Westinghouse Broadcasting And Cable, Inc. (Wbz-Tv)

WESTINGHOUSE BROADCASTING Westinghouse Broadcasting and Cable , Inc. (WBZ- TV) and Local 1228, International Brotherhood of Electrical Workers, AFL-CIO. Case 1-CA- 21594 31 July 1987 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 24 July 1986 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief,' the Charging Party filed cross-exceptions and a supporting brief,2 and the General Counsel, the Charging Party, and the Respondent filed an- swering briefs. The National Labor Relations Board has delegat- ed 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,3 and conclusions, 4 to modify his remedy, 5 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Westing- house Broadcasting and Cable, Inc. (WBZ-TV), Boston, Massachusetts, its officers, agents, succes- 1 The Respondent has requested oral argument The request is denied as the record, exceptions, and cross-exceptions including the transcripts, exhibits, and briefs, adequately present the issues and the positions of the parties 2 The Charging Party's motion to strike the Respondent 's exceptions and supporting brief is denied The Charging Party also moved to strike the testimony of the Respondent's controller, Robert Houghton , concern- ing the cost to the Respondent of cab and courier nonemployee service for 1982, 1983, and 1984 The Respondent does not oppose this motion Under these circumstances, the motion is granted 8 The Respondent has excepted to some of the judge 's credibility find- ings The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 4 Under any of the analyses set forth in Otis Elevator, 269 NLRB 891 (1984), we find that the Respondent 's decision to subcontract its news courier work was a mandatory subject of bargaining See Century Air Freight, 284 , NLRB 731 (1987) In so concluding, we find it unnecessary to pass on the judge's alternative rationale , which we construe as dicta, that the Respondent 's decision was a mandatory subject of bargaining under the plurality opinion in Otis even if the Respondent's decision did not turn on labor costs s In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 will be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 205 sors, and assigns, shall take the action set forth in the Order. Genevieve Pluhowski, Esq., for the General Counsel. Don T. Carmody, Esq., of New York, New York, for the Respondent. Alan H. Shapiro, Esq., of Boston, Massachusetts, for the Union. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Boston , Massachusetts, on 4-6 March 1985, 3-4 December 1985, and 3 February 1986, pursuant to a charge filed on 21 November 1983 by Local 1228, International Brotherhood of Electrical Workers, AFL-CIO (the Union); and a complaint issued on 27 December 1984 against Respondent Westinghouse Broadcasting and Cable, Inc. (WBZ-TV) (the Compa- ny). The complaint alleges that after the Union won a representation election in a unit of the Company's news department couners, the Company violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act), by subcontracting the news courier work without prior notice to the Union and without having afforded it an opportunity to negotiate and bargain with respect to the decision to subcontract and the effects of such sub- contracting. The Company requests dismissal of the com- plaint on the grounds, inter alia, (1) that in the represen- tation election, a challenge was improperly sustained to a possibly determinative ballot; (2) that all the conduct at- tacked in the complaint occurred before the Union's cer- tification; (3) that the Union's certification is invalid be- cause, inter alia, it was issued when no unit employees remained in the Company's employ; and (4) that the de- cision to subcontract is not a mandatory subject of col- lective bargaining. On the basis of the entire record, including the de- meanor of the witnesses , i and after due consideration of the briefs filed by the General Counsel, the Union, and the Company, I make the following FINDINGS OF FACT I. JURISDICTION The Company is a corporation which operates a tele- vision station in Boston, Massachusetts . During calendar year 1983, the Company's gross revenues exceeded $100,000. During that same year, the Company was a member of national wire services and advertised national brand products. When stipulating to the conduct of the representation election previously referred to, the Com- i Pursuant to Sec 9(d) of the Act, the record in the representation case is a part of the record before me The witnesses who testified in the representation case hearing, which was conducted by Hearing Officer Anthony D DaDalt after the election, included three who did not testify before me-namely, Thomas Weed, Frederick Boudreau , and Joseph P Gerstner Because of the Board's disposition of the representation case (see infra part II,A, especially fn 3), regarding these three witnesses no credibility issues need to be resolved. 285 NLRB No. 32 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pany stipulated that it annually receives at its Boston, Massachusetts location materials valued in excess of $50,000 directly from points outside Massachusetts. I find that, as the Company concedes, the Company is engaged in commerce within the meaning of the Act, and that as- sertion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Representation Proceedings The Company is a wholly owned subsidiary of a cor- poration which has almost the same name, and which is referred to herein as WBC. By letter dated 23 June 1983 to J. C. Gidel, who is WBC's director of labor relations, Union Business Agent Kenneth F. Flanagan stated that the Union represented the Company's couriers, and asked the Company and WBC to recognize and bargain with the Union as their representative. The letter went on to state that if "the Company" was unwilling to extend such recognition, "the Union is prepared to prove its majority in an election conducted by" the Board, and that the Union had filed the appropriate petition with the Board. The letter concluded, "I hope to hear from you shortly so that we can proceed to bargain on behalf of these employees." There is no evidence that this letter was ever answered. The complaint does not allege that the Company violated the Act by failing to respond. On the same day that this letter was sent by the Union, it filed a representation petition with the Board. On 18 July 1983 the Regional Director for Region 1 ap- proved a stipulation for certification on consent election executed by the Company and the Union on 13 July 1983. The stipulation specified a unit limited to full-time and regular part-time news department couriers, which unit is fully described infra in Conclusion of Law 3; and stated that the payroll period for eligibility would be 16 July 1983. The election was conducted on 19 August 1983, the date specified in the stipulation. The tally of ballots issued on that day showed that one ballot had been cast for the Union, and three ballots had been chal- lenged. On 24 August 1983 the Union filed timely objec- tions to conduct affecting the results of the election. On 12 October 1983, after conducting an investigation, the Regional Director issued a report on objections and chal- lenged ballots. He recommended that the Union's objec- tions be overruled, that two of the challenges be sus- tained, and that a hearing be conducted regarding the challenged ballot of Wayne Chou, who had admittedly been a courier on the day of the election but whose status on the eligibility date (16 July 1983) was in dis- pute. On 24 October 1983 the Union filed exceptions to the Regional Director's recommendation that the chal- lenges to the ballots of Royden Lungelow and Peter McDonagh be sustained. The Union based this conten- tion on the ground that these two employees' separation on 5 August 1983 had been motivated by their union ac- tivity. In support of this contention, the Union attached to its exceptions its then-pending appeal of the Regional Director's action in dismissing , on 6 October 1983, the tratively dismissed Union's 24 August 1983 charges alleging that the Com- pany had unlawfully terminated these employees. On 9 November 1983 Attorney Don T. Carmody filed with the Regional Director and the Board a motion on the Company's behalf (1) to dismiss the petition, or (2) in the alternative, for leave to withdraw from the election stipulation and for a reopening of the investigation of the petition, or (3) in the alternative, for a reopening of the investigation of Chou's challenged ballot. In support of the first two branches of this motion, Carmody alleged that the election unit presently consisted of two employ- ees, went on to allege that after the election the Compa- ny had decided to terminate both of these employees, further alleged that their final date of employment would be no later than 2 December 1983 and, finally, alleged that the Company had no present intention of employing unit employees in the future. In support of the third branch of this motion, Carmody alleged that he wanted to submit unspecified evidence which had allegedly been unavailable to the Company when the Regional Director had issued his report on challenged ballots. On 18 No- vember 1983 the Union filed an opposition to this motion. By letter to Carmody dated that same day, Union Attorney Joseph G. Sandulli requested "that the Company rescind the decision to terminate the Couriers, that it restore the status quo and that it bargain with the Union about all mandatory subjects put into issue by its desire to terminate Couriers." As previously noted, on 21 November 1983 the Union filed the charge herein, which alleged that the Company had violated Section 8(a)(1) and (5) of the Act by announcing on 9 November 1983 its determination to terminate the employment of all couriers effective 2 December 1983.2 As discussed infra, the Company transferred news cou- rier Chou to a nonunit job effective 28 November 1983 and laid off its only remaining news courier, Thomas Weed, on 2 December 1983. By letter to Sandulli dated 5 December 1983, Company Attorney Carmody stated: I am in receipt of your letter of November 18, 1983. I am not-in a position to provide you any further reply to your correspondence, other than to for- ward this acknowledgement that I have received the letter, so as to avoid any impression that [the Company] has recognized, or is prepared to recog- nize, [the Union] as the collective bargaining repre- sentative for the news couriers formerly employed by [the Company]. As you are aware, a question concerning repre- sentation of these former employees remains unde- cided before the National Labor Relations Board in [the representation case]. On 12 December 1983 then General Counsel William A. Lubbers denied the Union's appeal of the Regional Director's action in dismissing the charges that chal- lenged voters Lungelow and McDonagh had been un- lawfully separated before the election . On 11 April 1984 2 This charge also included an 8(a)(3) allegation, which was adminis- WESTINGHOUSE BROADCASTING 207 the Board adopted the Regional Director's findings and recommendations as to the objections and challenges, or- dered a hearing with respect to Chou's ballot, and denied the Company's motion of 9 November 1983, without prejudice to its renewal at the representation case hear- ing. The representation case hearing with respect to Chou's ballot was held on 31 May and 1 June 1984, before Hear- ing Officer Anthony D. DaDalt. At that hearing and in what amounted to a posthearing brief, the Company re- newed its 9 November 1983 motion. DaDalt's "Report on Challenged Ballot," issued on 6 July 1984, recom- mended that this motion be denied, that the challenge to Chou's ballot be sustained because he did not join the bargaining unit prior to the eligibility date, and that a re- vised tally of ballots and a certification be issued.3 The hearing officer stated, in part: The Employer contends that since the bargaining unit no longer exists, the Board has no authority to issue a certification and that dismissal of the petition or withdrawal from the Stipulation by the Employ- er is appropriate. The Employer claims that Cutter Laboratories, 116 NLRB 260 (1956), is dispositive of this matter. In Cutter, after an election, but before a certification, the unit had been permanently reduced to one (1) employee. While the Board dismissed the Petition in Cutter, in doing so it specifically relied on the fact that no unfair labor practice charge re- lating to the reduction of the unit had been filed. In the instant case, there is currently pending in the Regional Office unfair labor practice charge filed by the [Union] which alleges that the Employ- er violated Section 8(a)(1) and (5) of the Act by failing to bargain over its decision to eliminate the work of the news couriers and also over the effects of that decision. t 6 Whether the Employer had an obligation to bargain concerning its decision and/or the effects thereof would turn, at least in the first instance, upon whether the [Union] won the elec- tion on August 19.17 Thus issues relating to both the question concerning representation raised by the instant petition and those relating to the election held pursuant to the Stipulation must be determined in order to ascertain the legal import of the Em- ployer's alleged failure to bargain over its decision to discontinue its news courier operation and over the effects thereof. The pendency of the aforemen- tioned unfair labor practice charge and the implica- tions thereof clearly distinguish the instant case a The hearing officer rejected the Company 's contention (based on Banner Bedding, 214 NLRB 1013 (1974)), that the Board should honor an alleged prestipulation agreement between the Company and the Union that Chou was an eligible voter Pointing to a union witness' denial of a company witness' testimony that an oral agreement to that effect had been made, the hearing officer found "that even if the weight of the evi- dence favored the existence of an oral agreement, it was not the type of unequivocal evidence that would be considered as determinative", he cited Cooper Mattress Mfg Co, 225 NLRB 200 (1976), and Hunt- Wesson Foods, 220 NLRB 922 (1975) The representation case transcript shows that as to this issue, the company witness was Gersten (who did not testi- fy before me) and the union witness was Flanagan (who did testify before me) from Cutter and other cases cited by the Employer in support of its Motion. Moreover, research dis- closes no case where the Board has dismissed a peti- tion and/or permitted withdrawal from a Stipula- tion under circumstances even remotely similar to those present here.18 Accordingly, I conclude that the Employer's Motion that the petition be dismissed or in the alter- native that it be allowed to withdraw from the Stip- ulation in view of the elimination of the unit should be denied. 16 Case No 1-CA-21,594 [the instant unfair labor practice case] 17 An employer acts at its peril by making unilateral changes during a time when challenges to an election are pending . [Inject- ed] Rubber Products Corp. 258 NLRB 687, 696-697 (1981). [On 28 September 1984, after the Hearing Officer's report, the Board modified its original Injected Rubber decision in respects immaterial here, 272 NLRB 418 ] 18 Dismissal of a petition based upon the imminent elimination of the voting unit is premised by the Board upon the fact that no useful purpose would be served by holding an election . See for e g MB Kahn Construction Co, Inc, 210 NLRB 1050 (1974) On 19 October 1984 the Board adopted the hearing of- ficer's findings and recommendations. The Board denied for the reasons set forth by him the Company's motions to dismiss the petition, to allow the Company to with- draw from the stipulation, and to reopen the investiga- tion of the petition and/or challenged ballot. The Board certified the Union as the representative of the Compa- ny's news department couriers. As of 4 March 1985 the Company had never offered to bargain with the Union about the decision to subcontract the courier work or about the effects of that decision on the courier employ- ees. B. The Alleged Unfair Labor Practices 1. The Company's elimination of the staff news courier positions The responsibilities of the newsroom couriers em- ployed by the Company prior to 2 December 1983 were to pick up from and deliver tapes to camera persons, to pick up and deliver newsroom accessories, equipment, and press releases to and from the newsroom and news reporting sites, to run errands for newsroom staff as ne- cessitated by their work schedules, and to chauffeur on- camera news personnel and technicians to and from the newsroom and news reporting sites. These functions were performed in preparation of the Company's five daily news programs during the week, which aired at 5:30 a.m., noon, 5:30, 6, and 11 p.m., and news programs on weekends, which aired Saturday at 6 and 11 p.m. and Sunday at 11:30 a.m., 6, and 11 p.m. Prior to 2 December 1983, when the staff newsroom couriers were not available to perform all of the above- described functions, the services of the staff newsroom courier would be supplemented by taxicab drivers who would be called by the newsroom assignment editor. Thus, couriers were available each day to the newsroom staff during the entire period of time during which such staff was engaged in news gathering functions. 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The newsroom couriers received their assignments from the assignment editor, who was stationed at the as- signment desk in the Company's newsroom. After the completion of each assignment, the newsroom courier would report to the assignment editor for his next assign- ment. The newsroom employed staff news couriers since at least 1977, although (perhaps) not continuously from 1977 to 1981. About September 1982 the Company, in partnership with ABC Video Enterprises, set up a satellite news channel (SNC) to telecast news around the clock. In connection with this expanding operation, the Company added to its staff six technicians, four "talent," and one producer. The establishment of SNC did not lead to the addition of any couriers, and the cost of couriers was not included in the SNC budget. However, couriers may have performed services for SNC in terms of the deliv- ery of tapes. About October 1983 the Company and ABC Video decided to sell SNC. At that time, the Union and the Company were parties to a current collective-bargaining agreement covering the Company's technicians. By letter dated 13 October 1983 to J. C. Gidel, who is WBC's di- rector of labor relations, Union Business Manager Flana- gan stated that he had received news reports about the agreement to sell, and asked the Company to,negotiate about the effects of the sale on union members. By letter dated 1 November 1983, Gidel stated that any personnel changes that affected the contractual relationship be- tween the Union and the Company would be dealt with in accordance with the current agreement. As discussed infra, nobody in this unit was laid off in consequence of the sale. The General Counsel does not contend that the decision to sell SNC constituted a mandatory subject of collective bargaining.4 Customarily, company officials and WBC's officials confer every September, at WBC's corporate headquar- ters in New York City, about the Company's budget for the forthcoming fiscal (i.e., calendar) year. During these conferences, WBC decides what personnel "body count" the Company will be expected to maintain during the forthcoming calendar year. "Body counts" include mem- bers of management and persons who are parties to indi- vidual contracts of employment, but do not include either the employees of independent contractors, or indi- vidual persons (such as freelance producers) who per- form personal services as independent contractors. Sepa- rate "body counts" are determined for full-time and part- time employees. 5 In accordance with this practice, about September 1983, before the sale of SNC had been decid- ed on, the Company's vice president and general manag- er (Thomas Goodgame), the Company's controller (Robert Houghton), and the Company's vice president of sales and marketing went to New York to conduct such a conference. Goodgame testified that during this confer- ence, WBC decided that as to full-time employees, the Company's "body count" for 1984 would be "approxi- mately 285 people, I may miss a person or two." The record fails to show the prescribed "body count" for part-time employees. By memorandum dated 12 October 1983, Daniel L. Ritchie, who is WBC's principal executive officer, ad- vised Gidel that the SNC sales transaction would likely be closed on 27 October 1983. The memorandum further stated, in part: Employees associated with the [SNC] service will be carefully considered for jobs with the ABC and Group W organizations.6 We are making every effort to minimize the impact of this decision on SNC employees. We will pay severance benefits, of course, and do all we can to support SNC people's transition to new career opportunities. Group W Satellite Communications is proceeding with plans to enter the regional sports pay-program- ming business. GWSC intends to begin its cable sports, services with the participation of the Balti- more Orioles and Seattle Supersonics. GWSC is also moving ahead with its sales and marketing ef- forts on behalf of the The Nashville Network. Launched in March of this year with a record number of subscribers for a start-up service, the Nashville Network now has more than 10 million subscribers, and is projected to reach between 11 and 12 million by year's end. As a witness initially called as an adverse witness by the Union, Goodgame initially testified that an order to eliminate 11 employees came from either Ritchie's 12 October memorandum or "through conversations with" WBC; and that "I believe" Goodgame had specific con- versations with people in WBC regarding the need to eliminate 11 positions. After union counsel pointed out to Goodgame that Ritchie's 12 October memorandum does not state that 11 persons must be let go, and asked Good- game "where did the requirement come from that 11 em- ployees had to be cut?" Goodgame testified, "The specif- ic conversation I couldn't specifically recall, but I can assure you that the conversations were had in terms of what is expected of us"; he further testified, "From a purely business standpoint, it only makes sense that if you had created 11 positions when [you] devised the sat- ellite news channel operation, that you have 11 persons that you didn't need prior to that, and it would make sense that you didn't need those 11 people afterward." Goodgame further testified (without contradiction or corroboration) as follows: Between 13 and 20 October 1983, the president of the "Television Station Group," Larry Fraiberg, told Goodgame that because the institu- tion of SNC had caused the addition of 11 people, the sale of SNC meant that 11 people did not need to be there any longer, and that there were 11 people the Company was no longer authorized to have. Neither Fraiberg nor anyone else from WBC specified the posi- tion of courier or any other positions. On an undisclosed 4 The General Counsel and the Company so stipulated. The Union re- fused to join in that stipulation. 5 A third "body count" is determined for casual employees 6 The record indicates that "Group w organizations" consist of the Company and some of its corporate affiliates. WESTINGHOUSE BROADCASTING 209 date prior to 9 November 1983, at Goodgame's request, "New York" said that the 11 people to be got rid of did not necessarily have to be the same 11 people who had been added because of the SNC operation.' By memorandum dated 17 October 1983, satellite news feed coordinator Charles Mann urged News Director Stanley Hopkins to continue the use of satellite technolo- gy notwithstanding the sale of SNC. Mann suggested, inter alia, that continued use of such technology might save the Company money in freighting programming ma- terial and in obtaining signals for Boston Celtic basket- ball games. That same day, Hopkins sent a copy of this document to then Station Manager George L. Miles Jr., together with a covering memorandum which stated that the document "clearly demonstrates . .. the need for a full-time [satellite] coordinator's position." By memorandum dated 18 October 1983 to then Sta- tion Manager Miles (with courtesy copies to Goodgame and Houghton), Engineering Director George St. Andre stated, in substance, that four of the six "technical shifts assigned to SNC" could be eliminated; but that the elimi- nation of the remaining two, who had been used in crossover assignments, would require the remaining per- sonnel to take over the work of supplying a fourth camera on two daily news broadcasts, to provide remote control of the earth station, and to perform more news tape editing. By memorandum dated 19 October 1983 to Goodgame and Miles (with courtesy copies to St. Andre, News Director Hopkins, and three other individuals whose jobs are not shown by the record), Production Manager Bob Glover stated that both SNC directors could be eliminated if a part-time staff associate director were hired; but that if this net reduction were made, the Company would have to be prepared (1) to spend, for overtime and freelance help, money that had not been adequately forecast in the 1983 and 1984 budgets; (2) for longer response time to some "unique programming and news needs"; (3) for "some slippage in the quality of our air product"; (4) to curb plans to develop certain new program concepts and projects; and (5) for possible in- ability to achieve equal employment opportunity goals. By memorandum dated 7 November 1983, Station Manager Miles advised Goodgame that Miles wanted to maintain news and programming efforts at an existing level that had been made possible by SNC's "capabili- ties" and would be impossible if the Company eliminated all 11 employees currently assigned to SNC. Regarding such employees, the memorandum recommended retain- ing "3-1/2 employees"-namely, the satellite/newsfeed coordinator, the earth station control engineer, a "direc- tor 1/2 time," and a news editor "(required only half 7 Fraiberg did not testify In March 1985 the Company filed a motion to quash a subpoena, issued at the Union's request, for documents which included, "Regarding the effects on [the Company] of the sale of SNC, any advisements from [WBC] regarding personnel changes, including elimination of personnel, positions, or replacement of employees with non-Company personnel " The Company did not then assert that no such documents existed, but rested its motion solely on relevancy grounds I found the subpoenaed material to be relevant, and denied the motion to quash However, on the Company's appeal dated 2 August 1985, the Board directed me on 3 September 1985 to quash the subpoena on the ground of relevance Thereafter, Goodgame testified that the directive from "New York" about eliminating 11 positions was not in writing time; however, union agreement restricts the hiring of part-timers on a full-time basis)." Miles' memorandum went on to state: We have been instructed by David Lalich, Con- troller, Television Station Group that we were to make up the 3-1/2 employees within the station op- eration through lay-off or elimination of position. After extensive examination of our total station per- sonnel count, I recommend that the following posi- tions be eliminated, inasmuch as they are the posi- tions which can be eliminated with the least degree of disruption to our station operations and with the least direct impact upon our programming . . . . The positions listed in the memorandum were (1) the account executive designated to sell SNC; (2) the person- nel manager (a vacant job, which Miles recommended be left vacant until "we are able to find another position with less priority"); and (3) the part-time courier and the full-time courier ("Note: This function can be performed by an outside service"). The memorandum concluded, "We are in the process of moving on the above adjust- ments, and the separation and absorption of the SNC em- ployees have been worked out in accordance with the Company's instructions." On an undisclosed date between 13 October and 9 No- vember 1983, News Director Hopkins, after reviewing all positions in his department and (perhaps) consulting Assistant News Director Randy Covington, recommend- ed to Goodgame that the satellite news coordinator posi- tion and a news editor position should be retained, and that "we could do without the courier positions." Goodgame testified that it was he who made the final determination as to which positions to eliminate, and which individuals to lay off, in consequence of the 11- person "body count" reduction that (he had allegedly been told) was called for by the sale of SNC. Concern- ing what action was taken, the record shows as follows: 1. Goodgame credibly testified that the following 4 persons who were involved with SNC ended up with full-time employment in other areas of the sta- tion: an unidentified news editor, an unidentified di- rector, the satellite news feed coordinator (Charles Mann), and the earth station control engineer (Philip Stoddard). There is no evidence that the transfer of any of these 4 caused the termination of anyone else or constituted the filling of pre- existing vacancies. 2. Goodgame credibly testified that in conse- quence of the sale of SNC, the position of personnel manager, which had been vacant for some weeks, was abolished. 3. Goodgame credibly testified that in conse- quence of the sale of SNC, the Company released the salesman (Hershel Norwood) who had been sell- ing for SNC. 4. Goodgame testified that 7 or 8 persons (in ad- dition to Norwood) who worked on SNC were in fact terminated. He testified that he could not recall the names of any of them; that two of them were 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "talent"; and that "just exactly how the others broke down I'm not sure." As previously noted, Glover's 19 October memorandum to Goodgame had stated that with specified disadvantage to the Company, both SNC directors could be eliminated if a part-time director were hired. Because one SNC director was retained, I infer that the other SNC di- rector was laid off, and that he was among these 5 or 6 "others" whom Goodgame said he could not break down. As to whether any technicians were laid off, Goodgame testified, ". . . my assumption would be absolutely, but I can't attest to that. I couldn't state that was an absolute fact." Employee Harvey Morris, who is the union president and was the SNC engineering crew chief, testified that 7 technicians, including himself and Stoddard, worked with SNC;11 that none of them was laid off as part of SNC's "demise"; that he would have been aware if any full-time technicians had been laid off as part of SNC's "demise"; that no full-time technicians were laid off at that time; and that the only techni- cians he could think of who were laid off at the time of SNC's "demise" were two vacation relief technicians (James O'Donnell and Michael Couto). As previously noted, as to Stoddard, Morris' testi- mony was corroborated by Goodgame. Goodgame testified that the summer relief technicians were not included in the "body count" which he had to reduce by 11. See supra fn. 5. In short, the testimony as summarized up to this point shows that (laying to one side the one full-time courier and the one part-time courier in the bargaining unit), the sale of SNC unquestionably led to the abolition of one vacant job (personnel manager) and the termination of two SNC "talent," one SNC salesman, and one SNC di- rector-that is, elimination of five "bodies." I accept Morris' testimony that none of the seven technicians who worked on SNC was terminated.9 Accordingly, I con- clude that Goodgame gave equivocal testimony other- wise to conceal either that the Company had never re- ceived any 11-employee "body count" directive, or that the directive was never fully complied with. Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). I infer that in addition to the SNC personnel al- ready specified, no more than three more were terminat- ed. 5. Goodgame testified that the position of full- time news courier was abolished, and that the only incumbent in that position (Chou) was promoted to a vacant position as production assistant. I credit Goodgame's testimony (partly corroborated by company records) that such action was taken. As to his tendered reasons for such action, see infra "The Remedy." 8 The other five were David Posmona, Marton Sanders, Wayne Miller, Dennis Godreau, and Julie Volpe 8 I so find for demeanor reasons, because Morris' testimony was far more specific than Goodgame's about names and jobs, and because the Company did not produce its payroll records as to the matters Morris testified about 6. Finally, Goodgame testified that the termina- tion of part- time courier Weed, and the abolition of his job, were effected as part of the layoff which was occasioned by the sale of SNC.1 ° However, al- though station manager Miles' 9 November memo- randum to Goodgame recommended the layoff of part-time courier Weed after "extensive examination of our total station personnel count," Goodgame's testimony strongly suggests that WBC's alleged Oc- tober 1983 directive referred to 11 full-time "bodies" (Tr. 684-688). Goodgame testified that Weed was the only person not working in SNC who lost his job because of the sale of SNC. For the calendar year 1983, all the news couriers com- bined earned about $25,000.11 During that same year, the Company spent about $88,000 for taxicab courier service. Also during that same year, the Company's total station budget was about $30 million and the news de- partment budget was between $5 million and $10 mil- lion.' 2 The parties stipulated that the cost to the Compa- ny of the cab and courier service, whether employee- provided or not, is an insignificant portion of the entire budget of the news department and has so been at all material times. 3. Company methods used after abolishing the courier jobs News Director Hopkins credibly testified that after the Company had decided to eliminate its own couriers but before their jobs were abolished, "we were talking to not only courier services but we were talking to cab compa- nies, with the realization that at some point in December [1983] we would be without our internal courier serv- ice."t3 Further, he testified that before entering into any arrangement with a courier service, there was "obvious- ly" a discussion of what their charges were going to be, but that there was no cost estimate on a weekly, month- 10 Weed's personnel records state that he received I week's severance pay, as previously noted, Goodgame had advised Gidel that "severance benefits" would be paid to separated employees "associated with" the SNC service The Company's brief states (p 7) that on 7 November, Weed "was advised of the Company's decision to eliminate the position of news courier effective December 2, 1983 At that time, Mr. Weed offered to submit a bid to provide news courier service, which was encouraged by [news director] Hopkins, although never received " The brief contains no record references as to any such 7 November conversa- tion, nor can I find any evidence about it i 1 This figure includes Chou, who worked as a courier for 19 weeks at $248 a week 12 The Company's total costs for courier service were higher in 1984 than in 1983 However, the Company refused to provide any information about the total news department budget, and the total operating budget of the station for 1984 Accordingly, the evidence in the record would not warrant an inference that the increase was due to labor cost consider- ations rather than (for example) to an increase in the Company 's use of courier service owing to increased station activity 11 He so testified after Controller Houghton, in Hopkins' presence, identified invoices from Grace Courier dated, respectively, 25 November 1983 (Chou's last day of work as a courier), and 2 December 1983 (the day that the remaining courier, Weed, was laid off), and testified that each invoice was probably for a week preceding the date of the invoice Previously, Hopkins had testified that it was not until after eliminating the staff couriers that there was discussion about how much the outside couriers' charges would be WESTINGHOUSE BROADCASTING 211 ly, or annual basis.14 Also, Hopkins credibly testified that during this period, "I believe" the company repre- sentatives got in touch with more than one courier serv- ice, as well as various cab companies. Hopkins testified that the Company' s arrangements with the courier services were made by TV News Unit Manager Paulette Lane and by then Assistant News Di- rector Randy Covington, who (Hopkins testified) at the time of the hearing was still working for the Company, but in a different capacity.15 Covington did not testify. Lane's duties consist of processing all expenses in the news department; she answers to Hopkins, the assistant news director (at that time, Covington), and the control- lers' office. Pursuant to a subpoena from the Union, Lane testified that during this period, the Company did not so- licit courier services; that Grace was selected because it solicited Covington by telephone; and that she was never directed to make any comparison between different cou- rier companies' rates. I do not credit her uncorroborated testimony set forth in the preceding sentence, for de- meanor reasons, because it seems inherently improbable (particularly in view of her duties), and because it is dif- ficult to reconcile with Hopkins' testimony. At a staff meeting of the news department in February 1984, someone on the staff told News Director Hopkins that there had been some trouble getting a tape back in a timely fashion. Hopkins said that under the arrangement with Grace, couriers were to be available around the clock and 7 days a week. Someone said that it seemed as if they were not available on weekends because a tape had to go back by taxi 1 day, and it almost "missed air." Someone asked whether there would be staff couriers again, a situation where there was someone on weekends who did that kind of work. Hopkins replied no, that the courier position was eliminated "due to the demise of SNC"; but that the contract couriers from Grace cost dust about the same as the staff couners had cost, and that the news department had broken even "staffwise" because it had been able to retain Mann as a satellite co- ordinator. Lane credibly testified that during the time when Grace Courier was performing courier service for the Company (that is, during about the last 6 weeks of 1983 and the first 9 months of 1984), there had been times when the Company had been very close to losing a story, or had been late in airing the story, because, if no courier was sitting in the newsroom to be used, the Company would telephone Grace Courier for a courier 14 He so testified after testifying, in response to questions by company counsel, that Hopkins did not discuss with Goodgame about October 1983 how much the news courier function cost, that Hopkins did not consider this factor in deciding what positions to eliminate as a result of the SNC sale, that he did not conduct about this time, nor was he asked to conduct, an analysis of the cost of the news courier functions, that he did not estimate at all what it might cost the station after the elimination of the news courier unit for the station to provide the service of news couriers, and that other than discussing rates on a per-trip basis , he never asked Grace Courier, Choice Courier, or any of the taxi companies for an estimate of what the cost would be to the Company , following the elimi- nation of the position of news courier, for providing the function of news courier service Controller Houghton credibly testified that nobody from the Company ever asked him to analyze the costs to the Company of the provision of news courier services, and that he never of his own volition conducted such an analysis 15 Covington was working in Philadelphia, in a television station there "right away"; and "Right away to Grace would mean as soon as we can dispatch one from our home office and get one over there to you . . . and to us right away meant we needed one in five to ten minutes, we had a story to get to." Until October 1984, the Company had its courier work performed by Grace Courier and a taxi service. Thereaf- ter, the Company had its courier work performed by Choice Courier and a taxi service. Concerning how this change was made, and the reasons for it, the record con- tains the following evidence: Lane credibly testified that on an undisclosed date before September 1984, she and Covington determined that the Grace Courier service was too expensive, and decided to look around for another courier service."' Further, she credibly testified that News Director Hop- kins had expressed concern over the cost of Grace's cou- rier service and its periodic unavailability when needed, and that he knew that she and Covington were evaluat- ing the courier costs and were looking into moving the courier service to another company. Hopkins testified that the arrangements to change from Grace Courier to Choice Courier were made by her and Covington, and that before this change was made, someone under Hop- kins "obviously" discussed what Choice's per-trip charges were going to be. Although Lane credibly testi- fied that she had on file the names of a couple of courier services who had telephoned to solicit business from the Company, she further testified (without contradiction or corroboration) that she did not call any of them. She ex- plained this alleged omission on the ground that "Choice Courier had, in the interim, given us a call." Still without corroboration or contradiction, she testified that she and Covington decided to change to Choice because the lo- cation of Choice's headquarters enabled it to supply couriers on no more than 10 minutes' notice, whereas the location of Grace's headquarters usually made it impossi- ble to supply couriers on less than 25 minutes' notice. I do not credit Lane's testimony that she and Covington did not make inquiries of other courier services before changing to Choice, for demeanor reasons; because such testimony seems inherently improbable; because it is diffi- cult to reconcile with her testimony that it was the ex- pense of Grace Courier's service that had triggered the search for a new courier service and that Hopkins knew about this search and about her and Covington's concern with costs; because it is difficult to reconcile her discred- ited testimony with Hopkins' testimony about "obvious" discussions with Choice; and because her testimony was not corroborated by Covington. However, on the basis of credible parts of her testimony, I do find that the changeover was made partly because Choice's headquar- ters was closer to the Company's studio than were 16 She testified that the Company had all its courier work performed by taxi companies for an undisclosed period after eliminating the Compa- ny's couriers , and that she and Covington eventually determined that this was cheaper than using both taxicabs and Grace Courier However, the Company's records establish that the Company began to use Grace Cou- ner shortly before Chou's transfer from his courier job Moreover, there is no evidence that Lane or Covington ever considered using taxi service alone 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grace's headquarters and, therefore, she and Covington anticipated prompter service The individuals who have performed the courier serv- ices since 2 December 1983 perform the same job func- tions as did the news couriers employed by the Compa- ny. They continue (as did the news couriers employed by the Company) to receive their job assignments from the assignment desk editor. Courier service functions are still supplemented with taxicabs when necessary. Al- though the employee couriers used company vehicles and the outside couriers use their own vehicles, the elimination of the staff courier positions did not necessi- tate or lead to the sale of any assets, vehicles, or equip- ment. Courier service is still available to the newsroom staff during the entire time that the news gathering func- tion is being performed C Analysis and Conclusions 1. Company's contention that complaint be dismissed as allegedly deficient on its face After 6 days of hearing between 4 March 1985 and 3 February 1986, the Company's April 1986 brief contends for the first time that the December 1984 complaint should be dismissed because it is allegedly deficient on its face. So far as relevant here, the complaint has at all times alleged that the Company "subcontracted the news courier work performed by the Unit . . . without prior notice to [the Union] and without having afforded it an opportunity to negotiate and bargain as the exclusive representative of [the Company's] employees with re- spect to the decision as to such acts and conduct and the effect of such acts and conduct," in violation of Section 8(a)(1) and (5). The Company relies on two cases decid- ed before the beginning of the hearing-namely, R. L. Broker & Co., 274 NLRB 709 (1985), and Otis Elevator Co., 269 NLRB 891 (1984). The Company's brief states that the complaint is deficient because it "fails to allege whether or not the [Company's] decision involved a change in the nature and direction of a significant facet of the [Company's] business, that the decision was moti- vated by labor costs, that the decision was amenable to resolution through the process of collective bargaining and that the potential benefits of bargaining outweighed the burdens that such bargaining would have placed upon the [Company]" (Br. 24-25). The General Counsel averred in her opening state- ment, before any evidence had been put in other than the formal papers and a stipulation as to certain facts, that "the decision to eliminate the staff . . . news courier po- sition does not involve [a] change in the nature and di- rection of [a] significant facet of the employer' s business, was motivated either directly or indirectly by labor costs, and was clearly amenable to resolution through the collective bargaining process. And the benefits of the collective bargaining outweigh the burdens that bargain- ing would have placed on the employer." As discussed infra part II,C,3, the record contains evidence relating to all these matters; nor does the Company claim that the complaint failed to apprise it of what conduct by it was alleged to be unlawful. I find the complaint sufficient to withstand a motion to dismiss following a hearing during which all parties had an opportunity to put in their evi- dence. See American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), affd. 345 U.S. 100 (1953); Teamsters Local 662 (Rice Lake Cream- ery) v. NLRB, 302 F.2d 908, 912 (D.C. Cir. 1962), cert. denied 371 U.S. 827 (1963); Boilermakers Local 363 (Fluor Corp.), 123 NLRB 1877, 1913-1914 (1959). The Company errs in relying on Broker, which merely held a complaint insufficient to support a motion for summary judgment on the basis of the respondent's fail- ure to file an answer. Although finding the complaint al- legations insufficient to enable the Board to determine whether the decision to subcontract in fact required bar- gaining, the Board did not dismiss the complaint (as the Company asks me to do here), but merely remanded the proceeding to the Regional Director for "appropriate action." Whatever may have been the "appropriate action" in Broker, the "appropriate action" is a determi- nation on the basis of the record which was made within an 11-month period after Broker. I note that the omis- sions complained of by the Company correspond to its own interpretation of Otis and its own view of the legal principles which govern this case, which interpretation and principles are not quite the same as those urged by the General Counsel and the Union (see infra part II,C,3) Accordingly, I reject the Company's contention that the complaint should be dismissed as insufficient on its face. 2. Whether Company was under duty to bargain with Union with respect to couriers a. Validity of certification issued 19 October 1984 As previously noted, on 19 October 1984, the Board adopted the hearing officer's recommendation that the Union be certified as the bargaining representative of the couriers, and issued such a certification. In so ruling, the Board considered and rejected the Company's exceptions (with a supporting brief) to the hearing officer's report. As the Company recognizes, Board policy bars me from reconsidering any of the issues so raised. Chicago Metallic Corp., 275 NLRB 871 (1985), Heuer International Trucks, 279 NLRB 127 (1986); Wickes Corp., 261 NLRB 1062 (1982). Accordingly, my decision assumes that this certi- fication was properly issued. The Company's exceptions to the hearing officer's report, and the Company's sup- porting brief, have been received into evidence in the record made before me. b. Whether Company was under duty to bargain with Union after 19 August 1983 election but before 19 October 1984 certification As previously found, the Company's decision to termi- nate the couriers, and its decisions and actions related to the termination decision, all occurred after the Union won the election on 19 August 1983. By adopting Hear- ing Officer DaDalt's "Report on Challenged Ballot" (particularly fn. 17 of that report), the Board has at an earlier stage in this proceeding rejected the Company's contention that its actions with respect to the couriers could not have violated Section 8(a)(5) because such ac- WESTINGHOUSE BROADCASTING 213 tions were taken before the Union's certification on 19 October 1984. Accordingly, I am likely barred from re- considering that issue. Chicago Metallic, supra. In any event, this contention has been repeatedly re- jected by both the Board and the courts of appeals. Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975), and cases cited; NLRB v. Carbonex Coal Co., 679 F.2d 200, 204-205 (10th Cir. 1982), and cases cited; San Anto- nio Portland Cement Co., 277 NLRB 388 (1985); Zelrich Co., 144 NLRB 1381, 1391 (1963), enfd. 344 F.2d 1011 (5th Cir. 1965); Timsco, Inc., 279 NLRB 1121 fn. 4 (1986). The Company contended before me that the 'O'Connor Chevrolet line of cases are irreconcilable with Summer & Co. v. NLRB, 419 U.S. 301 (1974); and drew my attention to a case, then pending before the Board, in which the Company's counsel was so urging on behalf of another employer client. Thereafter, the Board decided that case adverse to the company's position. Sandpiper Convalescent Center, 279 NLRB 1129 (1986). Nor does the Company appear to contend that the instant case pre- sents the "compelling economic considerations" that (under the foregoing Board decisions) would excuse uni- lateral action without notice and an opportunity to bar- gain. The policy considerations urged by the Company as a basis for overruling O'Connor Chevrolet and related cases do not, of course, empower me to overrule them. More- over, some of such considerations have little relevance to the particular factual situation presented here. Thus, the Company's improper precertification disregard of the election results could not have disadvantaged the unit employees, and might have deprived them of jobs which they might have kept or been transferred to if the Com- pany had complied with its statutory bargaining duty (see infra part II,C,3, and The Remedy). Furthermore, because the Company knew that employee Weed (the only unit member whose ballot was opened, and the only unit member who lost his job) had voted for the Union, by negotiating with the Union concerning him alone the Company could not have either violated the Act or been taken to have agreed to recognize the Union with re- spect to the entire unit. Ladies Garment Workers (Bern- hard-Altmann) v. NLRB, 366 U.S 731, 741-743 (dissent- ing opinion) (1961). Further, of course, the obligation to bargain is not the obligation to agree, indeed, the Com- pany contends (infra part II,C,3, and The Remedy) that bargaining could not have changed the decision it reached without bargaining. Finally, the Company contends that to read the statute as requiring the Company to refrain from unilateral action (although not requiring it to bargain about changes requested by the Union) between the election (whose initial tally was the same as the final tally) and the certification violates the Fifth Amendment to the Constitution of the United States by depriving the Com- pany of an alleged "constitutional property right in its statutory entitlement to operate without any obligation to bargain with a union absent a Board conducted elec- tion" (Br. 16). Even if I were sure that the Company had thoroughly briefed the point, I would question my own authority to tell my superiors in the administrative and judicial hierarchy that for more than 20 years, they have been interpreting the Act so as to reach an unconstitu- tional result." Moreover, I am doubtful that the Compa- ny's brief is sufficient to enable me to reach an informed conclusion as to this matter. The Company's sole cited authority consists of an 8-page section of an 8-year-old treatise on constitutional law,18 which section discusses the constitutional protection then afforded to a number of statutory entitlements that do not appear to include (at least in terms) any "statutory entitlement to operate without any obligation to bargain,"19 and to what the treatise describes as "a core of substantive `liberty' and `property' rights independent of a state's laws" (but not, at least in terms, any "entitlement" to be free of a bar- gaining obligation). Although I do not question the scholarship of this 1978 treatise, I regard it as insuffi- ciently specific and insufficiently up to date, standing alone, to enable me intelligently to address the precise constitutional issue that the Company has advanced to me in 1986. Moreover, counsel has neither advanced the rather unlikely claim that fair consideration of his views would require me to read all of the law review articles, and the dozens of cases, cited in the treatise, nor advised me which ones I should read. The treatise itself does not persuade me that the longstanding views of the Board and the courts of appeals are inconsistent with the fifth amendment. On this admittedly limited basis, I reject the Company's constitutional claim. c. Whether Company's duty to bargain was affected by employee Chou's transfer to a nonunit job The Company contends that assuming arguendo it was under a duty to bargain with the Union with respect to the couriers immediately after the election on 19 August 1983, that duty terminated with employee Chou' s trans- fer to a nonunit job, thereby reducing the unit to only one employee (Weed).20 However, Union's Exhibit 4 shows that Chou's transfer was effective on 28 Novem- ber 1983, several days after the Company is presumed to have received the Union's letter (mailed about 18 No- vember 1983) requesting the Company to bargain over its decision to eliminate the news couriers and over the effects of that decision. Teamsters Local 610 (Browning- Ferris), 264 NLRB 886, 899-900 (1982). In any event, during the period when the question of whether a certification should issue was pending before " See Iowa Beef Packers, 144 NLRB 615, 616 (1963), modified 331 F 2d 176 (8th Cir 1964), Ford Motor Co, 230 NLRB 716, 717-718 (1977), enfd 571 F 2d 993, 996-997 (7th Cir 1978), a f f d 441 U S 488 (1979) 18 Laurence H Tribe, American Constitutional Law, § 10-9, pp 514- 522 (1978) i9 Specifically discussed are entitlements to welfare benefits, parole, government employment , and "good time" credits against prison sen- tences 20 There is no contention or evidence that at any material time, the number of employees in the unit had ever before diminished to only one employee Although only one employee had been eligible to vote in the election, two employees were at that time undisputedly in the unit, with one (Chou) found ineligible to vote because he had not started to work in the unit until after the 16 July 1983 eligibility date Between 18 July (when the election stipulation was approved) and 5 August 1983 (about 2 weeks before the election), the unit consisted of four employees (Weed, Chou, Lungelow, and McDonagh) 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Board, the Company's obligation vel non to refrain from unilateral changes did not turn on whether the Union had demanded bargaining . Hudson Oxygen Ther- apy Sales Co., 264 NLRB 61, 74 (1982); Injected Rubber, 258 NLRB at 696-697. Furthermore, any duty to demand bargaining about the changes would in any event be excused because such a demand would have been futile. Hudson Oxygen, supra. The Union first learned about the decision to eliminate the unit when union counsel was served with a 9 November 1983 com- pany motion to the Regional Director and the Board. This very motion cited this decision as a basis for dis- missing the petition that would be a necessary basis for a valid certification. Moreover, at all times thereafter the Company has adhered to this contention, has further al- leged that Chou's vote should have been counted, and has further alleged that for these and other reasons, the Union's certification is invalid. Furthermore, after receiv- ing the Union's 18 November 1983 request for rescission of this decision, restoration of the status quo ante, and bargaining about "all mandatory subjects put into issue by its desire to terminate Couriers," the Company ig- nored the letter until after eliminating the unit and there- after sent an "acknowledgement" of receipt "so as to avoid any impression that [the Company] has recognized, or is prepared to recognize, [the Union] as the collective bargaining representative for the news couriers formerly employed by [the Company]." Plainly, the Company had no intention of honoring any union bargaining demand regardless of its date. 3. Whether the decision to cease having Company couriers, and to have work performed by outside firms, was a mandatory subject of collective bargaining My decision in this case is controlled by the plurality opinions in Otis Elevator, supra, 269 NLRB 891 (Chair- man Dotson and then Member Hunter), and in Morco In- dustries, 279 NLRB 762 (1986) (Chairman Dotson and Member Johansen).21 The plurality opinion in Otis stated that "the critical factor to a determination whether [a] decision [to subcontract unit work] is subject to manda- tory bargaining is the essence of the decision itself, i.e., whether it turns upon a change in the nature or direction of the business, or turns upon labor costs; not its effect on employees nor a union's ability to offer alternatives" (emphasis in original). The instant record shows that the Company's decision to abolish the job classification of courier on its own payroll, and to have all of the courier services performed by persons (taxi drivers and couriers) employed by other firms, did not affect the scope, direction, or nature of the Company's business. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 213 (1964); Clinton's Ditch Co., 274 NLRB 728 (1985), enf. denied on other grounds 778 F.2d 132 (2d Cir. 1985). Thus, the Company needed at all rel- evant times the services which, until December 1983, were performed partly by the unit couriers on the Com- pany's payroll. Furthermore, at all relevant times, the 2 1 See O f f i c e E m p l o y e e s Local 11 v NLRB, 353 U S 313, 316 fn 5 (1957), and cases cited supra, fn 17 couriers' job assignments have been made by the Compa- ny's assignment desk editor, and courier service has been available to the newsroom staff during the entire time that the news-gathering function is being performed. Nor did the elimination of the staff courier positions from the Company's own payroll necessitate or lead to the sale of any assets, vehicles, or equipment. "Therefore, to require the employer to bargain about the matter would not sig- nificantly abridge his freedom to manage the business." Fibreboard, supra, 379 U.S. at 213. The Company appears to contend that its decision with respect to the couriers was not a mandatory subject of collective bargaining because that decision was at least allegedly connected with the sale of SNC and the General Counsel concedes that whether to effect this sale was not a mandatory bargaining subject. However, as pointed out in the General Counsel's excellent brief, the Company's decision with respect to the couriers was not part and parcel of the decision to sell SNC. Admit- tedly, the couriers were not employed in the SNC oper- ation. Rather, according to the Company, the couriers' jobs were abolished because the jobs of the employees who had worked in the SNC operations no longer exist- ed due to the sale, the Company decided to retain some of them anyway because of their value to other aspects of the station's operations, the retention of these employ- ees led to what was believed to be an excessive "body count," and the Company decided to reduce the "body count" by (inter alia) eliminating the courier positions, even though the couriers were not included in the SNC budget, had done almost no work in connection with SNC, and had been rendering services that the Company still needed and thereafter obtained from independent contractors. Moreover, according to Goodgame, "body counts" could be adjusted on the basis of unexpected needs or problems, he would not feel it necessary to get in touch with WBC management when implementing an "economy of scale," and WBC management would almost certainly be agreeable to any adjustments that would save money. Indeed, the record indicates that the Company (although it terminated part-time courier Weed, whose job was not included in the full-time "body count") never did comply with any instructions by WBC to diminish the full-time "body count" by as many as 11. Accordingly, the Company could have made a different decision at every stage between its decision to eliminate the jobs made superfluous by the SNC sale and its dec; sion to eliminate the couriers, who were performing still- needed services unrelated to SNC. Hence, the merits of the instant case are unaffected by the General Counsel's concession that the decision to sell SNC was not a man- datory subject of collective bargaining. Further, I agree with the General Counsel and the Union that the Company's decision to eliminate the couriers' jobs turned on labor costs within the meaning of Otis Elevator, and reject the Company's contention otherwise. Goodgame testified that the Company's al- leged decision to eliminate 11 jobs was based on WBC's alleged decision to reduce the Company's authorized "body count" by 11 persons. However, Goodgame fur- ther testified that basically, the "body count" is designed WESTINGHOUSE BROADCASTING to represent a point at which the Company can produce its desired product for the least cost in terms of person- nel. He further testified that when the Company makes a business judgment, it is his normal practice to consider, among other factors, cost as relevant to that judgment. Also, he testified that the Company's management would be subject to "great criticism" by WBC if the Company hired people who did not perform a function. Further- more, in deciding to keep one director who had worked in SNC (a decision that was part of the at least alleged chain of events which eventuated in the abolition of the couriers' jobs), Goodgame was presented with the claim of Production Manager Glover that eliminating both SNC directors would likely result in spending "addition- al dollars for overtime and freelance help." Similarly, before successfully recommending to Goodgame the re- tention of Satellite News Feed Coordinator Mann, Sta- tion Manager Miles had received a memorandum from Mann to News Director Hopkins suggesting that contin- ued use of satellite technology might save the company money. I note, moreover, that among those who recom- mended to Goodgame the elimination of the news couri- er jobs was News Director Hopkins, who had with his own approval forwarded to Miles the above-described Mann memorandum. Hopkins' continuous awareness of courier-work costs is shown by his statement in mid-Feb- ruary 1984 that the Company's costs for that service had remained about the same since the Company's December 1983 elimination of the couriers' jobs. His cost conscious- ness is further shown by his testimony that he assumed his subordinates would have discussed costs with an out- side courier before entering into arrangements for its services, and that management discussed the provision of courier services with both outside courier services and taxicab companies before abolishing the staff couriers' jobs. Accordingly, and in view of the probabilities of the case, I infer that Hopkins' recommendation that the Company abolish its couriers' job was based partly on his conclusion that performing the work through taxi drivers and/or outside courier services would not in- volve costs wholly out of line with the costs of obtaining the services from the Company's own courier employees. To this extent, I do not credit Hopkins' testimony that when management was considering what positions to eliminate after the sale of SNC, he did not estimate or consider the cost to the station of providing the news courier function.22 Furthermore, I agree with the Union's contention in its helpful brief that the Company's decision to have all courier work performed by outside firms was a mandato- ry subject of collective bargaining even if that decision did not turn on labor costs. Although most bargainable decisions do turn on labor costs, the Board and the courts have found to be bargainable a number of deci- sions that do not turn on this factor. See, e.g., Ford Motor Co. v. NLRB, 441 U.S. 488, 498, 500 (1979) (con- ditions under which food is available on job, meal hours, coffeebreak scheduling, cancellation of catering truck 22 I do, however, accept his testimony that he never conducted or, in terms, directed anyone to conduct an analysis of such costs, and never had any discussion with Goodgame that, in terms, concerned such costs 215 service); Meat Cutters Local 189 v. Jewel Tea, 381 U.S. 676, 691 (1965) (particular hours of the day and days of the week when employees are required to work); Fibre- board, supra, 379 U.S. at 222 (concurring opinion) (same); NLRB v. Proof Co., 242 F.2d 560 (7th Cir. 1957), cert. denied 355 U.S. 831 (1957) (union use of company bulletin boards); Transportation Enterprises, 240 NLRB 551, 560 (1979), modified on other grounds 630 F.2d 421 (5th Cir. 1980) (dress codes); Southland Paper Mills, 161 NLRB 1077 (1966) (privilege of hunting on employer's land); Rudy 's Farm, 245 NLRB 43, 49 (1979) (restrictions on bumper stickers attached to employees' cars parked in employer's parking lot); Express Publishing Co., 13 NLRB 1213, 1217 (1939), enfd. in relevant part 111 F.2d 588 (5th Cir. 1940), modified in respects immaterial here 312 U.S. 426 (1941) (employer-newspaper's use of em- ployee-reporter's byline); NLRB v. Knoxville Publishing Co., 124 F.2d 875, 881 (6th Cir. 1942) (same) .23 1 do not believe that the plurality opinion in Otis was directed at cases like the foregoing, which (like the instant case) did not involve decisions that even arguably turned on "a change in the basic direction or nature of the enterprise" (269 NLRB at 893). Rather, I believe that the labor-costs test enunciated in Otis was directed at doubtful cases, in which at least a substantial claim could be made that the employer's decision was not bargainable because it lay "at the core of entrepreneurial control" (Fibreboard, supra, 379 U.S. at 223 (concurring opinion)). As found above, this characterization cannot fairly be attached to the Company's decision to have all of its courier work performed by other firms rather than to have some of it performed by the Company's own employees. Rather, as the Supreme Court said in Fibreboard, supra, 379 U.S. at 215, "We are . . . not expanding the scope of mandatory bargaining to hold, as we do now, that the type of 'con- tracting out' involved in this case-the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment-is a statutory subject of collective bargaining under § 8(d)." Accord: Soule Glass Co. v. NLRB, 652 F.2d 1055, 1088-1089 (1st Cir. 1981). In considering whether particular management deci- sions constitute mandatory subjects of collective bargain- ing, concurring opinions in Otis-generated cases have taken into account factors which the principal opinions in Otis and Morco either abjured or did not discuss. How- ever, because in and since Otis no single rationale in this area has been agreed to by a majority of the Board, some discussion of these factors may be useful in enabling the Board to reach in the instant case a result, if not a ration- ale, acceptable to a Board majority. The plurality opinion in Otis stated (269 NLRB at 892) that the union's ability to offer alternatives was not mate- rial to determining whether the employer's decision con- stituted a mandatory subject of collective bargaining. However, the separate concurring opinions of then mem- 23 See also American Oil Co, 164 NLRB 36 (1967), finding that an em- ployer acted lawfully by rejecting, on the policy ground that it did not favor unionism for engineers and scientists, a union's bargainable request for dues checkoff in a unit including such employees 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bers Dennis and Zimmerman regarded, as critical to such a determination, whether the employer's decision was "amenable to resolution through the bargaining process" (First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678 (1981)). See 269 NLRB at 897, 900. I agree with the General Counsel and the Union that the Company's decision to have all its courier work performed by out- side firms, and to abandon the performance of some of such work by its own couriers, was so amenable under either the Dennis or the Zimmerman approach. Thus, the Union could have attempted to persuade the Company that if it continued to perform the work with couriers in the Company's own employ, the Company would save money as compared with taxicab drivers and outside couriers.24 Further, the Union could have attempted to persuade the Company that it would benefit by having couriers who were solely under the Company's control and owed it undivided loyalty (as compared to couriers who might be simultaneously transporting materials or personnel on behalf of another customer to whom the courier would afford priority, or taxicab drivers who de- layed their service to the Company by picking up other fares).25 Also, the Union could have attempted to per- suade the Company that it would benefit by having couriers who (unlike taxicab drivers or outside couriers) were experienced in the Company's own business, knew the policies of the outside news department, could evalu- ate the relative importance of the materials they were carrying, realized that the quality of the Company's news programs might be adversely affected by delays in the delivery. of videotapes, were familiar with the traffic problems around the Company's studio and around the areas where news cameramen were likely to be working, and could recognize and be recognized by company per- sonnel in crowd situations.26 Further, the Union could have advised the Company that its proposal to discontin- ue the use of its own news couriers had made the Union newly receptive to the Company's proposals that person- nel outside the Union's technician unit be permitted to assist the employees in that unit in carrying technical equipment. Although during contract negotiations as to this unit the Union had rejected the Company's proposal that "talent" be permitted to carry such equipment, the Union did not represent "talent" and, during negotiations at other stations where the Union represented more than one unit, had agreed to relax its customary jurisdictional boundaries between such units. In other words, the Union "was in a position to lend assistance or offer con- cessions that reasonably could affect-i.e., make a differ- 24 As previously noted , 2 or 3 months after the changeover , News Di- rector Hopkins told his staff that the changeover had not saved any money. As discussed infra, the Union could have made proposals that would have made the Company's courier employees cheaper than before 25 As previously noted, the Company changed from Grace Courier to Choice Courier partly because a request to Grace for a courier "Right away to Grace would mean as soon as we can dispatch one from our home office and get one over there to you and to [the Company] right away meant we needed one in five to ten minutes, we had a story to get to " 29 As previously noted , 2 or 3 months after the changeover, staff mem- bers of the news department complained to News Director Hopkins that courier service after the changeover was slower than before , particularly on weekends Moreover, Hopkins expressed concern to TV News Unit Manager Lane about not having couriers there when they were needed ence in-the employer's decision" (269 NLRB at 897, concurring opinion by then Member Dennis), and con- cessions by the Union could have "substantially mitigate[d] the concerns underlying the employer's deci- sion, thereby convincing the employer to rescind its de- cision" (269 NLRB at 901, concurring opinion by then Member Zimmerman).27 These considerations persuade me that the Company's October-November 1983 decision was "amenable to reso- lution through the bargaining process" notwithstanding Goodgame's February 1986 testimony on direct examina- tion that such union arguments could not have persuaded him to alter that decision.28 Goodgame elsewhere testi- fied that the body count could be adjusted "Based on some logical reason for it"; that "The nature of business is if you can save money I don't think anyone is going to get protestive about that"; and that in deciding what jobs to abolish (including the jobs of one full-time and one part-time courier), the Company did not try to reevalu- ate some areas of the building "because they're insignifi- cant in terms of the number of bodies, and very easily analyzed without even giving it thought." In view of such other testimony by him and for demeanor reasons, I conclude that when testimonially insisting that the Union's arguments could not have changed his mind more than 2 years earlier, Goodgame was attempting to avoid both the imposition of a Board reinstatement, backpay, and bargaining order and the possibility that his superiors (and, perhaps, Goodgame himself) might think less of him for making an uninformed, and possibly money-losing, decision. Furthermore, Goodgame reached his decision to retain satellite news feed coordinator Mann (who had been as- signed to SNC) for the obviously self-serving reasons ad- vanced by Mann himself and approvingly relayed by Hopkins and Miles.29 However, Goodgame reached his decision to abolish the staff couriers' jobs without afford- ing the couriers their statutory right to have their union attempt to persuade Goodgame to retain them. Had Goodgame afforded the couriers this right, they might have fared quite differently. For, as the Supreme Court observed in Ford Motor Corp., supra, 441 U.S. at 502-503 fn. 14 (quoting from Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1412 (1958)): Participation in debate often produces changes in a seemingly fixed position either because new facts are brought to light or because the strengths and weaknesses of the several arguments become appar- ent. Sometimes the parties hit upon some novel compromise of an issue which has been thrashed 27 The Company makes no contention that its eventual agreement to the jurisdictional clauses in the technician contract would have rendered the Company unwilling to renegotiate such clauses to its own advantage I note that couriers' wages were lower than the wages of "talent" and technicians 28 As correctly pointed out in the Company's brief (Br 29, fn ), Good- game's testimony in this respect was adduced in response to Flanagan's testimony about what arguments the Union could have tendered-testi- mony received over the Company's objection 29 Rather similarly, Goodgame reached his decision to retain an SNC director and an SNC earth station control engineer after being so urged by Goodgame's management subordinates WESTINGHOUSE BROADCASTING 217 over and over. Much is gained even by giving each side a better picture of the strength of the other's convictions. The cost is so slight that the potential gains easily justify legal compulsion to engage in the discussion. Then Member Dennis' concurring opinion in Otis stated, inter alia, that as to a management decision which has a direct impact on employment but has as its focus only economic profitability, bargaining would be re- quired "only if the benefit, for labor-management rela- tions and the collective-bargaining process, outweighs the burden placed on the conduct of the business" (269 NLRB at 897, quoting from but adding emphasis to First National Maintenance, supra, 452 U.S. at 679).30 In the instant case, if the parties had worked out a mutually agreeable arrangement about the courier issue, they would have achieved one of the principal goals of the Act, "the promotion of collective bargaining as a method of defusing and channeling conflict between labor and management" (First National Maintenance, supra, 452 U.S. at 674). Nor is there any evidence that any appre- ciable burden on the Company's business would have been imposed if the Company had discussed with the Union whether to continue to have some of the couner work performed by bargaining unit employees. There is no claim or evidence that in making its decision about courier work, the Company had any particular need for "speed, flexibility, and secrecy" (First National Mainte- nance, supra, 452 U.S. at 682-683). Indeed, by 13 Octo- ber 1983 the Union had received press reports of the SNC sales agreement, the agreement itself was executed about 27 October 1983, management's discussion about what consequent personnel action to take continued be- tween 12 October and at least 7 November, and courier Weed was not laid off until 2 December 1983. In short, even after the execution of an agreement which for at least 2 weeks previous had been the subject of press re- ports, the Company had ample opportunity to bargain with the Union about the news couriers. The Company's claim of an undue burden is based solely on its claim (Br. 28-30) that any action different from the action it took "would have placed burdens on the [Company's] future operations which would make it impossible to operate under competitive conditions," a claim somewhat diffi- cult to reconcile with the Company's stipulation that the cost to the Company of the cab and courier service, whether employee-provided or not, has been at all mate- rial times an insignificant portion of the entire budget of the news department.3 i However, as discussed supra, the record suggests that if the Company had bargained with the Union about the matter, a feasible different solution might have been found. In any event, "it is not necessary that it be likely or probable that the union will yield or supply a feasible solution but rather that the union be af- forded an opportunity to meet management's legitimate complaints .. ." (Fibreboard, supra, 379 U.S. at 214). For the foregoing reasons, I find that the Company's decision to discontinue the performance of some of its courier work through couriers employed by it, and to have all of its courier work performed by outside firms, was a mandatory subject of collective bargaining. In finding that the Union could have advanced certain specific proposals to the Company if it had bargained with the Union, I have given weight to such testimony by Kenneth Flanagan, who at the time of courier Weed's layoff had been the Union's business representative for more than 2 years. The Company contends that such tes- timony is inadmissible under the Federal Rules of Evi- dence, which control Board unfair labor practice pro- ceedings "so far as practicable" (see Sec. 10(b) of the Act, Sec. 101.10 (a) of the Board's Statements of Proce- dure, and Sec. 102.39 of the Board's Rules and Regula- tions). Flanagan's testimony in this respect was received in connection with the contention of the General Coun- sel and the Union that whether the Company should dis- continue having courier work performed partly by its own employees was a dispute that would have been ame- nable to resolution through the collective bargaining in which the Company allegedly should have engaged. Flanagan is an experienced union negotiator, who from representing the Company's technicians and other televi- sion units has acquired substantial knowledge about the industry generally and the Company's business in par- ticular. In view of these facts, and because he would likely have represented the Union if the Company had consented to negotiations regarding the Company's couriers, I believe his testimony was receivable under Rule 704, and under Rules 701 and/or 702, of the Feder- al Rules of Evidence. United States v. Ranney, 719 F.2d 1183, 1187-1189 (1st Cir. 1983); Teen-Ed v. Kimball Inter- national, 620 F.2d 399, 403-404 (3d Cir. 1980); State Office Systems v. Olivetti Corp., 762 F.2d 843, 845-846 (10th Cir. 1985); Eisenberg v. Gagnon, 766 F.2d 770, 780- 781 (3d Cir. 1985); Indian Coffee Corp. v. Procter & Gamble Co., 752 F.2d 891, 900 (3d Cir. 1985), cert. denied 106 S.Ct. 180 (1985). The authorities cited by the Company do not persuade me that Flanagan's testimony was inadmissible under the FRE. The Company relies on unspecified portions of Rule 611 (whose relevance to this issue counsel has not explained and I do not perceive) and on United States v. Alker, 260 F.2d 135 (presumably at 149-150) (3d Cir. 1958), cert. denied 359 U.S. 906 (1959), decided some years before the FRE became effective.32 Alker held that in a criminal case tried before a jury, the prosecuting at- torney should not have been permitted to ask a character witness for the defendant whether the opinion that the witness had tendered on direct examination would have been the same if he had heard about various incidents (allegedly relevant to the defendant's character) that may °° The other Board members did not discuss this issue a' However, I deem it unnecessary to consider the Union 's contention 32 Regarding the Company's contentions to this area, the Company's that because of the Company's refusal to provide certain evidence (see brief must be read in light of its letter of 10 May 1986, in reply to my supra fn 12), an inference should be drawn that after the abolition of the letter of 22 April 1986 requesting clarification of that brief Alker is cited staff couriers' jobs, the Company spent less money for a given amount of only in the Company's letter, which misstates the volume number and courier work contains no spot citation 218 DECISIONS OF THE NATIONAL LABOR RELATIONS $OARD not have taken place. In contrast, when Flanagan testi- fied in the instant case (tried, of course, without a jury), he, the parties, and I were all aware of the undisputed fact that the Company had never bargained with the Union, and Flanagan's complained-of testimony so as- sumed. In any event, I regard this portion of Flanagan's testi- mony as properly received in the instant administrative proceeding even if the FRE rendered such testimony in- admissible before a Federal district court. "Whether the Board may deviate from [the FRE] depends on the extent to which the Board's proceedings are comparable to the proceedings in federal courts." NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 362 (5th Cir. 1978).33 The challenged testimony of Flanagan (and the testimony of Goodgame; see supra at fn. 28) were received in connec- tion with the issue of whether the Company's decision with respect to the courier work was a mandatory sub- ject of collective bargaining. Although seldom presented to the Federal district courts at all, this kind of issue is one about which the Board has special expertise and its judgment is entitled to considerable deference. Ford Motor Co., supra, 441 U.S. at 495-497. Moreover, testi- mony, by union and employer representatives about what could and what could not have been done if a particular subject had been bargained about is helpful in ascertain- ing whether that subject is "amenable to resolution through the bargaining process" (First National Mainte- nance, supra, 452 U.S. at 678)-an issue which is often highly material in determining whether that subject is a mandatory subject of collective bargaining. Further, the conclusion that the Board can properly receive such evi- dence is supported by the Supreme Court's determination that notwithstanding the 1947 amendments to the judi- cial-review provisions in Section 10(e) and (f) of the Act, the Board retains its status as "one of those agencies pre- sumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." Radio Officers (Bull Steamship) v. NLRB, 347 U.S. 17, 50 (1954), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). In thus reaffirming the Board's retention of the right and duty to exercise its expertise, the Su- preme Court must have assumed that the Board's ability to receive evidence to assist the Board in exercising its expertise was not substantially diminished by the 1947 amendments to Section 10(b), which, as noted, call for district court rules of evidence "so far as practicable." I conclude that the quoted language from Section 10(b) warrants the receipt of Flanagan's challenged testimony. 4. Whether the Company's decision to cease having work performed by company couriers was a mandatory subject of collective bargaining The General Counsel and the Union contend that whether the Company's decision to cease having work performed by the Company's couriers was a mandatory subject of collective bargaining, the impact of this deci- 33 Decision on remand 244 NLRB 875 (1979), enfd. 636 F 2d 129 (5th Cir. 1981). sion on the Company's couriers was a mandatory sub- ject. I agree. First National Maintenance, supra, 452 U.S. at 677-678 fn. 15; Gar Wood-Detroit Truck Equipment, 274 NLRB 113 (1985). Indeed, regarding this branch of the complaint the Company contends only that it was under no duty, to bargain with the Union at all-a de- fense rejected supra at part II,C,2. 5. Conclusion For the reasons set forth above, I find that the Compa- ny violated Section 8(a)(5) and (1) of the Act by subcon- tracting the news courier work without prior notice to the Union and without having afforded it an opportunity to negotiate and bargain with respect to the decision to subcontract and the effects of such subcontracting. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of the Company constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All full-time and regular part-time news department couriers employed by the Company at its Boston, Massachusetts, television facility, but excluding all other employees, guards and supervisors as defined in the Act. 4. At all times since 19 August 1983, the Union, by virtue of 'Section 9(a) of the Act, has been, and is, the exclusive representative of the employees in the aforesaid unit for the purposes of ' collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. The Company has violated Section 8(a)(5) and (1) of the Act by subcontracting the news courier work per- formed by the employees in the aforesaid unit, without prior notice to the Union and without having afforded it an opportunity to negotiate and bargain with respect to the decision about such acts and conduct and the effect of such acts and conduct. 6. The unfair labor practices set forth in Conclusion of Law 5 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in cer- tain unfair labor practices, I shall recommend that the Company be required to cease and desist therefrom, and from like or related conduct, and to take certain affirma- tive action designed to effectuate the policies of the Act. When, as here, an employer has unlawfully refused to bargain with respect to a decision to have bargaining unit work performed by nonunit personnel, the Board at least ordinarily includes in its remedial order a require- ment that the employer resume having such work per- formed by unit employees, offer the unit employees rein- statement to their unit jobs, and make them whole for WESTINGHOUSE BROADCASTING any loss of pay they may have suffered by reason of their removal from their unit jobs. Griffith-Hope Co., 275 NLRB 487 (1985); Pennsylvania Energy Corp., 274 NLRB 1153 (1985); University Health Care Center, 274 NLRB 764 (1985), enfd. mem. 786 F.2d 1170 (8th Cir. 1986); see also Fibreboard, 379 U.S. at 215-217. The Company con- tends in its answer that such an order would be inappro- priate here, on the ground that even if the Company had bargained with the Union about whether to abolish the staff couriers' jobs, the Company would in the end have adhered to its decision to do so. However, as shown supra at part II,C,3, if the Company had bargained with the Union before terminating the couriers, the Union could have offered at least arguably cost-saving alterna- tives, and could have pointed out at least arguable disad- vantages ("right away" and weekend service, realized in the event) of using solely outside couriers and taxicabs. Particularly in view of this evidence, the Company cannot successfully urge that as to whether the couriers would have been retained if the Company had bargained with the Union, the doubts created by the Company's unlawful conduct should be resolved in the Company's favor. See NLRB v. Transportation Management Co., 462 U.S. 393, 403 (1983). Accordingly, the Company will be required to resume the performance by its own staff couriers of the work performed by them prior to 28 No- vember 1983; to offer Wayne Chou and Thomas Weed immediate and full reinstatement as couriers, without prejudice to their seniority and other rights and privi- leges; and to make them whole for any loss of pay they may have suffered by reason of their removal from cou- rier jobs. Backpay shall be computed in accordance with the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).34 In addition, the Company will be required to remove from its files any reference to the removal of these employees from their jobs as couriers, and to notify them that this has been done and that such removals will not be used as a basis for future personnel actions concerning them. See Ster- ling Sugars, 261 NLRB 472 (1982); Griffith-Hope, supra, 275 NLRB 487 fn. 3 (1985). In addition, the Company will be required to post ap- propriate notices. The Company's answer further contends that a bar- gaining order would be inappropriate because as of 2 December 1983, when the Company laid off its only re- maining courier (Weed), the unit consisted of only that one employee. However, Goodgame testified, in effect, that the nonunit job to which courier Chou was trans- ferred effective 28 November 1983 (after the Union had demanded bargaining about the decision to eliminate the couriers) had been offered to him because of that deci- sion (whose unlawful implementation the Order is de- signed to remedy) and pursuant to WBC Executive Offi- cer Ritchie's October 1983 instructions to try to find jobs for personnel "associated with the [SNC} service." Moreover, the evidence that Chou and Weed had been performing 60 hours' courier work a week before Chou's transfer militates against any suggestion that only one 94 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) 219 courier woulci be able to perform the courier work that the Company began to subcontract shortly before Chou's transfer, which is still being performed 7 days a week on the Company's behalf, and whose performance through staff couriers the Company is being required to resume. Accordingly, I agree with the General Counsel and the Union that a bargaining order should issue. Lange Co., 222 NLRB 558, 567-568 (1976); Crispo Cake Cone Co., 190 NLRB 352, 353-354 (1971), enfd. 464 F.2d 233 (8th Cir. 1972). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed35 ORDER The Respondent, Westinghouse Broadcasting and Cable, Inc. (WBZ-TV), Boston, Massachusetts, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Subcontracting work performed by employees in the following unit, without prior notice to International Brotherhood of Electrical Workers, Local 1228, AFL- CIO, and without having afforded it an opportunity to negotiate and bargain with respect to the decision as to such acts and conduct and the effect of such acts and conduct: All full-time and regular part-time news department couriers employed by Respondent- at its Boston, Massachusetts, television facility, but excluding all other employees, guards, and supervisors as defined in the Act. (b) 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) Resume the performance by its own staff couriers of the work performed by them prior to 28 November 1983; offer reinstatement as couriers to Thomas Weed and Wayne Chou, without prejudice to their seniority and other rights and privileges; and make them whole for any loss of pay they may have suffered by reason of their separation from their jobs as couriers; in conformity with the remedy section of this decision. (b) Remove from its files any reference to the separa- tion of Weed and Chou from their jobs as couriers, and notify them that this has been done and that evidence of such separation will not used as a basis for future person- nel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 93 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD essary to analyze the amount of backpay due under the terms of this Order. (d) On request, recognize and bargain collectively with Local 1228 as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such an understanding in a signed agreement. (e) Post at its facilities in Boston, Massachusetts, copies of the attached notice marked "Appendix."36 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 98 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT subcontract work performed by em- ployees in the following unit, without prior notice to International Brotherhood of Electrical Workers, Local 1228, AFL-CIO, and without having afforded it an op- portunity to negotiate and bargain with respect to the decision as to such acts and conduct and the effect of such acts and conduct. The unit is: All full-time and regular part-time news department couriers employed by us at our Boston, Massachu- setts, television facility, but excluding all other em- ployees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under the Act. WE WILL resume the performance by our own staff couriers of the work performed by them before 28 No- vember 1983. WE WILL offer reinstatement as couriers to Thomas Weed and Wayne Chou, without prejudice to their se- niority and other rights and privileges, and make them whole, with interest, for any loss of pay they may have suffered by reason of their separation from their jobs as couriers. WE WILL remove from our files any reference to the separation of Weed and Chou from their jobs as couriers, and notify them that this has been done and that evi- dence of such separation will not be used as a basis for future personnel action. WE WILL, recognize and bargain with Local 1228 as the exclusive representative of all employees in the unit described above with respect to rates of pay , wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such an un- derstanding in a signed agreement. WESTINGHOUSE BROADCASTING AND CABLE, INC. (WBZ-TV)