KUMU Radio AM/FM

National Labor Relations Board - Board DecisionsAug 28, 1974

213 N.L.R.B. 85 (N.L.R.B. 1974)

KUMU RADIO AM/FM 85 John Hutton Corp ., d/b/a KUMU Radio AM/FM and American Federation of Television and Radio Art- ists, AFL-CIO. Case 37-CA-909 January 7, 1974, counsel for the General Counsel and coun- sel for Respondent timely filed briefs with me. Upon consideration of the briefs of the parties and upon the entire record in this case,' I make the following: August 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS AND PENELLO On April 18, 1974, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering 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 this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, John Hutton Corp., d/b/a KUMU Radio AM/FM, Honolulu, Hawaii, its officers , agents , successors , and assigns , shall take the action set forth in the said recommended Order. 1 While we are rejecting the Administrative Law Judge 's findings in the companion proceeding issued this date (Cases 37-CA-846, 851 , 213 NLRB No. 11) that Respondent unlawfully interrogated and terminated Hite, this does not affect our agreement with the Administrative Law Judge's conclu- sion in this case that Respondent was guilty of a failure to bargain in good faith. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Honolulu, Hawaii, on November 27 and 28, 1973, pursuant to a complaint and notice of hearing issued by the Regional Director of the National Labor Rela- tions Board for Region 20 on October 1, 1973. The com- plaint was initiated by a charge filed on May 15, 1973, by American Federation of Television and Radio Artists, AFL-CIO, hereinafter called the Union, and alleges viola- tions of Section 8(a)(1) and (5) of the National Labor Rela- tions Act, as amended, hereinafter called the Act. On FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent has been at all times material herein a Ha- waii corporation engaged in the operation of a radio broad- casting station in Honolulu , Hawaii , where it maintains its principal office and place of business. During the calendar year immediately preceding the is- suance of the complaint herein, Respondent, in the course and conduct of its business operations, received gross reve- nues in excess of $100,000, and purchased advertising serv- ices from points and places located outside the State of Hawaii in excess of $40,000. Respondent is designated as a National Defense Emer- gency Broadcaster and is part of the National Defense Emergency Broadcast system. Upon these facts, which are not in dispute, I find that at all times material herein , Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Television and Radio Artists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The principal issue in this case is whether Respondent has engaged in surface bargaining and a calculated refusal to meet and bargain collectively in good faith with the Union. B. Pertinent Facts 1. Background facts a. The setting John H. Weiser, Jr., is owner, president, and general man- ager of Respondent. Weiser is in charge of the day to day operations of KUMU, a radio broadcasting station located 1 At the outset of the hearing the General Counsel requested that official notice be taken of the decision of Administrative Law Judge David E. Davis rendered on July 16, 1973 , in John Hutton Corp., dba KUMU Radio AM/FM, Cases 37-CA-846 and 37-CA-85I. In evaluating the issues raised in the instant case , I have done so. During the course of the hearing the parties stipulated that the Respondent requested copies of any appeals memoranda issued by the General Counsel's office in connection with the instant charges, and that the General Counsel refused to comply with Respondent 's request. Respondent did not seek be- fore this trier of fact any remedial action flowing from the General Counsel's refusal. 213 NLRB No. 12 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Honolulu, Hawaii. At times pertinent, KUMU was phys- ically located in a complex of buildings housing the Hawai- ian Village Hotel and approximately 48 other individual merchants and/or enterprises. At material times , Henry Reeves has been employed by the Union as a representative. In this capacity, Reeves has responsibilities relating to organizaing activities of the Union, and devotes a portion of his time to negotiating and administering labor relations agreements . Reeves has nego- tiated collective-bargaining agreements which, at relevant times , were in effect at three radio and one television broad- cast stations in Honolulu. Reeves is the only representative of the Union in Hawaii with responsibility for negotiating collective-bargaining agreements . He is also employed by the IBEW, Local Union 1260 in Hawaii. On April 14, 1972, an election was conducted under the auspices of the Board in the following described unit: All regular full-time and regular part-time announcers and newscasters employed by Radio Station KUMU; excluding office clerical employees, salesmen , confi- dential employees, professional employees, guards and/or watchmen and supervisors as defined in the Act, and all other employees. Eighteen employees comprised the unit and a majority cast ballots in favor of the Union. Thereafter, on April 21, 1972, the Union was certified by the Regional Director as the exclusive collective-bargaining agent of said employees. b. The bargaining demand In late April or early May 1972,3 Reeves placed a tele- phone call to Weiser at Weiser's office. Reeves was unable to reach Weiser personally but he identified himself by name to the individual with whom he spoke. He requested that Weiser be advised that he had been called by an AFTRA representative. Reeves requested Weiser to return his call. He received no return call. Thereafter, on May 12, Reeves met with bargaining unit members comprised of employees of KUMU. A two-mem- ber bargaining committee was selected and Robert Hite and Tom Carroll were designated as the members. A list of bargaining objectives and demands was compiled. Reeves then caused to be prepared and dispatched to Weiser a letter dated May 18, containing a bargaining demand and a re- quest for collective-bargaining meetings. May 24 or May 26 were dates specified. Weiser was requested to respond to this request no later than May 23. The letter was sent certi- fied mail, return receipt requested. In due course, the attached receipt and letter were re- turned to the Union marked "unclaimed." The attached receipt contained no signature . Reeves received no subse- quent response, either written or oral from the Company. Weiser denies having received the letter. Subsequently, by covering letter dated June 5, Reeves forwarded the unclaimed correspondence to Weiser and Z These include KPOI , KKUA, KGH and KHON-TV. 3 All dates herein refer to the calendar year 1972, unless specifically indi- cated otherwise. suggested alternative bargaining dates of June 9 or 13. This letter, like the previous one, was sent registered mail with return receipt requested. The June 5 letter was similarly returned unopened. The return receipt, however, contained a purported signature of an individual who had never been in Respondent's employ and who was unknown to Weiser. Thereafter, on or about June 20, the Union filed charges with the Board alleging violations of Section 8(a)(5) and (1) of the Act. Weiser testified that he first learned of the Union's interest in meeting and negotiating when he re- ceived the certified letter from the Board informing him of the filing of these charges. Subsequently, in late June 1972, Reeves received a tele- phone call from Michael Maguire, a labor relations advisor in the employ of the Hawaii Employers Council. Maguire informed Reeves that he would be handling the KUMU negotiations. A July 11 meeting date was agreed upon. On June 30, the Union withdrew its unfair labor practice charges. Weiser testified without contradiction that mail for all of the individual merchants and tenants housed in the Hawai- ian Village Hotel complex is delivered twice daily to a cam- era shop which serves as a central delivery point for the hotel complex. The Company receives mail at the hotel premises on every day except Sundays and holidays, and as a general rule Weiser personally collects the mail. His obser- vations over a 2-year period has revealed to him that a woman operating the camera shop sorts the mail received, segregating certified and registered mail from the regular mail. The certified and registered mail is taken by the cam- era shop employee to the registration desk at the hotel where it is placed in a slot under the counter. The desk clerk then informs recipients of certified or registered mail of its deliv- ery to the desk. It then becomes the obligation of the recipi- ent to retrive the mail from the hotel desk clerk. c. The termination of Carroll and Hite On September 19, Tom Carroll, a member of the Union bargaining committee, was terminated. Subsequently, Octo- ber 11, Robert Hite, the other employee member of the bargaining committee resigned. On October 10, the Union filed a charge in Case 37-CA-846 alleging Carroll's termi- nation to be unlawful; and on November 28, the Union filed a charge in Case 37-CA-851 alleging Hite's severance to constitute a constructive discharge within the meaning of the Act. A complaint issued on December 8, alleging the unlawful termination of Carroll and Hite, and alleging further, inter alia, unlawful interrogation of employees. In February 1973, a hearing was held before David E. Davis, Adminis- trative Law Judge, who granted the General Counsel's mo- tion to include an allegation that Respondent threatened to shut down its operations and/or to automate its FM opera- tions because the employees had voted for the Union. On July 16, 1973, Judge Davis issued his decision in the consolidated cases. He found the terminations of Carroll and Hite to be unlawful and dismissed the allegations relat- ing to the alleged threats to shut down operations and/or to automate the FM operation should the employees vote for the Union. In his decision, Judge Davis found that the KUMU RADIO AM/FM 87 record "amply" demonstrated that John Weiser, Jr. pos- sessed a strong union animus . Judge Davis further found that the facts of record warranted the imposition of a bar- gaining order. d. The early negotiations (1) Prefatory facts During the period which is outside the Section 10(b) limi- tation period established by the Act, the parties held five collective-bargaining meetings.4 The first meeting tran- spired on July 11, 1972, and subsequent meetings were held on July 20, 21, and September 13 and 19. During the course of the negotiations, Maguire and Weiser participated on behalf of the Company and the Union was represented by Reeves and a bargaining committee comprised of Hite and Carroll.5 Reeves testified credibly that the Union has contractual relations with other broadcast stations in the Honolulu area. The agreements in effect with area radio broadcast stations are uniform in various aspects but vary in certain other respects . Wages are not uniform and there are substantive differences in the no-strike clauses contained herein. Addi- tionally , there are terminology and language differences in the AFTRA free-lance codes contained in the various con- tracts. There are no provisions covering residuals. (2) The substantive events At the outset of the initial , hour-long meeting held on July 11, the Union presented a collective-bargaining proposal fashioned after the basic AFTRA agreement .6 The propos- als were in two parts covering , respectively, cost and non- cost items . The proposal and certain oral additions thereto were briefly considered at the July 11 meeting and thereaf- ter constituted the basis for much of the bargaining table discussion which transpired through September 19. During the course of the July II meeting , Maguire de- 4 The 6-month limitation period commenced November 15, 1972. Conduct transpiring prior to that date is considered for background purposes, and to shed light and give meaning to events within the 10(b) period. 5 At the initial meeting , Colin Sharp, program director of KUMU, was present . He did not attend the subsequent meetings . Throughout the negotia- tions, Maguire and Reeves acted as principal spokesmen for the respective parties, but Weiser participated actively in the meetings , as did , to a lesser degree, the employee-members of the bargaining committee. The Union's proposal contained 15 separate provisions plus a 22-item schedule of wages and working conditions . The proposals were set forth under the following topical designations : recognition and warranty; union shop ; no strike ; minimum terms and conditions ; no deductions ; inspection: shop steward ; grievance procedure : arbitration ; AFTRA free lance codes; cost of living adjustment ; immunity from lawsuit ; national board approval; notice to parties; title of agreement ; term of agreement ; and discipline and discharge . The schedule of wages and conditions section of the Union's proposal was defined as covering staff announcers and was divided into the following topical headings: duties ; salary ; employment guarantee ; supervi- sor compensation ; transcriptions ; hours of work: meal period; notice of change of schedule ; overtime ; minimum call: days off; length of rest period: turnabout ; vacation and holiday pay; sick leave ; medical plan ; dental plan; leave of absence ; transportation and travel expenses ; special events broad- cast ; reemployment after services in armed forces ; termination notice and pay; severance pay; probationary period : new employees ; and outside en- gagements. Glared that he would be the spokesman for the Company but that he would not have final authority to accept or reject proposals in that this authority resided with John Weiser. The July 11 meeting was essentially exploratory in nature. The parties met again on July 20. An item-by-item discus- sion of the Union's noncost proposal was accomplished but cost items were not touched upon.' During the course of the July 20 meeting, Maguire stated the Company's position on each item discussed and indicated the Company's willing- ness to accept the Union's proposals relating to notice to the parties; preamble; and the standard language requiring AFTRA national board approval as a prerequisite to the contract achieving full force and effect. As the meeting progressed, the parties discussed in some detail the no-strike proposal; the union shop provision; the Union's approach to discipline and discharge under the standard 2-week notice of termination provision generally effective in the industry; and exemptions from the AFTRA code requirements relating to residuals for station announc- ers. The discussion at the July 20 meeting relating to the no-strike clause revealed that the Union was seeking the inclusion of a picket line provision patterned after that in the KGH agreement which the Company did not desire to incorporate. In this regard, the Company sought a no-strike clause patterned after that incorporated in the KKUA agreement to which the Union was a party. In explanation of its position, the Company pointed out that its location in a hotel complex housing employees organized and repre- sented by several different unions posed a potential difficul- ty. Maguire stated the Company's desire not to have any labor problems involving other employees "wash over" to KUMU. The Company indicated its oppositon to a union shop provision "in principle." During the meeting-which lasted between 60 and 90 minutes-the Company asserted that it was in the process of drawing up proposals which would be presented at the next meeting. The parties met the following day, July 21, and the Com- pany presented written counterproposals on noncost items.' The counterproposal contained no provisions relating to wages or other cost items. A portion of the meeting time was consumed in an item- by-item discussion of the Company's counterproposal. The Union made oral responses to the Company's counterpro- posal and to the extent that a meeting of the minds was achieved on any item, a written notation was made. Specifi- cally, during the course of the meeting, substantial agree- ment was reached on the recognition clause and accord was achieved on a no-strike and grievance provisions which were based on language contained in the KKUA agree- ment. Certain minor proposals were also adopted. During the discussions no resolution was made of a Union suggest- 7 Early in the negotiations , the Company insisted and the Union ac- quiesced in a determination that noncost items would be deferred until the framework of the agreement could be worked out and progress had been achieved in the consideration of noncost proposals. 8 The written proposals covered the following topics: recognition ; scope; no strike; minimum terms and conditions ; inspection : shop stewards ; griev- ance procedure ; immunity from lawsuit and title of agreement. M DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed amendment to the recognition clause language and to the scope proposal. In depth discussion took place on the shop steward proposal but a meeting of the minds was foreclosed by Company insistence that it be given the right to approve the steward designated by the Union. The parties were un- able to resolve their differences with respect to union shop and cost-of-living provisions and the parties were at odds on the issue of including closed board operators in the bargain- ing unit and applying the AFTRA codes . At a point in the meeting, Reeves requested a list of employees with corre- lated seniority , wages , benefits , and work schedule dates. This was furnished at the September 13 meeting. At the July 21 meeting, the Union was informed that Weiser would be out of the State of Hawaii for several weeks and that his absence was being necessitated by a business trip to Europe . Weiser explained the business reasons re- quiring his absence . Reeves lodged an objection noting that Weiser's absence would result in an interruption of negotia- tions. Weiser observed that the negotiations could continue, however, he averred that Maguire would have no authority to reach a final agreement on any bargaining item . Weiser conveyed the concept that while he was in Europe "boiler- plate" language could be worked out between Reeves and Maguire. Following further consideration of this, the par- ties agreed to meet again upon the Company' s call when Weiser returned. No specific date was set for the next meeting . The business arrangements which necessitated Weiser's absence had been made in early 1972 although the essentially ministerial act of executing the related sales agreement was not accomplished until June 27 .9 Weiser was out of the state from July 23 through Septem- ber 10 . Reeves learned of Weiser 's return to Honolulu and took the initiative in contacting Maguire . Maguire in turn contacted Weiser, who instructed Maguire that, because of the substantial press of business , he would be able to meet with the Union only between the hours of 7 and 8 a.m. A meeting was arranged for September 13. The parties met as scheduled at 7 a.m. on September 13. The meeting lasted approximately 1 hour. At the meeting, Reeves was given a list of employees constituting the current staff of the station.10 Reeves sought to learn whether there had been changes in the staff and the identity of the regular and part-time employees. This gener- ated a discussion of the recognition and coverage section of the Union's proposal, and efforts were made to define part- time and full-time employment. Additonally, the unit place- ment of board operators was further considered. The Com- pany took the position that these employees were essentially technicians who do no voice work and were therefore not 9Contrary to the testimony of John Weiser , Jr., I find that he first broached the subject of his intended absence during the course of the July 21 meeting and not at the July 20 meeting. This conclusion is based upon a consideration of the testimony of Weiser in relation to that of Henry Reeves and Michael Maguire . The findings with respect to the business -related na- ture of Weiser's absence from 'ae State of Hawaii during the period of time in question is based upon a consideration of the relevant portions of the record . I conclude from the testimony of Weiser , Maguire and Reeves that Weiser placed a definite limitation upon the authority of Maguire to negoti- ate final terms in his absence. 10 The record is not definitive in this regard but Maguire credibly testified during the negotiations he complied with Reeves ' July 21 request for this data. includable in a unit comprised of employees reliant upon their vocal talent.I I The Union sought, however, to include the board operators in a unit of all employees employed at the station. The Company was unwilling to accept this posi- tion. As the meeting progressed, discussion turned to union security; residual payments under the AFTRA codes; disci- pline and discharge and the cost-of-living provision. The Union also initiated a discussion of costs and sought unsuc- cessfully to gain an insight into the Company's thinking on costs.12 Matters were not resolved and the parties met again on September 19.13 The September 19 meeting convened at approximately 7:30 a.m. Prior to the beginning of the substantive bargain- ing discussions , Weiser informed Reeves that in his opinion it had become necessary to terminate Tom Carroll, a mem- ber of the bargaining committee . This matter was discussed briefly and Reeves requested Weiser to abstain until negoti- ations had been completed.14 At this meeting, the parties deviated from their prior pat- tern of discussing noncost items . On behalf of the Company, Maguire delineated certain areas of cost which the Compa- ny was willing to consider. Additionally, Maguire defined other areas of cost which the Company found unacceptable because of the "exorbitant" cost factors relating thereto. Consideration was given to dental, group life, temporary disability and sick leave coverage. Additionally, vacations, holidays and severance pay were considered. As the discus- sion developed, the Union revealed that it was adhering to its position on most cost items. Specifically, the Union found unacceptable the Company's proposal that the medi- cal coverage be limited to full-time employees. On the mat- ter of sick leave, the Company stated that, while it was willing to adhere to the state law concerning temporary disability insurance, it was not willing to superimpose an additional sick leave benefit. Further, the Company stated that it was unwilling to embark upon a dental plan, but indicated its flexibility with respect to group life insurance. Maguire asserted that the Company was willing to consider other approaches to group life insurance coverage. As the discussion evolved, the Company indicated that it was looking toward the establishment of weekly salaries generally in line with those in effect under the KKUA col- lective-bargaining agreement. The Union indicated that it would consider the Company's cost proposals but made no counterproposals with respect thereto. 5 11 The unit determination leading to the election and resultant certification appears to have been silent on the status of board operators.ars The record reveals that the employee members of the Union 's bargain- ing committee manifested early and continuing interest in costs . Weiser recalled that at this meeting or the next one Tom Carroll pressed the issue. 13 I do not credit Reeves' testimony to the effect that at the September 13 meeting he requested the Company to submit written cost proposals, but I find that the Union indicated its interest and raised the topic during the course of the meeting. 14 In point of fact, Carroll was terminated on the afternoon of September 19 and , as found, this termination became the subject of an unfair labor practice proceeding before Administrative Law Judge David E. Davis. Judge Davis found Carroll's termination to be unlawful. 15 Reeves' testimony to the effect that he requested the Company to furnish written cost proposals is not credited. Reeves was most ambivalent on this score. KUMU RADIO AM/FM 89 The September 19 meeting ended without agreement on any of the major issues which separated the parties. No specific date was set for a subsequent meeting, but Reeves and Maguire agreed to arrange a meeting to coincide with their respective schedules.16 During the 10-week period which followed, the parties engaged in no further negotiations. Reeves made some tele- phonic effort to arrange meetings but no further meeting transpired until December 7. 17 2. Events within the 10(b) period a. The December 7 meeting The December 7 meeting commenced at approximately 7:30 a.m. The representatives of the parties were present, including Tom Carroll and Robert Hite. At the outset of the meeting, Weiser inquired whether Carroll and Hite had any legal right to be present in that they were no longer employees of the Company. Maguire answered that the Union could have any representative of their choice. Reeves agreed. A portion of the meeting time was devoted to a further discussion of this matter. When the parties turned their attention to substantive negotiations, the coverage and recognition sections of the Union's proposal were considered. These were discussed in relation to their tie-in with the problems of defining full- time and part-time employment. The company took the position that there were presently in the employ of the Com- pany only four or five full-time employees. A significant period of time was spent in discussing the identity of the full-time employees and the application of fringe benefits to part-time employees. The Company did not present any written cost proposals to the Union.18 As the meeting was drawing to an end, Maguire informed the Union that subsequent meetings would be subject to his call because of his involvement in certain other negotiations throughout the State of Hawaii. The Union insisted that future meetings should be arranged as soon as possible in order to complete negotiations. Reeves took the position that the certification year was reaching a close and that no signigicant progress had been made in negotiations. Ma- guire responded that because of the intervening holidays he would be unable to meet until the first of the year. The meeting which lasted approximately 1 hour terminated with an understanding that Reeves and Maguire would arrange further meetings at the earliest possible opportunity. b. The hiatus in negotiations No further meetings were held until April 9. There appear to have been no efforts made by either party to resume 16 The record reveals that at the time in question both Reeves and Maguire were busily engaged in negotiations and other labor relations matters falling within the scope of their respective responsibilities. 17 Henry Reeves testified that he made a "minimum of two calls" in an effort to arrange a collective -bargaining meeting. He was not more specific in this regard. is The evidence of record convinces me that , contrary to the conjecture of Reeves, the Union made no request at this meeting for the Company to furnish formal, written cost proposals. negotiations during the month of December. However, dur- ing the month of January, Reeves placed two telephone calls to Maguire in an effort to contact him for the purpose of arranging a meeting. Maguire did not respond to the calls and there were no written communications between the parties.19 During the month of February, Reeves made no effort to arrange a meeting because the unfair labor practice proceeding was pending before an Administrative Law Judge. After having been once postponed from its initial mid-February date the hearing did, in fact, transpire on February 27. The Company undertook no initiatives to ar- range collective-bargaining meetings during the period of time in question. On March 2, Reeves dispatched a letter to Weiser re- questing negotiations to resume on March 9. He received a letter-response, dated March 6, over the signature of Weiser's secretary. The letter stated, in substance, that Weiser was ill and requested Reeves to contact Maguire. After receiving the letter, Reeves made " several calls" to Maguire and eventually, during the course of an airplane flight with Maguire from the Island of Kauai, was able to arrange a meeting for March 29. However, in the meantime, Maguire and Reeves had been jointly engaged in contract negotiations relating to two other companies, one of which was a broadcast station. Additionally, during the months of January and February, Maguire was busily engaged in contract negotiations relat- ing to other companies, as well as to matters arising out of a state-wide teachers' strike. Maguire credibly testified that Reeves was aware of these commitments and that over the several years of their mutual relationship he and Reeves had been mutually cooperative and understanding regarding the inroads and limitations arising from their respective labor relations and negotiating commitments. Maguire further credibly testified that he had no recollection of being in- formed of any telephonic messages from Reeves concerning the KUMU negotiations, but he testified credibly that he and Reeves were together on several occasions during the months in question and were unable to achieve any "meet- ing of the minds" as to a resumption of the KUMU negotia- tions. The March 29 meeting was cancelled by Maguire. This cancellation was necessitated by Maguire's involvement in the urgencies of the state-wide teachers' strike. On April 3, Reeves dispatched a letter to Weiser by certi- fied mail, with return receipt requested. The return receipt was signed by Weiser. In substance, the letter notified Weis- er that if negotiations were not commenced by Friday, April 6, the Union would deem this to constitute an unlawful refusal to bargain on the part of the Company. On April 6 or 7, Maguire contacted Reeves and a meeting was scheduled for April 9. The meeting transpired in the late morning of April 9. Reeves, Maguire and Weiser were pre- sent. c. The April 9 meeting At the outset of the April 9 meeting, Maguire informed 19 Maguire testified that he was out of the office much of the time during this period. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reeves of the Company's plan to substantially automate its present operations. In this regard, the Union was informed that the Company had purchased new automatic equipment which was to be installed at the station. The Union was informed that the use of this equipment would have likely, substantial effect upon the stations' operations. Reeves was informed that at a future time the Company might find it necessary to form two separate operating entities. Maguire conceded to Reeves that in the latter event the Company had continuing bargaining obligation under the Board's successorship doctrine . In response , Reeves stated , in sub- stance, that he had no intention of interfering with the deci- sions of management but noted that other competitors had endeavored to automate with adverse economic results. Reeves further stated with positive terms that the Company had a continuing obligation to consult with the Union con- ceding the effects of the automation . Reeves also accused the Company of attempting to frustrate the certification. The Company took the position that the automatic equip- ment was soon to be installed and that at least 2-weeks operating experience would be required in order for the Company to reach a judgment concerning the effects of the system upon its present staffing and related operating pro- cedures. A further meeting was scheduled for April 19. d. The April 9 aftermath Following the meeting of April 9, the Company proceed- ed to install the automatic equipment. By the third week of April, the automation plan had been fully implemented and thereafter no further basic changes were made. In the meantime , Reeves and Weiser made themselves available for the scheduled April 19 meeting. The meeting was to be held in Maguire's office but at the appointed hour for the meeting, Reeves' office called informing Maguire that Reeves would be unable to attend the meeting because of other negotiating commitments on the Island of Kauai2° On or about May 11, Reeves received a decertification petition bearing a filing date of May 11. The petition was filed in Case 37-RD-80 by Daniel Thompson, et al., identi- fied as employees of the Company. Annexed to the decerti- fication petition was a declaration bearing eight signatures alleging that the Union was "no longer" the representative of the signatory employees and requesting a Board-cori- ducted election. The signatures accompanying the decertifi- cation petition were affixed on April 30 and May 1. Thereafter, on May 16, Weiser dispatched a letter to Reeves enclosing a copy of the decertification petition. In pertinent part, the letter stated that in light of the petition and "its support by a majority of the employees in the unit" for which the Union had been certified on April 24, 1972, the Company concluded that the Union no longer repre- sented a majority of the employees in the unit. The letter also asserted that the Company could not continue to nego- 20 I am unable to credit the testimony of Reeves to the effect that Maguire took the initiative in cancelling the meeting. The testimony of Maguire and Weiser is convincingly to the contrary and I credit them . Reeves' testimony that he made , he "believed", two phone calls to confirm the meeting and/or that he was informed of the cancellation when he called in advance to confirm the meeting is not credited. tiate with the Union in the face of the petition. In April 1973, ten employees were employed in the unit.for which the Union had been certified. Conclusions Section 8(d) of the Act requires the parties to collective- bargaining negotiations to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. The statute mandates that collective-bargaining negotiations be conducted with an open mind and purpose to reach an agreement consistent with the rights of the parties to the negotiations." This mandate is not met by a parties' willingness to meet at the bargaining table if the discussions are merely sterile and proceed from a preconceived and fixed strategy designed to foreclose meaningful discussion. 2 The duty to bargain col- lectively in good faith does not require agreement to a pro- posal or the making of any concession, but good faith includes the willingness of a party to negotiations to attempt to reach compromise on proposals under discussion, to be available for negotiations at reasonable times and places and to be represented by a negotiator of choice, able to devote adequate time to reasonably prompt and continuous negotiations23 Whether or not the mandate of Section 8(d) is met must be determined from the totality of the negotia- tors' conduct.24 Applying the aforesaid standards to the instant case, I find, in agreement with the General Counsel that Respon- dent failed to bargain in good faith with the Union and thereby violated Section 8(a)(5) and (1) of the Act. The General Counsel correctly contends that background evidence may be assessed in evaluating the presence of ab- sence of good faith during the course of negotiations con- ducted within the Section 10(b) limitations. There is sufficient evidence of record relating to the pre-10(b) period from which it may be concluded that Respondent, through its president and principal officer, John Weiser, Jr., ap- proached its bargaining obligation grudgingly and with no sense of the imperative. I view with skepticism Weiser's claim that he was not aware of the written bargaining de- mands served upon the Company by the Union. Be that as it may, when Respondent came to the bargaining table, it pursued bargaining techniques which, if not calculated to directly delay negotiations , served to slacken the pace of bargaining and retard progress. Initially, Weiser relegated to himself final authority to approve or reject union bar- gaining proposals. This relegation, while perhaps permissi- ble in the abstract, here became an ingredient of bad faith. This is so because 3 months after the certification and dur- 21 N.L. R .B. v. Insurance Agent's International Union, AFL-CIO [Prudential Ins. Co.], 361 U.S. 477 (1959). 22 Id. 23 N.L.R. B. v. American National Insurance Co., 343 U.S. 395; Division 1142, Amalgamated Association of Streets, Electric Railway and Motor Coach Employees of America, AFL-CIO [Continental Bus System, Inc.] v. N.L. R. B., 294 F.2d 264,266 (C.A.D.C., 1968); Insulating Fabricators, Inc., 144 NLRB 1325, enfd . 338 F.2d 1002 (C.A. 2, 1964); Royal Himmel Distilling Company, 195 NLRB 39 (1972); "M" System, Inc., Mobile Home Division, Mid-States Cor4oration, 129 NLRB 527-529 (1960). 2 See N. L. R. B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139-140 (C.A. 1). KUMU RADIO AM/FM 91 ing the course of only the third bargaining meeting between the parties , negotiations were placed in limbo by Weiser's absence from the bargaining scene , and his accompanying refusal to designate a substitute agent with authority to engage in meaningful collective bargaining during his ab- sence . In this regard , the record reveals that the business arrangement which compelled Weiser's absence had been consummated several months prior to the commencement of bargaining , but the intended absence of Weiser was not communicated to the Union until virtually the eve of Weiser's departure from Honolulu to carry out the tasks which this business arrangement necessitated . This belated input of information was coupled with Weiser's pronounce- ment that his appointed representative , Maguire, had no authority, in Weiser's absence , to reach final agreement on fundamental bargaining issues , but was authorized only to deal with "boilerplate" topics. Thus, the progress of bar- gaining on crucial subject matters was significantly delayed during the entirety of Weiser's absence. The business of negotiations is a serious and important one and is entitled to a proper priority . While Weiser was not required under any reasonable standard to have cancelled his previously arranged business trip to Europe, an act of good faith would have included , at the minimum , some reasonable , advance notice to the Union , and the appointment of a bargaining representative who had authority sufficient to contribute to progress in resolving significant bargaining issues . By failing to give the Union reasonable advance notice of his business plans, Weiser deprived the Union of any opportunity to achieve an acceleration of the bargaining pace and/or to articulate an early demand for the appointment of a fully authorized bargaining agent to act for Weiser in his ab- sence. The underlying implication of bad faith which flows from the aforesaid considerations was further extended by Weis- er when he returned to Honolulu but failed to fulfill his promise to approach the Union for the purpose of arranging further bargaining meetings . The press of business upon Weiser following his return is understandable . What is less clear is how any legitimate interest in scheduling or attend- ing to his priority nonbargaining business matters would have been compromised by a timely contact, made with the Union, for the purpose of arranging, at a reasonably proxi- mate time or date , the resumption of negotiations . In keep- ing with past demonstrated reluctance toward the bargaining process , Respondent transferred the burden of achieving a resumption of negotiations to the Union. By so doing , Weiser breached the assurances which he had given to the Union at the termination of the July 21 meeting. Of greater significance herein , he gave further demonstration of the absence of good faith in dealing with the Union. Little that transpired during the course of the five meet- ings held prior to the Section 10(b) period , suggested that Respondent negotiated with an open mind and purpose of reaching an agreement consistent with the respective rights of the parties. It is apparent from a close scrutiny of the bargaining table conduct prior to the December 7 meeting that the Company was willing to come to agreement, if at all, only upon a contract which would serve to materially weaken the Union and to frustrate the purposes and objec- tives of collective representation. Thus, while going through the motions of give and take by agreeing to essentially rudi- mentary and innocuous provisions advanced by the union,25 Respondent rejected the concept of a union shop, demand- ed approval rights over the identity of any shop steward designated under the agreement , refused to incorporate a sick -leave provision , sought to exclude from benefits cover- age all part -time employees ,26 gave only lip service to a fringe-benefit package and achieved Union capitulation on the concept of arbitration and picket-line rights. In the meantime , Respondent agreed to nothing of substance and did not during the course of five bargaining meetings bring to the bargaining table for discussion a complete proposal, including a definitive proposal on wages and fringes. It is not sufficient to say that no formal demand for a wage proposal had been forthcoming . The Union had manifested interests in costs and had endeavored with very modest success to generate bargaining table consideration of the topic . The concept of good -faith bargaining does not re- quire a party to negotiations to advance bargaining propos- als in any particular order or to make concessions, or to abandon bargaining positions advanced and maintained in good faith 27 However , a reasonable issue of good faith is raised where , as here , a party to negotiations fails, as Re- spondent did, throughout the entire course of the five bar- gaining meetings held over a period of approximately three months to draw together and present in one comprehensive package, either orally or in writing , all costs and noncost items which comprise its proposals ; agrees to nothing of substance; and opens no avenue of discussion designed to achieve a trade-off or quid pro quo exchange of desired terms .28 In light of the considerations delineated above , I find that to the point of the meeting of September 19, Respondent had demonstrated a lack of good faith in negotiating with the Union . This finding may stand alone upon evidence adduced before this trier of fact . However, the finding is fortified by the separate findings of Judge Davis in Cases 37-CA-846 and 851 , to the effect that during the period encompassed by the negotiations, Respondent had unlaw- fully affected the job tenure of both employee members of the Union 's bargaining committee , had evidenced animus toward the Union and bad unilaterally and unlawfully mod- ified terms of employment of unit employees. To be certain , by reason of the operation of the Section 10(b) limitations period , the events which preceded Novem- ber 15 , 1972, may supply none of the substantive ballast essential to support a finding of a violation of Section 8(a)(5) of the Act. However, events surrounding the total course of collective bargaining which defined the presence or absence of good faith in a party's approach to the bar- gaining must be taken into consideration in evaluating that party's conduct within the Section 10(b) limitations period 29 The record in this case discloses an approach to a bar- 33 The preamble, standard language requiring AFTRA national board approval of contract terms, and notice to parties provision. 6 The Union had been certified to represent full-time and part-time an- nouncers. 27 See N.LR.B. v. American National Insurance Co., supra. 28 See Sunbeam Plastics Corporation, 144 NLRB 1010, 1013 ( 1963). 29 Local Lodge 1424, International Association of Machinist, AFL-CIO Continued 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining on the part of the Company which was founded upon delay . This approach was carried over into the Section 10(b) period . Thus, the record discloses that the statutory limitations period commenced in the midst of a ten-week interlude during which no meetings between the parties transpired ; and it was featured by a further extensive period of inactivity . Making due allowances for certain time exclu- sions ,30 it remains clear that ample time was available be- tween December 7 and March 29, when a meeting was finally arranged , to have accomodated negotiating meetings between willing parties . None were held. This occurred in the face of Union protest and a continuing initiative on the part of the Union in seeking to schedule a resumption of negotiations . These efforts by Reeves on behalf of the Union, were either ignored or parried by the Company despite telephone calls and personal face-to -face efforts by Reeves . Contrary to Respondent's contention , the record does not warrant the finding that Reeves contributed in any substantial manner to the absence of meetings . What the record does reveal is that Reeves was engaged in other negotiations during the time period in question , but there is no substantial record showing that he would have been unavailable to meet upon short notice , the Company will- ing." Nothing required the Union , seeking to maintain a degree of civility and viability in the negotiations, each time, or at any time , it sought to engage the Company in mean- ingful bargaining -table dialogue to threaten a resort to legal processes. 2 What was required was for the Company to have selected a negotiator who could allot a reasonable segment of his time to the negotiations . This was not done. It is not enough to contend that the negotiator selected by the Company possessed the capabilities and expertise to which the Company was entitled . If the demands upon Maguire's time were such as to have precluded his participa- tion in reasonably frequent meetings, the standard of Sec- tion 8(d) required the selection of a substitute . No substitute was selected and the clear tenor of the record evidenced is to the effect that none was desired because Maguire's busy schedule provided Weiser with a convenient ploy for ac- complishing a delay in the negotiations. When the parties finally met on April 7, the Union was presented with the virtual fait accompli of automation. This, the General Counsel correctly characterized as the "ulti- mate dilatory tactic" . More tellingly , however, what was disclosed was an ultimate act of bad faith emanating from a decision of management to automate the operation of the station in a manner which would substantially alter the composition and character of the bargaining unit . This deci- sion was taken without so much as a hint of intention and was announced during the course of a bargaining session [Bryan Manufacturing Co.] v. N.LR.B., 362 U.S. 411 (1960); Braswell Motor Freight Lines, Inc. 154 NLRB 101, enfd. 370 F.2d 226 (C.A.D.C., 1966); Insulating Fabricators, Inc., supra. 70 The Christman Holiday season; the month of February, when by com- mon consent, as it were , meetings were suspended due the pendency of the unfair labor practice hearing in Cases 37-CA-846, 37-CA-851 ; and time periods when both Maguire and Reeves were occupied in separate or the same negotiations involving other parties, fall into this category. 31 The meeting of April 19 was cancelled at Reeves' request, but this was a singular event, not representative for it transpired after a pale had been placed over the negotiators by the Company's decision to automate. 32 See Insulating Fabricators, Inc., 144 NLRB 1325, 1328 (1%3). held virtually one year and eight collective-bargaining meet- ings after the Union's certification as collective- bargaining representative of the unit of employees affected by the deci- sion . 3 The decision, of course, did not spring full-blown during the course of the April 7 meeting. Advanced plan- ning and prudent business judgment preceded this an- nouncement. A bargaining impasse did not exist. No meaningful opportunity to negotiate the effects was prof- fered to the Union. This opportunity to participate in nego- tiating the effects of the Company's decision was sought by the Union at the April 9 meeting. It was put off and further forebearance demanded. The Union, of course, had the legal right to be consulted concerning the effect of the Company's decision34 This was a right which had matured and could not legally be postponed or placed in abeyance. The Company could not, with legal impunity, and consis- tent with good faith, insist, as it did, that the discussions be put off an additional two weeks to permit it to measure the effects of a decision which for all intents and purposes had been made. 35 I find, upon the basis of the foregoing, that up to the point of the April 9 meeting, the Company had failed to negotiate in good faith with the Union. Finding, therefore, that the Company effectively stifled bargaining progress and com- mitted an unfair labor practice in failing to negotiate as required by Section 8(d) of the Act, the subsequent filing of a decertification petition by the unit employees accorded the Company no refuge from a continuing legal obligation to negotiate with the Union. I find that that obligation existed on April 9 and continued at all relevant times there- after.36 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent and described in section I, above, have a close, intimate and substantial relation to trade, traffic, and com- merce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom 13 As found , the certification issued on April 21, 1972. 34 N.L.R.B. v. Adams Dairy Inc., 350 F.2d 108 (C.A. 8,1%5); N.L.R.B. v. Transmarine Navigation Corporation, 380 F.2d 933 (C.A. 9,1%7); The Renton News Record, etc., 136 NLRB 1294 (1962). 35 Arising as it did out of the normal course of bargaining between the parties, and defining as it does a further element of bad faith on the part of the Company, I find, contrary to my impression during the course of the hearing herein , that the automation decision was a topic subsumed within the general refusal to bargain allegation of the complaint. I find that no specific, separate allegation of refusal to negotiate over the effects of a management decision to automate was essential in perfecting the complaint . The matter was fully litigated during the course of the hearing and the Company had full opjortunity to address itself to the automation matter, and effectively did so. See Groendyke Transport, Inc., 181 NLRB 683, 685 ( 1970), and cases cited at fn. 6 therein . See also Groendyke Transport, Inc., 207 NLRB 381 (1973). KUMU RADIO AM/FM 93 and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent failed to bargain in good faith with the Union as the certified collective-bar- gaining representative of employees in an appropriate unit of Respondent's employees, I shall recommend that Re- spondent, upon request, bargain collectively in good faith with American Federation of Television and Radio Artists, AFL-CIO, as the exclusive representative of all parties in the unit herein found to be appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that an ingredient of Respondent's failure to bargain in good faith was Respondent's resort to dilatory tactics and techniques designed to avoid meaningful bar- gaining, and in order to insure that the employees in the unit herein found appropriate for the purposes of collective bar- gaining will be accorded the statutorily prescribed services of their selected bargaining representative for the period provided by law, I shall recommend that the initial year of certification begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); South Hoover Hospital, 196 NLRB 1077 (1972); cf. Dean Sellers, Inc., 174 NRLB 311 (1968). The filing of a decertification petition by employees who com- prise a segment of the bargaining unit for which the Union has been certified, does not, in the circumstances of this case, constitute an "unusual circumstance" justifying the setting aside of the Board's 1-year certification rule. Cf. Ray Brooks v. N.L.R.B., 348 U.S. 96; cases cited at fn. 36, herein. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Television and Radio Artists, AFL--CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time announcers and newscasters employed by Radio Station KUMU; ex- cluding office clerical employees, salesmen , confidential employees , professional employees , guards and/or watch- men, and supervisors as defined in the Act, and all other employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since April 21, 1972 , American Federation of Television and Radio Artists , AFL-CIO, has been the exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment. 5. By failing and refusing since late April or early May 1972 to bargain collectively with the aforesaid labor organi- zation , the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 37 Respondent, John Hutton Corp., d/b/a KUMU Radio AM/FM, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively, in good faith, with American Federation of Television and Radio Artists, AFL-CIO, as the exclusive representative of its em- ployees in the following appropriate unit: All regular full-time and regular part-time announcers and newscasters employed by Radio Station KUMU; excluding office clerical employees, salesmen, confi- dential employees, professional employees, guards and/or watchmen, and supervisors as defined in the Act, and all other employees, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. (b) Failing and refusing to bargain collectively , in good faith , with the American Federation of Television and Ra- dio Artists, AFL-CIO, by refusing to bargain with said labor organization concerning the effects of its decision to automate a portion or the entirety of its radio broadcasting operation. (c) In any like or related manner interfering with, re- straining , or coercing its employees, in the exercise of the rights of self-organization , to form labor organizations, to join or assist the above -named Union or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request , recognize and bargain collectively with American Federation of Television and Radio Artists, AFL-CIO , as the exclusive representative of all employees in the aforesaid unit, and if an understanding is reached, may embody such understanding in a signed agreement. (b) Post at its radio broadcasting station in Honolulu, Hawaii , and at all other places where notices to employees 37 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall , as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are customarily posted, copies of the Notice attached hereto and marked "Appendix." ss Copies of such notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by a representative of the Respon- dent, be posted by the Respondent and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respon- dent to be sure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director of the National Labor Relations Board for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 38 In the event that the Board 's order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government men, confidential employees, professional employ- ees, guards and/or watchmen, and supervisors as defined in the Act, and all other employees. WE WILL, upon request, bargain with the Union over the effects of any decisions we have made or will make to automate all or a portion of our KUMU radio broadcasting operations. WE WILL NOT in any like or related manner interfere with, restrain. or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a)(3) of the Act. All of our employees are free to become or remain or to refrain from becoming or remaining members of the above- named Union or any other labor organization. WE WILL, upon request, recognize and bargain with American Federation of Television and Radio Artists, AFL-CIO, as the exclusive representative of all em- ployees in the bargaining unit described below with respect to the rate of pay, wages , hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such un- derstanding in a signed agreement . The bargaining unit is: All regular full-time and regular part-time announc- ers and newscasters employed by Radio Station KUMU excluding office clerical employees, sales- Dated By JOHN HUTTON CORP ., d/b/a KUMU RADIO AM/FM (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Sub-Region 37-1311 Kapiolani Boulevard, Suite 308, Honolulu, Hawaii 96814, Telephone 808-546-5100.