CBS Inc.

CBS INC. 537 CBS Inc. and International Brotherhood of Electrical Workers, AFL-CIO, and Local 4, Local 45, Local 202, Local 1200, Local 1212, Local 1220, and Local 1228, International Brotherhood of Electrical Workers, AFL-CIO. Case 31-CA-5587 later amended by the various Charging Parties, alleges that Respondent, CBS Inc., has engaged in unfair labor practic- es within the meaning of Section 8(a)(5) and (1) of the Act. Briefs have been duly submitted by the parties. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: October 19, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 23, 1976, Administrative Law Judge Mar- tin S. Bennett issued the attached Decision in this proceeding. Thereafter, Charging Parties and Gener- al Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief, cross-ex- ceptions, and supporting brief. Charging Parties also filed an answering brief to Respondent's cross-excep- tions. 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 and briefs and has decided to affirm the rulings, findings, and conclusions ' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. ' We do not adopt any suggestion by the Administrative Law Judge to the effect that the IBEW was acting in bad faith in seeking to add NABET representatives to its bargaining team Nor do we adopt the Administrative Law Judge's continents with respect to NABET's duty to disclose informa- tion it might receive on a confidential' basis as a result of its participation in such bargaining. DECISION STATEMENT OF THE CASE FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS CBS Inc. is a New York corporation engaged in radio and TV broadcasting. It annually ships goods and per- forms services valued in excess of $50,000 outside of New York. I find that the operations of Respondent affect com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Electrical' Workers, AFL- CIO, and its various Locals as named in the complaint, as well as National Association of Broadcast Engineers and Technicians, AFL-CIO, herein NABET, are labor organi- zations within the meaning of Section 2(5) of the Act. They are respectively referred to as IBEW and NABET. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Issue There is but one issue herein. From 1938 to.1951, IBEW and Respondent have been signatory to a series of collec- tive-bargaining agreements originally covering broadcast technicians in the radio industry. IBEW was certified by the Board in 1951 for a nationwide unit of broadcast tech- mcians and, in 1952, Respondent and IBEW entered into an agreement covering both radio and television techni- cians. Since that time they have regularly entered into col- lective-bargaining agreements. In 1972, the parties entered into a contract expiring Sep- tember 30, 1975. The sole issue herein is whether during negotiations for a subsequent contract Respondent unlaw- fully refused to bargain with the Union, more. specifically that Respondent rejected the attempt of IBEW to have on its bargaining team representatives of NABET. The latter has no contractual relationship with Respondent, but does have contracts with Respondent's two key competitors, namely NBC and ABC. B. Sequence of Events Of some relevance to the instant dispute are the negotia- tions for the previous 1972-75 contract. At that time, CBS proposed certain changes by which it aspired to assume leadership in the use of new electronic equipment. IBEW MARTIN S. BENNETT, Administrative Law Judge: This agreed to relax contractual provisions in return for the dis- matter was heard at Los Angeles, California, on February closure of information deemed confidential by Respon- 24 and 25, 1976. The complaint, issued on December 5 dent. More particularly, this involved information concern- based on an original charge filed on September 11, 1975, ing the use of a new camera; indeed, CBS had a monopoly 226 NLRB No. 85 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the use of this camera in a visit of the President of the United States overseas in 1974.1 It is undisputed that IBEW had recognized the confiden- tial nature of the new technology developed and utilized by CBS. Pursuant to the 1972 contract, the parties agreed to quarterly consultation meetings and there is no evidence that IBEW heretofore has ever breached the confidentiality of information gleaned from these meetings; none of these meetings, it may be noted, had ever been attended by rep- resentatives of NABET. Turning to negotiations for the 1975 agreement, accord- mg to the uncontroverted testimony of Vice President James Sirmons of Respondent, and I so find, Respondent planned to provide IBEW with confidential information concerning its plans in the production field. For example, Respondent planned to propose changes to IBEW's juris- diction over electronic work with three new electronic in- put devices; none of these were then available to the com- petitors of Respondent. Similarly, in the news field, Respondent intended to sub- mit proposals broadening the use of personnel in at least four specified categories. Respondent believed that confi- dentiality was imperative so as to gain lead time over its competitors. It is undisputed that confidentiality concern- ing trade secrets and business plans would indeed give Re- spondent a temporary competitive advantage over its two key competitors, albeit the rest of the industry would ulti- mately catch up and this indeed has taken place, subse- quent to the events treated herein. C. The 1975 Negotiations In mid-July 1975, IBEW and Respondent commenced collective-bargaining negotiations in Ossining, New York, for a new contract. Respondent presented contract de- mands, not involving the disclosure of confidential infor- mation, to a negotiating committee including solely IBEW personnel. Pursuant to agreement, they met again in San Diego, California, on September 3. On the following day, as Re- spondent stresses, IBEW for the first time in 35 years of bargaining history introduced as members of its bargaining committee two members of IATSE, a labor organization in the radio and television industry. Respondent did object to their presence on the premise that good-faith negotiations would be impeded due to the existence of jurisdictional disputes and contradictory claims between these two labor organizations. Recognizing that IATSE did enjoy representation of some employees of CBS and was duly signatory to con- tracts with CBS, the latter did continue to bargain while representatives of IATSE were present. This acquiescence by Respondent as to the composition of the bargaining committee apparently fell afoul of the plans of IBEW because on September 8 IBEW introduced i ABC and NBC apparently did not enjoy the use of this equipment until September 1974 and CBS now utilizes more of these cameras than either of the-other two networks In essence, simply stated, CBS was able to broad- cast live coverage directly whereas its competitors, utilizing older equip- ment, transported film to base facilities for processing and editing and this resulted in ensuing delay Nolan, an International representative and vice president of NABET, as a member of its bargaining committee. Again, as stressed by Respondent, NABET enjoyed no contracts with Respondent, but did represent employees of the latter's key competitors, namely NBC and ABC. Re- spondent therefore contends that because support of its proposals would require disclosure of details concerning highly confidential technological matters and business plans the presence of the NABET representatives whose allegiance perforce was to employees of the two archrival networks would inhibit in a most direct and obvious man- ner the bargaining process. On September 8 a Mrs. Wolfe, it may be noted, also attended. She worked for an indepen- dent radio station and was an assistant to the business manager of IBEW Local 1212; because of her affiliation with IBEW, Respondent did not seriously challenge her presence and indeed excused same. IBEW persisted on the participation of a NABET repre- sentative; Respondent responded by filing a charge that this was violative of Section 8(b) of the Act; this was.reject- ed by the Regional Director and an appeal to the General Counsel was similarly rejected. Respondent and IBEW met in San Diego from September 8 through 30, 1975. Respon- dent refused to negotiate because of the presence-of NABET personnel and, as indicated, this is the gravamen of the instant charge. D. Subsequent Meetings IBEW came forward with a ploy in an effort to placate Respondent. On or about, September 16, it proposed that they negotiate with respect to proposals not requiring the disclosure of confidential information. Respondent resisted this, inter alia, on the basis which I deem axiomatic, that meaningful collective bargaining perforce requires a give and take balance of respective positions with ultimate reso- lution of the contract upon the entire composite picture. I am not aware of any authoritative decisions that such bar- gaining in limbo is supported. In any event, it appears that IBEW did not come for- ward with a full-fledged contract proposal. Moreover, as Respondent contends, it has no collective-bargaining rela- tionship with NABET, unlike that with IBEW.2 At an ostensible bargaining meeting held on September 19, Nolan was replaced as a member of the union bargain- ing group by a Mr. Lynch, International president of NABET. On or about that date, as well as thereafter, no representatives of IATSE were present at the negotiations. There was a brief bargaining meeting on September 22 during part of which Lynch of NABET was absent from the room. Bargaining did take place, but it was discontin- ued upon the return of Lynch to the scene. Later, on or about September 24, Respondent proposed that the parties meet in subcommittee so as to exchange information pending agreement on a new contract. IBEW declined, stating that all the negotiations had to take place across the bargaining table and in the presence of a repre- 2 I am at a loss to appreciate the argument that NABET representatives would remain silent and disregard their primary duty of fair and full repre- sentation to its constituents who are employed by two key rival networks. CBS INC. 539 sentative of NABET. Thereafter, IBEW and Respondent agreed to extend the 1972 contract for a 5-month period through February 29, 1976. E. 1976 Negotiations The parties resumed negotiations at Santa Barbara, Cali- fornia, without the presence of any union representatives other than IBEW personnel. These took place between January 6 and 21 and later in San Diego between January 28 and February 4, 1976. It is undisputed that during these meetings Respondent presented the identical proposals as well as supporting confidential information which it had intended to present during the abortive 1975 meetings. Sir- mons, an impressive witness for Respondent, uncontrovert- edly testified that these-proposals with supporting confi- dential data took up approximately 75 percent of the bargaining time in 1976. I so find. As noted, on November 20, 1975, Respondent and the Union had executed an interim agreement extending the contract, expiring September 30,-1975, through February 29, 1976, with wages and overtime to be agreed upon retro- active to October 1, 1975. F. Analysis and Conclusions The General Counsel manifestly relies upon the decision in General Electric Company v. N.L.R.B., 412 F.2d 512 (C.A. 2, 1969) where the circuit court in effect enforced a refusal-to-bargain order where the employer resisted bar- gaining with a union negotiating committee which includ- ed representatives of other labor organizations. But endem- ic therein is the fact that all these other labor organizations represented employees of General Electric in other units. And the facts herein are stronger in behalf of Respondent because of the introduction of a representative of NABET which represented no employees of Respondent. To the contrary, NABET represented only employees of two archrivals of Respondent, namely NBC and ABC. It defies credence that such a representative would ignore his responsibility to his constituents. Indeed, had he done otherwise, this might properly lead to charges of unfairly representing or acting in derogation of established respon- sibilities, a most basic conflict of interest. In my judgment, this case at the very least constitutes exceptional circum- stances which buttress the position of an employer so as to warrant a departure from the General Electric doctrine, su- pra. In essence, as Respondent contends, and I so find, under the unique circumstances of this case, the composition of the bargaining committee of IBEW perforce constitutes a "clear and present danger to the bargaining process." In- deed, even under the decision of General Electric, at 519, it is acknowledged that there could be a conflict of interest so as to make good-faith bargaining impractical. Still later, at 520, the court acknowledged that a showing of the clear and present danger to the collective-bargaining process could constitute a defense to a refusal-to-bargain allega- tion. Still later, at 522, the court held that the record did not demonstrate a clear and present danger to the bargaining process requisite to overcome the burden imposed on one who objected to the bargaining representatives selected by the other party. The court went on to honor as members of the bargaining committee personnel of other labor organi- zations who enjoyed contracts with General Electric. But even in General Electric, the court held that it would not impose a blanket prohibition on interunion coopera- tion, as found by the Board, but the circuit court then ac- knowledged the right of an employer to demonstrate a clear and present danger to the bargaining process. In my judgment, this has been done in the present case. It may further be noted that at a meeting IBEW pro- posed that a general pledge of confidentiality be executed by all sides. On the posture most favorable to IBEW, Re- spondent CBS took the position that this was not adequate protection against the disclosure of trade secrets. I concur, because, as indicated, the representative of NABET had a primary allegiance to his constituents who were employed by the two archrivals of Respondent. And, as is obvious, a breach of such a pledge of confidentiality by a representa- tive of NABET would have caused irreparable injury by depriving Respondent of competitive advantages. In sum, the inclusion of a NABET representative on the bargaining committee during the 1975 negotiations, as stated, consti- tuted a clear and present danger to meaningful collective bargaining.3 In view of the foregoing considerations, I shall recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. CBS Inc. is an employer whose operations affect com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO, and Local 4, Local 45, Local 202, Local 1200, Local 1212, Local 1220, and Local 1228, International Brotherhood of Electrical Workers, AFL-CIO, and NABET are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER4 The complaint is dismissed in its entirety. 3 Respondent has also pressed the argument that the Charging Parties do not enjoy a statutory right to select whomever they wish as members of their negotiating committee and has argued in support of this view in its brief Therein, it has sought to make a distinction between rights guaranteed un- der Sec 8(b)(1)(B) of the Act and under Sec 7 thereof In view of the findings made heretofore, I deem it unnecessary to pass on this issue 4In 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 herein 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