Taft Broadcasting Company, WBRC-TV

TAFT BROADCAST ING COMPANY Taft Broadcasting Company, WBRC-TV and Inter- national Brotherhood of Electrical Workers, Local 253. Cases 10-CA-16426 and 10-CA- 17185 September 28, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND JENKINS On February 12, 1982, Administrative Law Judge Leonard N. Cohen issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions, supporting briefs, and answering briefs. Respondent also filed a motion to reopen the record, and the General Counsel filed a brief in opposition to Respondent's motion. 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, briefs,' and motion2 and has decided to affirm the rulings, findings, 3 and conclusions4 of the Administrative Law Judge only to the extent consistent herewith ' Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 Respondent has moved to reopen the record to receive into evidenlce three collective-bargaining agreements which were executed by the par- ties on October 30. 1981, after the hearing closed in this case. Respondent argues that, because the parties have now reached agreement and have signed contracts embodying this agreement, we should not find that Re- spondent violated Sec. 8(a)5) by its prior conduct. We find no merit in this argument, since dealing directly with employees tends to undermine the Union's status as exclusive representative and to inhibit the parties from reaching agreement Tarlas Mfeat Company, 239 NLRB 1400 (1979). Respondent further argues that, in view of the execution of these con- tracts, ant order remedying its previous refusal to bargain is unwarranted. However, we filld that this does not constitute an extraordinary circum- stance which would warrant reopening the record, under the standards set forth in Sec. 102,48 (d)(l) of the Board's Rules and Regulations, Series 8. as amended. Thus, although the evidence which Respondent seeks to adduce has only become available since the close of the hearing, receipt of this evidence would not require a different result in our con- clusions, as we have found above. Moreover, evidence that Respondent has already fulfilled its bargaining obligation can be presented during compliance proceedings. Accordingly. Respondent's motion to reopen the record is hereby denied. Chairman Van de Water would grant Respondent's motion to reopen the record and admit the three collective-bargaining agreements as evi- dence that a remedial bargaining order would serve no purpose in the circumstances of this case. His dissent as to the necessity of a remedial bargaining order herein is set forth in fil. 5, infra. : In par. 4 of sec. IlI,A,2, of his Decision, the Administrative Law Judge incorrectly stated that unit employees received their paychecks with the wage increase on January 23, rather than on January 21, 1981 We therefore correct this inadvertent error. 4 In adopting the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(aX5) by unilaterally granting unit employees a wage increase, we find it unnecessary to pass on the comments in sec. llI.B,2(bl, of his Decision regarding Helvertia Sugar Cooperative. Inc.. 234 NI.RB 638 (1978) 264 NLRB No. 28 and to adopt his recommended Order, 5 as modified herein.6 The General Counsel has excepted to the Ad- ministrative Law Judge's conclusion that Respond- ent did not violate Section 8(a)(5) of the Act by ne- gotiating an individual employment contract with unit employee Bruce Burkhardt, without prior notice to or consultation with the Union. The Ad- minstrative Law Judge found that Burkhardt was a member of the Union's negotiating committee be- cause he attended one bargaining session, that Re- spondent advised him to contact the Union before signing the individual contract, but that he chose to ignore this advice. The Administrative Law Judge concluded that, in these circumstances, it would be inequitable for the Union to complain that its status as exclusive bargaining representative had been ab- rogated. Contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(5) and (1) of the Act by dealing directly with Burkhardt and bypassing the Union. The Administrative Law Judge apparently con- cluded that Burkhardt was an agent of the Union because he attended one bargaining session and that therefore he had a duty to notify the Union of the negotiations he had entered into with Respond- ent; however, the record does not support the find- ing that Burkhardt was an agent of the Union. Al- though Union Business Manager Walton testified that Burkhardt had attended the February 20, 1981, bargaining session, Walton testified further that, "I try to get everybody in that I can into negotiations because I think it's important that they be there at one time or another, if it's at all possible." Re- spondent's only witness who testified about the February 20, 1981, bargaining session, News Direc- tor Hayes, did not even mention Burkhardt as one of the individuals present at the meeting and testi- fied that three other individuals were present as the Union's representatives. Clearly, Burkhardt's mere ' Chairman Van de Water agrees with the Administrative l aw Judge's conclusion that Respondent violated Sec. 8(a)( 5) by refusing to meet and bargain with the Union hetwseen October 20. 1980. and January 15. 1981; however, he notes that this was merely a transitory violation which has since been remedied by Respondent. Inasmuch as Respondent has already bargained with the Union and has signed three separate collective-bar- gaining agreements covering the unit employees involved herein, he would find that the remedial bargaining order recommended by the Ad- ministrative Law Judge is now moot anid would s -rse no purpose in the circumstances of this case 6 We have modified the Administrative Law Judge's recommended Order to follow and remedy the actual violations found and to add a pro- vision requiring that Respondent cancel the unilateral wage increases if requested to do so by the Union; however. our Order should not be con- strued as requiring Respondent to cancel any wage increase without a re- quest from the Union See Gardena Buena 'enrtura..In d/b/a 41ondra Nursing Home and Convalescent Hospital. 242 NILRB 595 at fn. 1 (1979). and Bellinghamnl rozen fo ods. u Division f San Juan Puckers. 237 NLRB 1450. 1467 at fn 30l (1978) We have also modxified the Administrative Law Judge's notice to conform to our Order. 185 DECISIONS OF NATIONAL l.ABOR RELATIONS HOARD attendance at one bargaining session as an employ- ee observer, without any other evidence that he spoke on behalf of the Union or was authorized to do so, did not render him an agent of the Union. Furthermore, if Burkhardt was not an agent of the Union, Respondent's statements to him did not constitute notice to the Union, and he was under no obligation to notify the Union of Respondent's negotiations with him regardless of Respondent's suggestions that he do so. Rather, it was Respond- ent's duty to notify the Union of its intent to nego- tiate an individual contract with Burkhardt. There- fore, Respondent's failure to notify the Union before entering into negotiations with a unit em- ployee about his wages and working conditions violated Section 8(a)(5) and (1) of the Act. 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, as modi- fied below, and hereby orders that the Respondent, Taft Broadcasting Company, WBRC-TV, Birming- ham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Add the following as paragraph l(c) and relet- ter the present paragraph l(c) as paragraph l(d): "(c) Dealing directly with bargaining unit em- ployees and bypassing the Union as the exclusive bargaining representative of the bargaining unit employees." 2. Add the following as paragraph 2(b) and relet- ter the following paragraphs accordingly: "(b) Upon the Union's request, cancel the unilat- eral wage increase granted to bargaining unit em- ployees in January 1981. and cancel any unilateral changes made in the terms and conditions of em- ployment of Bruce Burkhardt." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPi.OYESIs POSTED BY ORDER OF IHEI NATIONAIL LABOR RFLATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WIL L NOT fail or refuse to meet and bar- gain collectively with International Brother- hood of Electrical Workers, Local 253, as the exclusive bargaining representative of our em- ployees in the appropriate unit described below with respect to rates of pay. wages, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understand- ing in a signed agreement. The bargaining unit is: All news department employees including film developers, excluding the secretarial news employees and all other office clerical employees, guards and other technical per- sonnel covered by union contract, the assist- ant news director and all supervisors as de- fined in the Act. WE WIl l. NOT unilaterally and without prior notification to or consultation with Interna- tional Brotherhood of Electrical Workers, Local 253, grant wage increases to bargaining unit employees. WE WILL NOT deal directly with bargaining unit employees and bypass International Broth- erhood of Electrical Workers, Local 253, as the exclusive bargaining representative of our bargaining unit employees. WE WILl NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. WE WILL, upon request, meet and bargain collectively with International Brotherhood of Electrical Workers, Local 253, as the exclusive bargaining representative of our employees in the appropriate unit described above with re- spect to rates of pay, wages, hours of employ- ment and other terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agree- ment. WE WILL, upon request by International Brotherhood of Electrical Workers, Local 253, cancel the unilateral wage increase granted to bargaining unit employees in January 1981, and cancel any unilateral changes made in the terms and conditions of employment of Bruce Burkhardt. TAFT BROADCASTING COMPANY, WBRC-TV 186 TAFT BROADCASTING COMPANY III. THE ALLEGED UNFAIR I.ABOR PRACTICES STATEMENT OF THIE CASIL LEONARD N. COHEN, Administrative Law Judge: This matter was heard before me on September 9, 1981,1 in Birmingham, Alabama, pursuant to complaints issued on January 9 and August 25 in Cases 10-CA-16426 and 10- CA-17185, respectively, by the Regional Director for Region 10 of the National Labor Relations Board. The complaints, which were consolidated for hearing by Order also dated August 25, are based upon charges filed by the International Brotherhood of Electrical Workers, Local 253, herein referred to as the Union, on November 14, 1980, and July 16, 1981. The complaint in Case 10-CA-16426 alleges, in es- sence, that Taft Broadcasting Company, WBRC-TV, herein referred to as either the station or Respondent, has, since October 20, 1980, refused to give effect to the Union's timely filed notification of its intent to terminate the collective-bargaining agreement due to expire on No- vember 30, 1980, and has refused the Union's request to meet and bargain with it over a new agreement in viola- tion of Section 8(a)(5). The complaint in Case 10-CA- 17185 alleges that Respondent further violated Section 8(a)(5) by unilaterally and without notice to the Union implementing an across-the-board wage increase to its employees on January 23, and unilaterally and without notice to the Union negotiating an employment contract with an individual employee. Respondent filed timely an- swers which denied the commission of any unfair labor practices. All parties appeared at hearing and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. Upon the entire record, together with my careful observation of the de- meanor of the witnesses, and after careful consideration of post-trial briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is, and has been, at all times material, a Delaware corporation with an office and place of busi- ness in Birmingham, Alabama, where it is engaged in commercial radio and television broadcasting. During the past calendar year Respondent derived revenue in excess of $100,000 from its operation and during the same period subscribed to national wire services and de- rived revenue in excess of $25,000 from advertising na- tionally sold products. Accordingly, Respondent admits and I find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent admits and I find and conclude that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. Unless otherwise indicated. all dates are 1981. A. Facts2 I. Contract renewal issue Since mid-1973, Respondent's news department em- ployees have been represented by the Union and have been covered by several collective-bargaining agree- ments, the last of which was in effect from December 19, 1975, through November 30, 1980.3 Article I-Duration-N- o Strike Or Lock Out-Scope of Work- Union Membership. Article I of this agreement provides the following pro- visions relating to its termination: Section I-This agreement shall take effect Decem- ber 1, 1975 and remain in effect through November 30, 1980. It shall continue in effect from year to year thereafter unless changed or terminated in the way later provided herein. Section 2(a)-Either party desiring to amend or ter- minate this agreement must notify the other in writ- ing at least sixty (60) days prior to the 30th of No- vember 1980 or sixty (60) days prior to the 30th of November of any year thereafter. On September 15, 1980, the third Monday of the month, James Walton, a full-time employee of the station and business manager for the Union, met with the bargaining unit employees and a consensus was reached at that time that the Union should terminate the existing agreement and bargain for an entirely new contract. 4 On Saturday, September 27, Walton drafted a letter to Richard Ste- phen, Respondent's general manager, notifying him of the Union's decision.5 On Monday afternoon, September 29, Walton went to the post office in the town he lives in, Adamsville, Alabama, and sent the letter by certified mail." Adamsville is located approximately 17 miles from Birmingham. The letter was not delivered to the station until October 2, after timely notice was required to be received under the terms of the collective-bargaining agreement. By letter dated October 20, Respondent, by Stephen, notified the Union that Respondent did not consider the notice timely filed and that henceforth the existing con- tract was automatically renewed through November 30, 2 Unless specifically noted, the material facts are not in dispute. 3 The parties stipulated that. when they negotiated their first contract in 1973, they modified the certified unit description to reflect the particu- lar circumstances present at the station. The appropriate unit as stipulated to is as follows: All news department employees including film developers, excluding the secretarial news employees and all other office clerical employ- ees, guards, other technical personnel covered by union contract, the assistant news director and all supervisors as defined in the Act. 4 The Union represents other station employees in a separate unit apart from the news department. Walton is covered by this other agreement. 5 When asked why he waited almost 2 weeks before preparing the letter, Walton explained simply that he was busy. 6 Although the contract does not require it, the Union has, in the past, always used certified letters when it wishes to give Respondent official notice of a matter it considers important, DECISION 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981. While conceding that the Union's notice was not timely filed, the General Counsel argues that Walton, by mailing the letter on September 29, reasonably believed that it would be delivered on or before October 1. In this regard Walton testified that 4 years earlier he sent, also on September 29, a similar notification to Respondent concerning termination of the other unit's contract and that a copy of this letter was received in the Union's Bir- mingham office on September 30. Walton's testimony and the accompanying documents does not indicate from where Walton mailed the letter or whether the copy sent to the Union's Birmingham office was also sent by certi- fied mail. All we do know is that, if that notice was not timely received, Respondent did not raise the issue. In further support of the reasonableness of Walton's belief that the Union's notice would be received in timely fashion, the General Counsel called Lyman Amos, a claims paying agent employed by United States Postal Service in Birmingham. According to Amos, Walton's letter to Respondent, under normal delivery time, should have been delivered on September 30, the next day. 2. The January pay raises In early January, Stephen and John Hayes, the sta- tion's news director, decided that, in order to avoid fur- ther loss of skilled personnel in the news department, all regular employees would be given a raise. Accordingly, on January 9, Hayes individually called each employee into his office and informed him of the raise, which was retroactive to December 1, 1980. While readily conceding that the Union was not noti- fied or consulted about the raises, Respondent, nonethe- less, contends that its unilateral action was expressly au- thorized by article III, section 5, of the collective-bar- gaining agreement. This provision first specifies that wage rates provided for in the agreement refer only to the minimum compensation to be paid. Secondly, it states, "It is understood that the station may, at its option, compensate employees over the above rates on the basis of ability and merit." Although Hayes testified that in granting the wage raises he was attempting to differentiate among the var- ious jobs and pay more to those employees performing more difficult tasks, the record evidence indicates that, with minor exceptions, the majority of the 20 unit em- ployees each received a raise of approximately $25 a week. 7 Although there was some confusion on Walton's part, it does not appear that he gained knowledge of the pay raises until some time after the news department employ- eesreceived their paychecks on January 23. In this regard, I reject Walton's testimony that he was told in general terms of the pay raises on January 15 by Ste- phen. Both Stephen and Hayes specifically denied that either made any such reference to Walton. In crediting Stephen and Hayes, I note that their versions are more consistent with subsequent events than is Walton's. Moreover, their denials are, if anything, against Re- ' Hayes testified that the maximum received by ally employee was a $35 to $40 raise. Respondent, despite clearly having the payroll records available to it which would have removed any factual uncertainty from this area, failed to introduce such records. spondent's own interest and, therefore, are more likely to be true. 3. Negotiations during 1981 On January 14 Walton requested a meeting with Ste- phen to again propose negotiations. 8 Stephen could not meet with Walton that day but did agree to meet with him on the following day. On January 15 Stephen and Hayes met with Walton and several members of the union committee. When Walton demanded that Respondent renegotiate the con- tract, Stephen responded that while they still considered the contract automatically renewed, he was willing to discuss any subject the Union wished. During the course of the meeting Walton was asked to prepare an agenda for use at a subsequent meeting to be held on February 10. As noted above, the credible evidence establishes that the January pay raises were not discussed during this meeting. On February 209 the parties met at the offices of the Federal Mediation and Conciliation Service (FMCS) in Birmingham. Respondent was represented at this meeting by Frank Stewart, a corporate attorney from Ohio, and Hayes.' 0 At the start, each side agreed that by meeting they were not prejudicing their respective positions con- cerning the contract renewal question. During the course of the meeting the Union presented Respondent with a list of some 19 changes that it sought from the old con- tract. Each of these items was discussed with the parties reaching tentative agreement on several of the items. One of the Union's demands involved a pay raise with a cost-of-living adjustment given each year on the anniver- sary date of the agreement. The demands did not specify a proposed time frame for the agreement and none was discussed. Likewise, there was no discussion at this meet- ing of the January pay raise. The parties next met on June 26, again in the offices of the FMCS. The record does not indicate why the parties waited some 4 months before holding their second nego- tiation session, and neither side appears to blame the other for this lengthy hiatus. In any event, at this meet- ing Respondent presented a written counteroffer which included a wage and benefit offer providing for a renew- al of the present agreement for a 5-year term effective December 1, 1980."1 This offer was to be held open until July 3. During the course of the meeting Respondent's counterproposals were discussed and again tentative agreements were reached on certain items. The parties agreed to meet again on August 3. 2 The scheduled August 3 meeting was not held since the PATCO strike prevented Respondent's attorney, Stewart, from traveling to Birmingham. Nonetheless, in early August the Union presented another set of written " Walton testified that he renewed this request for negotiations at this time since the initial complaint had just issued on January 9 u By mutual agreement, the meeting of February 10 had been post- poned. i' Stephen was unable to be present at this meeting. " Again the January pay raises were not discussed at this meeting. 12 Although the record is far from clear, it appears that sometime fol- lowing the June 26 meeting and before the deadline date of July 3, the union membership met and rejected Respondent's counteroffer 188 TAFT BROADCASTING COMPANY demands with proposed changes in the contract to Re- spondent. The parties agreed to another meeting at FMCS for a date in mid-September, following the hold- ing of the instant hearing 4. Negotiations of an individual contract with Bruce Burkhardt In April John Hayes, pursuant to recommendations of a market research consultant. approached Bruce Burk- hardt and suggested the possibility that Burkhardt be reassigned from general reporting duties to feature re- porting. Since the proposed change would involve differ- ent duties and responsibilities, as well as requiring on- the-air promotion, Hayes suggested that Burkhardt sign a personal service contract committing him to stay with the station for at least a year. These discussions contin- ued between Hayes and Burkhardt, and, in late May, Burkhardt met with both Hayes and Stephen when he was presented with a written contract for his signature. Burkhardt asked for and was granted a few days to con- sider the matter, and on June 1 he signed a 1-year agree- ment which provided for a substantial pay raise. All three testified that, during their meeting in late May, Burkhardt, either on his own or in response to a question, indicated that he wished to remain a member of the bargaining unit and that Stephen and/or Hayes indi- cated that that presented no problem. Additionally, Ste- phen and Hayes credibly testified that they suggested that Burkhardt check the matter out with the Union for himself.' :' Burkhardt, who served on the Union's bar- gaining committee and attended the February 20 bargain- ing session, apparently failed to do so for, later in June, Walton was informed that Burkhardt had signed an indi- vidual employment contract. The parties stipulated that between the period com- mencing in January 1979 and through September 1, 1980, the employment contract of Burkhardt was the only such contract in existence at the station. While Hayes testified that such individual contracts are standard in the broad- cast industry for specialty reporters, no evidence was of- fered as to whether or not the station had ever utilized such agreements. B. Analysis i. Notice to terminate The General Counsel contends that Respondent violat- ed Section 8(a)(5) by treating the contract as having been automatically renewed and by refusing to meet and bar- gain from October 20 to January 15, 1981, in good faith with the Union concerning the terms and conditions of a new agreement. While conceding that the Union's notice was not timely received, the General Counsel, relying on United Electronics Institute of Iowa, 222 NLRB 814 (1976), argues that mitigating circumstances exist which prevent the automatic renewal of the contract and give rise to the bargaining obligation. Respondent, relying on Sawyer Stores, Inc., 190 NLRB 651 (1971), and also or Koenig Brothers, Inc., 108 NLRB 304 (1954); and Vapor Recovery Systems Company, 133 i' Burkhardt did noil tstify regarding Ihis suggestion. NLRB 580 (1961), enforcement denied 311 F.2d 782 (9th Cir. 1962), contends that timely notice is a precondition to bargaining and in the circumstances of this case no grounds exist which would excuse the Union's admitted failure to give the timely notice required by the contract. The parties do not agree on the last date on which notice could be effective to forestall automatic renewal. Article 1, section 2(a), specifically requires a party to notify the other at least 60 days prior to November 30, 1980. The parties' use of this phrase "prior to" clearly in- dicates an intent to exclude November 30 in calculating the required 60-day period. Therefore, counting back- wards, there are 29 days in November and all 31 days in October. Accordingly, to have been timely, notice would had to have been received by September 30 and before October 1. A careful reading of the cases cited by both counsels persuade me that the facts in the instant cases are more closely analogous to those in United Electronics, supra, than those in Sawyers Stores, supra. While it is true that provisions relating to automatic renewal of contracts are to be "strictly construed," it is also true that the Board will consider mitigating circum- stances in determining the timeliness of the notice. If the notice is delayed by conditions beyond the control of the sender, such untimely notice may prevent the automatic renewal. In United Electronics, supra, the union sent a notice to terminate an agreement by registered mail from West Des Moines, Iowa, to Louisville, Kentucky, 3 days prior to the onset of the insulated period. Although the letter arrived at the Louisville post office on February 28, the post office mistakingly did not attempt to deliver the union's letter on March 1, but instead waited until March 3 to do so. Thereafter, the employer notified the union that it considered the notice untimely and, therefore, not requiring it to negotiate a new contract. In finding that the employer violated Section 8(a)(5), the Board found that the union's letter could have been delivered in a timely fashion on March 1. The Board further found that it was reasonable for the union to assume that a timely delivery would be possible since in the past it had mailed letters as late as February 27, which were received by March 1. In discussing the past history of the parties, the Board specifically noted that the union made no attempt to notify the employer of its intention to modify the agreement. In Sawyer Stores, the Board reached a contrary conclu- sion when it affirmed the Trial Examiner's finding that, since timely notice was not given, the contract automati- cally renewed itself. There, the union mailed a certified letter from Casper, Wyoming, to Billings, Montana, on November 5. The Billings post office did not place the envelope into the employer's post office box until some- time during the day on November 6. The Trial Examiner found that for the employer to have had timely notice, under that contract's provisions, there would had to have been a 60-day period between November 6 and January 4, the contract's expiration date. He further found that, since the letter was not placed in the post 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office box by 12:01 a.m. on November 6, the full 60-day notice was not given. Like the situation in United Electronics, the Union herein could reasonably assume that its notice, which was mailed on September 29, would be delivered to and received by Respondent before the end of the following day. This assumption was based on Walton's similar ex- perience in 1976 and is confirmed by a local official with the postal service. That the Union chose to notify Re- spondent by registered letter, a procedure not required by the contract, rather than utilizing either regular first class mail or hand delivery is, like the Union's failure to notify Respondent at some earlier point in time of its future intentions, an insignificant consideration. The feature that most distinguishes the instant case from the factual setting in Sawyer Stores, supra, is that there the union's notice, which was not mailed until No- vember 5, would had to have been received by the em- ployer by midnight of November 5 to forestall automatic renewal. Not even the postal service's most ardent advo- cate would contend that its service meets that stringent standard of efficiency. As noted, the Union here left suf- ficient time for the post office to have made a timely de- livery."4 For the reasons set forth above, I find that it would be inequitable to penalize the Union for this delay which was beyond its control, and find that Respondent, from on or about October 20, 1980, to on or about Janu- ary 15, 1981, failed and refused to bargain in good faith with the Union concerning the terms and conditions of employment of the bargaining unit employees. 2. The January pay raise In defending against this allegation Respondent offers both a procedural, substantive defense, which it argues absolves it of any liability for its unilateral action in granting a weekly pay raise to all unit employees. While the procedural defense of Section 10(b) is available to Respondent irrespective of the ultimate conclusion reached with regard to the contract extension issue, Re- spondent's substantive defense, which is grounded on a provision in the collective-bargaining agreement, is ad- mittedly available to it only if the contract were deemed to be automatically renewed. a. 1he 10(b) definse Although Respondent individually informed each em- ployee on January 9 that he or she would be receiving a retroactive pay raise, the Union did not file a charge al- leging this conduct as unlawful until July 16, more than 6 months later. Therefore, Respondent now argues that this allegation is time-barred by Section 10(b). 14 The two other cases cited by Respondent. loapor Recovery Systems,n Co., supra, and Koenig Brothers. Inc.. 5upra, are distinguishable from the instant case and not inconsistent with the Board's subsequent holding in United Electronics. In Vapor Recovery. the union's timely mailed notice was incorrectly addressed to a nonagent employee of the employer and not actually received by an agent for the employer until sometime well within the 60-day insulated period, In Koenig, the Board rejected the em- ployer's argument that the union, by its subsequer. conduct, waived the time defect in its notice While the time factors there are similar to the instant case, there is no indication that the employer there sought to excuse itself on other "mitigating" grounds. Section 10(b) is a statute of limitations and is not juris- dictional in nature. It is an affirmative defense and, if not timely raised, is waived. McKeeson Drug Company, 257 NLRB 468 (1981), Vitronic Division of Penn Corporation, 239 NLRB 45 (1978). Here, the issue of the timeliness of the charge was not pleaded nor specifically litigated at the hearing and Respondent first raised this defense in its post-hearing brief filed with me. In arguing against having this defense struck as untimely,' 5 Respondent contends that the General Counsel's failure to object at the hearing to the introduction of evidence concerning the date on which the January raises were granted en- larges the issue to include this unpleaded affirmative de- fense. In countering this contention, the General Counsel argues that to permit, at this late state, the raising of the 10(b) defense would prejudice the Government's case. The General Counsel states that had he been notified at the hearing that Respondent intended to assert this de- fense, he possibly would have been able to clarify the issue by extensive cross-examination or the use of rebut- tal witnesses. A review of the circumstances in this case convinces me that the General Counsel's argument regarding preju- dice to his case has merit. While each bargaining unit employee was individually informed of his pay raise on January 9, the evidence does not disclose whether any of these employees knew or had reason to know that his pay raise was part and parcel of an across-the-board raise. Therefore, if the employees were unaware of the true nature of the Respondent's actions, the General Counsel would be in a substantially stronger position to argue that the 10(b) period did not commence running until Walton or some other union official was informed of the true facts. See Southeastern Michigan Gas Compa- ny, 198 NLRB 1221 (1972). In view of my conclusions regarding contractual renewal and the 10(b) defense, I need not reach this specific question. Respondent advances no reason for failing to plead or raise the 10(b) issue at hearing. Although the complaint alleges that the pay raises were not given until January 23, Respondent was at all times in possession of the in- formation that the raises were actually announced to the employees on January 9. Accordingly, I consider the 10(b) defense as waived. McKeeson Drug Company, supra. b. Waiver by contract Respondent next contends that by agreeing to article III, section 5, of the collective-bargaining agreement, the Union waived the obligation of Respondent to bargain before granting the raises in question. As noted above, Respondent, apart from the 10(b) defense, concedes that this issue is not even reached if the contract is not con- sidered as automatically renewed. Inasmuch as I have previously so determined, I need not and do not pass on this contention. I do note in passing, however, that the 1I Subsequent to the filing of briefs, the General Counsel filed a motion to strike the 10(b) defense portion of Respondent's brief. Thereaf- ter, Respondent filed a motion for leave to file an amended answer and a memorandum in opposition to the General Counsel's motion to strike. Still later. the General Counsel filed a response to Respondent's motion and memorandum. 190 TAFT BROADCASTING COMPANY case relied on by Respondent, Helvetia Sugar Corperative, Inc., 234 NLRB 638, 643 (1978), as being "indistinguish- able from the instant case" is, in my view, so factually distinguishable as to be of little value as precedent here. Accordingly, in view of the above, I find that Respond- ent violated Section 8(a)(5) when, in January, it unilater- ally and without consultation or bargaining with the Union granted all bargaining unit employees a retroac- tive pay raise as alleged in the complaint. 3, Individual contract with Burkhardt While Respondent admittedly did not contact Walton regarding Burkhardt's entering into a personal services contract, Burkhardt was a member of the union's negoti- ating committee and, in that capacity, had attended the February bargaining session at the Federal Mediation Conciliation Service. Moreover, at the late May meeting in Stephen's office, Burkhardt was specifically advised to contact the Union to discuss the proposed contract prior to his entering into it. Burkhardt chose to ignore this advice and later signed the contract without notice to or consultation with the Union. In these circumstances it would be inequitable for the Union to now complain that its authority and status as the bargaining unit employees' representative was unlawfully abrogated. Accordingly, I recommend that this complaint allegation be dismissed. IV. il. Ri MFI I)Y Having found that Respondent refused to bargain in good faith with the Union, I shall recommend that it be ordered to cease and desist from such practices and affir- matively to bargain with it upon request in the appropri- ate bargaining unit. Although it has been found that Respondent violated the Act by unilaterally granting wage increases to all unit employees, in accord with Board practice and equi- table considerations, the recommended Order will not re- quire the recission of these wage increases CONCL USIONS OF LAW 1. Respondent Taft Broadcasting Company, WBRC- TV, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 253, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been and is now the exclusive bargaining representative of the Re- spondent's employees in the agreed upon unit set forth below: All news department employees including film de- velopers, excluding secretarial news employees and all other office clerical employees, guards and other technical personnel covered by union contract, the assistant news director and all supervisors as defined in the Act. 4. By failing and refusing to meet and bargain with the Union concerning the terms and conditions of employ- ment of bargaining unit employees, Respondent has vio- lated Section 8(a)(5) of the Act. 5. By unilaterally granting wage increases to unit em- ployees, Respondent has violated Section 8(a)(5) of the Act. 6. Respondent has not violated the Act in any other manner. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 6 The Respondent, Taft Broadcasting Company, WBRC-TV, Birmingham, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to meet and bargain with the Union con- cerning the terms and conditions of employment of bar- gaining unit personnel. (b) Unilaterally granting wage increases to the bargain- ing unit personnel. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act: (a) Bargain collectively, upon request, with Interna- tional Brotherhood of Electrical Workers, Local 253, as the exclusive bargaining representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Birmingham, Ala- bama, copies of the attached notice marked "Appen- dix."'7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized agent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent taken to comply herewith. 'i In the e.ent no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National l.abor Relations Board, the findings, conclusios,,. 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 Ihereto shall be deemed vsai'ed for all purposes " In the event that this Order is enforced by a Judgment of a United States Courl of Appeals, the sords in the notice reading "Posted by Order of the N;tiional .abor Relations Broard" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the Naitional I hibor Relationr, Bloard" 191