Television Artists AFTRA (Eleven-Fifty Corp.)

National Labor Relations Board - Board Decisions

Apr 8, 1993

310 N.L.R.B. 1039 (N.L.R.B. 1993)

1039
310 NLRB No. 171
TELEVISION ARTISTS AFTRA (ELEVEN-FIFTY CORP.)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In the absence of the finding of a specific violation of Sec.
8(b)(1)(A) here, we shall modify the judge’s Order by deleting par.
1(b) which contains general cease-and-desist language. See National
Maritime Union, 78 NLRB 971 (1948), enfd. 175 F.2d 686 (2d Cir.
1949), cert. denied 338 U.S. 954 (1950). 1 All dates refer to the year 1991 unless otherwise indicated.
Los Angeles Local, American Federation of Tele-
vision and Radio Artists and Eleven-Fifty Cor-
poration and Pacific and Southern Company,
Inc. Case 31–CB–8548
April 8, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1992, Administrative Law Judge
Gordon J. Myatt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Los
Angeles Local, American Federation of Television and
Radio Artists, Los Angeles, California, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Delete paragraph 1(b).
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to execute the Dees side letter
agreed to with KIIS AM/FM and tendered to us on
April 19, 1991.
WE WILL, on request, execute forthwith the Dees
side letter agreement.
LOS ANGELES LOCAL, AMERICAN FED-
ERATION OF TELEVISION AND RADIO
ARTISTS
Margaret Hume, Esq., for the General Counsel.
Hirsch Adell, Esq., of Los Angeles, California, for the Re-
spondent.
Wendell J. Van Lare, Esq., of Arlington, Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On a
charge filed by Eleven-Fifty Corporation and Pacific and
Southern Company, Inc. (the Employer) against Los Angeles
Local, American Federation of Television and Radio Artists
(the Union) the Acting Regional Director for Region 31
issued a complaint and notice of hearing on July 3, 1991.1
The substantive allegations of the complaint allege the Em-
ployer and the Union, parties to successive collective-bar-
gaining agreements since 1979, engaged in negotiations for
a new agreement and reached a full and complete under-
standing concerning the terms of that agreement. Further,
that since April 1991, the Union has refused to execute fully
all of the agreed-on provisions to be incorporated in the
agreement. This refusal on the part of the Union is alleged
to be a violation of Section 8(b)(3) and (d) of the National
Labor Relations Act (the Act). The Union’s answer admitted
certain allegations of the complaint, denied others, and spe-
cifically denied violating the Act.
A hearing was held in this matter on October 1, 1991, in
Los Angeles, California. All parties were represented by
counsel and afforded full opportunity to examine and cross-
examine witnesses and to present material and relevant evi-
dence on the issues. Briefs have been submitted by the par-
ties and have been duly considered.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
Eleven-Fifty Corporation is a Delaware corporation with
an office and place of business located in Los Angeles, Cali-
fornia. Eleven-Fifty owns and operates radio stations, and
Station KIIS AM/FM (KIIS) in the Los Angeles area is the
only facility involved in this matter. In the course and con-
duct of its business operations, Eleven-Fifty annually sells
services valued in excess of $5000 to customers within the
State of California, who in turn provide or receive goods or
services, valued in excess of $50,000, directly to or from
parties located outside the State of California. Eleven-Fifty
annually derives gross revenues in excess of $100,000 from
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Dees Creations, Inc. is owned and controlled by Rick Dees.
3 This arrangement apparently continued for a number of years
thereafter, despite the fact that the collective-bargaining agreement
required such contributions to be based on the total compensation of
the unit employees.
4 Van Lare was the director of labor relations for the Gannett
Company, the Employer’s parent company. Buhler was the director
of staff contracts and administration for the Union. Both were expe-
rienced negotiators. Van Lare had been negotiating collective-bar-
gaining agreements on behalf of management for 18 years and occu-
pied his present position for the past 10 years. Buhler had been ne-
gotiating contracts on behalf of unions for approximately 15 years.
5 Gonzalez took notes of the January bargaining sessions for the
Union. They are contained in the record as R. Exhs. 7 and 8.
its business operations. Accordingly, Eleven-Fifty is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Los Angeles Local, American Federation
of Television and Radio Artists, is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1979, the Union and KIIS have been parties to suc-
cessive collective-bargaining agreements covering a unit of
KIIS’ ‘‘on-the-air’’ employees; i.e., staff announcers and
freelance performers. The latest agreement between the par-
ties, prior to the events involved here, was effective for the
period May 1, 1987, to April 30, 1990. The undisputed testi-
mony indicates that some of the on-the-air employees nego-
tiate personal services contracts with KIIS and these agree-
ments provide compensation well in excess of the scale con-
tained in the collective-bargaining agreement. Once such per-
sonal service agreement is between the Employer and Dees
Creations, Inc. (Dees Creations). (See R. Exh. 2.) Under this
contract, Dees Creations produces radio shows employing the
talents of Rick Dees, and these shows are broadcast over
KIIS AM and FM during the morning drive-time hours. In
addition to Dees, who is the drive-time personality, Dees
Creations also employs other persons, including those who
provide comic voices and sound effects that are a part of the
Rick Dees show. The essential artistic control over the show
is maintained by Dees Creations. The remuneration paid
Dees Creations under this agreement is many times more
than the scale contained in the union agreement.2 Addition-
ally, the record indicates that the relationship between KIIS
and Dees Creations has been carried on without any involve-
ment by the Union.
Although Rick Dees is the morning drive-time personality
for the radio station, KIIS does not have a contractual rela-
tionship with him as an individual. Rather, it is with Dees
Creations, which employs Dees. Initially under the contact
with Dees Creations, KIIS did not make health and retire-
ment contributions to the Union for Dees. In 1983, the Union
filed a grievance seeking such contributions and it appears
that the grievance was informally resolved by KIIS agreeing
to commence making these contributions, based on the
Union’s minimum scale, on behalf of Dees.3
Sometime in 1990, before the parties began negotiations
for a successor agreement to the latest expired contract, the
trustees of the Union’s health and retirement plan filed an
ERISA lawsuit against KIIS alleging the employer was defi-
cient in the contributions to the plan on behalf of Dees. The
trustees asserted that the contributions since 1983 should
have been based on Dees’ total compensation rather than the
minimum contract scale. It was while the lawsuit was pend-
ing that the parties began negotiations for a new agreement.
B. The Negotiations for a Successor Agreement
There were two bargaining sessions between the Union
and KIIS in 1990. The first occurred on April 26 and the
second was held on June 7. Wendell Van Lare was the chief
spokesperson for the Employer and Harry Buhler was the
chief negotiator for the Union.4 The undisputed evidence dis-
closes that very little was accomplished by way of sub-
stantive negotiations as the discussions of the union and
management representatives centered mainly on the pending
lawsuit. (R. Exhs. 5 and 6.)
The parties resumed face-to-face negotiations on January
16, 1991, and concluded them on January 17. Although the
testimony of the Employer and union witnesses are in agree-
ment in many respects, there is material disparity concerning
whether Dees was to be included in the bargaining unit and
whether the union representatives negotiated a binding agree-
ment. The January 16 negotiations were held in the offices
of KIIS. Van Lare was accompanied by two other manage-
ment officials of KIIS, Jay Cook and Bill Richards. Cook
was the president of Gannett Radio Division and general
manager of KIIS. Richards was the program director for
Gannett Radio Division. Buhler was assisted by Sylvia Gon-
zalez, who was a business representative for the Union with
considerable experience in negotiations.
Van Lare testified the parties used the proposals submitted
by the Employer in April of the prior year as the basis of
their negotiations. As the parties arrived at agreement on var-
ious items or made additions, he marked his copy with the
notation, ‘‘TOK’’ (to indicate tentative approval), or made
cryptic notes on the sheets. (See G.C. Exh. 2.)5 According
to Van Lare, the parties made considerable progress during
the session, which lasted approximately 2 hours.
It is undisputed that the parties agreed to prospectively re-
place the Union’s health insurance plan with the Employer’s
health insurance plan. The record shows they also agreed to
prospectively remove the unit employees from the Union’s
retirement plan and place them in the Employer’s pension
plan. Van Lare stated that the parties discussed excluding
Dees from the bargaining unit at this point because of the
impact Dees’ large salary would have on the Employer’s
pension plan. In expressing the basis for his insisting that
Dees be excluded from the bargaining unit, Van Lare testi-
fied that:
[He] was very conscious of having a specific clause
that excluded Mr. Dees from the bargaining unit be-
cause, candidly, because of the enormous amount of
money that Mr. Dees makes under his contract, the
Dees Creations, Inc., contract. [He] didn’t want any,
any conceivable way that Mr. Dees would be covered
by a Gannett pension plan. It would be a plan buster,
potentially, because of the magnitude of his compensa-
tion.
1041TELEVISION ARTISTS AFTRA (ELEVEN-FIFTY CORP.)
6 Despite the concern about the adverse impact that would result
if Dees were covered under the Employer’s pension plan, Van Lare
testified he was not making the exclusion of Dees a bargaining de-
mand of the Employer.
7 Apparently it was a longstanding practice of the parties to handle
certain contractual arrangements by means of side letters. When exe-
cuted, the side letters were incorporated into and became a part of
the total collective-bargaining agreement.
8 The notes taken by Gonzalez do not reflect a request by Van
Lare to exclude Dees from the unit. R. Exh. 7.
Van Lare further stated it was for this reason that he and
Buhler agreed that the ‘‘sensible’’ way to place the unit em-
ployees under the Employer’s pension plan ‘‘would be to
memorialize the understanding that Dees was not in the unit,
prospectively.’’ According to Van Lare, the outcome of the
pending lawsuit would resolve the issue for the time period
covered by that litigation, and the exclusion of Dees from the
unit would permit the parties to deal with the issue ‘‘pro-
spectively’’ at the bargaining table.6 Van Lare testified that
Buhler said it did not matter whether Dees was a member
of the KIIS bargaining unit or not, since Dees was involved
in other radio and TV activities and programs (other than
KIIS), which made Dees a union member.
Cook, who testified he was present throughout the meet-
ings in January, recalled that he participated in the discussion
surrounding Dees. According to Cook, the uniqueness of
Dees in the industry was pointed out, and also the fact that
Dees was involved in other kinds of broadcast work which
made him a member of the Union. Because of this, Cook
stated it was agreed that Dees being a member of the KIIS
bargaining unit was not an important issue.
Van Lare testified that after the agreement on the nonunit
status of Dees, the parties further agreed that he would clear
the matter with Dees because the latter was important to the
station, and it was necessary that Dees be ‘‘comfortable’’
with the arrangement. He also informed the union representa-
tives that he would communicate with the Employer’s
ERISA attorneys and its compensation expert regarding the
changes in the health and pension benefits.
According to the testimony of Van Lare, the exclusion of
Dees from the bargaining unit was to be accomplished by a
‘‘side letter’’ executed by the parties.7 In addition to the ar-
rangement regarding Dees, the parties negotiated the deletion
of an arrangement contained in an existing side letter known
as the ‘‘McKinney’’ side letter, and for the execution of a
new side letter involving arrangements for the use of a
‘‘Swing Person.’’ Van Lare stated that the session ended
with the understanding that the parties would return the fol-
lowing day when he would present a draft of their under-
standing, after each side had an opportunity to check with
their respective offices.
Contrary to the testimony of Van Lare and Cook, the wit-
nesses for the Union deny that the parties agreed to exclude
Dees from the bargaining unit. Gonzalez, who took the notes
for the Union, testified that Van Lare talked ‘‘incessantly’’
about the Employer not wanting any more lawsuits regarding
the Union’s health and retirement fund. She stated that Van
Lare said the Employer wanted a provision in the contract
which would provide that the contract with Dees Creations
was not in violation of the collective-bargaining agreement
with the Union. According to the testimony of Gonzalez,
Buhler responded by stating the parties could execute a side
letter to that effect, but that Dees was a member of the
Union. Gonzalez denied that Van Lare requested that Dees
be excluded from the bargaining unit or that the Union ac-
knowledge that he was not a member of the bargaining unit.8
To the contrary, Gonzalez stated Buhler made it clear that
Dees was a member of the Union. When called as a witness,
Buhler also denied that he agreed Dees would be excluded
from the bargaining unit.
The negotiations resumed the following morning in the of-
fices of KIIS. The parties were represented by the same indi-
viduals, although Richards was in and out of the meeting be-
cause of news that was breaking on the start of the Persian
Gulf War.
According to the testimony of Van Lare, he presented the
union representatives with copies of a final proposal dealing
with the main body of the contract (G.C. Exh. 3) and two
side letters. One side letter dealt with the arrangement re-
garding Dees (G.C. Exh. 4) and the other contained the ar-
rangement for the use of a swing person (G.C. Exh. 5). The
Dees side letter stated as follows:
It is understood and agreed between the Company and
AFTRA [the Union] that the Company has and may
continue to contract with Dees Creations, Inc. to pro-
vide 6AM-10AM programming on KIIS AM/FM fea-
turing Rick Dees. Said contract and the performance of
Rick Dees thereunder are not covered by any of the
provisions of the collective bargaining agreement, and
in no way violate the collective bargaining agreement.
Van Lare further testified that he went through each item of
the final proposal with the union representatives, and then
Buhler asked for time to caucus with Gonzalez. He stated the
management representatives left the room while Buhler and
Gonzalez conferred for approximately 15 minutes. According
to Van Lare, when the management representatives returned
to the conference room, Buhler stated the documents
‘‘looked good’’ and that the parties ‘‘had a deal.’’ Van Lare
marked his copies of the contract proposals and the two side
letters with the notation ‘‘TOK, 10:45 a.m., 1/17/91’’ (G.C.
Exhs. 3, 4, and 5), and Gonzalez recorded ‘‘Final Agreement
reached 10:45’’ in her notes (R. Exh. 8). Van Lare asked
Buhler about the ratification process and the latter responded
that the bargaining unit members would have to ratify the
agreement. Buhler indicated he expected a ratification vote
by the end of January and he would notify Van Lare when
it was accomplished. It was also agreed that Van Lare would
draft the new agreement for execution, incorporating the
changes agreed on and the side letters.
Although the union representatives acknowledge an agree-
ment was reached on January 17, they disagree with the tes-
timony of the Employer’s witnesses as what was agreed on.
Buhler on cross-examination admitted that at the inception of
the meeting Van Lare presented him with the contract items
discussed the prior day, as well as the two side letters. Ac-
cording to Buhler, after going over the items to be embodied
in the contract, he merely glanced at the Dees side letter. He
stated he was scheduled to fly out of town that afternoon to
attend several meetings and then start a vacation in Florida.
Thus, according to Buhler, he hurriedly glanced at the side
letter and ‘‘it appeared to say exactly what [he and Van
Lare] had been talking about.’’ Buhler further testified that
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 On cross-examination, Gonzalez admitted that the union rep-
resentatives had been given the Dees side letter prior to the 15-
minute caucus. She also admitted they read the document during the
caucus. However, Gonzalez on redirect examination reiterated her
statement that the Dees side letter was not given to the union rep-
resentatives until after the caucus.
10 In the letter demanding execution of the contract and the side
letters, Van Lare inadvertently referred to two side letters rather than
the three side letters which the record discloses were involved in the
negotiations.
during the caucus, Dees passed by the conference room
where the union representatives were sitting and they spoke
with him. They informed Dees that the Employer proposed
to remove the unit employees from the Union’s health and
retirement plan and asked if he had a problem with that.
Dees indicated he did not. Buhler denied they mentioned to
Dees that he would also be removed from the bargaining
unit. Buhler acknowledged that the side letter was on the
table at the time he and Gonzalez spoke with Dees.
Contrary to Buhler, however, Gonzalez stated on direct ex-
amination that Van Lare did not present the Dees side letter
until after the union officials had caucused. Thus, according
to Gonzalez, the union representatives did not have the lan-
guage of the side letter when they spoke to Dees during the
caucus. She stated it was not until the negotiations resumed
that Van Lare gave the side letter to Buhler, who glanced at
it and said the parties had a deal.9 Gonzalez further testified
that during the negotiations, Buhler only agreed that the Dees
side letter would contain language indicating the contract
with Dees Creations did not violate the collective-bargaining
agreement.
C. The Events Following January 17, 1991
On January 31, Van Lare sent a draft of the final agree-
ment to the Union stating, the Employer was pleased that the
Union was recommending ratification by the unit members.
(G.C. Exh. 6.) At approximately the same time, the union
representative discovered that the parties had neglected to
make provisions for coverage of part-time employees in the
change over to the Employer’s health and pension plan. This
was brought to Van Lare’s attention by the union representa-
tives, and he agreed to include the part-time employees in
the contract language. Gonzalez also submitted proposed
changes in the language placing the unit employees under the
Employer’s health and pension plans (R. Exh. 9), but these
changes were rejected by Van Lare. Additionally, the union
representatives discovered sometime in February that the cir-
cumstances underlying the McKinney side letter, which the
parties had agreed to delete, continued to exist. They notified
Van Lare and he agreed to restore the McKinney side letter
and add it to the other two side letters the parties agreed on
on January 17.
In early February, Buhler notified Van Lare that the unit
employees had ratified the proposed terms of the agreement
between the Employer and the Union. On February 28, Van
Lare sent a corrected version of the contract to the parties
along with the three side letters. This version apparently con-
tained several typographical errors and some misspelling,
which was brought to Van Lare’s attention for correction. On
March 29, Van Lare sent a final corrected copy of the collec-
tive-bargaining agreement to the Union for execution. (G.C.
Exh. 11.)
Van Lare testified he was contacted by Buhler on April 12
about the Dees side letter. According to Van Lare, Buhler
stated his ‘‘bosses in New York’’ felt the Dees side letter
would have implications beyond the Los Angeles station, and
they did not want him to execute it. Buhler told Van Lare
that he (Buhler) had some problems and could lose his job
over (the Dees side letter). Van Lare took the position that
the parties had an agreement on the side letter but, neverthe-
less, asked Buhler to send him some language for consider-
ation. When the Union’s modification was received, Van
Lare rejected it.
Buhler did not testify concerning his conversation with
Van Lare in April regarding the Dees side letter. Rather, he
stated that after receipt of the contract documents, ‘‘it
dawned on him’’ that the language of the Dees side letter
could be construed as removing Dees from the bargaining
unit. Gonzalez testified the union negotiators could only ar-
rive at a tentative agreement with the Employer. She stated
that approval required ratification first by the unit employees
and then final approval by the board of directors of the
Local. Both Buhler and Gonzalez admitted they never ad-
vised Van Lare that approval by the local board of directors
was necessary when he inquired about the ratification process
at the conclusion of the meeting on January 17. Gonzalez
further testified that the agreement would never have been
approved if the union representatives had agreed to remove
Dees from the bargaining unit.
On April 19, Van Lare sent a letter by facsimile to Buhler
demanding that the Union execute the contract and the side
letters. (G.C. Exh. 12.)10 The Union responded on May 2 by
forwarding executed copies of the contract and the McKin-
ney and swing person side letters to the Employer. The
Union refused to sign the Dees side letter asserting it did not
reflect the discussion of the parties on the subject. (G.C. Exh.
13.) The undisputed testimony indicates the signed docu-
ments returned to the Employer were executed by the execu-
tive director of the International Union, whose offices were
in New York City.
Concluding Findings
I.
The General Counsel and the Employer basically contend
that the parties had reached a final and binding agreement on
the substantive terms of the contract and the side letters on
January 17, and the only condition to be fulfilled prior to the
execution of the total contract was ratification by the bar-
gaining unit members. Since this condition was satisfied in
early February, they argue that the Union was obligated
under the Act to execute the documents embodying their
agreement once they were completed and submitted by the
Employer.
The Union’s defense includes numerous contentions, both
factual and legal, which in essence fall in the following cat-
egories: (1) the Employer did not propose removing Dees
from the bargaining unit during the face-to-face bargaining
sessions in January, (2) there was no meeting of the minds
on January 17 and, therefore, the parties never reached a
binding agreement, (3) the union representatives only pos-
sessed authority to negotiate a tentative agreement subject to
1043TELEVISION ARTISTS AFTRA (ELEVEN-FIFTY CORP.)
ratification by the unit and approval by the Union’s board of
directors, (4) the agreement on the Dees side letter, if
reached, constituted a unilateral mistake of which the Em-
ployer was, or had reason to be, aware and, thus, should be
rescinded.
II.
Critical to any legal conclusions to be drawn from the
events here is the resolution of the conflicting testimony be-
tween the parties regarding the agreement, or lack thereof, on
the Dees side letter. In my judgment, the testimony and
record evidence weighs heavily in favor of a finding that the
parties agreed to remove Dees from the bargaining unit, and
the side letter reflected this agreement.
First, it is evident that while both sides were in agreement
to place the unit employees in the Employer’s health and
pension plans, they were equally aware of the trustees’ pend-
ing lawsuit involving Dees and its impact on the agreement
to change the prospective coverage for the unit. This lends
credence to the testimony of Van Lare that he proposed Dees
be excluded from the unit and they mutually agreed this was
the ‘‘sensible way’’ to resolve the problem. Since Dees re-
mained a member of the Union by virtue of his other radio
and TV activities, removal of Dees from the KIIS unit had
no impact on his union membership. Nor is this conclusion
entirely ruled out by the notes taken by Gonzalez. She indi-
cated Buhler’s position was that ‘‘Dees is AFTRA member’’
during the discussion regarding the personal service contract
with Dees Creation. Also that Buhler took the position that
the terms and conditions of that contract were controlling and
did not violate the collective-bargaining agreement. This no-
tation is equally as consistent with the testimony Van Lare
and Cook that Buhler indicated it did not matter whether
Dees was a member of the KIIS unit because he remained
a union member due to his other activities as it is with the
testimony of the union representatives that Buhler stated
Dees was a member of the Union.
But of even greater weight in ascertaining which of the
conflicting versions of what was agreed on concerning the
Dees side letter is the conflict in the testimony of the union
representatives about the events. While Buhler merely testi-
fied that he did not agree to exclude Dees from the KIIS
unit, Gonzalez not only supported this position but also stat-
ed that Van Lare did not make a proposal to exclude Dees
from the unit. It is difficult to discern a purpose for Buhler
taking the position that Dees was a member of the Union—
a fact which was never in question—unless it was in re-
sponse to the question of whether his exclusion from the
KIIS unit would affect his membership status. This, however,
is not the only inconsistency in the testimony of the union
witnesses which directly bears on the reliability of their state-
ments. Buhler acknowledged that on January 17, Van Lare
presented the union representatives with a draft of the Dees
and swing person side letters along with the substantive con-
tract items agreed on prior to their request for a caucus and
their discussion with Dees. Gonzalez, on the other hand, stat-
ed on direct examination that the Dees side letter was not
presented to the Union until after the union caucus, and then
on cross-examination admitted the side letter was given to
Buhler before the caucus. On redirect, Gonzalez inexplicably
adopted her prior position, without appearing to be confused
or offering an explanation for her conflicting statements.
Thus, on the basis of my observation of all the witnesses
and because of the inherent inconsistencies in the testimony
of the union witnesses, I find the testimony of Van Lare and
Cook to be more credible and trustworthy than that of Buhler
and Gonzalez. In my judgement, the union witnesses ap-
peared to be crafting their testimony to support their position
that they had not agreed to exclude Dees from the KIIS unit
rather giving an accurate account of the events that occurred.
Accordingly, I find that the parties did in fact agree to ex-
clude Dees from the KIIS unit, since the exclusion would not
affect his status as a union member. I further find that the
Dees side letter presented to the Union on January 17 did set
forth the agreed-on arrangement of the parties.
III.
Having concluded the parties reached an agreement on the
Dees side letter on January 17, there remain the questions of
(1) whether there was a sufficient meeting of the minds so
as to require the parties to embody the terms in executed
documents, (2) if there was a meeting of the minds, whether
the agreement and the side letters were contingent on final
approval by the executive board of the Union to become
binding and/or operative, and (3) whether the Dees side let-
ter, if considered an agreement between the parties, should
be rescinded as a unilateral mistake which was known to the
Employer at the time of agreement.
A.
Regarding the issue of the meeting of the minds, I find
that the record evidence and the credited testimony warrants
the conclusion that the parties reached agreement on the con-
tract items on January 17. The record discloses that they
went over the substantive items agreed on for inclusion in
the collective-bargaining agreement and that the side letters
were given to the union representatives, who had an oppor-
tunity to review and caucus about them before indicating
their acceptance. As reflected in Gonzalez’ notes (final
agreement reached 10:45) and Buhler’s statement ‘‘We have
a deal,’’ the union negotiators unreservedly accepted the Em-
ployer’s presentation of the items to which the parties agreed
during the negotiations. Nor was there any indication by the
union representatives, at the time of their acceptance, that
they did not possess authority to finalize an agreement with
the Employer, other than the condition of ratification by the
unit members.
The Union contends there was never a meeting of the
minds on the terms of the complete agreement because the
parties subsequently engaged in negotiations concerning sub-
stantive items of the contract. I find the record does not sup-
port this argument. It is undisputed that subsequent to the ap-
proval of the contract items on January 17, the Union noti-
fied the Employer that they had neglected to include the part-
time employees in the transfer to the Employer’s health and
pension plans. Since the parties had negotiated to prospec-
tively place the unit employees in the Employer’s plans and
the part-time employees were part of the covered unit, I find
this to be nothing more than a clarification of the item to
remedy an obvious omission in that section of the contract.
This was not a substantive change in the agreement but, rath-
er, merely a modification which comported with the terms
previously negotiated by the parties in January. Granite State
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Distributors, 266 NLRB 457 (1983); Midvalley Steel Fab-
ricators, 243 NLRB 516 (1979).
Similarly, when the Employer rejected the Union’s request
to change the language of the provisions placing the unit em-
ployees under the Employer’s plans, this likewise did not rise
to the level of substantive negotiations which would indicate
the parties had not reach a meeting of the minds on the con-
tract terms in January. Indeed, at this point the Employer was
under no duty to entertain any modifications of the terms al-
ready agreed on, and the mere fact that it did so and rejected
them, is not the equivalent of engaging in further negotia-
tions. Granite State Distributors, supra.
Finally, the McKinney side letter also relates to a topic the
parties negotiated to agreement during the January sessions.
Initially, the parties agreed to delete it because they mutually
felt the circumstances underlying the arrangement no longer
existed. When the Union determined in February that those
circumstances continued to exist and so notified the Em-
ployer, the parties agreed to include the side letter in their
total contract. This, like the situation of the part-time em-
ployees, is nothing more than a clarification of an agreed-on
contract item whereby the parties were correcting a mutual
mistake. It is evident that this action the parties were not en-
gaging in further negotiations, but were simply clarifying a
provision of the agreement in order to make the final con-
tract conform with the results of their January negotiations.
B.
The further contention that the terms of the total contract,
if agreed to during the negotiations, did not become final and
binding until approved by the Union’s executive board must
also be rejected. The record clearly establishes that the only
contingency placed on the approval of the agreement by the
union negotiators was that the agreed-on terms had to be rati-
fied by the unit members. At no time during the negotiations
did the union representatives inform the employer representa-
tives of the requirement of the executive board approval. In
these circumstances, it is apparent that Buhler had the au-
thority to make a binding agreement with the Employer that
was subject only to the contingency of unit ratification. Since
the unit employees ratified the terms of the agreement in
early February and Buhler notified the Employer that this
had been done, a binding agreement between the parties
came into existence. Plattdeutche Park Restaurant, 296
NLRB 133 (1989); Induction Services, 292 NLRB 863
(1989); Ben Franklin National Bank, 278 NLRB 986 (1986).
Cf. Felbro, Inc., 274 NLRB 1268 (1985).
C.
The final argument advanced by the Union is that the Dees
side letter was the result of a unilateral mistake on the part
of the union negotiators of which the employer representa-
tives were aware or had reason to be aware. I find this argu-
ment to be without merit and contrary to the facts found in
this case.
The factual underpinnings for the Union’s position appears
to be (1) that Van Lare never made the proposal to exclude
Dees from the unit to the union representatives on January
16, (2) that Van Lare did not submit the language of the
Dees side letter until after the union representatives caucused
on January 17, and they gave their approval after hurriedly
glancing at the document without a full understanding of its
contents, and (3) that Van Lare was aware, or should have
been aware, that the Union would never approve the exclu-
sion of Dees from the unit because of the pending lawsuit
involving the pension contributions for Dees.
Having found, contrary to the Union’s contention, that the
parties did in fact discuss and agree on the exclusion of Dees
from the KIIS unit, and having also found that the language
of the Dees side letter reflected their agreement and was pre-
sented to the Union at the beginning of the meeting on Janu-
ary 17, it is apparent that the position of the Union is not
supported by the record evidence. As previously noted, the
parties were in agreement on placing the unit employees in
the Employer’s health and pension plans but the magnitude
of Dees’ compensation presented a barrier to accomplishing
this, if he remained a member of the unit. Because Dees was
a major personality in the field, his union membership was
as important to the Union as his performance was to the Em-
ployer. Therefore, it is evident the parties arrived at a solu-
tion, based on Dees’ other activities, which precluded Dees’
participation in the Employer plans without jeopardizing his
union membership. In addition, I do not credit the testimony
of Buhler that subsequently ‘‘it dawned on him’’ that the
language could be interpreted as excluding Dees from the
unit. Rather, I credit Van Lare’s unrefuted testimony that
Buhler called him on April 12 and stated ‘‘his bosses in New
York’’ felt the Dees side letter had implications beyond the
Employer’s station in Los Angeles, and they did not want
him to execute it.
In these circumstances, it can hardly be said that the Dees
agreement was the result of misrepresentations by the Em-
ployer or that the union representatives were unaware of the
import of the agreement at the time it was made. Nor can
it be said that the Employer knew, or should have known,
the union representatives were making a material mistake in
agreeing to the proposal. Monterey/Santa Cruz Building
Trades Council (National Refractories), 299 NLRB 251
(1990); Hospital Employees Local 1199 (Lenox Hill Hos-
pital), 296 NLRB 322 (1989); Grey Eagle Distributors, 296
NLRB 361 (1989). As the Board stated in Apache Powder
Co., 223 NLRB 191 (1976), ‘‘rescission for unilateral mis-
take is, for obvious reasons, a carefully guarded remedy re-
served for those instances where the mistake is so obvious
as to put the other party on notice of an error.’’ It is clear
that the record here does not demonstrate that such an obvi-
ous mistake occurred, and the agreement on the Dees side
letter remains binding on the parties.
IV.
On the basis of the above, I find the parties entered into
an agreement on the terms of the contract and the side letters
on January 17, 1991. I further find this agreement became
binding on the parties in early February on the satisfaction
of the condition of ratification by the unit employees. It is
settled law that when an employer and a union have reached
agreement on terms and conditions of employment, it is un-
lawful for one of the parties to refuse to sign a contract em-
bodying the terms of that agreement. H. J. Heinz Co. v.
NLRB, 311 U.S. 514, 526 (1941); Teamsters Local 251
(McLaughlin & Moran), 299 NLRB 30 (1990); Hospital Em-
ployees Local 1199, supra. Accordingly, I find the Union
was obligated to sign the agreement embodying the Dees
1045TELEVISION ARTISTS AFTRA (ELEVEN-FIFTY CORP.)
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 If this 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.’’
side letter on request by the Employer and the refusal to do
so violated Section 8(b)(3) and (d) of the Act.
CONCLUSIONS OF LAW
1. Eleven-Fifty Corporation and Pacific and Southern
Company, Inc. is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Los Angeles Local, American Federation of Television
and Radio Artists is a labor organization within the meaning
of Section 2(5) of Act.
3. The employees of the Employer described in article I
of the 1987–1990 AFTRA/KIIS AM and FM contract for
staff announcers and schedule for freelance performers con-
stitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times since 1979, the Union has been the exclu-
sive collective-bargaining representative of the unit employ-
ees and has been recognized as such by the Employer in suc-
cessive collective-bargaining agreements, the most recent of
which was effective by its terms for the period May 1, 1987,
to April 30, 1990.
5. By refusing, since May 2, 1991, to execute the Dees
side letter agreement reached with the Employer, the Union
has violated Section 8(b)(3) and (d) of the Act.
THE REMEDY
Having found that the Union has engaged in certain unfair
labor practices within the meaning of Section 8(b)(3) and (d)
of the Act, it shall be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Los Angeles Local, American Federation
of Television and Radio Artists, Los Angeles, California, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to execute the Dees side letter agreement sub-
mitted to it by the Employer on April 19, 1991.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the Employer, execute forthwith the
Dees side letter agreement reached by the parties and ten-
dered by the Employer on April 19, 1991.
(b) Post at the Union’s business offices and meeting places
in Los Angeles, California, copies of the attached notice
marked ‘‘Appendix.’’12 Copies of the notice, on forms pro-
vided by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members 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.
(c) Sign and return to Regional Director for Region 31
sufficient copies of the notice for posting by the Employer,
if willing, at all places where notices to employees are cus-
tomarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.