National Broadcasting Co.

NATIONAL BROADCASTING CO. National Broadcasting Co., Inc. and Cleveland Local, American Federation of Television and Radio Artists, AFL-CIO. Case 18-CA-13091 September 16, 1980 DECISION AND ORDER On June 6, 1980, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's ex- ceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, National Broadcasting Co., Inc., Cleveland, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. Respondent contends, inter alia, that the Administrative Law Judge erred in not finding that it had engaged in "package bargaining," stating that, as in Triangle PWC, Inc., a Subsidiary of Triangle Industries Inc., 231 NLRB 492 (1977), the Union herein consciously relinquished its demand for certain contract terms in order to pursue others. Accordingly, Re- spondent argues that the Union had waived its right to bargain over the RCA Income Savings Plan. We do not agree. In Triangle, the employer repeatedly stated that "all benefit level adjustments would have to come from the total amount of moneys under consideration in bargaining," ex- plaining that any increase in benefit of any kind would have to come out of the same "pie." When the union chose not to pursue negotiations con- cerning pension benefit levels in favor of pursuing other contract terms, the Board found that the union had waived its right to bargain over pen- sion benefit levels. In contrast with the foregoing, in the instant case Re- spondent merely announced at the commencement of negotiations that it "intended to comply with the presidential voluntary guidelines." There is no record evidence that Respondent ever indicated that any improvement in benefit levels would have to come from the same "pie" (here the 7- percent voluntary wage-price guidelines), or that any item other than wages would be restricted by its intention to follow the guidelines. Fur- ther, Respondent's "intention" was in fact followed only to the extent that the agreed-upon contract provided for a 7-percent across-the-board wage increase in each year of the agreement. In addition to this 7-percent increase, the contract provided other substantial economic improvements. Under these circumstances, we find Respondent's reliance on Triangle to be misplaced. 252 NLRB No. 33 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Cleve- land Local, American Federation of Television and Radio Artists, AFL-CIO, the duly desig- nated representative of our employees in the appropriate unit described below, concerning the participation of said unit employees in the RCA Income Savings Plan. The appropriate unit is: All staff performers, including staff an- nouncers, staff newspersons, staff singers, and staff actors employed by the Company at the WKYC television station. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL, upon request, bargain with said Union with respect to participation by the above unit employees in the RCA Income Savings Plan, and, if an understanding is reached, embody such understanding in a signed agreement. NATIONAL BROADCASTING CO., INC. DECISION FRANK H. ITKIN, Administrative Law Judge: The unfair labor practice charge in this case was filed on August 15 and the complaint was issued on September 28, 1979. The case was heard in Cleveland, Ohio, on March 12 and 13, 1980. The principal issue raised here is whether Respondent NBC violated Section 8(aX)(5) and (1) of the National Labor Relations Act by refusing to bargain during the term of its contract with Charging Party AFTRA with respect to a benefit plan known as the RCA Income Savings Plan. Respondent NBC argues that Charging Party AFTRA, during the negotiations culminating in the present agreement, waived this bar- gaining right. Upon the entire record, including my ob- servation of the witnesses, and after due consideration of the briefs of counsel, I make the following: FINDINGS OF FACT Charging Party Union AFTRA is admittedly a labor organization as alleged. Respondent NBC is admittedly an employer as alleged. The current contract between the parties is effective from November 15, 1981 (Jt. Exh. 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1).1 The parties held some eight or nine bargaining ses- sions during October and November 1978, culminating in the above agreement. The chief negotiator for AFTRA was Kenneth Bichl. The chief negotiator for NBC was Irving Brand. Their testimony concerning these negotia- tions and related evidence of record is summarized below. A. October 24, 1978, Session AFTRA negotiator Bichl testified that at the first bar- gaining session between the parties on October 24, 1978, "we presented the Company with our listing of contract proposals, sort of quickly running down through the pro- posals, and responding to any immediate questions on them." There were some 30 "proposals AFTRA was making to NBC" and the meeting lasted "about an hour and a half." Bichl noted that the so-called RCA Income Savings Plan was not listed as an AFTRA proposal or discussed at this session. Bichl further noted that AFTRA's "Proposal No. 22," which was listed at this meeting, "was a basic . . . very brief, proposal for a stock purchase or a stock option plan." (See G.C. Exh. 10.)2 B. November 1, 1978, Session Bichl recalled that at the second session on November 1, 1978, NBC negotiator Brand responded to his "Pro- posal No. 22," as follows: [The] proposal [was] for a stock purchase or stock option plan. NBC had no stock, being a subsidiary of RCA, and that there was no stock purchase plan .... [T]here had been some thought or some ef- forts in the past to come up with a stock option plan, but it would be costly and it would be in- volved .... Bichl replied "that this was a general proposal; we [AFTRA] were interested in some method of our mem- bers saving money, sheltering parts of their income, being able to invest something that would allow them to save their money in face of the constantly rising living costs." Bichl further testified: To the best of my recollection of that meeting, there was reference to the fact that in the New York area there was a local credit union, also there was an income savings plan or an income plan of some kind or another that was not open to orga- nized or represented people. The contract provides that "this agreement applies to all staff per- formers, including staff announcers, staff newspersons, staff singers, and staff actors employed by the Company at the station .... " (It. Exh. 1). I find and conclude that the above employees constitute an appropriate unit for collective-bargaining purposes, as alleged in the complaint. 2 G.C. Exh. 10 provides under item 22: "Add new wording establish- ing participation of Artists in stock purchase plan." Also see G.C. Exh. 6. Bichl claimed that "approximately a minute and a half" was "devoted" to discussing AFTRA's "Proposal No. 22" on that day.3 NBC negotiator Brand testified that the so-called RCA Income Savings Plan became effective on or about April 1, 1977. Brand generally explained this plan (see G.C. Exh. 2), noting: It's intended as a form of deferred pension in the sense that the money that is contributed in by the Company is not taxed immediately, and the employ- ee cannot take out all the money any time he wants to. Brand acknowledged that: Currently, the participants in the RCA Income Sav- ings Plan are . . . non-represented employees, as well as NABET represented employees. Brand further explained that the plan in fact "permits employees who are represented for purposes of collec- tive bargaining [to] become members of the Plan if in fact their representatives are able to negotiate the Plan into their collective-bargaining agreement." (See G.C. Exh. 2, pp. 4 and 14. Also see Resp. Exhs. 5, 6, and 7, distributions of the Employer publicizing the plan to em- ployees.) Brand, referring to the Union's "Demand No. 22," re- called that at the November I bargaining session, I said that since . . . there was no stock . . . there was no stock purchase plan available at NBC . . . it was therefore not foreseeable or feasible that NBC was going to provide a stock purchase plan as a result of this negotiation. Brand further recalled: He [Union Representative Hrehocik] remarked in a questioning tone, there is no stock purchase plan available or stock plan available. I said, if you are referring to the RCA Income Sav- ings Plan, and went on to mention some aspects of the Plan. * * * * Specifically, I recall mentioning that the Company contributes 4 percent of salary to participants [of the] Plan in either 3 ways, RCA stock, the common fund or fixed income fund, and I also believe that I mentioned to them that . . . perhaps this contribu- tion for RCA stock . . . makes this a stock pur- chase plan in their mind. a On cross-examination Bichl recalled that Brand had stated at this ses- sion: [T]here was an income plan or an income savings plan that was not available-or it was available to unrepresented employees. Bichl acknowledged that at no time during the 1978 negotiations did he ask Respondent to furnish him with a copy of this plan. 188 NATIONAL BROADCASTING CO. Brand added: This is what got me to introduce that particular subject at that time. I also said that the Plan is only available to non-represented employees, but that while other represented groups or unions have sought to get the Plan, that NBC has steadfastly re- fused to yield and to give the Plan through collec- tive bargaining. 4 Brand also testified: Q. Did you at that time during the discussions that you just described for us go into any more detail than you have given us today in your descrip- tion of what transpired with regard to the RCA Income Savings Plan? A. My recollection standing unrefreshed, I can't recall what, if more, I said. It's possible. I don't recall what else I did say, if anything. Q. If you didn't say anything more, would you tell us why not? A. I wasn't asked to--I wasn't asked to respond to any kind of questions on that particular subject. My own individual pattern as a negotiator is not to be a lexicon of all terms and relevant conditions of a particular plan if the other side doesn't ask me for it. I was there to discuss whatever they had in mind and to answer whatever questions they had. I felt I had made a response with regard to-particularly with regard to the Income Savings Plan in stating the Company's position that it was pretty firm in terms of not wanting to give it away during the course of negotiations, and there was nothing more that I felt that I had to add on that particular sub- ject without being asked to provide more informa- tion from the other side, in which case I would have been more than happy to do so. Q. Were you asked to supply more information by the other side? A. Never on that. Never on the RCA Income Savings Plan, no.5 C. November 2, 1978, Session Bichl recalled that at the third session on November 2, 1978: Mr. Brand asked what it was that we were looking for .... I represented that we are interested in some method of saving money for the members. Mr. Brand asked that we look further ourselves within our own unit to see what it was that we were trying to come up with. Mr. Brand also said According to Brand, "it was a means of trying to give" the nonre- presented employees "something extra to make up for what had hap- pened over the last few years." Cf. O.C. Exh. 12. the Company's bargaining notes for the October- November 1978 sessions. Brand was asked on cross-examination "wheth- er within the notes relating to item 22 there is any detail or degree of expansion as you have testified that you explained to the Union bargain- ing team on 11-1-78?" Brand answered: "The degree I testified is beyond the degree of my notes." Brand explained that his notes "do not contain everything that was said .... that the Company would continue to look and see what if anything they would come up with. Bichl generally acknowledged that the so-called "RCA Income Savings Plan" was in fact "discussed at the No- vember 2 meeting." He explained: "Very, very briefly. Only a mention again, just to repeat that there was no stock purchase plan, that there is this income plan that is available only to unrepresented employees." D. November 3 and 9, 1978, Sessions The fourth bargaining session was on November 3, 1978. Bichl claimed that nothing was "discussed on No- vember 3 concerning AFTRA's No. 22 proposal." The fifth and sixth bargaining sessions were held on Novem- ber 9, 1978. Bichl recalled that during the "morning ses- sion" on November 9: The Company . . . was urging AFTRA to delete proposals, make changes in proposals, drop propos- als, so that we could move on in the negotiations of the contract. There was a repeat, as far as we ran down through some of these proposals, that on our Proposal No. 22, as the Company had said, there was no deferred compensation probable or possible; there was no stock purchase or option plan; and that, as they had mentioned, there was the RCA Income Savings Plan that was available to unrepre- sented employees .... So, why didn't we just decide what we wanted to do, drop that and move on to other means where we could come to a point of agreement on the contract." Later that day, as Bichl further testified, the AFTRA bargaining committee held a caucus. Bichl apprised his committee "that there seemed to be nowhere to go with this particular proposal [No. 22]; that there seemed to be no avenue as far as the purchase of stock or a stock option plan was concerned"; "there seemed to be noth- ing in the way of [a] deferred compensation savings plan"; and "there seemed to be nothing in the way of the savings plan that we had heard about, the income sav- ings plan, that it was not open to us." The union com- mittee then decided, in caucus, to withdraw that propos- al and "move on to other areas in the hope that we could bring from the Company more agreement on open areas of the proposals." This decision-to withdraw No. 22-was then communicated to Brand. E. November 13, 14, and 15, 1978, Sessions, and Contract Ratification Bichl testified that "AFTRA Proposal No. 22" was not discussed during the seventh, eighth, and ninth bar- gaining sessions on November 13, 14, and 15, 1978, re- spectively. On November 16, 1978, the unit employees approved and ratified a tentative agreement reached by the parties' negotiators. And, during June 1979, the Union's executive board approved the agreement. I Bichl elsewhere testified that the words "RCA Income Savings Plan." as such, were not used specifically "to describe the Plan" when it was mentioned by the Employer's representatives. 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Union Requests Bargaining Over the RCA Income Savings Plan Bichl next testified that during March 1979: I was talking with our steward in the news de- partment, Mr. Hrehogik, who advised me that he had been told that NABET, the engineers, union at the station, was in contract negotiations or would be in contract negotiations with NBC at that time for an extension to their contract agreement, and one part of the negotiations dealt with an RCA Income Savings Plan. I asked him [Hrehocik] what that was, and Mr. Hrehocik obtained for me the information ... booklet that outlined the Plan .... That was my first knowledge of this RCA Income Savings Plan as such. See G.C. Exh. 2, a copy of the booklet provided to Bichl. 7 Thereafter, by letter dated April 5, 1979 (G.C. Exh. 3), Bichl wrote Respondent: During the contract negotiations of last fall, AFTRA had a proposal that its members at WKYC-TV be allowed to participate in a savings plan, a deferred compensation plan or a stock pur- chase plan. We were told that there was nothing available. Now we understand that NABET mem- bers are to be admitted to the RCA Income Savings Plan after an NLRB process. We were misled by the Company. Our contract has not been concluded and we have a dispute over the payment of fees. We wish to meet immediately with the Company to negotiate these matters. Brand replied by letter dated April 10, 1979 (G.C. Exh. 4), disputing Bichl's assertions and concluding: "Accord- ingly, we reject your demand for immediate negotiations over the Plan." Also see G.C. Exh. 5, Bichl's letter to Brand dated May 4, 1979.8 The testimony summarized above is essentially uncon- tradicted and undisputed. Insofar as the testimony of Union Representatives Bichl and Hrehocik differs with the testimony of Company Representative Brand con- cerning what was said at the October-November 1978 bargaining sessions with respect to the Union's proposed item 22 and the Employer's so-called RCA Income Sav- ings Plan, I am persuaded on this record that Brand's recollection, as quoted above, is more reliable and accu- 7 Michael Hrehocik, the Union's steward, attended all the 1978 bar- gaining sessions. He testified that he "first" received a copy of G.C. Exh. 2 about March 1979. 'At the hearing, counsel for the General Counsel stated: The case involves a refusal by the Respondent to bargain mid-term in the present contract over the RCA Income Savings Plan .... the issue was one of waiver; and our position is that in fact the Union had not waived any of its rights at any time to demand bar- gaining over the RCA Income Savings Plan .... [l]t is not the General Counsel's theory . . . that this case involves . . . bad faith bargaining or misleading during bargaining negotiations during 1978 rate. Brand-in referring to the Employer's Plan and making clear to the union representatives that the Plan was not available- was extremely careful, I believe, in how he presented this information to the Union at the bargaining table. I find here that Brand's recollection of what specific words were in fact used by him during the bargaining sessions is more accurate than the general rec- ollections of both Bichl and Hrehocik. Discussion The controlling legal principles were restated by the Board in Elizabethtown Water Company, 234 NLRB 318, 320 (1978), as follows: [W]e find no merit in Respondent's argument that the Union waived its statutory right to raise matters with respect to the Plan during the life of the col- lective-bargaining Agreement. The Board has de- clined to find that a party to a contract has waived its rights to bargain concerning mandatory subjects of bargaining simply because it failed to mention the subject; instead, the Board requires "a conscious re- linquishment by the union, clearly intended and ex- pressed." [Citing Perkins Machine Company, 141 NLRB 98, 102 (1963).] Also see N.L.R.B. v. Rockwell-Standard Corp., 410 F.2d 953, 957, fn. 2 (Cir. 1969); Radio Television School v. N.LR.B., 488 F.2d 457, 461 (3rd Cir. 1973); and cases cited. Subsequently, in National Broadcasting Company, Inc., 241 NLRB 920 (1979), the Board, in agreement with the Administrative Law Judge, found that NBC violated Section 8(a)(5) and (1) of the Act by refusing to bargain with NABET concerning the participation of unit employees in its RCA Income Savings Plan. The Board, again applying the above principles, concluded "that the record does not establish a plain and unmistak- able waiver by NABET of its right to bargain about the Savings Plan .... It is clear in the instant case that Respondent Employ- er's so-called RCA Income Savings Plan is a mandatory subject of collective bargaining. Further, the record here does not establish, as contended, that AFTRA waived its right to bargain concerning this mandatory subject. For, as NBC Negotiator Brand testified, it was he who volun- tarily introduced this subject matter at the bargaining table in answer to a general reference by the AFTRA negotiator to a "stock purchase plan." Brand admittedly made only brief reference to the RCA Income Savings Plan and, at the same time, made it clear to the Union negotiator that the plan "is only available to non-repre- sented employees" and "NBC has steadfastly refused to yield and give the Plan through collective bargaining." The brief reference by Brand to the RCA Income Sav- ings Plan, under the circumstances present here, does not establish "a conscious relinquishment" or a "plain and unmistakable waiver" by AFTRA to bargain over this subject during the term of the agreement which was later executed by the parties. The record before me does not demonstrate a discussion over this plan or an ex- change or give-and-take among the parties so that the Union's failure to press for the plan at the time constitut- 190 NATIONAL BROADCASTING CO. ed a quid pro quo or consideration for other benefits granted. In sum, the Union has not waived this statutory right and NBC's refusal to bargain over this plan is a violation of Section 8(aX)(5) and (1) of the Act, as alleged.9 CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce as alleged. 2. Charging Party Union is a labor organization as al- leged. 3. Respondent violated Section 8(aX5) and (1) of the Act by refusing to bargain with the Union, the duly des- ignated representative of its employees in the appropriate bargaining unit as described below, concerning the par- ticipation of said unit employees in the RCA Income Savings Plan. The appropriate unit is, as follows: All staff performers, including staff announcers, staff newspersons, staff singers, and staff actors em- ployed by the Company at the WKYC television station. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent will be directed to cease and desist from engag- ing in such conduct or like or related conduct and to post the attached notice. Respondent will also be direct- ed to bargain with the Union upon request with respect to the unit employees' participation in the RCA Income Savings Plan and if an understanding is reached, embody such understanding in a signed agreement. ORDER' 1 The Respondent, National Broadcasting Company, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: a At the hearing, counsel for Respondent cited Jencks rule irregulari- ties; counsel does not press these contentions in his post-hearing brief and I adhere to my rulings as stated at the hearing. '0 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the 1. Cease and desist from: (a) Refusing to bargain collectively with Cleveland Local, American Federation of Television and Radio Artists, AFL-CIO, the duly designated representative of its employees in the appropriate unit as described below, concerning the participation of said unit employees in the RCA Income Savings Plan. The appropriate unit is: All staff performers, including staff announcers, staff newspersons, staff singers, and staff actors em- ployed by the Company at the WKYC television station. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Upon request, bargain with said Union with respect to participation by the employees in the aforementioned appropriate unit in the RCA Income Savings Plan, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its place of business in Cleveland, Ohio, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I' In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 191