KCMO Broadcasting

National Labor Relations Board - Board Decisions

Dec 23, 1963

145 N.L.R.B. 550 (N.L.R.B. 1963)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KCMO Broadcasting and American Federation of Television and
Radio Artists , Kansas City Local . Case No. 17-CA-2158. De-
cember 23, 1963
DECISION AND ORDER
On September 11, 1963, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the Trial Examiner's attached Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 2
i Contrary to the Respondent 's contention , the Trial Examiner correctly refused to rely
on N.L.R.B. v. Winter Garden Citrus Products Cooperative , 260 F. 2d 913 , 917 (CA 5),
with which decision the Board respectfully disagrees . Furthermore , the Winter Garden
Citrus case is clearly distinguishable from the instant case. For the court there held that
the union was not entitled to the information sought because " the so-called bonus pay-
ments were not such . Paid not publicly to employees generally and as part of their
compensation , but privately to a few as a bounty or reward for actions , attitudes or con-
duct beyond the call of duty and having no connection with or relevancy to bargaining,
the failure to disclose this private information to the union was not . . . a refusal to
bargain. In the second place, there were no bargaining sessions going on when the in-
formation was requested , and . . . the request was not made as a part of good faith
bargaining . . . . ' In the instant case, the payments involved are not mere gratuities nor
are they alleged to be . The contracts in question provide for adequate consideration and,
admittedly , are entered into because of the worth of the individuals as employees . Further-
more, the demand for the information was made immediately before the opening of con-
tract negotiations for the legitimate purpose of collective baigaining . Indeed , the Re-
spondenthas not contended otherwise.
2 The Recommended Order in the Trial Examiner 's Decision is hereby amended by sub-
stituting for the first paragraph therein the following paragraph.
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , its officers , agents, successors , and assigns, shall
145 NLRB No. 60.
KCMTO BROADCASTING 551
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 9, 1963, by the American Federation of Television
and Radio Artists, Kansas City Local (hereinafter referred to as the Union), the
compalint herein was issued on May 27, 1963, against KCMO Broadcasting (herein-
after referred to as the Respondent). It alleges, in substance, that the Respondent
violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,
by refusing to give the Union certain information requested . In its answer Re-
spondent denied that it violated the Act by its refusal.
Pursuant to due notice, a hearing was held in this proceeding on July 22, 1963,
in Kansas City, Missouri, before Trial Examiner Stanley Gilbert. At the close of
the hearing oral argument was waived Within the time designated therefor, briefs
were submitted by General Counsel and Respondent.
Upon the entire record herein and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, a corporation and a division of Meredith Broadcasting Company
of Des Moines, Iowa, operates a radio and television station in Kansas City, Missouri
(the only facility involved herein ). In the course and conduct of its operation of
this facility , Respondent has an annual gross revenue in excess of $100,000, of which
in excess of $50 ,000 is revenue from sources outside the State of Missouri. As is
conceded by Respondent, it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICE
There is no dispute as to the facts material to this proceeding. Most of the facts
are admitted by Respondent in its answer or incorporated in the record by stipulation
between the parties.
Subsequent to an election by secret ballot held on October 8, 1960, the Union
was certified by the Board on November 17, 1960, in Case No. 17-RC-3284, as the
exclusive collective-bargaining representative for a unit of Respondent 's employees
found to be appropriate and described as follows:
All announcers and newsmen , excluding office clerical employees , salesmen,
guards, professional employees , supervisory employees as defined in the Act,
and all other employees.
During the period material to this proceeding , there were approximately 28 employees
in said unit . On April 15, 1961 , the Respondent and the Union entered into a
collective-bargaining agreement which by its terms was due to expire August 15, 1963.
In the beginning of February 1963, David A. Schnabel, executive secretary of the
Union, became aware of the fact that the Respondent had entered into individual
contracts with some of the members of the bargaining unit On February 6, 1963,
Schnabel wrote to the Respondent demanding copies of all such contracts. Ralph
L. Cunnyngham, business manager of Respondent, testified that, as of February 6,
1963, Respondent had individual contracts with six or seven members of the
bargaining unit By letter dated February 7, 1963, Cunnyngham replied to the
Union's letter stating that he knew of no contract with an employee in the unit by
which the employee "waived or attempted to waive minimum wages or working
conditions covered by our Agreement." Cunnyngham further stated, "Should you
be aware of any contracts which contain terms and conditions grossly less favorable
than the terms and conditions set forth in our Agreement , then this letter is your
authority to advise such AFTRA employee that said waiver is not effective." o
On February 15, 1963, the Union addressed another letter to Respondent asking
if there were any contracts existing with individual employees and requesting copies
of such contracts Respondent made no reply to this letter.
On March 2, 1963, a meeting was held between Cunnyngham and Schnabel with
their respective attorneys present. During the course of the meeting , Cunnyngham
was asked about the individual contracts Cunnyngham replied that , if any such
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts were in existence, they would provide for not less than the terms of the
collective-bargaining agreement , and that the Union was not entitled to know the
names of the employees who had entered into such contracts or the amounts of the
consideration provided therein.
On April 19 , 1963, the Union sent a letter to each employee in the bargaining
unit requesting that it be informed as to whether he had signed an individual
contract, and, if so, to forward a copy to the Union. Ten employees replied to
these letters. However, no copy of an individual contract was furnished to the
Union . Sometime during the period between April and May 1963, the afore-
mentioned six or seven individual contracts ( which Cunnyngham testified had been
in existence ) were canceled and new individual contracts were executed with only
three of the employees in the unit. By letter dated May 1, 1963, counsel for
Respondent, John H. Kreamer, wrote to Schnabel with respect to the unfair labor
practice charge which had been filed herein. He stated that apparently the charge
was based upon the failure of Respondent to provide the Union with a copy of the
contract entered into by the Respondent with certain of the employees and that he
believed the matter "may be settled by providing you with a copy of such contract."
He enclosed the form of a contract which he stated was presently in effect between
Respondent and "two or three" of the employees in the unit . He failed to supply,
however , the names of the individuals with whom the Respondent had entered into
such a contract and the amount of the consideration Respondent agreed to pay to
each employee for entering into it. In essence , the contract provided that, in
consideration for a certain sum of money per week (not indicated in the form) over
the minimum provided in the collective -bargaining agreement , the employee agreed
that, for a specified period, he would not broadcast for other employers within a
certain radius of Kansas City and would not engage in certain other gainful activities
outside of Respondent 's employ without the prior permission of Respondent or
clearance with it.
The issue in this proceeding is whether or not it was an unfair labor practice for
the Respondent to refuse to give to the Union the names of the individuals with
whom the Respondent has entered into such individual contracts and the amount
of the consideration Respondent agreed to pay to each of said individuals.
Respondent contends that the above-mentioned information sought by the Union
"is not related to issues involved in collective bargaining and Bence , need not be
disclosed ." It concedes that , "under the authorities ," information must be furnished,
if it relates to issues "legitimately involved in collective bargaining."
It argues , in support of this contention , that the amounts paid to the individuals
were not "wages," in that they were not for services rendered to Respondent, but
for promises not to render certain specified services for other employers. (There
is no issue in this proceeding with respect to the validity of the individual contracts
under either the Act or the collective-bargaining agreement.) It is not further
contended that furnishing the information would be unduly burdensome, but it is
contended that the information is confidential, i e., a matter of contract with a few
individuals , and that, if revealed , it would give rise to jealousy among members of the
unit . Respondent cites N.L R B. v. Winter Garden Citrus Products Co-operative, 260
F. 2d 913, 917 (C.A. 5, 1958) in which the court reversed the Board's finding that
a refusal to furnish information with regard to bonuses paid to various employees was
violative of Section 8(a)(5) and (1) of the Act. Since it does not appear that the
Board has adopted the position taken by the court, I cannot rely upon the case
cited.'
Whether or not the term "wages" is appropriate to characterize the additional
consideration provided in the individual contracts, it is clear that the provisions in
said contracts , including the consideration , are part of the terms and conditions of
employment of the employees who entered into such contracts. The names of
such individuals and the consideration paid to each of them would appear to be
information necessary to enable the Union to determine whether it wishes to negotiate
with Respondent with respect to such terms and conditions, i.e., not only the terms
of the restrictive covenants, but also the adequacy of the consideration paid therefor.
The names of the individuals would appear to be necessary to aid the Union in
evaluating its information with respect to the individual contracts. Although, as
of May 1962, there were only three such individuals, at the time the original request
owas made, February 6, 1963, approximately one-fourth of the members of the unit
had entered into such contracts. However, I do not believe that the percentage of
i The court reasoned that the bonus payments were not "to employees generally and as
a part of their compensation , but privately to a few as a bounty or reward for actions,
attitude or conduct beyond the call of duty and having no connection with or relevancy
to bargaining . . . . "
KCMO BROADCASTING 553
the unit affected at any particular time is of any materiality. As the representative
of all the members of the unit, the Union may elect to bargain collectively with
Respondent with respect to terms and conditions of employment affecting all, or
any segment, of the unit.
I am not impressed by Cunnyngham's testimony that furnishing to the Union
all of the details of each individual contract, including the names of the employees
who entered into them and the consideration provided each of them, would lead
to jealousy among the employees were the information to be revealed to them.
At the most, this is merely conjectural, and, in any event, does not constitute, in
my opinion, a factor which should override the Union's need for such information in
order to act intelligently as the bargaining representative of the employees in the
unit.
It is, therefore, concluded that Respondent's refusal to furnish to the Union an
exact copy of each contract Respondent has entered into with individual members
of the unit, including the names of said individuals and the consideration provided
in each contract, constituted a refusal to bargain with the Union in good faith
within the meaning of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The unfair labor practice of Respondent, set forth in section III, above, occurring
in connection with the operations of Respondent as described in section I, above, has
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a)(5) and (1) of
the Act, it will be recommended that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union in good faith by refusing to comply with the Union's requests for a
copy of each contract Respondent has entered into with individual employees in
the unit represented by the Union, including the names of said individuals and the
consideration provided in each contract. It will, therefore, be recommended that
the Respondent, upon request, furnish such information to the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By refusing to comply with the Union's requests for exact copies of contracts
Respondent has entered into with individual employees in the unit represented by
the Union, including the names of said employees and the consideration provided
in each contract, the Respondent has refused to bargain in good faith with the Union
within the meaning of Section 8 (a) (5) and (1) of the Act.
RECOMMENDED 'ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that KCMO Broadcasting, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Union by refusing to furnish to
the Union exact copies of each contract Respondent has entered into with individ-
ual employees within the unit represented by the Union, including the names of
said employees and the consideration provided in each'of said contracts.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the
policies of the Act:
(a) Upon request, furnish to the Union exact copies of contracts Respondent
has entered into with individual employees within the unit represented by the Union,
including the names of said employees and the consideration provided in each
of said contracts.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility in Kansas City, Missouri , copies of the attached notice
marked "Appendix ." 2 Copies of said notice , to be furnished by the Regional Di-
rector for the Seventeenth Region, shall , after being duly signed by the Respondent's
representative , be posted by the Respondent immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that such notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventeenth Region , in writing , within
20 days from the date of receipt of this Decision , what steps the Respondent has
taken to comply herewith .3
2 If this Recommended Order is adopted by the Board , the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board 's Order is enforced by a decree of a United
States Court of Appeals , the words "A Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "A Decision and Order."
2 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director , in writing , within 10 days from the date of this
Order, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT refuse to bargain collectively in good faith with American
Federation of Television and Radio Artists, Kansas City Local, as the exclu-
sive bargaining representative of all our announcers and newsmen , by refusing
to furnish to said Union exact copies of contracts entered into by us with individ-
ual employees within the unit represented by said Union, including the names
of said employees and the consideration provided in each of said contracts.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their rights guaranteed in the Act.
WE WILL furnish to the above-named Union or its agents , upon request, exact
copies of contracts entered into by us with individual employees within the unit
represented by said Union , including the names of said employees and the
consideration provided in each of asid contracts.
KCMO BROADCASTING,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City , Missouri , Telephone No. Balti-
more 1-7000 , Extension 2732, if they have any question concerning this notice or
compliance with its provisions.
International Union of Operating Engineers , Local 513, and its
agent, Lester Straughan and Long Construction Company.
Case No. 14-CR-1025. December 23, 1963
DECISION AND ORDER
On March 27, 1963, Trial Examiner Phil W. Saunders issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
145 NLRB No. 57.