Storer Communications, Inc. (Wjkw-Tv 8)

.72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Storer Communications, Inc. (WJKW-TV 8) and Local 666, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (AFL-CIO). Cases 8-CA-17677, 8-CA-17711, and 8-CA-17980 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On December 1, 1987, Administrative Law Judge Martin J. Linsky issued the attached deci- sion. The General Counsel and the Respondent' each filed exceptions, and a supporting brief and a brief in response to the other's exceptions. The Charging Party filed limited cross-exceptions and a brief in support, and a statement to the Respond- ent's exceptions. The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 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. Substitute the following for paragraph 2(b) of the recommended Order. I 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 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. a The judge properly considered the reprimands given to David Wil- liams by the Respondent in May and June of 1983 as background in con- junction with the allegations that the Respondent violated Sec. 8(a)(3) of the Act by giving Williams a reprimand and suspending him in February 1984, and discharging him in December 1984. In sec . III,B,5, of his deci- sion the judge inadvertently stated he would require the Respondent to expunge reference to all four incidents from Williams' file. However, as only the February and December 1984 incidents are the subject of timely filed charges and are alleged to violate the Act, we shall modify par. 2(b) of the recommended Order to delete the expunction requirement with re- spect to Williams' 1983 reprimands. "(b) Expunge from its files any reference to the February 1984 reprimand and suspension, and the December 1984 discharge of David Williams and notify him in writing that this has been done and that evidence of his unlawful reprimands, suspen- sion, and discharge will not be used as a basis for future personnel action against him." Rufus L. Warr, Esq., for the General Counsel. F. Wilson Chockley Jr., Nancy A. Noall, and Mark Was- sell, Esgs., of Cleveland, Ohio, for the Respondent. Bernard M. Mamet and Paul T. Berkowitz, Esqs., of Chi- cago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 17 July 1984 the charge in Case 8-CA-17677 was filed, on 30 July 1984 the charge in Case 8-CA-17711 was filed, and on 3 January 1985 the charge in Case 8-CA-17980 was filed. The charge in Case 8-CA-17980 was amended on 19 February 1985. All charges were filed by Local 666, International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada (AFL-CIO) (Charging Party, Union, or IATSE 666), against Storer Communications, Inc. (WJKW-TV 8) (Respondent or TV8). On 13 June 1985 the National Labor Relations Board, by the Regional Director for Region 8, issued a second amended consolidated complaint, which alleges that Re- spondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), when it gave a written reprimand and a 3-day suspension on 27 February 1984 to Union Steward David Williams and when it dis- charged Union Steward David Williams on 18 December 1984. The second amended consolidated complaint also alleges that Respondent violated Section 8(a)(1) and (5) of the Act when it bargained to impasse over a permis- sive subject of collective bargaining, i.e., the scope of the bargaining unit, and further violated Section 8(a)(1) and (5) of the Act when on 10 August 1984 and again on 21 September 1984 it unilaterally implemented changes in the scope of the bargaining unit and in other terms and conditions of employment of its employees. Respondent, in its answer, denied that it violated the Act in any way.' Thereafter, Respondent filed a Motion for Summary Judgment, which was opposed by the General Counsel, who filed its own Motion for Summary Judgment. The entire matter was transferred to the Board. On 8 January 1986 the Board denied the Motions for Summary Judg- ment and remanded the case back to Region 8 for hear- ing on the second amended consolidated complaint. Hearings were held before me in Cleveland, Ohio, on 20-24 October 1986 and on 5-8 January 1987. I A complaint had issued on 31 August 1984 in Case 8-CA-17677. On 28 September 1984 a consolidated complaint in Cases 8-CA-17677 and 8- CA-17711 had issued. On 27 February 1985 an amended consolidated complaint issued in Cases 8-CA-17677, 8-CA-17711, and 8-CA- 17980. 295 NLRB No. 11 STORER COMMUNICATIONS 73 Upon the entire record in this case, to include post- hearing briefs filed by the General Counsel , Respondent, and the Charging Party and reply briefs filed by the General Counsel and Charging Party, and upon my ob- servation of the demeanor of the witnesses , I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, Storer Communications, Inc. (WJKW- TV-8) is, and has been at all times material herein, a cor- poration with an office and place of business in Cleve- land, Ohio, where it is engaged in the operation of a tele- vision broadcasting station, which advertises products sold nationally and subscribes to National Wire Services. Annually, Respondent, in the course and conduct of its business operations described above, derives gross reve- nues in excess of $100,000 and receives wire services valued in excess of $10,000 directly from points outside the State of Ohio. Respondent admits, and I find , that it is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find IATSE 666 is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview This case has two parts to it and could almost be treat- ed as two separate cases. The first part I will address involves the disciplining of Union Steward David Williams and the second part I will address involves the 8(a)(5) allegations that Re- spondent bargained to impasse over a permissive subject of bargaining and was without authority to unilaterally implement the changes it implemented. Respondent employs approximately 190 employees at TV8 in Cleveland. IATSE 666 represents approximately 16 of Respondent's employees. These employees are news cameramen or, as they are sometimes referred to, photo ournalists. David Williams was employed at TV-8 from June 1966 until he was fired on 18 December 1984. He served as a union steward on and off during his 18 years with Respondent and continuously for the 7 years immediate- ly prior to his discharge. IATSE 666 is one of four unions who represent em- ployees at TV8. The other unions are the National Asso- ciation of Broadcast Employees and Technicians (NABET), which represents the engineering staff; the American Federation of Television and Radio Artists (AFTRA), which represents on-air performers ; and an- other IATSE Local (IATSE Radio and Television or IATSE R&T), which represents cameramen engaged in the photographing of commercials and special programs that do not constitute "hard news." On 24 November 1971, the Regional Director for Region 8, certified Local 666 and Local 209 of IATSE as the bargaining representative of: All employees of the employer in the Program De- partment of TV Station WJKW-TV who are en- gaged in film photography and the processing and development of film, including recording of sound- on-film when using equipment designed and built into camera equipment or when recorded at loca- tions other than at WJKW-TV premises using two or less microphones and no auxiliary "mixing" de- vices; excluding all office and clerical employees, professional employees, guards and supervisors, as defined in the National Labor Relations Act, and all other employees. For approximately the next 12 years, the news camera- men and soundmen at TV8 were represented jointly by these two locals. The collective-bargaining agreements that were entered into on behalf of the news cameramen recognized that they were represented by these two enti- ties. By agreement of the two locals, however, Local 666 represented the news cameramen and Local 209 repre- sented the soundmen . The soundmen accompanied the film cameramen into the field and were responsible for the proper recording of the volume of sound. After No- vember 1983, technology in the industry made the posi- tion and duties of the soundmen unnecessary. Video cameras and video recorders taped both the sound and the image. After the conversion to videotape technology, Local 209 filed a disclaimer of interest and Local 666 became the sole representative of the news cameramen at TV8. B. Disciplining of David Williams The second amended consolidated complaint alleges that Respondent violated the Act when in February 1984 it gave a written reprimand to David Williams and sus- pended him for 3 days and Respondent violated the Act in December 1984 when it discharged David Williams. As noted above Williams was the union steward for IATSE 666. Like any other union steward he was charged with the responsibility of contract administration and processing of grievances. While it is alleged that the disciplining of Williams in February and December 1984 was violative of the Act it is necessary to examine all four occasions when Williams was disciplined since Re- spondent had a progressive discipline system and it was the cumulative effect of Williams' alleged misconduct on four occasions which led to his layoff in February 1984 and his discharge in December 1984. And this is so even though two of the four incidents fall outside the 10(b) period. Williams was disciplined on 31 May 1983 for an inci- dent on 28 May 1983 , on 17 June 1983 for an incident on 16 June 1983, 27 February 1984 for an incident on 19 February 1984, and he was fired on 18 December 1984 for an incident that occurred on 17 December 1984. I will discuss each incident separately. 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1. Incident no. 1-28 May 1983 On 3 May 1983 NABET, one of the four unions which represented Respondent's employees, went on strike. NABET represents the engineers who were sometimes referred to as technicians or videotape editors. The collective-bargaining agreement then in effect be- tween Respondent and IATSE 666 provided, in pertinent part, in a clause entitled "Application of Agreement-Ju- risdiction," that "the operation of video recorders and audio mixers on WJKW-TV premises is within the juris- diction of NABET and will be performed by members of that unit." After NABET went on strike Respondent implement- ed certain work rules, one of which provided that "whenever a sound on tape interview is done on prem- ises, our procedure will be exactly the same as it is in the field. The news cameraman will operate both the camera and the tape recorder."2 It is with this backdrop that Williams upon returning to the station from assignment on the afternoon of 28 May 1983 was directed by Producer and statutory Su- pervisor Ray Tomecko to videotape the NABET picket- ers who were picketing outside Respondent's station. The videotaping or "shoot" would take place on Re- spondent's premises. Williams requested from Producer Ray Tomecko that an engineer be provided to carry the tape recorder and assist Williams on the assignment . Under the new work rule Williams could operate both the videotape camera and recorder and carry out the assignment without assist- ance. Tomecko himself assisted Williams on the assign- ment of videotaping or "shooting" the NABET picket- ers. The entire event took approximately 5 minutes. On 31 May 1983 Williams received an official repri- mand in writing from Tony Ballew, then head of the news department, for violating the new work rule. The reprimand provided, in part, that "Should any further violations occur, appropriate disciplinary action will be taken." Williams neither demanded assistance from Tomecko or stated he would not do the job without assistance. There is and was nothing in Respondent's work rules which prohibited an employee from requesting assistance from one of his bosses or supervisors. In the official rep- rimand given to Williams ' and entered in evidence as Re- spondent's Exhibit 4 even Tony Ballew referred to Wil- liams request for assistance from his superior Tomecko as a "request." Indeed, one of Respondent's witnesses, Robert Green, who in May 1983 was chief engineer and at the time of the hearing was director of technical serv- ices, testified it was not wrong for anyone to request as- sistance as Williams had. Tomecko was not reprimanded for assisting Williams or for failing to instruct Williams to handle the assign- ment without assistance pursuant to the new work rule 2 Respondent's motion to strike all references to Judge Bernard Ries' decision in Storer Communications Inc., 8-CA-16852, JD-07-86, in the Charging Party's brief is denied. Judge Ries found the promulgation by Respondent of this work rule and others to be unlawful It is not neces- sary, however, for me to rely on Judge Ries' decision in deciding the issues in this case implemented on 2 May 1983. In fact, at the hearing To- mecko testified he was not particularly familiar with the new work rule and impliedly testified he did not do any- thing wrong. In short, Williams was the only person reprimanded in this incident and he was reprimanded for requesting as- sistance from a superior who provided it. There was no evidence at the hearing that the videotaping of the NABET picketers was done as a news story or for some other purpose. IATSE did not grieve the matter. In his letter of reprimand to Williams, Ballew states that when he (Ballew) spoke with Williams about the matter Williams argued that forcing him (Williams) to do the "shoot" without assistance violated IATSE 666's contract with TV8. 2. Incident no. 2-16 June 1983 Immediately prior to the NABET strike Respondent issued a memo which provided that unless a new con- tract with NABET was agreed to that as of 3 p.m. on 29 April 1983 "any TV-8 employee is free to preview, audi- tion, time or chart ENG/EFP tapes if required to do so." (Emphasis added.) On 2 May 1983 another memo was issued which provided , in pertinent part, that "any of you may now feel free to operate the equipment in the ENG editing areas for the purpose of previewing, timing, auditioning, and charting tape . Please begin doing this as the need arises." (Emphasis added.) On 16 June 1983 at approximately 10:15 or 10:30 p.m. Williams received a phone call at home from John Brod- nic, a member of the NABET unit which had returned from strike but had no contract,3 complaining that news cameraman Mark Borchik was viewing and charting tapes and requesting that Williams speak to him about it. Williams called Borchik in the ready room at the sta- tion-not the previewing room-and told Borchik to "Kindly refrain from editing and previewing until I [Wil- liams] can get a clarification from the union." Williams thought that Borchik had completed what he was doing that night for the 11 o'clock news and claims that he had no intention of interfering with the operation of the sta- tion. In fact, there was no evidence as to what Borchik was working on and whether or not what Williams told him interfered with the operation of the station or not. Respondent's concern was that it could have interfered with station operations. The following day Williams received a second official reprimand in writing for interfering with the operation of the station. The memo from then Station Manager Joseph C. Dimino went on to provide "if I hear of an- other incident in which you attempt to interfere with the operation of the station in anyway, I will suspend you for two weeks without pay. I further informed you that if another incident occurred after you returned from sus- pension, you would be dismissed." At his meeting with Dimino , subsequent to the inci- dent but prior to receipt of the written reprimand, Wil- liams told Dimino that he thought that charting, view- ' Indeed NABET still had no contract with Respondent at the time of the hearing in this case STORER COMMUNICATIONS 75 ing, and editing was the work of NABET and not the work of IATSE 666 members because of IATSE 666's contract with Respondent. Borchik was not disciplined in any way . There was indeed, no evidence that Borchik refused to preview or chart videotape, which he was merely free to do under the 27 April and 2 May 1983 memos referred to above. The memos did not state that a cameraman was required to preview or chart a tape without assistance but merely that they were free to do so. John Brodnic, who had called Williams at home, was not disciplined in any way either. Only Williams was disciplined for this incident. No grievance was filed by the Union over Williams' second reprimand. 3. Incident No. 3-19 February 1984 On Sunday, 19 February 1984, Williams and another news cameraman Ralph Tarsitano were in the ready room at the station where news cameramen await assign- ments. Tarsitano was waiting for an assignment and Wil- liams was getting ready to go home for the night. The phone rang and Tarsitano spoke to someone. He got off the phone and told Williams that he (Tarsitano) had just spoken to Bob Jones, a supervisor, who had told him to cover a Knights of Columbus track meet at the Coliseum and had said he wanted Tarsitano to take a pager with him . Tarsitano commented to Williams that it was ridiculous to make him (Tarsitano) carry a pager since he had a walkie-talkie and could be contacted, if needed, over the walkie-talkie . At this time Bob Jones came into the ready room, gave Tarsitano credentials so he could enter the Coliseum without a ticket, and placed the pager (a small object that weighted about 4 ounces) on the desk. When Jones left he took the pager with him. Apparently Jones overheard Tarsitano telling Wil- liams he did not need to take the pager . There was no conversation between Jones and Williams and Tarsitano said nothing to Jones. A few minutes later Producer Ray Tomecko , the same supervisor involved in incident number 1, above, came into the ready room, further instructed Tarsitano as to what his assignment was at the Coliseum. As Tomecko and Tarsitano were speaking , Williams left and went home. Tarsitano went to cover the track meet without the pager. When Williams returned to work the following Monday he was called into management and charged with refusing to carry a pager. Williams told Grant Zalba, a management official, that no one had refused to carry a pager but went to explain to Zalba that as union steward he felt that the news cameramen already carried too much equipment and should not have to carry a pager as well. Thereafter, Williams was called before Tony Ballew, a higher ranking management official, and had a similar conversation to the one he had with Zalba. Thereafter, on 27 February 1984, Williams was given a third official reprimand from Station Manager David Whitaker and a 3-day suspension without pay. At this time IATSE 666 and Respondent were negotiating for a new collective- bargaining agreement and Williams was a member of the three-person negotiating team for IATSE 666 and had al- ready attended four negotiating sessions. Ralph Tarsitano, the news cameraman who was told to take a pager with him on the assignment and who did not do so, was not disciplined in any way by Respond- ent. Tarsitano, who had worked at the station longer than Williams, is still employed by Respondent. He was not called as a witness by any side in the case. Bob Jones, who is no longer in Respondent's employ, was not called as a witness. Ray Tomecko, who did testify, claimed that he argued with Williams on the night in question and that Williams interfered with the operation of the station by refusing to let Tarsitano carry the pager. Tomecko conceded at the hearing, however, that if Tarsitano had a walkie-talkie he wouldn't need to carry a pager. Evidence at the hearing revealed that Tarsitano at that time was assigned a walkie-talkie. It is inconceivable that if Williams and To- mecko argued that it would not have come out that Tar- sitano had a walkie-talkie. When it came out Tomecko would not have insisted that Tarsitano take the pager as well. I credit Williams over Tomecko. Williams im- pressed me as an honest witness . Following this incident a charge was filed with the Board. 4. Incident No. 4-17 December 1984 On 17 December 1984-after negotiations between Re- spondent and IATSE 666 had broken down and Re- spondent had unilaterally implemented work rules changes vehemently opposed to by IATSE 666-Wil- liams had a conversation at the station with an engineer and a member of NABET named Maurice Sears. Sears asked Williams to come upstairs and to ask a recently hired news cameraman named David Allman to let a NABET engineer show him the videotape he was view- ing. Williams agreed to do so. In the hallway outside the previewing room Williams saw another NABET engineer named Gaylord Mattio. Williams asked Mattio to come with him. Mattio accom- panied Williams to the previewing room where Allman was working. Williams asked Allman if he would mind letting Mattio show him the videotape. Allman said okay. Mattio showed Allman the videotape. The show- ing of the tape took between 2 and 5 minutes. As noted above, a year and a half before this incident Respondent had implemented new work rules directed to all its employees, including news cameramen , which pro- vided, in part, that "any of you may now feel free to op- erate the equipment in the ENG editing area for the pur- poses of previewing tape ." The rule did not state that en- gineers represented by NABET were not allowed to pre- view tape for news cameramen or that news cameramen could not request engineers represented by NABET to preview videotape the news cameramen had shot. Mattio, who was still with the station, testified as a wit- ness for Respondent. He conceded that engineers, now called videotape editors, if requested by news camera- men to show them a tape will do so. When management found out about this latest incident Williams was called into the front office by Station Man- ager David Whitaker, charged with interfering with the 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD operations of the station once again, and fired. Neither Maurice Sears, Gaylord Mattio, or David Allman were disciplined in any way. A charge was filed with the Board over this incident. 5. Discussion of David Williams' case Williams was disciplined on four occasions and fired. I conclude that this was done because of his status as a union steward for IATSE 666 and was, therefore, illegal. I will order Respondent to cease and desist from this or similar misconduct, reinstate Williams, make him whole, and expunge the records of all four incidents from his personnel file. Williams was singled out for discipline for no discerni- ble reason other than Respondent 's desire to "get him" because of his union position . I reach this conclusion based on a number of reasons. Williams was one of only several employees of Re spondent who picketed Respondent's Christmas party in 1983 and he was the only employee who both picketed Respondent's Christmas party and showed up at the Christmas Party as a guest later on in the evening. In Incident No. 1, Williams merely requested assist- ance from his superior on a videotape assignment, which took all of 5 minutes. Williams was disciplined but the superior-Producer Ray Tomecko-who granted Wil- liams' request (not a demand as shown by the fact that Williams' reprimand even uses the word request and not demand) was not disciplined in any way. No one should have been disciplined because no one did anything wrong. In Incident No. 2, Williams was disciplined for telling Mark Borchik not to preview or chart videotape until Williams checked with the Union and Williams spoke with Borchik after John Brodnic asked him to and yet only Williams was disciplined . At the hearing Respond- ent did not even know if Williams ' actions interfered with production or not. If he did interfere with produc- tion it is incredible that Williams was disciplined and not Borchik and Brodnic. If it did not interfere with produc- tion but only had that potential it is incredible that Brod- nic was not disciplined . The only explanation is that Re- spondent was out to get Williams. In Incident No. 3, Williams was disciplined for sup- posedly urging another news cameraman, Ralph Tarsi- tano, not to take a pager on an assignment. I credit Wil- liams over Respondent's witness (Ray Tomecko) that Williams did not refuse to take a pager or urge Tarsitano not to take the pager. In fact, Tarsitano telling Williams that he (Tarsitano) did not want to carry a pager consti- tuted protected concerted activity. An employee, Tarsi- tano, was telling his union steward, David Williams, that it was crazy for him to carry a pager when he already had a walkie-talkie. All sides in the case agree that Tarsi- tano did not take the pager and yet only Williams and not Tarsitano is disciplined. Why? In Incident No. 4, Williams asked news cameraman David Allman to let Engineer Gaylord Mattio preview Allman's videotape and Williams does so at the request of engineer Maurice Sears. The work rule in effect at the time, by its language, permitted but did not require news cameramen to preview tape. The rule did not prohibit them from asking for assistance. But, in any event, even if the rule was violated, only Williams is disciplined and not Sears, Mattio, or Allman. Allman was a new employ- ee-on the job only 7 days-and therefore, it might make sense to treat him differently from Williams, Sears, and Mattio but it would not make any sense to treat Wil- liams different from Sears and Mattio. Why was Wil- liams singled out? Respondent can claim that this was the latest of several incidents involving Williams and just the first incident for the others but no discipline was taken against the others of any kind and Williams was disciplined each and every time he allegedly interfered with station operations. Williams was disciplined for his first infraction back in May 1983; why were not these others treated similarly? Part of the answer as to why Williams was singled out for disparate treatment comes from the fact that the Union for which he had been the steward for many years was either about to engage in tough negotiations with Respondent or was in the process of hard bargain- ing where Respondent was proposing and eventually uni- laterally implementing drastic changes in the working conditions of the members of IATSE 666. Another part of the answer as to why Williams was singled out is dis- cernible when one hears and reads the testimony of Robert Kasarda. Kasarda was still working for Respond- ent when he testified at the hearing. He had been in Re- spondent's employ for 23 years when he testified. He is a member of IATSE R&T, one of the four unions repre- senting Respondent's employees. He also carries a card for IATSE 666. He was a member of the IATSE R&T negotiating team. During a negotiating session on ap- proximately 3 May 1983 between Respondent and IATSE R&T, Joseph C. Dimino, who headed up Re- spondent's negotiating team, said that he (Dimino) was "going to get" David Williams. Dimino was then station manager for TV8 and the person in management who signed Williams' second letter of reprimand, dated 17 June 1983, which warned Williams that another incident would result in suspension without pay and one after that would result in dismissal. When Kasarda was pressed at the hearing by counsel for Respondent that he might be confusing Dimino's comments as being directed at IATSE 666 and the issue of concessions and not at David Williams personally, i.e., we will get the same concessions from IATSE 666 that we want from IATSE R&T and not we will get David Williams personally, Kasarda replied" it certainly ap- peared to me, at that time, that David was single-was a target for himself. His name was mentioned , which- that's what struck me funny about him being sought out, being a representative at that time for the union." When asked if Dimino said he would fire, suspend, or discipline Williams, Kasarda replied "No sir. There were some ad- jectives that were used, and I can't recall them. They weren't complimentary, but the words I do remember as bring indelible [sic] is, that I will get him." (Emphasis added.) Shortly thereafter Kasarda told Williams what Dimino had said. Dimino, who at the time of the hearing STORER COMMUNICATIONS 77 had been promoted and transferred to Storer Communi- cations, Inc. in Miami, Florida, did not testify.4 It takes a lot of courage for an employee to testify against his employer's interests, as Kasarda did. I credit his testimony. His demeanor was such that there is no question in my mind that his testimony was accurate and truthful. His motive to fabricate in favor of his employer was much stronger than any motive he may have had to fabricate in favor of an employee fired more then 2 years before he (Kasarda) testified before me. When I add up all of the above I must conclude and do conclude that David Williams was reprimanded, sus- pended, and discharged in violation of Section 8(a)(1) and (3) of the Act and I do not see how any rational factfinder could conclude otherwise . In short, Incident No. 1 (request for assistance on a "shoot" of NABET picketers) was a nonevent. See Stop N'Go, Inc., 279 NLRB 344 ( 1986). Williams received disparate treatment in Incidents 2, 3, and 4-assuming, arguendo, he did any- thing improper in Incident No. 3 (the pager incident). With regards to Incidents 2 and 4, both of which in- volved cameramen viewing videotape , Williams was dis- ciplined and no one else. One distinction between Wil- liams and the others was that only Williams was a union official. Looking at all four incidents we see that only Williams was a union official and the other persons in- volved, Tomecko, Brodnic, Borchik, Tarsitano, Sears, Mattio, and Allman were not union officials . Such dis- parate treatment is violative of the Act. See Del Rey Tor- tilleri, Inc., 272 NLRB 1106 (1984). When Williams met with management officials he referred to his Union's contract with Respondent . You can not discipline a stew- ard for talking about contract interpretation with man- agement. See, e.g., Metroplitan Edison Co. v. NLRB, 460 U.S. 693, 703 (1983). C. The 8(a)(5) Allegations Respondent and IATSE 666 were parties to a collec- tive-bargaining agreement that ran by its terms from 11 December 1980 to 10 December 1983. The agreement contained a recognition clause which provided as fol- lows: Union Recognition A. The Employer recognizes the Union as the ex- clusive representative for collective bargaining in all matters pertaining to wages, hours of employment and other conditions of employment for all Employ- ees as herein defined. B. The Union represents and warrants that it is the representative of a majority of such Employees at the television station herein mentioned , for the purposes of collective bargaining in respect to rates News Director Virgil Dominic, a conciliatory type of person , tried to put a "happy face" on the situation. He testified in surrebuttal for Re- spondent that he was present at the negotiating sessions in question and that Dimino said he would get the same concessions from David's union, IATSE 666, that it wanted from IATSE R&T and Dimino did not say he would get Williams personally . I credit Kasarda's version of what Dimino said over Dominic's version. of pay, hours and conditions of employment. [Em- phasis added.] The employees IATSE 666 represents are defined in a clause entitled "Application of Agreement-Jurisdic- tion." This clause, which is quite lengthtly, provided as follows: 2. Application of Agreement-Jurisdiction A. This agreement shall be applicable to a bar- gaining unit comprised of all employees of TV Sta- tion WJKW-TV who are engaged in the operation of portable electronic cameras and associated video tape equipment, film cameras and processing, still photography and processing of same, including re- cording of sound on film when using equipment de- signed and built into camera equipment, using two or less microphones and no auxiliary "mixing" de- vices. The portable electronic cameras and associat- ed video tape equipment only shall be in conjunc- tion with hard news assignments and documentaries. By further definition, hard news consists of any pro- gram material that appears in a newscast . Excluded are all office and clerical employees , professional employees, guards and supervisors , as defined in the National Labor Relations Act, and all other em- ployees. B. Employees shall perform work of the nature described in Section A above, for all station pro- grams produced exclusively by and for WJKW-TV with the following exceptions: 1. Others may do this work in the following areas: a. Within a radius of 35 miles from the state cap- itol building in Columbus, Ohio. b. Within Lucas County, Ohio. c. Outside the State of Ohio. 2. Others may also perform such work in case of: a. Unscheduled news events where time does not allow the assignment of employees. b. Programs produced jointly with other stations on a special event, public service, or network basis. c. Where "house" jurisdiction belongs to another bargaining agent certified by the National Labor Relations Board-in which event the employer may use necessary members of the house unit. d. Employees of the employer who are not mem- bers of the bargaining unit may photograph art- work and prepare slide during such hours as a member of the bargaining unit is employed on the premises. 3. The operation of video recorders and audio mixers on WJKW-TV premises is within the juris- diction of NABET, and will be performed by mem- bers of that unit. C. Employees shall not be required to perform any work inconsistent with Paragraph A, above. Nothing in this section shall be construed to limit 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Company's right to lease or purchase programs from network or independent producers. D. The Company may at its discretion assign members of the unit to perform the work in areas excluded by this jurisdiction. It is apparent that the "Application of Agreement-Ju- risdiction" clause set out above not only defines who the employees are who IATSE 666 represents but also de- scribes their work assignments. Negotiations for a new contract to succeed the one due to expire on 10 December 1983 commenced on 10 November 1983. The only change IATSE 666 was seek- ing was to obtain higher wages . Respondent had a great number of changes it wanted to implement. Negotiating sessions took place on 10 November 1983, 10 January 1984, 11 January 1984, 12 January 1984, 8 February 1984, 22 February 1984, 19 March 1984, and 7 June 1984. At the eighth negotiating session and after impasse had been reached on radical changes Respondent was proposing to the clause set out above entitled "Applica- tion of Agreement-Jurisdiction," Respondent presented its final offer and announced that if it was not accepted by IATSE 666 that Respondent would start making uni- lateral changes encompassed within its last offer to IATSE 666. On 16 July 1984 Respondent wrote to the Union and advised that it intended to terminate the contract, which had been kept in effect beyond its scheduled 10 Decem- ber 1983 termination date, on 19 July 1984. On 19 July 1984 Respondent terminated the contract and announced that it would implement certain changes on 10 August 1984. Respondent did implement changes on 10 August 1984 and more changes on 21 September 1984. In June 1985 Respondent and IATSE 666 resumed ne- gotiations and, on 25 April 1986, signed a new collec- tive-bargaining agreement effective 1 January 1986 with an expiration date of 31 December 1988. The new agree- ment contained virtually all the changes implemented by Respondent on 10 August 1984 and 21 September 1984 and also included a wage increase for all cameramen. The General Counsel and Charging Party argue that Respondent violated the Act because it bargained to im- passe over a permissive rather than a mandatory subject of collective bargaining . They argue that the proposed changes to the clause entitled "Application of Agree- ment-Jurisdiction" to which the parties bargained to impasse changed the scope of the bargaining unit and it is illegal to bargain to impasse over such a permissive subject. They rely principally on the Board's decisions in Newspaper Printing Corp., 250 NLRB 1144 (1980), and The Idaho Statesman , 281 NLRB 272 (1986). Respondent argues that the parties bargained to im- passe over a number of subjects (many of which are ob- viously mandatory) to include changes to the clause enti- tled "Application of Agreement-Jurisdiction." Re- spondent argues further that the changes proposed under that clause did not change the scope of the bargaining unit but included changes in the exclusive work jurisdic- tion of IATSE 666 and went to work assignment (a man- datory subject of bargaining) and not to the scope of the bargaining unit (a permissive subject of bargaining). The law is clear that a party is permitted to bargain to im- passe over a mandatory subject of bargaining but is not permitted to bargain to impasse over a permissive subject of bargaining. Respondent relies principally on the deci- sion of the Board in Western Publishing Co., 269 NLRB 355 (1984), and the Sixth Circuit Court of Appeals deci- sion in Newspaper Printing Corp. v. NLRB, 692 F.2d 615 (6th Cir. 1982), where the Sixth Circuit reversed the Board's decision in Newspaper Printing Corp., supra, which is one of the cases the General Counsel and Charging Party rely on.5 I agree with Respondent . I believe the changes pro- posed by Respondent concern themselves with work ju- risdiction and work assignments and do not involve a change in the scope of the bargaining unit. The changes do not involve who IATSE 666 represents but rather what these employees do. Under the proposed changes IATSE 666 continues to represent the news cameramen (now called photo-journalists)6 but their exclusive work jurisdiction has been limited and some of their work can be done by others. Essentially, other employees of Re- spondent can do the work formerly done exclusively by the employees represented by IATSE 666. For all practi- cal purposes this is the same as subcontracting and sub- contracting is considered a mandatory subject of collec- tive bargaining and not a change in the scope of the unit and therefore merely a permissive subject of bargaining. See, Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). The changes proposed and ultimately implemented on 10 August 1984 by Respondent following impasse were as follows: 1. Operation of film cameras and processing, still photography and processing of same, including re- cording of sound on film when using equipment de- signed and built into camera equipment is removed from the exclusive jurisdiction of IATSE 666. 2. IATSE 666 exclusive geographical jurisdiction is limited to Lake, Geauga, Cuyahoga , Medina, Lorain, Summit and Portage counties. Others may do IATSE 666 work outside the above areas. 3. Respondent, at its discretion, may assign mem- bers of the IATSE R&T unit to work in all areas of 666 jurisdiction. 4. Respondent shall have the right to use any IATSE material photographed by any IATSE member in any program originating from WJKW- TV. 6 Even though TV8 is located in Cleveland , Ohio, which is covered by the Sixth Circuit, if this case goes to the Court of Appeals it may or may not go to the Sixth Circuit . See, Aran Industries, 285 NLRB 753 (1987). 1, of course, am bound by Board law as modified by the Supreme Court but not as modified by any particular court of appeals 6 In the current collective -bargaining agreement between Respondent and IATSE 666 which is effective from 1 January 1986 through 31 De- cember 1988, and which was agreed to subsequent to the issuance of the second amended consolidated complaint but prior to the hearing, the news cameraman title was changed to photojournalist STORER COMMUNICATIONS There was no change in the classification of employees represented by IATSE 666. All cameramen who were employed in the operation of portable electronic cameras and associated videotape equipment in filming hard news and documentaries continued to be represented by IATSE 666. Again, the changes do not address the subject of the scope of the bargaining unit (who is represented) but rather the work assignments and exclusive work jurisdic- tion of the employees represented by IATSE 666 (i.e., what they do). The first three changes remove the film- ing of hard news in a specific geographic area from the exclusive jurisdiction of IATSE 666, thus permitting Re- spondent to assign such work to other employees or to a subcontractor. The fourth change makes clear Respond- ent's right to use the work product by any IATSE member in any program broadcast at TV8, not just hard news programs. All cameramen formerly represented by IATSE 666 continue to be represented by IATSE 666. The changes unilaterally implemented by Respondent with respect to IATSE 666's jurisdiction had two effects. The first is that Respondent changed what work assign- ments could be performed only by IATSE 666 members. The second effect is to make clear Respondent's right to use IATSE 666 members to perform work that formally fell within another union's exclusive work jurisdiction. An agreement had previously been reached between IATSE R&T and Respondent which permits IATSE 666 members to do work which formerly could be assigned only to members of IATSE R&T. Respondent's motivation in seeking the work jurisdic- tion changes it sought was to obtain interchangeability of cameramen regardless of their union affiliation. Respond- ent was looking for flexibility and IATSE 666, not un- reasonably, opposed this. The merits of the proposed changes are not before me merely the legality of bargain- ing to impasse over them and since the proposals in- volved exclusive work jurisdiction and work assignments it was legal for Respondent to bargain to impasse over them. Respondent was also looking for interchangeability of product and wanted to be able to use material shot by IATSE R&T on the news and material shot by IATSE 666 on special programs such as PM Magazine . Again, not unreasonably, IATSE 666 was opposed to this. It does not take a genius to know that the opportunities for overtime and, therefore, greater compensation, would in- crease if Respondent had to use IATSE 666 members on a particular assignment rather then use videotape previ- ously shot by an IATSE R&T cameraman. Respondent, on 21 September 1984, implemented fur- ther changes. They included: 1. Promulgating a provision allowing an individ- ual outside the bargaining unit to perform work in all areas within the jurisdiction of the Union;7 T This would be the position of chief photographer, who would be a supervisor and do bargaining unit work . Respondent had not as of the time of the hearing actually implemented this change 79 2. Reducing the minimum number of assigned overtime hours of work performed on the second regularly scheduled day off if an employee works on both of his regularly scheduled days off; 3. Eliminating the ten percent above regular hourly rate for non-overtime work performed be- tween 12 :00 midnight and 6:00 a.m.; 4. Changing the date of determining employees' vacation eligibility; 5. Eliminating the provision for liquidation of va- cation days, substituting a provision for the liquida- tion of holidays; 6. Eliminating the provision for increase of vaca- tion benefits to employees in the bargaining unit if said benefits are increased to employees outside the bargaining unit; 7. Changing a provision concerning retention of seniority by bargaining unit employees on assign- ment to duty outside the bargaining unit; 8. Imposing a provision permitting it to hire one or more temporary photographic employees for any reason while eliminating the ten percent above highest current wage scale required to be paid to such temporary employees; 9. Imposing a provision permitting it to suspend or discharge an employee for "unsuitability," re- moving such actions from the purview of the griev- ance arbitration provisions of the collective bargain- ing agreement, and precluding Union investigation of such actions; 10. Eliminating the position of crew chief; and 11. Eliminating the $60 .00 per day aerial photog- raphy pay. As the Board stated in Western Publishing Co., supra at 355. It is well settled that, after bargaining to an impasse, an employer does not violate Section 8(a)(5) of the Act by making unilateral changes, as long as the changes are reasonably encompassed by the em- ployer's pre-impasse proposals . Furthermore, after an impasse has been reached on one or more sub- jects of bargaining, an employer may implement any of its pre-impasse proposals , even if no impasse has occurred as to those particular proposals which are put into effect. The proposals unilaterally implemented on 10 August and 21 September 1984 were all consistent with Re- spondent's preimpasse proposals. The instant case is unlike that of Bozzuto 's, Inc., 277 NLRB 977 (1985), where Respondent changed the scope of the unit by removing from it all part-timers who worked less than 32 hours per week. Likewise, in News- paper Printing Corp., 232 NLRB 291 (1977), enfd. 625 F.2d 956 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981), the employer violated the Act by bargaining to impasse over a change that gave it complete authority over who would be in the unit as distinquished from what those in the unit did. 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD My analysis of the particulars of this case suggest that it is more in line with the Board's 1984 decision in West- ern Publishing, supra, than it is with the Board's 1980 de- cision in Newspaper Printing Corp., supra. Since the Re- spondent did not bargain to impasse over the scope of the bargaining unit (a permissive subject) but rather over an exclusive work jurisdiction clause and over work as- signments for the employees represented by IATSE 666 Respondent did not violate Section 8(a)(1) and (5) when it unilaterally implemented the changes it implemented in August and September 1984. In resolving this 8(a)(5) issue it is really unnecessary to decide whether the par- ties had bargained to impasse over subjects other than the "Application of Agreement-Jurisdiction" clause be- cause the parties agree they bargained to impasse over this clause and because I conclude that the changes pro- posed to that clause involved mandatory subjects of bar- gaining. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. When Respondent gave a written reprimand and suspended David Williams for 3 days on 27 February 1984 and when Respondent discharged David Williams on 18 December 1984 and when Respondent relied on previous disciplining of David Williams in May and June 1983 because Williams was a union steward and had en- gaged in protected concerted activity Respondent violat- ed Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act in any other way. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed8 ORDER The Respondent, Storer Communications, Inc. (WJKW-TV-8), Cleveland, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Reprimanding, suspending, or discharging employ- ees because they are union stewards and engage in pro- tected concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recall and make whole David Williams for any loss of pay and other benefits suffered by him commenc- 8 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 ing on 18 December 1984. Backpay to be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).9 (See generally Isis Plumbing Co., 138 NLRB 716 (1962)). (b) Expunge from its files any reference to the repri- mands, suspension , and discharge of David Williams and notify him in writing that this has been done and that evidence of his unlawful reprimands, suspension, and dis- charge will not be used as a basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Cleveland, Ohio, copies of the attached notice marked "Appendix." t 0 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I t 9 Under New Horizons, interest is 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 accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 10 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." 11 The General Counsel's request for a visitatonal clause is denied. See Crown Zellerbach Corp., 284 NLRB 111 (1987) Respondent's application for attorneys' fees for preparing an opposition to the visitatorial clause is also denied. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice STORER COMMUNICATIONS To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT reprimand, suspend, or discharge em- ployees because they are union stewards and have en- gaged in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them under Section 7 of the Act. 81 WE WILL recall David Williams immediately and make him whole for any loss of pay and benefits he suffered with interest from 18 December 1984. WE WILL expunge from our files any references to the reprimands, suspension, and discharge of David Williams and notify him in writing that this has been done and that evidence of his unlawful reprimands, suspension, and discharge will not be used as a basis for future personnel action against him. STORER COMMUNICATIONS , INC. (WJKW- TV 8)