Pioneer Broadcasting Co.

National Labor Relations Board - Board Decisions

Apr 9, 1973

202 N.L.R.B. 1005 (N.L.R.B. 1973)

PIONEER BROADCASTING CO. 1005
Pioneer Broadcasting Company and American Federa-
tion of Television and Radio Artists , AFL-CIO.
Case 23-CA-4513
April 9, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 19, 1973, Administrative Law Judge
Marion C . Ladwig issued the attached Decision in
this proceeding . Thereafter , the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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 , as modified
herein."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the . National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent
Pioneer Broadcasting Company, Austin, Texas, its
officers , agents, successors , and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order as so modified.
1.' Delete paragraph 1(a) of the Administrative
Law Judge's Order and substitute the following:
"(a) Refusing to bargain collectively in good faith
with American Federation of Television and Radio
Artists, AFL-CIO, and its Dallas-Fort Worth local
by refusing to sign the August 7, 1972, 2-year
agreement which it had reached with them, or by
failing or refusing to bargain with them concerning
issues which have arisen , or which may arise, under
the terms of the agreement."
2. Insert the words, "and its Dallas-Fort Worth
local" immediately following "AFTRA" in para-
graph 2(b) of the Administrative Law Judge's Order.
3. Substitute the attached notice for that of the
Administrative Law Judge. .
I The General Counsel has excepted to the Administrative Law Judge's
finding that the Respondent did not violate Sec. 8 (a)(5) by refusing to
bargain with AFTRA's Dallas- Fort Worth local . We find merit to this
exception and shall amend the Administrative Law Judge's recommended
Order accordingly . Contrary to the Administrative Law Judge , we conclude
that AFTRA was not a substitute for the local , but was a third party whose
addition was consented to by all concerned and that it thereafter acted on
its own behalf and as an agent of the local.
Although we agree with the Administrative Law Judge that the record
amply supports the finding that the Respondent was not lawfully motivated
in its refusal to sign its own proposed agreement, we additionally note that
in the circumstances of this proceeding its refusal to sign violated Section
8(a)(5) regardless of motivation . E.g., N. L. R. B. v. M & MOldrmobile, Inc.,
377 F.2d 712 (C.A. 2, 1967), enfg . 156 NLRB 903. .
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after trial, that we violated Federal law by refusing
on August 7, 1972, to sign a collective-bargaining
agreement we had reached with AFTRA and its
Dallas-Fort Worth local:
WE WILL forthwith sign the August 7, 1972,
agreement we reached with American Federation
of Television and Radio Artists, AFL-CIO, and
its Dallas-Forth Worth local, and will give
retroactive effect to the terms of the agreement
from that effective date.
WE WILL make whole any losses our employees
may have suffered from the delay in signing the
agreement, plus 6-percent interest.
WE WILL bargain in good faith with AFTRA
and its Dallas-Fort Worth local as the exclusive
representatives of our employees covered by the
agreement.
PIONEER BROADCASTING
COMPANY
(Employer)
Dated By .
(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 compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone 7137226-
4296.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was tried at Austin, Texas, on November 21, 1972.1
All dates are in 1972 unless otherwise stated.
202 NLRB No. 134
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The charge .was filed by AFTRA on September 15, and the
complaint was issued on October 5 (and amended at the
trial). The primary issue is whether the Company, the
Respondent , unlawfully refused to sign ' its own proposed
agreement with AFTRA after being notified , 13 days
before the end of the certification year , that "AFTRA will
accept the proposal as is," thereby violating Section 8(a)(5)
and (1) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Texas corporation , is engaged in
commercial radio broadcasting and operates radio station
KNOW in Austin , Texas, where it subscribes to syndicated
national news agencies and broadcasts news items fur-
nished by them, and where it annually receives in excess of
$100,000 from the operation , and in excess of $50,000 for
broadcast services from customers , each of whom makes
sales or performs services valued in excess of $50 ,000 for
other firms located outside the State . The Company
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that American Federation of Television and
Radio Artists, AFL-CIO, herein called AFTRA, and
American Federation of Television and Radio Artists
(AFL-CIO) Dallas-Fort Worth Local, herein called the
Local, are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Acceptance of Company Proposal
On August 20, 1971, the Local was certified as the
exclusive collective -bargaining representative of the Com-
pany's employees in a unit of all full-time and part-time
announcers , all full-time and part - time newsmen , technical
director , continuity writer-announcer , announcer-mainte-
nance men , and announcer -salesmen, excluding all office
clerical employees , guards , watchmen , and supervisors as
defined in the Act.
Thereafter the Local submitted to the Company a
written proposal for an agreement between AFTRA (not
the certified Local) and the Company. Section 14, entitled
"National Board Approval," of the proposal read: "The
Company agrees that this Agreement is subject to approval
by the National Board of AFTRA and does not become
effective or binding until approved by such National Board
and counter-signed by the National Executive Secretary of
AFTRA."
After a number of bargaining sessions , AFTRA National
Representative Harold Kocin (an assistant of the national
executive secretary) replaced the Local's representative in
the negotiations and, with an employee committee, met
with the Company in negotiations on April 13 and 14. It is
undisputed (as Kocin credibly testified) that on April 13,
the Company rejected the Local' s section 14 "National
Board Approval" proposal . It is also undisputed (as Kocin
credibly testified) that on April 26 , the night before the
Company canceled the next bargaining meeting scheduled
for April 27 , Kocin held a meeting with the unit employees,
reported what the Company was offering in'the negotia
tions, stated that he was endeavoring to get two changes (a
2-year instead of a 3 -year agreement , and either a wage
reopener or a wage increase for the second year), and
received the employees ' approval to accept the Company's
proposed contract (as amended in the April 13-14
negotiations), or whatever he could get , whether or not
these two changes were negotiated . Kocin next met
privately with the Company (Attorney L. G. Clinton and
General Manager Harry Smith ) in Houston on June 16,
when the Company agreed to amend its offer to provide
for a 2-year agreement , but did not agree to a wage
reopener or wage increase after the first year.
On July 3 (following Kocin's cancellation of the
bargaining meeting scheduled for June 30), Attorney
Clinton wrote to Kocin at the AFTRA national office in
New York , without a copy to the Local , enclosing two
copies of the Company's third proposal for an agreement
and inquiring when it would be convenient to resume
negotiations . The proposal , for an agreement between
AFTRA and the Company, provided that it would
"become effective on the date of execution ." It did not
include any provision for approval or ratification by the
unit employees , the Local , or the AFTRA national board,
and did not specify any signature or countersignature by
the national executive secretary.
Kocin was out of the office and did not receive Attorney
Clinton's letter (with the enclosed proposal ) until August 1,
when Kocin returned from vacation . On August 4, after
first getting the approval of the national executive
secretary (and after notifying General Manager Smith by
telephone on August 3), Kocin , as "national representa-
tive ," wrote Clinton a letter on the official stationery of
AFTRA' s national office, with a copy to the Local. The
letter (received on August 7) stated that "AFTRA will
accept the proposal as is," and advised , "I am returning the
agreement to you with my signature . We need two signed
copies for our files here , and I could use about 20
additional copies so that each member of the unit could
have an individual copy of the agreement ." Kocin also
stated in the letter that Smith had already been advised,
and "Please let me know how many signed copies you will
need , and [send] them along for signature."
Receiving no response from Attorney Clinton, National
Representative Kocin tried to reach him by telephone
several times . As Kocin credibly testified , "Mr. Clinton's
secretary always told me that he was out every ' time I called
. Although I left word to return the calls , they were
never returned." On August 30, Kocin wrote Clinton again
(on AFTRA national office stationery , with a copy to the
Local):
On August 4 1 wrote you, accepting on behalf of
anAFTRA the last proposal of the Company for,
agreement between AFTRA and KNOW.
I had already told Harry Smith that AFTRA had
accepted the proposal.
Please send me copies of the agreement . I need two
PIONEER BROADCASTING CO. 1007
for our files, and about 20 for members of the unit.
Please let me know how many copies you will need,
and I'll return those.
Still Kocin received no response. At, the trial, the
Company admitted that on and since August 7, it has
refused to sign the contract it offered to AFTRA on July 3.
B. Contentions
The ' General Counsel contends that the Company's
admitted refusal to sign its own contract proposal, after the
acceptance by AFTRA, is a clear violation of Section
8(a)(5) of the Act. Pointing out that the August 20, 1971,
certification was near expiration when the Company
received the acceptance letter on August 7, the General
Counsel argues , "It is obvious that the real motivation for
Respondent 's refusal is the fact that it was stalling until the
end of the certification year." The General Counsel also
argues against various defenses urged by the Company at
the trial.
The Company denies that it violated the Act, and
contends that it was not obligated to sign the agreement for
the following reasons:
1. AFTRA not certified union
The Company contends that inasmuch as the Local, not
AFTRA, was the certified bargaining representative, the
Company was not obligated to sign the agreement with
AFTRA. However, the substitution of AFTRA for the
Local was agreeable to all the parties. The Local proposed
a contract between AFTRA and the .Company, and the
Company agreed, including in its. July 3 proposal the
provision that the agreement was between AFTRA and the
Company. As held in N.L.R.B. v. Winchester Electronics,
295 F.2d 288, 291-292 (C.A. 2, 1961), cited by the General
Counsel, the lack of certification in such a situation "poses
no bar to requiring" the Company "to sign the contract." I
reject the contention.
2. No approval by AFTRA National Board
The. Company contends that its refusal to sign the
agreement was not unlawful because National Representa-
tive Kocin had no authority to sign for AFTRA.
The evidence is undisputed that, in the April 13
negotiations, Kocin was seeking company acceptance of
the section 14 "National Board Approval" provision in the
Local's earlier written proposal. Company Attorney
Clinton's notes of the meeting show that Kocin stated that
"the Union would not enter into any contract with the .. .
Company unless it contained a provision that the agree-
ment ..: would not become effective or binding unless
and until approved by such National Board of AFTRA
and was countersigned by the National Executive Secretary
of AFTRA." Kocin and Clinton both testified that after
Clinton wrote this down, he read it to Kocin, who stated
that was correct, "as far as it goes." Clinton's notes further
show that Kocin stated this was a constitutional require-
ment of the Union, and the "Statement is made only
because this is in the Union's constitution." (Art. VIII,
"Establishment of Locals," sec. 5, of the AFTRA constitu-
tion reads in part: "... nor shall any Local enter into any
contract or understanding on behalf of its members .. .
without the approval of the National Board." (Emphasis
supplied.) Another provision, article XIII, requires mem-
bership ratification of "national" contracts. There is no
provision in the AFTRA constitution requiring national
board approval, signature by the national executive
secretary, or membership ratification of an individual
agreement , which a national representative may negotiate
and accept on behalf of AFTRA with a local station.)
When National Representative Kocin was asked on
cross-examination whether he changed his position regard-
ing section 14 in the Local's proposal, he testified, "Well,
yes, of course. When I bought you cocktails on the night of
[April] 13th, and when I talked to you in your Houston
office on June [16th], I told you I would accept, your
contract as presented [without a "National Board Approv-
al" provision] if you would make a couple of decent
changes in it . . . . I told you and Harry Smith at cocktails
in the Sheraton Crest on the night of the 13th that if you
would give us a two-year contract with a wage increase at
the end of the first year, I would accept the proposal."
(Emphasis supplied.) On redirect examination, Kocin
testified that he "regularly" signed contracts on behalf of
AFTRA without the approval of the national board: "All
of the National Representatives sign contracts without
approval of the National Board." (On rebuttal, the General
Counsel, introduced into evidence some agreements which
had been signed by Kocin and other AFTRA national
representatives without prior national board approval.)
Following this testimony, General Manager Smith and
Attorney Clinton, appearing as defense witnesses, gave
their recollections of what occurred in the hotel bar on
April 13 and in Clinton's office on June 16, and what
Kocin had said in negotiations on April 13. Smith testified
that Kocin said in the bar, "If we could have a little bit
more money we could have a contract," or "words to that
effect." Clinton testified, "I don't remember us specifically
talking about anything other than the Union' s general
request that . . . they needed more money." Concerning
the June 16 meeting in Clinton's office, Smith and Clinton
had conflicting recollections. Smith positively testified that
Kocin made no statements about his authority to sign a
contract on behalf of the Union, whereas Clinton testified
that Kocin "again' said that he did not have authority to
sign the contract on behalf of the Union." Both Smith and
Clinton testified that in the April 13 negotiations, Kocin
went beyond Clinton's notes when discuss the "National
Board Approval" provision in the Local's written proposal.
Both testified that Kocin added that he did not have the
authority to sign the contract on behalf of the Union.
(Another defense witness, a unit employee who indicated
on the stand his hostility toward AFTRA, gave a
conflicting version of what happened. He did not impress
me as being a trustworthy witness.) Although neither Smith
nor Clinton recalled Kocin stating "I would accept," in the
bar or in Clinton's office, Kocin impressed me as having an
accurate recollection of what he said, and I credit his
testimony. Concerning Smith's and Clinton's recollection
that Kocin stated in negotiations on April 13 that he "did
not have authority" to sign a contract, and Clinton's
testimony (in conflict with Smith's) that Kocin repeated
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this on June 16, I find this unpersuasive. Clinton was
taking such complete notes of what Kocin said , I find it
quite unlikely that Kocin would have made such a
significant disclaimer of authority without Clinton having
added that to his notes. Also, in view of the contracts in
evidence, supporting Kocin's testimony that national
representatives do sign contracts without national board
approval and that he himself regularly does so, I find it
most unlikely that Kocin would have stated in the
negotiations that he did not have the authority. Further-
more, I find it unlikely that Kocin would have disclaimed
the authority on April 13 and, as recalled by Clinton
(although positively denied by Smith), "on June 16 he
again said that he did not have authority to sign the
contract on behalf of the Union," and then proceed to
write Clinton on August 4, stating that he was returning the
agreement with his signature. I credit Kocin's testimony
that at no time did he ever say he did not have the
authority to sign.
I reject the Company's contention about lack of
authority, and find that National Representative Kocin
possessed the authority to accept and sign the Company's
July,3 proposal on behalf of AFTRA. I also find that
Kocin previously, on two occasions, had indicated to the
Company that he had such authority by telling its
representatives that he would accept its proposed con-
tract-thereby dropping his earlier insistence on the
"National Board Approval" provision in the Local's
written proposal-if certain changes were made in the
Company's offer. Thereafter, up until the time of Kocin's
acceptance of the Company's amended offer, neither the
Company nor AFTRA, I find, made national board
approval a precondition for reaching a binding agreement
-as demonstrated by the Company' s omission of any
such requirement in its July 3 proposal, and by AFTRA's
notice of its acceptance over Kocin's signature.
3. No ratification by unit employees
The Company contends in its brief that AFTRA
conditioned execution of a final and binding agreement
upon employee ratification. This contention also lacks
merit.
National Representative Kocin testified, upon cross-
examination:
Q. [By Mr. Clinton] Did you ever make any
statement to us, Mr. Kocin, that all of the agreements
that we were making in the course of these negotiations
were, of course, tentative and subject to approval of
what the membership wanted?
A. That is correct.
When taking the stand as a defense witness, Attorney
Clinton recalled that "Mr. Kocin made it clear that
whatever agreements we reached across the table with him,
he would submit to the local membership for their
approval, their ratification. .. .
Whichever way Kocin made the statement (as suggested
in Clinton's question or as testified by Clinton), it is
undisputed that Kocin did take the Company's proposed
contract , as amended in the April 13 and 14 negotiations,
to the unit employees in an employee meeting on April 26,
and that the employees did agree to accept the Company's
offer, with or without two changes which Kocin stated he
was seeking. Therefore, Kocin had already received
approval by the unit employees of the Company's July 3
proposal before it was made. Moreover , as in Houchens
Market of Elizabethtown, 155 NLRB 729, 730 enfd. 375
F.2d 208 (C.A. 6, 1967), cited by the General Counsel,.
"employee ratification had never been agreed on by the
Respondent and the Union as either a contract provision
or a condition precedent to the execution and application
of the contract ." I therefore reject the contention.
C. Motivation
As mentioned above, the General Counsel contends that
"It is obvious that the real motivation for Respondent's
refusal [to sign the agreement on August 7] is the fact that
it was stalling until the end of the certification year [August
20 ]."
Although Attorney Clinton (when testifying as a defense
witness) recalled that the upcoming expiration of the
certification year "didn't have anything to. do with" the
Company's refusal to sign the agreement , he at least
implied (when making his closing argument as company
counsel) that the Company would have disfavored signing
the agreement at that time, even if its July 3 proposal had
been submitted to the employees, then approved by the
national board , and signed by the national executive
secretary , "as Mr . Kocin represented to us in negotiations
that he would do." Clinton argued:
If those matters had been done in that fashion and
[the company proposal] then returned to us, Judge, I
think there would be no question but what we would
have a contract. We would have been forced to sign it.
[Emphasis supplied.]
I also note that when Attorney Clinton received Kocin's
August 4 acceptance letter on August 7, and found that
Kocin-through obvious oversight-had failed to affix his
signature on the two returned copies of the Company's
July 3 proposal, Clinton did not answer Kocin 's letter and
call his attention to the oversight (or, for that matter,
mention anything about national board approval). Instead,
Clinton instructed his secretary to stamp the two copies
with his law firm 's file mark "since we had other copies of
this proposal. I wanted there to be no uncertainty as td
exactly which copies that we had received [unsigned] from
Mr. Kocin." Thereafter, at the trial , when explaining the
Company's answer to the complaint, Clinton stated, "We
deny that the contract was ever signed by anyone." (Kocin
not only had stated in his August 4 letter, "I am returning
the agreement to you with my signature ," but he offered in
that letter , and also in his August 30 letter , to sign
additional copies for the Company' s use . Clinton did not
answer either letter, and he did not contact Kocin nor talk
to him until the day of the trial.)
When testifying at the trial, Attorney Clinton was
repeatedly asked why he did not answer Kocin 's August 4
letter. He testified that the contract had not been approved
by the national board and countersigned by the national
executive secretary (neither was required in his July 3
proposal), and that in view of the statements made in
negotiations about relying on the AFTRA constitution, "I
wanted to see if I could find a copy of the Constitution,"
PIONEER BROADCASTING CO. 1009
which General Manager Smith was unable to obtain in
Texas, and which he had 'been promised in negotiations
but never furnished. On cross-examination, he testified:
Q. Well, why didn't you write Mr. Kocin and say
"Well, look, you didn't sign this. But before I sign it I
want to check on this stuffin the Constitution. Send it
to me before I sign."?
A. Well, Counsel, on at least six occasions . . . we
had asked for a copy of the Union's Constitution and
been told, that we were going to get it..They assured us
on every occasion that they would give it to us. They
have completely failed to do so.
0. Why didn't you say "Look, this is why .1 am not
signing. I want to see the Constitution first."?
A. Well, because I had asked him for copies of the
Constitution, as I said... .
The General Counsel contends that "Clinton's explanation
that he did not respond in writing to Kocin's letter of
August 4 because he had not received a copy of the
Union's constitution and was seeking by other (unidenti-
fied) means to obtain one . . . is excessively feeble."
Despite giving these reasons for not answering Kocin's
letter, Attorney Clinton recalled, "I know that after I
received his letter that on at least four different days, two
or three times a day, we tried to reach Mr. Kocin, both
through his New York office and through his residence in
Washington, D. C." I find that Clinton's recollection must
be faulty, not only because of his above-quoted stated
reasons for not corresponding with Kocin, but because
Kocin admittedly was seeking to contact Clinton by
telephone, and, if Clinton's secretary had in fact attempted
to telephone Kocin, it is likely that Kocin would have been
so informed. (When asked by Company Counsel Clinton
on cross-examination, "Did your office ever tell you that
we attempted to reach you on a number of occasions [after
August. 7] and were unable to get you," Kocin credibly
replied, "No. I checked with my office and never got a
statement like that. . . . My office secretary and telephone
operator has been there longer than I have [over 19 years]
and she is pretty good. So, I assumed that you never
returned my calls.") Clinton may have confused these
uncorroborated' attempts to telephone Kocin with the
earlier unsuccessful attempts by Clinton's secretary to
telephone Kocin to cancel the scheduled April 27 meeting
before Kocin arrived in Austin for the meeting.
I do-not doubt that Attorney Clinton desired to obtain a
copy of the AFTRA constitution to determine if there was
any restriction (which there was not) on National Repre-
sentative Kocin's authority to sign a contract on AFTRA's
behalf. However, I find that the Company's controlling
motivation-for refusing to sign the agreement, while
ignoring Kocin's letters and telephone calls, and while
failing to disclose' to AFTRA either the Company's
decision not to sign or any reasons therefor-was to avoid
reaching an agreement before the expiration of the
certification in less than 2 weeks, in an obvious effort to
eliminate union representation of the unit employees.
I find that the Company unlawfully refused to bargain
with AFTRA by refusing on and since August 7 to sign the
Company's own proposal after its acceptance by AFTRA,
in violation of Section 8(a)(5) and (1) of the Act. In view of
this finding, I reject the General Counsel's alternative
allegation that the Company unlawfully refused to bargain
with the Local by refusing to sign the agreement.
CONCLUSIONS OF LAW
1. By refusing on and after August 7 to sign the
agreement which it proposed to AFTRA on July 3 and
which AFTRA accepted in writing on August 4, the
Company unlawfully refused to bargain collectively in
good faith with AFTRA as the bargaining representative of
the employees in the appropriate bargaining unit covered
by the agreement, thereby engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
2. The Company did not unlawfully refuse to bargain
with the Local.
3. All full-time and part-time announcers, all full-time
and part-time newsmen, technical directors, continuity
writer-announcers , announcer -maintenance men, and an-
nouncer-salesmen, excluding all office clerical employees,
guards, watchmen, and supervisors as defined in the Act, is
an appropriate bargaining unit.-
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent unlawfully refused
on and after August 7, 1972, to sign its own proposed
agreement after its acceptance by AFTRA,. I find it
necessary that the Respondent be ordered forthwith to
execute the 2-year agreement as of that date, to give
retroactive effect to the terms and conditions of the
agreement from the August 7, 1972, effective date, and to
make the unit employees whole for any losses, to be
determined' at the compliance stage, they may have
suffered as a result of the delay in signing the agreement,
plus interest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I also find
it necessary, in the event the Company delays execution of
the 1972-74 agreement until more than 1 year after the
August 7, 1972, effective date, to order the Company
thereafter to bargain in good faith, on request, for a new
agreement to take effect after the expiration of the 1972-74
agreement, as the General Counsel proposes. I find that
otherwise the Company-found above to have been
motivated by a desire to eliminate union representation of
the unit employees when it refused to sign the agreement
-would be able to benefit from its own unlawful conduct,
by depriving the employees of coverage under the
collective-bargaining agreement for most or all of its term
and thereafter taking advantage of any resulting loss of
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union support to continue its endeavor to eliminate union
representation of the employees.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2
Respondent, Pioneer Broadcasting Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
American' Federation of Television and Radio Artists,
AFL-CIO, by refusing to sign the August 7, 1972, 2-year
agreement which it had reached with AFTRA, or by failing
or refusing to bargain with AFTRA concerning issues
which have arisen, or which may arise under the terms of
the agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
. (a) Forthwith execute the August 7, 1972, agreement as
of that date, and give retroactive effect to, it from that
August 7, 1972, effective date.
(b) In the event the 2-year agreement is not executed
until after August 7, 1973, bargain in good faith with
AFTRA, upon request, as the exclusive representative of
the employees in the following appropriate unit, for a new
agreement to take effect after the expiration of the 2-year
agreement and, if an understanding is reached, embody it
in a new signed agreement.
All full-time and part-time announcers, all full-time
2 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.
and part-time newsmen, technical directors, continuity
writer-announcers, announcer-maintenance men, and
announcer-salesmen, excluding all office clerical em-
ployees, guards, watchmen, and supervisors as defined
in the Act.
(c) Make whole all employees and/or former employees
for any losses suffered by the delay in signing the August 7,
1972, agreement, in the manner set forth in the "Remedy"
section of the Decision of the Administrative Law Judge.
(d) Preserve and, upon' request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its radio station in Austin, Texas, copies of the
attached notice marked "Appendix." 3 Copies of the notice,
on forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
3 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."