposal was the Company's last and final proposal with respect to insur- ance The Union did not respond immediately, but after further discussion of a different topic and a union caucus, the Union stated that the Company's counterproposal of $57 a day on insurance was rejected and that the Union stood on its original proposal, indicating as a reason that it was making a big concession giving up the 32-hour provi- sion for holidays so that it was going to stand on its origi- nal proposal with respect to insurance Discussion again moved away from insurance, but just before the end of the meeting Harvey asked the union negotiators whether the $57 daily benefit was specifically rejected, the Union stated that it was Harvey stated that this was somewhat incredi- ble since the company proposal represented considerable movement from the existing dollar coverage and that in any event insurance was at the option of an employee who could obtain more if he wanted it Union negotiators re- plied that they might take less than what they had pro- posed for insurance if they could obtain the 32-hour provi- sion with respect to holidays 60 Harvey then stated again that $57 was the final company offer and was asked again whether it was rejected The Union again said that it was On the morning of March 6, Stantis instructed Herling to call the Company' s insurance carrier to proceed to im- plement the increase in room rates and to put it into effect whenever he could As a result the room rate was increased on that day retroactive to March 1 On that same day Herling sent a memo to the Company's employees announcing the increase and indi- cating that as in the past the Company would pay 50 per- cent of the premium The memo explained that the in- crease was a result of a "hard and realistic reappraisal" by the Company of its insurance coverage in the interest of all employees and their families, which resulted in the discov- ery that in the area of room rates the Company's coverage was inadequate, The memo described insurance coverage otherwise as exceptional The memo said nothing about the negotiations with the Union and made no reference to the Union in any respect The question presented is whether on these facts the par- ties had bargained to an impasse entitling the Company to implement the increase in insurance benefits As the Board has recently said 6i A genuine impasse in negotiations is synonymous with a deadlock 15 the parties have discussed a subject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to such, neither party 60 Harvey s notes for this meeting show this union response Although the last entry in Lang's notes for the day relating to insurance show merely that the Union said that it was not willing to accept anything other than what the Union proposed, Lang testified that this statement was made in conjunction with the dropping of the 32-hour provision While Stantis denied that the Company's final offer was tied to anything else, he also testified that earlier in the day discussion of the increased room rate was tied to other elements including the 32-hour provision There is no basic conflict between Harvey's 59 The proposal and Harvey's handwritten notes make it clear that the notes in this regard and Lang's testimony which is credited Union did not propose that the Company assure the entire cost of the 61 Hi Way Billboards, Inc 206 NLRB 22, 23 (1973), enforcement denied insurance as Harvey s typed notes state 500 F 2d 181 (C A 5, 1974) 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is willing to move from its respective position When such a deadlock is reached between the parties, the duty to bargain about the subject matter of the im- passe merely becomes dormant until changed circum- stances indicate that an agreement may be possible 16 15 Newspaper Drivers & Handlers Local No 372, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind v N L R B, [Detroit Newspaper Publishers Association] v N L R B, 404 F 2d 1159 (C A 6, 1968), cert denied 395 U S 923 16 Transport Company of Texas 175 NLRB 763, 768, enfd 438 F 2d 258 (CA 5, 1971) The negotiations with respect to insurance before March 6 are hardly reflective of best efforts to achieve agreement What occurred was no more than the presentation of a proposal by the Company and its rejection, and "mere re- jection of a bargainable proposal does not create an impasse "62 The fact that Harvey characterized the Company's offer as "final" does nothing to transform what happened at the negotiating table into more meaningful bargaining Indeed, despite that characterization, the Union had no reason to believe that the Company was about to implement its pro- posal and substantial reason to believe that bargaining with respect to insurance had just begun Harvey had re- peatedly told union negotiators that Respondent intended to make no unilateral changes in the absence of a contract, and at no time was there any indication of change in that intention 63 While the Company had expressed agreement in principle that maximum hospital room rates under its insurance should be increased, it took no initiative from the beginning of negotiations in August until the following March 1 to make any proposal for such an increase Even after the Union made its February 12 proposal the Compa- ny indicated that it was still working on its insurance pro- posal, and on February 22 the Company indicated that it still was exploring the subject and looking at other areas besides room rates and those covered by the union propos- al Thus, as of the meeting before March 1, the Company had given no indication of any sense of urgency with re- spect to implementation of insurance improvements, and had assured the Union generally that it would make no unilateral changes The entire discussion of the Company's two counterpro- posals on insurance occurred in relation to the accompany- ing discussion of hours, overtime, and holidays That there was some relationship between these two articles in the negotiations of March 5 was conceded by Stantis and is also indicated by the Company's change in its initial insur- ance counterproposal before the Company received Lang's response beyond his initial reaction Even from Harvey's 62 N L R B v Central Plumbing Company 492 F 2d 1252 (C A 6 1974) 63 Although Stantis testified that he told the Union that he wanted to put the increase into effect immediately, his testimony is uncorroborated, and as set forth below, I have found his testimony as to the insurance change particularly unworthy of credit notes, it appears that the Union's rejection of the company insurance counterproposal was based on its unwillingness to yield the 32-hour provision as its price There were virtu- ally no negotiations over insurance as a separate item rath- er than as a quid pro quo for the 32-hour provision In comparison to other contract terms insurance had been barely discussed when the so-called "final" offer was made As late as February 22, the Company held out the prospect that it was considering insurance improvements other than in the area of room rates Yet when the offers came they encompassed only room rates, and there was virtually no discussion of the other changes sought by the Union before the Company implemented its proposal I would find, without regard to whether the Company had bargained in good faith before March 5, that the im- plementation of the change in insurance on March 6 violat- ed the Company's bargaining obligation and indepen- dently violated Section 8(a)(5) of the Act 64 Of course, absent good-faith bargaining before March 5, no impasse could have occurred which would justify a unilateral change The question remains whether the unilateral change is also indicative of overall bad faith in the Company's bar- gaining As the Company points out, not every unilateral change is indicative of overall bad faith In considering this issue one must look to the reasons given by Stantis for the implementation of the increase in room rates on March 6 and at the communication of the change by the Company to the employees According to Stantis, he did not decide to implement the insurance proposal until the morning of March 6 when he instructed Herlmg to proceed He testified that it was not until Herling called the insurance carrier that he discov- ered that the Company could implement the change retro- actively to March 1 or prospectively effective April 1 Stan- tis testified that he then decided to make it effective March 1 as a matter of good business judgment Stantis testified that he had told the Umon that he want- ed to put the increase in effect as soon as possible and had made variations of that statement going back to the begin- ning of negotiations He testified that the increase was past due for implementation because with every day that passed there was a possible loss to employees because of the low room rate In justification of the decision to implement the change on March 6, Stantis testified that the Umon had rejected the company proposal after it had been offered a number of times He also testified that the $57 proposal had been offered the Union at more than one negotiating session and that it was offered at least three times at two separate meetings This testimony cannot be credited I am mindful that the day after Stantis testified to some of the above, he reported that he had been under medication the previous day which may have affected his testimony How- ever, although given the opportunity to point out the re- spects in which his testimony may have been affected none were pointed out, and no effort was ever made to correct 64 N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products Com pony 369 U S 736 (1962) TELEVISION WISCONSIN, INC Stantis' testimony given on this occasion I am not per- suaded that Stantis' physical condition or medication dis- torted his perception or his testimony But, even if that aspect of his memory were affected by medication, the ob- vious inaccuracy of his testimony as to the history of nego- tiations over insurance would leave his claim of the basis on which he concluded there was an impasse without any foundation Furthermore, the alleged concern for possible employee losses caused by continuation of the low rates flies in the face of the 7-month delay between the Union's initial proposal and the first company proposal Having rejected the explanation given by Stantis, one must turn to that proffered by the Union but denied by Stantis for his sudden haste in resolving the insurance is- sue At the time of the insurance negotiations Stantis' wife was suffering from a medical condition which required her hospitalization and an operation shortly thereafter Ac- cording to Stantis, he had known for some time that his wife had a condition that would ultimately require surgery He testified that on the night of March 6 his wife informed him that she had been to the doctor that day because of a problem and that the doctor told her that she needed the operation and needed it soon According to him, on the next day arrangements were made for her hospitalization, and she entered the hospital on March 12 for an operation which required a stay of 5 days Stantis testified that his wife had not spoken to him about the problem which re- quired the surgery for approximately 1 year before the night of March 6 The Union contends that Stantis' testimony as to the date on which he learned of his wife's condition should be discredited and that Stantis' own need for the protection of the hospitalization insurance65 explains the sudden imple- mentation of the insurance following the March 5 bargain- ing session The Company contends that Stantis should be credited and that the hospitalization of Mrs Stantis shortly after implementation of the increase in room rates is pure coincidence The critical fact is not when Mrs Stantis visited the doc tor but when she first told Mr Stantis of the recurrence of her medical problem, for he had known for some time of her condition and the ultimate likelihood of surgery From the circumstantial evidence as well as my conclusions else where as to other critical matters that Stantis' testimony, particularly as to his motivations, cannot be relied on, I have concluded that Stantis is not to be credited as to when he became aware that Mrs Stantis had a medical problem which might require an operation and the relationship of that knowledge to the unilateral change The sudden change of pace in the insurance negotiations, the lack of support for Stantis' proffered explanation for the unilateral change, the absence of any discussion of other insurance improvements after the Union sought them and the Com- pany indicated that it was considering them, the fact that 65 Stantis and the members of his family were covered by the same group hospitalization policy as the bargaining unit employees 771 the change in insurance was the only unilateral change made during the negotiations, and the absence of any other plausible explanation for the change all support the infer- ence that Stantis knew that he was likely to have occasion to utilize the hospitalization insurance in the near future and that that knowledge played a substantial part in the deviation from the announced policy to institute no unila- teral changes during the negotiations At first blush, implementation of the insurance change for highly personal reasons would appear to reflect venality more than bad faith But on further examination the eleva- tion of Stantis' self-interest above the Company's bargain- ing obligation casts a direct reflection on the Company approach to bargaining This is not to say that Stantis legit- imately could not have sought agreement by the Union to immediate implementation of insurance improvements for Stantis' benefit, but that would have required that Stantis be candid and that he expose the Company to the risk of being asked concessions in return Stantis did neither He did not tell the Union of his need for immediate implemen- tation of the room rate increase and he gave the Union no opportunity to use his need as a lever to gain any other union objective The Company did not bargain over the issue but relied on a pretense of bargaining as a basis for legal posturing, not unlike its reliance on the Union's al- leged waiver of the right to bargain over checkoff, dis- cussed below A further factor reflective of the Company's attitude is the memo it circulated to employees announcing the change The memo makes no mention of the Union and gives no indication that insurance was at least ostensibly a subject of negotiations Rather it portrays the increase as purely the result of internal reappraisal of insurance needs by the Company implemented in the unselfish interest of protecting the employees and their families Indeed the memo itself contains more argument in support of the Company's proposal than the Company advanced to the Union in bargaining Thus, having elected to put the insur ance in effect unilaterally, the Company went further, por- trayed it to the employees as its sole doing, and argued its merits to the employees The overall picture is not that of an employer which aberrationally overstepped the bounds in implementing a change unilaterally while otherwise meeting its bargaining obligations Rather it is of an em- ployer which deliberately removed an issue from bargain- ing to suit its own purpose I find that the implementation of the insurance increase on March 6 was both an indepen- dent violation of Section 8(a)(5) of the Act and further evidence of the Company's bad faith b The checkoff negotiations Early in this decision I found substantial basis for an inference that after agreeing to checkoff in principle in Au- gust 1971, the Company sought to avoid its implementa tion by a series of shifting excuses and then by demanding a service fee as a condition to implementing checkoff The evidence shows that as negotiations commenced and con 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinued the Company continued to shift its positions with respect to checkoff so as to thwart agreement At the outset of negotiations on August 4 then Local President Staven reported that he had arranged a proce- dure for checkoff through the Bank of Madison, which handled Respondent's payroll On August 21 when check- off was next discussed, the Company said that it would charge the Union if it had to make the checkoff deductions but that it would authorize the bank and its bookkeeper to set it up at no cost to the Company unless it involved too much of the bookkeeper's time, in which event it would have to look at it again in reference to the Company's ex- pense The subject was left with the understanding that Staven and Taugher would investigate further the mechan- ics of setting up the procedure with the bank Seemingly there was some progress being made toward resolution of this issue On September 18, in justification of its proposed 10-per- cent fee, Stantis said that the Company had problems in its accounting department and had to try to find means to avoid overburdening it with the checkoff provisions Stan- tis indicated, however, that the Company would drop the fee if CWA could prove that the bank would not charge anything to provide a checkoff service Orr stated that if the bank charged the Company, the Union would pay the charge But Stantis told Orr that the bank would not bill the Union directly, that the Company would have to bill the Union for the cost, and that it would not do that be- cause it was too much trouble On September 25 then Local President Staven reported on his discussions with the bank Staven stated that the bank did not want to deal directly with the Union and outlined the arrangement required The Union would sub- mit the names of the employees who authorized checkoff to the bank, and the Company would have to authorize the deductions The bank would notify the Company as to how much was deducted and from whom The Union would be billed 10 cents per person for the initial set up of the deduc- tions and 10 cents for each change thereafter Stantis indi- cated that the Company would still have to receive some compensation from the Union because whatever the proce- dure, its bookkeeper would be involved, and Stantis want- ed to be reimbursed for her time and effort On September 27 when Stantis raised the subject of dues delinquencies, Stantis indicated that he felt that delinquent dues should be collected before the Company entered into any checkoff agreement From then until December 28, checkoff was not again discussed in negotiations During the first portion of the December 28 meeting in a general review of positions, Harvey asked where the Com- pany and the Union stood with respect to checkoff Lang stated that the Union would not pay 10 percent for check- off and that before it would pay 10 percent it would collect its own dues Although Harvey noted that Lang had waived the Union's rights to bargain further with respect to checkoff, he said nothing about it at the time On January 9, Brown took ea eption to a union state- ment in a memo to members that the Company had re- fused to give it checkoff without a penalty payment and said he was angry because Lang had waived bargaining on checi off a number of weeks before and was now trying to make the Company look like it refused to give the Union checkoff Lang denied that he had waived checkoff 66 On January 22, when the parties met for the first time after the strike began, Harvey gave the union negotiators a list of contract items which he had read to Hackler by telephone on January 16 The list showed checkoff as "waived" Lang again denied that the Union had waived checkoff, but again said that if the Union had to pay the penalty, it didn t want checkoff Later in the meeting checkoff was again discussed The Union proposed that the Company drop the 10 percent requirement or that the Union would pay the actual expenses involved Harvey re- peated that the Union had waived checkoff as a bargain- able item but added that the Company did not want to yield the 10 percent fee at that point in any event On February 5, Lang proposed that the Union would give up its demand for time-and-a half pay for part-time employees working outside their scheduled hours and its proposal for payment to employees for time spent in bar- gaining if the Company would abandon its proposal for a 10 percent service fee for checkoff As to the first item which Lang proposed trading, the parties were in dis- agreement as to whether such payments were required un- der the terms of the original contract, and the Union had been seeking to make the requirement explicit As to the second, the original contract provided for such payments, and Lang's proposal entailed a yielding of a previous bene- fit Lang again stated that the Union would collect the dues itself before agreeing to the 10 percent service fee because it felt the fee came out of the employees' pockets and was unfair Harvey stated that the burden was on Lang's shoul- ders to show that it did not cost 10 percent since the Com- pany felt that it would and they had persuaded Orr and Staven who had attempted to arrange a setup with the bank which the Company had authorized but they were unable to arrange Harvey then told Lang that if he wanted to attempt to set up an arrangement with the bank he was free to do so with the Company's authorization, but that until he could show the Company that it would not cost 10 percent of the dues collected or until the Union gave the Company a carte-blanche agreement that it would pay the Company whatever it cost, the Company would not agree to check- off On February 12, Lang reported that he had spoken to someone in the computer processing division in the bank and that he had learned that there would be some cost in the initial setup but that it would not require more than one hour of the bookkeepers time and thereafter it would cost 10 cents to make each change Lang said that after the initial setup, the bookkeeper would write a single check from the Company to the Union each month Harvey again asserted the position that the Union had waived checkoff as a bargaining matter, but added that if the Union would totally reimburse the Company for the ex- 66 Lang s testimony to this effect is corroborated by Harvey s handwritten notes TELEVISION WISCONSIN, INC penses involved, the Company would consider future bar- gaining on the matter if it would assist the parties in reach- ing an agreement Harvey added further that his statement of position was not to be construed as a waiver of the Company's position that the Union had waived bargaining over checkoff Lang gave Brown the name of the individual he had spoken with at the bank, and the Company agreed that Brown and Herling would talk with him about imple- mentation of checkoff through the bank At the February 22 negotiating session the Company informed the Union that it had a meeting arranged with a bank representative who would attempt to set up a checkoff program for the Company and the Union On March 1 Lang asked what had happened with re- spect to checkoff Stantis replied that he had met with the bank and explored the matter and that at that point, be- cause of the Union's inability to reach agreement on other contract items, the Company would withhold further nego- tiations on checkoff until the end of negotiations for nego- tiation with wages and the management rights clause where, according to Stantis, it normally belonged On March 20, in a review of the positions of the parties, Stantis repeated that checkoff would have to wait to be bargained for with management rights and wages since the Union was adamantly refusing the company request for a 10-percent service fee At this meeting Lang's earlier proposed trade was repeated and rejected On April 16, in the course of a review of the issues to determine which were appropriate for arbitration and which should be negotiated further, the parties agreed that checkoff should not be arbitrated, and the Company ad- hered to its position that the Union had waived checkoff, but in any event checkoff was an economic issue which should be discussed with wages On May 30 checkoff was again discussed and positions were unchanged except that the Company also indicated that it would be in a trading mood on checkoff when they got to wages On June 12, after the parties were aware that a bad-faith bargaining complaint would issue, Harvey proposed that the Company would agree to checkoff with a flat $15 monthly fee in lieu of the 10 percent previously proposed As part of his proposal Harvey asked the Union in return to sign the Company's holiday proposal which would elinu- nate the 32-hour provision from that article Lang replied that the company proposal would gain the Union nothing and rejected it Lang repeated his previously proposed trade, and Harvey countered with an offer of checkoff at no cost to the Union if the Union would give up the 32- hour provision Lang replied that the Company should also assume the full cost of all medical and life insurance The Company rejected that proposal as exorbitant, and Lang rejected the Company's last proposal On June 25 Harvey again proposed the trade of checkoff for the 32 hour provision Lang again rejected it and said the Union might agree to pay a service fee and perhaps as high as $15 a month but not when tied to the holiday pack- age Harvey suggested that Lang evaluate the proposal more carefully and the issue remained unresolved These facts support the inference that throughout negoti- ations Respondent continued to seek to avoid implementa- 773 tion of checkoff and did not negotiate in good faith over that issue Initially in the negotiations the discussion of prospects of implementing checkoff through the bank seemed promising and even after the Company's Septem- ber 15 proposal was presented, Stantis indicated the possi- bility of agreement upon checkoff with no charge to the Union, if the Company would not have to pay for the bank's services Yet when Staven described the arrange- ment in more detail on September 25 and indicated that the Union would pay the bank charges, Stantis then main- tained that its bookkeeper would still be involved and that he wanted to be reimbursed for her efforts On September 27 he made a more fundamental attack on checkoff and argued that delinquent dues should be collected before any checkoff agreement was reached However, the fact that employees were delinquent in their dues was hardly a new discovery, and in fact the delinquencies were a major fac- tor in August 1971, which led to the initial agreement to institute checkoff at that time The successive withdrawals from what appeared to be a basis for agreement on Sep- tember 18 frustrated the possibility of early agreement on this issue For almost 3 months the parties did not discuss checkoff as other issues, the all-union election, and negotiation of the wage agreement dominated the negotiations Then, when it was next raised on December 28, Lang said some- thing which became the basis of a company contention, never abandoned thereafter, that the Union had waived the right to negotiate further with respect to checkoff Al- though there is a dispute between Lang's testimony and Harvey's notes as to what Lang said, there is in fact little difference in their import as to what Lang said Even under Harvey's version it appears that what Lang conveyed was that if it came to payment of a 10-percent service fee, the Union would sooner use other methods to collect its dues Whether or not, as Harvey's typed notes show, Lang added remarks indicating that checkoff was relatively unimpor- tant, nothing in Lang's remarks indicated that the Union was withdrawing its proposal for checkoff without a service fee and was waiving future bargaining on that subject In- deed Lang only said in a slightly different way, what the Union had previously said-that it would not agree to pay a 10 percent service fee The inference is strong that the construction of Lang's remarks as a waiver of future bargaining by a negotiating team, which included an experienced attorney, was not based on a good-faith belief that Lang had waived any- thing but on a desire to create an additional basis for avoiding agreement on this subject Confirmatory of this inference is the silent reaction of the company negotiators to it at the time and the reservation of it as a debating point to be used later, rather than a forthright effort to reach an understanding at the time Although the Company said nothing on December 28, thereafter everytime the issue was raised the Company as- serted that the Union had waived the right to negotiate further on that issue, and even when the Company dis- cussed the merits of checkoff, it carefully preserved its right to rely on the alleged waiver if it so chose, thus clouding all further negotiations over checkoff with uncertainty as to their value 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In February, when it again appeared that there might be possible resolution of the checkoff issue through direct dealings between the bank and the Union, Harvey initially encouraged exploration of this avenue and also suggested as an acceptable alternative to the 10-percent fee an agree- ment by the Union to pay whatever checkoff cost the Com- pany Yet, after the Union and the Company had sepa- rately met with bank officials, the Company again changed its tack Without giving any indication of what it had learned from the bank, the Company took the changed position that the time was not appropriate to negotiate checkoff and that the issue should be deferred until the end of the negotiations when wages and management rights were reached The thaw in checkoff negotiations had end- ed, and a new freeze for a new reason was imposed The explanation offered hardly convinces At least on the sur- face during the negotiations, other than on September 27, the Company did not indicate an objection to checkoff on principle The issue was how much checkoff would cost and whether the Union would agree to bear it There was no general agreement to defer cost items until wage negoti- ations, and only 6 days after the Company drew the cur tarn on checkoff negotiations the Company unilaterally in- creased its insurance costs without waiting for wage negotiations Whatever the news from the bank there was no reason for the Company to conceal it If the news were that cost was substantial, at worst the issue would remain alive and at best the Union would yield on the ground that checkoff was not worth the cost If the news were that it was slight, then it was likely that the Union would asume the cost and that checkoff could be settled Although the record is silent as to what Brown and Herling learned, the record does show what the Union had learned from the same bank officials and there is no reason to belive that Brown and Herlmg learned anything different The inference is strong that the Company withheld what it learned and terminated the discussion to frustrate resolution of an issue that may have been of minor importance as a contract issue but which the Union for good cause believed never should have been an issue at all The fact that the Company later made an additional checkoff proposal supports rather than weakens this infer- ence The Company did not change its position until June 12 when suddenly, despite the fact that wage negotiations had not been reached, Harvey reraised the checkoff issue Harvey made new proposals, first for a flat $15 monthly service fee for checkoff and then for no fee if the Union would agree in return to abandon its efforts to retain what was known as the 32-hour provision from the holiday arts cle of the old contract While at first blush this change in position looks like an effort to reach agreement on check- off, there is good reason to view it otherwise and in any event to disregard it as casting any favorable light back on prior negotiations on this same subject Stantis estimated that the 32-hour provision was worth 96 hours pay per year to bargaining unit employees Even with the 1-1/2 addi- tional holidays the Company had offered, it is difficult to believe that the Company seriously believed that the Union would agree to abandon the 32-hour provision in return for agreement to checkoff without a fee, particularly after the Company had aborted promising prior efforts to reach agreement on checkoff through the bank with the Union to pay bank costs Indeed, the fact that the parties had be- come aware of the pending issuance of a refusal to bargain complaint before this bargaining session suggests that this proposal was made to undo Respondent's refusals to nego- tiate over checkoff after December 28, rather than in a serious effort to settle differences over checkoff c Insistence on the presence of the mediator and negotiations over arbitration Although there is some basis to suspect the motives for Respondent's insistence on the attendance of Kurtz at ne- gotiations as they wore on, I find it unnecessary to consider whether that insistence, or the course of negotiations with respect to arbitration of unresolved issues after March 20 are further indications of bad faith The conduct relied on occurred after the bad-faith bargaining charge and decerti- fication petitions were filed From that time on until is- suance of the complaint, although the Company continued to meet with the Union, Harvey questioned the propriety of negotiating while the decertification petitions were pending and conditioned any agreement to arbitrate or any final collective bargaining agreement upon the outcome of the decertification elections If the petitions validly raised a question concerning representation, then the Company was not obligated to bargain at all during this period 67 On the other hand, if the Company had refused to bargain before the petitions were filed, no question concerning representa- tion could be raised, and the Company's bargaining obhga tion was undiminished by the filing of the petitions 68 In that event, conditioning agreement upon the outcome of an election was itself a refusal to bargain As I have found the latter to be the case, I find that the Company refused to bargain with the Union following the filing of the decertifi- cation petitions by insisting that the decertification election be conducted as a condition to any agreements which might be reached Contrary to the Company's contention I do not find anything in the Union's conduct from the beginning of the strike through issuance of the complaint which explains or justifies the Company's conduct or negates the inferences of bad faith drawn above Few agreements were reached during this period and those which were reached reflected union concessions to changes from the original agreement, albeit the Company in some instances relaxed its original demands in these areas The Company did not relax at all its demands in the critical negotiating areas and again spurned Lang's repetition of his proposed resolution of the seniority in scheduling issue, even when he divorced it from the remainder of his January 16 package proposal Much of the negotiation time during the early part of this period was spent on the hours, overtime, and holiday arti- cle, and although the Union increased its demand in one respect in this area, with respect to the Company's right to 67 Telautograph Corporation 199 NLRB 892 (1972) 68 Stephen Compagno d/b/a Valley Imported Cars 203 NLRB 873 879 (1973) Bradenton Coca Cola Bottling Co 162 NLRB 38 (1966) enfd 402 F 2d 84 (C A 5 1968) TELEVISION WISCONSIN, INC determine starting and quitting time and days off, it made other more conciliatory changes in its proposals The items of disagreement which continued to separate the parties practically all related to further concessions from the terms of the old agreement which the Union was unwilling to make, but there is no evidence to support the conclusion that it was the Union rather than the Company which sought to avoid reaching any agreement or to impose terms upon the Company with which it could not survive 12 Summary of conclusions as to Section 8(a)(5) From the bargaining taken as a whole the conclusion is reached that the Company did not bargain with a serious intent to adjust differences and reach an acceptable com- mon ground Even before negotiations began, Stantis de- veloped a strong animus against the Union and its repre- sentatives, viewing their efforts to enforce the original contract as expressions of malicious hostility on their part, and Stantis determined to change the relationship After agreeing to institute a checkoff procedure in August 1971, Stantis raised shifting excuses for not implementing it and by the eve of negotiations had undermined the agreement in principle to institute checkoff by insisting upon a sub- stantial fee for collecting dues While the Company met at frequent intervals with the Union, it seized upon the filing of the Bednarek charge and the filing of grievances to con- front the Union improperly with choices between pursuing complaints or negotiating and used these events to disrupt and sidetrack negotiations During the first 6 weeks of bar- gaining it gave indication of its views on bargaining issues raised by the Union in only a few areas and remained silent in response to most union proposals, even when it failed to understand them and even when it was at the very time drafting proposals to alter or decrease benefits which the Union sought to improve Then, despite the fact that only 2-1/2 years earlier the parties had reached an initial collective bargaining agreement after months of negotia- tion and despite Stantis' contemporaneous communication of limited negotiating objectives to the parent company president, Mrs Murphy, Stantis presented a comprehen- sive counterproposal which regressively altered in major respects almost every article of the initial agreement and in effect rejected the expiring contract as even a base for ne- gotiations That this counterproposal did not reflect a ne- gotiating position announced and advanced in good faith appears not only from the negotiations and events which preceded it, but from the incredibility of the testimony as to the reasons for the proposal and the anticipated re- sponse to it Within 2 weeks after the Company unveiled its proposal a second major prong of the Company's attack on the Union's bargaining status began to unfold After agreeing to a new union-security provision and initialing it, the Company immediately seized upon it and the provisions of Wisconsin law permitting an all-union referendum during negotiations to create a vehicle for going directly to the employees in an attempt to undermine the Union While the Company in its literature told employees the Union would still represent them regardless of the outcome of the election, at the same time it sought to persuade them that 775 they had no need of the Union and suggested that they could initiate decertification although the Company could not That the Company had more in mind than a simple determination of whether the employees continued to want an all-union contract is additionally made clear from Stan- tis own testimony and his letter to Mrs Murphy concern- ing what he saw as the objective of the referendum and its consequences to bargaining In sum, by the time of the all-union referendum it was clear that the Company was not bargaining in good faith but was seeking either to un- dermine the Union directly and remove it as representative of its employees or to weaken it so severely that it would be forced to choose between no agreement at all and accep tance of the regressive company proposal which would complete the undermining of the Union The union victory in the referendum may have affected company tactics but did not change the Company's objec- tive or usher in good-faith bargaining During the period of the referendum campaign, from Stantis testimony alone it appears that there could have been no meaningful bargain- ing, and after it was over the evidence shows "sophisticated pretense" rather than bargaining While bending here and there to agree to restoration of old contract provisions of the September 15 proposal and resisted the efforts of But- ton to persuade it to give him a narrower list of what the Company really wanted Although it negotiated a wage agreement at Button s urging, the agreement hardly reflect- ed concessions to the Union which might induce or permit the Union to make major concessions to the Company in other areas, and after entering that agreement the Compa- ny quickly reversed any stabilizing effect the agreement might have had by cancelling the extension of the old col- lective bargaining agreement While claiming that it can- celled the agreement to put pressure on the Union to nego- tiate more realistically and abandon its rigidity, the Company rejected longer bargaining sessions, and when the Union finally made a compromise proposal including a concession on seniority in scheduling which the Company claimed was of major importance, the Company rejected the Union compromise proposal out of hand without dis- cussion and refused to defer contract cancellation while it could be explored In the negotiations which followed the beginning of the strike the same pattern continued Despite assurances that the Company would make no unilateral changes without a contract, after long deferral of negotiations over insurance, the Company quickly made a proposal, modified it, and claimed impasse after almost no bargaining to place it in effect in time to meet Stantis' personal need The perfunc- tory nature of the negotiations preceding the claim of im- passe, the lack of candor, and the unwillingness to seek agreement or early implementation based on disclosure of the need demonstrate the sham nature of the Company's negotiating When the Union sought to find a means of agreement on checkoff, the Company claim of waiver and the abrupt refusal to discuss the issue further until wages were reached after company representatives met with bank officials again illustrated that issues and not answers were the company objective in negotiations While the Company points to many features of the union conduct in negotiations as evidence of union bad 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD faith in justification of its bargaining conduct, the evidence shows that the Union was desirous of reaching a new col- lective bargaining agreement and gave substantial indica- tions that it was willing to make concessions Although the Company argues that the changes in negotiators for the Union impeded negotiations, the evidence does not show that the Company's conduct was caused by this or any other of the conduct of the union negotiators relied on by the Company Indeed, the major indicia of the Company's bad-faith bargaining manifested themselves before Orr left the negotiations and before most of the conduct on which the Company relies occurred Accordingly, I have found that the Company did not bargain in good faith throughout the negotiations for a new agreement beginning in August 1973 69 13 The rights of the strikers to reinstatement The General Counsel and the Union contend that the strike which began on January 17 was an unfair labor prac- tice strike and that all of the strikers were entitled to rein- statement at the time of the Union's unconditional request, so that the Company's refusal to reinstate them violated Section 8(a)(3) of the Act The Company contends that the strike was an economic strike caused by the Union's policy not to work without a contract, that the strikers were per- manently replaced, and that in any event, the Union had agreed not to strike for the duration of the negotiations so that the strike was unprotected and the strikers lost their reinstatement rights The evidence shows that the strike was authorized in November and called in January after the Company gave notice of cancellation of the extension agreement It is clear that the strike would not have occurred at that time had the Company not cancelled the extension agreement As found above, cancellation of the extension agreement was part and parcel of the course of bargaining conduct which violated the Act both before and after the strike began and it follows that the strike was an outgrowth of the Company's unlawful conduct and was caused and pro- longed by the Company's unfair labor practices, whether or not it may also have had the objective of enforcing union bargaining demands 70 The question remains whether the strike nonetheless lost its protection because of the no-strike clause contained in the December 18 wage agreement The General Counsel and the Union contend that whatever its meaning, that clause was not intended to bar an unfair labor practice strike and that in any event, it was only intended to pro- vide that if a strike occurred the wage agreement would be void The Company contends that the agreement was in- tended to provide that there would be no strikes of any kind for the duration of negotiations and that if there were the agreement would be void In Mastro Plastic Corp and French American Reeds Mfg Co Inc v N L R B 350 U S 270 (1956), the Supreme Court refused to imply a waiver of the right to strike against the unfair labor practices there involved from a no-strike clause contained in a collective bargaining agree- ment In Arlan's Department Store of Michigan, Inc, 133 NLRB 802 (1961), the Board rejected a broad reading of the Court's decision which have excluded all unfair labor practice strikes from the operation of no-strike clauses and concluded that "only strikes in protest against serious un- fair labor practices should be held immune from general no-strike clauses " 71 The test to be applied in determining seriousness was experience, good sense, and good judg- ment Granting room for disagreement over application of these tests, one cannot view overall bad faith in bargaining as anything but a serious unfair labor practice Collective bargaining is the objective of union organization, and that which frustrates collective bargaining strikes at the heart of the Act I have no doubt that the unfair labor practices in this case constitute serious unfair labor practices within the meaning of the Arlan s decision Respondent contends, however, that even in that event, as Button had accused the Company of bad faith in negoti- ations before December 18, he intended to waive the right to any strike including one against bad-faith bargaining Although Button had accused the Company of bad faith with good cause, Button also continued to entertain hopes of reaching an agreement Quite clearly he did not expect to do so without future good-faith bargaining Whatever else Button may have intended, I cannot find that Button intended to give up the right to strike whether or not the Company continued to bargain in bad faith Apart from the above, I also cannot accept the construc- tion of the no-strike clause as waiving the Union's right to strike for the duration of negotiations even in the absence of a serious unfair labor practice cause Although the Com- pany contends that the language of the no-strike provision is clear and unambiguous, Stantis conceded that it was am- biguous to him at the time he signed it, and in fact the joinder of the two clauses in the no-strike provision by a semicolon leaves substantial doubt as to whether the par- ties intended cancellation as the exclusive consequence of a strike or only as one among other consequences of a strike Both sides presented substantial testimony to support its favored interpretation For the Company Stantis testified that in a chance private conversation with Button as a meeting of the full bargaining committees was breaking up for separate caucuses on December 18, Button made the commitment not to strike directly to Stantis, which Stantis later insured that Harvey got in writing Stantis testified that as he was about to leave the room Button 69 The complaint also alleges that the Company s conduct was designed to cause and did cause employees to resign their membership in the Union The findings above that the Company sought to undermine and weaken the Union warrant the inference that the Company s conduct was designed to cause employees to resign from the Union I find it unnecessary to decide whether it in fact caused their resignations as the ultimate conclusions and remedy would be the same in any event 70 American Steel Building Supply Company Inc 208 NLRB 900 (1974) Stuart Radiator Core Manufacturing Co Inc 173 NLRB 125 126 (1968) Made a comment to me about, let's get this thing set- tled, or words to that effect I don't remember the exact words But, paraphrasing, to which I responded that, Bill, I know you better than that, we're not going to have a wage package And, then, you've got me by the short hairs Something to that effect He said, look, 71 133 NLRB at 807 (1961) TELEVISION WISCONSIN INC 777 don't worry about a thing Look, I'll even give you a promise that we won't strike I says, sure you will Something to that effect He says, look, I'll even put it in writing Some conversation about, there's still a lot left to be done To which he replied, don t worry about it And, that was about the extent of it He also said something about-you and I can get away from this, or leave it alone, or leave it to the other fellows, other-I don t remember the term he used right now And, suggesting that what was left would be no prob- lem whatsoever Harvey testified in support of Stantis that there was anoint meeting attended by both Stantis and Button, and that shortly thereafter Stantis came to his office and told him that Button had offered not to strike for the rest of negotia- tions in return for a wage package Harvey testified that as negotiations proceeded with what was described as a short committee Stantis was not in the negotiating room but that Harvey checked with him from time to time for various matters and each time Stantis reminded him not to forget the no-strike pledge According to Harvey, after everything else was agreed to, the following exchange occurred be- tween him and Button I reminded him, I said, you're not going to strike now, Is that correct Is that what you told Stantis He said, that's correct He said, I'm going to go out and type this up, and I'm going to put that in the document And I want you to know that before I type it He said, I know that And I said, Bill, what happens if you do strike And he said, don t worry about it, Walt, I gave you my word I in not going to strike I said, that's fine, Bill, but right now your word isn't too good for me What happens if you do strike And he said, well, I'll tell you what I'll do If I strike, we'll renegotiate these wages That way you know that I'm not going to strike And I said, alright Then, the agreement is, that you won't strike, and that if you do, this wage package will be voided He said, yes, that's my agreement And I then left the room to go type that document Harvey also testified that as the short committee meeting started, he brought to Button's attention what Stantis told him, and Button said, "If we can reach agreement, here, I will sign a no strike document for the duration of negotia- tions " Harvey drafted the clause which appeared in the agreement signed that night Button denied that there was any full bargaining com- mittee meeting during the afternoon and that he had any occasion to be alone with Stantis or to have a private con- versation with him In the latter respect, Lang also testified that there was no point session of the full bargaining coin mittees that afternoon According to Button, Harvey initi- ated discussion of a no-strike guarantee when Button threatened in the short committee session to strike if no agreement was reached that day When Harvey said he didn't know who to believe between Button and Hackler, who said no strike was set, Button said that he took his orders from Vice President Stevens in Chicago who told him to get a contract or strike Button testified that he then told Harvey they would not strike that night if they could get a wage agreement According to Button later in the day Harvey was still concerned about whether there would be a strike that night and asked Button if he would put it in writing that there would be no strike that night to which Button agreed I find both versions of these events difficult to believe Although Button claimed he was agreeing only that he would not strike that night, the agreement does not say that, and the Union appeared to concede that after it struck the wage agreement was no longer binding If the agreement were as limited as stated by Button, then a strike a month later would not have voided the wage agreement Moreover, while Harvey's minutes leave some doubt as to whether Stantis was in negotiations at all that day, there is one reference to Stantis in the discussion of the talent fee grievance in both Harvey's handwritten and typed notes, and Lang's notes appear to indicate that he was present in negotiations at the same time despite his contrary testi- mony On the other hand the circumstances hardly make plau- sible a waiver as broad in scope as that claimed by the Company Stantis had agreed to negotiate a separate wage agreement weeks before without seeking any guarantee against a strike greater than a 20-day notice The tight posi tion that Stantis claimed he would be in would exist only if there were a binding wage agreement during a strike and not if the agreement were cancelled Only the Friday be fore this meeting, while threatening strike unless total agreement was reached, Button told Harvey it could be avoided if a wage agreement was reached and they contin- ued to operate under the old contract until a new agree- ment was signed At no point in any version of the discus- sion of the no-strike clause on December 18 was there any mention of what would happen if the old agreement, which also contained a no-strike clause, was cancelled While Button was clearly a maneuverer in negotiations and not averse to use of bluffs and threats as negotiating tools, I do not believe that without consulting the employees or any- one else he intentionally and knowingly gave up the em- ployees' rights to engage in a protected strike whether or not the old contract was terminated for as long as any negotiations continued The right of employees to strike is guaranteed by the Act and a waiver of that right is not to be lightly inferred but must be clear and unmistakable Given the circum- stances summarized above, I cannot construe the wage agreement as waiving all rights to strike as long as negotia- tions continued whether or not the extension agreement and existing terms and conditions remained in effect I find that the parties only intended to provide that the wage agreement would be cancelled if the Union struck 72 72 In reaching this conclusion I have rejected the further contention of the General Counsel and the Union that the Company never took the pose tion that the strike violated the wage agreement until long after it occurred Harvey s typed notes for January 15 show Harvey contending that a strike would be a gross violation of the wage agreement and Harvey testified that he said this although he did not remember whether he said it on any other occasion Although Harvey s handwritten notes do not show this statement or a great deal of the discussion which surrounded it and I credit Lang that the words attributed by Harvey s notes to Lang immediately after Harvey s Continued 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the above, I find that the employees who struck on January 17 were unfair labor practice strikers who were entitled to reinstatement upon request On June 29 Lang sent the Company a letter notifying it that the strike was terminated The letter further stated "The Union hereby informs the company that all of the employees whose names appear on the following list un- conditionally offer to return to work at the company's Madison, Wisconsin facilities and requests on behalf of these employees that the company immediately return them to their former positions of employment' The letter then listed the names and addresses of all the strikers named in the complaint in Case 30-CA-2416 Although the Company responded on July 6 that it did not consider the request unconditional, there is no foundation for that claim A further letter from Lang on July 9 stressed the unconditional nature of the request Although there was much discussion of reinstatement and efforts by the Com- pany to persuade the Union to narrow its request and make it more realistic, the Company never responded to Lang's second letter and no striker was reinstated I find that since June 29 the Company has failed and refused to reinstate any of the strikers to their former or substantially equivalent employment In its answer in Case 30-CA-2416 the Company alleged as a defense that the strikers engaged in various acts of strike misconduct for which cause the Company refused to reinstate them At the hearing evidence was first taken from all parties with respect to all allegations of the corn plaint except the reinstatement issues raised by this de- fense At the conclusion of that evidence on motion of the Company, supported by the Union but opposed by the General Counsel, I ordered that the hearing of further evi- dence on these issues be postponed pending briefing and preliminary decision as to the nature of the strike and the Company's obligation to reinstate The General Counsel appealed from that Order, and the Board reversed direct- ing that the hearing be resumed and the taking of evidence be completed At the resumed hearing, the Company took the position that a ruling on its motion to dismiss made at the close of the evidence on the other issues was required, that it was error to deny it such a ruling, and that it would not proceed with its defense on the reinstatement issues until its motion was ruled upon In its brief, the Company requests a ruling that it may litigate its reinstatement de- fenses after ruling herein on its motion That request is denied as it is clearly contrary to the Board's ruling revers mg the original postponement The Company also asserts that without further litigation Barry Bauman and Jon Hecox should be denied any rein- statement rights because they were discharged during the statement are words Lang never used Lang s testimony as to the time and reason that he asked Button about the meaning of the no strike clause on dermine his denial that the Company ever took the position that a strike would violate the wage agreement I do note further however that there is no evidence that the Company ever repeated this statement of position on any other occasion and Harvey s notes show that on January 22 at the first negotiations after the strike started when Harvey pointed out that the wage agreement was cancelled he said nothing about the strike being in violation of that agreement strike and the General Counsel refused to issue a com- plaint alleging that their discharges violated Section 8(a)(3) in Case 30-CA-2294 However, subsequently, based on the charge in Case 30-CA-2416, the General Counsel issued a complaint alleging that all the strikers, including Bauman and Hecox, were unfair labor practice strikers who were discriminatorily denied reinstatement Whatever the prem- ise of the earlier action, the prior refusal to issue a com- plaint is not determinative of their status, and the Compa- ny was not relieved of any further obligation to defend against their reinstatement In its brief the Company also contends that those em- ployees who participated in slowdown activity before the strike began lost any reinstatement rights because that ac- tivity was unprotected and an employer may logically re fuse to reemploy them after termination of the strike I reject that contention as a clear afterthought and without merit In its amended answer in Case 30-CA-2416 expand- ing on its affirmative misconduct defense, no mention was made of this alleged ground for denial of reinstatement Moreover, during the prestrike period Respondent failed to discipline any of the employees involved, save for the sus- pension of Kirschnik, and did not even warn them of the possibility of discipline if their conduct continued It is clear that their prestrike activity played no part in the dens al of their reinstatement In the light of the above I find that the Company's refus al to reinstate all of the strikers listed in Appendix A below violated Section 8(a)(3) of the Act 73 14 The civil action filed against employees by the Union The complaint in Case 30-CB-602 alleges that the Union violated Section 8(b)(1)(A) and (2) of the Act by entering into and maintaining the union-security provision of the original contract between the Company and the Union and by resort to the April damage action filed against employees who resigned from the Union as a means of enforcing the union-security provision, as a means of reprisal against these employees for having filed a decertification petition and as a means of assessing and collecting fines against employees for having worked dur- ing a strike It will be recalled that the original contract between the Union and the Company contained a union-security clause which made membership in good standing a condition of employment for all employees covered by the contract ex- cept clerical employees The contract set forth five condi- tions necessary to maintain good standing and provided that any employee whose membership was terminated by the Union for failure to observe these five conditions would not be retained in the bargaining unit The five con- ditions were He shall pay dues or assessments properly established, or fines properly imposed, or other financial obliga- tions to the Union or Local under this Agreement 73 The parties agreed that all those whose names appear in the original complaint in Case 30-CA-2416 except Pam Johnson were employees and went on strike During the hearing the complaint was amended to delete Pam Johnson s name from the list TELEVISION WISCONSIN INC He shall not work without proper Union authorization during the period of a properly approved strike, in or for an establishment which is being struck by the Union or Local He shall not support or assist any other labor organi- zation in connection with a claim of jurisdiction in conflict with jurisdiction of the Union He shall not support or assist any person, group of persons or organizations in any act or activities for the purpose of seeking or obtaining the decertification or replacement of the Union as collective bargaining rep- resentative, and He shall not be immune from penalty by reason of the position or office the member may hold in the Union or any Local thereof Patently the union-security clause exceeded the limited form of union security permitted by the proviso to Section 8(a)(3) of the Act As it was entered into more than 6 months before the charge was filed, the allegation based on entering into this agreement is untimely under Section 10(b), but its maintenance through January 17, 1973, with in the 10(b) period violated Section 8(b)(1)(A) of the Act 74 Between November 16, 1972, and January 13, 1973, 11 employees sent letters of resignation from the Union to Button One of these employees, Eileen Traeder, was em ployed in the clerical unit All those who resigned, except Traeder, wrote that they considered the union-security clause coercive and unlawful and that they would remain current in any payments that could lawfully be required but did not intend to observe any other obligations of membership Traeder pointed out that she was an optional member and resigned completely and unequivocally Button sent replies to eight of the resigned members, not including Traeder, informing them that the contract re- quired that they remain members of the Union for the life of the agreement, and in some of his letters he stated that resignation from the Union "will forfeit your fob " It is clear that Button sought to enforce the union-securi- ty provision and thereby violated Section 8(b)(2) and (1)(A) of the Act On or about April 25 the Union served a complaint in a state court action against 10 of the resigned members, in- cluding Traeder 75 The complaint alleged that the individu- al defendants in violation of the collective bargaining agreement with the Company, in violation of their obliga- tion as union members, and in concert with the Company, resigned from the Union while the agreement was in full force and effect, refused to participate in the strike, and circulated a decertification petition among the employees of TV Wisconsin in order to undermine the relationship between the Union and its members, to destroy its status as bargaining representative and to interfere with its contract with the Company The complaint further alleged that the employees willfully and maliciously violated the collective 74 Local 1474 1 Pipe Coverers International Longshoremen s Association (J R H Insulating Co Inc) 147 NLRB (1964) The reasons for omission of the Ilth member who resigned do not appear 779 bargaining agreement and their union obligations in con- cert with the Company and that they deliberately and mali- ciously conspired with each other and the Company to in- terfere with and undermine the right of the Union to represent the Company's employees and to deprive the Union and its members of the benefits and protection of a collective bargaining agreement The Union sought $150,000 in damages by way of relief On August 5, 1974, after removal to the United States district court and after the close of the hearing in the in- stant case, the complaint was dismissed on motion on the alternate grounds that the court's jurisdiction was preempt- ed and that the complaint failed to state a cause of action On its face the Union's complaint was based on the union-security clause of the expired contract and sought to enforce through a damage action the obligations imposed thereby upon the defendants to remain members in good standing as defined therein, to refrain from decertification activity, and to refrain from crossing the picket line 76 I find that the filing of the state court action was a further attempt to enforce the invalid provision The General Counsel's contentions go beyond this find- ing and would ascribe unlawful motive and malicious in tent to the Union in filing the action There is little evi- dence save the filing of the action itself and its contents to shed any light on these contentions, and the General Coun- sel appears to rely on inference from these facts to support its contentions Since the Union was seeking to enforce the provisions relating to decertification activity and crossing picket lines, the Union's intent clearly was to have dam- ages assessed against the employees for these activities and it may be inferred that a purpose was to coerce and restrain them in the further exercise of their rights to engage in such activity There is, however, no evidence from which to con elude that the action was conceived or brought in malice or bad faith The question remains whether the filing of an action which has a coercive purpose or seeks enforcement of an unlawful clause may be viewed as a violation of the Act In Clyde Taylor Company d/b/a Clyde Taylor Company, 127 NLRB 103, 109 (1960), the Board held that while the threat by an employer to resort to courts a, a tactic to restrain employees in the exercise of Section 7 rights violated the Act, an actual suit did not because "the Board should ac- commodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than con- demn the exercise of such right as an unfair labor prac tice " Recently in Retail Clerks Union Local 770 (Hughes Markets, Inc, and Saba Prescription Pharmacy), 218 NLRB 680, 683 (1975),77 the Board cited and followed Taylor and found that an action to enforce an arbitrator's award, 76 Although the contract had expired as of the start of the strike and before the decertification petition was filed the evident premise was that the purported resignations from the Union were invalid because of the union security clause and that therefore the obligations of union membership con tinned after expiration of the contract Although the union security clause did not apply to Traeder she was not treated separately from the others in the complaint and the conclusions below as to restraint and coercion are even more compelling as to her than as to the other nine defendants 77 See also Los Angeles Building & Construction Trades Council AFL- CIO International Brotherhood of Electrical Workers Local 11 (Noble Elec tric) 217 NLRB 946 (1975) 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which adopted an interpretation of a contract clause viola- tive of Section 8(e) of the Act, did not itself violate the Act, because it was brought "in good faith to enforce a color- able contract right and was not the kind of tactic calculat- ed to restrain employees or employers in the exercise of rights guaranteed by the Act " At the same time, however, in cases arising out of at tempts to fine union members for crossing picket lines after resignation, the Board has found that both the fines and attempts atjudicial enforcement violate Section 8(b)(1)(A) of the Act, and its decisions have been enforced 78 Insofar as appears, the apparent inconsistency between these deci- sions and Taylor has not been addressed,79 but the ratio- nale of the Retail Clerks case indicates that despite reliance on Taylor therein intent has become determinative 80 While I entertain some doubt that the filing of the action by the Union in this case would have been reached under the original Taylor doctrine, the results in the fine cases and the rationale of the Retail Clerks case lead me to the conclusion that its holding has been substantially modified and that the Board has narrowed its accommodation of its enforcement of the Act to the right of all persons to litigate their claims in court Since I have found that the Union's purpose was to enforce the unlawful union-security clause and to restrain and coerce the defendants in the court ac- tion in the exercise of their rights to cross the picket line and file a decertification petition, I find that by filing the court action the Union violated Section 8(b)(l)(A) of the Act 81 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce 78 Granite State Joint Board Textile Workers Union of America Local 1029 AFL-CIO (International Paper Box Machine Company) 187 NLRB 636 (1970) affd 409 U S 213 Booster Lodge No 405 Intl Assn of Machin ists and Aerospace Workers (The Boeing Company) 185 NLRB 380 (1970) enfd as modified 459 F 2d 1143 (C A D C 1972) 412 U S 67 (1973) 79 The line of cases exemplified by Communications Workers of America Local 9511 (Pacific Telephone and Telegraph Company) 188 NLRB 433 (1971) which finds no violation in bringing suit to enforce an unlawful fine where the fine became final outside the 10(b) period clearly rests on Local Lodge 1424 International Association of Machinists AFL-CIO et al v N L R B 362 U S 411 (1960) and not on Taylor Since all suits to enforce fines are not unlawful the illegality of the fine being enforced could only be shown by proving a violation outside the 10(b) period 80 In Taylor the Board distinguished between threat to sue and the filing of a suit without seemingly distinguishing between the intent behind them 81 In reaching this conclusion I have considered the fact that I have found elsewhere that the decertification petition did not raise a question concern ing representation because of the Company s bad faith bargaining and that the strike was caused by the Employers unfair labor practices But the Union s remedy for those unfair labor practices was against the Employer and not the employees The employees rights to file a decertification peti tion and to refrain from striking are not diminished because the petition does not raise a question concerning representation or because the strike is in protest of unfair labor practices V THE REMEDY Having found that the Company engaged in certain vio- lations of Section 8(a)(1), (3) and (5) and that the Union engaged in certain violations of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As the Company has refused to bargain in good faith with the Union as the representative of the employees in the appropriate bargaining units, I shall recommend that it be ordered to bargain collectively with the Union, upon request, and in the event that an understanding is reached to embody such understanding in a signed agreement As I have found that the strike which started on January 17, 1973, was an unfair labor practice strike and that the strikers requested unconditional reinstatement on June 29, 1973, which was denied, I shall recommend that the Com- pany be ordered to offer them immediate reinstatement to their former positions or if those positions are not available to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired to replace them It is further recommended that the Company be ordered to make whole those employees who went on strike on January 17, 1973, for any loss of pay they may have suffered by reason of the Company's refusal to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period commencing 5 days after June 29, 1973, the date on which the unconditional request for reinstatement, less net earn- ings, to which shall be added interest at the rate of 6 per- cent per annum, in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) The General Counsel and the Union both contend that as part of the make whole remedy the Company should be required to reimburse the employees for all losses suffered because of cancellation of the December 18 wage agree- ment, which would result in wage increases retroactive to October 1, 1972, for all work performed after that date and in the computation of backpay for strikers for the period after the request for reinstatement, at the rates set forth in the wage agreement The remedy sought here differs from those sought in United Steelworkers of America AFL-CIO [H K Porter] v NLRB , 397 U S 99 (1970), and Ex Cel lo 0 Corporation, 185 NLRB 107 (1970), where no agree- ment was ever reached but the contention was made that the Board should determine and award benefits that would have been agreed to but for the unfair labor practices Here an agreement was reached While the Board lacks power to compel parties to agree to terms or make concessions, it does not lack power to compel them to honor agreements reached and then repudiated 82 There is nothing specula- tive about the award sought, and no concession is com- pelled which the Company did not make One cannot say with absolute certainty that the Union would not have struck and voided the wage agreement even if the Compa- 82 N L R B v Strong d/b/a Strong Roofing & Insulating Co 393 U S 357 (1969) NLRB v Hyde 339 F 2d 568 (C A 9 1964) NLRB % George E Light Boat Storage Inc 373 F 2d 762 (C A 5 1967) TELEVISION WISCONSIN INC 781 ny had bargained in good faith, but as the Company's bad- faith bargaining prevents us from knowing what result good-faith bargaining might have achieved, the Company cannot be heard to complain 83 Accordingly, I shall order that the Company pay all employees retroactive backpay for the difference between what they were paid and what would have been due them under the rates provided in the December 18 agreement effective October 1, 1972 I shall further order that the backpay accruing to strikers who were denied reinstatement be computed at the rates set forth in the December 18 agreement The Union also requests that the Company be ordered to submit unresolved issues to arbitration Although it con- tends that the parties had agreed to such arbitration, I am not persuaded that the record shows that such an agree- ment was reached The Company offered to agree to arbi- tration if a number of conditions were met, but it withdrew its offer before the conditions were met Furthermore, whatever agreement in principle as to arbitration may have been reached, it was tied to a back-to-work agreement which was never reached and it was conditioned upon agreement on the issues to be submitted to arbitration Ac- cordingly, I find that to compel arbitration as part of the remedy herein would impose an agreement on the Compa- ny which it did not make The Union also contends that the Company should be ordered to reimburse the Union and the Government for attorney fees incurred in litigating the Company's unfair labor practices While the Board has held that it will award litigation expenses where defenses are frivolous,84 it has rejected requests for such awards where the issues raised in defense are debatable even where in retrospect the unfair labor practices found may be characterized as flagrant, ag- gravated and pervasive 85 Here, not only do the findings against the Company depend in some measure upon reso- lution of credibility issues, but the inferences to be drawn from the credited evidence are clearly debatable even if the debate has been resolved against the Company According- ly, I shall reject the request of the Union that the Company be required to reimburse the Union and the Government for legal expenses In Case 30-CB-602 the General Counsel and the Charg- ing Party contend that the Union should be ordered to reimburse the individual defendants in the civil action for legal expenses incurred in defending against the action The Charging Party also contends that the Union should be ordered to reimburse the Charging Party for litigation expenses before the Board It is argued that the individual defendants were required to retain counsel and were thereby indirectly fined by the Union to the extent that they incurred legal expenses The argument continues that just as the Board would order reimbursement of any fine directly collected, so also it should order that employees be made whole for such indi- rect fines However, while the Board has noted the coercive effects of suits to enforce fines and has found them viola- 83 See N L R B v Remington Rand Inc 94 F 2d 862 872 (C A 2 1938) 84 Tudee Products Inc 194 NLRB 1234 (1972) enfd as modified 502 F 2d 349 (C A D C 1974) 85 Heck s Inc 215 NLRB 248 (1974) tive of Section 8(b)(1)(A), in no case found has it ordered a respondent to reimburse fined members for legal expenses incurred in defending a suit to enforce a fine, although in each case it has ordered reimbursement for fines collect- ed 86 Unlike a fine collected by the Union, the legal expen- ses incurred by the individual defendants did not accrue to the Union In the light of the above and the prevalent "American rule" against providing legal expenses to the prevailing party in a lawsuit from the loser, 7 I reject the Charging Party's contention that legal expenses incurred in the civil action should be equated to fines for remedial purposes I also reject the theory of the General Counsel that these expenses should be reimbursed on the grounds that the civil action was maliciously instituted in the light of my finding above that the evidence fails to establish that claim Furthermore I reject the contention of the Charging Par- ty that its litigation expenses before the Board should be reimbursed on the ground that the Union's defense consti- tutes "frivolous litigation " Given the close question of the applicability of the Clyde Taylor case to the allegation of the complaint based on the Union's civil action, I cannot agree that the Union's litigation of this case was frivolous See Heck s Inc, supra For all of the above reasons I reject the requests that the Union be ordered to reimburse the individual defendants in the civil action and the Charging Party for litigation expenses incurred in the civil action and in this proceeding CONCLUSIONS OF LAW 1 Television Wisconsin, Inc, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 At all times material hereto, Communications Work- ers of America, AFL-CIO, has been the exclusive bargain- ing representative within the meaning of Section 9(a) of the Act of the employees in the following described appropri- ate units All employees engaged in the production of television programs at the Madison, Wisconsin, facilities of Television Wisconsin, Inc, including production de partment employees, engineering department employ- ees, performers, continuity writers, news photogra- phers and maintenance employees, excluding office clerical employees and receptionists, sales department employees, confidential employees, guards and super- visors as defined in the Act All office clerical employees and receptionists em- ployed at the Madison, Wisconsin, facilities of Televi- sion Wisconsin, Inc, excluding all confidential em ployees, professional employees, guards, and supervisors as defined in the Act 86 See e g Textile Workers Union of America Local 1029 supra Booster Lodge No 405 (The Boeing Company) supra Retail Clerks Union Local 1179 (Alpha Beta Acme Markets) 211 NLRB 84 (1974) 87 Alyeska Pipeline Service Company v Wilderness Society 95 S Ct 1612 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 By failing and refusing on and after August 4, 1972, to bargain collectively in good faith with Communications Workers of America, AFL-CIO, as the representative of the employees in the above-described units, Respondent Company engaged in and is engaging in unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act 5 By warning employees that they would be disciplined for soliciting signatures on an employee petition and by interrogating an employee about her intentions to remain in the Union and strike, Respondent Company has en- gaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act 6 The strike of Respondent Company's employees which began on January 17, 1973, was caused by and has been prolonged by Respondent Company's unfair labor practices found herein 7 By refusing to reinstate the unfair labor practice strik ers whose names are listed in Appendix A on and after June 29, 1973, upon their unconditional request, Respon- dent Company has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act 8 By maintaining and enforcing a collective bargaining agreement requiring employees as a condition of employ- ment to meet obligations to the Union beyond the payment of periodic dues and initiation fees uniformly assessed and by bringing suit against employees to enforce those obliga tions of membership, Respondent Union has engaged in and is engaging in unfair labor practices within the mean- ing of Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the Act Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 88 A Respondent Television Wisconsin , Inc, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively in good faith con- cerning rates of pay, hours of employment , and other terms and conditions of employment with Communications Workers of America, AFL-CIO, as the exclusive represen- tative of the employees in the appropirate units described in paragraph 3 of the section of the Decision entitled, "Conclusions of Law ' (b) Discouraging membership in Communications Workers of America , AFL-CIO, or in any other labor or- ganization of its employees, by refusing to reinstate, upon 88 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order here n shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes their unconditional request, any of its employees engaged in concerted activities as unfair labor practice strikers (c) Threatening employees with discharge or other repri sals for engaging in protected union or concerted activities (d) Interrogating employees about their intentions with respect to union membership, striking, or other union or concerted activity (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Communications Workers of America, AFL-CIO, as the exclusive collective-bargain mg representative of all the employees in the appropriate units described above, and, if an agreement is reached, em body it in a signed contract (b) Offer immediate and full reinstatement to their for mer positions or, if those positions no longer exist to sub stantially equivalent positions, without prejudice to their seniority or other rights or privileges, to all those employ- ees who went on strike on January 17, 1973, whose names are listed in Appendix A, dismissing if necessary any per sons hired on or after that date (c) Make whole all the employees referred to in para graph (b) above, for any loss of pay they may have suf- fered as a result of Respondent Employer's refusal to rein state them in the manner set forth in the section of this Decision entitled "The Remedy," and make whole all em ployees who worked for Respondent after October 1, 1972, for wage increases lost as a result of the strike in the man ner set forth in the same section of this Decision (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rele- vant and necessary to a determination of compliance with paragraphs (b) and (c), above (e) Post at its Madison, Wisconsin, place of business, copies of the attached notice marked "Appendix B 89 Copies of said notice on forms provided by the Regional Director for Region 30, after being duly signed by Respon- dent Employer's representative, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ ing all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, de- faced, or covered by any other material (f) Notify the Regional Director for Region 30, in writ ing, within 20 days from the date of this Order, what steps have been taken to comply herewith B Respondent Communications Workers of America, AFL-CIO, its officers, representatives, and agents, shall 89 In the event that the Boards 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 TELEVISION WISCONSIN, INC 1 Cease and desist from (a) Maintaining, giving effect to, or attempting to en- force through civil court action or otherwise article XXI, sections 1, 3, and 4 of its collective bargaining agreement dated May 1, 1970, with Television Wisconsin, Inc, insofar as it requires any employee as a condition of employment to refrain from filing a decertification petition or crossing a picket line or to perform any obligation of union member ship other than tender of the periodic dues and initiation fees uniformly required as a condition of acquiring and retaining membership in Respondent (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Terminate, if still pending, its civil action brought against employees on or about April 25, 1973, seeking en- forcement of the contract provisions described in para- graph 1(a) above (b) Post at its office copies of the attached notice marked Appendix C " 90 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to mem- bers are customarily posted Reasonable steps shall be tak- en by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material (c) Deliver to the Regional Director for Region 30, signed copies of said notice in sufficient number to be post- ed by Television Wisconsin, Inc, the employer willing, in all places where notices to employees are customarily post ed (d) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith 90 See In 89 supra APPENDIX A The following named employees are entitled to reinstate- ment and backpay in accordance with the provisions of this Decision and Order Jonas Antoine Guy Apell Steve Bailey Barry Bauman Tom Clark Bruce Ellinger Jill Geisler John Hecox Robert Kirschnik Mike Kulis Ed Malcheski Howard Olson David Prozzo Delmer Schleuter Tom Schuyler Wilmer Streblow Richard Taugher Bob Whitinger Donna Winter Joseph Witt Walter Ziegler APPENDIX B 783 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively con- cerning rates of pay, hours of employment, and other terms and conditions of employment with Communications Workers of America, AFL-CIO, as the exclusive representative of all the employees in the appropriate units described below, and if an agreement is reached, WE WILL embody it in a signed contract The appropriate units are All employees engaged in the production of tele- vision programs at the Madison, Wisconsin, facil- ities of Television Wisconsin, Inc, including pro- duction department employees, engineering department employees, performers, continuity writers, news photographers and maintenance employees, excluding office clerical employees and receptionists, sales department employees, confidential employees, guards, and supervisors as defined in the Act All office clerical employees and receptionists employed at the Madison, Wisconsin, facilities of Television Wisconsin, Inc, excluding all confi- dential employees, professional employees, guards, and supervisors as defined in the Act WE WILL offer immediate and full reinstatement to their former positions, or if those positions no longer exist to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, to the following employees who struck on January 17, 1973, and who were denied reinstate- ment upon an unconditional request on June 29, 1973 Jonas Antoine Guy Apell Steve Bailey Barry Bauman Tom Clark Bruce Ellmger Jill Geisler John Hecox Robert Kirschnik Mike Kulis Ed Malcheski Howard Olson David Prozzo Delmer Schleuter Tom Schuyler Wilmer Streblow Richard Taugher Bob Whitinger Donna Winter Joseph Wit Walter Ziegler WE WILL make each of the above-named employ- ees whole for any loss of pay he may have suffered as a result of our refusal to reinstate him and WE WILL make whole all employees who worked for Re- spondent after October 1, 1972, for wage increases lost as a result of cancellation of the December 18, 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1972, wage agreement between us and Communica- tions Workers of America, AFL-CIO WE WILL NOT threaten employees with discharge or other reprisals for engaging in protected union or concerted activities WE WILL NOT interrogate our employees about their intentions with respect to union membership, striking, or other union or concerted activity WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist Communications Workers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, or to re- frain from any and all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Sec tion 8(a)(3) of the Act, as amended APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, give effect to, or attempt to enforce through civil court action, or otherwise, the union-security provision of our collective bar- gaining agreement with Television Wisconsin, Inc, dated May 1, 1970, insofar as it requires any em- ployee as a condition of employment to refrain from filing a decertification petition or crossing a picket line or to perform any obligation of union member- ship other than tender of the periodic dues and initi- ation fees uniformly required as a condition of a acquiring and retaining union membership WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights guaranteed by Section 7 of the National La- bor Relations Act, as amended TELEVISION WISCONSIN, INC COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO