KCKC

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 378 (N.L.R.B. 1973)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dimarc Broadcasting Corporation d/b/a KCKC and
American Federation of Television and Radio Art-
ists, Los Angeles Local , AFL-CIO. Case 31-
CA-2839
June 22, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On June 16, 1972, Administrative Law Judge ' Hen-
ry S. Salim issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in the proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent did not violate Section 8(a)(5) of the Act.
In 1968, the Respondent voluntarily recognized the
Union as the bargaining agent for a unit of broadcast-
ing employees. Thereafter, a contract was entered into
that was due to expire on December 1, 1971. Prior to
the expiration of the contract, the Union requested
that negotiations be started on a new contract. The
first bargaining session was held on October 20, 1971,
at which the Union presented certain written pro-
posed modifications for incorporation in the new con-
tract. The parties met again on November 1, 1971,
when the Respondent submitted its written counter-
proposals. Included in the Respondent's counterpro-
posals was a proposal that would require the Union
to establish by "written proof" that it "is the sole
bargaining agent" for the staff announcers employed
by Respondent. Sullivan, the Union's representative,
testified that Trenner, Respondent's vice president,
did not claim that the Union did not represent a ma-
jority of the staff announcers, but rather requested
that the Union's status be established through some
"legal agency." The parties then continued negotiat-
ing on other matters for 1 to 1-1/2 hours. Although
Sullivan indicated at that time he could not abide by
Respondent's proposal, he later, in effect, agreed to
the proposal as it was Sullivan who informed Respon-
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
dent on November 11 that he had checked with coun-
sel and that the Union would suggest a card check
with the California State Conciliation Service. There-
after, several discussions, including communications
between the attorneys for the Union and Respondent,
occurred regarding the method or manner in which
the Union would establish to the Employer's satisfac-
tion that it represented a majority of the employees in
the unit. It was finally agreed that a meeting set up by
the Union would be held on January 13, 1972, with a
member of the California State Conciliation Service
present to verify the status of the Union as bargaining
representative. The meeting with the conciliator pre-
sent was held as scheduled. At this meeting, Sullivan,
the union representative, offered to produce union
designation cards signed by all four of the employees
in the unit on December 14, 1972. Trenner,
Respondent's president, objected on the grounds that
he thought the poll to be taken was to be a current one
as of that date or at least as of the day before. Again,
Sullivan agreed and asked Trenner if he could hold a
meeting with the employees. The request was granted
and Sullivan met with four employees in Trenner's
office. During this meeting, three of the employees
refused to sign new cards. Upon being confronted
with this fact, Sullivan returned to the meeting with
the conciliator and indicated at that time that he
would not proceed with the "card check election."
Two weeks later, the Union filed the instant unfair
labor practice charges alleging that Respondent re-
fused to bargain with the Union on and after Novem-
ber 1, 1971.
The General Counsel, relying on our decision in
Barrington Plaza and Tragniew, Inc.,' contends that
the Respondent violated Section 8(a)(5) of the Act
when, in its proposal of November 1, 1971, it demand-
ed that the Union prove its majority status as of De-
cember 1, 1971, the date the existing contract expired.
The General Counsel contends that the union majori-
ty status is irrebuttable during the contract term and
that a presumption of majority status continues after
expiration of the contract. We agree with these con-
tentions. However, we do not agree with the General
Counsel's basic premise that the Respondent refused
to bargain with the Union. Rather, we conclude on
the record before us that the Respondent requested
that the Union prove its current majority status as of
December 1, 1971, and that the Union accepted this
request and agreed to re-prove its majority status. The
Union having agreed to re-prove its status, we cannot
find that Respondent "refused to bargain" by making
a request that was in fact accepted. In addition, the
record clearly shows that the Union, while maintain-
ing that it was the majority representative, acquiesced
2 185 NLRB 962
204 NLRB No. 47
DIMARC BROADCASTING CORP.
in the postponement of bargaining sessions pending
the resolution of the majority status issue.
Our dissenting colleague would find that on De-
cember 8, 1971, Trenner "refused" to meet with the
Union until the majority status issue was resolved.
While Sullivan did characterize Trenner's position as
a "refusal" to meet, Trenner testified that when Sulli-
van requested a bargaining meeting on the 12th, Tren-
ner told him he "understood we had to go through this
card check election." Sullivan then discussed
Respondent's proposal with the employees at a meet-
ing on December 14, where it was agreed that they
would go through the State Conciliation Service. Al-
though there was nothing further in Sullivan's testi-
mony evidencing either agreement or acquiescence
with Trenner's position, on December 30, 1971, the
Union's attorney wrote Respondent's attorney a letter
containing the following:
AFTRA renews its demand for collective bar-
gaining and unless action is taken to resolve the
representation question at once, we shall have no
choice but to file an unfair labor practice charge.
I trust that will be unnecessary. [Emphasis sup-
plied.]
Thus, it can be seen that there was some basis for
Trenner's understanding that the resolution of the
"representation question" was taking precedence over
negotiations during this period.
We also do not agree with our dissenting colleague
that the facts of this case compel the application of the
principles enunicated in McCormick Longmeadow
Stone Co., Inc., 158 NLRB 1237. In the instant case,
Trenner was first approached by staff announcer
Henderson who was then the Union's steward for the
unit . While Henderson was acting in his individual
capacity, and not as a union steward or negotiator, he
asked Trenner if there was not something that could
be done about his getting a pay increase at that time.3
Trenner responded that he was not sure but that he
would see what he could do. On December 20, 1971,
Respondent's attorney wrote the Union's attorney re-
questing "your comments and approval prior to initi-
ating any such salary increases." Trenner gave each of
the employees in the unit a copy of the letter sent to
3 Henderson testified "I said that we needed more money it had been
about a month and a half since the last bargaining session and a couple of
weeks since the contract had expired and a raise would normally have come
up at that time. I asked him if there was anything he could do to get me more
money
Q Was this in context of you asking for yourself9
A Yes
Q Not in your capacity as shop steward''
A No, personally, strictly personnally
Q (By Mr. Winkler) What did he tell you)
A He said with the contract expired and with all the Union negotia-
tions going on, he was not sure if he could offer a raise or not, but he
said he would see what he could do about it and we left it at that
379
the Union's attorney. On December 30, 1971, the
Union's attorney responded, rejecting the request and
taking the position that "After discussion with em-
ployees at the station AFTRA takes the position that
any unilateral wage change would be a violation of
the employer's obligation to bargain collectively with
the union representative of the employees involved."
Trenner also delivered copies of this letter to each of
the announcers in the unit. In the McCormick case, we
pointed out that the communications from the em-
ployer included misstatements of fact and extraneous
matter holding out to the employees hopes that they
would receive immediate pay increases and, from the
wording of the letter, that a failure of the employees
to receive pay increases would be the fault of the
Union. In the instant case, the Respondent's unrepre-
sented employees would normally have received a pay
increase on or about January 1, 1972. It was the re-
quest of one of the four announcers, who also hap-
pened to be the union steward, that prompted the
writing of Respondent's letter. The Respondent's let-
ter to the Union does not, within its perimeters, con-
tain statements similar to those in McCormick. It does
not purport to put the onus on the union for a failure
of the employees to receive any wage increases. Fur-
ther, upon receipt of the letter, a union representative
discussed, before responding thereto, the
Respondent's request to grant wage increases with the
employees in the unit. These facts of record compel
the conclusion that the Employer did not violate Sec-
tion 8(a)(1) by requesting the Union's approval to
grant its employees wage increases.
Since there is no evidence to establish that Respon-
dent refused to meet and bargain with the Union in
violation of Section 8(a)(5) of the Act, we shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER FANNING, dissenting:
My colleagues agree that the presumption of con-
tinuing majority status is irrebuttable during the con-
tract term and that it continues after expiration of the
contract. Furthermore, an employer can only refuse
to continue bargaining with immunity if it has doubt
as to the Union's majority status predicated on objec-
tive considerations that establish reasonable grounds
for believing the union had lost its majority status.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevertheless they find that a respondent who during
the term of the.contract conditioned future bargain-
ing on proof of majority status without expressing,
much less producing evidence of, a doubt as to that
status does not violate Section 8(a)(5). They state that
"we cannot find that Respondent `refused to bargain'
merely by making a request that was in fact accept-
ed," apparently on the ground that the Union agreed
to re-prove its majority status."
The Union faced with Respondent's unlawful re-
fusal to bargain until it re-proved its majority status
and knowing that its majority was secure, as is evi-
denced by the fact that all four unit employees signed
new authorization cards on December 14, 1971 (dis-
cussed infra), apparently decided upon an approach
characterized by reasonableness and cooperation
(cornerstones of the concept of collective bargaining).
The majority, however, in essence, finds that this very
willingness to cooperate is the reason for finding no
violation. Yet it is clear that if the Union had filed a
charge after the first negotiating session (November 1,
1971), or after Respondent's December 8, 1971, refus-
al to bargain, or after all the employees signed cards
on December 14, 1971, that a violation of the Act
would be found.
Even if the facts were as presented by the majority,
I would find that Respondent violated Section 8(a)(5)
by requiring the Union to prove its majority while the
presumption of continuing majority status was in ef-
fect and it had expressed no doubt of majority status
predicated on objective considerations.'
However, these are not the facts, for the record
clearly shows Respondent not only conditioned bar-
gaining on the Union's proving majority status but
refused to bargain until that status was established.
Thus, Trenner testified that on November 1, 1971,
when he proposed the provision requiring the Union
to prove its majority status, Sullivan objected saying
Without so stating the majority has properly rejected both the rationale
and precedent relied on by the Administrative Law Judge Indeed it should,
for the Administrative Law Judge has inexplicably treated this case as one
of initial organization rather than as one where there was a contract in effect
and therefore a presumption of majority status.
S There is no evidence on the record that the Respondent questioned the
Union's majority status Thus, Trenner at the November 1, 1971, negotiating
session stated that he was requiring the Union to re-prove its majority status
because Respondent had recognized the Union without an election and
therefore on December I, 1971, Respondent was withdrawing the voluntary
recognition Trenner further stated he told the Union "there is no clause in
the contract stating that the terms and conditions would remain in effect after
December I, 1971 1 feel that as of December i, 1971, we come to the level
end of the contract and everything and that the Union has to supply me with
legal written proof of the majority's status" Contrary to the Administrative
Law Judge's pronouncements Trenner did not question the Union's majority
status or give reason for doubting it Trenner testified only that, " I got the
general feeling . " Such a feeling is not an objective consideration on
which the Respondent may rely in establishing a good-faith doubt particular-
ly when Respondent never communicated the alleged "general feeling" to the
Union.
"he could not abide by that." Trenner testified he
replied, "Well that's the way I felt and we would have
to take it from that point forward."
On December 8, 1971, Sullivan, by telephone,
asked Trenner to meet for a bargaining session on
December 12, 1971 (this date conformed to a request,
by letter, for bargaining made by Union Representa-
tive Davis to Trenner). Trenner refused saying that he
"did not want to meet at all until the majority status
was satisfied." Trenner confirmed that Sullivan re-
quested they meet to bargain and that he told Sulli-
van, "I understand we had to go through this card
check election."
On December 14, all four unit employees signed
new authorization cards. One of them, Johnston, testi-
fied he then told Trenner that the employees had had
a meeting and all wanted the Union to represent
them. Johnston's statement should certainly have at
least led Trenner to question the validity of his alleged
good-faith doubt of the Union's majority status.'
Instead, Trenner proceeded with his plan to elimi-
nate the Union. On December 20, he gave the employ-
ees copies of the letter he had written to the Union
requesting that he be allowed to give certain employ-
ees wage increases . Thereafter, he gave the employees
copies of the Union's reply which denied his request
because such a unilateral increase would violate
Respondent's obligation to bargain and again de-
manded bargaining. In so doing he told one of the
employees it was too bad two of the employees could
not get the raises due them. Of even greater signifi-
cance is the fact that Trenner never contacted the
Union or offered to bargain about the proposed in-
creases prior to sending the letter. I would find, as
alleged in the complaint,' that the Respondent sought
to discredit the Union and discourage membership
therein by announcing a desire to offer immediate
benefits to its employees without bargaining and then
shifting to the Union the onus for not instituting these
benfits, in violation of Section 8(a)(1).8
6 The majority indicates that Sullivan discussed Respondent 's card check
proposal with the employees at a meeting on December 14, 1971, and it was
agreed that they would go through the State Conciliation Service card check.
This is not what the employees agreed to For, the record shows they agreed
they wanted AFTRA representation and that they would all sign new cards
to so evidence this fact . In fact employee Gilmore testified that the employees
did not want to waste time with a card check and that one of the employees
suggested they just go to Trenner and tell him they wanted AFTRA represen-
tation Employee Johnston did so inform Trenner who chose to ignore the
employees' desire
The Administrative Law Judge neither mentioned nor made a finding as
to this allegation
s See McCormick Longmeadow Stone Co, Inc, 158 NLRB 1257. The ma-
jority finds McCormick distinguishable in that the Respondent 's letter to the
Union herein does not "within its perimeters" contain statements similar to
those in McCormick In so doing it completely ignores the fact that Respon-
dent never offered to bargain with the Union over these increases although
its duty to do so was clear It also ignores the fact that Respondent made it
clear by delivering copies of the Union 's letter to the employees with the
comment that it's too bad the employees could not get the increases due
DIMARC BROADCASTING CORP. 381
On January 12, 1972, the day before the card check
was scheduled, Trenner called all four unit employees
into his office and talked to them for about half an
hour. Among other things he stressed the benefits
received by the nonunion employees at the station
and indicated how satisfied these employees were
with them. He also told them that a union had no
function in a small operation as everyone could get
into his office, and indicated he preferred to bargain
with the men individually rather than as a group.
Employee Henderson testified he asked Trenner "if
this group were not called AFTRA but something else
would he bargain with us as a unit" and that Trenner
replied "no." I would find, as alleged in the complaint,
that Trenner's meeting with the employees on Janu-
ary 12, 1972, constituted an attempt to bypass the
union by bargaining individually with the employees
and an attempt to cause the employees to repudiate
the Union in violation of Section 8(a)(1) and (5).9
On January 13, 1972, Sullivan and Trenner met
with Gilbert, a representative of the State Conciliation
Service. When Sullivan attempted to give Gilbert the
cards dated December 14, 1971, Trenner indicated
that he would accept only cards dated January 13,
1972, or thereafter. When Sullivan and Gilbert ex-
plained that cards are usually secured prior to a card
check, Trenner qualified his demand only to the ex-
tent that he would accept cards dated after his Janu-
ary 12 meeting with the employees. One of the reasons
he gave for wanting new cards was that, "I had a
meeting with my employees yesterday which I feel
was my opportunity to express my views." Since Tren-
ner would not accept the December 14, 1971, cards,
Sullivan met with the employees, but only one of them
would sign a card. The Union then filed the instant
charge.
In summary, the record facts as set forth above
show that the Respondent, in the face of a presump-
tion of majority status (characterized by the majority
as irrebuttable), conditioned bargaining on proof of
majority status , refused to bargain with the Union,
refused to accept evidence of majority status except
on its terms, and undermined and bypassed the Union
by dealing directly with the employees. The Respon-
dent did not provide evidence to show it held a good-
faith doubt of the Union's majority status. In fact,
although it was informed shortly after December 14,
1971, that the employees had had a meeting and all
wanted the Union to represent them, it continued in
its effort to undermine the Union. Certainly, a ques-
tionable good-faith doubt without any evidence of an
objective basis therefor, which was only arguably as-
serted on November 1, 1971, is not established by a
refusal of employees to sign cards 2 months later after
the Respondent has undermined the Union and bar-
gained directly with the employees. This is particular-
ly true when in the interim all employees have signed
valid cards which the Respondent refused to consider.
To my knowledge this is the first Board decision
which allows an employer the prerogative not only of
refusing to accept valid cards but of picking and
choosing according to its whim, and after it has violat-
ed Section 8(a)(1) by bypassing the Union and dealing
directly with the employees, the date upon which
cards must be signed. I would find the 8(a)(5) refusal-
to-bargain violation alleged in the complaint.
9 See Pembeck Oil Corp, 165 NLRB 367, enfd in relevant part 404 F 2d
105 (C A 2, 1968)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This proceeding, heard
at San Bernardino, California, on May 4, 1972, pursuant to
a charge filed on January 25, 1972, and a complaint issued
March 21, 1972, presents questions whether Respondent,
herein called the Company, violated Section 8(a)(5) and (1)
of the National Labor Relations Act, 61 Stat. 136, as
amended, by refusing to bargain with the Union in the
following major respects: (a) by refusing to meet with the
Union to negotiate a new collective-bargaining agreement;
(b) by undermining the Union's majority status by orally
soliciting the unit employees to withdraw their support from
the Union; (c) by attempting to bypass the Union and bar-
gain directly with the four employees who comprised a unit
of radio announcers; (d) by promising benefits to its unit
employees to persuade them to withdraw their support from
the Union; and (e) by seeking to discredit and discourage
membership in the Union by offering benefits to said em-
ployees.
Upon the entire record, including observation of the wit-
nesses, and after due consideration of the briefs filed by the
General Counsel, and Respondent radio station on May 31,
there are made the following:
FINDINGS OF FACT
The Business of the Company and
The Labor Organization Involved
Respondent, a California corporation, is located in San
Bernardino, California, where it operates radio station
KCKC. It operates under license from the Federal Commu-
nications Commission and transmits radio programs to the
Riverside and San Bernardino metropolitan areas in Cali-
fornia. In the normal course of its business, it performs
services valued in excess of $100,000 annually, of which
more than $50,000 is derived from the sale of air time for
the advertisement of national brand products manufactured
by various companies, individuals, and enterprises, and
shipped to points outside the States in which they are pro-
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced . Such goods and products annual value exceeds
$50,000 . Respondent admits, and it is found , that it is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
American Federation of Television and Radio Artists,
Los Angeles Local, AFL-CIO, herein referred to inter-
changeably as "the Union" or "AFTRA" is a labor organi-
zation as defined in Section 2(5) of the Act.
The Testimony
In 1968, the Respondent Company voluntarily recog-
nized the Union as the duly authorized representative of its
radio announcers and commenced negotiations for a collec-
tive-bargaining agreement which was executed on Novem-
ber 7, 1968.1 When said contract was due to expire on
December 1, 1971, the Union requested the Company to
meet with it for the purpose of negotiating a new contract.
The first bargaining session was held on the premises of
Respondent radio station, KCKC, on October 20, 1971. The
Union was represented by Neil Sullivan, its business repre-
sentative, and the Company by Douglas Trenner, its vice
president; also present was Richard Henderson, a radio
announcer for KCKC, who is also shop steward for the
Union. At this meeting, which lasted less than an hour, the
Union's contract proposals were submitted by Sullivan,
who explained the proposed provisions to Trenner. The
only pertinent comment made at this first meeting by Tren-
ner was to complain about a competing radio station's con-
tract which he claimed accorded more favorable treatment
to this competitor than the Union's contract with the Re-
spondent.
At a second negotiating session on November 1, Trenner
submitted the Company's counterproposal to Sullivan, the
union official, at which time Trenner requested proof from
the Union that it represented a majority of the four an-
nouncers who comprised the appropriate unit. The
Company's counterproposals 2 contains the following provi-
sion:
1. RECOGNITION
In the past, prior to the negotiations and signing of the
present KCKC-AFTRA contract, KCKC, without cer-
tification, recognized AFTRA as the bargaining agent
for the staff announcers at KCKC. This is no longer the
case . Effective December 1, 1971, KCKC requires writ-
ten proof that AFTRA is the sole bargaining agent for
the staff announcers at KCKC.
Trenner explained that when the Company executed the
original collective-bargaining agreement with the Union in
1968, it had voluntarily recognized the Union, but now,
more than 3 years later, it required proof that the Union
represented a majority of its announcers. It was agreed by
Sullivan and Trenner, after consultation with their re-
spective lawyers, that the California Conciliation Service
would conduct a card check in order to ascertain if the unit
employees desired to be represented by the Union.
Pursuant thereto, Sullivan met with Respondent's four
Frank Gilmore is the only employee in the unit herein who was employed
by Respondent when the contract was executed on November 7, 1968
Z G.C. Exh. 3 at p I
announcers, Hutson, Henderson, Gilmore, and Johnston,
and requested each of them to sign union authorization
cards, which they did on December 14.1 The cards which the
employees signed read as follows:
I hereby authorize the Federation of Television and
Radio Artists as my sole and exclusive agent for collec-
tive bargaining purposes in any and all matters pertain-
ing to my employment at Station KCKC.
Sullivan testified: "At that time, also, it was indicated that
possibly, you know, some of the staff ought to meet with
Doug Trenner and one of them indicated that he was going
to tell Mr. Trenner that all of the staff wanted AFTRA
representation "
On December 20, the Company's attorney wrote the fol-
lowing letter to the Union's attorney:
Ralph E. Wiggen, Esq.
Ziskind and Wiggen
Suite 515 Wilshire Square
3445 Wilshire Boulevard
Los Angeles, California 90010
Re: Dimarc Broadcasting Corporation (KCKC)-Amer-
ican Federation of Television and Radio Artists
Dear Mr. Wiggen.
During the course of reviewing the status of the
KCKC employees with Mr. Trenner, he advised me
that he had planned to give the employees of KCKC
a raise in pay, effective January 1, 1972. However, in
view of the uncertainty of the above-referenced matter
and possible contract negotiations, Mr. Trenner does
not wish to be involved in any activity that could be
construed as being improper or perhaps an unfair labor
practice.
While Mr. Trenner still wishes to give the employees
the raise , effective January 1, 1972, in view of the fore-
going , we would appreciate receiving your comments
and approval prior to initiating any such salary increas-
es.
I would appreciate hearing from you at your earliest
convenience.
Very truly yours,
/s/ Bruce D. Varner
OF LONERGAN, JORDAN, GRESHAM & VARNER
The Union's attorney , on December 30, replied as follows:
Bruce D . Varner, Esq.
Lonergan, Jordan, Gresham & Varner
398 West Fourth Street
San Bernardino , California 92401
Re: Dimarc Broadcasting Corporation (KCKC)-Amer-
ican Federation of Television and Radio Artists
Dear Mr. Varner:
In Mr. Wiggen's absence I am replying to your letter
of December 20 in which you request our comments on
the wish of Mr. Trenner to make unilateral wage in-
creases.
3G C Exhs 4,5,6,and7
DIMARC BROADCASTING CORP. 383
After discussion with employees at the station, AF-
TRA takes the position that any unilateral wage
change could be a violation of the employer's obliga-
tion to bargain collectively with the union representa-
tive of the employees involved.
We call your attention to Mr. Wiggen's letter of De-
cember 17, suggesting a procedure for confirming the
representative status of AFTRA. To date, the employer
has failed to communicate with Mr. Sullivan or us on
that, and the proposed unilateral action on wages is not
a lawful alternative.
AFTRA renews its demand for collective bargaining
and unless action is taken to resolve the representation
question at once, we shall have no choice but to file an
unfair labor practice charge. I trust that will be unnec-
essary.
Sincerely yours,
ZISKIND AND WIGGEN
/s/ David Ziskind
The Union and the Company agreed that a card check to
determine the Union's majority status would be conducted
at the radio station by the California Conciliation Service
on January 13, 1972.
On January 12, the day before the card check was to be
held, the four radio announcers met with Trenner who re-
quested them to come to his office. Henderson, the shop
steward, testified that at this meeting , Trenner stated he
would answer all questions and, during the course of this
discussion, Trenner said the Company' s nonunion employ-
ees were "very happy" with their "vacation schedules and
regular pay increases [and] . . . as to union representation,
[Trenner] made a statement to the effect that he believed a
union had the function in a large industry such as Kaiser
Steel, but in a small plant, such as we have there, where
everybody can get into his office at any time, that a Union
was not really necessary."
On January 13, the day that the card check was to be
conducted, Gilbert, the California Conciliation Service offi-
cial, announced that the four unit employees' signatures on
their authorization cards would be checked for authenticity
against the Company's payroll records to determine their
validity. When Gilbert finished his explanation of the card
check procedure to be followed, Trenner stated that he
would only accept cards signed by the employees on or after
January 12, 1972, as being probative of their desire to be
represented by the Union and that he would not recognize
as valid the authorization cards signed by them on Decem-
ber 14. See above.
When Trenner protested the validity of the employees'
cards signed a month before on December 14, Sullivan
asked the four employees to meet with him in an adjoining
office on the radio station premises to discuss Trenner's
objection. After some discussion, Sullivan then requested
the four announcers to sign new union cards in order to
obviate Trenner's objection but Gilmore, Hutson, and
Johnston refused to do so. Sullivan's testimony reads as
follows:
... Mr. Trenner allowed me to meet with the staff
immediately there on the premises and I met with the
staff for about a half an hour and the indication was
that at that point the staff did not want to sign new
authorization cards and so at that point we Just left it
open that no longer would-there couldn't be any card
check election at that time. . . . I went back in and met
with Mr. Trenner and Mr. Gilbert and indicated at this
time I could not sign an election agreement. . . . Their
[employees'] reluctance [to sign new cards] was based
upon the fact that a couple of them had been told that
it would probably take a long time before a contract
was obtained by Union negotiations. Also, in view of
the fact that the employer had requested [permission
of] the Union to increase wages of the employees 4
The only employee who signed a union card at this Janu-
ary 13 meeting with Sullivan was Henderson.
On cross-examination, Sullivan stated that none of the
unit employees ever indicated to him that Trenner intimi-
dated or threatened them with respect to the impending
card check or said anything which would indicate that he
harbored any union animus. At no time during bargaining
negotiations, continued Sullivan, did Trenner deliberately
procrastinate or engage in dilatory tactics.
It was elicited that, for some years past, it had been the
radio station's policy to grant on each December 1 annual
increases in varying amounts to those of its employees who
merited pay raises. Sullivan testified that inasmuch as the
Company had requested on December 20 the Union's ap-
proval in order for it to grant wage increases effective Janu-
ary 1, 1972, which approval the Union refused, that three
of the unit employees would not sign union authorization
cards on January 13, 1972, when he requested them to do
so because of their being disgruntled at the Union's not
allowing the Company to grant them a wage increase. The
employees believed, according to Sullivan, that the execu-
tion of a new contract between the Company and the Union
would take a long time, in view of the Union not only
refusing to allow the pay raise, but also because the union
lawyers had written to the Company threatening that they
would file an unfair labor practice charge if either a pay
increase were granted or if no "action [were] taken to re-
solve the representation question at once." Sullivan's testi-
mony continues:
The staff was aware of that [the delay entailed by nego-
tiating a contract] and they knew without the Union
they would get that increase right away. . . . Whereas
with the Union, it had been indicated to them that
there would be very prolonged negotiations and that it
would take a considerable period of time for them to
secure that increase... .
Richard Henderson, the union shop steward, corroborat-
ed Sullivan's testimony. He also stated that a "couple of
week[s]" after the collective-bargaining agreement expired
on December 1, 1971, that he went to Trenner's office
"around December 15" and told him "that we needed more
money. It had been about a month and a half since the last
bargaining session [November 1] and a couple of weeks
since the contract had expired and a raise would normally
have come up at that time. I asked him if there was anything
he could do to get me any more money. . . . He said with
the contract expired and with all the Union negotiations
going on, he was not sure if he could offer a raise or not,
4 See G C Exhs 8 and 9
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he said he would see what he could do about it and we
left it at that . . . he wasn 't sure whether or not it would be
considered an unfair labor practice or not . So, he wanted to
talk to his attorney . . . as I remember , he said that he felt
that I and Jack Hutson both deserved a raise or were worthy
of it or something like that."
On cross-examination, Henderson testified that Trenner
never displayed any union animus and, in his capacity as
union steward , he not only had never filed a grievance but
he also had ready access to Trenner at all times to discuss
employee problems . Henderson described Trenner as a
"very good employer ." When Henderson was asked by
Respondent 's counsel whether any of the employees at the
January 13 meeting with Sullivan indicated whether the
refusal of three of them to sign union cards "amounted to
a decertification ," Henderson answered as follows:
We actually did not know . There was a feeling , at least
I thought there was a feeling , it did constitute a decerti-
fication and I asked Neil Sullivan if it did mean that
and he did not give me an answer yes or no . Sort of,
we will have to see or something of that sort.
Henderson concluded his cross-examination by testifying
that it was he, not Trenner, who initiated the pay increase
matter and that Trenner's reply to Henderson 's request was
that he would have to consult with his attorney in order to
ascertain whether he could be charged with an unfair labor
practice if he should grant pay increases.
Frank Gilmore , another announcer , corroborated the tes-
timony of both Sullivan and Henderson . He added that he
once asked Sullivan why the Union would not permit Tren-
ner to grant pay raises and continue to bargain at the same
time . At the meeting on January 13, when Sullivan asked the
four announcers to meet with him (when Trenner insisted
to Gilbert , the California state conciliator, that only union
cards signed on or after January 12 should be considered
valid) Gilmore testified as follows:
I asked [Sullivan] again what my position would be,
what happened as far as my wage scale was concerned
if we had a new contract . . . . I asked him if I would
receive our wage increase based on the air work that I
did which was under AFTRA's jurisdiction . . . he
replied that would be something that I would have to
negotiate with [Trenner ] myself.
* * * *
Mr. Hudson [sic] was next to speak up. He said, "I may
be cutting my throat, but I am not going to sign." I then
told Neil Sullivan. . . "Neil, all I can do is lose money.
I receive the same wage and pay union dues. I can't
sign. So I did not sign."
Sullivan told him, testified Gilmore, that any pay increase
that he might want to get from the Company, he would have
to work out with Trenner and that the Union would not be
of any assistance to him. That was a consideration, declared
Gilmore, why he would not sign the union card when re-
quested by Sullivan on January 13. Gilmore continued, "It
was my feeling that the Union was not handling the negotia-
tions properly. I thought they were mishandling the negotia-
tions." Gilmore concluded his testimony by stating that he
told Trenner he was dissatisfied with the Union.
George Johnston, the first witness called by the Respon-
dent, is a member of the Union. He has been employed for
the past 4 years as an announcer for KCKC, except for 6
months in 1968, when the original collective-bargaining
agreement was executed by the Union and Respondent. His
testimony corroborated the salient aspects of the previous
witnesses . He also testified that he had had some doubts
about the "adequacy" of the Union's representation of the
announcers for quite some time, and that he and his three
colleagues had discussed it with Sullivan. The four of them,
testified Johnston, discussed among themselves, and also
asked Sullivan, whether the Union would back them up if
they went on strike or if the Union would stand by them if
they chose the Union and, "I asked [Sullivan] if we had a
strike force, could we go on strike, would the Union stand
by us, and if they did how long could we strike. [Sullivan]
said he would have to check. . . . I asked him what would
happened [sic] when the Union neglected to represent me as
an individual and represented my job as a newsman when
I was cut out of the station a year or so prior to this, and
he didn't have an adequate answer for that." It was elicited
on his cross-examination that he was "let go" as news direc-
tor by Respondent and that when this occurred, he had
some doubts about the Union.
Johnston next related what occurred at another meeting
at which he, Sullivan, Hutson, Gilmore, and a " casual"
employee named Griffin were present, at which time John-
ston stated that he asked Sullivan "if the Union would stand
by us no matter what. If we went with the Union, would
they stick with us come hell or high water. He said we have
to just wait and see." His reason, stated Johnston, for not
signing a union card at the January 13 conference with
Sullivan was because he "felt that the Union could not do
me much good."
Douglas Trenner, the prime protagonist in the events
leading up to this litigation, is executive vice president of the
Respondent Company. The salient aspects of his version of
what transpired at the two negotiating sessions agrees with
Sullivan's testimony. Nor is there any material variance
between himself and the announcers as to what occurred in
his discussions with them individually and in meeting with
them on January 12. Trenner stated that he decided to
question the Union's majority status when some of the unit
employees complained to him about the representation they
were receiving from the Union, whereupon he notified the
Union that he desired Respondent's counterproposals sub-
mitted to the Union on November 1, 1971. He denied the
allegation in the complaint that he refused to meet with the
Union or to bargain with the Union or that he ever solicited
the announcers to withdraw their support from the Union.
Trenner's version of this meeting with the announcers in his
office at I1 a.m. on January 12 reads as follows:
I made it very clear there were a number of questions
that I could not answer and that I would state that I
could not answer the[m] and it seemed that I had four
intelligent human beings in front of me and they knew
if they asked anything about wages, I wasn't going to
answer it.
I said that there are certain questions that I could not
DIMARC BROADCASTING CORP. 385
answer due to Union-employer negotiation law. That
I did not want to jeopardize the corporation in any way
by answering something that I couldn't answer.
Reference was then made to his conversation with Hen-
derson, sometime in December, with respect to the feasibil-
ity of giving him a raise in pay which he had requested.
Trenner testified:
I told [Henderson) that I was not really sure whether
I was allowed to give him a raise or not. That there
could be the possibility that if I did give him one, it
would be considered economic coercion, but I didn't
know labor law and I would check it with my attorney
before I gave him an answer. . . . I called Bruce Var-
ner [Respondent's attorney] on the phone and I said,
"One of my . . . union employees has come and asked
me for a raise, am I allowed to give him one?" And his
answer to me was, "Forget it. It's only going to be
considered economic coercion." A week went by at
which time I sat and thought about this particular
problem and I called Mr. Varner back, my attorney,
and I said, "Look, it isn't fair to this gentleman. He has
done a decent job. Is there no way we can write a letter
to the Union and at least make them acquiesce and let
us at least give these gentlemen, two gentlemen, a raise
during this period of protracted legal maneuvering?"
And he said that he would write a letter and at that
time, I guess the letter was sent to Ziskind and Wiggen
[Union lawyers] and a reply after that.
s s n
I had a policy of providing copies of all written-any-
thing written back and forth between the Union and
the radio station , because I felt that they should be
informed , because I did see that the Union wasn't
doing it , so, I felt I was obligated to my employees to
provide them with the information of what was going
on between the radio station and AFTRA.
Trenner continued that he never discussed this corre-
spondence with the employees but merely left copies of it
on their desks , or either handed it to them or mailed it to
them . He denied that he ever bargained "directly" with any
of these four employees with respect to pay increases, vaca-
tion benefits , or employment benefits or that any of the
employees ever charged him with refusing to bargain with
them or the Union . He stated that at no time since Respon-
dent entered into the collective -bargaining agreement with
the Union in 1968 did the Union ever file a grievance
against the radio station.
Regarding the meeting with Gilbert , the California state
conciliator, on January 13, Trenner's version of this reads
as follows:
After the State Conciliator, Mr. Gilbert, had explained
the ground rules for having a card check . . . he turned
to Mr . Sullivan and said, "Did you have any slips of
paper signed by the unit ," and Mr . Sullivan said, yes.
I said , "When did you get those signed ," and he said,
"Well, different periods of time ." I said , "What differ-
ent periods of time ?" He said , "One was signed a week
ago, some of them were signed two months ago." I said,
"Well, I don't think that is fair." I said, "I was under
the impression that this particular card check, the in-
tention of the unit should be from this day forward
[January 13] . . . so Mr. Sullivan agreed upon that,
agreed to that." ... At that point, when Mr. Sullivan
agreed to have the signatures gotten on that day, he
asked me if I would agree to allow him to have a private
meeting with the employees. I said, "Of course, you
may have it at any time you want, and you may use my
office."
When this meeting with the unit employees ended, Tren-
ner testified, ". . . Mr. Sullivan all of a sudden decided not
to go ahead with the card check. So I kind of guessed he did
not get enough signatures to have a majority."
Twelve days after the meeting with the official, Gilbert,
from the California Conciliation Service, the Union filed an
unfair labor practice charge against the Respondent.
Concluding Findings
There is no substantial dispute over the basic facts con-
cerning the alleged violations of Section 8(a)(5). The contro-
versy is mainly as to the legal conclusions to be drawn from
the facts. However, the General Counsel's arguments are
based on an interpretation of the facts which are not shared
by the trier of these facts, as hereinafter explicated. More-
over, it seems the General Counsel's representative strains
to reach an interpretation of the facts based on remarks and
conduct of the witnesses, to which the Trial Examiner does
not attach the same significance as does the General Coun-
sel. Contrary to the General Counsel's assertion, it is found
that Respondent never refused to meet with the Union. In
fact, in a meeting with the radio announcers on December
14, Sullivan subscribed to a suggestion that "some of the
staff ought to meet with Trenner...." And it was then that
Johnston, a unit employee, met with Trenner and informed
him that the employees wanted the Union to represent
them. See above. Furthermore, there is no validity to Gener-
al Counsel's contention that Trenner "made it abundantly
clear" to the employees when they met with him on January
12, that he "was willing to bargain individually with the
employees." This statement is taken out of context. See
above. Then too, Gilmore's statement stands uncontradict-
ed in the record that Sullivan told Gilmore that any pay
increases he sought from the Respondent would have to be
worked out with Trenner and that the Union would not be
of any assistance to him. See above. Also, Henderson testi-
fied that it was he, not Trenner, who initiated the pay in-
crease matter. See above.
The General Counsel's contentions are not well taken
that the Respondent violated Section 8(a)(5) by allegedly
refusing to meet with the Union to negotiate a new contract;
by undermining the Union's majority status or by attempt-
ing to bypass the Union and promising employees benefits
to withdraw from the Union. The General Counsel has
failed to sustain the burden of proving by a preponderance
of the credible evidence that the Respondent bargained in
bad faith with the Union or committed any of the unfair
labor practices alleged above. On the contrary, the facts
reveal that Respondent had reasonable grounds, prior to the
expiration of the collective-bargaining agreement, and cer-
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tainly on January 13, 1972, for believing the Union did not
enjoy majority status as evidenced by some of the employ-
ees' dissatisfaction with the representation they were receiv-
ing from the Union.5
Assuming, arguendo, that the alleged undermining and
bypassing of the Union occurred, it should be borne in mind
that the record reveals this was pursuant to Sullivan's ex-
press authorization to the employees and also Trenner's
meeting with the unit employees on January 12 was not
conduct proscribed by the Act. This uncontradicted fact, in
conjunction with Respondent's lack of union animus, as
well as Trenner's exemplary conduct in his dealings with his
employees, requires a finding that the allegations of the
complaint with respect to discrediting, undermining, and
bypassing the Union, or promising benefits to the employ-
ees if they withdrew from the Union, have not been proved
by a preponderance of the evidence.' There is not here a
scintilla of probative evidence that Respondent attempted
to undermine, bypass, promise employees benefits, or sub-
vert the Act's policy to foster and encourage collective bar-
gaining so as to cast any doubt upon its bona fides in the
negotiations at hand. On the contrary, all that Respondent
did was to require the Union to prove its majority status, an
inalienable right in the context herein of Respondent's
good-faith doubt based upon its knowledge of its employ-
ees' dissatisfaction with the Union, which was confirmed
when they refused Sullivan's request on January 13 to sign
new union authorization cards. Consequently, when the
Union was unable to accede to Respondent's request to
prove its majority status, the legal incidence of such failure
on the Union's part dealt the negotiations a coup de grace
which the Union's hasty filing of an unfair labor practice
charge was unable to either resuscitate or revive.
As to the alleged promises of "benefits" to the employees,
the Act does not require an employer who is engaged in
collective -bargaining negotiations to refrain from making
economically motivated decisions involving business mat-
ters or any changes in wage rates necessary to continued
and orderly operations of his business, absent a promise of
benefit conditioned upon rejection of the union and/or any
causal connection between such changes, including wage
increases , and the rights accorded employees by the Act.
Normal business decisions must continue to be made and
frequently are necessary for the efficient operation of an
employer's business even though they occur during contract
negotiations. No causal connection has been shown here by
the General Counsel so as to warrant an unfair labor prac-
tice finding.?
Moreover, isolated and individual incidents cannot be
used to make a finding of an unfair labor practice; the
5 Ordinarily, when faced with a union 's demand for recognition , the bar-
gaining representative of employees in an appropriate unit on the basis of
signed authorization cards, an employer may lawfully reject the union's
demand and insist that it prove its majority in a secret election conducted
by the Board A L Gilbert Company, 110 NLRB 2067, 2069.
6 Prior to the negotiations now being litigated , the Union and Respondent
had amicable collective-bargaining relations since 1968
7 McCormick Longmeadow Stone Co, 158 NLRB 1237, 1241, 1242, N L R
B v United Steelworkers of America, AFL-CIO, 357 U S 357 ( 1958), Repub-
lic Aviation Corp v N L R B, 324 U S 793 (1945), N L R B v American
Shipbuilding Co, 380 U S 300, 339 (1965), N L R B v Darlington Mfg Co,
380 U S 263 (1965)
overall actions and totality of conduct of the Respondent,
in the context of all the circumstances revealed by the evi-
dence, must be considered in resolving this contention. In
other words, a refusal to bargain within the meaning of
Section 8(a)(5) is premised on a pattern of conduct rather
than a single act. Furthermore, there is not a sufficient basis
on which to predicate a finding of an unfair labor practice
in the circumstances here revealed, as there is no evidence
which casts doubt on the Respondent's bona fides.
The uncontradicted evidence shows that the Respondent
bargained in good faith as evidenced by the fact that it made
expeditious and prompt arrangements for conducting nego-
tiations whenever requested by the Union to meet with it.
It repeatedly asserted its willingness to continue to do so, it
was cooperative, it made counterproposals and concessions,
and equally significant is the fact that it was Respondent
who was anxious to have the representation question speedi-
ly resolved. Corroborative of its desire to resolve the repre-
sentation question is Respondent's initiating the suggestion
that the facilities of the California Conciliation Service be
used for that purpose rather than resorting to the more
formal and less expeditious proceedings of the Board.
It was the Union's inability to obtain the unit employees'
signatures on new authorization cards, when requested by
Sullivan on January 13, that precipitated the Union's sum-
mary action in filing an unfair labor practice charge less
than two weeks later on January 25, thus, in effect, causing
a termination in negotiations at a time when the record
shows no reluctance on Respondent's part to continue.
Section 1 of the Act states, inter alia, that the basic pur-
pose of the Act is to "encourage the practice and procedure
of collective bargaining." In furtherance of this national
policy, the Act requires both employers and unions alike to
bargain collectively. Section 8(a)(5) and 8(b)(3) implement
this objective and make it an unfair labor practice, re-
spectively, for either an employer or a union, under the
conditions prescribed in the Statute, to refuse to bargain
collectively. Section 8(d), in turn, defines the duty to bar-
gain collectively to mean:
... the performance of the mutual obligation of the
employer 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 employment, or the negotiation of an agreement, or
any question arising thereunder, and the execution of
a written contract incorporating any agreement
reached if requested by either party. .. .
This obligation to bargain collectively encompasses a cor-
relative and affirmative duty of equitable dealing. Collec-
tive bargaining is stifled at the source if the party upon
whom the demand is being made is not accorded a reason-
able opportunity to investigate and determine the validity of
the majority representation claim. Under the circumstances
herein, it would not be an unreasonable limitation to hold
that before the Union swore out its unfair labor practice
charge in this case, the Respondent should have been of-
fered a reasonable opportunity to determine the validity of
the Union's representation claim which Respondent repeat-
edly informed the Union that it doubted and therefore not
only demanded proof, but suggested a card check by the
Conciliation Service. Under such circumstances, Respon-
DIMARC BROADCASTING CORP.
dent should not have been placed in the position of being
accused of refusing to bargain when it was the Union's
precipitate filing of the unfair labor practice charge, less
than two weeks after a majority of the unit employees re-
fused to sign union authorization cards, which precluded
Respondent from doing the very thing the General Counsel
now accuses Respondent of, namely, a failure to bargain
within the meaning of Section 8 (a)(5).
Moreover, the posture in which the matter was left at that
time by the Union's failure to pursue its claim before the
California Conciliation Service, that it represented a majori-
ty of the employees, requires a finding that there could be
no refusal to bargain because the Union's hasty filing of its
charge with the Board prevented any further bargaining. To
hold that Respondent refused to bargain under the circum-
stances here present would be, in effect , to ignore the
Union 's conduct in failing to honor Respondent 's reason-
able request to prove its majority , which the law requires it
to do as a prerequisite to its filing a charge .8 The U.S.
Supreme Court so found in N.L.R.B. v. Jones & Laughlin
Steel Corporation, 301 U.S. 1, 44, where it held that Section
9(a) of the Act imposes upon an employer only the duty of
negotiating with the authorized representative of a majority
of his employees. At the time the charge was filed in the case
at bar, Respondent was exercising this privilege , namely, the
right to ascertain whether the Union did represent a majori-
ty of its unit employees. In fact , if the Respondent had
continued to bargain with the Union at a time when it did
not represent a majority of the unit employees , it would
have been guilty of a violation of the Act.
Finally , such a holding , that Respondent has violated
Section 8(a)(5) of the Act, would be inherently inequitable
8 See footnote 5 above
387
in that it would penalize the Respondent for conduct in-
duced by the Union's actions . Moreover, there is an implied
understanding that neither party to collective -bargaining
negotiations will affirmatively prevent performance by the
other and thus prevent effective negotiation as a means of
maintaining what Section 1 of the Act describes as the ".. .
normal flow of commerce. . . ." All these actions and con-
duct detailed above, on the part of the Union, removed the
possibility of effective negotiations and thus precluded the
existence of a situation in which the Respondent's own good
faith could be tested. If it cannot be tested, its absence can
hardly be found .9
It is found, therefore, upon the basis of the entire record
and the applicable law, that the General Counsel has failed
to sustain the burden of proving by a preponderance of the
credible evidence that the Respondent violated Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
The Respondent Company has not engaged in the unfair
labor practices in the complaint, as amended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 10
The complaint is dismissed in its entirety.
9 Times Publishing Company, 72 NLRB 676, 683
10 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
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