KFMB Stations

KFMB STATIONS 349 NLRB No. 38 373 Midwest Television, Inc., d/b/a KFMB Stations and American Federation of Television and Radio Art- ists, San Diego Local. Cases 21–CA–34683, 21– CA–34803, 21–CA–34833, and 21–CA–35029–2 February 20, 2007 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH On February 25, 2004, Administrative Law Judge James L. Rose issued the attached decision. The General Counsel and the Respondent filed exceptions and sup- porting briefs. The Charging Party filed cross-exceptions and a supporting brief. The General Counsel and the Re- spondent filed answering briefs and reply briefs to each other’s answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der. This case concerns unfair labor practice allegations arising from abortive negotiations between the Respon- dent and the American Federation of Television and Ra- dio Artists, San Diego Local (the Union) for a successor collective-bargaining agreement in 2001. For the reasons stated in the judge’s decision, we adopt his finding that the Respondent violated Section 8(a)(3) of the Act by discharging Mike Effenberger because his position was part of the bargaining unit. We also adopt the judge’s findings that the Respondent violated Section 8(a)(1) by telling Effenberger that he was being discharged because station manager Ed Trimble was “eliminating bargaining units”; by offering the services of its attorney, Craig Schloss, to employees who had been subpoenaed during the Board investigation; and by coercively interrogating, through Schloss, employee Brian Wilson. For the reasons stated below, we reverse the judge’s findings that the Respondent violated Section 8(a)(5) by bargaining in bad faith and by withdrawing recognition from the Union. We also reverse the judge’s findings that the Respondent violated Section 8(a)(5) and (3) by re- ducing employee Rick Moorten’s wages to union scale 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. and Section 8(a)(1) by referencing that reduction in a letter to employees.2 I. ALLEGED BAD-FAITH BARGAINING The Respondent owns and operates a television station and two radio stations in San Diego, California. For many years, the Union represented a bargaining unit of all staff announcers, newspersons, and freelance per- formers employed by the Respondent. The parties had a series of collective-bargaining agreements, the most re- cent of which was effective March 21, 1998, to July 31, 2001. Negotiations for a successor agreement began on April 26, 2001.3 The parties met 20 times over the next 6 months, last meeting on October 9. During this period, the parties presented proposals and counterproposals and reached tentative agreement on some issues. The parties remained apart, however, on wages, management rights, and union security. The judge found some justification for accusations that both sides acted in ways that tended to impede bargain- ing, such as cancelling scheduled meetings and being uncivil, vague, and ambiguous when answering ques- tions. The judge concluded, however, that the bickering and accusations were “irrelevant to the fundamental issue of whether the Respondent’s proposals and its actions away from the bargaining table demonstrate bad faith bargaining.” In this regard, the judge found that none of the Respondent’s proposals, save the proposed elimina- tion of a union-security provision, discussed below, evi- denced bad-faith bargaining. We agree with the judge, for the reasons stated in his decision, that the Respon- dent’s proposals regarding management rights, a zipper clause, at-will employment, scale wages, griev- ance/arbitration, direct dealing for personal service con- tracts, and a no-strike provision, whether considered in- dividually or collectively, did not demonstrate a determi- nation to avoid agreement. The judge did find that, standing alone, the Respon- dent’s proposal to eliminate union security in the new collective-bargaining agreement constituted bad-faith 2 We shall modify the judge’s recommended Order in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), Excel Container, 325 NLRB 17 (1997), and Ferguson Electric Co., Inc., 335 NLRB 142 (2001). We shall also substitute a narrow cease- and-desist order for the broad one recommended by the judge. In Hickmott Foods, 242 NLRB 1357 (1979), the Board held that a broad cease-and-desist order requiring a respondent to cease and desist from violating the Act “in any other manner,” instead of the traditional nar- row “in any like or related manner” injunction, should be reserved for situations where a respondent is shown to have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for employees’ fundamental statu- tory rights. Neither situation is present here. Accord: United Parcel Service, 340 NLRB 776 (2003). 3 All subsequent dates are in 2001 unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374 bargaining. The parties’ previous contracts included a provision that required employees, “as a condition of employment,” to join and maintain membership in the Union after 30 days’ employment. The judge found that such a provision is so common and well established that a proposal to eliminate it “can only be viewed as ‘anti union’ and for the purpose of weakening the Union.” The judge also found that the Respondent’s seasoned negotia- tors would know that the Union could not accept a con- tract providing for the elimination of union security, and he found that the Respondent advanced no valid reason for deleting it. Thus, the judge found that the proposal demonstrated bad-faith bargaining. We disagree. The existence of a union-security clause in previous contracts does not by itself obligate the parties to include it in successive agreements. Challenge-Cook Bros., 288 NLRB 387, 388 (1988). In Challenge-Cook Bros., the Board rejected the judge’s reasoning that an employer’s insistence on the “predictably unacceptable” elimination of a long-established union-security provision revealed its unlawful predetermination not to reach agreement. We find the judge’s reasoning in the present case simi- larly erroneous. As the Board recognized in Challenge- Cook Bros., supra, An employer is entitled to advance a position sincerely held, notwithstanding the employer’s having taken a different position at an earlier time. . . . Union security . . . [is a] mandatory [subject] of bargaining, and [a] party . . . is entitled to stand firm on a position if he rea- sonably believes that it is fair and proper or that he has sufficient bargaining strength to force agreement by the other party. Id. (quoting Atlas Metal Parts Co. v. NLRB, 660 F.2d 304, 308 (7th Cir. 1981)) (internal quotations omitted). Contrary to the judge, the Respondent asserted a valid reason for its proposal on union security. As the Respon- dent explained to the Union, it wanted to eliminate the union-security clause because it did not want to be forced to remove on-the-air talent for nonpayment of union dues. The Union responded with a proposal to keep the language stating that union membership was a condition of employment, but to add a proviso that it would not exercise its “right” to force the Respondent to remove talent from the air. The Respondent asked the Union if it would remove the “condition of employment” language, but the Union refused. The Respondent then rejected the Union’s counterproposal as internally inconsistent and thus illusory. Whether or not the Respondent’s interpre- tation of the Union’s proposal was correct, its rejection of that proposal was not unreasonable, so there is no ba- sis for the judge’s finding that the Respondent’s position was “specious” or that it failed to consider the proposal before finding it inadequate to resolve its concerns about the union-security issue. The Board must assess a party’s total conduct before determining whether that party has engaged in bad-faith bargaining. Challenge-Cook Bros., supra at 388. “The Board’s task in cases alleging bad-faith bargaining is the often difficult one of determining a party’s intent from the aggregate of its conduct.” Garden Ridge Manage- ment, Inc., 347 NLRB 131, 133 (2006) (quoting Reich- hold Chemicals, 288 NLRB 69, 69 (1988), enf. denied in part on other grounds 906 F.2d 719 (D.C. Cir. 1990)). In considering the totality of the conduct, the Board decides “whether the employer is engaging in hard but lawful bargaining to achieve a contract that it considers desir- able or is unlawfully endeavoring to frustrate the possi- bility of arriving at any agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). Here, the totality of the Respondent’s conduct indi- cates hard but lawful bargaining. The Respondent met with the Union 20 times over 6 months. The parties ex- changed proposals and counterproposals and reached tentative agreement on a number of issues. The Respon- dent explained the reasons for its proposals, including, as discussed above, its reason for wanting to eliminate the union-security clause. The Respondent also explained why it rejected the Union’s counterproposal on union security, and that explanation was not unreasonable. There is no allegation that the Respondent failed to pro- vide requested information. The judge found, and we agree, that none of the Respondent’s other proposals demonstrated an intent not to reach agreement. In addi- tion, in light of our conclusion in the following section that the Respondent lawfully reduced employee Richard Moorten’s wages, there is no away-from-the-table con- duct suggesting bad-faith bargaining intent. Having re- viewed the Respondent’s overall course of conduct, we find that its proposal to eliminate the union-security clause was not evidence of bad faith or an intent not to reach agreement. See Challenge-Cook Bros., supra. II. REDUCTION OF MOORTEN’S WAGES The parties’ 1998–2001 contract set minimum wages and benefits for the unit employees (scale wages), but also permitted the Respondent to deal directly with indi- vidual employees in negotiating personal service con- tracts (PSCs) that could provide higher wages and better benefits. Upon expiration of the 1998–2001 agreement, the Union faxed the Respondent a letter that withdrew permission for the Respondent to “direct deal with any current employee, prospective employee, or their agent.” The letter also stated that it would “assume that any PSC KFMB STATIONS 375 not delivered to [the Union] by 10 a.m. [August 1] was not negotiated and signed by 11:59 p.m. on July 31st and therefore is null and void.” Richard Moorten began working for the Respondent on March 19 at the above-scale wage rate of $17.30 per hour (scale was $14.32 per hour). Moorten was pre- sented with a PSC incorporating this rate when he was hired, but he neglected to sign and return it until Au- gust—shortly after the July 31 expiration of the collec- tive-bargaining agreement and after the Union withdrew the Respondent’s right to direct deal. Thus, the Respon- dent would not accept Moorten’s signed PSC when he tendered it. Because Moorten was receiving above-scale wages without having a signed PSC at the expiration of the contract, the Respondent reduced his wage rate to scale. On September 19, Station Manager Ed Trimble sent a letter to all employees in which he stated, in relevant part: First and foremost, if you are reduced to scale, it will be because of AFTRA’s bargaining tactics. . . . AFTRA is again interfering with our ability to pay current em- ployees or new hires more than the Union contract rate. Already we have had to reduce one current AFTRA member to scale and one ‘new hire’ could not be hired above scale or given a contract. . . . Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those co- workers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them. The judge found that Moorten’s reduction in wages violated Section 8(a)(3) and that Trimble’s September 19 letter to employees violated Section 8(a)(1) because it threatened to reduce other employees’ wages as well. The judge declined to rule on whether Moorten’s reduc- tion violated Section 8(a)(5) because a similar issue was pending before the Board in another case involving the same parties. As discussed in full below, we find the Re- spondent did not violate the Act in any respect by reduc- ing Moorten’s wages, and that Trimble’s letter was law- ful. A. The 8(a)(5) Allegation The “Hal” mentioned in Trimble’s letter is Harry (Hal) Clement, a former anchorperson for KFMB and the charging party in KFMB Stations, 343 NLRB 748 (2004) (KFMB I). Clement worked for the Respondent under a PSC, effective July 17, 1994 to January 31, 1998. Upon expiration of the 1994–1997 collective-bargaining agree- ment, the Union withdrew permission for the Respondent to deal directly with employees not signed to a PSC in an effort to pressure the Respondent to reach a new agree- ment. Subsequently, the Respondent reduced Clement’s salary to scale when his PSC expired. The Board affirmed the judge’s conclusion that the re- duction in Clement’s salary did not violate Section 8(a)(5) of the Act. It first stated that Board precedent establishes that an employer’s right to deal directly with unit employees and establish above-scale wages is a permissive subject of collective bargaining. KFMB I, supra at 752 (citing KJEO-TV, 324 NLRB 138, 143–144 (1997), enfd. 172 F.3d 660 (9th Cir. 1999). It then re- ferred to the Supreme Court’s holding that parties to a collective-bargaining agreement can unilaterally rescind permissive terms of the contract at any time without vio- lating Section 8(a)(5). Id. (citing Chemical Workers Lo- cal 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 183– 186 (1971)). Based on this precedent, the Board con- cluded that “given the permissive nature of the direct dealing provision, the Respondent had the right under the Act to unilaterally reduce the wages of employees work- ing under PSCs to union scale at any time, during the term of the contract or thereafter.” Id. at 753. The Board’s holding in KFMB I governs the disposi- tion of the same issue in this case.4 Moorten’s above- scale wage rate resulted from direct dealing and, as such, was a permissive bargaining subject. The Respondent therefore did not violate its statutory bargaining obliga- tion by reducing Moorten’s wages to union scale. We shall dismiss the 8(a)(5) allegation based on this conduct. B. The 8(a)(3) Allegation The judge found that the Respondent was not required to reduce Moorten’s wage rate, but chose to do so and then blamed the Union in Trimble’s September 19 letter to employees. The judge found that reducing Moorten’s wages was a violation of Section 8(a)(3) because it was done during the course of collective bargaining for the purpose of undermining the Union and was “inherently destructive of Section 7 rights.” See NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967). We disagree. An 8(a)(3) allegation has two basic elements: dis- crimination and motivation to discourage or encourage union activity. In NLRB v. Great Dane Trailers, supra, the Supreme Court established guidelines for assessing whether employer motivation to discourage or encourage union activity could be inferred in certain 8(a)(3) cases, 4 Our dissenting colleague relies on his dissent in KFMB I to contend that the Respondent violated Sec. 8(a)(5) again in this case. As stated, we adhere to the KFMB I majority holding. Member Kirsanow did not participate in KFMB I, but he agrees that it is dispositive of the 8(a)(5) issue here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376 without further proof of union animus, based on the im- pact on employees of challenged conduct that discrimi- nates along lines of protected Section 7 activity. The Court found that if the employer’s discriminatory con- duct is “inherently destructive” of important employee statutory rights, “no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the con- duct was motivated by business considerations.” Id. at 34. On the other hand, if the adverse effect of the dis- criminatory conduct on employee rights is “compara- tively slight,” “an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business jus- tifications for the conduct.” Id. In the present case, we need not go so far as to exam- ine whether unlawful motivation can be inferred under Great Dane inasmuch as we disagree with the judge’s finding that the General Counsel proved discrimination along the lines of Section 7 activity. In this regard, we find that the judge erred in finding that the decision to reduce Moorten’s wages during the 2001 negotiations represented disparate treatment. Contrary to the judge’s finding, other employees were not “routinely” paid above-scale wages without a PSC prior to those negotia- tions. The Respondent’s witnesses testified that its pol- icy was not to pay above scale without a signed PSC. At most, the record reveals one specific instance other than Moorten’s where this policy was not followed, and that occurred in 1998.5 As to Moorten’s situation, while Moorten was paid above scale without a PSC for over 4 months, this payment was made pursuant to a negotiated PSC that the Respondent expected him to sign. Once the Union’s deadline to receive PSCs passed, any subse- quently signed PSC would not be accepted as valid by the Union. Thus, there is no evidence that Respondent treated Moorten differently from other employees when 5 The Respondent entered into evidence a personnel change form for employee Mike Effenberger from March 1998 that indicates that his rate was returned to a higher level following an “AFTRA labor settle- ment.” Effenberger testified that he was never under a PSC and did not recall ever having his wage reduced or increased during his employ- ment at KFMB. The judge also relied on the testimony of employee Frank Catalfo. Catalfo testified that in April 2001, Program Director Dave Sniff approached him about entering into a PSC. Sniff told him that Trimble wanted Sniff to “single out a few key employees to protect in the near future when Ed Trimble may bring certain employees down to scale.” It had been 10 years since Catalfo had been under a PSC, but he did not affirmatively testify that he was receiving above-scale wages without a PSC. The ambiguous evidence regarding Catalfo is insuffi- cient to satisfy the General Counsel’s burden of proving disparate treatment. See KFMB I, supra at 751 (rejecting for similar reasons the judge’s finding that employee Cox was treated more favorably than Clement, finding that the difference was based on timing of the events, not disparate treatment). it chose to reduce his wages to scale in the absence of a signed PSC. Even assuming, arguendo, that the Respondent’s re- duction of Moorten’s wages represented disparate treat- ment, based on first paying him above scale without a signed PSC and then reducing his wage rate in response to the Union’s negotiating tactics, we reject the judge’s finding that this discrimination was “inherently destruc- tive.”6 The impact of this action on unit employees was both temporary and limited to Moorten, new hires, and any other employees whose PSCs lapsed during the bar- gaining dispute. Contrary to the judge’s suggestion, the Respondent’s action did not exhibit hostility to the proc- ess of collective bargaining or make it seem a futile exer- cise in the eyes of unit employees. Indeed, both the Un- ion and the Respondent knew that direct dealing was indispensable to their mutual interests and would be part of any final agreement. Consistent with the Board’s analysis of the same issue in KFMB I, we find the Re- spondent’s treatment of Moorten had at most a “com- paratively slight” impact on employees’ Section 7 rights. We further find, as in KFMB I, that the Respondent proved that a legitimate and substantial business interest motivated its action. The Union’s withdrawal of permis- sion to direct deal was meant to put pressure on the Re- spondent to reach an agreement on terms favorable to the Union. The Respondent’s decision to reduce non-PSC employees to scale was its lawful counter to the Union’s withdrawal of direct-dealing permission. The reduction of Moorten’s wages was consistent with the Respon- dent’s legitimate bargaining strategy of restoring its criti- cal ability to negotiate PSCs as soon as possible. In sum, we find that the Respondent’s reduction of Moorten’s wages was not discriminatory. We further find that even if the Respondent’s treatment is viewed as discrimination on the basis of Section 7 activity, it had at most a “comparatively slight” impact on employees’ statutory rights, and the Respondent proved a substantial and legitimate business reason for its action. Conse- quently, no violation can be found under Great Dane, and the General Counsel must present specific affirma- tive proof of antiunion motivation. In fact, the General Counsel did not argue that Moorten’s wage reduction violated Section 8(a)(3) under a traditional Wright Line motivational analysis.7 Assum- 6 For a discussion of evidentiary factors relevant to an “inherently destructive” analysis, see generally International Paper Co., 319 NLRB 1253, 1269–1270 (1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997). 7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983). KFMB STATIONS 377 ing that the issue is before us, we find no violation under Wright Line. As previously stated, the General Counsel has failed to prove his claim that the Respondent dis- criminated against Moorten by treating him disparately from other employees with respect to above-scale pay- ments in the absence of a signed PSC. Further, the Gen- eral Counsel has failed to meet his initial burden of prov- ing that the reduction of Moorten’s wages was motivated by animus against union activities. The record does not show that Moorten engaged in any union activity apart from being a dues-paying member. There is no showing that the Respondent bore any animus against him in this respect. The judge appears to have viewed Trimble’s September 19 letter as evidence that general animus against the Union’s bargaining tactics motivated the Re- spondent to make an example of Moorten. We disagree. Without even mentioning Moorten by name, the letter informed employees of KFMB’s lawful actions in re- sponse to the Union’s denying the Respondent’s right to enter into PSCs during past and contemporaneous con- tract negotiations. In the absence of a showing of dis- crimination or of antiunion motivation for the reduction in Moorten’s wages, the General Counsel has not estab- lished a prima facie case under Wright Line. See KFMB I, supra at 750–751.8 C. The 8(a)(1) Allegation The judge found that Trimble’s letter violated Section 8(a)(1) because the letter threatened to reduce other em- ployees’ wages and placed the blame on the Union.9 We disagree. As explained above, the Respondent lawfully reduced the wage rates of Moorten and, during previous contract negotiations, of Clement and others. Thus, Trimble’s letter did not threaten employees with an unlawful wage cut. Instead, the letter explained the Re- spondent’s bargaining position and the lawful actions the Respondent had taken in response to the Union’s with- drawal of the Respondent’s right to deal directly. This statement did not violate Section 8(a)(1). III. WITHDRAWAL OF RECOGNITION From September 4 through October 20, a majority of the bargaining unit employees signed a decertification petition. On October 30, the Respondent relied on this 8 The dissent does not reach the issue of whether the reduction of Moorten’s wages violated Sec. 8(a)(3). 9 The letter was not alleged as an independent 8(a)(1) violation, but was alleged in the complaint as a violation of Sec. 8(a)(5) and (3). In light of our disposition of this case, we need not reach the Respondent’s contention that the judge erred in finding an independent 8(a)(1) viola- tion in the absence of an allegation that the letter violated that section of the Act. showing of majority disaffection and withdrew recogni- tion from the Union. The judge found that the decertification petition was tainted by the Respondent’s unremedied unfair labor practices, particularly reducing Moorten’s wages, blam- ing the Union for that action, threatening other employ- ees with a similar wage reduction, and proposing the elimination of the union-security provision. Therefore, the judge found that the Respondent was not privileged to withdraw recognition from the Union. RTP Co., 334 NLRB 466, 468 (2001) (“[A]n employer may not with- draw recognition from a union while there are unreme- died unfair labor practices tending to cause employees to become disaffected from the union.”), enfd. 315 F.3d 951 (8th Cir. 2003). As discussed above, however, we have dismissed the unfair labor practice allegations relied upon by the judge in finding that the decertification peti- tion was tainted. The only unfair labor practice findings we have adopted involve actions that occurred after the employees signed the petition and the Respondent withdrew recog- nition.10 These actions could not have caused the em- ployee disaffection on which the Respondent relied. Consequently, the Respondent withdrew recognition based on an untainted showing of majority disaffection from the Union. We therefore reverse the judge’s find- ing that the withdrawal of recognition violated Section 8(a)(5). ORDER The National Labor Relations Board orders that the Respondent, Midwest Television, Inc., d/b/a KFMB Sta- tions, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Discharging an employee in order to dissipate em- ployee support for the Union. (b) Coercively informing an employee that he is being discharged because of his union membership. 10 We adopt the judge’s finding, based on Effenberger’s uncontra- dicted testimony, that his unlawful discharge occurred in November. The General Counsel excepted to this finding, arguing that the dis- charge occurred on or about October 19. The General Counsel provides no support, however, for this exception, and thus we reject it. Our dissenting colleague’s argument that the Respondent unlawfully with- drew recognition is founded on his dissenting view in KFMB I and in this case that the Respondent twice violated Sec. 8(a)(5) by reducing the wages of unit employees and, in the present case, violated Sec. 8(a)(1) by blaming the Union for these allegedly unlawful actions. For the reasons set forth above and in KFMB I, we disagree that the Re- spondent committed these pre-decertification petition unfair labor prac- tices. Consequently, we also disagree with the dissent that a broad cease-and-desist remedial order is necessary to remedy the more lim- ited number of unfair labor practices we have found the Respondent actually committed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378 (c) Offering representation by the Respondent’s coun- sel to employees who had been subpoenaed during a Board-conducted investigation. (d) Coercively interrogating employees who had had been subpoenaed during a Board-conducted investiga- tion. (e) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Mike Effenberger full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Mike Effenberger whole for any losses he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of the judge’s decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify the employee in writ- ing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in San Diego, California, copies of the at- tached notice marked “Appendix.”11 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 21, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since November 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. MEMBER WALSH, dissenting in part. In August 2001,1 the Respondent unilaterally reduced employee Richard Moorten’s wages. A month later, on September 19, the Respondent sent a memo to employ- ees announcing that it had already “had to” reduce an employee’s wages, blaming the reduction on the Union, and threatening additional wage reductions. In October, the Respondent withdrew recognition from the Union based on an employee petition signed in September and October. Because Moorten’s wages were a mandatory subject of bargaining, the unilateral wage reduction violated Sec- tion 8(a)(5) and (1). The judge correctly found that the September 19 memo violated Section 8(a)(1). Those violations tainted the employee petition, making the Oc- tober 2001 withdrawal of recognition unlawful. Accord- ingly, I dissent from the majority’s dismissal of the alle- gations that the September 19 memo violated Section 8(a)(1) and that Moorten’s wage reduction and the with- drawal of recognition violated Section 8(a)(5) and (1).2 1 All dates are in 2001 unless otherwise specified. 2 I find it unnecessary to pass on the judge’s finding that the reduc- tion of Moorten’s wages violated Sec. 8(a)(3), because the additional violation would not materially affect the remedy. See 675 West End Owners Corp., 345 NLRB 324 fn. 3 (2005); Tri-Tech Services, 340 NLRB 894, 895 (2003). Because I do not agree with my colleagues’ disposition of the allega- tions concerning the reduction of Moorten’s wages and the September 19 memo, I do not join their finding that the Respondent engaged in no conduct away from the bargaining table that might indicate bad faith. Nevertheless, having considered that the totality of the Respondent’s conduct, I agree with my colleagues that the evidence fails to establish that the Respondent engaged in surface bargaining. Contrary to my colleagues, I agree with the judge that a broad cease- and-desist order is warranted here. As explained below, I would have found in the prior case against the Respondent that it violated Sec. 8(a)(5) and (1) by unilaterally reducing employee Hal Clement’s above-scale salary. See KFMB Stations, 343 NLRB 748, 753–754 (2004) (Member Walsh, dissenting in part). Taking account of that conduct, the violations found in the present case, and those other viola- tions that I would find, I would also find that the Respondent has shown KFMB STATIONS 379 I. UNILATERAL REDUCTION IN MOORTEN’S WAGES The parties’ 1998–2001 collective-bargaining agree- ment set minimum wages and benefits, but expressly permitted the Respondent to deal directly with individual employees to negotiate personal service contracts (PSCs) that provided for wages and other benefits greater than the contractual minimum. The Respondent hired Richard Moorten in March 2001 at a wage rate of $17.30, which the Respondent and Moorten had negotiated. The scale wage was $14.32. Moorten asked for and received a PSC setting forth the $17.30 rate, but he neglected to sign and return it until August. From March to August, however, Moorten continued to work and to be paid $17.30 per hour. When the collective-bargaining agreement expired on July 31, the Union withdrew permission for the Respon- dent to engage in further direct dealing. In August, when Moorten signed the proposed PSC and attempted to re- turn it to the Respondent, the Respondent’s vice presi- dent and general manager told Moorten that the Respon- dent could no longer accept the PSC. On August 18, the Respondent unilaterally reduced Moorten’s wage from $17.30 to $14.32. The majority concludes that the reduction in Moorten’s wages did not violate Section 8(a)(5) and (1). The ma- jority relies on KFMB Stations, 343 NLRB 748 (2004) (KFMB I), in which a different Board majority found that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally reducing the above-scale salary of another of its employees, Hal Clement. The majority in KFMB I reasoned that Clement’s above-scale salary was negoti- ated pursuant to a contractual provision permitting direct dealing, that the right to deal directly is a permissive sub- ject of bargaining, and that a party may unilaterally re- scind permissive terms of a contract without violating Section 8(a)(5). Id. at 752–753. I dissented from the dismissal of the 8(a)(5) allegation in KFMB I, and I dissent here as well. The issue is not whether direct dealing itself is a mandatory subject of bargaining, but whether directly-negotiated wages, once established through the otherwise permissive direct- dealing mechanism, become a mandatory subject of bar- gaining because the parties have established that method as the mechanism for determining their wages. As ex- plained in my partial dissent in KFMB I, I would find that they are. Id. at 753–754. In my view, therefore, the Respondent was not free to unilaterally change “a proclivity to violate the Act.” Hickmott Foods, 242 NLRB 1357 (1979). Moorten’s established wage rate, and it violated Section 8(a)(5) and (1) by doing so.3 II. THE RESPONDENT’S SEPTEMBER 19 MEMO I agree with the judge that the Respondent violated Section 8(a)(1) by sending a memorandum to employees on September 19 blaming the Union for the reduction in Moorten’s wages and threatening additional wage reduc- tions. The memo, issued by Station Manager Ed Trimble, stated in relevant part: First and foremost, if you are reduced to scale, it will be because of AFTRA’s bargaining tactics, not my alleged interest in reducing your compensation . . . . As for Hal Clement, he was a victim of the same bargaining tactics that the Union is using again. . . . . AFTRA is again interfering with our ability to pay current employees or new hires more than the Union contract rate. Already we have had to reduce one current AFTRA member [Richard Moorten] to scale and one “new hire” could not be hired above scale or given a contract. Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those coworkers who had al- ready resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them. The majority finds that the memo simply explained the Respondent’s bargaining position and the lawful actions the Respondent had taken in response to the Union’s withdrawal of permission to deal directly. I disagree. The Respondent’s memo blames the Union for Moorten’s wage reduction, stating that the Respondent “already . . . had to” reduce an employee’s wages be- cause of the Union’s tactics. Holding both Moorten and Clement up as examples, the memo warns all other em- 3 The expired 1998–2001 contract allowed the Respondent to “adjust individual employees’ above-scale wages or other more favorable terms and conditions than those contained in this Agreement, provided KFMB complies with the minimum terms of this Agreement.” Assum- ing that language waived the Union’s right to bargain over reducing employee wages to scale, the waiver did not survive the July 31 expira- tion of the contract. “It is well settled that the waiver of a union’s right to bargain does not outlive the contract that contains it, absent some evidence of the parties’ intentions to the contrary.” Ironton Publica- tions, 321 NLRB 1048 (1996). There is no such evidence here. There- fore, the contract language did not privilege the Respondent to reduce Moorten’s wage unilaterally in August. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380 ployees that the Respondent may also reduce their wages, again blaming the Union. The memo states: “if you are reduced to scale, it will be because of AFTRA’s bargaining tactics.” The Respondent, however, did not “have to” reduce Moorten’s wages to scale. Nor would the Respondent have to reduce other employees to scale when their PSCs expired. The Respondent chose to re- duce Moorten’s wages. Moreover, in my view, it did so unlawfully. As explained above, I would find that the unilateral wage reduction violated Section 8(a)(5) and (1). Thus, the import of the September 19 memo is a threat to retaliate against employees—through unlawful unilat- eral action—because of the Union’s bargaining positions. The announcement that two employees’ wages have al- ready been reduced makes it clear that the threat is not an idle one. Accordingly, the judge correctly found that the memo violated Section 8(a)(1).4 III. WITHDRAWAL OF RECOGNITION On October 30, the Respondent withdrew recognition from the Union based on an employee petition signed by 4 I find no merit in the Respondent’s argument that the record fails to show that any employees received Trimble’s memo. The memo is addressed to “All AFTRA Represented Employees.” The Respondent produced the memo to the General Counsel in response to a subpoena that sought, in part, “[a]ll correspondence, memoranda, or the like, sent or distributed by Respondent to its employees, during 2001, regarding or discussing the collective-bargaining agreement negotiations, Hal Clement, and/or Richard Moorten” (emphasis added). The memo does not appear to be responsive to any other request in the subpoena. Fur- thermore, the Union’s chief negotiator, Thomas Doyle, testified that he saw the memo on or shortly after September 19, and the Respondent concedes in its brief that the Union asked the Respondent on September 26 to identify the employee referenced in the memo as having had his wages reduced. For all of these reasons, the record supports a finding that employees received the memo. I also find no merit in the Respondent’s contention that the 8(a)(1) allegation was not properly before the judge. It is true, as the Respon- dent contends, that the complaint alleged that the memo violated Sec. 8(a)(3) and (5), and not Sec. 8(a)(1) (other than derivatively). It is well settled, however, that the Board may find and remedy an unalleged violation if it is closely related to the subject matter of the complaint and was fully and fairly litigated. See, e.g., Casino Ready Mix, Inc., 335 NLRB 463, 464 (2001), enfd. 321 F.3d 1190 (D.C. Cir. 2003). Here, it is beyond dispute that the 8(a)(1) violation is closely related to the subject matter of the complaint. The complaint specifically refers to the memo and alleges that it violated Sec. 8(a)(3) and (5) (and, de- rivatively, Sec. 8(a)(1)). Thus, the complaint put the Respondent on notice that the General Counsel was challenging the lawfulness of the memo. The 8(a)(1) violation was also fully and fairly litigated. The memo was entered into evidence, the General Counsel referred to it in his opening statement, and Doyle testified about it. The General Coun- sel also discussed the memo in his post-hearing brief and contended that the memo “imputes Moorten’s wage reduction (as well as potential wage reductions for other employees) to the Union’s bargaining posi- tion.” Under these circumstances, the 8(a)(1) allegation was properly before the judge. 25 employees.5 My colleagues find no unfair labor prac- tices predating the withdrawal of recognition, and so they reverse the judge’s finding that the petition was tainted. Because, as just shown, I would find that the reduction in Moorten’s wages and the September 19 memo were unlawful, I would further find that this unlawful conduct tainted the employee petition, and therefore that the withdrawal of recognition also violated the Act. An employer may not withdraw recognition from a un- ion in the wake of unremedied unfair labor practices tending to cause employees to become disaffected from the union. RTP, supra at 468. The Board examines the following factors to determine whether there is a causal connection between the unfair labor practices and em- ployee disaffection: “(1) [t]he length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the unlawful con- duct on employee morale, organizational activities, and membership in the union.” Master Slack Corp., 271 NLRB 78, 84 (1984). A causal connection is present here. With regard to timing, the Respondent withdrew recognition less than 2- 1/2 months after reducing Moorten’s wages and 6 weeks after sending the September 19 memo. Of the 25 em- ployees who signed the antiunion petition, 12 signed it between October 9 and 20, just weeks after the circula- tion of the memo. The nature of the violations also supports finding a causal connection. Wages are, of course, a critical em- ployment term. A unilateral change in wages would have the natural tendency to undermine the Union. Where, as here, the Respondent compounded the unlaw- ful reduction in Moorten’s wages by announcing to em- ployees that it “had to” reduce an employee’s wages, by threatening additional reductions, and by affirmatively blaming the Union, the possibility of a detrimental effect on union support is clear. See Penn Tank Lines, 336 NLRB 1066, 1067 (2001) (“Where unlawful employer conduct shows employees that their union is irrelevant in preserving . . . their wages, the possibility of a detrimen- tal or long-lasting effect on employee support for the union is clear.”).6 5 The exact size of the unit is unclear, but the parties stipulated that the 25 employees constituted a majority. 6 Moreover, the unlawful reduction in Moorten’s wages was not the first such violation. In my view, the 1998 unilateral reduction of Clem- ent’s salary was also unlawful. The September 19 memo blamed the Union for Clement’s salary reduction as well as Moorten’s, calling Clement a “victim” of the Union’s bargaining tactics. KFMB STATIONS 381 The final two Master Slack factors focus on the effect of the unlawful conduct on protected employee activities. Here, by unilaterally changing an employee’s wages, the Respondent “‘minimize[d] the influence of organized bargaining’ and ‘emphasiz[ed] to the employees that there is no necessity for a collective-bargaining agent.’” Penn Tank Lines, supra at 1068 (quoting May Depart- ment Stores Co. v. NLRB, 326 U.S. 376, 385 (1945)). The Respondent’s September 19 memo went even fur- ther, blaming the Union for Moorten’s wage reduction and threatening the same action against other employees because of the Union’s bargaining position. Compare RTP, supra at 469 (employer’s accusation that the union prevented a wage increase would tend to alienate em- ployees from the union). Finally, the Respondent’s Sep- tember 19 memo essentially conceded that wage reduc- tions would tend to cause disaffection from the Union. In reminding employees of the 1998 unilateral salary reductions involving Clement and other employees, the memo stated: “Hal [Clement] and 19 other employees were reduced to scale. Many employees immediately joined those co-workers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them.” In sum, the Respon- dent’s unlawful conduct is of a type that reasonably tends to have a negative effect on union support and to under- mine the employees’ confidence in their collective- bargaining representative. In finding the antiunion petition tainted by the Re- spondent’s unfair labor practices, I reject the Respon- dent’s reliance on the testimony of those employees who stated that they were unaware of Moorten’s or Clement’s wage reductions when they signed the petition or, for those who were aware, that the reductions did not influ- ence their decision to sign. Master Slack is an objective test that focuses not on the subjective state of mind of the employees, but on whether the unfair labor practices have a tendency to undermine the union. See AT Systems West, 341 NLRB 57, 60 (2004). “For this reason, actual knowledge by the employees of the unfair labor practices need not be shown.” Wire Products Mfg. Corp., 326 NLRB 625, 627 fn. 13 (1998), enfd. mem. 210 F.3d 375 (7th Cir. 2000). See also C.F. Martin & Co., 252 NLRB 1192 fn. 2 (1980) (specifically disavowing reliance on employees’ testimony about their subjective reasons for withdrawing support from the union). Application of the Master Slack factors, addressed above, shows a causal connection between the unlawful conduct and employee disaffection. In any event, even if the Board were to consider the employees’ subjective reasons for signing the petition, some of the reasons given were entirely consistent with a finding that the Respondent’s unlawful conduct caused employee disaffection. For example, one employee testi- fied that she signed the petition because she felt the un- ion was “divisive.” Another wanted to be “part of the group” after seeing that other employees had signed. Still another stated that she “hadn’t seen much action with AFTRA.” Those are precisely the types of em- ployee reactions to be expected when an employer’s unlawful conduct has undermined the union. Accordingly, the judge correctly found that the Re- spondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge you in order to dissipate em- ployee support for the Union. WE WILL NOT coercively inform you that you are being discharged because of your union membership. WE WILL NOT offer representation by our attorney to employees subpoenaed during a Board-conducted inves- tigation. WE WILL NOT coercively interrogate employees sub- poenaed during a Board-conducted investigation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Mike Effenberger full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Mike Effenberger whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382 WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Mike Effenberger, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. MIDWEST TELEVISION, INC., D/B/A KFMB STA- TIONS Robert MacKay, Esq., for the General Counsel. Theodore R. Scott and Edward Cramp, Esqs., of San Diego, California, for the Respondent. Diane Richard, Esq., of San Diego, California, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at San Diego, California, on various dates from March 31 to May 1, 2003, upon the General Counsel’s consoli- dated complaint which principally alleged that in 2001 the Re- spondent did not bargain in good faith with the Charging Party and thereafter unlawfully withdrew recognition of the Charging Party in violation of Section 8(a)(5) of the National Labor Rela- tions Act (the Act). It is also alleged that the Respondent re- duced the wages of one employee and terminated another in violation of Section 8(a)(3). And finally, the Respondent is alleged to have committed various violations of Section 8(a)(1) of the Act. The Respondent generally denied that it committed any vio- lations of the Act and affirmatively contends it bargained in good faith, but the parties were unable to reach an agreement, following which a majority of the bargaining unit employees presented a petition stating they no longer wished to be repre- sented by the Charging Party. On the record as a whole,1 including my observation of the witnesses, briefs, and arguments of counsel, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent is a Delaware corporation engaged in the business of operating radio and TV stations in San Diego, Cali- fornia. In the conduct of this business the Respondent annually derives gross revenues in excess of $100,000, sells time for commercial advertising to advertisers of national brand prod- ucts, and purchases and receives at its San Diego facility goods valued in excess of $50,000 from enterprises located within the State of California, each of which other enterprises had re- 1 Certain errors in the transcript are noted and corrected. Counsel for the Respondent also moved to supplement the record by introducing two exhibits which he failed to identify or offer during the hearing, to which counsel for the General Counsel objected. These documents were available and the individual through which they might have been introduced was called as a witness by the Respondent. I find no basis to grant the counsel’s motion and it is therefore rejected. ceived these goods directly from points outside the State of California. The Respondent admits, and I conclude that it is an employer engaged in interstate commerce within the meaning of Sections 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, American Federation of Television and Radio Artists, San Diego Local (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Brief Overview The operative facts in this matter are largely undisputed. For many years the Union has represented a unit of the Re- spondent’s employees defined as follows: All staff announcers, newspersons and free lance performers employed at KFMB Stations, located at 7677 Engineer Road in San Diego California; excluding guards and supervisors as defined in the Act. And, the parties negotiated a series of collective-bargaining agreements, the last of which was effective from March 21, 1998, to July 31, 2001.2 Negotiations for a successor agree- ment began on April 26 and thereafter, the parties met 20 times, the last meeting occurring on October 9. During this period, the parties presented proposals and counterproposals and there was tentative agreement on some issues; however, they re- mained apart on basic wages, management rights, and union security (all of which will be discussed in more detail below). The General Counsel alleges that the Respondent’s bargain- ing demonstrated an attempt to be rid of the Union as its em- ployees’ representative. Counsel for the Respondent stated that this case involves the Union’s “efforts to prevent Respondent MIDWEST TELEVISION, INC., d/b/a KFMB STATIONS (KFMB) from bringing the economics of its operations into line with its San Diego-area competitors.” (Brief of Respondent at 1.) In support of this argument, the Respondent contends that it is the only TV/radio station operation in the San Diego market whose employees are represented by a union. Further, a wit- ness for the Respondent stated that the Respondent was on tracks to lose more than $1 million in 2001, thus concessions were necessary. As will be discussed in more detail below, I reject the Respon- dent’s economic argument as having not been established by credible evidence. To the contrary, evidence offered by the Re- spondent demonstrates that the matters in issue probably had little to do with the Respondent’s bottom line. For example, in his September 19 letter to employees, Station Manager Ed Trim- ble wrote, “This Company has a well-established tract record of paying employees above scale and above market [ for emphasis], not because we have to, but because we are committed to hiring and retaining the best talent.” (Emphasis added.) Such a state- ment is at odds with the Respondent’s apparent contention that contractual wages kept it from being competitive. 2 All dates are in 2001, unless otherwise indicated. KFMB STATIONS 383 In addition, common in this industry, and practiced by the Respondent with permission of the Union, is to negotiate indi- vidual personal service contracts (PSC) with its employees. Thus, again from the brief of counsel for the Respondent at 7, “Bargaining unit employees’ PSCs routinely provide for salary levels and other benefits that are far above the minimums pro- vided by collective bargaining. In fact, several bargaining unit employees enjoy compensation in six and seven figures pursu- ant to the PSCs (citing transcript references).” The parties seem to assume, as stated by counsel for the Re- spondent in his brief, that “all employees who are paid more than the minimum scale were to have signed PSCs in place” (Br. at 129). However, the overwhelming evidence of record is that employees are routinely paid above scale even without having a PSC. See Trimble’s letter, the testimony of Mike Effenberger, Frank Calaifo, and Richard Moorten and the Re- spondent’s negotiation proposal that it could “lower an em- ployee’s above-scale compensation at any time,” subject to the employee’s PSC. A previous case involving these parties was decided by Judge Parke on May 4, 2001,3 and as of this writing is still pending before the Board on exceptions by both the General Counsel and the Respondent. Some of the issues in that case are similar to issues in this matter; however, Judge Parke’s findings and conclusions are not controlling here.4 B. Bad-Faith Bargaining It is alleged in paragraph 10 of the consolidated complaint that the Respondent failed to bargain in good faith during nego- tiations in 2001 by: (1) presenting “proposals retaining to itself total control over virtually every significant aspect of the em- ployment relationship;” (2) presenting “proposals requiring the Union to abdicate its representational rights and duties;” and (3) threatening “to reduce employee wages, lay off employees, and reduce economic commitments in its proposals, unless the Un- ion accepted the Respondent’s proposals.” It is further alleged that by its overall conduct, including the allegations above, the Respondent failed to bargain in good faith. Witnesses for both the Union and the Respondent accuse each other, with some justification, of actions tending to im- pede the bargaining process, such as canceling scheduled meet- ings, walking out of meetings, not always being available for a 3 JD(SF)–38–01. 4 Counsel for the Respondent filed a posthearing motion to strike portions of the General Counsel’s brief which referred to this decision. Counsel for the General Counsel responded arguing that the unfair labor practices found by Judge Parke underlie the refusal to bargain allegations here and I should either wait for the Board to decide that case or issue a provisional decision assuming what the Board’s decision will be. I decline to do either. Nor do I grant the Respondent’s motion to strike. The references to Judge Parke’s decision I consider back- ground, but not evidence of any unfair labor practice here. Further, given my findings and conclusions, Judge Parke’s findings would merely buttress the conclusion that the Respondent engaged in bad- faith bargaining. Counsel for the Respondent also objected to certain of the General Counsel’s arguments as not being supported by the record and thus should be struck. In effect, the Respondent has submitted a reply brief, which I decline to consider under the guise of a motion to strike. meeting when the other side was, and being uncivil, vague and ambiguous when answering questions. I believe that negotia- tors for both sides share responsibility for whatever acrimony there may have been during negotiations, however, such behav- ior does not necessarily imply a determination not to reach an agreement either party. The bickering and accusations, even if true,5 are irrelevant to the fundamental issue of whether the Respondent’s proposals and its actions away from the bargain- ing table demonstrate bad faith bargaining. The Respondent’s proposals which the General Counsel con- tends demonstrate an unlawful intent not to reach an agreement will be considered as argued by Counsel for the General Coun- sel on brief. 1. The management-rights proposal The General Counsel argues that by its Management Rights proposal, the Respondent “sought to retain for itself total con- trol over virtually every significant term and condition of em- ployment, and to strip the Union of having any representational role.” I disagree. While the Respondent’s proposed clause is substantially more detailed and inclusive than that set forth in the previous contract, it does not appear to have the impact argued for by the General Counsel. Thus Thomas Doyle, the Union’s chief nego- tiator, testified that the Respondent’s proposal was very similar to that in the previous contract; and, the only issues the Union had with the Respondent’s proposal related to subcontracting and to the assignment of duties other than those regularly per- formed by an employee. Cases are legion holding that the Board will not analyze an employer’s particular contract proposal to determine whether it would be “acceptable” to the union. However, if the totality of proposals leads to the conclusion that the employer sought to strip from the union its role as the employees’ bargaining repre- sentative, then such proposals are evidence of bad-faith bar- gaining. Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001). On the other hand, proposing a broad management rights clause, such as the one here, does not itself mean that the employer engaged in bad-faith bargaining. Logemann Bros. Co., 298 NLRB 1018 (1990), where the Board found the com- pany had violated Section 8(a)(5) in some respects but declined to find that a broad management rights clause including the right to subcontract was evidence of bad faith. So it is here. Although subcontracting and assignment of employees to other duties are no doubt significant, I cannot conclude that they rise to the level of stripping from the Union its representational role. I cannot conclude that the Respon- dent’s proposal of an all encompassing management rights clause was evidence of its intent not to reach an agreement. 5 For instance, the Respondent made a demand on the Union for re- ports filed by the Union with the Department of Labor. The Union refused on grounds that these are a public record and therefore the Respondent could obtain them from the Department of Labor. It is well settled that notwithstanding availability from other sources, a party must comply with demands for relevant material. E.g., Watkins Con- tracting, Inc., 335 NLRB 222 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384 2. The zipper clause The Scope of Bargaining clause in the previous agreement stated that each party “agrees that the other shall not be obli- gated to bargain collectively with respect to any subject or mat- ter covered in this Agreement.” The Respondent proposed to delete “covered in” and add: “whether or not specially referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contempla- tion of the parties at the time they negotiated or signed” this agreement. And in the second paragraph, where it is acknowl- edged that the contract constitutes the entire agreement between the parties and supersedes all prior written agreements, the Respondent proposed to delete “written agreements” and add “agreements and undertakings, oral or written, express or im- plied, or practices between the Employer and the Union or its employees, and expresses all obligations and restrictions im- posed on each of the respective parties during its term.” The Respondent argues that such language was proposed in view of the Board’s waiver jurisprudence and wanted to insure that final agreement contained the entire agreement between the parties. The General Counsel argues that such language was meant to be a “sword” to justify unilateral changes the Respon- dent might want to make midterm and therefore was evidence of bad faith, citing GTE Automatic Electric Inc., 261 NLRB 1491 (1982). Basically the General Counsel argues that this clause might allow the Respondent to unilaterally change some past practice thus requiring the Union to test the matter with a Board charge. Since the Union suggested no specific past practice it had in mind preserving, and since this is a standard zipper clause, I find the General Counsel’s argument too abstract on which to base a finding of Section 8(a)(5). 3. Employees are at-will Apparently the General Counsel argues that the Respondent should have proposed a “just cause” for discharge of employees not covered by a PSC, and its failure to do so is evidence of an intent not to reach an agreement. There was no “just cause” protection in the previous con- tract. Indeed, the parties contemplated that employees might be dismissed without “just cause” and therefore provided sever- ance pay for such employees. While the Respondent sought to change some aspects of the severance pay provisions, I cannot conclude that it was also required to offer a “just cause” clause. Indeed, “just cause” does not even seem an applicable test for these employees. Every member of the bargaining unit is “on the air talent” and therefore, to a large extent, whether a particular employee is doing his job to the satisfaction of man- agement is a matter of subjective evaluation. Management might well determine to discharge a “talent” without there be- ing traditional just cause. 4. The Respondent’s proposals on scale wages In its wage proposal, the Respondent wrote: “The Employer may lower an employee’s above-scale compensation to scale at any time.” (This would be subject, presumably, an employee’s PSC.) This, the General Counsel argues, would give the Re- spondent “unilateral control and discretion over mid-term wages” and therefore evidences bad faith. I disagree. As noted above, many, if not most, of the Respondent’s unit employees have a PSC which calls for compensation above scale, an others, apparently, are also paid above scale. That employees can negotiate directly with the Respondent for above scale wages has long been established here. What the Union negotiates is a floor. Basically the General Counsel argues, without citation of authority, that absent this proposed language, once the Respondent has agreed with an employee to above-scale wages such could not be reduced. Such is ques- tionable. But beyond that, the proposal that above-scale em- ployees could be reduced to scale does not give the Respondent unilateral control over wages or otherwise demonstrate an in- tent not to reach an agreement, provided the Respondent does not make the reduction for reasons proscribed by the Act. See Section C, infra. 5. Grievance/arbitration The General Counsel argues that the grievance/arbitration clause proposed by the Respondent evidenced bad faith because the broad management-rights clause left nothing to grieve; that the Respondent rejected the Union’s proposal that alleged breaches of PSCs be subject to grievance/arbitration; and the start of the limitation period was vague. Although the Respondent did propose changes in the griev- ance/arbitration procedure from the previous contract, I find nothing that suggests, as argued for by the General Counsel, that the Respondent’s proposal destroys the Union’s capacity to resolve disputes on behalf of the employees. 6. Direct dealing for PSCs The General Counsel contents that “Respondent presented proposals that granted itself the unrestricted right to direct deal with employees for PSC’s.” I reject this contention. In its proposal on Wages, the Respondent sought to codify direct dealing in language identical to that in the expired contract, which includes the employee’s right to be represented by the Union during individual negotiations. Believing that direct dealing might be a permissive subject of bargaining, the Respondent withdrew this language in its final proposal before declaring impasse. Nevertheless, the proposed language and negotiation discussions on direct dealing do not support the General Counsel’s argument. As noted above, di- rect dealing is common in this industry and has been in place here for many years. The Respondent’s proposal did not alter this practice. I conclude that the Respondent’s proposal on PSCs was not evidence of bad faith. 7. No-strike/no-crossing picket lines In the 1998–2001 contract, there is a prohibition against strikes and lockouts as well as a proviso that individuals can refuse, without being subject to discipline, to cross primary picket lines. Though the Respondent initially proposed to eliminate this language, along with the picket line language, it subsequently included the no strike/no lockout proscriptions. The Union agreed to this language, with the deletion of the picket line portion. The General Counsel does not argue that deleting the picket line language was evidence of bad faith. KFMB STATIONS 385 Accordingly, I will make no finding concerning the picket line proposal. As to the no strike language, I conclude it is identical to that in the previous contract does not evidence bad faith and in fact the Union agreed to it. 8. Respondent’s proposal to eliminate union security Requiring employees to join and maintain membership in the Union after employment for 30 days has been codified in the parties’ previous contracts. The Respondent proposed to elimi- nate this requirement to the point of impasse. A union-security provision, such as the one in the parties’ previous contract, is so common and well established that a proposal to eliminate such a clause can only be viewed as “antiunion” and for the purpose of weakening the Union. Notwithstanding that some of the Respondent’s employees might themselves be “antiunion” the Respondent’s proposed elimination of union security is clearly evidence of bad-faith evidence that the Respondent was deter- mined not to reach an agreement. It is true, as the Respondent contends, that just because there was a union-security clause in previous contracts it was not required to accept one in the successor. Challenge-Cook Bros., 288 NLRB 387 (1988). In arguing for removal of the union- security clause, the Respondent contended it did not want to be forced to remove on-the-air talent, such as Rick Roberts (who was vocally antiunion and objected to paying dues). However, the fact that the Respondent would not consider the Union’s proposal that employees would not be removed from the air suggests that its claim is specious. E.g., Mar-Len Cabinets, Inc., 243 NLRB 523, 536 (1979). In fact, I conclude that union security is so important to the Union that once established the Union would not reasonably abandon it, any more than it would abandon a wage scale and agree to start over from scratch. And this the Respondent’s seasoned negotiators would know. Thus the Respondent would know that the Union could not accept a contract providing for the elimination of union security. In sum, though most of the Respondent’s proposals were not so unreasonable as to support a finding of bad faith in negotia- tions, its adamant insistence (to impasse) on deleting union security demonstrates such bad faith. C. The Richard Moorten Allegations Richard Moorten began working for the Respondent on March 19 at the above-scale wage of $17.30 per hour (scale being $14.32, which Moorten testified he would not accept). Within a few days Moorten was presented with a PSC, which he neglected to sign and in fact did not do so until August— shortly after the July 31 deadline for PSCs set by the Union. On September 19, Station Manager Ed Trimble sent a memorandum to all employees in which he stated, in relevant part: “First and foremost, if you are reduced to scale, it will be because of AFTRA’a bargaining tactics. . . . AFTRA is again interfering with our ability to pay current employees or new hires more than the union contract rate. Already we have had to reduce one current AFTRA member to scale and one ‘new hire’ could not be hired above scale or given a contract. . . . Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those coworkers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them.” According to the Respondent, since Moorten was receiving above-scale wages without having signed a PSC, he was re- duced to scale. The Respondent also argues that the fact Moorten was paid above scale without a PSC was clerical error not known to management—a contention beyond belief. As noted above, employees are routinely paid above scale without a PSC and in any event, managers are presumed to know how much they pay employees, and under what circumstances. The issue is whether reducing Moorten’s wage rate was vio- lative of Section 8(a)(5) and/or violative of Section 8(a)(3). In a similar situation involving employee Hal Clement, Judge Parke found that receiving above-scale wages was not a manda- tory subject of bargaining, thus for his wage rate to be reduced was not violative of Section 8(a)(5); however, in his case, the reduction was inherently discriminatory within the meaning of NLRB v. Great Dane Trailers, 388 U.S. 21 (1967). Both con- clusions are before the Board on exceptions. Since the Board will decide whether unilaterally reducing one’s above-scale wage rate is a violation of Section 8(a)(5), I will not rule on that issue as to Moorten. I do, however, con- clude that reducing his wage rate during the course of collective bargaining for the purpose of undermining the Union was viola- tive of Section 8(a)(3). The Respondent, of course, was not required to reduce Moorten’s wage rate, but choose to do so in the context of negotiations for a new collective-bargaining agreement and then put the blame on the Union. While Moorten is not specifically named in Trimble’s Sep- tember 19 letter to employees, his situation was. Since the Respondent was not required to reduce Moorten’s wage rate, in doing so and blaming the Union, the Respondent clearly vio- lated Section 8(a)(3). It is clear from Trimble’s letter that the Respondent reduced Moorten’s wage rate, and threatened oth- ers with like fate, in order to undermine the Union. Such was inherently destructive of Section 7 rights therefore a violation of Section 8(a)(3). The import of the letter threatened other employees in violation of Section 8(a)(1). Finally, it is undisputed that the Respondent reduced Moorten’s wage rate without notice to, or consultation with, the Union. Whether it thereby violated Section 8(a)(5) will depend on the Board’s ruling in the previous case and I make no con- clusion concerning that issue here. D. The Mike Effenberger Discharge Mike Effenberger was a fill-in announcer from 1995 until his discharge in November 2001.6 He had just finished a week of fill-in work for the morning show when Dave Sniff, the pro- gram director, called Effenberger into his office and said “that he had to fire me at that point in time.” Effenberger also testi- fied that Sniff “told me that he was—they were eliminating bargaining units.” And, “(w)e discussed a little bit that there was an ongoing negotiation with AFTRA and the station, that was the reason why this was occurring.” Sniff assured Effen- 6 He also did some work as an image announcer, which is nonbar- gaining unit work. The complaint alleges the discharge on October 19. The parties seem to agree it was in November. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386 berger that the discharge had nothing to do with his perform- ance. Sniff testified that he was instructed by his boss, Tracy John- son, “that we needed to make this move (discharging Effenber- ger), and what ever the timetable was to make it in.” Sniff denied discussing the AFTRA negotiations with Effenberger. He further denied telling Effenberger that Ed (Trimble) said to terminate him, that “Ed is terminating the bargaining unit,” that “Ed wanted to terminate the bargaining unit employees,” or that “Ed wants to get rid of some of the people in the bargaining unit,” none of which Effenberger testified to on direct. The denials elicited from Sniff were similar to, but not really the same as Effenberger’s assertions. Sniff testified that he told Effenberger that his discharge was one of the ways the Respondent was attempting to reduce costs. He also said that fill-in work would be done by Rick Roberts— one of the Respondent’s “stars,” vocally antiunion and very high paid. Although asserting, as with other issues, that discharging Ef- fenberger was a cost cutting measure, the Respondent offered no real proof as to how discharging a part-time fill-in employee and replacing him with a very high paid employee saved money. Further, Effenberger continues to be employed by the Respondent, but as an “independent contractor.” On the other hand, lending support to the conclusion that Ef- fenberger was discharged because of his membership in the Union is the testimony of Frank Catalfo. Catalfo testified that for about 10 years prior to April 30, 2001, when he entered into a one year PSC, he had not worked under a PSC. Shortly be- fore accepting a PSC, Sniff “told me that general manager Ed Trimble wanted Dave (Sniff) to single out a few key employees to protect in the near future when Ed Trimble may bring certain employees down to scale. So Dave Sniff could single out a few employees to protect.” Catalfo further testified that Sniff told him, “that Ed Trimble was out to make the union go away, to break the union, were his exact words. He said he was quite sure it was going to happen this time.” While these statements, which I credit, were not offered as violations of the Act, being barred by Section 10(b), I do find that Catalfo’s testimony supports the conclusion that Effenber- ger was discharged in violation of Section 8(a)(3). On balance, I credit Effenberger and conclude that his dis- charge related to the AFTRA negotiations and the Respon- dent’s withdrawal of recognition (infra). Thus I conclude that the Respondent violated Section 8(a)(3) of the Act, and I spe- cifically discount the Respondent’s assertions as not being sup- ported by credible evidence. The statement by Sniff that the Respondent was eliminating “bargaining unit” along with his statement that this had to do with ongoing negotiations was alleged as a threat in violation of Section 8(a)(1). I credit Effenberger and conclude that Sniff made statements along these lines and therefore violated Sec- tion 8(a)(1). E. The Threat by Tom Warren For many years until his resignation on October 26, Jim Blankinship worked as a photographer. His immediate supervi- sor was Earle Thomas (Tom) Warren Jr. In 1986 Blankinship was also given a part-time bargaining unit position as the “un- known eater” doing two segments a week. On May 8, he was told that as of May 31, the “unknown eater” would be canceled as a cost savings measure. Around May 9, Blankinship told Warren the “unknown eater” had been canceled and asked him, in effect, what Warren knew. Warren said he did not know anything about the union jobs but further said, “hopefully I would not be on Ed Trim- ble’s radar any more now that the eater segment had been can- celled.” Warren testified that he “absolutely” did not make such a statement. The problem with this allegation is that both Blankinship and Warren seemed quite credible and each gave persuasive testi- mony. Since Warren supervised employees who are not in the bargaining unit, and had no dealings with AFTRA or the nego- tiations, there is no context for the statement attributed to him. Nor is there documentary or other evidence which would tend to support Blankinship. Such does not mean that Warren did not make the “radar” statement. But given the standoff in credibility and lack of other evidence, I conclude that the Gen- eral Counsel failed to establish by a preponderance of credible evidence the factual basis for this allegation. Thus even if the “radar” statement can be considered some kind of a threat, I conclude that paragraph 15 of the complaint should be dis- missed. F. Withdrawal of Recognition From September 4 through October 20, 25 bargaining unit employees (including two independent contractors) signed a decertification petition, which the parties stipulated constituted a majority of the bargaining unit (though the size of the unit is unclear in the record). Accordingly, on October 30, the Re- spondent withdrew recognition from the Union and cites Levitz Furniture, 333 NLRB 717 (2001), and Littler Diecasting Corp, 334 NLRB 707 (2001), as its authority to do so. The General Counsel contends that the petition was tainted since there were unremedied unfair labor practices (here and from the previous case). Therefore, the withdrawal of recognition was unlawful. The Respondent argues that not all unfair labor practices taint such a petition, citing Lee Lumber & Building Material Corp., 322 NLRB 175 (1996), and argues that the General Counsel failed to prove that any of the unremedied unfair labor practices affected any signature. Indeed, the Respondent called as witnesses 21 of these signatories (including the two inde- pendent contractors) who testified that the Respondent’s acts, including reducing the wage rate of Clement and Moorten and failing to arrive at a contract, did not affect their decision to sign the petition. They gave various reasons for signing the petition, principally among them that the Union was not repre- senting them well and that Doyle was incompetent. In RTP Co., 334 NLRB 466, 468 (2001), the Board reiterated its long-held policy “that an employer may not withdraw rec- ognition from a union while there are unremedied unfair labor practices tending to cause employees to become disaffected from the union.” In that case the Board went on to note that it has considered several factors in analyzing whether a causal connection existed between the unremedied unfair labor prac- tices and the employees’ dissatisfaction as demonstrated by KFMB STATIONS 387 their signing a petition. These factors, set forth in Master Slack Corp., 271 NLRB 78 (1984), include: “(1) the length of time between the unfair labor practices and the withdrawal of recog- nition; (2) the nature of the violations, including the possibility of a detrimental or lasting effect on employees; (3) the ten- dency of the violations to cause employee disaffection; and (4) the effect of the unlawful conduct on employees’ morale, or- ganizational activities, and the membership in the union.” While the General Counsel does have the burden of estab- lishing a casual connection between the unremedied unfair labor practices and the petition to withdraw recognition, this, I conclude, can be satisfied by evaluating the objective evidence. The Respondent seems to argue that the General Counsel’s burden can be satisfied only by the subjective testimony of petition signers. I disagree. In Master Slack, the Board did accept the testimony of petition signers to the effect that the prior unfair labor practices did not affect their decision. How- ever, such was in the context of that case where unfair labor practices had occurred years previously and for the most part had been remedied, the company continuing to litigate only backpay. I conclude that the objective evidence here is ample to sup- port the conclusion that the employees’ petition was tainted by the Respondent’s unremedied unfair labor practices. I conclude that the nature of the violations here, particularly reducing em- ployees to scale during bargaining and blaming the Union, has a tendency to cause employee disaffection and would nega- tively affect employee morale. Indeed, in his September 19 letter, Trimble acknowledged that such caused employees to sign the petition to withdraw recognition of the Union. Finally, the Respondent’s adamant refusal to include, as had always been the case, a union-security clause clearly was clearly aimed at reducing the union effectiveness as the employees’ bargain- ing representative. I therefore conclude that the Respondent unlawfully with- drew recognition from the Union and I shall recommend and appropriate order reestablishing the bargaining relationship. G. The Actions by Graig Schloss Graig Schloss is an attorney and represented the Respondent during the time of the events in this matter and in negotiations. He subsequently moved on and is not involved in this proceed- ing except having appeared as a witness for the Respondent. It is uncontested that employee Brian Wilson received an in- vestigative subpoena with a return date of January 9, 2002; and that prior to that date Wilson was instructed by Sniff to come to work early one day in January and meet with Schloss. Wilson met with Schloss in the Respondent’s conference room at which time Schloss “told me that he was representing some other people that had been subpoenaed and if I would like his representation from a legal standpoint KFMB was making him available to me.” Further, Schloss asked “what I thought I was being subpoenaed for and I kind of gave him some expla- nations as to why I thought I could have been subpoenaed.” The essence of Wilson’s testimony is undenied. In S.E. Nichols, Inc., 284 NLRB 556 (1987), enfd. on this is- sue 862 F.2d 952 (2d Cir. 1988), the Board adopted the conclu- sion of the judge that the employer violated Section 8(a)(1) by offering employees who had been subpoenaed by the General Counsel the services of its attorney. As the Board noted, cer- tain circuit court decisions finding no violation where counsel had been suggested (and cited here by the Respondent) are distinguishable. While much of the judge’s analysis concerned whether employees in such a situation would have the right to counsel (an issue not involved here), the judge concluded that offering the services of the employer’s counsel in an investiga- tion of the employer posed an inherent conflict of interest. Here, as in Nichols, company counsel was offered to Wilson, thus “temptingly proposing a serious conflict of interest.” Id. at 559 fn. 9. Counsel for the Respondent seems to argue that it is permis- sible for an attorney for one party to litigation to represent a potential witness for an adverse and to solicit such representa- tion. And, as are the facts here, offer the benefit of free legal services. I reject theses contentions. While an attorney might, under certain circumstances not apparent here, represent both a party to litigation and a potential witness for the other side, to solicit such representation is cer- tainly questionable.7 Although such issues are not for the Board to decide, under these circumstances, including offering the benefit of free legal advice, I conclude that Schloss at- tempted to interfere with the Board’s investigation, its proc- esses and ultimately employees’ rights under Section 7 of the Act. Cases cited by the Respondent are distinguishable and do not exonerate Schloss’ conduct. To the contrary, in Baptist Medi- cal Center, 338 NLRB 346 (2002), the Board reiterated its policy of finding an 8(a)(1) violation where the company tells employees that it would furnish an attorney, if requested, dur- ing a Board investigation.8 In that case, however, the Board concluded this had not occurred. While the company’s first letter to employees referred to a Department of Justice investi- gation, but seemed also to suggested to them that if contacted by a Board investigator or subpoenaed the company wanted to know and would furnish them an attorney. Shortly thereafter the company sent employees a second letter clarifying that the first letter did not apply to the then ongoing Board investiga- tion. Although Schloss’ interrogation of Wilson might generally have been permissible under the rule of Rossmore House, 269 NLRB 1176 (1984), it fails the test of Johnnie’s Poultry, 146 NLRB 770 (1964), enfd. denied 344 F.2d 617 (8th Cir. 1965), a long-term, well established rule. Thus in Freeman Decorating Co., 336 NLRB 1 (2001), enfd. denied on other grounds 334 F.3d 27 (DC Cir. 2003), the Board said it “has generally taken a bright-line approach in enforcing the requirement established in Johnnie’s Poultry, 146 NLRB 770, 774–776 (1964), that an employer interrogating an employee witness in preparation for a Board hearing must give explicit assurance against reprisal for refusing to answer or for the substance of any answer given. We established this requirement to ensure that employers’ le- 7 See Rule 3-310 of the California Rules of Professional Conduct; San Diego Bar Assn. Ethics Opinion 1974–21.5. 8 The Fifth Circuit declined to enforce a Board order for such a vio- lation. Florida Steel Corp., 587 F2d 735 (5th Cir. 1979). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388 gitimate interest in obtaining relevant evidence will not en- croach on employees’ rights to protection under Section 7.” 336 NLRB at 14. Schoss did not give such assurances here. Therefore, his interrogation of Wilson was violative of Section 8(a)(1). REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I conclude that it should be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act, including offering reinstatement to Mike Effenberger to his former job, or if that job no longer exists, to a substantially equivalent position of employment and make him, and Richard Moorten whole for any loss of earnings and other benefits they may have suffered in accordance with the provisions F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]