Storer Communications, Inc.

1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Storer Communications, Inc. and National Associa- tion of Broadcast Employees and Technicians, AFL-CIO. Case 8-CA-16852 June 13, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND DEVANEY On February 6, 1986, Administrative Law Judge Bernard Ries issued the attached decision . The Re- spondent filed exceptions and a supporting brief," the General Counsel and the Charging Party filed cross-exceptions and supporting briefs, the General Counsel and the Charging Party filed an answering brief to the Respondent's exceptions, and the Re- spondent filed a brief in answer to the General Counsel's and the Charging Party's cross-excep- tions. 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,2 findings,s and conclusions except as modified,4 to modify the 1 The Respondent has requested oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to the judge's ruling excluding testimo- ny proffered by Respondent witness Robert Green as irrelevant. We affirm the judge's ruling. Moreover, after reviewing the Respondent's proffered testimony we find that the testimony, if credited, would not affect our decision. a 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 In adopting the judge's rejection of the Respondent's arguments that the Union waived its right to bargain over the changes effected by the Respondent in April, May, and June 1983, we find it unnecessary to rely on his finding that the Respondent's June 7 offer was made in bad faith or his statements about the length of time a union normally must have notice of changes before the changes are made. Rather we rely on the judge's finding that under the circumstances, the changes were presented as a fait accompli and it would have been futile for the Union to have requested bargaining over the changes. In adopting the judge's conclusion that the strike was an unfair labor practice strike from its inception, we rely on union bargaining committee member Wilcox's testimony that the committee recommended to the unit that it go on strike, based in part on the Respondent's unilateral changes that we have found violated the Act. We do not rely on the judge's lan- guage to the extent that it may be interpreted to hold that an unfair labor practice strike may be found based on mere probability. In light of our adoption of the judge's finding that the Respondent vio- lated Sec. 8(a)(5) by failing to supply the requested information about gross pay and new employees' unit status, we find it unnecessary to pass on the violation found by the judge regarding the delay in furnishing other information about the employees. Although the judge found the various 8(a)(5) violations that we have adopted, he did not include in his Conclusions of Law, recommended Order, or notice language stating that the Respondent failed to bargain in good faith with the Union or language requiring the Respondent to bar- remedy,s and to adopt the recommended Order as modified. 1. The Respondent excepts to the judge's finding that its withdrawal of any contract proposal from the bargaining table on May 3, 1983, the day the strike began, and its proposal of much less favor- able terms on July 22, violated the Act. Citing Barry-Wehmiller Co., 271 NLRB 471 (1984), and other cases, the Respondent argues, inter alia, that its actions were privileged because they were based on the Respondent's having "successfully weath- ered the strike." We reject the Respondent's excep- tions with regard to both actions. We adopt the judge's conclusion, more fully detailed in section III, E of his decision, that the withdrawal of any proposal from the table as of May 3, was in retalia- tion for the strike. Further, the asserted reason for withdrawing any proposal, that the Respondent knew that it had successfully weathered the strike-when the strike was in its first day-is so illogical as to support the inference that the with- drawal demonstrated an intent to frustrate bargain- ing. Cf. Hickinbotham Bro& Ltd., 254 NLRB 96, 103 (1981). For these reasons we find that the May 3 withdrawal of any proposal violated Section 8(a)(5) as alleged in the complaint and found in the text of the judge's decision. Accordingly, we will modify the judge's Conclusions of Law that inad- vertently reflect only an 8(a)(1) violation. In its July 22 proposal, the Respondent offered much less favorable terms to the Union than any of its prestrike proposals had, allegedly based on the change in the parties' relative bargaining strength during the strike. An employer is not privileged, however, to reduce its proposals based on econom- ic leverage it gained in a strike caused by its own unfair labor practices. Harowe Servo Controls, 250 NLRB 958, 961 (1980). For this reason we adopt the judge's finding that the July 22 proposal violat- ed Section 8(a)(5) and find it unnecessary to rely on his finding that the proposal was so harsh and vindictive that it evidenced bad faith. 2. The Respondent excepts to the judge's recom- mended make-whole remedy, including restoration of the status quo ante. Citing Dependable Mainte- nance Co., 274 NLRB 216 (1985) and 276 NLRB 27 (1985), it argues, inter alia, that the make-whole gain in good faith on the Union's request. The General Counsel and the Charging Party except to the judge's failure to include this language. We find that in the circumstances of this case such a conclusion is warranted and we will modify the recommended Order and notice accordingly. 5 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be computed 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 January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621 ), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). . 294 NLRB No. 78 STORER COMMUNICATIONS remedy must end as of November 1983 because, it alleges, the Union refused to bargain as of that time. In Dependable, the Board found that the re- spondent violated Section 8(a)(5) in August 1982 by implementing its final offer before the union had a reasonable opportunity to review the relevant in- formation provided to it by the respondent and to analyze the impact such information would have on any counteroffers it might make . Thus, the Board found that the implementation of the re- spondent's last offer occurred before the parties had reached a good-faith impasse. The respondent argued that impasse had been reached because the most-favored-nations clause the union had in other contracts prevented it from making the concessions necessary to avoid impasse . However, the union had requested bargaining information and the re- spondent's unilateral changes were made very soon after it supplied the information . The Board adopt- ed the judge's finding that: There is insufficient evidence to conclude that the Union's requests as of mid-August were not sincere or were interjected solely for delay. I make this finding even given the lack of movement in later negotiations after the in- formation had been supplied . Respondents simply acted too quickly in implementing the last offer to place their theory of the Union's bargaining rigidity to the test. The delivery of the requested information was followed essen- tially without delay by the implementation of the final offers . [274 NLRB at 219.] Although the Board found the violation, it noted that the respondent had reimplemented , in Novem- ber 1982, its final offer based on impasse it alleged occurred after August 1982. The Board remanded the case to the judge to make determinations re- garding the alleged impasse and reimplementation because they could affect the status quo ante remedy. In the supplemental decision, the judge found that after August 1982, "the Union was rigid in bargaining in that the Union did not make the eco- nomic concessions which would have avoided an impasse." 276 NLRB at 30 . The Board adopted the judge's findings that impasse had been reached and that the respondent's later reimplementation tolled the respondent's backpay liability prospectively from the date of reimplementation. In Southwest Forest Industries , 278 NLRB 228 (1986), enfd. 841 F.2d 270 (9th Cir. 1988), the Board reversed the judge's denial of 'a restoration of the status quo ante where the respondent had violated Section 8(a)(5) by making unilateral changes after giving inadequate notice to the union. 1057 Specifically, during a stalemate in negotiations re- spondent Southwest notified the union, on Decem- ber 2, of changes it was going to implement in the interim period until a replacement contract was ne- gotiated . On December 5, it implemented those changes. The union did not request bargaining. Rather, on December 6, it filed unfair labor prac- tice charges . In later communications with the re- spondent the union emphasized the need to resolve the alleged unfair labor practice. Although the judge recognized in Southwest that a make-whole order restoring the status quo ante is the established remedy for the violation he found, he denied the remedy based on his interpretation of Dependable, supra. Specifically, the judge found that the union would not have resumed bargaining even if it had sufficient notice of the changes. In reversing the judge's denial of the remedy, the Board stated, "It is well established that a make- whole order restoring the status quo ante is the normal remedy where an employer has made un- lawful unilateral changes in its employees' terms and conditions of employment ." Southwest, supra at 228. The Board found that Dependable was distin- guishable. It noted that in Dependable the subject of the proposed change had been on the bargaining table before implementation and that the parties bargained to impasse after the respondent 's unlaw- ful changes. In contrast , in Southwest, the changes had not been discussed at the bargaining table prior to the respondent's implementation of them and after the unlawful changes the union linked re- sumption of bargaining to the redress of the alleged 8(a)(5) violation . Thus, the Board noted that the judge's finding that the union would not have bar- gained with the Respondent even absent the unfair labor practice was "purely speculative " and contin- ued, "Inasmuch as the Respondent, as the wrong- doer, bears the risk of any uncertainty that its wrong has caused, we shall order it to restore the status quo ante." Southwest, supra at 229. The Respondent's contention here that the make- whole remedy should be limited to November 1983 was not explicitly raised to the judge and he did not make findings specifically regarding it. We find, however, that the record sets forth sufficient facts on which to make a finding with respect to this issue. The Respondent made changes in terms and conditions in April, May, and June, which have been found to be unlawful . In June, the Union filed unfair labor practice charges . Thereafter, the parties continued to meet, although, as we have found, the Respondent violated Section 8(a)(5) by not being reasonably available . In these meetings, the Respondent required the Union to bargain based on the unlawfully and extensively changed 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terms of employment. It exacerbated the situation by responding evasively to union questions about the actual application of the changed terms6 as well as refusing to provide other information.' Review of the evidence leads us to agree with the judge's assessment that "once the Union went on strike, [the Respondent's chief negotiator] Dimino appeared to have no interest whatever in coming to agreement with the Union" and that the Re- spondent displayed a "serious indifference" to its statutory obligations to bargain.8 In this context, at the October 19 meeting, Union Attorney McKnight demanded that the Respond- ent restore the terms and conditions of employment (except wages) of the unit employees. Chief Engi- neer Robert Green, a member of the Respondent's bargaining team, acknowledged that McKnight elaborated "something to the effect" that the demand was made because the Union was at a tre- mendous disadvantage in bargaining over a fait ac- compli and that the Union was "ready and avail- able and desirous of meetings, but . . . would con- tinue to make the same demand." The Respondent 6 At the September 13 meeting, for example, Union Attorney McKnight asked whether the night differential pay had been eliminated Although the Respondent was aware of the answer, Dimino responded that the Union could ask its members About the Respondent's July 22 proposal, Union Attorney McKnight asked if it "reflects what you are already doing?" The Respondent's attorney responded, "in some cases yes, and in some cases, no," without elaboration Fifteen minutes after the meeting began, the Respondent took a caucus from which they refused to return because "they weren't going to be interrogated by the Union " ' See the violative failures to provide information found by the judge at sec III,K of his decision and adopted supra at In 3 8 The Respondent's minutes reflect, for example, the following ex- change at the October 19 meeting among Union Attorney McKnight, Union Local President Lolli, and the Respondent's attorney Burns Mr Knight commented that in the Company's proposed contract, the prohibition against discrimination against an individual for union activity had been deleted Mr Burns said Non-Discrimination was a good place to start talk- ing He read the Company's proposed Non-Discrimination section Mr Lolli said that was already in the law Mr Burns asked if the union wanted to eliminate the entire sec- tion Mr Lolli asked about non-discrimination for union activities Mr McKnight asked why only the union activities part had been deleted Mr Burns said it's covered in the law, as Mr Lolli had stated Mr McKnight again asked why the union activities part only had been deleted Mr Burns again stated it was covered in the law, so the whole section could be eliminated Mr McKnight said he wanted the union part in there The union has had it for a number of years It had been discussed before the strike, and a tentative agreement had been reached on it Why elimi- nate it now? Mr Burns agreed that it had been discussed, and asked if the union wanted it left in Mr McKnight said he wanted it identical to the old contract At 11 26 A M, there was a caucus When the meeting resumed, at 11 36 AM, Mr Burns stated that the Company had examined its proposal, agreed with Mr Lolli, and would withdraw its Non-Discrimination section He asked if that was acceptable to the union Mr McKnight said it was not acceptable The union was propos- ing the language in the old contract Mr Burns said it sounded like an impasse on Non-Discrimination refused to restore the terms and conditions. Ac- cording to the Respondent's minutes, Dimino stated, "he would not meet again if he had to face these preconditions." The parties met next on November 9, the Re- spondent's first available date. McKnight was not present. Union Negotiator Coyte testified that when the Respondent again declined to restore the employees' terms and conditions he said: Then I have to repeat what was repeated at the last meeting: these proposals only reflect those conditions which you have put into effect since the employees' return to work; and unless and until you return to those conditions that were in effect prior to April the 27th, we see no way there could be any meaningful bar- gaining . . . . We told the company that we were prepared, ready, willing, and available to meet at any time, but that the position that we had taken was firm, and we felt that was the only way we could have meaningful bargain- ing with the company. The November 9 meeting was the parties' last bar- gaining session. The Union's demand that the Respondent restore the terms and conditions that it alleged, and we have found, were unlawfully changed is thus of the same effect as the union demand in Southwest Forest Industries, which "linked resumption of bargaining to the redress of the alleged 8(a)(5) viol^ltion." The Union's demand also distinguishes this situation from Dependable in which the union made no res- toration demand.9 Accordingly, there is no basis to conclude what the outcome of negotiations would have been here absent the Respondent's unfair labor practices. Moreover, Dependable and NLRB v. Cauthorne Trucking, 691 F.2d 1023 (D.C. Cir. 1982), which Dependable cited, are based on good faith negotia- tions (or offers to negotiate) that led to impasse. The evidence in this case precludes finding that the Respondent's conduct reflected a desire to reach agreement. Finally, we note that in Dependable the tolling of the backpay was prospective from the date that the respondent reimplemented its changes. The Respondent has cited no evidence that it informed the Union that it was reimplement- ing its changes. 10 9 We find that it would be inconsistent with the aims of the Act to pe- nalize the Union for attempting to reach a negotiated settlement with the Respondent before it demanded restoration 10 Member Cracraft agrees that the facts of this case are distinguish- able from those in Dependable However, she does not pass on whether she would have reached the same result in that case STORER COMMUNICATIONS Accordingly, we adopt the judge's make-whole remedy including restoration of the status quo ante. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 8. "8. By, on May 3, 1983, withdrawing its final offer for the reason that the Union voted to strike, Respondent violated Section 8(a)(5) and (1) of the Act." 2. Add the following as Conclusion of Law 17 and renumber the subsequent paragraph according- ly. "17. By failing and refusing to bargain with Na- tional Association of Broadcast Employees and Technicians, AFL-CIO as the exclusive bargaining representative, the Respondent violated Section 8(a)(5) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Storer Communications, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Delete the word "timely" from paragraph 1(j). 2. Insert the following as paragraph 1(1) and re- letter paragraphs 1(1) as 1(m). "(1) Failing and refusing to bargain with Nation- al Association of Broadcast Employees and Techni- cians, AFL-CIO, as the exclusive bargaining repr- sentative of the employees in the bargaining unit." 3. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs. "(a) On request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time broadcast technicians employed by this Company in the Engineering Department (of Department of Technical Services, or any present similar de- partment) of Television Station WJKW-TV andor all broadcast technicians at our facility at 5800 S . Marginal Road, Cleveland, Ohio, excluding the chief photographic technicians, office clerical employees , guards and supervi- sors as defined in the Act." 4. Substitute the attached notice for that of the administrative law judge. APPENDIX 1059 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. The National Association of Broadcast Employees and Technicians, AFL-CIO (the Union) is the ex- clusive representative of the following of our em- ployees for purposes of collective bargaining: All full-time and regular part-time broadcast technicians employed by this Company in the Engineering Department (or Department of Technical Services, or any present similar de- partment) of Television Station WJKW-TV andor all broadcast technicians at our facility at 5800 S. Marginal Road, Cleveland, Ohio, excluding the chief photographic technicians, office clerical employees, guards and supervi- sors as defined in the Act. WE WILL NOT discriminate against the Union, or any other labor organization , by refusing to allow the labor organization to post minutes of negotia- tions on bulletin boards located at Station WJKW- TV when we permit unions and employees to rou- tinely post notices of a business and personal nature on such bulletin boards. WE WILL NOT coerce employees by indicating to them that we will deny them the right guaranteed by the Act to have their employer engage in good- faith bargaining. WE WILL NOT, while engaged in collective-bar- gaining negotiations, insist on bargaining with the Union, or any other labor organization, about a certain subject or subjects while not permitting the labor organization to discuss other relevant sub- jects until preliminary agreement has been reached on the first subject or subjects. WE WILL NOT communicate directly with em- ployees and without first consulting the Union, or any other labor organization , regarding terms and 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conditions of employment that are appropriately the subject of bargaining between an employer and a labor organization. WE WILL NOT withdraw a bargaining, offer or take any other retaliatory action against employees for the reason that they engage in a lawful strike. WE WILL NOT make changes in the terms and conditions of employment of employees represent- ed by the Union, or any other labor organization, without having afforded the labor organization a thorough and complete opportunity to negotiate with us as the exclusive collective-bargaining rep- resentative of our employees with respect to such changes. WE WILL NOT threaten to permanently replace unfair labor practice strikers. WE WILL NOT make a regressive contract pro- posal without appropriate and legitimate justifica- tion for doing so. WE WILL NOT refuse to be available at reasona- ble times to engage in collective -bargaining negoti- ations. WE WILL NOT refuse to furnish to the Union, or any other labor organization, requested information that is relevant to the performance by the labor or- ganization of its duties as the exclusive collective- bargaining representative of employees. WE WILL NOT fail or refuse to bargain with the Union as the exclusive bargaining representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL reinstate, honor, and apply the terms and conditions of employment relating to the juris- diction of the union bargaining unit, as set forth and previously applied under section 4 ("Jurisdic- tion") and 5 ("Remotes") of the collective-bargain- ing agreement between the Respondent and the Union, which expired pursuant to agreement of the parties on April 29, 1983, unless and until such pro- visions are changed in accordance with the law. WE WILL reinstate, honor, and apply all provi- sions of the collective-bargaining agreement, which expired pursuant to the agreement of the parties on April 29, 1983, and which are referred to in sub- paragraphs. 10(G) (1)-(10) of the complaint in this proceeding, as amended in writing and at the hear- ing, unless and until such provisions are changed in accordance with the law. WE WILL make whole with interest all employ- ees in the union bargaining unit for monetary losses suffered by them as a result of our failure since on and after June 7, 1983, to comply with the surviv- ing provisions of the expired collective-bargaining agreement, which provided for payment of bene- fits, penalties, premiums, differentials, and other extra payments to employees in the circumstances set out in the expired collective-bargaining agree- ment. WE' WILL on request by the Union, bargain with the Union as the exclusive bargaining representa- tive in the unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement. WE WILL on request by the Union, transfer all technicians in the bargaining unit to the Engineer- ing Department (or the Department of Technical Services or whatever name we use to designate that department at present) under the same terms and conditions of employment that obtained as of April 27, 1983, unless and until we are entitled to retransfer the unit employees in accordance with the law. This provision shall not, however, require or permit, the unilateral recission of any improve- ment in wages, hours, and terms and conditions of employment granted to technicians since the afore- said date. STORER COMMUNICATIONS, INC. Patricia E Snyder, Esq., for the General Counsel. F. Wilson Chockley, Jr., Esq., Michael T McMenamin, Esq., and Marcia E. Hurt, Esq. (Walter, Haverfield, Buescher & Chockley), of Cleveland, Ohio, for the Re- spondent. Samuel C. McKnight Esq. (Klimist, McKnight & Sale, P. C.), of Southfield, Michigan, for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge. This case was tried in Cleveland, Ohio, on 20 days in October and December 1984 and February and March 1985. Briefs were received from all parties on or about 5 June 1985.1 Having reviewed the record, the exhibits, and the briefs, and taking into account my recollection of the de- meanor of the witnesses, I make the following findings of fact,2 conclusions of law, and recommendations. I. A BRIEF STATEMENT OF THE ISSUES The case arises out of negotiations for a collective-bar- gaining agreement in 1983.3 Most of the complaint alle- gations assert that Respondent, in various ways, violated Section 8(a)(5) of the Act. That section makes it an unfair labor practice for an employer "to refuse to bar- gain collectively with the representatives of his employ- ees"; as defined in Section 8(d), "to bargain collectively" is the "performance of the mutual obligation of the em- ' The underlying charge was filed on 24 June 1983; the complaint was issued on 30 September 1983; written amendments to the complaint were made on 18 June 1984 and 10 December 1984; and oral amendments were made at the hearing. 2 Errors in the transcript have been noted and corrected. 3 All dates hereafter refer to the year 1983, unless otherwise denoted. STORER COMMUNICATIONS ployer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of em- ployment, or the negotiation of an agreement or any question arising thereunder, and the execution of a writ- ten contract incorporating any agreement reached if re- quested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." The several 8(a)(5) allegations in the complaint virtual- ly run the gamut of possible discrete violations of that provision: an unlawful refusal to furnish information to the Union, bypassing the Union and dealing directly with the represented employees, failing and refusing to meet with the Union at reasonable times, and other routine violations. At the heart of the case, however, is the pro- priety of the many and substantial changes in the existing terms and conditions of employment made by Respond- ent beginning in April 1983 following a few months of bargaining for a new collective agreement. General Counsel and Charging Party contend that Respondent was not legally privileged to make these changes at the times that they were instituted. In claiming that these changes were legally permissible, Respondent advances several layers of defenses, including an assertion of genu- ine impasse in the negotiations and a waiver by the Union of its statutory right to be consulted. In addition, the complaint alleges that Respondent in- dependently violated Section 8(a)(1) of the Act4 by indi- cating to an employee that the Union's negotiations with Respondent would be futile, by prohibiting the Union from posting copies of its collective-bargaining minutes on Respondent's bulletin boards, and by informing unfair labor practice strikers that they would be "permanently replaced" if they did not return to work by a given date. 5 II. THE MATERIAL FACTS A. Relevant Background Respondent Storer Communications, Inc. owns a tele- vision station in Cleveland, Ohio, known as WJRW-TV or TV8. For more than 30 years, Respondent has ex- tended recognition to the Union (National Association of Broadcast Employees and Technicians, AFL-CIO or NABET) as the collective-bargaining representative of its technicians at TV8, some 50 in number, and has exe- cuted a series of bargaining agreements with the Union. In the last such agreement, the Respondent recognized the Union as the bargaining agent for "all broadcast Technicians employed by the Company in the Engineer- 4 That section makes it violative of the Act for an employer "to inter- fere with, restrain, or coerce employees in the exercise of the rights guar- anteed in section 7," inter alia, "to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through represent- atives of their own choosing " 5 During the hearing, counsel for General Counsel amended the com- plaint to charge that on or about 28 April, Respondent violated the Act by offering the unit employees a contract proposal containing terms dif- ferent than those offered the Union on 27 April Under carefully devel- oped brief, however, neither lists this accusation as one of the issues in the case nor discusses the matter I shall assume, therefore, that General Counsel is, sub silentio, withdrawing the allegation 1061 ing Department of Television Station WJKW-TV" ex- cluding various other categories of employees. TV8 also apparently bargains with three other unions: American Federation of Television and Radio Artist (AFTRA "for one bargaining unit, International Alliance of Theatrical and Staqe Employees (IATSE) for two other units, and "the remnants of the stage hands union." The last bargaining agreement between the parties was to expire on 31 March 1983. On 13 December 1982, ap- parently somewhat earlier than usual, Respondent noti- fied the Union that it desired to begin bargaining for a new contract "as soon as practical." According to Joseph C. Dimino, the chief spokesman for Respondent in the 1983 negotiations, the purpose of the early start was that he "sensed that we were going to have a long and hard bargaining session." It is appropriate at this point to describe the leading prayers in these events; to generally convey my impres- sion of their trustworthiness;6 and to discuss the princi- pal sources of the findings made here. Joseph Dimino came to Cleveland from the Storer sta- tion in Boston in April 1982, as vice president and gener- al manager of TV8, and remained in that position until about August 1983 (in February 1983, Dimino became president of Storer's television stations division, head- quartered in Miami, but at the same time, for some months, continued to act as the general manager of TV8). Although Dimino had never before negotiated an agreement with any union, he led Respondent's bargain- ing team in 1983. Dimino struck me as intelligent, aggressive, and strong, capable of charm, arrogance, and mercurial loss of temper. Nearly all of the witnesses to some extent dis- played partisanship: I would rank Dimino high on the list of those witnesses whose interest in the outcome of these proceedings might tend to color his recollection of the events Like the other witnesses on both sides who attended most of the 22 bargaining sessions in 1983, Dimino did not remember (and could hardly have re- membered) nearly as much of the details of particular ne- gotiating sessions as he said he did, although I am sure that both Dimino and the other witnesses could also recall specific events without being certain of the times that they occurred. The second-ranking member of Respondent's team was Virgil Dominic, the station manager of TV8. Dominic seemed to me a pleasant, mild-mannered, and thoughtful individual Dominic, who is not a professional stenogra- pher, was designated by Respondent to take minutes for most of the bargaining sessions. Despite the positive per- sonal impression that, in general, Dominic made on me at the hearing, there is some reason to distrust the objec- tivity of both Dominic's testimony and his minutes (which by and large consisted of paraphrase and conden- sation of the negotiations).' 6 Such credibility assessments might be useful to subsequent reviewers of the record even if not specifically relied on here, in the event that any such reviewers consider important some contested fact in this extensive record not given express consideration in this decision ° For one thing, the minutes are frequently pejorative in describing the bargaining table conduct of Union Attorney Samuel McKnight (who is Continued 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The third regular member of the Respondent's bar- gaining team was Robert Green, the chief engineer in charge of the engineering department to which all the technicians were assigned before the strike. Green is a likable man, low keyed and straightforward. A former NABET steward, he became a supervisor in 1980, and it was my impression that he felt under some internal pres- sure during his five separate appearance as a witness. Green owes managerial loyalty to the Company; he was present during the entire hearing to advise Respondent's counsel; but under cross-examination, he made some con- cessions which must have seemed significant to him- with some reluctance, perhaps, but nonetheless made. Overall, I would conclude that Green's testimony is gen- erally worthy of trust. Neither of the two other company negotiators, Con- troller Thomas Flavelle and Attorney William Burns, played a major role in the talks or at the hearing. The principal bargainers for the Union were Harry Coyte, an International representative headquartered in Washington, D.C.; Dominic Lolh, the Local Union president, and unit employees Gary Jones, Roger Wilcox, James Stahl, and Maurice Sears. Coyte, Jones, and Wilcox gave the bulk of the testimony for the Union. Stahl was called by the Respondent. Coyte is a pleasant man who apparently spends most of his time engaging in NABET negotiations around the said to have "interrupted," "warned," "threatened," and so forth, while company representatives were "suggesting," "explaining," and "pointing out"), in similar vein, Dominic's minutes sometime have an editorial tenor Secondly, it seemed clear that Dominic at one point dissembled about some off-the-witness-stand conduct After a lunchbreak, union counsel asked Dominic what he had reviewed during the break, and he replied that he had looked at nothing but "portions of the minutes, again, to try to refresh my memory" But Dominic eventually conceded, as charged, that he had been going "over a yellow pad of paper that had all kinds of notes on it" and comparing that material to some "memos summarizing minutes " Respondent counsel subsequently described three different kinds of documents reviewed by Dominic during lunch Dominic thus strayed far from the truth when he first testified that the only matter he had reviewed during the lunchbreak were "portions of the minutes, again " Why Dominic was hesitant to tell the truth about this point, I do not know, but the incident does suggest caution about his overall reliabil- ity Third, Dominic's minutes at times appear to unfairly represent, con- dense, and highlight what actually occurred at the negotiations I am able to say this with some confidence because there is another set of minutes in evidence, taken at the meetings between 24 March and 21 April by a professional stenographer hired by the Union These lengthy minutes are obviously much closer to verbatim accounts of the discussions, and they show up flaws in Dominic's much more abbreviated notes For instance, Dominic's minutes for the 20 April meeting, a session close to the end of the substantive phase of the negotiations, show at page 5 that after lunch and prior to a 2 30 p in caucus, Dimino twice (within a 7-sentence spread) asked if the Union would give the Respond- ent "Booth Announce" (a jurisdictional subject of some importance, as seen later), to which the union spokesman first replied "No" and thereaf- ter emphasized, "We told you, No " The Union's minutes, however, show one such exchange in the morning on this subject and another after lunch I very much doubt that the question was asked yet a third time in the afternoon, as Dominic's notes would have it In addition, a comparison of the two sets of minutes for common dates (as well as testimony by Respondent's own witnesses) makes it evident that Dominic frequently failed to record much of what was said, thus often distorting the import and tone of the discussions As an example, again in the 20 April discussion above referred to, Dominic shows a con- clusionary 4-sentence discussion on the subject of "weather graphics" which occupies a highly detailed 5-12 pages of the union minutes country. I would expect Coyle, even less than the other witnesses, to recall the correct details and chronology of the nearly 20 bargaining sessions that he attended. I also had a feeling, although not as strong as in Dimino's case, that Coyte would be likely to resolve any uncertainty of recall in his mind in favor of the Union. On more than one occasion, it appears, Coyte vigorously denied a fact that other members of his bargaining committee conced- ed (although, on one such occasion, he acknowledged the substance of the point in issue).8 In fact, however, on cross-examination Coyte made many effective conces- sions about the events at the bargaining table, and on the whole I thought him to be a reasonably reliable witness I came to the same conclusion about Jones, a sober and careful technician with 9 years' tenure with Re- spondent; Wilcox, a serious and sincere 20-year veteran employee; and Stahl, an open and intelligent 13-year em- ployee. This is not to say that the three had precise and total recall of the entire course of bargaining. However, I feel confident that they had made a conscientious effort to absorb what had happened and to report the history as best they could at the hearing. In the end, though, it seems to me that the most useful source of guidance about the bargaining must come down to Respondent's minutes, despite the reservations earlier expressed, and the notes taken by the union ste- nographer. While incomplete and tendentious, Dominic's minutes have been confirmed with respect to their broad sweep (at least in the earlier sessions) by the testimony of General Counsel's witnesses. The minutes kept by the stenographer hired by the Union are plainly the best evi- dence of the discussions, but she did not enter the picture until the 24 March session and her last appearance was at the 21 April meeting.9 To the extent that there is conflict between her minutes and those taken by Dominic, I take her reportage to portray a more accurate picture. It seems likely, however, that in the heat of argument, the stenographer may have occasionally missed an exchange or two B. The Pre-19 April Negotiations It does not seem necessary to cover in great detail the first 14 bargaining sessions, extending from 10 January through 6 April a summary addressing the most signifi- cant points should suffice. 1. On 10 January, the Respondent distributed its draft of a complete new agreement (with the exception of a wage proposal), and the Union made several proposals for specific improvements in the existing agreement. The ' Coyte vigorously denied that on 7 June, Dimino "read" a statement in which he told the Union that strikers would be returning to work on the terms and conditions contained in the Company's "handbook" appli- cable to nonunion employees Coyte did concede, however, that he asked Dimino what would be the applicable terms and conditions, and that Dimino replied, "Company policy " Roger Wilcox and Gary Jones both recalled Dimino making such a reference to the "handbook," but did not remember that Dimino read the statement James Stahl clearly recalled that Dimino read the statement and referred to the handbook, and I am sure that Stahl's recollection was the most accurate one ' Given her lack of familiarity with the negotiators and with the tech- nical jargon, I suspect that the stenographer's transcripts may contain some errors and omissions STORER COMMUNICATIONS Respondent's draft contract contemplated, from the standpoint of the Union, adverse changes in 27 articles of the existing 42-article contract, including, for example, elimination of the union-security provision; elimination of the 55-minute partially paid meal period in favor of a 30- minute unpaid meal period; elimination of the night dif- ferential; and even excision of union activities from the protection afforded by the "Non-Discrimination" clause, while leaving intact the remaining prohibitions against discrimination based upon "race, sex, creed, or national origin." 10 Manifestly the most radical changes in Respondent's proposals, however, were those dealing with jurisdiction. As evolved in prior contracts, the 5-page "Jurisdiction" clause had provided broadly in section (a) that "the work covered by this Agreement and to be performed only by Technicians" would be (in abbreviated form) "the installation . . . modification, operation, and mainte- nance of all the Company's technical equipment . . . used in any broadcast operation and the preparation of film or tape for broadcast, or for any non-broadcast pro- ductions, presentations, or auditions." Section (b) of the clause, however, beginning "Persons other than Techni- cians may perform the following work," described in 13 subsections some carefully worked-out exceptions to the sweeping language of section (a), giving nontechnicians the right to handle certain equipment and to perform various technical functions. In addition to the "Jurisdic- tion" clause, there was also a "Remotes" clause, govern- ing the operation of technical equipment when used by Respondent in seven Ohio counties to produce programs "in the field"; although set out separately, the "Remotes" provision also clearly constituted a jurisdictional provi- sion. Respondent's 10 January proposed contract would have shrunk the existing contract from 42 to 35 clauses. Respondent had reworked the "Jurisdiction" clause into a single page. In its four subsections, the clause proposed that "[t]he work covered by the Agreement, and to be performed only by Technicians" would consist of the following- (a) "Installation and operation of technical equipment used in broadcast operations and located in" four specified areas of the TV8 building; (b) "modifica- tion and maintenance of technical equipment used in any broadcast operation, located anywhere on WJRW-TV studio or transmitter premises [except for warranted equipment and equipment requiring specialized repair skills]"; (c) a provision relating to "remote pickups" even though the separate clause on "Remotes" was to be re- tained); and (d) "Operation of film and videotape equip- ment located on WJXW-TV studio or transmitter prem- ises for the purpose of editing program material for broadcast; provided, however, that persons other than Technicians may perform the work described in this Sec- tion 4(d)." 10 Dimino explained this change by saying that even the mere contrac- tual suggestion that Respondent might conceivably discriminate against union activity was "offensive," and the implied slur was totally unaccept- able He apparently was not similarly offended by the logically similar inference to be drawn from the presence of the other prohibited bases for discrimination outlined by the agreement, as noted above 1063 Thus, on its face, the proposal substantially eroded the scope of the detailed and complex jurisdictional language crafted by the parties over the years, e g., subsection (a) introduced a new (and potentially manipulable) geo- graphical limitation on the work to be performed solely by the technicians. The separate "Remotes" clause submitted by Respond- ent, relating to "station programs originating" in seven counties, was almost identical to the existing contractual provision, the primary difference lying in one critical word-the old contract provided that a technician "shall" operate the technical equipment at the point of origin of station programs, and the proposal stated that a technician "may" do so. Dimino testified that the effect of the proposal was to make assignment of a technician in such circumstances a matter of discretion for Re- spondent i 1 International Representative Coyte did not attend the 10 January meeting, which lasted about 2-1/2 hours.12 At that meeting, Dimino told the union committee that the jurisdictional and other changes proposed by Re- spondent "were necessary to allow the Company to be more flexible and get the station ready to operate effi- ciently in the 1980's and 1990's," an argument which he often advanced thereafter at later negotiations. Dimino summarized the principal changes which would be wrought by the company proposal, and Union President Lolli presented 13 union proposals for improvement of employee working conditions, some of which Dimino re- jected out of hand. There followed a discussion of the Respondent's pro- posals, including some exchange about the proposed modifications of the jurisdiction clause, particularly the change which would allow employees other than techni- cians to do editing. "Editing" is a term that, as Chief En- gineer Green testified, may have more than one meaning. It can refer to "the purely physical function of electroni- cally splicing together sections of videotape," and it can also mean the broader function of reviewing the material to prepare for the splicing, a process which includes the previewing or "monitoring"), auditioning, timing, and charting of the videotapes (hereafter, to refer to the edit- ing functions consisting of other than "physical splicing," I shall use "previewing, etc." As shorthand for all the preliminary functions). According to Dominic's minutes, at the 10 January meeting, Dimino went on at some length to explain why the Respondent wanted the flexi- bility to assign other employees to editing as used in the broad sense, a group of functions which had previously t i It may be noted that the exclusivity impliedly awarded by the first clause of new subsection (d) was immediately withdrawn by the second clause 12 The sum total of time expended at the 18 bargaining sessions be- tween 10 January and 27 April, which may be said to be the only meet- ings at which anything remotely approaching substantive negotiating oc- curred, was not very great The sessions usually began around 10 a in and, after a long lunchbreak, ended at 3 p in, when the employee com- mittee members had to report to work Taking into account the lunch- breaks, a number of lengthy caucuses, and some foreshortened meetings, the amount of time actually devoted to discussion in these 18 sessions was relatively small 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD always been considered work done exclusively by the technicians. 2. After further discussion of the Respondent's propos- als, the parties agreed to meet again on 19 January. Coyte appeared at this meeting (which consisted of only about 45 minutes of actual discussion between the par- ties) and, with some vigor, denounced the company pro- posal, saying that he was "rejecting it out of hand." Coyte said that, acting under instructions of the bargain- ing committee, he wanted to work only from the old contract, and that he "was not prepared to start with a new document" but was "only prepared to hear propos- als on the old agreement." While Coyte had not actually read the Company's proposals, Lolli had spelled out the changes for Coyte. Dimino declared, as he repeated at later sessions, that he "wanted the Union to understand that he was serious about the Company's proposals," and that, unlike in past Storer technicians negotiations about which he had been informed, "they were not intended to be used as a ploy, to be withdrawn at the last minute." Coyte replied in kind. Coyte also reiterated that he would not discuss the company proposals, but would only begin with the old agreement. What Coyte may have meant to express here was a thought to which he later gave vent at other meetings: that his understanding of the law, right or wrong, was that an employer must bargain as if the only changes possible are improvements of the employees' positions. I am sure that Coyte, a veteran bargainer, did not really believe any such thing, and, indeed, his later conduct at the bargaining table proved as much. When Coyte insisted that he would not consider the company proposals, Dimino stated that he wished to recess until the meeting set for the following day, and he also, in turn, rejected the Union's proposals. Dominic's minutes read that "[a]t this point, Coyte angrily uttered a string of obscenities." Coyte went on to say that the fol- lowing day's meeting was canceled and that when the Company was ready to talk about the existing contract, it should contact Mr. Lolli." Dimino and Attorney Bums urged Coyte to meet the next day, Coyte refused, and the meeting ended acrimoniously. The Union did not attend the session set for 20 Janu- ary, although Respondent's team did show up and wait for 20 minutes.13 3. After the 20 January session, Respondent posted its minutes of that nonmeeting on the employee bulletin boards. At the next scheduled meeting on 2 February, Lolli objected to this practice, but Respondent continued the practice thereafter (and subsequently, in March, denied a union request to post its own minutes on com- pany bulletin boards). Although there was some discussion of the Respond- ent's jurisdictional proposal at the 1 -1/2-hour meeting on 2 February, several other subjects were also discussed (tools, seniority, etc.), and for the next nine meetings in February and March, relatively little was said, and that mostly generalities, about the issue of jurisdiction, which loomed as the most serious problem confronting the par- ties. Yet the generalities make clear the Union's belief that the Respondent's jurisdictional changes, read literal- ly, threatened the bargaining unit in many ways. For in- stance, at the 2 February meeting, Lolli asked if the company language meant that "employees other than technicians could videotape edit"; when Dimino said it did, Lolli said (and Dimino denied) that the change would "eliminate half the work and a third of the mem- bers of the NABET unit." 4. At the 4 February meeting, during an apparently brief discussion of some union proposals in the jurisdic- tion area, Dimino said that the way the union negotiators were speaking, "he was getting the impression that the Technicians thought the Company was the enemy." Do- minic's minutes show that Coyte agreed with that assess- ment "because of your proposal on jurisdiction." 5. On 16 February, after making what he termed the "concession" of agreeing to negotiate on the basis of the existing contract (which appeared to consist of unsta- pling Respondent's January draft contract and treating each subject contained therein as a separate proposal), Dimino referred to jurisdiction as the "heart of the nego- tiation." He went on to say that the Company needed the proposed changes in order to operate efficiently, but that no one would lose their job as a result of the pro- posal because the Company would "red-line" (i.e., guar- antee the employment of) the current employees (but only "for the life of the new agreement"). He also "said he'd be glad to listen to union suggestions for possible modifications, but this was an extremely important issue 19 At the hearing, Respondent attempted to emphasize Coyte's use of rude language at the 19 January meeting , his probable throwing down of Respondent's proposal on the table, and his obstinacy about the Union not attending the 20 January meeting, as demonstrations of Union "bad faith" which bear upon the issue of the existence of impasse. It seems clear from the testimony that neither Coyte's behavior (nor that of Union Attorney McKnight, who began appearing at the negotiations on 30 March) seriously impeded the bargaining. As for Coyte, even Dimino testified that Coytes' 19 January behavior was merely "posturing," and it was Dominic's testimonial opinion that throughout the January and February negotiations, there was "no con- duct by either side that [he] would have considered out of line for bar- gaining negotiations." As for McKnight, the notes indicate that he displayed occasional impa- tience at what he considered unduly protracted consideration of minor items. Dimino made it clear at the hearing that he did not care for McKnight, testifying, inter alia, that with McKnight's appearance at the end of March, an argumentative tone . . . was introduced into the nego- tiations" (which implies that things had been going well enough with Coyte before then). It does not appear from the minutes that, as Dimino testimonially claimed, McKnight knew nothing about the negotiations and "we had to revisit everything." My own exposure to McKnight over 20 days of hearing made it seem very unlikely that this bright and affable lawyer could have had a seri- ously deleterious effect on the talks-I noticed time and again at the hearing that even when McKnight expressed irritation, it was in an in- genuous and disarming manner, hardly likely to reasonably cause serious offense. Clashes are commonplace in collective bargaining . Even in the more formal setting of an administrative hearing, it occasionally happens that lawyers (and, mirabile dictu, administrative law judges) will engage in im- propriety or "profanity" (R. Br. 19). See Tr. 220 (counsel for Respond- ent: "Jesus."); Tr. 227 (administrative law judge : "[W]hen I saw that notebook come out, I thought, 'Oh my God. Why can't we avoid this sort of thing?"'); Tr. 4263 (counsel for Respondent: "Oh, shut up, Sam, until I do it."); Tr. 4468 (counsel for Respondent: "You mean the God damn minutes are not stipulated to?"); Tr. 5053 (counsel for Respondent: "As long as she's not substantively changing or adding new allegations, God, who cares?" STORER COMMUNICATIONS to the Company." Lolli stated that the Union "is not going to give up jurisdiction." After this general discussion, they went on to speak of several other topics (with the Respondent agreeing tenta- tively to withdraw two of its regressive proposals on probationary period and seniority and to accept the exist- ing contract terms on those items). 6. The negotiations followed this pattern for a long time-a good deal of discussion (and a number of tenta- tive agreements) about relatively insignificant honjuris- dictional matters, and only generalized talk about the ju- risdictional clauses. Thus, at the 2-hour meeting on 17 February, after the parties had spoken about many non- jurisdictional items in some detail, Dimino stated that the Company was serious about all of its proposals, and Lolli replied, according to Dominic's notes, that the Union was serious about jurisdiction and again said that "they are not going to give up jurisdiction." In this connection, I note the testimony of Union Ne- gotiator Roger Wilcox that the Union "had asked, during most every meeting, for the Company to give us specific problems that they had, so that we could modify our ju- risdiction to accomplish what they wanted " Wilcox's testimony was confirmed by Dimino's testimonial ac- knowledgement that "a number of times" the Union "asked the company to provide it with some specific problems, where the Company needed jurisdictional relief, rather than a sweeping clause such as the one the company had proposed." While Dimino added that the Company "responded" on each such occasion, he was not asked to reconstruct the responses. It thus appears that despite Lolli's reported statement that the Union was "not going to give up jurisdiction," the Union in fact solicited Respondent "a number of times" to specify those areas where some relief was needed, so that, in Wilcox's words, "we could modify our jurisdiction to ac- complish what they wanted." 7. At the 2 March meeting, Coyte said that he had been instructed by the committee to say that if the Com- pany was looking for "major changes" in jurisdiction, "it simply isn't going to happen." The company minutes go on to reflect the seemingly contradictory positions asser- tedly taken by. Coyte that asked the Respondent to offer "new proposals on specific changes in jurisdiction" which the Union would address, but that "it would be a waste of time to talk about the proposal because we are not prepared to change or alter present jurisdiction lan- guage."14 After replication by Dimino about needing language for the challenges of the 1980s and 1990s, Coyte again said that if the Respondent wanted to "submit specific examples of jurisdiction changes we will discuss them," but the existing proposal was unaccept- able: "The changes are too broad, too sweeping." The negotiators went on to other issues. This and other discussions persuade me that while the Coyte was adamant about not accepting whole the "sweeping" jurisdictional changes proposed by the Re- spondent, he was acknowledging the possibility of "spe- cific" modifications of the Union's jurisdiction. 14 It strikes me as quite unlikely that Coyte would have made both such statements 1065 8. On 3 March, after perhaps 2 hours of discussion on a number of proposals, and accord on one tentative agreement, Dimino, noting Coyte's announced willing- ness to "discuss specific changes in jurisdiction," asked for a union response to the proposal "which would allow the Company to use other than Technician employees to do editing." Coyte responded that the Union was "not prepared ever to give that up." 9. At the 24 March meeting, the first one memorialized by the union stenographer, most of the net 1-1/4-hour discussion was devoted to nonjurisdictional proposals. is Toward the end of the session, Coyte brought up the subject of jurisdiction over computer equipment and an arbitrator's decision in this area which favored the Union in regard to the use of computer equipment called "Vidi- vote," which is used during elections. Coyte went on to say that the Company had problems in the area of jurisdiction and "we'd like to talk about it We will discuss any point you wish to make and take into consideration anything you might want to explain to us." Dimino referred to the need for flexibility in editing, and, as the discussion progressed, Dimino made it clear that the Respondent wanted reporters to be able to screen, chart, time, "and edit" tape if NABET techni- cians were unavailable. Coyte's reply, as reported by the union stenographer, was that it was "impossible . .. . You're asking us to give up exclusive rights granted over years . . to operate equipment." However, according to Dominic's minutes, Coyte added that "if the Company instead wanted to address a specific area, such as allow- ing other employees to screen and time, then he could ask the committee to explore that area, but as it stands now the Company proposal is too broad." After a caucus, Dimino again spoke at length to stress the fact that he was "deadly serious" about getting the station "ready for the 80's," and was not playing a game. He added, "We have other issues besides jurisdiction which are important. This is not the only issue; it is cer- tainly the most important " Coyte agreed that "jurisdic- tion is most important to Union members" and stated that in view of the Respondent's proposal, "I see no way but confrontation." They then spoke of more mundane matters, and Coyte referred to the possibility of giving notice of termination of the contract 48 hours after its expiration date of 31 March, as required by its terms. 10. They met again on 25 March for 2-1/2 hours and discussed many topics. Some tentative agreements were reached and modified proposals offered. When Coyte at- tempted at one point to discuss the proposals for revising jurisdiction, Dimino said, "I recall we had an agreement that jurisdiction was too complicated and important a matter and we might be well served in moving on to other issues." The bargainers went on to discuss a number of topics other than jurisdiction. 11. With Union Attorney Samuel McKnight and a Federal mediator present, both for the first time, the par- ties convened next on 30 March for a 2-1/2-hour session. 11 The Union offered five modified proposals (on "Video Tape Editing Fees," "Premium Pay," "Arbitration," "Meeting With Union Representa- tive," and "Seniority") at this meeting 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union offered three counterproposals and also made its first proposal on wages: 13 percent per year for 3 years. Although Coyte had twice in previous sessions in March asked Dimino when the Union could expect a wage proposal from the Company, Dimino had put him off. At this session, on the day before the contract was to expire, Dimino stated that the Company "is not prepared at this time to come up with its proposal on wages be- cause we feel there are a number of issues outstanding which would have economic impact on the entire pack- age. We will be in a better position to make a more meaningful response to you after we discuss and resolve some of the other issues on the table ." When McKnight insisted that the Union needed a proposal, Dimino said, obviously out of momentary pique at McKnight's insist- ence, "Minus two, minus two, minus two [per cent]." Later, Coyte asked if the Respondent had "modifica- tions or suggestions or changes to the "jurisdictional pro- posal." He went on to say that the Union had indicated a willingness to consider such modifications. Dimino re- plied that the Union had not submitted a jurisdictional counterproposal. The discussion then got sidetracked into another area. Subsequently, McKnight returned to the jurisdictional track, asking "if there's anything in particular that you're having a problem with" in the expired agreement. Di- mino's answer made reference to a different need from the concepts of operational "flexibility" or "efficiency" the thrust, rather, was that the jurisdictional clause had been "fiddled with over 30 years" and "the time has come to examine it and state it as simply and coherently as possible." After some further discussion about destruc- tion of the bargaining unit, Dimino returned to the need for increased efficiency. 12. At the 2-1/2 hour 31 March meeting, the parties reached tentative agreement on two subjects, and Dimino pointed out that there had been eight issues ten- tatively agreed to. McKnight said that "most of what's been resolved has been resolved by returning to the original contract language or getting modifications or ac- commodations from the Union." After discussion of various topics, McKnight said it appeared to the Union that the way to deal with jurisdic- tion was for the Respondent "to point out specifics which you consider to be problem areas so we can ad- dress them." Dimino agreed to think about it. There fol- lowed, at some length, a discussion of several nonjuris- dictional subjects. In the afternoon, Dimino referred to the status of the jurisdictional issue as an "impasse." McKnight responded that "[w]e're a long way from impasse-there are many proposals and counterproposals in many areas ." Dimino asked that the parties "maintain the status quo of the cur- rent contract through at least the time we meet" on 5 April, but the Union would give no such assurances. Dimino expressed his shock and disappointment, because he had "thought we were making progress this mom- ing-the atmosphere for 11th hour bargaining was cor- dial-there was a sense of give and take." 13. At the 5 April meeting, Respondent made some complicated tradeoff proposals . After a union caucus and then interparty discussion, Dimino again raised the notion of impasse : "I'm beginning to see signs of a defi- nite impasse." Coyte took up the gambit: "I think we're a long, long way from impasse; there are dozens of issues and proposals and counterproposals on the table. If you want your record to reflect that, it's up to you." Compa- ny Attorney Bums replied, "We do." Dimino twice more somberly referred to "impasse" and then handed the Union a modification of [its] origi- nal proposal" on jurisdiction "specifically to deal with complaints raised by the bargaining unit ." He hoped that the Union's response would be of such a nature that "this rapidly approaching impasse can be broken." The modified proposal, however, followed the same format as Respondent's initial proposal on jurisdiction. The last section was altered so that, instead of allowing all "persons other than Technicians " to perform the "op- eration of film and videotape equipment . . . for the pur- pose of editing program material for broadcast," the clause was changed to read, "provided, however, that producers, ENGEFP Cameramen, 1 ° and talent may pre- view, time, and edit tape." This was an attempt, Dimino said, to convince the unit that Respondent had no inten- tion, as charged, to hire a group of low-paid workers to replace the technicians. A change in Respondent's "Re- motes" proposal reinstated the word "shall" as used in the prior contract, instead of the previously proposed "may," but did not resolve the lack of agreement about the Remotes proposal. 14. On 6 April, during 2-hour meeting, Coyte said he was "tremendously disappointed" in the Company's modified proposal and delivered the following message from the union committee: "If you expect to get editing ... we're definitely heading for confrontation ." Coyte and Dimino seemed to agree , however, on a possible res- olution of the remotes issues. After exchanging speeches, Coyte said that if the Re- spondent wanted to reach agreement , "settle-jurisdiction and the rest of the proposals can be settled in 20 min- utes." Following more discussion about the discontent of the employees with the Company's offer,' 7 Dimino suggest- ed that the membership "work up a list of problems you have with it," and agreed that , in exchange, Respondent would "come back and tell you where we think we're handicapped." Subsequently, Domino stated that if the Union said, "We'll never give you the right to edit," the parties would then "have an impasse-a clear, unalter- able impasse." 16 "ENG" stands for "electronic news gathering," the work done by mobile photojournalists using lightweight cameras and video tape record- ers. "EFP" means "electronic field production," referring to productions filmed off premises. 17 At one point, Dominic's minutes have Dimino asking , "Is it really worth a confrontation to lose Vidivote and talent editing?", with Coyte replying, "Yes, it is. It is worth it." The union minutes , however, show no such colloquy between Dimino and.Coyte about confrontation, Vido- vote, and talent editing. It may be that the stenographer simply missed this dialogue entirely, because, at the hearing, Coyte more or less con- firmed his recollection that such an exchange took place (thus showing, as Respondent contends, that the professional stenographer could also falter now and then.) STORER COMMUNICATIONS Coyte agreed to consult the unit members about Di- mino's suggestion. After a caucus, Coyte reported the committee's belief that "50 or 60 items," on the "surface of the proposal," were taken away from the unit. He also said: I'm told there is no way this bargaining unit will ever give up editing. It was explained to me that perhaps you 're confusing editing with previewing, but I would have to disagree with that,- I think you 're aware of the difference. 18 C. The Post-6 April Negotiations and Related Matters It appears that it was not until 19 April, at the 15th meeting, that the parties truly arrived at a sufficiently re- fined understanding of their respective positions on the matter of jurisdiction so that informed and meaningful bargaining could at last begin. 1. At the 1-hour session on 19 April, the Union distrib- uted a list it had prepared of "Work Eliminated Under the Company's Jurisdictional Proposal," which included not only the technical functions then being performed by NABET in various parts of the station not covered by Respondent's proposal, but also a number of other func- tions presumably made nonexclusive by virtue of the broad language of the proposal. After reviewing the list, Dimino angrily criticized it as a complete misreading of the intention behind his proposal; McKnight replied that the Union had been "asking you here for months to tell us specifics," a request that had fallen on "deaf ears "19 Dimino then distributed a new jurisdiction clause which for the first time adopted the format of the expir- ing contract clause. It differed from the old clause in several ways. It slightly changed Respondent's modified proposal first offered on 5 April to provide "that producers, ENGEFP cameramen and talent may edit tape" and that others could "preview, audition, time, and chart tapes " Another change from the prior contract allowed "other than Technicians" to operate not only "character generator equipment" but also "other computer or elec- tronic equipment" for broadcast purposes, and expanded the functions in that category which could be so per- formed by nontechnicians. The proposal also extended the right of "weather per- sonnel and news management personnel" from "operat[ing] weather radar for other than on-air use" to allowing them to "operate weather radar and weather character generator equipment " It added two new pro- visions, permitting nontechnicians to "[u]se video tape recorders in pool coverage" and to "operate audio re- corders for the purpose of recording the announce booth reel."20 The new proposal eliminated the old contractual 18 Dominic'-, notes show no such statement I would not think that the stenographer manufactured this language 19 An observer might conclude that the Union's construction of the Respondent's literal proposal was quite reasonable 20 Under the previous agreement, in "pool coverage"-coverage of an event in conjunction with another station or stations-technicians were exclusively authorized to operate recorders This was also true as to the recording of the announce both reel, a process by which, each day, a sta- tion announcer records daily announcements 1067 provision that, in certain circumstances, a technician would be assigned to work with the personnel of mainte- nance contractors and of installers and modifiers of fac- tory equipment on the premises. Finally, two sentences in the former contract provid- ing for exclusive operation by technicians-the feeding of information into a computer for "assignment and acti- vation of broadcast equipment" and the use of equipment "to override a computer in the assignment and activation of broadcast equipment"-were deleted. At the afternoon session on 19 April, however, the ne- gotiators did not address themselves to the Respondent's modified proposal, but rather to the list drawn up by the Union of its understanding of the consequences of the Respondent's now-withdrawn original proposal on juris- diction. Dimino said that most of the 26 union-listed items were matters as to which he had no interest in re- scinding the Union's exclusive jurisdiction .2 1 He identi- fied six functions as to which Respondent did have an in- terest and said that discussion was necessary on some others McKnight stated that the union committee had exam- ined Dimino's revised proposal with an eye to the fact that "there are a lot of other items on the table which are important," including "wages, little-mentioned to date but serious, union security, hourly increments on overtime wages, meal periods,22 the night differential, and Chief Engineer." Saying that Respondent could not "have all that's there" in its jurisdiction clause, McKnight named some areas in which "we have flexibil- ity," if the "right kind of package" could be put togeth- er." "He designated the following areas as those in which the Union could "give you some relief'. the two- man ENG and remote crews, the Vidivote machine, the weather graphic device, operation of the program logs, and "previewing andor reviewing tape outside of NABET's normal work area," by which he meant that a reporter who wanted to preview could not do so in the NABET editing suites, but would have to go outside the area to another previewing setup and do it there. Di- mino's answer was that it was "not enough." Dimino went on: You have indicated, and I have made clear on a number of occasions, that there are other items apart from jurisdiction which we consider to be im- portant-and there is a lot to be talked about there. It may very well be that these problems are insur- mountable and we won't get anywhere. After a caucus, Dimino, having referred to the items about which the Union had indicated some flexibility, went on to name the remaining issues about which the Respondent was "particularly concerned": pool cover- age; audio recording on one-camera production; an- 21 The union minutes have Dimino saying, "We're not interested in previewing and editing", some words must have been garbled by the ste- nographer 22 This issue, concerning the question of partial payment for the meal period, is also referred to as the "Work-Day-Work-Week" problem 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nounce booth recording; computer equipment outside the master control room; and, "of course," the editing. Dimino then, after stating that the "big issue for both sides has been editing," withdrew the Company's request for nonexclusive "editing," by deleting the last line of the Company's revised 19 April proposal ("except that producers, ENGEFP cameramen and talent may edit tape"). He did not, however, withdraw the provision which would have permitted nontechnicians to "pre- view, audit, time, and chart tapes." The withdrawal of the final edit function from the arena was made "subject to the acceptance of the rest of the language" in the modified proposal. Dimino stated that "This is as far as we can go on jurisdiction." The union bargainers expressed some confusion about Dimino's position. After a lengthy discussion about whether Respondent was making a "concession" by agreeing to NABET exclusivity over a function as to which the Union had exercised plenary jurisdiction for years, Coyle asked, "If we don't accept your position on jurisdiction, are you saying there will be no further bar- gaining?" Attorney Bums answered, "What we're saying is that we're not prepared to modify our proposals any further." When Coyle put the question again, however, Dimino replied, "I don't know-I can't respond on that."23 2. It was at the 20 April meeting that, according to the complaint, the first discrete violation of the Act oc- curred, having to do with the claim that the Respondent refused to bargain about economic matters. After a preliminary speech, Coyle enumerated four items which he said were "outstanding," and he- com- mented on each. As for "pool coverage," Coyte said that the committee was uncertain what Respondent was talk- ing about: "there may be some areas that we're willing to compromise our contract, but you have to be specif- ic." As far "audio recording" (often called the "one-man- band" concept), Coyle was willing to agree that a lone cameraman could, as in the past, operate his own tape re- corder while out even on a nonnews assignment-"that we can clarify and set aside." With regard to announce booth recording , Coyle said, "We are not willing to change our position on that." The issue here was the right of announcers to operate the ma- chine when recording daily reels of announcements- Coyle said that the Union saw the work as a "half-a-man [a week] employment."24 In reference to "computer equipment" Coyle recog- nized two "areas of Union compromise." One pertained to Vidivote, the machine used during elections, and the other was weather graphics, as to which Coyle said the Union would like to "cooperate . . . in providing you with some relief." Coyte went on to say, however, that until the Union has "reviewed those [existing] proposals, has seen a "comprehensive wage proposal" from the Company, and "until we have a settlement on the other outstanding issues, there is no way we can accept a set- 23 Dominic's notes include the exchange between Coyte and Burns but omit Dimino's differing response, as found in the union minutes. 24 Chief Engineer Green thought that the function probably occupied a technician for 1-1/2 to 2 hours on each of 4 weekdays, and three times as much on a fifth day, or a maximum of 14 hours a week. Clement of the jurisdiction issue." While praising the Company's movement of the previous day as a "good sign," Coyle stated that "[the Union] will not be Out in a position that unless we accept this as proposed, that there will be no further agreement with the Company." Dimino, taking note that Coyle had earlier said that everything else could be resolved in a short time if juris- diction could be resolved, objected to Coyte' s suggestion that they leave the subject of jurisdiction . He went on to claim" that Respondent's surrender on final editing was a "giant step forward"-the two sides had looked eye to eye and the Company had "blinked" on this "mega- issue." The "four or five items left on jurisdiction .. . pale in importance compared to editing [and] they really weren't as big a deal to you." Dimino went on to explain why the Company was interested in having flexibility with regard to pool coverage, audio recording, and an- nounce booth recording. He also discussed the desirabil- ity of unhindered control of computer equipment outside the master control room: We would be glad to talk about that. Quite frankly, we don't know when it will be in . . . could be 2 to 4 years down the road. Whether we're talking about word processors or computers or. weather graphics or whatever . . . . We would be willing to structure language on this. Dimino, "think[ing] we have a light at the end of the tunnel," urged that they concentrate on jurisdiction and then remotes. Coyle "agree[d]" with Dimino that they were "close," saying the Union was prepared to make movement in "two or, possibly three" of the four areas, but "not to the extent you want."25 Dimino then asked if they could feel comfortable "on both sides to continue on jurisdiction." Coyte said no, because the "impact of the other proposals has a direct effect on the outcome of these decisions." Dimino re- plied that he wanted "a general agreement on jurisdic- tion . . . before we can go on to something else." Dimino further said that there are "4 to 6 items outstand- ing on jurisdiction. . . . Basically, we have identified them." If agreement was reached on those "problems," "we will put them into the Company proposal modified 41983.... We can add or modify in the body-that's all we'll change." In discussion after a caucus, Coyle talked about the modifications from the old contract language effected by Respondent's latest jurisdiction clause and also made ref- erence to issues in remotes, all of which "still create problems for us." Dimino said that he was not "moving on remotes," and wanted to "get jurisdiction out of the way." Coyte again resisted the idea of continuing to dis- cuss jurisdiction. Dimino then passed out proposed language addressing pool coverage, audio recording, and weather graphics. ss Dimino replied, "Assuming semantics are at work here in the stat- ing of different categories, there may be four or five . We've touched on them, but I'm not sure of the exact number." This problem of quantifying and identifying the unresolved issues recurs throughout the later minutes and the hearing transcript. Compare Dimino's listing of areas in dispute at Tr. 4324-4325, 4337. STORER COMMUNICATIONS After offering a negative evaluation of the Company's positions, Coyte commented that "We have a serious desire and intention to discuss these areas and narrow them down." He again pointed out, however, that there were "major issues" outstanding, such as the proposed deletion of the union -security clause, meal periods, and the first-class license requirement , as well as demands by the Union that "haven't even been addressed yet" Dimino responded that they could "probably find move- ment on some of these items, but I can't discuss them unless jurisdiction is resolved." There followed some discussion of pool coverage and of other jurisdictional issues. Dimino then began asking for the Union's position on the separate sections of Re- spondent's modified proposal ; on some, Coyte said the Union did not disagree, on some he said the Union was "prepared" to "share how we feel the language can be modified to reflect your needs." In a discussion of weather graphics, Coyte explained the amount of work the Union was willing to cede to others ("nonalphanumeric: only the pictures , but not the words and numbers"), and Dimino said he was "not pre- pared to do that." After some talk, Coyte suggested two possibilities for giving Dimino what he wanted in the area of weather graphics The parties then went on to state their positions on other items in the modified pro- posal (as for item 14, Dimino remarked, "That's language we're developing") After lunch, Coyte took up again the subject of pool coverage, which led to a discussion of the relationship between two of Respondent's proposals characterized by Coyte, after some analysis , as creating "confusion." In speaking of weather graphics, Coyte changed the Union's position and offered to allow on-air talent (but not also producers) to perform alphanumeric work. After a long and complicated discourse on weather graphics, Coyte again gave a negative reply to Dimino's second inquiry of the day regarding the announce booth work. In answer to a general question by Dimino , Coyte said, "We have a lot of problems with the proposed con- tract-we're not prepared to live with it." After a 15-minute caucus, Dimino declared that the Union had been very "up front" by announcing in Janu- ary, and maintaining since then, that it was "not pre- pared to give up any jurisdiction." He said twice that he "[thought] we have reached an impasse on jurisdiction," and he distributed letters stating that the contract would be terminated in 48 hours. He further announced that ef- fective 3 p.m. on 22 April, "we will begin to put a new set of work rules in effect, and they will be posted " The Company agreed to continue to negotiate, however. Coyte conceded that while he had said to Dimino that morning that he "believed we were looking at an im- passe on jurisdiction," he pointed out that "there are nu- merous issues on the table which have not been re- solved," that the Union had made three as yet unan- swered counterproposals on jurisdiction, and that he did not agree that an impasse had been reached. 3. The parties met again at 12:25 p m the next day, 21 April, for 8 minutes . Dimino stated that Respondent was making its "final offer," which was subject to change only in form, and he handed out some documents to the 1069 union committee Coyte responded that the Company was telling the Union to "take it or nothing" and admon- ished Dimino that "you negotiate things at the bargain- ing table." Dimino said that if Coyte took the proposal to the membership and the membership "responded," they would meet the next day ; otherwise, he was off to Miami. Green conceded at the hearing that as Dimino abruptly left the room, Coyte evinced "a desire to dis- cuss [the proposal] possibly," but the Company nonethe- less withdrew . Coyte had the Federal mediator seek to arrange another meeting ; the mediator told him that 27 April was the Company's "next available date," and also that the Company had agreed to withdraw its notice of termination of the contract. The documents distributed by the Company consisted of (a) a four-page "Summation of Tenative [sic] Agree- ments in the WJKW-NABET Negotiations and The Company's Final Offer, 4-21-83"; (b) a detailed wage proposal (the first by Respondent since offering "minus 2" for 3 years on 30 March); and (c) another revised ju- risdiction proposal. The "Summation" listed 42 contract clause headings, with a brief description of their respective contents. In this document, Respondent for the most part agreed to abide by the language of the old contract on many clauses which , when negotiations began, it had proposed to change or delete, some of which, such as union-securi- ty and night differential, had appeared to be important to the Union So far as I can tell, none of the provisions set out by the Company reflected an improvement in the preexisting terms and conditions of employment or ac- ceptance of any of the new demands proposed by the Union. With regard to "Wages," the explanation read, "A 5 percent increase per year over 3 years; Some adjustment in steps leading to top scale; Deletion of 1st Class Li- cense Requirement " An examination of the attached wage proposal , which is set up to show how much a technician will earn after, respectively, 12, 24, 36, 48, and 60 months of service, on and after 1 April 1982, 1983, 1984, and 1985, discloses that it differs in signifi- cant ways from the expiring wage provision. For one thing, the latter provided for an increase in wage rates after every 6 months (not 12) up to 48 months (not 60) For another, there was a somewhat complicated explanation about when wage increases would take effect for each employee. Thirdly, the figures shown in the new scale were arranged in a different format than in the previous scale: under the old contract, for instance, the starting salary increased on each first of April of the 3-year period , as did the amount earned at each 6-month interval of service; under the new propos- al, the same amount was earned at each level on each contract anniversary date. Dominic testified that after sending out the summation to employees on 21 April , Respondent received a "lot of inquiries" from unit employees who "didn 't understand the wage proposal ." The contract provision is difficult to comprehend. For example , it would appear that, under the old contract, an employee who had begun employ- ment on 1 January 1979 would have been earning $574 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD effective 2 January 1983, 48 months after hire. Accord- ing to a sentence in the new proposal , any current em- ployees with less than 60 months' tenure would receive their next wage increases "on anniversary dates until [sic] they reach the top of the scale" (after which, as with employees not previously employed, wage increases would fall "on contract dates"). This would seem to mean that the hypothesized employee would receive no increase until 1 January 1984, or 9 months after the pro- posed effective date of the contract (1 April 1983), at which time his salary would increase to $602. If my con- struction of the contract is correct, this employee would not have received a "5 percent increase per year," as stated in the Respondent's summation, since he would only receive his first increase beginning with the final 3 months of the first year of the contract (and the next in- crease, to 632, on 1 April 1984). Thus, for the first year, his annual increase would amount to slightly over 1 per- cent. That the proposal is not easy to understand was evi- denced at the hearing by Station Manager Dominic, who, when asked what the salary would be of an em- ployee hired on 1 June 1983, studied the proposal and fi- nally answered, "I don't know." And while counsel for Respondent declared an intention to have witnesses on the subject, none were ever presented. The 21 April jurisdiction proposal was very nearly the same as the one given on 19 April, except that it made the promised deletion of editing by nontechnicians. 4. According to Coyte, after the 21 April session, he and the union committee felt that they were "getting very close to being able to sign off on a collective bar- gaining agreement." The next meeting took place on 27 April. In the morning, an off-the-record meeting took place between Dimino and Coyte, with a few other ne- gotiators present. Coyte testified that he gave Dimino an idea of the areas that "we were prepared to move in," including "pool coverage, remote broadcasts, recording of video tape . . . Vidivote-those areas where they had indicated to us their need for relief." As for pool coverage, Coyte said the Union was "pre- pared to meet his needs in the area of pool coverage"; Dimino "seemed to be satisfied with that." Coyte of- fered, in weather graphics, to allow weather persons to present their own programs on the air using the weather graphic equipment; Dimino responded that he "felt they needed more flexibility in that area." Coyte also agreed to recede from the union position on audio recording; Dimino seemed content with that concept. As for the an- nounce booth, Coyte told Dimino that he had no author- ity from the committee to capitulate on that issue. Dimino said that the announce booth was "very impor- tant to him"; Coyte replied that "nothing is carved in stone" and that they should, at the meeting scheduled for that afternoon, "exchange some proposals, talk it out, and take it from there." Coyte also testified that he told Dimino that the Union had "concerns . . . in the area of wages, and remote broadcast, and the meal period." He told Dimino that we "wanted to discuss the wage package quite thoroughly; that we were missing material that should have been in it. We wanted an explanation." Dimino was pretty firm on their position on wages. Dimino testified that he thought the meeting was "very productive," in that he believed that Coyte finally had gotten the message that "we were serious, that we had given them a final contract offer." Despite this asser- tion of finality, however, as we shall see, Dimino made two more substantive concessions on the afternoon of 27 April. Dimino also agreed at the hearing that Coyte had "indicated that there was nothing written in stone."2 a At the formal session in the afternoon of 27 April, Coyte went over the Company's last offer and listed those subjects with which the Union could agree and those with which it could not, the latter being wages, ju- risdiction, remotes, and workday-workweek. With regard to jurisdiction, Coyte submitted a written counterproposal that would have allowed nontechnicians to preview, etc., 34-inch videotape "outside the normal NABET work area on equipment connected to a moni- tor for playback only."E7 Coyle further said he knew the Company wanted to change the current language on "audio recordings," and he said "the Union would be willing to consider giving the Company such rights." Coyte also offered a written proposal that would allow nontechnicians to perform "inputting of election results during election day, all other Vidivote functions to be performed by technicians," and one which provided that "Cameramen and reporters may operate video tape re- corders in pool coverage of courtroom proceedings." Fi- nally, with respect to jurisdiction, Attorney McKnight said that the Union would draft language that would assure that the Company would not have to make double payment in interunion disputes (this was viewed as possi- ble problem under the "Remotes" section). Coyte further said, in the area of workday-workweek, that the Union would not accept the Company's posi- tion.2s After a 55-minute caucus, Dimino rejected NABET's offer to allow nontechnicians to preview, etc., tapes out- side the Union's normal operating areas, asserting that this would entail the unnecessary expense of setting up separate tape areas. However, Dimino said that "in his continuing efforts to reach a settlement," he was pre- pared to accept the old contract language on remotes in return for union assurance that would protect the Com- pany from double payment and, further, that he would be willing to accept the old contract language on work- day-workweek.29 86 James Stahl, a most credible member of the union committee called as a witness by Respondent, testified that at the 27 April informal mom- ing meeting, Coyte had said that in the afternoon , "we wished to discuss the wage situation. We tried to make a counterproposal to it." 27 The only available minutes are those prepared by Dominic. Those minutes do not show that the Union made (as it did) three written pro- posals, but speak of them as if they were only concepts. 28 This issue had to do with the treatment of the existing lunch hour of 55 minutes-25 minutes paid and 30 minutes unpaid . By 27 April, the Company had agreed to retain these periods , but not to pay overtime until a technician had actually worked for 8 hours, instead of 7-12 hours, a current practice had it. 29 Respondent asserts on brief that Dimino decided "to agree to the Union 's proposals on the subject of remotes and workday-workweek, " the Continued STORER COMMUNICATIONS These two concessions, said Dimino, were the only ones he was willing to make, and that, except for them, "the Company's Final Offer still stood as the final offer, including wages." Although Dominic's minutes do not so reflect, Dimino testified that Coyte replied that as far as the Union was concerned, "it wasn't a final offer, there was still room to negotiate." Dimino seemed uncertain of his own response to that. At this time, and only a few minutes before the meet- ing ended, Dimino distributed still another modified ju- risdiction offer, prepared during the 55-minute caucus. It differs in several respects from the 21 April proposal. It physically incorporates the written counterproposal on pool coverage made by the Union at the beginning of the 27 April afternoon meeting. Whether, as Respondent's brief states, Dimino also "accepted" the Union's "written proposal concerning vidivote" is questionable; the Union's 27 April written proposal had stated that other employees could be used for the sole purpose of input- ting of election results during election day; what the Re- spondent proposed on 27 April was, "The use of vidi- vote by others will be limited to election preparation and coverage" (emphasis added). Chief Engineer Green stated at the hearing that the Respondent did not, by its modified language, accept the Union's 27 April counter- proposal, although he seemed to regard Respondent's language as somewhat of a concession.30 Coyte, on the other hand, testified that he viewed the language as re- flecting the Union's desire. The modified proposal made by Respondent on the afternoon of 27 April also made two other noticeable changes from the 21 April proposal. One makes reference for the first time to a device never before mentioned in the proposals: "Others [than technicians] may operate viditext for the purpose of off line composing." "Viditext" is an "off line entry" which enhances the use of the "vidifont," or character genera- tor. Coyte testified that this sentence "was a result of our discussions [in the morning of 27 April] and understand- ing that we didn't have a problem with that." Dimino also testified that this and the other new sentences in Re- spondent's last offer on 27 April resulted from that early meeting and were attempts to clarify Respondent's 21 April language so that the Union "would feel comforta- ble with it." But union bargainer Wilcox testified that the subject of "viditext" had not only not been "discussed at the morning meeting," but had not been "discussed at all" during the bargaining. He added that soon after 27 April, other employees asked some of the negotiators the reason for the "viditext" language, and "we had to say that honestly, we hadn't discussed it in negotiations. We didn't know." effect of which was "to return to the original language of the previous contract " The record shows, however, that the Union had proposed on 10 January to improve the old language in two substantive ways which never saw the light of day so The General Counsel errs on brief in asserting that Chief Engineer Green exhibited "confusion" at the hearing as to "the impact of the Re- spondent's April 27 language on wdwote " The transcript reference cited is to a discussion by Green at the 19 April meeting, and Green exhibits no "confusion" there 1071 I am inclined to credit Wilcox on this issue. The evi- dence does not show that the videotext device had ever been the subject of bargaining, and Wilcox seemed quite sure that it had not been discussed on the morning of 27 April. Since that informal meeting was intended to ad- dress only general "concepts" and "brainstorming," it seems most unlikely that the new subject of viditext, and its disposition, arose and was settled at the discussion. It clearly is not, as Dimino generally testified about the lan- guage in the last 27 April proposal, an effort to make the Union feel more "comfortable" about the 21 April pro- posal As for Coyte's testimony, I venture to say that he simply forgot one of the details in a mass of details. I conclude that the "viditext" sentence in the last "modi- fied final offer" proposal brought in by the Respondent in the afternoon of 27 April was virgin material. Another change by Respondent on 27 April was the addition of a new sentence pertaining to weather graph- ics: "Only weather personnel may operate the weather graphics system for broadcast purposes, but others may operate the weather graphics system for non broadcast purposes." The Union's last oral proposal on 20 April had been to allow both on-air talent and technicians to operate the weather graphics system, both alphanumeric and otherwise. Coyte testified that the 27 April "but others" clause went beyond what the Union had pro- posed. Dominic's minutes state only that Dimino then passed out Respondent's second 48-hour termination notice. At the hearing, when asked "what questions did the Union raise on the 27th regarding your wage proposal," Dimino answered, "None." On cross-examination, how- ever, Dimino said that it was "possible" that the Union raised a question on 27 April about the 21 April wage proposal-he recalled speaking to someone about this, but not who or when. Coyte credibly testified, however, that in the off-the- record session on 27 April, he said he wanted to discuss the Company's wage offer in the afternoon session "quite thoroughly." Roger Wilcox also credibly testified that, at that session, the Union said, "We had problems with wages; questions about how the wages were calculated and also missing items in the wage package." Gary Jones and Wilcox testified that prior to the caucus on the after- noon of 27 April, "We told the Company that it [wages] was an area in which we had questions to ask" and, after quickly reading the Company's last offer on 27 April, "We asked about wages," but Dimino gave the Union the contract termination letter at that time. Finally, Chief Engineer Green seemed to concede that, dust before the Union handed Respondent its three written proposals, McKnight stated that "we still had other areas, such as wages, that we want to talk about as well" (Green: "I don't remember the language, but I think I remember that idea"). Although Dominic's minutes simply reflect that the 27 April meeting ended with an exchange about the Compa- ny's 48-hour notice, Green gave some important testimo- ny about the termination of the meeting. When he was asked whether there was "discernible panic" by the Union when Dimino, after passing out the "modified 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD offer, then handed over the notice of termination, Green replied, "I don't know about panic. Obviously, concern and maybe desire to ask questions " Green recalled McKnight saying something like, "Oh, for God's sake, what are you guys doing to us now. Don't walk out." He further remembered that McKnight asked either "for another meeting to be set, or to . . . continue the exist- ing meeting to answer questions." In reply to the inquiry whether he knew "the Union wanted to have more meet- ings immediately and . . . [the Union was] in some state of panic over it," Green replied, "Somewhat." But the Company, he acknowledged, did not respond "at that minute." This was the last meeting between the parties before the Union held a membership meeting on the evening of 2 May, rejected the "modified final offer," and went on strike on 3 May. The negotiators did not meet again until 12 May. During this period in late April and early May, however, even before the union membership rejected Re- spondent's 27 April modified final offer, 3 i Respondent was beginning to make changes in its operations and also made some direct communications to the unit employees. 5. On 27 April, Green addressed a memorandum to "All Technicians." It stated that the contract would ter- minate at 3 p.m. on 29 April, and that unless the Compa- ny's "final contract offer is accepted by this time, some new work rules will be put into effect." While the memo did not delineate all the new rules, it went on, "In an- other memo, I am notifying the staff that, effective upon the termination of the contract, any TV8 employee desir- ing to do so, or instructed to do so, may preview, audi- tion, time or chart ENGEFP tapes." Also on 27 April, Green sent a similar memorandum to "The Staff." 6 On 28 April, Dominic sent to each technician "for your consideration" a summation of the WJKW/- NABET negotiations and the Company's modified final offer made April 27, 1983. In some repect, the "summa- tion" reads like the "Summation of Tentative Agree- ments etc." dated 21 April, discussed above. One change from the prior summation is found in the "Wages" sum- mary, which adds the words "Reinstatement of extra pay for Crew Chiefs." 32 In addition, the latest summation re- stored, without prior discussion with the Union, three wage-related provisions which had been contained in the former contract, but had been deleted from the 21 April proposed wage schedule; the restoration had not been discussed with the union committee. 7. On Friday, 29 April, Dominic sent a memorandum to "NABET Members," saying, inter alia: The Company will -begin placing its new work rules in effect today While the final contract offer will remain avail- able to you for the time being, if the Company does 31 On brief, General Counsel argues that Coyte, Wilcox, and Stahl either denied or were not "clear" that Dimino characterized his 27 April offer as final But the record reference to Wilcox shows him saying, "I don't know whether it was final or final, final " I feel confident that Dimino did refer to it as final, the 28 April distribution to the technicians calls it the "final" offer 32 In the expired contract, the wage schedule had contained a premium amount of $44 for "Supervisors," i e, unit employees who temporarily as- sumed some supervisory duties not receive an answer from NABET to its contract offer by 5 p.m., Tuesday, May 3, the pay raise ret- roactivity provision of the offer will cease to exist at that time. The Respondent's "final offer" distributed on 27 April contained no reference to a "provision" referring to ret- roactivity. Dominic testified that the parties had agreed during negotiations to put into effect retroactively any pay raise agreed to. 8. Also on 29 April, Dominic sent another memoran- dum to "All Nabet Members" in which he said that "various conversations with NABET members" had made it appear that there was a misconception as to how long employees would have to wait for their first wage increase . The memorandum then stated that no member of the unit "will have to wait more than a year from their last increase for a raise" and went on to give three examples to "clarify the company' s wage proposal." Cu- riously, these examples state that the hypothetical em- ployee in each one will receive more than the "5 percent increase per year over 3 years" referred to in the summa- tion. In the first example, the employee is said to receive "a 21% increase over the previous base", the other to ex- amples cite, respectively, 7- and 8-percent increases over the previous bases for the two employees. 9. On 29 April, Coyte, having heard of the 27 April memoranda circulated by Green as described above, sent a mailgram to Green charging a "violation of the Na- tional Labor Relations Act." The mailgram recited that on 27 April, "NABET indicated, among other things, that we were prepared to present modified proposals in several areas including wages, editing fee, etc. We have not even had a chance to make such proposals. . . . The Company broke off negotiations with a new proposal and without even giving NABET an opportunity to re- spond or counter propose. As I am sure you know, we advised the Federal mediator of our willingness and desire to have further bargaining meetings . . . There was and is no such impass [sic]." Green testified that he never received the mailgram; because I thought Green to be an honest witness, I credit his denial (although I have no doubt that Coyte dis- patched the mailgram). There was, however, additional testimony about indi- cations from NABET of a "desire to have further bar- gaining meetings." Coyte was asked during his initial tes- timony only about the mailgram and not about any fur- ther efforts made directly by him around 29 April to ar- range for more meetings. When Green testified for re- spondent some time later, however, he was asked wheth- er he had received any communications from NABET "concerning those [27 April] memorandums " His answer was that he had received a call from Coyte "concerning the work rule changes" on Sunday, 1 May. Coyte asser- tedly told Green that he had unsuccessfully tried to reach Dimino and Dominic, and that he wanted Green to know that "the work rule changes, which were then in effect, were an unfair labor practice." Green said he would pass on the message that Coyte had called to Do- minic or Dimino. Asked if Coyte had said anything else STORER COMMUNICATIONS in that conversation, Green answered, "No. I think not. It was quite brief." Coyte gave rebuttal testimony about this call. He said: I explained to Bob the telegram that sent and why I sent it. And I asked him if there wasn't some way that he could get a message to Joe Dimino to set up another meeting. That I needed desperately to have a meeting with him before they started to put into effect these changes, I thought it would create a lot more problems by putting those changes into effect without having another meeting. I thought if we had another meeting, we may be able to settle that contract. Coyte further testified that Green said that he would try to reach Dimino. I would accept Coyte's version of the call, for the fol- lowing reasons. Given that his mailgram had indisputa- bly referred to wanting an "opportunity to respond or counter propose" and to the Union' s "willingness and desire to have further bargaining meetings," it seems rea- sonable to suppose that he would have indicated such a state of mind to Green over the telephone. Coyte's fail- ure to mention the call during his initial examination may be attributed to the fact that he was not asked about it; that some such call was made was confirmed by Green. A convincing factor here is the failure of Green to ad- dress this point when, shortly after Coyte gave his rebut- tal testimony confined solely to this issue, Green gave surrebuttal testimony, but only as to testimony given by another witness. It is true, as set out above, that Green had earlier given evidence about his call in his direct tes- timony, but he had been somewhat uncertain as to whether Coyte had done more than complain about the commission of an unfair labor practice ("I think not"). Green's testimony shows that he was very busy at the time of the call. In my judgment, when Green, an honest witness, listened to Coyte's testimonial account of the call, he remembered that the account was accurate; and rather than dissemble, he deliberately chose not to con- tradict Coyte's version in his surrebuttal testimony 10. On 2 May, Tony Ballew, the news director, put out a directive to the "news staff," listing four "oper- ational changes that will be effective immediately": (1) that whenever a sound-on-tape interview was done on the station premises, the procedure would be the same as in the field: "The news cameraman will operate both the camera and the tape recorder", (2) that there "is no longer any contractual prohibition" against reporters helping cameramen by carrying gear; (3) that there may be occasions in pool coverage when, a TV8 cameraman not being assigned, the reporter may be asked to turn on the tape recorder; and (4) "as outlined in [Dominic's] note of last week, any of you may now feel free to oper- ate the equipment in the ENG editing areas for the pur- pose of previewing, timing, auditioning, and charting tape." Gary Jones testified that all four of these functions had previously been considered to be within NABET's exclu- sive jurisdiction. Green agreed with Jones that as to at least one of these functions-the station premises inter- 1073 view-Respondent had never sought during negotiations to change the Union's jurisdictional exclusivity. At 1.30 a.m. on 3 May, the Union struck, carrying signs reading "unfair labor practice strike." Apparently the entire bargaining unit joined the job action. 11. Prior to the strike, all 48 or so technicians were as- signed to the Engineering Department supervised by Green, except for two or three who were permanently assigned to the program "P.M. Magazine" (but who re- mained within the bargaining unit and were ultimately supervised by Green). On 4 May, Dimino issued a memorandum to "All Technicians," saying, among other things, that effective 9 May, "some Technicians will have their job classifications changed to `ENGEFP Editor"'; eight named employees "will be assigned to the News Department"; an identified employee "will be clas- sified as EFP/Film Editor and will rejoin the Program Department," along with another technician; a certain technician would be the "EFPENG Editor in the Pro- motion Department"; [r]ates of pay and seniority for Company benefits will not change"; and "Technicians as- signed to the Engineering Department may be called upon to edit, and ENGEFP Editors may continue to be assigned to technical work." Respondent had not pro- posed any such reclassification or reassignment during the negotiations. D. The 12 May Meeting and Subsequent Events 1. Coyte testified, without contradiction, that the Union was told at the conclusion of the 27 April meeting that Dimino would not be available for another meeting until 12 May. He further said that at the end of the 27 April meeting, and at various times thereafter, he con- tacted the Federal mediator and "made him aware of the fact that we would like to have meetings, and . .. it was best to set them up as early as possible." The parties next met on 12 May, while the strike was still on. According to the only notes of the meeting, taken by Controller Flavelle, it was at the outset of the meeting that Dimino announced that, the Union having rejected the Company's final offer, there is "nothing on the table." The parties argued over whether an impasse had occurred. Coyte accused Dimino of having refused to "give the Union an opportunity to respond to its pro- posal" when he left the 27 April meeting. He then stated that the Union was prepared to give the Company a pro- posal on wages and jurisdiction and that they were "pre- pared to honor the progress made by the Company." Dimino replied that he had given the Union "his final offer" and that he would never make a "final, final offer." He went on to say, according to Flavelle's notes, that "the impasse occured [sic] when he asked the unit to give up the announce booth and the unit said no. He said an impasse occured [sic] on wages when the unit said no." He evidently,did not mention the issue of preview- ing, etc. 33 a3 Notes taken by Union Negotiator Stahl also show the Company saying on 12 May Audio (sic] booth was impassed Money was impassed 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Coyte told Dimino that the Union was now proposing a wage scale of "8-7-6 across the board using the lan- guage of the current contract," and he handed Dimino a modified jurisdiction proposal. The proposal, inter alia, reiterated NABET's clause allowing nontechnicians to preview, etc., tape only "outside the normal NABET work area." The 12 May proposal indicates that the Union had conceded on the subject of weather graphics. The Re- spondent's final 27 April clause had provided, "Only weather personnel may operate the weather graphics system for broadcast purposes, but others [than techni- cian]34 may operate the weather graphics system for non-broadcast purposes"; the Union's 12 May proposal stated that "On-air weather persons may operate weather graphics when preparing andor presenting their own weather programs on the air, others may operate the weather graphics system for non-broadcast purposes." It would appear that this clause gave the Company all that it desired in this area for purposes of flexibility. Other differences were some apparently minor provi- sions which had existed in the expired contract and which the Respondent's last proposal had not included. The 12 May offer did not, however, concede a subject which had provoked discussion during the bargaining: the recording of announce booth reels by nonunit em- ployees. The 12 May minutes state that Dimino asked Coyte, "Don't you think I have been serious on wages, booth, and jurisdiction?" Coyte replied that Dimino had "an obligation to review and respond," and he requested that they "sit down to see if an agreement could be reached." At that point, Dimino reiterated that the Union had "rejected our final proposal and everything is off the table"; testimony by Coyte, Jones, Wilcox, and Dimino himself makes it clear that Dimino stated that as soon as the Union went on strike, the Respondent had withdrawn its entire contract offer. Discussion continued, with Coyte saying that if "the announce booth were the only issue left and we said no, then I would agree that there is an impasse," but "when you can trade one issue for another, there is no impasse." Dimino responded that "there is no issue to be traded." Apparently, Dimino had concluded that he was no longer engaging in negotiations; the minutes quote him as charging that "the Union's goal is to re-open negotia- tions." He went on to review the fact that he had given up editing, but the Union had proposed to set up sepa- rate areas for nonunit members to preview, etc.; Dimino said that he wanted to use the current NABET editing booths; Coyte said that to allow nonunit people to come in and use those booths would keep the technicians from working. Returning to the subject of the announce booths, Dimino mentioned that during the negotiations, the Company had stated that the booth would eventually become automated anyway, that the Union had said the booth would not be an issue when the time came to dis- cuss it, and "Now, you don't want to give up the an- nouncers booth." Coyte's answer, according to Flavelle's minutes, was to disagree with Dimino's stated position that "there is 14 The bracketed words are clearly implied, in context nothing on the table." He continued by discussing how the effects of a short strike can be mended, but an ex- tended strike can easily "get out of control." Flavelle's notes show that Dimino simply stated, "I gave you my final offer." After a union caucus of undetermined length, the 1-1/2-hour session ended. There is variance between the testimony of Coyte, Jones, and Wilcox concerning two points. In reciting the 12 May meeting, Coyte stated that in addition to making a new wage proposal, he had also "proposed to reduce the edit fee" (a new clause that the Union had earlier been proposing); neither Jones nor Wilcox, in their ab- breviated testimony about the 12 May meeting, men- tioned this. When Wilcox was asked if he recalled any proposal other than the jurisdictional clause made by the Union on 12 May, he could not "recall anything specif- ic. 11 Jones, however, said that at a point which the compa- ny representatives had walked away from the table, the Union, in the hope of getting them to return, had in- structed the mediator to tell the Company that the Union "would give up its exclusive jurisdiction to record the announcement [in the announce booth]." Jones seemed to have a clear recollection of this. He testified that the Company had talked at the session about an impasse having been reached over the announce booth, and he said that the Union "felt, all along, that it was an issue that seemed to be important to the Company, and we felt that since it was an important issue, that by offering them back [sic], hopefully they would come back to the table and negotiate " Jones further testified that "the me- diator returned and stated that the Company really wasn't going to meet any more that day, and that there was no sense in having any more meeting, that particular session " Despite the failure of Coyte and Wilcox to testify as Jones did on this point, I find, it difficult to disbelieve Jones' testimony, simply because I cannot imagine him constructing it out of whole cloth. The problem with the testimony as evidence of a meaningful move by the Union is that we do not know what, in fact, the mediator told the Company-it could be that he had not fully comprehended the message or had garbled it in transmis- sion. The proposal to make the announce booth nonex- clusive did not, it should be noted, reappear in a written contract draft submitted by the Union in July. Jones was not asked why this was so. I credit Coyte's testimony that on 12 May, he offered to reduce his editing fee proposal. While not corroborat- ed, neither was it denied (Dimino could not "recall" whether the Union made "any new proposals" on 12 May). 2. The next meeting was not held until 7 June. Coyte testified, without objection or subsequent denial, that he had been informed by the mediator that Dimino was not available until that day. Dominic's minutes state that when Dimino was asked to formally respond to the Union's 12 May jurisdictional proposal, he termed it "to- tally unacceptable." Coyte asked if Dimino would "care to modify the Union proposal"; Dimino said no. In STORER COMMUNICATIONS answer to a question by Coyte, Dimino made clear that the Company "had withdrawn all its proposals." Dimino then read a statement. He began by declaring that when the unit went on strike, it "additionally aggra- vated the situation by attempting to hurt the Company by what we believe to be an illegal secondary boycott; the harrassment of non-striking personnel; and interfering with the Company's right to conduct its business. At a subsequent meeting between this bargaining unit and the Company, we reiterated to you that because you voted to reject our contract offer and went on strike, that offer was withdrawn " He went on to read that he expected the strikers to return to work "without any preconditions whatsoever," that the Company "has decided to begin seeking permanent replacements for those Technicians who do not return to work by this Friday, June 10, 1983," and that "[t]he terms and conditions of your em- ployment are spelled out in our Company handbook and all returning personnel will be paid at the wage level they were at when they went on strike." Dimino thereafter said that he would be glad to meet with the union committee "over a period of time and continue the negotiations," offering to meet on Thursday and Friday of the following week. Dominic's notes show that a rather pointless discussion ensued. According to Coyte, when he asked about future meetings, Dimino simply said, "You can arrange those through the Federal mediator," and then departed. Coyte twice testified that when Dimino told him that the returning employees would be working under condi- tions set by the company policy, his response was, "What about the status quo? I don't think you can put them back under company policy." Dimino's reply was simply, "Company policy."35 3. By letter of 7 June, Dimino wrote to each of the striking employees, informing them that the hiring of "permanent replacements" would begin on 10 June; that they should "insure" their jobs by contacting the station by 5 p.m. on 9 June; and that "in returning to work, you do so with no preconditions, and that company policy in regards [sic] to benefits as set forth in the Employee Handbook will apply to you" On 9 June, Lolli wrote Dimino that he had "this day informed all the [strikers] to return to work unconditionally." In a few days, the strikers had returned to work. 4. A memorandum from Dominic to Flavelle date 10 June lists "the new job descriptions and new supervisors for our former NABET Technicians " In a change from the former system of all the technicians being supervised by Chief Engineer Green in a single unit and being known only as "Technicians," the memorandum shows that 10 employees were newly classified as "Video Tape Editors" in the news department, their new supervisor being News Department Director Ballew; 4 employees classified as video tape editors and 6 as "Control Room Operators" in the program department, supervised by Louis Gattozzi; 1 employee classified as a video tape editor in the promotion department, under Supervisor as Jones and Wilcox put more insistent words in Coyte's mouth about the restoration of the status quo, but, since Coyte was the speaker, I will assume that his version of the colloquy is probably more accurate 1075 Joanne Stern and, under Green in the engineering de- partment, 5 "Master Control Switchers," 2 "Video Qual- ity Technicians," 6 "Maintenance Technicians," 11 "VTR/Projector Operators," and 1 "Field Techni- cian."36 A form in evidence shows that when Gary Jones returned from the strike, he was reclassified from his "old" position title of "Technician" in the "Engineer- ing Department" to a "new" title of "Control Room Op- erator" in the program department, effective 10 June. As noted, during the negotiations, Respondent had not proposed any new classifications or departmental trans- fers for the unit employees The testimony shows that the pigeonholing of employees thus effected had signifi- cant impact upon the jobs of many of them, in terms of the limited range of work they were permitted to do as opposed to the broad spectrum they had previously en- joyed, resulting in both monotony and inability to ac- quire or hone various work skills. The recent attention displayed by employers, unions, and scholars with re- spect to enhancing the interest of employees in their jobs by expanding the variety of their functions and authority seems to confirm the self-evident fact that job satisfaction is a substantial and material factor in employment 37 The record also shows that dissimilar vacation systems were put into effect in different departments, affecting the relevant technicians in various ways depending on the system employed.38 After 7 June, many of the work functions which had formerly been performed exclusive- ly by unit technicians were done, as well, by nonunit em- ployees, including functions which Dimino had never proposed as subject to such sharing or had indicated were not functions as to which he wished to modify NABET's exclusivity. The returning employees found many other changes in their terms and conditions of employment. All benefits and advantages which had accrued to them under the complicated provisions of the prior expired contract (e.g., night-shift differential, the premium for failure to receive a 12-hour rest period between shifts) had disap- peared; in their place were the few substantive provi- sions in the Employee Handbook and the whim of "com- pany policy." The employee handbook which Dimino announced on 7 June as being applicable to the technicians is a loose- 31 As of the time of the hearing, Green testified, only nine employees worked under him in the former engineering department, now called the department of technical services, all of them being in maintenance work 37 While Green at first testified that after June, most of the unit em- ployees were doing "basically the same job" as before, he later agreed that the work "possibly somewhat" changed The testimony by the Union's witnesses indicate that there were extreme changes in the variety of the work done by some of the employees 38 Jones, for example, testified that as a result of being assigned to the programming department, a smaller unit, he now enjoys a better vacation selection preference than prior to the strike, but, on the other hand, is allowed to take only 2 weeks of vacation at a time instead of all of his vacation at once He further testified, without contradiction, that compa- ny seniority, not bargaining unit seniority, is being applied to the former technicians (Dominic to Flavelle, 10 June memorandum) in the program department The employee handbook is very general on the subject of vacations ("Vacation periods are scheduled by management taking into consideration individual preferences"), and Respondent, even when it says it applies "Company policy" in such matters, has no real "policy" which prevents differing treatment of the scattered "former" technicians 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leaf notebook, primarily designed to describe some of the benefits and rules which apply to Storer's unrepresented employees, wherever they are located It is, at present, separated into several sections (aside from some intro- ductory material): "Personnel Policies"; "Other Bene- fits"; "Business Ethics"; and various insurance programs, the pension plan, and the pertinent administration proce- dure In the introduction, the Company states that since no handbook can cover every situation, "the Company reserves the right to interpret its stated policies on a case-by-case basis and to grant exceptions when the situ- ation warrants. The objective is fairness to employee and Company, rather than adherence to technicality."39 The "Personnel Policies" section contains nine pages of skeletal terms and conditions of employment, estab- lishing a 3-month probationary period, a 40-hour week, time-and-one-half for overtime after 8 hours, an "open door policy, leave of absence provisions, sick leave (granted on an individual, case-by-case basis"), and so forth. The five-page "Other Benefits" section provided for vacations, holidays, tuition reimbursement, a loan program for purchasing television sets, and a payroll de- duction plan for Storer stock and U.S. Savings Bond purchases The handbook makes no specific provision for wages. 5. In the first week of July, NABET submitted a com- plete contract proposal to Respondent. The jurisdiction provision was identical to that submitted by the Union on 12 May At least on the surface, the wage provision exceeded the asserted "5 percent per year" submitted by the Respondent on 21 April, appearing to demand an in- crease of nearly 8 percent a year, and also apparently in- creased the Union's 12 May proposal. In a letter of 22 July, Dimino rejected the Union's proposal and enclosed a new proposal by Respondent. That 10-page contract represented a shadow of the ex- pired agreement . It basically contained a management- rights clause; a grievance and arbitration procedure; a provision for a 12-month probationary period; provisions for an 8-hour day and 40-hour week, with overtime to be paid in accordance with law and "the policy of the Com- pany"; a layoff clause containing some substantive terms; a provision on jury duty to which the Union had agreed during negotiations; an armed services leave clause; a fringe benefits clause extending to unit employees the "holiday, vacation, emergency and sick leave '40 group insurance, pension or profit-sharing programs, and other benefits it affords its other employees outlined in the em- ployee handbook, retaining , however, the unilateral right to amend, modify or ubstitute such benefits"; a restricted no strike-no lockout clause; new provisions derived from the employee handbook on personal appearance, outside work by employee, and other miscellaneous subjects; a "Non-Discrimination" clause which once again deleted the reference to union activity as a protected subject; "The NABET contract that expired in 1983 expressly adopted the "group insurance , pension plan , separation pay, and retirement benefits programs applicable to other employees, and granted the Company the unilateral right to amend, modify, or terminate such plans " 40 As noted above, the handbook provided at the time that sick leave would be "granted on an individual, case-by-case basis " and a blank wage schedule for six denominated classifica- tions of technician. 6. The next meeting between the parties after 7 June took place on 13 September. The reasons for the lengthy delay will be discussed infra. At the meeting, according to Respondent's minutes, Dimino "asked that the Union discuss the [company] proposal with the Company." Burns and Dimino then made two slightly different statements. Burns said' that "the strike had created a new condition and ... the new condition created by the walkout had made the final offer no longer acceptable from a Company standpoint." Dimino, on the other hand, is quoted as saying that "he wanted to make clear that the Company withdrew its final offer when the Union membership rejected it prior to the strike." This assertion, however, is inconsistent with the written announcement from which Dimino read at the 7 June meeting-"because you voted to reject our offer and went on strike, that offer was withdrawn" (em- phasis added). At another point, Burns again appeared to confirm this relationship ("when the Union rejected the Company's final offer and went on strike, the Company had taken all proposals off the table"). After stating that there was but a blank sheet of paper on the table, Dimino said: "The only thing that is in place is that you are the bargaining agent." He went on to say that the Company stood ready to negotiate a new agreement and "in the meantime the Company will run the Station `As it sees fit."' McKnight asked when the Respondent had begun op- erating the station from scratch, and Dimino answered, "When the Union went on strike." Thereafter, McKnight began to ask a series of questions pertaining to benefits and working conditions, and the company representa- tives eventually walked out. 7. The record shows that the parties met on two more occasions, 19 October and 9 November Those meetings will be discussed below, in connection with the allega- tion of an unlawful refusal to furnish information. III. THE UNFAIR LABOR PRACTICE ALLEGATIONS A. The Refusal to Permit Posting of Union Minutes Taking up the issues more or less chronologically, the complaint alleges that since on or about 25 March, "Re- spondent has prohibited the posting of Union minutes of collective-bargaining sessions, while permitting the post- ing of Respondent's minutes of said sessions on employee bulletin boards [having] permitted employees to post per- sonal notices on the bulletin boards" in the past. There were three bulletin boards in the station: in the engineering department (where the technicians congre- gated), in the news department, and in the lunchroom. The record shows that in February, soon after the meet- ings started, Respondent began to post on the bulletin boards in the newsroom and the lunchroom copies of its minutes; Dimino testified that he did so because he thought the previous sessions had been "counter-produc- tive," and he was attempting to convey this notion to the other bargaining units in the event of a strike. STORER COMMUNICATIONS The union committee, believing that Respondent's minutes were slanted and incomplete , hired its own ste- nographer and, on 25 March, sought permission from Respondent to post its own transcripts next to Respond- ent's minutes Respondent denied the request 41 The Board's rule on this point is simply stated. An em- ployer need not make its bulletin boards available to a union, but if it allows other organizations or employees to routinely use the boards, it commits a discriminatory act when, absent a legitimate explanation, it refuses that same privilege to the union . Gertz, 262 NLRB 985 fn 3 (1982). Station Manager Dominic testified that in the past, it had been common practice for employees to post person- al notices on company bulletin boards and for NABET, without asking permission , to post on the lunchroom and newsroom boards routine notices of the Union's activi- ties; they "were never moved" by the Company Gary Jones testified that he has seen business cards; advertising posters, personal notices about intrastation football games, and AFTRA notices, on the boards. Coyte said that over the years he has observed on the lunchroom board employee messages (selling items such as Girl Scout cookies; advertising carpools) and notices by AFTRA, IATSE, and NABET. Green confirmed the foregoing testimony, although he said that when he would see union notices on the lunchroom board, he would "usually take them down" as being inappropriate. While this latter statement conflicts with that of Do- minic, at least with respect to the lunchroom' board, it also means that Green did not "always" take such no- tices down, and then only in the lunchroom. There was no explanation offered by Respondent for excepting NABET's minutes from the general privilege conferred upon the other unions and employees. On the facts found, I must conclude that Respondent violated the Act by discriminating against the Union in this con- text. B The Ed Guild Incident The complaint charges that in early April, Respond- ent's "agent and supervisor" Ed Guild "indicated to an employee that the Union's negotiations with Respondent would be futile." Rondlay Holmes, a TV8 technician for 9 years, testi- fied that in a conversation in March or April with Direc- tor of Maintenance Ed Guild about the Union, a topic which came up "quite often" between the two, Guild was saying that the Company would like to pay lower wages to some employees who were not pulling their weight. When Holmes said that the Union would not let the Company do that, Guild replied, "The Company is going to fuck the union" (and then gave a "dirty laugh"). They exchanged a few more words and the con- versation ended. 41 Although Respondent asserts on brief that the evidence does not show that the Company denied the Union use of the engineering depart- ment board, the company minutes for 25 March show that Burns clearly proscribed the use of any bulletin board for the designated purpose by the Union 1077 On cross-examination , Holmes said that the statement "shook [him] up" because he "thought it was possible that [Guild] may have inside information," and he "rea- sonably believed at the time [that Guild] was telling [him] the truth about the company's intention or compa- ny policy." However, Holmes also admitted that in speaking with company counsel in Dominic's office in June 1984, he said he "knew at the time Ed Guild made the statement . . . that Ed Guild had neither the knowl- edge nor the authority to make such a statement. On re- cross, Holmes explained this contradiction by saying that at the time Guild made the statement, Holmes had be- lieved that Guild might have access to special knowl- edge of the Company's position, but when he spoke with company counsel more than a year later, he had reevalu- ated his opinion of Guild's position. Guild did not "recall" that he had engaged in any such conversation with Holmes. Despite the change in Holmes' testimony with regard to Guild's perceived au- thority, I found Holmes to be a much more impressive figure than Guild, and I do not believe for a moment that Holmes simply fabricated this conversation.42 I also believe that the statement made by Guild had a reasonable tendency to coerce Holmes. While it had no well-defined meaning, it clearly implies that the Compa- ny intended to hurt, weaken, or, at the least, not deal in good faith with the Union. Such an expression of senti- ment could foreseeably chill an employee's inclination to lend support to the Union. The remaining question is whether Guild's statement is fairly attributable to the Respondent. At the hearing, counsel for Respondent conceded that Guild is a "super- visor" within the meaning of Section 2(11) of the Act, but denied that he was Respondent's agent for purposes of making the alleged statement.43 The Board has always imputed to their employers coercive remarks by statutory supervisors, without further inquiry into their agency status. E.g., Jays Foods, 228 NLRB 423 (1977), enfd. on this point 573 F.2d 438 (7th Cir. 1978). But even application of the more searching analysis found appropriate by the Court of Appeals for the Third Circuit in NLRB v. National Apartment Leasing Co., 726 F.2d 967 (1984), remanding 263 NLRB 1544 (1982) '44 would, I believe, support a conclusion that Guild was "reasonably viewed by his listening employee colleagues as speaking on behalf of management." 726 F.2d at 971. The station organizational chart for February 1983 shows that Guild was placed directly under Green, the head of the engineering department, and directly above 42 Although Guild testified that he spoke to Holmes in his office or elsewhere everyday, the only subjects that they addressed, Guild said, were equipment needs , the personal computers that Holmes was teaching him to operate, and training schools But on later examination, he con- ceded having discussed "the union or negotiations" with Holmes "only in general terms " Holmes believably said that Guild was rabid on the sub- ject of the Union 42 Counsel did not specify which of the statutory characteristics of su- pervisory status qualified Guild as a "supervisor " His job description states, among other things, that he exercises "direct supervision of techni- cians performing maintenance " 44 On remand, the Board accepted the court's determination as the "law of the case," but did not otherwise adopt the change in approach suggested by the Third Circuit 272 NLRB 1097 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the technicians. Despite his evident testimonial efforts to minimize his responsibilities , Guild admitted that he had an office next to Green's (separated by a secretary); that he assigned overtime "maybe once or twice a week," consulting Green if he was available; that he attended the weekly department head meetings about once every other month, when Green was not available;45 that he scheduled employees for vacations according to a deter- mined procedure; that he, together with Green, attended grievance meetings, but only as an observer; that Green had asked his opinion about hiring new employees; that he had, by himself, interviewed three applicants for em- ployment, although there were no jobs open for them at the time; and that he "concurred with the choice" of promoting an employee to technical supervisor. Given this array of apparent managerial responsibil- ities, I would conclude (even though Board law does not presently require such a separate finding) that employees would generally tend to regard Guild as a reasonably im- portant member of the hierarchy whose stated opinion of company intention could be taken as authoritative. In so concluding, I draw an adverse inference from the Com- pany's refusal to comply with a subpoena requesting plainly relevant information as to Guild 's salary. Jays Foods, supra, 228 NLRB at 427. It follows that the statement made to Holmes in March or April was, as alleged, violative of Section 8(a)(1).46 C. The Alleged Insistence on Bargaining in a Certain Mode The complaint alleges that "[o]n or about April 20, 1983, during a collective bargaining session, Respondent refused to discuss non jurisdictional issues until all juris- dictional issues had been resolved." At the outset of negotiations, the parties had agreed to engage in so-called package bargaining , the usual proce- dure under which "tentative agreements" on separate topics would be of no effect, until a total "package" had been agreed upon. Starting in January, the bargainers had talked at length and had entered into tentative agree- ments on a number of subjects, but they concerned, as Green testified, the "small" issues where "resolution was possible." Nonetheless, from the beginning of bargaining, the dis- cussion about Respondent's jurisdictional proposal indi- cated that the parties fully understood at least some as- pects of its general import. Frequent references were made by both sides to the asserted consequences of the proposal-flexibility and economy of operations on the one side, loss of jobs on the other-and the Union made several requests that the Respondent specify what it need in terms of jurisdictional "relief." It was not, however, until 19 April, when the Union produced (at Dimino's suggestion) its list of foreseeable jurisdictional losses arising from a literal application of the Respondent's new language, that the picture of what the Respondent was and was not actually interested in 45 Holmes had been told that Guild attended such meetings. 4s I have examined Bardcor Corp., 270 NLRB 1083 (1984), relied on by Respondent. It seems to be distinguishable from the present case in at least three principal respects. became clear. It was at that point that Coyle reminded Dimino that there were many nonjurisdictional items still awaiting resolution, including wages, the Company's pro- posal to jettison the union-security clause, and so forth. Thereafter, Dimino revised his "editing " proposal so as to preserve NABET exclusivity, an event which prob- ably made ever more relevant to Coyte the Respondent's attitude toward the outstanding nonjurisdictional sub- jects. On 20 April, Coyte told Respondent that the Union was willing to talk about relief in various jurisdictional areas, but (according to the union minutes) until the Union reviewed the proposals and until "we see a com- prehensive wage proposal from the Company and until we can have a settlement on the.other outstanding issues, there is no way we can accept a settlement on the juris- diction issue." As of 20 April, Respondent had made no realistic wage proposal. Dimino drew the discussion back to jurisdiction, but eventually Coyle stated that "there is no way we are prepared to settle on jurisdiction unless we address the other issues." When Dimino nevertheless asked if they could feel "comfortable" about continuing to discuss ju- risdiction, Coyte said they could not, explaining that the "impact of the other proposals has a direct effect on the outcome of these decisions." They then began to attempt to enumerate the jurisdic- tional problems. After a long speech by Coyte, Dimino said, "We are prepared to negotiate and look at the Union demands and into the other items outstanding. We can probably find movement on some of these items, but I can't discuss them unless jurisdiction is resolved." Coyte then asked if Dimino was "declaring an impasse over one issue? Until we settle jurisdiction?," and Dimino replied that he had "requested that we bargain over the major issue." The minutes then show that, with Dimino saying, "We have to get jurisdiction out of the way," the bar- gainers resumed discussion of jurisdictional matters. Not long thereafter, however, Coyte expressed his un- happiness over the fact "that Dimino had several times in- dicated that "as far as he's concerned, it's essential that jurisdiction be resolved before we can go on." Attorney Burns answered that "to the extent we can develop an understanding on jurisdiction, it would be helpful"; Coyle said that he "understood." Coyte then picked up the subject of jurisdiction and begun to discuss it. After lunch and then a caucus, Dimino declared his belief that they had reached an impasse, and he distribut- ed letters declaring that the contract would be terminat- ed after 48 hours. Coyte replied that there were "numer- ous issues on the table that had not been resolved," and that he did not believe that an impasse had been reached. On the following day, 21 April, at a meeting which lasted for 8 minutes, Respondent distributed its first "final" offer, making its only meaningful wage offer (as- sertedly "a 5 percent increase per year"); and restoring, without prior discussion, a number of the topics (such as union security and night differential) about which the Union had been concerned. STORER COMMUNICATIONS As earlier described, the parties met rather briefly again on 27 April, with the Respondent making a "modi- fied final offer," and the strike began on 3 May. Collective bargaining requires a willingness to engage in comprehensive discussion of all proposals pertaining to terms and conditions of employment, in the hope that the full disclosure of information, the reasoned exposure of weaknesses or strengths in the supposed bargaining positions, and the perception of mutual advantage to be derived from the compromise of one item with another, will result in a pact putting to rest the shape of the in- dustrial environment. "Bargaining does not take place in isolation and a proposal on one point serves as leverage for positions in other areas." Korn Inc. v. NLRB, 389 F.2d 117, 121 (4th Cir. 1967). I do not doubt that if one party takes the unyielding position that a certain bargaining subject must be settled before there can be discussion of other areas, a violation of Section 8(a)(5) would be made out. See Patrick & Co., 248 NLRB 390, 393 (1980)." On the other hand, it is obvious that in negotiations, one of the parties must oc- casionally take the lead in suggesting the agenda. Since consensus on what to discuss may not always be easily achieved, it would only be sensible that one of them be permitted at least temporarily to demand, insist upon, or "impose" an order of discussion. As long as this insist- ence is reasonably confined in time and not maintained to the point at which the continuance of negotiations is threatened, there is no serious harm in such an approach. Here, all other things being equal, it would not be senseless for Respondent to urge that the parties, having just identified on 19 April the specific subjects of juris- dictional dispute, to explore and attempt to settle that subject first. It was equally understandable that the Union might think it useful at that juncture to turn to nonjurisdictional matters, both those previously discussed and some never discussed, to ascertain where the Re- spondent stood on those items in the light of the new ju- risdictional development. As pointed out, Dimino's language more than once was demanding rather than simply inducing. "I can't dis- cuss them unless jurisdiction is resolved", "we have to get jurisdiction out of the way." On the other hand, the record indicates that despite Dimino's stringent language, he also sometimes seemingly moderated his position from insistence to invitation, and Coyte, in turn, appeared to soften his opposition into acquiescence. Thus, after Dimino had made the "I can't discuss" statement just quoted, he downshifted into saying that he had merely "requested" that they bargain about jurisdiction, and dis- cussion on that topic resumed. When Coyte later com- plained about Dimino's earlier indications that jurisdic- tion must be first resolved, Burns replied that the devel- 47 Cal-Pacific Furniture Mfg Co, 228 NLRB 1337 ( 1977), enf denied 580 F 2d 942 (9th Cir 1978), cited by counsel for the General Counsel, differed in that the employer there refused to bargain about other sub- jects until the union accepted its proposal on one of them The other case cited by the General Counsel , Parkview Nursing Center II Corp, 260 NLRB 243 ( 1982), also seems inapposite , involving, as it does, a context of overall bad faith Respondent's citation to Purity Biscuit Co , 13 NLRB 917 (1939), which deemed not unreasonable the employer's insistence on disposing of the only issue which had led to an impasse and strike, is I think, also factually distinguishable 1079 opment of an understanding on jurisdiction would be "helpful", saying "I understand," Coyte himself then went on to renew the jurisdictional discussion which had been in process. But I do not believe that the events of 20 April can be viewed in vacuo. The minutes makes clear that Dimino continually pressed on that day to resolve the subject of jurisdiction, and Coyte, while resisting, did not make a Federal case out of it. One must suppose that Coyte was attempting to be diplomatic, on the misbegotten assump- tion that after the parties had discussed jurisdiction some more, as Dimino wished to do, the Union would be given the opportunity to take up wages and the other nonjurisdictional matters that lay untouched. But the fact is that events did not fall out that way-no nonjurisdic- tional discussion took place at the following 8-minute meeting on 21 April, and none on 27 April. It is reasonable to believe that, on 20 April, Dimino's mindset on the jurisdiction issues was that the parties would never get, to other subjects unless jurisdiction was first settled, and blinded him to the fact that union satis- faction with the Respondent's position on nonjurisdic- tional matters might go a long way toward resolving the jurisdictional problems. Dimino's refusal to project beyond jurisdiction' to the potential value of discussing other issues might be 'characterized by a reasonable by- stander as an unwarranted obstacle to a negotiated settle- ment, especially when, as retrospect tells us Dimino had no intention on 20 Apiil of moving into nonjurisdictional discussion after 20 April In this context, then, I conclude that Respondent vio- lated Section 8(a)(5) by its persistent demand on 20 April to limit the bargaining to jurisdictional issues.48 D. The Bypassing Allegations The complaint asserts that Respondent, in violation of Section 8(a)(5), "bypassed the Union and dealt directly with its employees in the unit" by virtue of three sepa- rate actions on 29 April and 2 May. A. The record shows that, on 29 April, Station Man- ager Dominic distributed to "All NABET Members" a memorandum which stated in part that "if the Company does not receive an answer from NABET to its contract offer by 5 p.m. Tuesday, May 3rd, the pay raise retroac- tivity provision of the offer will cease to exist at that time." Although the record shows that the parties had reached an understanding during bargaining that any pay raise ultimately adopted would be made retroactive to' l April, this specific 3 May termination date for retroactiv- ity had not been previously addressed to or discussed with the Union 49 The complaint contains a separate allegation that "[oln or about April 27, 1983, Respondent refused to consider further Union counterpro-' posals on wages and other terms and conditions of employment " On brief, General Counsel melds that allegation with the one just discussed, instead of treating it as a separate issue, but seems to lose sight of the 27 April allegation in the course of discussing the subject of impasse The evidence does indicate, however, that the Respondent's conduct on 27 April was marked by a continuation of its disinterest, first clearly ex- pressed on 20 April, in discussing wages and other nonjurisdictional mat- ters, however, I see no advantage to be gained by basing a separate dupli- cative finding on the events of that date 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "Direct dealing" with represented employees (some- times known as "bypassing the union ") violates Section 8(a)(5). As the law has evolved, direct dealing may be something less than actual negotiation with employees (coupled, of course, with a prior failure to bargain with the affected union about the matter or to obtain its per- mission to treat directly with -unit employees). It has been held sufficient that an employer simply notifies the employees of a change in working conditions without prior notification to or discussion with the union . Europe- an Parts Exchange, 270 NLRB 1244, 1247 ( 1984); Krolicki Wholesale Meats, 270 NLRB 941, 944 (1984); Hiney Print- ing Ca, 262 NLRB 157 (1982). As recently phrased by the Board, the test is whether the direct communications "contain proposals or ideas which were not first submit- ted to the Union at the bargaining table." United Tech- nologies Corp., 274 NLRB 1069, 1074 (1985). . On the other hand, the law is not violated when an employer unilaterally informs employees of the status of negotiations, explains to employees proposals made to the union, or attempts to "clarify any misunderstanding" the employees might have concerning the proposals. Proctor & Gamble Mfg. Ca, 160 NLRB 334, 340 (1966), and Stokely- Van Camp, 186 NLRB 440, 449 (1970), both approved in United Technologies Corp., supra. Given the state of the law, it would seem that the set- ting of a date certain after which the employees, even if they accepted the Respondent's final offer, would no longer receive wage increases retroactive to 1 April, cer- tainly constituted a change in the proposed benefits of the employees, and thus qualified as a topic which the Respondent could not, for the first time, take up directly with its employees.49 It is the sort of issue which might have benefitted from negotiation with the Union (e.g., it might have been impossible to arrange a union meeting by 3 May). I find, accordingly, that Respondent violated the Act as alleged. B. The complaint next alleges that on or about 29 April, Respondent unlawfully bypassed the Union "by clarifying its final wage offer in a notice to employees, such clarification not having been provided to the Union." As set out above, on 29 April, Dominic distrib- uted to "All NABET Members" a memorandum with three examples to "clarify [the] misconception," gleaned from conversations with employees, that some members as On brief, Respondent argues that because none of the union wit- nesses testified concerning the absence of a reference to retroactivity in the 21 and 27 April summaries presented to the Union by Respondent, and "the Union never mentioned [the retroactivity provision] at any time dung negotiations," the parties never really considered it an issue in ne- gotiations and (apparently) it did not amount to a mandatory subject of bargaining. Respondent itself, however, brought out on examination of Union negotiator Stahl that the 5-percent pay raise offered by Dimino at the 21 April meeting "was to be retroactive to the first of April." The least this means is that Dimino proposed such retroactivity and the Union acquiesced in the proposal . Dominic's memorandum - to the NABET unit referred, as shown, to the "pay raise retroactivity provision of the offer" (emphasis added). Respondent's legal argument as to two of the three allegations grouped together here is premised on the theory that "at least by April 27." the parties had reached impasse, thus presumably permitting the Respondent to engage in certain conduct which might otherwise have been impermis- sible. As I later discuss, impasse could not have occurred any sooner than late in the evening of 2 May, when the union membership rejected Re- spondent's 27 April proposal. of the bargaining unit might have to wait more than a year from their last increases in order to get raises. , The Respondent contends that the clarification was in fact provided first to the Union, by virtue of a conversa- tion earlier on 29 April in which Respondent's officials discussed the same three examples with Union President Lolli. Lolli denied at the hearing that such a conversa- tion had occurred. I need not consider that controversy at this point, however, because the memorandum appears to be the sort of "clarifying" communication sanctioned by the Board as lawful. Stokely-Van Camp, supra. I therefore recommend dismissal of this allegation. C. The final bypassing claim relates to Respondent, on 2 May, "advising employees directly of operational changes it intended to implemented [sic] absent accept- ance of its final offer, such changes not having been an- nounced to the Union." The document to which the allegation is addressed is apparently the 2 May memorandum to "The News Staff' from News Director Ballew, which was posted on the newsroom bulletin board, notifying the news staff (which officially did not contain technicians) of four `operation- al changes that will be effective immediately." 50 These related to (a) the new obligation of the cameraman to operate both the camera and the tape recorder during interviews done on studio premises (formerly, the tape recorder had been operated only by a technician in studio interviews, and the testimony of Chief Engineer Green is that Respondent had not even intended to change that aspect of the Union's exclusive jurisdiction during the negotiations); (b) a request to reporters to assist cameramen in carrying equipment; (c) the possibili- ty that, from time to time, reporter assigned to pool cov- erage might be asked to turn on the video tape recorder; and (d) a reiteration of the instruction given to the news staff the previous week that its members were free to use the equipment in the editing areas for previewing, etc. Although the complaint allegation identifies the grava- men of this charge as "bypass[ing] the Union and deal[ing] directly with its employees in the unit," on brief the General Counsel analyzes the communication only in terms of unilateral action andor postimpasse con- duct. That limitation presumably stems from a realization that the 2 May memorandum was not directed to the em- ployees "in the unit" material here, but rather to the news staff. It can nonetheless be argued that the allegation may be construed as comprehending the concept of unilateral action. Respondent's analysis of this allegation on brief subsumes the relevance of the history of bargaining in order to validate the memorandum.5 t so "[I]mmediately" indicates that the allegation errs in referring to changes that Respondent "intended to implemented [sic] absent accept- ance of its final offer." "Immediately" means "immediately." 51 At the end of the hearing, when counsel for the General Counsel moved that "the complaint be amended to conform to proof at the hear- ing," Respondent received assurance that the reference was not to "sub- stantive" changes or "adding new allegations ," but rather only to "same variance in minor respects not affecting substance," "typographical errors, and an error in date, or something like that." A month after re- Continued STORER COMMUNICATIONS Given my conclusion that no impasse existed on' 2 May, when Ballew issued his memorandum to the news staff making "effective immediately" three changes in the Union's theretofore exclusive jurisdiction ,52 I conclude that Respondent violated Section 8(a)(5) on 2 May by unilaterally, and before impasse, changing Respondent's rules with respect to union jurisdiction over operation of tape recorders during on -premises interviews, in pool coverage, and in carrying equipment. E The Withdrawal of Respondent 's Offer on 3 May The complaint alleges, "As of May 3, 1983, when the union voted to strike , Respondent withdrew its final offer and all its contract proposals because the Union voted to strike." The underlying theory here is that the withdrawal of the proposals constituted a reprisal for striking and thereby violated Section 8(a)(5) and (1). The evidence shows that on 12 May, at the first meet- ing between the parties after the strike commenced on 3 May, Dimino announced that "there is nothing on the table," meaning that Respondent had rescinded its last contract offer. Although Controller Flavelle's notes do not so show, Coyte, Wilcox, and Jones all attributed to Dimino the statement that the proposals had disappeared on the day the Union had gone on strike. At the hearing, Dimino confirmed that in fact he had withdrawn the proposals when the strike began. Al- though at first he began to testify that the Union could have accepted the offer even as late as 12 May, the ra- tionale of his run-on testimony belies any such conten- tion - "But once they've gone on strike , I felt it was really important that we take that offer off the table because that was an offer made on the condition that they didn't go on strike. I gave them that offer so they wouldn't strike. "63 That this was indeed the sequence of events is further supported by Respondent's minutes for the 7 June meet- ing, quoting Dimino as reading from a statement, "[At the 12 May meeting], we reiterated to you that because you voted to reject our offer and went on strike, that the offer was withdrawn." Additional support for the fact that the strike triggered the withdrawal is found in Re- spondent's minutes of the 13 September meeting, at which attorney Burns is quoted as follows: " [W]hen the Union rejected the Company 's final offer and went on strike the Company had taken all proposals off the table and ceipt of the General Counsel's brief, Respondent filed a motion to strike accompanied by a 17-page brief in which it charged that an argument made in General Counsel's brief was based on a new theory unsupported by the complaint allegations as several times amended No reference was made by the motion to General Counsel's argument on the point here under consideration as being similarly unfounded, from which I infer that Respondent agrees that General Counsel's contention here has not strayed from the limits of the complaint I shall therefore consider this allegation in the terms in which General Counsel has posed the argu- ment 52 Gary Jones testified without contradiction that all four items in the 2 May memo had been exclusive NABET work The fourth item-the freedom of the news staff to preview, etc , tape-had, however, already been expressly announced to "The Staff" in a memorandum from Green dated 27 April, to take effect on 29 April, and therefore was nothing new 53 There is no evidence that Dimino had communicated to the Union that the offer would be withdrawn if the employees struck 1081 made a new proposal that NABET members return to work unconditionally."54 The Respondent argues that cases such as Hickin- botham Bros., 254 NLRB 96, 102-103 (1981), Reliable Tool & Machine Co., 268 NLRB 101 (1983), and Barry- Wehmiller Co., 271 NLRB 471 (1984), apply here to le- gitimize the withdrawal of the proposals. Generally speaking, they hold that an employer may reduce its pro- posals during or after a strike because of the economic leverage obtained from the fact that it has "successfully weathered the strike" (Barry-Wehmlller, supra) or has "specific reasons for changes in its proposals" (Barry- Wehmiller, supra, Hickinbotham Bros., supra). Here, Re- spondent contends on brief, "The Company took its final and best offer off the table because it was successfully weathering the strike and because its final proposals rep- resented concessions made in order to avoid a strike " It is difficult to see how Respondent could have per- ceived that it was successfully weathering the strike as of 3 May, the very first day of the strike, even as the AFTRA and IATSE unions were honoring NABET's picket line. Furthermore, the claim that the final propos- als "represented concessions made in order to avoid a strike" is undoubtedly true to some extent in every in- stance of bargaining in which an employer modifies its proposals favorably'to the union in making a final offer. But in this case the Union was never told that it would forfeit the entire offer if it struck, and so such a forfeit- ure could hardly be considered a known risk of a walk- out.55 As I read the cases cited above, the Board requires an employer to furnish some acceptable justification for ad- justing, diminishing, or withdrawing its contract propos- als during or after a strike; in the absence of such justifi- cation, the Board will infer that the withdrawal was mo- tivated by an intent to engage in retaliation against the protected activity of the strike andor to obstruct the bar- gaining process. I do not find any such justification in Respondent's testimony As indicated, the withdrawal on 3 May occurred long before Respondent could have made a valid judgment that it could "successfully weath- er" the strike 56 Dimino's testimony that he withdrew the offer because "it was made on condition that they didn't go on strike" may reflect some secret mental res- ervation, but such a "condition" was never communicat- ed to the Union. In view of the fact that the viability of the offer had never been expressly conditioned on the employees re- fraining from a strike, it seems to me inconsistent with the obligations of statutory good-faith bargaining to hold 54 The latter part of the sentence obviously refers to the 7 June meet- ing 55 The Respondent also points out that the parties had agreed from the outset that "all tentative agreements could be withdrawn at any time until they agreed on a total package " That understanding does not seem relevant to the instant issue, which relates to Respondent's withdrawal of all its proposals Moreover, as the Board pointed out in Central Missouri Electric Cooperative, 222 NLRB 1037, 1042 (1976), and confirmed in Reli- able Tools, the right to withdraw tentative proposal is not absolute, in that the circumstances may be such as to give rise to an inference of an intent to obstruct bargaining 55 It is noted that while Respondent's brief asserts this ,justification, no Respondent witness testified to it 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that such an undisclosed precondition, which, if known, might otherwise have influenced the Union's choice of action, can be relied upon as a justification for the with- drawal. Furthermore, an uncommunicated decision to withdraw the proposals simply because the employees struck is so potentially disproportionate to the event (suppose, for example, that the strike had lasted only a day or two) that it fairly gives rise to the inference that the erection was merely the product of a desire to retali- ate against the employees for engaging in the strike, which was, of course, protected activity under the Act. I therefore find the violation as alleged. My conclusion on this point, incidentally, would be no different even if the parties were at impasse on 3 May. The significance of impasse is twofold: it permits an em- ployer to put into effect, without further negotiation, changes in working conditions comprehended by his preimpasse proposals; and it allows either party to refuse to continue to engage in negotiations (in both cases, of course, the privilege is lost if the impasse, "merely a mo- mentary eddy in the flow of collective bargaining," Hi- Way Billboards, 206 NLRB 22, 23 (1973), is broken). The fact of impasse does not authorize an employer to take any other liberties with its statutory obligation to contin- ue "making a sincere effort to reach agreement." Rescar, Inc., 274 NLRB 1 (1985). F. The Alleged Unlawful Unilateral Modifications The amended complaint asserts that since on or about 10 June, the Respondent has modified various terms and conditions of employment without affording the Union its statutory right to bargain The alleged unilateral changes include elimination of the Union 's exclusive ju- risdiction over various work functions , "including but not limited to" 6 named functions ; the transfer of unit employees from the engineering department to other de- partments, the grant of a 3-percent wage increase to unit employees in July; the contracting out of the installation and maintenance of company -owned two-way radios in October; and the discontinuance of 11 other existing ben- efits and practices (e.g, the requirement imposed by the expired contract that Respondent pay penalties to unit employees for failing to schedule 12-hour rest periods be- tween shifts). The Respondent offers two theories which assertedly sanction its conduct in making these changes . The first theory is that, by at least 27 April, the parties had reached an impasse in bargaining which authorized Re- spondent, without more, to unilaterally put into effect all terms and conditions contained in the proposals it had of- fered prior to the impasse. The second theory is that, even if impasse had not been reached, the Union had, by its conduct in April and again in June , consciously waived any statutory right to bargain about the changes which went into effect in those months 1. Impasse a. "Impasse" is a way of describing that point in col- lective bargaining at which, at least until further devel- opments should occur, the parties have bargained in good faith in an effort to agree to a set of terms and con- ditions of employment, but have been unable to strike an accord. When that point is reached, as noted above, two practical consequences ensue: (1) an employer may put into effect, without further discussion with the union, terms earlier offered by it during the bargaining; and (2) either party may, for the present, refuse to schedule bar- gaining sessions. The authoritative definition of impasse is that given by the Board in Taft Broadcasting Co., 163 NLRB 475, 478 (1967): an impasse exists when "good-faith negotiations have exhausted the prospects of concluding an agree- ment." The Taft case has also been quoted, probably in every impasse case issued by the Board since 1967, for its summary of some of the actors relevant to the determi- nation of the existence of an impasse (at 478): Whether a bargaining impasse exists is a matter of judgment The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations, are all relevant factors to be considered in deciding whether an impasse in bargaining exist- ed.5 7 Before undertaking an analysis of the Taft and other relevant factors, two points should be made. The record shows that the parties fully understood that the union bargaining committee was not authorized to enter into a contract, and that the power to do so resided in the membership.58 That being the case, impasse could not have been reached in this case until the NABET mem- bership had rejected the Company's "modified final" offer which rejection took place at the 2 May evening meeting. Mary Ann's Bakery, 267 NLRB 992, 994 (1983), and cases cited. Accordingly, those changes in working conditions which occurred prior to the 2 May rejection constituted violations of Section 8(a)(5), even if it were found that impasse was legally effected by the unit's de- cision to reject the Company's "modified final offer" on that evening. 59 There seems to be some question about the relevant viewpoint in ap- praising the affirmative defense of impasse In Taft, for example, the Board applied its own judgment (we are unable to conclude that a con- tinuation would have culminated in a bargaining agreement", "we find that an impasse had occurred") In Saunders House v NLRB, 719 F 2d 683, 688 (1983), the Court of Appeals for the Third Circuit took the same approach, saying that impasse was a question of fact for the Board But in Alsey Refractories Co, 215 NLRB 785 fn 1 (1974), while citing Taft, the Board stated the "correct standard" to be whether "the Respondent was warranted in assuming that further bargaining would have been futile" Perhaps the most recent statement of the Board's approach is Hamady Bros Food Markets, 275 NLRB 1335, 1337 (1985), "[W]e must decide whether the parties bargained to an impasse We find that these factors support a finding that the parties were at impasse " But almost as recently, in SGS Control Services, 275 NLRB 984 (1958), the Board applied the Alsey Refractories test The latter seems to me to be the most fitting standard 58 The Company's minutes show that Local President Lolli made such a statement at the 2 March session At the 21 April session, Dimino "asked the union bargaining committee to bring the Company's final offer before the entire membership " Other evidence supports the understand- ing here found STORER COMMUNICATIONS Thus, Respondent violated Section 8(a)(5) on 29 April when, according to Green's 27 April memoranda to the technicians and "The Staff," a new rule took effect al- lowing "any TV8 employee . . . to preview, audition, time or chart ENGEFP tapes." The same is true of three of the operational changes made "effective immediately" by the directive from Ballew to the news staff on 2 May. 59 This conclusion leads to the second point The Board has held three times recently that events occurring subse- quent to the date of the allegedly unlawful implementa- tion are not probative of the question of whether impasse existed at the time for implementation. SGS Control Serv- ices, supra, Dependable Maintenance Co., 274 NLRB 216 (1985), Henry Miller Spring Co., 273 NLRB 472 (1984). Presumably, the rationale is that the conduct of the par- ties will tend to be affected by the implementation (and sometimes by the prompt filing of an unfair labor prac- tice charge). Since I find that the first unlawful imple- mentation occurred on 29 April, the issue of whether an impasse existed should, by virtue of the foregoing princi- ple, be focused solely on events occurring no later than that date. Turning to the considerations outlined in Taft, it does not appear that "the bargaining history" means much here. Dimino was a newcomer to the Cleveland station and he himself proclaimed that his approach to bargain- ing varied from that of his predecessors. As for the "good faith of the parties in negotiations," I cannot say that either party was not desirous of ultimate- ly reaching an agreement during the main body of the talks, which is what the Board appears to mean by this factor (see Taft at 478), although it also is clear that once the Union went on strike, Dimino appeared to have had no interest whatever in coming to agreement with the Union. Aside from the Union's use of inappropriate language, earlier mentioned, Respondent accuses the Union of "bad faith" for other reasons One such reason is that the Union "adopted a stance which it never materially al- tered throughout the course of negotiations," one of simply rejecting out of hand the Respondent's proposals. Given that Respondent's first set of proposals was seem- ingly designed on every issue to abolish benefits previ- ously won by the Union throughout the years (even in- cluding the 30-year-old union-security clause and the right to have "union activity" contractually protected against discrimination in the game category with race, religion, and sex), it is not difficult to understand the Union's initial blistering reaction. As time passed, how- ever, and some tentative agreements were reached in which Respondent accepted existing contract provisions, the Union did, in fact, materially modify its stance And 59 I recognize that these actions were not taken proximately to the "on or about June 10" date listed in the complaint , but it was agreed at the end of the hearing, as discussed earlier, that the pleadings could be con- formed to the proof in the case of dates or other minor matters , although not in any substantive respects In its brief, Respondent expressly defends the publication of its 27 April and 2 May memos by arguing that the change announced in these memos had been impassed , and so publication of the changes was privileged This indicates Respondent 's belief that the issue of whether impasse had been reached on these items at the time of their publication was necessarily a part of the litigation 1083 although the Union made no written jurisdictional coun- terproposals until 27 April, Green agreed that prior thereto, the Union "had proposed at least ideas, yes. I don't know if there was any language " Respondent would also fault the Union for not disclos- ing at the bargaining table the specific conclusions the union committee had reached early in January about the effects of the Respondent's first proposed jurisdictional clause. Since the meaning of that clause seems clear on its face, it is hard to see why the Union should have felt compelled to explain to Dimino its understanding of his clause. Indeed, it can be argued that Respondent was grossly negligent, if not misleading, here in drawing up a simple proposal with logical implications which Dimino did not dispel until 19 April when he told the Union that he did not mean what the clause seemed to say. Respondent also blames the Union for rejecting the entire proposed agreement at the 19 January meeting even though, Respondent asserts, the union committee had previously determined that of the changes in 15 topics originally proposed by Respondent, 7 of them were "unacceptable" and the other 8 were "acceptable." Coyte, on whose testimony this argument is based, never said that the Union found the other eight changes "ac- ceptable" as of 19. January (or any other time), see Tr. 284, 601-602. It is at least whimsical to argue that the committee could possibly have found so immediately "acceptable" such changes as the proposed elimination of the night differential, the proposed adverse changes in the rest periods, the proposed elimination of the right of union representatives to confer with management with- out loss of pay, etc. Obviously, Coyte's express reference at the hearing to 7 of the 15 proposals as "unacceptable" was meant to signify those which were most repellent to the Union. Finally, Respondent argues that Attorney McKnight's late entry (March 30) into the negotiations had a "chill- ing effect." Although it does appear that McKnight needed some education in the history of the bargaining, he seemed to be a quick study. I perceive no basis at all for the claim that the decision to call in McKnight, or his participation thereafter, demonstrated union "bad faith." The "length of the negotiations" is, as General Coun- sel points out, a deceptive consideration here. As dis- cussed above, although the parties had met on 18 occa- sions by the time the Respondent made its "modified final offer" on 27 April, at only two of the final four of these sessions (starting with the Union's submission of its list of "problems" on 19 April) was there any serious de- lineation and discussion of the preeminent jurisdictional issues. As also indicated, the parties had been talking around this subject during the previous sessions, each ap- parently intending to draw the other out if possible. But at the four sessions beginning on 19 April and leading up to the brief meeting on 27 April at which Respondent presented its "modified final offer" and departed abrupt- ly, very little actual discussion of the jurisdictional (or nonjurisdictional) issues was had. Omitting caucuses and recesses, on 19 April, the par- ties actually talked for about 55 minutes, with much of 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the time spent on recriminations and posturing. On 20 April, they spoke for a net 1 hour and 50 minutes. The 21 April session consumed 8 minutes, consisting basically of Dimino handing out the first "final offer." On 27 April, after the off-the-record 45-minute morning meet- ing at which "concepts" were floated, the afternoon ses- sion consisted of no negotiations as such, but basically of a statement of position by the Union and its submission of three written counterproposals and the promise of an- other, and a statement of position by Dimino and his offer to recede on two issues (Coyte said the meeting started about 1 p.m., and Dominic's minutes show it ending at 3:13 p.m., with intervening caucuses of about 1 hour). In sum, the total time spent talking about the real jurisdictional issues once they were defined on 19 April was perhaps 2 hours and 45 minutes (with no discussion at all about the Company's 21 April wage proposal or other nonjurisdictional issues. Given the complex nature of the topics under discussion, and the several departures from historical practice being considered , that period of time did not allow for much rational and necessary dis- course. "The importance of the issue or issues as to which there is disagreement" is not clear. There is no question, as General Counsel acknowledges on brief, that "juris- diction was considered a critical issue by both parties." But the significance of the particular jurisdictional issues upon which the parties had not reached agreement by 27 April is debatable. It is obvious that, from the outset, the Union attached great importance to the Respondent's proposal to ex- punge the Union's exclusive right to edit videotape. On the other hand, company minutes show that at the 24 March meeting, Coyle expressed union opposition to sur- rendering tape editing exclusivity, but "added that if the Company instead wanted to address a specific area such as allowing other employees to screen and time , then he could ask the committee to explore that area." On 19 April, Coyte stated that "there is no way we are prepared to give up editing ." Later that day, Dimino withdrew the Respondent's proposal to make final edit- ing a nonexclusive item, "subject to the acceptance of the rest of the language in the proposal on jurisdiction." On 20 April, Dimino made a speech in which he por- trayed the withdrawal of his original editing proposal as monumental: "From Day One, I wanted editing as much as you didn't want to give it up. We're making a giant step forward. . . . After looking eye-to-eye . . . we blinked. . . . We're taking a step back because this is a mega-issue for you." Dimino went on to say that the "[flour or five other items . . . left on jurisdiction .. . pale in importance compared to editing; they really weren't -as big a deal to you and offered the company movement." ""Thus, it appeared to be Dimino's perception on 20 April that the removal of final editing as a bone of con- tention left the other unsettled jurisdictional items readily subject to concession by the Union.80 On that same day, Coyle identified several of the remaining topics as sus- ceptible to settlement. , . . "Audio recording," he said, "we can clarify and- set aside," evidently indicating a willingness to yield to Re- spondent on the issue. As for "pool coverage," the Union had some "questions which may need answers"; this issue was removed from dispute on 27 April when Respondent incorporated the Union's counterproposal (which constituted a diminution of the Union's existing jurisdiction) on pool coverage, submitted that day, into its own proposal. Coyte went on to identify, in the field of "computer equipment," "two areas of Union compro- mise," one being the Vidivote computer and the other being weather graphics, both of which, he said, would require clear positions in writing ("even if it takes weeks for our counsel to write it") to avoid a debacle which had resulted from "poor contract language" on the sub- ject of audio recording in the past. The only matter which Coyle refused to label as nego- tiable on 20 April was the "announce booth recording," which he saw as "a half-a-man [per week] employment ... and we are not willing to change on that. In ad- dressing this same issue on 20 April, Dimino stated, "We want that. . . . There is no reason in the world why booth announcers can't do recording . It's done every- where." On 19 April, before Dimino had receded on the edit- ing issue, McKnight had said (as Coyle had already sug- gested on 24 March) that the Union could give Respond- ent "some relief," inter alia, in the "area of previewing and/or reviewing tape outside of NABET's normal work area"; when Dimino inquired as to the meaning of this, Lolli said that, in order to preview, a reporter would have to "go to the desk where you provide the machines and he could do it there." Dimino said only that he "un- derstood." The parties met on 20 April, the next day, for their longest discussion in this last phase of bargaining. While both Coyte and Dimino identified and discusses at some length subjects (pool coverage, audio recording, etc.) .which separated them, neither mentioned the issue of previewing, etc. At the 8-minute 21 April meeting , no substantive dis- cussion took place at all, but Respondent submitted in writing its "final offer," for the first time introducing the complicated 5-percent wage proposal and making certain other amendments in. some proposal apparently for the first time. It was not until the 2 April meeting at which the Union offered three written counterproposals, one of which would have allowed nontechnicians to preview, etc., outside the normal NABET work area on equip- ment connected to a monitor for playback only, that Dimino replied, after a 1-hour afternoon caucus, that the Company "was not going to set up separate tape areas for this purpose because it was an unnecessary ex- pense."a 1 Judging from Dominic 's minutes, Dimino did 80I recognize the possibility that salesmanship may have played a part °1 Dimino testified that there had been a discussion about the expense in Dimino's choice of language, but I have no way of knowing whether of new editing equipment on 20 April, but neither the company nor the that is so. union minutes confirms that claim. _ STORER COMMUNICATIONS 1085 not comment on the other two written union counterpro- posals. 62 Of the jurisdictional issues that seemed to be in dispute as of 27 April, it is not easy to assess their real impor- tance to either party and , on both sides, the assessment cannot be made in the abstract. On the subject of exclu- sive jurisdiction over the announce booth, both Coyte and Dimino had taken firm positions as late as the 20 April meeting. But, assuming that Coyte regarded it as a "half-a-man [a week]" function (Green estimated it, how- ever, at 10-14 hours a week rather than 20), it is hard to think that either party could have considered 1 percent or less of the unit work as a real obstacle to reaching agreement. Dimino had told Coyte in their private meet- ing on the morning of 27 April, as Coyte testified, that the announce booth "was very important to him"; Coyte's reply, as essentially confirmed by Dimino, was that "nothing is written in stone." As for the other matters still under discussion an 2 April, such as weather graphics and vidivote'63 it is diffi- cult to believe that they were matters of real signifi- cance. The scope of the vidivote work (the number of elections per year and the amount of work involved per election) is not disclosed, and the same is true of the weather graphics. Similarly, there is no estimate in the record of the number of hours spent at the station each week by technicians in performance of the previewing, etc., functions. It may be that the most reliable evidence of the rela- tive "importance" of the issues, at least from Respond- ent's viewpoint, issued from Dimino's mouth. This ac- count of a statement by Dimino at the 12 May session was reflected in Respondent's minutes: The impasse occured [sic] when [Dimino ] asked the unit to give up the announce booth and the unit said no. He said an impasse occured [sic] on wages when the unit said no.64 If these statements are taken to represent a reflection of Dimino's judgment of the "important" issues (with no mention of weather graphics, previewing, etc., or vidi- vote), they stand in dramatic contrast to Respondent's brief, which specifies only that Respondent "refused to concede to two Union demands on April 27"-the pre- viewing, etc., and the announce booth recording; the brief makes no reference at all to "wages" in this connec- tion. But at the hearing, counsel for Respondent referred only to the previewing, etc., as what Dimino considered to be "the key issue involving jurisdiction, which led to the 62 The subject also came up at the 12 May meeting , according to Fla- velle's minutes, with Dimino stating that he had wanted the use of the NABT editor's booths for previewing, etc, by other employees this was said, however, after Dimino had opened the meeting by announcing that there was "nothing on the table," that his 27 April offer was the "final' offer (emphasis in minutes), and that he "would never offer a final, final offer " 63 The subjects of pool coverage and, apparently, audio recording, were resolved on that day 64 How there could have been an impasse on "wages " on 2 May when the Respondent had not made its wage offer until 21 April and had re- fused to discuss it at all thereafter is a total mystery In such circum- stances, to say that there was an impasse implies the kind of closed minded approach to bargaining which the statute condemns strike"; no mention was made of the significance of the announce booth. ' Then, as set out, there is Dimino's 20 April evaluation that Respondent , having given up on the "mega-issue" of final editing, the remaining jurisdictional issues "pale[d] in importance" and were not "as big a deal" to the Union. The Union did not argue with this assessment.65 In considering the relative importance of the unre- solved issues, it is also worth weighing Green's testimo- ny that the three written proposals submitted by the Union on 27 April , pertaining to Vidivote, weather graphics, and previewing, etc., involved "the big issues that were on the table." In so concluding , Green evi- dently assigned only secondary importance to the subject of the announce booth, which Dimino had described that morning as "very important" to the Respondent and later said was one of the two issues upon which impasse had been reached. Finally, there is the Taft criterion of "the contempora- neous understanding of the parties as to the state of ne- gotiations." Coyte made it clear throughout that he thought there was much left to discuss and that , accord- ingly, no impasse had ever come into being. As early as 31 March, Dimino began to speak of the possibility of an impasse, and he said on 20 April that he "[thought] we have reached" that condition It is not dispositive, I think, that a negotiator sincerely holds a subjective belief that the parties are hopelessly deadlocked, any more than an employer may withdraw recognition from a union simply on the basis of his good-faith , but inadequately supported, belief that the union no longer represents a 65 Two of Respondent's witnesses testified that in a conversation with Union President Lolli on 29 April, they explained to him the meaning of the wage proposal , and one also said that Lolh emphasized the impor- tance of the unresolved "editing issue " Lolli denied ever having had such a conversation in which the wage proposal was explained to him and, by implication, he denied any contemporaneous comments by him about the issues I credit Lolh's denial for the following reasons As the General Counsel's analysis of the testimony shows, there was a stark contradiction between Respondents witnesses on the basic facts Dominic said that the meeting came about because Lolli "had ap- proached Dave Bell " with questions, after which Bell came to Dominic and said that Lolh had asked for a meeting Strike coordinator Bell, on the other hand , testified that the meeting resulted when Dominic "was ap- proached by Dominic Lolli with some specific questions regarding wages " I cannot imagine any reasonable explanation for the disparity be- tween the two As the General Counsel further points out, the timing tes- tified to by Dominic and Bell is also difficult to reconcile While control- ler Flavelle purportedly participated in the 29 April explanation to Lolli, he gave his testimony for Respondent only 200 pages after Lolh had denied the occurrence of such a meeting , but he was not asked to con- firm that the meeting had taken place I credit Lolli 's testimony on this point Bell said on direct examination that Lolh stated at the discussion that "a major problem appears to be the technical jurisdiction of video tape editing" and went on to cite "a number of issues that were open at the time " On further examination, Bell expansively said that Lolli had; la- beled editing as the "one big issue," "our big tumbling block," and "there had to be a way found to reach a settlement without NABET giving up jurisdiction on video tape editing " But Lolli allegedly also went on and mentioned "possibly as many as 10 other issues that were open and had to be resolved , including "wages and a penalty or two" It is possible that Bell had such a conversation with Lolli at some other time , but it clearly was not on 29 April, there were not, by anyone's count, anything like a total of I1 issues in dispute on that date So, if the conversation occurred at all, it likely would have been before Respondent had agreed to allow the Union to have exclusivity over the final edit function on 19 April 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD majority of his employees E.g., Bartenders Assn. of Poca- tello, 213 NLRB 651, 653 (1974). In the present case, in my view, Respondent's slapdash course of bargaining and conduct in April and thereafter effectively precluded any possibility of determining whether the parties had truly reached impasse, and that was a fact which Re- spondent should have recognized before it acted precipi- tously. Once the Union had, on 19, April, identified its specific concerns to Dimino and had been told by him that they had been misreading his jurisdiction proposal , the parties spent so little time thereafter-less than 3 hours-engaged in actual discussion of the jurisdictional problems (and none on the nonjurisdictional matters) that Dimino should have reasonably recognized that he was playing with fire by declaring impasse at such an early juncture. The brevity of these discussions was made more unsatis- factory by the fact that Coyte had stated to Dimino his interest in a careful discussion and analysis of the juris- dictional changes sought by Respondent; and it was fur- ther compounded by Respondent's insistence on 20 April, the last and only day in this period in which the parties spoke for as much as 90 minutes, on first resolv- ing the jurisdictional issues. Coyte presumably tolerated Dimino's adamancy because of an assumption that he would eventually both receive a wage proposal and be afforded the opportunity to feel out Respondent's posi- tion on many matters of the utmost importance to the Union (such as the proposed elimination of the union-se- curity clause) on which Respondent had, at the time, still refused to accede. What Coyte got on 21 April and thereafter, however, was not much discussion, but rather what used to be in- elegantly known as the bum's rush. In the 8-minute 21 April meeting, Respondent handed out its summary of tentative agreements and its first serious wage proposal. While the summary by and large agreed to continue the old contract language on a number of items which Re- spondent had previously proposed to eliminate, it also contained the confusing wage proposal in the unfamiliar format; and it did not resolve the remotes and meal period issues to the Union's satisfaction. Dimino an- nounced that he had canceled a planned trip to Miami the next day, and would be available to speak to the bar- gaining committee "if they had a response from the membership." Coyte, who testified that he did not want to present an unknown quantity to the unit members, at- tempted to arrange another meeting through the media- tor and was told that the first date available to the Com- pany was 27 April.66 At the off-the-record morning session on 27 April, Coyte and Dimino discussed the negotiations in general terms, with Coyte indicating flexibility on some items, `stating his desire to "discuss the wage package quite thoroughly," including some "missing material" (with Dimino saying that he was "pretty firm on their position 66 Wilcox testified that after Respondent gave the Union the summa- tion and new proposal on 21 April, "We tried to ask a few questions, and the Company left the meeting " Jones testified, however, that the union committee posed no questions to the Company on 21 April, saying they "needed time to review it " I tend to believe that Jones' testimony is more accurate, and that Wilcox is thinking of the 27 April meeting on wages"), and expressing his "concerns" about other matters such as remotes and the meal period. Dimino told Coyte that the announce booth was "very important to him," and Coyte replied that nothing is carved in stone." In the afternoon, the Union submitted three written counterproposals formally offering concessions of vary- ing degrees (two of them earlier presented informally), on pool coverage, Vidivote, and previewing, etc., and orally proposed to draft language on audio recording and on protection of the Respondent against double pay- ment in remote broadcast situations in which another union claimed jurisdiction over NABET work. Dimino rejected the Union's proposal to allow non- technicians to preview, etc., outside the technical area, but at the same time agreed to recede on both the "re- motes" and "meal period" conflicts , accepting the lan- guage of the expired contract. He said that this was as far as he would go in modifying the final offer, but he thereafter distributed a "modified final offer," prepared during a caucus on 27 April, which not only incorporat- ed the concession made by the Union in its written coun- terproposal on the subject of pool coverage, but also added three new sentences to the jurisdictional clause. Two of these, as discussed, pertained to weather graph- ics and Vidivote, and the third made reference to a new topic. "Others may operate videotext for the purpose of off line composing." Coyte and Wilcox testified that in the morning off-the- record session on 27 April, the Union had said that it wanted to discuss wages that afternoon, and Jones said that prior to the afternoon caucus, the Union told Re- spondent that wages "was an area in which we had ques- tions to ask " Jones and Wilcox further testified that the Union also raised a number of questions at the end of the 27 April afternoon session about the structure of the wage proposals and about missing items, and were an- swered by being given a second termination letter. Chief Engineer Green confirmed that Attorney McKnight had pleaded with the Respondent not to leave after handing out its termination notice, saying that the Union wanted to "continue the existing meeting to answer questions" about "other areas such as wages," or to schedule more meetings, and that the Union was "somewhat" in a "state of panic" about the failure of Respondent to react to its requests. The Ri spondent contends that impasse was reached at least by 27 April It does not seem reasonable to infer, however, that the parties had by then exhausted the pos- sibility of settlement It is true that Dimino stated on 27 April that the announce booth was "very important" to him, but the apparently small amount of weekly time de- voted to that function, as well as Coyte's conceded reply that nothing was "carved in stone," should reasonably have led Dimino to think that the Union's position on the announce booth, and perhaps the other jurisdictional issues, was not immutable. By the afternoon of 27 April, a considerable amount of movement had occurred on both sides in the previous 8 days: Respondent had changed its position on final editing on 19 April, and had given in on many other items (e.g., union security, night STORER COMMUNICATIONS differential, the meal period, remotes) by late in the day of 27 April, the Union had made three formal proposals, on previewing, etc., Vidivote, and pool coverage, all of which constituted a surrender of some of its previously exclusive jurisdiction, and it was suggesting a further proposal on audio recording and protection against double payment. This should sensibly have caused Re- spondent to believe that responsible discussion might have resulted in additional union (and even, perhaps, company) concessions if the Union was given the oppor- tunity to talk about the outstanding items which Re- spondent, in its advertent or inadvertent rush to impasse, simply refused to allow. Why Respondent felt the need to act with such urgen- cy in April is hard to understand; there is no evidentiary clue that Respondent needed an immediate reorganiza- tion of its technicians staff and their duties. The reason may have been Dimino's assumption of a -higher office in the corporation, while he also continued to act in his Cleveland capacity. Whatever the reason, Respondent did act in haste, precluding discussion about several items which, if acceptably resolved, might have resulted in a situation in which the Union was willing to concede or offer an agreeable compromise on the few remaining jurisdictional problems. It could well have been that if the Union had been given the opportunity that it had repeatedly requested on 20 April to turn to and evaluate Respondent's position on nonjurisdictional subjects, it might have been more willing to compromise on the jurisdictional sticking points. It should be noted that on 20 April, while Dimino was most insistent on staying with the subject of jurisdic- tion, he seemed sympathetic to Coyte's repeated declara- tions about the need for review, study, and revision of the jurisdictional clauses, and may have led Coyte to be- lieve that time was not a material factor. It may also be noted that Dimino's statements at the 20 April meeting seemed consistent with his past approach to bargaining, all of which could have led the Union into believing that Dimino was not as unyielding as he pur- ported to be. Throughout the early bargaining, Dimino kept warning the Union that his proposals were not a "ploy," that he was "deadly serious" about them, that he would not, unlike his bargaining predecessors, capitulate at the last minute, and so forth Yet his whole approach thereafter was to recede from the regressive proposals originally made by Respondent and return to the existing contract terms; and, on 19 April, he "blinked" and sur- rendered to the Union on the "mega-issue" of editing. Then, having made a "final offer" on 21 April, and vowing not to touch it, Dimino came through with a "modified final offer" on 27 April. This sort of behavior obviously could have lulled the Union into believing that, to blend a few adages, there was many a slip be- tween imino's bark and his bite. As of 27 April, there were a number of items to dis- cuss. There were, of course, the amount of wages being offered by Respondent, the operation of its proposed new wage system , and other missing wage-related terms. The Union had proposed, and Coyte wanted to discuss, a new provision for a "Video Tape Editing Talent Fee " Jones and Wilcox testified, without contradiction, that at 1087 some point on 27 April, the Respondent had agreed to include in the contract certain provisions from the old contract (pertaining to not having to perform a certain vidifont function less than 30 minutes before air time, and to engineering logs) which Respondent's draft con- tract did not contain. An issue which loomed potentially large to the Union was the new language in Respondent's proposal provid- ing that nontechnicians could "[o]perate character gener- ator and other computer or electronic equipment such as, but not limited to [specific machine] located outside the technical area" (emphasis added). The Union was con- cerned that this broad language would permit Respond- ent to decimate the unit. On 20 April, as Respondent's minutes show, Dimino said that this was not his inten- tion, and the Respondent "would be willing to structure language on this." But, as Wilcox testified, Respondent never did, even though, according to Stahl, the problem was again discussed at the morning meeting on 27 April. The 27 April proposal, as discussed, contained a new substantive sentence about "videotext," a subject never before broached at the bargaining table. It does seem possible that full discussion of all the ex- isting problems might have resulted in settlement of the outstanding issues No matter how firmly the Union may have declared its position on the announce booth, it also told Dimino on 27 April that nothing was "carved in stone."67 The previewing, etc, issue was conceivably subject to settlement in one of a number of ways.68 With 67 The Board has even said that "[a]n impasse should not be mechani- cally inferred whenever one party announces that his position is henceforth fixed and no further concessions can be expected " Westchester County Executive Committee, 142 NLRB 126, 127 (1963) It has further stated that "[u]se of words like 'impasse' or 'deadlock' by the parties, even relating to overall issues, do not necessarily imply that future bar- gaining would be futile " Pillowtex Corp, 241 NLRB 40, 46 fn 11 (1979), accord, Inta-Roto, Inc, 252 NLRB 764, 769 (1980) It is well to remem- ber Dimino's testimony that the Union "had always said there was no chance on editing, and I had said that we absolutely wanted it"-but he did in fact give it up 68 The record shows that in the non-NABET areas of the station, there already existed equipment (TV monitors and VTR equipment) which made it "possible," according to Chief Engineer Green, to preview, etc , although, because some of the VTR equipment referred to had "counters" rather than "timers " on them , "to get it really accurate, it's better to have" the VTRs with the timers There are in evidence charts which purport to convert counter num- bers to real time, Technician James Razan credibly testified that he has used the charts (which were "all over the building") on machines equipped only with counters for the purpose of previewing, etc , and has found the system to be "reliable " While Green stated that he had never seen such a chart, he also had done no editing for years The evidence on this point suggests that even if Respondent felt it preferable to purchase VTRs with timers in order to perform previewing, etc , outside the NABET areas, it would not involve the sort of invest- ment (probably "over $14,000" per setup) asserted by Green at the hear- ing to build separate facilities outside the existing NABET editing suites for previewing, etc After testifying to the $14,000 figure for creating new editing suites, Green later agreed that equipment just for previewing, etc , purposes would not be as costly rl' It should be recalled that NABET had never shown itself to be unal- terably opposed to surrendering exclusive jurisdiction The expired juris- dictional contract provision consisted mostly (almost 4-1/2 pages) of a list of technical functions which "[p]ersons other than Technicians may per- form " One of these had been the right of nontechnicians to perform pre- veiwing, etc , "in field " Coyte testified, without contradiction, that at some other stations , NABET has agreed to allow nontechnicians to pre- Continued 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD compromises and clarifications here and there, something might have been worked out. Absent unusual circumstances, negotiators cannot truly evaluate future prospects until they fully and thoroughly explore all matters at issue between them, and neither party is in a position to make a judgment about impasse until they have at least turned over, examined, and ex- plained every card on the table, when one party so re- quests. In Television Artists AFTRA v. NLRB, 395 F.2d at 622, 628 (D.C. Cir. 1968), the court found to be a "fun- damental tenet of the Act that even parties who seem to be in implacable conflict may, by meeting and discussion, forge first small links and then strong bonds of agree- ment." The Board has recently said, in Betlem Service Corp., 268 NLRB 354 (1983) (emphasis added), "Gener- ally, the Board will not find that an impasse has oc- curred unless the negotiations between the parties have been exhaustive" (Emphasis added.) Two recent cases support the conclusion that the Board would not consid- er that impasse had been reached in the present circum- stances as of 27 April. Dependable Maintenance Co., supra, 274 NLRB 216, 219, was a case in which the union, in the course of bar- gaining, had sought some information which the re- spondent employers had deemed to be unnecessary and a delaying tactic. Finally, however, the employers supplied the information, but very shortly thereafter implemented their final offer. The administrative law judge held: Respondents simply acted too quickly in implement- ing the last offer to place their theory of the Union's bargaining rigidity to the test . . [lit is impossible to determine if the information would in fact have been used by the Union to modify its posi- tion. This uncertainty must be resolved against Re- spondents whose precipitous actions created uncer- tainty. As in Dependable Maintenance, supra, the Respondent here "simply acted too quickly" in April, May, and June, and did not afford the Union the "exhaustive" bargaining to which it was entitled after the breakthrough series of events which began on 19 April. Guidance may also be found in SGS Control Services, supra, 275 NLRB 984. The parties had bargained on 18 occasions, and had made progress. The union was disap- pointed in the proposed seniority provision of the em- ployer's final offer, but the employer's attorney told the union steward by telephone that they "should be able to get together on seniority language." The union member- ship agreed to accept the offer provided that it contain certain seniority protections and bear a term of only 1 year (the employer's final offer had provided for a 2-1/2- year term). When, however, the membership's terms were made known to the employer's executive vice president, who had been one of the negotiators for the employer, he said that the duration, proposed by the view, etc, so long as the work was not performed in the NABET work areas, at some stations, the contract language is silent as to where the work is to be performed by the nontechnicians, and other variations have been negotiated union was "not acceptable" and the seniority clause de- manded by the union was "absolutely not acceptable." When an employer representative relayed to the stew- ard the message that the union's position was "absolutely not acceptable," the steward said that the employer's offer was acceptable to the union "only for a one-year period" and with the membership-mandated seniority provision. At that point, the employer told the steward to have the employees turn in their equipment. A week later, the employer invited four of the em- ployees to return to work but "only under the terms and conditions of Respondent's final offer " They so re- turned. At the union's request, the parties began negotiat- ing again 4 days after the end of the lockout, but, as of 4 months later, they had not reached agreement on a con- tract. The administrative law judge, taking into consider- ation the "substantial movement" and "major conces- sions" made by the parties toward the end of bargaining and the absence of any showing that time had been of the essence, found that the employer was not justified in assuming that further bargaining would have been futile when it instituted the new terms and conditions at the end of the lockout-this despite the facts that the em- ployer had previously said that the position of the union on both seniority and term was "absolutely not accepta- ble"; the union had told the employer that the offer of the latter was acceptable "only" if it incorporated the union's position on these two items; the union had appar- ently made no effort to bargain further during the lock- out; and, despite the resumption of bargaining after the lockout ended, the union never capitulated to the em- ployer's proposal. SGS seems a stronger case for finding impasse than the present facts There, both sides had taken fixed positions on clearly defined issues, describing those positions in terms of finality, unlike the present case. Here, the Union had no opportunity to discuss as important an issue as wages, and had openly demonstrated its desire to do so; there are no similar facts in SGS. Here, the Respondent's final offer had failed to address or incorporate other items to which it had orally assented; SGS shows no similar discrepancies. As we have seen, on 27 April and 2 May, even before the union membership had the opportunity to vote on the Respondent's "modified final" offer, Respondent uni- laterally announced changes in the operating procedures which had the effect of diminishing the Union's exclusive jurisdiction; it also, on 29 April, engaged in direct deal- ing with the unit employees; and on 4 May, while the employees were on strike, Respondent sent memoranda to all the technicians notifying them that, effective 9 May, some of them would have the names of their classi- fications changed and 11 of them would be reassigned from the engineering department to three other depart- ments. None of these latter changes had been discussed during negotiations. It was against this backdrop that the parties met again on 12 May, the first day on which Dimino was available after 27 April, despite the commencement of the strike on 3 May. STORER COMMUNICATIONS As earlier discussed, Dimino began the meeting by an- nouncing that his side had "nothing on the table" and was "willing to take suggestions " Coyte continued to deny that an impasse existed , and seemed to be attempt- ing to signal to Dimino that serious negotiations could result in a contract (the Union was "prepared to honor the progress made by the Company"; Coyte "hoped both parties could get down to see if an agreement could be reached," to which Dimino replied, "I said before, you rejected our final proposal and everything is off the table"; Coyte said suggestively, "When you can trade one issue for another issue, there is no impasse"; Dimino denied that there was anything to trade) Dimino ap- peared to be taking the position that they were no longer engaging in negotiations ("Mr. Dimino stated that the Union's goal is to re-open negotiations "; he had given the Union his "final offer "; that offer was now "off the table"; and he "would never offer a final , final offer"). In such circumstance , I must conclude that the Union still was not afforded, on 12 May, the opportunity to engage in the thorough and comprehensive bargaining which it had theretofore been denied . Once Dimino had announced at the commencement of the meeting that Re- spondent's final offer had been removed from the bar- gaining table, and continued thereafter to indicate that Respondent no longer felt any real obligation to bargain, the Union was hardly in a position to pose obsolete ques- tions about the meaning of Respondent 's now-nonexistent proposals or to suggest trading a quid in those extinct proposals for a quo of a different sort. Nor do I find meaningful the failure of the Union to make any significant concessions in the proposals it pre- sented on 12 May. It still had not had the chance to seri- ously question and debate important aspects of Respond- ent's 27 April proposal , and the events since 27 April had introduced a whole new dimension into the relation- ship, conceivably affecting how the parties would deal with one another . By way of analogy, the Board has held that where conditions have changed materially since the time that parties reached impasse , a union does not have to "declare publicly" that its demands have less- ened in order to be entitled to meet with the employer. Transport Co. of Texas, 175 NLRB 763 fn . 1 (1969) Simi- larly, in the present situation , the Union was not required to capitulate before it could negotiate.69 An employer has, said the court in Fisch Baking Co. v. NLRB, 479 F 2d 732, 736 (2d Cir. 1973), a "basic duty of allowing adequate time and opportunity for reasonable discussion of the essential details of its offer." Here, Re- spondent did not permit that degree of "meeting and dis- cussion" which might have led to "strong bonds of 89 Respondent also argues that the failure of the Union to surrender to Respondent in its July proposal further establihes that the Union had no intention of reaching an accommodation By July, however, the Re- spondent's determination to treat the Union as nothing more than an im- potent irritant had become very clear, and it would make sense that the Union would not choose to appear as powerless as the Respondent had determined to treat it As earlier discussed, furthermore, probably be- cause of all the unknown factors which enter into judgments by the par- ties once unilateral action has been taken, the Board has held that subse- quent behavior will not be considered in assaying the issue of impasse SGS Control Services, supra, Dependable Maintenance Co, supra, Henry Miller Spring Co, 273 NLRB 472 (1984) 1089 agreement," AFTRA v. NLRB, supra, and thus was in no position to realistically evaluate the existence of "im- passe," defined by Judge Learned Hand in NLRB v. Remington Rand, 94 F.2d 862, 872 (2d Cir 1938), as the point at which "it becomes apparent that a settlement is impossible." This is especially meaningful in the present circumstances, where the Union had consistently spoken of a willingness to compromise , as the court stated in Huck Mfg. Co. v. NLRB, 693 F .2d 1176, 1186 (5th Cir. 1982), "[F]or a deadlock to occur , neither party must be willing to compromise" (emphasis in original). Thus, I find that Respondent did not act reasonably in assuming that a state of impasse existed when, in early June, it put into effect the sweeping changes in employ- ment conditions coincident with the return of the strikers to work, Respondent was not justified in assuming that "good-faith negotiations [had] exhausted the prospects of concluding an agreement," Taft Broadcasting Co., supra, 163 NLRB at 478. b An alternative rationale requiring the same result is the rule that an employer cannot claim the protection of the existence of an impasse which results from its own misconduct . Wayne's Dairy, 223 NLRB 260, 265 ( 1976). As seen above, even before the unit rejected the Re- spondent's last offer , Respondent had committed unilat- eral-action and direct -dealing violations which probably contributed to the membership 's rejection of the offer, to the subsequent strike, and to Respondent 's various re- sponses thereto in June and July . Having so contributed to the impasse by its own misconduct , the Wayne's Dairy principle would preclude any claim of impasse which would authorize the unilateral actions taken subsequent- ly c. Furthermore, even if one were to assume that an impasse came into being on 2 May, the authorities indi- cate that by 7 June, the impasse had been broken and the Respondent was not privileged to act unilaterally. The Supreme Court has held that "impasse is only a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force." Bonanno Linen Service v. NLRB, 454 U.S 404, 412 (1982). In Hi-Way Billboards, supra, 206 NLRB at 23, the Board cited several forms of economic pressure which may follow an impasse (including, of course, a strike) and stated that "[s]uch economic pressure usually breaks the stalemate between the parties, changes the circum- stances of the bargaining atmosphere, and revives the parties' duty to bargain." The Board's language in Hi-Way seems clearly to say that a strike alone may break an impasse, and earlier cases had also directly said so. West Fork Cut Glass Co:; 90 NLRB 944, 945 (1950), and cases cited. However, in an intervening case, Transport Co. of Texas, supra, 175 NLRB 763 fn. 1, in finding the impasse to be broken, the Board had relied on "all the circumstances" (emphasis in original), those being "the strike which was lost by the Union, the replacement of strikers, the wage changes in- 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stituted by the Respondent, and the hiatus of 7 months since the last bargaining meeting."70 In the present case, there were four circumstances which seem to me to be material : the strike itself, which, by 7 June, had lasted for 5 weeks; Respondent's with- drawal of its contract offer on 3 May; the changes in working conditions instituted by Respondent prior to 3 May; and the fact that it was Respondent's perception, as its brief states, that the Union's strike was "unsuccess- ful." These combined circumstances appear to be quite sufficient to warrant a finding that "conditions had changed materially from those existent at the time of im- passe," Transport Ca of Texas, supra, and therefore re- vived any duty to bargain which may have been sus- pended while, for the sake of argument, an impasse exist- ed. d. It should be noted, moreover, that even if Respond- ent had been otherwise justified in unilaterally changing the terms of employment, it apparently went too far; a number of the items alleged in the complaint as constitut- ing unlawful unilateral action would evidently not have been privileged under the prevailing impasse principles. As set out previously, the complaint alleges that "Re- spondent eliminated the Union's exclusive jurisdiction over all7 t work functions, including but not limited to" six named functions. Gary Jones and Roger Wilcox, cor- roborated on some points by Robert green, testified that after the strike, nontechnicians performed a number of functions previously within the exclusive purview of the NABET unit which were never the subject of a divest- ing proposal during the bargaining.72. The Board and the courts hold that an employer may not unilaterally effect such unproposed changes, even in the presence of an im- passe. Robbins Door & Sash Co., 260 NLRB 659, 664 (1982); Caravelle Boat Co., 227 NLRB 1355, 1358 (1977); Ace Galvanizing, 217 NLRB 144, 146 (1975); NLRB v. In- tracoastal Terminal, 286 F.2d 954, 959 (5th Cir. 1961). 70 Transport Co. was relied on in O'Malley Lumber Ca, 234 NLRB 1171, 1179 (1978). 71 This rather awkward phrasing can be read to suggest that the Union enjoyed "exclusive jurisdiction" over "all" the work functions which its represented employees performed. That would be incorrect, since the ex- pired contract provided for a sharing of jurisdiction in many instances 7S The record further shows that Respondent eliminated various non- jurisdictional benefits, such as the premiums for working more than 12 straight hours or on more than 10 consecutive days, even though its pro- posals had never suggested such an intention. The imposition on the unit in June of the limited terms and conditions contained in the employee handbook had the effect of eliminating virtually all the bargaining unit's existing benefits, and certainly all of those terms specifically alleged in the complaint as having been excised unilaterally. Again, even if we were to assume that impasse had been reached, the question would arise whether the impasse principles authorize adverse changes in existing em- ployee benefits which have at some point been proposed for elimination by the Company but have later been tentatively reinstated and included in it final offer. In the present case, for example, the Company's initial proposal would have eliminated the existing 10-percent night-shift differ- ential and the paid lunch period, but its final offer restored those benefits (and others originally deleted by its first proposals). Respondent argues that "it is unnecessary that Storer parallel its last and best offer when making changes in working conditions during a bargaining impasse. It is enough that all changes are comprehended within proposals made and re- jected by the Union." It might be said that the only proposals actually "rejected" by the Union were those rejected at the 2 May membership meeting; the Company's offer included those terms at that time At least since Crompton-Highland Mills, 70 NLRB 206 (1946), enfd. in pertinent part 337 U.S. 217 (1949), the Board has held that the grant of a benefit to represented employees more favorable than that offered to the union representative is an unlawful act in that it tends to sub- vert the union's position as the representative of the em- ployees," NLRB v. Insurance Agents Union, 361 U.S. 477, 485 (1960), or "clearly manifest[s] bad faith," NLRB v. Katz, 369 U.S. 736, 743, fn. 11 (1960). Without distin- guishing between the undiscussed grant by an employer of more favorable benefits and other possible situations, the Board has seemed to assume that the same formula- tion applies to any circumstances in which the offer and the implementation are different. Thus, in Taft Broadcasting Ca, supra, the Board simply said that an employer can, after impasse , make changes that are reasonably comprehended within his preimpasse proposals. More recently, the Board has repeatedly, al- though without analysis, specified that the preimpasse proposals referred to are the most recent rejected pro- posals made by the employer. Miller Spring, supra, 273 NLRB 472, 477 (if impasse had been reached , "Respond- ent would have been free to announce and implement its last contract offer); Western Publishing Ca, 269 NLRB 355, 356 ("[T]he Respondent was clearly implementing the same proposal it had offered to the Union before im- passe," which it had consistently proposed); Crest Bever- age Co., 231 NLRB 116, 119 (1975) (Respondent could legally make changes consistent with rejected offer," i.e., "last previous offer); Ace Galvanizing, 217 NLRB 144, 146 (1975) ("An employer may . . . put [sic] into effect its last offer preceding the impasse"). On the strength of such undiscriminating and specific language, one might conclude that the failure of an em- ployer's proposal to have contained a particular benefit at some point during the course of bargaining . is of no moment if that benefit is ultimately offered to and reject- ed by the union, in such circumstances, the employer would be limited to changing , postimpasse, existing terms of employment only in a manner consistent with its last offer. There are policy implications involved here which, as far as I can tell, the Board has never discussed vis-a-vis the obligations of an employer who starts with a bid lower than the existing terms of employment and ends with an offer higher than his starting bid, which is then rejected by the Union, resulting in impasse. I am thus re- mitted, I think, to the plain words repeatedly used by the Board in seemingly treating those obligations as unvary- ing, regardless of the circumstances . For these reasons, an alternative basis for affixing liability is that Respond- ent's 7 June changes did not track its . "modified final offer." Accordingly, even if one were to find impasse here, very few of the changes implemented in ' June would pass muster under the foregoing analysis. 2. Waiver Finally, Storer argues that the Union waived the right to bargain about the changes effected by Respondent in April, May, and June. STORER COMMUNICATIONS 1091 As. Respondent correctly states, if a union receives notice of a proposed change in terms and conditions in sufficient time to engage in bargaining before the change is implemented, and fails to request an opportunity to do so, it is deemed to have waived the right to oppose the change . Talbert Mfg., 264 NLRB 1051, 1055 ( 1982), American Buslines, 164 NLRB 1055, 1056 (1967). Storer argues that this principle is applicable to the present case, based primarily on the Union's failure to request bargaining when, on 7 June, Dimino announced that the new terms and conditions of employment would be those found in the employee handbook.73 I conclude that the waiver-by-inaction doctrine cannot be relied on by Respondent in this case, for a number of reasons. The first is that the announcement made by Dimino on 7 June was an act of bad faith which makes the Union's failure to respond of no legal consequence. That the Union was engaged in protected activity when it struck, there can be no doubt. "A strike does not in and of itself suspend the bargaining obligation," NLRB v. Rutter-Rex Mfg. Co., 245 F.2d 594, 596 (5th Cir. 1957). The bargaining obligation requires the parties at all times to make a sincere effort to reach agreement," Rescar, Inc., supra, 274 NLRB 1, 2 (1985). To the extent that Respondent regards the 7 June announcement as a "proposal" about which the Union was entitled to bar- gain, it is beyond question that the terms then "offered" did not represent a "sincere effort to reach agreement," but rather fell into that category of proposals such as the two-page document in NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir 1953), which did not have "the slightest chance of acceptance by a self-respecting union"; even the document in that case at least contained a recognition clause, which the 7 June oral announce- ment made no reference to. As discussed earlier, the Board has recognized the right of employers to reduce their offers in appropriate circumstances, but it has also acknowledged the possibili- ty that the reduced proposals may be so "harsh , vindic- tive, or otherwise unreasonable , that they warrant the 73 Respondent also argues that earlier notifications to the Union served to invoke the principle, referring to Dimino's statement on 20 April that when the contract terminated on 22 April (which termination notice was rescinded on 21 April), " new work rules " would be put into effect, a similar notice about a change in "work rules" that would accompany the termination on 29 April, and the notice of certain jurisdictional changes posted on 27 April by Green and 2 May by Ballew As to the first two points , the statements were unspecific (and the first rescinded) and required no response Stone Boat Yard v NLRB, 715 F 2d 441, 445 (9th Cir 1987) As to the last point, not only did some of these changes take effect "immediately," but they also afforded no basis for the Union to assume that the Company would work the devastation to exist- ing conditions created by its 7 June announcement Moreover, Respond- ent seems to be arguing that even in the midst of negotiations-even as a union is arranging to submit an employer's "final offer" to the member- ship-the union must separately respond to continuing notifications by the employer of changes to be put into effect by requesting and engaging in separate bargaining on those points , such a procedure would reduce contract bargaining to a shambles It may be noted that in discussing this issue at p 48 of its brief, Re- spondent states, "When the second notice of termination of contract was given on 27 April, the Company again stated its intention that the old con- tract terms would not survive the termination and that new work rules would be implemented R Exh 40, Jt Exh 4 (c) " The italicized words are the legally significant ones The cited sources contain no support for the rep- resentations made presumption that they were proffered in bad faith." Reli- able Tool Co., 268 NLRB 101 (1983). The terms abruptly introduced by Respondent on 7 June, sweeping aside a complicated web of accumulated benefits , privileges, and protections and lacing the NABET employees on the level of nonunion employees , seem to clearly fall into the "harsh, vindictive , or otherwise unreasonable" category. That being the case, I would not hold the Union to an obligation of requesting bargaining in response to the 7 June announcement. But there are other reasons why the waiver cases are inapplicable here. The Board (former Chairman Van de Water concurring in the result) has stated that in order to "permit a union a reasonable time to evaluate the pro- posals," "[n]ormally , an employer must allow a union more than the 5 -day period, present in this case , between the time the union receives the employer's proposed con- tract changes and the time the employer implements those changes . M & M Building Contractors, 262 NLRB 1472 (1982).74 While Respondent's 7 June announcement did not propose "contract change," it did announce changes in terms and conditions of employment, which for these purposes are clearly equivalent. As phrased in the written statement read to the Union by Dimino on 7 June, the alteration of the existing terms took effect immediately, thus having no time for bargain- ing: "The terms and conditions of your employment are spelled out in our Company handbook" (emphasis added). Thus, if some employees had returned to work on 7 June, they would have been entitled only to those few benefits particularized in the handbook.75 Accord- ingly, the Union was not only not afforded the "more than . . . 5-day period" "normally" required by M & M Building Contractors, supra, to permit the Union to evalu- ate the proposal, but it was given no time at all to do so. Instead, it was presented with a fait accompli. 76 Conse- quently, no waiver occurred. 74 This passage is dicta in the M & M case, in which , for an unusual reason, no violation was found , but it appears to be the sort of authorita- tive, rule-making dicta in which the Board frequently indulges See, e g , Meyers Industries, 268 NLRB 493, 497 (1984) The language from M & M set out above was quoted by the administrative law judge in Gresham Transfer, 272 NLRB 484 ( 1984), without comment by the Board, and M & M was also relied on by the administrative law judge in San Antonio Portland Cement Co, 277 NLRB 309 (1985) 75 In the letter sent to employees on 7 June , Dimino made clear that he had been , and was still , anxious to have the employees resume work as soon as possible "We have informed the bargaining committee that the station continues to be eager to have all our technicians return to work immediately [and] in returning to work company policy in re- gards to benefits [sic] as set forth in the Employee Handbook will apply to you" (emphasis added) While Chief Engineer Green testified that the Company "intended" the changes to take effect "as of the day the em- ployees returned to work," which he subsequently rephrased as "begin- ning June 10, 1983 ," the first formulation would include a date at least as early as 7 June, his second phrase probably tended to naturally incorpo- rate the day the strikers did actually return i 76 Dimino's 7 June statement threatened strikers with permanent, re- placement if they did not "return to work by this Friday , June 10, 1983 " It was reasonable for the Union to assume that in the face of this threat, the strikers would be back at work at least by Friday That appears to be the day on which they (or most of them) did return Green , who evident- ly had his dates askew, testified at one point that he received calls from all the employees, he "think[s] it was a Thursday , the 12th of June, I think I'm not sure of that date " They returned to work "[t]he Friday Continued 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, the Board has held that when •it• is obviously futile to demand bargaining, the union • may not be fault- ed for failing to do so. In Carpenter Sprinkler Corp., 238 NLRB 974 (1978), enfd. 605 F.2d 60 (2d Cir. 1979), the employer sent the union a list of , revised benefits to be put into effect 5 days later, "earnestly request[ing]" the union to contact us immediately . . . if you have any questions or comments," but also stating that we feel compelled to operate within our means." Despite the failure of the union to protest or request bargaining, the administrative law judge concluded that the employer's letter "unequivocally states Respondent's intention to ef- fectuate the changes and [by its] very terms effectively preclude[d] a request to negotiate further." 238 NLRB at 983. Compared with the "earnest" solicitation by the em- ployer of "questions or comments" in Carpenter Sprin- kler, this seems a stronger case for finding futility. After his opening remarks on 7 June, Dimino gratuitously ex- pressed his plainly deepseated anger at the bargaining unit: You additionally aggravated the situation by at- tempting to hurt the Company*by what we believed to be an illegal secondary boycott; the harassment of non-striking personnel; and interfering with the Company's right to conduct its business." He went on to say that Respondent "expect[ed] all our striking employees to return to work without any precon- ditions whatever.... The terms and conditions of your employment are spelled out in our Company handbook and all returning personnel will be paid at the same wage level they were at when they went on strike" (emphasis added). When Coyte inquired, "What about status quo? I dont think you can put them back under company policy," Dimino simply replied, "Company policy."78 This peremptory tone is also invoked in the 7 June let- ters to the strikers, saying that in returning to work, the strikers "do so with no preconditions," and the handbook benefits will "apply to you." In the face of such an attitude, it is impossible to con- clude that any request for bargaining could have had a chance of affecting Regpondent's decision on this issue. Even in Sherwin- Williams Co., 260 NLRB 1321 (1982), revd. 714 F.2d 1095 (11th Cir. 1983), cited by Respond- ent, in which the court of appeals disagreed with the Board that the company had announced the termination of holiday pay as an accomplished fact, the court implic- itly recognized that an employer's decision about a ter- following that which, I think, was the 13th." In all liklihood, the employ- ees called Green on Thursday, 9 June, and returned on Friday, 10 June. A payroll notice pertaining to Gary Jones shows that he returned to work on 10 June. This was also well within the - normal more-than-5-day period to which the Union was entitled. ;?? The record contains no evidence of any guch misconduct. 78 "Company policy" is a rather elusive concept. It does not seem to mean the same as the employee handbook . At the 19 October meeting, after Dimino had said that Respondent was operating "according to Company policy," McKnight asked what company policy was on a cer- tain subjects, and Dimino replied that it was "management prerogative." At the same meeting, Respondent Attorney Corcoran stated that "Com- pany policy did provide for double time in certain- cases," but did not indicate where this policy was inscribed (it is not in the handbook). mination of benefits can be "so absolute as to preclude any possibility of bargaining on the issue of [the -termi- nated benefit]." 714 F.2d at 1102. In my view, the present evidence satisfies that standard. It is true that, after reading this statement, Dimino said, according to the company minutes, that he would be "glad" to meet with the Union "over a period of time and continue the negotiations." In so saying, however, he was obviously distinguishing between the terms he was proclaiming on 7 June and "negotiations." More- over, Dimino said that he would be available on "Thurs- day and Friday of next week," which would be long after he would have expected the strikers to be back at work. The record leaves no doubt that, once the strike began, Dimino lost any interest in collective bargaining that he might earlier have had. In what was clearly an attempt to reopen serious communications on 7 June, Coyte, according to the minutes, invited Dimino to sug- gest ways in which Respondent would "modify the Union's jurisdiction proposal and modify its wage pro- posal." The minutes state that "Dimino responded" by saying no more than that he was urging the strikers to return by Friday or be replaced. Further evidence that the Company had all but with- drawn recognition from the Union by 7 June is the fact that on 16 June, Dimino sent letters to all members of the bargaining unit, stating that effective 1 July, their base salary "will be adjusted" by a 3-percent increase. Dimino neither made a proposal to that effect to the Union nor even notified the Union in any formal way (of course, President Lolli and the other employee-members of the bargaining committee received copies qua employ- ees). This 16 June letter announcing an across -the-board increase came 9 days after the 7 June meeting at which, according to the company minutes, when asked by Coyte -about future pay raises, Dimino had stated that "Company policy in which pay raises are awarded for merit" would apply (emphasis added). According to the Company's minutes of the 13 Sep- tember meeting, Dimino said that the Company had started operating the station "from scratch . . . when the Union went on strike"; that "the station has now been operating without the exclusive union jurisdiction clause for some time and that company management had deter- mined that the station was operating in a much more effi- cient manner without it";79 and that the "only thing that is in place is that you are the bargaining agent . All else is gone." The foregoing evidence persuades me that a union re- quest for bargaining at the time Dimino made his sudden pronouncement on 7 June about the applicability of the employee handbook would have been a vain- and ineffec- tual act.80 On the basis of this and the other reasons dis- 99 Dimino gave testimony about his original bargaining objective which mirrors this statement: "I was very much interested in fording a way in dealing with our unions ... as if we had one union." 89 Dimino also made clear at the hearing that, although he attended so- called bargaining sessions after 7 June , he had no intention of reaching any new agreement. He explained that he had rejected the written pro- posal made by the Union in July because it "was not commenturate [sic] Continued STORER COMMUNICATIONS cussed above, I therefore reject the claim that the Union waived its right to bargain over the new terms at that time. I conclude, instead, that the changes effected on 7 June by making applicable to the bargaining unit only those terms and conditions of employment contained in the employee handbook were unilaterally promulgated, in violation of Section 8(a)(5) and (1) of the Act."' G. The Alleged Unfair Labor Practice Strike The complaint asserts that the strike was "caused" and "prolonged" by the unfair labor practices alleged in the complaint. The only testimony in the record pertaining to the intraunion discussions preceding the late evening vote to strike on 2 May was given by Gary Jones and Roger Wilcox. Jones testified that after 27 April, the union committee discussed Respondent's offer of that day. He said that the committee was "uncertain about certain areas of the juri- dictional language," "did not have a good understanding at all concerning the company's wage offer," and "felt that we should request another meeting with the Compa- ny," which they did, without success. They also dis- cussed recommending strike action to the membership, based on their lack of understanding of the wage and ju- risdictional offers and their inability to arrange a meeting with the Respondent; the memorandum instituting new work rules; the memo regarding the termination of retro- activity, the fact that the Company had refused to permit the Union to post its minutes on the bulletin boards; the fact that after the 27 April meeting, "the Company seemed to be bypassing the bargaining unit, in putting up memos, changing work rules, clarifying work offers"- "We discussed the whole gambit of things " A general membership meeting, tended by about 25 of the 50 unit employees, was held for 2 hours on the evening of 2 May.82 Wilcox testified that the committee tried to explain the Company's proposals to the member- ship, but "had a number of areas where we had misun- derstandings, or we weren't clear." They spoke of areas where they thought "they had agreement on things, and they didn't show in the proposal " They tried to explain the Company's wage proposal, but since it was done in a "different way than it was in the past," and there were "multiple ways you could interpret it," "we were [not] able to explain it to the group satisfactorily." The em- ployees, who asked a "lot of questions," were also told with the [7 June] terms and conditions that the employees return to work, which was unconditional " Dimino was thus plainly stating that he viewed the return of the strikers as a surrender of their bargaining rights Si For the reason that it manifestly would have been useless to attempt to engage in genuine and openminded bargaining about the 3-percent in- crease announced on 16 June to be effective 1 July, I conclude that, by that increase , Respondent also violated the law in this regard I note par- ticularly that Respondent did not even attempt to issue any official notifi- cation to the Union, instead informing the union officers in their capacity as employees The complaint separately alleges that in October , Respondent unlaw- fully changed the existing practice by contracting out the installation and maintenance of company-owned two-way radios It would seem, howev- er, that this change was effectively derivative of the adoption of the em- ployee handbook on 7 June as the sole source of all unit terms and condi- tions of employment , and does not constitute an independent violation 82 The record shows that late in March , the Union rented a motel room which bore a sign reading "Strike Headquarters " 1093 by the committee "that we had attempted, numerous times, to get additional meetings, and no further meetings were scheduled Wilcox said that the committee "listed the reasons" why it thought that a strike "was our only method at this time": having no meetings scheduled with the Re- spondent, "we wouldn't be able to meet and straighten out the things that I said were misunderstandings"; "new work rules were going to go into effect and we didn't know what . .. their impact would be on the group .. . and what we would find at work, and just left us essen- tially no way out"; "We had also been served . with a $500,000 lawsuit, and this left the committee in a rather bad position." One would imagine that more was certainly said at the 2-hour membership meeting prior to the strike vote than the few items Wilcox testified to An employer is, of course, at a distinct disadvantage in attempting to chal- lenge testimony that relates to a union meeting and to what may have impelled employees to go on strike. Al- though neither Jones, in describing the bargaining com- mittee meeting, nor Wilcox, in describing the member- ship meeting, gave any indication that there was serious discussion of the substantive positions of the parties, it seems probable that'there would have been (even though Respondent made no effort to elicit this information on cross-examination). However, it also seems just as rea- sonable to suppose that the members did speak of the unfair labor practices I have found here: the unilateral changes in the allocation of jurisdiction which took effect on 29 April and 2 May; the communication unlaw- fully bypassing the Union; Respondent's refusal to bar- gain in an acceptable manner on 20 April, followed by its abrupt termination of bargaining on 27 April; or at least some of these subjects (Wilcox spoke specifically of the "new work rules" going into effect). It seems likely that these unfair practices at least constituted a "contrib- uting cause" of the strike, Larand Leisurelies v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975), or had anything to do with causing it," NLRB v. Safeway Steel Scaffolds Co., 383 F 2d 273, 280 (5th Cir. 1967) I conclude that the strike is properly characterized as an unfair labor prac- tice strike. H. The Alleged Threat to Permanently Replace Strikers The complaint alleges that at the 7 June meeting of the parties, "Respondent announced that strikers would be permanently replaced if they did not make an uncondi- tional offer to return to work," in violation of Section 8(a)(1) It is undisputed that Dimino made a statement to the effect alleged in the complaint. Because the law prohibits permanent replacement of unfair labor practice strikers, such a statement violates Section 8(a)(1). Consolidation Coal Co., 266 NLRB 670, 671-672 (1983). Counsel for the General Counsel makes a second argu- ment which seems to run as follows. Whether the em- ployees here are economic or unfair labor practice strik- ers, they are entitled (unless, as economic strikers, they have already been replaced) to be returned to "substan- 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tially equivalent employment." But here, the General Counsel seems to say, the Respondent "used" the union members' willingness to return "unconditionally," under threat of replacement, as an unlawful lever by which to change the terms and conditions of employment and thus deny the returning strikers employment "substantially equivalent" to that which they had left. That construction (if I follow the argument correctly) attributes more to the word "unconditionally," than either Respondent's brief (which posits no argument on it) or I do. There is no reason to believe that by virtue of the word "unconditionally," the employees thought they were waiving, or the Respondent believed that it was gaining, any rights with respect to changes in working conditions. Accordingiy, I find only the 8(a)(1) allegation first discussed. ' I. The Regressive Contract Proposal of 22 July According to the complaint, Respondent violated Sec- tion 8(a)(5) by, on 22 July, submitting to the Union a "regressive collective-bargaining proposal." As earlier described, on 22 July Respondent presented the Union with a 10-page contract, generally patterned after the few substantive terms in the employee hand- book (except for such items as a management-rights clause, a grievance procedure , a jury duty provision, and a no-strike no-lockout clause). The General Counsel points out on brief that, in Harowe Servo Controls, 250 NLRB 958, 961 (1980), the Board held that the employer evidenced bad faith by withdrawing, some 2 months after the unfair labor practice strike ended, its earlier proposals and agreements previously reached . The Board there held that the employer would not be permitted to take advantage of its belief that the union's economic power had decreased when the strike was caused by the employer's unfair labor practices. The General Counsel further argues that the July pro- posal is so harsh and vindictive as compared to the prior contract and Repondent's 27 April proposal that it cannot possibly be considered an offer made in good faith with a sincere desire to reach an accord with the Union. The July proposal is shorn of virtually all the benefits contained in the expired contract and in Re- spondent's 27 April proposal. As the General Counsel points out, a number of previously existing contract pro- visions which Respondent did not seek to eliminate in its original set of proposals in January were absent from the July offer. At the same time, the proposed arbitration clause, which in January had been identical to the expir- ing contract's clause, was revised so as to restrict in sev- eral ways the authority of arbitrators.83 '83 The General Counsel argues that the inclusion in the July proposal of "for cause" as the standard by which arbitrators must judge discharge and discipline, instead of "just and sufficient," permits an arbitrator to pe- nalize an employee for "virtually any reason " (the term "just and suffi- cient cause" appears in the "Layoffs and Discharges" provision of the ex- pired contract and also in the Company's January proposal). This history would perhaps provide an interesting problem for an arbitrator, but I dare say most of them would find implied in the phrase "for cause" the notion of "just cause." The probationary period of 12 months (which had been 9 months in the old contract, proposed to be in- creased to 12 months by Respondent in January, and then tentatively agreed upon at the original 9 months level before the strike) is rendered nugatory by the new July addition, which would permit Respondent to extend the period "for further development of the Employee." As earlier noted, Respondent in July resurrected the de- letion of the contractual ban against union-related dis- crimination while retaining the discrimination prohibi- tions based on race, sex, creed, etc.84 A clause applying to NABET employees the hoilday, vacation, etc. "and other benefits" it affords to nonunion employees is made subject to Respondent's "unilateral right to amend, modify or substitute such benefits" (emphasis added). While a similar proviso appeared in the old contract, it was much more confined, applying only to insurance, "retirement," "pension plan," and separation benefits. The "essential thing" about the statutory obligation to bargain in good faith is the "serious intent to adjust dif- ferences and to reach an acceptable common ground." NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960). In my view, the 22 July proposal was simply insulting, wholly unwarranted by the circumstances, and indubita- ble proof that Respondent was not motivated by the req- uisite "sincere purpose to find a basis of agreement," Globe Cotton Mills v. NLRB, 103 F.2d 91, 94 (5th Cir. 1939). I further find nothing approaching the justifica- tions contemplated by the Barry-Wehmiiler (271 NLRB 471) line of cases, discussed supra, which would sanction such an egregiously and foreseeably unacceptable offer as the present one. Accordingly, for the foregoing reasons, taken in con- junction with the other evidence earlier discussed dem- onstrating that Respondent had no interest in reaching agreement with the Union once the strike had begun, I conclude that the 22 July proposal was so "harsh" and "vindictive" (Reliable Tool & Machine Ca , supra, 268 NLRB at 101) as to warrant the inference it was not of- fered in good faith, and that it therefore constituted a separate violation of Section 8(a)(5).85 84 While the management-nghts proposal in July differs in wording from the previous Respondent clause, it is not clear to me, although it is to General Counsel, that an arbitrator would , ultimately, read it different- ly. 85 I recognize that "what may appear to be an unreasonable, obdurate demand may be no more than the skillful practice of the negotiator's art, designed to wring concessions from the opposite side." Steelworkers V. NLRB, 441 F.2d 1005, 1008 (D.C. Cir. 1970). But this was no opening gambit; here the parties had bargained for months, had reached many tentative agreements, and at one time were not, it would seem, far from final agreement. For Respondent to revive in July such stale and long- abandoned proposals as elimination of the union-security clause and dele- tion of union support from the nondiscrimination clause , and to add such new obstacles as total elimination of the jurisdiction clause, denotes a de- termination not to have any bargaining agreement rather than, merely "the skillful practice of the negotiator 's art." The reader is referred to the testimony earlier set out which demonstrates Dimino 's pleasure at being able to operate the station freely and "from scratch." Dubious indeed is the Company's argument on brief that its July proposal "was an attempt to solicit comment by the Union and to continue a dialogue in hopes of reaching a new agreement . Tr. 4382. It was never intended as a final offer but as a new beginning point for negotiations . Tr. 4382," particular- ly since the testimony of Dimino thus referred to states only that the Union had submitted an unacceptable contract in July "[a]nd we felt that it was our obligation to respond to them and continue our dialogue." STORER COMMUNICATIONS J. The Respondent's Availability to Negotiate The complaint alleges that since "on or about 27 April and continuing to date, Respondent has not been avail- able to meet and confer with union representatives at reasonable times for the purpose of renegotiating a col- lective bargaining agreement," thereby violating Section 8(a)(5). At the hearing, the General Counsel agreed to limit the duration of this allegation to 30 September, the date upon which the complaint issued. Thus, the allegation as limited relates to the parties' efforts to schedule meetings from after the 27 April meeting until 30 September, during which 19-week period only three meetings (12 May, 7 June, and 13 September) were held. Coyte testified, without objection or contradiction, that at the 27 April meeting, although Respondent pre- sumably understood that the Union would soon submit Respondent's "modified final offer" to the membership, the Union was told that Dimino would be unable to schedule a subsequent meeting until 12 May. When Re- spondent changed working conditions on 29 April, and Coyte told Green of his urgent desire to have a meeting, he received no response from Respondent Despite the announcement of the strike on 3 May, the 12 May date was not advanced, although it appears from Coyte's tes- timony that he was attempting after 27 April, through the Federal mediator, to meet at an earlier date 86 As indicated, no bargaining occurred at the 12 May meeting and, indeed, Respondent announced that it had withdrawn its proposal. Nonetheless, although the strike was still on and Coyte told the mediator that he was "ready, willing and available at any time to continue ne- gotiations," the parties did not meet again until 7 June; Coyte testified, without objection or controversion, that the mediator had told him Dimino was not available until then. Stahl's notes of the 12 May meeting, put into evidence by Respondent, read "JD Next available meet- ing June 7." As we have seen, no bargaining took place at the 7 June meeting and, according to the minutes, Dimino said that he would be available on the Thursday and Friday of the following week (16 and 17 June). If Dimino was available to meet on 16 and 17 June, the record does not explain why no meeting occurred, the pattern, both before an after that date, suggests that Respondent was probably at fault, but it is unnecessary to make such an assumption. A 22 July letter in the record from Dimino to Lolli shows that a meeting had been arranged for 23 August, Coyte testified that the mediator had set up that meeting, which, given Coyte's testimony that the Union had told the mediator that it was ready to meet "at any time," gives rise to the reasonable assumption that the meeting was delayed for at least most of that time by the Re- 86 Coyte's testimony on this subject, at Tr 487, seems subject only to this construction Although Dominic testified that he personally never re- ceived a request to bargain after 27 April, and strike coordinator Bell tes- tified that he received no bargaining request in April and May, Dimino failed to testify on the subject of requests for meetings after 27 April, a failure which rather detracts from Respondent's broad assertion on brief that "[i]t is undisputed that such frequent [union] requests never reached the Company " 1095 spondent. Dimino's 22 July letter, referring to "certain schedule conflicts," proposed a postponement until 30 August. The Union agreed. But in early August, Re- spondent begged off again, because, as Dimino testified, of his own unavailability, and the meeting date was post- poned for 2 more weeks, from 30 August to 13 Septem- ber. The latter meeting was terminated by Respondent after 15 minutes because McKnight asked questions about the nature of the working conditions that were in place. While the Company's minutes neutrally state that "[b]oth sides agreed to meet again . . on October 19th, "Chief Engineer Green recalled that date was set be- cause, he thought, "Dimino and Burns had other com- mitments," while the union was saying that it wanted to meet at any time. The Board holds that the statutory duty to bargain "surely encompasses the affirmative duty to make expe- ditious and prompt arrangements, within reason, for meeting and conferring." Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949). The facts recited above demonstrate that, prima facie, Respondent failed to satisfy this duty, and it offered no explanation at the hearing for having been able to meet with the Union on only 3 days in more than 5 months It is true, as Respondent contends, that General Coun- sel's burden includes a demonstration that the Union did, in fact, seek to have meetings with Respondent, but I be- lieve the foregoing recital of uncontroverted testimony by Coyte is sufficient for that purpose. I would think that in a simple matter such as a request for meetings, it can be presumed that the Federal mediator executed his duty and attempted to arrange them. It is important to point out that Dimino was never called upon to deny that the mediator had been in contact with him. Furthermore, I find inexplicable the documented fact that as of 22 July, the earliest meeting that the parties had been able to arrange by that date. was 23 August, a month away; and that a month prior to the latter date, Dimino was already seeking to postpone that meeting be- cause of "certain schedule conflicts"-and then less than 2 weeks after 22 July, on 4 August, Dimino (according to his own testimony) sought a delay of the 30 August date, this time to 13 September. Finally, the parties did not get to meet again in September the limitation date here, as discussed) because, as Green testified, Dimino and Burns had other commitments (until 19 October). All this evinces a serious indifference to the statutory requirement to meet "at reasonable times" for the impor- tant business of collective bargaining.87 I conclude that Respondent thereby violated Section 8(a)(5). K. The Refusal to Furnish Information The complaint alleges that since on or about 16 Sep- tember, the Union has requested information "as to we rates and working conditions of employees in the unit .. . and the identity of an employee believed to be per- 87 In scheduling collective-bargaining sessions , a party must "display a degree of diligence and promptness comparable to that which he would display in his other business affairs of importance " Rutter-Rex Mfg Co, supra at 506 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forming bargaining unit work," which, the Respondent has refused to furnish, violating Section 8(a)(5). Dominic's minutes of the 13 September meeting show that Union Attorney McKnight asked for information as to the gross earnings figures of the NABET employees. Respondent Attorney Burns replied that Respondent would consider the request, and then asked why the Union thought the Company was obliged to furnish the data. McKnight answered that "we represent these people and, we should know what they are making." Burns then responded, "We don't agree that the Compa- ny has to furnish you with that information." McKnight asked the name of a new employee assigned to the "PM Magazine" show, what job that person was taking, and whether the new employee was a member of the NABET unit. Burns replied that such questions were not germane to negotiations, the purpose of the meeting. McKnight persisted, and Dimino replied that the Compa- ny was not interested in the new employee's unit status because "[i]t doesn't matter." Subequently, McKnight inquired whether night dtffer- ential pay had been eliminated. Dimino replied that McKnight could ask his members. McKnight inquired whether Respondent's 22 July proposal "reflects at you are already doing"; Burns responded , "In some cases, yes, and in some cases, no " When McKnight said he would like to "ask more questions to eliminate confu- sion," the Company took a caucus (15 minutes after the meeting had begun). Eventually, the Respondent's nego- tiators refused to return on the ground that they "weren't going to be interrogated by the Union." At the next meeting, on 19 October, McKnight began by again asking the name of the new PM Magazine em- ployee and relevant information about him, including his unit status. The only information assertedly known by the' company bargainers, and given to McKnight, was that the individual was "probably editing " Dimino asked McKnight to formulate a list of his questions and, ac- cording to Green 's minutes of the meeting, "promised to find the answers. and get back to the union." McKnight stated the specific information desired about the new em- ployee (whom he thought to be "Don McKoon"), in- cluding his bargaining unit status. McKnight then went on to seek information about an employee named Sandy Spencer . Dimino said he would send information about Spencer to the Union. McKnight then went on to inquire in detail about the current per- sonnel practice relating to technicians. The next meeting was set for 9 November, said to be the earliest date available to Attorney Burns. On 7 November, Burns, writing from Miami, sent to McKnight at his suburban Detroit office a letter respond- ing to McKnight's "request for information at our bar- gaining session of October 19, 1983." The letter was re- ceived in McKnight's office at some time on 9 Novem- ber, predictably as soon as it could possibly have arrived and also predictably too late to get the information into McKnight's hands in time for a scheduled morning meet- ing in Cleveland on 9 November. In point of fact, McKnight did not attend the 9 November meeting. Burns' letter does not address the first question put by McKnight on 13 September, which asked the gross earn- ings of the NABET employees. As noted above, Domin- ic's minutes show that Burns stated on 13 September, "We don't agree that the Company has to furnish you with that information." "Core" information, however, such as employee wage data, has come to be regarded as "presumptively relevant" so as to obviate any special showing of pertinence, e.g., Shell Development v. NLRB, 441 F.2d 880, 887 (9th Cir. 1971). Respondent's claim on beef that "the Union had the information" is simply an argument based on the fact that, at the hearing in this case, the Union produced "numerous" witnesses who tes- tified about working conditions at the station. Their knowledge of the post-7 June operations does not estab- lish that the employee witnesses were aware of what all 50 unit employees were earning (and, given the host of changes made at the station after 7 June, there was no reason for the Union to settle for the speculation that the employees were earning what they had been making when the contract expired plus the 3-percent increase given in July). Similarly, although Burns' 7 November letter supplied much employment information regarding the two em- ployees about whom McKnight had inquired on 13 Sep- tember and 19 October, it failed to respond to McKnight's request for a statement of the Company's position as to whether these two employees were consid- ered by Respondent to be members of the bargaining unit. While such a request for a statement of position does not seek empirical data as such, it is undoubtedly of importance that a union be informed of the company's position with regard to the constituency of the bargain- ing unit. The record contains employment forms which show that Respondent makes entries as to whether each of its employees is or is not represented by one of the unions at the station The "name . . . of the unit employ- ees are presumptively relevant data, Dynamic Machine Co., 221 NLRB 1140, 1142 (1975), and in view of the sweeping operational modifications made by Respondent after the 1983 strike, its stance as to the inclusion or ex- clusion of particular employees from the unit was a rea- sonable and relevant inquiry. I find that Respondent violated, Section 8(a)(5) in Sep- tember and October 1983 by failing to supply to the Union the requested information regarding the gross pay of unit employees and the perceived unit status of em- ployees McClung and Spencer, and by failing timely to furnish the other data requested with respect to the latter employees. L. Respondent's Posthearing Motion - On 8 July 1985, after the close of hearing and the filing of briefs in this case, Respondent filed a "Motion to strike and alternative Motion to Re-Open Hearing," based on the contention that "the General Counsel as- serts in her brief, for the first time, that jurisdictional changes and the transfer of supervision of unit employees from the head of the Engineering Department to the heads of other department in the station are unlawful be- cause Storer allegedly now has unilateral control over who is in the bargaining unit." General Counsel subse- quently filed a response seeking the denial of Respond- STORER COMMUNICATIONS 1097 ent's motion, together with a motion to strike what is termed "a thinly veiled attempt [by Respondent] to file a reply brief to arguments which it apparently did not an- ticipate." This exchange of motions is based on General Coun- sel's premise in her principal brief that by removing the Union's exclusive jurisdiction over all work functions, the Respondent effectively maintained the right unilater- ally to determine who was in the bargaining unit, a right which, General Counsel asserts, an employer may not bargain to impasse in order to secure. The premise is mistaken in that it has undoubtedly been many years since the Union had exclusive jurisdiction over all work functions, whatever that may mean in the present setting. As indicated, over the years, the Union and the Re- spondent have, by bargaining, shaped and reshaped the contours of the Union's "exclusive jurisdiction," so that for certain technical functions, nonunit employees have been permitted to perform certain kinds of work and have been prohibited from performing others. Even by insisting to impasse on efforts to further reform the juris- diction for the unit, Respondent would not, contrary to the General Counsel, be "insist[ing] to impasse on a pro- posal which would give it unilateral control over who is in the bargaining unit." The jurisdictional issue in bar- gaining was not who should be within the unit of "tech- nicians" (as to which Respondent's motion state, "The same employees who were part of the unit when most were nominally assigned to the Engineering Department are considered to be unit members today"), but what work, if any, should be exclusively theirs. Of course, under a system of fragmented jurisdictional exclusivity and nonexclusivity, it may become difficult to define those employees who belong to the unit. But the Board's unit clarification procedure is always in place to solve that sort of problem, should it arise. In any event, as Respondent contends, the complaint contains no allegation that the Respondent insisted to im- passe upon a nonmandatory or illegal proposal . I shall therefore disregard pages 67-70 of General Counsel's brief insofar as they suggest that a violation may be founded on such a theory. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in an industry affecting commerce within the mean- ing 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) the Act. 3. At all material times, the Union has been the exclu- sive collective-bargaining representative of Respondent's employees in the following described unit: All full-time and regular part-time broadcast techni- cians employed by Respondent in the Engineering Department of Television Station WJKW-TV andor all broadcast technicians at its facility at 5800 S. Marginal Road, Cleveland, Ohio, excluding the chief engineer, assistant chief engineer, announcers, stage hands, photographic technicians, office cleri- cal employees , guards and supervisors as defined in the Act. 4. By, -'since on or about 25 March 1983, refusing to permit the Union•to post on Respondent's bulletin boards minutes taken - by the Union of the collective-bargaining negotiations between the parties, the Respondent violat- ed Section 8(a)(1) of the Act. 5. By, in March or early April 1983, indicating to an employee that the Union's negotiations with Respondent would be futile, Respondent violated Section 8(a)(1) of the Act. 6. By, on and after 20 April 1983, refusing to discuss nonjurisdictional issues until all jurisdictional issues had been received, Respondent violated Section 8(a)(5) of the Act. 7. By,_ on 27 April and 2 May 1983, communicating changes- in working conditions directly to employees without dealing with the Union, Respondent 'violated Section 8(a)(5) of the Act. 8. By, on 3 May 1983, withdrawing its final offer for the reason that' the Union voted to strike, Respondent violated Section 8(a)(1) of the Act. 9. By, on and after 29 April, 2 May, and 7 June 1983, at times when Repondent could not reasonably have concluded that the parties had reached impasse in their bargaining and without affording the Union a thorough and complete opportunity to bargain, making changes in the working conditions and benefits of the bargaining unit employees, Respondent violated Section 8(a)(5) of the Act. 10. The strike which commenced on 3 May 1983 was an unfair labor practice strike. 11. By, on 7 June 1983, threatening to permanently re- place unfair labor `practice strikers, Respondent violated Section 8(a)(1) of the Act. 12. By, on 22 July 1983, submitting a regressive con- tract proposal to the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 13. By, from after 27 April to 30 September 1983, not being available at reasonable times to participate in col- lective-bargaining negotiations , Respondent violated Sec- tion 8(a)(5) of the Act. 14. By, since on or about 16 September 1983, failing and refusing timely to furnish to the Union information relevant to the needs of the Union, the Respondent vio- lated Section 8(a)(5) of the Act. 15. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 16. Except as specifically found above and further specified below,, the Respondent has not otherwise vio- lated the Act as alleged in the amended complaint. THE REMEDY Having found that the Respondent has violated, the statute in various respects, I shall recommend that it)be required to remedy those violations. The traditional cease-and-desist order will be entered and will be adequate to remedy violations such as, e.g., the coercive statement made by Ed Guild and the threat to permanently replace unfair labor practice strikers. A somewhat more complicated subject is that of the changes in working conditions and benefits made by Re- 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent beginning in late April 1983. The complaint al- leges, and the record shows, that on 29 April and 2 May, Respondent made certain unilateral changes in jurisdic- tional functions theretofore recognized as the exclusive work of the Union. The complaint alleges, and the record further shows, that beginning on or about 7 June 1983, Respondent made additional unilateral alterations in the Union's exclusive jurisdiction and also made a number of unilateral changes with respect to benefits which the unit employees had been receiving prior to the strike, both resulting from the adoption by Respondent of the limited terms and conditions contained in the em- ployee handbook as the sole source of benefits and work- ing conditions for the unit employees.88 By virtue of making such changes in benefits, as alleged in the com- plaint, the Respondent eliminated paid lunch periods; eliminated an existing penalty for missed meal periods; discontinued scheduling 12-hour rest periods between shifts and paying a penalty for failing to schedule 12- hour rest periods; ceased paying a penalty for work per- formed for more than 10 consecutive straight-time days or beyond 12 hours; discontinued the payment of a night differential; discontinued the payment of double time; transferred employees from the engineering department to various other departments;89 ceased preparing weekly work schedules in cooperation with a union steward and ceased posting such schedules at least 14 days in ad- vance; ceased giving 48-hour notice of schedule changes to unit employees and discontinued payment of a wage penalty for changing schedules without such notice; dis- continued scheduling meal periods 3 to 5 hours after the beginning of a shift; and, in July, granted employees a 3- percent wage increase. Since I have concluded that it was unlawful for Re- spondent to take these actions, I shall recommend that the Respondent be ordered to remedy its changes by re- instating the jurisdictional and nonjurisdictional terms and conditions of employment that obtained prior to 27 April 1983 and by compensating those employees who suffered financial losses as a result of the unilateral changes. The Respondent's liability to compensate em- ployees for benefits , penalties, and premiums not paid, plus interest on those sums (see Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977)), shall run from the date of the changes until the terms and conditions are changed, if ever, in accordance with the law. I note that recently, in San Antonio Port- 88 As Respondent attorney Burns stated at the 19 October meeting, "All things which differed from the employees handbook were eliminat- ed " 89 The record shows to my satisfaction that these transfers adversely affected a substantial number of employees in a material manner and thereby constituted mandatory subjects of bargaining Gary Jones, for ex- ample, went from an all-around technician whose duties varied widely, to a control room operator in the programming department whose duties were narrowly confined. The same was true of other (although not all other) employees Moreover, the transfer from the engineering depart- ment to the other departments affected their entitlement to vacations in various ways At no time prior to the implementation of these transfers was a proposal made to the Union that contemplated such a wholesale change (or any change) in the method of organization or in the functions of the technicians, nor was the Union given any notification that the Re- spondent intended to undertake such a dramatic alteration of its engineer- ing department land Cement Co., 277 NLRB 309 (1985), the Board, while reaffirming the established objective to restore the status quo that existed before Respondent ignored its statutory obligation to bargain, decided not to require the employer to reinstate the preexisting unilaterally changed conditions because it believed that such an order would cause unnecessary disruption of the Re- spondent's operations and that the other aspects of our order fully remedy the unfair labor practices. In the present case, however, there is no indication that either statement is applicable. A review of the changes set out above discloses that some of them can be measured in monetary terms and some cannot. An example of the former is the elimina- tion of paid lunch periods; an example of the latter is the discontinuance of scheduling meal periods 3 to 5 hours after the beginning of a shift. The compensation remedy here recommended refers only to those changes which eliminated a benefit, penalty, or premium otherwise pay- able to unit employees under the surviving terms of the expired contract. There is no appropriate way of giving tangible compensatory relief for a change such as Re- spondent's failure to schedule meal periods at given times. The same conclusion applies to my findings that Re- spondent took unlawful unilateral action in the area of the Union's work jurisdiction. The relevant complaint al- legation states (emphasis added)- Respondent eliminated the Union's exclusive juris- diction over all work functions, including but not limited to editing of videotape, previewing and screening of one-inch and two-inch videotape, the operation of the vidifont for recall purposes, oper- ation of recording equipment in any two-man crew situations, the technical operation of the announce booth and recording of voice tracks. The record establishes that Respondent indeed unilateral- ly assigned other than unit members to perform the six specific functions listed in the complaint as set out above; and the record also shows that after the strike, Respond- ent assigned to nonunit personnel other functions that had formerly been within the Union's exclusive jurisdic- tion (some of which the Respondent had never, as it con- strued its original jurisdictional proposal on 19 April, proposed to change). As to these alterations in the juris- dictional allocation, there is no direct evidence that any employees in the unit suffered any financial loss as a result of the assignment of this work to nonunit employ- ees.90 90 The record indicates that there may have been fewer vacation tech- nicians and temporary technicians hired as a result of this dilution of unit work, but that is not a sufficiently firm basis for remedial relief It appears to be unnecessary to describe in detail the testimony given by the General Counsel's witnesses about the assignment of former exclu- sive NABET work to other employees Aside from the specific changes announced on 27 April and 2 May, the effect of applying to the unit em- ployees on and after 7 June the terms and conditions set out in the em- ployee handbook was to eliminate, without benefit of valid impasse or union waiver, the entire surviving jurisdictional contract clause The extent to,which nonunit employees actually performed former NABET exclusive functions is irrelevant for present purposes STORER COMMUNICATIONS On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed91 ORDER The Respondent, Storer Communications, Inc., Cleve- land, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminating against the National Association of Broadcast Employees and Technicians, AFL-CIO, or any other labor organization, by refusing to allow the labor organization to post minutes of negotiations on bul- letin boards located at Station WJKW-TV when Re- spondent permits unions and employees to routinely post notices of a business and personal nature on such bulletin boards. (b) Coercing employees by indicating to them that the Respondent will deny them the right guaranteed by the Act to have their employer engage in good-faith bargain- ing (c) While engaged in collective-bargaining negotia- tions, insisting on bargaining with the Union, or any other labor organization, about a certain subject or sub- jects while not permitting the labor organization to dis- cuss other relevant subjects until preliminary agreement has been reached on the first subject or subjects. (d) Communicating directly with employees and with- out first consulting the Union, or any other labor organi- zation, regarding terms and conditions of employment which are appropriately the subject of bargaining be- tween an employer and a labor organization (e) Withdrawing a bargaining offer or taking any other retaliatory action against employees for the reason that they engage in a lawful strike (f) Making changes in the terms and conditions of em- ployment of employees represented by the Union, or any other labor organization, without having afforded the labor organization a thorough and complete opportunity to negotiate with Respondent as the exclusive collective- bargaining representative of Respondent's employees with respect to such changes. (g) Threatening to permanently replace unfair labor practice strikers. (h) Making a regressive contract proposal without ap- propriate and legitimate justification for doing so (i) Refusing to be available at reasonable times to engage in collective-bargaining negotiations. (j) Refusing to timely furnish to the Union, or any other labor organization, requested information which is relevant to the performance by the labor organization of its duties as the exclusive collective-bargaining represent- ative of employees. (k) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the ACt. 91 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 1099 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reinstate, honor, and apply the terms and condi- tions of employment relating to the jurisdiction of the union bargaining unit, as set forth and previously applied under Sections 4, "Jurisdiction" and 5, "Remotes" of the collective-bargaining agreement between the Respondent and the Union which expired pursuant to agreement of the parties on 29 April 1983, unless and until such provi- sions are changed in accordance with the law. (b) Reinstate, honor, and apply all provisions of the collective-bargaining agreement which expired pursuant to the agreement of the parties on 29 April 1983 and which are referred to in subparagraphs 10(G)(l)-(10) of the complaint in this proceeding, as amended in writing and at the hearing, unless and until such provisions, are changed in accordance with the law. (c) In the manner described in the remedy section of this decision, make whole with interest all employees in the Union bargaining unit for monetary losses suffered by them as a result of Respondent's failure since on and after 7 June 1983 to comply with the surviving provi- sions of the expired collective-bargaining agreement which provided for payment of benefits, penalties, premi- ums, differentials, and other extra payments to employees in the circumstances set out in the expired collective-bar- gaining agreement. (d) On request by the Union, transfer all technicians in the bargaining unit to the engineering department (or the department of technical services or whatever name the Respondent uses to designate that department at present) under the same terms and conditions of employment which obtained as of 27 April 1983, unless and until Re- spondent is entitled to retransfer the unit employees in accordance with the law. This provision shall not, how- ever, require or permit the unilateral rescission of any improvement in wages, hours, and terms and conditions of employment granted to technicians since the aforesaid date. (e) 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- essary to analyze the amount of backpay due under the terms of this Order (f) Post at its station Cleveland, Ohio, copies of the at- tached notice marked "Appendix "92 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive 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 92 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 " 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (g) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that allegations in the amend- days from the date of this Order what steps the Re- ed complaint not found to constitute violations of the spondent has taken to comply. Act are dismissed.