Kelly Broadcasting Co.

National Labor Relations Board - Board Decisions

Jan 29, 1985

273 N.L.R.B. 1632 (N.L.R.B. 1985)

1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelly Broadcasting Company d/b/a KCRA-TV and
International Brotherhood of Electrical Work-
ers, Local Union No. 202, AFL-CIO. Case 20-
CA-17626
29 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 February 1984 Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The judge issued an Erratum on 21 February 1984.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief. On 25 June 1984 the Board issued an Order
remanding the proceeding to the judge for addi-
tional findings and conclusions. On 3 July 1984 the
judge issued the attached supplemental decision.
The Respondent filed exceptions and a supporting
brief.
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge's rulings, findings, and conclusions only to
the extent consistent with this Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
sign and by repudiating a collective-bargaining
agreement with the Union. The Respondent con-
tends it had no obligation to sign or honor the al-
leged agreement because prior to the commence-
ment of bargaining the parties agreed that any
agreement reached would not be effective and no
agreement would be executed until a pending de-
certification petition was resolved. We find merit in
the Respondent's contention.
For many years the Respondent and the Union
have been parties to a series of collective-bargain-
ing agreements. The most recent agreement expired
on 31 December 1981. Negotiations for a successor
agreement continued into 1982 1 when on 11
August a petition to decertify the Union was filed
in Case 20-RD-1759. 2 Negotiations were tempo-
rarily suspended on filing of the petition. About 19
August the Union's attorney Anne Andrews con-
tacted the Respondent's attorney Richard Loftus
Jr. to seek to persuade the Respondent to resume
1 All dates are in 1982 unless noted otherwise
2 On 1 December 1982 a decertification election was held in Case 20-
RD-l759 Because of challenged ballots and unopened mail ballots the
election was not immediately determinative Following the filing of ob-
jections to the conduct of the election and consideration of the determi-
native challenged ballots, the Board issued a decision on 29 August 1984
in KCRA-TV, 271 NLRB 1288 (1984) In its decision the Board remand-
ed the proceeding to the Regional Director with directions to open and
count certain ballots and to either certify the results or conduct a second
election depending on the status of the opened ballots
bargaining in light of the Board's recently issued
decision in RCA Del Caribe, Inc., 262 NLRB 963
(1982). After further discussion with Andrews later
that month, Loftus agreed that negotiations could
resume. In these discussions Andrews and Loftus
specifically addressed the framework for the re-
sumption of negotiations. Thus, the credited testi-
mony of Loftus is that he informed Andrews that
negotiations could resume but, in view of the pend-
ing decertification petition, "the union might not
represent a majority of the employees and we
could not execute a contract in that circumstance,
and that until that impediment was resolved in
some way, we could not execute an agreement."
Loftus testified further that he informed Andrews
that, if an agreement were reached, "it would be
executive [sic] and effective after this impediment,
this problem, this petition, was resolved." It is un-
disputed that in these discussions Andrews agreed
with the representations set forth by Loftus.
On 30 August the parties resumed negotiations.
Within a few weeks substantial agreement was
reached on the remaining bargaining issues, and on
October bargaining unit employees ratified the
agreement as reached. By letter of 28 October the
Union stated to the Respondent that "[i]f we pre-
vail in the decertification election" the Union de-
sired to rebuild the relationship between labor and
management. The Union's next correspondence to
the Respondent was on 27 December when it
noted that numerous employees had yet to acquire
membership in the Union under the union-security
provision of the agreement. On 3 January 1983 the
Respondent declined to comply with the union- se-
curity provision and noted that "a serious question
exists as to whether or not there is an enforceable
contract in place." On 7 January 1983 the Union
insisted that a binding agreement was in effect. On
14 January 1983 the Respondent stated that unless
and until the Union was certified as bargaining rep-
resentative there was no effective contract between
the Union and the Respondent.
Based on the foregoing, the judge concluded that
the discussions between Andrews and Loftus prior
to the resumption of bargaining were nothing more
than an exchange of legal opinion between counsel
concerning current Board law. He found they
failed to reach an agreement that any subsequently
negotiated collective-bargaining agreement would
not be effective and would not be executed until
the pending decertification petition was resolved.
Accordingly, the judge concluded that the parties
reached full and complete agreement on a new
contract and that the Respondent violated the Act
by thereafter refusing to sign it and honor its terms.
Although finding that Andrews and Loftus reached
273 NLRB No. 206
KCRA—TV 1633
no binding agreement affecting the legal obligations
of the parties, the judge also found that the parties
intended a binding agreement to result "as soon as
the decertification petition was resolved, or as soon
as the failure to resolve the decertification petition
was no longer a legal barrier to execution of the
contract, whichever condition occurred first." It
therefore appears that the judge concluded on the
one hand that the parties agreed to no conditions
affecting their legal obligations and at the same
time concluded that they agreed to two alternative
conditions affecting their obligations. As set forth
below, we find that the judge erred in both re-
spects and that the parties in fact agreed to one
"condition"—a circumstance that admittedly had
not arisen at the time of the alleged unfair labor
practices.
In RCA Del Caribe, above, the Board found that
the mere filing of a representation petition by an
outside challenging union would no longer require
or permit an employer to withdraw from bargain-
ing or executing a contract with an incumbent
union. Thereafter, in Dresser Industries, 264 NLRB
1088 (1982), the Board applied this rule to the
filing of a decertification petition. 3 Neither RCA
Del Carthe nor Dresser, however, add! essed itself to
whether an employer and an incumbent union may
establish by mutual agreement their own frame-
work for collective bargaining, including deferral
of the effective and execution date of any agree-
ment reached. We find that this is precisely what
the parties agreed to in this case.
The credited testimony of the Respondent's at-
torney Loftus establishes that, prior to the resump-
tion of bargaining and before issuance of the
Board's decision in Dresser, counsel for the Re-
spondent and counsel for the Union began discus-
sions on an essential predicate for bargaining—the
agreement's effective and execution date. Loftus'
testimony establishes that he and Attorney An-
drews agreed in these discussions that any agree-
ment reached by the parties in bargaining, in the
words of Loftus, would be "effective after this im-
pediment, this problem, this petition, was resolved"
and until that time "we could not execute an agree-
ment." Contrary to the judge, we reject the notion
that this understanding was only an academic dis-
cussion on the current state of Board law and not a
meeting of the minds between representatives of
parties engaged in binding collective bargaining.
Clearly, counsel for both the Respondent and the
Union were discussing arrangements for the re-
sumption of collective bargaining and not the cur-
3 Chairman Dotson and Member Dennis did not participate in RCA
Del Carl& or Dresser and express no view here on whether those cases
were correctly decided
rent state of Board law in the abstract. It is there-
fore appropriate to construe their comments as de-
fining the obligations of their respective clients and
not, as found by the judge, as the mere exchange of
legal opinion. Accordingly, we find that based on
the credited testimony of Loftus the parties agreed
to defer the effective and execution date of any
agreement reached until the pending decertification
petition was resolved. Contrary to the judge, there
is no evidence the parties also agreed that subse-
quent developments in Board law would alter their
agreement regarding the contract's effective and
execution date. Indeed, as noted by the judge,
there is no evidence whatsoever that the parties
even discussed Dresser after its issuance, much less
altered their previously reached agreement regard-
ing the contract's effective and execution date.
We also disagree with the judge that once Dress-
er issued it altered by operation of law the frame-
work for bargaining mutually agreed on by the
parties. Nothing in Dresser precludes parties en-
gaged in collective bargaining from reaching
mutual agreement on whatever effective and execu-
tion date they so desire. If the parties desire, as
here, to defer the agreement's effective and execu-
tion date until resolution of a pending decertifica-
tion petition, we discern no reason in law or policy
why such a mutual agreement should not be given
effect. Thus, this is not a case where an employer
and a union have bargained away statutory rights
in a manner at odds with Federal labor policy. See
NLRB v. Magnavox Co., 415 U.S. 322 (1974). On
the contrary, the credited evidence establishes that
the parties simply designated an effective and exe-
cution date in futuro for their respective contrac-
tual obligations conditioned on resolution of the
pending decertification petition in a manner favor-
able to the Union.4
In short, we find that the general rule in Dresser
that the mere filing of a decertification petition
does not require or permit an employer to with-
draw from bargaining or executing a contract with
an incumbent union does not govern this case.
Rather, a union and an employer may by mutual
agreement defer the effective and execution date of
any contract reached until the decertification peti-
4 The judge found It unlikely that the parties would pursue negotia-
tions only to put the agreement on the "back burner" pending resolution
of the decertification petition We note, however, that the Union did not
communicate with the Respondent between October and late December
regarding the agreement and that during this period it neither prepared
nor asked the Respondent to prepare a written contract for signature
Moreover, apart from resolution of the decertification petition, the agree-
ment reached contained no specific effective date Most significantly, the
credited testimony of Loftus establishes that, irrespective of the judge's
doubt that the parties likely would agree to put the agreement on the
"back burner," this is in fact what they agreed to prior to the resumption
of bargaining
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion is resolved. Because we have determined that
the parties reached such an agreement in this case,
we find that the Respondent did not violate the
Act by refusing to sign and honor a contract
before the pending decertification petition in Case
20-RD-1759 was resolved. We shall therefore dis-
miss the complaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me in San Francisco, Califor-
nia, on September 27 and October 5, 1983, pursuant to a
complaint issued by the Regional Director for Region 20
of the National Labor Relations Board on February 18,
1983, which is based on a charge filed by International
Brotherhood of Electrical Workers, Local Union No.
202, AFL-CIO (the Union) 1 on February 10, 1983. 2 The
complaint alleges that Kelly Broadcasting Company
d/b/a KCRA-TV (Respondent) has engaged in certain
violations of Section 8(a)(1) and (5) and Section 8(d) of
the National Labor Relations Act (the Act).
Issues
The first issue is whether about September 9 Respond-
ent and the Union reached agreement on a collective-
bargaining agreement concerning employees in an appro-
priate unit and, if so, whether Respondent subsequently
refused to execute and repudiated that collective-bargain-
ing agreement in violation of the Act. 3 A second issue,
derived from the first, concerns the question whether at
all times material to the case a pending decertification
petition constitutes a bar to an enforceable collective-bar-
gaining agreement.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it operates a television station
with its pnncipal office located in Sacramento, Califor-
nia. It further admits that during the past year, in the
1 Attorney Anne H Andrews initially filed an appearance on behalf of
the Union After discussions regarding her dual role as attorney of record
and witness at the hearing, she elected to withdraw her appearance
2 All dates herein refer to 1982 unless otherwise indicated
3 While the complaint does not specifically allege a failure to execute,
this element is clearly implied and was discussed and litigated by the par-
ties prior to commencement of the hearing
course and conduct of its business, its gross volume ex-
ceeded $100,000 and that annually it sells goods and
services valued in excess of $50,000 to customers outside
the State of California, and purchases and receives di-
rectly from points outside the State of California goods
and/or services valued in excess of $50,000. According-
ly, it admits and I find that it is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International
Brotherhood of Electrical Workers, Local Union No.
202, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES4
A. The Facts5
For approximately 20 years, Respondent and the
Union have been signatory to a series of collective-bar-
gaining agreements. The last such agreement was effec-
tive from June 19, 1979, through December 31, 1981.
(G.C. Exh. 2.) Prior to this agreement, another was ef-
fective between 1976 and 1979. At least for these two
prior agreements, it was the custom and practice of the
parties for Respondent to prepare the final agreement,
which would then be executed by the parties Prior to
this final act, the parties would negotiate an agreement,
the Union would ratify it, and then representatives of
each side would meet to resolve administrative details
and refine language
Prior to expiration of the last agreement in December
1981, the parties began negotiations which continued into
1982. About June 14, Respondent declared an impasse in
negotiations and implemented certain economic propos-
als contained in the final offer. Between December 31,
1981, and June 14, Respondent had maintained the terms
and conditions of the expired agreement.
After impasse, the parties continued to negotiate The
Union was represented by Peter S. Cunha, business man-
ager of the Union since 1981 and longtime union agent.
Since March, Cunha was advised by Anne Andrews, at-
torney at law, who also played a secondary role in nego-
tiations. Respondent was represented by Attorney Rich-
ard Loftus Jr. as chief spokesman and primary negotia-
tor. Loftus was assisted in negotiations by Don Saraceno,
general manager of Respondent for the past 8 years.
These four persons were the primary witnesses at the
hearing. There were some conflicts between the wit-
nesses for the General Counsel and the witnesses for Re-
spondent However, these discrepancies are not signifi-
cant
About August 11, a decertification petition was filed in
Case 20-RD-1759. 6 It was the opinion of Loftus that,
4 Respondent's unopposed motion to correct the transcript is granted
5 The facts in this case are essentially undisputed My findings of fact
are based in part on a stipulation between the parties
6 On December 1, a representation election was held pursuant to that
petition However, the results of that election were nondeterminative be-
Continued
KCRA-TV 1635
based on then current Board law, Respondent could not
continue to negotiate in light of the decertification peti-
tion, and negotiations were suspended for a brief period.
Sometime in early to mid-August, Andrews talked to
Loftus by telephone and stated that in light of a new
Board decision, RCA Del Caribe, Inc , 262 NLRB 963
(1982), the Respondent could resume negotiations. After
reading and considering the case, Loftus agreed. The
parties met for further negotiations at the law offices of
Loftus on August 30.
Andrews and Cunha brought a person named Chipps
with them to the negotiating session. He was a represent-
ative of AFTRA, a union interested in representing the
"talent" or on-air personalities of the unit, which is more
specifically described below. Andrews knew that Re-
spondent strongly opposed splitting the unit and she ad-
mitted that Chipps' presence was primarily to pressure
Respondent into reaching agreement. Ultimately, at the
request of Saraceno, Chipps and two other union observ-
ers, Ray Denton, a witness at the hearing, and Anita
Fain, union shop steward at Respondent, were excluded
once the negotiating meeting began.
No agreement was reached on August 30. The Union
did not agree to two basic proposals of Respondent
which had been implemented after impasse. The propos-
als concerned a two-tier wage structure by which
present employees would be "grandfathered" at present
wage rates plus later percentage increases and new em-
ployees would be paid at permanent lower rates. An-
other sticking point concerned pay rates and probation-
ary periods for assistant technicians. Saracen° had pre-
pared a handwritten memo which he gave to Andrews
purporting to justify the Respondent's need for its pro-
posals. (G C. Exh. 3) Andrews described this memo as a
"jumping-off point" for the discussion.
After this unsuccessful but promising meeting, Sara-
ceno returned to his office where he had one or more
discussions with Respondent's owner Kelly. Various con-
siderations were discussed. For example, Saraceno had
received information that the Union was planning to
strike about September 19. Respondent desired to avoid
a strike. Further complicating matters was Saraceno's
plan to leave in 5 days for a 3-week vacation in Europe
where he would be essentially unreachable. In light of
these factors which created a sense of urgency, Saraceno
and Kelly, with the approval of Loftus, decided to try a
novel approach to reach agreement.
Cunha was on vacation preparing to leave town with
his family. Saraceno obtained Cunha's unlisted telephone
number and called him. He asked to meet with Cunha
privately, without lawyers or other advisers, to see if
these two could reach agreement Cunha agreed to delay
his departure for vacation and further agreed to meet
with Saraceno on the Tuesday after Labor Day. The
meeting place was the Nut Tree Restaurant, just off the
freeway, and roughly midway between Sacramento and
San Francisco.
cause of challenged ballots and unopened mail ballots Both parties filed
objections to the conduct of the election and the matter is currently
pending before the Board on exceptions filed to the hearing officer's
report
The two men met for about 2 hours at the time and
place stated above. Indeed, agreement was reached on a
merit increase system, the assistant technician dispute,
and other matters of less significance. Cunha told Sara-
ceno that no strike would occur pending developments
Before departing for his vacation, Cunha called Andrews
to convey the results of the meeting and directed her to
meet with Saraceno and Loftus to reduce the Nut Tree
agreement to written form. Cunha then left on his vaca-
tion to return on September 13.
On September 9, Andrews met with Loftus and Sara-
ceno at the law office of Loftus. Andrews was accompa-
nied by Andrew Baker, an associate in her law office
who had recently graduated from law school. Like An-
drews, Baker testified at the hearing The meeting lasted
2-3 hours. Saraceno brought approximately 120 copies of
the Company's proposal to be mailed to employees as
part of the ratification process. (G.C. Exh. 6.) Saraceno
also brought a written explanation of what he and Cunha
had agreed to at the Nut Tree. (G C. Exh. 7.) In addi-
tion, Andrews and Baker prepared a rough draft repre-
senting the Nut Tree agreement. (G.C. Exh. 4) Then
Andrews and Loftus prepared a rough draft of a letter
for Cunha's signature. (G.C. Exh. 5.) This was to be
mailed to employees in the ratification process as part of
a package of materials to be further described below
Both sides agreed that a mail ratification process would
be used. In that respect, it was agreed that a ballot
would be included with the materials mailed to unit
members a short time hence.
At this point there is some conflict in the testimony.
Andrews stated that the pending decertification petition
was discussed . "in what manner the decertification peti-
tion could be made to go away." Andrews went on to
testify that she proposed to Loftus and Saraceno that a
supervisor could admit his involvement in the circulation
of the petition, thus leading to the dismissal of the peti-
tion. Loftus, on the other hand, in response to the ques-
tion of whether the pending decertification petition came
up, replied, "I don't think so." It should be noted that
Loftus had previously testified that after the RCA Del
Carl& case had been called to his attention by Andrews,
he told her that he believed that negotiations could
resume, but that "there was a presumption in my mind,
anyway, that at that point in time, the Union might not
represent a majority of the employees and we could not
execute a contract in that circumstance, and that until
that impediment was resolved in some way, we could
not execute an agreement." According to Loftus, An-
drews agreed with his legal opinion. Andrews did not
deny this testimony. Baker and Saraceno did not testify
on this point. It does appear that initially there was un-
certainty on both sides with respect to how the decertifi-
cation petition would affect negotiations. On September
30, however, another important case, Dresser Industries,
264 NLRB 1088 (1982), was decided by the Board. This
case will be discussed below. There is no evidence the
parties discussed this case and its effect on negotiations.
About September 13, Andrews talked to Cunha, who
had by then returned from his vacation. After some dis-
cussion, Cunha approved both the merit increase plan
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the assistant technician language. Andrews then pre-
pared a final draft of the agreement relative to assistant
technicians (G.C. Exh. 8) and relative to the merit step
salary schedule. (G.C. Exh. 9.) Loftus approved both
final drafts. Cunha also made certain minor changes in
Saraceno's proposal (G.C. Exh. 6).
Sometime between September 22 and 30, the Union
mailed a package of materials to each of its members. As
noted above, this included Saraceno's proposal (G.C.
Exh. 6), the two attachments (G.0 Exhs. 8 and 9), a
ballot, with envelope, to be mailed back to Andrews, and
a letter from Cunha to unit members explaining the
entire procedure. This letter reads as follows (G.C. Exh.
10):
September 22, 1982
Dear IBEW Local 202 Member at KCRA:
The Union has reached a tentative agreement
with your Employer on a new proposal for a three
(3) year collective-bargaining agreement. A copy of
the detailed proposal is enclosed for your careful
consideration and decision.
In order that we achieve a fair expression of the
sentiment of the entire unit to this proposal, the
"referendum" process is being utilized. To this end,
I enclose a mail ballot, a ballot envelope and a self-
addressed envelope for you to return your ballot to
the Union's attorney, Ann Andrews, who has been
instructed to open and count the ballots on Wednes-
day, October 6, 1982 at noon
While this proposal does not resolve all of the
problems which prior Company proposals have
contained, it has substantially reduced or modified
many of them
The Union recommends this offer to the member-
ship, and urges you to ratify it.
The offer contemplates that all current employees
will be "grandfathered" at present wage rates (with
negotiated increases in 1983 and 1984). The term
"grandfathered" means that current employees will
receive their present wage rates (with increases on
January 1, 1983 and 1984) and any future negotiated
increases, without ever being placed on the lower
wage scale agreed upon for new hires after June 15,
1982. Persons hired after June 15, 1982 in the fol-
lowing classifications will be hired at the new wage
rates as set forth in detail in the enclosed offer:
writers, art and film department employees, news-
film, lab technicians, and floorpersons All other
new hires will be eligible to receive merit increases
at the end of the 43-month escalator which would
make them equal to current employees If a new
hire who is eligible to receive a merit step increase
does not receive the increase, this determination
would be subject to the grievance and arbitration
provisions of the collective-bargaining agreement.
The restructuring of certain wage scales and the
creation of other classifications does not originate
with your Employer. The Union has faced these
same proposals in the San Francisco market with
KRON, KPIX, and KTVU and those agreements
now reflect the changes resulting from technology
and economics notwithstanding the fears generated
by cable, home video tape and disc, the upcoming
satellite stations which will reduce the number of
viewers and subsequently, their portion of the reve-
nue generated in the marketplace.
This Agreement, if ratified, has but little more
than two years to run. During this time, I propose
that the Union together with a representative di-
verse committee from the KCRA membership, sit
down with management and attempt to work out
mutually agreeable solutions to all the problems
which is [sic] of concern both to management and
its employees so that the future advancements in
technology and the changes required due to compe-
tition for the viewer can be met with confidence by
both labor and management.
In the interim we have achieved the goal of a
contract which maintains the security and integrity
of the jobs of the membership at KCRA in these
times of economic adversity.
In any event, whether it is your decision to ap-
prove or reject this proposal, please make your de-
cision count by voting.
Sincerely and Fraternally,
/s/ Peter S. Cunha
Business Manager
On October 6, Andrews and Cunha counted the bal-
lots. During the counting, Loftus called twice to see
whether ratification had occurred. Finally, Andrews
called him back to report that ratification had occurred
by a large margin.
On October 13, Cunha sent a 2-1/2-page letter to unit
members relative to what lay ahead in the Union's rela-
tionship with Respondent. (G C. Exh. 11.) On October
28, Cunha sent a copy of his October 13 letter to Sara-
ceno with a cover letter which reads as follows (G.C.
Exh. 12):
Dear Don:
Enclosed herewith is a copy of a letter sent to each
member of the KCRA bargaining unit. I am sure
you concur with the objectives set forth in the
letter.
If we prevail in the decertification election, I want
to commence without delay the efforts needed by
both labor and management to rebuild the relation-
ship required if we are to achieve the goals we mu-
tually seek of trust and cooperation.
Kindest personal regards and best wishes.
Sincerely yours,
/s/ Peter S. Cunha
Business Manager
On December 27, Cunha wrote another letter to Sara-
ceno which reads as follows (G.0 Exh. 13):
KCRA-TV 1637
Dear Mr. Saraceno:
The following employees have been employed by
KCRA in excess of thirty (30) days and have failed
to acquire membership in the Union pursuant to the
provisions of Section 1.10 of our agreement.
Richard Beavers Thom Marchillo
James Finnerty Steve Patterson
Randy Mann*

(Harry Martin)
Valdice Nicholas Janice Young
Gilbert Rios Chet Brown
(delinquent
member)

Albert Lundeen
Harry Uhlenberg Ronald Middlekauff
Kathy Wilbur Margaret Pelle y
Carol Bland

Jeff Strailey
Mark Hikoyada Vernado Watts
*[Not in original, indicates name was lined out ]
All of the above employees were listed on the
Excelsior list by KCRA.
The Company has failed to notify the Union of
their employment pursuant to the provisions of Sec-
tion 1.10 of the agreement.
We have sent each of the above listed employees
membership application forms along with the re-
quest they remit with the completed application, the
initiation fee of $50 00.
If there is no response within a seven (7) day
period, we will have no alternative but to request
their discharge.
Until our agreement is declared void by the
NLRB, we expect KCRA will honor all of its pro-
visions.
Additionally, Gilbert Rios failed to maintain his
membership in good standing and has ignored no-
tices from this office of his delinquencies. Accord-
ingly, we request his removal from any and all
work covered by our agreement until such time as
he has paid his dues to date. You will note that I
delayed sending this letter so that it would not
result in anyone losing their job before Christmas.
I solicit your cooperation in assisting us in recti-
fying the membership problem, which to a large
extent results from the station's failure to observe
the requirement of the agreement relative to new
hires.
Very truly yours,
/s/ Peter S. Cunha
Business Manager
On January 3, 1983, Saraceno wrote back to Cunha as
follows (G.0 Exh. 14):
Dear Pete:
Your letter of December 27th came as quite a
surprise to me for several reasons. First of all, some
of the employees on the list have told me that they
have been paying their dues and should be members
in good standing of Local 202. Secondly, there are
other employees whose names do not appear on the
list who are members of the bargaining unit who
have not become members of Local 202 and have
not paid union dues. Finally, most of the employees
whose names appeared in your letter have been em-
ployed for several months. I do not understand why
all of a sudden, out of the blue, you have now de-
cided to make the demand you made in your letter.
I have contacted our lawyers and was advised of
two things:
1. A serious question exists as to whether or not
there is a contract in place which requires KCRA-
TV to terminate employees for failing to pay union
dues.
2. Given the fact that the status of Local 202 as
the representative for a majority of the members of
the bargaining unit remains an open question be-
cause of the pending election, it may very well be
unlawful for us to take action against employees
who, presumably, have not supported the Union.
Although the lawyers told me that the NLRB
might find this request or our compliance with it an
unfair labor practice, I am confident you did not
intend by your letter to retaliate against people who
failed to support Local 202 in the recent election.
Additionally, they indicated any action like this
may jeopardize any future election should the
recent one be set aside. Accordingly, I asked our
lawyers to defer the filing of charges with the Na-
tional Labor Relations Board.
I suggest you contact your lawyers and discuss
the situation before you proceed further. In the
meantime, I am going to hold off taking any formal
action in response to your letter.
Sincerely,
/s/ Don Saraceno
General Manager
KCRA-TV
P.S. I have sent a copy of this letter to the employ-
ees involved so they will understand where we
stand in this situation.
There followed a flurry of other letters between the
parties which need not be recited in full. On January 5,
Cunha wrote a letter to Saraceno complaining about a
possible violation of the contract and attempting to
invoke the grievance and arbitration clause. (G.C. Exh.
15.) Next, Cunha replied to Saraceno's letter of January
3, 1983, by expressing surprise and anguish at manage-
ment's position. Cunha insisted that the collective-bar-
gaining agreement was in full force and effect and con-
cluded by modifying the list of allegedly delinquent em-
ployees submitted in his December 27 letter. (G.C. Exh.
16.) The final letter in evidence was sent from Loftus to
Cunha on January 14, 1983. It is helpful to have this
letter recited (G.C. Exh. 17):
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Re: Our Client KCRA-TV
Dear Mr. Cunha:
Our client has asked this office to respond to
your letters dated January 5 and 7, 1983. Your let-
ters evidence a misunderstanding on your part as to
the legal obligations imposed on our client insofar
as grievances and union security are concerned. As
will be demonstrated below, our client is under no
obligation to discharge employees for their failure
to obtain and/or maintain membership in your labor
organization. Additionally, our client is under no
obligation to participate in any form of grievance/-
arbitration procedure.
It is an elementary proposition of law that an em-
ployer's obligation to honor the union security
clause in a collective bargaining agreement ends
upon expiration of the contract. Marine and Ship
Building Workers v. NLRB (Bethelehem Steel Co.),
53 LRRM 2878 (3rd Cir 1963). Additionally, as
was recognized by your attorney in her letter to our
client's employees dated August 10, 1982, absent a
signed contract, the Union cannot enforce any of
the provisions of the agreement through the griev-
ance and arbitration mechanism.
That letter implicitly acknowledged that as of
June 14, 1982, the previous collective bargaining
agreement between Local 202 and KCRA-TV ex-
pired. Therefore, any agreement upon which you
base your contention that our client must honor a
Union Security Clause and/or grievance procedure,
must have arisen subsequent to August 10, 1982. It
is our position that the subsequent negotiations and
tentative agreement reached between Local 202 and
our client's bargaining team did not create an en-
forceable contract. The parties specifically under-
stood that the existence of a contract was condi-
tioned upon Local 202 prevailing in the representa-
tion election which took place on December 1,
1982.
That tentative agreement was permitted by a
change in the law enunciated by the National Labor
Relations Board in RCA Del Caribe, Inc., 262
N.L.R.B. No. 116 (1982). Your attention is directed
to the following language found in that case: "If the
incumbent prevails in the election held, any con-
tract executed with the incumbent will be valid and
binding."
Unless and until Local 202 is certified as the rep-
resentative of a majority of the employees in the
bargaining unit, there is no binding contract be-
tween Local 202 and KCRA-TV. Accordingly, our
client will not comply with your demand that
KCRA-TV fire several of its employees.
During the course of the recent representation
proceedings, our client has made every effort to
maintain the status quo and do nothing to disturb
the "laboratory conditions" which should surround
a representation election We are extremely disap-
pointed by your apparent unwillingness to do the
same. The timing of your demand that our client
fire some thirty-five employees in the bargaining
unit is suspect to say the least. It appears to our
client that you have taken this step in order to
punish those employees in the bargaining unit who
had the audacity to vote against Local 202 in the
recent election. We submit that your conduct in this
regard amounts to a violation of Sections 8(b)(1)(A)
and 8(b)(2) of the National Labor Relations Act.
Should it persist, we will be compelled to file an
unfair labor practice charge with the National
Labor Relations Board.
Sincerely,
/s/ RICHARD J. LOFTUS, JR.
cc- Ann H. Andrews
B. Analysis and Conclusions
I begin by reviewing certain basic principles of Board
law. In Pacific Coast Metal Trades Council (Foss Launch),
260 NLRB 1117 at 1119 (1982), Administrative Law
Judge Pollack, in a Board-approved decision, stated the
following:
Section 8(d) of the Act explicitly requires the
execution of a written contract incorporating any
agreement reached if requested by either party. H.J
Heinz Company v. 1V.L.R.B., 311 U.S 514, 523
(1941); Retail Clerks International Association and
Retail Store Employees Local 322, Jack Gray and
Glen Conyers, their agents (Roswil, Inc., d/b/a
Ramsey Supermarkets), 226 NLRB 80, 87 (1976).
However, neither party is required to sign a bar-
gaining agreement containing terms not previously
agreed upon. The General Counsel must show not
only that an agreement was reached, but that the
document which Respondents have refused to exe-
cute accurately reflected that contract. Oil, Chemi-
cal and Atomic Workers International Union and its
Local 7-507 (Capital Packaging Company), 212
NLRB 98, 108 (1974)
Putting aside the decertification petition issue for the
moment, there is little question that the parties reached
agreement on September 9 and that said agreement was
ratified by the Union on October 6. Witness this testimo-
ny from Saraceno:
Q. (By Judge Stevenson) In other words, as you
sit there now but for this decertification petition and
what you say your lawyer told you about its effect,
you would then agree that there was a contract that
was ratified, but for that single factor, is that true?
A. I would have lived with those terms if we
could get by the decertification.
Q. To put it in slightly different wording, the
only thing keeping you from an agreement with the
Union is the effect of the decertification petition?
A. You've got that precisely correct.
Q. . . is it further fair statement that you don't
believe there is any difference of opinion with the
Union as to what was agreed to and ratified by the
membership? Is that true?
KCRA-TV 1639
A No, I don't think there is any major hangup,
except we've still got to get down and put this
thing in writing.
Even Loftus, though more cautious in his testimony,
refers to an "agreement in principle" which would devel-
op into a collective-bargaining agreement only on resolu-
tion of the decertification petition.
Curiously, Respondent contends in its brief (pp. 5-7),
in partial disagreement with its own witnesses quoted
above, that a full and complete agreement was never
reached. More specifically, Respondent claims that no ef-
fective date nor discipline and discharge procedure was
agreed upon, and that the parties never met to rewrite
the entire document. Elsewhere in its brief, Respondent
also claims that the Union never asked Respondent to
execute a written contract (pp. 4-5), and that because the
contract was never executed it is not enforceable (pp.
15-16). These claims share a common feature in that
they are utterly lacking in merit and border on the frivo-
lous.
First, it was the custom and practice of the parties to
have Respondent prepare the final document for execu-
tion. This process between ratification and execution can
take up to 6 months. Here, the effective date was Octo-
ber 6, the date of ratification. It is true that the effective
date was never explicitly stated because Respondent
never prepared the document. Evidently the Union be-
lieved that the final document was in the process of
being prepared pursuant to the usual custom and prac-
tice. If Respondent unlawfully refused to prepare the
document, then it would have been futile for the Union
to request execution. Surely Respondent would not sign
an agreement that it failed to reduce to writing. 7 Ac-
cordingly, the Union's failure to request execution can
hardly be a defense since Respondent refused to prepare
the document in the first place. Surely Respondent
cannot exploit its own misconduct. Finally, I do not
agree that the final agreement lacked a discharge and
discipline provision. All parties agree that the prior con-
tract was part of the new agreement to the extent it was
not changed by agreement of the parties Article VI, sec-
tion 6.1, clearly sets forth the discharge and discipline
agreement of the parties.8
7 In Trojan Steel Corp, 222 NLRB 478, 483 (1976), enfd 551 F 2d 308
(4th Or 1977), respondent unlawfully refused to execute a labor agree-
ment The fact that the agreement submitted by the union had an incor-
rect effective date and had omitted entirely a clause proposed by re-
spondent reserving the right to pay wage rates above the minimum scale
did not constitute a defense
8 Art VI "Discharge—Rehiring," sec 6 I "Discharge," reads as follows
(0 C Exh 2)
Section 61 DISCHARGE Employees may be discharged for In-
competence or reduction in staff, upon two (2) weeks' notice or pay
in lieu thereof The Union shall have the right to initiate grievance
procedure under Article III of this Agreement to determine the
question of competence
(a) Employees may be discharged without notice for gross insub-
ordination, for being under the influence of liquor or nonprescribed
drugs while on duty, and for refusal to properly perform regularly
assigned duties Employees may also be discharged for repeated fail-
ure to meet financial obligations, far causing embarrassment to the
Employer while on duty, or for just cause (This section shall not
conflict with Section 1 10)
I turn next to the heart of this case to determine
whether a pending decertification petition constitutes a
bar to an enforceable collective-bargaining agreement. In
this respect, I begin with the case of RCA Del Canbe,
Inc., 262 NLRB 963 (1982). Relying on that case, all par-
ties agreed that the suspension of bargaining caused by
the filing of the decertification petition should cease, and
that the parties should resume their negotiations. As
noted above, the parties did resume negotiations and ulti-
mately reached agreement. On September 30, the Board
decided a second relevant case, Dresser Industries, 264
NLRB 1088 (1982). There, the Board held (at 1089, em-
phasis added):
A rule permitting an employer to withdraw from
bargaining solely because a decertification petition
has been filed does not give due weight to the in-
cumbent union's continuing presumption of majority
status and is not the best way to achieve employer
neutrality in the election. For these reasons, we
hold that the mere filing of a decertification petition
will no longer require or permit an employer to with-
draw from bargaining or executing a contract with an
incumbent union.9
Notwithstanding what appears to me to be a clear
statement of labor law some 6 days before the Union
ratified the contract, Respondent nevertheless contends
that no meeting of the minds occurred and, therefore,
there was no contract These arguments must be reject-
ed.
Before the Board imposes an obligation on the parties
to sign a collective-bargaining agreement, there must be
a meeting of the minds." In this case, I find that a meet-
ing of the minds did occur. To support this conclusion, I
turn to the record Saraceno wanted agreement before he
left on vacation and before the Union took a strike vote.
He called Cunha at home and persuaded the latter to
defer his vacation until the two met at the Nut Tree Res-
taurant. After preliminary agreement on the issues which
had led to impasse, Cunha agreed to defer the strike
vote, and no strike ever occurred. On September 9, the
parties met and agreed to final details. I find that the par-
ties fully knew and understood they were entering into a
binding agreement."
Respondent also provided some of the material to be
sent to employees in the ratification process, agreed to
the ratification by mail, and on October 6 expressed keen
interest in the results of the vote These are all factors in
favor of a binding agreement. Could it reasonably be said
that the parties went through all of this just to put the
9 It should be noted in the instant case that there is no issue regarding
Respondent's good-faith doubt as to the Union's continuing majority
status based on objective evidence Rather, the Employer here bases his
refusal to execute the contract solely on the pending decertification peti-
tion
'° Lincoln Hills Nursing Home, 257 NLRB 1145, 1153 (1981) In that
case, the Board affirmed an administrative law judge's finding that no
meeting of the minds had occurred The union had ratified terms differ-
ent from those offered by the employer
" See Mount Airy Psychiatric Center, 230 NLRB 668, 671 (1977), Mid-
valley Steel Fabricators, 243 NLRB 516 (1979), enfd as modified 621 F 2d
49 (2d Cir 1980)
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement on the "back burner" where it would have re-
mained until this very day pending a decision by the
Board. I think not. 12 Finally, and perhaps most persua-
sively, Respondent's stated position is so manifestly con-
trary to clearly stated Board law as expressed in Dresser
Industries, supra, that Respondent's defense simply
cannot be credited.
Respondent further argues in its brief (p. 18) that as-
suming for the purposes of argument an agreement was
reached, Respondent has merely declined to implement
it. While recognizing that the Board requires a postde-
certification agreement to be executed, Respondent sug-
gests that such an agreement need not be implemented
under Board law. This argument is too absurd to be
treated in any but the most summary fashion. I reject it
as lacking in merit.
To the extent that Respondent had an inarticulated
concern about the effect of the pending decertification
petition on the agreement reached with the Union, said
unexpressed and unclear reservation is not sufficient to
preclude a binding agreement."
In light of the above, I find that about September 9
Respondent and the Union reached agreement, that Re-
spondent subsequently refused to execute the agreement,
and that on January 3, 1983, Respondent repudiated the
agreement." I further find that in committing the above
acts Respondent violated Section 8(a)(1) and (5) of the
Act as alleged.
In conclusion, I consider Respondent's contention that,
notwithstanding my findings of labor law violations
above, it was under no duty to terminate the employees
who ceased paying dues in violation of the union-securi-
ty agreement. First, I reject Respondent's claim that the
only security agreement in effect was oral. Section 1.10
of the prior agreement (G.C. Exh. 2) contains a written
union-security provision." Since this section was not
12 Cf Apache Powder Co, 223 NLRB 191 (1976)
13 Cf Servis Equipment Co, 198 NLRB 266, 268 (1972)
14 See NLRB v Marine Optical, 671 F 2d 11 (1st Cir 1982)
11 This section reads as follows
Onion Shop
(a) The Employer agrees that membership in the Union on or after
the thirty-first (31st) day following the beginning of employment or
the effective date of this Agreement, whichever is later, shall be a
condition of employment, provided the Employer shall not be obli-
gated hereunder to discharge or discnminate against any employee
for non-membership in the Union
(1) If he has a reasonable grounds for believing that such mem-
bership was not available to the Employee on the same terms and
conditions generally applicable to other members, or
(2) If he has reasonable grounds for believing that membership
was denied or terminated for reasons other than the failure of the
Employee to tender the penodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining member-
ship
(b) When new or additional Employees are needed, the Employer
shall notify the Union of the number and classifications of Employ-
ees needed and the Union shall have a reasonable opportunity to
refer applicants for the vacancies to be filled
(c) The Employer agrees, within seven (7) days of the date of
hiring, to notify the Union of the name or names of all Employees
hired
(d) In applying the above provisions, it is agreed that the parties
will adhere to existing statutes which make preference or discrimina-
tion in hiring based upon membership or non-membership in the
Union an unfair labor practice
modified or deleted by the new agreement, I find that it
was the intent of the parties that it become part of the
new agreement.
Notwithstanding the above, I make no finding on
whether Respondent violated the Act in refusing to dis-
charge the employees listed in the union letters of De-
cember 27 and January 7, 1983. That issue was not raised
by the complaint nor was it litigated." At pages 13-14
of its brief, Respondent needlessly raised this issue, while
the General Counsel properly does not.
CONCLUSIONS OF LAW
1. Kelly Broadcasting Company d/b/a KCRA-TV is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The Union, International Brotherhood of Electrical
Workers, Local Union No. 202, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective-bargaining
within the meaning of Section 9(b) of the Act:
All employees employed in its engineering, art,
news, and programming departments at its Sacra-
mento, Stockton, Modesto and San Francisco, Cali-
fornia locations, excluding office clerical employees,
salesmen, traffic department employees, guards and
supervisors as defined in the Act.
4. At all times material herein, the Union has been the
duly designated exclusive representative of the employ-
ees in the aforesaid appropriate unit.
5. About September 9 Respondent and the Union
reached agreement on a collective-bargaining agreement,
and the agreement was ratified by the Union on October
6.
6. By refusing to sign the collective-bargaining agree-
ment, the terms of which were otherwise agreed upon,
because of a pending decertification petition and by repu-
diating the agreement for the same reason, Respondent
has refused to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action as set forth below designed to effectu-
ate the policies of the Act
[Recommended Order omitted from publication.]
18 I further note that before a union can require an employer to dis-
charge employees for failure to comply with a valid union-security
clause, the union has certain duties and obligations due and owing toward
the affected employees These include appropriate notice of the amount
in arrears, an adequate opportunity to make payment, and an explanation
of the methods used in computing the amount due See Metaltronics Hos-
pital Employees Local 955 (Pharmaseal Laboratories), 254 NLRB 601
(1981) No credible evidence was presented in this case to show the
Union satisfied its duty
KCRA-TV 1641
SUPPLEMENTAL DECISION
MICHAEL D. STEVENSON, Administrative Law Judge
On June 25, 1984, the Board issued an unpublished
"Order Remanding Proceeding to Administrative Law
Judge." More specifically, the Board directed me to re-
solve whether a "critical portion" of the testimony of a
certain witness is credible. I turn to comply with the
Board's Order.
Attorney Richard Loftus testified for Respondent at
the hearing that subsequent to his reading of the Board's
newly issued decision in RCA Del Caribe, Inc , 262
NLRB 963 (1982), he had a conversation with Union At-
torney Anne Andrews and stated, in pertinent part, that
based on his understanding of RCA Del Caribe he be-
lieved that negotiations on a new labor agreement could
resume. However, he further believed and stated that the
parties could not execute an agreement until a pending
decertification petition was resolved. He further testified
that Andrews agreed with this legal opinion. As I noted
in the opinion, Andrews did not deny the conversation. I
credit this testimony of Loftus in toto.
To the extent that the Board's review of my decision
will turn on this credibility finding, then so be it. How-
ever, I reiterate my original decision and make certain
additional findings, analyses, and conclusions. I find that
there was never any agreement between the parties that
a collective-bargaining agreement could not be executed
and would not be effective until a pending decertification
petition was resolved. Rather, a lawyer for Respondent,
Loftus, gave a legal opinion to a lawyer for the Union,
Andrews, based on current Board law, and Andrews
agreed with the legal opinion based on current Board
law. The difference is greater than mere semantics.
In my thinking there is a distance of 2-1/2 country
miles between an unconditional agreement that no effec-
tive contract will result until the decertification is re-
solved and a lawyer's legal opinion, with which his op-
ponent agrees, that no effective contract will or can
result until the decertification is resolved
In the former, the agreement remains a binding agree-
ment In the latter, a number of possibilities might occur
The first, which need not be resolved here, is that both
lawyers may have been wrong as a matter of law. The
second is that there is a change in the legal precedent on
which the original legal opinion was based. That is ex-
actly what happened here, as I attempted to make clear
in my original decision. That is, on September 30, 1982,
the Board decided Dresser Industries, 264 NLRB 1088
(1982). Based on the actions of union and employer rep-
resentatives subsequent to the Loftus conversation cred-
ited above, I find that the parties intended a binding
agreement to result as soon as the decertification petition
was resolved or as soon as the failure to resolve the de-
certification petition was no longer a legal barrier to exe-
cution of the contract, whichever condition occurred
first. I must assume both attorneys were aware of the
Dresser case prior to the union ratification on October 6,
although there is no direct evidence to support that con-
clusion. However, whether one or both were aware or
not is irrelevant to this decision. By operation of law, the
Dresser case removed the legal impediment that both at-
torneys had agreed in August would preclude execution
of a collective-bargaining agreement.2
In sum, I have credited Loftus, but find in the final
analysis of this case that his credited testimony does not
affect the final result. Since my final decision does not
change, I will incorporate by reference all additional
findings of fact, conclusions of law, and the recommend-
ed Order into this supplemental decision.

' I Interpret the wording of the Board's Order as not only permitting, 2 Dresser was fully applicable to the facts of the instant case retroac-

but requiring, this explication in light of my new credibility resolution tively See Documentation, Inc , 263 NLRB 706 fn 3 (1982)